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.

In this case, the fundamental question is whether the plaintiff's blog post was sufficiently disruptive to constitute an action that the government might legitimately sanction.

Here is the blog post, as quoted in the decision:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is the letter we sent out to parents.

The post then reproduced the email that the Student Council members sent that morning. The post continued:

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.—

Avery then reproduced an email that her mother had sent to Schwartz earlier in the day concerning the dispute.

The court decided that this was disruptive and thus fair grounds for government sanction and not subject to First Amendment protection. Their decision relies on three factors:
1. The language was offensive, and would incite offensive communications by students and parents to the school.
2. The explanation that the event had been canceled was misleading, and the confusion created by that misleading information might be disruptive to the school.
3. No showing of actual disruption is required - only the potential for disruption.

I disagree with the first two of these three factors.

I don't think this language (douchebag) was unreasonable in the context (a personal blog). People use language like that on blogs to express frustration with government policies all the time. This does not mean that everyone who reads these blog posts will have an uncontrollable need to be similarly expressive in communicating directly with the policy makers in question, or that bloggers should be held responsible if they do. A blog is a context where people express themselves freely. A letter to a school is not. People know the difference, and those that don't are responsible for their own behavior. In this case I'm assuming from the context of the decision that the actual example letter used here was perfectly reasonable and polite. That fact undermines this conclusion of the court.

I also don't think the explanation that the event was canceled was misleading under the circumstances explained in the decision. There seems to be a factual disagreement between the two witnesses here but the blog post clearly explains that there is a possibility that it will be rescheduled at a later date. The court is splitting hairs about the meaning of the word "canceled."

But neither of these things really matters. Even if the student did directly advocate that offensive letters be written and did intentionally mislead readers about the facts of the situation, this decision still reaches a conclusion which completely contradicts the purpose of the First Amendment and is a serious threat to the legitimate exercise thereof.

The real problem with this decision is that the sort of disruption that the court fears in this case is merely the disruption caused when government officials have to stop doing what they are doing and respond to public outcry about their decisions. We're not talking about riots here. We're not talking about inciting people to commit crimes. We're merely talking about the risk that the public outcry would have to be addressed, and addressing it takes time away from other important tasks.

To quote the court:

Avery herself testified that by the morning of April 25, students were “all riled up” and that a sit-in was threatened because students believed the event would not be held. Schwartz and Niehoff had received a deluge of calls and emails, causing both to miss or be late to school-related activities. Id. at 206. Moreover, Avery and the other students who participated in writing the mass email were called away either from class or other activities on the morning of April 25 because of the need to manage the growing dispute, as were Miller, Hill, and Fortin. It was foreseeable in this context that school operations might well be disrupted further by the need to correct misinformation as a consequence of Avery’s post.

Further:

Avery’s conduct posed a substantial risk that LMHS administrators and teachers would be further diverted from their core educational responsibilities by the need to dissipate misguided anger or confusion over Jamfest’s purported cancellation.

We live in a democracy! The idea that government officials might have to respond to public outcry when they make unpopular decisions is a fundamental consequence of operating an open, democratic society, in which people have the right to express their views. A democracy is made up of people, and therefore it is messy. Sometimes people are going to get angry when they don't like something that the government has done. Sometimes they aren't going to be polite or constructive in expressing that anger. Sometimes they might be misinformed or confused about official policy and government officials will have to stop and take the time to correct them. That is the reality of living in a free society, and the founding fathers understood that reality when they crafted the First Amendment. The First Amendment protects the people's expression of their views, regardless of whether or not they have all of the facts exactly right and regardless of whether or not they are polite about it.

To allow the government to take the position that the mere fact that they have to respond to public outcry about their decisions is sufficiently disruptive to justify sanctioning people who engage in that outcry, is to completely eviscerate the First Amendment. At the very least, it imagines that the government might legitimately sanction any protest which is not precisely accurate as to the facts or which is not perceived to be polite and constructive. Frankly, in my experience I have not known any public outcry about government policy which met both of these strict criteria.

If our democracy is to function at all, and if our freedom to petition the government is to function at all, we must make room for positions that are both inaccurate and impolite, and the government must accept that they will have to take the time to respond to people who are both confused and angry about their policies. The alternative that this decision requires is completely antithetical to a free society, and that is why this decision is so dangerous.

No one who agrees with this view should be appointed, for life, to the highest court in this land. That is simply not acceptable.

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