The First Amendment Doesn’t Mean You Can Say Anything You Want

For those looking for legal precedent to confirm that the First Amendment doesn't provide carte blanche when posting on line, they need look no further than Doninger v. Niehoff, — F.3d —-, 2008 WL 2220680 (2nd Cir. May 29, 2008). Doninger v. Niehoff will probably be cited several more times this year in the U.S. court system as people slowly begin to realize that just because the Web makes it easy to harass people, it doesn't mean you can do so without repercussions.

Avery Doninger will remember her senior year as the one spent learning what the First Amendment does and does not mean, probably better than she'd have learned in any civics class. In her junior year, frustrated with her school administration's actions pertaining to a battle of the bands contest she had helped organize, she took to LiveJournal, proclaiming the administrators were "douchebags" and encouraging students to contact the principal to "piss her off."

The school found the entry, and as punishment, prevented Doninger from running for Class Secretary her senior year. Rather than accept that maybe someone calling the administration "doucebags" might not be the right person to represent her class, she (with her mother as guardian), took her case to the courts, claiming that she was protected under the First Amendment.

The courts decided otherwise, even under appeal, pointing out that her blog post "created a reasonably foreseeable risk of substantial disruption within the school." It didn't matter that Doninger created the post on her own time off school property; it was directed at students at the school, involved school administrators, and had to do with a school event. Even my children's school has a code of conduct, and their school only goes up to fifth grade. The code of conduct extends to off-campus activities as well in terms of how they impact the students in school, and I'd expect that any violation of that code would involve discipline as well.

The First Amendment doesn't cover everything under the sun, and students protesting school administrators and employees carrying on about employers ought to take note. The Web isn't a stage for grabbing a megaphone and saying whatever you want, sure that the courts will protect you.