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‘Maine Law Review’ Study Sheds Light on Student Journalism After ‘Hazelwood’

By February 26, 2014

An August 2013 article in the Maine Law Review (PDF) by Iowa Assistant Attorney General Tyler Buller provides an excellent argument for a free student press and a thorough study of how federal and state law have affected the content of America’s student newspapers over the past several decades. Buller explains how some states have deflected the blow of the Supreme Court’s much-debated decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) and why citizens in all states need to continue the fight for student speech rights—especially in the realm of student journalism. As such, a discussion of Buller’s article, titled “The State Response to Hazelwood v. Kuhlmeier,” makes for an apt addition to FIRE’s Free Press Week coverage.

In Hazelwood, the Supreme Court granted public high schools new authority to censor student speech. Considering a clear-cut case of prior restraint presented by an editorial dispute between public high school student journalists and their principal, the Court held that “[e]ducators 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.” Hazelwood, 484 U.S. at 261. In the eyes of free speech advocates, conditioning student’s speech rights on amorphous “pedagogical concerns” was a step in the wrong direction, particularly since Hazelwood’s holding chipped away at the more speech-protective standard announced in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 504 (1969). In Tinker—which celebrated its 45th anniversary this past Monday—the Court held that public K–12 schools could only regulate student expression when doing so is “necessary to avoid substantial interference with school discipline or the rights of others.” Hazelwood effectively provided public high schools a new means of silencing student speech in certain instances.

Hazelwood dealt with a high school curricular newspaper, and thus should not affect the broad freedom of expression that college students are entitled to. After all, the vast majority of college students are adults, and no matter their age, college students are engaged in a much different educational endeavor from that of high school students. Nevertheless, courts have inappropriately cited the case as justification for censorship on college campuses.

In Hosty v. Carter, 412 F.3d 731 (7th. Cir. 2005), for example, the U.S. Court of Appeals for the Seventh Circuit relied on Hazelwood in holding that Governors State University student journalists did not have a clearly established First Amendment right to be free from an administrator’s censorship of the university student newspaper. Troublingly, the court came to this conclusion despite the fact that the administrator was engaging in viewpoint discrimination—specifically, censoring criticism of her administration—and that the paper was funded not by the school directly but through student fees. FIRE spoke out against the decision when it came out, and it remains a dangerous precedent to this day.

Because of this, and because high school student journalists soon become college student journalists, the long-lasting effects of Hazelwood are of concern to FIRE and free speech advocates nationwide. The Student Press Law Center (SPLC) has provided resources for students and is working to raise awareness of student press censorship through its “Cure Hazelwood” campaign, which even includes a map of where college students’ speech is put at risk by the decision.

Fortunately, as readers can see from the map, some state legislatures are pushing back against the effects of Hazelwood. In 2007, for example, Illinois passed the College Campus Press Act, which declared public college and university newspapers to be public forums, essentially precluding the future application of Hazelwood or Hosty to public institutions of higher education in the state. (Unfortunately, Hosty still controls in fellow Seventh Circuit states Wisconsin and Indiana.) As for high school students, seven states have enacted statutes that bring student press protections back to what they were before Hazelwood, and two states have administrative rules in place that at least undo some of Hazelwood’s damage.

So why does all this matter? In his article, Buller explains three vital functions of student press—and while they are discussed in the context of high school newspapers, they are just as relevant in the context of higher education. Of course, they are also relevant whether a high school paper is independent or part of the school’s curriculum, so while Hazelwood drew a legal line on that point, there is a compelling moral and philosophical argument for broad free speech rights for students even under the facts of Hazelwood.

First, Buller notes, student journalists develop a range of skills that are useful academically and later in life: not just writing skills but also communication and management skills and a sense of personal integrity.

Second, student journalists cover areas that adult journalists often fail to reach or don’t have access to, publicizing local news and holding local officials accountable for their decisions. Buller cites a stunning list of examples in which students served as veritable Woodwards and Bernsteins, uncovering government corruption and exposing gang violence, for instance.

