The right to freedom of speech and by extension freedom of expression is contained in the First Amendment to the US Constitution. The First Amendment forbids Congress passing or enacting any law that has the capacity to abridge free speech. Free speech however, is not an absolute right and is subject to restrictions. Those restrictions originated out of a test set by the US Supreme Court case of Schenck v. United States.
In this case the court ruled that the question in each case is whether or not the words used have the potential to create a “clear and present dange” and could conceivably” bring about the substantive evils that Congress has a right to prevent”. In other words the right to free speech is a right to freedom from censorship unless the exercise of that right is contrary to public safety, security and does not infringe upon other fundamental rights of others. The case of Hazelwood v. Kuhlmeier however, determined that students were in general not entitled to full First Amendment protection. Facts of the Case
A high school class both wrote and edited the school’s newspaper as a part of the school’s curriculum. As was the custom the pre-published material was submitted to the school’s principal for approval. In this instance the pre-published material contained articles about student pregnancy and although the pregnant students were not identified in the articles, the principal thought that the context in which the articles appeared made identification possible. Moreover, he felt that the material was not appropriate for younger students since there were refences to “sexual activity and birth control”.
The principal also took issue with an article about divorce since it contained a complaint by a student in respect of his “father’s conduct. ” The principal felt that the parents although not identified in the article should have been contacted for comment and should have given their consent to the use of the material in the school’s newspaper. As a result the paper was published without the objected material and the students lodged a complaint in the Federal District court claiming that their First Amendment right to free speech had been violated. The Courts’ Rulings
The District Court, the court of first instance held that the school’s principal had acted reasonably and that there had been no First Amendment violations. On appeal the Court of Appeal reversed the District Court’s findings essentially ruling that the school newspaper was not merely a part of the school’s curriculum, but was an open forum through which the students were at liberty to express their opinions and thoughts. Moreover, as a public school the school official could only restrict freedom of speech and expression if such restriction was: “…necessary to avoid material and substantial interference with school work or discipline .
. . or the rights of others. ‘” Since there was no evidence that the excluded articles could disrupt “classwork” or cause “substantial disorder” the excusion of the articles were unreasonable and therefore constituted a violation of the First Amendment. The US Supreme Court did not agree and in turn reversed the Court of Appeal’s ruling and distinguished the Hazelwood case from a previous decision in Tinker v Des Moines Independent Community School District 393 U. S. 503, 89 S. Ct. 733 (1969) in which students were suspended for wearing armbands in protest of the Vietmanese War.
The US Supreme Court held that the student’s First Amendment rights had been violated and stated that: “School officials do not possess absolute authority over their students. Students in school as well as out of school are . persons under our Constitution. They possess fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. ” The US Supreme Court in the Hazelwood case said that the difference here was that the expression in the Hazelwood case was to be published in a school sponsored publication whereas in Tinker the free expression was conducted in a public forum.
The US Supreme Court in Hazelwood explained this distinction as follows: “[T]he standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators 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.
” The Consequences for Free Speech in School Publications After Hazelwood In general the Hazelwood decision rules that students do not enjoy First Amendment free speech protection to the extent that adults do. In this context school-sponsored newspapers will not be treated as public forums and will be subject to a measure of censorship on the part of school officials provided that censorship could be justified on grounds “reasonably related to legtimate pedogocial conerns.
” In other words if the school can justify its censorship on grounds pertaining to reasonable educational conerns that censorship will not be contrary to the First Amendment righ to free speech. Two cases following the Hazelwood ruling maintain that schools are entitled to censor free speech in publications that are not open and public forums. For instance in Planned Parenthood of Southern Nevada v. Clark County School District 941 F. 2d 817 (9th Cir. 1991) the Federal Appeals’ Court sided with a school’s decision to censor an advertisement in respect of pregnancy in a school publication.
However, this censorship was only permitted on the grounds that the publication in question was not a public forum. In Lodestar v. Board of Education, No. B-88-257 (D. Conn. March 10, 1989) it was held by the Federal District Court ruled that extracurricular publications are not subject to school censorship under the rationale expressed in the Hazelwood case. Moreover, even if a publication is school-sponsored and part of the school’s curiculum it may not be subject to Hazelwood standard if it followed a pattern in which students used the paper as a public forum. Conclusion
It is important to note that the US Supreme Court was narrowly divided in the Hazelwood case, although the majority view prevailed. The significance of this narrow divide is that there is a good chance that the US Supreme Court can reverse itself at anytime although the opportunity for reversals have been scare as very few cases on the subject have been litigated in the many years following Hazelwood. However, unless and until the Hazelwood decision is overruled, the law as it currently stands permits official censorship of student publication on reasonable grounds pertaining to educational concerns.
Taken a broader veiw of the Hazelwood decision the implications for free speech as a consequence of the US Supreme Court’s decision remains essentially the same and can be reconciled with the seemingly contrary decision in the Tinker case. What can properly be discerned from the comparisons made by the US Supremre Court in Hazelwood is that the “material disuptive test” formulated in Tinker can be invoked to permit censorship in instances where a school publicaiton is not a public forum but it will only be permitted if the Tinker “material disrtuptive test’ can be sucessfully applied.
The publication is required to have some significant implications for the school’s ability to administer disciplinary control over the student population or to cause some disruption in the school’s educational or curriculum process.
Hazelwood v. Kuhlmeier (1988) 484 U. S. 260, 108 S. Ct. (This case is the precedent setting decision that substantially narrows students’ free speech in respect of publications in a school newspaper. The generla impact is that school officials can censosr material if it is published in a publication that is not a public forum)
Lodestar v. Board of Education, No. B-88-257 (D. Conn. March 10, 1989) Schenck v US 2 USC 47(This case demonstrates the extent to which the Hazelwood case has been applied. It rationalizes the approach taken by the US Supreme Court, and explains its limitations). Planned Parenthood of Southern Nevada v. Clark County School District 941 F. 2d 817 (9th Cir. 1991) (Like Lodestar’s case this case follows Hazelwood. Unlike the earlier case of Lodestar, this case follows Hazelwood more closely)
Tinker v Des Moines Independent Community School District 393 U. S. 503, 89 S. Ct. 733 (1969) (Tinker sets the precedent for permitting free speech and expression for students. It also sets very narrow limits for restricting that free speech. ) US Constitution (The First Amendment is used to lay the ground work for a proper interpretation of the ruling in Hazelwood. It provides the basis for understanding and interpreting the US Supreme Court’s rationale in the Hazelwood decision. )