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Spring 2006 - High School Censorship
Vol. XXVII, No. 2 - Page 6
Going public
‘Public forum’ publications revel in pumped-up press power
© 2006 Student Press Law Center
By Emily Walker, SPLC staff writer
Vol. XXVII, No. 2 - Page 6
Going public
‘Public forum’ publications revel in pumped-up press power
© 2006 Student Press Law Center
By Emily Walker, SPLC staff writer
The pen may be the mightiest weapon for high
school journalists, but two little words can determine how mighty.
Public forum.
Those words can mean the difference between a newspaper that creates new boundaries for high school journalism and a paper that rests uncomfortably in boundaries set by school officials.
Those words can mean the difference between an OK high school newspaper and a great one.
“Public forum” may not be as titillating as the other two words that have been causing some controversy recently in high school media — oral sex — but they are more important because they can actually dictate whether a high school journalist has the First Amendment protection to write about oral sex (or teen pregnancy, divorce, teen suicide, etc.).
Since 1988, becoming a public forum has been crucial for school-sponsored student publications looking for strong First Amendment protection.
In 1988, the U.S. Supreme Court upheld the rights of public high school administrators at Hazelwood East High School in suburban St. Louis, to censor stories concerning teen pregnancy and the effects of divorce on children from a student newspaper.
In Hazelwood School District v. Kuhlmeier, the Supreme Court said the rights of public high school students are not necessarily the same as those of adults in other settings. The Court found the student paper at Hazelwood was not a “forum for public expression,” but it left open the possibility that a student publication could be such a forum, and if it was, students would have strong First Amendment protection.
So, what’s a public forum?
In Hazelwood, the Court decided school-sponsored publications have broad free speech rights only when they are recognized as public forums, but often school officials and student journalists find themselves at odds over whether a given high school newspaper, magazine or yearbook is a public forum.
The broad definition of a public forum is a government-owned venue that the government permits members of the public to use to express views and ideas without censorship, said Adam Goldstein, Student Press Law Center legal fellow. High school student publications can be “limited” or “designated” public forums, meaning student editors have a right to speak freely in their pages.
In high school publications, public forum refers to who has ultimate control over what runs in the paper, said Mark Goodman, SPLC executive director.
“What it really means is who has authority to make content decisions,” he said. “Is it students or school officials?”
At some high school newspapers, students and administrators disagree about who has the ultimate authority to determine content of a student publication.
One district superintendent in St. Clair Shores, Mich., wanted Lake Shore High School’s student newspaper to stop printing a statement that said the paper is free from administrative censorship and “an open forum for student expression.”
Brian Annable, Lake Shore Public School’s superintendent, said he felt administrators — not students — should have final say over what the paper prints. He said that because the paper functions as part of a class, school officials should be in charge of what is printed.
“[The newspaper] is part of the curriculum. It’s got a faculty member. It’s there as a practice vehicle to facilitate the education process,” Annable said.
Student press advocates say that just because a student newspaper is part of a class does not automatically mean the newspaper is not a public forum.
Cheryl Pell, director of the Michigan Interscholastic Press Association said to assert that a newspaper cannot be declared a public forum simply because it is part of a school curriculum is crazy.
“All education is practice, but do you want them to practice the wrong things?” Pell said. “Wouldn’t you rather them practice the right things like the First Amendment?”
Goldstein said school-sponsored publications can “absolutely” be public forums.
“Students can be graded on their classwork but still have the freedom to publish whatever they choose,” Goldstein said.
School-sponsored student publications will still be entitled to strong First Amendment protection and be exempt from the limitations of Hazelwood if they are recognized as public forums.
Establishing a forum
At Lake Shore, staff members of The Shoreline argued that their paper is a public forum. Andrew Mardis, a staff member of the The Shoreline, said the paper had been a public forum by practice because students are in charge of editorial decisions and by policy because each issue contains a statement calling the paper a public forum.
