The First Amendment to the U.S. Constitution protects free speech and press freedom of all Americans, including students in school. Although the U.S. Supreme Court has made clear these rights are not unlimited, it has also affirmed neither “students [nor] teachers shed their Constitutional rights to freedom of expression at the schoolhouse gate.”
In fact, free expression has long been regarded as the foundation of U.S. democracy. Thomas Jefferson perhaps said it best: “Our liberty depends on freedom of the press and that cannot be limited without being lost.”
The first direct experience most Americans have with press freedom, and the censorship that limits it, begins when they are in school working on student media. That’s why journalism educators, judges and First Amendment advocates have urged schools to support and foster student free expression because it is key to persuading young people “that our Constitution is a living reality, not [just] parchment preserved under glass.”
The Journalism Education Association, the nation’s largest association of scholastic journalism educators and secondary school media advisers, has adopted strong policy statements endorsing student freedom of expression. For our democracy to be truly participatory, JEA believes students must be empowered so they see the value of making a difference.
Beyond the implications for citizenship education, there are other solid pedagogical reasons for supporting student press freedom. Instilling in students a sense of responsibility and teaching them to make wise decisions requires giving them responsibility to act independently. For the same reasons administrators don’t conduct chemistry experiments themselves or play quarterback for the football team, sound educational outcomes come from allowing student journalists to make content decisions for themselves.
Administrators must properly define the role of the media adviser when it comes to censorship and press freedom. The Journalism Education Association’s Adviser Code of Ethics affirms the role of a teacher/adviser is to guide and instruct, not to prohibit or censor. Asking advisers to impose their content choices on student editors both offends their professional standards and results in a publication less relevant and connected to the student audience the publication exists to serve.
Many administrators have not considered an additional justification for protecting student press freedom: protection from lawsuits. A federal appeals court decision helps illustrate this.
In the case Yeo v. Town of Lexington, a community member sued a Massachusetts public high school for infringement of his First Amendment rights after editors of the school’s student yearbook and newspaper rejected advertisements he had submitted. His ad criticized school policies relating to sex education; student journalists choose not to get involved in the ongoing political conflict. In rejecting his First Amendment claim, a federal appeals court determined student editors, not school officials, had made the decision to reject the ads. Thus, the court concluded there was no First Amendment violation. Had the school principal or even the media adviser made the decision to remove the ads, the First Amendment claim might have been successful.
“School officials have an interest in [students’] autonomy to make educational decisions,” the court stated. “Officials have determined the best way to teach journalism skills is to respect the students’ editorial judgment, a degree of autonomy similar to that exercised by professional journalists. That choice by the officials parallels the allocation of responsibility for editorial judgments made by the First Amendment itself.”
The Yeo ruling supports an argument made by First Amendment advocates: Schools are most protected from legal liability when they leave content decisions to students.
One additional benefit of providing students with an outlet for free expression in school under the guidance of a faculty adviser: Students are less likely to turn to social networking sites and other outside-of-school venues to express their frustration with school policies and officials. When they are given the opportunity to speak freely as part of a student media program that teaches ethical and journalistic principles including fairness, accuracy and context, they become stronger, more responsible speakers in their lives outside of school.
Because the First Amendment is solely a limitation on government action, private schools are not limited by it in their ability to censor. However, in a number of states, most notably California, state law may provide press freedom protections to private school student journalists. And most high-achieving private schools follow the example of their public-school counterparts and provide students with a free press experience.
Press freedom terms
• First Amendment: the provision of the U.S. Constitution that provides protection to free speech and press freedom, including for students.
• Censorship: prohibiting publication of information preventing reporters access to public information or creating an atmosphere in which student censor themselves.
• Prior review: the act of someone outside a student publication staff, typically an administrator, requiring approval of student media content before publication. This frequently leads to prior restraint, a practice rejected by journalism educators as educationally unsound.
• Prior restraint: the act of someone outside a student publication staff prohibiting student media content prior to publication. This form of censorship is frequently the result of prior review.
Four key U.S. Supreme Court decisions define student free expressions rights a school administrator should understand:
Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District (1969)
Facts: Iowa students who wore black armbands to school to express their concern about the Vietnam War were suspended. School officials claimed the message conveyed by the armbands was hurtful to others.
Ruling: Even in school, students are entitled to strong First Amendment protection. However, student free expression may be limited when school officials can demonstrate “substantial disruption of or material interference with school activities.”
