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.
THE FIRST AMENDMENT FRAMEWORK FOR PUNISHMENT
The Supreme Court has used the First Amendment to limit punishment of unprotected speech in defamation actions. Defamation precedent for much of the last two centuries permitted awards of punitive damages. (15) In the 1971 decision Rosenbloom v. Metromedia, Inc., however, the Supreme Court began to shift its approach to damages. (16) There, the Court considered whether the evidentiary standard announced in New York Times v. Sullivan (17) should extend to private individuals involved in matters of public concern. (18) A majority refused to extend the New York Times standard, and the Court splintered on the issue of standards of proof required for "public figures." (19) This divergence prompted debate over the extent of damages available in defamation actions. Justices Stewart and Marshall urged the Court to adopt a negligence standard for actual damages proved, but to bar punitive damages entirely. (20) Justice Harlan disagreed, deeming punitive damages constitutionally permissible to the extent they had a "reasonable and purposeful relationship" to the "actual harm done." (21)
Three years after Rosenbloom, the Supreme Court decided Gertz v. Welch and changed the contours of permissible defamation damages, adopting Justices Stewart and Marshall's view disallowing punitive damages. (22) In Gertz, the Court considered the damages available to a private individual in a defamation suit against a magazine publisher. Because the heightened evidentiary standard of New York Times did not apply to private plaintiffs, the Court cautioned against the discretionary power of juries "selectively to punish expressions of unpopular views." (23) The Court stressed that such punishment would lead to media self-censorship, and held that, on a showing of negligence alone, a private plaintiff could recover compensatory damages but not punitive damages. (24) The Gertz ban on punitive damages in some circumstances remains binding today, (25) although the Court later limited it to matters involving a public concern. (26)
By contrast, the Supreme Court has consistently declined to limit the extent of punishment for obscene materials. (27) In Alexander v. United States, for example, the Court considered whether stiff punishment of obscenity under the Racketeer Influenced and Corrupt Practices Act (RICO) implicated the First Amendment. (28) The Court acknowledged that RICO's large forfeiture provision may lead "cautious booksellers to ... remove marginally protected materials from their shelves out of fear that those materials could be found obscene and thus subject them to forfeiture." (29) But the Court rejected the First Amendment chilling argument, ruling that the legitimate goal of curtailing obscenity prevailed over its incidental self-censorship effects. (30)
The punishment of obscenity, however, has not escaped controversy on the Court. Justice Kennedy dissented in Alexander to argue that RICO's forfeiture provision violated the First Amendment. Noting that "the government must use measures that are sensitive to First Amendment concerns in ... punishing speech," Justice Kennedy took issue with RICO's forfeiture provision because it authorized the government to shut down bookstores that sold otherwise protected speech after finding a single obscene article. (31) In his view, the severity of RICO's penalties induced the "evils" of state censorship and self-censorship beyond constitutionally permissible levels. (32) Justice Kennedy concluded that the "censorial cast" of the forfeiture provision amounted in substance to a prior restraint that violated the First Amendment. (33)
Sixteen years before Alexander, Justice Stevens twice departed from Supreme Court precedent to argue that the First Amendment should limit the punishment of obscenity. In Marks v. United States, the Court held that the three-part Miller v. California (34) test for obscenity could not be applied retroactively to the detriment of the defendant. (35) Justice Stevens issued a separate opinion expressing his view that criminal prosecution of obscenity impermissibly conflicts with First Amendment values. (36) He dissented from a criminal conviction on similar grounds in a contemporaneous obscenity case, Smith v. United States. (37) Citing the numerous problems inherent in defining obscenity, Justice Stevens argued again that sexually explicit content should be civilly--not criminally--regulated. (38) Justice Stevens failed, however, to persuade a majority of Justices. The Court affirmed the criminal punishment of obscene speech, (39) a standard that remains in effect. (40)
Without any controlling Supreme Court precedent, lower federal courts have drawn their own conclusions about the extent to which the First Amendment limits punishment of student speech. In Ponce v. Socorro Independent District, the Fifth Circuit heard a student's First Amendment challenge to his high school's decision to expel him because he had written in his journal about his plans for a "Columbine-style" attack against the school. (41) The court held that the writings qualified as threatening speech unprotected by the First Amendment and declined to consider whether the punishment was excessive. (42) Rather, the court reasoned:
Because we conclude that no constitutional violation has occurred, our inquiry ends here. Our role is to enforce constitutional rights, not "to set aside decisions of school administrators which [we] may view as lacking a basis in wisdom or compassion." Because the journal's threatening language is not protected by the First Amendment, [the school district's] disciplinary action against [the student] violated no protected right. (43) The Eighth Circuit followed a similar rationale in Doe v. Pulaski County Special School District. (44) There, a middle school student who made vulgar comments expressing a desire to "molest, rape, and murder" his ex-girlfriend challenged his expulsion on First Amendment grounds. (45) As...