FREEDOM OF SPEECH AND FREEDOM OF PRESS

The First Amendment to the U.S. Constitution, says that "Congress shall make no law....abridging (limiting) the freedom of speech, or of the press..." Freedom of speech is the liberty to speak openly without fear of government restraint. It is closely linked to freedom of the press because this freedom includes both the right to speak and the right to be heard. In the United States, both the freedom of speech and freedom of press are commonly called freedom of expression.

Freedom of Speech
Why is freedom of speech so solidly entrenched in our constitutional law, and why is it so widely embraced by the general public? Over the years many philosophers, historians, legal scholars and judges have offered theoretical justifications for strong protection of freedom of speech, and in these justifications we may also find explanatory clues. The First Amendment's protection of speech and expression is central to the concept of American political system. There is a direct link between freedom of speech and vibrant democracy. Free speech is an indispensable tool of self-governance in a democratic society. It enables people to obtain information from a diversity of sources, make decisions, and communicate those decisions to the government. Beyond the political purpose of free speech, the First Amendment provides American people with a "marketplace of ideas." Rather than having the government establish and dictate the truth, freedom of speech enables the truth to emerge from diverse opinions. Concurring in Whitney v. California (1927), Justice Louis Brandeis wrote that "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." On a communal level, free speech facilitates majority rule. It is through talking that we encourage consensus, that we form a collective will. Whether the answers we reach are wise or foolish, free speech helps us ensure that the answers usually conform to what most people think. Americans who are optimists (and optimism is a quintessentially American characteristic) additionally believe that, over the long run, free speech actuallyimproves our political decision-making. Just as Americans generally believe in free markets in economic matters, they generally believe in free markets when it comes to ideas, and this

includes politics. In the long run the best test of intelligent political policy is its power to gain acceptance at the ballot box. On an individual level, speech is a means of participation, the vehicle through which individuals debate the issues of the day, cast their votes, and actively join in the processes of decision-making that shape the polity. Free speech serves the individuals right to join the political fray, to stand up and be counted, to be an active player in the democracy, not a passive spectator. Freedom of speech is also an essential contributor to the American belief in government confined by a system of checks and balances, operating as a restraint on tyranny, corruption and ineptitude. For much of the worlds history, governments, following the impulse described by Justice Holmes, have presumed to play the role of benevolent but firm censor, on the theory that the wise governance of men proceeds from the wise governance of their opinions. But the United States was founded on the more cantankerous revolutionary principles of John Locke, who taught that under the social compact sovereignty always rests with the people, who never surrender their natural right to protest, or even revolt, when the state exceeds the limits of legitimate authority. Speech is thus a means of "people-power," through which the people may ferret out corruption and discourage tyrannical excesses. Counter-intuitively, influential American voices have also often argued that robust protection of freedom of speech, including speech advocating crime and revolution, actually works to make the country more stable, increasing rather than decreasing our ability to maintain law and order. Again the words of Justice Brandeis inWhitney v. California are especially resonant, with his admonition that the framers of the Constitution "knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones." If a society as wide-open and pluralistic as America is not to explode from festering tensions and conflicts, there must be valves through which citizens with discontent may blow off steam. In America we have come to accept the wisdom that openness

fosters resiliency, that peaceful protest displaces more violence than it triggers, and that free debate dissipates more hate than it stirs. The link between speech and democracy certainly provides some explanation for the American veneration of free speech, but not an entirely satisfying or complete one. For there are many flourishing democracies in the world, but few of them have adopted either the constitutional law or the cultural traditions that support free speech as expansively as America does. Moreover, much of the vast protection we provide to expression in America seems to bear no obvious connection to politics or the democratic process at all. Additional explanation is required. Probably the most celebrated attempt at explanation is the "marketplace of ideas" metaphor, a notion that is most famously associated with Holmes' great dissent in Abrams, in which he argued that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." The marketplace of ideas metaphor does not posit that truth will emerge from the free trade in ideas, at least not instantly. That would be asking too much. It merely posits that free trade in ideas is the best test of truth, in much the same way that those who believe in laissez-faire economic theory argue that over the long haul free economic markets are superior to commandand-control economies. The American love of the marketplace of ideas metaphor stems in no small part from our irrepressible national optimism, the American "constitutional faith" that, given long enough, good will conquer evil. As long as this optimism is not blind naivet, but is rather a motive force that encourages us to keep the faith in the long view of history, it can be a self-fulfilling prophecy. Just as we often have nothing to fear but fear, hope is often our best hope. Humanity may be fallible, and truth illusive, but the hope of humanity lies in its faith in progress. The marketplace metaphor reminds us to take the long view. Americans like to believe, and largely do believe, that truth has a stubborn and incorrigible persistence. Cut down again and again, truth will still not be extinguished. Truth will out, it will be rediscovered and rejuvenated. It will prevail. The connection of freedom of speech to self-governance and the appeal of the marketplace of ideas metaphor still, however, do not tell it all. Freedom of speech is linked not merely to such grandiose ends as the service of the democracy or the search for truth. Freedom of

speech has value on a more personal and individual level. Freedom of speech is part of the human personality itself, a value intimately intertwined with human autonomy and dignity. In the words of Justice Thurgood Marshall in the 1974 case Procunier v. Martinez,"The First Amendment serves not only the needs of the polity but also those of the human spirit a spirit that demands self-expression." Many Americans embrace freedom of speech for the same reasons they embrace other aspects of individualism. Freedom of speech is the right to defiantly, robustly and irreverently speak ones mind just because it is ones mind. Freedom of speech is thus bonded in special and unique ways to the human capacity to think, imagine and create. Conscience and consciousness are the sacred precincts of mind and soul. Freedom of speech is intimately linked to freedom of thought, to that central capacity to reason and wonder, hope and believe, that largely defines our humanity. If these various elements of our culture do in combination provide some insight into why freedom of speech exerts such a dominating presence on the American legal and cultural landscape, they do not by any means come close to explaining the intense and seemingly neverending legal and cultural debates over the limits on freedom of speech. While the language of the First Amendment appears absolute, freedom of speech is not an absolute right. Certain limitations and restrictions apply. Conflicts involving freedom of expression are among the most difficult ones that courts are asked to resolve. This ongoing process is often contentious and no one simple legal formula or philosophical principle has yet been discovered that is up to the trick of making the job easy. Americans thus continue to debate in political forums and litigate in courts such issues as the power of society to censor offensive speech to protect children, the permissibility of banning speech that defeats protection of intellectual property, the propriety of curbing speech to shelter personal reputation and privacy, the right to restrict political contributions and expenditures to reduce the influence of money on the political process, and countless other free-speech conflicts. Free speech cases frequently involve a clash of fundamental values. For example, how should the law respond to a speaker who makes unpopular statement to which the listeners react violently? Should police arrest the speaker or try to control the crowd? Courts

must balance the need for peace and order against the fundamental right to express ones point of view. According to the current state of law, freedom of speech does not protect the following: Speech that contains "fighting words" (insulting or abusive language that is likely to cause "an immediate violent response"); Obscenities; Language or communication directed to inciting, producing or urging the commission of a crime; Defamation words or communication that are false and untrue and are intended to injure the character and reputation of another person; Abusive, obscene or harassing telephone calls; Loud speech and loud noise meant by volume to disturb others or to create a clear and present danger of violence. Yet while the country continues to struggle mightily to define the limits and continues to debate vigorously the details, there is surprisingly little struggle and debate over the core of the faith. Americans truly do embrace the central belief that freedom of speech is of utmost value, linked to our defining characteristics as human beings. While limits must exist, American culture and law approach such limits with abiding caution and skepticism, embracing freedom of speech as a value of transcendent constitutional importance.

Freedom of Press
Freedom of the press protects the right to obtain and publish information or opinions without government censorship or fear of punishment. Censorship occurs when the government examines publications and productions and prohibits the use of material it finds offensive. Freedom of press applies to all types of printed and broadcast material, including books, newspapers, magazines, pamphlets, films and radio and television programs. The Constitution's framers provided the press with broad freedom. This freedom was considered necessary to the establishment of a strong, independent press sometimes called "the fourth branch" of the government. An independent press can provide citizens with a variety of information and opinions on matters of public importance. However, freedom of press sometimes collides with other rights, such as a defendant's right to a fair trial or a citizen's right to privacy. In recent years, there has been increasing concern about extremely aggressive

journalism, including stories about people's sexual lives photographs of people when they were in a private setting.

and

In the United States, the government may not prevent the publication of a newspaper, even when there is reason to believe that it is about to reveal information that will endanger our national security. By the same token, the government cannot:

Pass a law that requires newspapers to publish information against their will. Impose criminal penalties, or civil damages, on the publication of truthful information about a matter of public concern or even on the dissemination of false and damaging information about a public person except in rare instances. Impose taxes on the press that it does not levy on other businesses. Compel journalists to reveal, in most circumstances, the identities of their sources. Prohibit the press from attending judicial proceedings and thereafter informing the public about them.

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the freedom of the press guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and now Web sites and Internet postings. The framers' conception of freedom of the press has been the subject of intense historical debate, both among scholars and in the pages of judicial opinions. At the very least, those who drafted and ratified the Bill of Rights purported to embrace the notion, derived from William Blackstone, that a free press may not be licensed by the sovereign, or otherwise restrained in advance of publication (see New York Times Co. v. United States, 1971.) And, although the subject remains a lively topic of academic debate, the Supreme Court itself reviewed the historical record in 1964 in New York Times Co. v. Sullivan and

concluded that the central meaning of the First Amendment embraces as well a rejection of the law of seditious libel i.e., the power of the sovereign to impose subsequent punishments, from imprisonment to criminal fines to civil damages, on those who criticize the state and its officials. To a great extent, however, what we mean by freedom of the press today was shaped in an extraordinary era of Supreme Court decisionmaking that began with Sullivan and concluded in 1991 with Cohen v. Cowles Media Co. During that remarkable period, the Court ruled in at least 40 cases involving the press and fleshed out the skeleton of freedoms addressed only rarely in prior cases. In contrast, although the Court in the early part of the last century had considered the First Amendment claims of political dissidents with some frequency, it took nearly 150 years after the adoption of the Bill of Rights, and the First Amendment along with it, for the Court to issue its first decision based squarely on the freedom of the press. That 1931 case, Near v. Minnesota, ratified the Blackstonian proposition that a prior restraint a legal prohibition on the presss ability to publish information in its possession will almost always violate the First Amendment.Near is a landmark, not just because it was the Courts first decision to invoke the press clause, but because it established a fundamental precept of constitutional law that once the press has gotten its hands on information that it deems to be newsworthy, the government can seldom, if ever, prevent that information from being published. Over the course of the quarter-century following Sullivan, the Court made it its business to explore the ramifications of the case on a virtually annual basis. During that period, the Supreme Courts elaboration of what we mean by a free press focused on the nature of the official restraint alleged to compromise that freedom as well as the extent to which the First Amendment protects the press from a given species of governmental action or inaction. Thus, in cases such as Near and the Pentagon Papers case (1971's New York Times Co. v. United States, the Court established that freedom of the press from previous restraints on publication is nearly absolute, encompassing the right to publish information that a president concluded would harm the national security, if not the movements of troopships at sea in time of war. In 1974's Miami Herald Publishing Co. v. Tornillo, the Court

