Miller v. California
Brennan, Jr., who by now also believed the Roth and Memoirs tests
Background: In 1971, Marvin Miller, an owner/operator of a California
mail-order business specializing in pornographic films and books, sent out
a brochure advertising books and a film that graphically depicted sexual
activity between men and women. The brochure used in the mailing
contained graphic images from the books and the film. Five of the
brochures were mailed to a restaurant in Newport Beach, California. The
owner and his mother opened the envelope and seeing the brochures,
called the police.[2]
Miller was arrested and charged with violating California Penal Code
311.2(a) which says in part, "Every person who knowingly sends or
causes to be sent, or brings or causes to be brought, into this state for
sale or distribution, or in this state possesses, prepares, publishes,
produces, or prints, with intent to distribute or to exhibit to others, or who
offers to distribute, distributes, or exhibits to others, any obscene matter
is for a first offense, guilty of a misdemeanor."[3] California lawmakers
wrote the statute based on two previous Supreme Court obscenity cases,
Memoirs v. Massachusetts and Roth v. United States.[4]
Miller was tried by jury in the Superior Court of Orange County. At the
conclusion of the evidence phase, the judge instructed the jury to evaluate
the evidence by the community standards of California, i.e., as defined by
the statute.[5] The jury returned a guilty verdict.
Miller appealed to the Appellate Division of the Superior Court, arguing
that the jury instructions did not use the standard set in Memoirs v.
Massachusetts which said that in order to be judged obscene, materials
must be "utterly without redeeming social value". Miller argued that only a
national standard for obscenity could be applied.[6] The appellate division
rejected the argument and affirmed the jury verdict. Miller then filed an
appeal with the California Court of Appeal for the Third District, which
declined to review. Miller applied to the Supreme Court for certiorari,
which was granted. Oral arguments were heard in January 1972.
Previous Court Decision on Obscenity: The U.S. Supreme Court
granted certiorari to Miller because the California law was based on its
two previous obscenity cases which the Court wanted to revisit. Chief
Justice Warren Burger came to the Court in 1969 believing that the Court's
obscenity jurisprudence was misguided and governments should be given
more leeway to ban obscene materials. In consideration of Miller in May
and June 1972, Burger pushed successfully for a looser definition of
"obscenity" which would allow local prosecutions, while Justice William J.
should be abandoned, led the charge for protecting all "obscenity" unless
distributed to minors or exposed offensively to unconsenting adults.
Decision of the case was contentious, and Miller was put over for
reargument for October term 1972, and did not come down until June
1973, with Burger prevailing with a 5–4 vote.[1] [7] [8]
Since the Court's decision in Roth v. United States, 354 U.S. 476 (1957),
the Court had struggled to define what constituted constitutionally
unprotected obscene material. Under the Comstock laws that prevailed
before Roth, articulated most famously in the 1868 English case Regina
v. Hicklin, any material that tended to "deprave and corrupt those whose
minds are open to such immoral influences" was deemed "obscene" and
could be banned on that basis. Thus, works by Balzac, Flaubert, James
Joyce, and D. H. Lawrence were banned based on isolated passages and
the effect they might have on children. Roth repudiated the Hicklin test
and defined obscenity more strictly, as material whose "dominant theme
taken as a whole appeals to the prurient interest" to the "average person,
applying contemporary community standards". Only material now meeting
this test could be banned as "obscene".
In Memoirs v. Massachusetts, 383 U.S. 413 (1966), a plurality of the Court
further redefined the Roth test by holding unprotected only that which is
"patently offensive" and "utterly without redeeming social value," but no
opinion in that case could command a majority of the Court either, and the
state of the law in the obscenity field remained confused. In Jacobellis v.
Ohio, 378 U.S. 184 (1964) at 197, Justice Potter Stewart's concurring
opinion said that the Court in earlier pornography cases "was faced with
the task of trying to define what may be indefinable", and that criminal laws
were constitutionally limited to "hard-core pornography", which he did not
try to define: "perhaps I could never succeed in intelligibly doing so. But I
know it when I see it".[9] Other Justices, including Justice Hugo Black in
Mishkin v. New York, had equally been unwilling to clearly define what
pornography could be prohibited by the First Amendment.
