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Paul Levinson
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Paul Levinson's The Silk Code won the 2000 Locus Award for Best First Novel. He has since published Borrowed Tides (2001), The Consciousness Plague (2002), The Pixel Eye (2003), The Plot To Save Socrates (2006), Unburning Alexandria (2013), and Chronica (2014) - the last three known as the "Sierra Waters trilogy". His science fiction and mystery short stories have been nominated for Nebula, Hugo, Edgar, and Sturgeon Awards. His eight nonfiction books, including The Soft Edge (1997), Digital McLuhan (1999), Realspace (2003), Cellphone (2004), New New Media (2009, 2013) have been the subject of major articles in the New York Times, Wired, the Christian Science Monitor, and have been translated into twelve languages. Paul Levinson has appeared on "The O'Reilly Factor" (Fox News), "The CBS Evening News," the “NewsHour with Jim Lehrer” (PBS), “Nightline” (ABC), and numerous national and international TV and radio programs. His 1972 album, Twice Upon a Rhyme, was re-issued in 2010. He reviews the best of television in his InfiniteRegress.tv blog, and was listed in The Chronicle of Higher Education's "Top 10 Academic Twitterers" in 2009. Paul Levinson is Professor of Communication & Media Studies at Fordham University in New York City

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MAY 2, 2009 6:11PM

Sotomayor's Bad 1st Amendment Decision Should Disqualify Her

Rate: 54 Flag

According to Sam Stein in the Huffington Post, Sonia Sotomayor is "the odds-on favorite" to be chosen by Barack Obama to fill retiring Justice David Souter's seat on the U.S. Supreme Court. She now sits on the U.S. Court of Appeals of the Second Circuit in New York City. She is regularly described as liberal and a judicial activist - fine in my book - and it would good to have a first Hispanic and another woman on the Supreme Court.

But she has one major, very bad decision on free speech and press to her discredit, which should give everyone who values these freedoms in our society serious cause for concern about Sotomayor's possible nomination to the High Court.

The decision came from Sotomayor's Second Circuit Court last May, regarding Lewis Mills High School student Avery Doninger. While running for Senior Class Secretary, Ms. Doninger found reason to object to the school's cancellation of a "jamfest" event, and characterized those who scotched the event as "douchebags" on her off-campus LiveJournal blog (she also characterized a school official in that same blog posting as getting "pissed off"). The school officials, in turn, took umbrage, prohibited Avery from running for Class Secretary, and disregarded the plurality of votes she received, anyway, as a write-in candidate. Avery sued the school officials, and the Federal District Court supported the school. Avery appealed to Sotomayor's Second Circuit Court.

After acknowledging the Supreme Court's 1969 Tinker decision, which held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Sotomayor's Court proceeded to affirm the District Court's ruling - that is, Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students "shared values," which include not only the importance of free expression but a "proper respect for authority".

"Proper respect for authority" ... is this what our democratic society and freedom is based upon? 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, if actions by the authority - such as canceling a school event such as "jamfest" - are at issue.

Or as Constitutional scholar and law-professor Jonathan Turley put it about this decision last year, "The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities."

It is not exaggerating events to say that our society hangs in the balance with the appointment of Souter's replacement to the Supreme Court. A powerful, corrective revolution is underway, with Obama's election as President, and the Democrats about to obtain a 60-seat majority in the U.S. Senate. But an adverse Supreme Court can stop and undo a lot of that.

David Souter was a surprise to the Republicans who appointed him and worked for his confirmation. His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

I hope Sonia Sotomayor's name is taken off the list.

See also full text of Sotomayor's decision ... further discussion on Andy Thibault's Cool Justice Report ... and my 2005 Flouting of the First Amendment

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Paul, that's certainly troubling news about Sotomayor's stance on the First Amendment. There is ample time to do this right and I would not like to see a rushed nomination that is a disaster for years to come.
This: "Their reasoning was that schools have an obligation to impart to their students "shared values," which include not only the importance of free expression but a "proper respect for authority" ".

I'm more concerned about who and what defines "shared values". I smell that old time religion again and I'm calling, "foul".

Are there any petitions in place to get her off the list?

I'm DIGGing this, Paul. People need to know. Rated.
Thanks for raising this. It's definitely worth some serious public discussion. If the facts of your summary are correct (and I have no reason to doubt them, I just haven't cross-checked with the original warning), then that's indeed something of great concern.
Thank you for the "Heads-up."
This information troubles me greatly and I will certainly research it further. Also troubling is the sheer number of these types of litigations, that are apparently adjudicated, in violation of constitutional rights. Have they taught the U.S. Constitution in the public schools over the past four decades? I'm serious. I am truly beginning to wonder.
--rated--
Kent - you should know by now that everything I say is 100% fact and truth :)

Seriously - the facts of the case are all presented in the Circuit Court decision.
Thank you for writing this. It is very important. Andy Thibault of Cool Justice Report and I have covered this case very closely.

I believe that Judge Sotomayor really got things wrong in the decision. You may also want to read my post about the arguments in front of Judge Sotomayor
http://www.orient-lodge.com/node/2843
I didn't know that about Sotomayor. Dugg! and rated
Hardly sounds liberal to me. Part of the reason we are in the mess that we are in is because we bow to authority rather than protest decisions by asshats like Bush.
I do not like the sound of this at all. It is the first negative thing I've heard of Sotomayor. If it were years ago I might be convinced to over look something like this, but just last May is not a lot of time to reevaluate someones judgments. Plus once they're in, they're in for a very long time.
thumbed and dugg
I'm not sure that this decision should be construed as disqualifying for this particular judge. While I am a passionate devotee of the 1st amendment's protections and count William O. Douglas as one of my heroes, there is more to this particular case than a straight forward proscription on someone's utterances. There was an admitted call to action and disruption by the Doninger which in fact achieved its desired effect. It appears to me that this served as a fulcrum for the court's decision not the fact that the speech included the word "douchebag" and the phrase "piss 'em off". Both of those are immature and offensive but not to the extent that they provide a justification for sanctions. The justification for sanctions was the "call to action". As the old saying goes, "your right to free speech ends at the tip of my nose". Another is "one has the right to yell 'fire' but not in a crowded theater".
The decision on who should succeed Justice Souter will be an interesting process. I hope that the process is not limited to a certain set of criteria based on gender, ethnicity, etc. but is rather based on the best possible justice irrespective of gender, sexual orientation, or ethnicity.
It will be interesting to see how this case and Judge Sotomayer's involvement with it will play out in the media, with the Obama administration and the Senate.
Thought provoking post!
ok, this didn't sound right to me, and I've reviewed the full text of the decision that you linked to.

This was not Sotomayor's decision, she was one of a three judge panel, that included Debra Ann Livingston, a Bush 43 appointee who actually wrote the opinion that you link to and inaccurately credit to Sotomayor. The third judge was Loretta Preska, a Bush 41 district court appointee, who was on Bush 43's short list for the Supreme Court.

I don't knwo whether or not Sotomayor supported the decision, I can't find a record of how each of the three judges voted, but the panel was stacked with two of George W's favorite judges, one of whom actually wrote the words that you hang around Sotomayor's neck.

Can you supply a reference that would confirm how each of the three judges voted on this question?
I found a reference that confirms a unanimous decision on this case, so Sotomayor did support this decision

thanks for bringing this question up
Off-campus comments disqualifying someone for student office? Don't sound right to me.
Jimmy, indeed. It would easily extend to jobs, and then the only people allowed to comment politically would be the unemployed. And their opinions would be discounted as those of whiners with their hands out. The ability to have a large-scale club that beats out public opinion is exactly why we have a First Amendment and so why it's troubling to see one of the potential guardians of it not get that that in such an obvious-sounding situation. (I'm still planning to go read, Paul.)
Aldon - thanks for the great, hard work you - and Andy Thibaut - have been doing on the Doninger case.

I was about to go over a script for my novel, The Plot to Save Socrates, when I got a message from Andy on Facebook about Sotomayer yesterday, and I decided this matter trumped science fiction and deserved my immediate attention.

I hope Obama's advisers become aware of this.
Paul, et al,

As I read the text of the actual ruling, the underlying issue in this ruling was not whether or not First Amendment rights were violated. The ruling relied on the legal requirement of the plaintiff to demonstrate the likelihood of winning the appeal if it were to be granted. The facts of the case did not show that.

“According to the district court, Niehoff explained that her decision was based on: (1) Avery’s failure to accept her 20 counsel “regarding the proper means of expressing disagreement with administration policy and seeking to resolve those disagreements”; (2) the vulgar language and inaccurate information included in the post; and (3) its encouragement of others to contact the central office “to piss [Schwartz] off more,” which Niehoff did not consider appropriate behavior for a class officer. Id. at 208.”

And then this:

“The district court assumed that Doninger had adequately demonstrated that Niehoff’s actions had or were likely to have a chilling effect on speech in light of Avery’s assertion that she has limited her email and blog communications in an effort to avoid similar conflict with school administrators in the future. Doninger, 514 F. Supp. 2d at 211. We, too, assume for the purposes of this appeal that Doninger met her burden of showing irreparable harm and proceed to address whether she also demonstrated a clear or substantial likelihood of success on the merits.”

Stotomayor’s ruling was not that First Amendment rights had not been violated, or that they did not matter, but that the appeal would likely not be winnable. That ruling was firmly rooted in precedents of case law that specifically applied to the particulars of this case, not rooted in an anti-First Amendment perspective.
Not really. There's conflicting case law - Tinker on the side of Avery, Morse against it.

Sotomayor choose to go with the precedents that discount First Amendment protection for students - protection, indeed, for speech and writing outside of the school.

This is not the kind of judge we need on the Supreme Court.

Souter, by the way, voted with the minority in the Morse or "bongs for Jesus" case. So, were Sotomayor to replace Souter, we would be increasing the ranks of his anti-First Amendment opponents on the High Court.
Thanks for this. Didn't know, and wouldn't have known if not for you (and thanks too to Cartouche for directing me over here). This is a great example of what OS can be and do, when people take advantage of this forum and its large audience.
I appreciate this post AND the commenters that dug further into the basis for the actual decision.

Thanks for this!

The power that is OS.

denese
Paul,

Here is the NYT's broad perspective on this appointment and on Obama's legal leanings vis a vis the Supremes:

http://www.nytimes.com/2009/05/03/us/politics/03obama.html?_r=1&ref=todayspaper

denese
Thanks for the post & all comments. I'm cheering for Susstein, who seems to be the Mine That Bird in this. . .
Paul,

You may be right, I don't know. But I don't think the presentation here is fully accurate. I think there is much more gray area here than is revealed. People should read the 21 page decision and decide for themselves, and your post gives us the chance to do that.

Thanks.
If the area is grey, why don't you tell us.

I of course agree that everyone should read the decision - that's why I posted the link.

But I confess to not having much patience for people who make general claims - such as something being grey - without any evidence.

Especially, when, in contrast, I think the Second Circuit's decision is about as bad as it gets - the Court turned down the plaintiff Avery Doninger's request that the school be held responsible for trampling her First Amendment rights. In other words, the Second Court ratified the school's totalitarian behavior.

Sotomayor should have either convinced her colleague justices that this was the wrong decision, or vigorously dissented.
I suggested some time ago that Hillary Clinton should be given the first opening on the court. I think she is much better suited to that role than her present one.
Paul, thanks for posting the link to the decision.

While I do find some of this troubling -- particularly the court's decision that the term "douchbag" qualifies as vulgar -- I'm don't see their decision as based upon, as you write, "that schools have an obligation to impart to their students 'shared values,' which include not only the importance of free expression but a 'proper respect for authority.'"

