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In a First Amendment case decided last week, R.O. v. Ithaca City School District (CV 09-1651), the U.S. Court of Appeals for the Second Circuit ruled Ithaca City School District administrators could prohibit publication and on campus distribution of a high school student newspaper containing sexually explicit stick figures in a cartoon.
The case began early in 2005 when a faculty advisor at the school received a pre-publication draft of an issue of the high school paper, The Tattler, containing the stick figures and decided not to publish it because she felt it was lewd and offensive. In March 2009, the U.S. District Court for the Northern District of New York ruled in favor of the defendant school district, stating the paper qualified as a “limited public forum” subject to “reasonable and viewpoint neutral” restrictions.
The court relied on the U.S. Supreme Court case of Hazelwood School District v. Kuhlmeier, 478 U.S. 675 (1986) in finding that the school did not permit “indiscriminate use by the general public as is required to create a traditional public forum or designated public forum.
“Rather, the school confined the paper to content consistent with a supervised, age appropriate learning experience for student editors and high school readers,” said Second Circuit Judge Jose A. Cabranes in the opinion.
The student journalists’ attorney, Raymond M. Schlather of Schlather, Stumbar, Parks & Salk, LLP in Ithaca said the school paper acted independently and not a part of any classroom exercise. Schlather said the court started out right when it said: “[i]t can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate,” quoting Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
“But that’s the problem,” Schlather said. “What has happened is the line that previously existed between the constitutional rights of students and the non rights students must labor under; that line is getting blurrier and shifting at the expense of free speech rights. This decision makes it impossible to retain any First Amendment protections that are traditionally afforded free press in high schools.”
Schlather said his firm is recommending plaintiffs make an application for a writ of certiorari to the Supreme Court. He said it would be interesting to see if the court is “moving in the direction of encroachment” or just drawing a line in the sand.
Cornell University law professor Steven H. Shiffrin said he was surprised the Second Circuit upheld the Ithaca School District decision. But Shiffrin believes it is unlikely the Supreme Court would hear the case and go against the standards it set forth in cases like Hazelwood regarding the regulation of free speech in school supported newspapers. Shiffrin said the court has given “enormous deference” to school administrators.
Although he said the stick figures at issue seemed innocuous enough, “lower courts apply [holdings such as Hazelwood] in such a way as to squelch expression in newspapers and other school curriculum activities.”
Shiffrin said the Supreme Court would be more likely to hear the case if it had gone in favor of the plaintiffs. The national Student Press Law Center (SPLC) filed a amicus brief.
“I think in the future, if the ruling isn’t overturned, we’re going to see it discredited by other circuits as a wild deviation from established First Amendment principles,” said SPLC Attorney and Executive Director Frank D. LoMonte.
