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Law in History of American Journalism

The First Amendment

"Congress shall make no law... abridging the freedom of speech, or of the press."23 That statement, clear and seemingly unambiguous, forms the heart of the First Amendment to the United States Constitution, the first principle of the Bill of Rights. But neither the framers of the Constitution nor the subsequent generations of judges who have had to interpret it ever intended that the freedom of the press should be absolute or unlimited. Like every other right enshrined by the Constitution, the rights of free speech and freedom of the press are subject to certain reasonable restrictions. But what, exactly, constitutes a reasonable restriction? Should newspapers be prevented from printing maliciously false information? What about articles that attack the country's political leaders or even advocate the destruction of its democratic institutions? Or content that offends the moral sensibilities of most readers? Americans have been disagreeing about these issues for more than 200 years.

Free Speech and National Crisis: The Alien & Sedition, Espionage, and Smith Acts

The first great challenge to the First Amendment's protections of press freedom came in 1798, a time when many of the Constitution's framers were still active in national government. George Washington was still alive, though no longer in office; John Adams was president, Thomas Jefferson leader of the opposition. As political disagreements between Adams's Federalists and Jefferson's Republicans grew sharper, the nation's partisan newspapers grew more and more shrill—and often unfair—in their attacks against opposition politicians. By 1798, with Republican newspapers' attacks against Adams's administration growing more aggressive at a time when hysteria over a possible war with France was sweeping the nation, the Federalist majority in Congress decided it had taken more than enough abuse from what it had come to see as an irresponsibly free press. On a party-line vote, the Federalists pushed through a package of legislation known as the Alien and Sedition Acts, invoking the national-security emergency to justify a new clampdown on press freedoms deemed damaging to the national interest. The Sedition Act made it a federal crime to print "false, scandalous and malicious" writing critical of the government, the Congress, or the president24; Republican critics viewed the law as a blatant and unconstitutional attempt to muzzle the government's legitimate political opponents, but the law's constitutionality was never tested in court. Jefferson defeated Adams in the election of 1800 and quickly repealed the law. It would take more than a century for the courts to begin to define precise constitutional limits on freedom of the press.

In 1917 and 1918, under circumstances quite similar to those of 1798, Congress again passed legislation sharply restricting freedom of expression during a time of national crisis. When President Woodrow Wilson controversially chose to send American troops to Europe to intervene in World War I, most of the country backed the war effort. But a vehement minority bitterly protested the decision, castigating the president while calling loudly for young American men to resist the military draft. Congress responded by passing the Espionage Act of 1917, which imposed a maximum twenty-year prison sentence on anyone found guilty of "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States."25 The next year, Congress passed an even more restrictive law, the Sedition Act, outlawing the publication of all "disloyal, profane, scurrilous, or abusive language" critical of the government.26 The clear intent, and effect, of the act was to stifle the press's freedom to stoke dissent during a time of war.

Charles Schenck, a Socialist Party leader convicted under the Espionage Act for distributing pamphlets calling for draft resistance, appealed to the United States Supreme Court, arguing that his First Amendment rights had been illegally abridged. In its unanimous decision in Schenck v. United States (1919), however, the court rejected Schenck's appeal and upheld the constitutionality of the law. During a time of war, Justice Oliver Wendell Holmes famously wrote in explaining the court's decision, "many things that might be said in a time of peace are such a hindrance to [the war] effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right... The most stringent protection of free speech would not protect a man shouting fire in a theater and causing a panic... The question in every case is whether the words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."27 The Espionage and Sedition Acts were repealed in 1921, but Schenck's "clear and present danger test" became the new standard by which to judge whether or not government restrictions on free speech and freedom of the press were reasonable and therefore legal. The authority to determine what kinds of speech, exactly, presented a "clear and present danger" to national security was left largely to lawmakers; a number of laws further restricting First Amendment freedoms subsequently passed in various state legislatures.