SC Decision: Miller had based his appeal in California on Memoirs v.
Massachusetts. The Court rejected that argument. The question before
the court was whether the sale and distribution of obscene material was
protected under the First Amendment's guarantee of Freedom of Speech.
The Court ruled that it was not. It indicated that "obscene material is not
protected by the First Amendment", especially that of hardcore
pornography, thereby reaffirming part of Roth.[10][11]
However, the Court acknowledged "the inherent dangers of undertaking
to regulate any form of expression", and said that "State statutes designed
to regulate obscene materials must be carefully limited."[12] The Court, in
an attempt to set such limits devised a set of three criteria which must be
met for a work to be legitimately subject to state regulation:
1. whether the average person, applying contemporary "community
standards", would find that the work, taken as a whole, appeals to
the prurient interest;
2. whether the work depicts or describes, in an offensive way, sexual
conduct or excretory functions, as specifically defined by
applicable state law (the syllabus of the case mentions only sexual
conduct, but excretory functions are explicitly mentioned on page
25 of the majority opinion); and
3. whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.[13]
This obscenity test overturns the definition of obscenity set out in the
Memoirs decision, which held that "all ideas having even the slightest
redeeming social importance ... have the full protection of the guaranties
[of the First Amendment]" and that obscenity was that which was "utterly
without redeeming social importance".[14]
The Miller decision vacated the jury verdict and remanded the case back
to the California Superior Court.
Soriano v. Laguardia
Facts: On August 10, 2004, at around 10:00 p.m., petitioner, as host of
the program Ang Dating Daan, aired on UNTV 37, made obscene remarks
against INC. Two days after, before the MTRCB, separate but almost
identical affidavit-complaints were lodged by Jessie L. Galapon and seven
other private respondents, all members of the Iglesia ni Cristo (INC),
against petitioner in connection with the above broadcast. Respondent
Michael M. Sandoval, who felt directly alluded to in petitioner’s remark,
was then a minister of INC and a regular host of the TV program Ang
Tamang Daan.
Ang Dating Daan host Eliseo S. Soriano uttered the following statements
in his TV program against Michael Sandoval (Iglesia ni Cristo’s minister
and regular host of the TV program Ang Tamang Daan):
Lehitimong anak ng demonyo[!] Sinungaling [!]
Gago ka talaga[,] Michael[!] [M]asahol ka pa sa putang babae[,] o di ba[?]
[‘]Yung putang babae[,] ang gumagana lang doon[,] [‘]yung ibaba, dito kay
Michael[,] ang gumagana ang itaas, o di ba? O, masahol pa sa putang
babae [‘]yan. Sobra ang kasinungalingan ng mga demonyong ito.
As a result, The MTRCB initially slapped Soriano’s Ang Dating Daan,
which was earlier given a “G” rating for general viewership, with a 20-day
preventive suspension after a preliminary conference. Later, in a decision,
it found him liable for his utterances, and was imposed a three-month
suspension from his TV program Ang Dating Daan. Soriano challenged
the order of the MTRCB.
Issue: Whether or not Soriano’s statements during the televised “Ang
Dating Daan” part of the religious discourse and within the protection of
Section 5, Art.III.
Ruling: No. Under the circumstances obtaining in this case, therefore,
and considering the adverse effect of petitioner’s utterances on the
viewers’ fundamental rights as well as petitioner’s clear violation of his
duty as a public trustee, the MTRCB properly suspended him from
appearing in Ang Dating Daan for three months. Furthermore, it cannot
be properly asserted that petitioner’s suspension was an undue
curtailment of his right to free speech either as a prior restraint or as a
subsequent punishment. Aside from the reasons given above (re the
paramount of viewers rights, the public trusteeship character of a
broadcaster’s role and the power of the State to regulate broadcast
media), a requirement that indecent language be avoided has its primary
effect on the form, rather than the content, of serious communication.
