In an earlier post, Professor Randazza expressed the view that a 2008 decision by the Second Circuit Court of Appeals, of which Supreme Court nominee Sonia Sotomayor is a member, demonstrates that Judge Sotomayor is a “censorship goon.”
Respectfully, Professor, I disagree.
To be clear, I agree that the court’s ruling was wrong. But I disagree that this decision alone means that Sotomayor is no friend of the First Amendment.
You can read the court’s opinion in Doninger v. Niehoff, et al. for yourselves, but the gist is that student Avery Doninger was disqualified by school administrators from running for class office because of statements she posted on her personal blog calling the school district’s superintendent a “douchebag” and encouraging people to call the superintendent to express support for holding a school event.
The right to free speech embodied in the First Amendment is not a right to speak without consequence. If you tell your girlfriend, yes, your ass does look fat in those jeans, the consequence is likely to be no nookie for at least a month. If in a job interview, you say that your goal is to spend as little time working as possible and intend to surf the internets at every opportunity, you consequently aren’t going to get the job. If you set up an anti-semetic Facebook page that spews hateful racism and encourages violence, you run the risk that the Facebook people are going to tell you to piss off.
The problem arises when it’s the state that’s doling out the consequences.
Public school settings present a particularly thorny First Amendment landscape, where the balance between the free speech rights of students are often in awkward tension with the legitimate interests of schools to maintain an effective learning environment. If a student stands up in the middle of Algebra class each day and spends 10 minutes screaming “fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuck, fuuuuuuuuuuuuck” a the top of his lungs, I think we can all agree that while it might be funny the first time, it’s speech that is disruptive, and that, well, there should be some kind of consequence – even if that consequence technically transgresses the student’s First Amendment right to yell “fuck.”
In contrast, what the school failed to demonstrate, in the Doninger case, is that what Doninger wrote on her personal blog actually had the effect of disrupting the school (or, was so likely to do so that the school had no alternative to imposing discipline). That school administrators got some annoying phone calls and emails as a result of the blog (and a related email the students sent out) is insufficient to outweigh the likelihood that student free speech would be chilled as a result of banning Doninger from running for school office. So, I think, Sotomayor and the other members of the Second Circuit panel got it wrong.
That said, First Amendment cases that involve public schools are almost never easy, and very, very often are the result of the failure of the adults involved to find a solution to the problem that doesn’t involve state-imposed punishment. Doninger’s parents could have stepped in, and worked with their daughter to teach her that there are more effective ways to communicate about the issue. School officials could have used the controversy as an occasion to teach about the First Amendment, and perhaps convey the important life lesson that just because you have the right to say something, or say it in a particular way, doesn’t means it’s wise or productive to do so. Instead, the adults involved – parents and teachers – abdicate their responsibilities to courts who are ill equipped to mediate the growing pains of kids and make decisions about constitutional limits in the context of what should have been a parent-teacher conference.
So, while I agree that the Doninger decision was wrongly decided, I think its a poor basis for calling the game on her nomination. Initial reviews of her judicial record, including one done by the First Amendment Center, indicate that while there’s some cause for concern (the Doninger decision), there are other reasons to support her nomination based on cases involving free speech, free exercise, and separation of church and state – even if her record on the whole provides too few concrete examples to be able to predict how she’ll rule on many constitutional issues.
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May 30, 2009 at 6:07 am |
[...] Sotomayor’s nomination: here is an honest analysis of one of her decisions that I didn’t like: The right to free speech embodied in the First Amendment is not a right to speak without [...]
May 30, 2009 at 8:01 am |
Wow, I am pwned. But, here’s my beef with the Doninger decision:
I don’t think that anyone who channels their inner Eric Cartman while on the bench should be a Supreme Court justice. Obama could have done better and he should have.
May 30, 2009 at 1:23 pm |
Well, the source you’re quoting from there mis-characterizes what the Court actually said in it’s decision regarding “proper respect for authority” though. Here’s the full quote from the decision:
For those of us given to dissent, we cringe when we hear the words “proper respect for authority.” But, I think it’s a lot to ask school administrators or teachers to manage hundreds of kids – especially teenagers – in the absence of a structure that has within it some kind of authority delegated to the adults in the room. In reality, it actually IS the job of teachers to educate about what are productive ways to petition an authority for redress, and what are unproductive ways to do that.
It’s also worth noting that the student in this case was kinda a little shit about the whole thing, her free speech rights aside. She told everyone that jamfest had been canceled, and then tried to organize a sit in. Which, would have been a fine way to dissent, except that it appears jamfest wasn’t canceled at all, and that Doninger lied about that point because she was enjoying being a rabble-rouser. She later admitted knowing the event wasn’t canceled.
It’s okay to be rabble-rouser, and to enjoy it, but if you do it based on a lie, one way or another, there are going to be consequences. I just think it’s important to keep in mind, with respect to kids, that we put schools and teachers in charge of making sure kids learn these lessons. If we ask them to do so without giving them to ability to fashion appropriate consequences, we’re kinda asking the impossible.
May 30, 2009 at 1:29 pm |
BTW – I’m not really advocating for or against Sotomayor here. I’m undecided about her. I just think this case isn’t a good argument against her.
June 19, 2009 at 9:19 am |
Well, her decision here is consistent with Tinker in an odd way. Remember that Tinker said that you do not shed your rights at the schoolhouse door. What she’s saying is that you don’t get them back on the way out, either.
Dumb decision, sure, but we all screw up on occasion. When judges do it, their mistakes are more visible. I get to ask for a rehearing, new trial, reconsideration, whatever. The judge doesn’t really have that choice.