This case involves First Amendment interests on both sides. The issue arises from the decision of a public high school student newspaper and yearbook to not publish an advertisement. The advertisement promoted abstinence and was submitted by a parent as a result of the School Board program to distribute condoms. The two high school student publications refused to publish the advertisements based on a policy to not run political or advocacy ads.
Anytown will argue they are preserving their First Amendment right to free speech and free expression because the student editorial board is not an extension of the government, meaning the two publications deciding to reject the advertisement were a complete exercise of their free speech and free expression. Parents will argue that their First Amendment right to free speech and equal protection under the Fourteenth Amendment were being infringed upon. In particular, Parents will claim that the student publications are a public forum, that there was state action, and that the decision not to publish was viewpoint discrimination since the school promoted a contrary method to birth control.
The two publications in stories and editorials promoted the school condom distribution program. That is when Parents felt these articles misrepresented their position and emerged as an opponent. Parents submitted an advertisement that promotes abstinence as a healthy choice, but the student publications chose not to publish the advertisement. Based on the rejection, Parents will argue their right to equal access and free speech was infringed. Parents will explain that this was a simple message they wanted to share with abstinent students in the community and that there was nothing controversial or political in the message. It is their legal right, whether Anytown agrees with it or not. Secondly, the refusal of the two publications to print the advertisements violated their right to equal protection under the Fourteenth Amendment. Parents may argue that the decisions were made or controlled by the school officials
Anytown will argue that in no way did they want to limit Parents' right to express their opinions, but they could not accept a political statement as an advertisement based on policy. Further, if they were to accept one politically aligned advertisement, they would feel obligated to accept all other political statements. Neither publication is a public forum and for that, the student publication reserves the right to select which advertisements it chooses to print.
Anytown will argue they have a right to refuse advertisements based on their constitutional rights protected through Tinker. vs Des Moines Independent Community School District, 1 CP 272 (1969) in which the court ruled that students in public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Just because Parents don’t support the school condom distribution program, and student editors refused to advertise to promote abstinence, does not mean that Parents' constitutional rights were infringed upon. Student editors have a right to refuse these advertisements based on their constitutional rights. The nature of the advertisement, which promotes a certain lifestyle, regardless of the message, does not agree with that of the rest of the advertisements accepted by other outside businesses. Publishing this type of advertisement would be establishing a precedent for the future of the newspaper and yearbook.
Secondly, Parents will argue that the decision not to publish was viewpoint discrimination since the school promoted a contrary method to birth control. In the case Hazelwood v. Kuhlmeier, CP 1 215 (1988), the court found the principal's deletion of articles did not violate the student's rights under the First Amendment, the school still retains the right to refuse to sponsor speech that was 'inconsistent with 'the shared values of a civilized social order.” The Supreme Court also ruled that educators may have editorial control over the style and content of student speech in school-sponsored expressive activities without offending their First Amendment freedoms. Since the school has a condom distribution program, the advertisement was rejected based on preference, and the decisions were influenced or controlled by the school officials.
Anytown, on the other hand, will argue that although Parents may believe the decisions were made or controlled by school officials, the record does not support that conclusion. In Hazelwood v. Kuhlmeier (1988) the relevant actions were admittedly taken by public school officials. In this case, the student editorial board approves the advertisements, not the public school officials. Without any ties to the state, there is no case.
Anytown will make a case that their free press clause, under the First Amendment, is being infringed by Parents wanting a “right to reply”. In the case of Miami Herald Publishing Co. v Tornillo, 1 CP 228 (1974), there was a 'right to reply' statute that violated the free press clause of the First Amendment applied to the states through the Fourteenth Amendment. If the student publications weren’t able to refuse advertisements, there would be an 'intrusion into the function of editors,' which imposes a penalty “based on the content.” as mentioned in Miami.
The newspaper and yearbook exist in the form it does because the school authorities and state law permit them to do so. As a result, Parents find that there is a sufficient connection to attribute the students’ actions to the state
On this basis, Parents' Fourteenth Amendment right to due process is being denied since each student publication is a public forum, and the decisions not to publish were again viewpoint discrimination. The regulation of speech in a public forum is also subject to strict scrutiny.
Anytown will explain the Supreme Court held in International Society for Krishna Consciousness, Inc. v. Lee, 1 CP 197 (1992), that the government opens a forum for certain types of speech and a public forum has not been created unless the government intended to create a forum without limitations. The court has noted state streets and parks are traditional public forums, and the two student publications in question are simply not. As a result, they are permitted to filter out pure political speech. In the circumstances that the publications fell under a traditional public forum, the court upheld that the regulation of speech would be subject to strict scrutiny, but they did not. Further, if the student publications were subject to Government limitation, under Lehman v. Shaker Heights (1974) the court upheld a city law that permitted commercial advertising, but prohibited political advertising, on city buses (R.A.V. v. City of St. Paul, Minnesota, 1992, 128). The court argued the Government may not choose to limit or favor advertisements versus another, however, it is permitted to filter out pure political speech. But again, these publications do not fall under those umbrellas.
Anytown will also explain that in Hazelwood School District v. Kuhlmeier, 1 CP 215 (1988) the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. In Hazelwood, the relevant actions were admittedly taken by public school officials. In this case, the student editors approve the advertisements, not the public school officials. Without any ties to the state, there is no case.
To decide, we must first figure out if there is state action, and if the decisions not to publish were made by or controlled by the school officials. Even if the decisions were not directly made by the school officials, those officials, Parents may argue, influenced the students' decisions. Secondly, even if the decisions were made independently by the students, we have to decide if the decisions of the students are attributable to the school officials simply because of the public school setting.
Had the school principal decided to remove the advertisement, the First Amendment claim might have been successful. In my view, there is insufficient evidence of those actions taking place. Here, the student’s relationship with the public school officials in the exercise of their editorial judgment was certainly independent. Although the school has a condom distribution program, Parents argue that the decisions were made or controlled in fact by the school officials, but the publications were operated entirely by students. As a result, the information does not support that conclusion. Further, they are not government agents. Since only the government is in a position to violate the First Amendment or the Fourteenth, there was no suppression of Parents' rights. The lawsuit was based on the students’ decision and the school would not be responsible for those decisions. The First Amendment free speech and free press guarantees do not involve a duty by the government to act where there is otherwise no state action. Thus, there was no First or Fourteenth Amendment violation.
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Essay on First Amendment and Freedom of Press.
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