Advertising is a vital part of most student media. According to a 1996 survey, more than one-half of college student newspapers obtained 50 percent or more of their funding from advertising revenue. 1 For high schools, a survey showed that almost nine out of 10 student newspapers depend on ad revenue to at least some degree.2 Given these numbers it is no wonder that legal questions about advertising are on the rise.
The U.S. Supreme Court has defined commercial speech as expression that "does no more than propose a commercial transaction,"; 3 and which is "related solely to the economic interests of the speaker and its audience." 4 Thus, commercial speech does not include all advertising. This is important because even though, as discussed in detail below, commercial speech is protected by the First Amendment, that protection is less than that afforded noncommercial speech, such as a traditional news story or opinion column. For example, the civil rights advertisement that was the subject of the libel claim in the landmark New York Times Co. v. Sullivan 5 case is an example of a noncommercial editorial ad that would not be subject to the lesser commercial speech standard. Other examples of noncommercial advertisements of interest to many student publications are advertisements whose primary message is the promotion of responsible drinking or safe sex, those that offer medical, legal or similar information or those that advance political beliefs. If an advertisements primary purpose is to "sell" an idea or belief t as opposed to a product or service t it will be accorded the higher standard of First Amendment protection. 6
Note to Private School Students
The First Amendment only limits censorship by public government officials. It does not shield private school student media from censorship or regulation of advertising by their private high school or college administrators, although other forms of legal protection may be available. For more information about the rights of private school student media, see the SPLC's Private Schools and Press Freedom Guide.7
As with most types of expression, there are significant restrictions on the governments power to prohibit or regulate commercial speech. 8 In Central Hudson Gas & Electric Corp. v. Public Service Commission,9 the Supreme Court developed the following four-part test for determining when a state or someone acting on the governments behalf could constitutionally restrict commercial advertising:
Is the speech protected by the First Amendment?
To be protected, commercial speech must concern lawful activity and must not be misleading. Speech that is unlawful or misleading is not protected by the First Amendment and the government is free to regulate or prohibit it. Obvious examples of advertisements that school officials could prohibit include ads for illegal drugs or weapons, prostitutes or clear and serious invitations to participate in illegal activity (for example, an offer to take an exam or write a term paper for another student). In addition, courts have upheld various state and federal laws that prevent newspapers from publishing discriminatory employment or housing advertisements.
Once it is determined that the commercial speech at issue is entitled to First Amendment protection, the government can only regulate that speech where it is able to answer "yes" to each of the following questions.
Is the governmental interest in regulating the speech substantial?
Courts have consistently found that school administrators have a substantial interest in insuring the orderly operation of schools and in preventing student expression that creates a material and substantial disruption of school activities. On the other hand, a school officials interest in regulating advertising for goods or services that compete with those offered by the school would be much less substantial.
Does the regulation directly advance that governmental interest?
Taken together, parts three and four are basically a test for the "fit" between why the government says it needs to regulate and its "end" or goal and the means government officials have chosen to achieve that end. For example, suppose that a school boards goal is to reduce gang activity in its high schools. While the board clearly has a substantial interest in reducing such behavior, would a ban on all advertisements for shoe stores that sell the type of shoes worn by gang members actually help to achieve their goal? Probably not.
Does the regulation reach no farther than necessary to advance that governmental interest?
If, for example, public school officials want to censor an advertisement in a student newspaper simply because they are concerned it will appear that the school itself condones or approves of the ads message, courts might ask whether there is a less drastic alternative available. Would publishing a prominent disclaimer in the student newspaper stating that the views it expresses are those of students and not school officials solve the problem without having to engage in censorship? In the example of the shoe store ad ban mentioned above, it is clear that the regulation goes far beyond the schools goal of discouraging the wearing of gang attire and could be better achieved by less drastic measures.
There are instances where public high school administrators can restrict advertisements in school-sponsored publications even if such ads are protected by the First Amendment. Conversely, for college and underground publications (including high school underground publications), the administrations power to control advertisements is significantly limited.
Because of the U.S. Supreme Courts 1988 decision in Hazelwood School District v. Kuhlmeier,10 public high school students working on school-sponsored, non-public forum publications may face an additional censorship hurdle. For even where an advertisement is protected by the First Amendment under the traditional commercial speech test, high school officials may still try to argue that they have a valid educational reason for censoring it.
