Tuesday morning, Judges Kearse, Cabranes and Livingston heard oral arguments at the Second Circuit on the latest developments in the Avery Doninger case. In the spring of 2007, Ms. Doninger wrote a Livejournal post using an unsavory colloquial term meaning jerk to criticize of administration of the high school she was attending and encouraging students to ask their parents to contact the school administration to redress a grievance. As a result, Ms. Doninger was punished, in part by not allowing her to run for re-election as class secretary. This made the local news, and various students rallied to show their support of Ms. Doninger by wearing T-shirts that said “Team Avery” and writing in her name for class secretary. However, the administration did not recognize the results of the election where Ms. Doninger won a plurality of the votes and they prohibited students from wearing the shirts to a school assembly. The crucial issue in this case is where does Internet Speech Reside? Specifically for students writing blogs at home, is this on campus or off campus speech?

After various efforts to resolve this failed, the issue was taken up by the U.S. District Court and the Second Circuit of Appeals. Now, nearly three years later, it was back in the Second Circuit where points about qualified immunity and a comparison of Doninger to Tinker were key areas that were explored. The attention on this case has waned, while the importance has not. Jim Moore, a reporter from the Waterbury Republican American made the trip in. Former Superintendent Paula Schwartz and her husband attended as did Ms. Doninger and her parents. Also attending was Frank LaMonte, executive director of the Student Press Law Center, which filed an amicus brief in the case.

The judges entered the Ceremonial Courtroom at about 10:15 and first heard a motion in Ali Mohamed Kidudo v. Eric Holder et al. Like many of the cases that come before the Second Circuit, this is an immigration case. Mr. Kidudo immigration case was heard in Tacoma, WA and is being appealed. During the appeal, one of the judges appeared via a video conference from the Second Circuit. Apparently the appeal has been moved to the Second Circuit and the motion is all about where the appeal should be heard, in the location of the court that originally heard the case, or the location of the judge that heard it. Mr. Kidudo’s attorney argued that corroborative evidence that may be relevant in showing errors of fact in the record all exists in the State of Washington, and it should be heard there.

The attorney for the Department of Justice argued that the decision is at the discretion of the Second Circuit and encouraged the Second Circuit to not transfer the case back because of the additional delays such a transfer would create, but could not answer how much time this would take. He asserted that Mr. Kidudo was a fugitive alien who had failed to meet reporting requirements of his release. He had been released after ninety days when it was deemed that he was not a hardened criminal or dangerous.

However, this information was not a matter of the record and the defense stated that Mr. Kidudo was staying with family members and the defense had not heard of any failure to report. This motion helped set a background for the Doninger case. The issue of location where an event took place in a technologically mediated event is common in both cases. Should the controlling court be where the court was, or where the judge was? Did Ms. Doninger’s speech take place at home where she wrote it, or is it considered inside the school grounds because of the ubiquity of the Internet where it was posted? In addition, the issue of what material is relevant and permitted foreshadowed the Doninger case.

This was followed by Lloyd Rajcoomar v. Walmart Stores East, L.P. Mr. Rajcoomar appears to believe that he had been wrongfully terminated by Walmart and that he should have had the right to a trial. He claimed that some court documents had been lost. The lawyer for Walmart claimed that the lost documents were not relevant. He claimed that Mr. Rajcoomar had not been terminated but because of various issues could no longer hold the position he had, and was offered a different position at a lower pay scale which he declined. Mr. Rajcoomar responded that the reason that he was not allowed to stay in his position was unequally applied, asserting that others had been allowed to stay in the same situation.

Panagis Vartelas v. Eric Holder was then heard. This was another immigration related case, where Mr. Vartelas was being deported because of moral turpitude. At the center of this case was whether a presumption of retroactivity affected the case. It seemed as if much of the discussion in this case was over procedural issues and whether or not there was reason to re-open the case. During this case, there were lots of phrases tossed around that appeared to be legal phrases with special meaning. Presumption of retroactivity led the list, with others like “demonstrate prejudice”, “matter of law” and “the procedural posture”. As the Doninger case has continued on, the procedural posture from one hearing to another has shifted, resulting in different issues and different evidence being considered and relevant.