embraced the analogous proposition that the government has virtually no power to compel the press to publish that which it would prefer to leave on the proverbial cutting room floor. In that regard, however, it must be noted that not all media are created equal when it comes to entitlement to the full protections of the First Amendments press clause. Most significantly, because of a perceived scarcity of the electromagnetic spectrum, the Court has held that Congress and the Federal Communications Commission may regulate the activities of broadcasters operating over public airwaves in a manner that would surely violate the First Amendment if applied to newspapers. (Compare Red Lion Broadcasting v. FCC (1969) with Tornillo.) The Courts reasoning in Red Lion, in which it upheld the Commissions Fairness Doctrine and personal attack rule i.e., the right of a person criticized on a broadcast station to respond to such criticism over the same airwaves licensed to that station has never been disavowed, although the justices have expressly declined to extend it to other, later-developed communications media, including cable television (1994's Turner Broadcasting v. FCC) and the Internet (1997'sReno v. ACLU), to which the scarcity rationale for regulation is plainly inapplicable. Even in the broadcast context, however, Sullivan and the cases that followed it stand for the proposition that the First Amendment protects the publication of truthful information about matters of public concern, not just from prior restraint, but also from subsequent punishment, at least in the absence of a demonstrated need to vindicate a competing government interest of the highest order. This formulation has come to be known as the Daily Mail principle, after the Supreme Courts 1979 decision in Smith v. Daily Mail Publishing Co., in which the Court held that a newspaper could not be liable for publishing the name of a juvenile offender in violation of a West Virginia law declaring such information to be private. The protections against subsequent punishments for reporting the truth afforded by the Daily Mail principle are not absolute, but the barriers to such government regulation of the press are set extremely high. Sullivan and cases that followed also hold that the First Amendment protects the publication of false information about matters of public concern in a variety of contexts, although with considerably less vigor than it does dissemination of the truth. Even so, public officials and

public figures may not recover civil damages for injury to their reputations unless they were the victims of a reckless disregard for truth in the dissemination of a calculated falsehood. Indeed, private persons may not collect civil damages for reputational harm caused by falsehoods relating to a matter of public concern unless the publishers conduct violates a fault-based standard of care. And although expressions of opinion are not always immune from legal sanction, in its 1990 decision in Milkovich v. Lorain Journal Co., the Court held that statements not capable of being proven false, or which reasonable people would not construe as statements of fact at all, but rather as mere rhetorical hyperbole, are absolutely protected by the First Amendment. By the same token, the Supreme Court has been considerably less definitive in articulating the degree of First Amendment protection to be afforded against restraints on the freedom of the press that are indirect and more subtle than the issuance of a prior restraint or the imposition of criminal or civil sanctions subsequent to publication. Thus, for example, in its 1978 decision Zurcher v. Stanford Daily, the Court held that the First Amendment does not protect the press and its newsrooms from the issuance of otherwise valid search warrants. Similarly, in 1979 in Herbert v. Lando, the Court concluded that the press clause does not encompass a privilege that would empower a journalist to decline to testify about the editorial process in civil discovery. Most significantly, in 1972 in Branzburg v. Hayes, a sharply divided Court was skeptical of the contention that the First Amendment protects journalists from the compelled disclosure of the identities of their confidential sources, at least in the context of a grand-jury proceeding. The Court, however, has not addressed that issue in the 30 years since Branzburg, and has effectively permitted the lower courts to fashion an impressive body of law grounding just such a reporters privilege firmly in the press clause itself. That privilege, however, is by no means absolute and may be forfeited in a variety of circumstances, especially when no confidential source is thereby placed in jeopardy or when disclosure is sought in the context of a grand-jury or other criminal proceeding. And, finally, the Court has held that the First Amendment affords the press and public affirmative rights of access to at least some government proceedings. In a series of decisions beginning with

1980's Richmond Newspapers, Inc. v. Virginia, the Court established that the First Amendment not only protects the press from prior restraints and other government-imposed penalties, but also invests the press and public with a right to attend criminal trials and other judicial proceedings. This right, however, is not absolute and is routinely balanced against other competing interests articulated by the proponents of secret proceedings. Nevertheless, in such cases, and others like 1975's Cox Broadcasting Corp. v. Cohn, the Court has expressly recognized the structural role that the press plays as a surrogate for the larger public in gathering and disseminating information on its behalf and for its benefit. Significantly, however, the Court has taken great pains not to anoint the press with First Amendment-based rights and immunities beyond those enjoyed by any speaker, lonely pamphleteer (seeBranzburg v. Hayes, 1972), or Internet chat-room participant. Indeed, the Court has rejected arguments advanced by the institutional press that, because of its structural role in ensuring the free flow of information in a democratic society, it ought to enjoy unique protections from otherwise generally applicable laws that inhibit its ability to gather and report the news. Thus, in 1991 in Cohen v. Cowles Media Co., the Court effectively concluded the treatise on the freedom of the press it began in Sullivan; it did so when it emphasized that the press is properly subject to liability under the generally applicable law of contracts when it breaks a promise to keep a sources identity confidential, even when it does so in order to report truthful information about the sources involvement in a matter of public concern. In the decade following Cohen, the Court again fell largely silent when it came to the First Amendments application to the institutional press. As the 21st century dawned, however, the Court interrupted that silence, at least briefly, to revisit the extent to which a generally applicable law such as the federal wiretap statute can constitutionally impose criminal penalties and civil liability on the dissemination by the press of the contents of unlawfully recorded telephone conversations, at least when the information so disseminated is the truth about a matter of public concern. In 2001 in Bartnicki v. Vopper, the Court held that, even when a statute is directed at deterring unlawful conduct (e.g., the interception of telephone conversations) and not at penalizing the content of press

reports, it nevertheless constitutes a naked prohibition on the dissemination of information by the press that is fairly characterized as a regulation of pure speech in violation of the First Amendment. In so holding, the Court ushered in a new century of First Amendment jurisprudence by reaffirming both the Daily Mail principle the fundamental right of a free press to disseminate truthful information about public matters and the central meaning of the First Amendment on which it is based Sullivans recognition that the freedom of expression upon public questions is secured by the First Amendment so that debate on public issues should be uninhibited, robust and wide-open. While it is undeniable fact that freedom of press is essential ingredient of democracy, it does not mean it will advance the goals of democracy. Namely, once in this country that now seems far away, radio and television broadcasters had an obligation to operate in the public interest. That generally accepted principle was reflected in a rule known as the Fairness Doctrine. The rule, formally adopted by the Federal Communications Commission in 1949, required all broadcasters to devote a reasonable amount of time to the discussion of controversial matters of public interest. It further required broadcasters to air contrasting points of view regarding those matters. The Fairness Doctrine arose from the idea imbedded in the First Amendment that the wide dissemination of information from diverse and even antagonistic sources is essential to the public welfare and to a healthy democracy. In August 1987 the FCC repealed the Doctrine, claiming that it was unconstitutional, although the Supreme Court had ruled unanimously in 1969 that the Fairness Doctrine was not only constitutional but essential to democracy. As a result, general public is very rarely served with fair and balanced information. The public airwaves serve today no other purpose but to express the opinions of those who can pay for air time. Some authors argue that mainstream media journalism today is a shameful joke because of president Reagan's decision to abolish Fairness Doctrine. Once upon a time, the Fairness Doctrine ensured that the information we receive - information vital to the ability of the people to govern in the manner intended - came from a wide variety of sources and perspectives. Reagan's policies annihilated the Fairness

Doctrine, opening the door for a few mega-corporations to gather journalism unto themselves. Today, Reagan's old bosses at General Electric own three of the most-watched news channels. This company profits from every war Americans fight, but somehow is trusted to tell the truths of war. Thus, the myths and lies are sold to us.

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Rosenberger v. University of Va. (94-329), 515 U.S. 819

(1995).
Opinion [ Kennedy ] Concurrence [ O'Connor ] Syllabus Dissent [ Souter ] Concurrence [ Thomas ]

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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v.Detroit Lumber Co., 200 U.S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus

ROSENBERGER et al. v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 94-329. Argued March 1, 1995 -- Decided June 29, 1995 Respondent University of Virginia, a state instrumentality, authorizes payments from its Student Activities Fund (SAF) to outside contractors for the printing costs of a variety of publications issued by student groups called "Contracted Independent Organizations" (CIOs). The SAF receives its money from mandatory student fees and is designed to support a broad range of extracurricular student activities related to the University's educational purpose. CIOs must include in their dealings with third parties and in all written materials a disclaimer stating that they are independent of the University and that the University is not responsible for

them. The University withheld authorization for payments to a printer on behalf of petitioners' CIO, Wide Awake Productions (WAP), solely because its student newspaper, Wide Awake: A Christian Perspective at the University of Virginia, "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality," as prohibited by the University's SAF Guidelines. Petitioners filed this suit under 42 U.S.C. 1983 alleging, inter alia, that the refusal to authorize payment violated their First Amendment right to freedom of speech. After the District Court granted summary judgment for the University, the Fourth Circuit affirmed, holding that the University's invocation of viewpoint discrimination to deny third party payment violated the Speech Clause, but concluding that the discrimination was justified by the necessity of complying with the Establishment Clause. Held: 1. The Guideline invoked to deny SAF support, both in its terms and in its application to these petitioners, is a denial of their right of free speech. Pp. 7-16. (a) The Guideline violates the principles governing speech in limited public forums, which apply to the SAF under, e.g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46-47. In determining whether a State is acting within its power to preserve the limits it has set for such a forum so that the exclusion of a class of speech there is legitimate, see, e.g., id., at 49, this Court has observed a distinction between, on the one hand, content discrimination-i.e., discrimination against speech because of its subject matter--which may be permissible if it preserves the limited forum's purposes, and, on the other hand, viewpoint discrimination--i.e., discrimination because of the speaker's specific motivating ideology, opinion, or perspective--which is presumed impermissible when directed against speech otherwise within the forum's limitations, see id., at 46. The most recent and most apposite case in this area is Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. __, __, in which the Court held that permitting school property to be used for the presentation of all views on an issue except those dealing with it from a religious

standpoint constitutes prohibited viewpoint discrimination. Here, as in that case, the State's actions are properly interpreted as unconstitutional viewpoint discrimination rather than permissible line drawing based on content: By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter, but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Pp. 7-11. (b) The University's attempt to escape the consequences of Lamb's Chapel by urging that this case involves the provision of funds rather than access to facilities is unavailing. Although it may regulate the content of expression when it is the speaker or when it enlists private entities to convey its own message, Rust v.Sullivan, 500 U.S. 173; Widmar v. Vincent, 454 U.S. 263, 276, the University may not discriminate based on the viewpoint of private persons whose speech it subsidizes, Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548. Its argument that the scarcity of public money may justify otherwise impermissible viewpoint discrimination among private speakers is simply wrong. Pp. 11-14. (c) Vital First Amendment speech principles are at stake here. The Guideline at issue has a vast potential reach: The term "promotes" as used there would comprehend any writing advocating a philosophic position that rests upon a belief (or nonbelief) in a deity or ultimate reality, while the term "manifests" would bring within the prohibition any writing resting upon a premise presupposing the existence (or nonexistence) of a deity or ultimate reality. It is difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Pp. 14-16. 2. The violation following from the University's denial of SAF support to petitioners is not excused by the necessity of complying with the Establishment Clause. Pp. 16-25. (a) The governmental program at issue is neutral toward religion. Such neutrality is a significant factor in upholding programs in the face of Establishment Clause attack, and the guarantee of neutrality is not offended where, as here,

the government follows neutral criteria and even handed policies to extend benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse, Board of Ed. of Kiryas Joel v.Grumet, 512 U. S. __, __. There is no suggestion that the University created its program to advance religion or aid a religious cause. The SAF's purpose is to open a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life. The SAF Guidelines have a separate classification for, and do not make third party payments on behalf of, "religious organizations," and WAP did not seek a subsidy because of its Christian editorial viewpoint; it sought funding under the Guidielines as a "student . . . communications . . . grou[p]." Neutrality is also apparent in the fact that the University has taken pains to disassociate itself from the private speech involved in this case. The program's neutrality distinguishes the student fees here from a tax levied for the direct support of a church or group of churches, which would violate the Establishment Clause. Pp. 16-21. (b) This case is not controlled by the principle that special Establishment Clause dangers exist where the government makes direct money payments to sectarian institutions, see, e.g., Roemer v. Board of Public Works, 426 U.S. 736, 747, since it is undisputed that no public funds flow directly into WAP's coffers under the program at issue. A public university does not violate the Establishment Clause when it grants access to its facilities on a religion neutral basis to a wide spectrum of student groups, even if some of those groups would use the facilities for devotional exercises. See e.g., Widmar, 474 U. S., at 269. This is so even where the upkeep, maintenance, and repair of those facilities is paid out of a student activities fund to which students are required to contribute. Id., at 265. There is no difference in logic or principle, and certainly no difference of constitutional significance, between using such funds to operate a facility to which students have access, and paying a third party contractor to operate the facility on its behalf. That is all that is involved here: The University provides printing services to a broad spectrum of student newspapers. Were the contrary view to become law, the