There are few, if any, thoughts that cannot be expressed by the use of
less offensive language.
The SC ruled that “Soriano’s statement can be treated as obscene, at
least with respect to the average child,” and thus his utterances cannot be
considered as protected speech. Citing decisions from the US Supreme
Court, the High Court said that the analysis should be “context based” and
found the utterances to be obscene after considering the use of television
broadcasting as a medium, the time of the show, and the “G” rating of the
show, which are all factors that made the utterances susceptible to
children viewers. The Court emphasized on how the uttered words could
be easily understood by a child literally rather than in the context that they
were used.”
The SC also said “that the suspension is not a prior restraint, but rather a
“form of permissible administrative sanction or subsequent punishment.”
In affirming the power of the MTRCB to issue an order of suspension, the
majority said that “it is a sanction that the MTRCB may validly impose
under its charter without running afoul of the free speech clause.” visit
fellester.blogspot.com The Court said that the suspension “is not a prior
restraint on the right of petitioner to continue with the broadcast of Ang
Dating Daan as a permit was already issued to him by MTRCB,” rather, it
was a sanction for “the indecent contents of his utterances in a “G” rated
TV program.” (Soriano v. Laguardia; GR No. 165636, April 29, 2009)
Dissenting Opinion: Chief Justice Reynato S. Puno, in a separate
dissenting opinion, said that a single government action could be both a
penalty and a prior restraint. The Chief Magistrate pointed out that the
three month suspension takes such form because it also acts as a
restraint to petitioner’s future speech and thus deserves a higher scrutiny
than the “context based” approach that the majority applied. In voting to
grant Soriano’s petition, the Chief Justice said that “in the absence of proof
and reason, he [Soriano] should not be penalized with a three-month
suspension that works as a prior restraint on his speech.”
Barnes v. Glen Theater
a landmark decision of the Supreme Court of the United States concerning
the First Amendment and the ability of the government to outlaw certain
forms of expressive conduct. It ruled that the state has the constitutional
authority to ban public nudity, even as part of expressive conduct such as
dancing, because it furthers a substantial government interest in
protecting the morality and order of society. This case is perhaps best
summarized by a sentence in Justice Souter's concurring opinion, which
is often paraphrased as "Nudity itself is not inherently expressive conduct.
Background: Two businesses - the Kitty Kat Lounge, Inc. and Glen
Theatre, Inc. - operated adult entertainment establishments in South
Bend, Indiana. The Kitty Kat was a club that sold alcoholic beverages in
addition to employing live female exotic dancers to entertain its patrons.
Glen Theatre was primarily in the business of selling adult entertainment
materials, such as magazines and videos, and had an enclosed
"bookstore" area where customers could insert coins into a machine which
would allow them to view live female exotic dancers. Both businesses
sought to include fully nude dancers to their entertainment lineup, but
were prevented by an Indiana statute regulating "indecent behavior."
Specifically, the statute read that dancers must wear, at a minimum,
pasties and g-strings to provide basic coverage of the dancers' bodies. As
this law necessarily prevented complete nudity in businesses open to the
public, Kitty Kat and Glen Theatre were legally unable to offer nude
dancing, prompting them to file suit in the United States District Court for
the Northern District of Indiana on First Amendment grounds. The
respondents, represented by Patrick Baude, professor at Indiana
University School of Law - Bloomington, argued that the prohibition of
complete nudity in public places was unconstitutionally overbroad. The
District Court granted an injunction, against enforcement of the indecency
statute.
The Seventh Circuit Court of Appeals reversed the District Court's
decision based on prior suit in the Supreme Court of Indiana as well as
the United States Supreme Court that denied the respondents' the ability
to pursue relief with their current constitutional argument. The case was
remanded to District Court, allowing the businesses to argue against the
statute as it applied to the proposed dancing rather than claiming
constitutional overbreadth.
