Mass Media Law CH 3 Textbook

*strict scrutiny*

1. *The rule must be neutral as to content, or what the courts call content neutral, both on its face and in the manner in which it is applied.* A rule that is content neutral is applied to all communications, regardless of what is said or printed. In other words, a law cannot permit the distribution of flyers promoting the construction of a new stadium, but restrict persons from handing out material in favor of tearing down a viaduct. A viable time, place and manner rule must be content neutral. An ordinance that is not content neutral is considered a content-based law and is subject to the much more rigorous _________________ standard of judicial review that requires the government to prove a compelling interst-not simly a substantial interest-and that the statute restricts no more speech than is absolutely necessary to serve the allegedly compelling interest. Sometimes a law will appear to be content neutral but is not becuase it gives far too much discretion to the officials who are assigned to administer it. Just because a statute restricts the noise or sounds level of speech does not necessarily mean that it is content neutral. It is only a content-neutral statute if all noises-all messgaes, all sounds, regardless of topic or subject matter-are treated equally. 2. *The law must not constitute a complete ban on a kind of communication.* There must be ample alternative means of accomplishing this communication. 3. *The state must articulate a substantial interest to justify this restraint on speech.* A ban against using loudspeakers to communicate a politcal message after 10 P.M. could surel be justified on the grounds that most people are trying to sleep at that time. A ban against passing out literature and soliciting money in the passageways between an airport terminal and the boarding ramps could also be justified by the state, which wants to keep these busy areas clear for passengers hurrying to board airplanes.But attempts by the government to ban distribution of handbills on city streets becuase many people throw them away and cause a litter problem are typically rejected. The state interest in keeping the streets clean can be accomplished by anti-litter law. At times communities have attempted to raise aesthetic reasons to justify limiting or banning newspaper boxes. Some courts refuse to allow these concerns alone to justify limits on First Amendment freedoms, usually noting that many other common objects on the streets (telephone poles, tash cans, fire hydrants, street signs) are also eyesores. Other courts have ruled that aesthetic considerations can be included in a community's justiification for limits. If the community can demonstrate a strong rationale for its aesthetic concerns, even a total ban on the placement of racks in a specific area might be acceptable. In addition to asserting a substantial interest, the state is required to bring evidence to court to prove its case. 4. *The law must be narrowly tailored so that it furthers the state interest that justifies it, but does not restrain more expression than is actually required to further this interest.* "A regulation is narrowly tailored when it does not burden substantially more speech than is necessary to further the government's legitimate interests." A law can be declared invalid if it fails to pass any of these four criteria. The manner in which courts apply the intermediate scrutiny test-how rigorously they employ it, how much deference they grant to asserted legislative interests and even whether they choose to use a different test-often depends on the nature of the specific location where the law in question applies.

Hosty vs. Carter

A more disturbing, disappointing and important federal appellate court decision affecting the college press was handed down in 2005 in ________________. The Hosty case centered on demands by university administrators in 2000 for prior review and apprvoal-a classic prior restraint on speech, in other words-of the Innovator, the student-run newspaper at Governors State University, located south of Chicago, III. The Innovator had previously published articles under the byline of student Margaret Hosty that were critical of a school official, sparking the confrontation. A major issue in the resulting lawsuit was whether the legitimate-pedagogical-concerns atandard articulated by the U.S. Supreme Court in the Hazelwood case for controlling the censorship of school-sponsored, high school newspapers that are part of the curriculum is also applicable to college newspapers. In Hosty, the student-jpurnalist plaintiffs argued that Hazelwood's legitimate-pedagogical-concerns standard was never made applicable to the college press, and they contended that university administrators cannot ever insist that student newsppaers be submitted fro review and approval. But by a 7-4 vote, the U.S. 7th Circuit Court of Appeals rejected these contentions and rebuffed the idea that there is a bright-line difference between high school and college newspapers. The 7th Cirtcuit Court wrote that the Supreme Court's footnote in Hazelwood "does not even hint at the possibility of an on/off switch:high school papers reviewable, college papers notreviewabel." It added that "whether some review is possible depends on the answer to the public-forum question, which does not (automatically) vary with the speakers' age." The key in Hosty, then, was whether the student newspaper constituted a public forum. Writing for the seven-judge majority in Hosty, Judge Frank Easterbrook articulated a rule that "speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the colege level." Thus, for the majority of the 7th Circuit, "Hazelwood's first quesion therefore remains our principal question as well: was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised?)" this meant that the appellate court had to examine the status of the particular student newspaper at issue in Hosty, namely the Innovator, to determine whether or not it was a public forum. The court noted that if the Innovator "operated in a public forum, the University could not vet its contents." The appellate court, unfortunately, held that it was not possible on the record in front of it to determine what kind of forum Governors State University had established with the Innovator. The court did, however, provide some guidance on this for the future, noting among other things that -whiel "being part of the curriculum may be a sufficient condition of a non-publicc forum, it is not a necassry condition. Extracurricular activities may be outside any public forum...without also falling outside all university governance." In other words, just because a college newspaper is an extracurricular activity and not part of the curriculum does not mean that it necessarily escapes all university contreol or regulation -"a school may declare the pages of the student newspaper open for expression and thus disable itself from engaging in viewpoint or content discrimination while the terms on which the forum operates remain unaltered." Another important factor in the public forum determination of a university newspaper is whether the university underwrote and subsidized the newspaper without any strings attached or, conversely, whether it "hedge[d] the funding with controls that left the University itself as the newspaper's publisher." It is important to remember that the decusion is binding in only the three states that comprise the 7th Circuit Court of Appeals-Illinois, Indiana and Wisconsin. Second, many college newspapers, such as the Alligator at University of Florida, are independent of the universities that their student-journalists attend and are not directly funded by the university. In 2006, California became the first state to pass so-called anti-Hosty legislation after the U.S. Supreme Court refused earlier that year to hear the Hosty case. California's new law prohibits state public university officials from making and enforcing rules "subjecting any student to disciplinarysanction solely on the basis of conduct that is speech or other communication that, wen engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amednment." In brief, the law prohibits prior restraints and censorship by university administrators (officials, for instance, in the Univeristy of California and California State University systems) of public college and university newspapers. This, in turn, means that the Hazelwood rule cannot apply to the public collegiate press in California; instead, college newspapers in the Golden State must be treated like real-world professional newspapers such as the Los Angeles Times and the San Francisco Chronicle.

