Freedom of the Press Clause: Hazelwood School District v. Kuhlmeier Excerpts

0:03 Hello, and welcome to another episode of our Primary Source Close Read. My name is Josh and today I’m excited to be joined by Dr. Josh Dunn again here. And today we’re going to be taking a look at the Supreme Court case of Hazelwood School District of the Kuhlmeier. Josh, thanks for joining me. Thanks for having me.

0:24 So this case is a freedom of the press case, and the Bill of Rights Institute is going to be releasing a Homework Help video on the topic of freedom of the press. And in conjunction with that, we wanted to create this video to take a look at some excerpts from the court case for students who are going to be

0:46 studying this case in either their government or civics class. So hopefully by looking at these excerpts, we can really get to the heart of what is as all Supreme Court cases are, they can be a bit overwhelming, confusing for students. So what we’re going to try and do here is just get to the heart of what are

1:07 the constitutional questions at hand in this case? So let’s go ahead and dive in. So let’s start off with our general constitutional question here of the case. So does the First Amendment’s protection for freedom of the press apply to student school newspapers? So, Josh, the First Amendment, of course,

1:31 reads that Congress cannot prohibit freedom of the press. Why did the founders include that in the First Amendment? Because the press is really the best way for individuals to broadcast their messages to larger groups of people. So the press really in the First Amendment, it doesn’t mean the institutional press

1:52 like the New York Times or a local newspaper, local television station. It really means a technology. So whatever technology is available for broadcasting your message, that’s the primary meaning of the press there. And they wanted to ensure that individuals would have access to it, to be able to get their message out and the government couldn’t interfere with that.

2:15 Great. Yeah. And another important term here that’s related to freedom of the crest that is going to come up here in this case of Hazelwood is prior restraint, which is the power of the government to prevent the publication of information. So could you dive in a bit more into what is prior restraint?

2:40 So the doctor of no prior restraint is a bedrock principle of freedom of speech and freedom of the press. And the idea is that the government cannot prevent you from saying something before you say it. Now, originally, particularly as it emerged out of England and English common law, you could be punished after the facts. So, for instance, in England,

3:01 they had this thing called seditious libel, where you could be punished for saying things that were critical or disrespectful of the government. And we even had a similar law here for a short time in the United States with the Sedition Act. But even under that, the government couldn’t come in prior to you saying something critical about the government and say, we heard that you’re going to criticize

3:22 us, so we’re going to seize your printing press. But there was this idea that you could punish it after the fact. There was a big debate with the Sedition Act over whether or not that provided a sufficient protection for freedom of speech and freedom of the press. I think the American people largely said no, but it still remains a fundamental and bedrock principle of freedom of speech. That is, you would call it a necessary,

3:42 but perhaps not sufficient condition for freedom of speech and press. Right? Yeah. And as we’re going to get into the case, we’re going to see this comes up. As you said, it’s been really well decided that the government cannot do that to the press. But then the question is going to be, well, can a school do that for a student newspaper?

4:05 Can they come in and prevent a student from publishing a certain article? That’s what the question is going to be. And one more final important piece of background that we should dive in here is the case of Tinker v. Des Moines. What happened here, and why should we understand that before we get into Hazelwood?

4:29 So Tinker is a landmark decision involving student speech rights in K through 12 education. And famously, some students wanted to wear black armbands in protest of the Vietnam War. The school punished them for this, wanted to punish them for it, and it went to the Supreme Court. And the Supreme Court, as the quote here says,

4:51 that the students don’t surrender their rights at the schoolhouse gate. Now, the Supreme Court did say in the opinion that student speech rights could still be restricted in K through 12 education because of the nature of K through 12 education. So there were two important restrictions that they would allow. That is speech that would disrupt the educational process, create a substantial disruption

5:15 to the educational process, or would violate the rights of others. But this ends up being this bedrock principle. And so for a while you see courts following and Tinker lower courts expanding student speech rights in K through 12 education. So in the 1970s think you would say that this was really the high watermark for judicial protection

5:36 of student speech rights in case education. Okay great. So let’s actually look at the actual case then. So give me some background information of what happened in the lead up before this became a court case. Okay, so in the 1980s,

5:56 you do see courts starting to pull back a little bit, and you see this with two important cases in the 1980s on student speech. The first one was called Bethel versus Fraser, and it was shortly before Hazelwood versus Kuhlmeier. And in this case, the Supreme Court said that schools could punish lewd or lascivious speech. And then you get to Hazelwood versus

6:17 Kuhlmeier and you see the court announcing another restriction. I think what these cases illustrate is that courts had grown a little bit concerned about their ability to regulate and monitor student speech in schools and they perhaps become a little bit more sympathetic to school officials who are trying to maintain order so that the learning process could proceed in the way it needed to proceed.

