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Introduction: Going Underground

Although student journalists have traditionally developed skills working for school-sponsored newspapers, magazines and yearbooks, an increasing number have turned to independent or "underground" publications in recent years. This choice can allow students to take advantage of many basic First Amendment freedoms. But it can also create headaches for students who do not understand their legal rights and responsibilities.

What Is an Underground Newspaper?

An underground newspaper can be any type of student publication not affiliated with a school. Like their predecessors in the 1960s, underground papers can be critical of school officials and policies, use strong language and include articles on sensitive or controversial issues. They can take the form of anything from a one-time flier photocopied by an elementary school student to a regularly and professionally printed independent college newspaper. An increasing number of students are utilizing the World Wide Web to disseminate non-school-sponsored publications. The distinguishing feature of an underground paper is that it is produced apart from any course and without any school materials or other official assistance.

The publication's connection to a school instead comes from the fact that students are often its sole producers and audience. Students generally write and produce the entire publication. The pages often include hard-hitting commentaries on school-related topics as well as political and social issues of interest to students, and the publication is often distributed on school grounds Although student newspapers distributed off school grounds may be referred to as "underground" publications, this packet's primary focus is publications that come onto school grounds. Students who produce and distribute their publications away from school generally cannot be controlled or punished by school officials, although many officials do not understand this and still attempt to punish.^[1]

The term "underground newspaper" as used in this packet also includes publications other than newspapers. All of the law discussed here also applies to non-school sponsored magazines ("zines"), fliers and, to some extent, sites on the World Wide Web.

Why Would Students Consider Publishing Underground?

Students choose to go "underground" for many different reasons. Unfortunately, the decision often comes as a result of a school's attempt to censor or shut down a school-sponsored student newspaper. This has become more common since the U.S. Supreme Court permitted greater censorship of public high school newspapers in its 1988 decision Hazelwood v. Kuhlmeier.^[2]

Sometimes a school-sponsored newspaper's staff itself publishes an underground paper in response to pressure from administrators. At an Arkansas high school in 1994, for example, student journalists published and distributed a four-page newspaper outside of school after their principal ordered the paper's staff to apologize and submit to prior review in the wake of a story about a student's fatal shooting.^[3] New Jersey high school students also went underground in 1995 after their adviser left and the school refused to let them operate without one.^[4] College journalists in Georgia also considered this option in 1993 when school officials refused to allow two columns in the school newspaper.^[5]

At other times, students unaffiliated with the school-sponsored paper may want to provide an alternative to an official paper subject to censorship. This was the case at a California high school in 1990 when students created an underground paper after school officials censored a letter to the editor critical of the school's principal.^[6]

Other students start underground papers because they are dissatisfied with a school-sponsored publication's content. An example of dissatisfaction arose in Illinois in 1996 when four high school students decided to start their own paper after they were offended by the school's paper reference to some students as "freaks."^[7]

Another reason for going underground is to avoid the constraint of official ties to a school. As two student newspaper staffers at an Illinois university who started their own paper put it, they simply wanted the freedom to "try something different."^[8] Non-school sponsored publications generally provide an opportunity for students to be more pointed and use slightly more risqué humor and language. On a school-sponsored newspaper, they may, for example, fear indirect censorship through budget cuts or other retaliation. This was the case at a New York college in 1988, when a conservative publication went independent after the student government cut its budget because it did not comply with a ban on a "hypocrite of the month" feature.^[9]

How Is an Underground Newspaper Published?

Underground newspapers typically must rely on the energy, time and resources of volunteers because of their lack of school support. This means that more work may sometimes be required than publishing a school-sponsored newspaper supported by a class or club with a paid adviser and plenty of computers, school funding and advertising revenue.

Students must first find people who share their interest in producing an underground newspaper and are willing to share the work. Although some papers have been written by a single person, such arrangements likely means more work for that person, little chance of continuing more than a few issues and potentially less credibility with the paper's readers and the administration. Finding people who like to write or draw and would like to express themselves may be difficult since many of those people may have already joined one of the school publications. But at most schools, the chance to sound off without being evaluated by a teacher or being dependent on school authorities will likely turn up plenty of people.

The next step involves the actual development of the newspaper's contents. Since no formal coursework is involved, students must find the time to write articles and draw pictures at home after school. Sometimes this may seem easy, such as when students want to sound off on especially controversial school policies. But students who want to produce multiple issues on different subjects will need to go through the same steps of thinking about articles as any other newspaper. And editing and proofreading will always need to be done if students want their readers to understand their ideas. Underground newspapers that contain only rambling, unintelligible opinion pieces may get even less attention and respect than a censored school newspaper.

The actual production and printing of an underground newspaper represents another stumbling block. Home computers, typewriters at the public library, inexpensive copying services and desktop publishing programs have made it possible for many more students to produce high-quality underground newspapers with small amounts of time and money. Even if they don't look like the newsprint editions of the school-sponsored newspaper, underground newspapers can at least be typewritten, photocopied or posted on the Internet.

