A recent case involving the First Amendment rights of students raises potentially troubling questions about the extent to which opinion on the blogosphere can support discipline, not just by school administrators, but also, potentially, by bar disciplinary officials. At issue is whether items in the blogosphere ever really touch down in areas warranting discipline.
Avery Doninger is a high school student at Lewis S. Mills High School in Burlington, Connecticut. She disagreed with a position taken by school administrators regarding when and under what circumstances a "battle of the bands" event could take place on school grounds.
Ms. Doninger took to the blogosphere, calling school administrators "douchebags" [sic] and encouraging others to contact the school to "piss her [an administrator] off even more." She and several classmates went to the Internet to encourage others to call the school administrators to protest about the administration's policy limiting use of the school auditorium for an extracurricular event.
As a result, school officials forbade Ms. Doninger from running for senior class secretary. Students nonetheless voted her in as a write-in candidacy, but the administrator would not seat her. The result was a claim for injunctive relief that was tried before United States District Court Judge Mark Kravitz in Connecticut during the past two weeks.
The punishment seems an awful lot like slapping at Ms. Doninger for petitioning, even tastelessly, for redress of a grievance. The student did not appear on school grounds to encourage acts of violence or disruption. There was no evidence of disruption of the school's educational mission. At most, weary administrators had to field a few additional phone calls, and several of them had their feelings hurt by being called bad names.
This was not a case in which students wore armbands in protest of government policy, as in Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). Neither was it a case in which disruptive on campus speech took place, as in Bethel Sch. Dist No. 403 v. Frazer, 478 U.S. 675 (1986). In the Donninger case, the speech took place off campus, but it was designed to have an impact on the school wholly unrelated to the school's core educational mission.
So why did the judge decide against Ms. Doninger? In part, because she appears to have violated a school policy about civility and the proper means of working out disagreements with administrators. And in part because her off-campus speech had an impact on school activities. But that begs the larger question: Can administrators opt out of the First Amendment? Of course, they cannot. Here is the decision
In the meantime, the Doninger case raises interesting questions. If a lawyer, for example, criticizes a judge on a blog page, and even calls for his resignation, as was done here recently, is the lawyer subject to discipline?
The lawyer did not march into court and disrupt a proceeding. Neither did the lawyer say anything in a courtroom that would impede the administration of justice. But the lawyer did say things calculated to yield others to act. Until I read the Doninger case, I was confident that this was protected speech.
But don't lawyers limit the scope of their freedom by signing onto the bar? In an electronic world, don't the tendrils of speech reach everywhere?
Mark Kravitz is a brilliant jurist of unquestioned integrity. His decision in Doninger is therefore troubling. Is he telling all of us: Blogger Beware?