The document discusses several Supreme Court cases related to student speech rights, including Tinker v. Des Moines and Hazelwood v. Kuhlmeier. It summarizes the key holdings of these cases. For example, it notes that Tinker established that student speech is protected unless it causes a substantial disruption, while Hazelwood held that school-sponsored student media receives less protection and schools can censor for pedagogical reasons. The document also discusses state laws in California that provide additional speech protections for student journalists, such as Education Code 48907.

1. Law of the student
press, Part 1
Beatrice Motamedi
Newsroom by the Bay
Summer 2012
@2012 by Beatrice Motamedi
U.S. Supreme Court, photo by D.B. King at
Creative Commons/Flickr.com
Friday, June 22, 12

2. First, a quiz (send your group answer to j-conf)
• You are a high school principal, and • You are a dean of students, and at
one of your students wants to wear the all-school meeting, the student
a T-shirt entitled “Occupy Urban,” body president, a senior, begins to
at a time when Occupy protests speak in a way that is sexually
nationwide have erupted in suggestive (yet not openly
violence. Would you allow it? Why obscene). There are freshmen in the
or why not? audience. Would you permit it to
continue? Why/why not?
• You are a high school journalism
adviser, and one of your students • You are a high school teacher, and
wants to write an article in which at a school rally, you see one of
she will quote pregnant students your students unfurl a 14-foot
anonymously, talking about their banner that reads, “Bong Hits 4
use (or decision not to use) Glaucoma.” Medical marijuana is
contraceptives. Would you okay it? legal in your state. Would you allow
Why/why not? it to remain up? Why/why not?
Friday, June 22, 12

3. “Answer key”
• Tinker v. Des Moines Independent School District, 1969
• Hazelwood School District v. Kuhlmeier, 1988
• Bethel School District 403 v. Fraser, 1986
• Morse et al v. Frederick, 2007
Friday, June 22, 12

4. Top 12 scholastic journalism cases
• West Virginia State Board of Education v. • Texas v. Johnson, 1989
Barnette, 1943
• Yeo v. Town of Lexington, 1997
• New York Times v. Sullivan, 1964
• Dean v. Utica Community Schools, 2004
• Tinker v. Des Moines Independent School
District, 1969
• Morse et al v. Frederick, 2007
• Brandenburg v. Ohio, 1969
• Scott v. Napa Valley Unified School
District, 2007
• Bethel School District No. 403 v. Fraser,
1986
• Smith v. Novato, 2007
• Hazelwood School District v. Kuhlmeier,
1988
Friday, June 22, 12

5. Tinker: what a black armband means
“Just before Christmas in 1965, a group of
students ... wore black armbands to school
to mourn the dead in Vietnam. I was 13 and
in eighth grade. The nightly TV news, with
scenes of flaming huts, screaming children,
and soldiers in body bags had gotten to
me. Along with a small group of high school
students, including my brother John and
our friend, Chris Eckhardt, and even my
little brother and sister Paul and Hope, who
were in elementary school, I decided to
wear an armband that Christmas. Our
message was peace.
“We had no idea that our small action
would lead us to the Supreme Court, or that
the ruling in Tinker v. Des Moines
Independent Community School District 40
years ago today would become a landmark
for students’ rights. But that is how history
is made ...”
Excerpt from “What a Black
Armband Means, 40 Years
Later,” by Mary Beth Tinker, at
Mary Beth Tinker, photographed on March 11, 2010. Photo by Andrew Imanaka at www.dailykos.com
flickr.com, used with permission.
Friday, June 22, 12

6. Mary Beth Tinker at
the Occupy DC
protest in
Washington, D.C., on
Oct. 6, 2011. All rights
reserved by
rwreinhard at
flickr.com; Fair Use
exemption.
Friday, June 22, 12

7. Tinker: key holdings
• The wearing of black armbands by “passive” students who did not disrupt the
school day was “closely akin to pure speech” and was protected by the 1st
amendment and 14th amendment (due process)
• Neither students nor teachers “shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate.”
• Rights may be subject to “special characteristics of the school environment.”
• A prohibition against speech “without any evidence” that the rule is necessary to
avoid disruption to the school day, discipline, or other students’ rights, is not
allowed under the 1st Amendment.
• Speech that causes “substantial disorder” or “materially disrupts” is NOT protected.
Friday, June 22, 12

