New Britain Herald
Sotomayor had key role in Doninger case
"Last time I checked, I thought our democracy and freedom were predicated on the principle that all people have a right to express their opinions, which must certainly include disrespect for authority.”
-- Fordham Prof Paul Levinson
Wednesday, May 27, 2009 10:54 PM EDT
By STEVE COLLINS
President Barack Obama’s nominee to fill a Supreme Court vacancy was one of a trio of appeals judges who last year rejected the First Amendment claim of a Burlington student penalized by school administrators for using foul langauge in a blog she wrote at home.
Some observers said Wednesday the case presents a solid rationale for rejecting Judge Sonia Sotomayor of New York’s Second Circuit Court of Appeals to fill the seat of retiring Justice David Souter.
“Last time I checked, I thought our democracy and freedom were predicated on the principle that all people have a right to express their opinions, which must certainly include disrespect for authority,” said Paul Levinson, a professor of communication and media studies at New York’s Fordham University.
Levinson said the president “did not make a good choice” and the Senate should reject her.
In the May 29, 2008, decision, Sotomayor joined in a ruling to deny an injunction sought by Avery Doninger of Lewis Mills High School to prevent administrators from barring her election as senior class secretary to punish her for writing that the school superintendent was a “douche bag.” Doninger thought the administrator was canceling a popular battle of the bands. The judges said her words were potentially disruptive and “plainly offensive.”
The U.S. Supreme Court has allowed school administrators to censor student speech and writing if it “substantially disrupt(s)” school discipline, but has held that “similar speech outside the school” could not be censored.
Doninger has said she would take her case to the Supreme Court. Trial court judges are asking for guidance on off-campus student speech in the Internet age.
“The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens,” said Jonathan Turley, a law professor at George Washington University. “I would prefer some obnoxious speech [rather] than teaching students that they must please government officials if they want special benefits or opportunities.”
Connecticut journalist Andy Thibault, whose Cool Justice Report blog has dogged the case from the start, said that Judge Sotomayor “was clubbed on the head with a crystal-clear free-speech violation and she said, in effect, ‘That’s nice, I’ll sign off on it.’”
“When a citizen seeks a redress of a grievance and is punished for lobbying the community, that’s OK with Sotomayor,” he said.
Turley said the ruling “cut deeply into student rights.”
“For the life of me, I don’t understand why it’s so complicated,” said Bob Brown, a former Bristol Press editor who teaches at Tunxis Community College.
Brown said Wednesday that Doninger used her own blog without school resources to speak freely about an issue she cared about.
Calling school officials “douche bags” is clearly an opinion, he said, so it’s not libel and it’s not something that she ought to have gotten into any trouble over.
Brown, who teaches journalism, composition and history, called the entire issue a straightforward First Amendment matter that shouldn’t have become such a controversy.
Jon Schoenhorn, the Hartford attorney who represented Doninger, said he thinks Sotomayor’s First Amendment views are “fairly conservative.”
He said he doesn’t understand why so many right-wing commentators are portraying the judge as a liberal activist when her record is clearly mixed.
Schoenhorn said that from what he’s seen, Sotomayor “tends to be more progressive than conservative.”
But, he said, she’s not as liberal as conservative talking points are painting her.
Schoenhorn said he hopes that “someone will ask her” about her First Amendment views and, in particular, her thoughts on student rights.
First Amendment law “is not a conservative versus liberal area,” Schoenhorn said, in part because it includes both speech and religion, which often go hand in hand in terms of how expansive an outlook someone has.
Schoenhorn said he disagreed with her decision to rule against Doninger, but doesn’t assume it reflects her broader views.
Thibault said it is clear Sotomayor is “an enemy of free speech. Never mind the fabrication of disruption or potential disruption long after the fact by the douche bag school bosses: Sotomayor flunks due diligence, a reading of her own Second Circuit on the standard of offensiveness and most importantly, her duty to uphold the Bill of Rights. Any punishment by a government official in response to protected speech is a violation of the First Amendment,” Thibault said.
Steve Collins can be reached at (860) 584-0501 ext. 254 or email@example.com
Comment @ NB Herald:
"Nominating a person to the supreme court who either has no use for,or no knowledge of the first amendmendment is pretty frightening.
I am concerned that the new boss is no better than the douche nozzle he replaced."