Money to pay for printing, which is often the sole expense for underground newspapers, can come from a variety of sources. Students writing the paper can each contribute a small amount, or their parents may be able to subsidize the paper by paying the photocopying bills. Community members and neighbors supportive of young free speech advocates may also lend a hand if asked. Local businesses may eventually be interested in buying advertisements if the business wants to identify with the paper's content and the paper has a stable readership the business wants to reach. In some cases, local journalists have even offered logistical support and temporary office space to underground papers, most often when school-sponsored groups have been censored or punished.

The actual distribution of an underground newspaper is the final step in the publishing process. While distributing copies away from school grounds avoids many legal problems, many underground journalists find it most efficient to put their newspaper into the hands of students at school. This often means handing it out in the school's hallways or at a centrally located site. Some effort should be invested in planning a good distribution strategy, as will be discussed later in the packet, since mistakes at this stage can doom even the best underground newspapers.
 
 

Surviving Underground Tip No. 1 Understand the Risks No matter how careful you may be or how much the law is on your side, many students who publish underground newspapers have been punished for their work. In addition to receiving countless suspensions, students have been expelled,[1] been denied graduation privileges,[2] refused membership to honor societies,[3] lost potential college scholarships,[4] sent to alternative schools for their senior year[5] and even faced arrest[6]  because of their roles with underground publications. Sometimes sanctions may be overturned, but that usually does not happen until months or years later and after legal bills have piled up. So it is important to appreciate the risks you are taking and think carefully about what you publish. After all, careless underground journalists not only make it easier for school officials to punish them, but they can make it harder for all student journalists who follow them to exercise their rights. [1] Ore. court of appeals upholds student's expulsion for underground publication, 22 SPLC Report, No. 1 at 19 (Winter        2000-2001). [2] Publication means no graduation, 13 SPLC Report, No. 3 at 10 (Fall 1992). [3] Underground newspapers stir controversies, 15 SPLC Report, No. 1 at 17 (Winter 1993-94). [4] School barred from using vague policy, 8 SPLC Report, No. 2 at 29 (Spring 1987). [5] Student gets ëWacked,í 13 SPLC Report, No. 2 at 17 (Spring 1992). [6] Student arrested for distributing paper, 16 SPLC Report, No. 2 at 6 (Spring 1995).

 

Will The First Amendment Protect an Underground Newspaper?

How Does the First Amendment Apply to Schools?

It has often been said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."^[10] The U.S. Supreme Court made that statement in the landmark 1968 case Tinker v. Des Moines Independent Community School District, in which it approved of public high school students wearing black armbands to school in protest of the Vietnam War. Thus, the First Amendment's protection of free speech does not stop simply because students are in a classroom instead of at a political rally or on a public street.

But the Court in Tinker also recognized that "the First Amendment rights of children are not co-extensive with those of adults."^[11] Schools cannot be expected to complete their mission of educating young people if the First Amendment permitted a limitless free-for-all. Accordingly, student free speech rights can be limited when their exercise "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."^[12]

Although the Court in Tinker dealt with armbands, it implicitly approved of other forms of non-school-sponsored expression. Thus, underground newspapers also cannot be restricted or their staff members punished without school authorities demonstrating the interference mentioned in Tinker.

Exactly what Tinker forbids -- which will be discussed more fully later -- can often be a source of debate. It is clear, however, that administrators do not need to wait for a riot or fight to occur before limiting student speech. However, school officials must provide a "reasonable forecast" of disruption supported by facts, and not merely speculation or a dislike of the speech.^[13] In a 1986 decision, the U.S. Supreme Court ruled that lewd comments in a high school student government speech alone could be such a disruption.^[14]

Does the Type of School Matter?

The type of school that students attend can greatly affect their rights to produce and distribute underground newspapers. Students at public high schools and colleges clearly have the general right to distribute their own publications on school grounds during the school day.^[15] These students are typically limited only by the liberal Tinker standard concerning disruption.

Unfortunately, school administrators in private schools are not restricted by Tinker from censoring their students' underground publications because the First Amendment only protects against censorship of state officials -- a group that does not include private school administrators. Other weapons are available to underground journalists in those settings however, including public pressure, policy arguments, cases decided under more expansive state laws or constitutions^[16] and, most significantly, previous guidelines or rules the school may have established. Courts have held that the contract law or the law of associations can establish relationships that may prevent schools from violating policies advertised or included in their own handbooks, catalogs and recruiting brochures after accepting tuition payments.^[17]

The level of school can also make a difference to courts dealing with underground newspaper cases. For better or for worse, college students can get away with more in underground newspapers because they have an older, and theoretically more mature, audience that is closer to the community at large than students in a high school.^[18] In addition, most college campuses are larger than high school grounds, posing fewer possibilities for disruptions and interference such as the blocking of hallways.
 

>Surviving Underground Tip No. 2 >Meeting with Administrators Can Prevent Problems Although administrators sometimes have to be tough, they usually prefer not to get involved in fights with students and lawsuits. That is why discussing your underground publication with them may help you in the long run (assuming you are not publishing it anonymously). First, they can give you a copy of your schoolís policies on non-school-sponsored materials, if one exists, that may enable you to accomplish everything you want to do. They can answer any general questions you might have about content or distribution before you start. And later, they can discuss any specific issues raised by your actual publication and plans for handing it out. Getting such information from administrators can often prevent headaches later on and lead to favorable compromises. As one court noted, at a fair give-and-take session between students and administrators early in the process of developing an underground paper "the whole problem might be aired; hard feelings dissipated; distrust overcome; and mutual confidence established." [1] [1]1 Nitzberg v. Parks, 525 F.2d 378, 385 (4th Cir. 1975).

