Posts Tagged ‘First Amendment’

In what seems to be a disturbing trend, yet another high school student was punished by school officials for comments made on the internet about the school officials. In Doninger v. Niehoff, the 2nd District Court of Appeals held that the school officials were within their rights to discipline a student for comments made on her blog about the school officials by prohibiting her from running for student council in the next election (she was already an officer). The rational was the “disruption” the comments could cause at the school. The comments at issue were (1) calling the school officials “douchebags,” and (2) encouraging students to email the officials to protest the school’s cancelling of an annual event which she worked very hard to organize. This hardly seems like she was attempting to incite a riot or promote criminal activity. What it sounds like to me is ineffective school officials flaunting their authority and striking out at a high school student – for the simple reason that they could. The discipline was not an attempt to prevent a disruption, that was caused when the school officials cancelled the event, the  so-called discipline was simply an act of revenge.

What is most troubling in this case is that the three-judge panel (which incidentally included Sotomayor) actually stated: “vulgar or offensive speech — speech that an adult making a political point might have a constitutional right to employ — may legitimately give rise to disciplinary action by a school.” Clearly, the judges are aware of the First Amendment. Unfortunately, the judges believe that minors who attend public school have no rights under it.  Why would minors be treated any differently than adults in this type of situation? It is the speech, not the speaker that should be the focus of the inquiry.

What is the real lesson here? In this case, what the school officials have taught these students is that the government (school officials and the court system) can arbitrarily ignore the rights granted to individuals in the Constitution and that the best way to handle disagreements is to get revenge. The students here are learning that there is no right of free speech for them. They are learning that there really is a big brother. I’m ashamed of the school officials and disappointed in the judges. This girl should be given an award for caring so much about school events and school government that she was willing to speak out passionately and seek redress for what she viewed as an unfair act by the officials. After what she’s been through, I doubt she’ll believe she can make a difference. (Either that, or she’ll wind up going to law school.) I think the irony that the punishment was to prevent her from participating in school government is lost on the school officials and judges in this case. Maybe they should take a remedial class in Government 101.

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In the case of Stone v. Paddock Publications, 09 L 5636 (Cook County, IL 2009), an Illinois court issued a subpoena to obtain the identity of an anonymous poster, but then indicated that the poster would be kept anonymous, for a while anyway. This case involves false and offensive postings made to and about a 15 year old boy on the internet. The mother on behalf of the boy filed the suit to obtain the identity of the poster. During arguments, the anonymous poster (hipcheck16) argued through his attorney that his identity should be protected as anonymous political speech under either the Illinois Anti-SLAPP statute or the First Amendment.  

The Illinois court, in citing the case of two Yale law students who were defamed on a website and were able to obtain the identity of the posters – Doe I v. Individuals, 561 F. Supp. 249 (D Conn. 2008) – ruled that the First Amendment does not protect posters’ identities from being discovered when they have engaged in speech which is not protected. The Judge in Stone adopted the 6-part test in Doe: 1. The defendant must be given notice of the subpoena and an opportunity to object, 2. The plaintiff must identify the offending post, 3. The plaintiff must have no other way to discover the identity of the defendant, 4. The subpoenaed information must be necessary to the case, 5. The poster must not have a right to anonymity, and 6. The plaintiff must make an adequate showing that the case has merit.

The Illinois court found that although the first five elements had been met, it could not go so far as to say that the plaintiff had made an adequate showing that the case had merit, because the case against the posted had not yet been filled. The court took the unusual route of obtaining hipcheck16’s identity, but ordering that it not be revealed except to the plaintiff, her attorney, and the process server until such time as the trail court could rule on the sixth element.

There have been an increasing number of lawsuits being brought against anonymous posters of comments on the internet. Although the courts throughout the states have varied widely in their reasoning for issuing or denying subpoenas, this Judge seems to be trying to balance the rights of the poster with the right of the plaintiff to bring an action for defamation. While some critics of these types of rulings have indicated that the plaintiff should not have to prove her case prior to discovering the identity of the defendant, others have argued that it is necessary to protect the right of free speech. Regardless, the First Amendment  does not give anyone the right to defame another.

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In a 5-4 decision the United States Supreme Court has made bribing political candidates legal.  Locally, when a developer is denied approval to build another subdivision, now corporate headquarters can turn around and fund the election of someone who will vote for it.  Nationally, the awarding of federal contracts to campaign supporters will no longer go on under the table with risks of ethics violations and possible criminal charges, now it can be done out in the open.    

 The case at issue is Citizens United v. the Federal Election Commission, No. 08-205.  This case involves a negative movie about Hilary Clinton that was released during the primaries.  Citizens United, who produced the film, lost a case against the FEC which had prevented them from showing the film on a cable TV channel and from advertising the movie on TV. The lower court found that the McCain-Feingold campaign finance laws did apply to the movie.  Although the case went to the Supreme Court on these narrow grounds, mainly whether the campaign finance laws were meant to apply to documentary-style movies, the Court took the unusual step of holding a second set of arguments to address whether two previous campaign finance law cases should be overruled.  Although this case is sad for many reasons, I am especially sad that former-Justice Sandra Day O’Connor was not able to guide the court to a more palatable result.   Essentially, the majority threw out campaign finance laws and decided that the federal government can no longer ban corporations from spending money on political campaigns.

 Justice Kennedy stated in the majority opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in free speech.”  Hold on, Emily Litella, since when is a corporation an “association of citizens.”  The last time I checked, they were state-chartered entities organized for the purpose of operating a business, making a profit, and sheltering the organizers of the business from personal liability.  I don’t think anyone would mistake one for an “associations of citizens.”  This decision is a travesty on a number of levels, but as I discussed with my classes today, corporations are not humans.  Thomas Jefferson stated: “A bill of rights is what the people are entitled to against every government on earth, .  .  .”  These rights are human rights, essential to our type of government.  They should not be cheapened by their extension to corporations.  (I do understand that corporations have been given “rights” over the years by the Supreme Court, starting with Santa Clara County v. Southern Pacific Railroad Company.  I just don’t agree with that line of decisions.  And while I agree with Stevens’s Dissent in Citizens, I don’t agree with his adherence to the “corporations are people too” position.) 

This case is not just about campaign finance laws; it is about the power that corporations have amassed over the years.  Do you really want Xe Services, LLC, f/k/a Blackwater, choosing your next President?   When my students ask me, why doesn’t anybody do anything about this stuff?  I tell them, we are like frogs in a pot of water that has slowly been turned to boiling.  The changes happen so gradually, that we don’t know we are cooked until it is too late.  Let’s notice this change.  Let’s do something about it.

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