never

Although Tinker's material-and-substantial interference or disruption standard remains good law and has _________ been overruled, many lower courts attempt to factually distinguish Tinker in student-speech cases to avoid applying its precedent.

greatest least

At least 4 categories of traditional communications media were common use when the internet first burst onto the scene, and even today each is regulated somewhat differently by the law. The printed press-newspapers, magazines, books and pamphlets-enjoys the ___________ freedom of all mass media from government regulation. The over-the-air broadcast media-television and radio-enjoy the ________ amount of freedom from governemnt censorship. Cable television is somewhere between these two, enjoying more freedom than broadcasting but somewhat less than print. Few limits are placed on the messages transmitted via the telephone, and those that are must be very narrowly drawn. There are some ifs, ands or buts in this simple outline, but it is an accurate summary of the hierarchy of mass media when measured by First Amendment freedom.

school newspapers is a serious First Amendment issue in America today.

Censorship of _______________________

4

Courts have identified ____ kinds of forums:

Son of Sam

Efforts have been made by government to stop felons from receiving money that might be earned by selling stories about their crimes. Many civil libertarians say this is a prior censorship. The laws in question, which have been adopted in one form or another by about 40 states and the federal government, are called "_____________" laws after a serial killer in New York who was dubbed that name by the press. Beofre the Son of Sam (David Berkowitz was caught, reports circulated that the press was offering to pay for the rights to his story. The New York legislature responded to those reports by passing a law that permits the state to seize and hold for 5 years all the money earned by an individual from the sale of his or her story of crime. The money is supposed to be used to compensate the victims of the crimes caused by the felon. The criminal/author collects what is left in the fund after five years.

Tinker vs. Des Moines

For centuries students were regarded as second-class people and were told it was better to be seen and not heard. Parents were, and still are, given wide latitude in controlling the behavior of their offspring, and when these young people moved into schools or other public institutions, the government had the right to exercise a kind of parental control over them: in loco parentis, in the place of a parent. *During the social upheaval of the 1960s and 1970s, students began to assert their constitutional rights, and in several important decisions the federal courts acknowledged these claims.* In 1969, in the case of ____________________, the Supreme COurt ruled that students in the public schools do not shed at the schoolhouse gate their constitutional rights to freedom of speech or expression.

1. Rules must be content neutral 2. Rules must not constitute a complete ban on communication 3. Rules must be justified by a substantial state interest 4. Rules must be narrowly tailored

Guidelines for time, place and manner restrictions: 1. 2. 3. 4.

*fighting words doctrine* face-to-face

Hate speech-words written or spoken that attack individuals or groups because of their race, ethnic background, religion, gender or sexual orintation-is a controversial but not altogether uncommon aspect of contemporary American life. Few people openly acknoqledge a value in such speech, but there is a considerable debate over what to do about it. The Suprmeme Court endeavored to balance these issues 70 years ago when it ruled that those who print such invective in newspapers or broadcast them on the radio or paint them on walls or fences are generally protected by the Constitutin, but those who utter the same words in a face-to-face confrontation do not enjoy similar protection. The case involved a man named Chaplinksy, who was a member of the Jehovah's Witness religious sect. Face-to-face proselytization or confrontation is a part of the religious practice of the members of this sect. Chaplinsky attracted a hostile crowd as he attempted to distribute religious pamphlets in Rochester, New Hampshire. When a city marshal intervended, Chaplinsky called the officer a "G-d-damned racketeer" and a "damned fascist." The Jehovah's Witness was tried and convicted of violating a state law that forbids offensive or derisive speech or name-calling in public. The Supreme Court affirmed the conviction by a 9-0 vote. In his opinion for the court Justice Frank Murphy outlined what has become known as the _______________________. *There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which hav never been thought to raise any constitutional problems.* Fighting words may be prohibited, then, so long as the statutes are carefully drawn and do not permit the application of the law to protected speech. Also, the fighting words must be used in a personal, _____________ encounter-a true verbal assault. The Supreme Court emphasized this latter point in 1972 when it ruled that laws prohiibting fighting words be limited to wrods "that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." It is important to note that the high court has given states permission to restrict so-called fighting words becasue their utterance could result in a breach of peace,a fight, a riot; not becuase they insult or offend or harm the person at whom they are aimed. Finally, there is not an official list of words that are always classified by courts as "fighting words." Whether any given word amounts to a "fighting word" depends on the context of how it is used and to whom it is addressed.

