Saturday, August 15, 2009


Litchfield County Times

Cool Justice Report Editor's Note: This op-ed appeared Fri., Aug. 14, 2009, PAGE a5, in the
  • Litchfield County Times.
  • OK for reprint.

    "Laws are like spider webs. They hold the weak and delicate who are caught in their meshes, but are torn to pieces by the rich and powerful."
    -- Anarcharsis, Athenian citizen, 6th century B.C.

    "In the halls of justice, the only justice is in the halls."

    --Lenny Bruce, author, "How To Talk Dirty And Influence People"


    It doesn't matter what the First Amendment says.

    What matters -- as in any amendment of the Bill of Rights -- is who has the power to enforce it or ignore it.

    I got this perspective from my teacher, Howard Zinn, author of "A People's History of the United States." Howard taught me that history should be written not from the point of view of the president, senator, CEO, bond trader, mayor, police chief, shift supervisor, school superintendent or high school principal. Rather, stories should be told from the point of view of the citizens or other human beings who all too often are at the mercy of those in power.

    As I began a career in journalism writing about the cover-up of a hit-and-run death in New London, CT in 1973, I learned that civil rights, truth and justice have no standing in a corrupt regime. The power of the cop on the beat, the teacher in the classroom, the mayor behind closed doors, the oblivious judge on the bench or the boss on the job supersedes any theoretical document. Seldom are abuses corrected and when they are, it might be too late.

    I think about this often.

    Those in the government class -- school official, judge, prosecutor,cop, legislator -- tend to protect themselves at the expense of others. It is only when citizens rise up, organize and take action against abuse of power, that there is any hope of justice.

    Standing up for all of us in Northwestern Connecticut is Avery Doninger, now a veteran of AmeriCorps, the domestic Peace Corps. Many readers know something about "The Famous Douche Bag Case" in which election results were suppressed and free-speech t-shirts were confiscated and banned at Lewis Mills High School in Burlington. As the case goes back to the U.S. Second Circuit of Appeals in New York this fall, readers are learning more about the essence of the free speech case.

    Doninger, while a junior at Lewis Mills in 2007, followed a suggestion from her student council adviser and, with several other students, engaged the community in a dialogue about use of the school auditorium. The students knew it was the job of school officials to listen and respond to such communication. If only the administration and board of education had known as much, they would not have so many legal bills.

    The students tried to change a decision about the cancellation of a popular music event known as Jamfest. For this, Avery Doninger was punished. It's really that simple.

    Anyone who ever visited a town hall or school superintendent's office understands this. Some public officials actually believe in public service and accountability. They realize they work for taxpayers. Others, like former Region 10 Superintendent Paula Schwartz and Karissa Niehoff, work for themselves.

    "Mrs. Schwartz wasn't happy with all the phone calls and was very annoyed," Niehoff told Avery Doninger.

    "You can imagine how upset she was when parents started calling her," Niehoff told a colleague in an email.

    Gee, a public official gets phone calls and emails from constituents and is outraged. In this context, it is easy to see why Schwartz and Niehoff banned Avery Doninger from running for school office and then hid the write-in votes that elected her by a plurality. While they were busy banning free-speech t-shirts and suppressing an election, Schwartz and Niehoff also found time to honor another student for citizenship. This student called Schwartz a"dirty whore" in the same blog post where Avery Doninger, writing on her home computer, referred to officials as "central office douchebags."

    New Haven U.S. District Court Judge Mark Kravitz, while refusing to grant an injunction recognizing Doninger's election and revoking her punishment, observed: "The [court] agrees with Ms. Doninger that there is evidence in the record -- particularly when viewed in the light most favorable to her -- that suggests that Ms. Niehoff may have punished Ms. Doninger because the blog entry was offensive and uncivil and not because of any potential disruption at school … The timing of Ms. Doninger's punishment in this case, together with Ms. Niehoff's testimony, creates a disputed issue of material fact as to the [defendant's] true motivation for punishing Ms. Doninger."