University could only avoid a constitutional violation by scrutinizing the content of student speech, lest it contain too great a religious message. Such censorship would be far more inconsistent with the Establishment Clause's dictates than would governmental provision of secular printing services on a religion blind basis. Pp. 21-25. 18 F. 3d 269, reversed. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. O'Connor, J., and Thomas, J., filed concurring opinions. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

http://www.law.cornell.edu/supct/html/94-329.ZS.html

School speech (First Amendment)

From Wikipedia, the free encyclopedia

The issue of school speech or curricular speech as it relates to the First Amendment of the U.S. Constitution has been the center of controversy and litigation since the mid-20th century. The First Amendment's guarantee of freedom of speech applies to students in the public schools. In the landmark decision Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court formally recognized that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate".[1] The core principles of Tinker remain unaltered, but are tempered by several important decisions, including Bethel School District v. Fraser,Hazelwood School District v. Kuhlmeier, and Morse v. Frederick.[2] Despite respect for the legitimate educational interests of school officials, the Supreme Court has not abandoned Tinker; it continues to recognize the basis precept of Tinker that viewpoint-specific speech restrictions are an egregious violation of the First Amendment.[2] In Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court declared: "Discrimination against speech because of its message is

presumed to be unconstitutional". Rosenberger held that denial of funds to a student organization on the sole basis that the funds were used to publish a religiously oriented student newspaper was an unconstitutional violation of the right of free speech guaranteed by the First Amendment. Accordingly, for other on-campus speech that is neither obscene, vulgar, lewd, indecent, or plainly offensive under Fraser nor school-sponsored under Hazelwood nor advocating illegal drugs at a school-sponsored event under Frederick, Tinker applies limiting the authority of schools to regulate the speech, whether on or off-campus, unless it would materially and substantially disrupt classwork and discipline in the school.
Contents

1 Tinker v. Des Moines 2 Fraser 3 Hazelwood v. Kuhlmeier 4 Morse v. Frederick 5 School-specific factors

o o o

5.1 Disruption 5.2 Offensiveness 5.3 Impairing educational mission

6 General factors

o o

6.1 Pure speech 6.2 Focus of protected speech activity

7 References 8 See also

Tinker v. Des Moines[edit source]

Main article: Tinker v. Des Moines Independent Community School District In Tinker, several students were suspended for wearing black armbands to school in protest of the Vietnam War. This violated a rule targeted specifically at the wearing of the armbands; the rule did not apply to wearing other sorts of symbols. The Supreme Court held that the students had a First Amendment right to display the armbands at school, notwithstanding the school officials' fear that the display of the symbol would create a disturbance, so long as there was no more than an "undifferentiated fear or apprehension of disturbance".[3] If there were circumstances that would warrant a reasonable fear on the part of the school officials that the display would appreciably disrupt the appropriate discipline in the school, the Supreme Court indicated that school officials could have appropriately prohibited the display of the armband. [4] However, "the prohibition of

expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible".[5] This case has turned out to be "[t]he bedrock from which most First Amendment claims involving students are evaluated", going forward from it, although the cases below have tempered its ruling.[2]

Fraser[edit source]
Main article: Bethel School District v. Fraser In Fraser, a high school student was disciplined following his speech to a school assembly at which he nominated a fellow student for a student elective office. The speech contained sexual innuendos, but not obscenity. The Supreme Court found that school officials could discipline the student. In doing so, it recognized that "[t]he process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order". Recognizing that one of the important purposes of public education is to inculcate the habits and manners of civility as valued conducive both to happiness and to the practice of self-government, the Supreme Court emphasized that "[c]onsciously or otherwise, teachersand indeed the older studentsdemonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class".[6] Under the Fraser standard, school officials look not merely to the reasonable risk of disruption the Tinker standardbut would also balance the freedom of a student's speech rights against the school's interest in teaching students the boundaries of socially appropriate behavior. Schools have discretion to curtail not only obscene speech, but speech that is vulgar, lewd, indecent, or plainly offensive.

Hazelwood v. Kuhlmeier[edit source]

Main article: Hazelwood School District v. Kuhlmeier The Hazelwood School District case applies the principles set forth in Fraser to curricular matters. In Hazelwood, the Supreme Court upheld a school's decision to censor certain articles in the school newspaper which was produced as part of the school's journalism curriculum. Echoing Fraser, the Supreme Court observed that "[a] school need not tolerate student speech that is inconsistent with 'its basic educational mission'...even though the government could not censor similar speech outside the school". School authorities and educators 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.[7]

Morse v. Frederick[edit source]

Main article: Morse v. Frederick

Morse v. Frederick blends Fraser and Hazelwood, applying them to a school-sanctioned event or activity.[2] While students were along a public street in front of school watching the Olympic Torch Relay pass through, Frederick unfurled a banner bearing the phrase: "BONG HITS 4 JESUS". The banner was in plain view of other students. The high school principal seized the banner and suspended Frederick because the banner was perceived to advocate the use of illegal drugs. The Supreme Court held that a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Not only was a school activity involved, but the banner's promotion of illegal drugs was contrary to the school's policy or mission to prevent student drug abuse.

School-specific factors[edit source]

The right of free speech is not itself absolute: the Court has consistently upheld regulations as to time, place, and manner of speech, provided that they are "reasonable".[8] In applying this reasonableness test to regulations limiting student expression, the Court has recognized that the age and maturity of students is an important factor to be considered.[9][10] In the school context, the United States Supreme Court has identified three major relevant considerations:[9] 1. The extent to which the student speech in question poses a substantial threat of disruption ( Tinker v. Des Moines Indep. Cmty. Sch. Dist.). 2. Whether the speech is offensive to prevailing community standards (Bethel School District v. Fraser). 3. Whether the speech, if allowed as part of a school activity or function, would be contrary to the basic educational mission of the school (Hazelwood v. Kuhlmeier). Each of these considerations has given rise to a separate mode of analysis, and in Morse v. Frederick the Court implied that any one of these may serve as an independent basis for restricting student speech. [9]

Disruption[edit source]
The problem of disruption is perhaps the most fundamental issue addressed by the courts in student free speech cases.[9]

Offensiveness[edit source]
The second major question addressed by the courts is closely related to, but nevertheless distinct from, the question of disruption. This is the question of speech which is offensive to prevailing community standards by reason of being vulgar, lewd, indecent, racist, or otherwise inappropriate in a school setting. [9] In Bethel School District v. Fraser, the Supreme Court recognized the special responsibility of the public schools to inculcate moral values and to teach students the boundaries of socially acceptable behavior. It therefore permitted a public school to discipline a student for making sexually suggestive remarks in an address to a school assembly, even though the remarks were notobscene in the traditional sense.

The ability to regulate inappropriate speech has been found to be especially important in situations where the student speech may have the appearance of being sponsored or endorsed by the school.[11]

Impairing educational mission[edit source]

The third major area of concern addressed in student free speech cases is whether a particular instance of student speech may be viewed as impairing the school's ability to carry out its educational mission. [9] This concern arises where the speech in question occurs in connection with a school-sponsored or school-controlled activity but is inconsistent with a legitimate pedagogical concern. In such circumstances, the United States Supreme Court has found that student speech may be regulated. For example, in Hazelwood School District v. Kuhlmeier, it held that a school may exercise control over the content of a student newspaper when it attempts to address issues of divorce and teenage pregnancy; in Morse v. Frederick, it permitted a school to exercise control over the words displayed on a large banner at a school-sponsored event, when those words convey a message promoting the use of illegal drugs.

General factors[edit source]

Other factors are relevant to First Amendment cases generally.[9]

Pure speech[edit source]

One of these factors is whether the activity sought to be controlled is "pure speech", or sufficiently related to the expression of ideas to fall under the umbrella of the First Amendment. "Pure speech" does not need to involve words but is generally represented by symbols or actions.

Focus of protected speech activity[edit source]

The focus of the protected speech activity, whether pure speech or not, may have an impact on the propriety of regulation by school officials.

References[edit source]
1. ^ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 506 . 2. ^
a b c d

3-9 EDUCATION LAW 9.04 (CHAPTER 9 Student Safety, Control and Discipline) -- Copyright

2008, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. ^ [Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 514 ] 4. ^ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 514 5. ^ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 511 . 6. ^ Bethel School Dist. No. 403 v. Fraser, 478 US 675, 92 LEd2d 549, 106 SCt 3159 (1986). 7. ^ Hazelwood School District v. Kuhlmeier, 484 US 260, 98 LEd2d 592, 108 SCt 562, (1988)

8. ^ Bates v. State Bar of Ariz.; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council ; Healy v. James (school case); Grayned v. City of Rockford; Adderley v. Florida; Cox v. Louisiana; Kovacs v. Cooper; Cox v. New Hampshire 9. ^
a b c d e f g

1-9 Ohio School Law Guide 9.74. Anderson's Ohio School Law Guide. CHAPTER 9: PUPILS.

