The Free Press and You: How does the First Amendment apply to student media?
If you and your fellow students want to air your opinions or have important stories published, the school newspaper is usually a good place to start.
But what happens when your opinions are controversial or the school doesn’t like what’s being printed in the school newspaper? Doesn’t the First Amendment’s guarantee of freedom of the press apply to you in these cases? Are there limits to your constitutional rights as a result of you being a student?
The freedom of the press provision of the Bill of Rights gives newspapers, magazines and other publications the right to print factual stories on whatever they see fit, controversial or conventional, without interference from the government. The framers found the concept so important that they placed alongside freedom of speech, religion and assembly:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A student at Canon-McMillan High School got a firsthand lesson on freedom of the press in 2006. Student journalist Danielle Hibler wrote an investigative article about a dangerous practice in which kids cut off oxygen to their brains, risking brain damage or death, in an attempt to get high. Upon reviewing the article, the school’s vice principal said it could not be published, effectively censoring the newspaper. Hibler appealed the decision, arguing that her First Amendment rights were violated and that Freedom of the Press should allow her to convey what she felt was an important message.
Hibler said many young people who participate in the practice don’t realize how dangerous it is and don’t think they’re doing anything wrong because it doesn’t involve drugs and isn’t illegal. She wanted to tell people of the dangers, including the story of one girl who died, to dissuade young people from trying it. The administration feared that the article would incite other kids to copy the practice.
The Bill of Rights included the concept of freedom of the press because the framers felt that a free press is vital to a democratic society. If governments were allowed to suppress opinions with which they disagreed and kept those opinions out of newspapers and publications, then the free exchange of ideas would be limited in the public sphere, and members of the public would be less informed on what is going on around them. According to the framers, democratic participation depends on an informed public.
In King George’s England, nothing was allowed to be printed without express consent of the government. This led to the government suppressing pamphlets and publications that expressed controversial viewpoints, in both Britain and the 13 original American colonies. Some printers who wanted to air these views anyway, such as Thomas Paine, were forced to print up their leaflets anonymously and distribute them through underground channels. When the Revolutionary War was won and the framers drafted the Constitution, they severed government involvement in the press in the interests of promoting a more open dialogue in society.
Over the years, the American media has embraced this role as a watchdog of the government, using its First Amendment protections to hold public officials accountable. In fact, many refer to the U.S. news media as the “Fourth Estate” or “fourth branch of government”, fitting into the system of checks and balances among the executive, legislative and judicial branches. Accordingly, media personnel are often the first to report on any wrongdoing by public officials, and by covering routine press conferences and interviews, reporters help the public determine whether political leaders are acting in the best interest of the public.
During elections, the free press helps to inform voters about the candidates, the issues and candidates’ platforms, whether they’re running for president or city council.
Freedom of the press is also important in keeping the public informed of issues that, perhaps, the government would rather keep secret. An example of that is the Supreme Court case New York Times Co. v. United States, commonly known as “The Pentagon Papers Case,” which happened during the height of the Vietnam War in 1971.
A 7,000 page top secret government document that studied the U.S. military’s role, policies and planning in Vietnam commissioned by Defense Secretary Robert McNamara in 1967, the “Papers” were leaked to the New York Times in 1971, and the paper began publishing a series of stories based on the study’s findings. In response, the government obtained a court injunction to keep the paper from publishing any further stories based on its classified information. The Time appealed and in court, government officials argued that the Times articles compromised national security while the paper said that the motive was actually political censorship, which violated the First Amendment. On June 30, 1971, the Supreme Court ruled 6-3 in favor of the Times, and the paper was allowed to continue publishing its series. Justice Hugo Black offered a consenting opinion that highlights his reasoning based on the role of a free press:
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”
A tough lesson for the high school press
By invoking the freedom of the press argument, the Canon-McMillan student journalist hoped to appeal to the school administration’s sense of a free press in U.S. history. But a key factor is missing here: the First Amendment prevents any government – meaning Congress, state legislators the president or any other elected official – from abridging the freedom of the press. However, it does not apply to the authority of owners and publishers of newspapers and media outlets to suppress or edit whatever they feel necessary.
