Notes about recent legal developments by Wayne Overbeck
Professor of Communications
California State University, Fullerton


During the Vietnam protest era, the courts repeatedly upheld students' First Amendment rights. There are dozens of legal precedents from that period holding that school officials may not arbitrarily censor student newspapers. 

However, a very different pattern may be developing in the 1980s. Last summer the U.S. Supreme Court decided the Bethel School District v. Fraser case and, as many of us had feared, ruled against outspoken student Matthew Fraser. 

Now the Supreme Court has agreed to hear Hazelwood School District v. Kuhlmeier, a case in which a lower federal court ruled that school officials could not arbitrarily censor a student newspaper that was produced by a journalism class. It hardly seems likely that the high court has taken this case merely to reaffirm the lower court's anti-censorship decision. 

The Supreme Court's Fraser decision held that a student could be disciplined for delivering a speech containing sexual innuendoes, even though the speech included no offensive language, was clearly not obscene in a legal sense, and was given in a campus political context (i.e., to nominate another student for an elective student government position). 

This case began in 1983 when Matthew Fraser gave his controversial speech at a high school assembly. A state champion public speaker, Fraser carefully avoided obscenity in the nominating speech, but he thoroughly amused those students who understood his innuendoes. However, the school principal was not amused: he suspended Fraser for two days and removed his name from a list of candidates in a student election to choose a graduation speaker. Fraser won the graduation speaker election on a write-in vote and school officials permitted him to speak at his graduation--but only after he filed the lawsuit that led to the Supreme Court decision. 

The lower courts ruled that school officials had violated Fraser's First Amendment rights by suspending him, but the Supreme Court disagreed. Writing for a 7-2 majority, Chief Justice Warren Burger said: 

"The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy." 

Burger took pains to distinguish this case from the landmark Tinker v. Community School District decision, in which the Supreme Court had strongly affirmed the First Amendment rights of students nearly 20 years ago. Burger said this case is different because "the penalties imposed in this case were unrelated to any political viewpoint." In Tinker, students were punished for wearing black armbands to protest the Vietnam war. 

It does not follow, Burger added, "that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, that the same latitude must be permitted to children in a public school." 

Under the Tinker rule, school officials were allowed to abridge students' First Amendment rights only when the exercise of those rights might disrupt the orderly educational process or otherwise invade the rights of others. Under the new Fraser rule, no threat of a disruption is needed to justify censorship. Instead, school officials will apparently be permitted to restrict students' rights whenever there is a violation of what school officials consider to be the proper standards of good taste and decency for students. 

While the Fraser decision may have a significant effect on the First Amendment rights of student journalists who face administrative censorship, the Hazelwood School District v. Kuhlmeier case could have far more impact. 

The Kuhlmeier case stemmed from a decision by the principal of Hazelwood East High School in Missouri to delete two full pages of the student newspaper, The Spectrum. The paper was produced by an advanced journalism class, and the school principal routinely reviewed all copy prior to publication. He objected to a story describing the experiences of three students who had become pregnant and another about the effect of divorce on the children. The principal censored the two stories by simply ordering the printers to leave the pages on which they were to appear entirely blank. 

The student staff (and their faculty adviser, who had approved the stories in question) first learned of the censorship when the paper was delivered to the campus. Cathy Kuhlmeier and two other students sued, charging that their First Amendment rights were violated by the censorship. 

The U.S. Eighth Circuit Court of Appeals upheld the students. The court found the paper to be a forum for student opinion--protected by the First Amendment--in spite of its tie to the curriculum. And the court said the principal could not have reasonably predicted that the two articles would cause a campus disruption. Nor did the articles invade anyone's privacy, (pseudonyms were used in place of several names). Thus, the court concluded that the censorship could not be justified under the Tinker standard. 

The U.S. Supreme Court will probably not rule on Kuhlmeier until its 1987-88 term. When this decision is handed down, though, it could have an enormous impact on the legal status of official student newspapers at both high schools and colleges. While this is a high school case, judges deciding future cases involving college press freedom cannot help being influenced by a Supreme Court decision so nearly on point. If the Supreme Court should rule that administrators may control the content of student newspapers produced by laboratory classes, it could sweep away 20 years of legal precedents that established First Amendment rights for student journalists. 

Obviously, the Supreme Court's willingness to take up this case is not good news for those who believe student newspapers should be more than house organs for school officials. 


During 1986 the California legislature strengthened the state's local government open meeting law, the Ralph M. Brown Act. The new legislation (AB2674) makes these changes: 

*It requires government agencies to post their agendas 72 hours before their meetings, and to refrain from taking actions not listed on the agenda except in emergencies; 

*It requires agencies to allow time for public comments at each meeting; 

*It authorizes courts to nullify actions taken at illegal closed meetings of local government agencies. Any citizen may file a lawsuit to obtain a court order nullifying such an action. However, there are certain limitations on a court's authority to nullify actions taken secretly in violation of the Brown Act. For example, actions involving certain contractual and financial matters cannot be nullified even if they were taken at illegal secret meetings. Also, a person planning to seek a court order nullifying a government action must file a notice within 30 days after the action occurs asking the government agency to correct the illegal action. The lawsuit itself must be filed within 75 days after the action occurs. 

* * *

AB2674 also reaffirms that the Brown Act applies to school and community college districts. Thus, these provisions are binding on community college district boards of trustees. And because there is an attorney general's opinion declaring that community college academic senates are subject to the Brown Act, a court would most likely hold that these bodies must obey the new rules (see 66 Ops. Atty. Gen. 252). Unfortunately, it is less certain that these provisions would apply to student governments, which are not specifically covered by the Brown Act. 


Although administrative censorship and open-meeting problems tend to overshadow libel as a legal threat to most student newspapers, there have been several noteworthy new developments in libel and privacy law in the last year. Here are some highlights: 

*The U.S. Supreme Court ruled that libel plaintiffs have the burden of proving that an allegedly defamatory statement is false; the media no longer must bear the burden of proving truth in libel cases. (Philadelphia Newspapers v. Hepps

*The U.S. Supreme Court held that public figures who sue for libel but cannot show actual malice by "clear and convincing" evidence should have their cases dismissed before trial. (A pretrial dismissal can save a defendant thousands of dollars in legal expenses). (Anderson v. Liberty Lobby

*The California Supreme Court ruled that the media should be given wide latitude to express opinions--including critical and sarcastic comments appearing in reviews. (Baker v. Los Angeles Herald Examiner

*The state Supreme Court also ruled that a defamatory story about a public official (in this instance a police officer) is protected even if it turns out to be false, as long as the reporter and his/her editors reasonably believed it was true when it was published. (McCoy v. Hearst Corporation

*A California appellate court held that public officials must show actual malice to win most types of invasion of privacy lawsuits as well as libel cases. (Alim v. Superior Court

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