2. The Law of the Student Press
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The Law of the Student Press

3. The 1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.

4. Prior to 1969
Neither students nor teachers are recognized as citizens under the Constitution during school hours.
Students have no right to freedom of speech.
The student press is a function of the educational system and controlled by administrators.

5. 1969

6. Tinker vs. the Board
Four students wear armbands to school to protest the Vietnam war.
This defies school dress code.
Students are suspended from school.
They file suit against the school district, claiming that their rights to freedom of speech have been abridged.
Supreme Court upholds the students’ claim.

7. Precedents set by Tinker
1. Neither students nor teachers lose their right to freedom of expression upon entering the school house gate.
2. Rights to freedom of expression may be abridged if it “materially and substantially disrupts class work or involves substantial disorder or invasion of the rights of others”.
3. Rights to freedom of speech can’t be abridged based on fear of disruption.

8. Precedents set by Tinker
Students are prohibited from publishing material that is obscene, libelous or an invasion of privacy.
Basically, Tinker guarantees that a student’s First Amendment rights are substantially the same as an adult’s.

9. Scoville vs. the Board
Student editor writes editorial advocating that students stop taking home school’s propaganda.
Principal confiscates all issues of the newspaper prior to publication.
Student files suit based on prior restraint, which is not legal under Tinker.
Principal loses.

10. Precedents set by Scoville
Administrators can’t forecast disruption without a reasonable expectation of that disruption will result from the student expression at issue, but that forecast must be based on actual facts and not unfounded fears.
Prior restraint is not an acceptable practice.

11. Gambino vs. Fairfax County SB 1978
Student editors of a school-sponsored newspaper in Virginia discovered through an informal survey that many students who were sexually active took no precautions to prevent pregnancy.
In response, wrote story providing information about forms of birth control and relative rates of effectiveness.
Principal claims that story would be in violation of a school policy prohibiting the teaching of sex education in school.
Both the federal district court and the Fourth Circuit Court of Appeals agreed that 1st Amendment rights had been violated.

12. Precedents set by Gambino
Courts said that publications which are “forums of student opinion,” either by practice or by policy, maintain control of content.
“The extent of state involvement in providing funding and facilities for [the newspaper] does not determine whether 1st Amendment Rights are applicable,” the court said. “Accordingly, the general power of the Board to regulate course content does not apply.”

13. Public Forum
A legal doctrine that was developed to evaluate the legality of government restrictions on expression on government-owned property such as a civic auditorium or an airport.

14. Public Forum Recognizes three types of government-owned property:
a) Traditional public forum: a place which by long tradition has been devoted to free expression, i.e. a park or street.
b) Limited or designated public forum: a place opened by the government for expressive activity but only for certain groups or for discussion of certain topics.
In either of these venues, content-based restrictions can not be placed on expression unless the government can show that its restrictions are narrowly drawn and serve a compelling interest.

15. Example: if a city were to allow plays, speeches and meetings at a civic auditorium, that auditorium would be designated a public forum, and the city would violate the constitution if it denied the auditorium’s use for the performance of a play only because city officials found the play offensive.
Public Forum

16. Public Forum
The final type is the “non-public” or “closed” forum, which is public property that has not by tradition or designation served as a location for expression, such as a military base or a jail. In the non-public forum, the government can limit expression as long as its restrictions are “reasonable” and not simply an effort to silence a particular viewpoint.

17. Zucker vs. Panitz
Key question: should censorship of a student newspaper be treated differently from censorship of black armband because the student newspaper is school-sponsored?
New Rochelle school officials argue that the student newspaper was a “beneficial educational device” developed as part of the curriculum and intended to primarily benefit those who compile, edit and publish it.
Believed they had the right to regulate the content of the publication created by the students.

18. Precedents set by Zucker
Student newspaper is a “forum for the dissemination of ideas.”
Court noted that “the school paper appears to have been open to free expressions of ideas in the news and editorial columns as well as in letters to the editor”.
Students “nondisruptive” expressions was protected by the 1st Amendment.

19.
Tinker set the standard for determining when school officials could censor student publications for 19 years.
“Where a free, vigorous student press does exist, there is a healthy ferment of ideas and opinions, with no indication of disruption or negative side effects on the education experience of the school” said a national study.
Nevertheless, when the Supreme Court was finally confronted with its first censorship case involving a school-sponsored publication, it chose to ignore settled law and strike out in a new direction.

20. Hazelwood vs. Kuhlmeier 1988
Students on the staff of the Spectrum newspaper at Hazelwood East near St. Louis, Mo., prepared a two-page centerspread of stories focusing on problems faced by teenagers. Stories covered pregnancy, divorce, and the plight of runaways.
The teacher of the Journalism II class (which produced the newspaper) approved the articles; however, two weeks before publication, he resigned to take a job outside the school. The yearbook adviser from another school in the district was brought in to advise the newspaper for the rest of the year.