teen pregnancy permissible

In 1983 the principal at Hazelwood East High School near St. Louis censored the school newspaper by completely removing 2 pages that contained articles about __________________ included personal interviews with 3 Hazelwood students (whose names were nto used) about how they were affected by their unwanted pregnancies. There was also information about birth control in the story. The story on divorce quoted students-again not identified-about the problems they had suffered when their mothers and fathers had split up. The censorship of the articles was defended on the grounds of privacy and editorial balance. School officials said they were concerned that the identity of the 3 girls who agreed to anonymously discuss their pregnancies might nevertheless become known. School officials said they acted to protect the privacy of students and parents in the story on divorce as well. In addition, the principal said the latter stroy was unbalanced, giving the views of only the students. In 1988 the Supreme Court ruled that the censorship was __________________ under the First Amendment.

Pitt News vs. Pappert

In 1996, Pennsylvania adopted a law known as Act 199. The law prohibited the paid dissemination of alcoholic beverage advertising in college newspapers. After Act 199 became law, the Pennsylvania Liquor Control Board issued an advisory notice clarifying how the law applied to universities and the collegiate press. Under this law, an advertisement paid for by a local bar in State College, Pennsylvania and placed in the student newspaper at the Pennsylvania State University, the Daily Collegian, that described the availability and/or price of beer at the bar during happy hours would not be permissible. The student newspaper at the University of Pittsburgh, the Pitt News, decided to challenge the law on First Amendment grounds because the Pitt News, like the Daily Collegian had received a substantial portion of its advertising revenue from alcoholic beverage ads prior to the enactment of Act 199. Pennsylvania, in contrast, argued that the law was necessary to curb both underage drinking (although many college students and all faculty are of at least the legal drinking age of 21) and binge drinking/alcohol abuse. The theory on the latter interest apparently was that if student sdidn't know where the cheap beer was being served because they couldn't find advertisements for it in college newspapers, then they wouldn't drink as much. In 2004, however, the U.S. Court fo Appeals for the 3rd circuit held in a _____________________ that Act 199 violated the First Amendment rights of the Pitt News and, by implication, other college newspapers in Pennsylvania. The appellate court ruled that the law was "an impermissable restriction on commerical speech" and that it was presumptively unconstitutional because it targeted a too narrow segment of the media-newspapers affiliated with colleges and universities-and thus conflicted with U.S. Supreme Court precedent on taxation of the press. The appellate court observed that Pennsylvania "has not pointed to any evidence that eliminating ads in this narrow sector [of media] will do any good. Even if Pitt students do not see alcoholic beverage ads in the Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with the Pitt News." The appellate court added that "in contending that underage and abusive drinking will fall if alcoholic beverage ads are eliminated from just those media affiliated with educational institutios, the Commonwealth relies on nothing more than 'speculation' and 'conjecture.'" The court suggested that rather than restriciting the First Amendment speech and press rights of college newspapers, the "most direct way to combat underage and abusive drinking by college students is the enforcement of the alcoholic beverage control laws on college campuses." (the statute was originally held unconstitutional on First Amendment grounds).

Communications Decency Act

In 1997 the Supreme Court ruled that communication via the Internet deserves the highest level of First Amendemtn protection, protection comparable to that given to print newspapers, magazines and books. The high court made this decision as it ruled that the central provisions of the 1996 ______________________ that restricted the transmission of indecent material over the Internet violated the U.S. Constitution. Recognizing that each medium of communication may present its own constitutional problems, Justice John Paul Stevenswrote thatthe members of the high court could find no basis in past decisions for "qalifying the level of First Amendment scrutiny that should be applied to this medium [the Internet]." The court rejected the notion prevalent among those in Congress who voted for the Communications Decency Act that communication via the Internet should be treated in the same manner as communication via over-the-air radio and television. The court said that the scarcity of frequencies that had long justified the regulation of broadcasting did not apply in the case of the Internet, which, it said, can hardly be considered a "scarce" expressive commodity. The importance of this ruling cannot be overestimated. Not only did the court strike down a restrictive federal law that was certain to retard the growth of computer-mediated communciation, it ruled that any other governmental agency that seeks to regulate communciation via the infirmation superhighway must treat this medium in the same manner it would treat a print newspaper or book.

