Correct me if I'm wrong, but I believe the case was not about the student's punishment by the school per se, but about the student's request for a preliminary injunction against the school's punishment.

In considering a preliminary injunction the lower court had to decide the probability that the student would prevail in court when the case would actually be heard. In other words, the lower court did not actually rule on the case itself; it considered the probability of how a court actually hearing the case might rule.

Likewise, Sotomayor's appeals court did not rule on the case itself, but rather ruled on whether the lower court erred in not granting a preliminary injunction. In other words, the case before the appeals court was this: did the lower court get it so wrong in not granting the preliminary injunction that that decision should be overturned.

The case law on the free speech rights of students seems to be somewhat confused. Perhaps "confused" is the wrong word, but my point is that students have not been found to have an absolute right to free speech. It depends on the circumstances and the extent to which the school has legitimately acted in order to prevent a "disruption" of the school, however "disruption" might be defined. Several court decisions have moved away from the stricter standard of "actual disruption" to "potential for disruption," and it is in that context that the lower court refused to grant a preliminary injunction.

I think what happened is that the lower court adopted a deferential view of the school's position. After all, the school officials are the "ones on the ground," the ones responsible for keeping order in the school. Were the court actually to hear the case, they might very well find that the school acted inappropriately. But I think the court held that the school's position was at least sufficiently reasonable in the context of "potential for disruption" to deny the preliminary injunction.

Likewise, I imagine that the appeals court did not find the case so compelling (for that reason) that the lower court's decision should be overturned.

As far as I know, at this point the actual merits of the student's complaint have not yet been decided by any court.

I think this case shows that Sotomayor is not a First Amendment absolutist, but I don't think it shows conclusively that Sotomayor is quite as indifferent to the First Amendment as she is portrayed in your interview.

As always, since I am not an attorney, all the above is "in my humble opinion."

The student was punished because of her communication (in this case, what she wrote on a blog). The high school - a public school - is an agent of government, paid for by taxes. The case is ipso facto about the First Amendment.

Paul writes: "The case is ipso facto about the First Amendment."

Yes, the CASE is about the First Amendment. My point, which perhaps I was not clear about, is that what the courts considered was not the case per se, but a preliminary injunction related to the case. Sotomayor did not, and has not ruled on the actual case.

If I understand you correctly (by the way, I did listen to the entire interview) your objection would be to expanding "actual disruption" of a school to "potential for disruption." The latter is quite broad and could include almost anything.

By the way, I'm surprised that more people haven't commentedand rated. This is a very interesting and important issue, and your interview was quite informative. Both the girl and her mother were very articulate.

Well, thank you for your good words about the interview - much appreciated - and, yes, you understand correctly my concern about the dangers using of a "potential" for disruption as a pretext for punishing students.

But my point about Sotomayor is still this: She had a chance to stand up and strike down what those school officials did. She had a chance to send out a ringing endorsement for the First Amendment - as another Appellate Judge, Learned Hand, did many years ago. Instead, she allowed the school's punishment to stand. That's not what I want to see on the Supreme Court.

mishima is correct.

Here is the crux of all of this: the court was not asked to speak on the merits of Avery Doninger’s claim in itself, just whether or not such a claim had the potential to receive a favorable ruling. In reviewing precedents that would be applicable to Doninger’s claims in court, the court realized that this case would likely not succeed.

If anything, the Doninger decision says more about the state of rulings about student free expression, in other words, the existing precedents, than any one jurist’s take on free expression and the First Amendment. In this entire discussion, here on OS, as well as elsewhere, there exists a misunderstanding of what the courts were actually ruling on. The ruling in this case had absolutely no reflection on Sotomayor’s First Amendment perspective, aside from revealing that she agreed that the school’s actions had a chilling effect on Avery Doninger’s First Amendment protection of free expression, which is the exact opposite of what is represented by those who misunderstand what the court was ruling on.

At this point, the case will move forward and Doninger’s claims can eventually be ruled on based on their own merits.

Have you listened to the interview? If you had, you'd know that Lauren Doninger, who brought the suit on behalf of her daughter, utterly disagrees with you, and was deeply disappointed by the ruling of the Sotomayor court.

That's indeed why I conducted the interview - so people could hear what Avery and Lauren Doninger think of Avery's case, in their own words.

But, apparently, you know better than the plaintiffs as to what was a stake in this case (and you apparently also know better than Constitiutional scholar and lawyer Jonathan Turley).

I am not a lawyer, but as I understand it one of the major problems with what the SC did was to change the lower courts findings of fact. The lower court, correctly, found that there was NO DISRUPTION as a consequence of Avery's blog. There were phone calls/emails to the school administrators (which I am hard pressed to characterize as disruption), but those were the result of the email that the students sent earlier in the day - not from the blog.

While I understand Rick Lucke's and Mishima666's point regarding what the SC ruled on, the problems with the SC's decision are deep and troubling.

I agree that the issues here are complicated and "troubling", but the assertion that the ruling exposes an "anti-First Amendment" stance on Sotomayor's part is simply a wrong conclusion. The problem isn't Sotomayor, but rather a mangled area of law that has too few clearly drawn lines.

I would like to see Doninger prevail ultimately. My view is not that her freedom of expression was not dampened, just as the courts did not view it that way; it clearly was. But the specifics of what the appeals court ruled on did not deal solely with that issue. I am hoping this case will create a situation that changes some of the ambiguities of student rights.

Rick, right, but the Appellate Court _should_ have ruled on that issue - by not taking the opportunity to rule on it, as Doninger requested when she asked the courts to slap down the school (or, in legal terms, to get an injunction on the school's punishment of Avery), the Court ratified an abridgment of Avery Doninger's First Amendment rights.

Paul,

I think this will be an interesting case to follow as it moves forward. I think the Sotomayor court was limited in what it could rule on. They established that Avery had shown irreparable harm based on her First Amendment protections, and hopefully, that will play in her favor in the future.

I think the real issue here is the existing case law.