MASSACHUSETTS — A lawsuit alleging that a high schoolillegally censored a conservative club’s flier — which referred to a Website with photos of Iraqis beheading an American — will continue, afederal judge ruled Oct. 4.
In denying the Town of Hudson’s request to dismiss the case, U.S.District Judge Patti B. Saris ruled that the town did not produce”evidence that the videos were reasonably likely to result in asubstantial interference with the operation of the school” and therefore”Tinker does not support censorship of the posters.”
The reference is to Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court ruling that held school officials can not censor student speech unless they can reasonably forecast that the speech will cause a substantial disruption to the school or invade the rights of others.
Although the judge ruled it was illegal to ban the URL from the posters,she granted qualified immunity to the individual defendants — Hudson HighSchool Principal John Stapelfeld, Assistant Principal David Champigny andthen-Superintendent Sheldon Berman — because there was “no evidencea similarly situated official would have acted differently.” The casecontinues against the town to determine if a policy enacted later that bans allURLs on posters was motivated by a desire to censor the Conservative Club.
Stapelfeld and current Superintendent Nina Schlikin could not be reachedfor comment.
The case dates back to 2004 when Chris Bowler, then a senior at Hudson,started the Conservative Club. He affiliated the club with the national HighSchool Conservative Clubs of America and used the HSCCA’s Web address on aposter advertising his club’s first meeting. When a staff member alertedschool officials that the HSCCA Web site contained a link to Iraqi insurgentsbeheading an American, administrators took down the posters.
The town argued that school officials were trying to prevent students fromsuffering “a negative psychological reaction” by asking Bowler toremove the HSCCA Web site from the promotional posters.
Bowler said he believes school officials disagreed with the conservativeviewpoint expressed by his club and used the Web site as an excuse.
The town, according to court documents, says that the club was given a fairopportunity to advertise and hold meetings and that the posters were only takendown because of the violent images the site linked to, not because of thecontent or conservative opinions of the club.
The court ruled that “the students had a First Amendment right to putthe website URL on their posters.” Because the poster only displayed theURL and not the images of the beheading, students were not a “captiveaudience.” The beheading video was only available to students”outside of school, as a matter of conscious choice.”
The court also said a “material issue of fact” remained as to “whether or not school officials used the graphic videos available on theHSCCA website as a pretext to censor the plaintiffs’ political speech inviolation of the First Amendment.”
In addition, Saris denied the town’s request to dismiss achallenge to a new policy adopted in the summer of 2005 regarding postedmaterials. The new policy forbids students from posting any material containingURLs and requiring administrative approval before displaying any posters.
John Whitehead, founder of the Rutherford Institute, which is representingBowler, said it is “very ironic” that Hudson would censor astudent’s speech, considering the schools participates in the “FirstAmendment Schools” project.
The program, launched by the First Amendment Center, seeks to recognizeschools that teach and practice democratic freedom and citizenship, according toits Web site.
“Free speech is for people like Bowler because they are going to saythings that people don’t like,” Whitehead said. “[FormerPresident James] Madison said the First Amendment is there for the minority, notthe majority, who will say things are not politically correct.”
Bowler said he started the Conservative Club in the fall of 2004 because hefelt teachers were only voicing a liberal political viewpoint. When teachers didexplore conservative ideas, Bowler said they would tell the students they were”playing Devil’s advocate.”
“I wanted to create somewhere where students could feel comfortableexpressing their opinions,” he said.
The school provided Bowler with a club adviser and provided a room for thestudents to meet in after school, according to court records. Stapelfeldrecognized the club as a student organization in November 2004.
In December 2004, Bowler and other club members hung up about ten postersadvertising for the club’s first meeting. Included on each poster was theWeb address to the national HSCCA, www.hscca.org. A staff member contacted theschool’s technology director warning her that the HSCCA Web site containeda link to “violent and brutal beheadings.”
The technology director blocked the HSCCA Web address from school computersbut not the actual site displaying the beheading videos, according to courtrecords. After consulting with Staplefeld and Champigny, the posters were takendown.
According to court documents, Champigny told Bowler he could not hang upany more posters containing the HSCCA URL. The administration did allow the clubto hang a banner with the Web site, and the school newspaper printed the URL inan article.
The court ruled that there was “no evidence of any disruption in theschool resulting from the widespread publication of the website.”
The club held its last meeting at Hudson in April 2005.
Whitehead said he believes the judge’s ruling is a good affirmationfor free speech.
“This was a conservative group and they obviously focused onit,” he said. “When you focus on any group, you’ll findsomething that someone is offended by in this politically correctworld.”
For More Information:
Bowler v. Town of Hudson, No. 05-11007, 2007 WL 2874393 (D. Mass. Oct. 4, 2007).