Court backs school journalist: Good news for student journos?

Should a high school senior who writes an incendiary column for his school paper be considered a full citizen worthy of First Amendment protection against school officials censuring his work?

Despite previous U.S. Supreme Court rulings to the contrary, at least one state court says “yes.” [Read the unanimous decision.]

Should student journalists in the other 49 states, who face censorship under the U.S. Supreme Court’s Hazelwood decision, expect to see this affect them any time soon?

The background: A California Court of Appeal told a school district this week that its censorship of a student’s published opinion violated a state educational code that “mandates that a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.”

And boy, that student’s opinion column in this case was really a stinker, offending numerous constituencies.

In 2002, Andrew D. Smith, a Novato High School senior, wrote a controversial commentary for his school’s student newspaper, The Buzz. According to an Editor & Publisher story, Smith’s column about immigration contained this passage: “It can’t be hard to find and detain the people who can’t speak English. If a person looks suspicious than just stop them and ask a few questions, and if they answer ‘que?,’ detain them and see if they are legal.” [sic; see other passages here.]

You can imagine what happened next. Latino parents complained to the principal. Then, says E&P (Mark Fitzgerald did a great job on this story):

The schools superintendent ordered the confiscation of all undistributed copies of The Buzz. The district wrote an apologetic letter that said the article had violated its own code and the state statute on student free speech — which would be its undoing before the appeals court. Finally, the school hosted a meeting where kids and parents could vent about the article, and where, so the lawsuit claimed, Smith was denounced and reprimanded.

Smith’s column was not subjected to prior restraint, which is different from prior review. An important point: The principal had reviewed and approved Smith’s piece for publication in The Buzz. That approval probably was granted because the state’s education code says, according to E&P:

Prior restraint by school authorities is forbidden unless it is obscene, libelous, slanderous, or constitutes sexual harassment or a “clear and present danger that students will be incited to commit unlawful acts on school premises.”

Yet, after the fact, the principal backtracked and ordered confiscation of all remaining published copies. The court ruled this illegal. It ordered nominal damages of $1 to Smith and relieved his family of a lower court’s order to pay the school district’s legal costs of about $20,000.

A quick-hit reaction to the ruling might be this:

It is the first case in a few decades after Hazelwood in 1988 to provide First Amendment protections to high school journalists from school officials’ interference and censorship. That’s good, because student journalists need to understand and believe that the Constitution applies to every citizen. It’s a basic civics lesson.

Student journalists also need to understand that over the past few decades the ability and desire to question authority has been either taken from them by courts or beaten out of them by administrators.

Questioning authority is the most important part of a journalist’s job description, which, over the past decade, seems to have been bred out of many journalists in the professional ranks. That may be because when the pros were high school and college journalists, they faced increasingly stringent restrictions by “educational” administrators out to the protect their schools’ “good name.”

Perhaps the pros got used to not being able to challenge authority effectively. (I know, I know … layoffs and cutbacks because of revenue issues in newspapers haven’t helped their ability to question authority, either.)


The Smith case was a state court decision on an issue of state law. Consequently, it would not advance to the U.S. Supreme Court, Peter Scheer told me. He’s the executive director of the California First Amendment Coalition.

“If this should ever advance to the Supreme Court,” he said, “it’s likely the result would be opposite.” At the federal level, he said, the Supremes have shown no inclination to reverse Hazelton’s position that school-financed student newspapers should be subject to censorship because the school board is, in effect, the publisher. The only logical route of appeal for the school district would be the California Supreme Court, he said.

States desiring First Amendment protection from censorship for high-school journalists would have to act as California did — codify it in state law, he said. A Student Press Law Center spokesman told me efforts to trump Hazelwood are under way or being actively discussed in Washington, Oregon, Illinois, Minnesota, New York and Pennsylvania.

High school journalists — they have reached the age of reason, after all — ought to have protection against censorship as defined in California’s educational code. This ruling ought to apply to all states – but teachers and principals ought also to have sufficient common sense and experience to to recognize the teachable moments.

That the Novato principal and others apparently read and approved Smith’s immigration column without recognizing a teachable moment is the real lesson here.

Teach him to report carefully. Teach him to write well. Teach him the difference between ungrounded, shoot-from-the-hip opinion and well-constructed opinion people may still vehemently disagree with — but respect.

xpost: 5th Estate

19 replies »

  1. You keep using that word “teach.” It’s a word I like. It’s also a word that we both know isn’t uniformly applicable to all.