8. Key quotes
• “(I)n our system, undifferentiated fear or apprehension of disturbance is not
enough to overcome the right to freedom of expression.”
• “Any word spoken, in class, in the lunchroom, or on the campus, that
deviates from the views of another person may start an argument or cause a
disturbance. But our Constitution says we must take this risk ... it is this sort
of hazardous freedom — this kind of openness — that is the basis of our
national strength and of the independence and vigor of Americans who grow
up and live in this relatively permissive, often disputatious, society.”
• “(S)chool officials ... must be able to show that (their) action was caused by
something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.”
Friday, June 22, 12

9. So what’s your answer to Question #1?
• You are a high school principal, and
one of your students wants to wear
a T-shirt entitled “Occupy Urban,”
at a time when Occupy protests
nationwide have erupted in
violence. Would you allow it? Why
or why not?
Friday, June 22, 12

10. Hazelwood: what justifies restraints?
From “
Source: Student Press Law
Center, at http://
www.splc.org/
knowyourrights/
legalresearch.asp?id=4
Friday, June 22, 12

11. Hazelwood: what justifies restraints?
“In January 1988, the United States Supreme Court handed down its opinion in the
case Hazelwood School District v. Kuhlmeier. The Court upheld the decision of
public high school administrators at Hazelwood East High School in suburban St.
Louis, Mo., to censor stories concerning teen pregnancy and the effects of divorce
on children from a school-sponsored student newspaper. The ruling was a dramatic
break from nearly two decades of law that had given student journalists extensive
First Amendment protections.
“While the Hazelwood decision changed the free speech balance, courts since
Hazelwood have made it clear the case has important limitations. School officials --
no matter what they may believe or claim -- do not have an unlimited license to
censor; all students retain significant First Amendment protections.”
Source: Student Press Law Center, at http://
www.splc.org/knowyourrights/legalresearch.asp?id=4
Friday, June 22, 12

12. Friday, June 22, 12

13. Hazelwood background
• Adviser quit on April 29; May 13 edition in production (and poor prior
relationship between adviser/principal). New adviser later became respondent
(vs students).
• Prior review was already established by practice; no forum status
• New adviser delivered page proofs to principal on May 10 — 2 of 6 pages
rejected. Principal objected to two stories — H’wood students on pregnancy,
and impact of divorce.
• Re: pregnancy — students could be ID’ed even though false names were
used; references to sexual activity/contraception too much for 9th graders.
• Re: divorce — believed student’s dad should have had comment re: “was
always out of town or out late playing cards with the guys”
Friday, June 22, 12

14. Hazelwood: key holdings
• First Amendment rights of students in public schools are not automatically
coextensive (the same as) rights of adults in other settings (Bethel).
• Free speech rights must be applied “in light of the special characteristics of the
school environment.” Student speech that is inconsistent with a school’s mission
need not be tolerated, even though such speech could not be censored outside of
school by the government.
• Student newspapers designed for general extracurricular use are subject to a lower
level of First Amendment protection than newspapers established as forums for
student expression. (Think Hyde Park, Fareed Zakaria “Global Public Square”)
• A school may wish to “dissociate itself” from and restrict speech that is
“ungrammatical, poorly written, inadequately researched, biased or prejudiced,
vulgar or profane, or unsuitable for immature audiences.” (Think boys’ soccer)
Friday, June 22, 12

15. Hazelwood: key quotes
• “A school must be able to set high standards for the student speech that is
disseminated under its auspices — standards that may be higher than those
demanded by some newspaper publishers or theatrical producers in the ‘real
world‘ — and may refuse to disseminate student speech that does not meet
those standards.”
• “A school must also retain the authority to refuse to sponsor student speech
that might reasonably be perceived to advocate drug or alcohol use,
irresponsible sex, or conduct otherwise inconsistent with ‘the shared values
of a civilized social order’ ... or to associate the school with any position
other than neutrality on matters of political controversy.” (quoting Bethel)
• “(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.”
Friday, June 22, 12

16. Friday, June 22, 12

17. So what’s your answer to Question #2?
• You are a high school journalism
adviser, and one of your students
wants to write an article in which
she will quote pregnant students
anonymously, talking about their
use (or decision not to use)
contraceptives. Would you okay it?
Why/why not?
Friday, June 22, 12

18. The first test case — Homestead High School in
Cupertino, Calif.
• “The ultimate teaching moment” — Hazelwood and The Epitaph
Veteran journalism adviser Nick Ferentinos discusses the Hazelwood case with
students at Newsroom by the Bay, a summer multimedia camp
at Stanford University, in June 2010. Photo by Kaden Greenfield.
Friday, June 22, 12

