PRESS RELEASE: SPLC Statement on Today’s Decision in Doninger v. Niehoff


Contact: Frank D. LoMonte, executive director
(703) 807-1904 /

The StudentPress Law Center voiced concern Monday that the 2nd U.S. Circuit Court ofAppeals’ ruling denying the First Amendment claims of a high school blogger isa setback for the rights of student journalists everywhere.

The New York appealscourt ruled 3-0 that school administrators did not violate “clearlyestablished” First Amendment precedent, either when they disciplined AveryDoninger for her off-campus blog or when they punished her and her classmatesfor wearing “Team Avery” T-shirts at a school assembly to protest the initialdisciplinary decision.

The SPLC,through volunteer legal counsel from the law firm of Hunton & Williams,appeared as a friend-of-the-court in support of Doninger, who was a Connecticuthigh-school junior at the time her principal disqualified her from class officebecause Doninger used coarse language to criticize school administrators on aLiveJournal blog. The blog was created on personal time on Doninger’s familycomputer, and there was no evidence that anyone read or acted on the blog atschool.

SPLC ExecutiveDirector Frank D. LoMonte described the ruling as “exceptionally narrow”because it turned entirely on the issue of “qualified immunity” – which meansthat government officials cannot be held liable for money damages even if theyviolate the law, if the law was not “clearly established” by a factuallysimilar judicial decision at the time of the violation.

“In onerespect, this ruling is a relief and is a great improvement over the districtcourt’s decision. The court was very careful not to address whether AveryDoninger’s First Amendment rights were or were not violated. So no schoolattorney will be able to advise his client that punishing a student for uncivilremarks on an off-campus blog is a punishable offense. That is at best anunsettled proposition, and the fact that the circuit avoided deciding it shouldbe a signal that the court is hesitant to go that far,” LoMonte said.

“The ruling isworrisome in several respects. What Avery Doninger was doing was not terriblydifferent from what an editorial commentator might do – trying to arouse thepublic to call and email the school to express an opinion about a disputedpolicy decision. It’s troubling that the Second Circuit is willing to entertainthe possibility that inciting citizens to contact their public officials isunprotected by the First Amendment if the issue is so controversial that peoplefeel strongly about it, which is the takeaway from this decision,” LoMontesaid. “The circuit has indicated, in essence, that it’s safe for students toengage in discussion about issues that nobody cares about, but if the issuesraise strong emotions, then the students’ involvement might be considered‘disruptive.’” 

LoMonte saidthe circuit should have reached the underlying issue of whether the school’sconduct in removing Doninger from office was or was not a First Amendmentviolation, because leaving that issue open does nothing to clarify the state ofthe law for schools and students going forward.

As to thesecondary claim in the case, involving the protest T-shirts supportingDoninger, LoMonte said the circuit’s decision is “flatly inconsistent” with theSupreme Court’s Tinker v. Des MoinesIndependent Community School District standard – which protects the rightto wear apparel protesting about divisive issues – and with the more recentEighth Circuit ruling in Lowery v. WatsonChapel School District, in which the court extended the Tinker rule to cover protests aboutlocal school policies (in that case, a protest about dress codes). LoMonte saidthese precedents clearly establish that wearing a T-shirt with a controversialmessage – in the absence of evidence that the shirts will provoke a physicaldisturbance – is protected by the First Amendment.

“It’s clearthat the federal courts have abdicated their responsibility to protect thebasic human rights of vulnerable young people, and so young people are going tohave to organize and mobilize like never before to petition their legislatorsand members of Congress for better statutory protection,” LoMonte said. “Thisruling is a wake-up call to every student in America that their rights are inperil and that they cannot depend on the federal courts to police even theclearest disciplinary overreactions.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.