Stick figures: 'Unquestionably lewd'
Ruling puts public forum status in doubt
When Robert Ochshorn decided to file a lawsuit against his former school district, he never anticipated his involvement in the case lasting more than a couple of years.
But more than half a decade later, Ochshorn, the former editor in chief of the Tattler — the student newspaper at Ithaca High School in Ithaca, N.Y. — remains at the center of a legal dispute that has captured the attention of much of the scholastic journalism community.
For Ochshorn, that involvement still does not have a clear end in sight.
Along with seven other plaintiffs, Ochshorn has been fighting the removal of a stick-figure cartoon from the newspaper that had accompanied an article addressing sex education.
The eight plaintiffs — each 2005 Ithaca High School alumni and former members of the Tattler’s editorial board — have also been pushing to overturn a student publications policy they feel oversteps the Constitution.
Recently, however, the students’ case took a major hit.
On May 18, the 2nd U.S. Circuit Court of Appeals came down with a decision in R.O. v. Ithaca City School District that student journalism advocates say is one of the most damaging rulings for free speech in the nation’s high schools in decades.
“This case, along with emerging case law surrounding off-campus speech through Facebook posts, will determine the future of a free press on America’s high school campuses,” said Ken Paulson, president and CEO of the First Amendment Center. “At a time when almost no one is keeping an eye on the world of public education, we can and should protect freedom of the press at the high school level as fervently as we do at the professional level.”
Since the May ruling, free speech advocates have decried the court’s opinion as destructive to the ability of students to express themselves freely, without fear of administrative retribution.
At the same time, Ithaca City School District administrators are applauding the decision as a positive, final remedy to an ongoing content dispute.
But if students like Ochshorn are to have the last word, the court’s holding will be anything but final.
Along with their attorney, Raymond Schlather, the student plaintiffs have filed a petition to have their case heard by the U.S. Supreme Court.
“We’ll take this as far as it can go,” Ochshorn said. “We still believe now as much as we did six years ago that not only were we in the right, but that this is a vitally important issue and case. We’re not giving up.”
The Tattler story begins in 2004, the start of Ochshorn’s senior year of high school and tenure as editor in chief.
Having operated as an extracurricular publication relatively free from administrative oversight for more than 100 years, the Tattler experienced several “warning signs” early in the school year, Ochshorn said.
In the fall, the staff printed an editorial critical of principal Joe Wilson. Soon after, the student journalists reported on an incident in which Wilson had walked into a classroom and called himself the “food Nazi,” telling students who had been eating in class that he would send them to the “food gas chamber” if they did not stop.
Ochshorn cited both instances as factors that led to the implementation of a new set of guidelines for the newspaper.
Along with adviser Stephanie Vinch, Wilson informed the students in January 2005 that they would be operating under a revamped system of administrative oversight, made official through the guidelines.
Under the guidelines, the newspaper adviser was instructed to “read, edit and approve all articles prior to publication.” No issue of the Tattler was to be sent to the printer without the adviser’s final approval.
Judy Pastel, former district superintendent, said the guidelines did nothing more than formalize existing practice.
The student journalists disagree.
Bryan Ellerbrock — who said he “grew up in the Tattler office as a little kid” while his mother, Eileen Bach, served as adviser prior to Vinch — does not remember any instance in which the final say over newspaper content lay beyond the students’ control.
“My experience with the Tattler is that it’s as independent and student-run as possible,” said Ellerbrock, the newspaper’s 2004-05 distribution manager and another named plaintiff.
In their February 2005 Valentine’s Day edition, the students planned to run an article entitled, “How is sex being taught in our health classes?”
Along with the article, the student editors were set to run a satirical cartoon, which depicted a teacher standing in front of a chalkboard that displayed eight stick figures in various sexual positions.
After reviewing the newspaper, the students were told that the cartoon violated the standard for obscenity set forth by the new guidelines. They were not permitted to run it.
Pastel stands by the district’s decision.
“In a publication that you’re sending out to 12, 13, 14 year olds, this cartoon was not going to help our efforts in trying to educate younger students about acts that might impact them for the rest of their lives,” Pastel said. “I’d like to give [the student journalists] as much freedom as we possibly can, understanding the world under which a district-sponsored newspaper must operate.”
The newspaper staff ran a blank white box where the cartoon would have gone.
Frustrated, the students decided to publish the cartoon in an independent newspaper — one they created on their own time, without any district support. But administrators refused to let them distribute the so-called March Issue on campus, citing the same obscenity standard.
The students used the cartoon’s censorship, along with the decision to prevent distribution of the underground publication, as a legal platform to challenge the guidelines under which the newspaper was operating.
“For us, the cartoon has always been a secondary issue,” said Andrew Alexander, the 2004-05 Tattler news editor and another plaintiff. “The real question here is whether it is permissible for a school to take an independent student newspaper and turn it into the mouthpiece of the administration. We think that it clearly isn’t.”
A federal district court judge, however, agreed with the school district and upheld both the restriction of the cartoon and the distribution of the March Issue in a March 2009 ruling. The judge, however, did not offer a final decision on whether the underlying Tattler guidelines were constitutional.
Schlather, who has been representing the students on a pro-bono basis, said he expects the guidelines to move to a separate trial in the near future.
For now, though, Schlather’s primary concern is righting what he sees as a major wrong: the Second Circuit’s opinion.