Quotes: “Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect.” A school “must be able to show that its [censorship is based on] something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
How the courts apply it: When school officials can show student expression will result in a significant physical disruption of classes or school activities (fighting, vandalism, etc.) or legally invade the rights of others (libel, invasion of privacy, etc.), some limited censorship will be permitted. But controversial expression is entitled to strong First Amendment protection.
Hazelwood School District v. Kuhlmeier
Hazelwood School District v. Kuhlmeier (1988)
Facts: A Missouri high school student newspaper was censored by a school principal after students prepared stories about teen pregnancy and the impact of divorce on children. The school argued students interviewed for the pregnancy story could be identified and parents hadn’t been interviewed for the divorce story.
Ruling: Despite the Tinker ruling’s recognition of strong First Amendment protection, student expression in school-sponsored venues may be subject to greater limitations when those venues have not been established as “designated public forums.” In that context, school officials can censor if they provide a reasonable education justification for their actions.
Quote: “[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
How the courts apply it: Although the decision gives school officials greater authority to censor, it doesn’t require them to do so. In addition, when a publication is operating as a designated public forum where student editors are given the authority to make their own content decisions or when the school’s action is intended to punish a particular viewpoint, censorship is not allowed.
Bethel School District v. Fraser
Bethel School District v. Fraser (1986)
Facts: A Washington state high school student nominated a friend for student government in a speech at a school assembly that included sexual innuendo and puns. School officials admitted the speech was not obscene but claimed the speech was disruptive and inappropriate. They suspended the student and refused to allow him to speak at graduation. The student sued for violation of his First Amendment rights.
Ruling: Vulgar and indecent language, used in the context of a school-sponsored assembly before a captive audience, is not protected by the First Amendment and can be punished by school officials.
Quote: “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”
How the courts apply it: Vulgar and indecent student speech, at least in a school-sponsored context or in the classroom, can be punished by school officials.
Morse v. Frederick
Morse v. Frederick (2007)
Facts: An Alaska high school student held up a banner that read “Bong Hits 4 Jesus” across the street from the school as the Olympic torch relay passed. Students had been released from school to watch the event. School officials suspended him for his actions, and he sued for violation of his First Amendment rights.
Ruling: The First Amendment allows school administrators to restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.
Quote: “The ‘special characteristics of the school environment,’ and the governmental interest in stopping student drug abuse … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use.”
How the courts apply it: Although advocacy of illegal drug use is not protected, speech that can plausibly be interpreted as commenting on a political or social issue, including the “war on drugs” or marijuana legalization, is protected.
In light of these four court decisions, most legal scholars conclude there are only four legally permissible justifications for censorship of student expression by school officials.
1. When the expression will create a material and substantial disruption of school activities or an invasion of the rights of others – Tinker
2. When the expression is pervasively vulgar, lewd or indecent – Fraser
3. When the expression advocates illegal drug use – Morse
4. Only in the context of school-sponsored, non-public forum student expression, when the censorship is viewpoint neutral and is based on a reasonable educational justification – Hazelwood
These court decisions make clear students in public schools do have significant First Amendment protections, even when working in school-sponsored student media. One federal court case helps illustrate that point.
Student journalists at Utica High School in Michigan prepared a news story and an editorial about a lawsuit filed by community members against the school district. A family who lived near the district’s school bus parking lot claimed they became ill from breathing the exhaust of school buses left idling for hours. Members of the student newspaper staff believed the lawsuit was one relevant to its readers, noting the parking lot was also near the high school athletic field and an elementary school playground. School officials refused to comment for the story and ultimately ordered the newspaper adviser not to allow students to cover the topic.
Student editor Katy Dean eventually sued her school for violating students’ First Amendment rights after she was unable to persuade officials to reconsider their decision. In the case Dean v. Utica Community Schools (E.D. Mich. 2004), the court ruled in favor of Dean and against the school’s censorship.
The court offered several justifications for its conclusion. First, it noted the newspaper had been operating as a designated public forum for student expression. As the newspaper adviser testified in court, for more than 20 years no school official had censored or reviewed the newspaper before publication, and the publication’s own policies gave content control to student editors. Thus, the court concluded limitations of the Hazelwood standard did not apply, even though the publication was school-sponsored.
Second, the court said even if the publication were subject to the Hazelwood censorship standard, the school could not meet it. It was not “educationally reasonable” to censor an accurate story about a lawsuit filed against the school district. In fact, the judge in the case concluded this was exactly the kind of substantive journalism the school should encourage students to engage in.