With the warm up acts out of the way, the final and main show of the morning began. Thomas Gerarde started off by arguing that the defendants were entitled to qualified immunity since a reasonable school administrator would not have known that punishing Ms. Doninger for her off campus speech was a violation of her constitutional rights. He sought to demonstrate that Tinker v. the Des Moines Independent Community School District, the key case about student’s freedom of speech was substantially different from the Doninger case. He suggested that in Tinker there was a passive wearing of arm bands and no back story. He did not go so far as to suggest that Doninger was different because the T shirts that had been banned were white and the arm bands were back, or simply that it was T shirts instead of arm bands.

He went on to suggest that this “same Avery Doninger” was the one that had actually already caused disruption, a fact not established. It could be argued that the poor acts of the administrators are what caused disruptions and these disruptions would have occurred whether or not Avery was involved. He went on to point out that this “same Avery Doninger” had appeared on the evening news the night before, as if appearing on the evening news somehow pre-empts a person’s constitutional rights.

Key to all of this was that the T-shirts could cause a disruption. Judge Livingston challenged Attorney Gerarde claiming that he did not argue about disruption in the District Court. Attorney Gerarde claimed that he did. When asked by Judge Livingston to show where this was argued, Attorney Gerarde said it was not in the brief. Judge Cabranes said that this was an issue and asked Attorney Gerarde to submit my noon Wednesday facts to show that he had argued that the potential for disruption was why qualified immunity should be granted.

In his arguments, Attorney Gerarde painted a picture of the poor Principal not knowing how many students would come wearing T shirts or what sort of disruption this would create. Principal Niehoff had to make a split second decision on how best to prevent a potential disruption. Who can tell what sort of disruption could ensue if lots of people all wear T shirts?

Judge Livingston noted that an email that had been admitted as evidence had stated that there were a few T shirts. Judge Kearse took a different approach. What was the anticipated disruption, she queried.

People shouted Vote for Avery, Attorney Gerarde responded. This did not seem to suffice for Judge Kearse who again repeated the question about the anticipated disruption. Attorney Gerarde went on to suggest that the disruption could be people writing Avery’s name on the ballot. Judge Kearse noted that the T shirts were banned from the auditorium, but that the voting was in the cafeteria. How would banning T shirts in one location prevent actions in another location? This was followed by a question about how banning T shirts would prevent shouting.

The discussion moved to electioneering. It was noted by the judges that the approved candidates were electioneering, so there couldn’t be a ban on electioneering. Gerarde responded that there was a ban on electioneering materials. Judge Cabranes asked where this was in the record, and Attorney Gerarde responded that the record did show that disruptive clothing is not allowed.

Judge Cabranes returned to the question of what the Principal feared. At this point, Attorney Gerarde spoke about the opportunity for candidates to get votes. Judge Kearse asked if the school could have prohibited students from writing in Ms. Doninger, or disciplined students for voting for her. Attorney Gerarde admitted that this was not something that students could be disciplined for.

Next was Attorney Schoenhorn’s turn. He started off by talking about listening to the Arguments in the Tinker Case. He compared the arguments of Attorney Gerarde as being very similar to arguments in Tinker. It is not substantially different from Tinker he suggested. He also noted that Judge Livingston had sat on the panel that had heard a preliminary injunction in this case that this hearing was very different from the hearing that Judge Livingston had heard.

He noted that there was no disruption from the blog and the issue had been that words used in the blog were found offensive by the school administration. He held up one of the T shirts and when it was questioned if this were in the record, his assistant, Attorney Packman noted that it could be found on page 308.

In response to a question about the shirt Attorney Schoenhorn suggested that people wore the shirt to show solidarity with Avery and not necessarily to encourage people to write her name in on the ballot. He spoke about how for previous hearings the defendants relied on facts that were disputable such as wordplay on whether or not Jamfest was cancelled or believed to be cancelled.

Yet Attorney Schoenhorn sought to return to the larger issues beyond that of the T shirts. Was Ms. Doninger’s speech off campus speech that is protected? Was it “patently offensive”, despite what the New York Times wrote about the “offensive” word, noting that it is now a common colloquialism for jerk?

Judge Cabranes gave the Attorneys until noon on the 14th to submit a supplemental joint appendix which may be submitted electronically and distributed to the panel, to provide additional information. While it has been a long time since the original blog post, the issue still remains outstanding. Where does Internet Speech Reside? It looks like it may still be a while before we know what the courts really think about this.