Roundup: Lawmakers Protect Student Free Speech and Press

California court rules school district violated student columnist’s First Amendment rights

A California state appeals court ruled May 21, 2007 that a school district violated a student’s First Amendment rights in its reaction to controversial editorials published in a high school newspaper.

Andrew W. Smith filed suit against the Novato Unified School District in 2002, after two of his editorials for the school paper, The Buzz, caused a stir at Novato High School. Smith’s column titled “Immigration” criticized U.S. immigration policy and made several derogatory remarks about Hispanics. When students and parents complained about the column, the school principal held meetings with them and later issued an apology, saying, “this article should not have been printed in our student newspaper, as it violates our District’s Board Policy regarding student publications.” The district superintendent ordered remaining issues of the paper to be removed from distribution.

A later column by Smith, “Reverse Racism” was published after being delayed for one issue in order to produce a counter-point column at the principal’s suggestion.

Smith’s lawsuit alleged violations of his rights to free speech under the U.S. and California Constitutions and California Education Code section 48907, a statute which guarantees student free speech rights in public high schools, and challenged the school district’s speech code as facially invalid. Novato Unified School District Board Policy 5145.2, the “Freedom of Speech/Expression: Publications Code” provides that “students’ rights of expression shall be limited only as allowed by law,” and prohibits “expressions or materials which constitute harassment, threats or intimidation based on race, national origin, religion, gender, ancestry, disability, sexual preference or the perception that a group or person has those characteristics.” Smith sought an injunction prohibiting further abridgements of free speech, as well as damages of $1.

In August 2005, the Marin County Superior Court ruled that the column contained “fighting words,” which are not protected under the California Education Code, and ordered Smith to pay the district’s legal fees. The May 21, 2007 ruling by the California Court of Appeals for the First Appellate District in San Francisco, in Smith v. Novato Unified School District, 150 Cal. App. 4th 1439, (2007), reversed the trial court’s ruling. According to the Associated Press, Smith will be refunded nearly $21,000 in legal fees.

The California appeals court found that the state’s education code provides students with broad protections of free speech in student newspapers. The court noted that the U.S. Supreme Court ruled in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) that “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.” However, the court said California courts have ruled that, under the state’s education code, “[t]he broad power to censor expression in school sponsored publications for pedagogical purposes recognized in Kuhlmeier is not available to this state’s educators.”

The court rejected Smith’s challenge to the school’s speech code, however, because it found the list of prohibited “expressions or materials which constitute harassment, threats or intimidation” incorporated a state education code prohibition on “hate violence.”

“[The speech code] does not violate [California Education Code] section 48907 because speech amounting to hate violence would present a clear and present danger of inciting the commission of unlawful acts on school premises,” the opinion said.

The court ruled that although the district did not expressly discipline Smith for his columns, the attempt to disassociate itself from his speech in the “Immigration” column violated the California education code and his constitutional rights to free speech.

“The District sent the clear message that no further speech similar to ‘Immigration’ would be tolerated,” the opinion said. “In the aftermath of ‘Immigration’ the District succumbed to the fear of disruption and discontent. While understandable, this was not permissible.”

States take steps to protect student journalists

Illinois and Oregon lawmakers have passed bills aimed at protecting student journalists.

On July 13, 2007, Oregon Governor Ted Kulongoski signed into law a bill that guarantees free speech and press rights to students in school-sponsored publications in public high schools and universities in that state. The law, which went into effect upon signing, says “student journalists are responsible for determining the … content of school-sponsored media.”

The law says that school-sponsored expression may be restricted by high school, community college or university officials only when it is libelous or slanderous, “constitutes an unwarranted invasion of privacy,” violates an existing federal or state statute, or “so incites students as to create a clear and present danger of the commission of unlawful acts on or off school premises, the violation of school policies, or the material and substantial disruption of the orderly operation of the school.”

According to the law, school officials who restrict publications based on a “forecast of material and substantial disruption” must provide specific facts in support of the restriction and must not base it on “undifferentiated fear or apprehension.”

Student plaintiffs who bring civil suits under the law may be awarded damages and injunctive and declaratory relief. According to the Student Press Law Center, an earlier version of the bill also allowed successful student plaintiffs in civil suits to be awarded attorneys fees and court costs, but that provision was later removed. According to the Student Press Law Center the bill passed by a vote of 16 to 14 in the state Senate and 29 to 16 in the House of Representatives.

In Illinois, Governor Rod R. Blagojevich has until early September to sign a similar measure aimed at protecting the free press rights of student journalists for school-sponsored publications in the state’s public universities and community colleges.

The College Campus Press Act passed in the Illinois House of Representatives 112 to 2 and was unanimously passed in the state Senate.

The bill will bolster support for college student journalists following a federal court ruling that said administrators at public institutions of higher learning may have the same authority to censor school-sponsored publications as officials at public high schools. In 2005, the Seventh Circuit U.S. Court of Appeals, which has jurisdiction over Illinois, Wisconsin and Indiana, ruled in Hosty v. Carter, 412 F.3d 731, that a dean at Governor’s State University did not violate student editors’ First Amendment rights by practicing prior review over the student newspaper because it was not clearly a “designated public forum.” (See “Supreme Court will not Hear Hosty Case” in the Spring 2006 issue of the Silha Bulletin, and “Hosty Ruling Could Result in Fewer Freedoms for University Newspapers, Students” in the Summer 2005 issue.)

Section 10 of the Illinois bill states, “All campus media produced primarily by students at a State-sponsored institution of higher learning is a public forum for expression by the student journalists and editors at the particular institution. Campus media, whether campus-sponsored or non campus-sponsored, is not subject to prior review by public officials of a State-sponsored institution of higher learning.”

The Student Press Law Center reported June 7 that amendments later made to the bill insulate administrators from being held liable for student produced content and allow them to discipline students for use of unprotected speech. Section 25 of the bill states, “[e]xpression made by a collegiate student journalist, collegiate student editor, or other contributor in campus media is neither an expression of campus policy nor speech attributable to a State-sponsored institution of higher learning.” Section 30 says, “Nothing in this Act prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected, or for speech that is not constitutionally protected, including obscenity or incitement.”

– Patrick File, Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on October 21, 2009 2:38 PM.

In Morse v. Frederick, Court Places Limits on Student Expression was the previous entry in this blog.

Update: N.J. College Settles with Dropped Student Paper Adviser is the next entry in this blog.

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