Mary-Rose Papandrea's blog

Earlier this week the Supreme Court handed down its eagerly awaited decision in FCC v. Fox.  In a 5-4 vote, the Court rejected Fox's argument that the Federal Communication Commission had violated the Administrative Procedure Act (APA) by failing to give sufficient justification for its new policy banning "fleeting expletives" on broadcast radio and television.

Although the administrative law issues raised in the case are interesting (namely, how much of an explanation an agency needs to give when it changes its existing policy), it is much more fun to try to figure out whether the Court would hold the fleeting expletives policy constitutional - or even whether the Court would uphold any part of the FCC's indecency regime. At the end of his opinion, Justice Scalia predicted that the Court will have to address this issue soon, and perhaps even in this very case when it comes back up to the Court.

Regulating Indecent Speech   read more »

A federal district court in Connecticut has granted qualified immunity to the high school principal and the school district superintendent who punished a student for calling school administrators "douchebags" on her blog.  Doninger v. Niehoff, No. 3:07-cv-1129 (D. Conn. filed Jan. 15, 2009).  This decision comes as no real surprise in a circuit that lately has proven hostile to student speech rights in the digital age, but it nevertheless demonstrates the need for greater clarity in the law governing this area.

CMLP's legal threats database contains a complete summary of the facts of Doninger v. Niehoff. In the spring of 2007, junior class secretary Avery Doninger was frustrated with the decision of school officials regarding "Jamfest," a yearly music festival that she had been planning. She wrote about her concerns in a Livejournal blog post, where, among other things, Doninger called school administrators "douchebags" and asked students and parents to call the school superintendent to complain in order to "piss her off more." When school officials learned about the comments Doninger had made online, they punished her by disqualifying her from running for class secretary during her senior year. In addition, they forbade her classmates from wearing "Team Avery" t-shirts on the day candidates for student office were giving election speeches.   read more »

One of the major issues facing schools is whether they have authority to discipline their students for speech on the Internet.  In an article I wrote that will appear in the December 2008 issue of the Florida Law Review, I argue that public secondary schools have virtually no authority under the First Amendment to punish students for online speech.  I decided to write this article after hearing about cases all over the country where schools punished their students for creating parody websites mocking their teachers or school administrators or for making offensive comments about school officials or fellow students on the Internet.  One of the more interesting cases arose in Connecticut, where the court upheld a school's decision to punish a student for calling school officials "douchebags" on livejournal.com.  Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).       read more »

School officials at Eden Prairie High School outside of Minneapolis punished 13 students after discovering photographs of them drinking on Facebook.com. As punishment, the students were banned from their sports teams or other extracurricular activities.

According to the Minneapolis Star Tribune:

Some parents are reportedly considering legal action because they view the school's action as too harsh. But legal experts say the area is muddy, because the mushrooming popularity of social networking sites is so new, challenges have yet to work their way up through the courts.

In the words of one student, the idea of school administrators nosing around social networking websites might be "creepy," but it is not necessarily unconstitutional. In this case, the school punished students for underage drinking, not their expression, and the athletes who were punished had signed a pledge not to drink as a condition of playing in the Minnesota State High School League. In addition, it is unlikely that the school violated the students' privacy rights by looking at pictures available to the public on the Internet.

It would be much more problematic if public schools tried to ban their students from using social networking sites altogether. Such a policy is not as unlikely as it may seem. Last spring, the University of Minnesota at Duluth announced a new policy barring all of its student athletes from participating in social networking websites such as MySpace.com and Facebook.com on the theory that the content of such websites placed the student-athletes and the school in a negative light.

If a university is banning its student-athletes from using social networking sites, a similar policy on the high school level is just around the corner.

As ridiculous as such a policy might sound, it is arguably constitutional under current case law. Several lower courts have held that students do not have a constitutional right to participate in extracurricular activities, and in 2002, the Supreme Court rejected a Fourth Amendment challenge to a public school rule requiring all students who participated in extracurricular activities to submit to random drug testing. See Pottawatomie County v. Earls, 536 U.S. 822 (2002). Based on these cases, it would be no small leap for a court to conclude that it would be constitutional for a public school to condition its students' participation in extracurricular activities on the forfeiture of their First Amendment rights.