The District Court, upon remand, declared that the dancing was not
constitutionally protected speech, and the businesses appealed to the
Seventh Circuit Court of Appeals, which reversed the District Court's
ruling. The opinions authored by the judges on the Seventh Circuit's panel
accepted the argument that the statute in question unduly infringed on
freedom of expression; in this case, the message of "eroticism and
sexuality" that the dancers were meant to convey.
The Supreme Court granted certiorari and heard oral arguments on
January 8, 1991.
Court Opinion: On June 21, 1991, Chief Justice Rehnquist delivered the
judgment of the Court, joined by Justices O'Connor and Kennedy. Justices
Scalia and Souter authored their own concurring opinions, agreeing with
the majority ruling but for different reasons.
The plurality reasoned that, indeed, the type of dancing the respondents
sought to include in their businesses was expressive conduct under the
First Amendment, albeit "only marginally so." While the plurality ceded this
point, it went on to decide how much constitutional protection the conduct
warranted, and whether the statute at hand was, in fact, an unacceptable
infringement on the freedom of expression.
In determining the type of protection, the plurality turned to the "time,
place, or manner" test as implemented in United States v. O'Brien (1968),
the four-pronged "O'Brien Test." The plurality found that enacting this sort
of legislation was clearly within the constitutional authority of the state,
and that the statute furthered a substantial government interest. To
understand the legislative intent behind the creation of the statute, the
plurality turned to the history of indecency law, noting an expansive history
and breadth of adoption for such legislation. Considering available
precedent from cases such as Roth v. United States (1957) and Bowers
v. Hardwick (1986), the plurality concluded that the statute furthered a
government interest in order and morality.
With regards to the third part of the O'Brien Test, the plurality stated that
the statute was not related to suppressing expression. The statute did not
prohibit nude dancing alone, but rather all nudity in public places. While it
may be in some manner "expressive" for a person to appear naked in
public, the plurality determined that basically any conduct anyone
engages in at any time can be considered "expressive," so merely being
expressive is not enough to bring such an argument. To provide support
for the logical foundations of this finding, the plurality said,
The requirement that the dancers don pasties and a G-string does not
deprive the dance of whatever erotic message it conveys; it simply makes
the message slightly less graphic. The perceived evil that Indiana seeks
to address is not erotic dancing, but public nudity. The appearance of
people of all shapes, sizes and ages in the nude at a beach, for example,
would convey little if any erotic message, yet the state still seeks to
prevent it. Public nudity is the evil the state seeks to prevent, whether or
not it is combined with expressive activity.
As to the final point of the O'Brien test, the plurality contended that the
statute was narrowly tailored to achieve the government interest it sought
to promote. Indiana's statute was not intended as a clandestine attempt
at silencing the potentially expressive conduct of a person dancing in the
nude; it was "an end in itself," designed to codify the societal disapproval
of nude strangers in public. Even though, as the respondents contended,
the patrons in their establishments are all of legal age and all willing to
see the prohibited nudity, the fact remains that, for the purposes of the
constitutional question at hand, the statute was not needlessly restrictive.
In closing, the plurality reversed the ruling of the Court of Appeals. In
effect, this ruling determined that it was not unconstitutional for a state to
enact legislation forbidding public nudity outright, particularly if the only
requirement for a person to no longer be considered "nude" was wearing
some of the most revealing possible clothing.
Dissenting Opinion: Justice White authored the dissent, joined by
Justices Marshall, Blackmun and Stevens. In noting his disagreement with
the other Justices, Justice White argues that the third part of the O'Brien
test (requiring that the law be unrelated to the suppression of free
expression) is not satisfied. In pursuing legitimate government interests,
the statute in place restricts conduct - nudity - that is integral to the
expressive nature of the act. Citing Schad v. Borough of Mt. Ephraim
(1981), the dissent remarks that the condition of human nakedness in and
of itself does not transform otherwise protected speech into unprotected
speech. Justice White argues that it is precisely because of the
heightened expressive impact that the state chooses to forbid public
nudity, because the state desires to control the negative secondary effects
such as prostitution and degradation of women. Because nudity is an
essential part of the potency of the expression in question, the law
unconstitutionally restricts that expression.
