Odd Clauses Watch: Cars 2, Knighthood, and the Constitution
A Midwife's Lessons from Her Patients

The First Amendment and Student Speech Online

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

Team_avery A former Connecticut high school student punished for speech critical of school officials on her public Internet journal has asked the U.S. Supreme Court to hear her appeal. If the Supreme Court takes Avery Doninger’s case, it could offer much-needed guidance on when or whether school officials can punish students for online speech created off campus.

Doninger, the former class secretary of Lewis S. Mills High School in Burlington, became upset with Principal Karissa Niehoff and Superintendent Paula Schwartz in 2007 over the cancellation of a proposed student event called Jamfest. In an online message, Doninger referred to Niehoff and other school officials as “douchebags.” As a result of the message, Niehoff barred Doninger from running for re-election for student office. Later the principal also prohibited students from wearing “TEAM AVERY” T-shirts.

Doninger sued in state court, contending that the principal violated the First Amendment by punishing her for off-campus, online speech and for censoring the T-shirts. The defendants had the case removed to federal court.

In a protracted battle in the lower federal courts, the 2nd U.S. Circuit Court of Appeals sided with school officials on both the Internet free-speech claim and the T-shirt issue. The 2nd Circuit ruled that the principal and other school officials were entitled to qualified immunity.

4454 Now Doninger takes her case to the high court. “This case presents important and compelling first amendment issues which impact millions of students and thousands of school officials,” reads her cert. petition in Doninger v. Niehoff.

The petition points out that the 2nd Circuit’s decision conflicts with a pair of en banc decisions issued last month by the 3rd U.S. Circuit Court of Appeals —Layschock v. Hermitage School District and J.S. v. Blue Mountain School District. In those decisions, the 3rd Circuit ruled that school officials exceeded their authority in punishing students for off-campus, online speech that did not cause a substantial disruption.

The petition adds that school officials, students and others need guidance in this area of student online speech: “The lack of guidance by this Court to address students’ internet speech, or indeed any kind of off-campus speech, combined with school officials’ inflated fears of school violence, have resulted in improper punishment of many students for otherwise protected off-campus speech.”

Tshirt from Cafe Press.