21. Hazelwood vs. Kuhlmeier 1988
The censorship the prompted the lawsuit would probably never have occurred were it not for one unfortunate fact: before he left, the previous adviser had begun the practice of submitting page proofs for the newspaper to the principal. The new adviser continued that practice.
The principal objected to two of the stories on the center spread: the one on teenage pregnancy (Hazelwood East student described their experiences as pregnant teenagers) and the one on the impact of parental divorce on children (contained quotes from students whose lives had been touched by divorce).

22. Hazelwood vs. Kuhlmeier 1988
Principal’s concerns:
Pregnancy story
Story is “too sensitive”
Identifiability of the three girls in the pregnancy story, despite the fact that their names were not used
Objected to the discussion regarding teens and sexual activity
Parents of girls should have been notified about the story and given the opportunity to respond

23. Hazelwood vs. Kuhlmeier 1988
Principal’s concerns:
Divorce story
Objected to use of quotes from a student who mentioned that her dad is frequently away from home. Described how she felt about about her parents’ divorce.
He did not know that the student’s name had been deleted after he received the page proofs.

24. Hazelwood vs. Kuhlmeier 1988
1985, federal district court in Missouri
upheld the school’s censorship because the newspaper was produced as a part of the journalism class.
ruled that it was not a forum entitled to strong 1st Amendment protection.
A part of the school’s curriculum and therefore subject censorship as long as it the restrictions had a “substantial and reasonable basis.”
Principal’s concerns constituted this basis.

25. Hazelwood vs. Kuhlmeier 1988
1986, Eight Circuit Court of Appeals
reversed the lower court’s ruling
Although the newspaper was produced in the journalism class, it was more than a curricular exercise; recognized the paper as a forum for student expression.
This meant that school officials had to meet the “material and substantial disruption” or “invasion of the rights of others” requirement of the Tinker decision.
Court ruled that school had not met that standard.

26. Hazelwood vs. Kuhlmeier 1988
1988, Supreme Court
BACKGROUND:
This was the first time that the Supreme Court had taken the opportunity to define 1st Amendment protections for student journalists at either the high school or college levels.

27. Hazelwood vs. Kuhlmeier 1988
1988, Supreme Court
Decision began by reaffirming the Tinker standard that students don’t lose constitutional rights when they get to school, but the Court went on to say that the Tinker standard did not apply to this case.
School officials should have greater authority to control “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.”

28. Hazelwood vs. Kuhlmeier 1988
1988, Supreme Court
Court created a new standard for determining whether school official’s censorship is constitutional:
Censorship will be upheld when it is “reasonably related to legitimate pedagogical conerns.”
Censorship is deemed unconstitutional when it has “no valid educational purpose.”

29. Hazelwood vs. Kuhlmeier 1988
1988, Supreme Court
New standard does not automatically apply to any school-sponsored publication.
Does not apply to publications designated “by policy or by practice as an open forum,” i.e. students given control over content. In this case, Tinker standard applies.
Decision reflects an intent by the Court to give school officials significant leeway in determining what is educationally appropriate for publication in most school-sponsored student media.

30. Kansas Freedom of Expression 1992
1971 California enacts law protecting free speech rights of high school students.
“Student of the public schools shall have the right to exercise freedom of speech and of the press including... the right of expression in official publications, whether or not such publications or other means of expressions are supported financially by the school or by use of school facilities....”

31. Kansas Student Publications Act 1992
With California as an example, the drive began to create other Hazelwood free zones.
July 1988: Massachusetts made mandatory an existing law which had been optional for school boards. The law says that students rights’ to free expression shall not be abridged except where disruption or disorder within the school results.
1989: Iowa enacts student free press law
1990: Colorado enacts student free press law
1992: Kansas joins the group

32. Kansas Student Publications Act 1992
What the act says:
The liberty of the student press shall be protected.
The number, length, frequency, and frequency of the publication can be regulated. Material will not be suppressed solely because it involves political or controversial subject matter
Review based on proper grammar or journalistic standards is not viewed as a restraint of free expression.

33. Kansas Student Publications Act 1992
Expression that is libelous, slanderous or obscene or matter that commands,requests, induces, encourages, commends or promotes conduct that is defined by law as a crime or conduct that constitutes grounds for suspension or expulsion of students or which creates material or substantial disruption of the normal school process is not protected.
Subject to the limitations enumerated in this act, student editors of student publications are responsible for determining the news, opinion and advertising content of the publications.

34. Kansas Student Publications Act 1992
Advisers are responsible for teaching and encouraging free and responsible expression, high standards of English and journalism.
No adviser or employee shall be terminated from employment or relieved of duties for refusal to infringe upon the right to freedom of expression conferred by this act
No school district or school employee shall be held responsible for any publication by students. Students editors or their parents shall be held liable for content.

35. Scenario #1
The Jaguar the official student newspaper of Mill Valley H.S. in the DeSoto (Kansas) School District, has received a letter to the editor. The letter, from Matt Lauer who is a junior at East, is critical of the administration’s enforcement of the school dress code.
“The lack of enforcement of their own policy became clear the other day in my Latin class. I got up to sharpen my pencil and on my way back to my seat... well, I didn’t mean for it to happen, but her top was low cut and pretty darn tight. I didn’t mean to look, I know I should have looked away, but I just stared. She noticed and blushed; I noticed her noticing. It was so embarrassing. Maybe that’s why the administration never enforces the dress code... it gives them a chance to look.”

