STUDENT PRESS LAW

“The vigilant protection of constitutional freedoms

is nowhere more vital

than in the community of American schools.”[1]

“[T]he university environment is the quintessential ‘marketplace of ideas,’ which merits full, or indeed heightened,

First Amendment Protection.”[2]

A series of U.S. Supreme Court and lower court decisions over the past forty years have firmly established First Amendment rights for students at public colleges and universities.[3] Colleges that attempt to censor student expression, overtly or through indirect means, find themselves on the wrong side of the law.

The rights of a student newspaper are extensive, and nearly the same as those of any other newspaper. It is far easier to list student speech that is not protected by the First Amendment:

· libelous speech[4]

· text, images, or other material covered by copyright[5]

· obscenity[6]

· “fighting words”[7]

· speech that presents a clear and immediate threat to national security

· material that can reasonably be forecast to materially and substantially disrupt normal school operations

Other speech not protected by the First Amendment includes speech that constitutes invasion of privacy, solicitation to commit crime, perjury, blackmail, and “true threats.”

The “material and substantial” standard has been derived from the landmark U.S. Supreme Court ruling in Tinker v. Des Moines Independent Community School District in 1969. The case was brought by middle school students Marybeth and John Tinker, who had worn armbands to school to protest the Vietnam war and were suspended. In the seminal decision, which is cited in almost every First Amendment case involving the student press, the court famously wrote that neither “students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In Tinker, the court distinguished “school-sponsored” and “non-school sponsored” speech. Student speech that is funded, supported through curriculum, or created with an adviser are considered “school-sponsored,” whereas independent expressions by students are not. The distinction became important in the Hazelwood School District v. Kuhlmeier (1988) ruling, which upheld conditional censorship of school-sponsored high school student expression. Hazelwood does not apply to student newspapers at colleges and universities.

In recent years, school administrations have less frequently attempted overt censorship of the student press. Indirect, more insidious attempts at censorship by college administrators have become far more common. However, in almost every case, the federal courts have sided with the rights of students to free and unfettered expression.

The courts have consistently sided with student claimants, setting precedents in making unlawful many cases of indirect censorship. When the following actions are related to the content of the publication, they are unlawful:

· no school officials [administrator or agent of the college, including student governments] can censor through the “power of the purse” by cutting funding to student publications[8]

· school officials cannot fire or reprimand student editors or journalists because of disagreements over the viewpoints expressed in the articles they publish[9]

· school officials cannot retaliate against student media advisers[10]

· require prior review of student content[11]

· threaten to fire or fire a student editor from an unrelated, paid campus job

· impose academic requirements, such as grade points, on student editors to censor content

· retaliate by cancelling orders for computers or other equipment

· punish a paper by moving it into less favorable space

· restrict after-hours access to the newsroom

· control a paper’s ability to be printed, or remove papers from news racks[12]

The only major judicial setback for college journalists over the last forty years was Hosty v. Carter (2005), which ruled against editors at the Innovator, the student newspaper of Governors State University in Illinois, when the campus president demanded that school administrators could review content prior to publication. This ruling by the Seventh Circuit U.S. Court of Appeals only affects students in Wisconsin, Illinois, and Indiana.

However, states can “raise the bar” on First Amendment rights of expression; federal court rulings establish only the lowest threshold of protection. And in fact Illinois passed state legislation in 2007 effectively negating the impact of Hosty on college student media in the state.

Numerous states–Colorado, California, Iowa, Massachusetts, among others–have passed laws protecting the rights of student journalists. Such laws mostly affect high school journalists, who enjoy far less First Amendment protection since Hazelwood School District v. Kuhlmeier (1988). Washington state has twice failed to pass similar legislation, however.

The Washington Administrative Code addresses “Journalistic freedom and responsibility” in the Seattle Community College District. The statute states that “student newspapers shall be free from censorship” but also states that schools can impose “journalistic, editorial, and advertising guidelines” on student media. This is regrettable language that can be interpreted to sanction unlawful actions against student media; states can “raise the bar” but cannot lower First Amendment protection from federal court rulings.

First Amendment law and litigation are bulwarks against efforts to censor the student press that should never happen in the first case. Censorship is anathema to the core principles of higher education. Censorship–directly or indirectly–is not only illegal. It is unprofessional, unethical, and arguably immoral.

Jeb Wyman

January 2011

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[1] U.S. Supreme Court, Healy v. James (1972)

[2] Sixth U.S. Court of Appeals, Kincaid v. Gibson (2001)

[3] Students at private colleges, which are not tax-payer supported and whose faculty and staff are not employees of the state, are not similarly protected by the First Amendment. However, most private institutions recognize the importance of free speech in higher education, and enforce policies to guarantee the rights of students to free expression.

[4] Libel is the written form of defamation. Claims of libel must prove three standards: that the material was 1) false; 2) harmful; and 3) published without adequate research. Since the New York Times Co. V Sullivan ruling, public officials must also demonstrate that the material was published with the intent to harm. In one of the rare “absolutes” of case law, truth is an absolute defense against claims of libel.

[5] Copyright law is part of broad spectrum of intellectual property law, covering text, images, audio recordings, and all variety of media. Other forms of intellectual property law cover “rights of publicity,” in which a person can control the use of his or her image or name for profit, among others. Copyright protection does not apply to ideas but only to the fixation of expression. The “fair use” provision of copyright law permits the press, educators, and others to freely utilize copyrighted material under certain conditions.

[6] Among three criteria, the “Miller standard” by the U.S. Supreme Court famously defines obscenity when “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Although obscenity is not afforded First Amendment protection, state local law can, and certainly does, permit lawful sale and dissemination of such material.

[7] “Fighting words,” by the standard of the Chaplinsky case, refers to speech that is directed to “inciting or producing imminent lawless action and is likely to incite or produce such action.” In subsequent decisions, the court has made it clear that “fighting words must present an actual threat of immediate violence, not merely offensive content” (Street v. New York et al.). “Hate speech” cases have not fared well in the courts.

[8] See Fifth Circuit Court of Appeals, Joyner v. Whiting (1973): “Censorship of constitutionally protected expression cannot be imposed ata college or university by . . . withdrawing financial support, or assering any other form of censorial oversight based onthe institutions power of the purse.” See also U.S. Supreme Court, Rosenberger v. Rectors and Visitors of the University of Virginia (1995): “Vital First Amendment speech principles are at stake here,” wrote Justice Kennedy. “The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression That danger is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” See also Board of Regents of University of Wisconsin System v. Southworth, Stanley v. Magrath, et al.

[9] See Fourth Circuit Court of Appeals, Thonen v. Jenkins (1973); Fifth Circuit Court of Appeals, Shiff v. Williams (1975)

[10] See Coppola v. Larsen (2006): “It is clear that such retaliatory removal would . . . have an impermissibly chilling effect on the Paper’s student editors’ freedom of expression in future issues of the Paper, and inflict irreparable harm . . .”

[11] See Antonelli v Hammond (1970); Trujillo v. Love (1971); et al.

[12] When newspaper theft is committed by school officials, it is a First Amendment violation; when it is done by students or others, it is theft prosecutable under local statutes, even if the paper is distributed “free of charge.” Colorado, California, and Maryland have passed specific laws prohibiting newspaper theft.