Organization site - Summer 2001
Freedom of expression ... Pt 2
In its 2- l decision written by Judge Allen Norris, the panel agreed with Hood that the Hazelwood standard applied to the Kentucky State yearbook because the university had never established it as a public forum. The majority wrote that Kentucky State officials were within their authority to censor the yearbook and said that censorship was a reasonable attempt to maintain the university's "image to potential students, alumni, and the general public. In light of the undisputedly poor quality of the yearbook, it is also reasonable that KSU might cut its losses by refusing to distribute a university publication that might tarnish, rather than enhance, that image."
In a dissent, Judge R. Guy Cole pointed out that the Supreme Court's Hazelwood decision focused on the First Amendment in the context of a public high school, not in a university setting. Cole also disagreed with the majority's contention that the yearbook was not a public forum, arguing that it is instead a limited public forum, and that the university's expressed reasons for censoring the yearbook (inappropriate theme, poor quality) are content-based and did not serve a compelling state interest as required in time, place and manner restrictions.
High School Expression Laws
Six states have freedom of expression laws specifically for high school students. Four states enacted their laws specifically to address the Hazelwood case —Arkansas, Colorado, Iowa and Kansas. Massachusetts amended its freedom of expression law following Hazelwood. A sixth state, California, already had a freedom of expression law covering high school journalists when Hazelwood was decided.
Few researchers have studied differences between high school student newspapers in those six "press law" states and the 44 other "non-press law" states. Just three studies have explored the issue.
Dickson and Paxton (1997) in a national survey of high school newspaper advisors found that advisors in states with freedom of the press laws specifically for high school students were not as likely to respond that the advisor is ultimately responsible for the content of the newspaper and not as likely to state that the advisor should correct factual inaccuracies in student copy.
In another national survey of high school newspaper advisors, Paxton and Dickson (2000) found that advisors in states with scholastic freedom of press laws and those in states without such laws are remarkably similar in their attitudes about scholastic press freedom and the way they exercise what they see as their duty in oversight over the newspaper. They also suggest that advisors' impressions about the amount of student self-censorship and the amount of conflict or controversy in the newspaper is remarkably similar in both types of states. The only actual differences they found in press law and non-press law states were due to differences in advisor’s reports of prior review and prior restraint conducted by the principal. Principals in press law states are more likely to leave the newspaper alone and let the advisor run it than is the case in non-press law, although it should be noted that even in press-law states, there were instances in which principals exerted control over student publications.
Paxton and Dickson (2000) also reported that it was clear from comments of a number of advisors in both press law and non-press law states that they see their role as a gatekeeper to stop unacceptable content from going into the newspaper. Their definitions of unacceptable content, however, range all the way from misspellings and poor grammar to inaccuracies of fact, invasion of privacy and libel, but not usually to subject matter of a story.
The only other reported study that specifically addresses issues concerning state press freedom laws was a one-state study by Plopper and Downs (l 998). They found that "on occasion, the letter of the law clearly had been violated" in Arkansas (p. 82) following implementation of that state's student press law, and they found "a good deal of advisor ignorance related to content and implementation" of the law (p. 83). They found that some advisors were unaware of the state law. They also found that some advisors didn't pay much attention to the law. Third, they found that advisors appeared to have differing interpretations of what their state law meant.
Combined, these studies indicate that state freedom of expression laws have not been a panacea for high school students facing restrictions on expression, even though the state has a statute ensuring First Amendment freedoms.
Implications for College
Freedom of Expression Laws
In March 2000, the sponsors of a bill that would have guaranteed that students attending Arkansas public colleges and universities have free expression rights withdrew the measure when it drew opposition from the Arkansas Press Association ("Ohio free expression bill," 1999). The bill introduced in the Arkansas House contained several provisions: it would have guaranteed freedom of expression for public college students as long as that expression was not disruptive; it would have ensured that student expression was not deemed a reflection of school policy, and it would have stated that school officials could not have been held accountable for student expression. The Arkansas Press Association objected to the bill's guarantee of "unlimited" free expression rights for college students, arguing that other journalists face restrictions such as obscenity and libel, and the bill's provision that the "time, place and manner" of student assemblies would have to be approved by administrators in advance. Arkansas Press Association members said requiring advance approval of student assemblies gave students fewer, not more, First Amendment rights ("Ohio free expression bill," 1999).