The way they use Tinker here to justify the decision is pretty narrow -- it necessitates proof that the student intended her off-campus speech to reach the school, and that, having found that, that the possibility of disruption had to be proved. From the text that's embedded of her post, the entire purpose of the piece was to get other students to contact the school and disrupt the daily business of the two officials.

Beyond that, I think it's hard to make a case that Avery's First Amendment rights were actually curtailed -- she was free at that time and after to post anything she wanted to her livejournal blog without consequence upon her schoolwork or any consequence with the law. So the argument that Sotomayor is actively seeking to curtail freedom of the press or First Amendment rights based on some desire to see more school authority seems tenuous to me.

I'm not saying I agree with all parts of this. Finding the word "douchebag" to be vulgar and incendiary language makes the Court seem pretty out-of-touch, but their argument as its contained with past case law really doesn't seem outrageous or like something that should disqualify Sotomayor from consideration. Should be interesting to see, if she goes forward, if she gets any questions about what she thinks of Tinker, though.
Holy typo, Batman, that's a terribly unlovely comment I just left. I apologize for all of the mistakes.
Holy crap that is BAD. The First Amendment (capitalized on purpose) is such because it is literally the first thing that the nation's founders thought was important enough to add to the constitution. First & foremost after founding the country was every citizen's right to free speech. WOW...gonna be writing my senator and rep, just in case. Thanks, Paul!
This was an excellent occasion for explaining to Doninger that a common student vernacular and adolescent rabble-rousing are offensive outside of interaction confined to students. But to deprive her of rinning for office seems extreme. Adolescents tend to talk like adolescents. I recall when our son planned to pillory a rather nice high school librarian in his school newspaper. We suggested a more diplomatic approach to the perceived problem. Thank goodness he ran it by us first.
great heads-up on Sotomayor. I agree: this was a scary bad decision.
Are we seeking perfection in judicial nominees? Are judges allowed to have a bad day, or must their record be perfect? Do all the other judges under consideration have 100% ideologically pure records?

The Republicans are putting on a live demonstration of what happens when ideological purity becomes an obsession. Let's not join them. You can find something to criticize in any nominee. But if people are expected to be perfect, they'll never get anything done, they'll be too busy CYA. Think about it.
I disagree. The Amendment guaranteeing Free Speech does have wording that indicates there are boundaries when Free Speech becomes not so free and, in fact, irresponsible. And that is when it is a personal attack and is incendiary. I believe that even thought the student made these remarks "off campus", she was still a student of that school discussing school issues in a public forum and used personal invectives to voice her disagreement with school officials.
I think it is just too bad that someone does not have the courage and thought process that Judge Sotomayor had to address all of the incendiary, hateful personal attacks that radical rightwingers are currently engaging in now, using "Free Speech" as their cover. They, too, are crossing boundaries. There is such a thing as abuse of one's freedoms. I also believe that the school system has a right to discipline when they believe their own boundaries in place for orderly discourse and conduct have been crossed. Too bad her parents did not guide her and the Courts had to.
The landscape of what constitutes free speech has been forever changed with the advent of blogging, websites, and chat rooms. There are numerous cases beginning to show up in the court system addressing just such issues. As I was reading this article and subsequent comments, CNN reported on a case involving an employee at a restaurant in NYC who--in the privacy of a by-invitation-only, password-protected chat room--slammed one of her supervisors, a few guests, and spoke ill of some of the restaurant's practices. One of the chat room participants apparently volunteered all this information to the restaurant's management who went to the chat room to verify the information; subsequently, the employee was fired. She's suing. The person selected as Souter's replacement better have a well-defined position on the coming wave of 1st Amendment lawsuits.
I read the opinion and it appears that Judge Sotomayor did not write it. The opinion was written by Judge Livingston. Since the opinion did not show special concurring opinions or dissents I assume the other two Judges, including Sotomayor, concurred in Judge Livingston's opinion.

Judge Livingston had to decide whether students have the same First Amendment rights as non students. Like it or not, Students do not.

The second is whether or not it was reasonably foreseeable that Doninger's e-mails sent from off campus would reach school administrators. That is a no brainer.

Lastly, is the use "douche bag" and "pissed off" sufficiently offensive to warrant school discipline? MLHS thought so.

Doninger is still entitled to a trial on the merits. Taking Sotomayor off the SCOTUS short list without more evidence would be myopic and irresponsible.
I read the full text of Sotomayor's decision and it is clearly stated based on law and precedent and the special circumstances of the enforcement of the Amendment for Free Speech as it applies to the students in a school for on and for off campus and the special responsibilities and boundaries of school administration for respecting and enforcing and applying this Right to Free Speech in the school environment for students.

The full text also details in full, much information surrounding this incident, which is not provided for in this article and which, when applied to the protection of Free Speech for the student on or off campus, further supports the decision of this Court and this Jurist.

I was favorably impressed with the Court's findings and more impressed with the ability of Judge Sotomayor to clarify the issue and to word it in such an informative, educational manner, that served as a tool for clarifying this incident and all of the tenets applied in a similar situation.

Before you knee jerk a response to have her removed from the list of potential appointees to the Supreme Court, I suggest you read the entire text of Sotomayor's decision. Otherwise, you are engaging in spin that would suggest another agenda.
Educational environments are not very freedom inducing places in my experience. There are lots of authoritarian types who are drawn to K-12. I taught for a semseter as a sabbatical replacement, and it was like, I feel anxious, why? I feel like I am in prison, why, and it hit me, oh yeah, high school felt like prison.
At the same time, the older I have gotten, the more I see society as a prison; you step out of stride, and watch out, there are people lining up to beat your ass. So, maybe she learned a valuable lesson about the real world, in the end.
Before reading the opinion, I was skeptical that the court's reasoning was as egregious as Paul represented in his Post. But, after reading it, I tend to agree with him.

As an initial matter, note that the court in Doninger was reviewing the denial of a motion for a preliminary injunction seeking rather extraordinary mandatory relief (i.e., a new election, now). So the cards were stacked against Doninger from the start, both because of the low standard of review (merely "abuse of discretion") as well as the showing necessary for her to prevail ("clear likelihood of success on the merits"). In laymen's terms, Doninger essentially had to show not only that the district judge fucked up, but that he fucked up royally.

But then take a look at footnote 2, where the court acknowledges that it is affirming the district court on a legal basis that the lower court did not consider. That is, the Second Circuit is telling us that it is concocting an entirely different legal rationale to reach the same result as the judge below. What this means: "Abuse of discretion" flies out the window, the Second Circuit is essentially considering the issues raised de novo, and (in my view) contorts itself considerably to uphold the outcome it prefers.

TWO THINGS about the opinion I find particularly weak and/or disturbing:

(1) The court finds it reasonably foreseeable that Doninger's blog post would reach school property, apparently because it was foreseeable that some students would read it (14-15).

THIS MAKES ABSOLUTELY NO SENSE.

It's like saying that a student's conversation at an off-campus Burger King to a group of friends is reasonably foreseeable to "reach school property" because the people to whom the speech is directed are also students. But that means students potentially have no free speech rights at all, anywhere, if they are talking to other students, irrespective if their "speech" ever reaches the school in any tangible form. This is not what the "reach school property" test was designed to sweep within its ambit ...

(A better analogy: I am a student. I invite friends over. I distribute fliers on some school-related topic. I collect all of the fliers and destroy them before my friends leave. Under the Doninger court's analysis, my speech would probably still be found likely to reach school property.)

In fact, Doninger's blog post only actually reached school property because the principal's adult son randomly found it while conducting a Google search (a vanity search?) after it had been posted, printed it, and gave it to his mother (7). Is this "reasonably foreseeable"? (Note that the court conveniently elides this fact in their trenchant legal analysis.)

(2) The court finds that the speech was likely to disrupt school affairs, in part, because Doninger was a member of the student counsel, and therefore was expected to demonstrate "good citizenship" (which the court equates with complete deference to the school's administration and it proclivities) (17-19).

Analytically, this is just garbage. "Good citizenship" does not always mean following orders and cooperating with authority (torture, anyone). Whistleblower statutes exist for a reason. Etc.

But it also is insane as a matter of policy. In the court's view, because Doninger was a student leader, her speech should be subject to EXTRA restrictions, and she should penalized for saying anything that the administration does not like. But is that what we want to encourage in our schools? Shouldn't we rather encourage the student-body leaders to be the ones to speak out about objectionable school policies?

Not according to the Doninger panel.

In short, the Doninger panel believes that Doninger got all saucy with her betters (the administration) over some stupid concert, that she got punished by being denied a stupid office in the student government, and that it's just not worth the judicial system's time to intrude in school's affairs over something so trivial. (See the conclusion, where the court's attitude is on full display. Also consider this nugget on page 19: "We are mindful that, given the posture of this case, we have no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.").

I suspect that Sotomayor didn't really agree with the outcome, but didn't see it as worthy of her time to write a long dissent. Whether that should be held against her is an entirely different question.
I now conclude that I disagree with your conclusion, and have written a post as to why I disagree.
This is not troubling or problematic. There is nothing new about citing the historical record and ruling against a HIGH SCHOOL student's freedom of speech. Its been done for decades and by many.

Now, if it were an adult student, in college, then this would be more alarming. Otherwise, Sotomyor's decision is, well, just conventional. Get over it.
Here's the thing. As Roy pointed out she didn't write the decision that you quoted. So if she voted for it we don't really know that that was her reasonind.

And as Saturn pointed out it's not clear that this was really a first amendment issue. Would you disagree with a teacher throwing a kid out of class for calling her a douchebag? I don't know what the intention of the blog was. If it was an activist blog clearly intended to be part of her campaign, then it's really about the court interfering in disciplinary decisions made by the school.

But it's an interesting question, and I hope she gets properly vetted by the media on it. I'm just not jumping on the blog bandwagon yet.
Tommye wrote: "The Amendment guaranteeing Free Speech does have wording that indicates there are boundaries when Free Speech becomes not so free and, in fact, irresponsible."

Really? Here's the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. "

Where are the "boundaries" of which you speak?

Perhaps you're talking about Supreme Court decisions over the years. If so, consider Tinker, 1969, which said students' First Amendment rights do not get shed when they enter school.
LoginID wrote: "Are we seeking perfection in judicial nominees?"

No, but as far as I'm concerned, one strike and you're out when it comes to the First Amendment, the beating it's been taking for most of the past 100 years, and the fact that Sotomayor would be replacing Souter, a valiant defender of the First Amendment, often in the minority on this in the Supreme Court.
Jim wrote: "Doninger is still entitled to a trial on the merits. Taking Sotomayor off the SCOTUS short list without more evidence would be myopic and irresponsible."

Not if you believe that standing up for the First Amendment - and issuing a ringing dissent if the majority of your colleague justices do not - is a crucial responsibility of any Supreme Court justice, let alone one who would replace Souter, a great First Amendment advocate.

Without freedom of expression, we have no meaningful democracy.
First, Paul, thank you for drawing attention to this issue - don't yet belong to DIGG, but have spread news of your post through other networks. After reading through all of the material provided on this case through your links, as well as all of the thoughtful comments that others have made, I find myself feeling ambivalent about the possibility of a Sotomayor nomination.

In their decision, the court cites the Tinker case, stating, "Tinker provides that school administrators may prohibit student expression that will 'materially and substantially disrupt the work and discipline of the school.' Tinker, 393 U.S. at 513. In Wisniewski, we applied this standard to an eighth grader’s off-campus creation and Internet transmission to some fifteen friends of a crudely drawn icon that 'depict[ed] and call[ed] for the killing of his teacher.' 494 F.3d at 38... We determined that school discipline was permissible because it was reasonably foreseeable that the icon would come to the attention of school authorities and that it would create a risk of substantial disruption...