FCC v. Pacifica Foundation
Brief Fact Summary. A satiric humorist named George Carlin (Carlin)
recorded a 12-minute monologue entitled “Filthy Words” before a live
audience in a California theatre. Carlin began by referring to his thoughts
about the words that could not be said on the public airwaves. Then, Carlin
proceeded to list those words and repeat them over and over again.
Synopsis of Rule of Law. The concept of indecent is intimately
connected with the exposure of children to language that describes, in
terms patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory activities and
organs, at times of the day when there is reasonable risk that children may
be in the audience.
Facts. On October 30, 1973, at 2:00 p.m., a New York radio station,
owned by the Respondent, Pacifica Foundation (Respondent) broadcast
the “Filthy Words” monologue. A few weeks later, a man who stated that
he heard the broadcast while driving with his young son, wrote a letter
complaining to the Petitioner, the Federal Communications Commission
(Petitioner). In response to the complaint, the Respondent explained that
the monologue had been played during a program about contemporary
society’s attitude toward language and that, immediately before its
broadcast, listeners had been advised of the monologue’s language. The
Petitioner, after characterizing the language as patently offensive, though
not necessarily obscene, issued a declaratory order granting the
complaint, but not imposing any formal sanctions. The Petitioner
concluded that the language as broadcast was indecent and prohibited by
18 U.S.C. Section:1464, prohibiting the broadcast of obscene, indecent or
profane language. The United States Court of Appeals reversed.
Issue. Whether the Petitioner has any power to regulate a radio broadcast
that is indecent but not obscene?
Held. It is not necessary for the Petitioner to determine that a
communication is obscene before it may exercise its regulatory power.
The Petitioner can use its regulatory power to “channel” indecent material
to times when children are not able, or much less likely, to receive it. As a
result, the Petitioner’s action is sustained and the decision of the United
States Court of Appeals is reversed.
Dissent. An individual, in switching on a given radio station, makes a
decision to take part in an ongoing public discourse. This action does not
implicate the fundamental privacy interests that the court is concerned
with.Concurrence. The majority’s use of “channeling” will not be effective
because it is not possible to physically separate an audience in today’s
world of broadcast media.
Discussion. The decision was based upon the same principles that are
found within the law of nuisance. In the case before the Supreme Court of
the United States (Supreme Court), the majority focused upon the
prospect that children may be listening to the broadcast in question.
Furthermore, the nature of radio is one in which the audience is constantly
tuning in and out and prior warnings cannot adequately protect the
listener. Since children could be forever harmed by merely being around
when such a broadcast is made, the court found that the Petitioner could
regulate the Respondent through “channeling” the indecent
communication to a more appropriate time and place. The fact that the
monologue was broadcast at 2:00 p.m. in the afternoon made it more
susceptible to regulation by the Petitioner.
City of Renton v. Playtime Theatres, Inc
Constitutional Law Keyed to Cohen > Restrictions On Time, Place, Or
Matter Of Expression
Brief Fact Summary. A zoning ordinance prohibited adult movie theatres
from being located within 1,000 feet of any residential zone, church, park
or school. The Respondent, Playtime Theatres, Inc. (Respondent),
claimed that the First and Fourteenth Amendments of the United States
Constitution (Constitution) were violated by the city ordinance.
Synopsis of Rule of Law. Content-neutral time, place, and manner
regulations are acceptable so long as they are designed to serve a
substantial government interest and do not unreasonably limit alternative
avenues of communication.
