May 26, 2009

Sotomayor played key role in Avery Doninger case

President Barack Obama's nominee to fill a Supreme Court vacancy was one of a trio of appeals judges who last year gunned down the First Amendment claim of a Burlington student penalized by school administrators for calling school administrators "douche bags" on a blog.
In the May 29, 2008 decision, Judge Sonia Sotomayor joined in a ruling that upheld a trial court ruling to deny an injunction sought by Avery Doninger of Lewis Mills High School to prevent administrators from barring her election as senior class secretary to punish her for posting on a blog outside of school. The judges said her words were potentially disruptive and vulgar.
"We have determined, however, that 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," the decision said..
Jonathan Turley, a law professor at George Washington University, this week said the ruling "cut deeply into student rights."
Andy Thibault, whose Cool Justice Report has dogged the case from the start, said that Sotomayor "was clubbed clubbed on the head with a crystal-clear free speech violation and she said, in effect, 'That's nice, I'll sign off on it.'"
"When a citizen seeks a redress of a grievance and is punished for lobbying the community, that's OK with Sotomayor," he said.
"Nevermind the fabrication of disruption or potential disruption long after the fact by the douche bag school bosses: Sotomayor flunks due diligence, a reading of her own Second Circuit on the standard of offensiveness and most importantly, her duty to uphold the Bill of Rights. Any punishment by a government official in response to protected speech is a violation of the First Amendment," Thibault said in an emailed response to a question from The Bristol Press.
Check out Avery Doninger's own interesting account here.
If you're a glutton for the law, here are links to all of the filings in the court case. Have at 'em.

Copyright 2009. All rights reserved.
Contact Steve Collins at


Anonymous said...

I agree with her decision. Clearly it was a blog that was open and readily-accessible to members of the administration (since the student was caught) and clearly it was not anonymous (again, since the student was caught). The internet is a public forum for mass communication. If a student was at their bus stop shouting insults about teachers through a bullhorn, I'd expect them to be suspended. If they handed out leaflets making fun of the principal during summer break, I'd expect there to be some consequence. There's a level of respect kids need to have for the school and administrators, and unfortunately parents these days don't feel like they need to respect anything or anyone unless it's convenient for them (especially someone in a suit who makes more than they do). So I applaud the legal decision. Free speech would have been a narrative that brought into question the policies of the school board, not "Mr. So-and-So is a douchebag." I'm not ready to live in a society where kids can legally defend their right to be rude and obnoxious. And I never will be.

Dazed and confused said...

WOW !!!!!! Stephen actually posted a story that didn't kiss obamas bottom .

I think I may buy my first lottery ticket in 30 years .

Anonymous said...


Would you like to go to dinner?

Anonymous said...

Avery actually needs to spend a little more time in her room writing a letter of apology to teacher she so rudely disrespected. Sounds like her parents could use a timeout too for trying to protect their bratty little darling from the consequences of her nasty behavior.

El Presidente de China said...

Um, you guys who think Sotomayor was right on this one fundamentally misunderstand the First Amendment. The whole point is that speech is protected even when it is obnoxious or offensive. Otherwise, it wouldn't be free.

Read Cohen v. California, where the Supreme Court said that a jacket that said "Fuck the Draft" still counted as protected speech even though it used an offensive expletive. When Anonymous #1 says, "Free speech would have been a narrative that brought into question the policies of the school board," it's as if the Supreme Court had said, "Cohen should have worn a jacket that explained why the draft constituted an undue burden on personal liberty and conscience."

Would it be OK to censor a protest sign that said, "Obama is a liar," because the sign didn't indicate when and how he had lied? What if the President were coming to give a talk at a high school and some of the students walked around outside and protested with that same sign? Under Sotomayor's ruling, that protest sign would be student speech outside school that was likely to cause a disruption in the school, and could be punished. Do you see yet where I'm going with this?

メル友募集 said...

最近仕事ばかりで毎日退屈してます。そろそろ恋人欲しいです☆もう夏だし海とか行きたいな♪ 連絡待ってるよ☆