This is not to say that such a policy should be constitutional, or that it would be a good idea. Banning students entirely from social networking sites in order to crack down on underage drinking and drug use would not prevent students from engaging in the unlawful activities and instead would simply cut them off from an essential forum for communication. And practically speaking, such a policy would be next to impossible to enforce.
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Last week a Massachusetts district court rejected a school district's effort to dismiss a novel student speech case, Bowler v. Town of Hudson, in which school administrators removed the Hudson High School Conservative Club's posters advertising its first meeting because the posters contained the website address for the club's national organization, which in turn contained a link to graphic videos on another site that depicted beheadings in Iraq. Perplexed as to how such a tenuous chain of references and links could warrant the removal of the posters? Well, so was the district court, which rejected the school's motion for summary judgment and allowed the case to go forward to trial.

Back in the fall of 2004, two students at Hudson High School ("HHS") in Hudson, Massachusetts formed a Conservative Club in an effort to provide a forum for pro-conservative views on campus. The HHS Conservative Club was affiliated with a national organization, the High School Conservative Clubs of America, whose slogan is "Protecting American Freedom, Faith, and Morality." Among other things, the group endorses Second Amendment rights, the "restoration" of Christian values to schools and government, and the closing of the nation's borders to all immigrants; the group is opposed to gay marriage, affirmative action, and abortion.

The Supreme Court has once again cut away at student speech rights. In its recent decision Morse v. Frederick, the Court held that a high school did not violate the First Amendment when it suspended a student for displaying a 14-foot banner proclaiming "Bong Hits for Jesus" during an Olympic torch parade.   read more »

In Morse, the Court declares that public schools can censor speech relating to activities "illegal to minors." In addition, and perhaps most importantly, the Court holds it is appropriate to defer to school administrators' "reasonable" interpretations of what the speech at issue means. Chief Justice Roberts, joined by four other justices, concludes that although the banner's message was offensive to some and merely cryptic or amusing to others, it was reasonable for the principal to conclude that the statement "bong hits for Jesus" promoted illegal drug use.

Yesterday Massachusetts' highest court rejected the Boston Herald's motion to reconsider its decision in a defamation case brought by Judge Ernest Murphy.  A month ago the Massachusetts Supreme Judicial Court had voted unanimously to affirm a $2.1 million jury verdict against the Boston Herald for its publication of a story in which it quoted Superior Court Judge Ernest Murphy as saying that prosecutors should tell a 14-year-old rape victim "to get on with her life and get over it."

Given that the SJC failed to understand the actual malice standard in its original ruling, it is not surprising that the court refused the motion for reconsideration. Although it seems clear that David Wedge, a Herald reporter, was sloppy in his reporting of Judge Murphy -- for example, he incorrectly reported that a witness had "tearfully" taken the stand when that witness never testified at all -- Judge Murphy's evidence that the Herald had published his "tell her to get over" comment with actual malice was woefully inadequate. Indeed, the fact that at least one prosecutor testified that he told Wedge that the judge had said "tell her to get over it" all but demolishes Judge Murphy's argument that the Herald published the story knowing that it was false, or with reckless indifference to its truth or falsity.  read more »

The Boston Globe reported today that a pediatrician settled a medical malpractice case in the middle of trial when opposing counsel revealed that she had discovered the doctor's anonymous blog in which he had provided "unvarnished" commentary on the lawyers, jurors, and defense strategy of his case.

The plaintiff's lawyer was cross-examining Dr. Robert Lindeman in a case involving the death of a 12-year-old boy when she asked him if he had been blogging under the assumed name of "Lindeman Flea." Dr. Lindeman admitted that the blog was his, and by the following day, he had agreed to settle his case, no doubt due to concerns that the plaintiff's lawyer would present some of the material on his blog to the jury.

The Globe article notes that Lindeman's blog provided details of his meetings with jury consultants who told him, among other things, that the jurors would ultimately base their decisions on their view of his character.

Dr. Lindeman has since removed all content from his blog.

The Islamic Society of Boston has dropped its lawsuit against 16 defendants - including The Boston Herald and Fox 25-TV - for allegedly defaming the organization by linking it to terrorist groups.  According to the Boston Globe:

Both sides in the lawsuit claimed victory yesterday, the Islamic Society because the deal also brought to an end a related lawsuit that threatened construction of a mosque in Roxbury and the defendants because the Islamic Society never collected a penny for alleged libel from the media organizations and a Jewish group. 

The defendants offered nothing in return for the dismissal of the case, lending credence to their claims that ISB dropped the lawsuit because documents demonstrating the mosque's links to suspected terrorist organizations were about to come to light during the discovery phase of the litigation.

A federal district court judge in Seattle recently denied a student's motion for a preliminary injunction challenging his high school's decision to suspend him for posting on YouTube a video presenting his teacher in an unflattering light. This case raises a whole host of fascinating First Amendment issues concerning student free speech rights in the electronic age.   read more »