G. PUPIL REGULATION AND DISCIPLINE 10. ^ Bethel School Dist. 403 v. Fraser; Morse v. Frederick 11. ^ Hazelwood School District v. Kuhlmeier

See also[edit source]

V

Broussard v. School Board of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992) Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) Desilets v. Clearview Regional Board of Education, 647 A.2d. 150 (N.J. 1994) Dean v. Utica Community Schools, 345 F.Supp.2d 799 (E.D. Mich. 2004)

Liberty

Positive liberty

Negative liberty

Concepts

Cognitive liberty

Social liberty

Rights

Free will

Moral responsibility Academic

Civil

Economic

By type

Intellectual

Morphological

Political

Scientific Assembly

Association

By right

Choice

Education

Information

Movement

Press

Religion

Public speech

Thought

Wikiquote

Wikisource

Wikimedia Commons

Wikinews

Wiktionary

Wikibooks

United States First Amendment case law

Establishment Clause

Everson v. Board of Education (1947)

McCollum v. Board of Education (1948)

Walz v. Tax Commission (1970) Lemon v. Kurtzman (1971)

Public funding

Marsh v. Chambers (1983)

Board of Education of Kiryas Joel Village School District v. Grumet (1994) Agostini v. Felton (1997)

Mitchell v. Helms (2000)

Zelman v. Simmons-Harris (2002)

Locke v. Davey (2004) Arizona Christian School Tuition Organization v. Winn (2011) Lynch v. Donnelly (1984)

Public displays

County of Allegheny v. ACLU (1989)

McCreary County v. ACLU of Kentucky (2005)

Van Orden v. Perry (2005) Pleasant Grove City v. Summum (2009)

Zorach v. Clauson (1952)

Engel v. Vitale (1962)

Abington School District v. Schempp (1963)

School prayer

Stone v. Graham (1980) Wallace v. Jaffree (1985)

Lee v. Weisman (1992)

Santa Fe Independent School Dist. v. Doe (2000) Elk Grove Unified School District v. Newdow (2004) Epperson v. Arkansas (1968)

Creationism

Edwards v. Aguillard (1987)

Kitzmiller v. Dover Area School District (M.D. Pa. 2005)

Free Exercise Clause

Reynolds v. United States (1879)

Davis v. Beason (1890)

Braunfeld v. Brown (1961)

Torcaso v. Watkins (1961)

Sherbert v. Verner (1963) Wisconsin v. Yoder (1972)

Thomas v. Review Board of the Indiana Employment Security Division (1981)

Bob Jones University v. United States (1983) Goldman v. Weinberger (1986)

Employment Division v. Smith (1990)

Church of Lukumi Babalu Aye v. City of Hialeah (1993)

City of Boerne v. Flores (1997) Watchtower Society v. Village of Stratton (2002)

Cutter v. Wilkinson (2005)

Gonzales v. UDV (2006)

Freedom of speech (portal)

Alien and Sedition Acts (1798)

Sedition and

Schenck v. United States (1919)

imminent danger

Abrams v. United States (1919) Masses Publishing Co. v. Patten (S.D.N.Y. 1917)

Gitlow v. New York (1925)

Whitney v. California (1927) Dennis v. United States (1951)

Yates v. United States (1957)

Bond v. Floyd (1966) Keyishian v. Board of Regents (1967)

Brandenburg v. Ohio (1969)

False speech

Communist Party of Indiana v. Whitcomb (1974)

United States v. Alvarez (2012)

Cantwell v. Connecticut (1940)

Chaplinsky v. New Hampshire (1942)

Fighting words and

Terminiello v. Chicago (1949) Feiner v. New York (1951)

the heckler's veto

Gregory v. Chicago (1969) National Socialist Party of America v. Village of Skokie (1977)

R.A.V. v. City of St. Paul (1992) Snyder v. Phelps (2011)

Hague v. CIO (1939)

Schneider v. New Jersey (1939)

Martin v. Struthers (1943)

Niemotko v. Maryland (1951) Cox v. Louisiana (1965)

Freedom of assembly and public forums

Brown v. Louisiana (1966)

Adderley v. Florida (1966)

Carroll v. Princess Anne (1968) Coates v. Cincinnati (1971)

Organization for a Better Austin v. Keefe (1971) Pruneyard Shopping Center v. Robins (1980)

Hill v. Colorado (2000) Stromberg v. California (1931)

Symbolic speech

United States v. O'Brien (1968)

Cohen v. California (1971) Smith v. Goguen (1974)

Texas v. Johnson (1989)

United States v. Eichman (1990) Minersville School District v. Gobitis (1940)

Compelled speech

West Virginia State Board of Education v. Barnette (1943) Wooley v. Maynard (1977)

Board of Regents of the University of Wisconsin System v. Southworth (2000) Davenport v. Washington Education Association (2007) Knox v. Service Employees International Union, Local 1000 (2012) Tinker v. Des Moines Independent Community School District (1969)

School speech

Island Trees School District v. Pico (1982) Bethel School District v. Fraser (1986)

Hazelwood v. Kuhlmeier (1988) Rosenberger v. University of Virginia (1995)

Morse v. Frederick (2007) Rosen v. United States (1896)

Obscenity

United States v. One Book Called Ulysses (S.D.N.Y. 1933) Roth v. United States (1957)

One, Inc. v. Olesen (1958)

Marcus v. Search Warrant (1961) MANual Enterprises v. Day (1962)

Jacobellis v. Ohio (1964)

Quantity of Books v. Kansas (1964) Freedman v. Maryland (1965)

Memoirs v. Massachusetts (1966)

Redrup v. New York (1967) Ginsberg v. New York (1968)

Stanley v. Georgia (1969)

United States v. Thirty-seven Photographs (1971) Kois v. Wisconsin (1972)

Miller v. California (1973)

Paris Adult Theatre I v. Slaton (1973) United States v. 12 200-ft. Reels of Film (1973)

Jenkins v. Georgia (1974)

New York v. Ferber (1982) American Booksellers v. Hudnut (7th Cir., 1985)

Renton v. Playtime Theatres, Inc. (1986)

Osborne v. Ohio (1990) United States v. X-Citement Video (1994)

Reno v. American Civil Liberties Union (1997) United States v. Playboy Entertainment Group (2000)

Ashcroft v. Free Speech Coalition (2002) Ashcroft v. American Civil Liberties Union (2002)

Nitke v. Gonzales (S.D.N.Y., 2005) United States v. Williams (2008)

FCC v. Fox Televisions Stations - 2 cases (2009 and 2012) American Booksellers Foundation for Free Expression v. Strickland (6th Cir., 2009) United States v. Kilbride (9th Cir., 2009)

United States v. Stevens (2010) Brown v. Entertainment Merchants Association (2011) Garner v. Board of Public Works (1951)

Pickering v. Board of Education (1968)

Public employees

Connick v. Myers (1983) Rankin v. McPherson (1987)

Waters v. Churchill (1994)

Garcetti v. Ceballos (2006) Borough of Duryea v. Guarnieri (2011)


Hatch Act and similar laws

Ex parte Curtis (1882)

United Public Workers v. Mitchell (1947) United States Civil Service Commission v. National Association of Letter Carriers (1973) Broadrick v. Oklahoma (1973) Mutual Film Corporation v. Industrial Commission of Ohio (1915)

Licensing and restriction of speech

Joseph Burstyn, Inc v. Wilson (1952) Freedman v. Maryland (1965)

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) Valentine v. Chrestensen (1942)

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) Bigelow v. Commonwealth of Virginia (1974)

Commercial speech

Bates v. State Bar of Arizona (1977) Linmark Associates, Inc. v. Willingboro (1977) Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) Consol. Edison Co. v. Public Serv. Comm'n (1980)

Campaign finance and political speech

Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982) Pacific Gas & Electric Co. v. Public Utilities Commission of California (1986) Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987) 44 Liquormart, Inc. v. Rhode Island (1996) Buckley v. Valeo (1976)

First National Bank of Boston v. Bellotti (1978)

Citizens Against Rent Control v. City of Berkeley (1981)

California Medical Association v. FEC (1981) Brown v. Socialist Workers '74 Campaign Committee (1982) Regan v. Taxation with Representation of Washington (1983) FEC v. National Conservative Political Action Committee (1985)

FEC v. Massachusetts Citizens for Life (1986) Austin v. Michigan Chamber of Commerce (1990)

McIntyre v. Ohio Elections Commission (1995) Colorado Republican Federal Campaign Committee v. FEC (1996) Nixon v. Shrink Missouri Government PAC (2000) FEC v. Colorado Republican Federal Campaign Committee (2001)

McConnell v. FEC (2003) FEC v. Beaumont (2003)

Randall v. Sorrell (2006)

FEC v. Wisconsin Right to Life, Inc. (2007) Davis v. FEC (2008)

Citizens United v. FEC (2010) Arizona Free Enterprise Clubs Freedom Club PAC v. Bennett. (2011) American Tradition Partnership v. Bullock (2012)

Freedom of the press

Prior restraints

Near v. Minnesota (1931)

and censorship

Lovell v. City of Griffin (1938)

Hannegan v. Esquire (1946)

New York Times Co. v. United States (1971) Miami Herald Publishing Co. v. Tornillo (1974)

Taxation and

Nebraska Press Assn. v. Stuart (1976) Grosjean v. American Press Co. (1936)

privileges

Branzburg v. Hayes (1972)

Minneapolis Star Tribune Company v. Commissioner (1983) New York Times Co. v. Sullivan (1964)

Curtis Publishing Co. v. Butts (1967)

Defamation

Gertz v. Robert Welch, Inc. (1974) Bose Corp. v. Consumers Union of United States, Inc. (1984)

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) McDonald v. Smith (1985)

Hustler Magazine v. Falwell (1988)

Harte-Hanks Communications v. Connaughton (1989) Milkovich v. Lorain Journal Co. (1990)

Red Lion Broadcasting Co. v. FCC (1969)

Broadcast media

FCC v. Pacifica Foundation (1978)

Turner Broadcasting v. FCC (1994) Bartnicki v. Vopper (2001)

Freedom of association

NAACP v. Alabama (1958)

Baggett v. Bullitt (1964)

In re Primus (1978)

Roberts v. United States Jaycees (1984) Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)

Boy Scouts of America v. Dale (2000)

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Hazelwood v. Kuhlmeier
From Wikipedia, the free encyclopedia
(Redirected from Hazelwood School District v. Kuhlmeier)

Hazelwood v. Kuhlmeier

Supreme Court of the United States

Argued October 13, 1986 Decided January 13, 1988

Full case name

Hazelwood School District, et al. v. Kuhlmeier, et al.

Docket nos.

86-836

Citations

484 U.S. 260 (more) 108 S. Ct. 562; 98 L. Ed. 2d 592; 1985 U.S. LEXIS 310; 56 U.S.L.W. 4079; 14 Media L. Rep. 2081

Prior history

On writ of certiorari to the United States Court of

Appeals for the Eighth Circuit

Argument

Oral argument

Holding

The Court held that speech that can be reasonably viewed to have the school's imprimatur can be regulated by the school if the school has a legitimate pedagogical concern in regulating the speech.

Court membership Chief Justice William Rehnquist

Associate Justices William J. Brennan, Jr. Byron White Thurgood Marshall Harry Blackmun John P. Stevens Sandra Day O'Connor Antonin Scalia Anthony Kennedy

Case opinions

Majority

White, joined by Rehnquist, Stevens, O'Connor, Scalia

Dissent

Brennan, joined by Marshall, Blackmun

Kennedy took no part in the consideration or decision of the case.

Laws applied

U.S. Const. amend. I

Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) was a landmark decision by the Supreme Court of the United States, which held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression.

