Former student loses free speech lawsuit; appeals filed

CALIFORNIA — A Marin County Superior Court judge issued a written opinion in August regarding his March decision that a former student columnist’s constitutional rights were not violated by the Novato Unified School District.

Former Novato High School student Andrew Smith’s lawsuit claimed his right to free speech under both the First Amendment and the California Education Code was violated when district officials apologized to students and parents and attempted to confiscate copies of The Buzz, Novato’s student newspaper, after his article “Immigration” was printed.

David Greene, a lawyer at the First Amendment Project, said this decision could give the wrong idea to California school officials.

“Anytime a student journalist loses a case like this, it sends a message to school administrators that they have a greater power to control the student press than they actually do,” Greene said.

California is one of six states with a statute protecting student free expression rights. The laws are often referred to as anti-Hazelwood statutes because many were a specific response to the Supreme Court’s 1988 decision limiting students’ rights under the First Amendment.

“Immigration” contained derogatory statements about Mexican immigrants and listed reasons why Smith thought immigration laws are ineffective.

The court found that “Immigration” led to a student walkout, administrators meeting with angry parents and a fight between Smith and several Latino students.

In regards to the confiscation of newspapers, the court said, “there was no credible evidence that the District removed any editions of The Buzz after they were distributed,” negating Smith’s claim to the contrary. The court found that all the copies had been distributed at the time the school gave the order to confiscate them, thus thwarting their effort.

Smith also claimed his rights were breached when the publication of his second article, “Reverse Racism,” was delayed so that a counter article could be written and printed alongside it. Both articles were published during the 2001-02 school year.

The court found that Smith’s rights were not violated because he was ultimately allowed to publish both articles. The court also said Smith’s rights were not violated when “Reverse Racism” was delayed because it was the student newspaper staff’s decision to run a counter article, not a directive of the school or district.

Stella Robertson, then-editor of The Buzz, told the Student Press Law Center in January 2002 that it was the principal who was delaying publication.

In addition, the court also rejected Smith’s claim that the district’s policy regarding student publications was a violation of state and federal law.

The district has the ability “to control publication of material which is insulting, derogatory, harassing, likely to incite violence and/or likely to cause a substantial disruption to the orderly operation of the school,” according to the court’s opinion, using terms found in the district’s policy.

Student press advocates raised questions about the breadth of the judge’s decision, saying it appeared to go beyond what California state law allows.

“The judge just ignored the fact that state law does not allow censorship for some of these kinds of expression, in part because the terms are so vague,” said SPLC Executive Director Mark Goodman. “For example, is criticizing a school official ?insulting?'”

Goodman said the decision constitutes a real diminishment of student free press rights as protected by the California Education Code.

“We hope it won’t be used to justify censorship of other student expression in the future,” he said.

Arthur Mark, Smith’s attorney, said an appeal to the judge’s decision has been filed.

“The main issue is the free speech rights of Andrew Smith and the free speech rights of the students of California,” he said.

Mark said this case is important because it will have an impact on how administrators treat student speech.

Case: Smith v. Novato Unified Sch. Dist., No. CV022210 (Marin Super. Ct. Aug. 26, 2005)