Those two key factors — policy and practice — are what determine whether a student publication will be legally recognized, Goodman said.
If a paper has not been subjected to administrative prior review for years and has a public forum statement it regularly runs, there is a good chance that paper is a legal public forum. However, if the school district has a contradicting policy, such as one that states the principal can read stories before they are published or can overrule editors’ decisions, the newspaper’s practice might not hold up in court, Goodman said.
If the school district does have a restrictive policy that gives control of the paper to someone other than students, even if that person is the faculty adviser, Goodman said he recommends students attempt to get the policy switched to a more press-friendly policy.
“This is a political battle and you’re trying to persuade the school to do this,” Goodman said. “The fact that it’s the right thing to do may not be all that important to them.”
He said students should approach administrators first to try to persuade them to give greater control of the paper to the students. Such a policy does not have to give unlimited control to students to satisfy public forum requirements. Material that is libelous, obscene or substantially disruptive can still be prohibited.
Goodman recommends gaining support from parents, teachers and professional journalists in order to convince school officials to ban restrictive speech policies.
If students and teachers believe administrators cannot be swayed to change the school policy, the students can publish the public forum statement in their publication to try to show their practice of operating as a forum, Goodman said.
Student journalists at Everett High School in Everett, Wash., are in the midst of their own battle over their newspaper’s public forum status.
In 2005 school officials told staff of the Kodak to pull the paper’s public forum statement from its masthead because they said it contradicted a district policy which provides that the paper could be read by an administrator before it went to print.
Two student editors of the Kodak, Claire Lueneburg and Sara Eccleston, refused to yank the statement. They said their paper was a public forum since at least 1988 because staff members consistently ran a public forum statement in each issue. They also said that the last time a principal reviewed the paper was almost two decades ago.
School officials disagree.
“We have statements from previous principals of extensive review of the paper in the past on a continuing basis. That goes back quite a long way,” said Gay Campbell, district spokeswoman.
Campbell said since 1998, the district had a prior review policy in place that gives power to the principal to control content. The students argue that because the policy was never enforced, the newspaper remained a public forum for students, according to an Associated Press article.
Staff members of the Kodak filed a lawsuit against the Everett School District saying their free speech rights were violated. Lueneburg said the case is not scheduled to go to court until 2007. In the meantime the two editors are producing an underground newspaper.
Why not a public forum?
Free press advocates contend that high school newspapers that have more freedom can tackle heavy topics, which better prepare them for college and the world of professional journalism.
“In order to do the good reporting, the hard investigative work, to editorialize, to criticize — you need to be independent,” said David Wallner, faculty adviser of the Norse Star, the student newspaper for Stoughton High School in Stoughton, Wis.
So why would administrators not want to recognize their student newspaper as a public forum?
Often, they are scared, Wallner said.
“It’s so sad to see administrators who are fearful,” he said. “A lot of administrators see high school newspapers as public relations tools and they are very afraid of losing their jobs and afraid of losing control.”
Some administrators think the easiest way to quell complaints is to make the student newspaper a source for only positive, non-controversial stories, Goldstein said.
“The problem with that viewpoint is that a newspaper that never offends anyone isn’t doing a very good job of reporting the news, so students learn very little in that environment,” he said.
Goodman said if students do not have control over their paper, it would be a struggle to have the paper recognized as a source of legitimate news.
“A newspaper that is not a public forum is never going to be perceived as anything more than a propaganda tool for administrators,” Goodman said.
The Norse Star, which is an award-winning student newspaper, has been a public forum for the three decades during Wallner’s tenure. But maintaining a paper that is a true public forum has not always been easy, Wallner said.
Each year, Wallner lectures his new newspaper staff on the battles the Norse Star has had to fight to remain a public forum, so they do not take their free speech rights for granted.
