May 27, 2009

Sotomayor under scrutiny for Doninger ruling

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.

Andy Thibault, whose Cool Justice Report has dogged the case from the start, said that Judge Sonia Sotomayor "was 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.

In the May 29, 2008 decision, Sotomayor joined in a 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 “plainly offensive.”.

Jonathan Turley, a law professor at George Washington University, said the ruling "cut deeply into student rights."

Jon Schoenhorn, the Hartford attorney who represents Doninger, said Wednesday he thinks Sotomayor’s First Amendment views are “fairly conservative.”

He said he doesn’t understand why so many right wing commentators are portraying the judge as a liberal activist when her record is clearly mixed.

Schoenhorn said that from what he’s seen, Sotomayor “tends to be more progressive than conservative.”

 But, he said, she’s not as liberal that conservative talking points are painting her.

Schoenhorn said he hopes that “someone will ask her” about her First Amendment views and, in particular, her thoughts on student rights.

First Amendment law “is not a conservative versus liberal area,” Schoenhorn said, in part because it includes both speech and religion, which often go hand in hand in terms of how expansive an outlook someone has.

Schoenhorn said he disagreed with her decision to rule against Doninger, but doesn’t assume it reflects her broader views.

“For the life of me, I don’t understand why it’s so complicated,” said Bob Brown, a former Bristol Press editor who teaches at Tunxis Community College.

Brown said Wednesday that Doninger used her own blog without school resources to speak freely about an issue cared about.

Calling school officials “douchebags” is clearly an opinion, he said, so it’s not libel and it’s not something that she ought to have gotten into any trouble over.

Brown, who teaches journalism, composition and history, called the entire issue a straightforward First Amendment matter that shouldn’t have become such a controversy.

Brown said he hasn’t thought about Sotomayor’s role in the case yet, but his initial take on her nomination is that she will provide “another vote for people who agree with me” on the nation’s highest court.

Judges rely on their principles and philosophy to decide tough cases, he said, and so will Sotomayor.

But at least some observers say the Doninger case presents a solid rationale for rejecting Sotomayor to fill the seat of retiring Justice David Souter.

“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” in some cases, said Paul Levinson, a professor of communication and media studies at New York’s Fordham University.

Levinson said the president “did not make a good choice” and the Senate should reject her.

Turley said,  "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."

"Never mind 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.

He called her “an enemy of free speech.”

Copyright 2009. All rights reserved.
Contact Steve Collins at


Anonymous said...

Steve, the last thing this disrespectful kid needs is more attention and publicity.

Anonymous said...

Avery: You're cute.

Anonymous said...

Good...This women made a blunder when she ruled against this student. Free speech in this counry is a hoax unless of course you write for one of the liberal media elite.

For this kid to get the punishment she received she unheard of.

I hope the Senators Dem and GOP grill her like steaks on a grill over this issue and I hope in the end she is not confirmed.

With the amount of her decisions being overtuned on appeal, by other jusges demonstrates that Obama made a horrible pik for the highest court in the land that is a lifetime appointment no matter how bad you are.

Also Justice Stevens at 9 years old...time to retire.

Anonymous said...

Thanks for pointing this out, Steve. She needs to address this case.

Anonymous said...

You people complain about all the disrespectful "hoodlums" shouting obscenities at our parks, but then you are ok with this girl doing what she did without punishment. Hypocrites, all of you. You allow this kind of behavior to go unpunished, and it only keeps getting worse. This kid is totally coddled by her family and is in serious need of a dose of reality.

Anonymous said...

I think Ms. Doninger should have the freedom to say whatever she wants to say...but she'd damn well better be ready to face the repercussions. Had she disrespected her boss instead of her teacher, she'd have been fired in a heartbeat, no questions asked. It's time for little Avery to learn what real life is all about.

Steve Collins said...

I'm so glad you folks have such faith in the ability of school administrators to decide when Americans should have free speech and when they shouldn't. Does it make no difference to you that a government official is basically punishing an American citizen for criticizing an official action? For the life of me, I don't get why anyone can find that acceptable.

Anonymous said...

Soooooooo... Bob Brown who fled the nobile post of liberal editorialist to become employed in a position where he feeds at the public teat thinks this is someone who thinks like him but he disagrees with her ruling in Donninger.

Me thinks Bobby needs to take off his beer goggles and take one position or the other. Repeating the Obama mantra doesn't always suit everyone.

Capitol Watchdog said...