    In theory I do like the idea that we teach kids to question authority and think for themselves and believe in the Constitution. In practice, though, I just don’t think I believe that children are citizens. Citizens in training, maybe, but we’re talking about a class of people who are not enfranchised and who have entire bodies of legal structures (like juvenile justice systems) arrayed to protect them because, well, they’re kids and can’t be held responsible.

    So I don’t think it’s really a stretch to suggest that Constitutional protections don’t (or shouldn’t) apply to them as they do to fully enfranchised adult citizens.

    The case here is one of bad journalism, to say the least. But let’s consider that the same kinds of rules that we apply here will also be applied in situations like the Janis Adams case, which I’ve written about at Dr. Slammy in 2008.

    The can here is big enough to hold all the worms in the world, and faced with a choice between a child’s Constitutional right to deprive his fellow students of an education and a reasonable standard that says until you reach the age of enfranchisement you’re working with a set of “training rights” that are appropriate to your status, I’m sorry, but I’m all in favor of kids being kids and being treated as such.

  2. Children are special. They are not adults. Special rules apply in their case for their own protection and the protection of others.

    Under 21 and I cannot ‘see’ an adult but I do see very special and wonderful beings who need the best from adults to ensure their journey to adult status is a good one.

    I certainly think that children are worthy of respect and absolutely should not be taken advantage of because they are de facto children.

  3. I don’t see anybody arguing that they should be taken advantage of or that they shouldn’t be accorded the respect that goes with their status.

    But if we’re going to argue anything more, I’m going to need somebody to explain the rationale for extending the vote to six year-olds.

  4. Some 6 year olds are probably more deserving of the vote than certain adults I suspect.

    I certainly think that the status of children is a big issue for all countries to consider. In times of war, uncertainty, fractured societies, dislocation etc they are the very ones who are accorded the least amount of status and thus are taken advantage of. Child advocacy is growing here in the UK as we begin to understand and see the terrible injustices that have taken place historically involving young people.

    We now know more so we listen more to their voices.

  5. I’m really not sure what your argument is. There’s a context for what’s being proposed, or at least discussed, but your response makes it sound like somebody here is advocating bringing back Industrial Revolution-style child labor practices. The question here is whether or not minors should have full legal standing as enfranchised adults with respect to issues like the First Amendment (and I suppose, the Second, now that I think about it), not whether they should have to abandon their basic HUMAN rights.

  6. Depends on the school, depends on the paper.

    Some high school papers are produced by students enrolled in journalism classes as part of the curriculum, with the teacher and school effectively operating as editor and publisher. The hoary old cliché is that freedom of the press belongs to those who own one.

    Others are largely or entirely self-funded through subscriptions, ad sales, or student activity fees. Even the Hazelwood decision drew a distinction between papers that were, by policy or custom, a teaching tool, and those that were, by policy or custom, a free forum for student opinion.

    I was lucky enough to edit one of the latter. It sounds like, in this narrow case and with specific exceptions, California has as an explicit policy that student newspapers are organs for student opinion. So this decision is not, at least broadly, inconsistent with Hazelwood. Other states, other schools, I wouldn’t necessarily expect it to go the same way.

    I’m a little torn, honestly. If the courts rule broadly that schools cannot censor — or edit, depending on your take — student papers, more schools will simply opt not to have one. But at the same time, that’s becoming ever less relevant, because students can go on MySpace, form a collaborative blog, or build a news site without the school’s aegis or resources and beyond the school’s control.

  7. It seems to me that if you apply training wheels to the First Amendment, you have essentially abrogated it entirely. The only sense in which people under 18 are less than full citizens, as far as I can see, is that they cannot vote; that is, they are considered incapable of making civic decisions that will affect us all. (Given that the same argument was often used in the past for women, blacks, and those who did not own property, we should be careful how we apply such a rationale, even though it seems self evident to me. And of course, 18 is arbitrary; I couldn’t vote until I was 21.)

    Juvenile courts, child-labor laws, and similar special legal considerations are not diminutions of young people’s rights as citizens, but rather additional protections provided because they are not yet fully developed. But disallowing free speech provides no similar protection, while allowing unhindered free speech teaches that the best antidote to falsehood is truth, not censorship—in the best Miltonian tradition.

    A high-school teacher (like any good editor) should discuss the implications of a bad piece like this one, but if the student wants to publish it, the remedy should be a reply written by another student.

