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Hazelwood School District v. Kuhlmeier
A Complete Guide to the Supreme Court Decision
© 2008 Student Press Law Center
View Foot Notes
By Mike Hiestand
In January 1988, the United States
Supreme Court handed down its opinion in
Hazelwood School District v.
Kuhlmeier.1
The decision
upheld the authority of public high school administrators at Hazelwood East High
School in suburban St. Louis, Mo., to censor stories concerning teen pregnancy
and the effects of divorce on children from a school-sponsored student
newspaper.
Note to students at private schools
Because the First Amendment only protects against the actions of
government officials, and the Hazelwood case only dealt with First
Amendment rights, private school students are not legally affected by the
decision. They must rely on school policies or state law to protect their free
expression rights. For more information, see the SPLC’s Legal Guide for
the Private School Press.46 |
Hazelwood
was in dramatic contrast to court decisions from across the country handed down
over the previous two decades that had given student journalists extensive First
Amendment protections.
Although the Supreme Court was only
dealing with a student newspaper in
Hazelwood,
all public high school student news and information media have been affected.
Student newspapers, yearbooks and literary magazines as well as online student
media and non-broadcast radio and TV programs
can use the information in this guide.
Probably the most significant aspect of
the decision was the emphasis it placed on determining whether a student
publication is or is not a "public forum" for student expression.
As a growing number of lower court cases
have confirmed, student media that qualify as public forums receive greater
First Amendment protection than non-public forum student media and are not
subject to
Hazelwood's
censorship standards. The determination of forum status may not always be clear,
but this guide points out the factors that a court is likely to consider.
Recent court decisions have also helped
to more clearly define what types of administrative censorship
Hazelwood
allows and what types it does not. While the
Hazelwood
standard remains far from clear, these cases provide some useful guidance about
where the outer boundaries lie.
Please note one thing above all else: All
public high school students still have important First Amendment protections
that limit the ability of school officials to restrict what students publish or
to punish them for what they say or write. Public school officials — no
matter what they may say or think — do not have an unlimited license to
censor.
What the Decision
SaysHazelwood
School District v.
Kuhlmeier was decided on January
13, 1988. The 5-3 vote reversed the decision of the U.S. Court of Appeals for
the Eighth Circuit in St. Louis, which had upheld the rights of the students.
Justice Byron White wrote the Court's majority opinion, which was joined
by Justices Rehnquist, Stevens, O'Connor and Scalia. Justice William
Brennan filed a dissenting opinion that was joined by Justices Marshall and
Blackmun.2
Justice White began by noting that the
rights of students in public schools are not necessarily the same as those of
adults in other settings. White also pointed to a student speech decision the
Court had handed down two years earlier,
Bethel School District No. 403 v.
Fraser,3 where it found
that even within the school, a student's First Amendment rights could vary
depending on the type of expression involved and where and how it took place.
In
Hazelwood,
the Court found that the
Spectrum,
the student newspaper at Hazelwood East High School, which was produced as part
of a journalism class, was not a "forum for public expression" by
students.4 Therefore, the Court held that the
school was not required
to follow the standard established in
Tinker v. Des Moines Independent
Community School
District,5 a 1969
Supreme Court case that struck down as unconstitutional a school's
suspension of students who had worn black armbands to protest the Vietnam War.
In
Tinker,
the Court said school officials could only limit student speech when they could
demonstrate that it would cause a material and substantial disruption of school
activities or an invasion of the rights of others.
The
Hazelwood
majority noted that unlike the school-sponsored
Spectrum,
however, the armbands worn by the
Tinker
students constituted independent, non-school-sponsored student speech. This
distinction between school-sponsored and non-school-sponsored student speech was
one that the Court had not directly made before. The
Hazelwood
Court went on to say that a different category of student speech allowed for the
application of a different legal standard.
