Punishment and Student Speech: Straining the Reach of the First Amendment

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INTRODUCTION

On April 24, 2007, Avery Doninger referred to officials at her high school as "douchebags" on her private blog. (1) Finding little humor in the reference, the school officials responded by barring Doninger's run for a position on the student council. (2) Doninger challenged the school's decision, alleging that the First Amendment protected her speech and limited the extent of her punishment. (3) The U.S. District Court for the District of Connecticut rejected both claims after finding that the school could suppress her "uncivil and offensive" speech (4) and that the "scope of ... punishment lay within [the school's] discretion." (5) In a panel opinion joined by then-Judge Sotomayor, the Second Circuit upheld the lower court's ruling that the speech was unprotected but declined to address the scope of the school officials' discretion to punish Doninger. (6) Instead, the court noted that, "given the posture of this case, we have no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns." (7)

The "constitutional concerns" referenced in the Second Circuit's opinion present novel questions about the First Amendment's application to student speech. Although the Supreme Court has emphasized consistently that school officials deserve deference in regulating student speech, (8) the Court has not decided whether deference extends to a school's choice of punishment. Supreme Court cases evaluating student speech under the First Amendment have risen and fallen on the suppression issue; that is, the Court has ended its inquiry after determining whether the speech was protected or not. (9) Recent Court of Appeals decisions, including Doninger, have gone beyond the Supreme Court's precedent and created uncertainty about whether courts can use the First Amendment to limit the extent to which schools punish students for their unprotected speech. (10) These cases not only signal an unprecedented level of judicial scrutiny, but also invite a reexamination of the degree of deference courts owe school officials.

Punishment implicates First Amendment values when it induces self-censorship. (11) Unwanted deterrence of valid speech grows when the scope of First Amendment protection is unclear, as is often the case in school settings where the margin of protected speech is particularly blurred. (12) Although the Supreme Court has not examined the issue of punishment in the context of student speech, it has engaged in analogous inquiries in two other areas of First Amendment jurisprudence: defamation and obscenity. In defamation actions, the Court has held that the First Amendment bars the imposition of punitive damages in some circumstances because an award of punitive damages may cause media self-censorship. (13) In obscenity actions, however, the Court has declined to use the First Amendment to limit liability. (14) It remains to be seen where the Court will place student speech between the divergent, yet not necessarily conflicting, strands of defamation and obscenity cases. This Note argues that courts should follow the Supreme Court's reasoning in obscenity cases by refusing to scrutinize the extent of school punishment of unprotected speech.

Part I examines the two lines of cases--defamation and obscenity--in which courts have assessed whether the First Amendment limits the magnitude of punishment of unprotected speech. This Part then highlights recent lower court decisions that note the constitutional concerns associated with punishment of student speech. Part II considers whether courts should adopt intermediate scrutiny or a form of rational basis review in examining school disciplinary measures under the First Amendment. Finally, Part III argues that courts should not construe the First Amendment to limit the extent to which a school may punish unprotected student speech.

I. THE FIRST AMENDMENT FRAMEWORK FOR PUNISHMENT

A. …

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