Morse vs. Frederick Tinker

In 2007, the U.S. Supreme Court heard a student-speech case called ____________________. In this dispute, known as the "Bong Hits 4 Jesus" case, the 9th U.S. Circuit Court of Appeals ruled in 2006 that the first Amendemnet protected a studebt's right to unfurl, while standing on a sidewalk across the street from hish high school as an Olympic torch relay passed by, a banner emblazoned with that drug-related catchphrase. The sudents at Juneau-Douglas High School in Alaska had permission to be on the sidewalk during hte relay and were under teacher supervision. While student Joseph Frederick claimed the "Bong hits 4 Jesus" language was meaningless, funny and done in order to get on television, Principal Deborah Morse did not find it amusing and considered it a pro-drug message in conflict with the school's "basic educational mission to promote a healthy, drug-free life style." Frederick's banner was taken down and he was suspended for 10 days. In ruling for Frederick, the 9th Circuit applied the ________ standard. Noting there was no substantial and material disruption of educational activities caused by Frederick's banner, the 9th Circuit focused on the fact that the school conceded the banner "was censored only because it conflicted with the school's 'mission' of discouraging drug use." The school petitioned the U.S. Supreme Court to hear the case and to reverse the 9th Circuit's opinion. The school was represented by Ken Starr, the former independent counsel who investigated Bill Clinton's affair with Monica Lewinsky. Starr asled the nation's high court to consider the following question: "Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events." The Supreme Court ruled in 2007, holding that the First Amendment rights of Joseph Frederick were not violated. Writing for a 5-member majority of the court, Chief Justice John Roberts explained that "school smay take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encourging illegal drug use. We conclude that the school offciails is this case did not violate the First Amendment byh confiscating the pro-drug baner and suspending the student responsible for it." Roberts rejected the idea that the banner constituted political speech, writing that "this is plainly not a case about political debate over the criminilization of drug use or possession." The long-term impact of this decision in Morse remains to be seen, but the ruling itself was very narrow and limited. It is important to note that the court in Morse did not overrule Tinker, Hazelwood, or Bethel; those decisions remain intact. The Morse opinion is limited in scope to nonpolitical speech that advocates or celebrates the use of illegal drugs. Unfortunately for advocates of student-speech rights, some courts are stretching the Supreme Court's ruling in Morse far beyond its narrow facts about nonpolitical speech advocating illegal drug use. Just 6 months after Morse, the 5th U.S. Circuit Court of Appelas interpreted Morse to stand for a broad, pro-censorship principle-that "speech advocating a harm that is demonstrably grave and that derives that gravity from the 'special danger' to the physical safety of students arising from the school environment is unprotected."

college; university

Justice Byron White, author of the court's opinion, noted specifically in a footnote that the court did not at that time have to decide whether its ruling might also be applied to school-spondored ______________ and ________________ newspapers.

*time, place and manner restrictions or rules*

Most attempts by the government to use prior censorship are based on the coontent of the material it seeks to censor. *But the government can also base its attempts at prior censorship on other factors-specifically, the time, the place or the manner of the communication.* There would certainly be few content-based objections to an individual presenting a speech on how to grow mushrooms. But the government (as well as citizens) would surely object if the speaker wanted to give the speech while standing in the middle of Main Street, or on a sidewalk at 2 A.M. in a residential neighborhood. These are called ____________________________________.

*intermediate scrutiny*

Such rules generate no serious First Amendment problems so long as they meet a set of criteria the courts have eveloped. This set of criteria is sometimes referred to as the __________________________ standard of judicial review.

intimidate the victim *true threats*

The Supreme Court faced the question, "hate speech is one thing, but what about symbolic acts that attempt to communicate the same kinds of messages, buring a cross on soeone's lawn, for example?" in 1992 when it struck down a St. Paul, Minnesota ordinace that forbade the display of a burning cross or a Nazi swatstika or any writing or picture that "arouses the anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." minnesota courts had approved the law saying the phrase "arouses anger, alarm or resentment in others" was another way of saying "fighting words." But the statute violated the First Amendment, the high court said, because it was content based-that is, it only applied to fighting words that insult or provoke violence on the basis of race, color, creed or gender. What about fighting words used to express hostility toward someone becuase of their political affiliation, or their membership in a union or the place where they were born? The city has chosen to punish the use of certain kinds of fighting words, but not others. The majority of the court agreed that cross burning was a reprehensible act, but contended there were other laws that could be used to stop such terroristic threats that did not implicate the First Amendment, such as trespass or criminal damage to property. Eleven years later the high court revisited the issue in a case involving Virginias's law against cross burning and ruled that a state could proscribe cross burning without infringing on First Amendemnt freedoms, so long as the state made it a crime to burn a cross with the purpose to _____________________________. The intimidation factor is the key, Justice Sandra Day O'Connor wrote. The state would have to prove that the cross burner intended to intimidate the victim; the threat could not be inferred simply because a cross was burned on the victim's lawn. The opinion in this second cross-burning case highlights another category of speech (a category distinct from both fighting words in Chaplinsky and incitement to violence in Brandenburg) that is not protected by the First Amendemtn-_______________ of violence. As defined by Justice O'Connor in the Virginia cross burning case, true threats are "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or gorup of individuals." She added that "intimidation in the constitutionality proscribable sense of the word with the intent of placing the victim in fear of bodily harm or death." On the other hand, "political hyperbole" is not a true threat.