What Happened in Hazelwood?

In 1988 the U.S. Supreme Court handed down its first decision specifically addressing the rights of high school student media in Hazelwood School District v. Kuhlmeier.^[19] While the Court expanded a school administration's power to control public school-sponsored publications, it also declined to overrule or limit Tinker's protections for non-school-sponsored publications. The Court specifically noted that its decision applied only to "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."^[20] That group does not include underground newspapers.^[21]

Thus, more student newspapers have gone underground in recent years specifically to avoid the threat of legally permissible censorship. It is important to remember, though, that while Hazelwood-type censorship is not possible, the standards of Tinker and other press law doctrines are still fully applicable to underground newspapers.
 

Specific Legal Rights and Responsibilities Underground

What Can Be Included in the Underground Paper?

General Freedom to Discuss School Issues
Many students want to write an underground newspaper to air grievances about their school and issues of concern to them -- and the law does not prevent that. Others are simply looking for a creative and fun outlet to show off literary or artistic talents or to talk about favorite hobbies or subjects. Whether they are comments about a school board's controversial decision or reviews of Gothic music, an underground journalist generally does not have to avoid any topics that might be deemed "too sensitive" by a newspaper affiliated with the school. In fact, although certain content in an underground newspaper can lead to problems, school officials are generally forbidden from punishing you solely because of the view you take on a subject.

Thus, some of the school-related topics discussed in underground newspapers in recent years have included counseling services, dress codes, student elections, political correctness, flag salutes, athletic programs, military recruiting on campus and administrative searches of students. Courts have come to respect frank, opinionated discussions of these serious topics, which teach students how to speak out on important issues at a young age.

Other topics often included in a student newspaper are political and social issues. Underground newspapers have included commentaries on nuclear war, the American economy, curfews and drug and alcohol abuse in recent years. Overall, these out-of-class interstudent discussions do not "interfere with what the school teaches; it enriches the school environment for the students."^[22]

Unfortunately, many school officials who are the targets of these commentaries or feel threatened by the underground newspaper often do not give adequate leeway to publications dealing with these issues. What they can do to control an underground newspaper will be discussed in the next section.

Effect of Advertising
Although many underground newspapers get by on meager donations of money and supplies, those able to sell advertising as a way to recover costs may have to defend themselves against new opposition. Many schools will quickly argue that an underground newspaper that contains advertisements is a commercial solicitor, like a souvenir vendor or pizza parlor hawking their products, that can more easily be banned or restricted from the school grounds.^[23]

But most courts have not discriminated against student underground newspapers based on their decision to include advertisements. Only if a school could prove that the particular situation in their school justified claims of a substantial and material disruption would a court be likely to accept a flat ban on papers with advertising.^[24] Furthermore, most school-sponsored newspapers include advertisements, and schools generally cannot discriminate against an unofficial paper to help the official one.^[25] As the Supreme Court has said, "Freedom of speech [and] freedom of the press are available to all, not merely to those who can pay their own way."^[26]
 

Surviving Underground Tip No. 3 Develop a Plan for Putting out Your Publication If you want to produce a good publication (and especially if you want to keep producing it), you need to think about a number of important decisions that will have to be made. For example, how often will the publication come out? Who will contribute to its contents? What topics will be included and which will be beyond its scope? Exactly where and when would you like to distribute it? Some of your plans may have to change eventually because of student interest or valid school policies, but starting out with a well-conceived idea of what you want to do is much better than leaving it all to chance or getting carried away by impulse.[1] And you set your paper apart from those that are one-time joke sheets. [1]1 Publication means no graduation, 13 SPLC Report, No. 3 at 10 (Fall 1992) (detailing underground paper that included naked cartoon characters, pictures of students superimposed on ads and studentsí home phone numbers).

What Should Not Be Included in an Underground Newspaper?

Libelous Material
Just like any journalist, writers of underground newspapers must be careful not to damage people's reputations needlessly. The size of a newspaper's audience or the informality of the publication's appearance or tone do not insulate students from potential legal liability for libel, which is defined as any published communication that falsely harms a person's reputation.

In an underground newspaper, potential libel problems may arise when you are tempted to include personal attacks against school officials or classmates. These can come through word or pictures, and associate specific people with negative things, such as being a criminal or a liar. If such statements "libel" the person, the speech is unprotected under the First Amendment and can be banned. With that in mind, it is worth remembering what constitutes libel.
There are four elements that someone must prove to make a successful libel claim. First, the statement must be published, which is satisfied by the distribution or sharing of one copy of an underground newspaper to someone other than the person the statement is about. Second, the person claiming libel must be able to prove he or she was identified by the statement. Third, a libel plaintiff must prove that the statement harmed his or her reputation in the eyes of members of the community. And fourth, the complaining party must prove fault, or that the alleged libeler did something they should not have done or failed to do something they should have done.

