Friday, May 29, 2009

Free Speech Freedom Fighter To Sotomayor: You Disappoint Me

"We want someone who is going to protect our First Amendment rights."
-- Avery Doninger,
plaintiff in Connecticut Free Speech Case

  • NY Post


    May 29, 2009 -- A Connecticut teen who used a vulgar epithet on a personal blog to describe her school's administrators never imagined someone like Sonia Sotomayor would stand in the way of her student-government career.

    But the Supreme Court nominee did just that last year, when she sided with school brass, which had barred the ambitious student from holding office over the offending blog entry.

    Now the case -- which touched off a wide-ranging debate on the boundaries of free speech -- is back in the spotlight as a clue to Sotomayor's approach to the Constitution.

    "I'm absolutely concerned" about Sotomayor's nomination to the Supreme Court, the student, Avery Doninger, told The Post.

    "We want someone who is going to protect our First Amendment rights."

    Doninger had sued her school in Burlington for violating her rights after it blocked her from serving as class secretary.

    A 17-year-old high school junior at the time in 2007, Doninger wrote on her home computer about a school event, "Jamfest is canceled due to douchebags in central office."

    Lawyers for the school argued that even though Doninger blogged off campus, she still disrupted school because of the power of the Internet.

    "Imagine if the class president got in his car after school, went 15 yards off campus, opened his laptop and then called out the school principal or superintendent using all kinds of four-letter words," said Thomas Gerarde, the lawyer for the school.

    "That would clearly be disruptive" and cause for discipline from the school, he said.

    Free-speech advocates disagree.

    "Student speech at home is no different than adult speech at home," said Doninger's lawyer, Jon Schoenhorn. "This case holds that the school administration can reach into the home and punish students."

    Doninger asked a lower court to let her serve out the term as class secretary while her case was being hashed out. When the lower court refused, they appealed the case to the 2nd US Circuit Court of Appeals, where it went before Sotomayor.

    She and two judges ruled unanimously that even though "the punishment did not fit the crime," they would not step in.

    The remarks created a "foreseeable risk of substantial disruption" to the school, and administrators had the right to discipline the student, judges ruled.

    "I was really surprised that she ended up going that way," said Doninger. "What I know from her background is that she's liberal."

    Meanwhile, NY1 reported yesterday that Sotomayor didn't vote in the last two statewide elections.

  • Sotomayor Ruling Against Free Speech: `A Foul Lesson'

  • Key Facts And Points In The Doninger Case

    Student Was Punished
    For Seeking Redresss Of Grievances
    After Postponements, Cancellation
    Of Popular Music Festival

    Following is a Readers Digest version
    of the Doninger case:

    Avery Doninger, a volunteer in the Americorps national public service program, has a civil rights trial pending in New Haven U.S. District Court. [Among her duties on the job: helping hurricane victims in Texas.]

    Avery, a 2008 graduate of Lewis Mills High School in Burlington, CT, and her mother, Lauren Doninger, sued Principal Karissa Niehoff and Superintendent Paula Schwartz [now retired] after they removed Avery from the ballot for class 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 have been seeking -- among other remedies -- an apology for civil rights violations and recognition of the write-in victory.

    New Haven U.S. District Judge Mark Kravitz denied a motion for a preliminary injunction [immediate relief] in August 2007. Based on errors in the record, Kravitz's injunction ruling was upheld by the U.S. Second Circuit in New York.

    Travesty Kravitz held a hearing in November 2008 on Doninger's request for a trial. He cut off discussion about various frauds -- including false testimony -- upon the court and ultimately ordered a trial on Jan. 15, 2009. But, he limited the scope of the trial to the narrow issue of the suppression and seizure of free speech t-shirts.

    Appeals are likely on a number of rulings narrowing the scope of the case.

    On Jan. 22, 2009, Connecticut State Senator Gary LeBeau filed a landmark bill to protect student speech.

    On Jan. 23, 2009, Travesty Kravitz scheduled jury selection and a trial for civil rights violations related to the suppression and seizure of free speech t-shirts. The case is expected to proceed in June.

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