Hazelwood

The Supreme Court in _______________ did not decide whether its "reasonably related to legiyimate pedagogical concerns" test applied to college newspapers. In fact, it wrote, "We need to now decide whether the same dgree od deference is appropriate with respect to school-sponsored expressive activities at the college and university level."

"legitimate pedagogical concerns"

The Supreme Court refused to apply the Tinker standard by distinguishing the Hazelwood case from the earlier ruling. The Tinker ruling, Justice White said in the 5-3 decision, deals with the right of educators to silence a student's personal expression that happens to occur on school property. Hazelwood concerns the authority of educators over school-sponsored publications. "Educators are entitled to exercise greater conrtol over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listners are not exposed to material that may be inappropriate for their level of maturity, and that the views of individual speakers are not erroneously attributed to the school," he worte. *Educators do not offend the First Amendment by exercising editorial control over the stlye and content of student speech in school-sponsored publicationsas long as their actions are reasonably related to "_____________________________________."* This means school officials could censor out material they found "ungrammatical, poorly written, inadequately reserched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences." Justice White stressed at one point in the ruling that the education of the nation's youth is primarily the responsibility of parents, teachers and state and local school officials, not federal judges. Only when the decision to censor has "no valid education purpose" is the First Amendment directly and sharply involved.

Barber vs. Dearborn Public Schools Tinker vs. Des Moines Independent Community School District Bethel School District vs. Fraser Hazelwood School District vs. Kuhlmeier precedent in favor

The Tinker standard played a key role in the 2003 federal district court opinion in ___________________________. The case arose from a dispute in Dearborn, Michigan. That city boasts, the court noted, "the largest concentration of Arabs anywhere in the world outside of the middle East" and "approximately 31.4% of Dearborn High's students are Arab." Many of these residents reportedly fled Iraq to escape the regimeof the now deceased former dictator, Saddam Hussein. It was in this environment on February 17, 2003-just befroe the launch of the U.S. military offensive in Iraq-that Bretton Barber, then a high school junior, wore a T-shirt labeling President George W. Bush an "International Terrorist" in order "to express his feelings about President Bush's foreign policies and the imminent war in Iraq. Babrber went through the first 3 class periods of the day without having anyone mention the shirt. It was during the lunch period, however, that one student (and one student only) complained to an assistant principal about Barber's political fashion statement. That student was upset because he had a relative in the military being sent to Iraq and at least one of his family members served in each of the country's prior wars. Barber soon was asked to remove the T-shirt-he was wearing a different shirt underneath-or turn it inside out. Refusing to take either option, Barber called his father and went home from school that day. Shortly thereagter, he filed a federal lawsuot aginst the school district. Judge Patrick J. Duggan faced the issue of whether the school violated Barber's First Amendment right to free speech and political expression when it prohibited him from wearing the anti-Bush shirt. He first held that Barber's case was controlled by the U.S. Supreme Court's 1969 opinion in ________________________________________________ that upheld the right of students to wear black armbands to school to protest the Vietnam war. Duggan thus decided that Babrber's case was not guided by the high court's more recent decisions in either the sexually offensive, captive-audience expression case of ________________________________ or the school-sponsored newspaper case of ______________________________. Barber's situation, in brief, was muh more factually similar to Tinker than it was to either Bethel or Hazelwood, thus allowing the judge to distinguish the latter two cases. Applying the Tinker _______________, Judge Duggan reasoned that the school officials' "decision to ban Barber's shirt can only withstand constitutional scrutiny if they show that the T-shirt caused a substantial disruption of or material interference with school activities or created more than an unsubstantiated fear or apprehension of such a disruption or interference." The judge found that only one student and one teahcer had expressed negative opinions about the shirt and that there was "no evidence that the T-shirt created any disturbance or disruption in Barber's morning classes, in the hallway between classes or between Barber's third hour class and his lunch period, or during the first 25 minutes of the lunch period." As for the school officials' argument that the continued wearing of the shirt might cause trouble in the future, given the ethnic composition of the student body and th eimmenence of war, Judge Duggan found that "even if the majority or a large number of Dearborn high's Arab students are Iraqi, nothing in the present record suggests that these students were or would be offended by Barber's shirt which coveys a view about President Bush. More importantly, there is nothing in the record before this Court to indicate that those students, or any students at Dearborn High, might respond to the T-shirt in a way that would disrupt or interfere with the school environment." He added that "it is improper and most likely detrimental to our society for governemtn officials, particularly school officials, to assume that members of a particular ethnic group will have monolithic views on a subject and will be unable to control those views." Comparing the situation in Barber's case with the Vietnam War protest scenario at issue in the Tinker case, Judge Duggan wrote: "Clearly the tension between studnets who support and those who oppose President Bush's decision to invade Iraq is no greater than the tension that existed during the United States' involvement in Vietnam between supporters of the war and war-protesters." the judge added that "students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others." Judge Duggan ruled ____________ of Bretton Barber.