The case was found in favor of Hazelwood School District, overruling a Court of Appeals reversal of a District Court ruling. There were 5 votes for Hazelwood, and 3 against. The justices believed that the censorship did not violate the student's First Amendment rights of free speech.
Contents
[hide]

1 Background

o o o

1.1 Facts of the case 1.2 Legal precedent 1.3 Lower court decisions

2 Supreme Court ruling

o o

2.1 Majority opinion 2.2 Dissenting opinion

3 Legacy 4 See also 5 References

o o

5.1 Citations 5.2 Sources

6 External links

Background[edit source | editbeta]

Facts of the case[edit source | editbeta]
The case concerned The Spectrum, a student newspaper which was published as part of a journalism class at Hazelwood East High School in the Hazelwood School District in St. Louis County, Missouri.[1] The Spectrum was written and edited as part of the Journalism II class at the school, published roughly every three weeks during the 1982-1983 school year.[2] About 4,500 copies of the paper were distributed to students and community members during the year. The cost of printing the paper as well as supplies, textbooks, and a portion of the academic advisor's salary were furnished by the district's Board of Education, supplemented by newspaper sales. For that school year, the board supplied $4,668 in printing costs, and the newspaper generated $1,166.84 in revenue.[1] On May 10, 1983, Howard Emerson, the advisor to the journalism class, submitted page proofs of the May 13 issue of the newspaper to principal Robert Eugene Reynolds for approval, a practice which was customary at the time.[3] Reynolds objected to two of the stories scheduled to run. One was a story concerning teen pregnancy and containing interviews with three students who had been pregnant. The story contained false

names to keep the girls' identities a secret, but Reynolds was concerned the pregnant students would still be identifiable from the text.[2] Reynolds was also concerned the references to sexual activity and birth control were inappropriate for younger students at school. The second story concerned divorce and featured an interview with a student whose parents were divorced, in which she complained her father "wasn't spending enough time with my mom, my sister, and I ... was always out of town on business or out late playing cards the guys ... always argued about everything."[3]Reynolds, unaware that the name of the girl would also be changed,[2] was concerned that her family should have been given an opportunity to respond in the story, or to consent to its publication.[3] Reynolds did not believe there was time to make the appropriate changes to the newspaper, and also that any delay in publication would mean the newspaper would not be published before the end of the school year.[2] After consulting with his supervisors, Reynolds opted to publish a four-page newspaper instead of a sixpage one, omitting the pages containing the two stories.[3] In response, editor Cathy Kuhlmeier and reporters Leslie Smart and Leanne Tippett, filed suit in January 1984.[4]

Legal precedent[edit source | editbeta]

Until the 1960s administrative review of student publications was considered routine, both at high school and college newspapers, and students and faculty advisers had few alternatives. However, with the rise of the counterculture of the 1960s, student publications began to explore social issues with greater fervor, focusing on issues such as the Vietnam War, the civil rights movement, sexual orientation and other issues considered sensitive.[5] In 1969, the U.S. Supreme Court upheld that freedom of expression of students is protected under the First Amendment in Tinker v. Des Moines Independent Community School District (393 U.S. 503). Following that precedent, at least 125 other court cases in courts across the country were decided in favor of student expression and against administrative censorship. Whenever an instance of censorship involved action from a government employee such as a school principal or a college dean, the courts held that First Amendment constitutional safeguards applies.[5] Two additional cases in following years, Healy v. James (408 U.S. 169) in 1972 and Papish v. University of Missouri Curators (410 U.S. 670) in 1973, expanded the First Amendment rights of students on college campuses.[6] By the 1980s, however, with the end of the student protest era, school administrators sought to reassert their authority. The first case in the new trend, Bethel School District v. Fraser (478 U.S. 675) in 1986, involved the discipline of a high school student for delivering a speech containing sexual innuendos, even though they were not obscene or disruptive in a legal sense. Overturning lower courts in the case, the Supreme Court clarified that the ruling of the Tinker case did not apply because the penalties imposed by the school were unrelated to a political viewpoint.[7]

Lower court decisions[edit source | editbeta]

The case was introduced in the U.S. District Court for the Eastern District of Missouri. The students sought a declaration that their First Amendment and Fourteenth Amendment[4] rights had been violated, as well as injunctive relief and monetary damages. After a bench trial, the district court denied the injunction and monetary damages.[8] The court reached its decision in May 1985,[4] in which the district court held that school officials may restrain student speech in activities that "are an integral part of the school's educational function," as long as the decision has "a substantial and reasonable basis." The court held that no violation of First Amendment rights had occurred.[8] The U.S. Court of Appeals for the Eighth Circuit reversed the decision in January 1986.[4] The court held that, at the outset, The Spectrumwas not only a part of the school program, but also a public forum. The newspaper was "intended to be and operated as a conduit for student viewpoint."[8] As a public forum, the court ruled, The Spectrum could not be censored unless "necessary to avoid material and substantial interference with school work or discipline ... or the rights of others."[8] The U.S. Supreme Court granted certiorari in January 1987,[4] and the case was argued on October 13, 1987. On January 13, 1988, the court handed down its decision.[2]

Supreme Court ruling[edit source | editbeta]

In a 5-3 ruling, the Supreme Court overturned the decision of the circuit court.[9] Its majority opinion set a precedent that school-sponsored activities, including student newspapers and drama productions are not normally protected from administrative by the First Amendment.[10]

Majority opinion[edit source | editbeta]

Associate Justice Byron White wrote the court's majority opinion.

The majority of the justices held that the principal was entitled to censor the articles.[11] The majority opinion, penned by White, stated officials never intended the school paper to be a public forum as were underground publications in cases past. White went on to say educators do not infringe on First Amendment rights when

exercising control over student speech in school-sponsored activities "so long as their actions are reasonably related to legitimate pedagogical concerns."[12] The court established that the student publication could be regulated by school officials, and that they "reserved the forum for its intended purpose, as a supervised learning experience for journalism students."[10] "A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. ... (Judicial action to protect students' rights is justified) only when the decision to censor a school-sponsored publication, theatrical production or other vehicle of student expression has no valid educational purpose."[10] The decision overrode the precedent set in the Tinker case. The 1969 decision had permitted censorship of student speech only if it violated the rights of other students or if it threatened to cause a campus disruption. The majority opinion held that this case was different.[12] "The question whether the First Amendment requires a school to tolerate particular student speechthe question we addressed in Tinkeris different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence students' personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."[10] The ruling did not affect existing laws at the state and local level which protect student journalists, instead stating that, in absence of other rules barring administrative censorship, the First Amendment does not protect student publications.[10] By 2010 seven statesArkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregonhad such laws on their books, and another 13 states were considering them.[13] In a footnote, the court also clarified that it did not see that the ruling necessarily applied at the collegiate level. [5]

Dissenting opinion[edit source | editbeta]

Associate Justice William J. Brennan, Jr. wrote the dissenting opinion.

Brennan wrote a dissenting opinion,[14] in which he was joined by Marshall and Blackmun, justices who were noted to often take liberal positions on First Amendment issues. In his opinion, Brennan expressed concern about the message the majority opinion would send students.[10] "The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today...Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from (a school principal) to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our constitution guarantees."[10]

Legacy[edit source | editbeta]

Under the First Amendment, school officials can censor non-forum student newspapers when they can justify their decision by stating an educational purpose. However, this decision does not allow school officials to censor articles wantonly or based on personal opinion, as shown in Dean v. Utica. However, it is important to note that seven states have passed laws guaranteeing that all student newspapers have the right to publish freely.[1]. These states include Arkansas, California, Colorado, Iowa, Kansas, Kentucky, Massachusetts and Oregon. The Hazelwood standard does not apply to student newspapers in these states; with limited exceptions, student editors control the content. In 2005, the Seventh Circuit Court of Appeals decided Hosty v. Carter, which applied Hazelwood to college newspapers. That decision currently applies only to colleges in Wisconsin, Illinois, and Indiana. College publications in other states retain strong First Amendment protection. Similarly, in 2012, the Sixth Circuit Court of Appeals, in the case of Ward v. Polite et al. held that college students have a reduced level of First Amendment protection, as per Hazelwood.

See also[edit source | editbeta]

Desilets v. Clearview Regional Board of Education, 647 A.2d. 150 (N.J. 1994) Tinker v. Des Moines Independent Community School District Hazelwood School District v. United States List of United States Supreme Court cases, volume 484

References[edit source | editbeta]

Citations[edit source | editbeta]
1. ^
a b

Bloomfield 2007, p. 66

2. 3. 4. 5. 6. 7. 8. 9.

^ ^ ^ ^

a b c d e a b c d

Russo 2009, p. 421

Bloomfield 2007, p. 67 Utterback 2003, p. 251

a b c d e a b c

Belmas & Overbeck 2009, p. 587

^ Belmas & Overbeck 2009, p. 588 ^ Belmas & Overbeck 2009, p. 589 ^
a b c d

Russo 2009, p. 422

^ Russo 2009, p. 425

a b c d e f g

10. ^

Belmas & Overbeck 2009, p. 591

11. ^ Russo 2009, p. 423 12. ^

a b

Belmas & Overbeck 2009, p. 590

13. ^ Belmas & Overbeck 2009, p. 592 14. ^ Russo 2009, p. 424

Sources[edit source | editbeta]

Belmas, Genelle; Overbeck, Wayne (2009), Major Principles of Media Law: 2010 Edition, Boston, Massachusetts: Wadsworth Publishing,ISBN 978-0495567684, OCLC 313635152

Bloomfield, David C. (2007), American Public Education Law Primer, New York City, New York: Peter Lang Publishing, ISBN 978-0820479484, OCLC 80360483

Hanson, Ralph E. (2007), Mass Communication: Living in a Media World: Second Edition, Washington, D.C.: CQ Press, ISBN 978-0872894846, OCLC 473730416

Utterback, Andrew H. (2003), Parker, Richard A. (ed.), ed., Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, Tuscaloosa, Alabama: University of Alabama Press, ISBN 0-8173-1301-X, OCLC 607045973

Russo, Charles J. (2008), Encyclopedia of Education Law, Thousand Oaks, California: Sage Publications, ISBN 978-1412940795,OCLC 185031300

External links[edit source | editbeta]

Text of Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) is available from: Justia LII UMKC School of Law Hazelwood v. Kuhlmeier: A complete guide to the decision First Amendment Rights Diagram (shows whether Hazelwood or Tinker standard is applicable) State student free expression laws and regulations The Supreme Court on "Hazelwood": A Reversal on Regulation of Student Expression Much information on the case including the arguments

Research resources

Student Press Law Center white paper on the case First Amendment Library entry on Hazelwood v. Kuhlmeier
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United States First Amendment case law

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Establishment Clause

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Free Exercise Clause

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Freedom of speech (portal)

Alien and Sedition Acts (1798)

Sedition and imminent danger

Schenck v. United States (1919)

Abrams v. United States (1919) Masses Publishing Co. v. Patten (S.D.N.Y. 1917)

Gitlow v. New York (1925)

Whitney v. California (1927) Dennis v. United States (1951)

Yates v. United States (1957)

Bond v. Floyd (1966) Keyishian v. Board of Regents (1967)

Brandenburg v. Ohio (1969)

False speech

Communist Party of Indiana v. Whitcomb (1974)

United States v. Alvarez (2012)

Cantwell v. Connecticut (1940)

Chaplinsky v. New Hampshire (1942)

Fighting words and

Terminiello v. Chicago (1949) Feiner v. New York (1951)

the heckler's veto

Gregory v. Chicago (1969) National Socialist Party of America v. Village of Skokie (1977)

Freedom of assembly and public forums

R.A.V. v. City of St. Paul (1992) Snyder v. Phelps (2011) Hague v. CIO (1939)

Schneider v. New Jersey (1939)

Martin v. Struthers (1943)

Niemotko v. Maryland (1951) Cox v. Louisiana (1965)

Brown v. Louisiana (1966)

Adderley v. Florida (1966)

Carroll v. Princess Anne (1968) Coates v. Cincinnati (1971)

Organization for a Better Austin v. Keefe (1971) Pruneyard Shopping Center v. Robins (1980)

Hill v. Colorado (2000) Stromberg v. California (1931)

United States v. O'Brien (1968)

Symbolic speech

Cohen v. California (1971) Smith v. Goguen (1974)

Texas v. Johnson (1989)

United States v. Eichman (1990)

Minersville School District v. Gobitis (1940)

Compelled speech

West Virginia State Board of Education v. Barnette (1943) Wooley v. Maynard (1977)

Board of Regents of the University of Wisconsin System v. Southworth (2000) Davenport v. Washington Education Association (2007) Knox v. Service Employees International Union, Local 1000 (2012) Tinker v. Des Moines Independent Community School District (1969)

School speech

Island Trees School District v. Pico (1982) Bethel School District v. Fraser (1986)

Hazelwood v. Kuhlmeier (1988) Rosenberger v. University of Virginia (1995)

Morse v. Frederick (2007) Rosen v. United States (1896)

United States v. One Book Called Ulysses (S.D.N.Y. 1933) Roth v. United States (1957)

Obscenity

One, Inc. v. Olesen (1958)