The Ohio Legislature, meanwhile, late this Spring was still considering a bill that would prevent school officials from banning offensive, even racist, speech on public college campuses (Ohlemacher, 2000). The bill, which was passed by the Ohio House and was pending in the state Senate, would prevent public college and university officials from restricting student expression, as long as that expression violates no laws, such as obscenity or incitement to immediate violence. It also would allow students to file suit to stop schools from enforcing speech codes that outlaw hateful or offensive speech (Ohlemacher, 2000).
While the Arkansas bill met an early death and the Ohio legislation is aimed more at speech codes than the student press, both measures highlight some of the inherent problems in enacting student free expression laws. On one hand, legislators who have introduced scholastic freedom of expression laws have found, as have their counterparts in Arkansas, that support from a state press association is not automatic.
Further, even if a legislature were to enact a law protecting freedom of expression at public colleges and universities, the experiences of high school newspaper advisors in states with scholastic freedom of expression laws have shown less than overwhelming support for the efficacy of such laws. In their national random sample survey of high school newspaper advisors, for instance, Paxton and Dickson (2000) noted that based on written comments that advisors attached to their questionnaire, advisors within a single press law state had radically different interpretations of what the law required of them. Whereas some advisors in a state might see their law as meaning a hands-off approach by the advisor and no censorship, other advisors in the same state saw the law as requiring them to exert pressure on student journalists to withdraw stories or to kill stories that they thought either were not protected by the law or which the law required that they censor. In their earlier study, Dickson and Paxton ( 1997) also found that state scholastic freedom of expression laws "may be having a detrimental effect on high school press freedom" because the laws in Iowa, Kansas, Colorado and California required high school newspaper advisors to read the student newspaper before publication and act as censor for such things as libel, obscenity, invasion of privacy, and disruption of the school (p. 16).
Admittedly, college students faced with restrictions on expression might be more willing to object to that restriction if they could point to a state college freedom of expression statute. In addition, it could be argued that despite Tinker v. Des Moines, high school administrators have rarely been reluctant to restrict the content of student expression. (As a personal note, this author's experiences as a high school newspaper editor in the l 97()s were filled with incidents of censorship by the principal.) At the same time, many public college administrators and newspaper advisors keep a hands-off approach to the student newspaper, acknowledging that the long tradition is that the student press at public colleges and universities enjoy First Amendment protections.
Indeed, previous studies show that college newspaper advisors have on average much more training and experience in journalism than do high school newspaper advisors. Bodle (1996) reported that his national survey of college newspaper advisors showed that two-thirds had four or more years of professional journalism experience. Kopenhaver and Spielberger ( l 996) reported that their survey of College Media Advisors membership showed that 82.4 percent had some professional journalism experience and two-thirds reported that their only job duty was advising the campus newspaper. In contrast, Dvorak, Lain and Dickson ( 1994) reported results of a nationwide survey of secondary school newspaper advisors showing that just 28.2 percent were state-certified in journalism education (p. 99) and just 24.4 percent had some professional media experience (p. 117), and advisors reported spending an average of just seven hours a week advising publications (p. 117).
In addition to differences in advisor background and training, the Hazelwood decision applied only to high school newspapers that are part of the school's curriculum. In contrast, most college newspapers are not part of the curriculum but instead are funded either through student government, receive money from the school's student activities fees, receive direct funding from the school, or are independent and are financed completely through advertising sales or subscriptions (Tenhoff, 1991). This difference would lend support to the argument that college and university student newspapers have a greater tradition of independence and therefore more First Amendment support. But the Kincaid ruling, if allowed to stand, would make many of these distinctions between high school and college newspapers meaningless; under Kincaid, any school funding of a student publication would make that publication subject to censorship.
Regardless of these differences in high school and college newspapers, the reality is that state laws aimed at guaranteeing that high school students have First Amendment rights while publishing student newspapers have not been the panacea that many thought they would be. In fact, even in states with clear scholastic press freedom laws, advisors report that newspapers are still subject to censorship. Stale laws created to guarantee that college students enjoy First Amendment rights might be a way to bring to the public eye the problem of censorship on campus. But based on the empirical research into state scholastic freedom of expression laws, it would appear that the Arkansas and Ohio legislation, whatever their outcome, would not necessarily guarantee free expression rights for public college students. Proponents of college freedom of expression rights appear to be misguided if they believe a state statute will prevent censorship of college students in those states.
