a citizen’s journal by Thomas Nephew

Sotomayor’s douchebag verdict

Posted by Thomas Nephew on July 6th, 2009

A high school student, disappointed in the cancellation of an extracurricular event, organizes an impromptu but energetic email and phone campaign to lobby against that cancellation.  Her principal, extremely annoyed by this, exchanges words with the student, though stories differ on what those words were: the student reports she was told the event was canceled, but that decision might be reversed if she “played her cards right,” while the principal denies she ever said the event was canceled. The student goes home and writes an angry post on her “LiveJournal” public blog in which she describes the event as canceled — and also (regrettably) describes the school central office as “douchebags.”*

As it happens, the event goes forward after all — but a few weeks later, the principal learns of the posting, demands and gets an apology, requires the student to display the post to her parents, which also happens… and demands the student withdraw from a student election, which the student refuses to do.  The student’s eventual write-in victory is annulled.  The student and her mother sue on the grounds that the student’s freedom of speech was violated.

= = =

These are the basic facts of Doninger v. Niehoff,* as argued in March, 2008 and decided in the U.S. Second Circuit Court of Appeals in June, 2008.  Sadly, and in my view wrongly, that court found for the school and against the student, by affirming that a district court was right to deny the student’s motion for relief on the basis that she had “failed to show a sufficient likelihood of success on the merits.”

Sadly, also, one Sonia Sotomayor was one of three Circuit judges who delivered this unanimous judgment; Judge Sotomayor also took no exception whatsoever to the particularly distressing explanation of the judgment — and of the state of freedom of speech today — written by Judge Debra Livingston.

Foreseeable  risk of substantial disruption trumps free speech
Livingston did not deny that Doninger had suffered injury, even ‘irreparable injury,’ nor that her speech was curtailed.

Rather, her judgment was based on the right of schools to regulate plainly offensive speech on campus (Bethel School District v. Fraser, 1986), and a Tinker v. Des Moines Schools (1969) ruling that — although upholding a student’s free speech right to wear an antiwar armband — also held that school administrators may prohibit student expression that “will ‘materially and substantially disrupt the work and discipline of the school.” The ruling also goes out of its way to determine that nonthreatening off campus speech may be regulated, at first rejecting the school’s broad reading of a Second Circuit decision (Wisniewski v. Bd. of Educ.) about a threatening drawing circulated on the Internet — and then testing at great length whether that decision’s proposed standard (reasonable foreseeability that the speech would reach the school) had been met.

In Livingston’s view, it had, so that the definition of ‘substantial disruption’ was watered down from an implicit death threat to some bad words and an email/phone campaign resulting in fuller inboxes and busier phones: “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus” (emphases added).

That ‘might’ is a loophole wide enough to drive a school bus through, of course; that, in turn, partly rests on and certainly extends the egregious “BONG HiTS 4 JESUS” Supreme Court ruling (Morse v. Frederick, 2007), in which the Supreme Court decided that public schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”” **

While the bare outlines of the reasoning are bad enough — abusing a free speech victory like Tinker to create a free speech defeat like this one — the opinion’s impact may be worse yet in the schoolmarmish tut-tutting and goalpost shifting one finds throughout the opinion.  In the main example I can’t get over, Livingston discerns “foreseeable … risk of substantial disruption” — in itself a vague crystal ball test rather than a rights preserving one — in that “[the student’s] chosen words — in essence, that others should call the ‘douchebags’ in the central office to ‘piss [them] off more — were hardly conducive to cooperative conflict resolution(emphasis added).

Thus the test other courts may take from this ruling is not so much a school’s potential disruption — already far too weak a standard, and one which did not in fact occur (unless a lot of phone calls and emails are disruptive) — as the student’s failure to engage in “cooperative conflict resolution,” as defined by the school administration.  Lest this be considered an isolated piece of bad reasoning buried within her decision, Livingston reiterates the notion more forcefully yet in a conclusion she may have thought eloquent, but which strikes me as equal parts vapid and authoritarian:

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. Fraser, 478 U.S. at 683. Educators will inevitably make mistakes in carrying out this delicate responsibility. Nevertheless, as the Supreme Court cautioned years ago, “[t]he system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members,” and we are not authorized to intervene absent “violations of specific constitutional guarantees.”

Like most Americans,  I am not a saint: I value civility, but I also value my freedom to engage in angry, uncooperative free speech, and I particularly value it while sitting here in my own home writing a blog post.  So while it’s still legal (I hope) for me to say so to Judge Livingston, Sotomayor, and Plesky: thanks for nothing, you ignorant douchebags.

There were other reasons for a judge sensitive to the First Amendment to intervene in this case, at least with dissents in part.  In a case touching First Amendment rights, Judge Livingston herself affirmed, the court was within its powers to review the facts of the case.  And in this case one can reasonably discern a “she said – she said’ difference of opinion about a supposedly important fact (“perhaps more significantly”) — whether the student was lying or inaccurate to say the event was canceled in her blog post.*** Sotomayor’s silence was thus not just consent to a very bad decision, but one made on the basis of questionable facts she had the power and duty to recognize.

Nevertheless, Doninger v. Niehoff ‘s egregious abrogation of free speech rights is apparently now settled and useable law, according to Kristin Billera, writing at the “Media and Communications Law Society” blog: “..Shepard’s indicates that this case was followed in 23 subsequent cases.” As Jonathan Turley wrote in discussing this case, “[w]hile federal courts routinely state that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), they honor that rule primarily in the breach.”

