Student Press Law Center
Files Amicus Brief in Doninger Case
From Frank LoMonte,
Executive Director of the Student Press Law Center
The Student Press Law Center ("SPLC&"), the nation's only nonprofit legal-assistance organization serving student journalists, filed a friend-of-the-court brief [Sept. 4] in support of a Connecticut high-school student punished by her principal for using a personal, off-campus blog to criticize school policies and urge the public to contact the school with their opinions.
In a friend-of-the-court brief filed September 4 with the Second U.S. Circuit Court of Appeals in the case of Doninger v. Niehoff, the SPLC urged the appeals court to reverse the ruling of the U.S. district court, which found that Avery Doninger's First Amendment rights were not violated when she was punished for using a blog on LiveJournal.com to vent about a dispute with her principal over the use of school facilities for a concert. The school claimed that Avery's conduct was "disruptive, &" even though there was no evidence that anyone read the blog item at school, or that the blog had any disruptive impact on school.
"If allowed to stand, the lower court's decision will chill the exercise of First Amendment rights, for it suggests that off-campus speech may be punished if it is designed to ‘influence fellow students,' or if it encourages communication with school officials to challenge their decisions,&" the SPLC said in the brief.
Volunteer attorneys Joseph P. Esposito, William E. Potts and Edward A. Wyatt from Hunton & Williams LLP in Washington, D.C., one of the nation's top media-law and litigation firms, prepared and filed the brief for the SPLC.
The [Kravitz ruling] poses a serious threat to the First Amendment rights of student journalists throughout this Circuit and the nation.
This appeal presents the question of whether a public high school may punish a student for exercising two of the most fundamental rights guaranteed to American citizens - the right of free speech and the right to petition government officials for redress of grievances.
The SPLC is submitting this brief because the District Court's decision constitutes a dangerous intrusion into the protections afforded by the First Amendment. The speech at issue occurred entirely outside of school property, from a computer in the student's home. It was conveyed through a medium (a blog) that could only be read by individuals who deliberately sought access by entering specific search terms into a computer. And the student's words themselves were quintessential political speech, criticizing the decision of school officials in contemporary, colloquial terms and inviting others to petition for redress if they, too, disagreed with the decision. Although this is precisely what the First Amendment is intended to protect, the District Court nonetheless held that the Constitution did not protect Ms. Doninger from being punished for her off-campus speech.
This is not merely a case about Avery Doninger and the colloquialism she chose to describe her principal. While some may find the term used to be less than tasteful, First Amendment protections should not be diminished because the speaker chose a word that may be unappealing.
The decision on appeal strikes at the heart of free speech, and the right to petition the government for redress, two sacred cornerstones of American democracy. The lower court's decision would send the wrong message to civics classes, for it unmistakably says that a student may not exercise her First Amendment rights to encourage others to challenge a governmental decision.
The only way the blog reached the campus was because Appellant Niehoff took it there herself.