A double-edged ruling

Court says newspaper is a 'public forum' but fails to prohibit confiscation

OHIO ' In a significant legal victory for high school student media, a federal district court judge ruled in February that some student newspapers must be accorded greater legal protection than others.

Although Judge James S. Gwin denied the request of four student journalists at Wooster High School to keep the school district from conducting further prior review of the Wooster Blade, he recognized in his Feb. 14 ruling that the student newspaper had greater First Amendment protection than provided by the U.S. Supreme Court in the 1988 Hazelwood v. Kuhlmeier case. In ruling that the student newspaper was a 'limited public forum,' the judge said the school district must meet a higher legal standard before it would be permitted to censor material. He created a series of criteria to distinguish between 'public forum' and 'nonpublic forum' student media that could help limit the censorship of some high school publications.

The legal battle in Wooster began after Principal James Jackson, by direct order of Superintendent David Estrop, impounded the entire press run of a December issue of the biweekly student publication. Officials claimed an article chronicling school board punishments of students caught drinking alcohol included 'potentially defamatory' material.

In the article, the daughter of a school board member was described as saying she drank alcohol at an off-campus party and was one of six student-athletes who were disciplined for violating the high school athletic department's code of conduct. District officials say the girl never admitted to any wrongdoing and was never punished. The student journalists maintain the girl told a Blade reporter that she had been drinking at the party; however, they subsequently acknowledged they inaccurately reported she had been punished.

In his denial of the students' motion for preliminary injunction, U.S. District Court Judge James S. Gwin did not determine whether the students' First Amendment rights were violated or if the article was, in fact, defamatory. Those questions were left to be answered during a full trial scheduled for later this year.

Instead the court noted the higher burden required for preliminary rulings and found that the students had not sufficiently proven that school administrators erred in judgment when confiscating the paper.

'The court concludes the [school district] had at least a reasonable belief that the article was potentially defamatory,' Gwin wrote in his 22-page opinion. 'Accordingly, under its own policy and relevant case law, the district could prohibit the publication of the article because it potentially infringed the rights of another student.'

The court sided with administrators who argued district policy provides them the right to prohibit distribution of the Blade in order to protect other students' rights if they reasonably believe material is defamatory. The students claimed the policy gives final approval to their adviser, who approved the underage drinking story. But the court ruled that because adviser Kristi Hiner testified that she was unaware of the girl's denial to school officials, she could not know whether the article was potentially defamatory.

'Since the [school] board reasonably believed that the article was defamatory, it therefore reasonably believed that the students and the adviser were not following the policy practice of prohibiting the publication of defamatory material,' Gwin said.

The court also ruled the students did not prove irreparable harm, a requirement for receiving a preliminary injunction. He called the confiscation an 'isolated incident' and said there was no 'clear and convincing evidence' that district officials were likely to do it again. At the time of the hearing, the Blade had published at least two editions since the confiscation without a problem, including a redistribution of the December edition. After an earlier court ruling, the potentially defamatory statements in the underage drinking article were excluded in the redistribution.

Although the student journalists may have lost the first round on paper, the court's recognition of the Blade as limited public forum provided a silver lining for high school media.

The court ruled the Blade was a limited public forum because of the editorial freedom provided to students by the school district's publication's policies and practices. Although the Blade is produced in a class for credit, the court said the district did not make it solely part of the school's curriculum. Students were given broad editorial license to pick and choose what topics to cover, most of the paper's 3,100 circulation was distributed off-campus and non-students occasionally submitted content.

'Here, a student newspaper, by its very nature, exists for expressive activity,' Gwin said. 'Further, the board encourages the use of the newspaper as a forum to preserve 'the constitutional provision of free speech' and 'provide a vehicle for the expression of student thought' subject only to prohibitions on obscene, defamatory or disruptive expression,' he said, quoting from school policies.

In a limited or designated public forum, the government may impose content-based restrictions on speech only if they are necessary to serve a compelling state interest and are narrowly tailored to that end, Gwin wrote. Conversely, in a nonpublic forum, restrictions on speech need only be 'reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view,' he wrote.

Ken Myers is representing the students at the request of the Cleveland Professional Chapter of the Society of Professional Journalists. Myers said although he is disappointed with the judge's ruling, he is encouraged by the finding of limited public forum and believes it should offer hope to other student media.

'School newspapers since Hazelwood have probably assumed that they can't fight city hall, that school districts have almost unfettered license to censor student newspapers,' he said.

This ruling demonstrates that is not the case.

Draudt v. Wooster City School District Board of Education, 246 F.Supp.2d 820 (N.D. Ohio 2003)

reports, Spring 2003