6:40 So I think that’s important background for understanding that you do see starting in the 1980s, lower courts, but then also the Supreme Court being a little bit less protective of student speech rights. Right. Yeah. So what exactly happened? Why did this specific school district believe that it needed to step in and infringe on?

7:06 Yes. What happened is that you had a student newspaper and they wanted to publish two articles that the principal of the school was concerned about. One article involved teenage pregnancy and then another involved divorce. And the article on teenage pregnancy I believe discussed three students. Even though the names were changed,

7:26 the principal was concerned that you could still identify who they were and that there was some material in that that would be inappropriate for younger students who might read the newspaper. And then the article concerning divorce, they actually interviewed a particular student and at least as it was initially written, they had not changed the name. And there were some things said about the student’s father that the principal was concerned about publishing and perhaps

7:51 that the parents should have been able to weigh in as well. So the principal had concerns about those two articles and refused to let the student newspaper publish them. Okay, and so how did the Supreme Court end up ruling that? So the Supreme Court ended up ruling in favor of the school and the principal. What the Supreme Court said was that

8:12 schools can still control student newspapers, and if they control it, that is, if it’s school sponsored speech, it remains fully within their power to regulate what articles are published in the student newspaper. Another way of putting that is that if a principal has not declared that the student newspaper is a public

8:32 forum, the principal or other school officials can still regulate the content of the school newspaper. This only applies to K through 12 education, though it doesn’t apply to college newspapers. Sometimes universities have gotten in trouble by reading this opinion and thinking that it extends to them. It does not. It was only because this was in a high school.

8:55 So again, K through 12 education. So really what principals do, and I think most of them would do in light of hazelwood versus coolmire, is say that the school newspaper is not a public forum and therefore we retain the right to control what gets published in it. So here we have an excerpt from the majority opinion written by Justice Byron White.

9:19 What I think stands out to me here that’s important is he’s going to use this phrase here, legitimate pedagogical concerns. And so I think you mentioned in Tinker the court rule that the school is able to do some things to suppress student speech if it does get in the way of something like this.

9:42 Is that correct? Right. So in Tinker, if there’s a speech that would create a substantial disruption, they can censor or punish it, and also any speech that violates the rights of others. And so here they have this caveat, legitimate pedagogical concerns.

10:03 So most of the time, principals or school officials can articulate a legitimate pedagogical concern for any articles that they think are inappropriate for the student body to read. And then, moving on, here’s another quote that we have here

10:26 from the majority opinion, and he’s going to say that we cannot reject as unreasonable what the principal did. So he’s kind of deferring to what the school official did as opposed to deferring to student speech rights.

10:48 Is that a fair way of characterizing? Absolutely. Again, this is a case that gives greater latitude to school officials to exercise their judgments about what’s appropriate in a student newspaper, and they aren’t going to defer to the again, even if the students say, well, we think that there are good reasons

11:10 to publish this, if the principal or other school officials think that the concerns outweigh those, the principal is generally going to win. Right yeah. And it’s this idea that, again, it’s kind of this idea that students haven’t quite yet reached the point where

11:32 they can exercise their First Amendment rights to the full extent as adults. So it’s kind of this idea that maybe schools, you do have certain rights correct, as students, but given the format of school and the purpose of school, it is still different from

11:55 what other people outside of school adults would have for First Amendment right. Right. It’s just the nature of K to 12 education. It extends no further than that, and only to public schools as well. So, of course, private schools exercise can exercise immense authority over what gets published in their paper, but the First Amendment doesn’t apply to them.

