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.”

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Contact Steve Collins at scollins@bristolpress.com