Marcus v. Search Warrant (1961) MANual Enterprises v. Day (1962)

Jacobellis v. Ohio (1964)

Quantity of Books v. Kansas (1964) Freedman v. Maryland (1965)

Memoirs v. Massachusetts (1966)

Redrup v. New York (1967) Ginsberg v. New York (1968)

Stanley v. Georgia (1969)

United States v. Thirty-seven Photographs (1971) Kois v. Wisconsin (1972)

Miller v. California (1973)

Paris Adult Theatre I v. Slaton (1973) United States v. 12 200-ft. Reels of Film (1973)

Jenkins v. Georgia (1974)

New York v. Ferber (1982) American Booksellers v. Hudnut (7th Cir., 1985)

Renton v. Playtime Theatres, Inc. (1986)

Osborne v. Ohio (1990) United States v. X-Citement Video (1994)

Reno v. American Civil Liberties Union (1997) United States v. Playboy Entertainment Group (2000)

Ashcroft v. Free Speech Coalition (2002) Ashcroft v. American Civil Liberties Union (2002)

Nitke v. Gonzales (S.D.N.Y., 2005) United States v. Williams (2008)

FCC v. Fox Televisions Stations - 2 cases (2009 and 2012) American Booksellers Foundation for Free Expression v. Strickland (6th Cir., 2009) United States v. Kilbride (9th Cir., 2009)

United States v. Stevens (2010) Brown v. Entertainment Merchants Association (2011) Garner v. Board of Public Works (1951)

Pickering v. Board of Education (1968)

Public employees

Connick v. Myers (1983) Rankin v. McPherson (1987)

Waters v. Churchill (1994)

Hatch Act

Garcetti v. Ceballos (2006) Borough of Duryea v. Guarnieri (2011) Ex parte Curtis (1882)

and similar laws

United Public Workers v. Mitchell (1947) United States Civil Service Commission v. National Association of Letter Carriers (1973) Broadrick v. Oklahoma (1973) Mutual Film Corporation v. Industrial Commission of Ohio (1915)

Licensing and restriction of speech

Joseph Burstyn, Inc v. Wilson (1952) Freedman v. Maryland (1965)

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) Valentine v. Chrestensen (1942)

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) Bigelow v. Commonwealth of Virginia (1974)

Commercial speech

Bates v. State Bar of Arizona (1977) Linmark Associates, Inc. v. Willingboro (1977) Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) Consol. Edison Co. v. Public Serv. Comm'n (1980)

Campaign finance and political speech

Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982) Pacific Gas & Electric Co. v. Public Utilities Commission of California (1986) Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986) San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987) 44 Liquormart, Inc. v. Rhode Island (1996) Buckley v. Valeo (1976)

First National Bank of Boston v. Bellotti (1978) Citizens Against Rent Control v. City of Berkeley (1981)

California Medical Association v. FEC (1981) Brown v. Socialist Workers '74 Campaign Committee (1982) Regan v. Taxation with Representation of Washington (1983) FEC v. National Conservative Political Action Committee (1985)

FEC v. Massachusetts Citizens for Life (1986) Austin v. Michigan Chamber of Commerce (1990)

McIntyre v. Ohio Elections Commission (1995) Colorado Republican Federal Campaign Committee v. FEC (1996) Nixon v. Shrink Missouri Government PAC (2000) FEC v. Colorado Republican Federal Campaign Committee (2001)

McConnell v. FEC (2003) FEC v. Beaumont (2003)

Randall v. Sorrell (2006)

FEC v. Wisconsin Right to Life, Inc. (2007) Davis v. FEC (2008)

Citizens United v. FEC (2010) Arizona Free Enterprise Clubs Freedom Club PAC v. Bennett. (2011) American Tradition Partnership v. Bullock (2012) [show]

Freedom of the press

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Freedom of association

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Hazelwood School District

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Constitutional Protection for Dangerous Speech? Oliver Wendell Holmes and Free Speech The First Amendment in 1900 Schenck v. United States The Clear and Present Danger Test Bridges and Terminiello The Smith Act: Fighting Communism by Restricting Speech Clarence Brandenburg Movie Day Limits of Free Speech Roth v. United States: A New Definition of Obscenity Ginzburg v. United States: "Pandering" = Pornography Miller v. California: The Current Definition of Obscenity Do Students Have First Amendment Rights? Tinker v. Des Moines: Establishing the Right Bethel v. Fraser and Morse v. Frederick: Limiting the Right Hazelwood v. Kuhlmeier: Freedom of Student Press?

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Tinker v. Des Moines: Establishing the Right

1969 Supreme Court ruling in Tinker v. Des Moines found that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" Tinker established broad precedent of student free-speech rights More recent decisions have rolled back Tinker's broad protections

In 1969, the Supreme Court established a standard favorable to a broad interpretation of students' First Amendment rights in the case ofTinker v. Des Moines. The case began in 1965, when three Iowa public school students wore black armbands to school in silent protest against the Vietnam War. After being suspended by their principal, the students sued. When their case reached the Supreme Court four years later, the justices decided by a 7-2 majority that the First Amendment did apply to public school students. "It can hardly be argued," Justice Abe Fortaswrote in the majority opinion, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."61 As the Des Moines students' silent protest had not significantly disrupted the educational process, the school had no right to punish them for expressing their views. Most student journalists and their faculty advisers, in both high schools and universities, interpreted the broad Tinker standard to mean that administrators had no right to censor student expression in school newspapers. But the Tinker standard always had its critics. One of the two dissenters in deciding the case, Justice Hugo Black, argued vehemently that the majority opinion was dangerously misguided. "I repeat," he wrote, "that if the time has come when pupils of state-supported schools... can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary."62 While Black failed to sway his colleagues to his position in Tinker, his viewpointthat student free speech rights ought to be narrowly limited in the interest of good discipline and educational effectivenesshas been echoed in more recent court rulings, which have significantly curtailed the student freedoms established in Tinker.

Next Page: Bethel v. Fraser and Morse v.

Bethel v. Fraser and Morse v. Frederick: Limiting the Right

In 1986 case Bethel v. Fraser, Supreme Court ruled that First Amendment did not protect disruptive or offensive student speech

In 2007 case Morse v. Frederick, Supreme Court ruled that a school could discipline a student for unfurling an offensive banner ("Bong Hits 4 Jesus") across the street from a school event

In 1986, the Supreme Court ruled in Bethel School District v. Fraser that the First Amendment did not protect high school students from punishment for disruptive or offensive speech in school. The particular disruptive and offensive speech in question was an off-color nomination address delivered during a 1983 student body election in a Washington high school; a student named Matthew Fraser began his brief speech in favor of a friend's candidacy for A.S.B. vice-president by saying, "I know a man who is firmhe's firm in his pants...." Things only went downhill from there, and when the speech ended, Fraser found himself suspended from school for two days for disruptive behavior. With backing from the ACLU, Fraser took the case to court, arguing that his rights to free speech had been violated. But in Bethel the Supreme Court rejected Fraser's argument that the First Amendment protected his innuendo-laced commentary, ruling that the school had every right to restrict "offensively lewd and indecent" speech that disrupted the learning environment.63 Bethel thus began rolling back the liberal conception of student freedom of expression established in Tinker. In 2007, the more restrictive Bethel standard was reaffirmed and strengthened by the Court's decision in Morse v. Frederick, a case that confirmed an Alaska school principal's right to discipline a student who unfurled a large banner reading "BONG HiTS 4 JESUS" just across the street from his high school during a school-sanctioned event. The Morse case found no clear consensus in the Supreme Court, resulting in five separate opinions. The most hilarious is surely Justice John Paul Stevens's lengthy meditation on whether "BONG HiTS 4 JESUS" ought to be viewed as a subversive pro-drug message or merely goofy adolescent gibberish; the most startling, on the other hand, must be Justice Clarence Thomas's flat assertion that "the First Amendment, as originally understood, does not protect student speech in public schools," an assertion rooted in Thomas's apparent approval of a pre-Tinker learning environment in which "teachers taught, and students listened. Teachers commanded, and students obeyed."64

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Constitutional Protection for Dangerous Speech? Oliver Wendell Holmes and Free Speech The First Amendment in 1900 Schenck v. United States The Clear and Present Danger Test Bridges and Terminiello The Smith Act: Fighting Communism by Restricting Speech Clarence Brandenburg Movie Day Limits of Free Speech Roth v. United States: A New Definition of Obscenity Ginzburg v. United States: "Pandering" = Pornography Miller v. California: The Current Definition of Obscenity Do Students Have First Amendment Rights? Tinker v. Des Moines: Establishing the Right Bethel v. Fraser and Morse v. Frederick: Limiting the Right Hazelwood v. Kuhlmeier: Freedom of Student Press?

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Hazelwood v. Kuhlmeier: Freedom of Student Press?

1988 case Hazelwood v. Kuhlmeier established standard for censorship of school newspapers

Court ruled that school officials could exercise prior restraint if and when a student newspaper was produced as a "regular classroom activity" rather than a "forum for public expression" That odd standard means that most high school papers now are assumed not to have First Amendment protections, while most college newspapers are

The Supreme Court's move from Tinker to Bethel clearly narrowed the scope of students' rights to exercise free speech while in school. But what about student journalism? Both Tinker and Bethel focused specifically on non-written forms of expression, and the court did not clarify whether the same standards should apply to the student press. Did Tinker mean that student newspapers had a right to freely print articles representing any and every political viewpoint? Or did Bethelgive school administrators the right to censor student newspapers if they tried to print offensive or disruptive material? By the mid-1980s, the standards under which the student press was operating were no longer clear. In the 1988 case of Hazelwood v. Kuhlmeier, the Supreme Court sought to clarify the situation. (Whether the court actually succeeded in doing so is debatable.) The case began when student journalists at Missouri's Hazelwood East High School sought to print two edgy articlesone focusing on the effects of parents' divorce upon students, another examining the issue of teenage pregnancy at the school. The principal, upon review of their page proofs, deleted both articles from the issue before publication. The student journalists, angered by what they viewed as a blatant imposition of censorship, went to court. In the end, they lost. In a split 5-3 decision, the Court ruled that the principal of Hazelwood East did have the constitutional grounds to censor the school newspaper because the paper itself, which was produced as part of a for-credit journalism class, was not a "forum for public expression" but was rather a "regular classroom activity." As such, the paper deserved not the broad protection offered to the free press under the First Amendment, but rather the much narrower protection offered to students in a classroom setting, where "educators are entitled to exercise greater control." The court majority then offered a very broad set of specific circumstances in which school officials would be justified in censoring student publicationscases in which the material in question was "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences."65 Critics blasted these standards as far too broad and subjective in nature; what, for example, would prevent a school principal from rejecting a critical article on the spurious basis that it was "poorly written"? In practice, the Hazelwood decision gave school officials a great deal of power to regulate the content of the student press; student press freedom advocates argue that it gutted students' protections under the First Amendment. But there is a catch. Not wanting to make quite such a blatant attack on students' First Amendment rights, the Supreme Court in Hazelwood couched its judgment in that odd distinction between a "forum for public expression" and a "regular classroom activity." In practice, of course, most high school papers have functioned as both; the Hazelwood decision explicitly argued that a school publication that had established itself as a "public forum" would be entitled to broader protections under the First Amendment. Hazelwood East's paper just didn't happen to meet that standard. Student journalists and their faculty advisers across the country have been wondering whether or not

their own papers qualify as "public forums"and thus whether or not their publications have First Amendment rightsever since. The Supreme Court has refused to accept subsequent cases that might have helped to clarify the vague Hazelwoodstandard. In the absence of a clear statement from the court, the general presumption since Hazelwood has been that most high school papers do not have full-blown freedom of the press, but that most college papers (which typically are not produced as part of the academic curriculum) do. However, in 2005, the Seventh Circuit Court of Appeals in Chicago applied the Hazelwood standard to a college paper for the first time, ruling in Hosty v. Carter that Governors State University in Illinois did have the right to prior review of the school's previously independent newspaper. In 2007, the Supreme Court refused to hear the Illinois students' appeal. That means that as of today, college publications in Illinois, Indiana, and Wisconsinthe Seventh Circuit's jurisdictionmay be subject to censorship under the Hazelwoodstandard, while college papers elsewhere in the country are not. Clearly, it's an understatement to say that the current state of student First Amendment law is a bit of a mess. Even the simplest question lacks a simple answer: Do students today have a First Amendment right to the freedom of speech and press? Maybe. Maybe not.