Some people must prove a higher degree of fault than others to recover for libelous statements. These people, called public officials and public figures by courts, must prove "actual malice." This is a legal term that does not necessarily mean ill will but rather requires that the person who claims he was libeled prove that the challenged statement was published by people who either knew it was false or who were reckless in verifying its accuracy. Some people who are the subject of underground newspaper articles may be public figures and officials -- such as coaches, principals, school board members or local celebrities -- but it is best to assume that every person discussed is a private person who will have to prove the lowest level of fault if you publish inaccurate information.

A publication can also cite a number of defenses that can be used to defeat even a libel case that satisfies all four of these elements. First, someone who consents to the media's use of a libelous statement cannot later sue for a damaged reputation. Second, truth is an absolute defense to the charge of libel. Third, fair and accurate reports of official public proceedings and reports, such as a school board meeting or a police report, are generally privileged from libel liability. Fourth, statements that are purely opinion and not descriptions of facts are protected, although the difference between them can often be hard to define and does not turn solely on phrases such as "in my opinion." Fifth, statements that no reasonable person would believe, such as satire, spoofs or rhetorical hyperbole, cannot be libelous.

Steering clear of potential libel law problems will enable an underground newspaper to live a longer life. As will be discussed later, school officials will often cite libel law as a reason for penalizing an underground newspaper's leaders. For example, California high school students who ran a picture of political and school officials with a caption about a drug deal may not have libeled anyone, but suspensions and a lawsuit were involved before the controversy went away.^[27] One court has held that schools must be able to prove the schools would be liable for the statement in order to censor a publication -- a difficult test.^[28] But regardless of the test, a careful and reasonable analysis of any potential libel issues will enable underground journalists to rebut any later accusations intelligently. Such care, however, shouldnot prevent underground newspapers from tackling tough subjects. It only argues for a little bit of thinking before publishing.^[29]

Obscene Material
Some underground newspapers attempt to attract attention and make pointed statements by using profanity and crass references in their pages. The law does not condemn most cases of simple poor taste, vulgarity or offensiveness. But underground journalists should know that obscenity represents another danger zone for them. Generally, only the most sexually oriented or inappropriately targeted material usually can be called obscene. Some courts, though, have begun expanding a related concept concerning lewd and vulgar speech.

The standard test for obscenity involves three elements described by theSupreme Court in Miller v. California in 1973.^[30] According to Miller, a court will consider (1) whether a reasonable person, applying contemporary community standards, would find the work, taken as a whole, appeals to a prurient (lustful) interest, (2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined as obscene by the applicable state law, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.^[31] Mere offensive content such as profane language or ideas, which are often included in underground newspapers, is not likely to be obscene.^[32]

A similar but slightly broader definition of obscenity, however, has been applied to cases involving minors. In 1968, the Supreme Court in Ginsberg v. New York^[33] defined obscenity involving minors as any description or representation of nudity or sexual conduct that (1) predominantly appeals to the prurient, shameful or morbid interest of minors, (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors. Thus, a high school underground newspaper could run into obscenity problems even if the same material would not be considered obscene on a college campus.

These standards are obviously vague. Therefore, underground journalists should think twice before including such things as nudity or other overtly sexual material in their publications.^[34]

In addition, it is important to know that the Supreme Court has allowed restrictions on speech by high school students that is lewd and vulgar but not legally obscene. In 1986, the Court ruled in Bethel School District v. Fraser^[35] that school officials could punish a student for giving a student government campaign speech laced with non-obscene sexual innuendoes because schools have a responsibility to teach the "'habits and manners of civility' essential to a democratic society."^[36] The Court believed the speech was disruptive under the Tinker standard, although students listening to the speech -- unlike students handed a newspaper -- could not ignore the speech. The Court allowed school officials to censor the speaker merely because they disagreed with his message.

Some courts disagree on the reach of Bethel when applying it to underground newspapers. One appeals court relied on Bethel in upholding the suspension of students who used profanity and vulgarity in their underground newspaper.^[37] Another court in Florida cited Bethel when it dismissed a suit challenging sanctions against an underground paper that contained "vulgar and offensive" language.^[38] And still another recognized problems with "vulgar, lewd, obscene and plainly offensive" speech that does not rise to the level of a disruption in a decision involving protest buttons.^[39] Other courts, however, have held that students may use earthy language and crass references as a part of unofficial publications.^[40] These courts note that such content may offend some people, but, for better or worse, is part of our society and can be found in mainstream literary works.

Thus, although underground journalists are not likely to run into problems with full-fledged obscenity in most cases, they should keep in mind the audience of the publication, the pervasiveness of any offensive material (i.e., is every other word or phrase crude or are such things more sporadic) and if there might be other ways of communicating one's ideas so as to avoid potential problems.
 

Surviving Underground Tip No. 4 Don't Immediately Disregard School Policies One of the quickest ways to hurt your position as an underground journalist is to ignore school policies right off the bat.  You may disagree with them -- and they may ultimately be repealed or struck down -- but nothing gives school officials and courts more ammunition than being able to say that they punished you simply because you did not even care what the rules were.[1] Breaking the rules and making yourself the next court case should usually come after you have explored all the other avenues available to you. [1]1 See, e.g., Principal suspends underground editors for refusing review, 13 SPLC Report, No. 1 at 14 (Winter 1991-92); School, editor settle underground dispute, 13 SPLC Report, No. 3 at 12 (Fall 1992) (detailing unauthorized posters, candy sales and use of school computers).

