March 23, 2007

Student Press Rights

In today's News Journal, its esteemed editors have "taken the stance" that a school's student "should enjoy same freedoms adult Americans share." But right from the get-go, they seem to show complete ignorance of how American law functions:

Washington state's Legislature recently passed a bill that would protect high school and college journalists from prior review and other censorship, and would make student editors solely responsible for their newspaper's contents. For public high schools, this bill could negate the effect of the U.S. Supreme Court's 1988 Hazelwood v. Kuhlmeier decision, which granted principals impressive powers to censor publications if they can produce reasonable educational justifications.

How can an individual state's law (bill, at this point) "negate" a United States Supreme Court decision, pray tell? I can just imagine what the WNJ editors would be writing if an individual state passed a bill outlawing all abortions; would they be writing (favorably) that this bill "could negate" Roe v. Wade?

Students once enjoyed more protection. A 1969 Supreme Court ruling, Tinker v. Des Moines, decreed that student expression could not be censored unless it substantially disrupted school activities or invaded someone's privacy. Students do not, Tinker insisted, "shed their constitutional rights at the schoolhouse gate." Today, they often must do so.

The editors cite a few examples:

  • an Indiana principal condemned a column about homosexuality and established a policy requiring prior review;
  • a California paper was distributed after a rape story had been scissored out of it, on a principal's orders;
  • an Ohio principal censored a column critical of his school's football team.

Without knowing precisely what these instances had to deal with, let's take look-see one at a time:

  • In the Indiana example, what exactly was the article dealing with homosexuality about? Was it favorable or unfavorable to it? Would the WNJ be opining in favor of free speech if the article condemned homosexuality in the strongest terms imaginable (sans any four-letter words)? If it was a very negative column, doesn't the school have to take into account the well-being of gay students? (They're harassed enough as it is, even those merely suspected of being gay.) This is why it's necessary to know what was in the student article. If it was merely a column stating that gays should have the same rights as every American, this doesn't have the potential of disrupting the "educational environment" much like the previous hypothetical column would.
  • What was that rape story about?? Was it written in such a way as to potentially ID the victim? To possibly falsely implicate -- label -- a perpetrator? Without knowing (thanks again, WNJ editors!), this seems to tie directly to case precedent -- the aforementioned 1988 Hazelwood v. Kuhlmeier. In that, the Hazelwood HS principal had excised two articles from a student newspaper:
    One of the deleted articles covered the issue of student pregnancy and included interviews with three students who had become pregnant while attending school. (There was also an article about several students whose parents had been divorced, however their names were disclosed in the article.) To keep the students' identity secret the staff used pseudonyms instead of the students' names. The principal said he felt the anonymity of the students was not sufficiently protected and that the girls' discussion of their use or non-use of birth control was inappropriate for some of the younger students at the school.

    Would the WNJ editors be OK with the "outing" of one of their own daughters who happened to have become pregnant -- because of such an article? Would the WNJ editors have no problem with their young (and underage) daughters (say a 13-14 yr. old 9th grader) reading a graphic discussion about intercourse -- and NON-use of birth control? Perhaps they would. But school authorities have to deal with -- as appropriately as possible -- the educational environment for ALL students, and taking age (appropriate level of behavioral and social development, that is) into account is quite important. And, obviously, the SCOTUS agrees. ( Hazelwood was a 5-3 decision.)

  • The Ohio principal's case is surely the weakest. Mere criticism of a school's own sports team certainly seems the perfect domain for student newspapers. The only stipulation I could possibly see is name-calling, inappropriate innuendo, or inappropriate language.

The WNJ editors insist that 1969's Tinker v. Des Moines grants students more rights. Two things: One, Tinker could not "compel a public school to affirmatively sponsor speech that conflicts with its 'legitimate pedagogical goals.' " Two, the SCOTUS used Tinker as a basis for their decision in Hazelwood. 'Nuff said.

Mike Hiestand, a Student Press Law Center attorney, assesses the situation pessimistically, saying, "It's easy to persuade people in the general public that censorship of student expression is OK."

It's not OK. It sends students the troubling message that they do not enjoy full First Amendment opportunities to express opinions and report substantive news. They often grow passive, and censor themselves.

