Stop the presses: Censorship and the high school journalist

Journal of Law and Education, Oct 2000 by Felder, Scott Andrew

Abstract

Since its broadly protective decision in Tinker, the Supreme Court has gradually narrowed the scope of student free speech rights. Stop the Presses examines the development of First Amendment rights in public schools, in particular those of high school journalists. After developing the Supreme Court's jurisprudence from Barnette to Hazelwood and discussing how lower courts responded to these decisions, the article points out several criticisms of the Hazelwood standard. The problems presented by the Hazelwood standard are illustrated by a recent case of student censorship. The article closes by presenting several solutions to the Hazelwood problems.

Warning: Freedom of Speech May Not Enter The Constitution Applies to Us Too

These messages appeared on signs outside Parkway West High School in the spring of 1999. The school's principal had just censored an issue of Pathfinder, the high school paper, and students and parents were protesting her decision. Unfortunately, the first sign was only too true and the second only too false: After a broadly protective start, the Supreme Court has severely limited the First Amendment freedoms afforded high school students.

This paper examines the Court's treatment of student free speech rights in public high schools. After discussing the development of student First Amendment jurisprudence and the tests of Tinker and Hazelwood, it argues that the Hazelwood decision is flawed in several respects. The problems with the Hazelwood standard are then illustrated in a discussion of a recent case of student censorship. The paper closes by noting some potential solutions to the censorship problems resulting from the Hazelwood decision.

Towards Less Picturesque Speech: The Supreme Court's Narrowing Jurisprudence

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 1 Though these words, written almost sixty years ago by Justice Jackson, are most commonly cited as recognizing a right not to speak as a part of the First Amendment right of free speech, 2 it is equally important to note the context in which they were written: The Barnette decision invalidated a mandatory flag salute in a public school. This broad statement, highly protective of a student's free speech rights, was incorporated into the Court's analysis in Tinker v. Des Moines Independent Community School District, 3 pared down several years later, 4 and then almost completely decimated by the Court's decision in Hazelwood School District v. Kuhlmeier. 5

Auspicious Beginnings-Barnette and Tinker

The Court's original approach to student free speech rights was, in fact, quite favorable to students. Though the Barnette Court recognized that school boards performed "important, delicate, and highly discretionary functions," it was careful to note that these functions were not to be performed outside of the Bill of Rights in some sort of constitutional vacuum. 6 In fact, one such function, education of children for citizenship, actually demanded "scrupulous protection of Constitutional freedoms[,]" lest the children learn "to discount important principles of our government as mere platitudes."7 The Court accordingly struck the balance between school board authority and the exercise of First Amendment rights in favor of First Amendment rights, 8 and invalidated the mandatory flag salute that it felt compelled the students to affirm a belief that, for religious reasons, they did not hold. 9

Slightly more than a quarter-century later, the Tinker Court incorporated the highly protective language of Barnette quoted at the head of this section into a test highly protective of student free speech rights. Saying that "[i]t can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate[,]" 10 the Court held that a school can only prohibit particular student expression if that expression would " `materially and substantially interfere with the requirements of appropriate discipline in the operation of the school[.]'"11 In order for censorship to satisfy this test, school authorities were required to demonstrate that the speech caused an actual material and substantial interference with school activities, that there were facts present from which they could reasonably forecast that the speech would cause material and substantial interference, or that the speech in question infringed upon the rights of others; 12 a mere fear of disturbance would not be sufficient to sustain a restriction. 13 In a fashion similar to Barnette, the Court had once again balanced the authority of the States to control their local schools against the First Amendment freedoms of students, and once again it struck that balance strongly in favor of the students. 14 The strong protection granted by Tinker extended beyond the classroom to all speech "on the campus during the authorized hours." 15