Bethel School District vs. Fraser

The court held in 1986 in _________________________ that officials at Bethel High School in Pierce County, Washington, did not violate the free speech rights of student Matthew Fraser when they suspended him for making a sexually suggestive speech nominating a classmate for student government at an assembly packed with 600 students. Although he did not use profanity, the sexual innuendos were clear to some students in the audience who "hooted and yelled" (other students, conversely, were "bewildered and embarassed") when Fraser said his speech. In rejecting Fraser's First Amendemnt argument, the majority of the Supreme Court refused to apply the Tinker substantial-and-material-disruption standard, noting what it called a "marked distinction between the political 'messgae' of the armbands in Tinker and the sexual content" of Fraser's talk, as well as the fact that the speech in Tinker was "passive expression" (it was an armband) while Fraser's speech was actively spoken to a captive audience of students gathered for the asembly. Having thus distinguished Tinker, the court in Fraser held that schools can punish students who use "offensively lewd and indecent speech" that is "unrelated to any political viewpoint" because: -such expression "would undermine the school's basic educational mission" -"it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse" -society has an interest "in teaching students the boundaries of socially appropriate behavior" In additon to these rationales for allowing the school's punishment of matthew Fraser, the majority reasoned that "by glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students." The bottom line is that, prior to 2007, there was a trilogy of Supreme Court cases (Tinker, Hazelwoood and Bethel), each with its own rules and guidelines, that public schools may use to squelch the speech rights of students.

extracurricular

The court strongly suggested the ruling would not necessarily apply to a high school paper published as an ________________________ activity where any student might contribute stories.

first; heavily

The question, "in what ways can a high school newspaper be censored?" cannot be answered until two other questions are: -First, is the newspaper publshed at a public or private high school? (Constitutional protections have substantially less meaning at private schools. The First Amendment is not considered an impediment at private high schools or private colleges and universities A newsppaer at a private school can be censored in just about any way imaginable. There is, however, one minor exception to this general rule. In particular, Californias' Leonard laws.) -Second, when focusing on public schools, what kind of newspaper is it? Three kinds of publications are possible: -A school-sponsored newspaper, generally defined as a paper that uses the school's name and resources, has a faculty adviser and serves as a tool to teach knowledge or skills. Typically this kind of newsppaer is prduced as part of a jounalism class. -An unsupervised or student-controlled newspaper produced on the school's campus as an extracurricular activity -A student newspaper produced and distributed off campus The Hazelwood ruling spoke only to the ________ kind of newsppaer. This type of paper can be most ___________ censored. most authorities agree that school officials have less power to censor the second kind of publication, and no power to censor the third kind of newspaper, unless students attempt to distribute it on campus. School administrators can ban the on-campus distribution of material produced elsewhere, and this authority provides them with a kind of informal censorship power if students seek to circulate the material on school property.

