Law of the student press, Part 1

Beatrice MotamediNewsroom by the BaySummer 2012

@2012 by Beatrice Motamedi

U.S. Supreme Court, photo by D.B. King at Creative Commons/Flickr.com

Friday, June 22, 12

First, a quiz (send your group answer to j-conf)

• You are a high school principal, and one of your students wants to wear a T-shirt entitled “Occupy Urban,” at a time when Occupy protests nationwide have erupted in violence. Would you allow it? Why or why not?

• You are a high school journalism adviser, and one of your students wants to write an article in which she will quote pregnant students anonymously, talking about their use (or decision not to use) contraceptives. Would you okay it? Why/why not?

• You are a dean of students, and at the all-school meeting, the student body president, a senior, begins to speak in a way that is sexually suggestive (yet not openly obscene). There are freshmen in the audience. Would you permit it to continue? Why/why not?

• You are a high school teacher, and at a school rally, you see one of your students unfurl a 14-foot banner that reads, “Bong Hits 4 Glaucoma.” Medical marijuana is legal in your state. Would you allow it to remain up? Why/why not?

Friday, June 22, 12

“Answer key”

• Tinker v. Des Moines Independent School District, 1969

• Hazelwood School District v. Kuhlmeier, 1988

• Bethel School District 403 v. Fraser, 1986

• Morse et al v. Frederick, 2007

Friday, June 22, 12

Top 12 scholastic journalism cases

• West Virginia State Board of Education v. Barnette, 1943

• New York Times v. Sullivan, 1964

• Tinker v. Des Moines Independent School District, 1969

• Brandenburg v. Ohio, 1969

• Bethel School District No. 403 v. Fraser, 1986

• Hazelwood School District v. Kuhlmeier, 1988

• Texas v. Johnson, 1989

• Yeo v. Town of Lexington, 1997

• Dean v. Utica Community Schools, 2004

• Morse et al v. Frederick, 2007

• Scott v. Napa Valley Unified School District, 2007

• Smith v. Novato, 2007

Friday, June 22, 12

Tinker: what a black armband means

Mary Beth Tinker, photographed on March 11, 2010. Photo by Andrew Imanaka at flickr.com, used with permission.

“Just before Christmas in 1965, a group of students ... wore black armbands to school to mourn the dead in Vietnam. I was 13 and in eighth grade. The nightly TV news, with scenes of flaming huts, screaming children, and soldiers in body bags had gotten to me. Along with a small group of high school students, including my brother John and our friend, Chris Eckhardt, and even my little brother and sister Paul and Hope, who were in elementary school, I decided to wear an armband that Christmas. Our message was peace.“We had no idea that our small action would lead us to the Supreme Court, or that the ruling in Tinker v. Des Moines Independent Community School District 40 years ago today would become a landmark for students’ rights. But that is how history is made ...”

Excerpt from “What a Black Armband Means, 40 Years Later,” by Mary Beth Tinker, at www.dailykos.com

Friday, June 22, 12

Mary Beth Tinker at the Occupy DC protest in Washington, D.C., on Oct. 6, 2011. All rights reserved by rwreinhard at flickr.com; Fair Use exemption.

Friday, June 22, 12

Tinker: key holdings

• The wearing of black armbands by “passive” students who did not disrupt the school day was “closely akin to pure speech” and was protected by the 1st amendment and 14th amendment (due process)

• Neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

• Rights may be subject to “special characteristics of the school environment.”

• A prohibition against speech “without any evidence” that the rule is necessary to avoid disruption to the school day, discipline, or other students’ rights, is not allowed under the 1st Amendment.

• Speech that causes “substantial disorder” or “materially disrupts” is NOT protected.

Friday, June 22, 12

Key quotes

• “(I)n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

• “Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk ... it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”

• “(S)chool officials ... must be able to show that (their) action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Friday, June 22, 12

So what’s your answer to Question #1?

• You are a high school principal, and one of your students wants to wear a T-shirt entitled “Occupy Urban,” at a time when Occupy protests nationwide have erupted in violence. Would you allow it? Why or why not?

Friday, June 22, 12

Hazelwood: what justifies restraints?

Source: Student Press Law Center, at http://

www.splc.org/knowyourrights/

legalresearch.asp?id=4

From “

Friday, June 22, 12

Hazelwood: what justifies restraints?

“In January 1988, the United States Supreme Court handed down its opinion in the case Hazelwood School District v. Kuhlmeier. The Court upheld the decision of public high school administrators at Hazelwood East High School in suburban St. Louis, Mo., to censor stories concerning teen pregnancy and the effects of divorce on children from a school-sponsored student newspaper. The ruling was a dramatic break from nearly two decades of law that had given student journalists extensive First Amendment protections.“While the Hazelwood decision changed the free speech balance, courts since Hazelwood have made it clear the case has important limitations. School officials -- no matter what they may believe or claim -- do not have an unlimited license to censor; all students retain significant First Amendment protections.”

Source: Student Press Law Center, at http://www.splc.org/knowyourrights/legalresearch.asp?id=4

Friday, June 22, 12

Friday, June 22, 12

Hazelwood background

• Adviser quit on April 29; May 13 edition in production (and poor prior relationship between adviser/principal). New adviser later became respondent (vs students).

• Prior review was already established by practice; no forum status

• New adviser delivered page proofs to principal on May 10 — 2 of 6 pages rejected. Principal objected to two stories — H’wood students on pregnancy, and impact of divorce.

• Re: pregnancy — students could be ID’ed even though false names were used; references to sexual activity/contraception too much for 9th graders.

• Re: divorce — believed student’s dad should have had comment re: “was always out of town or out late playing cards with the guys”

Friday, June 22, 12

Hazelwood: key holdings

• First Amendment rights of students in public schools are not automatically coextensive (the same as) rights of adults in other settings (Bethel).

