Decius wrote:
This post links to the Doninger decision, joined by Obama Supreme Court nominee Sotomayor. I think its a very dangerous decision that represents a view of the Constitution which runs counter to its intent.

I oppose Sotomayor's nomination to the Supreme Court because of this decision. The decision was not written by Sotomayor, but she joined in it, so she has to accept responsibility for the position it stakes out, as does Loretta Preska who was on Bush's Supreme Court short list. Its possible that the decision does not actually reflect Sotomayor's views today, but as it is only a year old, that seems a bit far fetched. If Sotomayor can't stand behind this decision, that will need to made clear in the confirmation process. Otherwise I must oppose her nomination, FWTW.

The First Amendment protects your right to petition the government for a redress of grievances. It does not, however, give you the right to disrupt other lawful activity in the course of your petition. An example might be hosting a sit-in in the middle of a busy public road without a permit. The police can rightfully arrest you for that. Its not your ideas that are at issue, but the fact that you are obstructing traffic. Your acts of expression can leave the realm of protected speech and enter into the realm of action which might be reasonably prohibited by the government.

Before opposing the court decision, it is worthwhile to look at what the alternative ruling would have meant.

First, the only consequence Doninger faced was that the administration refused to endorse her for Secretary. Apparently this is part of the school handbook - officers have to be endorsed. They did this after she mounted a somewhat successful campaign to waste their time. Student council is an extracurricular activity, and extracurricular activities are treated differently by the court - presumably because students are not forced to endure them.

Had the court ruled in Doninger's favor they would have been forcing the administration to endorse a student for a position of working with the administration after she had engaged in behavior to deliberately hamper their ability to get their job done.

Second, the court explicitly stated that this ruling offered no opinion on any other sort of administrative action or punishment. Doninger did not get suspended, she was not removed from the offices that she held, and there was no academic consequence.

Basically, because this relates to an extracurricular activity, her removal from a student council office does not constitute government sanction. See below:

19 In this way, the instant case bears similarity to Lowery v. Euverard, which involved a group
20 of high school football players who were removed from the team after signing a petition expressing
1 their hatred of the coach and their desire not to play for him. The players lodged a First Amendment
2 claim and the Sixth Circuit determined that the relevant question under Tinker was whether it was
3 reasonable for school officials “to forecast that the petition would disrupt the team” — meaning that
4 the petition might foreseeably frustrate efforts to teach the values of sportsmanship and team
5 cohesiveness through participation in sport as an extracurricular activity. Lowery, 497 F.3d at 593,
6 596. The court noted that the players had not been suspended from school or even prevented from
7 further criticizing the coach: “[T]hey are free to continue their campaign to have Euverard fired.
8 What they are not free to do is continue to play football for him while actively working to undermine
9 his authority.” Id. at 600 (emphases omitted). The court held that there had been no First Amendment
10 violation.

Similarly, Doninger is free to continue her campaign to waste administration time, they just will not give her their endorsement to work on further event planning with them. Had she been suspended this would have been a different matter.

RE: Why the Doninger decision is dangerous and Sotomayor must not be confirmed.