Material That Disrupts School
School officials frequently cite Tinker's prohibition on disruptive activities as another reason for limiting student free speech rights. Courts do not include everything in this category that might seem to fit within it from its vague name. But there are some things that underground journalists should probably avoid. Remember that school officials do not have to wait for a disruption, just be able to forecast it reasonably.

First, underground newspapers should not cause or incite illegal conduct. It is one thing to advocate, encourage or glorify things like violence, sex between unmarried minors or illicit drug use. But actually leading readers through a how-to lesson on such topics probably crosses the line between advocacy and incitement and makes it easier for school officials to argue students are disrupting school. Such was the case in Wisconsin when a high school student was expelled from school his senior year after writing an article in an underground paper instructing how to hack the school's computers.^[41] Similarly, high school students in Virginia ran into trouble with school officials when they published a recipe -- which they said was intended as a joke -- for a marijuana dessert called "Apple Pot."^[42] A New York high school student was even arrested in 1995 for inciting a riot after asking students to throw trash on the ground, urinate on the floor and wear certain types of T-shirts to school.^[43] Incitement to violate school rules not involving criminal conduct also could cause problems.^[44] Incitement simply is not protected, in either the student press or the non-student press. Furthermore, students should be careful not to advertise illegal products, such as drug paraphernalia, in a publication. ^[45]

Second, calls to stage walkouts or protests can be impermissible when school officials can point to recent events making it likely that students will respond to the plea. For example, a federal court upheld an Indiana high school's decision to suspend students for handing out leaflets calling for a walkout. The court said that a walkout by 54 students the day before, the noisy and rowdy atmosphere in the halls, an increase in tardiness and predictions by administrators of an even bigger walkout the next day combined to make the leaflet distribution disruptive.^[46] Another label some schools put on this advocacy is "insubordination" by students toward school officials.^[47] It was also seen during the 1970s when students were punished for calling for class boycotts.

Third, pointed ridicule or statements aimed at humiliating particular groups of students can play into the hands of school officials, who may argue that such insults may lead to disruptions at school. Such was the case in Ohio when students made fun of learning disabled students and women with facial hair in their newspaper.^[48] Racist messages also fall into this category, although a school's prediction that unrest would result from the statements might still be speculative without supporting facts.^[49]

But, most importantly, students should simply be conscious of facts that school officials could cite in support of an actual disruption caused by the student newspaper. For example, a North Carolina student who published unconfirmed reports about a principal canceling school social events and keeping bomb threats secret was accused of inciting a riot because students allegedly could not stop talking about the news during classes and even started to leave the building.^[50] False announcements of class cancellations could also fall into the category of disruptions for which underground newspapers are held responsible. School officials would have a difficult time arguing that their censorship was justified when the only disruption that occurred was a result of the censorship itself (for example, a student protest demanding that confiscated newspapers be released) and not the publication.

In addition to these general warnings, underground newspapers should always keep their audience in mind. As mentioned earlier, disruptions are more likely to be present at the high school level, where students are younger, and the schools are often of smaller size.

Another point to keep in mind is that underground journalists accused of causing a disruption because of the content of the paper -- regardless of how true that accusation may be -- can always point to the fact that no real disruption occurred after the paper was distributed. This has helped students in a number of cases.^[51]
 
 

Surviving Underground Tip No. 5  Don't Shock Just to Shock Despite the urge to catch your classmatesí attention with the most racy or vulgar words or pictures, going for shock value does not always accomplish much. There is nothing wrong with some colorful language or tough statements, but try not overdo it.  Many an underground journalist have found themselves in trouble for including one too many things that bordered on racism,[1] insensitivity[2] or extremely poor taste.[3] Make sure you are printing your newspaper to do more than annoy people. That is the difference between an underground newspaper that gets read and its rights respected and one that gets treated no better than graffiti. [1]1 Student gets ëWacked,í 13 SPLC Report, No. 2 at 17 (Spring 1992). [2]2 Magazine spurs six suspensions, 15 SPLC Report, No. 1 at 17 (Winter 1993-94) (referring to publicationís statements about learning disabled students and teachers and administrators with physical differences, such as women with facial hair). [3]3 Publication means no graduation, 13 SPLC Report, No. 3 at 10 (Fall 1992) (detailing underground paper that included naked cartoon characters, pictures of students superimposed on ads and studentsí home phone numbers).

Anything Else That Could Get Any Newspaper in Trouble
As mentioned earlier, the producers of underground newspapers are not different from other journalists in most areas of the law. This continues to be true in regard to areas such as copyright and invasion of privacy.

Copyright protects authors of stories, photographs, artwork or graphics against unauthorized use of their work. For example, an underground newspaper would clearly violate copyright laws if it included the entire text of a new short story by Stephen King a student had photocopied without permission from the school library. Similarly, one typically cannot include copied portions of a comic strip or an ad from another publication in an underground newspaper, even if you have changed or rearranged some part of it. Another important thing to remember is that a work does not need to include the familiar "©" symbol in order to receive copyright protection.

