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 â€” 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 â€” 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 â€” they have reached the age of reason, after all â€” ought to have protection against censorship as defined in California’s educational code. This ruling ought to apply to all states â€“ 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 â€” but respect.
xpost: 5th Estate