Court of Appeals to rehear arguments over the right to refuse advertisements





MASSACHUSETTS — The U.S. Court of Appeals for the First Circuit has agreed to rehear arguments in the case of Yeo v. Lexington and threw out its earlier decision.

A three-member panel of the court ruled 2-1 on June 6 that the student yearbook and newspaper of a public high school do constitute government publications, therefore making it constitutionally impermissible for student editors at Lexington High School to refuse a paid advertisement promoting abstinence.

The ruling had raised new questions concerning the strength of state student free expression statutes and student control over the content of student publications

On June 27, the court granted a rehearing by the six judges of the court after the school, national and regional journalism education groups and the National School Board Association protested the decision. The case will be reargued during the September 1997 session.

The case first arose when Douglas Yeo submitted an advertisement promoting the views of his organization, the Lexington Parents Information Network (LEXNET), to the Lexington High School student newspaper and yearbook in response to a new school condom distribution policy in 1992. Student editors of both publications refused the advertisement, stating it was against their policy to run advertising of a political nature.

Yeo then filed suit, claiming his First Amendment free press rights and Fourteenth Amendment right to equal protection were being denied.

Although the district court found that no state action was established by Yeo because students made the content decisions, the First Circuit panel reversed.

“We were surprised by the result,” said Adam Foreman, lawyer for the school district. Foreman explained that although he thought the only issue pending was the question of state action, the First Circuit ended up going much further by creating a new interpretation of the standard for a public forum and on the question of state action.

“Based on our review of relevant precedent and the undisputed record evidence before us, we conclude that the Musket [student newspaper] and the Yearbook do engage in state action to the extent they bear the imprimatur of Lexington High School. Their refusals to print the LEXNET ads thus constituted state action,” wrote Judge Norman H. Stahl in the majority opinion.

The First Amendment only forbids censorship of free expression by the government, not by private individuals or entities; had the Lexington High School student publications been found to be non-state actors, Yeo’s claim would have been rejected.

Because the First Circuit panel determined that anything bearing a stamp of the school constituted state action, the ruling essentially skipped over a state law that reads explicitly, “No expression made by students in the exercise of such rights shall be deemed to be an expression of school policy ….”

But the logic of the First Circuit panel said otherwise.

If the original decision holds, “Everything [done by students would be] state action from now on,” Foreman said. “In Massachusetts, that statute [would be] a nullity at this point.”

Attorneys for the school district asked for a rehearing of the case by the full panel of First Circuit judges and were granted a second chance on June 27.

The Student Press Law Center filed a brief in support of petition for rehearing on behalf of every major national organization of journalism educators.

In the brief, the SPLC cites the Supreme Court’s 1988 decision Hazelwood School District v. Kuhlmeier to argue that “… a court should not be permitted to intervene when educators … have chosen not to control content, but instead to foster students’ decision-making skills by granting them discretion.”

The brief also argues that precedents have “… found that the student press has the same right to reject advertisements as the private press, so long as it is the students, not the school, that is making the decision.”

Critical of the First Circuit’s interpretation of “public forum,” the brief reads, “To rule as the panel majority did is to give advertisers more control over content of those fora than the students themselves.”

The SPLC and other journalism education organizations will be filing another brief before the case is reheard.


Fall 1997, reports