Federal copyright laws should not, however, prevent an underground newspaper from using all copyrighted material. Underground journalists, like anyone else, can seek explicit permission, for example, to reproduce a photograph published in the local newspaper. Fair use of a copyrighted work also allows journalists to use copyrighted materials, such as excerpts in a book review, news reporting or commentary. In addition, parodies and originally produced caricatures of cartoons necessarily use copyrighted materials as their source and are permitted as long as they are not used merely for their recognition value or to usurp opportunities for the original author to make money off the same idea.^[52] Student journalists should pause to consider any copyright considerations before publishing their paper.^[53]

Underground newspapers can also get into trouble when they invade people's privacy. One way to do this is to disclose private or embarrassing facts that would tend to humiliate the target. This might happen if a student's confidential transcript or medical history was discussed in an underground newspaper, or, more often, a gossip column revealed details of a teacher's romantic life. Although newsworthiness can protect some uses of personal information, truth is not a defense in a privacy case as it is with libel. And consent, although it is a defense to all privacy claims, must be given and be capable of proof in court and must be from someone capable of giving it (which probably rules out many young children).

In addition, papers can cause themselves headaches when they portray someone unflatteringly in words or pictures as something he or she is not. The most common example of a "false light" claim is when a photograph is placed next to a caption, story or headline that creates the wrong idea, such as a picture of a man innocently drinking a beer next to a story about alcoholism. Even if someone's picture or likeness is used in a flattering or non-controversial way, newspapers then have to guard against claims of misappropriation, or using someone's name, likeness or endorsement without authorization for commercial purposes.

Another type of privacy problem can arise when newspaper staff members physically intrude on someone's privacy. This can happen when students trespass where they are not supposed to be, use surveillance equipment to observe or record people without their permission, or misrepresent themselves to gain access to somewhere they would not otherwise be entitled to go.^[54]
 

Surviving Underground Tip No. 6  Seek Help from Families, Businesses and the Local Media Doing without official school support does not mean that an underground newspaper must do everything alone. At the beginning, most would not get off the ground without generous contributions from parents or other relatives, who often pay for photocopying. Local business can also help out by buying ads if the publication reaches enough people. And the local media may be able to help you out by donating money or supplies, sharing staff expertise or covering your efforts to exercise your rights under the First Amendment.[1] [1]1 Students hand out papers off campus after school administrators threaten suspension, 21 SPLC Report, No. 2 at 25 (Spring 2000) (referring to the local mediaís coverage and support of high school students distributing their underground paper across the street from the school after being threatened with suspension for on-campus distribution).

Can School Officials Review and Censor the Newspaper?

One of the primary reasons students decide to produce underground newspapers is to avoid the possibility of direct prepublication control. At public colleges, this freedom generally can be achieved as even school-sponsored newspapers, like the professional media, cannot be required to be approved by government officials before distribution.^[55] But federal appeals courts, which are one level below the Supreme Court, have offered different interpretations of the exact rights of high school officials to censor underground papers. Until the Supreme Court issues clear rules, students will have to understand the varying conclusions and which might apply to them.

Courts That Forbid Prior Review
The most recent appellate court decision on underground newspapers held that high school administrators have no general right to review and change an underground newspaper before it is distributed.

In Burch v. Barker,^[56] Washington state high school students were punished not for the content of their publication or any disruption it caused, but solely for not submitting it for prior approval as school policy required. The U.S. Court of Appeals for the Ninth Circuit rejected the school's arguments that review was necessary to weed out damaging or distracting information. The court said that Tinker did not call for censorship based on "undifferentiated fears of possible disturbances or embarrassment to school officials" and that a heavy presumption exists against any prior review.^[57] The court said that especially in the years after Hazelwood, the difference between school-sponsored and non-school sponsored publications calls for more freedom for the latter group.^[58]

The Burch decision, however, only applies to the Western states within the Ninth Circuit. Those states and territories are Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington. Students could be forced to submit to prior review in those states only if school officials presented real evidence of a likelihood of disruption under the Tinker test. And, as always, students can still be held responsible for the consequences of their actions after publication regardless of any prior review.

Other courts have also been tough on schools trying to inspect and censor underground newspapers. In Fujishima v. Board of Education,^[59] the Seventh Circuit ruled that high school students who produced an underground newspaper did not have to comply with a school policy requiring prior review. The court said Tinker allowed some students to be punished for exercising their right to speak, but it did not create "a basis for establishing a system of censorship and licensing designed to prevent the exercise of First-Amendment rights."^[60] Fujishima, however, also has its limits. The Seventh Circuit's jurisdiction includes only Wisconsin, Illinois and Indiana. And the Seventh Circuit has allowed prior review in other contexts. For example, in 1996, the court called prior review an "important tool in preserving the proper educational environment" in a case analyzing the distribution of religious handbills to fourth-graders.^[61]

The First Circuit -- which covers Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island -- also has hinted that prior review cannot be accomplished. In Riseman v. School Committee of City of Quincy,^[62] the court hinted as it struck down a vague rule against distributing advertising on school grounds that advance content review is not acceptable. Remember, too, that school officials are never required to conduct prior review.^[63] Public pressure can thus lead a school board to adopt voluntarily a policy disavowing any possible prior review without any court involvement -- as happened in Maine in 1992.^[64]

Courts That Examine School Policies
Some of the other federal appeals courts (there are 13), however, take a different approach to prior review. They believe that prior review is acceptable in theory with enough safeguards.^[65] Their approach then is to pick apart the policies under which a school reviews an underground newspaper in order to discover flaws. Most courts have concluded that these policies are unconstitutional, thus protecting underground newspapers.
 

