Troubling is how the Doninger opinion applied Tinker’s speech-protective standards to regulate all off-campus expression so long as it might be deemed “reasonably foreseeable” that such expression would find its way to campus and then might cause some kind of “substantial disruption,” which as applied in this case is synonymous with any disruption, however insubstantial or however caused. The opinion seemed to equate “substantial disruption” with student complaints to school officials, who could have readily made a general statement to the student body to clear up any misimpressions.
True, Sotomayor did not author the opinion. And true, judges tend to be less demanding when they join a judgment then when they write an opinion. That said, had Sotomayor approached the Doninger case as she approached Quattrone, Papineau and Campos, the applicable law would have been more scrupulously applied to the facts and the First Amendment claim would have been sustained.
