Fall 2007 - Legal Analysis
Vol. XXVIII, No. 3 - Page 30

Understanding student free-expression laws
Renewed push to pass state laws as courts chip away at First Amendment rights in schools

© 2007 Student Press Law Center

Arkansas California Colorado Iowa Kansas Massachusetts Oregon
Most student journalists and advisers are aware that student expression rights in school-sponsored high school student media were limited by the Supreme Court case Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Since that decision, seven states — Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon — have passed laws that limit the effects of the Hazelwood decision in their states and return a greater degree of press freedom to student editors. (A college press freedom bill in Illinois was sitting on the governor’s desk awaiting his signature as this article went to press in the summer of 2007. S.B. 729, 95th Gen. Assem., Reg. Sess. (Ill. 2007)). Nevertheless, distinctions exist between those laws, and both students and teachers have questions about how the laws work in general.

Chief among those questions: how can state laws (or, for that matter, local school policies, which work the same way as a state law but on a smaller scale) "trump" a United States Supreme Court decision?

In short, they don't. They exist independently. A student editor of a school-sponsored publication in a state with these laws is entitled to both the protection of The First Amendment and the protection of the state law.
To put it another way, Hazelwood establishes the minimum level of high school press freedom that the First Amendment requires. No government official — federal, state or local — may act in a way, nor may lawmakers pass a law or policy, that provides individuals with less free speech protection than that required by the First Amendment, as interpreted in Hazelwood. Nothing, however, prevents state lawmakers from passing a law that requires school and government officials in their state to provide student journalists with more rights than the constitution requires.

More recently, following a 2005 decision by the 7th U.S. Circuit Court of Appeals in Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc), cert. denied, 2006 WL 385624 (Feb 21, 2006), which raised questions about the legal protections available to some college student media — protections that had been widely recognized for nearly four decades — college students have looked to state law to shore up their free press protections as well.

Not all student free expression laws are the same and no student free expression law is perfect. Each of the existing state student free expression laws, however, is an improvement on the status quo in the wake of Supreme Court decisions limiting the First Amendment. In each of these seven states, the legislatures agreed that the First Amendment, as defined by the courts today, does not provide clear guidance to student journalists, advisers and school administrators about their rights and responsibilities. However, no two of these legislatures have attempt to define rights and responsibilities in exactly the same way. Some laws apply only to student editors, while some grant expression rights to students in general. Some laws require would-be censors to demonstrate an immediate threat of disruption, while others permit censorship where a student merely advocates for something that would be against school rules. Each of the laws have quirks and contours that could provide support for a controversial story — or trip up the journalist who is not careful to stay within its boundaries. In addition to these statutes, Pennsylvania and Washington have state regulations that could provide broader protection. See 22 Pa. Code Sec. 12.9 and Wash. Admin. Code sec. 180-40-215.


Arkansas: Ark. Stat. Ann. Secs. 6-18-1201 - 1204

1) What protection does this law offer to students? The Arkansas Student Publications Act requires public schools in Arkansas to adopt a "student publications policy" that recognizes "that students may exercise their right of expression," subject to the limitations and exceptions in the act (see question seven in this section).

2) What students are protected by this law? The law appears to cover all students subject to a "school board’s" rules and regulations, which would presumably include public elementary, intermediate and high school students. The law does not address the free speech and press rights of college students.

3) What types of student media are protected? The law protects "school-sponsored publications, whether such publications are supported financially by the school or by use of school facilities, or are produced in conjunction with a class." ASA Sec. 6-18-1203. The term "school-sponsored publications" is not further defined.

4) What protection does this law offer to advisers? None.

5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes.

6) Does the law provide any protection for the school against liability for what the paper publishes? No, although the school would most probably not be liable for what students publish under the basic tort law principle that liability follows control.

7) What would administrators need to prove before being able to censor a student publication under the law? School administrators can censor publications containing obscenity as to minors, defamation and invasion of privacy, as those terms are defined under state law. Additionally, a publication may be censored if it incites students in such a way that it creates a "clear and present danger" of the commission of unlawful acts; of the violation of lawful school regulations; or the material and substantial disruption of the orderly operation of the school. Note that these protections are essentially identical to the protection offered to independent student speech by the U.S. Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. 393 U.S. 503 (1969). ASA Sec. 6-18-1204.

8) Additional information about the law. The Arkansas law was enacted in 1996. More than ten years would pass before another student free expression bill would become law.

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California Calif. Educ. Code Sec. 48907

1) What protection does this law offer to students? The law provides two levels of speech protection: a general level to students in general, and a more nuanced level of protection to students on official school publications.
  1. To students in general: All students "shall have the right to exercise freedom of speech and of the press," including wearing symbols, the use of bulletin boards, and distributing written material.
  1. To student journalists on official publications: If a student is working on a publication that is produced in a class and distributed to the student body, the law specifies that the student editors of that publication are responsible for "assigning and editing" the content. It also states that the adviser is responsible for supervising the production of the newspaper and "maintain[ing] professional standards of English and journalism." Unless the content to be published is unprotected by the terms of the section, prior restraint (which is not the same as prior review) is expressly forbidden. Leeb v. Delong, 198 Cal.App.3d 47 (App. 1988).

2) What students are protected by this law? The law protects "students of the public schools" subject to the rules and regulations of a "governing board of a school district and each county board of education," which would presumably include public elementary, intermediate and high school students. Section 48907 does not address the rights of California’s college students. However, other California statutes, including Calif. Educ. Code Secs. 94367 (private colleges), 76120 (community colleges) and more specifically Calif. Educ. Code Sec. 66301 (public colleges), discussed below, do provide similar protection to college students.

3) What types of student media are protected? The law protects a broad variety of student expressive activities and explicitly states that the list provided in the law (which includes "bulletin boards," "printed material," "badges," and "official publications") is not exclusive. Moreover, the term "official school publications" is defined as "materials produced by students in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee," and would presumably include any type of "material," including print, online and electronic materials.

4) What protection does this law offer to advisers? None, but advisers are given the responsibility for "maintain[ing] the provisions of this section" with respect to official publications, but are given no protection from administrators who would seek to violate the rights of students under the section. Obviously, it is difficult to see how an adviser could maintain the provisions of the section that grant rights to students without some protection from an employer seeking to violate those rights. In fact, as this guide went to press, state journalism and First Amendment groups in California had drafted a proposed amendment to the law that would include such protection.

5) Does the law provide a specific cause of action for students to sue if there is a violation? No, but that has not precluded successful lawsuits from being filed. See, e.g., Smith v. Novato Unified Sch. Dist., No. A112083 (Cal. 1st. App. Dist. May 21, 2007). Also see Calif. Educ. Code Sec. 48950, known as the "Leonard Law," which provides students with an individual cause of action when they are subject to "disciplinary sanctions" for conduct protected by the state or federal constitution.

6) Does the law provide any protection for the school against liability for what student media publish? No, although a school that adheres to the law may escape liability for what students publish under the basic tort law principle that liability follows control.

7) What would administrators need to prove before being able to censor student media under the law? The law prohibits students from printing obscenity or defamation, as well as "material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school," a standard whose language was taken largely from the U.S. Supreme Court’s decision in Tinker v. Des Moines Indep. Comm. Sch. Dist. 393 U.S. 503 (1969).
One category that Tinker does not protect, but which is not specifically prohibited under California’s law, is material that "invades the rights of others." On the other hand, the statement that advisers "maintain professional standards of English and journalism" could impose an additional requirement on official publications, although it is difficult to determine from the law what "professional standards" means; but see Lopez v. Tulare Joint Union High Sch. Dist. Bd. of Trustees, 34 Cal. App. 4th 1302 (1995) (finding a film containing profanity did not meet "professional standards"). However, these standards should be determined by the adviser, not a school administrator.

8) Additional information about the law. California’s student expression law was the first in the nation and, in fact, predates the Hazelwood decision by over a decade. Following Hazlewood in 1988, the California Department of Education issued an advisory to school officials reminding them that, because of Section 48907, the Supreme Court ruling had little impact on the rights of California students. As the Superintendent of Public Instruction said at the time, "...California’s law bends over backwards to protect the student journalist." (A copy of the March 18, 1988, news release is available on the SPLC Web site at: http://www.splc.org/law_library.asp?id=6) In 2006, a parallel provision applicable to college students — Calif. Educ. Code. Sec. 66301 — was amended to explicitly prohibit prior restraint of student media on public college campuses, effectively preventing the expansion of the Hosty rationale to California.

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Colorado Colo. Rev. Stat. Sec. 22-1-120

1) What protection does this law offer to students? The law provides blanket free speech protection for students in schools and specific protections for "student publications" that are "written substantially by students" and made generally available throughout the school. Subsequent language in the statute seems to make clear that this definition is limited to school-sponsored material (see question 1(b) in this section).
  1. To students in general: The first line of the statute states that public school students "shall have the right to exercise freedom of speech and of the press." CRS Sec. 22-1-120(1).
  1. To student journalists on official student publications: Publications that are substantially written by students and distributed throughout the school are expressly declared public forums, which also strengthens the protections of theose publications under the First Amendment as defined in Hazelwood. Because only government property can be declared a forum, this language is further limited to those newspapers that the school sponsors. CRS Sec. 22-1-120(1)-(2). The law expressly states that student editors shall be responsible for determining the news, opinion, and advertising content of their publications subject to the limitations of this section (see question seven, below.) School officials are required to adopt and make available a written publications code, consistent with this law, that explains when, where and how students can distribute their material on campus.

2) Who is protected by this law? The law applies to "students of the public schools." CRS Sec. 22-1-120(1). Presumably, this applies to elementary through high school students. College rights are not addressed.

3) What types of student media are protected? The term "student publication" is not further defined by the law.

4) What protection does this law offer to advisers? None. The statute contains a definition of publication adviser as "a person whose duties include the supervision of school-sponsored student publications," but this is used only to determine who has the ability to require that the publication "maintain professional standards." CRS Sec. 22-1-120(5)(a)-(b). Also, see question six of this section.

5) Does the law provide a specific cause of action for students to sue if there is a violation? No. However, the express grant of forum status to student publications should dictate that a First Amendment lawsuit would turn on the standard adopted by the U.S. Supreme Court in Tinker v. Des Moines Indep. Comm. Sch. Dist. See CRS Sec. 22-1-120(2).

6) Does the law provide any protection for the school against liability for what the paper publishes? Yes. The law expressly forbids holding any district, employee, official, parent or guardian civilly or criminally liable for any "expression made by students in the exercise of freedom of speech or freedom of the press." CRS Sec. 22-1-120(7).

7) What would administrators need to prove before being able to censor a student under the law? On its terms, the law "shall not be interpreted to authorize the publication or distribution of the following:" obscenity; defamation; falsehoods about any non-public figure; expression that creates a clear and present danger of the commission of unlawful acts, the violation of lawful school regulations or the material and substantial disruption of school operations; or expression that violates the privacy rights of others or threatens violence against people or property. CRS Sec. 22-1-120(3).
Furthermore, the law contains a provision making it the adviser’s responsibility to supervise production and "maintain professional standards." CRS Sec. 22-1-120(5)(a). Another provision states that if a publication is part of a class, the law may not be interpreted to interfere with the authority of the adviser "to establish or limit writing assignments... and to otherwise direct and control the learning experience...." CRS Sec. 22-1-120(6).

8) Additional information about the law. Colorado’s law is the only one to expressly grant forum status to student publications. It is also one of the laws with a legislative history that indicates it was specifically passed as a response to Hazelwood.

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Iowa Iowa Code Sec. 280.22

1) What protection does this law offer to students? The law provides: (1) a blanket level of speech protection for all students; (2) restrictions for the content of publications in general; and (3) an additional set of provisions that set out rights for students on "official school publications." IC Sec. 280.22(1), (2), (3) and (5).
  1. To students in general: According to the statute, students have the right to freedom of speech "except as limited by this section." IC Sec. 280.22(1). The limitations of the section deal primarily with content in student publications, but also include a provision permitting a school to adopt "otherwise valid rules relating to oral communications." IC Sec. 280.22(8).
  1. To independent student journalists: Independent student journalists are covered under the general grant of rights, but the statute has specific limitations on what can be published by students. See question seven of this section for those limitations.
  1. To student journalists on official publications: Student editors of publications that are prepared for a class and distributed to the student body have the right to determine the content of their publications. IC Sec. 280.22(5) and (7). Additionally, except where otherwise stated in the code, official school publications are free from prior restraint (which is not necessarily the same as prior review). IC Sec. 280.22(3). School officials are required to adopt and make available a written publications code that explains when, where and how students can distribute their material on campus.

2) Who is protected by this law? The law appears to cover all "students of the public schools" subject to a "board of directors[’]" rules and regulations, which would presumably include public elementary, intermediate and high school students. The law does not address the free speech and press rights of college students.

3) What types of student media are protected? The definition of "official school publication" covers "material produced by students in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee." IC Sec. 280.22(7). This broad definition would presumably cover all types of student media.

4) What protection does this law offer to advisers? None specifically to advisers, but see question six of this section.

5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes.

6) Does the law provide any protection for the school against liability for what the paper publishes? Yes. The "public school district and school employees or officials" cannot be held liable in any lawsuit or prosecution against student expression, "unless the school employees or officials have interfered with or altered the content of the student speech or expression, and then only to the extent of the interference or alteration of the speech or expression." IC Sec. 280.22(6).

7) What would administrators need to prove before being able to censor student media under the law? The statute prohibits students from expressing or distributing obscenity; defamation, as defined by state law; or materials that encourage students to commit unlawful acts, violate lawful school regulations or cause the material and substantial disruption of the school. IC Sec. 280.22(2).
Additionally, for official school publications, the adviser is charged with supervising the newspaper’s production, "maintaining professional standards" of writing, and compliance with the law. IC Sec. 280.22 (5).

8) Additional information about the law. Note that the Iowa law prohibits materials that merely encourage the commission of unlawful acts, the violation of lawful school regulations, or the creation of a material and substantial disruption. This varies from the statutes in California and Colorado, which require that school officials show a "clear and present danger" of the commission of a violation — a much higher standard of evidence. Mere encouragement would not justify censorship in a public forum publication under Tinker.

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Kansas Kan. Stat. Ann. Sections 72.1504 - 72.1506

1) What protection does this law offer to students? The Kansas Student Publications Act states that "the liberty of the press in student publications shall be protected," and explicitly states that material cannot be censored merely because it is controversial. KSA 72.1506(a). Additionally, the statute states that student editors determine the content (both editorial and advertising) of student publications, subject to the other limitations of the law. KSA 72.1506(d).

2) Who is protected by this law? The law appears to cover all students attending school in "any public school district," which would presumably include public elementary, intermediate and high school students. The law does not address the free speech and press rights of college students.

3) What types of student media are protected? The definition of "student publication" includes "any matter which is prepared, substantially written, or published by students, which is distributed or generally made available, either free of charge or for a fee, to members of the student body, and which is prepared under the direction of a certified employee." KSA 72.1505(b) (emphasis added). This broad definition would presumably cover all types of student media, including print, online and electronic.

4) What protection does this law offer to advisers? Advisers may not be "terminated from employment, transferred, or relieved of duties imposed under this subsection" for refusing to censor in violation of, or limit student rights conferred by, the student free expression law. KSA 72.1506(d).

5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes.

6) Does the law provide any protection for the school against liability for what the paper publishes? Yes. Section (e) of 72.1506 states that "[n]o publication or other expression of matter by students in the exercise of rights under this act shall be deemed to be an expression of school district policy." It also provides the board of education, the school district and their employees cannot be held responsible in any civil or criminal action for student expression "under this act."

7) What would administrators need to prove before being able to censor student media under the law? The statute exempts from its protection defamation; obscenity; matter that "commands, requests, induces, encourages, commends or promotes conduct" that is a crime or would be grounds for suspension or expulsion as defined by state law; or which creates "material or substantial disruption of... normal school activity." KSA 72.1506(c).

8) Additional information about the law. One provision states that advisers of student publications "are responsible for teaching and encouraging free and responsible expression of material and high standards of English and journalism." KSA 72.1506(d)(emphasis added). This is something slightly different than saying advisers are responsible for "maintaining" those standards, as the California, Colorado and Iowa laws state.

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Massachusetts Mass. Gen. Laws Ann. ch. 71, Section 82

1) What protection does this law offer to students? The Massachusetts law is unique in that it is the only student free expression law without provisions directed specifically toward student publications. Instead, it states that the right to freedom of expression in public schools "shall not be abridged," then includes in the definition of freedom of expression "the rights and responsibilities of students... to write, publish, and disseminate their views."

2) Who is protected by this law? The law applies to students "in the public schools of the Commonwealth," and therefore would seem to apply to elementary through high school students. The law does not address the rights of college students.

3) What types of student media are protected? Students are permitted to "write, publish, and disseminate their views[.]" No restriction of that term is provided.

4) What protection does this law offer to advisers? None.

5) Does the law provide a specific cause of action for students to sue if there is a violation? No, though students should still be able to sue for a violation under existing state civil rights statutes.

6) Does the law provide any protection for the school against liability for what the paper publishes? Yes. The statute states, "no school officials shall be held responsible in any civil or criminal action for any expression made or published by students." It also states that no student exercise of speech rights shall be deemed an expression of school policy.

7) What would administrators need to prove before being able to censor a student newspaper under the law? The only enumerated exception to the rights conferred by the statute is that protected expression "shall not cause any disruption or disorder within the school."

8) Additional information about the law. Although it is the shortest of the student free expression laws, the Massachusetts statute likely offers some of the strongest protection by not including a laundry list of exceptions to free speech rights. The legislative history of the Massachusetts law makes clear that it was introduced specifically to limit the impact of Hazelwood in the Commonwealth. See Pyle By and Through Pyle v. South Hadley School Committee, 861 F.Supp. 157, 167 (D. Mass. 1994).

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Oregon H.B. 3279, 74th Leg. Assem., Reg. Sess. (Or. 2007) (enacted)

1) What protection does this law offer to students? The law grants free expression rights to student journalists on "school-sponsored media," which include broadcasts and publications prepared under the supervision of a school-appointed adviser. H.B. 3279 Secs. (1)(a), (1)(b), and (2).

2) Who is protected by this law? The law grants rights to any public high school or public college student who "gathers, compiles, writes, edits, photographs, records or prepares information for dissemination in school-sponsored media." H.B. 3279 Secs. (1)(b) and (2)(c).

3) What types of student media are protected? The law protects "school-sponsored media," defined as materials "prepared, substantially written, published or broadcast" by student journalists that are distributed or broadcast to the student body and are "prepared under the direction of a student media adviser." However, in the high school context, this expressly excludes media intended for use solely in the classroom where it is produced. H.B. 3279 Secs. (1)(a) and (2)(b). A student media adviser is someone "employed, appointed or designated by the school district to supervise, or provide instruction relating to, student media." H.B. 3279 Secs. (1)(c) and (2)(d).

4) What protection does this law offer to advisers? None.5) Does the law provide a specific cause of action for students to sue if there is a violation? Yes. A student can seek up to $100 in damages and a court order enforcing the provisions of the section. H.B. 3279 Sec. (5).

6) Does the law provide any protection for the school against liability for what the paper publishes? No, although a school that adheres to the law may escape liability for what students publish under the basic tort law principle that liability follows control.

7) What would administrators need to prove before being able to censor student media under the law? Prior to censoring, administrators will need to show that what a student wants to publish is defamatory; constitutes an unwarranted invasion of privacy; violates state or federal laws or regulations; or incites students in a way that creates a clear and present danger of the commission of unlawful acts, the violation of lawful school policies or the material and substantial disruption of the orderly operation of the school. H.B. 3279 Sec. (4).
The law further specifies that a school official’s forecast of a clear and present danger of material and substantial disruption must be based on "specific facts, including past experience in the school and current events influencing student behavior, and not on undifferentiated fear or apprehension." H.B. 3279 Sec. (4).

8) Additional information about the law. Oregon’s law, signed into law in July 2007, is the most recent student free expression law in the country and is the first to protect both high school and college student journalists in the same statute.

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