Typically, they will:

• apply not only to underground newspapers but also any book, tract or other publication to be distributed on school grounds
• require submission of one copy of the material to a designated school official a specified time before the material is to be distributed, typically 24 or 48 hours
• provide a set of reasons that the school official can cite as grounds for rejecting the proposed distribution. These include materials that are substantially disruptive, obscene or defamatory. (These criteria may sound familiar to you -- they are simply repeating the things that should not be included in an underground newspaper because the Constitution does not protect them under Tinker and other cases. They often include things such as libel, obscenity, incitements to illegal acts, vulgarity, threats of violence, invasions of privacy, and demeaning or discriminatory statements.).
• specify that a student can appeal the official's ruling within a certain period of time.

Primarily, any guidelines must inform a reasonably intelligent student of what is prohibited.^[66] This means that key but vague terms such as "substantial disruption," "libel" or "obscenity" should be correctly defined in the policy.^[67] Other terms, such as a policy that prohibits "inappropriate" language or types of "poor taste" are simply so vague that they would almost always be stricken by a court. The policy should include examples of or criteria related to any prohibited expression.^[68]

The policy also cannot be "overbroad," or include unlimited or legally unnecessary reasons to censor a publication. Policies with these powers could leave distribution decisions to administrators' whims or "mere desire to avoid the discomfort and unpleasantness of speech."^[69] Even schools that conduct prior review cannot suppress underground papers solely because they are vigorous critics of a school system or take a controversial political or social stance different from the majority of the community.^[70] Another example of an overly broad policy is one that prohibits material that can be legally published, such as a "false light advertisements" in a state where courts did not prevent their publication.^[71]

In addition, the policy must include the specifics mentioned in the typical policy discussed earlier. The policy must clearly tell students to whom the material must be submitted for approval.^[72] A decision must be reached on the status of the publication within a reasonable period of time after submission, and the policy should specify what happens if school officials fail to make a decision within a specified period.^[73]

Actual school policies found by courts to suffer from some of these constitutional problems have included the power of school officials to censor a publication that:

• does not conform to "the journalistic standards of accuracy, taste and decency maintained by newspapers of general circulation in the city"^[74]
• is "alien to school purposes"^[75]
• "advocates illegal actions, or is grossly insulting to any group or individual"^[76]
• "incites students or disrupts the orderly operation of the school"^[77]
• is "productive of, or likely to produce a significant disruption of the normal educational processes, functions or purposes in any of the [city] schools or injuries to others"^[78]

Due Process Rights for Students
In addition to the more substantive problems with a prior review policy, students can point to provisions that violate their right to a full and fair procedural review. The principal's office may not be a courtroom, but these "due process" rights can be just as fatal as other flaws in a policy.^[79]

For example, students must have written "notice" of the relevant school distribution policy. This does not mean that each student must actually receive the policy or be told of it personally. Instead, it means that a school district must publish the policy in school publications or circulate it in the same manner as other official school materials.^[80] This prevents schools from relying on oral policies or keeping them under lock and key. To satisfy this requirement, many schools may simply include the policy in a student rights handbook given out annually or publish it in a beginning-of-the-year newsletter.

In addition, students must be given a chance to argue why distribution of their publication should be allowed. This hearing does not have to be formal, but it does have to be granted promptly and allow the affected students a chance to speak.^[81] There is no guarantee the school official will listen or agree with you, but at least you have a chance to explain your legal rights and reason for wanting to distribute the publication.

Finally, students must be given the chance to appeal a school official's decision to censor or ban your publication. Again, the review must be prompt and allow you a chance to state your case.^[82] The person hearing the appeal is likely to be a school district administrator who may not be any more sympathetic to your case, but at least there is a chance to try to convince someone else before resorting to the courts.

These same principles also apply to a student's punishment when suspended or expelled because students have a right to remain in attendance at a public school.^[83] The degree or procedures, however, depends on the length of the sanctions and the circumstances involved.^[84]

How Should the Authors Be Identified?

Anonymous Publications
Many underground journalists seek to expose their ideas to their classmates, but not necessarily their identities. They may justifiably fear retribution from teachers or scorn from their classmates. However, complete anonymity may not always be possible to achieve.

For example, in states that permit prior review of underground newspapers, at least one person often will need to be identified as a co ntact to deal with administrators reviewing the publication. School officials may also want contact names in case problems arise during distribution. This need not be an individual responsible for having produced the content of the publication, but rather simply an "agent" willing to act as a go-between.

Beyond these minimal requirements, there is no requirement that everyone involved with an underground newspaper is identified in its pages or to school officials (though school officials may attempt to find out on their own). As one court has said, a prohibition against anonymous literature might not be justifiable because "without anonymity, fear of reprisal may deter peaceful discussion of controversial but important school rules and policies."^[85]

Disclaimers of School Sponsorship
While putting students' names on an underground newspaper may not be important, a statement that the school is not involved with the publication may be. This is because one of the arguments school officials may make against an underground publication is that people will be confused by it and believe it was produced by or affiliated with the school.