• Free speech rights must be applied “in light of the special characteristics of the school environment.” Student speech that is inconsistent with a school’s mission need not be tolerated, even though such speech could not be censored outside of school by the government.

• Student newspapers designed for general extracurricular use are subject to a lower level of First Amendment protection than newspapers established as forums for student expression. (Think Hyde Park, Fareed Zakaria “Global Public Square”)

• A school may wish to “dissociate itself” from and restrict speech that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” (Think boys’ soccer)

Friday, June 22, 12

Hazelwood: key quotes

• “A school must be able to set high standards for the student speech that is disseminated under its auspices — standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the ‘real world‘ — and may refuse to disseminate student speech that does not meet those standards.”

• “A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with ‘the shared values of a civilized social order’ ... or to associate the school with any position other than neutrality on matters of political controversy.” (quoting Bethel)

• “(E)ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.”

Friday, June 22, 12

Friday, June 22, 12

So what’s your answer to Question #2?

• You are a high school journalism adviser, and one of your students wants to write an article in which she will quote pregnant students anonymously, talking about their use (or decision not to use) contraceptives. Would you okay it? Why/why not?

Friday, June 22, 12

The first test case — Homestead High School in Cupertino, Calif.

• “The ultimate teaching moment” — Hazelwood and The Epitaph

Veteran journalism adviser Nick Ferentinos discusses the Hazelwood case with students at Newsroom by the Bay, a summer multimedia camp

at Stanford University, in June 2010. Photo by Kaden Greenfield.

Friday, June 22, 12

Friday, June 22, 12

Friday, June 22, 12

An unexpected twist ...

“Twenty years after the Supreme Court announced its decision in the landmark student press case Hazelwood v. Kuhlmeier, experts still struggle to gauge its impact.“But for a short three days at Homestead High School in Cupertino, Calif., the effects of the case were dramatic and immediate. Within two hours of the Court's announcement and just two days before the school's newspaper was to go to press, Principal James Warren swiftly revoked the long-established editorial independence of the school's newspaper, The Epitaph, when he told students they would be punished if they ran an article about a student who was HIV-positive. Students braced themselves for what they envisioned would be a tense fight against the administration to maintain their editorial independence ...”

Source: Student Press Law Center, at http://www.splc.org/knowyourrights/law_library.asp?id=13

Friday, June 22, 12

Ed Code 48907 to the rescue ...

“Then, hours later, a newspaper reporter tipped the students off to a California law that nullified the decision and ultimately saved the newspaper from censorship. The statute — signed into law 11 years earlier — was the first of its kind in the nation and has saved countless high school student journalists from censorship under Hazelwood in California.Though the students ultimately prevailed, the events that unfolded at Homestead after the Court's announcement foreshadowed the new challenges student journalists would have to face in the wake of the Hazelwood decision.”

Friday, June 22, 12

Education Code 48907: for student journalists in public high schools in California

“In addition to the First Amendment to the U.S. Constitution, states can also provide free speech protection to their own citizens by enacting state laws or regulations. The California Student Free Expression Law is such a provision and provides student journalists attending California public high schools, including charter schools, with added protection against administrative censorship. The law also protect teachers and other school personnel against retaliation for students' lawful exercise of their free-speech rights.”

Source: Student Press Law Center, at http://www.splc.org/knowyourrights/law_library.asp?id=6

Friday, June 22, 12

What 48907 allows/doesn’t allow:

• Public school students shall have freedom of speech, including bulletin boards, petitions, buttons & badges (not only paper or website)

• Applies whether or not speech is financially supported by the school

• Does not apply if the speech is obscene, libelous or slanderous

• Does not apply if there is “clear and present danger” that speech could cause unlawful acts, violation of lawful school regulations or substantial disruption of the school day

• Student editors will be responsible for assigning and editing news, feature and editorial content, but a journalism adviser must supervise the staff to maintain professional standards in both English and journalism

Friday, June 22, 12

• There shall be no prior restraint of student journalism unless it violates the standards above (obscene, libelous, slanderous)

• Advisers and/or teachers may not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized by the code (added 2008)

Friday, June 22, 12

Education Code 48950 (the Leonard Law): for public + private high school journalists in California

“In addition to the First Amendment to the U.S. Constitution, states can provide additional free speech protection to their own citizens by enacting state laws or regulations. California Educ. Code Sec. 48950, also known as the "Leonard Law," does just that. California is the only state that has enacted a law that prohibits private high schools from making or enforcing any rule that would subject a student to disciplinary action for engaging in expression (on or off campus) that would be protected by the First Amendment or the California Constitution's free expression provision if it occurred off campus.“The legislative history of the law states: ‘It is the intent of the Legislature that a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus.’ ”

Source: Student Press Law Center, at http://www.splc.org/knowyourrights/law_library.asp?id=13

Friday, June 22, 12

What the Leonard Law allows/doesn’t allow

• Private secondary schools can’t discipline students for speech that would be protected outside of school by the 1st Amendment or by the California Constitution.

• Students whose free speech rights have been harmed may file a civil suit, and if they win, courts may award attorneys’ fees to the students/plaintiffs.

• The law doesn’t apply to private secondary schools that are controlled by a religious organization (sorry, Convent and S.I.)

• Schools are still free to impose discipline for harassment, threats, or intimidation, unless constitutionally protected.

• The Leonard Law doesn’t go beyond 48907, but it doesn’t limit it, either.

• Free speech is still subject to time, place and manner regulations.

Friday, June 22, 12

Next: “Bong hits” and Bethel v. Fraser

Photo by Associated Press, March 16, 2007/Fair Use exemption.

Friday, June 22, 12