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

'Team Avery' T-shirt case to go to trial

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

Avery Doninger, a former student at Lewis S. Mills High School in Burlington, Conn., filed the First Amendment lawsuit in July 2007 after her principal, Karissa Niehoff, removed her from class office because of a blog entry that referred to the administrators in the office as "douchebags." Doninger claims the principal violated 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 Superintendent Paula Schwartz were entitled to qualified immunity, which protects "public officials from lawsuits for damages, unless their actions violate clearly established rights," he said in the ruling. Kravitz cited both Bethel School District v. Fraser, in which the Supreme Court ruled that a student's lewd and vulgar speech was not protected on-campus, and Tinker v. Des Moines Independent Community School District, which recognizes First Amendment protection for student speech on-campus as long as it does not substantially disrupt school, demonstrating a confusion among courts about which standard to apply to Internet student-speech cases.

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

"If courts and legal scholars cannot discern the contours of the First Amendment protections for student internet speech, then it is certainly unreasonable to expect school administrators, such as Defendants, to predict where the line between on- and off-campus speech will be drawn in this new digital era," Kravitz said in his opinion.

Although Kravitz decided the case based on qualified immunity, his decision debated whether Doninger's First Amendment rights were violated because the punishment she received -- removal from class office -- deprived her only of a "privilege," not a legally protected right.

"In other words, school administrators could punish off-campus speech that is offensive or vulgar by disqualifying a student from running for student office, so long as the speech, as here, posed a reasonably foreseeable risk of coming on to school property," the court said.

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

"This completely ignores the facts that actually occurred in the Doninger case, where the evidence showed that as few as three other students 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, as the court suggests, cause the entire school community to instantaneously see Avery's message, and the sooner we get past the myth that online speech is some terrifying new species of communication, the sooner we can get rational First Amendment rulings from our courts."

Doninger also filed a First Amendment claim against Niehoff for making students who opposed Doninger's removal from office take off T-shirts that said "Team Avery" while in an assembly where student candidates gave speeches. In that count, Kravitz said the Tinker standard applied, and that the administrators were not protected by qualified immunity in that instance. The administrators argued that because the speech involved T-shirts, not armbands as in 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 students to engage in non-offensive, non-disruptive speech on school property was not clearly established," Kravitz's opinion said.

The case will go to trial to decide whether the school violated Doninger's rights by not allowing her and other students to wear their "Team Avery" shirts.

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

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