“Their decision strikes the death knell to high school journalism as we have known it at least in this community, and my guess throughout the country,” he said.
A far-reaching decision
Two years after the district court’s decision, both the cartoon and independent March Issue were once again on center stage as the students appealed.
This time around, however, the Second Circuit’s decision was far more damaging than any that had come previously, said Frank LoMonte, executive director of the Student Press Law Center.
The court began by classifying the Tattler as a “limited public forum” – a legal term with significant importance to student media.
In years past, LoMonte said any classification of a student publication as a “public, designated or limited forum” allowed the publication to seek protection under the “Tinker standard.” The Tinker standard refers to a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, which held that public school students have a right to speak freely, with the exception of speech that is illegal or causes a substantial disruption to school activities.
The Second Circuit chose instead to apply the “Hazelwood standard” — which refers to a 1988 case, Hazelwood School District v. Kuhlmeier, in which the Supreme Court held that schools may censor non-forum, curricular publications for legitimate educational reasons. The Second Circuit used the Tattler’s “limited public forum” classification to unanimously rule in the school district’s favor.
“While ICSD apparently opened the newspaper to some — or even many — types of speech, there is no evidence that the school permitted ‘indiscriminate use by the general public,’ as is required to create a traditional public forum or designated public forum,” Judge Jose Cabranes wrote.
Looking back, LoMonte said the ruling was “the most hurtful decision for high school journalism since Hazelwood.”
Schlather agreed, adding that “there has been what appears to be an erosion and rendering hollow of those very ringing words in Tinker that ‘students and teachers do not shed their constitutional rights of freedom of speech and expression at the schoolhouse gate.’”
He called the Second Circuit’s decision “a mischaracterization of the law surrounding public fora and a botched opportunity by the court.”
As a practical manner, there is no way for a student-run newspaper to operate as a forum “wide open to the entire citizenry,” LoMonte added. He explained that a student publication is a classic example of a limited public forum because “nobody thinks that a citizen can walk off the street and demand access to the editorial page of the student newspaper ... In that way, a student newspaper is still a public forum, but only for a particular class of people or a particular type of speech.”
John Bowen, adjunct professor of journalism at Kent State University and chairman of the Journalism Education Association’s Scholastic Press Rights Commission, said the decision means that student publications will have to be particularly careful about what they call themselves in the future.
“If you’re going to say that you’re a public forum, then you’re going to have to be able to explain why and how,” he said. “A lot of high school newspapers today aren’t using the language correctly.”
Starr Sackstein, JEA’s New York state director, said there is no hard data on how many student newspapers claim to be limited public fora, but guessed that a majority of her state’s publications operate that way.
LoMonte emphasized that student publications in the future will need to have their forum status not just in name, but in practice, as well.
Turning to the independent newspaper, the Second Circuit applied the 1986 Supreme Court case Bethel School District v. Fraser, which held that a school did not violate a student’s First Amendment rights when it suspended him for giving an in-school speech full of sexual innuendo.
The Second Circuit said the cartoon met the standard for “lewdness” set forth in that case and could be regulated by school administrators.
“Although the Supreme Court has not clarified the extent to which the Fraser doctrine applies in contexts beyond the facts of that case ... we have not interpreted Fraser as limited either to regulation of school-sponsored speech or to the spoken word,” Cabranes wrote.
Schlather said the circumstances surrounding Fraser were clearly limited to a “captive audience,” which he feels is not the case when it comes to reading a student newspaper.
For Paulson, of the First Amendment Center, the Second Circuit’s decision embodies a far-reaching misunderstanding by adults of the climate in today’s high schools.
“This cartoon was probably one of the least explicit things in the lives of the 14- or 15-year-old readers,” he said. “This decision suggests a total lack of understanding about what’s going on among our nation’s youth.”
A troubled future?
If not overturned by the Supreme Court, the Second Circuit’s opinion will become binding precedent in Connecticut, New York and Vermont.
While the 2005 Tattler alumni remain optimistic about the future of the case, R.O. v. Ithaca City School District is largely a relic of the past for the current newspaper staff.
“Very few people in the high school even know that this was ever an issue,” current Tattler Editor-in-Chief Ingrid Sydenstricker said. “I’d like our staff to get a bit more involved with it next year, because this is a big part of our history.”
Though Sydenstricker is sympathetic with the students’ objections to the censorship six years ago, she feels that “because the Tattler is not independent, the school should have some say.”
She added that members of the newspaper staff have been hesitant to pursue potentially controversial stories over the past few years, mainly because of the “distant legacy” left over from the case.
Deborah Lynn, who has served as adviser to the Tattler for the past three years, agreed, adding that she hopes future staffs will take a more critical approach to the reporting process.
Though the Tattler guidelines have been revised since the court proceedings began, the adviser must still review all content.
Lynn said there have been no major content disputes during her time with the newspaper.
For Ochshorn, any requirement to submit articles to the adviser for approval remains unacceptable. Though he was disappointed to hear that the newspaper may be shying away from certain coverage, he hopes that will change in the future.
“The court is one way to set the standard for behavior, but there are other means of adopting a law that protects the rights of students,” he said. “At the very least, I hope [this decision] motivates us around organizing a legislative correction ... not just for the Tattler, but for all student journalists.”
By Seth Zweifler, SPLC staff writer
Fall 2011, reports