Tinker, which the editors cite favorably, does exactly that, however! Reasonable people recognize that students are not yet adults (excepting 18 yr. old HS seniors). To argue that their constitutional rights being "restricted" is in general a "bad" thing is just silly, especially since the Constitution already limits non-adult rights. Age is a limiting factor all over the document. Is a 16 yr. old genius' constitutional rights "violated" because he cannot vote? Is a 15 yr. old's Second Amendment rights violated because he is not permitted to purchase a handgun?

The WNJ editors close by repeating their devoid-of-civics-understanding canard:

The encouragement here is for someone -- perhaps a coalition of students, parents and teachers -- to adopt Student Press Law Center guidelines in fashioning an "anti-Hazelwood" bill to be considered by state legislators. Naturally, student journalists would still be expected to abide by professionally accepted standards for libel and defamation.

Delaware should follow Washington state's lead by shaping legislation that would reverse the restraints that are today so deeply embedded in scholastic journalism.

Again, how do state legislatures have such power? How can they overturn a US Supreme Court decision merely by passing a law? This is ridiculous. Just imagine if the Delaware State House passed a law allowing for prayer in public schools, say, in reaction to what happened in the Indian River School District last year. Would we read the WNJ editors be clamoring that this law would "reverse the restraints" of overzealous exclusion of religion from the public realm? Ha.

Let's be clear: I am quite a proponent of the First Amendment. But with any amendment -- individual right -- there are restraints. The 'ol not being able to yell "fire" in a crowded theatre. Chaplinsky's "fighting words" standard. The Second Amendment doesn't give a right to own a howitzer. Etc. And clearly, the highest court in the land recognizes that certain restrictions are appropriate for underage students in an educational setting.

Posted by Hube at March 23, 2007 11:27 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

Interestingly enough, Hube, I've been writing on Tinker as well.

http://rhymeswithright.mu.nu/archives/220062.php

But I will point something out to you about Chaplinsky -- the history of narrowing the definition of "fighting words" is such that it is likely to be overruled if a substantially identical case were ever to appear.

Posted by: Rhymes With Right at March 24, 2007 10:41 AM

RwR: I totally agree with you about Chaplinsky. I once had a detailed debate w/a guy on an internet forum about 7 yrs. ago where I found myriad resources that argued just what you said about the case. My opponent's whole point was that some veiled "threat" made to him by another internet debater was a violation of Chaplinsky, whereupon I detailed how there was no way in hell he'd ever win his "case."

Posted by: Hube at March 24, 2007 11:11 AM

Your analysis is wrong.

The Constitution--as interpreted by the Supreme Court--sets ONE WAY LIMITS on state action.

By this I mean that they set (clearly or not) on what the state can restrict: "one can censor up to ______ point and no further" or "in order to censor speech, one must have at least _____ justification"

You are misinterpreting that as a requirement for censorship. This is a common mistake.

think of it this way:
1) speech is a protected right
2) censorship is a government action
3) the USSC has put limits on censorship in order to protect the right to speech.

there is no "right", however, for a principal to censor.

So: What Washington could not do is to allow for the imposition of censorship that was more severe than the "upper limits" established by the USSC via Tinker and other cases.

Why? because they Washington would be violating the rights of the students. they can't do that.

However, washington is free to pass the law described here, because it limits the ability of the state to act. in other words, it RELAXES the restrictions on speech--which means that it is, by definition, within the permissible limits of the USSC rulings in Tinker.

the funny thing is that
1) you got it backwards, and
2) you apparently like to post on first Amendment issues, and
3) people actually said "This is one of the most staggering examples of pure ignorance I've ever read"

heh. irony is fun.

Posted by: Sailorman at April 8, 2007 04:00 PM

Here is the key passage:

For public high schools, this bill could negate the effect of the U.S. Supreme Court's 1988 Hazelwood v. Kuhlmeier decision, which granted principals impressive powers to censor publications if they can produce reasonable educational justifications.

You will need to explain precisely how Washington state's legislature can supercede Supreme Court precedent. This precedent states above that Hazelwood granted principals powers to censor publications if able to cite reasonable reasons. Tinker also allows such. Since the SCOTUS ruled thusly, how can this power be taken away from the principals (or other school officials) merely by passage of state law?