    "Rallying students and the community to petition the government is good citizenship," Doninger said in a widely-circulated essay. "I failed at vocabulary, not citizenship."

    Indeed, Schwartz never acknowledged Doninger's apology for rudeness until she was confronted about it in federal court. Who failed citizenship and good manners?

    Whether in Iran, China, Russia or Burlington, despots who squelch free expression have a lot to hide.

    Kravitz had scheduled a trial on the seizure of free-speech t-shirts this summer. Region 10 lawyers appealed. Doninger's lawyer, Jon Schoenhorn of Hartford, followed up with a wide-ranging appeal focusing on punishment for protected free speech. The U.S. Second Circuit agreed on July 23 to hear Schoenhorn's arguments. No date has been set for a hearing, but advocates of parental rights are lining up behind Doninger. They are incensed by the intrusion of government into the home.

    "We are in this together fighting abuse of authority," said Judy Aron, a home-school activist from West Hartford.

    Marine Corps veteran Ron Winter of Hebron, a member of the fundraising group "Poets & Writers For Avery," noted his interest in both the First and Second Amendments, saying, "You can't have one without the other."

    To mention yet another Amendment -- The Fourth -- I should note the travails of another member of Poets & Writers For Avery, the poet and Central Connecticut State University Professor Ravi Shankar. Shankar, a tall Indian-American, was wrongly arrested and held for 30 hours recently after a literary event in New York. The police were looking for a shorter white man, but that didn't matter.

    Shankar has been meeting with lawyers this week. Those citizens among us who understand that only vigilance keeps the Bill of Rights alive will be following these cases closely.

    Andy Thibault, author of "Law & Justice In Everyday Life," lives in Litchfield and blogs at
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    Lena Vanelslander said...

    This ois a very interesting post!

    William Doriss said...

    It is unlikely this case will go anywhere in the 2nd Circuit Court. In Doriss v. City of New Haven, et al, I appeared before a three-judge panel in N.Y.C. on my own behalf (No attorney would take my cases,.. for anything like a reasonable fee). The justices asked no questions, and--just as in Ricci v. DeStefanano--issued a one-paragraph ruling upholding the District Court. It is debatable whether these justices even read the briefs. The decision was unpublished, which is a whole other area of controversy regarding the federal appellate procedure. In other words, the decisions in Doriss and Ricci--and many, many other cases--cannot be used as case history and/or precedent in any future similar cases. This is absurd, and not what the Founding Fathers intended in setting up the federal courts. Nor does is it properly embedded in the "common law" from which our rules of jurisprudence are descended.

    The district judge, Robert Chatigny, dismissed my case in clear violation of the prevailing pleading standards established in Conley v. Gibson, 1957, but the Appellate Court could care less. They are not doing their job, with the exception of Justice Cabranes, who was the principal objector in Ricci. My appearance before the 2nd Circuit was a "walk-through," so that I would not be able to later claim that I had been denied my "day in court." It's a pure unadulterated sham and a charade.

    While we're on the 2nd Circuit, I objected to the nomination of Sonia Sotomayor (from the 2nd Circuit) to the Supreme Court and disseminated my views widely, since I had personal experience with this bogus court. Sonia was not on my panel, but one of her mentors was the presiding justice: Guido Calabrese.

    Here's my latest audio/video posted a couple of days ago be Steve Erickson:
    Please watch this and think about whether it is possible to get "justice" in the corrupt state of CT and/or the 2nd Circuit. Answer: Impossible. It's a total fraud and a sham, any all of you pay for it too. How shameful, how disgraceful! Saddam Hussein got more justice in Baghdad than I got in New Haven and New York. That is affirmative.

    Relevant reading: "The Law of Unintended Consequences: Shockwaves in the Lower Courts after Bell Atlantic v. Twombly," by Hon. Colleen McMahon, Suffolk U. Law School; "Just Words? The Effects of No-Citation Rules in Federal Courts of Appeals," by Prof. Jesse Allen, Vermont Law Review; and most importantly: "Law as Magic," by Prof. Jesse Allen, New York University School of Law.