From that point on, the Court said, a new
— and less protective — First Amendment test could be used to
analyze administrative censorship of school-sponsored speech that occurred in a
non-public forum. Henceforth, the Court said, school officials could censor such
speech if they could show it was "reasonably related to legitimate
pedagogical concerns."6 In other words, if a
school could
present a reasonable educational justification for its censorship, it would be
allowed.
Applying its new standard, the Court
found that the principal at
Hazelwood
East had acted lawfully in censoring the newspaper. The Court found that it was
"not unreasonable" for the principal to have concluded that
"frank talk" by students about their sexual history and use of birth
control, even though the comments were not graphic, was "inappropriate in
a school-sponsored publication distributed to 14-year-old
freshmen...."7
In his sharp dissent, Justice Brennan
said he found the newspaper at
Hazelwood
East to be a "forum established to give students an opportunity to express
their views...."8 He said the Court should have
applied the
Tinker
standard. Brennan said the censorship "aptly illustrates how readily
school officials (and courts) can camouflage viewpoint discrimination as the
‘mere' protection of students from sensitive
topics."9
"Such unthinking contempt for
individual rights is intolerable from any state official," Brennan
continued. "It is particularly insidious from one to whom the public
entrusts the task of inculcating in its youth an appreciation for the cherished
democratic liberties that our Constitution guarantees."10
What the Decision
MeansThe
Hazelwood
decision struck a serious blow to scholastic journalism. The Court significantly
cut back the First Amendment protections public high school students had been
afforded for years. At some schools, censorship has become standard operating
procedure; at any school it remains an ever-present threat.
In 1974, the report of the Commission of
Inquiry into High School Journalism, titled
Captive
Voices, made some significant
findings.
"Censorship is the fundamental
cause of the triviality, innocuousness and uniformity that characterize the high
school press," the report said. "Where a free, vigorous student
press does exist, there is a healthy ferment of ideas and opinions with no
indication of disruption or negative side effects on the educational experience
of the school."11
If a free student press encourages active
learning and civic participation by students, as
Captive
Voices found,
Hazelwood
was clearly a step backward and the decision, which one commentator has
described as a potential "censorship tsunami,"12 has been
roundly criticized by journalism education groups.
While it is impossible to sugarcoat the
negative impact
Hazelwood
has had on student media, the Court left some important safeguards against
censorship intact. The following discussion will address those and other common
questions raised by the decision.
Does
Hazelwood
apply only to the student news media?
No. Any curricular, non-forum
student activity that involves student expression is affected. The Court
specifically mentioned theatrical productions, and over the years lower courts
have cited
Hazelwood
in cases involving other student activities such as art shows, debates and
academic presentations.13
Does
Hazelwood
apply to all high school student
media?No. It only applies to: (1)
school-sponsored student media that are (2) not public forums for expression by
students. Curricular and extracurricular student media that qualify as public
forums, as well as independently produced (non-school-sponsored)
"underground" student publications — even if distributed on
school grounds — still retain much stronger First Amendment
protections.14
Does
Hazelwood
apply to off-campus, private expression?
No.
Hazelwood
only applies to school-sponsored student expression. Independent student speech
that takes place entirely outside of school — such as off-campus e-mail, a
private Web site or social networking site, or a flier for a non-school
organization published and distributed outside of school — is not subject
to
Hazelwood's
restrictions. Except in extraordinary cases, such expressive activity retains
the highest level of First Amendment protection and school administrators will
generally have no authority to restrict such content or punish students
involved. Of course, as always, students remain responsible for everything they
publish and can be held liable if they commit libel, invade another's
legal right to privacy or engage in some other unlawful speech or
activity.15
What is "school-sponsored"?
The Court's opinion mentions
three different criteria that it might look to in determining if a publication
is school-sponsored and thus covered by the
Hazelwood
decision: (1) Is it supervised by a faculty member? (2) Was the publication
designed to impart particular knowledge or skills to student participants or
audiences? and (3) Does the publication use the school's name or
resources?16 Even a student media organization
that receives no
direct funding from the school could be "school-sponsored" if it has
a faculty adviser, uses school equipment or facilities or is produced in
relationship to a class.
