By David L. Hudson Jr., First Amendment Scholar, and Freddie Wolf, First Amendment Center Fellow
Last updated: September 18, 2017
Student journalists do not possess the same level of First Amendment protections as adult journalists. Many public school students who work on their school newspapers or yearbooks find that they do not have the freedom to write on certain controversial subjects. In 1988, the U.S. Supreme Court ruled inHazelwood School District v. Kuhlmeier that public school officials can censor school-sponsored student expression as long as they have a valid educational reason for doing so.
This decision has given school officials broad authority to regulate school-sponsored publications. Generally, such publications are deemed to be non-public — as opposed to public — forums, which are defined as places that traditionally have been open to diverse viewpoints and First Amendment activity.
The controversy arose in 1983 at Hazelwood East High School in St. Louis County, Mo. A journalism class produced a newspaper called the Spectrum. An issue of the school paper included articles on teen pregnancy and the impact of divorce on teenagers. The school principal, Robert Reynolds, objected to these articles, finding that the pregnancy story, which used fake names for the pregnant students, raised privacy concerns and contained inappropriate subject matter for younger students. Concerning the divorce story, Reynolds said the parents of the students quoted in the story should have been given an opportunity to respond.
Reynolds ordered the stories removed, which resulted in two pages’ being cut from the newspaper. Several students, including layout editor Cathy Kuhlmeier, challenged Reynolds’ actions in federal court. After losing in the lower courts, Kuhlmeier and two other female students took the case all the way to the U.S. Supreme Court.
The students argued that their rights should be governed by the prevailing standard for student First Amendment rights articulated by the Court in the 1969 case Tinker v. Des Moines Independent Community School District. In that decision, the Court ruled that public school officials could not constitutionally punish students for their peaceful, symbolic expression of wearing black armbands to school to protest U.S. involvement in Vietnam. The Court set up the Tinker standard — that school officials cannot censor student expression unless they can reasonably forecast that the expression will create a substantial disruption or material interference with school activities or invade the rights of others.
Kuhlmeier contended that the articles in question created no disruption within the meaning of Tinker. However, the Supreme Court’s decision in Hazelwoodset up a new standard for school-sponsored speech. The majority of the justices applied their notion of school-sponsored speech beyond student newspapers to include school yearbooks, campus mascots, school plays and — in the words of the Court — “other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”
In describing the new standard, Justice Byron White wrote:
“The standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold 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.”
With this language Justice White established the Hazelwood standard for school-sponsored expression. Ironically, the year before, the Court had established a standard for prisoner constitutional rights in Turner v. Safley(1987) — ruling that prison officials could impinge on inmates’ constitutional rights if their reasons for doing so were reasonably related to legitimate penological concerns. In Hazelwood, the Court appeared to substitute “pedagogical” for “penological.” In effect, the ruling means public school students have a similar level of First Amendment rights as prison inmates — a frightening thought for student-rights advocates.
“That really is what the Hazelwood standard is based upon. In some places prisoners have greater rights to freely express themselves than high school students do,” Mark Goodman, director of the Student Press Law Center, told the First Amendment Center Online. “Anyone who thinks our society benefits by treating these two groups the same has a very cynical view of our future and I just can’t believe those are the values we as a society want to promote.”
“Schoolhouses are sometimes being turned into jailhouses,” said Michael Steinberg, legal director for the ACLU of Michigan. “The Constitution provides greater protection for students than inmates and we have to stop those districts [that] sometimes treat their students as prisoners.” Although Steinberg saidHazelwood did not convert schools into prisons, he said the case no doubt had led to reduced level of protection of student First Amendment rights.
The question becomes what is a reasonable pedagogical, or educational, concern within the meaning of Hazelwood. In its decision, the Court gave a few examples, writing: “A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order, or to associate the school with any position other than neutrality on matters of political controversy.”
The last example — allowing the school to censor student articles that would associate it with controversial political issues and positions — draws the ire of student-press advocates.
