Important questions need to be answered about Sotomayor’s position on student speech rights

When Judge Sonia Sotomayor takes her seat for her confirmation hearing before the U.S. Senate Judiciary Committee on Monday, she will have the opportunity to set right a terrible mistake that threatens to undermine the safety of student journalists.

Last year, Judge Sotomayor signed her name to an ill-considered ruling that significantly expanded high schools’ authority to punish students’ speech – even off-campus speech on personal time. If it is not corrected or overturned, the ruling will leave online student journalists and commentators vulnerable to being disciplined for “crimes” no greater than exposing administrators’ wrongdoing.

The case, Doninger v. Niehoff, involved a Connecticut high school student, Avery Doninger, who used her home computer on personal time to write a blog criticizing school administrators for blocking a student-organized concert. The blog regrettably used two coarse words, for which the student’s mother amply punished her.

But the student’s principal wasn’t satisfied to leave the discipline to the parents. Even though no school resources were used, and there was no evidence anyone even read the blog at school, the principal punished the student by disqualifying her from class office.

The student sought a court order restoring her to office, claiming the school could not punish her off-campus speech. A district court found no First Amendment violation and denied her petition, and the Second Circuit U.S. Court of Appeals agreed. Judge Sotomayor did not write the Second Circuit’s opinion, but she joined the 3-0 ruling without reservation.

While the facts may seem unsympathetic, wise and careful judges must see beyond the distasteful facts of individual cases to the larger legal principles that protect us all.

For 40 years, the Supreme Court has reaffirmed that public schools may not censor students’ speech – even on-campus during class time – so long as the speech does not “materially and substantially disrupt the work and discipline of the school.”  “Substantial disruption” normally means stirring up students to violence, or interfering with others’ ability to learn – but in Doninger, the Second Circuit set a perilously lower bar.

In the view of the Sotomayor panel, it is “substantially disruptive” if a student’s speech causes members of the public to call and e-mail the principal so that the principal must take time to respond. And the court suggested that speech may lose its First Amendment protection if it uses “offensive” (but not obscene, or even profane) language, and if it exaggerates the facts (in this instance, by saying that the student concert was canceled, rather than canceled with a possibility of rescheduling, which is an awfully hair-splitting “exaggeration”).

To reach that result, the court had to ignore an overwhelming body of legal precedent, including a very recent Supreme Court ruling, Morse v. Frederick, in which the Court unequivocally said that “offensiveness” does not justify punishing a student’s speech – even at a school event, let alone on a personal blog. Chief Justice Roberts – no student-rights radical – put it best: “After all, much political and religious speech might be perceived as offensive to some.”

In accepting the president’s nomination, Judge Sotomayor professed, “I strive never to forget the real-world consequences of my decisions on individuals, businesses and government.” The Doninger decision, regrettably, displays no recognition of the inevitable spillover effect on those who want to use blogs for more serious commentary – or the grim reality under which many student journalists operate today.

As soon as courts tell school administrators, “You can get away with X,” the worst ones are on the phone to their lawyers saying, “Give me a legal opinion that says I can get away with Y and Z, too.” Using the blank-check authority that courts have all-too-readily extended, administrators have fired top journalism teachers, placed award-winning journalism programs under prior-restraint clampdowns, and intimidated student whistleblowers into silence. Even in California, a state known for tolerating diverse viewpoints, retaliatory discharges of journalism teachers are so common that legislators were forced last year to expressly outlaw the practice.

We do not have to speculate whether future courts will expand upon and misapply the Doninger opinion to the detriment of journalists. We know that they will, because we have the recent experience of the Supreme Court’s Morse case to guide us. In Morse, the Court said that student speech advocating the use of illegal drugs was outside the protection of the First Amendment. The Court repeatedly and unmistakably told lower courts that its ruling pertained solely to speech promoting drugs. Nonetheless, court after court has misapplied Morse in cases having nothing to do with drugs. Most distressingly, in March, a federal district court in New York decided that Morse legitimized the censorship of an editorial cartoon poking mild fun at an Ithaca high school’s sex-education curriculum. In the view of the judge, making light of sex education equated to encouraging students to run out and have unsafe sex, which the judge concluded is just as dangerous as using drugs.

Change the facts of the Doninger case slightly. Avery Doninger is a student journalist who has discovered that a school-bus driver who just crashed his bus was driving with a revoked license. Because the principal will not allow her to print a negative story in the campus newspaper – a scenario that we at the Student Press Law Center confront daily – Avery takes the story home and posts it on her blog, along with a quote from the irate parent of an injured student: “I want to know who’s the damned idiot who let this butthead drive my kids around.” The principal responds by firing Avery as editor of the campus paper and banning her from the staff of the paper next year.

Because of the Doninger court, that student has no recourse in the Second Circuit today. She printed coarse language about school personnel in a manner that is certain to make the principal’s phone ring, and her punishment stopped short of suspension or expulsion.

That is the legacy left by the Doninger court – that student journalism, even in off-campus independent outlets, may be punishable if it risks causing a large number of complaints to the principal. The work of journalists, when done at its best, is meant to provoke a public response. We should protect and celebrate that work, not expose it to punishment.

For a century, federal court interpretations of the First Amendment have been guided by two overriding imperatives. One is that the government’s censorship authority must be tightly constrained, so that officials cannot abuse their power to single out certain disfavored speech for differential treatment (for instance, punishing the person who causes 100 critical e-mails to flood the mailbox, but not the person responsible for 100 congratulatory e-mails). The other is that close judgment calls must go to the speaker, not the regulator, so that speakers do not unnecessarily censor themselves for fear they may be approaching a hazy line of legality. The Doninger ruling neither tightly constrains the government nor provides speakers with clear guidance as to what is prohibited.

The Doninger ruling came at a preliminary stage of the case, at which the Court of Appeals was resolving a narrow issue. It could, and should, have been a two-sentence opinion. Instead, the court reached to make new and damaging First Amendment law, driven by a singular objective: find a way for the student to lose and the school to win.

Judge Sotomayor will have the chance to explain her support for the Doninger ruling before the Senate Judiciary Committee. She should not be allowed to evade questions about this troubling decision, because her support for it goes to the very heart of her ability, as a justice, to write careful opinions that anticipate and avoid misuse in future cases. Judge Sotomayor should use the Judiciary Committee platform to say she understands that student journalism is under siege from out-of-control censorship, and that she recognizes the pendulum has swung too far toward unchecked school authority.