"...Applying the framework set forth in Wisniewski, the record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school property. Indeed, the district court found that her posting, although created off-campus, 'was purposely designed by Avery to come onto the campus.' Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically 'to encourage her fellow students to read and respond.'"

What I find so disturbing is the fact that the justices in the Avery case make no distinction between Tinker's talk of murder and Avery's exhortation of her fellow students to make their voices heard on an issue of importance to them. Isn't that the very type of political involvement that we would like to encourage among our future citizens?

@ChicagoLaywer78, I love your analysis and have to agree. School administrators did indeed become "pissed" (just as Avery hoped) at having been inconvenienced by the flood of emails and phone calls they received questioning a decision that they had made rather peremptorily. Well, Democracy is tough, and sometimes requires that authority be inconvenienced!

I am not a lawyer and am not well-versed enough in constitutional law to understand whether or not the case might have had a chance of success in appeal. However, the case clearly brings up important questions regarding First Amendment rights in the Internet age, questions that Judge Livingston's decision addresses.

I am disturbed by what a lack of dissenting opinion on Judge Sotomayor's part could mean for the future of free speech in the U.S., particularly considering the current make-up of the court. While I do not think that this decision alone should be enough to disqualify Judge Sotomayor from becoming a Supreme Court Justice, I do think that it should be made part of the review process should she be nominated.
Juliet wrote: "Here's the thing. As Roy pointed out she didn't write the decision that you quoted. So if she voted for it we don't really know that that was her reasonind."

Her reasoning is irrelevant. What counts, even if she didn't like that decision, is that she didn't dissent. Instead, she thus enabled the high school administrators to walk away unscathed after punishing a student for an off-campus, rather mild blog post - a student who came to the court seeking support for her First Amendment rights.

Or, as world-renowned Constitution scholar and lawyer Jonathan Turley aptly put it: "There has been a steady eradication of student rights from mandatory drug testing to school searches to punishment for writings in newspapers and out-of-school activities. Circuit judges Sotomayor, Livingston, and district judge Preska (sitting by designation) follow this troubling trend." (See the link to JT in my post.)
Judge Sotomayor is also famous for this quote;

"All of the legal defense funds out there--they're looking for people with court of appeals experience. Because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don't make law. [Laughs] I know. I know. [Laughter] I'm not promoting it, I'm not advocating it, I'm...y'know."

http://sayanythingblog.com/entry/supreme_court_pick_being_pushed_by_democrats_thinks_policy_is_made_in_the_c/

Scary stuff.
Thank you Paul. Will do some more reading on this and assuming I come to the same conclusion (I have no reason to doubt you) I will be writing my paper and the White House.
One last comment - I am also greatly troubled by the court's statement that Avery's punishment was not "severe." Am I wrong in assuming that one of the primary tasks of student government is to provide young people with the real-life experience of practicing citizenship? If so, what could be a more pernicious punishment than to deny a student leader who disagrees with administrators' policy decisions a voice in student government? Unless, of course, one wants to produce politicians who will vote in lock step with their party, even when they might privately dissent with the decisions of its leaders. Sounds a little too much like the last 8 years...
I'm still uncomfortable about this, Paul. I don't find the case as clear cut as you do. While I think that the school acted badly, the intention of the first amendment is to protect your right to state opinions and beliefs. It doesn't necessarily exist to protect your right to libel people, even mildly, on your blog. How far you can go is always up to the courts and they have to consider the possibility that in this day and age they are opening up the floodgates to kids who may use their blogs to libel teachers and other students.

Like I said, it sucks that the school reacted the way they did. At the same time, if Avery is serious about politics, then this is as good way to learn that even if you have the right to say what you want, you still may be held accountable for the way you say it.

But like I said, I want to hear what she has to say about the case.
The potential to abuse/misuse all of the freedoms guaranteed in the Constitution is there and on the issue of Free Speech it is certainly there. Speech that incites violence and hate is an abuse, the extent of which is determined by the Courts, but there is a boundary and you know it.

Details surrounding this case, as described in the full text of the decision, relate a story of a high school student that refused to engage in a peaceful settlement through negotiation and, even after a viable solution was found and agreed upon in personal discussion, went home on the same day to further incite unrest via use of her personal computer and her personal site that would "disrupt the conduct of business", etc, etc. Referencing a school administrator as "a whore" in an email to the school administrator by another student encouraged to send emails by the student in the suit was also cited.

Personally, after reading the details of the entire episode, I do not see leadership potential in this particular student that is worthy of her representation of the student body in any Student Council position. She chose an unfortunate strategy, one that was not even necessary, and persisted in it until it destroyed her credibility and made her vulnerable to discipline. I agree that letting her finish her current term as Secretary of her class was "fair" and that prohibiting her from future leadership positions and activities was within the authority of school administration and appropriate judgement. It would have been a great learning experience had her mother not intervened to pursue an unworthy course of action. Behavior and words have consequences.

The story, in my opinion, does not confirm for me any violation of any "rights" nor does it contain any element that advances a "seeks relief". In the end, the date of the concert was changed so that the desired venue could be accomodated by the school. This was not good enough for this student, so she went home and proceeded to encourage more mischief, dissent, protest, and disruption, and, as an added caveat, used language that encouraged the use of profanity by others in emails sent to school administration.

There is no Constitutional "right" that protects students in school who behave as spoiled brats and have not learned a more respectful manner of discourse with their elders, especially in school. This was a school disciplinary matter and this student did not deserve to be in school leadership positions after this behavior. This should not have been a lawsuit. It should have been followed up by parental guidance and instruction.

Like some losing political strategies (and politicians), she created a lot of noise about nothing and engaged in the politics of personal destruction.

I see nothing in this incident to raise any alarm about Judge Sotomayor. Only if you are bent on pursuing the same strategies as this student will you have red flags raised and create a lot of noise about nothing.
To Incandescent:
"Since when is a "Proper respect for authority" more important than our right to freedom of speech? That... instilling a "proper respect for authority" isn't something I'd want schools doing for us outside of their scope - which is school and the classroom."

Since whenever parents sent their children to spend 8 hours a day, 5 days a week, to a school for the purpose of cognitive and social development. Schools have always maintained a standard of discipline, norms for behavior, and acceptable boundaries between students and faculty. Perhaps in the home, some parents may allow their children to run roughshod over them, curse them with profanities, and incite disruptions in their daily routine of conducting the business of family life, or, in other words, allow anarchy to reign under the guise of "Free Speech", but, that is not a viable philosophy in the school.

And that is pretty much the standard in the employment world, as well. Every institution must have their systems, their processes, their norms and their policies for addressing grievances. Liking the outcome of a grievance process is immaterial. All of these institutional components must be respected. And children, even high school juniors, need to be taught to be respectful of their elders, outside the home if not inside the home. "Outside" will not be as permissive and indulgent as some parents. That is a Life Lesson.
tommy, you clearly don't believe in the first amendment at all:

"Liking the outcome of a grievance process is immaterial. All of these institutional components must be respected. And children, even high school juniors, need to be taught to be respectful of their elders, outside the home if not inside the home."

that's authoritarianism in a nutshell.

"I think it is just too bad that someone does not have the courage and thought process that Judge Sotomayor had to address all of the incendiary, hateful personal attacks that radical rightwingers are currently engaging in now, using "Free Speech" as their cover. They, too, are crossing boundaries. There is such a thing as abuse of one's freedoms."

there is no such thing as "an abuse of freedom". we can investigate people for breaking laws. that's the entire point of our system: that a regular person (ie, not a lawyer) could read the bill of rights and understand them. you are describing a set of secret laws that you cannot even articulate, yet they act as "boundaries" on our rights.

that is frightening. don't you even notice that you've done this?
Juliet wrote: "if Avery is serious about politics, then this is as good way to learn that even if you have the right to say what you want, you still may be held accountable for the way you say it."

Accountable - yes and of course - accountable to the public who may not like what you say.

But not accountable to authorities - whether government or school - who punish you because of your legal communication. That, again, abrogates the First Amendment.

And since Sotomayor didn't see that, she would be a dangerous choice the High Court.
Tommye wrote: "Only if you are bent on pursuing the same strategies as this student will you have red flags raised and create a lot of noise about nothing."

You are likening my post to Avery's?

Why, because you disagree with its thesis?
Interesting find. How on earth did Sotomayor earn her stripes as a 'liberal'?
Paul, I don't know how this works in the U.S. In Canada if you call someone a douchebag in writing that is public record, while you won't be hauled into criminal court, or put in jail, you do open yourself up to a civil suit. I suspect it's the same in the U.S., or your mainstream newspapers would be full of journalists calling other people douchebags. They don't because their employers do not usually want to open themselves to petty civil cases, which they may or may not win.

If this were my kid, I would be very sympathetic and probably agree with her that the people she called douchebag were in fact douchebags. But the lesson I would want her to take away from this is that while you should never shy away from fighting the good fight, you still have to be careful what you write, because people with more power than you may very well use this written evidence of your ill will to f*** you up.

I might take this to the school board. I might call a meeting of parents. I might start my own blog to fight it. But I would never, ever, haul my kid into court to fight for the right of kids to call school administrators douchebags on publishing platforms.

This to me, is a matter of opinion, not a substantial case that merits bringing down a nominee. I don't know enough yet to say how she would rule on cases with more substance that are really worthy of court intervention.

Then again, it's not my problem. I'm Canadian.
Key Facts In The Doninger Case

Student Was Punished
For Seeking Redress 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, Travesty 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.
Thanks for posting this Andy. I read it earlier today on your blog. One of the things I find interesting about this case is that all the principals involved are women, and the three judges who ruled against Avery are also women.

Meanwhile, the people who are most vocally defending Avery, you, Paul, and "world-renowned constitution scholar and lawyer Jonathan Turley" are men.

Could it be that a teenager calling middle aged women douchebags on a publishing platform means different things to different people?
Juliet - well, for what it's worth to your analysis, my wife (who by no means agrees with me on all issues - and is a feminist) feels as strongly as I do that the school was wrong to punish Avery.
It doesn't seem to me like most of the commenters here have read the decision. It is not really that alarming that you can find one single decision a judge has made, present selected facts about that decision, and make it sound "OMG rally BAD!" to folks who don't read it. The decision, like many legal decisions, is a highly technical document, whose purpose is to determine whether the student's case was likely to succeed on its merits; it's not a "stance on the First Amendment," as some nervous nellies are calling it.

Some of the salient facts that are often left out of the summaries and comments are:

1) the student was untruthful in the blog posting in question: she claimed an event had been canceled when in fact the administrators had not decided whether to cancel or merely postpone the event. It was on the basis of this untruthful statement (which could also be considered slander) that the student called the administrators "douchebags."

2) She called for other students to harass the administrators in question with phone calls and emails, not to express their opinion but to "piss them off more," in other words, purely to annoy. The student admitted in court that she was suggesting that other students call the school simply to harass and "piss off" the administrators.

3) one of the relevant criteria that the judges had to consider was whether or not the Student's speech was likely to disrupt the workings of the school. If so, then the school had the right to punish the student under previous case law. They found--reasonably, I think--that harassing calls and emails intended merely to annoy teachers were likely to adversely affect the normal running of the school.

4) Participation in extracurriculars such as student government has been decided in previous case law to be a privilege and not a right, and that one of the things that jeopardizes one's right to participate is behavior that is specifically not allowed within that extracurricular activity. The previous case involved sports team members who, outside of school, circulated a petition to get their coach fired. The court had decided that, while they could not be suspended, docked grades, or otherwise disciplined by the school, they could be kicked off the team, because the rules of the team include obeying the coach. They found that the rules of Student Government included a certain approach to conflict resolution, that this student's actions violated that approach, and that the school therefore had the right to limit her participation specifically in that activity.