I am all for freedom of speech; however, this seems like it turned into a power struggle between student and school (authority). I stand in agreement with Sotomayor's decision. The girl wasn't denied her right to free speech; she was denied her right to represent the organization she was disrespecting with her hateful speech. When the girl didn't get her way, her parents joined forces with her to override that authority. I have a friend who is a principal and his biggest challenge is having the parents stand behind his discipline of their children.

When an issue like this gets so much publicity it sets a precedent. In my opinion, the precedent this set is that the authority has the final word.

Steve Collins said...

Capitol Watchdog,
I urge you to read the Petition filed by Doninger's attorney recently, which details the behavior of the principal at Lewis Mills based on emails. Personally, I think Doninger was the more mature of the two in this clash.
And a wise leader would never have called attention to a two-week old posting on an obscure online journal in order to punish her. If I had been the principal, I would have laughed at what she wrote and moved on.
But, then, I have more respect for the First Amendment than I do for those who would toss it aside. It makes me cringe when a government official clamps down on free speech. It's not right.

Anonymous said...

"I'm so glad you folks have such faith in the ability of school administrators to decide when Americans should have free speech and when they shouldn't. Does it make no difference to you that a government official is basically punishing an American citizen for criticizing an official action? For the life of me, I don't get why anyone can find that acceptable."
Steve - What don't you get about this: Calling people "douche bags" is not acceptable behavior. Don't you also see your own hypocrisy in that you "will delete posts that are too mean-spirited," but you want Ms. Donninger to be able to call people names. Are we to have faith in you as a reporter that you are judge and jury as to what is mean-spirited? Name calling is not protected - that is what slander and libel are all about.

Concerned Conservative said...

This isn't about free speech, Sotomayor's jurisprudence or her Constitutional interpretation.
This about a judge with politcal aspirations siding with the education industry (one of the largest supporters of the Democrat Party). And by some twisted and rare coincidence she's right.

Avery Doninger was out-of-line, her mother was foolish but the typically arrogant administratiion handled the whole thing wrong. This is a sad case. I hope Avery comes out of this OK.

Steve Collins said...

I never said calling principals "douche bags" is a good thing. It's pretty stupid and juvenile, really, as Doninger herself admits.
The issue, though, is whether the government can punish citizens for expressing an opinion. I say no. Many of you say yes.

Anonymous said...

Steve, sorry bud, but you're totally wrong here. It's not the government punishing this girl. It's the school administrators of a public school, which is NOT government. If she did this at a private school she would still be subject to the same discipline. Public school does not equal government.

Steve Collins said...

Public schools are not part of the government? That's a new one.

Anonymous said...


I cannot believe I'm agreeing with you on this one. There is no doubt that Ms. Doninger's comments were rude and inappropriate, however that is not the issue in this case. What is at issue is that the Constitution's First Admendment expressly prohibits any governmental action abridging freedom of speech. This was not an abstract case of someone painting a picture of Brittney Spears giving birth to a wolly mammoth and calling it artistic speech. This was not a case of someone buring a flag and calling it political speech. This was written word posted in a private forum, much like I'm doing now.

If Doninger had printed fliers showing her principal on a box of Massengil and posted them on student's lockers, the District's actions may have been warranted. However, in this case, the only audience exposed to this message were those who voluntarily visited her page. These were not comments that were designed to appeal to purient interests, incite violence, or create mass panic (fire in a movie theater, anyone?) Rather this was a high-school kid upset with school administrators...who hasn't been there?

To those legal scholars commenting on here that if someone called their boss these names they would loose their job, I agree... if you work in the gulag. Again, you must look at the intent of the speaker, the content of the message, and the audience that is exposed to, or influenced by the speaker's words. If I go home an type on Facebook that my boss is like working for Kim Jong Il and that my company policies rival those of Chairman Mao, I'm pretty sure my HR department would either
A.) Agree
B.) Chuckle
C.) Determine if my comments divulged proprietary info and impacted shareholder value
D.) Send my boss and I to Civil Treatment class, together.

Ms. Doninger didn't publish her comments in the school newspaper (those CAN be censored, per established case law,) she didn't print them on a t-shirt (which could be dress code violation,) she didn't wear a black arm-band to school in support of her cause (case law, legal.)She typed a note on her blog. At home. It's shameful that she uttered the words, but it's a miscarriage of justice that our courts failed to protect her rights...

Anonymous said...

Come on Steve, there's a big different between a mayor/police ("government") punishing a student, and a school principal punishing a student.

Anonymous said...

The government didn't punish Ms. Doniger...she just lost her position as class secretary because of her obvious disdain and disrespect for authority (the same way she would lose her job in the real world for having the same poor ethics)...a valuable lesson.

Steve Collins said...

