Attorney Jon Schoenhorn's Arguments in the Doninger Case at the Second Circuit

Over time, the Avery Doninger case has evolved from a draconian overreaction by narcissistically injured petty school bureaucrats to a discussion of the school district making poor use of taxpayers’ money by missing important teachable moments and wasting money on a lawsuit they should have avoided. On Tuesday, the important underlying issues of Free Speech, especially as it relates to the Internet took center stage as the case was heard before the Second Circuit of Appeals.

As a quick summary, last April, Avery Doninger, who was then Class Secretary of the Junior Class wrote a post on LiveJournal one evening at home where she used a derogatory phrase to describe members of the school administration based on their handling of a concern she and others were organizing at her school. The school administration responded by saying she could not run for re-election as Class Secretary and by refusing to honor the results of the election where she won as a write-in candidate. Avery and her mother have sued the school for violating her freedom of speech.

A full trial will not resolve this issue until after Avery graduates, so the Doningers sought a preliminary injunction. The case was moved to U.S. District court, where Judge Kravitz declined to grant a preliminary injunction. This decision has been appealed and was argued before the U.S. Second Circuit on Tuesday. I’ve been covering this case extensively for several months and details can be found in the Connecticut section of Orient Lodge.

The judges agreed to hear the case on an expedited basis, and added it onto their list of cases for Tuesday. However, the amount of time to present arguments was not set, and the hearing started off with a discussion of that. The judges agreed to give each side ten minutes to present their arguments. They asked Attorney Jon Schoenhorn, who represents the Doningers how much time he wanted to reserve for rebuttal. He initially requested four minutes and the judges suggested that the rebuttal should be shorter, summarizing the points, and they agreed to three minutes.

Before Attorney Schoenhorn could start off with his prepared remarks, the judges peppered him with a barrage of questions. They asked if running for class office required administration endorsement. In the back and forth, Attorney Schoenhorn said that authorization might be a better word. There was then an exploration of the relief that was being sought, which included providing Avery with the opportunity to speak at commencement. Was this a written rule? Was it a tradition? Attorney Schoenhorn illustrated how it was a tradition.

It was unclear where these questions were headed until the aspect of Hazelwood was brought up. In HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER, 484 U.S. 260 (1988), the Supreme Court found that school sponsored newspapers could be construed as speaking on behalf of the school, and as such, the school administration had the right to impose some limits on what was said. Does Hazelwood apply to speeches that elected student officials make at various events, including commencement? If so, what sort of limits are acceptable?

This is a different angle on the Doninger case that I haven’t seen explored before and is worth considering. It would seem as if this gets into issues of prior restraint and might be justifiable if the school administration made efforts to keep prior restraint within bounds, such as requesting to review what would be presented ahead of time. Yet this doesn’t address the issue of the school not validating the election results.

The judges then spent a bit of time trying to get a clear sense of what rulings Attorney Schoenhorn thought should apply in which cases. They asked a series of hypothetical questions. If students were producing an obscene magazine off campus as a weekend past time which they distributed at a local shopping center, and the school principal was told the name of the student, would the principal be justified in not allowing the student to run for class office since the student was not upholding pedagogical standards, was sexist, obscene, rude and a horrible role model? Attorney Schoenhorn argued that this would violate the student’s freedom of speech.

If the student unfurled a flag saying Bong Hits 4 Jesus at some event away from school and the principal heard about it and told prohibited the student from running for class office because the student was not the sort of role model that the principal wanted to see, would that be a violation of the student’s free speech? Attorney Schoenhorn argued that it would be.

While many of us might not like the idea of someone who produces an obscene magazine or on furling a banner proclaiming Bong Hits 4 Jesus away from school, giving the school administration that much latitude can produce a dangerous slippery slope. What if the student were Chelsea Clinton saying something unsavory about Barack Obama, would the school be able to ban her from further running for office? This came up later in the questioning of Attorney Thomas Gerarde who argued on behalf of the administration.

Based on the arguments, the judges attempted to find which ruling is controlling. Should it be Hazelwood? Should it be Fraser? In BETHEL SCHOOL DIST. NO. 403 v. FRASER, 478 U.S. 675 (1986), a student was suspended for delivering a speech full of sexual innuendo.

If Avery prevails and gets to speak at commencement, here speech there would be covered by Fraser. However, as Attorney Schoenhorn argued, you cannot use protected speech to ban school sponsored speech.

As the judges moved from the issues of Hazelwood and Fraser, they briefly looked at the issue of bright lines, slippery slopes and to what extent tests about content-based speech decisions may be subjective. The interesting part, at least for me, was as they moved to the on campus versus off campus discussion.

There was considerable discussion of Wisniewski v. Board of Education of the Weedsport Central School District, 06-3394-cv. The first aspect of Wisniewski was whether the off campus speech had a likelihood of coming on campus. The problem is that with speech on the Internet, it is persistent and searchable, and as such, it could be argued that virtually all speech on the Internet has a likelihood of coming on campus. Is it appropriate that anything said online could be used against you? This seems overly broad and raises many concerns.

While anything that is posted online could get back to school, Attorney Schoenhorn argued that this was not the intent of the Livejournal post. I would suspect there is a lot of posts online that could get back to school even though that is not the intent.

Yet with Wisniewski, there was an aspect of perceived threat and substantial disruption of the school. The argument of whether or not school administrators responding to questions from parents is a substantial disruption or a key part of their job was explored as was the topic of whether or not the blog post showed any chance of disruption, or if it was simply a related email that generated all the contacts. In fact, most of the contact discussed occurred before the blog post was even put online.

Another area that was confronted briefly was how ‘offensive speech’ is defined. At one point, one of the judges asked, “Are the courts going to now micromanage how offensive or not speech is?”

The judges tried to get a clear sense of what rulings should apply. Attorney Schoenhorn argued that for off campus speech, the only valid concern should be that of substantial disruption. For on campus speech, Fraser, Morse or Tinker could apply.

The judges again returned to how we understand the Internet. Attorney Schoenhorn argued that the Internet should be simply as a bigger soapbox.

One judge suggested that, “If students are free to say offensive things about administrators, chaos will rule, right?” Attorney Schoenhorn disagreed, citing Rate my teacher. The judge attempted to equate rate my teacher with a hypothetical “shoot my teacher”. However, it was pointed out that there is a profound difference there. One is about Free Speech. The other is about illegal conduct that would clearly create substantial disruption.

Slowly, Attorney Schoenhorn’s arguments came to an end. There were some final questions about whether or not certain things were factual. Judge Kravitz, in his ruling, questioned whether or not Avery’s blog post was accurate. Whether or not the accuracy of the blog post matters, which was also discussed, Attorney Schoenhorn pointed out that it was a question of semantics. Depending on how you define ‘cancelled’ the post may or may not have been accurate. Attorney Schoenhorn also pointed out that Judge Kravitz chose to assert the principal’s testimony about one event, even though it was contradicted by the testimony of several students.

The seven minutes that been allotted to Attorney Schoenhorn went beyond an hour and at 4:48, he ended his oral arguments.

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