Important First Amendment cases influencing student media programs today changed individual schools' policies, national free speech law





The First Amendment grants Americans the right to freedom of speech and freedom of press, but the exact boundaries of those rights are determined by the courts. Landmark court cases like Hazelwood School District v. Kuhlmeier and Hosty v. Carter, where the court sided with the school district, have prompted states to enact legislation that counteracts the courts' decisions to uphold censorship of student speech. Other cases like Kincaid v. Gibson and Dean v. Utica Community Schools reaffirm the First Amendment and students' right to freedom of the press. Each of these landmark cases is unique in the impact it had on journalism programs and student media, then and now. And behind each entry in the lawbooks is a real school with real students who took a stand to defend their right to publish.

Hazelwood School District v. Kuhlmeier

In 1983, high school journalism students at Hazelwood East High School in St. Louis, Mo., filed a lawsuit against the Hazelwood School District, claiming their First Amendment rights were violated after their principal removed two articles from an issue of the school newspaper. The principal argued that two pages in the Spectrum, which included an article relating to teen pregnancy and another concerning the impact of divorce on students at the school, had inappropriate content and failed to effectively disguise the identity of confidential sources.

Hazelwood School District v. Kuhlmeier, which was decided by the Supreme Court in 1988, ruled that administrators could censor school-sponsored student newspapers that were not "public forums" for student expression, if they could show they had a legitimate educational reason for doing so.

The court decided that the student newspaper is not "characterized as a forum for public expression" and that school officials can exercise editorial control of content that is "reasonably related to legitimate pedagogical concerns."

Mark Goodman, who was executive director of the Student Press Law Center from 1985 to 2007, said the Hazelwood decision was "demoralizing."

"The most immediate reaction was very much a pullback by high school media in many places and an unwillingness based on fear to challenge acts of censorship that they might have been more inclined to challenge before that," Goodman said.

Several years after the Supreme Court decision, the Hazelwood School District adopted a policy that gives administrators the authority to exercise prior review ' something that was not in the District's written policies at the time of the legal challenge.

"School authorities may edit or delete material which is inconsistent with the district's legitimate educational concerns," the current policy states.

Today, the Spectrum's Managing Editor Jasmine Osby said the school principal is "lenient" in terms of the prior review policy.

She said the principal asked the editors to remove the names of two teenage parents in an article about teenage mothers last fall ' an article reminiscent of the 25-year-old court controversy ' but otherwise staff writers cover controversial issues and publish editorials criticizing the school and school policies without any interference from administrators.

"There isn't any big, 'well we're the Hazelwood from the Hazelwood court case so we're going to strictly enforce this,'" Osby said. "It is censored because it goes through prior review, but at the same time, it's not strict."

Since the Hazelwood decision, seven states ' Arkansas, California, Colorado, Iowa, Kansas, Massachusetts, and Oregon ' have enacted laws overturning the Hazelwood standard, which restore full First Amendment protection for high school media.

Goodman, who is currently a professor of journalism at Kent State University in Kent, Ohio, said Hazelwood forced First Amendment advocates and student journalists to fight censorship "in the arena of public opinion."

"The law was no longer going to be the most effective way to contest censorship," Goodman said. "It's sad that it took a bad Supreme Court decision to force that lesson, but that was, I believe, really valuable, and it gives us tools and tactics for things that are still going on today that have served student media well."

Hosty v. Carter

In 2001, three student journalists ' Margaret Hosty, Jeni Porche and Steven Barba ' sued Governors State University in University Park, Ill., after school administrators stopped the newspaper, the Innovator, from printing.

Dean Patricia Carter demanded review of the Innovator's content before consenting to pay the newspaper's printing bill, which contradicted a university policy stating that the student newspaper staff would "determine content and format of their respective publications without censorship or advance approval."

Initially, a district court ruled in favor of the student journalists, but the decision was overturned on appeal in the 7th U.S. Circuit Court of Appeals.

Using the Hazelwood standard, the court determined the status of the newspaper as a public forum. It ruled that the Student Communications Media Board, which acted as the publisher of the Innovator and was comprised of seven members chosen by the Student Senate, established the newspaper as a

"designated public forum, where the editors were empowered to make their own decisions, wise or foolish, without fear that the administration would stop the presses."

However, the court also established that Carter was not responsible for damages, because she could not have known whether the limitations of Hazelwood did or did not apply to college campuses.

The Innovator ceased publication in late 2000. In 2002, the Phoenix was established and currently serves as the GSU student newspaper, publishing twice monthly. Currently, the school has no official policy regarding school publications.

Goodman called Hosty "an aberration."

"There is no other court decision like it in the country that agrees with the reasoning or the analysis that the 7th Circuit [Court of Appeals] engaged in," Goodman said.

