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

You haven't posted in a while... :)

Here are my counterpoints to this line of argument.

1. My purpose here is not to defend Doninger's right to serve on the student council but rather to express opposition to the specific reasoning employed in this decision. Although I think its unlikely, it is possible that there is a legitimate path that gets you to excluding Doninger from participation, but path followed here is not legitimate. My principal point of concern with this decision is the notion that Doninger's blog post was not protected by the First Amendment.

2. I totally reject the idea that it is a waste of time for the administration of the school to have to listen to and respond to comments and criticism from students and parents who disagree with their decisions. I also totally reject the idea that Doninger's purpose was to waste the administration's time. As I previously argued, the expression of views by the general public toward public officials is a fundamental characteristic of political discourse in a free society. The government must make room for it and, more importantly, must respect it, as this is how democratic institutions work. The alternative here - that the people should not waste public officials precious time with their petty, misinformed, and insignificant opinions, is the hallmark of totalitarianism.

3. The court here strongly implies that although these sanctions have no constitutional implications, there might be other kinds of sanctions not considered here that do have constitutional implications. In your response you turn this implication into a counterpoint, arguing that things would be different if the student was suspended. This view must be considered in light of the fact that court is arguing that the blog post was not subject to First Amendment protection due to the fact that the operation of the school was potentially disrupted. I'll admit that my knowledge is not comprehensive, but as far as I know, what the court implies here is a novel view of the First Amendment. AFAIK speech either is or is not protected. There is no gray area here. If it is protected, it cannot be sanctioned at all. If it is not protected, it can be banned outright.

4. The school is a public institution and not a private club. Even though extracurricular functions are voluntary, the administration of the school cannot bar students from participating for any reason they desire. For example, the Boy Scouts of America bans homosexuals and atheists from participating. They can do this because they are a private institution. A school cannot similarly ban homosexuals or atheists from participating in the student government. The school cannot refuse to endorse student government candidates based on the legitimate exercise of their First Amendment rights. For example, if Doninger had called George Bush a "douchebag" on her blog in the context of complaining about federal government policy, the school clearly could not refuse her as a candidate based on the theory that this blog post reflected "poor citizenship." To do so would cast a pale over any student political expression, and this pale would be case by a public official operating with tax payer dollars and lawful authority. This is clearly barred by the First Amendment.

5. Once you eliminate disruption of the functioning of the school as a legitimate concern, (which I did in point 2) the only difference between the present circumstances and the circumstances imagined at the end of point 4 is that here the public officials being called "douchebags" are the very same public officials whose sponsorship is required for student council. I am not convinced that this difference is material. In fact, the risk of retaliation by government officials to expressions of dissenting opinion is, of course, greatest when we are talking about the same officials whose decisions are being criticized. The Lowery v. Euverard case the court (and you) quoted, which reached a similar conclusion as Doninger, is controversial and was not unanimously decided. The dissent in that case presents numerous arguments which I think also apply to Doninger. The facts in both cases are similar.

6. Students have a First Amendment right to speak out about about government policies that they disagree with. This includes the policies of their schools. There are appropriate and inappropriate ways for school officials to respond to those expressions. The answer to bad speech is usually more speech - explaining the administration's position in light of careful consideration of student counterpoints. What is going on here, through a collection of different cases such as Doninger and Lowery, is the creation of a new policy which allows school officials to retaliate against students who express views that they don't like by systematically denying them access to certain "privileges." It is precisely this sort of retaliation that the First Amendment is intended to prohibit.

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