Are all school-sponsored student media
covered by
Hazelwood?
No. At least one federal court has
found that school-sponsored student publications produced as part of a class can
still be public forums where student editors have been allowed control over the
publication's content.17
Does the decision apply to student media
produced in an extracurricular activity?
It is unclear. In at least two
federal court cases, judges have said that extracurricular student media may be
beyond
Hazelwood
‘s reach.18 However, at least one court
has said that even an
extracurricular publication can be covered by
Hazelwood
if under faculty supervision and intended to impart particular skills to the
student participants.19
What is forum analysis?
In weighing the authority of the
government to regulate expressive activity that occurs on government property or
that uses government resources, courts have turned to what is commonly known as
"forum analysis."20 The idea is that the
government's authority to regulate such speech varies according to the
type of forum in which the speech takes place. Some places, it recognizes, are
more appropriate for speech activities than others. For example, the
government's interest in regulating speech that takes place in a
town's public square, where speakers have traditionally been allowed to
host gatherings and share their message, is much less than on a tightly guarded
military base or in the private office of a government employee where the
government can demonstrate a reasonable need to restrict free speech
activities.
What is the difference between an
"open public forum," a "designated public forum"
and a "non-public
forum"?Courts analyzing the
constitutionality of administrative censorship of public high school student
media first look to determine whether the media at issue is: (1) a traditional,
open public forum, (2) a "designated" or "limited"
public forum or (3) a non-public forum.21
In open public forums, such as streets,
sidewalks or a town square, the government must accommodate virtually all
speakers. "Designated" public forums (also called
"limited" public forums), meanwhile, have not historically been open
to the general public but are considered to occupy a middle ground because the
government has opened the forum for a specific expressive purpose or for free
speech use by a specific group of people (such as student journalists working on
a public high school newspaper). Speakers using such forums in their designated
manner are entitled to the same strong First Amendment protections as speakers
in a traditional, open public forum.
Non-public forums have not been opened to
the public, and speakers in such forums receive the least First Amendment
protection. Because non-student members of the general public are generally not
permitted to use a student publication to publish anything they choose, student
media will generally be categorized as either a "designated" (or
"limited") public forum or a non-public forum.
Why is it important to determine whether a
student outlet qualifies as a public
forum for student expression? Even
curricular, school-sponsored student media may still be entitled to strong First
Amendment protection and exempt from
Hazelwood's
limitations if they qualify as "designated public forums for student
expression." Thus the key question for most student media in
determining the impact of
Hazelwood
is whether they operate as such a forum.
Indeed, at least a half-dozen
post-Hazelwood
cases have emphasized the importance of forum analysis. As one court has said,
"Whether a school newspaper is a ‘public forum' can be
determinative of whether attempts to limit or control the expressional
activities undertaken by the newspaper violate constitutional
rights."22
What are the factors used to determine the
forum status of student media? A
designated or limited public forum is created when school officials have
"by policy or practice" opened student media for students to express
themselves freely. In
Hazelwood,
the Court majority said it believed the adviser to the newspaper had acted as
"the final authority with respect to almost every aspect of the production
and publication...including its content."23
(The dissenting
justices said they thought the facts indicated otherwise.) That finding by the
majority, combined with the fact that the school never explicitly labeled the
student newspaper as a "forum" in its written policies or gave other
explicit evidence of an intent to designate the newspaper as a forum, prompted
the Court to say a forum did not exist.
In fact,
Hazelwood
was the first case to find that a particular student newspaper did not
constitute a forum for student expression, and the Court indicated that had
student editors been given final authority over content or had the school
explicitly designated
Spectrum
as a public forum for student expression, the result in the case would likely
have been different.24
As most Courts have agreed, the
school's intent is a critical factor in the forum calculus.25
That can be determined by written school policy, if one exists, or by how the
publication has operated over time. "‘Actual practice speaks louder
than words'
in determining whether the government
intended to create a limited public forum."26
In two recent cases, federal district
courts found that high school-sponsored student newspapers were not subject to
Hazelwood
because they were operating as public forums.27
In both cases, the
courts noted that the publications had been operating free from censorship and
that school officials were well aware of that fact. The advisers to these
student publications also testified that neither they nor school administrators
were telling the students what they could publish.