In 1940, the federal government again invoked national security interests to narrow First Amendment rights. With World War II already underway overseas, many Americans found themselves deeply fearful of the dangerous "un-American" ideologies of Communism and fascism, ideologies that seemed to be spreading like wildfire through Europe and Asia. Congress thus passed the Smith Act, criminalizing any speech or publication that advocated "the propriety of overthrowing or destroying any government in the United States by force and violence."28 The law was later used to imprison much of the leadership of the Communist Party USA; because basic Communist doctrine inherently advocated the destruction of the American system of government (to be replaced by Karl Marx's "dictatorship of the proletariat"), the law effectively made all Communist activity—even if it involved no direct advocacy of violent revolution—illegal.

A common thread runs from the war hysteria of 1798 through the sedition panic of World War I to the Red Scare of the early Cold War: during times of grave danger to national security, freedom of speech and freedom of the press tend to shrink.

Libel and Obscenity

While national-security concerns have played the most prominent role in the legal history of restrictions on the First Amendment, they are not the only long-established grounds for restraining the absolute freedom of the press. From the earliest days of English colonial settlement in America, an old common law tradition granted individuals who felt they had been defamed in print the right to sue the offending publisher for libel in civil court. Until 1964, in fact, it was much easier to sue for libel than it is today; following the common law tradition, the burden of proof in libel cases was assumed to be on the publisher to assume his innocence rather than upon the plaintiff to prove guilt. The Supreme Court revolutionized American libel law in New York Times v. Sullivan (1964), establishing a new, narrower test for libel cases involving public figures: for a public figure to sue successfully for libel after Sullivan, he had to prove "actual malice"—defined by the court as the deliberate publication of false information with "reckless disregard for the truth"—on the part of the offending publication.29 The standard for proving libel against non-public figures was and remains somewhat broader; in libel cases involving private persons with no prominence in public life, the plaintiff need only prove that the publication acted with negligence (not "actual malice") in publishing false or defamatory information. While the particular standards for libel cases changed over the course of American history, the underlying principle never changed: newspapers might be free to publish what they wanted, but they were also responsible (and potentially liable in court) for all content that appeared in their pages. Freedom of the press in America never meant the total freedom to publish just anything without facing the possibility of legal consequences.

If libel provided one rationale for limiting absolute press freedom, obscenity provided another. During the Victorian era of the late nineteenth century, many social reformers became obsessed with the threat of moral decay they believed to be inherent in obscene printed material—especially material pertaining to sex. These Victorian moral crusaders believed that any exposure to obscenity might lead to the irreversible corruption of innocent minds, and thus sought to suppress the publication of such material. In 1873, Anthony Comstock, founder of the New York Society for the Suppression of Vice, successfully lobbied Congress to pass the so-called Comstock Law, which banned the distribution of "obscene, lewd, and/or lascivious" publications through the mail.30 The law defined obscenity quite broadly, as any printed matter that included as much as a single passage that might tend to "deprave and corrupt those whose minds are open to such immoral influences." First enforced by Anthony Comstock himself (in his role as special agent of the U.S. Post Office), the Comstock Law was long interpreted to ban not only pornography, but also major literary works that included any sexually suggestive passages, as well as any and all information about sexual reproduction, birth control, and abortion.

It was not until the 1950s that the Supreme Court began to narrow the legal definition of obscenity, extending First Amendment protections to some materials previously criminalized by the Comstock Law. In Roth v. United States (1957), the court ruled that a publication could only be deemed obscene if "the dominant theme of the material, taken as a whole, appeals to the prurient interest."31 No longer could a single offensive passage result in the banning of an entire literary work. Subsequent decisions further tightened the definition of obscenity; Jacobellis v. Ohio (1964) established that a work had to be "utterly without redeeming social importance" in order to forfeit its First Amendment protections on the grounds of obscenity.32 (The case also produced one of the most famous quotes in the history of the Supreme Court, when Justice Potter Stewart argued that freedom of the press ought to extend to all forms of publication save hardcore pornography; Stewart wrote that he couldn't precisely define what exactly constituted hardcore porn, "but I know it when I see it."33) Such vague standards left much confusion about what kind of publications were legitimate and thus protected by the First Amendment, and which were obscene and thus excluded from protection. In Miller v. California (1973), a divided Supreme Court effectively abandoned any national standard for obscenity, granting state and local governments the authority to regulate objectionable materials according to their own "community standards."34

The test for determining precisely which publications are or are not obscene thus remains somewhat murky even today. But the core principle underlying the American legal tradition in cases of obscenity, libel, and even sedition is clear: The freedom of the press guaranteed by the First Amendment is not absolute or unlimited. Certain publications—those that gratuitously offend community standards of decency, maliciously defame individual citizens, or clearly endanger national security—forfeit the protections of the First Amendment and thus are subject to suppression by the government. Freedom of the press, in other words, has its limits.

