Court says Massachusetts high school student publications must accept ads; validity of state free expression law in question

MASSACHUSETTS — A recent ruling of the United States Court of Appeals for the First Circuit raises new questions concerning the strength of state student free expression statutes and student control over the content of student publications.

The court ruled 2-1 on June 6 that the student yearbook and newspaper of a public high school do constitute government publications, therefore making it constitutionally impermissible for student editors at Lexington High School to refuse a paid advertisement promoting abstinence.

When Douglas Yeo submitted an advertisement promoting the views of his organization, the Lexington Parents Information Network (LEXNET), to the Lexington High School student newspaper, the Musket, and yearbook in response to a new school condom distribution policy in 1992, student editors of both publications refused the advertisement, stating it was against their policy to run advertising of a political nature.

Yeo then filed suit, claiming his First Amendment free press rights and Fourteenth Amendment right to equal protection were being denied.

Although the district court found on summary judgment that no state action was established by Yeo, the First Circuit reversed.

The court relied largely on Hazelwood School District v. Kuhlmeier, 484 U.S. 260, as guiding precedent in its majority opinion, and wrote that state action analysis superseded a Massachusetts statute guaranteeing students the right to free press.The Massachusetts statute was enacted as a response to the Hazelwood decision, and the ruling of the First Circuit Court raises questions concerning the future of similar anti-Hazelwood statutes enacted in other states.

“Based on our review of relevant precedent and the undisputed record evidence before us, we conclude that the Musket and the Yearbook do engage in state action to the extent they bear the imprimatur of Lexington High School. Their refusals to print the LEXNET ads thus constituted state action,” wrote Judge Norman H. Stahl in the majority opinion.

The issue of state action was central to the court’s decision. The First Amendment only forbids censorship of free expression by the government, not by private individuals or entities, and the court recognized that had the Lexington High School publications been found to be non-state actors, Yeo’s claim would have been rejected.

But the court found the school publications to be state actors, contrary to the findings of the district court, and other court decisions from around the country. Other federal appellate courts have said that as long as students — not school officials — are making the decisions, no state action will be found.

The majority also stated that refusing the advertisement in order to remain neutral on the issue was not a valid argument for the publications to make, due to the strong editorial stance taken by the newspaper in favor of the condom distribution program.

“Specifically, the Musket had assumed a strong editorial stance in favor of a “safe sex” condom distribution policy,” Judge Stahl wrote. “To argue that the paper refused the LEXNET abstinence ad on the grounds that it wanted to avoid taking sides and lending the imprimatur of the school to one side of a controversial issue thus is a specious argument.”

Attorneys for the school district plan to ask for a rehearing of the case by the full panel of First Circuit judges.

“This is as bad a decision as I could have imagined,” said SPLC Executive Director Mark Goodman. “While we’re recommending that student publications not alter their current ad acceptance policies until the issue is resolved, if this decision stands, it suggests that advertisers have more control over the content of the student media than the student staff has. We’re hoping that the First Circuit will reconsider its ruling.”