In cases where the publication is a
public forum for student expression, school officials will only be allowed to
censor when they can demonstrate a compelling reason, such as meeting the
broader protections of the
Tinker
standard.
When is censorship by school officials
allowed?
Hazelwood
expanded the authority of school officials to censor student media that is
school-sponsored and not a public forum. School officials will be allowed to
censor non-forum student media when they can show that their censorship is
"reasonably related to legitimate pedagogical [educational]
concerns."28 When the censorship has "no valid
educational purpose," it will still be prohibited.29
Despite what many seem to believe, school
officials were not given limitless authority under
Hazelwood.
Even where a student publication is a non-public forum, administrators still
have the burden of showing that their censorship has a valid educational
purpose. If they cannot, the censorship will be struck down as
unconstitutional.30
What is a "legitimate pedagogical
[educational] concern" that justifies censorship under
Hazelwood?
That is a question that student
journalists, school officials and courts have struggled with since
Hazelwood
was handed down. Considering that every major national organization of
journalism educators in the country has said that censorship in and of itself is
an educationally unsound practice, one might think that schools could never get
away with censorship. However, the Supreme Court indicated
otherwise.
The Court gave several examples in its
decision of what might be censorable: material that is "ungrammatical,
poorly written, inadequately researched, biased or prejudiced, vulgar or
profane, or unsuitable for immature audiences." Potentially sensitive
topics, such as "the existence of Santa Claus in an elementary school
setting" or "the particulars of teenage sexual activity in a high
school setting" can also be banned. And "speech that might
reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or
conduct otherwise inconsistent with the ‘shared values of a civilized
social order'" may also be censored. In addition, the Court said
school officials could censor material that would "associate the school
with anything other than neutrality on matters of political
controversy."31
These examples — frightening in
their breadth and vagueness — suggest that school officials might be
allowed to censor a great number of things simply because they disapprove of
them. In fact, the Court said schools could demand of their student publications
standards "higher than those demanded by some newspaper publishers ... in
the ‘real' world."32
Fortunately, a growing number of lower
court decisions decided since
Hazelwood
have indicated that this standard still imposes significant limitations on
school officials' authority. For example, in
Desilets v. Clearview Regional Board
of Education the New Jersey Supreme
Court rejected school officials' justifications for censoring reviews of
R-rated movies from a student newspaper under the
Hazelwood
standard as "equivocal and inconsistent."33 The
court
noted that there was nothing offensive in the reviews, that R-rated movies were
discussed in class by teachers, that such reviews were available in the school
library and that the student newspaper had, in fact, reviewed such movies in the
past.
In
Dean v.
Utica34,
a federal district court in Michigan rejected a school's censorship of a
student newspaper story about a lawsuit filed against the school by community
members who claimed they were suffering health problems from breathing diesel
exhaust from idling school buses.
The court found the student newspaper to
be a public forum, but said even if it had not been, the school's actions
were unconstitutional under
Hazelwood.
Assessing the story on criteria including fairness, accuracy, writing quality
and bias, the court said the school had presented no legitimate justification
for censoring. Good, solid journalism, the judge found, can trump
Hazelwood-based
censorship.
Are there any other limitations on school
officials' authority to censor?
Most courts will also require that
school officials be able to show that their censorship is "viewpoint
neutral,"35 that is, that they did not censor
simply because
they disagreed with a particular view students were expressing. For example, a
principal who censored a pro-life editorial, but allowed the publication of a
pro-choice editorial, would be engaging in viewpoint discrimination. However,
there is some disagreement among lower courts about whether
Hazelwood
imposes a viewpoint-neutral requirement.36
Until the Supreme Court
clarifies the issue, most courts continue to conclude that censorship of student
speech based on viewpoint is constitutionally impermissible.