Facts. The Respondent purchased two theatres in Renton, Washington
for the purpose of showing adult films. The Respondent filed suit in
Federal District Court seeking an injunction and declaratory judgment
claiming that the First and Fourteenth Amendments of the Constitution
were violated by a city ordinance, which prohibited adult motion picture
theatres from being located within 1,000 feet of any residential zone,
single or multiple-family dwelling, church, park or school. The District
Court entered summary judgment in favor of the Petitioner, the City of
Renton (Petitioner), holding that the ordinance did not violate the First
Amendment of the Constitution. On reversal, the Court of Appeals held
that the ordinance constituted a substantial restriction on First
Amendment constitutional interests and remanded the case for
reconsideration as to whether the city had substantial interests to support
the ordinance.
Issue. Was the zoning ordinance an acceptable time, place, and manner
restriction when it outlawed adult movie theaters within 1000 feet of any
residential zone, church, park, or school?
Held. Yes. The judgment of the Court of Appeals is reversed. Justice
William H. Rehnquist (J. Rehnquist) delivered the opinion of the Supreme
Court. Content-neutral time, place, and manner regulations are
acceptable so long as they are designed to serve a substantial
government interest and do not unreasonably limit alternative avenues of
communication.
Dissent. Justice William J. Brennan (J. Brennan) and Justice Thurgood
Marshall (J. Marshall) dissented stating that the ordinance discriminates
based on content. The record presented to support the asserted interest
is very thin. Even if the ordinance should be treated as time, place, manner
restriction, it is still invalid because it does not leave open reasonable
alternative avenues of communication.
Discussion. The Petitioner’s ordinance does not ban adult theaters
altogether, but rather provides that such theatres may not be located in
certain areas. Thus, it is a time, place, manner restriction. The Petitioner’s
City Council was predominately concerned with the secondary effects of
adult theaters and not with the content of the adult films themselves. The
secondary effects were crime, the effects on the city’s retail trade, property
values, and the effects on the general quality of urban life. The ordinance
was not designed to suppress the expression of unpopular views. It was
designed to serve the substantial government interests of crime
prevention, protection of retail trade, maintenance of property values and
the protection of the quality of life. The ordinance allowed for reasonable
alternative avenues of communication by leaving open areas of land in
which to place an adult theater. The fact that the land may be substantially
already in use is of no significance. The First Amendment of the
Constitution does not compel the government to ensure that adult theaters
will be able to obtain property sites.
Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)
Syllabus
Respondent public high school student (hereafter respondent) delivered
a speech nominating a fellow student for a student elective office at a
voluntary assembly that was held during school hours as part of a school-
sponsored educational program in self- government, and that was
attended by approximately 600 students, many of whom were 14-year-
olds. During the entire speech, respondent referred to his candidate in
terms of an elaborate, graphic, and explicit sexual metaphor. Some of the
students at the assembly hooted and yelled during the speech, some
mimicked the sexual activities alluded to in the speech, and others
appeared to be bewildered and embarrassed. Prior to delivering the
speech, respondent discussed it with several teachers, two of whom
advised him that it was inappropriate and should not be given. The
morning after the assembly, the Assistant Principal called respondent into
her office and notified him thatthe school considered his speech to have
been a violation of the school's "disruptive conduct rule," which prohibited
conduct that substantially interfered with the educational process,
including the use of obscene, profane language or gestures. Respondent
was given copies of teacher reports of his conduct, and was given a
chance to explain his conduct. After he admitted that he deliberately used
sexual innuendo in the speech, he was informed that he would be
suspended for three days, and that his name would be removed from the
list of candidates for graduation speaker at the school's commencement
exercises. Review of the disciplinary action through petitioner School
District's grievance procedures resulted in affirmance of the discipline, but
respondent was allowed to return to school after serving only two days of
his suspension. Respondent, by his father (also a respondent) as
guardian ad litem, then filed suit in Federal District Court, alleging a
violation of his First Amendment right to freedom of speech and seeking
injunctive relief and damages under 42 U.S.C. § 1983. The court held that
the school's sanctions violated the First Amendment, that the school's
disruptive conduct rule was unconstitutionally vague and overbroad, and
that the removal of respondent's name from the graduation speaker's list
violated the Due Process Clause of the Fourteenth Amendment. The court
awarded respondent monetary relief and enjoined the School District from
preventing him from speaking at the commencement ceremonies. The
Court of Appeals affirmed.
