Judge grants qualified immunity to principal in First Amendment 'douchebag' case

CONNECTICUT — A U.S. District Court judge ruled Thursday that astudent had not clearly established her First Amendment right to criticize herprincipal in an off-campus blog that used coarse language, denying the student atrial on her claim.

Avery Doninger, a former student at Lewis S. Mills High School inBurlington, Conn., filed the First Amendment lawsuit in July 2007 after herprincipal, Karissa Niehoff, removed her from class office because of a blogentry that referred to the administrators in the office as “douchebags.” Doninger claims the principalviolated her First Amendment rights by punishing her for her off-campus speech,which arose out of a dispute over the scheduling of a student-sponsored concert.

U.S. District Court Judge Mark Kravitz decided Niehoff and SuperintendentPaula Schwartz were entitled to qualified immunity, which protects “publicofficials from lawsuits for damages, unless their actions violate clearlyestablished rights,” he said in the ruling. Kravitz cited both Bethel SchoolDistrict v. Fraser, in which the Supreme Court ruled that a student’s lewdand vulgar speech was not protected on-campus, and Tinker v. Des MoinesIndependent Community School District, which recognizes First Amendmentprotection for student speech on-campus as long as it does not substantiallydisrupt school, demonstrating a confusion among courts about which standard toapply to Internet student-speech cases.

Kravitz said in the ruling that because the Supreme Court has not decidedwhether online speech can be punished on-campus, even if the speech involved waswritten off-campus, Niehoff could not have known what standard applied.

“If courts and legal scholars cannot discern the contours of the FirstAmendment protections for student internet speech, then it is certainlyunreasonable to expect school administrators, such as Defendants, to predictwhere the line between on- and off-campus speech will be drawn in this newdigital era,” Kravitz said in his opinion.

Although Kravitz decided the case based on qualified immunity, his decisiondebated whether Doninger’s First Amendment rights were violated because thepunishment she received — removal from class office — deprived heronly of a “privilege,” not a legally protected right.

“In other words, school administrators could punish off-campus speech thatis offensive or vulgar by disqualifying a student from running for studentoffice, so long as the speech, as here, posed a reasonably foreseeable risk ofcoming on to school property,” the court said.

First Amendment advocates say rulings like this suggest courts are temptedto afford a lower standard of protection for online speech because it is easy touse and instantly reaches readers.

“This completely ignores the facts that actually occurred in theDoninger case, where the evidence showed that as few as three otherstudents ever saw the blog entry before it was taken down,” said Frank LoMonte,executive director of the Student Press Law Center. “The internet did not, asthe court suggests, cause the entire school community to instantaneously seeAvery’s message, and the sooner we get past the myth that online speech issome terrifying new species of communication, the sooner we can get rationalFirst Amendment rulings from our courts.”

Doninger also filed a First Amendment claim against Niehoff for makingstudents who opposed Doninger’s removal from office take off T-shirts that said “Team Avery” while in an assembly where student candidates gave speeches. Inthat count, Kravitz said the Tinker standard applied, and that theadministrators were not protected by qualified immunity in that instance. Theadministrators argued that because the speech involved T-shirts, not armbands asin Tinker, that it was not clearly a Tinker case, and therefore,qualified immunity should apply.

“None of these distinctions convinces the Court that the right of studentsto engage in non-offensive, non-disruptive speech on school property was notclearly established,” Kravitz’s opinion said.

The case will go to trial to decide whether the school violated Doninger’srights by not allowing her and other students to wear their “Team Avery” shirts.

Doninger’s attorney, Jon Schoenhorn, and the school’s legal counsel, ThomasR. Gerarde, did not return phone calls for comment by press time.