SPLC

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

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

The New York appeals court ruled 3-0 that school administrators did not violate “clearly established” First Amendment precedent, either when they disciplined Avery Doninger for her off-campus blog or when they punished her and her classmates for wearing “Team Avery” T-shirts at a school assembly to protest the initial disciplinary 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 Connecticut high-school junior at the time her principal disqualified her from class office because Doninger used coarse language to criticize school administrators on a LiveJournal blog. The blog was created on personal time on Doninger’s family computer, and there was no evidence that anyone read or acted on the blog at school.

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

“In one respect, this ruling is a relief and is a great improvement over the district court’s decision. The court was very careful not to address whether Avery Doninger’s First Amendment rights were or were not violated. So no school attorney will be able to advise his client that punishing a student for uncivil remarks on an off-campus blog is a punishable offense. That is at best an unsettled proposition, and the fact that the circuit avoided deciding it should be a signal that the court is hesitant to go that far,” LoMonte said.

“The ruling is worrisome in several respects. What Avery Doninger was doing was not terribly different from what an editorial commentator might do – trying to arouse the public to call and email the school to express an opinion about a disputed policy decision. It’s troubling that the Second Circuit is willing to entertain the possibility that inciting citizens to contact their public officials is unprotected by the First Amendment if the issue is so controversial that people feel strongly about it, which is the takeaway from this decision,” LoMonte said. “The circuit has indicated, in essence, that it’s safe for students to engage in discussion about issues that nobody cares about, but if the issues raise strong emotions, then the students’ involvement might be considered ‘disruptive.’” 

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

As to the secondary claim in the case, involving the protest T-shirts supporting Doninger, LoMonte said the circuit’s decision is “flatly inconsistent” with the Supreme Court’s Tinker v. Des Moines Independent Community School District standard – which protects the right to wear apparel protesting about divisive issues – and with the more recent Eighth Circuit ruling in Lowery v. Watson Chapel School District, in which the court extended the Tinker rule to cover protests about local school policies (in that case, a protest about dress codes). LoMonte said these precedents clearly establish that wearing a T-shirt with a controversial message – in the absence of evidence that the shirts will provoke a physical disturbance – is protected by the First Amendment.

“It’s clear that the federal courts have abdicated their responsibility to protect the basic human rights of vulnerable young people, and so young people are going to have to organize and mobilize like never before to petition their legislators and members of Congress for better statutory protection,” LoMonte said. “This ruling is a wake-up call to every student in America that their rights are in peril and that they cannot depend on the federal courts to police even the clearest 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.

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