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Dean v. Utica
From Wikipedia, the free encyclopedia
(Redirected from Dean v. Utica Community Schools)

Dean v. Utica Community Schools (345 F.Supp.2d 799 [E.D. Mich. 2004]) is a landmark legal case in United States constitutional law, namely on how the First Amendment applies to censorship in a public school environment. The case expanded on the ruling definitions of theSupreme Court case Hazelwood v. Kuhlmeier, in which a high school journalism-oriented trial on censorship limited the First Amendmentright to freedom of expression in curricular student newspapers. The case consisted of Utica High School Principal

Richard Machesky ordering the deletion of an article in the Arrow, the high school's newspaper, a decision later deemed "unreasonable" and "unconstitutional" by District Judge Arthur Tarnow.

Case overview[edit source | editbeta]

After receiving a tip that her school district in Utica, Michigan was being sued by a husband and wife who claimed that the diesel fumes from school buses (which regularly idled in the neighborhood for very extended periods of time) had contributed to the husband's lung cancer and similar illnesses, Arrow sports editor Katy Dean, a junior, researched and wrote a story to be printed in the newspaper on the issue. Dean had contacted school and town officials who declined to comment, as noted in the story. Dean also included several scientific studies on thecarcinogenic exposure to diesel fumes. On March 7, 2002, Utica High School Principal Richard Machesky asked the Arrow advisor, Gloria Olman, to cut the story along with the adjoining cartoon and editorial, at the time claiming it was based on "unreliable" sources and was "highly inaccurate." After a year of asking school officials to reconsider their decision, Dean filed a lawsuit against the school district in federal court. On October 12, 2004, Judge Arthur Tarnow determined that "The Arrow" student newspaper was an example of a limited public forum after reviewing the degree of control school officials exercised over the paper, which ultimately separated this case from the decision expressed inHazelwood. A limited public forumin this context, a public forum created for use by student editorscan reasonably be regulated in terms of time, place, and manner of expression, but not on the substance of that expression. Tarnow also examined Dean's article and determined that there was not a "significant disparity in quality between Dean's article in the Arrowand the similar articles in 'professional newspapers.'" In addition to these two factors, the Judge decided that the school had censored the article in its own interest, by preventing the expression of its viewpoint, and then claiming it was "inaccurate."

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Fall 2007 - Legal Analysis Vol. XXVIII, No. 3 - Page 30 Understanding student free-expression laws
Renewed push to pass state laws as courts chip away at First Amendment rights in schools
2007 Student Press Law Center

Editor's note: When this legal analysis was published in Fall 2007, California had no antiretaliation laws that protected teachers. In 2008, California passed new legislation that protects teachers who stand up for students' First Amendment rights.

Arkansas California Colorado Iowa Kansas Massachusetts Oregon

Most student journalists and advisers are aware that student expression rights in school-sponsored high school student media were limited by the Supreme Court case Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Since that decision, seven states -- Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon -- have passed laws that limit the effects of theHazelwood decision in their states and return a greater degree of press freedom to student editors. (A college press freedom bill in Illinois was sitting on the governor's desk awaiting his signature as this article went to press in the summer of 2007. S.B. 729, 95th Gen. Assem., Reg. Sess. (Ill. 2007)). Nevertheless, distinctions exist between those laws, and both students and teachers have questions about how the laws work in general. Chief among those questions: how can state laws (or, for that matter, local school policies, which work the same way as a state law but on a smaller scale) "trump" a United States Supreme Court decision?

In short, they don't. They exist independently. A student editor of a school-sponsored publication in a state with these laws is entitled to both the protection of The First Amendment and the protection of the state law. To put it another way, Hazelwood establishes the minimum level of high school press freedom that the First Amendment requires. No government official -- federal, state or local -- may act in a way, nor may lawmakers pass a law or policy, that provides individuals with less free speech protection than that required by the First Amendment, as interpreted in Hazelwood. Nothing, however, prevents state lawmakers from passing a law that requires school and government officials in their state to provide student journalists with more rights than the constitution requires. More recently, following a 2005 decision by the 7th U.S. Circuit Court of Appeals in Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc), cert. denied, 2006 WL 385624 (Feb 21, 2006), which raised questions about the legal protections available to some college student media -protections that had been widely recognized for nearly four decades -- college students have looked to state law to shore up their free press protections as well. Not all student free expression laws are the same and no student free expression law is perfect. Each of the existing state student free expression laws, however, is an improvement on the status quo in the wake of Supreme Court decisions limiting the First Amendment. In each of these seven states, the legislatures agreed that the First Amendment, as defined by the courts today, does not provide clear guidance to student journalists, advisers and school administrators about their rights and responsibilities. However, no two of these legislatures have attempt to define rights and responsibilities in exactly the same way. Some laws apply only to student editors, while some grant expression rights to students in general. Some laws require would-be censors to demonstrate an immediate threat of disruption, while others permit censorship where a student merely advocates for something that would be against school rules. Each of the laws have quirks and contours that could provide support for a controversial story -- or trip up the journalist who is not careful to stay within its boundaries. In addition to these statutes, Pennsylvania and Washington have state regulations that could provide broader protection. See 22 Pa. Code Sec. 12.9 and Wash. Admin. Code sec. 180-40-215. Arkansas Ark. Stat. Ann. Secs. 6-18-1201 - 1204 1) What protection does this law offer to students? The Arkansas Student Publications Act requires public schools in Arkansas to adopt a "student publications policy" that recognizes "that students may exercise their right of expression," subject to the limitations and exceptions in the act (see question seven in this section). 2) What students are protected by this law? The law appears to cover all students subject to a "school board's" rules and regulations, which would presumably include public elementary, intermediate and high school students. The law does not address the free speech and press rights of college students. 3) What types of student media are protected? The law protects "school-sponsored publications, whether such publications are supported financially by the school or by use of school facilities, or are produced in conjunction with a class." ASA Sec. 6-18-1203. The term "school-sponsored publications" is not further defined. 4) What protection does this law offer to advisers? None.

5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes. 6) Does the law provide any protection for the school against liability for what the paper publishes?No, although the school would most probably not be liable for what students publish under the basic tort law principle that liability follows control. 7) What would administrators need to prove before being able to censor a student publication under the law? School administrators can censor publications containing obscenity as to minors, defamation and invasion of privacy, as those terms are defined under state law. Additionally, a publication may be censored if it incites students in such a way that it creates a "clear and present danger" of the commission of unlawful acts; of the violation of lawful school regulations; or the material and substantial disruption of the orderly operation of the school. Note that these protections are essentially identical to the protection offered to independent student speech by the U.S. Supreme Court's decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. 393 U.S. 503 (1969). ASA Sec. 6-18-1204. 8) Additional information about the law. The Arkansas law was enacted in 1996. More than ten years would pass before another student free expression bill would become law. Top California Calif. Educ. Code Sec. 48907 1) What protection does this law offer to students? The law provides two levels of speech protection: a general level to students in general, and a more nuanced level of protection to students on official school publications.
o

To students in general: All students "shall have the right to exercise freedom of speech and of the press," including wearing symbols, the use of bulletin boards, and distributing written material. To student journalists on official publications: If a student is working on a publication that is produced in a class and distributed to the student body, the law specifies that the student editors of that publication are responsible for "assigning and editing" the content. It also states that the adviser is responsible for supervising the production of the newspaper and "maintain[ing] professional standards of English and journalism." Unless the content to be published is unprotected by the terms of the section, prior restraint (which is not the same as prior review) is expressly forbidden. Leeb v. Delong, 198 Cal.App.3d 47 (App. 1988).

2) What students are protected by this law? The law protects "students of the public schools" subject to the rules and regulations of a "governing board of a school district and each county board of education," which would presumably include public elementary, intermediate and high school students. Section 48907 does not address the rights of California's college students. However, other California statutes, including Calif. Educ. Code Secs. 94367 (private colleges), 76120 (community colleges) and more specifically Calif. Educ. Code Sec. 66301 (public colleges), discussed below, do provide similar protection to college students.

3) What types of student media are protected? The law protects a broad variety of student expressive activities and explicitly states that the list provided in the law (which includes "bulletin boards," "printed material," "badges," and "official publications") is not exclusive. Moreover, the term "official school publications" is defined as "materials produced by students in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee," and would presumably include any type of "material," including print, online and electronic materials. 4) What protection does this law offer to advisers? None, but advisers are given the responsibility for "maintain[ing] the provisions of this section" with respect to official publications, but are given no protection from administrators who would seek to violate the rights of students under the section. Obviously, it is difficult to see how an adviser could maintain the provisions of the section that grant rights to students without some protection from an employer seeking to violate those rights. In fact, as this guide went to press, state journalism and First Amendment groups in California had drafted a proposed amendment to the law that would include such protection. 5) Does the law provide a specific cause of action for students to sue if there is a violation? No, but that has not precluded successful lawsuits from being filed. See, e.g., Smith v. Novato Unified Sch. Dist., No. A112083 (Cal. 1st. App. Dist. May 21, 2007). Also see Calif. Educ. Code Sec. 48950, known as the "Leonard Law," which provides students with an individual cause of action when they are subject to "disciplinary sanctions" for conduct protected by the state or federal constitution. 6) Does the law provide any protection for the school against liability for what student media publish? No, although a school that adheres to the law may escape liability for what students publish under the basic tort law principle that liability follows control. 7) What would administrators need to prove before being able to censor student media under the law? The law prohibits students from printing obscenity or defamation, as well as "material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school," a standard whose language was taken largely from the U.S. Supreme Court's decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. 393 U.S. 503 (1969). One category that Tinker does not protect, but which is not specifically prohibited under California's law, is material that "invades the rights of others." On the other hand, the statement that advisers "maintain professional standards of English and journalism" could impose an additional requirement on official publications, although it is difficult to determine from the law what "professional standards" means; but see Lopez v. Tulare Joint Union High Sch. Dist. Bd. of Trustees, 34 Cal. App. 4th 1302 (1995) (finding a film containing profanity did not meet "professional standards"). However, these standards should be determined by the adviser, not a school administrator. 8) Additional information about the law. California's student expression law was the first in the nation and, in fact, predates the Hazelwood decision by over a decade. Following Hazlewood in 1988, the California Department of Education issued an advisory to school officials reminding them that, because of Section 48907, the Supreme Court ruling had little impact on the rights of California students. As the Superintendent of Public Instruction said at the time, "...California's law bends over backwards to protect the student journalist." (A copy of the March 18, 1988, news release is available on the SPLC Web site at: http://www.splc.org/law_library.asp?id=6) In 2006, a parallel provision applicable to college students -- Calif. Educ. Code. Sec. 66301 -- was amended to explicitly prohibit prior restraint of student media on public college campuses, effectively preventing the expansion of the Hosty rationale to California.