36. Scenario #1
Jerry Cheves, the school’s assistant principal, happened to be in the room observing classroom procedure when the letter to the editor was read out loud to the newspaper staff. He was outraged the the newspaper intends to run the letter and has asked for a meeting with the editor of the newspaper. He believes that a non-member of the staff is not protected by the rights to freedom of expression and, at the meeting, plans to demand the letter be removed from the newspaper.
Does the administration have the right to demand that the letter be left out of the newspaper?
Will you be forced to consider the Tinker or Hazelwood standard as you make your decision.?

37. Tinker or Hazelwood? No Yes No Yes Yes Begin Censorship no Begin
Tinker Standard
Can school officials show that censorship is based on reasonable forecast of disruption or invasion of rights of others? No
Can the publication be considered school-sponsored-- has the school lent its name and resources to the publication?
Yes
Can the publication be described as a part of the school curriculum? Created to impart skills? Supervised by faculty member? No
Yes
Has the publication been opened up as a “public forum”. Do students control content?
Yes
Censorship no
Begin

38. Scenario #1
Okay, so you have the right to run the letter to the editor, based on the Tinker Standard... should you run it?
Why or Why not?
What ethical considerations come in to play?

39. Scenario #2
The ads team has scored a major coup. Frank’s Bar and Grill in Kirkwood, Mo., is planning to run a 1/2 page ad in each issue of the The Insider for the all remaining issues this year. The ad announces a Friday afternoon Happy Hour and drink specials “for Kirkwood folks” beginning at 3:30 p.m. The ad will bring in nearly $5,000 over the course of the year. Eric Jackson, the faculty adviser for the students who sell the ads, casually mentioned the ad to his friend who is on the Kirkwood School Board. The Board member has contacted William Warkentine, the paper’s adviser, and wants the ad removed. She says it is in violation of district policy which forbids accepting advertising for products not legal for high school students.

40. Tinker or Hazelwood? Yes Yes Yes No Begin Censorship ok Begin
Can the publication be considered school-sponsored-- has the school lent its name and resources to the publication?
Yes
Can the publication be described as a part of the school curriculum? Created to impart skills? Supervised by faculty member?
Hazelwood Standard
Can school officials show that they have a valid educational purpose for censorship. Censorship is not intended to silence opinion that admin doesn’t approve of.
Yes
Yes
Has the publication been opened up as a “public forum”. Do students control content?
Is there a state law?
Censorship ok No
Begin

41. Scenario #3
The “Tattler,” an unofficial publication produced by two Shawnee Mission East students and distributed to all Shawnee Mission high schools, has taken a stand against the Sunflower League’s sportsmanship policy. The editorial in their September 19 issue complains about the policy’s dress code which states that students must wear shirts to games. “What if I want to wear a shirt that I paint on my chest?” the editorial asks. “The Sunflower League policy doesn’t say what the shirt has to be made out of. It doesn’t specify cotton or rayon or silk. I argue that my shirt was totally in keeping with the sportsmanship policy. It was black and silver and blue just like the cheerleaders’ uniforms (made out of polyester) and the principal’s t-shirt (made out of cotton). Mine just happened to be made out of latex.” How many of you would dare to wear latex this Friday?

42. Scenario #3
Shawnee Mission administrators met Tuesday and have decided to confiscate all copies of the Tattler within any Shawee Mission school. They are claiming that the editorial is poses a significant disruptive threat. If students paint their chests and appear at the game, the Sunflower League could sanction, not the students, but the team. This, the administrators claim, is not fair to the team. In addition, applying appropriate disciplinary measures to a significant number of spectators at the game would disrupt the event. Administrators at SM West were able to confiscate all copies of the Tattler before they were distributed. The other high schools report that although the newspaper has been distributed, they have confiscated a significant number of the papers.

43. Tinker or Hazelwood? Yes No Begin Censors hip ok Begin
Tinker Standard
Can school officials show that censorship is based on reasonable forecast of disruption or invasion of rights of others?
Can the publication be considered school-sponsored-- has the school lent its name and resources to the publication?
Yes No
Is there a state law?
Censors hip ok
Begin

44. Tomorrow:
LIBEL LAW

46. Tinker or Hazelwood? No Yes No Yes No No Yes No Yes Yes No Begin
Tinker Standard
Can school officials show that censorship is based on reasonable forecast of disruption or invasion of rights of others?
Can the publication be considered school-sponsored-- has the school lent its name and resources to the publication? No
Yes No
Yes
Can the publication be described as a part of the school curriculum? Created to impart skills? Supervised by faculty member?
Hazelwood Standard No
Can school officials show that they have a valid educational purpose for censorship. Censorship is not intended to silence opinion that admin doesn’t approve of. No
Yes No
Yes
Has the publication been opened up as a “public forum”. Do students control content?
Yes
Is there a state law?
Censorship ok
Censorship no No
Begin