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Supreme Court Allows Circuit Split on Student Free Press Rights

Yesterday, the Supreme Court of the United States denied certoriari in the case of R.O. v. Ithaca City School District. Seth Zweifler of the Student Press Law Center has an excellent case summary over at the First Amendment Center.

In the case of R.O., a student newspaper at a high school in Ithaca, New York, which had previously been run with almost no supervision, was prevented from publishing a comic that included stick figures in various sexual positions, accompanying an article about sex education. In upholding a federal district court's decision in favor of the school administrators, the United States Court of Appeals for the Second Circuit reached two important conclusions.

First, the Second Circuit found that the student-run newspaper was a "limited public forum." This characterization is important, both because it determines the all-important standard of review for the school's act of censorship, and because it represents disparate applications of the Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court held that schools could censor non-public forum, curricular student publications when their actions are "reasonably related to legitimate pedagogical concerns."

While other federal circuits have directly stated that Hazelwood has "little application" to limited public fora and is only applicable to non-public fora, the Second Circuit took its own path and applied Hazelwood to the facts of this case.  Consequently, while other circuit courts have given greater protections to student press rights, the Second Circuit has permitted administrators to censor "so long as the censorship is ‘reasonably related to legitimate pedagogical concerns.'"  This is a very low standard, as it can justify nearly any censorship an administrator can think up.

Second, the Second Circuit characterized the stick figures as "unquestionably lewd," and thus legitimately subject to censorship. This raises the question: What exactly is lewd? The Second Circuit stated that lewd speech is "speech that is something less than obscene but related to that concept, that is to say, speech containing sexual innuendo." By piggybacking on the term "obscenity," which has a narrow legal definition, the court isn't doing itself any favors: both "obscene" and "lewd" are value-laden terms. And, as Ken Paulson of the First Amendment Center notes, "[t]his cartoon was probably one of the least explicit things in the lives of the 14- or 15-year-old readers... This decision suggests a total lack of understanding about what's going on among our nation's youth."

By refusing to review the Second Circuit's decision in R.O., the Supreme Court has allowed confusion to persist as to the extent that high school students enjoy free press rights. That alone should be of concern to all proponents of free expression, but the Supreme Court's failure to provide clarity becomes more worrying still when one considers the ways in which Hazelwood has been erroneously imported into the collegiate setting, most notably in the 2005 Seventh Circuit case of Hosty v. Carter. Given the troubling tendency of courts to incorrectly apply legal justifications for the censorship of high school speech to cases involving collegiate speech, FIRE is disappointed and concerned by both the Second Circuit's decision and by the Supreme Court's failure to act.

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