He tells them how, in 1987, after the paper ran an ad from a gay support group, a businessman who also advertised with the paper convinced some other local businesses to pull their ads from the Norse Star because he did not approve of the gay ad.
But staff of the Norse Star knew pulling the ad in order to keep other advertisers would be giving control of editorial content to someone else.
“The kids and I stuck to our guns and we felt like [the gay support group ad] was a reasonable thing to run,” Wallner said.
After the Hazelwood decision in 1988, the Norse Star began running an editorial statement declaring the paper a public forum. But still, Wallner said, he butted heads with principals and superintendents who wanted the paper to steer clear of controversial topics.
“When I started this way back then, I said ‘this is going to be independent,’” Wallner said. “I’ve told my administrators for years ‘hands off or I’ll see you in court.’”
In the early ‘90s, administrators were objecting more frequently to content, so Wallner suggested he and the yearbook adviser and several others meet with administrators to get a more agreeable policy in place.
In the end, policy and precedent were on the newspaper’s side, because the new policy, which took more than a year to hammer out, stipulated the paper would operate as a public forum with no prior review. To show his gratitude to the principal who finally agreed to the free speech-friendly policy, Wallner nominated him for a local free press award.
Keeping the Norse Star a public forum was something Wallner was willing to fight for because he knew the importance of public forum status. Not being a public forum would mean having a paper that produced cookie-cutter news, he said.
“So much in school is Mickey Mouse. Not very relevant. Too many damn worksheets,” Wallner said. “This is real.”
Free press advocates agree.
Public forum.
Those words can mean the difference between a newspaper that creates new boundaries for high school journalism and a paper that rests uncomfortably in boundaries set by school officials.
Those words can mean the difference between an OK high school newspaper and a great one.
“Public forum” may not be as titillating as the other two words that have been causing some controversy recently in high school media — oral sex — but they are more important because they can actually dictate whether a high school journalist has the First Amendment protection to write about oral sex (or teen pregnancy, divorce, teen suicide, etc.).
Since 1988, becoming a public forum has been crucial for school-sponsored student publications looking for strong First Amendment protection.
In 1988, the U.S. Supreme Court upheld the rights of public high school administrators at Hazelwood East High School in suburban St. Louis, to censor stories concerning teen pregnancy and the effects of divorce on children from a student newspaper.
In Hazelwood School District v. Kuhlmeier, the Supreme Court said the rights of public high school students are not necessarily the same as those of adults in other settings. The Court found the student paper at Hazelwood was not a “forum for public expression,” but it left open the possibility that a student publication could be such a forum, and if it was, students would have strong First Amendment protection.
So, what’s a public forum?
In Hazelwood, the Court decided school-sponsored publications have broad free speech rights only when they are recognized as public forums, but often school officials and student journalists find themselves at odds over whether a given high school newspaper, magazine or yearbook is a public forum.
The broad definition of a public forum is a government-owned venue that the government permits members of the public to use to express views and ideas without censorship, said Adam Goldstein, Student Press Law Center legal fellow. High school student publications can be “limited” or “designated” public forums, meaning student editors have a right to speak freely in their pages.
In high school publications, public forum refers to who has ultimate control over what runs in the paper, said Mark Goodman, SPLC executive director.
“What it really means is who has authority to make content decisions,” he said. “Is it students or school officials?”
At some high school newspapers, students and administrators disagree about who has the ultimate authority to determine content of a student publication.
One district superintendent in St. Clair Shores, Mich., wanted Lake Shore High School’s student newspaper to stop printing a statement that said the paper is free from administrative censorship and “an open forum for student expression.”
Brian Annable, Lake Shore Public School’s superintendent, said he felt administrators — not students — should have final say over what the paper prints. He said that because the paper functions as part of a class, school officials should be in charge of what is printed.
“[The newspaper] is part of the curriculum. It’s got a faculty member. It’s there as a practice vehicle to facilitate the education process,” Annable said.
