Posted by Eugene Volokh:
Anti-Illegal-Immigration Opinion Article in High School Newspaper Protected by
California Law:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179873861
A California statute, Cal. Educ. Code § 48907, protects student
newspapers at public schools -- not just underground entirely
student-run ones, but also the school-funded and journalism-class-run
ones -- from censorship by the administration. There are exceptions,
but they are limited to speech that is "obscene, libelous, or
slanderous," or "so incites students as to create a clear and present
danger of the commission of unlawful acts on school premises or the
violation of lawful school regulations, or the substantial disruption
of the orderly operation of the school." In this, California law
provides much more protection than does the First Amendment, which
generally doesn't interfere with public school administratos'
decisions about what goes into school newspapers (see [1]Hazelwood
School District v. Kuhlmeier).
Andrew Smith, who was a high school student at Novato High School,
wrote an "opinion editorial on illegal immigration" which said, among
other things:
�� �I�ll even bet that if I took a stroll through the Canal
district in San Rafael that I would find a lot of people that would
answer a question of mine with �que?�, meaning that they don�t
speak English and don�t know what the heck I�m talking about.�
�� �Seems to me that the only reason why they can�t speak English
is because they are illegal.�
�� �40% of all immigrants in America live in California . . .
because Mexico is right across the border, comprende?�
�� �[I]f they can�t legally work, they have to make money illegal
way [sic]. This might include drug dealing, robbery, or even
welfare. Others prefer to work with manual labor while being paid
under the table tax free.�
�� �If a person looks suspicious then just stop them and ask a few
questions, and if they answer �que?�, detain them and see if they
are legal.�
�� �Others seem to think that there should be a huge wall along the
Mexican/U.S. border.�
�� �Criminals usually flee here in order to escape their
punishment.�
The high school principal cleared the newspaper for publication (she
apparently had the job of reviewing the newspaper "for spelling and
grammar" and for violations of various policies). But "the next day
the Principal was approached by four or five Latino parents, who were
upset and wanted to talk to her about 'Immigration.'" After meeting
with the parents, the Principal called the District Superintendent,
who "immediately instructed [the principal] to retract any remaining
copies of The Buzz. The Principal directed the journalism teacher to
collect the remaining copies of the newspaper."
Many other things followed, including (1) a school assembly at which
critics of the column expressed their critical views, (2) a letter
from the school condemning the column that was sent to all parents,
(3) a Latino student's "threaten[ing] to 'kick [Andrew's ass]," (4) a
fight with another Latino student in which Smith got a chipped tooth,
and (5) a death threat against Smith from that second Latino student.
For more details (and there are a lot), see the opinion linked to
below.
Just yesterday, the [2]California Court of Appeal handed down a
decision holding that the retracting of the newspaper violated
California law. The court of appeal rejected the trial court's
conclusion that speech that is likely to cause a violent reaction is
unprotected because it fits within the "so incites students"
exception. Rather, the court of appeal held, "a school may not
prohibit student speech simply because it presents controversial ideas
and opponents of the speech are likely to cause disruption. Schools
may only prohibit speech that incites disruption, either because it
specifically calls for a disturbance or because the manner of
expression (as opposed to the content of the ideas) is so inflammatory
that the speech itself provokes the disturbance."
The school did not violate the law, the court of appeal held, by
expressing its disagreement with Smith's views, or by setting up a
forum at which others could express their disagreement. "None of the
cases cited by plaintiffs support the proposition that a school
infringes on a student�s right to free speech merely by facilitating a
peaceful avenue for self-expression by persons upset by the student�s
speech. We decline to adopt a rule contrary to our nation�s traditions
of open debate.... We conclude the District�s efforts to give the
protestors a forum, to acknowledge the legitimacy of their reactions,
and to distance itself from Smith�s viewpoint was not a censure or
discipline of Smith."
But it did violate the law by ordering the retracting of remaining
copies of the newspaper. Even if no copies were actually retracted,
because all had been distributed, the order would still have
impermissibly deterred Smith from trying to distribute future copies
of the material.
The decision strikes me as a sound interpretation of the California
statute. I think the Court was right to say that the First Amendment
doesn't bar school administrators from controlling what is published
in the school newspaper. It follows that the First Amendment also
doesn't bar school administrators from trying to retract copies of the
newspaper when they change their minds about whether something should
have been published.
But the California Legislature has opted to provide student newspapers
more protection that the First Amendment requires. And Smith's article
was entitled to protection under that statute.
Congratulations to [3]my friend and former student Stephanie
Christensen, who filed a brief -- together with the ACLU of Southern
California, the Student Press Law Center, and some others -- in
support of Smith.
References
1. http://volokh.com/posts/1156804981.shtml
2. http://caselaw.lp.findlaw.com/data2/californiastatecases/a112083.pdf
3. http://volokh.com/posts/1156804981.shtml
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