This happened at a North Carolina college, where school officials complained that the paper's name incorporated the school's name and used the school's seal in its masthead. The paper denied using protected material or trying to confuse people, but did change its secondary title from an "independent journal of" the school to one "at" the school.^[86] A Missouri college student also asserted recently he was expelled from school because school officials alleged his alternative newspaper had misled advertisers into thinking it was affiliated with the school.^[87]

One simple way to try to avoid this problem would be to include a simple, one sentence statement in the flag or masthead of your newspaper saying something like "this publication is not affiliated with Anytown High School and its contents are in no way endorsed or funded by the school." This may not prevent all of your legal problems, but it may at least show you are taking reasonable steps to prevent confusion.

Can Distribution Be Done at School?

General Right to Distribute
Public schools cannot ban the distribution of underground newspapers any more than they can ban their creation.^[88] However, students should understand the ways that school officials can legally restrict distribution.

Underground journalists should remember the Tinker standards for reasonable predictions of substantial and material disruptions. No matter how eloquent the articles in an underground paper may be, students who want to form a human chain across a hallway and hand out their paper will have a tough case. So will students who insist on handing out the latest issue in the middle of a science class. Administrators are entitled to make sure the normal operations of a school go on without interruption.

Thus, school officials may impose what are called reasonable "time, place and manner" restrictions on an underground newspaper's distribution.^[89] These policies may not stifle a paper's freedom or deter or discriminate against its message but should instead be designed to "promote the orderly administration of the school by preventing disruption."^[90]
 

Surviving Underground Tip No. 8 If You Are Shut Down or Sanctioned Contact the Student Press Law Center or other legal authority if you run into legal questions and problems, from libel worries to expulsion from school, ignoring them will not make them go away.  The best thing to do is to talk with an expert to understand your rights and obtain advice about what you should do. The Student Press Law Center -- available at (703) 807-1904 or www.splc.org -- can give you guidance on nearly every aspect of underground newspapers free of charge. Other attorneys in your community may also be willing to help advise underground journalists, but you have to take the first step to ask the questions and seek help.

What Constitutes a Distribution Disturbance?
Reported cases provide some insight into exactly what kind of disturbances are necessary for school officials to be able to restrict distribution of an underground newspaper.

For example, although students may be reading or talking about the newspaper in class, that fact alone does not constitute a sufficient disturbance.^[91] Schools can stop students from distributing papers to unwilling recipients in the middle of class.^[92] And schools can prohibit the reading of newspapers in class and punish people who disobey the rule, but that is not an adequate reason to ban distribution of the paper in the first place.^[93] Other possibly legitimate reasons for stopping distribution are direct threats to student safety and damage to property. In Tinker itself, the Supreme Court cited as a disruption a case in which buttons advocating equal rights for African Americans were forced on students and thrown through windows.^[94]

But in the vast majority of cases, little disruption is likely to result from orderly distribution of the publication. Mere objection by other students to the distribution is not enough, for that would create "a license to prohibit virtually every type of expression."^[95] Again in Tinker, the Supreme Court cited a different case involving equal rights buttons, but in this one students simply wore them peacefully and provoked "mild curiosity" and some discussion.^[96]

What Is a Reasonable "Time, Place And Manner" Restriction?
In real life, reasonable "time, place and manner" restrictions often mean that schools establish a general area and time for handing out non-school-sponsored publications. School officials thus do not have to debate any suggested distribution plans from students, instead satisfying their obligation to allow distribution by pointing underground journalists toward a pre-existing policy.

Typically, these policies will instruct students to distribute their work in an area away from the school's classroom (like a cafeteria or a table outside the main entrance) and outside of class hours. Such was the result of negotiations at a Washington high school, where students could distribute papers 15 minutes before school, during lunch and after school when giving school officials two hours notice.^[97] Any restrictions must be narrowly tailored and not based on any attempt to restrict what is being said.^[98] Some schools may thus find it easiest to restrict distribution for an underground paper to the same time and place used by the school-sponsored paper.^[99] Schools may not attempt to give alternative papers distributed by students less favorable distribution settings than that provided an official student publication.^[100]

What about the Distribution of Religious Materials?
Students who try to distribute religious materials such as Bibles or invitations to a church party sometimes run into additional roadblocks from school officials worried that on-campus distribution might be a violation of the Establishment Clause's requirement of the separation of church and state.^[101] But courts have held consistently there is no church-state conflict when schools merely permit students to distribute religious publications as they would any other non-school-sponsored publication, such as fliers for a girl scout meeting or an underground newspaper.^[102] By the same token, courts have held that students have an affirmative First Amendment right to disseminate religious materials on campus subject only to reasonable time, place and manner restrictions.^[103] Thus, distribution restrictions cannot discriminate against religious publications and must adhere to the Tinker standard.^[104]

A small number of courts in the years after Hazelwood have chosen to use something called a "forum analysis" to evaluate students' distribution rights in the context of religious materials cases.^[105] This approach contrasts schools to other public spaces such as parks, airports and street corners and allows less freedom to pass out materials because schools are not generally open to the public. However, even courts that apply a forum analysis have recognized that school officials cannot completely bar students from handing out religious materials, even if the materials were prepared by non-students, the only possible exception being the context of elementary schools.^[106]