12:17 There was a, I believe, three justices dissented, is that correct? It was a five to three decision. So Justice William Brennan, he wrote the dissenting opinion, and he’s actually going to also use that for his legitimate pedagogical purposes here in the first sentence.

12:39 But what does he conclude? Why does he think that this actually does not get in the way of legitimate pedagogical purposes? Right. So I think for William Brennan, one of the things that is important is that students learn to understand the nature of the First Amendment and freedom of speech and freedom of press.

12:59 And so that’s part of the educational purpose of public schools is to create citizens. And this would be an important part of this. And I think for William Brennan, there’s simply a default setting, which is the First Amendment, as you see in that very last line permits no such blanket censorship authority.

13:21 Part of that is just that’s his default setting, regardless of where the speech occurs, whether in a K through 12 setting or outside of it. So, yes, he’s obviously dissatisfied with the majority in this case, and he thinks that it actually undermines the educational mission of the school or

13:42 schools to allow principals and school officials to engage in this kind of regulation of content in student newspapers. Right. And Brennan isn’t necessarily saying again that schools can’t stop any type of speech. He recognizes it probably it’s a bit of a gray area to some extent.

14:05 There’s always going to be different hypothetical cases. And even throws out here a hypothetical case of what if the student says socialism is good in response to a question, does that support the legitimate mission of schools to maybe promote capitalism?

14:27 And so he recognizes there are these gray areas, but he seems to be more inclined to defer to student free speech rather than referring to the administration. So then let’s go back to our final or our general constitutional question here.

14:47 Does the First Amendment’s protections for freedom of the press apply to student school newspapers? So if you could summarize in 30 seconds to a minute, how would you answer that question? No, they don’t. As long as the school officials have not

15:07 declared that the school newspaper is a public forum. If they’ve done that and have officially announced it, or perhaps you could imagine there being a case where through inaction or officially stating that they retain the right to exercise editorial control that students

15:28 might be able to successfully see, but by and large, schools retain broad authority to regulate the content of student newspapers. Great. And then I think one common question that comes up on people’s minds when they hear that what about, say, like, college newspapers? Does this stop at high school? Yeah.

15:51 This is not extended college newspapers. Yeah. This is just K to twelve education. Any university official who tries to cite this as a justification for censorship of the college newspaper should prepare to be sued and to lose. That’s what would happen. Yeah. So it’s only because this is K through 12 education.

16:15 The Supreme Court has just been willing to say that the circumstances are different, the students are young, and so they’ll allow some regulations that otherwise they would never allow outside of K through 12 schools. Sure. And in the modern day,

16:37 what’s been happening with student free speech and free expression? Yeah. So there are really five cases in total addressing student speech in K through 12 education. We’ve discussed three: Tinker. Bethel versus Fraser, Hazelwood versus Kuhlmeier. Then you have Morse versus Frederick. And in that case, the Supreme Court said that schools could censor pro drug speech.

16:59 And then just from the Supreme Court’s last term, there’s Mahanoy versus BL. It looks like it’s pronounced Mahanoy , but it’s actually Mahanoy . And in that case, the Supreme Court addressed off campus speech because with the rise of the Internet, there’s been increasing questions about whether or not schools could punish or censor off campus speech

17:19 that then might have an effect on the in school environment. That is, could offcampus speech, which creates a substantial disruption in school. Can school officials punish and censor that? We’ve been waiting for really 10 to 15 years for the Supreme Court to announce the decision on that. And the core of the Supreme Court decision is that only in very rare circumstances

17:42 could schools punish or censor students off campus speech. So those are the five cases. Tinker, Bethel, Hazelwood, Morris versus Frederick. And Mahanoy versus BL. All right, well, thank you so much, Josh, for joining us on this close read. So you can join our conversation on Facebook, Twitter,

18:02 and Instagram for updates on programs, events, and ways to get involved. And we’d also love to hear from you. So please comment your thoughts on the video below or get in touch with us on social media. As I mentioned earlier, we will be releasing a new Homework Help video on the freedom of the press. That principle, why it’s important, the history of it,

18:26 and how the Supreme Court has been interpreting it throughout our history. So, Josh, thank you again for joining us for this discussion. Thanks for having me. It’s great to be with you again.