Held:
1. The First Amendment did not prevent the School District from
disciplining respondent for giving the offensively lewd and indecent
speech at the assembly. Tinker v. Des Moines Independent Community
School Dist., 393 U. S. 503, distinguished. Under the First Amendment,
the use of an offensive form of expression may not be prohibited to adults
making what the speaker considers a political point, but it does not follow
that the same latitude must be permitted to children in a public school. It
is a highly appropriate function of public school education to prohibit the
use of vulgar and offensive terms in public discourse. Nothing in the
Constitution prohibits the states from insisting that certain modes of
expression are inappropriate and subject to sanctions. The inculcation of
these values is truly the work of the school, and the determination of what
manner of speech is inappropriate properly rests with the school board.
First Amendment jurisprudence recognizes an interest in protecting
minors from exposure to vulgar and offensive spoken language, FCC v.
Pacifica Foundation, 438 U. S. 726, as well as limitations on the otherwise
absolute interest of the speaker in reaching an unlimited audience where
the speech is sexually explicit and the audience may include children.
Ginsberg v. New York, 390 U. S. 629. Petitioner School District acted
entirely within its permissible authority in imposing sanctions upon
respondent in response to his offensively lewd and indecent speech,
which had no claim to First Amendment protection. Pp. 478 U. S. 680-
686.
2. There is no merit to respondent's contention that the circumstances of
his suspension violated due process because he had no way of knowing
that the delivery of the speech would subject him to disciplinary sanctions.
Given the school's need to be able to impose disciplinary sanctions for a
wide range of unanticipated conduct disruptive of the educational process,
the school disciplinary rules need not be as detailed as a criminal code
which imposes criminal sanctions. The school disciplinary rule proscribing
"obscene" language and the prespeech admonitions of teachers gave
adequate warning to respondent that his lewd speech could subject him
to sanction.
755 F.2d 1356, reversed.
Hazelwood School District v. Kuhlmeier
a landmark decision by the Supreme Court of the United States that 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 concerned the censorship of two articles in The Spectrum, the
student newspaper of Hazelwood East High School in St. Louis County,
Missouri, 1983. When the school principal removed an article concerning
divorce and another concerning teen pregnancy, the student journalists
sued, claiming that their First Amendment rights had been violated. A
lower court sided with the school, but its decision was overturned by the
U.S. Court of Appeals for the Eighth Circuit, which sided with the students.
In a 5–3 decision, the Supreme Court overturned the circuit court's
decision, determining that school administrators could exercise prior
restraint of school-sponsored expression, such as curriculum-based
student newspapers and assembly speeches, if the censorship is
"reasonably related to legitimate pedagogical concerns". School-
sponsored student newspapers will not be presumed to be operating as
public forums for student expression absent evidence indicating
otherwise.
The case, and the earlier Tinker v. Des Moines Independent Community
School District (1969), are considered landmark decisions for defining the
right of expression for students in public schools. While subsequent court
rulings have varied on when Hazelwood applies, the case remains a
strong precedent in the regulation of student speech. However, the state
statutes protecting student free expression, enacted by 14 states as of
March 21, 2018, most in response to the limitations of the Hazelwood
decision, typically adopt the more protective Tinker precedent.
