The Student Press Law Center (“SPLC”), the nation’s onlynonprofit legal-assistance organization serving student journalists, filed afriend-of-the-court brief today in support of a Connecticut high-school studentpunished by her principal for using a personal, off-campus blog to criticizeschool policies and urge the public to contact the school with theiropinions.
In a friend-of-the-court brief filed September 4 with the Second U.S.Circuit Court of Appeals in the case of Doninger v. Niehoff, the SPLCurged the appeals court to reverse the ruling of the U.S. district court, whichfound that Avery Doninger’s First Amendment rights were not violated whenshe was punished for using a blog on LiveJournal.com to vent about a disputewith her principal over the use of school facilities for a concert. The schoolclaimed that Avery’s conduct was “disruptive,” even thoughthere was no evidence that anyone read the blog item at school, or that the bloghad any disruptive impact on school.
“If allowed to stand, the lower court’s decision will chillthe exercise of First Amendment rights, for it suggests that off-campus speechmay be punished if it is designed to ‘influence fellow students,’ orif it encourages communication with school officials to challenge theirdecisions,” the SPLC said in the brief.
Volunteer attorneys Joseph P. Esposito, William E. Potts and Edward A.Wyatt from Hunton & Williams LLP in Washington, D.C., one of thenation’s top media-law and litigation firms, prepared and filed the brieffor the SPLC.
Frank D. LoMonte, an attorney and executive director of the Student PressLaw Center, explained that traditionally, schools have had no authority topunish off-campus conduct unless the conduct took place at a school-supervisedevent, such as a field trip. “Because schools often claim the right tocontrol and punish what students say in school-funded newspapers, it isespecially important that students retain the full First Amendment rights ofcitizenship when they are on their own property and on their own time,&”LoMonte said. “If schools are allowed to dictate what students say outsideof school, then schools will have nearly unlimited ability to prevent negativenews stories from coming to light.”
LoMonte said the Doninger case exemplifies a dangerous trend inwhich schools have claimed that speech using electronic modes of communicationis so much more pervasive and accessible than speech on paper that it isentitled to lesser First Amendment protection. “The Supreme Court has madeit abundantly clear that online speech is of equal constitutional dignity withspeech in print. The fact that only four known individuals read AveryDoninger’s blog — none of whom did anything threatening ordisruptive in response to it — goes to show that students’ onlinespeech is not so qualitatively different from speech in print that the courtsshould consign it to ‘second-class’ constitutional status,” LoMonte said.
The U.S. District Court for the District of Connecticut ruled in January2009 that Avery’s First Amendment rights were not violated when PrincipalKarissa Niehoff barred her from assuming office as secretary of her senior classat Lewis S. Mills High School in Burlington, Conn. Judge Mark R. Kravitz ruledthat Avery’s blog commenting on her dispute with the school administrationwas not protected by the First Amendment, because it used a coarse word(“douchebags”), and because it could have been expected to cause a”disruptive” level of public contact with the school — eventhough the judge acknowledged that the only actual “disruption” wascaused by the principal’s own decision to miss a school meeting so shecould use that time to discipline Avery. The judge did allow Avery to proceed ona secondary claim, that her First Amendment rights were violated when the schoolforbade her and her classmates from wearing “Team Avery” T-shirts toa school assembly to express their opposition to Principal Niehoff’sdecision.
Public school students’ First Amendment rights are governed by theSupreme Court’s landmark 1969 ruling in Tinker v. Des MoinesIndependent Community School District, which held that — even oncampus during school — students may freely express their opinions so longas their expression does not “materially and substantially disrupt”school operations. “If calls and emails from parents and students aredeemed sufficient to establish ‘substantial disruption or materialinterference,’ then school officials will have free rein to suppress anyoff-campus student newspaper or speech that challenges their decisions, andpublic school students will no longer enjoy protection under the FirstAmendment,” the SPLC said in its brief. “Indeed, the moresubstantive and hard-hitting the student’s journalism, the more likely itscensorship will be lawful.”
Since 1974, the Student Press Law Center has been devoted to educatinghigh school and college journalists about the rights and responsibilitiesembodied in the First Amendment, and supporting the student news media incovering important issues free from censorship. The Center provides freeinformation and educational materials for student journalists and their teacherson a wide variety of legal topics.
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