Dude, We Got Our Free Press Rights Back!

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By: Mark Fitzgerald

After a courtroom losing streak that has extended nearly two decades — since the U.S. Supreme Court blithely concluded in 1988 that high school principals were effectively private publishers who can spike anything at all in the school paper — high school journalists finally won one on Tuesday.

A state appeals court ruled that the California Educational Code really means it when it says high school students have First Amendment rights even when they’re in working on the school paper.

“It’s sweeping because the California statute at issue has had very few opinions on point, and this one really went to the heart of this issue, which is what sort restrictions can school districts impose on controversial speech,” Paul J. Beard II, an attorney with the Pacific Legal Foundation, said in a telephone interview Tuesday night.

“Because it’s a published decision, it will affect every school in California,” he added. “This ensures that speech on campus is not suppressed or punished or censored because it happens to offend parents or students.”

In a decision written by Judge Linda M. Gemello, the California First District Court of Appeal declared that state law “mandates that a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.”

Throughout the land, principals are censoring or spiking stories about teen pregnancy, drug use, alcohol abuse, or any other controversy for fear that it might rile up students or the community. The California appeals court firmly rejects this “heckler’s veto.”

The case at issue, Andrew D. Smith v. Novato Unified School District, brought some odd bedfellows into court.

Pacific Legal Foundation is a conservative-oriented group that usually spends its time defending property rights. In 2001, it was looking to take up the cause of free speech on high school campuses, preferably one that involved a kid taking a politically incorrect stance. The radio screecher Michael Savage found them the perfect case in Andrew Smith, a senior at Novato High School who had written two controversial columns for the school paper The Buzz.

But this wasn’t only a right-wing cause. The American Civil Liberties Union filed an amicus brief in the case, and was “very useful” during the litigation, Beard said. The Student Press Law Center in Washington, D.C., also weighed in on Smith’s side.

The most critical issue in the Smith case is whether California’s “anti-Hazelwood” law has any teeth, or if it can be interpreted just about any way a principal facing a bothersome writer wants it to read.

California was one of a handful of states that adopted school-press laws in the wake of the 1988 U.S. Supreme Court decision in Hazelwood School District v. Kuhlmeier. California’s Education Code states that “school districts … shall not make or enforce any rule subjecting high school pupils to disciplinary actions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus” is protected by the First Amendment and California’s state constitutional guarantees of free speech.

On top of that the Novato school district had an even more expansive code that uses the simple and direct language of the First Amendment itself: “Students have the right to exercise freedom of speech and of the press and have the right to expression in official publications.”

Prior restraint by school authorities is forbidden unless it is obscene, libelous, slanderous, or constitutes sexual harassment or a “clear and present danger that students will be incited to commit unlawful acts on school premises.”

By those standards, Smith’s first column, the one that stirred up most of the ruckus on campus and court, was not subject to prior restraint. And, indeed, his column was reviewed by the principal and cleared for publication in The Buzz.

Smith’s piece, dully titled “Immigration,” will never be anthologized alongside the writings of Mike Royko, Jimmy Breslin, George Ade, or H.L. Mencken. Well, maybe some of Mencken’s anti-Semitic screeds.

“Immigration” is the kind of ill-reasoned, insulting, full-of-itself opinion column that embarrasses the writer when he is finally old enough to buy beer. The young Smith — he’s now a Marine corporal in training in Thailand, the Pacific Legal Foundation says — didn’t see what was so hard about settling this whole illegal immigration thing.

Here’s a sample: “It can’t be hard to find and detain the people who can’t speak English. If a person looks suspicious than just stop them and ask a few questions, and if they answer ‘que?,’ detain them and see if they are legal.”

Not surprisingly, the article was not appreciated by some students and parents in multicultural Marin County, Calif. When some students and adults marched on the campus in protest, the school authorities ignored all that jazz about the right to exercise free expression in official publications.

The schools superintendent ordered the confiscation of all undistributed copies of The Buzz. The district wrote an apologetic letter that said the article had violated its own code and the state statute on student free speech — which would be its undoing before the appeals court. Finally, the school hosted a meeting where kids and parents could vent about the article, and where, so the lawsuit claimed, Smith was denounced and reprimanded.

I talked Tuesday night with Dennis J. Walsh, whose firm represented the school district. He had just gotten the decision, and it was way too early for the district to decide whether it would appeal.

But he vigorously maintains the school district did nothing to suppress Smith’s rights, and that’s its actions after the publication of “Immigration” caused an uproar were appropriate.

The district can find some comfort in the appellate decision. The judges, for instance, say the apologetic letter and the public meeting were not reprimands or discipline of Smith.

To me, there’s something creepily reminiscent of a Red Guard self-criticism rally about holding an urgent “community” meeting to discuss the “hurt and anger” of students and parents. But I wasn’t there, and I suppose the appellate court’s decision to see this as the school district’s way of providing a peaceable forum for those protesting the article is probably the better view.

“A speaker who chooses to speak in a provocative manner cannot complain of infringement simply because some degree of attention is directed toward him,” the court says, wisely. “We decline to adopt a rule contrary to our nation’s traditions of open debate.”

On behalf of the district, Walsh argued that the unchallenged fact that masses of students walked out of school to protest “Immigration” was proof enough that the article was “inciting speech” under the code.

The appeals court, happily, did not see it that way:

“Although ‘Immigration’ communicates Smith’s viewpoint in a disrespectful and unsophisticated manner, it contains no direct provocation or racial epithets. We conclude that ‘Immigration’ was not inciting speech that the District was authorized to prohibit under section 48907. We cannot allow the reactions to “Immigration” by the reading audience (that is, the “heckler’s veto”) to silence Smith’s communication of unpopular views. ‘Immigration’ is protected speech.”

The district also violated Smith’s rights — and chilled future free speech — by sending “the clear message that no further speech similar to ‘Immigration’ would be tolerated,” the court said. “In the aftermath of ‘Immigration’ the District succumbed to the fear of disruption and discontent. While understandable, this was not permissible.”

The court said it was particularly troubled by the fact the schools superintendent ordered the confiscation of The Buzz “before he even read the opinion editorial.”

Smith and the Novato school district have been butting heads for five years in court over “Immigration.” The district won in the lower court, and Smith in 2005 had to hand over more than $20,000 in legal fees. He’ll get those back — plus the nominal damages of $1 awarded by the appellate court — if there’s no appeal.

One line from the court’s decision suggests everyone learned from the incident: “(I)t is likely that, viewed as a whole, the publication of ‘Immigration’ resulted in a useful exchange regarding how different persons and communities might view the sensitive topic of illegal immigration.”

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