Finally, the court held even if the publication were subject to Hazelwood limitations and even if the censorship were considered educationally reasonable, the school’s actions were not “viewpoint neutral” as Hazelwood requires. Because the school’s motivation for censoring was clearly to silence a viewpoint with which it disagreed – that of the family who filed the lawsuit – the school’s actions could not stand.
The Dean decision is a wake-up call to administrators who censor simply because they fear news coverage will make the school look bad. The ruling emphasizes the First Amendment is alive and well in public schools.
Press freedom defined by state law
Beyond First Amendment protections, seven states have enacted statutes that provide even stronger protection for student journalists.
- California (Cal. Educ. Code Sec. 48907)
- Massachusetts (Mass. Gen. Laws Ann. ch. 71, Section 8)
- Iowa (Iowa Code Sec. 280.22)
- Colorado (Colo. Rev. Stat. S)ec. 22-1-120 )
- Kansas (Kan. Stat. Ann. Sections 72.1504 – 72.1506)
- Arkansas (Ark. Stat. Ann. Secs. 6-18-1201 – 1204)
- Oregon (Ore. Rev. Stat. sec. 336.477)
In each of these states, laws require school officials to justify all acts of censorship under a standard based on the Supreme Court’s Tinker opinion. In addition, two states (Pennsylvania and Washington) have state regulations that may expand student rights.
Legal limitations on speech
Scholastic journalism education isn’t just about rights. It’s also about helping students understand their legal obligations and responsibilities. A quality journalism education emphasizes the importance of avoiding unprotected speech including libel, obscenity, invasion of privacy and copyright infringement. When students, teachers and school administrators understand these legal principles, everyone benefits.
• Libel: publication of false statements of fact that damage a person’s reputation. Statements that can be proven true are not libelous.
• Obscenity: explicit descriptions of graphic sexual or excretory activities that are not protected under the First Amendment; “four-letter words” or other vulgar or profane comments are not legally obscene.
• Invasion of privacy: legal restrictions defined by state law that limit the ability of journalists to gather and publish certain private information about individuals.
• Copyright infringement: using another’s original creative work without permission. This includes stories, photos, illustrations, music, etc. The law does allow some educational and information uses without permission when it falls within the category of “fair use.”
Access to information
In order for student journalists to cover their schools effectively, they must have adequate access to information. Administrators can play a key role by ensuring their staffs are familiar with state’s open records and open meetings laws and are prepared to provide student journalists with the same information to which any community member or journalist would be entitled.
• FERPA (Family Educational Rights and Privacy Act, 20 U.S. Code sec. 1232g): a federal law that regulates schools’ release of student education records. This law does not apply to information student journalists publish, but only to records school officials release that personally identify individual students.
• Establish a school policy that designates student media as forums for student expression to provide the best learning. (The Student Press Law Center’s “Model Guidelines for High School Student Media” provide a good example.) Doing this allows students to dispel rumors and misinformation, offer solid facts and provide an outlet for comment, opinion and debate. Both the students on the publication staff and the school as a whole benefit.
• Use definable terms (libel, copyright infringement, etc.) in school policies related to student media and student expression rather than vague, subjective words and phrases that will inevitably lead to confusion. Language to avoid includes: “offensive to good taste,” “inappropriate” or “material inconsistent with the shared values of a civilized social order.”
• Encourage student media staffs to develop clear policies to help guide them in making journalistically strong, ethically sound decisions.
• Provide a clear job description for media advisers and recognize their role is to guide and teach, not to determine content or censor.
• Refrain from prior review of student media content or from requesting it of another school staff member. The practice negates the role of the media adviser, results in direct censorship of content and encourages self-censorship by students.
• Maintain open lines of communication between school officials, advisers and student journalists. Administrators will not be happy with every decision journalists make, and sometimes students will make mistakes. But as in any classroom or extracurricular environment, those mistakes can create the greatest opportunity for learning and growth.
• Keep abreast of changes in student press law.
Scholastic media law resources
• Student Press Law Center: This national organization serves as a legal advocate for student journalists and their advisers and produces a wide variety of information and educational materials on student press law. Students and advisers can get free assistance from media lawyers and help with developing policies and classroom resources.
• Journalism Education Association: The nation’s largest association of scholastic journalism educators and secondary school media advisers has adopted strong policy statements endorsing student freedom of expression.
• JEA Scholastic Press Rights Commission: This organization of journalism teachers seeks to educate about the role of free and journalistically responsible student news media in 21st-century learning and civic engagement.
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