I also do not see where I am "misinterpreting [that] as a requirement for censorship." What requirement? I am merely making the point that Washington state cannot strip a principal of his power as affirmed by the SCOTUS in Hazelwood. You write So: What Washington could not do is to allow for the imposition of censorship that was more severe than the "upper limits" established by the USSC via Tinker and other cases. Then why does the editorial write "negate" if the legislation "merely" doesn't allow for more "severe" censorship? You seem to be saying that the legislation merely codifies Hazelwood and Tinker which ultimately makes your comments moot.

My analysis is not wrong and the newspaper editors are.

Posted by: Hube at April 8, 2007 06:22 PM

Sorry, Hube, but the editors are 100% correct on this one. They never said the legislation in question could negate the Hazelwood decision, only that it would negate its effect. As indeed it will. Just because the First Amendment says state law may permit schools to censor student publications without running afoul of the First Amendment, it provides no authority at all for the position that a state must give schools that broad and sweeping power. The First Amendment does not require what it barely permits.

Posted by: Xrlq at April 8, 2007 07:45 PM

Xrlq: I remain confused. (This must be why I could never be a lawyer, even though I remain intrigued by the law.) So, let me see if I follow:

If a state passes a law that says principals cannot censor student publications in schools

EVEN THOUGH

the SCOTUS has ruled that this very action is permissible

... it doesn't matter??

What if a school district sued under Hazelwood for a principal to so censor something that was deemed "educationally inappropriate?" Does Hazelwood state just what you say -- that states CAN grant principals the right to censor ... but also explicitly say that they don't HAVE to?

And what about the 14th Amendment's "imposition" of the BoR on the states? I always seem to feel that such a ruling as Hazelwood MUST apply to the states.

Posted by: Hube at April 8, 2007 08:04 PM

Xrlq: The Student Press Law Center confirms what you and Sailorman write:

Are there any other legal rights students might have to keep school officials from censoring?
An important caveat goes along with all of this information about the Hazelwood decision: the Supreme Court was only ruling on the protections the First Amendment to the United States Constitution offers to public high school students. They left open the possibility that other avenues of protection, including everything from state constitutional provisions or state laws to school board regulations, might still prevent school officials from censoring.
(Link.)

I admit my error. I still am baffled as to 14th Amendment provisions, however.

Is this basically legally "uniform," then, when examining federalism -- that the states can only act to enhance freedoms permitted by the federal constitution, and not the reverse?

Posted by: Hube at April 8, 2007 08:34 PM
What if a school district sued under Hazelwood for a principal to so censor something that was deemed "educationally inappropriate?"

They'd lose, big time, and their attorney would likely be sanctioned for bringing a frivolous action.

Does Hazelwood state just what you say -- that states CAN grant principals the right to censor ... but also explicitly say that they don't HAVE to?

Yes. Governments, including government schools, don't have First Amendment rights. Only individuals do. If a state wants to pass laws allowing their schools to censor students to the full extent allowed by the First Amendment, they may. But I know of no authority, in Hazelwood or anywhere else, for the position that they are required to. From a First Amendment perspective, government schools have no inherent "right" to do anything at all.

And what about the 14th Amendment's "imposition" of the BoR on the states? I always seem to feel that such a ruling as Hazelwood MUST apply to the states.

Indeed it does, else Hazelwood itself could never have been decided. Hazelwood was a First Amendment case involving a school district in Missouri. If the First Amendment didn't apply to Missouri, there would have been no issue for the USSC to decide.

Posted by: Xrlq at April 8, 2007 08:35 PM
Is this basically legally "uniform," then, when examining federalism -- that the states can only act to enhance freedoms permitted by the federal constitution, and not the reverse?

Yes. As a rule, the federal Constitution imposes one check on state government, while state law imposes others.

Posted by: Xrlq at April 8, 2007 08:40 PM

I'm intrigued now. Theoretically, then, a state could pass a law that could allow for more, say, protections for prayer in schools (student-led, little staff involvement etc. to follow various precedents) and as long as the established "federal limits" are recognized?

(But such cases are so labyrinthine as to defy description!)