1 In the same lawsuit, the two students claimed that university officials censored the student newspaper, The Thorobred News, by demoting the paper's adviser after the paper ran cartoons lampooning the administration and campus life. The students claimed the university's actions were censorship prohibited under Antonelli, but Hood disagreed, writing that the adviser had already been reinstated, no actual censorship of content occurred, and there was no First Amendment violation.
2 The Yeo case focused not on administrative control of student publication content, but rather on whether a student newspaper and yearbook were acting as agents of the state when they refused to run a controversial advertisement.
AEJMC decries federal ruling upholding censorship of student publications. (1999). AEJMC News 33 (1), 15, 36.
Antonelli v. Hammond, 308 F.Supp. 1329 (D. Mass. 1970).
Arkansas Student Publications Act, Ark. Stat. 6-18-1203 (1995).
Bazaar v. Fortune, 476 F 2d. 570 (1973).
Bodle, J.V. (1996). Say you're an adviser. College Media Review 33 (4), 22-23.
Cullen et al. v. Gibson et al., 96-6116 (6th Cir. 1997).
Dickson, T., & Paxton, M. (1997). Hazelwood's effect on the attitudes of newspaper advisers. Communication: Journalism Education Today 30 (3),1417.
Dvorak, J., Lain, L., & Dickson, T. (1994). Journalism kids do better. Bloomington, IN: ERIC Clearinghouse on Reading, English and Communication.
Extending Hazelwood. (1996). Student Press Law Center Report 17 (3), 13-14.
Hazelwood School District v. Kuhlmeier, 480 U.S. 260 (1988).
Hazelwood threatens college press. (1997). Student Press Law Center Report 19 (l), 4, 11.
Healy v. James, 408 U.S. 169 (1972).
Joyner v. Whiting,477 F.2d.456 (4th Cir.1973).
Kincaid v. Gibson, 191 F. 3d. 719. [On-line] (6th Cir. l999) (accessed Feb. 25, 2000).
Kincaid v. Gibson, 197 F. 3d. 828. (6th Cir. 1999)
Kincaid v. Gibson, 95-98 [on-line] (E.D. KY, filedNov.14,1997). (accessed March 15, 2000).
Kopenhaver, L.L., & Spielberger, R.S. (1996). Survey looks at compensation for advising college media. College Media Review 34 (1 and 2), 24-29.
Ohio expression bill heads to Senate. (1999). Student Press Law Center Report
20 (3), 11.
Ohlemacher, S. (2000). Legislators propose ban on campus speech rules. Plain Dealer 23 January 2000.MetroEdition: IB.
Papish v. University of Missouri Board of Regents, 410 U.S. 667 (1973).
Paxton, M., and Dickson, T.V. (2000). State freedom of expression laws and scholastic press censorship. Forthcoming in Journalism and Mass Communication Educator, Summer 2000.
Paxton, M. (1998). Hazelwood v. college media: Landmark high school case being applied in 'flawed' Kentucky State yearbook decision. College Media Review 36 (2) Spring 1998, 4-9.
Plopper, B.L., & Downs, W.D. Jr. (1998). Arkansas Student Publications Act: Implementation and effects. Journalism Educator 53 (1), 74-84.
Right of Students to Freedom of Expression, Mass. Ann. ch. 71 § 82 (1974).
Rights of Free Expression for Public School Students, Col. Rev. Stat. 22-1-120 (1998).
Stanley v. McGrath, 719 F.2d. 279 (8th Cir., 1983).
Student Exercise of Free Expression, Iowa § 280-22 (1989).
Student Exercise of Freedom of Speech and Press, Cal. Ed. Code § 48907 (1983).
Student Publications, Kan. Stat. Ann. § 72-1506 (1992).
Tenhoff, G.C. ( l 991). Censoring the public university press: A constitutional challenge. Southern California Law Review 64, 511-547.
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
Trujillo v. Love, 322 F.Supp. 1266 (D. Colo. 1971).
U.S. Court of Appeals throws out its initial decision in censorship case. (2000). Student Press Law Center Report 21 (1), 4-5.
Yeo v. Town of Lexington, 131 F. 3d. 241 (lst Cir., 1997).
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Mark Paxton is an associate professor of journalism at Southwest Missouri State University.