At issue in general is how broadly the first amendment applies to children in school. (Just as it is my first amendment right to shout "Fuck, fuck fuck," but I will be thrown out of a movie if I do so in the theater, a school is an environment in which first amendment rights are always restricted to some degree.) The decision explains in some detail when and how these restrictions have been found to apply to speech outside of school grounds, if that speech is likely to disrupt the school in certain ways. These judges concluded that this instance of speech met the criteria that had been established by previous cases.

Paul can disagree, but it looks like a pretty clean and defensible decision to me. It's certainly not an alarming red flag!
swinnick wrote: "1) the student was untruthful in the blog posting in question: she claimed an event had been canceled when in fact the administrators had not decided whether to cancel or merely postpone the event. It was on the basis of this untruthful statement (which could also be considered slander) that the student called the administrators "douchebags." "

I'll confine myself to observing that you have a bizarre definition of "untruthful" statements - someone says an event has been canceled, and you say the statement is untrue because the administrators hadn't decided whether to cancel or postpone the event?
Paul, I totally agree with you and your wife that the school was wrong. What I disagree with is whether this is a substantial court case that reveals much about how she would rule on serious first amendment issues.
I don't think that there is nearly as much a possibility for free speech in practice as their is in Liberal theory, because our emotions always become engaged when somone else's mouth is opened. I posted a poem at a College, and had actually just been published in their lit mag, in which I will grant that the poem was a little out there, but it was also clearly protected speech in terms of obscenity or threats, which I knew from the Con Law classes I taught there, and the College crushed me totally, tried to destroy my career afterwards with slander from faculty, and what I concluded is that is just life in the big city, no mercy, no nothing; so real world, my conclusion it that most people should learn to keep their mouth shut more of the time than they do already, as it avoids unproductive pain, because there are always boss men, whether they are corporate jerks, academic jerks or drill masters, and it is always better to say less than is necessary.
You wrote, "Sotomayor's Court proceeded to affirm the District Court's ruling - that is, Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students "shared values," which include not only the importance of free expression but a "proper respect for authority".

This us what you are citing as an example of bad judicial administering. You are ridiculous. It is wrong to be anti democratic, and it is also bad to be ULTRA DEMOCRATIC. To students and minors of our children we owe them, knowledge of the value discipline and respect for authority. Very important features to train our children for the future,to ensure we don't create another group of moronic , wild kids.
Hi Juliet, your comment gave me some pause. I hadn’t thought about the angle of guys v. douche bags.

If you review the history of the case, you will find male and female supporters of civil rights v. male and female defenders of illegitimate authority and their beneficiaries.

Poets & Writers For Avery, an organization that raised money for the civil rights action, is a cross-section of genders, preferences and political persuasions united by the Bill of Rights. The group includes former Connecticut Poet Laureate Marilyn Nelson, Amy Ma, Christine Palm, Margot Schilpp, Elizabeth Thomas, and a bunch of guys like Wally Lamb, Shouhua Qi, Howard Zinn and Ron Winter. The Connecticut federal judge who heard the case so far, Travesty Kravitz, is a guy. None of us are fans of douche bag school bosses or any bosses of that type in any gender.
Paul, I feel like I have to respond to a number of your readers who seem to believe that the 2d Cir. opinion does not pass on the merits of Doninger's claim. A fair representation of this argument:

"The decision, like many legal decisions, is a highly technical document, whose purpose is to determine whether the student's case was likely to succeed on its merits; it's not a 'stance on the First Amendment,' as some nervous nellies are calling it. "

I could go on at length regarding the claim that the opinion is a "highly technical document," but that's not what I want to contribute. Instead, I want to explain what the "procedural posture" (as we lawyers say) of this case was ...

The plaintiff (the student) filed a complaint seeking certain final relief, claiming that the school violated her First Amendment rights and that she was entitled to a permanent injunction requiring that the school hold a new election for student body Secretary (as well as damages, I suspect). But because the case would likely take longer than a year to adjudicate, she sought a preliminary injunction to require in essence the final relief she sought ... she wanted to fast-track the case, in other words, because otherwise she could win but it would be too late for her to be Secretary (because the case likely would not conclude until graduation, or later).

To get a preliminary injunction, a litigant must show likelihood of success on the merits and irreparable harm. The classic case for a preliminary injunction is where there are competing rights to some real estate, with bulldozers of the dominant claim-holder about to tear the house down ... if the other litigant can show that she is likely to win her case (i.e., that she truly owns the house), she can stop the bulldozers from dozing her house, because once the house is dozed, her winning the case won't really do much.

That's the "posture" on which the case came to the court. The lower court heard A LOT of testimony, considered A LOT of evidence, and made factual findings. Based on those findings, the appellate court applied the law and determined that the plaintiff likely would not win if a full jury trial were completed (while recognizing that the plaintiff had established irreparable harm, which was not disputed). The case then went to the 2d Cir. ... it had to accept (more or less) the facts that the district court found, but its application of the law was de novo (see, e.g., footnote 2).

In the context of this case in particular, the facts are not important (because they were largely undisputed by the parties) -- rather, *the law* is. And in this regard, the 2d Cir. made fairly definitive pronouncements about the law ... i.e., pronouncements about what the First Amendment protects and what it does not.

I'm not sure if I expressed myself clearly, but the short of it is: The pronouncements made by the Sotmomayor panel ARE definitive pronouncements on First Amendment rights, not just "preliminary" or addressing whether Doninger would win on appeal (or whatever some of your readers have said). The only thing that might change, if the case went all the way through the lower court and back to the 2d Cir., are some of the facts. But, as I noted, the facts were not really disputed by the parties. And, in any event, the district court engaged in MUCH fact-finding on its own (and I doubt a jury would find the facts to be much different).

In other words, you are absolutely correct that the case expresses definitive statements on the scope of the First Amendment. And this comes NOT from a "nervous nellie" but from a lawyer who has read the opinion (and who initially thought that you were way over-reading its significance, as I indicated in my original Comment).
Very misleading mistake that I want to correct: in paragraph 6, sentence 3, it should read "district court" (rather that "appellate court").

Another quick point: Doninger's motivation in publishing the blog post would seem to me, as a doctrinal matter, entirely irrelevant. (I am not sure of this as a matter of law, but it's my intuition.) Example: My campaigning for Obama just because I HATE Bush should not have any bearing on whether or not my speech in favor of Obama is protected. So, in Doninger's case, whether her "true" motivation was merely to overflow the school with callers supporting her position on the concert should doctrinally be irrelevant to the issue of whether her speech is protected.
At a minimum the Opinion leaves quite a bit to be asked at any Congressional hearings.

Rated.
ChicagoLawyer78 - The facts of the case are in dispute following a FOIA request for the defendant's emails. The FOIA request was generated by a revelation from an unrelated third party that defendant Niehoff broke FERPA. Consequently - both parties are awaiting a return visit to the Second Circuit.
ChicagoLawyer wrote: "In other words, you are absolutely correct that the case expresses definitive statements on the scope of the First Amendment. And this comes NOT from a "nervous nellie" but from a lawyer who has read the opinion (and who initially thought that you were way over-reading its significance, as I indicated in my original Comment)."

Thank you - and for the detailed and cogent analysis that you presented.

It is comments such as yours that demonstrate that Jefferson's belief in the power of rational thinking was not unfouned.
Amilcar wrote: "You are ridiculous. It is wrong to be anti democratic, and it is also bad to be ULTRA DEMOCRATIC. To students and minors of our children we owe them, knowledge of the value discipline and respect for authority. Very important features to train our children for the future,to ensure we don't create another group of moronic , wild kids."

I'm truly sorry to tell you that I have never seen anything written by any kid as moronic and wild as your above post.
Paul, I don't have a "bizarre" definition of untruthful, and I think it's indicative of the weakness of your argument that you accuse anyone who disagrees with you of being stupid or freakish in some way. If I said to you "it's necessary to either postpone or cancel this event," and you reported that as "the douchebag canceled the event," that's untruthful. It's sort of like "the police have not yet determined whether anything was stolen from my house, or whether stuff was just moved around" being reported as "the douchebags stole stuff from my house!" It's untruthful, because I'm claiming to know something is true when I don't know it, I only suspect it.

As for ChicagoLawyer's point, he or she may be right that the student's intention was not in itself relevant, but what is relevant is whether her conduct could be "reasonably predicted" to lead to disruption of school. That has been the standard in previous cases. Since she was intending to inconvenience and annoy the administrators during school hours, and since this would tend to lead to disruption of school activities, it's a little hard to argue that she could not have reasonably predicted the disruption. That, it seems to me, is what the court ruled.
Andy. I have no doubt that there would be women who would support her freedom of expression. I'm one of them. And I have no problem with anyone campaigning against the school and their decision.

At the same time, this is a case with a ton of grey area. Especially for a woman judge, because she's in a position where she is essentially instructing an ambitious young woman, and setting a precedent for other young women about their rights and obligations are in the world of politics.

Because that's also the issue here. Kids don't have the same ammendment right as adults because schools have the responsibility of curbing their behavior, and courts are very hesitant to punish schools for something they are obligated to do. So the punishment has to be pretty severe for a court to intervene.

I've read the blog. It's not a private blog among friends. It's a blog calling the older women administrators she was working with "douchebags" and inciting other students to find ways to "piss them off." It's a blog where she let a comment calling a school administrator a "dirty whore" sit on her blog well after the situation was resolved, and JamFest was back on.

According to what the court understood, this blog only became an issue because the administrators continued to receive e-mails and phone calls after the issue was resolved in favor of JamFest.

And if an overachieving A student on the student council is publicaly calling them douche bags, I'd be curious what the D students who just want to be a nuisance were calling them in anonymous e-mails and phone calls.

So, yes, perhaps they were "pissed off" and over reacted. But it doesn't surprise me that a woman judge would be sympathetic to their argument that they had a right and responsiblity to discipline Avery. Because if they don't she's going to end up learning that lesson later in life. (Certainly if she aspires to a career in politics where a woman can be pressured into resigning for calling another woman a "monster.")

At any rate, my real concern here is not what the court should have ruled. It's whether a judge's nomination should be de-railed because of a case that's very, very grey.

I'm sorry but it's not fair to judge a judge on how she would rule on adults, from how she once ruled on a teenager.
I am not an attorney but I do know mischief and bad behavior when I see it and read about it.
1. The venue was not available on the date requested by the plaintiff due to repairs, renovations. An alternate venue was offered for the date requested. It was declined. An alternate date was offered in the desired venue and it was also declined.
2. Plaintiff went home to use her personal computer and her personal site to incite other students to email faculty and to get others to email faculty to "piss them off". They complied to the extent that it did disrupt the conduct of business at the school.
3. Another conference with the plaintiff resulted in agreement of the desired venue at a later date.
4. On the same day, the plaintiff went home and used her personal resources again to incite students to continue to "piss off the douchebags" and send more emails. She was so successful at this that one of several emails sent to faculty called one "a whore".
5. The event was cancelled. Her faculty clearance to run for elected office in the plaintiff's Senior year was witheld due to behaviors unbecoming an outstanding leader in the school.

1. This was a non starter. There was no "case" to begin with to justify all of the actions of the plaintiff. An unfinished auditorium could not be made available to her just because she wanted it.
2. She agreed to a later date when the auditorium would be ready for venues. Matter is resolved.
3. She goes home again to send more emails out and to encourage more to be sent to faculty to "piss them off" and one was sent calling a faculty member "a whore".