He said that Hosty, like Hazelwood, forced new legislation on the state level that was never discussed before.

"It, like the Hosty ruling, served as a wake-up call to college journalists and those who support them that we cannot sit back and presume the First Amendment is all we need to defend our press freedom," Goodman said. "And the more specific consequence was getting states like Illinois, California and Oregon to enact statutes explicitly limiting censorship on the college level and protecting student press freedom. I mean that's something that just wasn't in the conversation before Hosty."

In addition to the free expression laws enacted by California and Oregon, the Illinois legislature passed the College Campus Press Act, which declared any student media outlet at a public college a public forum and prohibits school officials from censoring the content of student publications.

Kincaid v. Gibson

Two Kentucky State University students sued the school in 1995 after Betty Gibson, the vice president for student affairs, confiscated the student yearbook, the Thorobred. According to court documents, Gibson felt the content of the yearbook was inappropriate and disagreed with including current events unrelated to the school in the book. She said the purple cover was unrelated to KSU because it did not represent the school colors and also objected to the theme of the book, "Destination Unknown."

Capri Coffer, who edited the yearbook, and Charles Kincaid, a student who paid a mandatory fee and felt he was entitled to his yearbook, argued that their First Amendment rights had been violated by Gibson's actions.

The U.S. district court ruled in favor of Kentucky State, citing Hazelwood on the basis that because the school did not establish the yearbook as a public forum, Gibson had the legal right to censor the yearbook.

However, the 6th U.S Circuit Court of Appeals reversed the decision, clearly stating that Hazelwood does not apply to college and university campuses.

"The university is a special place for purposes of First Amendment jurisprudence," the court said, differentiating the case from Hazelwood because it occurred on a college campus. The opinion stated that "chilling individual thought and expression is especially real in the university setting, where the state acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition."

The court also determined that the KSU yearbook was a public forum, citing the actual practice of producing the publication. "Student editors, not KSU officials, not the student publications adviser and not the Student Publications Board, determined the content of KSU's student yearbook," the court said.

According to Goodman, the ruling was a beneficial precedent for all student media.

"In this case, where they found, if you will, even a yearbook is entitled to strong First Amendment protection, that only makes the argument more strongly for other student media out there," Goodman said.

The Thorobred is no longer published at Kentucky State and was last printed in 1998, according to the Kentucky State University library database.

Dean v. Utica Community Schools

In 2002, Utica High School senior Katy Dean researched and wrote a story about Utica, Mich., residents Rey and Joanne Frances, who claimed that diesel exhaust from a district-owned school-bus garage near their home caused Rey's lung cancer.

The superintendent claimed Dean's article lacked research and pulled it from the Arrow, the student newspaper. Dean filed suit against the district, claiming her First Amendment rights were violated.

A U.S. district court found that the school district illegally censored her story. Student journalists "must be allowed to publish viewpoints contrary to those of state authorities without intervention or censorship by the authorities themselves," the court said. Significantly, the court went on to say that, even under the Hazelwood standard, school officials'

unwillingness to accept criticism was not a lawful basis to kill the story: "Even if the Arrow is a non-public forum, [school officials'] suppression of Dean's article was unreasonable."

Currently, the Utica Community School District has no policy in place regarding the Arrow or any student publications.

According to Mike Horan, former editor-in-chief of the Arrow, prior review is not a policy at Utica and the students typically have control of the publication, except for a few instances.

One example Horan described was a privacy issue regarding bathroom doors being removed from the boy's bathrooms because bomb threats were being written on them.

"There was a privacy issue and one of our students wanted to write about how he felt it wasn't fair," Horan said. "Our principal was kind of leery because it was making the school look bad, but eventually after we talked to them, it did end up happening, and it did run."

Horan said the same student faced adversity when writing a column about starting a gay and lesbian pride group at the school, but the column eventually was published.

"The students put the paper together," Horan said.

"Anything that we wanted to run ... she (the principal) would back us 100 percent. ... She wanted the best for the paper."

Arrow adviser Stacy Smale said the principal meets with the staff in a press conference style monthly so they can openly ask questions and get comments for stories.

"The administration has always been very supportive," Smale said. "I've certainly never had any cases of prior review or of them asking to see something before it was printed. It's a very student-run publication."

Goodman said that although Dean only applies in one jurisdiction, it reaffirmed the provisions of the First Amendment.

"It was reassurance that Hazelwood wasn't the death knell that some attempted to portray it as, that quality student journalism could still be protected by the First Amendment," Goodman said. "I think what the Dean case did was give the ability for students and others to stop censor-prone administrators in their tracks by saying 'you don't have a blank check when it comes to censorship. The First Amendment still creates limitations on what you can do.'"


reports, Spring 2009