Underground Papers & Off-Campus Speech

By David L. Hudson Jr., First Amendment Scholar

Last updated: September 18, 2017

Many public school students have turned to producing their own “underground” newspapers rather than writing for their school-sponsored papers. Some students wish to write about more controversial topics not covered (or allowed to be covered) in the official school newspaper. Often, school administrators respond less than favorably to these publications.

“There is a general reluctance among administrators to permit the distribution of materials that might be deemed controversial,” said Michael Steinberg, legal director for the ACLU of Michigan.

Mark Goodman, former executive director of the Student Press Law Center, estimated that the SPLC received “hundreds” of calls a year from students about underground publication controversies. Unfortunately, Goodman said, many students don’t realize they have a legal right to author and distribute such publications. “Every time I present sessions at national press organization meetings and say that students have a legal right to distribute non-school-sponsored material at school, the students are shocked,” he said.

Whether they realize it or not, students have more freedom to tackle controversial subjects in underground, rather than school-sponsored, newspapers because the Supreme Court, in Tinker v. Des Moines Independent Community School Dist. (1969) and Hazelwood School District v. Kuhlmeier,(1988) has afforded more free-speech protection for student-initiated expression. School-sponsored student speech carries the “imprimatur” of the school and gives the school more authority to regulate the content.

Students generally may distribute their underground newspapers at school as long as they do not create a substantial disruption of school activities. School officials, however, can enforce reasonable regulations with respect to the time, place and manner of distribution.

School officials have even less authority to regulate off-campus speech — particularly if that expression is never distributed at the school. But that doesn’t mean school officials haven’t tried. In fact, one Texas principal allegedly went so far as to try to prohibit a student from writing letters to the editor of the local newspaper.

Off-campus or on-campus
A crucial first question in any student underground-press case is whether the publication is distributed at school. If the publication is not distributed at school, school officials have far less control, if any, over it. In Thomas v. Board of Education, Granville Central School District (a 1979 case in the 2nd U.S. Circuit Court of Appeals), school officials in upstate New York suspended several students for writing an underground newspaper called Hard Times.

The students sought to model their publication after National Lampoon, a national publication specializing in sexual satire. Hard Times contained numerous articles on sexual subjects, including an editorial on masturbation. The banner across the front of the publication read “uncensored, vulgar, immoral.”

School officials suspended the students for five days for publishing “morally offensive, indecent and obscene” material. The students challenged the school in court, arguing that school officials lacked the authority to punish them because the newspaper was distributed off-campus.

Even though an occasional article was typed on school equipment and copies of the paper were stored in a sympathetic teacher’s closet, the 2nd Circuit determined in the case that any contact with the school was “de minimis,” or minimal.

“We may not permit school administrators to seek approval of the community-at-large by punishing students for expression that took place off school property,” Judge Irving Kaufman wrote. “The risk is simply too great that school officials will punish protected speech and thereby inhibit future expression.”

Substantial-disruption standard
Many underground student newspapers are distributed on school grounds. The key question in disputes over such distribution is whether school officials can reasonably forecast that the publication will create a substantial disruption at school. School officials cannot adopt policies that prohibit student underground newspapers.

In Michigan, school officials suspended two students for publishing and attempting to distribute an underground paper titled The First Amendment.One of the articles called an assistant principal “a sadistic tyrant.” In June 2002 the American Civil Liberties Union filed a lawsuit, Woodcock v. South Lyon Community Schools, in the U.S. District Court for the Eastern District of Michigan, arguing that school officials violated the students’ First Amendment rights. The case settled in March 2003 when the school agreed to adopt new rules regarding the distribution of underground newspapers. The school also rescinded the students’ suspensions.

Michael Steinberg, who helped represent the students in their lawsuit, said that before the lawsuit, the school took the position that students had no right to distribute underground publications at school. That view changed after the settlement, in which school officials agreed to allow the students to hand out such publications during lunchtime when the school-sponsored paper was distributed.

In other cases, however, courts have determined that schools could punish students for the content of their underground newspapers. The case of Justin Boucher is a prime example. When he was a junior at a Wisconsin public high school, Boucher wrote and distributed a publication named The Last. It featured numerous anonymous articles on a variety of subjects. The publication’s stated purpose was to “ruffle a few feathers and jump-start some to action.”

Under the pseudonym of Sacco and Vanzetti (two Italian anarchists sentenced to death in the 1920s — many believe unfairly), Boucher wrote an article, “So You Want To Be A Hacker,” which told students “how to hack the school’s gay ass computers.”

School officials expelled Boucher for endangering school property. Boucher countered that his article was mere advocacy protected by the First Amendment. A district judge granted Boucher an injunction, but the school successfully appealed to the 7th Circuit in Boucher v. School Board of the School District of Greenfield.

The appeals court wrote in its 1998 opinion that the hacker article “purports to be a blueprint for the invasion of Greenfield’s (the high school’s) computer system along with encouragement to do just that.” As such, the court ruled that it was reasonable for school officials to believe the article would cause a substantial disruption of school activities.

Prior review?
Another issue likely to surface in underground student press disputes concerns whether school administrators can review the publication before it is made available. “The overwhelming majority of courts accept the fact that prior review is permissible” in cases involving student publications, said free-speech expert Robert Richards, founding co-director of the Pennsylvania Center for the First Amendment. “I think that is unfortunate but that is the state of the law in most jurisdictions.”

However: “There is still a split,” Goodman says. “The 9th and 7th Circuit have both ruled that prior review is impermissible.” However, other courts have given school officials the authority to review the publications.

According to Steinberg, prior review is not positive for First Amendment freedoms in school because “it has a chilling effect, especially if the publication is critical of the administration.”

Value of underground student press
Given the advent of the Internet (see “Cyberspeech” article in this section), some may question whether underground publications retain their value.

“Speech is alive and well on the Internet,” says Steinberg. “However, it can be difficult to reach some students through the Internet who may not have Net access or know about the online publication. There is still a role for underground newspapers to make students aware of views and happenings that are not otherwise available through regular school channels.”

Goodman agreed that underground publications can empower students and teach them important lessons.

“Students do learn more about journalism in school-sponsored publications where there is an educator there to advise them,” he said. “A school-sponsored publication can provide better lessons about what is and is not good journalism. But, that is not the only lesson for students to learn. An underground publication can teach students that free expression really does mean something, that they really do have a voice. Underground publications are a powerful way that students can have a say about what goes on in their school and community.”

School officials hoping to avoid a proliferation of underground publications may wish to grant more freedom to school-sponsored publications. “There are more underground newspapers at schools where the administration extensively censors the school-sponsored publication than at schools where the school-sponsored publication is free to cover issues that are important to students,” Goodman said.