  8. Two points:
    1) Children do not face the same legal responsibilities and liabilities as enfranchised adults – unless they’re, oh, say 18 year old high school seniors – then what’s the ruling? If you’re a 17 year old writing an editorial for the school newspaper one week and an 18 year old writing one the next, does the playing field change? Logic says yes. I’ll be interested to see how courts rule – and how school boards and principals apply that ruling….
    2) The rights and responsibilities of freedom of speech – especially the right to question authority – should be de rigeur teaching for all student newspaper reporters and editors whether the paper is part of a curriculum or run as independent organs of information and opinion. The erosion of the right of free inquiry is the most dangerous aspect of this entire scenario that is playing out.

  9. Amen on #2, Jim. Very dangerous! And #1 is an interesting question, similar to the question of treating a minor as an adult when charged with a particularly heinous crime (but not identical).

    Oh, neglected to mention: I agree with Sam that minors should have full Second Amendment rights, too. That is, if they’re members of the National Guard, they should certainly be allowed to keep and bear arms.

  10. What bothers me is not that schools can censor student papers, but how it has been used. My high school cut an editorial supporting the formation of a gay-straight alliance in the high school that cited the relevant state laws and discussed how it could benefit the students, while avoiding any sort of condemnation of the administration. There was a small undercurrent of support already in the student population and nothing to really indicate that it would be a disruption – there were already petitions circulating and board meetings being held. But, the Board of Education was completely opposed to its formation and we had a sinking suspicion that it was cut to keep student support low and prevent others from knowing what laws the Board was violating. They didn’t give a reason why the piece was unacceptable.

  11. Sam,

    I share your outrage on the Adams case, and I’d probably want to do the same thing you would: discipline and if necessary charge with criminal conduct the perpetrators. It appears to be about harassment that should be impermissible for anyone, minor or not, so I don’t understand the judge’s reasoning. (Did you find out more about the case after your post?)

    Free speech is ideally about the free exchange of competing ideas (even if some ideas are repugnant), and it does not extend to endangerment or personal harm—as in “fire in a crowded theatre.” It certainly sounds like that’s what happened to Adams, and she was not protected by the justice system.

    The case also raises the interesting question of whether someone who chooses to remain anonymous thereby gives up First Amendment protections. If I can’t compete directly with you about your ideas because I don’t know who you are or how to reach you, is that a different ball game? Unless it reaches some clear level of personal harm, I think not, but (as we all know from nasty blog commenters) it’s certainly a tempting thought.

  12. Robert, the court seems to think it’s protected speech. It’s satire, or whatever, so it’s protected. This means that we have a choice:

    a) live with it
    b) work on defining satire
    c) have a good hard look at the rights that attend certain life stages

    A is not acceptable, period. If I had a kid in that school I’d have sued the district by now for tolerating this level of disruption. B is a disaster waiting to happen. Do YOU want Alito, Roberts, Scalia and Justice Tom taking a crack at that one?

    Your argument that we don’t take anything away from minors except the vote isn’t persuading me. First off, that’s a BIG thing. And I know you didn’t just try and draw parallels between kids and blacks, women, and the poor. Are you arguing that a six year-old is as capable of exercising the franchise as a adult black or woman?

    Further, we don’t let minors drive until they’re 16 (and if you want to raise that to 18 I’m fine with it). We don’t let them drink until they’re 21. I don’t think they can buy property, can they? Borrow money?

    Maybe withholding rights until they’re adults teaches them a different lesson – responsibility.

  13. This article really made me think and for that I thank you.

    Once again I have pondered on the rights of children as properly recognised citizens and how our changing social, political, and environmental landscapes have helped contribute to the marginalization and disenfranchisement of children everywhere.

    If, from the outset we recognised that when we bring children into this world they are real citizens with a real value then, perhaps, a real journey could begin in solving some of the political issues that are always with us. Child hunger, famine, poverty, the so said ‘feral’ children of the poor, some of this could, perhaps, be addressed IF before conception a man or woman were given to understand what it means to bring a child citizen into this world.

    In my experience a child will often think of his responsibilities before his rights and there are, I believe, studies to support this. If a child is taught from the get go that he has rights too and ever evolving greater rights at key stages perhaps the growth of the citizen could be better guaranteed and we just might end up with real thinkers as leaders everywhere.

    As I said there are some 6 year olds who have a better grasp of life than many an adult who has been given full citizenship rights over a large, almost hidden, group of special citizens – OUR children.

  14. Okay, Elaine, let me ask three questions of you:

    1: What should the legal voting age be?
    2: What should the legal driving age be?
    3: What should the legal drinking age be?

  15. Elaine,

    Thank you. You seem to support the idea that children are not endowed will full social rights until they reach majority (or nearly so). This was my point all along.