My Conclusion:
1. Emails were sent to the school faculty, which makes them no longer private, no matter from where they were sent.
2. Language used was inappropriate and insulting and unacceptable.
3. The plaintiff is the one who incited all of the email traffic and language and she did so without cause, since there was no conflict. What was the purpose of her second invitation to "piss off the faculty" after she had agreed to a later date at the desired venue?
4. Freedom of Speech does not protect bad behavior of students toward faculty in the school environment, nor does it protect faculty from bad behavior and inappropriate language toward students.
5. Like some politicians she may have chosen to role model, she created an issue out of none to make a name for herself and it backfired, as often happens. Or....
6. She is an indulged child who is unaccustomed to not having what she wants when she wants it the way she wants it.
7. For whatever reason, she needed to meet the consequences of her behavior, based on the norms and structure and policies, and systems in place at the school, who must set their boundaries for behavior in order to conduct the business of teaching and learning.
8. If parents (and posters) do not like this, they can home school.
9. Again, Freedom of Speech does not protect children who behave badly.
10. Off campus activities that are potentially harmful, violent, disrupt the business of school needs to be censured. The plot, the ammunition, the guns, of Columbine were all off campus activities. How tragically unfortunate that perhaps parents and teachers who may have suspected something was not quite "right" with those kids cared more for their freedom of expression than for their emotional well being and need for parental guidance and supervision.
11. Yes, I do expect there to be an authoritarian environment in a school. There must be limits imposed on what is acceptable behavior between students and faculty when students are in their formative years. They are in school for the 3 Rs as well as for social development. They can call their parents any name they choose in the privacy of their own homes and they can make any demands they can get away with in their own homes. But not in society. And we learn this in school.
swinick wrote: "As for ChicagoLawyer's point, he or she may be right that the student's intention was not in itself relevant, but what is relevant is whether her conduct could be "reasonably predicted" to lead to disruption of school."

No, what ChicagoLawyer wrote was that the First Amendment was paramount in this decision - did you miss that?

And, yes, I think your characterization of "cancellation" as an "untrue" description of "cancellation or postponement" is bizarre - or, if you prefer, splitting hairs or nit picking.

Both the postponement and the cancellation stop the event from occurring. That was the main point Avery was reacting to.
Gee. Just yesterday she was the darling of the liberals. Today she is chopped taco. Which leads me to my next question: Don't we have any white women to put on the Court? They are an endangered species these days.
To return to the question of her untruthfulness, according to ChicagoLawyer78, the circuit court was stuck with the facts as determined by the district court. According to the decision:

"Avery claimed that Niehoff told her that Schwartz was very upset 'and that[,] as a result, Jamfest had been cancelled.' Doninger, 514 F. Supp. 2d at 205. The district court found otherwise, however, crediting Niehoff’s testimony denying that she ever told Avery the event would not be held. "

In other words, the district court had already ruled that Avery was either lying or mistaken about the event being canceled, and that her mass email and blog post were both therefore untruthful.

More damning still, the decision continues:

"The district court found that Niehoff discussed [Student Council] responsibilities with Avery in their conversation on April 24. She told Avery that the email contained inaccurate information because Niehoff was, in fact, amenable to rescheduling Jamfest so it could be held in the new auditorium. Niehoff asked Avery to work with her fellow students to send out a corrective email. According to Niehoff, Avery agreed to do so.

That night, however, Avery posted a message on her publicly accessible blog, which was hosted by livejournal.com, a website unaffiliated with LMHS. The blog post began as follows:

jamfest is cancelled due to douchebags in central office."

In other words, after the first instance of Avery claiming the event was canceled, Niehoff clarified with her that the event was NOT in fact canceled, but that it would be rescheduled. She asked Avery to correct the mass email to reflect this, and instead Avery once again claimed that Niehoff had canceled the event, this time adding "douchebags."

These are the facts as determined by the district court: Avery's mass email and her blog posting were untruthful.

It seems to me that the untruthfulness of her mass email might have been due to a misunderstanding, but she surely knew she was not telling the truth in her blog posting.

As many have said, there is a lot of gray area in this case. I for one don't think it's the end of the world if high school kids are restricted from lying about conversations with their principals in order to have an excuse to call them "douchebags," and publishing both the lies and the insults on a blog. It might be a slippery slope, thin end of a wedge...but then again, it might just be that the court meant that this particular behavior was within the school's discretion to punish. I can live with that.

I do understand and respect positions that would protect as much speech as possible, but I think we all recognize that there have historically been limits to first amendment protections (such as those involving slander, libel, falsely shouting "fire!", obscenity, and so forth), and that many people believe that at least some of these limits are appropriate. This is a case that involves insults that some would find obscene, as well as untrue defamatory statements. In other words, it already bumps up against the limits of what most people feel ought to be protected. I respect Paul's position that he feels it ought to be.

Paul, will you respect the positions of those who disagree, or continue to call our opinions "bizarre" and treat us as imbeciles?
Where I come from, postponement does not "stop the event from occurring," it causes the event to occur at a different time. That may seem like an irrelevant difference to some people, but it's relevant to anyone who plans or attends events. It's certainly a relevant distinction in this case.
Paul, I was referring in my post above to ChicagoLawyer's SECOND post, which was about whether Avery's intention was relevant. I quote:

"Another quick point: Doninger's motivation in publishing the blog post would seem to me, as a doctrinal matter, entirely irrelevant."

To quote you, "did you miss that?"
swinick: Not that complicated. ChicagoLawyer wrote two comments in succession. Your comment in response to that, for whichever of the two comments it was in response to, did not address ChicagoLawyer's preeminent point, which was about the First Amendment.

As is my post here, as well.
swinick wrote: "Paul, will you respect the positions of those who disagree, or continue to call our opinions "bizarre" and treat us as imbeciles?"

First, I don't see characterizing your notion of "untrue" as bizarre as even remotely the same as treating you as an imbecile. Do you really see the two as the same?

Second, I don't expect people to ipso facto respect my positions, nor do I ipso facto respect all other positions. Rather, I think all positions should be evaluated as best as possible. I find the result to be, among those with which I disagree, that some are worthy of respect and others not.
Funnily enough, I also wrote several posts in succession, and you also failed to address any of my major points, instead tackling the crucial question of whether calling my thinking "bizarre" was the same as calling me an imbecile.

For the record, what I meant was that you call some of the people who disagree with you bizarre, and treat others as imbeciles. To you, I am bizarre, while others who disagree are imbeciles. When people agree with you, on the other hand, you heap praise on them for cogent analysis. Your motivations for these value judgments are clear to your readers, if not to you: you are praising your own post by proxy. Fair enough, if that turns you on.

However, in the above posts, my "preeminent point" was that the findings of the district court were that Avery had, in fact, been untruthful. Thus, my opinion, which you called "bizarre," was one of the premises from which the circuit court was required to proceed. This according to the cogent ChicagoLawyer, who wrote that the circuit court "had to accept (more or less) the facts that the district court found."

My second point was that postponement and cancellation of an event are not the same thing, and that you have failed to recognize the important distinction between them. I honestly fail to see what you hope to gain by continuing to argue that they are the same thing.
I read the opinion, and because I stayed in a Holiday Inn Express last night.......

Seems fairly simple. Avery didn't want the event postponed, but she didn't think a protest could be organized around the issue of postponement, so she created a fabrication about it being canceled, period. By encouraging the response the school had to deal with, she absolutely ensured her off school grounds effort would find its way back into the school environment.
I think this case compares, somewhat, to the example I've heard before considering free speech: It's fine to say all DC politicians should be strung up, but if you continue with - and I have some rope, a plan, and buses waiting to take us to DC, then you crossed a boundary from opinion into action. Here, the boundary is different, but a line was crossed.
Her online effort was dishonest and disruptive, and, even if you think the punishment too severe, there is no doubt about Avery bringing this on herself.
As somebody who pressed the free speech envelope in junior high, and paid the ultimate price for doing so, I don't see the 1st in any danger here. It seems an extension of precedent that has always held schools as being exceptional.

Or, maybe it's my Mad Cow......
Sign me: Dennycrane.
Paul J. O' wrote: "It seems an extension of precedent that has always held schools as being exceptional."

Not according to Tinker, 1969.
Dang, Paul, you stay up late!

Here's Tinker:

Justice Abe Fortas wrote for the majority. He first emphasized that students have First Amendment rights: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” While schools certainly have the right to establish rules relating to “the length of skirts or the type of clothing, to hair style,…[or] aggressive, disruptive action or even group demonstrations,” this case does not involve any of those issues. “The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, …with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.”
Was Avery inciting a silent, passive expression of opinion?

Or a disruptive disorder?

I don't see Tinker as supporting Avery's actions.
I am in complete agreement with swinick.

1) Paul, your inability to make a distinction between truth and falsehood undercuts most of what you wrote here. If I say, "that piece of paper I saw may have been blue or green." And you claim I said it was green, you are lying. That is exactly what happened with Doninger's (and your) claim that canceled is the same thing as postponed. It ain't.

2) Speaking of truth, you don't mention that Sotomayor did not write the opinion. Yes she agreed with it, but it's NOT the same thing. As a matter of fact, you put the onus on Sotomayor over and over without once noting that the opinion was written by a different judge:
* Sotomayor's Bad 1st Amendment Decision Should Disqualify Her
* she has one major, very bad decision on free speech and press to her discredit
* Sotomayor's Court proceeded to affirm the District Court's ruling
* Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech.
All of these statements create the strong impression that Sotomayor was the driving force for the decision, an impression you can not support with evidence.

3) You misrepresent the issue of "respect for authority" by not quoting the entire sentence in which it occurs: 'Local school authorities have the difficult task of teaching “the shared values of a civilized social order” — values that include our veneration of free expression and civility, the importance we place on the right of dissent and on proper respect for authority.'

There are at least a couple of ways to interpret this. One of them does not assume that the court is promulgating authoritarianism. Proper respect for authority could easily mean respecting authority that is not illegitimate and that even illegitimate authority can be challenged without calling names and misrepresenting their positions. This is NOT what Doninger did.

4) You say in the original post, 'Ms. Doninger found reason to object to the school's cancellation of a "jamfest" event."' But this, too, is playing with words. Doninger claimed, falsely, that the event was cancelled. (And, once again,Paul, cancel and postpone are not even close to the same thing. Well, except to you, apparently.)

5) Also from your post: 'Their reasoning was that schools have an obligation to impart to their students "shared values."' Not true, Paul. Their reasoning importantly included that what Doninger did "created a foreseeable risk of substantial disruption at" Doninger's school. And it did actually create disruption.

6) You also say, "Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech." Once again, it was not just her speech, it was the "foreseeable risk of substantial disruption at LMHS" that came to pass.

Personally, given the opinion and the facts of the case, I don't understand why you are so devoted to trashing Sotomayor.
Free speech for students is a very important issue that has been ruled against wrongly in a number of instances, as far as I am concerned. But the Doninger case is not even that grey. She behaved poorly, purposely tried to punish people because they didn't give her what she wanted when she wanted it, and she lied.
Jumping on this case as a reason to bring down Sotomayor's chance of being nominated to the Supreme Court is what I see as bizarre.

I have to say, Paul, I can see why you seem to identify with Doninger: you both are guilty of gross distortions to prove your points.

-------------
"No one who cannot rejoice in the discovery of his own mistakes deserves to be called a scholar." - Donald Foster
To put it mildly, Travesty Kravitz, the Connecticut federal judge, is not reliable as a finder of fact ...

