A Doninger legislative fix?

This report comes from the Journal Inquirer, a Connecticut newspaper:

A legislative committee chairman who for decades was a high school teacher in East Hartford is proposing to prohibit school systems in Connecticut from punishing students for their off-campus electronic correspondence.

Sen. Gary D. LeBeau, the Democrat from East Hartford who co-chairs the General Assembly’s Commerce Committee, said today that he was spurred to introduce his bill by the nationally publicized case of Avery Doninger, a former Burlington high school student disciplined for a 2007 Internet posting she wrote from her home.

“I strongly believe in the First Amendment,” the lawmaker said. “And after what school administrators did in the Doninger case, what’s needed is a bright line of where the state — since the school was acting on behalf of the state — can impinge on the rights of individuals. I think they overstepped in this case.
“As long as a message like hers is not sent directly to a school, or if she is not using school equipment, this young person and everyone else has a right to say what they think,” he added. “Unfortunately, the way she said it was pretty offensive, but that happens — and that’s sometimes the very speech that needs to be protected.

LeBeau’s single-paragraph measure would specifically amend the law “to prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided that such content is not a threat to students, personnel, or the school.”

[...]

“The reasons the schools have the right to impinge on students’ free speech are because, No. 1, they’re minors, and No. 2, the idea is to not disrupt the smooth functioning of the school,” he said. “I can certainly understand that, but I don’t see how expressing an opinion in a private e-mail or something disrupts the school. It’s not being sent to the school or to a member of the teaching staff.

I’ve previously blogged about the Doninger case here.  The legislative fix mentioned by the state representative seems intriguing, and it certainly would provide the “bright line” (at least in Connecticut) that so many commentators have found to be missing. Of course, there are also serious problems with this legislation.  If the legislation is simply a prohibition “don’t punish for off campus on-line speech,” how is this “prohibition” enforced?  Can a kid sue for injunctive relief (like Ms. Doninger)? Can a creative attorney use a “private attorney general” law to sue for damages?The other thing that concerns me is that this legislator, no matter how well intentioned he is, doesn’t quite understand the nuances of the Doninger case.  And his legislation may not even cover the Doninger situation.  The legislation prohibits punishment for “correspondence.”  Certainly, an IM or an e-mail is a “private” correspondence (as he noted in his quote). But is a blog post a “correspondence”? To me, a “correspondence” requires a sender, an intended recipient, and an intended message.  The post provided by Ms. Doninger was not a “private e-mail or something,”  it was a blog post.  While I agree that it was not “directed” at the school (a verb that doesn’t really work for on-line, pull technologies of today), her comments about the cancellation of the event were meant to communicate a message about the school that may or may not have caused confusion or disruption of the school.

Update: Professor Katheen Bergin posts about the legislative fix here.
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Filed under First Amendment, Law

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