Kentucky Judge: Student waived free speech rights Woman was dismissed over a blog post

By Brett Barrouquere

Associated Press

LOUISVILLE, Ky. (AP) -- A former University of Louisville nursing student waived her rights to free speech by signing an honor code that included a non-disclosure requirement, so she can't collect damages for being dismissed from school over a blog post, a federal judge ruled Monday.

Nina Yoder "had no constitutional right" to blog information about a live birth she witnessed as part of a childbearing course because of the confidentiality agreement, U.S. District Judge Charles R. Simpson III wrote.

"Because Yoder herself agreed not to publicly disseminate the information she posted on the internet, she is not entitled to now claim that she had a constitutional right to do so," Simpson wrote.

The ruling came as part of a three-year legal battle brought by Yoder, who was dismissed from school because of a blog post titled "How I Witnessed the Miracle of Life." Yoder was later reinstated and graduated. Her attorney, Dan Canon of Louisville, said she's currently working as a nurse.

Canon said Yoder would appeal the ruling.

"It is definitely a surprise," Canon said. "As far as I know, no court in the country has ever approved this degree of control by a university over its students' speech."

University spokesman Mark Hebert said Simpson made the right call.

"This has always been an academic case which was handled appropriately by the university," Hebert said.

Yoder argued that the school retaliated against her and tried to restrict her speech because they didn't like what she had to say on the blog. The university argued that it dismissed Yoder because she violated the confidentiality agreement, not in what she said specifically.

Simpson found that the confidentiality agreement allowed Yoder to share information about the patients only with her instructors.

The post named the school, but not the patient. It included a variety of comments about pregnant women and children, referring to the baby as the "Creep" and describing how the expectant mother vomited.

"At last my girl gave one big push, and immediately out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell, covered in god knows what, screeching and waving its tentacles in the air," Yoder wrote. "15 minutes later it turned into a cute pink itty bitty little baby girl."

Simpson found the descriptions, including the intimate detail of the labor and delivery, to be a "clear violation" of the agreement between the student and patient.

"Certainly, that was information about the mother's pregnancy and health care, and it was presented in written form on a publicly-accessible internet site, rather than 'only' to Yoder's instructor," Simpson wrote.

The school dismissed Yoder on March 2, 2009, saying in a letter that she violated the school's honor code by posting blog items concerning patient activities and naming the university on her My Space page.

Yoder's blog posts on MySpace, which date back almost a year, cover topics including suicide, religion, sex, guns and politics. She mentioned the university several times but revealed no patient names in postings filed along with the lawsuit.

She also frequently wrote about guns and her opposition to gun-control laws and posted pictures of various weapons on the site.

In the lawsuit, Yoder said university administrators cited the gun-related postings and told her "students voiced concerns that lead us to believe you may have a gun." Canon said Yoder didn't have a gun at the time and has never brought a gun on campus.

Published: Wed, Apr 4, 2012

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