Third, student journalism is a partial cure to the phenomenon we at FIRE call “unlearning liberty”—that is, students becoming accustomed to or even beginning to support censorship. As I noted last summer here on The Torch, a survey by the Newseum Institute revealed that nearly half of young adults surveyed think that “the First Amendment goes too far in the rights that it guarantees.” But when students experience firsthand the way the First Amendment protects rights that they themselves are trying to exercise, Buller argues, they are more likely to support free expression even for unpopular viewpoints.

The sad state of affairs revealed by the Newseum Institute’s survey is mirrored in some additional shocking statistics Buller shares from surveys conducted post-Hazelwood:

Among the more telling survey results, 33 percent of principals and 20 percent of advisers believe “articles in which quoted sources criticize the school board should never appear in the student newspaper,” 63 percent of principals believe advisers should prevent publication of articles that “may embarrass the school’s administration,” and 40 percent of student editors report not covering important stories out of fear they would not be allowed to print them. [Citations omitted.]

As if that wasn’t depressing enough, a survey the SPLC conducted last November at the National High School Journalism Convention in Boston found that about a third of students and teachers said that school officials had “ordered [them] not to publish or air something to which they objected.” More results are on SPLC’s website.

Buller shares some good news, though: In the seven states with statutes that explicitly protect student speech despite Hazelwood’s failure to do so, student newspapers have more editorials total and a higher proportion of editorials that are critical of the school administration or cover controversial topics. This suggests that when student rights are clearly defined and protected by law, students feel more empowered to be vocal advocates and politically active citizens. Also reassuring is the fact that even in states still ruled by Hazelwood, student newspapers are far from devoid of critical editorials. The Student Press Law Center posted statistical highlights of Buller’s study and more information on these speech-protective statutes on its website earlier this month.

Even in states with “anti-Hazelwood” statutes, though, students have to be vigilant and might have to take their case to court in order to protect their rights. Buller relays the worrying offenses of one school district improperly applying an exception for speech that “encourage[s] unlawful acts”:

At various points, the school district … claimed a digitally created photo of an infant with a cigarette encouraged illegal activity, that the name “KeySux High School” (referring to a neighboring school district) violated the statute by “putting kids at odds with each other and their friends,” that a student’s statement that he “wanted to meet Jay Z because he is a gangster” encouraged illegal activity, that re-naming the student newspaper (normally The Tribe-une) the “Bribe-une” encouraged bribery, and that a student’s quote that he would “like to go to a Chippendale’s tryout [after graduation]” encouraged unlawful acts.

Sadly, Torch readers might not be all that surprised to see these shenanigans from school officials. FIRE has seen similar behavior from college administrators, of course. High school administrators are governed by less consistent case law, and—as Buller discusses in his article—high school students protected by statutes (rather than the U.S. Constitution) may have fewer legal responses available to them when their rights are violated. So it’s no wonder that high school officials do not always feel bound to uphold principles of free speech.

But in case administrators are looking for a more selfish reason to allow students broad freedom of press, Buller’s close look at state statutes offers one. Iowa, for example, relieves its school employees of liability for statements students make while exercising their free speech rights (and Kansas and Colorado have similar provisions):

Any expression made by students in the exercise of free speech, including student expression in official school publications, shall not be deemed to be an expression of school policy, and the public school district and school employees or officials shall not be liable in any civil or criminal action for any student expression made or published by students, unless the school employees or officials have interfered with or altered the content of the student speech or expression, and then only to the extent of the interference or alteration of the speech or expression.

FIRE, too, has pointed to this advantage of schools declining to make decisions about the content of student newspapers: Schools cannot be held liable for something not under their control, and several courts have held as much in the context of the university press.

Ultimately, there are many reasons to support a free student press, both in high school and in higher education. Buller’s article sheds light on some of the problems and mitigating factors specific to high school journalism, and the article is well worth reading in full for any citizen who is concerned with free speech and the health of our democracy more generally.

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