19. Friday, June 22, 12

20. Friday, June 22, 12

21. An unexpected twist ...
“Twenty years after the Supreme Court announced its decision in
the landmark student press case Hazelwood v. Kuhlmeier, experts
still struggle to gauge its impact.
“But for a short three days at Homestead High School in
Cupertino, Calif., the effects of the case were dramatic and
immediate. Within two hours of the Court's announcement and
just two days before the school's newspaper was to go to press,
Principal James Warren swiftly revoked the long-established
editorial independence of the school's newspaper, The Epitaph,
when he told students they would be punished if they ran an
article about a student who was HIV-positive. Students braced
themselves for what they envisioned would be a tense fight
against the administration to maintain their editorial
independence ...”
Source: Student Press Law Center, at http://
www.splc.org/knowyourrights/law_library.asp?id=13
Friday, June 22, 12

22. Ed Code 48907 to the rescue ...
“Then, hours later, a newspaper reporter tipped the students off to a California law
that nullified the decision and ultimately saved the newspaper from censorship. The
statute — signed into law 11 years earlier — was the first of its kind in the nation
and has saved countless high school student journalists from censorship under
Hazelwood in California.
Though the students ultimately prevailed, the events that unfolded at Homestead
after the Court's announcement foreshadowed the new challenges student
journalists would have to face in the wake of the Hazelwood decision.”
Friday, June 22, 12

23. Education Code 48907: for student journalists in
public high schools in California
“In addition to the First Amendment to the U.S. Constitution, states can also provide
free speech protection to their own citizens by enacting state laws or regulations.
The California Student Free Expression Law is such a provision and provides student
journalists attending California public high schools, including charter schools, with
added protection against administrative censorship. The law also protect teachers
and other school personnel against retaliation for students' lawful exercise of their
free-speech rights.”
Source: Student Press Law Center, at http://
www.splc.org/knowyourrights/law_library.asp?id=6
Friday, June 22, 12

24. What 48907 allows/doesn’t allow:
• Public school students shall have • Does not apply if there is “clear and
freedom of speech, including present danger” that speech could
bulletin boards, petitions, buttons & cause unlawful acts, violation of
badges (not only paper or website) lawful school regulations or
substantial disruption of the school
day
• Applies whether or not speech is
financially supported by the school
• Student editors will be responsible
for assigning and editing news,
• Does not apply if the speech is
feature and editorial content, but a
obscene, libelous or slanderous
journalism adviser must supervise
the staff to maintain professional
standards in both English and
journalism
Friday, June 22, 12

25. • There shall be no prior restraint of student journalism unless it violates the
standards above (obscene, libelous, slanderous)
• Advisers and/or teachers may not be dismissed, suspended, disciplined,
reassigned, transferred, or otherwise retaliated against solely for acting to protect a
pupil engaged in the conduct authorized by the code (added 2008)
Friday, June 22, 12

26. Education Code 48950 (the Leonard Law): for
public + private high school journalists in California
“In addition to the First Amendment to the U.S. Constitution, states can provide
additional free speech protection to their own citizens by enacting state laws or
regulations. California Educ. Code Sec. 48950, also known as the "Leonard Law,"
does just that. California is the only state that has enacted a law that prohibits private
high schools from making or enforcing any rule that would subject a student to
disciplinary action for engaging in expression (on or off campus) that would be
protected by the First Amendment or the California Constitution's free expression
provision if it occurred off campus.
“The legislative history of the law states: ‘It is the intent of the Legislature that a
student shall have the same right to exercise his or her right to free speech on
campus as he or she enjoys when off campus.’ ”
Source: Student Press Law Center, at http://
www.splc.org/knowyourrights/law_library.asp?id=13
Friday, June 22, 12

27. What the Leonard Law allows/doesn’t allow
• Private secondary schools can’t discipline students for speech that would be
protected outside of school by the 1st Amendment or by the California Constitution.
• Students whose free speech rights have been harmed may file a civil suit, and if
they win, courts may award attorneys’ fees to the students/plaintiffs.
• The law doesn’t apply to private secondary schools that are controlled by a religious
organization (sorry, Convent and S.I.)
• Schools are still free to impose discipline for harassment, threats, or intimidation,
unless constitutionally protected.
• The Leonard Law doesn’t go beyond 48907, but it doesn’t limit it, either.
• Free speech is still subject to time, place and manner regulations.
Friday, June 22, 12

28. Next: “Bong hits” and Bethel v. Fraser
Photo by Associated Press, March 16, 2007/
Fair Use exemption.
Friday, June 22, 12