Student Press Law Center Condemns 'destructive' appeals-court ruling denying N.Y. students’ First Amendment claims

FOR IMMEDIATE RELEASE Contact: Frank D. LoMonte, executive director 703.807.1904 /

The Student Press Law Center on Wednesday condemned a federal appeals-court ruling dismissing the First Amendment claims of Ithaca, N.Y., students who were prevented from publishing a political cartoon mocking the effectiveness of their school’s sex-education program, calling Wednesday’s decision the most damaging ruling to the independence of student publications in the past two decades.

A three-judge panel of the Second Circuit U.S. Court of Appeals decided 3-0 in R.O. v. Ithaca School District that the editors of Ithaca High School’s student newspaper, The Tattler, had no First Amendment remedy for their school’s decision to remove an editorial cartoon from a February 2005 edition of the newspaper, and then to ban the same cartoon from a March 2005 paper that the students produced and financed independently.

The judges decided the case on the basis of a 1986 U.S. Supreme Court ruling, Bethel School District v. Fraser, that allowed schools to punish “lewd” or “vulgar” speech by speakers at official school assemblies without running afoul of the First Amendment. They categorized the cartoon – which depicted crudely drawn stick figures in varying sexual positions, as a way of satirizing the unrealistic manner in which sex education is taught – as “unquestionably lewd.”

The court also decided that The Tattler enjoyed no heightened protection by virtue of being designated as a “public forum,” which typically confers enhanced First Amendment rights beyond the minimal rights recognized by the Supreme Court for “curricular” student publications in Hazelwood School District v. Kuhlmeier (1988).

SPLC Executive Director Frank D. LoMonte, an attorney who co-signed the SPLC’s friend-of-the-court brief supporting the Ithaca students along with volunteer counsel from Hunton & Williams LLP, said the court misapplied the law in several fundamental respects.

“The Fraser ‘lewd speech’ standard grew out of a mandatory school assembly before a captive audience, and it should have nothing to do with an independently produced and independently financed student newspaper that readers can pick up or discard at their own choice,” LoMonte said. “As to the students’ independent newspaper, The March Issue, this quite clearly isn’t a Fraser case. The Supreme Court explicitly said in Fraser that schools can punish this type of speech to ‘disassociate’ themselves from its message, but the independent student paper was very clearly unaffiliated with the school.”

As to the level of protection afforded to The Tattler, the Second Circuit relied solely on one of its own 2002 rulings, Hotel Employees & Restaurant Employees Union Local 100 v. New York City Department of Parks & Recreation. But LoMonte said the court selectively applied only a portion of that case to reach the end result.

“The Hotel Employees case specifically says that, once it is determined that you’re dealing with a limited public forum – which is exactly the case here – you have to apply the very strictest constitutional scrutiny to any regulation that excludes the type of speech for which the forum was created. The Second Circuit completely skipped over that step and pretended it doesn’t exist,” LoMonte said. “This court has created a new type of a publication never before seen in the law – the ‘limited public forum’ publication – in which schools have blank-check authority to decide what material is ‘suitable.’ The Supreme Court said in the Hazelwood case that students could obtain better protection by having their publications designated as public forums for student expression. These students followed the rules and did exactly what the Supreme Court told them to do, and now you have the judges of a lower court saying they don’t have to follow Supreme Court precedent and that the ‘public forum’ designation is a meaningless designation.”

“This case is terribly destructive to the ability of students to voice their opinions about legitimate matters of public concern, and in particular on the very school policies about which they are most knowledgeable,” LoMonte said. “If the students who are opinion leaders in their school believe that the sex education curriculum is ineffective, that is valuable input that policymakers should take into consideration. The government should never be in the position of ordering people to stifle their criticism of government programs, particularly when speaking in publications that they publish themselves.”

“The one comforting thing is that the court is so unmistakably wrong on the law – this is so plainly an outcome-driven decision to reach the preordained result that the school should win – that it is very hard to see any court ever following it. This is a case where the law says ‘up’ and the court says ‘down,’ and you just can’t misapply the law any more blatantly,” LoMonte said. “I think in the future, if the ruling isn’t overturned, we’re going to see it discredited by other circuits as a wild deviation from established First Amendment principles.”

Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics.