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.
Top
Colorado Colo. Rev.
Stat. Sec. 22-1-1201)
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).
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.
Top
Iowa Iowa Code Sec.
280.221)
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).
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.
Top
Kansas Kan. Stat. Ann. Sections
72.1504 - 72.15061)
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.
TopMassachusetts Mass. Gen. Laws
Ann. ch. 71, Section 821)
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).
Top
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.
Top
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