For example, in one of the first post- Hazelwood cases, a U.S. Court of Appeals upheld a school districts right to ban pregnancy-related advertisements submitted to various high school publications.11 The case arose after school district officials in Nevada rejected an advertisement submitted by Planned Parenthood, a family planning organization. Planned Parenthood sued. No students were involved in the case and the issue of student First Amendment rights was not raised. Still, the case may provide some useful guidance. Both the advertiser and the school district agreed that the ad was protected speech under the First Amendment.12 Nevertheless, citing Hazelwood, the court ruled that the school districts justification for refusing to publish the ad was reasonable to: (1) avoid the perception of school sponsorship and endorsement of an ad that some might find controversial, (2) avoid being forced to open up school publications to organizations having competing views and (3) avoid any conflict with a state-prescribed sex education curriculum. 13
Despite the fact that this decision upheld school censorship of advertising, it does not stand for the principle that school officials have the ability to censor any advertisement that they happen to disagree with or dislike. The Hazelwood decision -- where it applies (not all high school student publications are covered by it) -- still requires that school administrators provide a reasonable educational justification for their censorship. 14 It also requires that the censorship be viewpoint-neutral.15 For example, if a principal allows an editorial advertisement urging the passage of a school levy, her subsequent censorship of an advertisement opposing the levy would likely be unconstitutional; she would not be permitted to censor the ad simply because she disagreed with the viewpoint it presented.
With only a handful of cases dealing specifically with advertising in the public college or independent student press, those decisions suggest that the First Amendment still provides important protection for commercial speech.
A Michigan college case is a good illustration. A federal district court judge ruled that a state college official acted illegally when he told the schools student newspaper editor she could no longer publish an advertisement for a Canadian nude dancing club. 16 The ad noted that the Canadian drinking age was 19. (Michigan's drinking age was 21, and law prohibited totally nude dancing.) The school claimed that it banned the ad because it was degrading to women, promoted underage drinking and conflicted with the schools educational mission and values.
The court applied the Central Hudson test. First, it found that the ad concerned lawful activity (as long as it took place in Canada, as the ad suggested) and was not misleading. Second, the court did not dispute the schools claim that it had a substantial interest in protecting women from degradation and students from underage drinking. Turning to the final two prongs of Central Hudson, however, the court ruled that the school's regulation of advertising was "not narrowly tailored" to serve those interests. The court found that the schools attempt to regulate advertising was "anything but carefully designed."17 With no advertising guidelines in place, school officials subjected the student newspaper to "virtual unbridled regulatory authority," and made no effort to distinguish harmful speech from harmless speech.18 This, the court concluded, violated the newspaper editor's free press rights.
In addition to banning specific advertisements, First Amendment problems can also arise when public school officials seek to ban non-school sponsored, or underground, publications from school grounds because they contain ads or because they are sold rather than given away free. Officials claim that such publications are nothing more than "commercial activity," and deserve no special treatment. (Generally, schools do have the power to prohibit or strictly limit purely commercial activity such as the on-campus sale of candy, pots and pans or concert tickets). 19 While some regulation of the time, place and manner of distribution has been allowed,20 courts have typically rejected absolute bans, permitting both high school and college students to either sell or freely distribute independently produced publications containing advertisements on school grounds.21 And while it would seem to be obvious, at least one court has explicitly ruled that administrators cannot prohibit the publishers of a non-school-sponsored publication from canvassing the community to sell ads.22 In all of these cases, the courts reasoned that unlike other types of goods, literature contains opinions, facts and ideas, and thus enjoys First Amendment protection. Such reasoning was evident in a Texas decision.
In that case, a federal court of appeals ruled that Southwest Texas State University officials could not prohibit the Hays County Guardian, a small, off-campus publication that concentrated on environmental and social justice issues, from distributing on school grounds just because the newspaper contained advertising.23 The school claimed that banning the Guardian would prevent litter, congestion and invasions of privacy resulting from individuals being offered the newspaper as they walked across campus. The school also claimed that its regulations were necessary to maintain the "academic environment," because "unlimited distribution of newspapers, coupons, flyers and the like throughout campus would create a circus atmosphere, destroying the unique quality of the University campus." 24
The Court flatly rejected the school's arguments, calling them "speculative." 25 It also found that the burden imposed on speech by the ban far outweighed the schools asserted interests. Importantly, the court refused to accept the schools argument that the Guardians acceptance of advertising automatically subjected the newspaper to less First Amendment protection than commercial-free publications.
As the U.S. Supreme Court has said, "Freedom of speech [and] freedom of the press are available to all, not merely to those who can pay their own way." 26
Mention the First Amendment and most people think of the freedom to say, print or do something (such as establish a religion or petition the government). That is probably why it comes as a surprise to some that the free speech guarantees of the First Amendment are actually a two-way street. They not only protect the right to express oneself, they also protect the right to refuse to express oneself, to simply remain silent. 27
For the commercial, private school and "underground" media, the law is clear: the right to reject advertising is virtually absolute. 28 The First Amendment does not require the commercial print media to carry any advertisement they do not wish to publish. This is true of both editorial advertising and commercial advertising. While potential advertisers do have the First Amendment right to engage in commercial speech, neither the advertiser or the government has the right to require the community newspaper to carry their ads.