Is prior review allowed after
Hazelwood?
The
Hazelwood
Court indicated that school officials can review non-forum, curricular student
publications before they go to press, and probably can do so without specific
written regulations.37 Prior review by school
administrators has long
been one of the most problematic and insidious forms of censorship. Where
mandatory administrative prior review exists, it will likely be a rebuttable
indicator that the publication is not operating as a public forum. For those
publications that have been designated as public forums, prior review may
require that written policies with procedural safeguards be
present.
Did the Supreme Court overrule its
decision in the
Tinker
case? No. The
Hazelwood
Court reaffirmed the
Tinker
decision and the notion that neither students nor teachers lose their free
expression rights at the schoolhouse gate. But it did seriously cut back on
Tinker's
application. By refusing to apply that decision to any situation in a public
high school involving a non-forum, school-sponsored student expression, the
justices made
Tinker
a shadow of the protective shield for student journalists it had once
been.
For all public forum, extracurricular and
underground publications, the
Tinker
standard is still the law. School officials can only censor those publications
when they can demonstrate their content will result in a material and
substantial disruption of school activities, an invasion of the rights of other
students or that the material falls in to another area of unprotected
speech.38
Are there any other legal protections
students might have to fight censorship?
Yes. It is important to remember
that
Hazelwood
only addressed the protections available under the First Amendment. The Court
left open the possibility that other avenues of protection, including everything
from state constitutional provisions or state laws to school board regulations,
might still prevent school officials from censoring.
Arkansas, California, Colorado, Iowa,
Kansas, Massachusetts and Oregon have state laws that protect the free
expression rights of their high school students.39 Other states
across the country have considered — and continue to pursue —
enacting similar legislation. In addition, some states, such as Pennsylvania and
Washington, have state regulations that may protect student rights. And dozens
of individual school districts across the country, such as Dade County in
Florida, Fairfax County in Virginia and Auburn School District in Washington
State, have enacted student expression policies that provide significant
protections to their student media programs.
Courts in New Jersey40 and
Washington41 have specifically said their state
constitutions may
provide additional free speech protection to student media. Additionally, the
free speech provisions of other state constitutions include language that could
be interpreted as providing broader legal protections than the federal First
Amendment.
Does
Hazelwood
apply to college student media? In
a footnote, the
Hazelwood
majority said, "We need not now decide whether the same degree of
deference [to school censorship] is appropriate with respect to school-sponsored
expressive activities at the college and university level."42
For nearly twenty years — up until a 2005 decision by the 7th U.S. Circuit
Court of Appeals in Hosty v.
Carter — courts had
consistently rejected the application of
Hazelwood
to college student media. In
Hosty,
however, a divided court found that
Hazelwood
provided the "starting point" for analyzing college censorship
cases.
For students attending a public college
or university in Illinois, Indiana and Wisconsin (the states covered by the 7th
Circuit),
Hosty
is now the law. As a practical matter, most college student newspapers will
still be considered designated public forums and entitled to the strongest First
Amendment protection because that is the way they have been operating for
decades. (Moreover, in 2007 Illinois lawmakers passed a law protecting college
student media from administrative censorship that should effectively negate
Hosty's
impact for college students in that state.43)
Most importantly,
however, the
Hosty
decision has no legal impact outside the boundaries of the 7th Circuit, and the
law prohibiting virtually all forms of administrative college censorship remains
unchanged. In fact, the
Hosty
decision is in direct conflict with court rulings dating back nearly four
decades. Moreover, the U.S. Supreme Court, which has still not ruled on the
question, has consistently noted in other cases the important role of free
speech on American college and university campuses. Unfortunately, some
misguided or opportunistic college officials outside the 7th Circuit have
pointed to
Hosty
to justify more administrative control over student media. College student media
must challenge such interpretations immediately.44
What the Decision Has
DoneRequests for legal assistance
to the SPLC from high school students and advisers around the country indicate
that the
Hazelwood
decision has had at least one significant effect: a dramatic increase in the
amount of censorship.