sponsored; curriculum content Hazelwood *viewpoint-based discrimination*

There are only a few rare instances in which courts haave held that school administartors have gone too far and violated the rights of student-journalists under Hazelwood's expansive "legitimate pedagogical concerns" standard. One such case of a First Amendment violation involved the censorship of an article in the Utica high School Arrow in Uttica, Michigan. The student-authored article in question reported on a lawsuit filed against the Utica Community School s(UCS) by two local residents, Joanne and Ray Frances, who lived next door to the UCS bus depot. The Frances' lawsuit claimed injries and illnesses allegedly caused by breathing in the diesel fumes emitted by the UCS's idling buses each school day. A local newspaper had already covered the story about the lawsuit before student Katherine "Katy" Dean researcged and wrote an article about the situation for her school newspaper, the Arrow. The Arrow is an officially ___________________ publication of the UCS and, as part of the high school's ____________________ for which students receive credit and grades, operates under the direction of a faculty advisor. The faculty adviser, however, does not regulate the subjects covered by the students, but instead merely provides advice on which stories to run. She also reviews, criticizes and checks the grammar contained in articles. The Arrow's staff of student journalists controls the _________ of the monthly paper, is responsible for major editorial decisions without significant administrative intervention and typically does not submit its content to school administrators for prepublication review. The article written by Dean was balanced and accurate, and it correctly reported that school district officials declined to comment on the lawsuit. One day before the article was scheduled to go to press, however, UCS administrators ordered that it be removed from the Arrow, citing so-called journalistic defects and "inaccuracies" (for instance, the UCS administration did not like the fact that Dean's article accurately attributed scientific data to a story in USA Today-apparently it was not a credible source in the minds of the school officials-and the fact that a draft of the stroy used pseudonyms for the Frances' real names). the American Civil Liberties Union filed a lawsuit on behalf of Dean, claiming the censorship violated Dean's First Amendment rights under ____________________. In 2004, U.S. District Court Judge Arthur Tarnow applied the Hazelwood legitimate pedagogical-concerns standard and ruled in favor of Dean and against the school. The judge called the school's censorship and suppression of the article "unconstitutional," adding that the school's "explanation that the article was deleted for legitimate educational purposes such as bias and factual inaccuracy iss wholly lacking in credibility in light of the evidence in the record." Judge Tarnow distinguished the Arrow article about the lawsuit from the censored content in the Hazelwood case that dealt with teen pregnancy and divorce. He observed that Katy Dean's article about the bus-fumes lawsuit did not raise any privacy concerns since a local paper had alreadyh addressed the lawsuit, and it did not contain any sexual "frank talk" and thus could not reasonably be perceived as being unsuitable for immature audiences. Beyond such critical distinctions, Judge Tarnow found the article to be fair and balanced, noting that Dean's story "sets forth the conflicting viewpoints on the health effects of diesel fumes, and concludes that the llink between diesel fumes and cancer is not fully established." Finally Tarnow noted that the story contained no serious grammatical errors and that "Dean's article properly and accurately attributed its quotations to their sources. The article qualifies any statement made by its sources. The article does not present the author's own conclusions on unknown facts." Judge Tarnow thus concluded that "Katy Dean had a right to publish an article concerning the Frances' side of the lawsuit so long as it accurately reported the Frances' side of the lawsuit." In addition to holding that the school's actions against Dean violated the Hazelwood standard, Judge Tarnow ruled thatthe censorship of her article violated the more general but importatn First Amendment rule against __________________________________. In support of this holding, Judge Tarnow noted that UCS attorney "concluded that Dean's article would not have been removed from the Arrow if it had explicitly taken the district's side with respect to the Frances' lawsuit against UCS. This is the essence of viewpoint-based discrimination: The government (in this case, the school district) restricts and restrains one side of a debate but not the other. more simply put, the govenment should remain neutral in the marketplace of ideas and not favor one side of a debate over the other. By acknowledging that the school would have allowed Katy Dean to print an article that favored the UCS' position in the lawsuit filed against it by the Franceses, the UCS attorney essentially admitted the viewpoint-based discrimination that drove it to censor Dean's story. The case of Dean vs. Utica Community Schools should stand as a stark reminder to overzealous and censorious hhigh schol administrators that there are limits, even under the Hazelwood legitimate-pedagogoical-concern standard, to censorship of the student press.

public

This chapter examines a wide range of different and contemporary topics affecting the freedom of expression, starting with the First Amendment rights of ________ schools and university students.

Simon & Schuster vs. Fischetti

Two separate challenges to the New York law were mounted in the late 1980s and early 1990s. Simon and Schuster contested the law when it was applied against the best-selling book "Wiseguys" (the basis for the film "GoodFellas"). Career mobster Henry Hill was paid for cooperating with the book's author, Nicholas Pileggi. The statute was upheld in both federal and state courts. The 2nd U.S. Circuit Court of Appeals ruled in __________________________ that the purpose of the law was not to suppress speech but to ensure that a criminal did not profit from the exploitation of his or her crime, and that the victims of the crime are compensated for their suffering. A compelling state interest is served, and the fact that this imposes an incidental burden on the press is not sufficient to rule the law a violation of freedom of expression. But in late 1991 the U.S. Supreme Court disagreed and in an 8-0 decision ruled that the Son of Sam law was a content-based regulation that violated the First Amendment. "the statute plainly imposes a financial disincentive only on a particular form of content," wrote Justice Sandra Day O'Connor. In order for such a law to pass constitutional muster, the state must show that it is necessary to serve a compelling state interest and that the law is narrowly constructed to achieve that end. The members of the high court agreed that the state has a compelling interest in ensuring that criminals so not profit from their crimes, but this law goes far beyond that goal; it is not narrowly drawn. The statute applies to works on any subject provided they express the author's thoughts or recollections about his or her crime, however tangentially or incidentally, Justice O'Connor noted. The statute could just as easily be applied to "The Autobiography of Malcolm X" or Thoreu's "Civil Disobedience" or the "Confessions oof St. Augustine," she added.. While Justice O'Connor specifically noted that this ruling was not necessarily aimed at similar laws in other states because they might be different, the decision has forced substantial changes in most of the existing laws. The Son of Sam laws can be constitutional, but most of the current laws are not narrowly tailored in such a way as to pass muster. Becuase the laws are content-based statutes, the state has to first demonstrate that a compelling state interest is at stake and then prove that the law does not bar more spech than is necessary to further that interest. Although courts are likely to find that two different compelling interests justify these laws (compensating victims of crimes and preventing criminal profiteering), they also are likely to declare the laws not narrowly tailored because most Son of Sam laws regualte more speech than is necessary to serve these twin interests.

Clery Act

Under a federal law called the ____________ (named for a Lehigh University student raped and killed in her dorm in 1986), all colleges and universities that participate in federal student-aid programs are required to give timely warnings of campus crimes that represent a threat to the safety of students and/or employees and to make public their camous security policies. The law also mandates that colleges and universities collect data and statistics on a number of specific crimes and then report that information to the campus community on an annual basis. These data obviously can help student-journalists in reporting on problems on their campuses. One major problem with the law is that it does not define what constitutes a timely warning. Due in part to terrible shootings at Virginia Tech and Northern Illinois University, the Clery Act was amended in 2008 to require campus authorities "to immediately notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on the campus."

