By Ken Krayeske • 9:25 AM EST • Updated at 3:45 PM EST
Avery Doninger was not the ideal plaintiff for a high school free speech case because of her use of vulgarities, according to amicus author Professor Martin Margulies. Nor was her speech political, which would have protected it completely, Margulies said.
Others have characterized her speech as seeking a redress of grievances, which would turn it into political speech.
More likely, Margulies said, her bawdy plea to flood the school with calls and emails not to cancel Jamfest could still prevail, and it is important to keep this in mind as Doninger's next court date with Judge Mark Kravitz in Federal District Court in New Haven approaches November 12.
And as bad as Doninger's facts were, attorney Christine Chinni and her client superintendent, principal and school district failed to inspire confidence as government actors in the celebrated Douchebag case.
If I considered Chinni and crew poor role models for their conduct in this debacle, watching Chinni trade opinions and barbs with Margulies last month at a forum at UConn law school in front of some 25 people only confirmed my impressions.
At the close of their statements, I asked Chinni about her reprimand from the Freedom of Information Commission.
"I'm not going to talk about the Freedom of Information Commission," Chinni snapped at me. "It's not part of the case."
And then she told me I had my facts wrong. But in reality, the FOI complaint by Andy Thibault is part of the case. Chinni and her clients principal Karissa Neihoff and Superintendent Paula Schwartz may have hid e-mails from the trial.
Andy Thibault's Douchebag archive over at the Cool Justice Report details that Judge Kravitz was likely dupedby Chinni and the administrators. E-mails from Lewis Mills principal Karissa Neihoff obtained by Thibault show that Neihoff told Doninger that Jamfest was canceled.
Chinni had been chastised by FOI Commission Chair Andrew O'Keefe for playing hide the emails. Chinni's swift, biting response brought a momentary pall over the forum at UConn, which was cordial, if tart up to that point.
The characterization of Doninger's speech as sham speech, that is, speech with no purpose other than to aggravate and cause disruption, is based on Judge Kravitz's reading of the wrong facts.
Chinni of Chinni and Meuser in Avon, bragged that the Federal Second Circuit in New York, as well as the District Court judge, found the facts to be against Doninger. Avery's speech fell into the sham speech category, according to Chinni.
The courts determined that Avery Doninger knew Jamfest wasn't canceled, just postponed. The e-mails at the heart of the FOI complaint show that Doninger acted in good faith though.
Yet Chinni asserted that if Doninger knew that Jamfest wasn't postponed, but circulated news telling people it was, she acted inappropriately.
And that, combined with the disruption to the routines of Niehoff Schwartz, weighed heavily on the courts, Chinni said.
"If the issue had been 'Douchebag,' school administrators have thick enough skins," Chinni said.
The real problems arise when parents - like Doninger's mother Lauren - "enable children to push limits," Chinni said.
"This is a lesson in poor parenting," Chinni said, adding that a when a child is wrong, a mother shouldn't say "Honey, you're right, we're going to sue them."
"There's was a better approach" to parenting, Chinni said. "She could have said this was a lesson learned. Actions have consequences."
Calling the principal a "Douchebag" on a blog and then getting people to call the office to aggravate said principal is conduct not befitting a class officer, Chinni said, and Doninger received the appropriate punishment from the school - not being class secretary.
Margulies defended Lauren Doninger, and noted that Schwartz and Niehoff were petty in not counting Doninger's victory in the class election. "I think the real motivating factor was that they were dissed and they wanted to save face," Margulies said.
Margulies, speaking frankly as Doninger was not his client - the ACLU was, noted that Doninger is an exceptional student, and she doesn't bear the full weight of the blame. And her loss in court is still reversible.
"School administrators push limits, and so do their lawyers," he said. "There is an air of triumphalism that may be premature."