Do we relinquish our First Amendment rights the moment we step past the schoolhouse gates?
Does my principal have a legal justification for censoring that article critiquing the school’s budget cuts, or does she simply want to avoid backlash?
And if I’m a private school journalist, am I entitled to the same First Amendment defenses as my public school student counterparts?
Our rights as student journalists are a mountainous, confusing terrain to traverse alone. I, a student journalist, and Mike Hiestand, the Senior Legal Counsel for the Student Press Law Center, are here to help.
Below, you’ll find a guide to student press freedom — a topic that, once broken down, will be as easy as 1-2-3: We’ll explore the one right we should all cherish, the First Amendment, the two Supreme Court cases that defined our rights, Tinker v. Des Moines and Hazelwood v. Kuhlmeier, and the three key concepts (public versus private schools, prior review, and helpful resources from the SPLC) that are necessary in understanding our rights.
Let’s get started, shall we?
ONE: FIRST AMENDMENT
The First Amendment says, in no uncertain terms, that “Congress shall make no law […] abridging the freedom of speech, or of the press.”
Let’s give an example. Say that you, a student, are handing out flyers advocating for less standardized testing. In Situation 1, you hand them out in front of a local grocery store, and the manager rips them from your hands and forces you to leave the area. In Situation 2, you hand them out to classmates at your public school, and your disapproving principal shoves them in the trash.
The principal violates the First Amendment. The grocery store manager does not.
“The First Amendment only protects against government censorship,” Hiestand said. “It says ‘Congress shall make no law…’ at the beginning. So in order for the First Amendment to kick in, there has to be some sort of government action or state action.”
Since a grocery store manager is a private citizen acting on his own and a public school principal is a government official, only the principal’s actions violate the First Amendment. For this same reason, private school students “unfortunately have no First Amendment protection,” according to Hiestand — because a private school headmaster, for example, is not a government official.
Information about public versus private school student press protections is discussed extensively later. For now, let’s get into two Supreme Court cases every student journalist should know, because they still impact students today.
TWO: COURT CASES TO KNOW
In Tinker v. Des Moines (1969), junior high school students Mary Beth Tinker and Christopher Eckhardt were suspended from their school in Des Moines, Iowa, for wearing black armbands in support of a truce in the Vietnam War. The case made it all the way to the Supreme Court, and the 7-2 ruling was utterly sublime for students nationwide.
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Justice Abe Fortas wrote for the majority, which ruled in support of Tinker and Eckhardt. Essentially, the Tinker v. Des Moines ruling protects all student speech except disruptive speech, such as encouraging a school walkout.
Despite certain limitations, the Tinker case set a precedent, according to Hiestand.
“The Tinker case was really the first time where the [Supreme Court] said that yes, in fact, students are persons under the Constitution, and they are protected by the First Amendment, even when they’re in school,” Hiestand said. “That is the foundation upon which every student speech case is built, so you have to know that one.”
Nearly 20 years later, another Supreme Court case rolled around, Hazelwood v. Kuhlmeier, that more precisely defined student journalists’ rights, and distinguished them from student rights as a whole. The ruling, however, was grim.
In 1988, student journalists at Hazelwood East High School planned to publish two articles about family life, one about divorce and the other about the experiences of pregnant students, who remained anonymous. The principal’s response? He stopped the articles from being printed, finding them both to be inappropriate. The case, which Hiestand’s colleagues at the SPLC felt would be “easy” to settle, eventually made its way to the Supreme Court.
After the Supreme Court ruled on the Hazelwood case, Hiestand was unbelievably “surprised.”
“It was a surprise, I think, to everybody — one, that the Supreme Court took the case, and two, that the decision really was as bad as it was,” Hiestand said.
The Hazelwood decision, according to Hiestand, “gives school officials unprecedented sorts of power.” Under the Hazelwood standard, schools can declare a student journalist’s article “poorly written,” “inappropriate,” or “inconsistent with the shared values of a civilized social order” (“whatever that means,” Hiestand grumbled), all being “reasonable educational justifications” for opening it up to censorship.
Contrary to what some public school officials seem to believe, however, Hazelwood does not give school officials an unlimited license to censor. They cannot, for instance, “censor an article or editorial simply because they disagree with it,” according to the SPLC. Still, the standards for censorship under Hazelwood, as described previously — inappropriate, poorly written, and more — are nonetheless “squishy,” according to Hiestand.