Posted by: Hube at April 8, 2007 09:21 PM

In theory, yes. In practice, only to a point, since too much state protection for student-led prayer would likely be deemed a state endorsement of religion, in violation of the Establishment Clause. There is no equivalent of the Establishment Clause for non-religious expression, however, so when it comes to protecting any kind of speech outside of religion, the First Amendment is a floor, and there is no (federal) ceiling.

Posted by: Xrlq at April 8, 2007 09:39 PM

Hube -- Let me take a stab at this one.

IIRC, SCOTUS said in Hazelwood that a principal (or superintendent or school board) has the power to engage in censorship in cases where a school district the paper is published as part of the curriculum or as an official school publication -- meaning, generally, that a paper published as a part of an extracurricular program or an independent voice may not be censored. However, as Sailorman points out, a school district or a state may establish policy that limits this censorship power. After all, greater protection is being granted to students free speech rights than the Constitution requires.

Let me offer another First Amendment example to you. The US Constitution provides no right for you to engage in free speech in a privately-owned shopping mall. The state of California, under its state Constitution, does grant such a right. The two power are not in conflict, because greater rights are being granted citizens than the Constitution requires.

The point is that the states may grant MORE FREEDOM than the Constitution requires -- they may not grant less.

Posted by: Rhymes With Right at April 9, 2007 06:12 AM

Thanks, RwR. I definitely got it now. As I noted, I initially got hung up with the SCOTUS ruling vs. state law.

So, essentially, if a school principal censors something in a school publication, is sued, and the state has NO measures in state law granting more protection than Hazelwood, then the principal is more than likely to prevail.

Posted by: Hube at April 9, 2007 08:16 AM

You will need to explain precisely how Washington state's legislature can supercede Supreme Court precedent. This precedent states above that Hazelwood granted principals powers to censor publications if able to cite reasonable reasons. Tinker also allows such. Since the SCOTUS ruled thusly, how can this power be taken away from the principals (or other school officials) merely by passage of state law?

This is confusing because you have restated hazelwood in a manner that seems equivalent to a layperson, but really is quite different. this is going to be a tad confusing to explain. Sorry, but there are lots of double negatives involved.

Here we go:

Hazelwood didn't grant PRINCIPALS any additional rights. Hazelwood granted the STATES additional rights.

So: what right did the states gain in hazelwood? It is best described as:
"the right to be able to pass laws allowing principals to restrict student speech."

There are a few crucial points.

First, "the right to be able to pass laws..." the states did not gain a REQUIREMENT to do anything. They gained a RIGHT to do something. These are quite different--my right to free speech doesn't require that I never stop talking, even if I'm legally entitled to do so. And a state's right to pass restrictive laws doesn't mean that the state has to do so.

Second, "...allowing principals to restrict student speech" the additional state rights only are relevant in the universe of restrictions. The constitution is designed to PROTECT rights, not LIMIT rights. So a state is always free to pass laws that enhance the rights of its citizens, by granting ADDITIONAL rights.

this is to say, there was never--and could never be--any pre-existing rule against the state passing a law FORBIDDING principals from restricting student speech.


Think of it in a non-speech way for a moment. Think criminal laws.

Can a state say "hey, we'll just put folks in jail on the say-so of cops"?

No--that violates due process.

OTOH, can a state say "hey, we'll make it extra, super-duper, hard to put folks in jail, and will also grant them no fewer than 32 appeals, each with state-paid attorneys"?

Sure. that grants ADDITIONAL process.

Make sense?

Posted by: Sailorman at April 9, 2007 11:40 AM

Sailorman: Thanks for coming back and further putting me on the correct path! I full grasp the scenario now and appreciate your explanation(s). :-) Sorry to have come across so cock-sure previously. Talk about your ever-lovin' crow-eatin'.

I did understand what you wrote, although I must say I might not have were it not for Xrlq and RwR and their infinite patience.

Posted by: Hube at April 9, 2007 11:57 AM

heh. sorry i sounded snotty before. It wasn't you--it was a client who was late to a meeting. on a weekend, yet.

Posted by: Sailorman at April 9, 2007 02:36 PM

Are you an attorney, Sailorman?

Posted by: Hube at April 9, 2007 03:44 PM

yes

Posted by: Sailorman at April 10, 2007 04:06 PM