Yeah, that's a great lesson. Express your opinion and get banished from student government. And, by the way, kids, we don't give a damn who you elect because democracy, too, is a sham in public schools.
Sorry, but I love what America stands for too much to stand by while our rights are trampled.

Concerned Conservative said...

This isn't about free speech. This is about a minor being crude and rude to the people supervising her.

If this was a private company, this Sotomayor probably would have sided against the company for the "free speech".

As I stated, this isn't about free speech, Sotomayor's jurisprudence or her Constitutional interpretation.
This about a judge with political aspirations siding with the education industry (one of the largest supporters of the Democrat Party).

Matt from Plymouth said...

Does anyone know of the history between this student and the administrator she referenced in her post? I would have to believe this transgression is one in a long line of needles she used to poke at the offended party(ies).It was simply the point where the adminstrator said enough is enough.

What has occurred is a punishment that resulted in the loss of a privilege of being a school officer. She was not tossed from school. Does anyone have a problem with the punishment if it occurred in school? If not, why? The words are the same the only difference is the location of statement.

When I was growing up and if I called my Dad a douche bag and he took away my car privileges should it be turned into a federal case? He infringed upon my right to free speech,correct?

Anonymous said...

"Express your opinion and get banished from student government."

Ms Doninger is entitled to her opinion...hell, let her shout it from the rooftops! It's her right. But then, don't turn around and take away the school's right to choose for their student government the kids with the highest ethics and morals to represent the student body...that's their right.

Steve Collins said...

Questioning authority is one of the acts of students with the highest ethics and moral. Sucking up to school administrators shouldn't be the criteria for a slot in student government.
As for the analogy about calling your dad a douche bag, I have no problem with him snatching away the car keys and otherwise penalizing an impertinent teen. That's his job as a parents. It's not the job of a principal to monitor online blogs and punish students who criticize him. I have a real problem with government officials putting themselves above the First Amendment. The right to free speech is so fundamental that it was the very first thing that those who founded this country enshrined in the Bill of Rights. Some penny ante principal taking home a government paycheck shouldn't be able to put himself ahead of that right.

Matt from Plymouth said...

It is the duty of the administrator to hold petulant students accountable for their actions. Technology in this case has blurred the line when something bleeds over from personal to public(school).

If the students states the adminstrator is a douche bag to her friends after school it's over. However when a post sits on a website for two weeks and the blog spreads around the school like a virus and the post becomes a disruption. It becomes the equivalent to hanging "The Principal's a Douche Bag" in the hallway.

Anonymous said...

"Questioning authority is one of the acts of students with the highest ethics and moral."

If she had questioned authority...confronted the teacher she had an issue with face to face to discuss the problem - highest ethics and morals...going on a public forum and calling the teacher a douche bag - definitely NOT highest ethics and morals.

cseguin said...

As a law student and voracious reader of Supreme Court history, there were a couple of points I wanted to make:

@ 11:35 pm: Actually, she's had a very small amount of decisions overturned on appeal. Newsweek did a review of her opinions based on a Lexis (legal database) search; she has written 232 opinions in total. Only 5 of her decisions were appealed to the Supreme Court, and of those, 3 were overturned. So, to be accurate, only 3 of 232 opinions were actually overturned. I know Rush said that it was something like 80%, but I'm not sure where he got that number.

@ Concerned Conservative: I understand that there's a political process whenever a Justice (or Cabinet member, or anyone) is appointed. However, I think you're giving interest groups far too much credit in how much power they have in influencing the choice of a Supreme Court Justice. In my readings on the topic of Supreme Court nominations, it's clear tha an interest group (like the education sector) wouldn't have a whole lot of power in helping a judge rise through the ranks.

As to the rest - sometimes judges sign onto opinions that they later regret. Maybe this will be one of those opinions that Judge Sotomayor regrets in the future. Being one of those people who likes reading case law, I know that there's a lot of complicated case law out there about what speech is protected, but I also think that one must be very careful in limiting free speech, because of the importance of the freedom.

I'm pretty conservative, but there's a point when the all-out battles should be saved for another day. It's clear at this point that she's going to get confirmed. Despite any disagreements with opinions she's written in the past, she's smart and well-qualified, and will probably be very close to Souter in the role she'll fill on the Court.

Sorry , but .... said...

Steve is CORRECT on this one ....

Steve Collins said...

1:23 -- It had to happen someday.

AnonymousWestconnStudent said...
This comment has been removed by the author.
Anonymous said...

WestConn - as the 9:15PM poster last night, I can say that the Tinker case was exactly what I was speaking to.

Good work!

Anonymous said...

For the first time I can remember, I agree with Steve. (Damn, that was hard to type.)

メル友募集 said...

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