This paper was not too difficult for me to write; however, I did have one specific struggle. I had a difficult time considering the other side of my issue (prior restraint on high school publications) because I feel like the position is untenable and unfair. So even though there is a valid argument out there for some people, I had a hard time writing it as if I considered it valid because I just don’t. I found it easy to write the main body of my paper where I argued for my side because this is an issue that frustrated me many times so I’ve been crafting an argument in my own head for a while. My paper came together well and I think it’s because I’ve written a lot of editorials through the years and this was basically just an editorial with specific sources to back up my argument. I did have to tone down some of the language I would normally use in this type of a piece because it is meant for a more academic setting. My intended audience is probably school districts because if they come out against the policy, it could really be changed. In writing this paper, a huge thing I’ve learned is that it’s important to consider both sides of an argument and not just be totally married to your position. Because if you consider the other side, you might learn something important that can help make your argument much stronger and you are more set up for compromise. Though I did know this before, this topic and paper has helped drive that home.
Freedom of speech and the press are arguably the most important provisions granted in the first amendment. In fact, it was Thomas Jefferson who said: “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them” (Speaking of a Free Press 5). Fortunately, in America, the professional class of journalists are unequivocally given this right and heeding the advice of Jefferson has been a huge reason why our republic has endured. Unfortunately, court precedent stemming from the 1988 case Hazelwood School District v. Kulhmeier strips these basic rights from students as long as the censorship is, as stated in Justice Byron White’s majority opinion, “reasonably related to legitimate pedagogical concerns” (White). Despite the fact that, according to legal scholars Marc Abrams and Mark Goodman writing in the Duke Law Journal, in Tinker v. Des Moines 18 years before Hazelwood, the court had explicitly stated that:
Students are ‘persons’ under our Constitution…possessed of fundamental rights which the state must respect.’ Tinker held that absent a showing of ‘material and substantial interference with school work or discipline’ schools could not restrain the first amendment rights of their students. (711).
In Hazelwood, the court did not exactly over turn itself, but it gutted much of the first amendment protections given to students when it, according to Abrams and Goodman, “went so far as to say that school officials could censor student expression that ‘might reasonably be perceived to advocate…conduct otherwise inconsistent with ‘the shared values of a civilized social order’” (717).
The first amendment is fairly explicit in it’s protections when it says (emphasis added), “Congress shall make no law… abridging the freedom of speech, or of the press” (Bill of Rights). There is but one court added exception to this amendment known as the Near Exception, it allows government censorship (or prior restraint) only when sensitive national security information that could endanger the country is going to be printed. However, because of Hazelwood, the other key exception is for students who are given basically no protections from an administrator who doesn’t want to rock the boat and wants to keep their 14-18 year old students from seeing anything objectionable by not allowing anything halfway controversial to be printed in the school’s publication. The administrator only has to say that it is “reasonably related to legitimate pedagogical concerns” (White). Similar to the vesting clause in Article II of the Constitution that gives the president “the executive power” which has been used to legitimize the broad powers the modern day President enjoys, the vesting clause in Hazelwood gives legitimacy to the type of administrator described above. What exactly is a legitimate pedagogical concern? It can be whatever the principal wants it to be, and that’s the danger. The language in Tinker about the speech having a “material and substantial interference” (711), on the educational process in order for it to be restrained, is much more in line with sound constitutional theory because it is a considerably harder standard to meet. Substantial interference is much tougher than reasonably related, and there’s a good reason for that. It’s because restricting freedom of the press at any level should be hard. There is serious danger in enacting any policy at any level that restricts freedom of speech. Since it is part of what makes Americans free, any time that right begins to erode, it is a slippery slope to the bottom. It is highly important that Americans everywhere work hard to protect their freedoms, it’s what the nation was founded on and it’s what will keep the country free in the future. Idly standing by and accepting a policy which restricts a basic freedom is not the American way, and it’s quite dangerous.