From 1988 to 2003, calls for help
received by the Center increased by about 350 percent, a nearly constant rise
that shows no sign of decline. Student media continue to report censorship of
articles, editorials and advertisements that are perceived as
"controversial" or that school officials feel might cast the school
in a negative light. Disturbingly, professional student media advisers are also
reporting a growing number of threats to their jobs if they refuse to follow
school officials' orders to censor. And almost all student journalists and
advisers have said that they attributed the censorship at least in part to the
Hazelwood
decision.
Some Final
WordsThe
Hazelwood
decision is now two decades old. An entire generation has lived its entire
academic life — and is now moving into the professional ranks —
under
Hazelwood's
influence. Far too many of our future journalists, citizens and leaders
unquestioningly accept that school administrators — government officials
— should have the authority to dictate what they read, write and talk
about.45 What this means for the future of
press freedom in America
remains unknown, but we hope that no student or adviser is resigned to give up
the battle against censorship.
Since 1974, the Student Press Law Center
has been a source of free legal help and information for students and journalism
advisers who are facing administrative censorship. You can contact our legal
staff through our Web site (www.splc.org) or by telephone at (703) 807-1904. In
addition, the Center remains the only national clearinghouse devoted solely to
collecting information about the cases and controversies affecting
America's student press, and we rely on you to help us track student media
censorship. If you are involved in — or simply aware of — student
media censorship in your area, please contact us.
Endnotes
1) 484 U.S. 260
(1988).
2) Because of the retirement of
Justice Lewis Powell, Jr. in 1987, there were only eight sitting justices at the
time
Hazelwood
was argued instead of the usual nine.
3) 478 U.S. 675
(1986).
4)
Hazelwood,
484 U.S. at 270.
5) 393 U.S. 503
(1969).
6)
Hazelwood,
484 U.S. at 273.
7) Id. at 274-75.
8) Id. at 277.
9) Id. at 288.
10) Id. at 289.
11)
Captive
Voices, The Report of the
Commission of Inquiry into High School Journalism (J. Nelson ed.
1974).
12) Richard J. Peltz,
Censorship Tsunami Spares
College Media: To Protect Free Expression on Public Campuses, Lessons from the
"College
Hazelwood"
Case, 68 Tenn. L. Rev. 481
(2001).
13) See e.g.,
Hansen v. Ann Arbor Public
Schools, 293 F.Supp.2d 780
(E.D.Mich. 2003); Curry ex
rel. Curry v. School Dist. of the City of
Saginaw, 452 F.Supp.2d 723
(E.D.Mich. 2006).
14) More information about the
rights of underground newspaper publishers — and suggestions for avoiding
trouble — are available in the SPLC guide
Surviving
Underground:
http://www.splc.org/legalresearch.asp?id=40
15) More information for student
publishers of private, off-campus print and online media is available on the
SPLC Web site at:
http://www.splc.org/legalresearch.asp?subcat=5
16)
Hazelwood,
484 U.S. at 272-73.
17)
Dean v. Utica Community
Schools, 345 F.Supp.2d
799, 806 (E.D.Mich. 2001).
18)
Romano v.
Harrington, 725 F. Supp.
687 (E.D.N.Y. 1989)(finding that rights of student journalists who produced
newspaper after school and not for class credit rights were "less
limitable" than those of the students on the
Hazelwood
newspaper, even though both publications received school funding);
Lodestar v. Board of
Education, No. B-88-257
(D. Conn. March 10, 1989)(holding that school-sponsored publication might not be
"characterized as part of the school's curriculum" and
censored under the
Hazelwood
standard if its history and method of operation show it was an independent
student voice).
19)
Desilets v. Clearview
Regional Board of
Education, 137 N.J. 585,
590 (N.J. 1994).