Those limits, however, have almost never included outright censorship. The American legal tradition has almost always been extraordinarily hostile toward government attempts to impose prior restraint upon publication—that is, to block objectionable material from ever being printed in the first place. Instead, government actions to limit press freedom have almost always taken the form of retroactive punishment. In general, editors in this country have been free to print whatever they deem fit for publication, knowing that they may face civil or criminal sanctions if they cross the line into libel, obscenity, or sedition. With very few exceptions, the blatant censorship of the press inherent in prior restraint has not been part of the American journalistic or legal tradition.

Except for when it comes to the student press, that is.

Freedom of the Student Press?

Do student newspapers have the right to publish articles critical of their own school administrators? What about articles that inflame social controversies or push the boundaries of good taste? Do school officials have the right to censor student publications?

To cut straight to the fundamental question, do school papers have a First Amendment right to freedom of the press?

It's impossible to answer that question without diving into a deeper dilemma: Do students in general have a right to freedom of speech while at school? On that question, the Supreme Court in recent decades has been clear... as clear as mud.

Tinker to Bethel to Hazelwood

In 1969, the Supreme Court established a standard favorable to a broad interpretation of students' First Amendment rights in the case of Tinker v. Des Moines. The case began in 1965, when three Iowa public school students wore black armbands to school in silent protest against the Vietnam War. After being suspended by their principal, the students sued. When their case reached the Supreme Court four years later, the justices decided by a 7-2 majority that the First Amendment did apply to public school students. "It can hardly be argued," Justice Abe Fortas wrote in the majority opinion, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." As the Des Moines students' silent protest had not significantly disrupted the educational process, the school had no right to punish them for expressing their views. Most student journalists and their faculty advisers, in both high schools and universities, interpreted the broad Tinker standard to mean that administrators had no right to censor student expression in school newspapers.

But the Tinker standard always had its critics. One of the two dissenters in deciding the case, Justice Hugo Black, argued vehemently that the majority opinion was dangerously misguided. "I repeat," he wrote, "that if the time has come when pupils of state-supported schools... can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary." While Black failed to sway his colleagues to his position in Tinker, his viewpoint—that student free speech rights ought to be narrowly limited in the interest of good discipline and educational effectiveness—has been echoed in more recent court rulings, which have significantly curtailed the student freedoms established in Tinker.

In 1986, the Supreme Court ruled in Bethel School District v. Fraser that the First Amendment did not protect high school students from punishment for disruptive or offensive speech in school. The particular disruptive and offensive speech in question was an off-color nomination address delivered during a 1983 student body election in a Washington high school; a student named Matthew Fraser began his brief speech in favor of a friend's candidacy for A.S.B. vice-president by saying, "I know a man who is firm—he's firm in his pants...." Things only went downhill from there, and when the speech ended, Fraser found himself suspended from school for two days for disruptive behavior. With backing from the ACLU, Fraser took the case to court, arguing that his rights to free speech had been violated. But in Bethel the Supreme Court rejected Fraser's argument that the First Amendment protected his innuendo-laced commentary, ruling that the school had every right to restrict "offensively lewd and indecent" speech that disrupted the learning environment. Bethel thus began rolling back the liberal conception of student freedom of expression established in Tinker.