Most school newspapers are student-run and student-edited, although schools and school districts pay for their printing and publication and serve as their publishers. As such, school district officials usually have the final say on any stories their publications contain. This a tough lesson learned by student journalists all across the country, and the issue even made it to the Supreme Court.
Hazelwood School District v. Kuhlmeier dealt with a high school near St. Louis, Mo., where, in 1983, students saw two pages missing from their newspaper, The Spectrum. Principals there found two articles unfit for publication: one concerned teen pregnancy and contained interviews with pregnant Hazlewood students whose names were changed to protect their identities. The other article dealt with divorce.
Principal Robert Reynolds said the pregnancy article was not appropriate for a high school audience and that the anonymity of the girls interviewed did not provide adequate protection in the small school community. He also said the divorce article was not fair and balanced, since a student criticized her father without providing his viewpoint. Students were outraged with the decision – the authors of both the contested articles and the authors other articles on the page, who also had their work pulled. They sued, and the case made it to the Supreme Court in 1988, which ruled 5-3 in favor of the school district.
The court’s ruling said that, while students do not shed their freedom of speech and freedom of press rights at the schoolhouse gate, the schools shouldn’t tolerate student speech that “is inconsistent with its basic educational mission.” This includes writing that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences,” or that advocates “conduct otherwise inconsistent with the shared values of the civilized social order.”
The court concluded that the school administration was justified in finding divorce article biased, that the “frank talk” by students about their sexual history was “inappropriate in a school-sponsored publication distributed to 14-year-old freshmen,” even though it was not graphic. In the court’s majority opinion, Justice Byron White wrote:
“Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
Hazelwood goes to college
The Hazelwood decision led to “a sharp increase in high school censorship,” according to Tony Mauro of The Media Institute, a nonprofit organization that monitors First Amendment issues. But it wasn’t until 1997 that the standards of the Hazelwood ruling were applied at the college level.
The particulars of the Kincaid v. Gibson case seem, at first, less controversial. There were no divisive articles or insufficiently protected anonymous sources. Simply put, college leaders at East Kentucky State University felt the yearbook was ugly. It had purple foil and a collage of random celebrities and political leaders that seemed not at all related to the school or the students. They held back publication, and yearbook staffers and students were protested.
In 1997, Federal District Court Judge Joseph Hood invoked Hazelwood and ruled in favor of the university: In his opinion, Joseph stated, “The yearbook was not intended to be a journal of expression and communication in a public forum sense, but instead was intended to be a journal of the ‘goings on’ in a particular year at KSU” and that the school had the right to censor it for not fulfilling that role.
An initial panel from the Sixth Circuit Court of Appeals upheld Hood’s decision in 1999, but the full appeals court heard the case in early 2001, and declared that the yearbook was indeed a public forum, since KSU was a state university and that its administration was not allowed to engage in censorship of a public university publication. Judge R. Guy Cole wrote:
“There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it. We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government.”
What do you think?
Like the Kincaid case, Hibler’s story eventually had a happy ending for students. Following the outcry over the censoring its newspaper, her article was published in the Post-Gazette and Observer-Reporter newspapers. A discussion ensued, and the school decided the article would be published in the student newspaper that April after all, preceded by a letter to parents that provided warning and medical information.
However, despite the willingness of some educators to provide an open forum for student journalists, many young reporters are forced to confront the difficult reality that, even though they have First Amendment free press rights, owners and publishers of the student press (often schools and school districts themselves) have the authority to censor their own publications.
What is your view of the role of a free press in the United States? What would the country be like if the framers did not include this provision in the Constitution? What is the role of a free press in a school environment? How do you think the Kincaid case would have been decided if it had been at a private university? Has newspaper censorship ever happened at your school? Should student journalists be completely free to publish without censorship or do administrators sometimes have legitimate reasons to pull stories? If so, when do you think it’s okay for them to do so? If you were a student who had your work censored, how would you react? What other outlets do you have for your voice? Join the discussion on free press and let us know what you think!
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