By Cathie Fields, Senior Associate
and Mark Bresee, Partner
Irvine Office
and Mark Bresee, Partner
Irvine Office
In April 2011, the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) upheld the discipline of a high school student based on an off-campus internet posting. (Doninger v. Niehoff (2d Cir. 2011) 642 F.3d 334.) The student petitioned the U.S. Supreme Court for review of that decision. This week, the Court declined to review the Second Circuit’s ruling.
Avery Doninger sued Lewis Mills High School administrators for violating her First Amendment speech rights when they precluded her from running for class secretary after she referred to school officials as “douchebags” in an Internet blog post she wrote on an off-campus computer. Doninger’s criticism of school officials was related to the scheduling of a concert known as “Jamfest” in the school auditorium. Doninger and other students had also used LMHS's computer lab to gain access to the email account of the father of one of the students and sent a mass email about Jamfest, inaccurately reporting the concert had been canceled and urging people to contact the school office. The school’s email policy restricted Internet access or email using accounts other than those provided by the district for school purposes.
After school officials learned about the blog post, Doninger was not allowed to run for a senior class officer position, but was permitted to retain her current position as Junior Class Secretary. She was not otherwise disciplined for her blog post. A federal district court concluded Doninger's First Amendment rights were not violated “when she was told that she could not run for class secretary because of an offensive blog entry that was clearly designed to come on to campus and influence fellow students.” The Second Circuit, reviewing that decision on appeal, agreed with the district court that any First Amendment right allegedly violated was not clearly established, so that all of the defendants were entitled to qualified immunity from Doninger’s lawsuit.
The court also concluded “it was objectively reasonable for school officials to conclude that Doninger's behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative—a representative charged with working with these very same school officials to carry out her responsibilities.” Thus, it was significant in this case that (1) Doninger’s blog post resulted in on-campus disruption, and (2) she was acting in the capacity of a class officer, rather than as an individual student.
When the U.S. Supreme Court denies certiorari, the lower court’s decision stands. Denial of certiorari is not a judgment or decision on the merits of the lower court’s ruling and cannot be relied on as an indication of the Supreme Court’s prospective opinion on a similar issue. It simply means, for whatever reason, the Court has declined to consider that particular case.
The law applying the First Amendment to students’ off-campus Internet activity continues to evolve unevenly. The availability to produce and transmit instant, far-reaching messages from any computer with Internet access tends to blur the distinction between on- and off-campus speech. Federal courts have reached differing conclusions related to student discipline for these activities. Many states are attempting to address these concerns through legislative action. At some point, the Supreme Court likely will review these issues as they relate to the First Amendment. However, we should not expect that ruling to be imminent or definitive. And California law may provide greater protections to students who engage in on-line, off-campus expressive activities. We will continue to provide updates as these issues develop.