Top Colorado Colo. Rev. Stat. Sec. 22-1-120 1) What protection does this law offer to students? The law provides blanket free speech protection for students in schools and specific protections for "student publications" that are "written substantially by students" and made generally available throughout the school. Subsequent language in the statute seems to make clear that this definition is limited to schoolsponsored material (see question 1(b) in this section).
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To students in general: The first line of the statute states that public school students "shall have the right to exercise freedom of speech and of the press." CRS Sec. 22-1-120(1). To student journalists on official student publications: Publications that are substantially written by students and distributed throughout the school are expressly declared public forums, which also strengthens the protections of theose publications under the First Amendment as defined inHazelwood. Because only government property can be declared a forum, this language is further limited to those newspapers that the school sponsors. CRS Sec. 22-1-120(1)-(2). The law expressly states that student editors shall be responsible for determining the news, opinion, and advertising content of their publications subject to the limitations of this section (see question seven, below.) School officials are required to adopt and make available a written publications code, consistent with this law, that explains when, where and how students can distribute their material on campus.

2) Who is protected by this law? The law applies to "students of the public schools." CRS Sec. 22-1120(1). Presumably, this applies to elementary through high school students. College rights are not addressed. 3) What types of student media are protected? The term "student publication" is not further defined by the law. 4) What protection does this law offer to advisers? None. The statute contains a definition of publication adviser as "a person whose duties include the supervision of school-sponsored student publications," but this is used only to determine who has the ability to require that the publication "maintain professional standards." CRS Sec. 22-1-120(5)(a)-(b). Also, see question six of this section. 5) Does the law provide a specific cause of action for students to sue if there is a violation? No. However, the express grant of forum status to student publications should dictate that a First Amendment lawsuit would turn on the standard adopted by the U.S. Supreme Court in Tinker v. Des Moines Indep. Comm. Sch. Dist. See CRS Sec. 22-1-120(2). 6) Does the law provide any protection for the school against liability for what the paper publishes?Yes. The law expressly forbids holding any district, employee, official, parent or guardian civilly or criminally liable for any "expression made by students in the exercise of freedom of speech or freedom of the press." CRS Sec. 22-1-120(7).

7) What would administrators need to prove before being able to censor a student under the law?On its terms, the law "shall not be interpreted to authorize the publication or distribution of the following:" obscenity; defamation; falsehoods about any non-public figure; expression that creates a clear and present danger of the commission of unlawful acts, the violation of lawful school regulations or the material and substantial disruption of school operations; or expression that violates the privacy rights of others or threatens violence against people or property. CRS Sec. 22-1-120(3). Furthermore, the law contains a provision making it the adviser's responsibility to supervise production and "maintain professional standards." CRS Sec. 22-1-120(5)(a). Another provision states that if a publication is part of a class, the law may not be interpreted to interfere with the authority of the adviser "to establish or limit writing assignments... and to otherwise direct and control the learning experience...." CRS Sec. 22-1-120(6). 8) Additional information about the law. Colorado's law is the only one to expressly grant forum status to student publications. It is also one of the laws with a legislative history that indicates it was specifically passed as a response to Hazelwood. Top Iowa Iowa Code Sec. 280.22 1) What protection does this law offer to students? The law provides: (1) a blanket level of speech protection for all students; (2) restrictions for the content of publications in general; and (3) an additional set of provisions that set out rights for students on "official school publications." IC Sec. 280.22(1), (2), (3) and (5).
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To students in general: According to the statute, students have the right to freedom of speech "except as limited by this section." IC Sec. 280.22(1). The limitations of the section deal primarily with content in student publications, but also include a provision permitting a school to adopt "otherwise valid rules relating to oral communications." IC Sec. 280.22(8). To independent student journalists: Independent student journalists are covered under the general grant of rights, but the statute has specific limitations on what can be published by students. See question seven of this section for those limitations. To student journalists on official publications: Student editors of publications that are prepared for a class and distributed to the student body have the right to determine the content of their publications. IC Sec. 280.22(5) and (7). Additionally, except where otherwise stated in the code, official school publications are free from prior restraint (which is not necessarily the same as priorreview). IC Sec. 280.22(3). School officials are required to adopt and make available a written publications code that explains when, where and how students can distribute their material on campus.

2) Who is protected by this law? The law appears to cover all "students of the public schools" subject to a "board of directors[']" rules and regulations, which would presumably include public elementary, intermediate and high school students. The law does not address the free speech and press rights of college students.

3) What types of student media are protected? The definition of "official school publication" covers "material produced by students in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee." IC Sec. 280.22(7). This broad definition would presumably cover all types of student media. 4) What protection does this law offer to advisers? None specifically to advisers, but see question six of this section. 5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes. 6) Does the law provide any protection for the school against liability for what the paper publishes?Yes. The "public school district and school employees or officials" cannot be held liable in any lawsuit or prosecution against student expression, "unless the school employees or officials have interfered with or altered the content of the student speech or expression, and then only to the extent of the interference or alteration of the speech or expression." IC Sec. 280.22(6). 7) What would administrators need to prove before being able to censor student media under the law? The statute prohibits students from expressing or distributing obscenity; defamation, as defined by state law; or materials that encourage students to commit unlawful acts, violate lawful school regulations or cause the material and substantial disruption of the school. IC Sec. 280.22(2). Additionally, for official school publications, the adviser is charged with supervising the newspaper's production, "maintaining professional standards" of writing, and compliance with the law. IC Sec. 280.22 (5). 8) Additional information about the law. Note that the Iowa law prohibits materials that merelyencourage the commission of unlawful acts, the violation of lawful school regulations, or the creation of a material and substantial disruption. This varies from the statutes in California and Colorado, which require that school officials show a "clear and present danger" of the commission of a violation -- a much higher standard of evidence. Mere encouragement would not justify censorship in a public forum publication under Tinker. Top Kansas Kan. Stat. Ann. Sections 72.1504 - 72.1506 1) What protection does this law offer to students? The Kansas Student Publications Act states that "the liberty of the press in student publications shall be protected," and explicitly states that material cannot be censored merely because it is controversial. KSA 72.1506(a). Additionally, the statute states that student editors determine the content (both editorial and advertising) of student publications, subject to the other limitations of the law. KSA 72.1506(d). 2) Who is protected by this law? The law appears to cover all students attending school in "any public school district," which would presumably include public elementary, intermediate and high school students. The law does not address the free speech and press rights of college students. 3) What types of student media are protected? The definition of "student publication" includes "any matter which is prepared, substantially written, or published by students, which is distributed or generally made available, either free of charge or for a fee, to members of the

student body, and which is prepared under the direction of a certified employee." KSA 72.1505(b) (emphasis added). This broad definition would presumably cover all types of student media, including print, online and electronic. 4) What protection does this law offer to advisers? Advisers may not be "terminated from employment, transferred, or relieved of duties imposed under this subsection" for refusing to censor in violation of, or limit student rights conferred by, the student free expression law. KSA 72.1506(d). 5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes. 6) Does the law provide any protection for the school against liability for what the paper publishes?Yes. Section (e) of 72.1506 states that "[n]o publication or other expression of matter by students in the exercise of rights under this act shall be deemed to be an expression of school district policy." It also provides the board of education, the school district and their employees cannot be held responsible in any civil or criminal action for student expression "under this act." 7) What would administrators need to prove before being able to censor student media under the law? The statute exempts from its protection defamation; obscenity; matter that "commands, requests, induces, encourages, commends or promotes conduct" that is a crime or would be grounds for suspension or expulsion as defined by state law; or which creates "material or substantial disruption of... normal school activity." KSA 72.1506(c). 8) Additional information about the law. One provision states that advisers of student publications "are responsible for teaching and encouraging free and responsible expression of material and high standards of English and journalism." KSA 72.1506(d)(emphasis added). This is something slightly different than saying advisers are responsible for "maintaining" those standards, as the California, Colorado and Iowa laws state. Top Massachusetts Mass. Gen. Laws Ann. ch. 71, Section 82 1) What protection does this law offer to students? The Massachusetts law is unique in that it is the only student free expression law without provisions directed specifically toward student publications. Instead, it states that the right to freedom of expression in public schools "shall not be abridged," then includes in the definition of freedom of expression "the rights and responsibilities of students... to write, publish, and disseminate their views." 2) Who is protected by this law? The law applies to students "in the public schools of the Commonwealth," and therefore would seem to apply to elementary through high school students. The law does not address the rights of college students. 3) What types of student media are protected? Students are permitted to "write, publish, and disseminate their views[.]" No restriction of that term is provided. 4) What protection does this law offer to advisers? None. 5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes.

6) Does the law provide any protection for the school against liability for what the paper publishes?Yes. The statute states, "no school officials shall be held responsible in any civil or criminal action for any expression made or published by students." It also states that no student exercise of speech rights shall be deemed an expression of school policy. 7) What would administrators need to prove before being able to censor a student newspaper under the law? The only enumerated exception to the rights conferred by the statute is that protected expression "shall not cause any disruption or disorder within the school." 8) Additional information about the law. Although it is the shortest of the student free expression laws, the Massachusetts statute likely offers some of the strongest protection by not including a laundry list of exceptions to free speech rights. The legislative history of the Massachusetts law makes clear that it was introduced specifically to limit the impact of Hazelwood in the Commonwealth. See Pyle By and Through Pyle v. South Hadley School Committee, 861 F.Supp. 157, 167 (D. Mass. 1994). Top Oregon H.B. 3279, 74th Leg. Assem., Reg. Sess. (Or. 2007) (enacted) 1) What protection does this law offer to students? The law grants free expression rights to student journalists on "school-sponsored media," which include broadcasts and publications prepared under the supervision of a school-appointed adviser. H.B. 3279 Secs. (1)(a), (1)(b), and (2). 2) Who is protected by this law? The law grants rights to any public high school or public college student who "gathers, compiles, writes, edits, photographs, records or prepares information for dissemination in school-sponsored media." H.B. 3279 Secs. (1)(b) and (2)(c). 3) What types of student media are protected? The law protects "school-sponsored media," defined as materials "prepared, substantially written, published or broadcast" by student journalists that are distributed or broadcast to the student body and are "prepared under the direction of a student media adviser." However, in the high school context, this expressly excludes media intended for use solely in the classroom where it is produced. H.B. 3279 Secs. (1)(a) and (2)(b). A student media adviser is someone "employed, appointed or designated by the school district to supervise, or provide instruction relating to, student media." H.B. 3279 Secs. (1)(c) and (2)(d). 4) What protection does this law offer to advisers? None. 5) Does the law provide a specific cause of action for students to sue if there is a violation? Yes. A student can seek up to $100 in damages and a court order enforcing the provisions of the section. H.B. 3279 Sec. (5). 6) Does the law provide any protection for the school against liability for what the paper publishes?No, although a school that adheres to the law may escape liability for what students publish under the basic tort law principle that liability follows control. 7) What would administrators need to prove before being able to censor student media under the law? Prior to censoring, administrators will need to show that what a student wants to publish is defamatory; constitutes an unwarranted invasion of privacy; violates state or federal laws or

regulations; or incites students in a way that creates a clear and present danger of the commission of unlawful acts, the violation of lawful school policies or the material and substantial disruption of the orderly operation of the school. H.B. 3279 Sec. (4). The law further specifies that a school official's forecast of a clear and present danger of material and substantial disruption must be based on "specific facts, including past experience in the school and current events influencing student behavior, and not on undifferentiated fear or apprehension." H.B. 3279 Sec. (4). 8) Additional information about the law. Oregon's law, signed into law in July 2007, is the most recent student free expression law in the country and is the first to protect both high school and college student journalists in the same statute. Top

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