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Toward a Freer Student Press

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Reference today to the First Amendment generally elicits strong sentiment about the protection of our constitutionally guaranteed rights of freedom of religion, speech, assembly and petition, and the press.

That sentiment comes down on all sides of those rights--from the recognition of the right of an individual to burn the American flag as a protest, to the burning and banning of books such as The Adventures of Huckleberry Finn, The Catcher in the Rye, and To Kill a Mockingbird from school libraries.

As they crafted the First Amendment to our Constitution more than 200 years ago, the founding fathers of this country realized that it was necessary to safeguard the basic rights of citizens; thus the First Amendment is the first amendment. Our forefathers also realized that a free and vigorous press was necessary to protect these rights, and so guaranteed freedom of the press in this country in that amendment.

Still, more than 200 years later, many of these constitutionally guaranteed rights are still debated, and many abridged. Perhaps none is so frequently challenged as the First Amendment rights of students working on high school publications.

In 1969 the U.S. Supreme Court, in Tinker v. Des Moines Independent Community School District, enunciated the landmark decision that affirmed the freedom of the public school student press:

First Amendment rights, applied in light of the special circumstances of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Associate Justice Abe Fortas, writing the majority opinion, ruled that in state-supported schools, officials "do not possess absolute authority over the students,'' since students, both in school and out, are "persons'' under the Constitution, "possessed of fundamental rights which the state must respect. ... In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.''

The 14th Amendment, which guarantees the First Amendment rights of citizens against any infringement by the state, including by employees of public educational institutions, further strengthened Tinker.

So did the "forum theory,'' the principle that once any form of government establishes a forum for public expression, it may not then censor that forum, consistent with the First Amendment protection of freedom of expression.

Following Tinker, the student press in this nation's schools, by and large, vigorously pursued issues of concern to the communities they served.

In 1988, the Supreme Court again ruled on a high school free-expression case in Hazelwood School District v. Kuhlmeier, affirming the right of the principal at Hazelwood East High School in suburban St. Louis to censor stories in the school paper which dealt with teenage pregnancy and the effects of divorce on children. The Court found that the faculty adviser acted as the final authority on all aspects of publication, including content decisions, and the publication had not been designated in writing or in intent as a public forum for student expression. The Court, therefore, determined it was not a forum, and the students were not entitled to the First Amendment rights of a free press.

That decision has caused some administrators and student-publications advisers to re-evaluate their roles in relation to the student press and the First Amendment. In the five years since Hazelwood, the Student Press Law Center, a nonprofit center based in Washington which provides free legal advice to all those involved with the student press, including principals and advisers, reported that telephone requests for legal advice and assistance have nearly tripled, from 548 in 1988 to more than 1,365 in 1992.

Pressure from administrators to censor articles or opinions since Hazelwood has caused some student-publications advisers to question their role to guide, teach, and provide advice, but not censor or take over the functions of the editor. Some student journalists, threatened with prior review and discouraged from pursuing more important topics, are practicing self-censorship, and not dealing with issues relevant to students.

The Hazelwood decision prompted a national survey of principals and advisers to seek their attitudes in three areas: (1) the printing of controversy in the school newspaper; (2) the importance of protecting First Amendment rights in general and those of the students in particular; and (3) the responsibilities of the faculty adviser to the newspaper. Responses included all 50 states, the District of Columbia, and Puerto Rico.

  • Controversy: In the first area, principals were more interested in maintaining discipline in the school than in publishing a newspaper free from administrative censorship, and in maintaining the right to prohibit the publication of articles they think harmful, even though they might not be legally libelous, obscene, or disruptive.

Advisers more strongly supported students' rights to publish a newspaper without prior restraint. Both principals and advisers accepted publication of certain specific items: those critical of the school board, controversial issues, and issues of the larger community beyond the school. Both also indicated that students are sufficiently mature to publish student newspapers, though advisers ranked higher than principals in this belief.

  • Students' Rights: In the second area, both principals and advisers favored protecting First Amendment rights of all groups and individuals. Advisers rated guarantees of freedom of expression above public-relations considerations, while principals rated the two as about equal. Principals agreed somewhat that advisers have a professional obligation to inform them when the student newspaper plans to publish a story that will embarrass the school; advisers disagreed. And principals were almost neutral on whether the student paper should publish the truth even if it would hurt the school's reputation; advisers favored publishing such stories.
  • Role of the Adviser: In the third area, principals agreed that advisers should read and review all copy before publication and that they should correct misspellings and factual inaccuracies in student-written copy; advisers showed a significant difference in degree of agreement on everything except correcting factual inaccuracies. Principals indicated that the faculty adviser is ultimately responsible for the content of the student newspaper, while advisers were neutral. The fact that principals agreed that these jobs were part of the role of the adviser shows that there is a lack of understanding of the definition of the adviser: to advise, but not censor or act as editor.

Answers to questions involving the Hazelwood decision and what it really meant to student publications indicated that principals did not fully understand the law; more advisers showed understanding of the law, though a number indicated more censorship following the 1988 decision than before.

The Student Press Law Center notes that Hazelwood does not apply if student editors have been given final authority over content decisions, or if the school has designated a student publication as a forum in writing or in practice. The Court did not eliminate the forum theory, but merely said the circumstances in Hazelwood did not make that particular newspaper a forum, as most other high school newspapers are if they are open to news, opinion pieces, and student expression, and distributed among the student body.

Since in this survey principals scored higher than advisers on harm avoidance and advisers' duties, and lower than advisers on students' rights and legal knowledge, advisers may be well advised to work with their principals to narrow this gap and increase understanding.

Greater attention by principals to students' First Amendment rights, to legal information about student publications, and to reducing advisers' involvement in correcting student errors could lead to a better balance and a freer student press.

Our forefathers recognized the role of a free press in a free society. We, too, must remember that freedom of the press as guaranteed in the First Amendment is not just a right of the press, but a right of the public--the public served by the student press in that school community--to know the truth and to be better informed through the encouragement of critical thinking.

Restricting free expression in the student press not only violates constitutional freedoms but also undermines the philosophical foundations on which academic freedom is based. Students who regularly experience censorship of student publications will be less likely to have the inquiring, challenging minds of the best journalists and the best citizens.

Lillian Lodge Kopenhaver is the associate dean and a professor in the school of journalism and mass communication at Florida International University. She is past president of College Media Advisers.

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