Think back to the quote at the opening of this paper and remember the end, which says, “But I should mean that every man should receive those papers and be capable of reading them” (5). Ignore the distribution aspect, which is another issue that needs solving on another day, and see that Jefferson is talking about education. Universal education is yet another highly important aspect of society, and thank God we finally give it. Another Jefferson quote on education pertains more to this current discussion, but the fact that he talked about education in a quote about journalism shows how they are inextricably tied. The journalists educate the people, so, in turn, journalists must be educated well. Here Jefferson is discussing the grave consequences of children not being schooled, “for they will be untaught, and their ignorance & vices will, in future life cost us much dearer in their consequences, than it would have done, in their correction, by a good education” (Quotations). Though that statement was about a student’s education as a whole, it is relevant to the idea that administrators can easily censor a story. Students with an interest in studying journalism in high school will quite often then become the professional journalists of tomorrow. So when training them in the vocation it is of utmost importance to do so in every aspect of the job so when they do become professionals, they will not be ignorant to the way the process truly works. Now, I’m not sitting here saying this means that students should be able to write inappropriate stories; however, what I am saying is that they should be allowed to cover the news of their school and community with the same, or a bit more, of the restrictions a professional journalist would have placed on them. Professionals obviously cannot just write whatever they want with no thought given to the outside consequences. A journalist for The Wall Street Journal, which is owned and published by Rupert Murdoch (a staunch conservative who also owns Fox News), likely would not cover a controversy regarding a popular Republican in Congress because they prefer to advocate for conservatives and would not want to cause the conservative cause to take a large public image hit. This may seem like a form of private censorship, but it’s the reality of the business. Similarly, a high school news outlet must show discretion in what they cover. However, there is no one size fits all solution to deciding this policy, it depends on the district and the specific school within the district. I am basically advocating for a more Tinker-like approach.
Deciding what and what not to print based on how it will be received by one administrator does not mirror the true journalistic process, and there’s danger in not allowing students to learn. It can cause students and teachers alike to grow disenchanted with journalism early on. In fact, in suburban Saint Louis recently, a popular journalism teacher resigned because she felt her principal was too heavy handed in his censorship of stories. This caused students to protest at a school board meeting, but nothing was done about these protests because the law was on the principal’s side (Jonsson). Whenever good people are leaving a profession because legal fallacies like this one, it’s a shame. Fortunately, it is also easy to rectify. The very justices who voted in the majority in Hazelwood often argue for a trickle down of power where the federal government allows local issues and situations localities can handle to be worked out at the local level, state issues and situations that states can handle to be worked out at the state level, which leaves only the essentials for the national government. So why don’t they advocate for a similar trickle down effect in Hazelwood? Well, it’s because they also are strong proponents of traditional values and often want to shield children from the vices of the world. This is an unfortunate reality because if they applied their trickle down political theory to this issue, the policy would be an extremely sound one. The courts should allow specific districts to take care of this issue and the districts should implement a policy in which students are truly fully trained in journalistic practices. The students should be free to write stories that they want within boundaries given by their editors (who should be responsible older students with an actual interest in furthering a journalism career) and the editors should consult with their instructor in murky situations. If the instructor feels the story should not be printed, he or she should just explain why to the editor. If the editor is disappointed with the decision, they should be free to argue with the teacher. After this dialogue takes place a reasonable decision will easily be made on whether or not to print the story and the process will be one that mirrored the real world. The positive by product of a situation like this is obvious; the editor has learned more about the journalistic process and has been forced to make a tough decision. They have actually been trained to do a job they hope to have someday and are not put in a situation where they are disappointed because at the last second, the principal pulled their favorite story. In a sense the students would be editors, the instructor the publisher, and the Principal the owner, only having to be involved in large disagreements. Adopting a policy like this would not only greatly improve the quality of high school publications it would also improve the quality of the education the budding journalist is receiving because they will be fully educated in a field they are passionate about. And most importantly, freedom of the press will extend to those training to join the press, not just to those already in the club.
Abrams, J. Marc and Goodman, Mark S. End of an Era? The Decline of Student Press Rights in the Wake of Hazelwood School District v. Kuhlmeier. Duke Law Journal Vol. 1988, No. 4 (Sep., 1988), pp. 706-732. jstor. Web. 16 October 2011.
“Bill of Rights.” law.cornell.edu. Cornell Legal Information Institute. 1992. web. 27 October 2011.
Jonsson, Greg. “Wetnzville students want to complain about censorship, but couldn’t speak.” St. Louis Post-Dispatch (MO) 19 Mar. 2010: Newspaper Source. EBSCO. Web. 19 Oct. 2011.
“Speaking of a Free Press: 200 Years of Notable Quotations About Press Freedoms.” nie.miamiherald.com. American Newspaper Association Foundation, 1987. web. 27 October 2011.
“Quotations on Education.” monticello.org. United Nations Educational, Scientific and Cultural Organization, web. 27 October 2011.
White, J. Byron and Brennan, William. Hazelwood School District v. Kuhlmeier. Boston College Law, 20 October 2011. Web. http://www.bc.edu/bc_org/avp/cas/comm/free_speech/hazelwood.html