“I think that one certainly went too far,” said H.L. Hall, a long-time high school educator and immediate past president of the Journalism Educators Association. “Administrators are interpreting that particular statement to mean that newspapers should not cover anything of a controversial nature and, therefore, a lot of administrators will censor stories that they see as bad public relations for the district. For example, an administrator could use this reasoning to prohibit students from writing a story about a teachers’ strike because it is controversial and bad public relations for the district.”
Goodman said the Court in Hazelwood failed to appreciate that people can distinguish between students’ views and views that should be attributed to the schools: “Schools should only be able to utilize that language of political neutrality in Hazelwood if the school can show that people reasonably believe that this was the school’s expression.” Goodman added that school officials were more concerned with students’ disagreeing with views put forth by school officials.
Many types of student-written articles could be at the mercy of school censors.
“Anything involving sex, surveys about sexual habits, are often nixed by a lot of administrators,” Hall said. “They target anything controversial. Even in the states that have passed anti-Hazelwood laws, censorship problems are still strong and prior review is still going on in those states even though the laws say there should be no prior review.”
Particularly censorship-prone, Goodman said, is “anything that is perceived as critical of school policies or school officials.” Sex and drug use are topics often deemed “controversial or sensitive or somehow inappropriate for discussion,” he said. “The concern is less over a discussion of the issue than the perception that the problem is relevant in this particular school. For example, on the subject of drug use, schools may be willing to allow students to write stories about drug use/abuse, but they don’t want them to localize them.”
A key issue in student-press cases is whether the school-sponsored student publication is a public forum, a publication that “by policy or practice” has been opened up as a forum for student expression where students make the key decisions as to content. In other words, if school officials make the final decisions with respect to content and conduct prior review of the newspaper, the publication is not a public forum. Students often have little control over whether their paper is a public forum because in many instances administrators have already established a tradition of regulation over the student publications. Students may find some success in talking with their newspaper adviser and petitioning the school administration for policy changes.
Student-press advocates insist that students learn more about journalism when they really run the newspaper and can make content decisions free from school censorship. Goodman lists three reasons:
“First, it instills in people the importance of free expression and press freedom in a democratic society. There is no way a school can teach American values while modeling the values of a dictatorship. Secondly, we are preparing future journalists. There is widely reported research that many working journalists got their start in high school. We want people who understand and appreciate the role of the news media and don’t accept that the government dictates what is or is not news. Also, student publications provide invaluable insight into the thoughts and concerns of young people. There are very few ways for adults to know what teenagers are thinking today. A student publication is a great opportunity for that. We all lose as a community when we cut off that channel of communication.”
Several states — Arkansas, California, Colorado, Iowa, Kansas, Maryland, Massachusetts, North Dakota and Oregon — responded to Hazelwood by enacting laws that provided greater free-speech protection to student journalists. These laws are often called anti-Hazelwood laws. California had a similar law in place before the Hazelwood decision. Pennsylvania and Washington have administrative codes that purport to provide protection to student journalists. Whether they do provide any is questionable.
These statutes vary considerably from state to state. Some apply only to student journalists, while others apply to student expression in general. For example, the Arkansas law — called the Arkansas Student Publications Act — applies to student publications. It provides that school officials shall recognize student journalists’ free-expression rights, but reserve the right to prohibit certain types of publications, including:
“(1) publications that are obscene as to minors, as defined by state law; (2) publications that are libelous or slanderous, as defined by state law; (3) publications that constitute an unwarranted invasion of privacy, as defined by state law; or (4) publications that so incite students as to create a clear and present danger of the commission of unlawful acts on school premises or the violations of lawful school regulations or the material and substantial disruption of the orderly operation of the school.”
On the other hand, the Massachusetts law provides a more expansive protection to students’ freedom of expression in the sense that it is not confined to student journalists. It provides: “The rights of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school.”
Between 1995, when Arkansas passed an anti-Hazelwood law, and 2007, several states considered but failed to pass such legislation. Those states included Alabama, Connecticut, Illinois, Missouri and Nebraska. The dry spell for student-press advocates was broken in 2007 when the Oregon Legislature passed the Oregon Student Free Expression Law. Signed by the governor in July 2007, the measure provides broad protections to student journalists. It provides that “student journalists have the right to exercise freedom of speech and of the press in school-sponsored media, whether or not the media are supported financially by the school or by use of school facilities.”
