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American Bar Association calls for protections for student media

By August 17, 2017

The American Bar Association House of Delegates unanimously approved a resolution on Tuesday in support of the New Voices campaign, which seeks to enact legal protections for students to gather and publish news and ideas free from censorship.

The resolution calls on legislative bodies to “rigorously protect the ability of student journalists at the secondary and postsecondary levels to make the independent editorial judgments necessary to meaningfully cover issues of social and political importance without fear of reprisal,” provided that the speech is otherwise lawful and nondisruptive.

The ABA is a voluntary membership organization of 400,000 attorneys that, among other things, publishes a code of ethics and accredits law schools. Although it does not itself make laws, its statements reflect the collective wisdom of a substantial portion of the legal profession. The Student Press Law Center’s New Voices campaign supports the passage of free press legislation on a state-by-state basis to protect freedom of the press for high school and college journalists.

“In the era of fake news, we need to speak up to protect students’ rights to free speech, free press, and free expression,” Harry S. Johnson, outgoing chair of the ABA’s Standing Committee on Public Education, said.

While the Supreme Court’s 1969 decision in Tinker v. Des Moines held that students cannot be censored unless their words create a substantial risk of a material disruption of the normal operation of school, the court’s 1988 Hazelwood v. Kuhlmeier decision limited Tinker’s protection in school-sponsored K12 student media. Under Hazelwood, a school can censor school-sponsored student speech that takes place outside of a forum for student expression for any “legitimate pedagogical concern.”

While Hazelwood does not apply to colleges on its face, some courts have incorrectly applied Hazelwood to speech in some college contexts, making the New Voices campaign important to rights in higher education. The ABA’s resolution uses language from the Tinker case, functionally calling on legislators to reinstate the status quo before Hazelwood. Thirteen states already have some form of student free press legislation applicable to high schools, colleges, or both.

FIRE supports the goals of the New Voices campaign and welcomes the ABA’s support in advancing this important cause.