Student press advocates say that just because a student newspaper is part of a class does not automatically mean the newspaper is not a public forum.
Cheryl Pell, director of the Michigan Interscholastic Press Association said to assert that a newspaper cannot be declared a public forum simply because it is part of a school curriculum is crazy.
“All education is practice, but do you want them to practice the wrong things?” Pell said. “Wouldn’t you rather them practice the right things like the First Amendment?”
Goldstein said school-sponsored publications can “absolutely” be public forums.
“Students can be graded on their classwork but still have the freedom to publish whatever they choose,” Goldstein said.
School-sponsored student publications will still be entitled to strong First Amendment protection and be exempt from the limitations of Hazelwood if they are recognized as public forums.
Establishing a forum
At Lake Shore, staff members of The Shoreline argued that their paper is a public forum. Andrew Mardis, a staff member of the The Shoreline, said the paper had been a public forum by practice because students are in charge of editorial decisions and by policy because each issue contains a statement calling the paper a public forum.
Those two key factors — policy and practice — are what determine whether a student publication will be legally recognized, Goodman said.
If a paper has not been subjected to administrative prior review for years and has a public forum statement it regularly runs, there is a good chance that paper is a legal public forum. However, if the school district has a contradicting policy, such as one that states the principal can read stories before they are published or can overrule editors’ decisions, the newspaper’s practice might not hold up in court, Goodman said.
If the school district does have a restrictive policy that gives control of the paper to someone other than students, even if that person is the faculty adviser, Goodman said he recommends students attempt to get the policy switched to a more press-friendly policy.
“This is a political battle and you’re trying to persuade the school to do this,” Goodman said. “The fact that it’s the right thing to do may not be all that important to them.”
He said students should approach administrators first to try to persuade them to give greater control of the paper to the students. Such a policy does not have to give unlimited control to students to satisfy public forum requirements. Material that is libelous, obscene or substantially disruptive can still be prohibited.
Goodman recommends gaining support from parents, teachers and professional journalists in order to convince school officials to ban restrictive speech policies.
If students and teachers believe administrators cannot be swayed to change the school policy, the students can publish the public forum statement in their publication to try to show their practice of operating as a forum, Goodman said.
Student journalists at Everett High School in Everett, Wash., are in the midst of their own battle over their newspaper’s public forum status.
In 2005 school officials told staff of the Kodak to pull the paper’s public forum statement from its masthead because they said it contradicted a district policy which provides that the paper could be read by an administrator before it went to print.
Two student editors of the Kodak, Claire Lueneburg and Sara Eccleston, refused to yank the statement. They said their paper was a public forum since at least 1988 because staff members consistently ran a public forum statement in each issue. They also said that the last time a principal reviewed the paper was almost two decades ago.
School officials disagree.
“We have statements from previous principals of extensive review of the paper in the past on a continuing basis. That goes back quite a long way,” said Gay Campbell, district spokeswoman.
Campbell said since 1998, the district had a prior review policy in place that gives power to the principal to control content. The students argue that because the policy was never enforced, the newspaper remained a public forum for students, according to an Associated Press article.
Staff members of the Kodak filed a lawsuit against the Everett School District saying their free speech rights were violated. Lueneburg said the case is not scheduled to go to court until 2007. In the meantime the two editors are producing an underground newspaper.
Why not a public forum?
Free press advocates contend that high school newspapers that have more freedom can tackle heavy topics, which better prepare them for college and the world of professional journalism.
“In order to do the good reporting, the hard investigative work, to editorialize, to criticize — you need to be independent,” said David Wallner, faculty adviser of the Norse Star, the student newspaper for Stoughton High School in Stoughton, Wis.
So why would administrators not want to recognize their student newspaper as a public forum?
Often, they are scared, Wallner said.
“It’s so sad to see administrators who are fearful,” he said. “A lot of administrators see high school newspapers as public relations tools and they are very afraid of losing their jobs and afraid of losing control.”
