Student Journalism Confronts a New Generation of Legal Challenges

Vol. 35 No. 3

By

Frank D. LoMonte is an attorney and executive director of the Student Press Law Center, a nonprofit legal aid service for student journalists.

While public school administrators now largely understand that the First Amendment prohibits them from forcing student journalists to withhold or revise disfavored editorial content, that understanding has merely made censorship less overt—not, regrettably, less frequent.

Censorship 2.0 involves pressure indirectly applied: changes to the governance structure of the student newspaper, reassignment (or outright firing) of the faculty adviser, or crippling cuts to the publication budget. These tactics may be subtler than leaning over the student editor’s shoulder and pressing the delete key, but they are no less effective.

Fortunately, the law is catching up with the creativity of its would-be evaders. Courts are—with some notable exceptions—recognizing that retaliation by schools and colleges in response to protected speech violates the First Amendment even if the retaliation is indirect.


Courts Grapple with Scope of Student Rights

The Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988), reaffirmed that, even at the high school level, what students say in school newspapers is protected by the First Amendment. The only question is what showing school administrators must make to justify overriding students’ interest in free speech. (Most courts and commentators believe Kuhlmeier has no application at the college level, where the state always must establish a compelling interest to legitimize censorship.)

Kuhlmeier coined a two-tiered analysis, applying rigorous scrutiny where student newspapers operate as public forums but relaxed scrutiny where the forum is—through policy or practice—nonpublic.

The First Amendment outlaws not merely the most overt and noxious of censorship, the prior restraint, but also after-the-fact retaliation that is sufficiently severe as to chill a speaker’s willingness to engage in future lawful speech. The form that retaliation can take appears to be limited only by the imagination of school administrators.

In a July 2007 ruling, Husain v. Springer , 494 F.3d 108 (2d Cir. 2007), the Second Circuit found that officials of New York’s College of Staten Island violated the First Amendment rights of student editors by nullifying a student government election in response to what administrators contended was the unfair use of the paper to endorse one party’s slate of candidates.

In a ruling issued the same month, Lane v. Simon , 495 F.3d 1182 (10th Cir. 2007), the Tenth Circuit declined to decide whether students’ free speech rights were violated when Kansas State University officials removed their veteran newspaper adviser, claiming dissatisfaction with the “quality” of the publication. Instead of reaching the constitutional issue, the Tenth Circuit merely vacated the district court’s finding that no First Amendment violation occurred, ruling that the students’ claims became moot when, during the appeal process, they graduated.


Students Find Refuge in State Law

In part because of the uncertain reception their claims will receive in federal court, advocates for student speech rights increasingly are looking to states for relief.

Last year, Oregon became the seventh state to enact a “student free press” statute, declaring that high school and college editors are the ultimate gatekeepers of content in student publications. This assures that students’ editorial decisions receive the fullest First Amendment protection recognized in Kuhlmeier . A similar initiative, however, stalled in the Washington legislature for the second straight year in the face of opposition from school administrators.

California , the earliest to adopt such a statute, remains the leader in safeguarding the rights of student journalists and is on the verge of enacting the nation’s strongest antiretaliation statute explicitly protecting the rights of journalism teachers who speak in defense of what their students publish.

Since 1978, California statutes have outlawed censorship by public schools unless students’ speech is “obscene, libelous or slanderous… [or] so incites students as to create a clear and present danger” of unlawful or substantially disruptive acts.

Applying that protective statute, California’s First Appellate District found in May 2007 that a student author’s rights were violated when the school principal and superintendent publicly denounced the student’s anti-immigration opinion column, declaring that the column was unprotected speech and never should have been published. By sending the message that “future speech similar to [the column] would not be tolerated,” the court held, the officials intimidated the author—and future authors—into refraining from expressing similar viewpoints. Smith v. Novato Unified School District , 150 Cal. App. 4th 1439, 1462, 59 Cal. Rptr. 3d 508, 524 (Cal. Ct. App. 2007).


Online Cases Present Ominous Trend

Despite gains made in some state courts and legislatures, this is an anxious time for student journalism. In addition to economic pressures that are causing many high schools to scale back journalism offerings and prompting some collegiate publications to abandon print editions, judicial retrenchment in the protection afforded to online speech casts a long shadow over the ability of students to speak freely even outside of the school day.

In a handful of recent cases, high school administrators have convinced courts that school disciplinary authority should extend to off-campus speech about the school that could reasonably be anticipated to have a disruptive impact if viewed or discussed in school.

In the most worrisome of these cases, Doninger v. Niehoff , 527 F.3d 41 (2d Cir. 2008), the Second Circuit ruled in May 2008 that a Connecticut high school could lawfully discipline a student for using a personal online journal to urge the public to contact school administrators—whom she called by an insulting vulgarity—to urge administrators to reverse a decision that threatened a student-organized concert.

The court emphasized that, in its view, Doninger’s characterization of the administrators’ decisions was misleading and her use of a vulgarity threatened to escalate the dispute, although it is black-letter law that speech does not lose its First Amendment protection either because it is false (unless defamatory, which Doninger’s was not) or because it is offensive (a point the Supreme Court reaffirmed in last year’s Morse v. Frederick ruling , 127 S. Ct. 2618 (2007)).

While Doninger was not engaged in traditional journalism, the court’s ruling is in no way limited to personal blogs. Rather, decisions like Doninger portend dangerous times for underground newspapers and other off-campus publications that traditionally have been safe harbors for expression.

Thirty-four years ago, author Jack Nelson wrote in Captive Voices , his seminal study of scholastic journalism, that “[c]ensorship is the fundamental cause of the triviality, innocuousness and uniformity that characterize the high school press.” Nelson’s study fueled the proliferation of independent student periodicals that presaged this generation’s online publishing explosion.
Advocates for student journalism must be vigilant that the creep of school authority into students’ personal writings does not herald a new era of triviality.

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