WHAT THE SUPREME COURT SAID IN HAZELWOOD:
By a 5-3 majority, the court ruled that public school officials who
control the content of an official student newspaper are not violating
the First Amendment by doing so.
WHAT THE SUPREME COURT DID NOT SAY IN HAZELWOOD:
The court did NOT say that administrators necessarily have the right to censor school newspapers--the court merely said that the First Amendment does not prohibit administrative censorship.
The court did NOT invalidate state laws and local policies that prohibit administrative censorship. California has such a law, Education Code section 48907. It prohibits school officials from censoring official student newspapers except for libel, obscenity and material that might cause a campus disruption or unlawful acts. Unfortunately, there is no comparable state law that protects official student newspapers at the college level.
However, the court did NOT say that student newspapers at the college level lack First Amendment protection. In footnote 7, the court specifically said:
"A number of lower courts have similarly recognized that educators' decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference. (case citations omitted) We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level."
STUDENT PRESS FREEDOM IN CALIFORNIA
IN THE AFTERMATH OF LEEB V. DELONG
1. The California Court of Appeals decision in Leeb v. DeLong, announced two weeks after the U.S. Supreme Court's Hazelwood v. Kuhlmeier ruling, made it clear that California is largely unaffected by Hazelwood. On that point, the Leeb decision said:
"If Kuhlmeier were specifically applicable in California, little
more would have to be said. But it is not. Section 48907 of the Education
Code and California decisional authority clearly confer editorial control
of official student publications on the student editors alone, with very
2. While Kuhlmeier held that the First Amendment does not protect
the editors of officially sponsored student newspapers from administrative
censorship under most circumstances, Leeb ruled that the free-press
guarantees in the California Constitution do not preclude all administrative
3. However, the Leeb decision interpreted Section 48907 to strictly limit the authority of school officials to censor student newspapers. Holding that campus newspapers are limited forums but not public forums, the court said that administrators may engage in prior restraint only within the narrow grounds specified in the statute. The court emphasized that school officials must use a tort liability test in determining whether a purportedly libelous article may be censored. The court said:
"A school district in this state may censor expression from official school publications which it reasonably believes to contain an actionable defamation, but not as a matter of taste or pedagogy."
"(A) school need not employ the ultimate power of censorship to teach journalistic ethics where no viable libel action could ensue; a whole range of post-publication responses is available to the school for that purpose. ... (T)he statute is overbroad if it is not interpreted to take applicable (libel) privileges and rules concerning public figures into account."
The court emphasized that the state constitution does not permit censorship on libel grounds unless there is a clear risk of a recovery in tort. The court concluded:
"(T)o survive constitutional challenge any decision to impose prior restraint in the case of a possible defamation must, at a minimum, be based on a good faith and objectively rational determination of the probable effect of the challenged speech, i.e. that it contains a false statement (one that cannot be proved true) likely to harm the reputation of another.... It is not enough that a lawsuit is threatened. Freedom of speech may not be allowed to hinge on the subjective pique of an offended prospective plaintiff in a frivolous or doubtful lawsuit. Prior restraint, although not other disciplinary action necessarily, must yield unless it also appears that an offended plaintiff would have a clear chance of prevailing in a tort action against the school district."
"Defamatory material that is not actionable because it is privileged
or deals with a public figure without malice may not be censored. For
example, an article suggesting that a public official is wrong, illogical,
or was a poor choice for office could never lead to a recovery in tort,
and for that reason could not be suppressed."
4. The court emphasized that school districts must adopt policies that
clearly spell out the procedural guidelines for censorship, setting forth
students' rights of appeal, before they may censor student publications.
The court criticized the Garden Grove Unified School District for failing
to adopt sufficiently clear and precise guidelines.
5. The Leeb decision includes a footnote certain to displease p.r.-minded administrators. In footnote 11, the court said:
"In passing, we reject the principal's decision to censor the article
in question based in part on the belief it would tarnish the reputation
of the school and the district. The mere reputation of government entites
may never be defended by censorship in a society governed by the governed."
6. The court did not address the scope of the other two justifications
for censorship under Section 48907: obscenity and material that may lead
to unlawful acts or a substantial disruption of the orderly operation of
7. While Leeb does not specifically deal with administrative
censorship at the college level (and Education Code section 48907 does
not apply to college newspapers), the language quoted above should be emblazoned
on the walls of college presidents' offices. The appellate court made it
clear that the California Constitution does not permit arbitrary censorship
of student newspapers merely because the content might be embarrassing
to image-conscious officials.