Court Backs Censorship of High School Paper’s Sex Cartoon

By Mark Walsh — May 18, 2011 2 min read
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A New York State school district was on solid legal ground when it barred a high school student newspaper from publishing a sexually explicit cartoon, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously upheld the censorship of the cartoon depicting stick figures in various sexual positions.

Students involved with The Tattler, the student paper at Ithaca High School, sued the Ithaca, N.Y., school district alleging violations of First Amendment free speech rights, among other claims.

The incident stems from 2005, when the faculty adviser of The Tattler, a school-sponsored student newspaper, pulled the stick-figure cartoon and an accompanying article by a recent Ithaca High alumnus headlined, “Alumni Advice: Sex is Fun!” (The How Appealing web site has linked to this site containing documents from the case, with the cartoon on Page 18 of the PDF.)

Students appealed to the administration, but the administration backed the adviser. The district’s superintendent said the stick figures “appeal to the prurient interest in sex,” and that the cartoon would raise inappropriate questions in the minds of many students and interfere with the health curriculum’s lessons on sexual abstinence and responsibility.

After the newspaper adviser resigned (for reasons that aren’t clear), The Tattler did not publish for several months. Students sought permission to distribute an independent publication that included the stick-figure cartoon, but administrators turned them down. The students sued over that as well.

A federal district court upheld the school district’s actions, and in its May 18 decision in R.O. v. Ithaca City School District , the 2nd Circuit panel affirmed.

“We hold that defendants complied with the standards for regulation of speech in public schools set forth in Bethel School District Number 403 v. Fraser, which permits schools wide discretion to prohibit speech that is ‘lewd, indecent, or offensive,’ and Hazelwood School District v. Kuhlmeier, which permits schools to censor school-sponsored speech in ways ‘reasonably related to legitimate pedagogical concerns,’” Judge Jose A. Cabranes wrote for the court.

The stick-figure cartoon is “unquestionably lewd” and thus fell under Fraser, the judge said. And “the record clearly demonstrates that the paper was school-sponsored, or at least that its publication constituted an expressive activity that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school, which is sufficient to trigger the application of Hazelwood.”

As for the school district’s restriction on distributing the independent newspaper containing the cartoon, the court said it need not decide whether the publication would have been disruptive under U.S. Supreme Court’s landmark student speech case, Tinker v. Des Moines Independent Community School District, because the censorship of lewd speech was lawful under Fraser.

A version of this news article first appeared in The School Law Blog.