SPLC model legislation to protect student free expression rights

Following the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, which significantly diminished the federal constitutional protection traditionally afforded public high school student journalists, state lawmakers and others approached the Student Press Law Center to seek our guidance in drafting legislation that would provide state legal protection for the free expression rights of their students. The following model legislation, which borrows in part from existing state statutes and reflects the law that existed in this country for at least the 19 years prior to the Hazelwood decision, was drafted with the intention of creating the highest quality student publications and the most responsible student journalists.

Version 1

A. Students of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the publication of expression in school-sponsored publications and other news media, whether or not such media or other means of expression are supported financially by the school or by use of school facilities or are produced in conjunction with a class, except as provided in subsection (B).

B. Nothing in this section shall be interpreted to authorize expression by students that:

  1. is obscene as to minors as defined by state law,
  2. is libelous or slanderous as defined by state law,
  3. constitutes an unwarranted invasion of privacy as defined by state law, or
  4. so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the material and substantial disruption of the orderly operation of the school. School officials must base a forecast of material and substantial disruption on specific facts, including past experience in the school and current events influencing student behavior, and not on undifferentiated fear or apprehension.

C. Student editors of school-sponsored media shall be responsible for determining the news, opinion and advertising content of their media subject to the limitations of this section. It shall be the responsibility of a journalism adviser or advisers of student media within each school to supervise the production of the school-sponsored media and maintain the provisions of this chapter. This section shall not be construed to prevent an adviser from teaching professional standards of English and journalism to the student staff. No journalism adviser will be fired, transferred, or removed from his or her position for refusing to suppress the protected free expression rights of student journalists.

D. No student media, whether school-sponsored or non-school-sponsored, will be subject to prior review by school administrators.

E. No expression made by students in the exercise of free speech or free press rights shall be deemed to be an expression of school policy, and no school officials or school district shall be held responsible in any civil or criminal action for any expression made or published by students unless school officials have interfered with or altered the content of the student expression.

F. Each governing board of a school district shall adopt rules and regulations in the form of a written student freedom of expression policy in accordance with this section, which shall include reasonable provisions for the time, place, and manner of student expression and which shall be distributed to all students at the beginning of each school year.

G. Any student, individually or through parent or guardian, or student media adviser may institute proceedings for injunctive or declaratory relief in any court of competent jurisdiction to enforce the rights provided in this section.

Version 2

This version is intended to provide similar protections for student press rights as version 1, but in a different form. It relies on statements in the Hazelwood v. Kuhlmeier decision that said publications which are “public forums” could only be censored under the more protective Tinker standard.

All school-sponsored publications and news media produced primarily by students at a public school, except for those intended for distribution or transmission only in the classroom in which they are produced, shall be public forums for expression by student reporters and editors at such school.