Why more states haven’t responded to Hazelwood with a statute is an interesting question. “It is really hard work,” Goodman says, to push for such legislation. “Many high school teachers and students who are strongest advocates just got burned out (trying promote such laws).” The other factor, according to Goodman, is the attitude of legislators, which has “become problematic in the course of the last ten years, certainly in light of recent incidents of school violence,” he said. “There is much more willingness to give school officials much more authority to regulate student expression.”
Another problem, according to student-press advocates, is the prevalence of prior review — the process by which school officials review student newspapers before their distribution. In its book The Law of the Student Press, the Student Press Law Center writes: “There is no way a student publication can remain an independent source of news or serve as a watchdog for the school community when a school administrator is shaping its content before it goes to press.”
Hall calls prior review a lose-lose situation for student journalists because it:
He adds that the problem of prior view is pervasive. “Even in the states that have passed anti-Hazelwood laws, censorship problems are still strong and prior review is still going on in those states even though the laws say there should be no prior review.”
Court cases involving anti-Hazelwood laws have arisen in several states. In 2009, a federal appeals court ruled that Colorado’s law applies only to student-written publications. This issue emerged in the case of a valedictorian who was required to submit her graduation speech for prior review by administrators and then forced to apologize when she included religious references in her actual speech that had not been approved ahead of time. In its ruling in the case, Corder v. Lewis Palmer School District, the 10th U.S. Circuit Court of Appeals determined that Colorado’s anti-Hazelwood law did not apply to Corder’s speech, as the law protected only publications, such as student newspapers.
Meanwhile, in November 2011, an Iowa appeals court ruled that a high school principal and school district violated that state’s anti-Hazelwood law when they reprimanded a school newspaper adviser for allowing students to publish articles the principal considered inappropriate. A state trial court judge sided with the school defendants. However, the Iowa Court of Appeals reversed inLange v. Dierks, ruling that none of the allegedly “inappropriate” articles encouraged students to commit acts of misconduct.
“Publishing articles on controversial topics or expressing a viewpoint counter to that of the school administration are not prohibited by the Student Free Expression Law,” the state appeals court wrote.
In his Hazelwood dissent, Justice William Brennan warned that “the case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the ‘mere’ protection of students from sensitive topics.” He added: “Even in its capacity as educator the State may not assume an Orwellian ‘guardianship of the public mind.’ ”
A looming legal question is whether the Hazelwood standard — reasonably related to legitimate educational concerns — swallows the general First Amendment prohibition against viewpoint discrimination. In other words, can school officials restrict speech based on viewpoint under Hazelwood? The lower courts are divided on this issue. As a recent federal district court opinion,Chiras v. Miller (2004), acknowledges: “The circuits are split on whether Hazelwood affords discretion to educators to engage in viewpoint-based discrimination, as long as the discrimination is reasonably related to legitimate pedagogical concerns” or whether Hazelwood requires viewpoint neutrality.
In Fleming v. Jefferson County Sch. Dist., the 10th U.S. Circuit Court of Appeals determined that the Hazelwood standard does not require viewpoint neutrality: “The Court’s specific reasons supporting greater control over school-sponsored speech, such as determining the appropriateness of the message, the sensitivity of the use, and with which messages a school chooses to associate itself, often will turn on viewpoint-based judgments.”
On the other hand, the 9th Circuit, 11th Circuit and 2nd Circuit have determined that Hazelwood does not sanction viewpoint-based discrimination. For example, in the 1989 decision Searcey v. Harris, the 11th Circuit wrote: “Although the Supreme Court did not address viewpoint neutrality inHazelwood, there is no indication that the Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker’s views.”
More recently, a three-judge panel of the 2nd Circuit in October 2005 concluded in Peck v. Baldwinsville Central School District “that a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests.”
Eventually, the Supreme Court may well have to clear up the confusion in the lower courts regarding the Hazelwood standard and the fundamental First Amendment principle counseling against viewpoint discrimination. In the meantime, student journalists and other students engaged in school-sponsored expression must deal with the reality of reduced First Amendment protection in the school.