SMOKING GUN JAMFEST IS CANCELLED MEMO -- BY NIEHOFF
Hours after Karissa Niehoff pulled Avery Doninger into her office on April 24, 2007, the exasperated Lewis Mills High School principal wrote a memo about Jamfest to student council advisor Jennifer Hill.
http://cooljustice.blogspot.com/2008/06/smoking-gun-jamfest-is-cancelled-memo.html

MORE JAMFEST CANCELLATION MEMOS
Series Of Memos Shows Officials
Braced For Student Outcry
After Cancellation Of Jamfest
http://cooljustice.blogspot.com/2008/06/more-jamfest-cancellation-memos.html
Paul O'Rourke - you are wrong on many counts.
1) Multiple documents showed that if Jamfest was not held in the auditorium on the scheduled date that it would not be able to be held. There are emails secured via FOIA confirming this. Everyone who testified at the PI hearing stated such.
2) The first sentence of the blog was 'Jamfest is cancelled....' a few sentences down the blog made reference to 'in the least chance we can have it it will be after Talent Show...'
3) Avery was punished for 'douchebag' - underlined in red. Niehoff testified that douchebag was the offending word.
4) There was NO FINDING OF DISRUPTION - there is evidence that three people read the blog (until the superintendent's 36 year old son went trolling the Internet for dirt on another parent).

Petty tyrants running schools breed lemmings....the principal's confiscation of t-shirts on election day is ample of evidence of her intolerance for peaceful dissent. The t-shirt issue will go to trial.
Juliet - some of your facts are wrong. The entire issue was resolved the day after the blog was posted - resolved and forgotten - until the superintendent asked her 36 year old son to troll the Internet for dirt on another parent in the district. He found the blog and then Avery was punished. There were no additional calls/emails to the school after the issues were resolved the next morning.

There are disputed facts, hence the continuation in court.

Kravitz found no disruption, but the 2nd Circuit found against Doninger based on disruption.

It should have been a perfect teaching opportunity. Instead it's in federal court.
This seems like a very week First Amendment case. If I understand correctly, the student's punishment was not being allowed to run for Student Council. You would have to make an argument that there is a "right" to participate in student government that is being infringed.

Actually, there is an interesting parallel between your post and the case. The school disqualified for Doninger for office because of her speech. You want to keep Sotomayor of the Supreme Court because of one decision. Just who is censoring whom here?
Let's remember what the First Amendment actually says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

You have to admit, it takes QUITE a bit of interpretation to reach the conclusion that schools can't stop a student from running for student council.

There are really two issues are. One is whether Sotomayor was wrong. The other is whether she was so OBVIOUSLY wrong that she should be disqualified from SCOTUS. I'm not seeing it.
Huck 13, As I said "according to what the court understood." Maybe the court had the facts wrong, but that's how they presented them in the judgment.
Argh, I can't believe I wrote "a very week First Amendment case". I know how to spell. Honest. It's too early.
Documents Detailing Fraud Upon Kravitz, Sotomayor, et al
http://ronsamul.brinkster.net/DONINGER82.pdf

Travesty Kravitz's Reversible Error
On Qualified Immunity For Douche Bag School Bosses
The Significance Of The Bentley Letter
Time For Other Whistleblowers To Come Forward
http://cooljustice.blogspot.com/2009/01/travesty-kravitzs-reversible-error-on.html
Andy, that's all fine. But if Sotomayor was the victim of fraud by the school administrators, we can hardly blame her for that. Your evidence against Niehoff came out AFTER the circuit court's decision, so we can't hold the court to blame for not having it. It was Avery's responsibility to obtain the evidence, and Niehoff's to produce it, and, of course, both parties' responsibility to tell the truth.

I'm not making an argument over who should ultimately be vindicated in the "douchebag" case, I'm just saying that we shouldn't disqualify Sotomayor from the Supreme Court for accepting the facts as found by the district court--as ChicagoLawyer points out, she was supposed to do that. According to those facts, Doninger lied and falsely accused the school of canceling the event.

Moreover, over at your own blog you seem to be engaged in the same kind of distortions as Paul here. Your smoking gun "Jamfest is cancelled" memo actually says "Regarding the Jamfest, I'm not sure at this point if Paula will even let it run in the auditorium after the grief the kids have caused."

This could mean that the writer did not know if it would be canceled, or it could mean that she did not know if it would be moved to the cafeteria or some other venue (which we all know the students did not want), but it CANNOT, in English, be taken to mean that Jamfest was definitely canceled.

Avery did not write "the douchebags aren't sure if Jamfest will happen," or "the douchebags are threatening to move jamfest to the lame cafeteria," she wrote "jamfest is cancelled due to douchebags in central office."

Even given this so-called "smoking gun" memo, she does not seem to have been telling the truth.
About judges:
Some judges are impartial referees; others steer cases actively by shutting down inquiry.
Travesty Kravitz belongs to the latter group. It is indisputable that he decided the case long before testimony concluded.
The douche bag school bosses stole an election and lied about it. They suppressed numerous public records. Read the historical record of this case. A diligent review of the evidence would not give any credence to statements by the former superintendent, Schwartz, and the principal, Niehoff. All the chatter about cancelling Jamfest is significant in this context.
As for Sotomayer and the other flunkies on the 2nd Circuit, they had access to facts and arguments in the filings before them. They chose to be enemies of free speech and all of them will have to live with that.
Huck writes:

Paul O'Rourke - you are wrong on many counts.
1) Multiple documents showed that if Jamfest was not held in the auditorium on the scheduled date that it would not be able to be held. There are emails secured via FOIA confirming this. Everyone who testified at the PI hearing stated such.

Yet Jamfest was held, so that point is moot.

2) The first sentence of the blog was 'Jamfest is cancelled....' a few sentences down the blog made reference to 'in the least chance we can have it it will be after Talent Show...'

The thrust of her posting was that it was canceled, period. This was supported in the ruling.

3) Avery was punished for 'douchebag' - underlined in red. Niehoff testified that douchebag was the offending word.

Calling the school administration "douchebag" is acceptable behavior?

4) There was NO FINDING OF DISRUPTION

Gee, no finding of disruption...Except IN THE RULING...funny, that.

4) cont- there is evidence that three people read the blog (until the superintendent's 36 year old son went trolling the Internet for dirt on another parent).

It's acceptable if the offended party has to look to find it? That makes zero sense.

Have you read the ruling?

I'm surprised at all the statements here that seemed shocked to find out the courts have long held schools to be exceptional where the 1st amendment is concerned.
Just to back up Paul O. The first amendment protects your right to assemble peacefully. It doesn't protect a teenager's right to post a blog call to "piss off" the "douche bags" and then expect the "douche bags" to support her run for student council.

Schools have a right to nominate candidates for student council, otherwise they might find themselves wasting a whole year with a popular pothead president. I respect people's right to disagree with the decision of the school. I might disagree with it myself, if this were my daughter. But I see NOTHING here to merit a case calling for court intervention in school affairs.

It would be a really sad thing to see a judge's career ruined over this.
"Travesty Kravitz"

I am always suspicious when a critic continually uses a nickname to derogate the criticized. Make the case with facts not with name calling.
swinick writes (to Andy T.): "Moreover, over at your own blog you seem to be engaged in the same kind of distortions as Paul here."

"Distortions," according to Swinick, is pointing out that Swinick's characterization of "cancellation" as an "untruthful" description of "cancellation or postponement" is bizarre - or nitpicking.

Swinick, here's a clue: you may disagree with my characterization of your usage as bizarre - but that's not a distortion, just a disagreement over terminology.

Come to think of it ... your use of "distortion" in this context is bizarre, too...
Bill writes (to Andy T.): ""Travesty Kravitz" I am always suspicious when a critic continually uses a nickname to derogate the criticized. Make the case with facts not with name calling."

And I'm always suspicious when people don't respond to the issue at hand: Do you think the Sotomayor decision was injurious to the First Amendment and its protections, or not?
Maybe stripping away the argument about whether or not student Avery's actions were honestly motivated would help here. That question doesn't have to apply.

The overarching theory of law here would seem to be "in loco parentis." The school acting "in place of parents."
In that, the school should have some extension of the rights a parent has to discipline a child.

The essence of the issue, according to precedent, would be if Avery's actions caused a disruption, or was it, as in Tinker, a passive protest. The rest is window dressing, as Avery would not prevail based on the Tinker standard.

Were Avery's 1st amendment rights violated? No.

Given the ability to go back in time, a now wiser Avery might have opted for Jamfest armbands.

To treat this as the same if an individual citizen protested against the government and was denied free speech is pushing the envelope of reason and negating court rulings based on precedent. That's the same convenient ignoring of stare decisis one could find in a Scalia opinion.

Now, as an unrelated bonus, a summation of Clarence Thomas' USSC written opinions....

1. I'm with Antonin on this one.
2. Ditto Scalia.
3. Tony said it best.
4. Scalia nailed this.
Juliet writes: "It would be a really sad thing to see a judge's career ruined over this."

It would be a far sadder thing to see a judge elevated to the court which would put the First Amendment and the freedoms it protects at greater risk than it now is.
left wrote: "Let's remember what the First Amendment actually says ...
You have to admit, it takes QUITE a bit of interpretation to reach the conclusion that schools can't stop a student from running for student council."

The Supreme Court made that interpretation - see the quote in my post - in Tinker, 1969.
Paul O' wrote: "Was Avery inciting a silent, passive expression of opinion? Or a disruptive disorder? I don't see Tinker as supporting Avery's actions."

Avery wasn't standing in the doorway or blocking up the hall, she wasn't urging that on her blog post. She was urging students to contact the school admins on behalf of a cause.

That, in your book, is a "disruptive disorder"?

I agree that it may not be a "passive" expression - but neither is it remotely close to a call to "disorder".

Therefore, I think Tinker manifestly does apply.
Bill wrote: "I have to say, Paul, I can see why you seem to identify with Doninger: you both are guilty of gross distortions to prove your points."

Thank you, Bill - I'm honored to be put in the same category as such a brave young woman.

Neither of us, though, are guilty of gross distortions. Check out a dictionary once in a while - get an idea of what words mean. It helps when having a conversation.
Huck wrote: "It should have been a perfect teaching opportunity. Instead it's in federal court."

Exactly - well said!
Paul, the "distortion" is characterizing the statement "Niehoff was, in fact, amenable to rescheduling Jamfest so it could be held in the new auditorium," which is what the court found that Avery was told, as compatible with the statement "Jamfest cancelled due to douchebags," which is how Avery reported it on her blog.

For you, not only was this reportage truthful, but to call it untruthful is "bizarre."

To suggest that it is truthful is a distortion of the facts. To say that calling it untruthful is "bizarre" is (I suppose) a disagreement over terminology, but it also speaks to the facts.

To wit: if I called you a thief, and you replied that you were not a thief, would we be engaged in an argument over the facts, or would you contend that it was merely a disagreement over terminology? That's the same argument you're making now: that whether it is right to call her statement untruthful is merely a disagreement over terminology and not over whether it was, in fact, untruthful.

That is truly bizarre logic.
Bill wrote: "If I say, "that piece of paper I saw may have been blue or green." And you claim I said it was green, you are lying. That is exactly what happened with Doninger's (and your) claim that canceled is the same thing as postponed. It ain't."

Weak analogy. Blue and green are two different colors, period. Cancellation and postponement are two different conditions on a continuum of an event not happening, or being barred from happening, at a given time. They have much the same effect on people looking forward to the event.
Of course it was a disruptive incident. The administrators had to take time off from their normal work to address the flood of calls.

There was also a perceived effort to create a sit in protest.

The tone of Avery's post wasn't directed at accomplishing a resolution, but to punish school administrators by pissing them off.

Treating this Jamfest hooplapalooza as a dangerous assault on the 1st is crying wolf. Unless, I guess, you fear the government will place America in a state of permanent School, where all citizens will be treated as students.
That would be wimpy compared to the real effort of the last too many Bush years where real assaults on the Constitution were rationalized by placing us in a permanent state of War. THAT...is a real wolf.
Actually, Bill's analogy is pretty good: blue and green are not "two different colors, period." They are in fact ranges on the continuum of wavelengths of visible light, and they are, in most people's system of terminology, adjacent ranges.