For the student press at a public school, the answer can sometimes be a bit more complicated. Because the First Amendment only prohibits government-sanctioned censorship, the right of students to reject advertising in the publications they produce is protected. As long as students -- and not public school officials (including a faculty adviser) -- make the advertising decisions for a student publication, courts have said that the student media have the same right to reject advertising as their commercial counterparts because there is no "state action." 29 A federal appeals court case involving a Massachusetts high school provides a good example. In Yeo v. Town of Lexington, Douglas Yeo sued the Lexington School District after the student editors of both the high school newspaper and yearbook rejected his ad encouraging sexual abstinence. The appellant court ruled that since the student editors made all the advertising decisions, they were not considered state actors and their denial of Yeo's advertisement did not constitute a state action. The court held, "It is not enough to create a state action that the decisions took place in a public school setting, that there was some governmental funding of the publication, that teachers were acting as advisers, and that the state actors made an educational judgment to respect the autonomy of the students editorial judgment."30
Case law teaches that an advertiser must show more than the university providing financial support or operating space to a student publication to create a state action. 31 It is only where advertisers have clearly shown that school officials had a role in rejecting their ad that they have prevailed.32 Given the constitutional or statutory barriers that explicitly prohibit school officials from interfering with the content of most college student media and some high school student media, such an argument will be difficult for most advertisers to make.33
Even though many student publications have the right to reject any ad they choose, this right probably only exists without penalty until a contract is formed. Once a publication agrees to run an ad, it must do so or risk paying contractual damages. 34 Absent an agreement to the contrary, damages are generally limited to the return of any payment record from the advertiser. Provisions limiting the media's liability are frequently included in advertising contracts and rate cards.
Student journalists are encouraged to establish general advertising guidelines to determine what types of advertisements will not be accepted. Such guidelines will show consistency on the part of the student publication to refuse certain advertisement in the event a legal conflict arises due to an ad being rejected.
One can hope that the most frequent question a student publication must address is not "Will school officials allow me to run this ad?" but "Should I accept the ad in the first place?" The legal answer to this question is often fairly easy. As long as the ad concerns lawful activity, is not false or misleading and is otherwise protected by the First Amendment (the material is not libelous, obscene, protected by copyright, etc.) it can be accepted. The next and sometimes more difficult t question is should the ad be accepted. Are there editorial, ethical or other non-legal reasons for rejecting an advertisement?
To answer this question, many student publications have found it useful to adopt advertising guidelines. Formal advertising guidelines can allow a publication staff time to consider the sometimes complex editorial or ethical issues prior to actually being handed a potentially volatile ad and having to make a hasty decision. Written guidelines also help insure consistency in the ad acceptance policy. Potential advertisers are more likely to understand a publications decision to refuse their ad -- or be more willing to accept specific content changes -- if the publication can show that it is basing its decision on a consitently enforced policy, not just on whim.
Guidelines can range from a single sentence declaring that the publication prohibits only unlawful advertising to a multi-page document that spells out the publications policy on hundreds of advertising categories "The Student Times will accept responsible drinking ads; it will not accept adoption ads; personal ads will be run only in the classified section and will be limited to 50 words," etc.). Guidelines are voluntary and exist primarily for the benefit of a publications staff, therefore most guidelines should include a statement notifying readers that the publication retains the right to refuse any ad for any reason. Like editorial policies, advertising policies reflect the philosophy of a publication; there is no single "best" policy. All student media, however, do themselves a favor by addressing the question of advertising acceptance before a particularly difficult question catches them off-guard.
Advertising, or commercial speech, is a vital part of most student media operations in America. The First Amendment provides strong protection for most -- but not all -- forms of advertising from censorship by public government officials. At the public college level, school officials will have a difficult time justifying any form of censorship of an otherwise lawful (i.e., not libelous, obscene, seriously disruptive, etc.) advertisement. The distribution of underground or independent student publications containing lawful advertising on public school grounds is likewise entitled to significant constitutional protection. At a public high school, the law can be more complicated, but the authority of public high school officials to regulate or ban advertising is never unlimited. There are constitutional boundaries -- sometimes substantial -- to their authority to control commercial speech and those boundaries must be observed. (Such First Amendment-based limits do not exist in the private school setting, although other avenues of legal protection from censorship may be available to student media.) Also, most courts have recognized the right of student media to reject advertising submitted by third parties provided that only students -- not school officials -- decide whether to accept or reject the ad.
Because the law does protect most forms of commercial speech, the toughest decision faced by student media is often not whether an ad can be run -- but whether it should be run. Towards that end, student media almost always do themselves a favor by carefully considering and adopting advertising guidelines that help guide a publication staff through the sometimes complex editorial or ethical issues that can surface with the submission of a controversial ad.