“Because the Hazelwood decision in 1988 was so awful—I mean really, it did such great damage to student press rights—a number of states have passed their own free press protections,” Hiestand said.
These 14 states with laws that protect the First Amendment rights of student journalists, counteracting the impact of Hazelwood v. Kuhlmeier, include Arkansas, California, Colorado, Illinois, Iowa, Kansas, Maryland, Massachusetts, Nevada, North Dakota, Oregon, Rhode Island, Vermont and Washington. In the remaining 36 states, however, the Hazelwood decision reigns supreme.
Now, how can both the Tinker and Hazelwood decisions coexist? Doesn’t Hazelwood override any possible strides made in Tinker? The answer, Hiestand says, is no. What the Supreme Court argued in Hazelwood is that the non-school sponsored speech of Mary Beth Tinker, being that of one individual making an independent decision to wear an armband, is different from the school-sponsored speech of a school newspaper, where “the school helps pay for the printer, they have an advisor they pay, and the students take the class for grades,” according to Hiestand.
“[The Supreme Court] said because they are two different types of speech, there should be two different types of legal standards. So [Hazelwood] didn’t overrule Tinker,” Hiestand said. “For most student journalists, Hazelwood is the law that you start with, unless you can get out from under it with a state law.”
THREE: KEY CONCEPTS
#1: PUBLIC VS. PRIVATE SCHOOLS
Private school students, I have some bad news.
Essentially, for the same reason that Donald Trump being banned from Twitter, a private company, does not violate the First Amendment, private school administrators censoring student newspapers does not violate the First Amendment either.
“In a private school, you really don’t have any sort of First Amendment protection from your headmasters’ censorship, since they’re not government officials,” Hiestand said.
Even so, some states, such as California and Rhode Island, include protections for private school student media within their state laws. However, students not in California or Rhode Island are “probably out of luck,” according to Hiestand. Even the low standard for censorship set in Hazelwood is not applicable to private school journalists, because Hazelwood is, at its heart, a First Amendment case.
Here’s a silver lining: some private schools that “really believe in free speech” may choose not to censor their school’s publication, according to Hiestand. Still, while this is a heartwarming policy, it is not a requirement.
“For those schools, you can hold them to their promise, kind of on a contractual basis, but it’s not a constitutional sort of protection,” Hiestand said.
One private school’s censorship standards for their student-run newspaper may differ significantly from another, because none are held to one solidified federal standard. If you attend a private high school, I suggest you explore what your school’s standards are.
#2: PRIOR REVIEW AND PRIOR RESTRAINT
Prior review and prior restraint: These are two phrases you may have heard thrown around your journalism classroom, or spoken in passing at journalism conventions. Maybe you haven’t heard of them at all. Whatever the case may be, let’s break them down here.
“Prior review” is the practice of school administrators, both public and private, reviewing student media before publication. Prior review means reading only.
“Pretty much every major journalism education group in the country has said that [prior review] is simply the wrong way to teach journalism,” Hiestand said. “But legally, if a high school official insists on prior review, there’s probably not a whole lot you can do about it.”
The moment a school official moves from simply reading content to censoring it, that act becomes “prior restraint,” according to the SPLC.
“The next step is prior restraint, or censorship,” Hiestand said. “That’s where the law kicks in.”
#3: HELPFUL RESOURCES
Want to learn more?
The SPLC, a nonprofit organization that aims to protect the freedom of the press for student journalists, has a website filled to the brim with helpful resources. There, you’ll find comprehensive legal guides, engaging quizzes, and a legal hotline, which allows one to schedule a phone call with a member of the SPLC legal team.
As student journalists, our voices are powerful. It’s no surprise that some school officials want to silence them. Still, armed with extensive knowledge of our rights and rebuttals to all nonsensical censorship arguments, we can head out into our communities, confident that we can do what student journalists are meant to do: expose the truth.
“It’s you. You are the next generation of people behind the microphones and behind the keyboards, doing the work that we do,” Hiestand said. “Lately, we have had journalists out there who are reporting the truth, who are standing up and saying what’s important. Boy, if we don’t have that going forward, we’re all going to lose a lot.”