More importantly, they are culturally-decided categories, which means we can argue over them endlessly, just as you can endlessly argue that postponement and cancellation are the same thing. Have fun with that!
Paul O' wrote: "Treating this Jamfest hooplapalooza as a dangerous assault on the 1st is crying wolf. "

Read my Flouting of the First Amendment Keynote Address - link at the bottom of my post - for a detailed description of the assault on the First Amendment the past 90 years. The Doninger case is one of the latest examples (along the Supreme Court just yesterday ruling there may be reason to fine CBS for the split-second of Janet Jackson's breast, etc).

As to your view of school admins being disrupted by phone calls? Have you ever worked as an administrator in a school or university? Floods of calls from students are common. Any administrator who considers that a disruption should be in a different line of work.
swinick wrote: "just as you can endlessly argue that postponement and cancellation are the same thing. Have fun with that!"

Thank you - I have and will - or, more specifically, deconstructing your logic.

For example, of course red and green are on a color continuum - but my point was that they look like two different colors, period. In contrast to cancellation and postponement, which have much the same feel to someone eagerly anticipating an event.

Ah, good, that was fun!
The analogy was blue and green, not red and green. This is important because those are adjacent wavelength ranges, and with adjacent ranges it's surprising how little agreement there is as to what range represents which color. They do not simply look like "two different colors, period."Some shades that for me fall into the "blue" range will for many people fall into the range of "green." This phenomenon is well understood in both psychology and anthropology.

More importantly, you are arguing that purely subjective perceptions can be treated as objective facts by the court: for example, that because "postponement" and "cancellation" might feel the same to someone who is looking forward to an event, a person who called "postponement" "cancellation" should be judged by a court to be telling the truth.

That just doesn't work. If I called 9-11 and told them my girlfriend had stabbed me in the heart, and it turned out I meant she dumped me and it felt like I had been stabbed in the heart, the call would be judged a false alarm. This is because what I said was NOT LITERALLY TRUE, no matter how true it felt. It was not true despite the equally irrelevant fact that dumping me and stabbing me are "two points along the continuum of painful things a girlfriend can do to a boyfriend."

In much the same way, cancellation and postponement are not actually the same thing, so what she said was not actually true. Her statement was untruthful even if postponement felt the same as cancellation to her, because she knew the event had not actually been canceled but said it had been anyway. It was untruthful even if cancellation and postponement are points on a continuum that Paul Levinson can dream up.

The circuit court had no alternative but to consider the statement untruthful, given the findings of fact by the district court.
Well, at least we've reduced this to arguing the meaning of disruption.

Now, explain how America might be placed in a permanent state of "school."
Paul O' wrote: "Now, explain how America might be placed in a permanent state of "school."

The short answer is regulating communication of, or on behalf of, children, has long been a first step towards applying those regulations to adults and adult situations. See, again, The Flouting of the First Amendment, or if you want an author other than me, Tedford's Freedom of Speech in the United States.

The trajectory is: concern that children might see Janet Jackson's breast to -> Saving Private Ryan is not shown of many stations out of fear of FCC reprisals.

Meanwhile, children in any case are entitled to the same freedoms of expression as adults.
Distort: to twist out of the true meaning or proportion
Postpone: to put off to a later time : defer
Cancel: to call off usually without expectation of conducting or performing at a later time

OK. There are the definitions from a dictionary (at which point, Paul, I expect you to use your Humpty Dumpty logic to challenge the validity of one dictionary versus another).

You are wrong. But much worse than being wrong, you are dishonest. This entire post and almost all your comments are dishonest. When someone disagrees with you, you change the subject by accusing the commenter of changing the subject or being bizarre. Thus, the conversation becomes whether or not someone is changing the subject or using "bizarre" logic or definitions.

Here is what I said about the case: "Free speech for students is a very important issue that has been ruled against wrongly in a number of instances, as far as I am concerned. But the Doninger case is not even that grey. She behaved poorly, purposely tried to punish people because they didn't give her what she wanted when she wanted it, and she lied." Since you seem so good at interpreting statements, why weren't you able to see that this spoke to my disagreement with Doninger as a first amendment case?

You only responded to one other item in my original post: the blue/green analogy, which, in your Humpty Dumpty, bs semantics fashion, you made into something else.

You don't say anything about misleading the reader on who authored the opinion.

You, once again, make yourself the world's foremost authority by claiming that the phone calls that Doninger encouraged were all in a day's work, while ignoring that they were on top of the alleged flood of calls you claim they must deal with. Then you use this blather to support your factually insupportable claim that this was not disruptive.

You ignore that proper respect for authority is a modified construct. That is, it is not an absolute statement: "respect for authority" that leaves no room for interpretation. "Proper" leaves that room.

I find your reasoning and mode of attack at one with what you claim to criticize in the school authorities: people who disagree are ignorant (don't know what words mean) or bizarre.

You are a bully and intellectually dishonest. I'll withdraw from this "conversation" at this point. You can feel free to use this as another rationale to attack my reasoning, but it would be nice if you actually honest considered and respected other people's views rather than being convinced that you are right and the rest of the world is wrong.
Paul,
If I read those, will I find an example of what was a school based free speech ruling being extended to cover citizens in general?

I get the slippery slope argument, and I see clearly the example you cite in your response is that, but "what children might see" per FCC and "Do at/or concerning school" per USSC seem to be two separate issues. As I said, and as precedent shows, schools are considered exceptional in some ways.
Having been expelled from school over things I said...no cursing, no vile comments, just what pissed off one asst. principle....I find the issue......interesting.
That was 39 years ago, so I'm over it......
Bill wrote: "You are a bully and intellectually dishonest. I'll withdraw from this "conversation" at this point."

In other words, you can't take the weight of the logic and analysis offered by me and others against your position. Not surprising, given your position. Good. :)
Paul O' wrote: "I get the slippery slope argument, and I see clearly the example you cite in your response is that, but "what children might see" per FCC and "Do at/or concerning school" per USSC seem to be two separate issues."

Well, I do think that they're not identical - the authoritarian control of students can be far worse a threat to our freedom as adults than the FCC regulation of broadcasting - because a universally recognized purpose of school is to prepare students for life in the world.
Paul,
I think we've taken this as far as we can. I appreciate you taking time to respond.

Hope you liked my Clarence Thomas joke.....
:) yes, that 4-part rendition was spot on!
Kravitz did NOT find a disruption - the calls and phone calls came from an email sent by 4 students earlier in the day. The 2nd Circuit took a leap and credited the phone calls/emails to government employees (really, phone calls and emails to government officials is disruption?) to the blog.

Cancelled ... postponed? The facts are disputed. Avery testified that Niehoff said cancelled (in a fit of anger). Niehoff denied saying that. All who testified at the PI hearing said that the widely and firmly held belief was that if Jamfest didn't happen on the scheduled date in the auditorium then it wouldn't happen.

Juliet - as to the pothead being elected. What is wrong with students actually learning how democracy works? If students elect a pothead (though pot is illegal and that's a whole different issue) and that's the type of leadership they get - well, that's what happens if you waste a vote.

It seems to me the high schools have as much a role in teaching the practices of active democracy as in inculcating the values (someone should tell the senators and VPs who drop the f-bomb on the floor of the Senate that they have not been adequately inculcated).
The main reason the superintendent went bonkers is that parents and community members actually called school offices to lobby for support of the students. The message “Give The Kids A Break” was not well received, to put it mildly.

At the local level, many public “servants” revolt at the idea of public input and accountability.

This superintendent avoided accountability in numerous ways, including persuading her nominal bosses to perform a verbal rather than written [public record] evaluation.

The trail of unclean hands in this travesty is clearly marked.

The message to students and citizens is clear: Shut up, but vote to approve our budget.

This school system became the poster child for home schoolers ...
Huck, according to the circuit court the legal standard is not whether there WAS a disruption but whether the speech could reasonably be predicted to lead to a disruption. I don't know if this is correct legally, but I assume it is. Under that standard, they found that the blog posting could reasonably be predicted to cause a disruption, because it asked students to phone their school merely to annoy and harass the administration.

As for the facts being "in dispute," that is more true now than then, since more evidence has come out, but

(1) even the so-called "smoking gun" memo produced by Andy on his blog does NOT show that jamfest had been canceled. So far there is no good evidence for that.

(2) the circuit court was proceeding with the facts as found by the district court. Since you weren't in that district courtroom, you don't know how or why the administrator's story was accepted and the student's rejected, but that's what happened, and the circuit court was supposed to accept those facts (according to ChicagoLawyer78).

Again, I don't maintain that the student should have lost, necessarily. I just think the court made a pretty reasonable decision, certainly enough so that Sotomayor shouldn't be "disqualified" from anything
Oy vey! This whole thing started because the auditorium was under construction and not available as a venue on the date the student requested. She refused an alternate venue and an alternate date. She kept pushing the issue, her initial request, as if the construction of the auditorium and its completion date had to meet her desire. As if the school authorities were deliberately trying to thwart her needs. She created a mountain over a molehill, to what end? She ends up discredited as a student leader, and it is unfortunate that she lacked any parental guidance and supervision at any point in this fiasco. I wonder how her parents deal with not being able to grant her every wish or every desire, even when it is impossible to do so....maybe there is no impossible for them and maybe that is the real heart of this matter. Nevertheless, as I posted before, they can do as they wish, or find easier, at home, but in society outside the home, society will not jump through hoops and reward bad behavior, most of the time, anyway.

I am finished with this blog. It has become a forum for Levinson to debate, defend, and bully his flawed reasoning with personal insults, very much like the junior in high school, to prove himself right. If Levinson doesn't like dissenters from his personal opinion, he should not invite comment and should just "talk amongst himself".

Also, his photo is giving me the creeps....looks like Karl Rove.....
I find it interesting that after all this discussion, no one (as far as I can tell) has even mentioned the 1986 decision of the U.S. Supreme Court in Bethel School District v Fraser, which is what the Livingston court primarily relied on in ruling as it did. Mr. Levinson is scornful of the court’s conclusion that, in this case at least, “proper respect for authority” trumps Ms. Doninger’s First Amendment rights, as if the court manufactured that standard out of thin air. It did not. The standard was developed in the Fraser case.

Mr. Fraser, a high school student, delivered a nominating speech for a fellow student. He used several sexual references in his speech, which the school district deemed offensive. He was suspended for two days and then allowed to return to school. He sued the school district, claiming that his constitutional rights had been violated. Both the District Court and the Ninth Circuit agreed, citing Tinker. But the Supreme Court reversed, saying that the school district had the right to sanction Mr. Fraser for his “lewd and indecent speech.” The Court distinguished Tinker, which involved political speech (the wearing of an armband to make a political statement).

Interestingly enough, Chief Justice Berger, writing for the Court, could not even bring himself to repeat Mr. Fraser’s language, so vile and offensive did he (apparently) find it to be. To learn what the hapless Mr. Fraser said, you have to read Justice Brennan’s concurring opinion. In recommending his friend for student council, Mr. Fraser used a number of shockingly graphic and explicit sexual references, such as:

“I know a man who is firm - - he’s firm in his pants, he’s firm in his shirt, his character is firm - - but most…of all, his belief in you, the students of Bethel, is firm.”

“Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts - - he drives hard, pushing and pushing until finally - - he succeeds.

“Jeff is a man who will go the very end - - even the climax, for each and every one of you.”

Wow!! How did the guy avoid a jail sentence?

Justice Brennan then goes on to question the Court’s characterization of Mr. Fraser’s remarks as “obscene,” “vulgar,” “lewd,” and “offensively lewd.” (I think we can all agree that even by 1980’s standards, Mr. Fraser’s comments were pretty tame). But even after concluding that Mr. Fraser’s speech was not particularly distasteful, Justice Brennan found himself agreeing with the Court that the school district was right to punish him, reasoning as follows: “To my mind, the most that can be said about respondent’s speech - - and all that need be said - - is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent’s remarks exceeded permissible limits.”