Board of Education vs. Pico

When it comes to removing books from public school libraries, the only U.S. Supreme Court opinion on point is an aging 1982 case called ___________________________. Unfortunately, there was no majority opinion in Pico (there were seven separate opinions) as the Court addressed the issue of whether a school board could constitutionally remove from a public school library books by the likes of Kurt Vonnegut and Langston Hughes that it characterized as "Anti-American, Anti-Christian, Anti-Semitic, and just plainly filthy." There was, however, a plurality opinion holding that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'perscribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'" In contrast to unconstitutional justifications for removing books from school libraries based upon dislike of the ideas and political viewpoints in them, the plurality wrote that it would be ok to remove books if done so "based solely upon the 'educational suitability' of the books in question" or if the books were "pervasively vulgar." The court thus sufggested that motivation of a schol board in removing a book is key in determining whether its removal violates the First Amendment rights of minors to access the ideas in the book. (no majority ruling in this case)

sponsored Hazelwood School District vs. Kuhlmeier

While Tinker applies today in cases involcing student speech that occur on school grounds and that are neither school spondored nor sexually lewd, vulgar or profane, a very different legal standard applies when the speech is ________________ by the school, such as a school newspaper that is part of the curriculum. The standard in this latter situation was created by the Suprmee Court in 1988 in ________________________________.

*Private Property*

____________________: Owners of private property, which includes everything from a backyard patio to a giant shopping mall, are free to regulate who uses their property for expressive activity. There are no First Amendment guaranttees of freedom of expression on private property. just becaue the First Amendment does not inlcude within its protection of freedomm of expression the right to circulate material at a privately owned shopping center does not mean that such distribution might not be protected by legislation or by a state constitution. *A state is free to adopt in its own constitution individual liberties more expansive than those conferred by the federal Constittuion.* Courts in many states have interpreted their state constitutions as providing broader free speech and press rights than those provided by the First Amendment to the U.S. Constitution. This trend becomes particularly noticeable when the federal courts narrow the meaning of the First Amednemnt.

Kincaid vs. Gibson

_____________________ suggests that the federal courts are reluctant to expand the censorial powers of college asministrators via Hazelwood. In 2001 the 6th U.S. Courts of Appeals ruled that when administrators at Kentucky State University refused to permit the distribution of the school's yearbook because they didn't approve of its content an the color of its cover, they violated the First Amendment rights of the students at the school. But the 10-3 ruling was based largely on the fact that the creation of the yearbok was not a classroom activity in which students are assigned a grade. The yearbook was a designed public forum created by the university to exist in an atmosphere of free and responsible discussion and intellectual exploration, the court said. What the school officials did was clearly censorship. "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," Judge R. Guy Cole wrote. But in reality, the court had merely distinguished the production of the yearbook from the classroom-generated newspaper in Hazelwood.

*Designated Public Forum*

_______________________: are places created by the government to be used for expressive activities, among other things. A city-owned auditorium, a fairgrounds, a community meeting hall and even a student newspaper intended to be open for use by all students are examples of designated public forums. It is clear today that "the government must have an affirmative intent to create a public forum in order for a designated public forum to arise." Intent may be determined by 3 factors: 1. Explicit expressions of intent 2. Actual policy and history of practice in using the property 3. Natural compatibility of the property with the expressive activity Although a government entity is not required either to create or to maintain indefinitely a designated public forum (i.e., a designated public forum can be closed if the government wishes to do so), once it creates a designated public forum and chooses to keep it open, it "is bound by the same rules that govern traditional forums." This means that a time, place and manner regulation in both a traditional public forum and a designated public forum must survive and pass the 4-part intermediate scrutiny standard just desvribed, whereas a content-based restriction must pass the more stringent strict scrutiny standard of review and thus is more likely to be held invalid and unconstitutional.

*Traditional Public Forum*

________________________: are public places that have by long tradition been devoted to assembly and speeches, places like street corners, public parks, public sidewalks or a plaza in front of city hall.The highest level of Firat Amendemnt protection is given to expression occurring in traditional public forums.

*Public Property That Is Not a Public Forum*

____________________________________: Some kkinds of public property not considered to be public forums are obvious-prisons and military bases, for example. The Supreme Court has stated that a nonpublic forum consists of "public property which is not by tradition or designation a forum for public communication." Law professors Russell Weaver and Donald Lively observe that courts have identified a number of places as nonpublic forums including: -Postal service mailboxes -Utility poles -Airport terminals -Political candidate debates on public television In (and on) such places and venues, the government has much greater power to regulate and restrict speech, and thus "regulation of speech in a nonpublic forum is subject to less demanding judicial scrutiny." Regulations on speech activities in nonpublic forums will be upheld and allowed as long as they are reasonable and viewpoint neutral. The latter rwquirements entails "not just that a government refrain from explicit viewpoint discrimination, but also that it provide adequate safeguards to protect against the improper exclusion of viewpoints."