Judge: Denying yearbook photo not unconstitutional


Judge: Denying yearbook photo not unconstitutional
Union Leader Correspondent

LONDONDERRY — A federal judge yesterday rejected Londonderry High School senior Blake Douglass’ request for a preliminary injunction to compel school officials to publish his submitted yearbook photo, which features a broken-open shotgun slung over his shoulder.

Had the court ruled otherwise, the yearbook’s publication could have been delayed until Douglass’ suit against the district is resolved. The suit is still pending.

“Obviously, we’re very pleased,” Principal James Elefante said. “Our goal was to continue on and get the yearbook out for the kids.”

Douglass’ Concord-based attorney, Penny Dean, did not return several calls to her office and mobile phone last night. The Douglass family also did not return a call.

In federal court, Dean argued that the district’s refusal to publish the sports shooter’s chosen photograph in the senior portrait section of the yearbook amounts to unconstitutional viewpoint discrimination.

But in U.S. District Court in Concord yesterday, Judge Steven McAuliffe ultimately disagreed.

In his order, McAuliffe noted that the yearbook student editors were vested with “editorial discretion and they apparently made the controlling decision not to publish the photograph Blake originally submitted. Absent state action, the students’ decision not to publish Blake’s chosen photograph . . . cannot be said to have violated Blake’s First Amendment rights.”

After establishing that the students are private citizens — and not state actors like the school administrators — McAuliffe wrote, “In simple terms, the state has not, it seems, suppressed Blake’s speech; his fellow students have done so, for reasons they deemed appropriate in developing, editing, organizing, and publishing the yearbook. The First Amendment to the Constitution simply does not preclude such conduct by private citizens.”

Elefante, before announcing his decision to deny Douglass’ photo, consulted with the yearbook’s editorial staff and the yearbook’s two advisers. The district’s superintendent and school board later endorsed his decision.

In January, the school board passed a district-wide policy that bans all props in portraits, including musical instruments, pets, athletic equipment or vehicles, and prohibits students from wearing clothes with slogans or political statements.

McAuliffe said the yearbook policy to deny all props is not unconstitutional, noting that the new guideline “does not single out any particular viewpoint(s) for preferential treatment, nor does it single out any for unfavorable treatment.”

In his conclusion, McAuliffe wrote that “unless a genuine dispute of material fact exists regarding the student editors’ decision, or their status as private citizens, the (impending court) case would seem to be ripe for summary judgment disposition.”

Despite yesterday’s ruling, Londonderry attorney Russell F. Hilliard said Dean could appeal McAuliffe’s decision to the federal appellate court in Boston.

“But given his findings, there’s not much room,” Hilliard added. “He’s found that the plaintiff is not likely to succeed.”

Elefante predicted that Dean would indeed appeal McAuliffe’s decision.

“I’m sure there are still avenues that she can and will take,” he said. “I would hope that that’s not the case; I would hope that we can move beyond and get the yearbook done.”
What state is Londonberry in??? The Communist State of Massachusetts??? What a pathetic tragedy. My best picture from my high school days showed a good ole boy redneck hanging a shotgun over his shoulder leaning against an old Ford.


Well-known member
I'll bet if he was holding a bible instead of a gun, and the students decided to go ahead and publish it, the judge would be singing a different tune.

Jeff S.

Well-known member
Nah - a Bible would have been just as controversial, but if he was holding a pink triangle, peace symbol, star and crescent, or NAMBLA sign - that would have been OK.

- Jeff

Common Sense

Well-known member
You all may stone me, BUT THE JUDGE MADE THE CORRECT DECISION. The judge didn't say the photo was "wrong", just it didn't meet the criteria set by the local school. Should they be able to stop someone from submitting a phot of themselves wearing nothing but a thong, of course. If they feel a shotgun is just as bad, that's their choice. If Jesse removes pro-PETA posts from this forum, that is his business and no judge should be able to force him to allow that crap in this forum. The school should have control over what goes in their yearbook, despite what we or a federal judge think.

Having said all that, I do believe a school board recall might be in order. But, let the people decide, not a judge.
Common Sense...I seem to remember this post some time ago when the issue first arose. I believe (but can't locate the original post on the forum) that the school allowed students to submit their own pictures with "props", i.e. pets, trombones, guitars, etc. Additionally, there were no specific rules disallowing firearms, hence the student's submission. The principal and the yearbook staff took issue with the firearm pic and chose to disallow the photo. the student felt he was being singled out because his photo included a firearm as a prop. Somebody please correct me if I have the facts wrong.

Given the fact that students were free to submit their own pictures with props, and firearms were not specifically disallowed, then I feel the judge ruled incorrectly in this case.

Common Sense

Well-known member

You are right, but according to the article at the beginning of this thread it says the SCHOOL BOARD passed as district-wide policy against using props in photos (Including musical instruments, pets, vehicles... & clothing with political slogans). I am sure the new policy was to get rid of the gun photo, but it is fair. Even if it wasn't fair a federal judge shouldn't intervene. If the school board wants to make a policy saying no photos in the yearbook of students with black shirts, it is their business. If he had submitted a photo with his eyes closed and his tongue sticking out, the school should be able to reject the photo even if there was nothing in the policy about such stuff.

I do not agree with the school board, but it is their business --- not some federal court. The yearbook editor is supposed to edit. The judge is not the bad guy, the school board is, AND THEY ARE ELECTED BY THE PEOPLE.


Well-known member
I do believe that Colusa is correct and that this "no props" policy was instituted AFTER the shotgun photo was submitted, making it a non-issue in this particular action. The judge should not have made a ruling based upon whether this new policy violated his rights, but rather, he should have ruled whether the schools actions without such a policy violated his rights.


Well-known member
Londonderry is in NH, but it may as well be Massachusetts. Seems like over the past few years a lot of people moved up here from Mass. Maybe to increase their quality of life, or to get away from the Mass politics, who knows.
Then these ahem, new-comers, love NH, what it stands for, what it has to offer, then them same @*[email protected], vote the same way they used to when they lived back in Mass.

Some dude just down the street from me, moved in during the summer. He's got a whole 3 acres of land. The very first thing he does, very very very first thing he does, he POSTS his land!!! NO TRESSPASSING signs on every friggin tree. He doesn't even allow time for the welcome wagon to come by. I suppose I should go over there and introduce myself, just hope that he doesn't press charges for tresspassing.

10 yrs ago, 5 yrs ago, this picture would have been allowed.

I feel better now.

BTW- Howard Dean is from VT

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