20)
Perry Educ. Ass'n v.
Perry Local Educator's
Ass'n, 460 U.S. 37
(1983).
21) While some courts debate
whether there is a distinction between a "limited" and a
"designated" public forum, we use the terms interchangeably here.
See, e.g., Roberts v.
Haragan, 2004 WL 2203130
(N.D. Tex. Sept. 30, 2004).
22)
Desilets,
137 N.J. at 589. See also
Lodestar,
No. B-88-257 at 10 ("fair ground for litigation exists as to [the student
publication's] status ... as a ‘public forum' never validly
closed by school authorities");
Planned Parenthood of
Southern Nevada v. Clark County School
District, 941 F.2d 817
(9th Cir. 1991)(upholding the authority of school officials to limit
pregnancy-related advertising in student publications, but only after it had
determined that the publications in question had not been opened as public
forums).
23)
Hazelwood,
484 U.S. at 268.
24) Id. at 267-271
25) See, e.g.,
Lueneburg v. Everett School
District, 2007 WL 2069859
(W.D.Wash. July 13, 2007).
26)
Kincaid v.
Gibson, 236 F.3d 342 (6th
Cir. 2001).
27)
Draudt v. Wooster City
School District, 246
F.Supp.2d 820 (N.D. Ohio 2003);
Dean,
345 F.Supp.2d at 806.
28)
Hazelwood,
484 U.S. at 273.
29) Id.
30) See., e.g.,
Dean,
345 F.Supp.2d at 810.
31) Id. at 570.
32) Id.
33)
Desilets,
137 N.J. at 593.
34) 345 F.Supp.2d 799 (E.D.Mich.
2004).
35) See e.g.,
Planned
Parenthood, 941 F.2d at
829;
Dean,
345 F.Supp. at 813;
Hansen,
293 F.Supp.2d at 780.
36) Compare,
Fleming v. Jefferson County
School District, 298 F.3d
918, 926-928 (10th Cir. 2002),
cert
denied, 537 U.S. 1110
(2003), with Peck v.
Baldwinsville Central School
District, 426 F.3d 617,
631-632 (2nd Cir. 2005), cert. denied, 547 U.S. 1097 (2006). See also,
Busch v. Marple Newtown
School Dist., 2007 WL
1589507, *8 n. 15 (E.D.Pa. May 31, 2007)(discussing conflicts among
circuits).
37)
Hazelwood,
484 U.S. at 273 n. 6.
38) The Supreme Court's
recent decision in Morse v.
Frederick, 127 S.Ct. 2618,
2625-26 (2007), held that student expression that advocates illegal drug use or
that is lewd or vulgar (citing
Fraser,
478 U.S. at 685) are also unprotected by the First Amendment.
39) The text and citations for
these laws can all be found at: http://www.splc.org/law_library.asp
40)
Desilets v. Clearview
Regional Board of
Education, 266 N.J.Super.
531 (N.J. Super A.D. 1993);
affirmed on other
grounds, 137 N.J. 585, 590
(N.J. 1994).
41)
Lueneburg,
2007 WL 2069859 at *9.
42)
Hazelwood,
484 U.S. at 273 n. 7.
43) 110 ILCS 13/1 - 13/97.
(Effective June 1, 2008). As of January 2008, Oregon and California had also
passed laws protecting college student media as a result of the
Hosty
decision. The text and citations for these laws can all be found at:
http://www.splc.org/law_library.asp
44) More information about the
Hosty
case and
Hazelwood's
application to college student media can be found at:
http://www.splc.org/legalresearch.asp?subcat=4
45) A 2004 national study
sponsored by the Knight Foundations revealed, among other sobering statistics,
that more than a third of all high school students surveyed believed the First
Amendment went "too far" in guaranteeing freedom of speech and
freedom of the press. More information from the "Future of the First
Amendment" study is available at:
http://www.firstamendmentfuture.org/
46)
http://www.splc.org/legalresearch.asp?id=52
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