Background: The case concerned The Spectrum, a student newspaper
published as part of a Journalism II class at Hazelwood East High School
in St. Louis County, Missouri.[2][3] The Spectrum was published roughly
every three weeks during the 1982–1983 school year.[4][5] About 4,500
copies were distributed to students and community members. 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 in revenue.[2][5]
On May 10, 1983, Howard Emerson, the adviser to the journalism class,
submitted page proofs of the May 13 issue of the newspaper to principal
Robert Eugene Reynolds for approval, a practice that was customary at
the time.[6][7] Reynolds objected to two of the stories scheduled to run. One
was about teen pregnancy, containing interviews with three students who
had been pregnant. The story used false names to keep the girls' identities
a secret, but Reynolds was concerned that the students would still be
identifiable from the text.[4] He was also concerned that the references to
sexual activity and birth control were inappropriate for younger students
at the school. The second story was about divorce and featured an
interview with a student whose parents were divorced, in which she
complained that 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 with the guys ... always argued about everything".[6] Reynolds,
unaware that the girl's name would also be changed,[4] argued that her
family should have been given an opportunity to respond within the story,
or to object to its publication.[6]
Reynolds did not believe there was time to make changes because, if
there were any delays in publication, the newspaper would not be
published before the end of the school year.[4] After consulting with his
supervisors, he opted to publish a four-page newspaper instead of a six-
page one, omitting the pages containing the two stories in question.[6]
Cutting two pages removed a total of seven articles from the paper. [8]
Reynolds did not tell the students about the decision, and they did not find The question [of] whether the First Amendment requires a school to
out about it until the paper was delivered to the school.[9] tolerate particular student speech—the question we addressed in
Tinker—is different from the question whether the First Amendment
In response, editor Cathy Kuhlmeier and reporters Leslie Smart and
requires a school affirmatively to promote particular student speech. The
Leanne Tippett filed suit in January 1984[8] with the aid of the American
former question addresses educators' ability to silence students' personal
Civil Liberties Union. Kuhlmeier later said that the idea for the pieces had
expression that happens to occur on the school premises. The latter
come from old issues of The Spectrum, and that she had been looking to
question concerns educators' authority over school sponsored
update them.[
publications, theatrical productions, and other expressive activities that
students, parents, and members of the public might reasonably perceive
SC Decision: The Supreme Court granted certiorari in January 1987,[8] to bear the imprimatur of the school.[19][24]
and the case was argued on October 13, 1987. On January 13, 1988, the In a footnote, the court clarified that the ruling did not necessarily apply at
court handed down its decision,[4] overturning the circuit court in a 5-3 the collegiate level.
ruling.[18] Its majority opinion set a precedent that school-sponsored
activities, including student newspapers and drama productions, are not
normally protected from administrative censorship under the First
Dissenting: Associate Justice William J. Brennan, Jr. wrote a dissenting
Amendment
opinion,[25] in which he was joined by Associate Justices Thurgood
Majority Opinion: The majority of the justices held that the school Marshall and Harry Blackmun, who often took liberal positions on First
principal was entitled to censor the articles.[21] The majority opinion, written Amendment issues. In his opinion, Brennan expressed concern about the
by Associate Justice Byron White, stated that officials had never intended message the majority ruling would send to students, writing:[19]
the school paper to be a public forum, as underground publications were The young men and women of Hazelwood East expected a civics lesson,
in past cases. White went on to say that educators do not infringe on First but not the one the Court teaches them today...Such unthinking contempt
Amendment rights when exercising control over student speech in school- for individual rights is intolerable from any state official. It is particularly
sponsored activities, "so long as their actions are reasonably related to insidious from (a school principal) to whom the public entrusts the task of
legitimate pedagogical concerns".[22] The court established that the inculcating in its youth an appreciation for the cherished democratic
student publication could be regulated by school officials, and that they liberties that our constitution guarantees
"reserved the forum for its intended purpose, as a supervised learning
experience for journalism students".[19]
A school need not tolerate student speech that is inconsistent with its
basic educational mission, even though the government could not . ...
(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.[19][23]
The decision overrode the precedent set in the Tinker case, which had
permitted censorship of student speech only if it violated the rights of other
students or threatened to cause a campus disruption. The majority opinion
in Hazelwood held that this case was different.[22][8] The majority opinion
said that school administrators are not required to tolerate speech that is
contrary to the school's academic mission,[3] and continued: