Citizenship has always been one of those phrases that has been subject to facile misconstruction. Is citizenship blind obedience to the will of the government? Were Jefferson, Washington and Madison bad citizens? No, Avery's deed doesn't place her in the pantheon of American heroes, but her right to express them is the natural child of their efforts and ideals. Avery Doninger challenge to heavy hand, the knee-jerk reaction of government officials is the epitome of good citizenship, except when the determination is being made by the very people criticized. Only then does good citizenship get redefined as "obedience to governmental authority."
... The relief no longer matters for Avery Doninger, who is now past the discipline these petty officials can level. But it speaks to the farcical nature of our proclaimed love of freedom, as it's denigrated by this far-reaching decision. What a sad lesson about freedom and the Constitution was taught at Lewis S. Mills High School in Connecticut and the Second Circuit Court of Appeals in Manhattan.
2d Circuit Affirms in Doninger Appeal: Student Speech Crushed
Posted by SHG at 5/30/2008 5:37 AM and is filed under uncategorized
Avery Doninger is the student that many wish their own kids would be, smart, involved and caring. Now, here name will by synonymous with something different, a crushing blow against free speech by a student on the internet, now that the 2d Circuit has rejected her arguments for a preliminary injunction on appeal. Here, here and here are past posts on this case, and the mother-lode can be found at Cool Justice.
According to the Hartford Courant,
Ruling in a case that addresses broad questions of the boundaries of free speech in the Internet age, a federal appeals court on Thursday effectively ended a Burlington student's effort to serve as a class officer and speak at graduation.
[T]he court's ruling weighed in on a hotly contested and evolving area of the law, freedom of expression on the Internet. The three-judge panel stopped short of declaring how far schools can go in regulating offensive Internet speech made off campus, but stated that the school did not violate the Constitution in disciplining Doninger because her blog post "created a foreseeable risk of substantial disruption" at the school.
The mantra of old was that students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gates." Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969). But that was before the internet existed. Apparently, everything has changed.
While the earlier rule held that students maintained a constitutional right to speech, even within the school yard, the Circuit's vision is that they not only forfeit speech going into school, but do so again on the way out. Avery's challenge to school officials' hegemony was made in a blog post, well beyond the proverbial schoolhouse gates of the past. But there are no longer any gates, literally or figuratively, when it comes to student speech.
The test applied by the Circuit is extremely curious, holding that the district was appropriate in disciplining Avery because her blog post "created a foreseeable risk of substantial disruption." Almost as a matter of historic definition, weeding out acceptable exercise of Freedom of Speech because it had the potential to create thought and ideas that might be disruptive fundamentally undermines the right. What point is there to speech that evokes no thought or ideas? It's disruptive speech that the 1st Amendment protects.
The disruption the blog post caused, the court wrote, included students getting riled and administrators receiving phone calls and e-mails that made them miss or come
late to school-related activities.
Even so, the ruling said, the relevant issue was not whether disruption occurred but whether school officials "might reasonably portend disruption."
While this might be mistakenly viewed as a recognition that disruptive speech is protected, don't be fooled. This aspect serves only to relieve school officials of the duty to prove harm first, allowing them to foreclose speech for their own mere anticipation. It further reduces the test to one of theoretical disruption, providing even greater deference to school officials to discipline students despite no adverse consequences.
If protected speech is limited to a chat about who's taking whom to the prom, or what the popular girls were wearing to the dance, no protection would be needed. The irony of the Circuit's decision is striking: What better speech to protect than that which challenges government officials?
But the irony doesn't end there.
The court also emphasized that Doninger's discipline barred her from an extracurricular activity, and that the blog post was inconsistent with the school's policy that student
government representatives have a record of good citizenship.
Citizenship has always been one of those phrases that has been subject to facile misconstruction. Is citizenship blind obedience to the will of the government? Were Jefferson, Washington and Madison bad citizens? No, Avery's deed doesn't place her in the pantheon of American heroes, but her right to express them is the natural child of their efforts and ideals. Avery Doninger challenge to heavy hand, the knee-jerk reaction of government officials is the epitome of good citizenship, except when the determination is being made by the very people criticized. Only then does good citizenship get redefined as "obedience to governmental authority."
This decision not only has dire significance for student speech, one of the "tail wagging the dog" areas of law that invariably ends with courts digging deep to find a way to defer to school officials, whose love of students stops abruptly when their might and wisdom is question. But it also has significant implications for online speech, a realm where courts remains particularly out of touch.
The pervasiveness of online communication, its breadth and reach, scares the daylights out of courts. They can order a person to be silent; indeed, they can imprison a person to stop her from speaking her mind. But the courts have no control over the internet, where ideas flow instantaneously around the world, beyond the reach of even the mighty Circuit judge, and remain forever no matter how forceful an order he issues.
So, some petty school officials smacked a student who posted a negative and vulgar comment about them. The Circuit had a chance to enforce the Constitution, and instead chose to hide behind deference to these petty officials, lest they lose their ironclad control over a bunch of kids. The court elected to protect the petty officials from embarrassment, and instead embarrassed itself, the country and our self-proclaimed respect for freedom of speech.
The relief no longer matters for Avery Doninger, who is now past the discipline these petty officials can level. But it speaks to the farcical nature of our proclaimed love of freedom, as it's denigrated by this far-reaching decision. What a sad lesson about freedom and the Constitution was taught at Lewis S. Mills High School in Connecticut and the Second Circuit Court of Appeals in Manhattan.
Following is a Readers Digest version of the Doninger case:
Avery Doninger, a senior at Lewis S. Mills High School in Burlington, CT, has a civil rights trial pending in New Haven U.S. District Court. She and her mother, Lauren Doninger, sued Principal Karissa Niehoff and Superintendent Paula Schwartz after they removed Avery from the ballot for Class of 2008 secretary.
Avery Doninger was among a group of four students who lobbied the community for support of an annual battle of the bands sponsored by the Student Council. The student council adviser suggested the students reach out to taxpayers and the students copied the adviser an on email to the community.
Schwartz became very upset after taxpayers called her and she cancelled the event known as Jamfest. Doninger subsequently referred to administrators in a live journal blog as central office douche bags, and Schwartz's son found the posting while trolling the internet for his mother a couple weeks later. While Avery Doninger was banned from school office, another student who called Schwartz a dirty whore was given an award and lauded for citizenship.
School officials suppressed the write-in vote in which Doninger was elected by a plurality. Schwartz refused to accept Doninger's apology for her choice of words. During an assembly, Niehoff banned free-speech and Team Avery t-shirts and seized at least one shirt.
The Doningers are seeking -- among other remedies -- an apology for civil rights violations, recognition of the write-in victory and sharing of the secretary position with the administration-backed candidate.
New Haven U.S. District Judge Mark Kravitz denied a motion for a preliminary injunction [immediate relief] last fall and his ruling was appealed to the Second Circuit in New York. That appeal ruling was posted May 29.
1 comment:
It's a shame you still feel you need to lie about the case to support your own efforts. We all know you don't sleep well with your use of children to promote your own distorted view of the world. Try for one stating the facts of a case and then put up an opinion that people will care about, because everyone knows you are a lying piece of crap deserves nothing.
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