Mapping of "On-campus Speech" in Doninger

Doninger v. Niehoff presents a valuable opportunity to examine the importance of understanding how well “old technology” law maps onto “new technology” cases in the digital age. Judge Livingston turns to the Fraser and Tinker framework in ruling that Ms. Doninger’s internet speech created the significant risk of substantial disruption in the school environment. However, the ruling seems to dance around what some might consider the most important issue in this case, whether internet speech (distributed via livejournal.com) constitutes “on-campus speech.” Relying heavily on the previous decision in Wisniewski, Judge Livingston rather hastily discusses this issue, affirming the finding of the District Court that, as “it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it,” Avery’s posting constitutes “on-campus speech.” However, this quick disposal of the issue seems somewhat suspect when considering the logical leap necessary to define speech made in an entirely separate arena as “on-campus speech.” After all, posting something to one’s livejournal seems fundamentally different, both in proximity and intention to display, than displaying a banner across the street from school during a school-sanctioned event, as is seen in Morse v. Frederick. However, Judge Livingston seems to equate these two forms of speech, using similar wording to describe Avery’s behavior as the Supreme Court used in ruling that Frederick’s banner constituted on campus speech as it was “plainly visible” to other students. Here the issue of “mapping” is exceedingly vivid, as is the importance of understanding it in the digital age. If one does not grasp the difference between displaying a banner directly across from the school and posting a message on an independent website with no connection to the school, then Judge Livingston’s ruling may seem logical. However, these two acts seem rather different, and this makes the court’s ruling in both Doninger and Wisniewski somewhat problematic. This suggests that investigation of the how well old law “maps onto” cases involving new technology is a powerful way to examine the legitimacy of court rulings such as that seen in Doninger.

Question of the Week: Did Judge Livingston intentionally gloss over the issue of whether livejournal postings constitute “on-campus speech”? If so, could it have been partially motivated by the knowledge that many people in the legal community are somewhat un-informed about the technology of internet communication?