It is certainly true that Mr. Fraser’s comments were made at a school assembly, while Ms. Doninger’s were posted to an off-campus blog. Nevertheless, Justice Brennan’s explanation sounds a lot like the “proper respect for authority” standard that Mr. Levinson condemns the Livingston court for expressing.

By the way, Mr. Levinson, perhaps you recognize the name of William Brennan. He’s the guy Justice Souter replaced. He’s the guy Justice Souter visited in the hospital nearly every day during the last months of his life. He’s the guy many believe most influenced Justice Souter’s career on the Court. And yet, here he is, in Fraser, siding with the school district and against the student in a First Amendment case involving relatively mild language.

Mr. Levinson, I suggest that before you continue your jihad against Judge Sotomayor, you look deep into your soul and answer this question: If William Brennan were alive today and under consideration to replace Justice Souter, would I deem him unfit based solely on his concurring opinion in the Fraser case? If the answer to that question is no, then you owe Judge Sotomayor an apology.
Tommye wrote: "I am finished with this blog. It has become a forum for Levinson to debate, defend, and bully his flawed reasoning with personal insults, very much like the junior in high school, to prove himself right. If Levinson doesn't like dissenters from his personal opinion, he should not invite comment and should just "talk amongst himself Also, his photo is giving me the creeps....looks like Karl Rove....."

Hi Tommye -

1. I didn't invite you (or anyone, specifically) to comment here. I consider this an open forum, in which anyone is welcome to comment.

2. And, if I disagree with the comments, I answer in appropriate tone - take a look at your comments, for the tone that I used in responding to yours in my comments.

3. That said, I think tone is far less important than substance - and I take your saying you're "finished" with the blog as an indication that you found the arguments presented by me and others beyond your capacity to disprove or refute. Which makes me glad.

4. As to your view that my photo is "creepy" and as well as looking like Karl Rove, my best recommendation would be (a) see a psychologist for your paranoia, and (b) see an eye doctor for your vision.
David wrote: "Mr. Levinson, I suggest that before you continue your jihad against Judge Sotomayor, you look deep into your soul and answer this question: If William Brennan were alive today and under consideration to replace Justice Souter, would I deem him unfit based solely on his concurring opinion in the Fraser case? If the answer to that question is no, then you owe Judge Sotomayor an apology."

I'll ignore your characterization of what I'm doing as a "jihad" (this one time), as well as your incorrect addressing of me as "Mr" (feel free to call me Paul), and respond to your question:

While I don't think Brennan was among the worst regarding protection of the First Amendment, neither was he among the best. In particular, his opinion in Roth, 1957, that obscenity was not protected by the First Amendment was a very bad and damaging ruling, worsened by his later upholding against Ginsberg.

Souter, in his time on High Court, was a far greater defender of freedom then Brennan was in his time.

I would like to see Barack Obama appoint someone who is likely to support the First Amendment with the passion and cogency of William Douglas or Hugo Black - and Sonia Sotomayor is far indeed from that.
Ooops, I meant (Ralph) Ginzburg, 1965 in the above - not Ginsberg.
Fair enough, Paul, and I apologize for my use of the "j" word. It was inappropriate.
Works for me, David - thank you.

bbb333bob - ok
With all due respect, Professor Levinson, your commentary on this case is patently absurd.

First of all, why do you go to such great lengths to suggest that the opinion in question, which was authored by Judge Debra Livingston, was authored by Judge Sotomayor? Three times in your short piece, you say that the decision came from “Sotomayor's Court" or "Sotomayor's Second Circuit Court." You then needlessly remind us that the panel consisted of “Judge Sonia Sotomayor and her colleague justices”; you also provide a link to the “full text of Sotomayor’s decision.” What’s the deal here? Why not just admit that she didn’t write it?

More importantly, your posting grossly exaggerates the scope of the Court’s ruling.

As an initial matter, the Court was engaging in a very narrow review; the question before it was only whether the district court had “abused its discretion” in concluding that the plaintiff had not satisfied the standard for a mandatory injunction – a standard which, by the way, is even more difficult than the typical standard for preliminary injunctions, in that plaintiffs must demonstrate a “clear” or “substantial” likelihood of success on the merits.

Most importantly, the Court carefully and expressly limited its holding to the facts, including but not limited to the fact that (1) the plaintiff student, Doninger, used vulgar language that was meant to be – and was in fact – disruptive to the school’s operations (encouraging people to make multiple calls to the “douchebags” in the school’s central office in order to “piss [them] off”.......this led to a "deluge" of calls and emails that interfered with office operations); (2) Doninger knowingly used factually misleading and/or false information about school administrators in order to encourage others to make these disruptive phone calls; (3) while Doningner's speech was created off-campus, it was specifically and purposefully designed to come onto campus; (4) as Doninger knew, her vulgarities and false statements were especially prone to cause disruption in the school’s tense environment because, as Doninger herself testified, students were already “all riled up” about a dispute with administrators (the same dispute about which Doninger was spreading false/misleading information), and (5) that school officials' "punishment" of Doninger for her disruptive speech did not extend beyond partially limiting her participation in student government (Note that although they denied her permission to serve as "Senior Class Secretary," they let her retain her position as a representative on student council. Oh the injustice! ).

The Court made crystal clear that its holding rested on the “CUMULATIVE EFFECT” of these numerous factual findings – findings which, by the way, the Court could not reject under the governing standard unless they were “clearly erroneous.”

It is completely impossible to tell whether any of the judges on the panel would have reached the same holding on facts that were even slightly different (or on facts presented in a different procedural posture).

In sum, this case is about almost nothing. Judge Sotomayor merely agreed with her colleague that a district court did not abuse its discretion in concluding that a student had failed to show entitlement to preliminary relief where her school had *partially* restricted based her participation in student government in response to her *vulgar and knowingly misleading efforts* to cause student unrest on an already-tense campus. This should make us worry?
She got the nomination, Paul. NOW what?
If the high school in question was privately owned and operated, it has a right to establish any qualifications for a student's running for office it chooses. If the student or the student's parents don't like the restriction, they can go to another private school.

If the high school in question is public, it shouldn't be.

If we simply abolished public education, we could spare ourselves these yards of tortuous ramblings. And don't worry about the state of education; very little of it going on in public schools anyway.

However, given the present circumstances, Paul clearly has it right. But I'd prefer to concentrate on Sotomayor 's disastrous opinion in the Connecticut fireman's case--a complete repudiation of Martin Luther King, Jr.'s I Have a Dream vision.
Cartouche - we continue to point out Sotomajor's problematic record on this and other issues (I just heard Jonathan Turley speak on this), and listen carefully to watch she says in the hearings.

I think Obama did not make a good choice here. I'd like to see the Senate not confirm her, and give him a chance to appoint someone else.

I'll be writing more about this soon.
Judges rule on thousands of cases. To pluck out one and disqualify her on that basis is ridiculous.
I should have expanded. The reason this irks me so is that we have become such a gotcha culture, basing so many of our arguments on the few things a person does wrong rather than the many they do right.

I also abhor intellectual simplicity, and trying to evaluate a career based on one decision is ultra simplicity.
Dave wrote: "To pluck out one and disqualify her on that basis is ridiculous."

Not if you see that decision as going against one of the most important issues of our age - the protections of the First Amendment - which, not incidentally, is the First - not the Tenth, Third, or even Second - and thus the most primary of our protections.
I'm with Dave on this one. I look forward to hearing more about this ruling as well as her body of decisions before deciding on her qualifications.
Granholm would have been worse...
I just love the fact that this girl called the administrator a douchebag - remember that last Saturday was the anniversary of Hunter Thompson's death. This young woman sounds like she was honoring the time-honored First Amendment right to hold the weasels accountable. While the specifics of the case (did the student harass people, should high school students be held to a different standard) are all fascinating, it's that line of Sotomayor's about "respect for authority" that is the hands-down money quote for me. I have found that far too many of the college freshmen I have been teaching this past decade are too passive. They have not been taught to question authority and raise hell, which is what young people should do to keep this society from becoming too tight-assed and oppressive. Sotomayor, more than anyone, should know that. If she doesn't, she does not deserve to be on the court.
I have to agree with Dave Cullen. The idea of judging Judge Sotomayor's career on this one case is ridiculous.

But about the actual case: I just read the decision, and as I understand it, the defendant wasn't able to run for class office because she did not receive the endorsement from the administrator. Why did the defendant feel that she was guaranteed that endorsement? Furthermore, the defendant's actions regarding the fight over "jamfest" violated the rules of conduct that she agreed to follow when she was previously elected, which was why the administrator denied to endorse her for a second run. No one's first amendment rights were violated.

The case reads of a student who acted out of poor judgement and then was upset when the consequences of that poor judgement denied her the opportunity to run for student council again.

I think this case should be taught in high schools as an example of how and how not to properly combat authority. You can whole heartedly defend the right to fight authority while also teaching the best ways to go about achieving your desired goals.

I think that is what Judge Sotomayer was intending to communicate with this decision.
Hi Paul,
Kids have no civil rights. They are just not covered. I've worked with them for years and know about "status crimes" that would not be crimes if they were 18.
She was following laws, not inventing new ones.
I really like her and hope she is confirmed.
o'stephanie wrote: "Kids have no civil rights. They are just not covered."

Well, the Supreme Court in Tinker - and I - certainly disagree with you about that, especially as it pertains to the First Amendment.
I fear this nomination because it seems to be the POTUS's idea of "The Right Thing To Do". The fact that she is Latina should not override some of her clearly numbskulled decisions. As a Justice she will sit until she dies or retires and while I concur with most of her progressive opinions, there were probably at least a hundred candidates that were better qualified for the post. This is social engineering run amok.
My understanding is that the issue of "incitement to action" was one of the problems with the student's blog. The action would have been disruptive of the school's business, a distinct no no.

I am had it with the one case, one issue reason for trashing a Supreme court nominee, or for finding fault with our President. I don't know what's going on these days, but we are way to ready to demand serious action based on partial information.

The cited case is definitely not enough for me to generate enough outrage over Ms Sotomayor to demand her withdrawal.
I wonder if she will be the final nominee...

Could this be a setup?

I could hope so. The more I hear, the less I like her as a potential SCOTUS justice.
Again, how many cases can you point to out of over 3,000 that came before her. Besides, most of the cases that did come before her were pedestrian. David Souter a surprise to the Republicans, gee you think? So enlightening!
There are many boundaries to free speech, "the Court has consistently ruled that certain speech can constitute a crime. Freedom of speech, for example, would not prevent someone from being prosecuted for soliciting another person to help him commit a crime. Nor would the First Amendment protect an in-your-face verbal assault designed to provoke violence, so-called “fighting words.” (firstamendmentcenter.org, retrieved June 3, 2009) So I would argue that indeed there are limitations.
But you would be arguing incorrectly.

The First Amendment never protected criminal activity.

What it does protect is all criticism of the government.

Did Avery Doninger commit a crime? No one, including the school administrators who punished her for her communication, ever even alleged that she did.

So why was she punished by school administrations - who as administrators of a public school were in effect agents of the government?

Avery Doninger was punished because they didn't like what she said. Not because she was committing a crime - but because they were offended by what she said.

This is what Sotomajor supported - this is the lesson she imparted to all people in school - by her joining in the Doninger decision. That a student can be tracked off campus, and punished if she says or writes something off campus that school administrators do not like.
The administration of school as well as all educational institutions does not presume 100 % democracy to pupils, it is what to hide.
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my link:marknad
A lot of recent decisions seem to indicate that minors lack free speech rights. I think the court is wrong, but it has happened 'way too frequently. Rated.
I am truly beginning to wonder.