That breach now extends well beyond the schoolhouse gate, for reasons that do very little credit indeed to those who reached the Doninger v. Niehoff decisionand that bode very ill indeed for any defenses of the First Amendment in a Supreme Court featuring Sonia Sotomayor — or other Obama Supreme Court picks for that matter.

Billera finds that Sotomayor has a mixed record on freedom of speech and freedom of the press issues.  She did record a dissent in the similar Pappas v. Giuliani (2002) case, in which a police officer’s firing for emailing racist and anti-Semitic remarks was upheld; it may be, to paraphrase Justice Taney, that high school students have no rights which a circuit judge is bound to respect, or it may be that Sotomayor’s own thinking has drifted towards upholding authority to abrogate individual rights since 2002.  Neither prospect is encouraging.

Obama, too
Going forward, there are two major problems here.  First, Livingston’s opinion proves entirely too much.  The parlor game of balancing personal rights against other considerations should never be engaged in in the first place without dire need — real threats to safety might outweigh freedom of speech, but the institutional inconvenience of an email campaign or the aggravation of name calling never should.  Yet Sotomayor’s limited track record indicates she’s increasingly inclined to go along with just such games.

But it’s not just Sotomayor, it’s the fact that President Obama — allegedly our Constitutional Law Professor in chief — considered her the best available person for the job.  She might have had fewer questionable or disqualifying rulings than someone like Elena Kagan, a keener legal mind than someone like Lawrence Tribe, Ron Dworkin, or Akhil Reed Amar, or some ineffable personal quality elevating her over, say, a Deval Patrick or a Janet Napolitano.  I estimate the joint likelihood of these propositions to be vanishingly small, and thus estimate their importance to Obama to be vanishingly small as well.

Sotomayor is rather clearly the solution to a set of political equations, not to the question the President might have asked: “who will set the Supreme Court back on a path to guaranteeing individual liberties?”  In my favorite “West Wing” episode, Sam Seaborn learns that a prospective Supreme Court justice once wrote an article denying the right to privacy — and the nomination is abandoned (Edward James Olmos is nominated instead).  I always figured that was a bedtime story for us political children; I just didn’t think Obama would demonstrate the truth of that so soon.

Another Souter, indeed?
As ever, (1) I am not a lawyer, and (2) I will be happy to be proven wrong; maybe Sotomayor will prove to be a veritable lioness in defense of our Bill of Rights.

On the other hand,  I’m less and less certain what American law has to do with these things compared to timidity, confusion about the Constitution, Federalist Society memberships, or all of the above.

And I don’t think I will be proven wrong.  If I had to bet, I’d put my money on Sotomayor becoming an ironically symmetric replacement for Justice Souter — as a bitter disappointment to those who supported her nomination and confirmation.

NOTES on SOURCES: The person covering the Doninger case most closely has been Professor Paul Levin, Communications and Media Studies Department, Fordham University; see especially Sotomayor v. First Amendment: Interview Avery and Lauren Doninger, in which Avery repeats her view that the concert was declared canceled in the discussion leading to her blog post, and Sotomayor’s Bad 1st Amendment Decision Should Disqualify Her.  I found Prof. Levin’s post and this issue via Andy Thibault’s “Cool Justice” blog, where I also learned about the Kristin Billera post.
The full name of the Doninger v. Niehoff case is Lauren Doninger, P.P.A. as Guardian and Next Friend of Avery Doninger v. Karissa Niehoff, Paula Schwartz; that of the 1969 Tinker case is Tinker v. Des Moines Indep. Cmty. Sch. Dist.
EDIT, 7/6: “Billera” spelling corrected.
UPDATE, 7/30:  Andy Thibault (“Cool Justice Report”) who has covered the story extensively, forwards word that the whole 2d Circuit Court will revisit the case; a new wrinkle (to me) is that the school administrators confiscated protest t-shirts about the dispute (e.g., “Support LSM [Lewis S. Mills High School — ed.] Freedom of Speech”).  Elsewhere,
Frank LoMonte of the Student Press Law Center has a very good 7/10 post on the issue.

* The relevant text of the Doninger blog posting, in all its misspelled, sputtering glory:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. is the letter we sent out to parents.  […] And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.

** The banner with the nonsensical slogan was displayed across the street from the school involved, its maker was suspended, and the Supreme Court eventually upheld that suspension.
*** The truth appears to have been that the event really was effectively canceled at the time of the blog post, for lack of a teacher to operate auditorium equipment; a different date and venue would have fundamentally changed the character of the event (acoustic, different bands, etc.) The annoyed principal left some daylight if the student ‘played her cards right’ — but if so, the event was still canceled. While this emerges principally from an online podcast interview of the student, it’s also implicit in the ‘douchebag email’ available to the courts, and in the common sense observation that there would have been little point to that email otherwise.

2 Responses to “Sotomayor’s douchebag verdict”

  1. Nell Says:

    At Obsidian Wings, when the Souter resignation was being discussed, I predicted we’d wind up with a less liberal court as a result of Obama’s picks, especially if he got to make as many as four nominations.

    The usual suspects jumped down my throat. Turns out it only took one nomination to make my point. David Souter wouldn’t have ruled this way.

    Your concluding paragraphs echo my thoughts exactly. Hope we’re both proved wrong, wrong, wrong.

  2. Nell Says:

    I’m reminded by the mention of Tinker that Gary Farber has an important post on the politically driven nature of the Nixon-Kissinger ‘decent interval’ delayed exit from Viet Nam documented beyond question by the newly released tapes. There are implications for our current situation in Iraq and Afg.

    Gary’s post points back to the excellent work of Ken Hughes at his Fatal Politics blog. But read both.

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