New Cases Test Landmark Ruling on School 1st Amendment Rights

, The Connecticut Law Tribune


Mary Beth Tinker
Mary Beth Tinker

One issue the high court hasn't weighed in on is what constitutes the "schoolhouse gate" in the world of online college courses and social media. Professor Patrick File, who teaches communications law at Quinnipiac University, said the answer to that important question remains to be seen. For now, he said, the Tinker case is "the standard for freedom of student speech in media and constitutional law" and continues to be the final word.

File said he learned about Tinker's national speaking tour through a Twitter feed, and he contacted her directly to see if she would make a stop in Hamden.

"It's a pretty rare opportunity to get a historic figure like Mary Beth Tinker to appear," File said. "Having her come to the school will be really useful as an educational exercise because it helps the students to see that these are real people who were involved in making law."

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File and others pointed out that the majority of student free-speech legal issues in Connecticut have been resolved short of litigation. Only one Connecticut case has been petitioned to the Supreme Court for review since Tinker.

That case, Doninger v. Niehoff, involved free speech on the Internet and stirred a lively debate on what schools can do about student speech. Avery Doninger was a student at Lewis Mills High School in Burlington in 2007, and was running for an elected position as senior class secretary. She used a personal computer to post a comment criticizing school administrators for canceling a battle-of-the-bands type event.

In her missive, Doninger referred to the administrators as "douchebags." The school responded by prohibiting her from running in the election.

Doninger and her mother sued. In what was considered a pioneer ruling on an Internet free-speech case, U.S. District Judge Mark Kravitz ruled against her claim and the U.S. Court of Appeals for the Second Circuit affirmed. But the part of the argument on whether speech that is made from a home computer is protected under Tinker was never heard. In 2011, the U.S. Supreme Court declined to consider that question.

Doninger's lawyer, Jon Schoenhorn, said the Supreme Court has still not looked at the issue, "but it likely will at some point."

Even Kravitz, who is now deceased, had compelled the higher courts to revisit the question "on boundaries of free speech for students. These legal issues are a lot harder in the Internet age," he said.

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