Some administrators think the easiest way to quell complaints is to make the student newspaper a source for only positive, non-controversial stories, Goldstein said.
“The problem with that viewpoint is that a newspaper that never offends anyone isn’t doing a very good job of reporting the news, so students learn very little in that environment,” he said.
Goodman said if students do not have control over their paper, it would be a struggle to have the paper recognized as a source of legitimate news.
“A newspaper that is not a public forum is never going to be perceived as anything more than a propaganda tool for administrators,” Goodman said.
The Norse Star, which is an award-winning student newspaper, has been a public forum for the three decades during Wallner’s tenure. But maintaining a paper that is a true public forum has not always been easy, Wallner said.
Each year, Wallner lectures his new newspaper staff on the battles the Norse Star has had to fight to remain a public forum, so they do not take their free speech rights for granted.
He tells them how, in 1987, after the paper ran an ad from a gay support group, a businessman who also advertised with the paper convinced some other local businesses to pull their ads from the Norse Star because he did not approve of the gay ad.
But staff of the Norse Star knew pulling the ad in order to keep other advertisers would be giving control of editorial content to someone else.
“The kids and I stuck to our guns and we felt like [the gay support group ad] was a reasonable thing to run,” Wallner said.
After the Hazelwood decision in 1988, the Norse Star began running an editorial statement declaring the paper a public forum. But still, Wallner said, he butted heads with principals and superintendents who wanted the paper to steer clear of controversial topics.
“When I started this way back then, I said ‘this is going to be independent,’” Wallner said. “I’ve told my administrators for years ‘hands off or I’ll see you in court.’”
In the early ‘90s, administrators were objecting more frequently to content, so Wallner suggested he and the yearbook adviser and several others meet with administrators to get a more agreeable policy in place.
In the end, policy and precedent were on the newspaper’s side, because the new policy, which took more than a year to hammer out, stipulated the paper would operate as a public forum with no prior review. To show his gratitude to the principal who finally agreed to the free speech-friendly policy, Wallner nominated him for a local free press award.
Keeping the Norse Star a public forum was something Wallner was willing to fight for because he knew the importance of public forum status. Not being a public forum would mean having a paper that produced cookie-cutter news, he said.
“So much in school is Mickey Mouse. Not very relevant. Too many damn worksheets,” Wallner said. “This is real.”
Free press advocates agree.
“[Being a public forum] gives responsibility to the students in question,” Goldstein said. “It insulates the school from liability and it parallels the system of American government. Students are citizens, too, after all.”
The Tinker, Fraser and Hazelwood standards
Three major U.S. Supreme Court cases have laid the groundwork for the types of free speech students — and student journalists — are entitled to.
Tinker v. Des Moines Independent Community School District was a 1969 U.S. Supreme Court case that upheld public school students’ First Amendment rights. The case was centered on students who wore black armbands to school to symbolically protest the Vietnam War. In its decision, the Court said students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” The Court said free speech of students could only be limited when the speech in question “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Bethel School District No. 403 v. Fraser in 1986 upheld the suspension of Matthew Fraser, a high school student disciplined for a sexually provocative speech he made to 600 students during a school assembly. The day after the speech, the school suspended Fraser for violating a school rule prohibiting “conduct which materially and substantially interferes with the educational process ... including the use of obscene, profane language or gestures.” The Court found Fraser’s speech constituted the kind of material disruption Tinker forbids.
Hazelwood School District v. Kuhlmeier in 1989 was the first case specifically addressing the rights of high school student media. The case began when a high school principal censored several articles in a student newspaper that dealt with teen pregnancy and divorce. The Court held that school officials have the right to censor school-sponsored publications that have not been opened as public forums as long as the censorship is “reasonably related to legitimate pedagogical concerns.” The Court distinguished Hazelwood from Tinker by saying the school-sponsored newspaper was a different form of speech than the armbands.
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