In 2007, the more restrictive Bethel standard was reaffirmed and strengthened by the court's decision in Morse v. Frederick, a case that confirmed an Alaska school principal's right to discipline a student who unfurled a large banner reading "BONG HiTS 4 JESUS" just across the street from his high school during a school-sanctioned event. The Morse case found no clear consensus on the Supreme Court, resulting in five separate opinions. The most hilarious is surely Justice John Paul Stevens's lengthy meditation on whether or not "BONG HiTS 4 JESUS" ought to be viewed as a subversive pro-drug message or merely goofy adolescent gibberish; the most arresting, on the other hand, must be Justice Clarence Thomas's flat assertion that "the First Amendment, as originally understood, does not protect student speech in public schools," an assertion rooted in Thomas's apparent approval of a pre-Tinker learning environment in which "teachers taught, and students listened. Teachers commanded, and students obeyed."

The Supreme Court's move from Tinker to Bethel clearly narrowed the scope of students' rights to exercise free speech while in school. But what about student journalism? Both Tinker and Bethel focused specifically on non-written forms of expression, and the court did not clarify whether the same standards should apply to the student press. Did Tinker mean that student newspapers had a right to freely print articles representing any and every political viewpoint? Or did Bethel give school administrators the right to censor student newspapers if they tried to print offensive or disruptive material? By the mid-1980s, the standards under which the student press was operating were no longer clear.

In the 1988 case of Hazelwood v. Kuhlmeier, the Supreme Court sought to clarify the situation. (Whether the court actually succeeded in doing so is debatable.) The case began when student journalists at Missouri's Hazelwood East High School sought to print two edgy articles—one focusing on the effects of parents' divorce upon students, another examining the issue of teenage pregnancy at the school. The principal, upon review of their page proofs, deleted both articles from the issue before publication. The student journalists, angered by what they viewed as a blatant imposition of censorship, went to court. In the end, they lost.

In a split 5-3 decision, the court ruled that the principal of Hazelwood East did have the constitutional grounds to censor the school newspaper because the paper itself—which was produced as part of a for-credit journalism class—was not a "forum for public expression" but was rather a "regular classroom activity." As such, the paper deserved not the broad protection offered to the free press under the First Amendment, but rather the much narrower protection offered to students in a classroom setting, where "educators are entitled to exercise greater control." The court majority then offered a very broad set of specific circumstances in which school officials would be justified in censoring student publications—cases in which the material in question was "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences." Critics blasted these standards as far too broad and subjective in nature; what, for example, would prevent a school principal form rejecting a critical article on the spurious basis that it was "poorly written"? In practice, the Hazelwood decision gave school officials a great deal of power to regulate the content of the student press; student press freedom advocates argue that it gutted students' protections under the First Amendment.

But there is a catch. Not wanting to make quite such a blatant attack on students' First Amendment rights, the Supreme Court in Hazelwood couched its judgment in that odd distinction between a "forum for public expression" and a "regular classroom activity." In practice, of course, most high school papers have functioned as both; the Hazelwood decision explicitly argued that a school publication that had established itself as a "public forum" would be entitled to broader protections under the First Amendment. Hazelwood East's paper just didn't happen to meet that standard. Student journalists and their faculty advisers across the country have been wondering whether or not their own papers qualify as "public forums"—and thus whether or not their publications have First Amendment rights—ever since.

The Supreme Court has refused to accept subsequent cases that might have helped to clarify the vague Hazelwood standard. In the absence of a clear statement from the court, the general presumption since Hazelwood has been that most high school papers do not have full-blown freedom of the press, but that most college papers (which typically are not produced as part of the academic curriculum) do. However, in 2005, the Seventh Circuit Court of Appeals in Chicago applied the Hazelwood standard to a college paper for the first time, ruling in Hosty v. Carter that Governors State University in Illinois did have the right to prior review of the school's previously independent newspaper. In 2007, the Supreme Court refused to hear the Illinois students' appeal. That means that as of today, college publications in Illinois, Indiana, and Wisconsin—the Seventh Circuit's jurisdiction—may be subject to censorship under the Hazelwood standard, while college papers elsewhere in the country are not.

Clearly, it's an understatement to say that the current state of student First Amendment law is a bit of a mess. Even the simplest question lacks a simple answer: Do student journalists today have a First Amendment right to the freedom of the press?


Maybe not.

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