Appeals court: N.Y. school can censor cartoon in 'forum' and independent newspapers

NEW YORK ­— Evena student newspaper that is a “limited public forum” can be censored under Hazelwood, a federal appeals court ruledWednesday.

Advocates called it the most damaging decision to highschool student journalism in the past 20 years.

The 2nd U.S. Circuit Court of Appeals held that astick figure editorial cartoon about sex education could be lawfully censoredin both a school-sponsored student newspaper and a newspaper producedindependently, off school grounds.

The cartoon was created for the January 2005 issue of The Tattler at Ithaca High School in NewYork. After school officials prevented student editors from printing it on thegrounds that it was inappropriate, students created an independent publicationcalled The March Issue, which also containedthe cartoon. Ithaca City School District administrators later denied thestudents’ request to distribute the newspaper on campus.

In siding with the district, the unanimous three-judge panelfound The Tattler to be a “limitedpublic forum,” but concluded that the school could censor it anyway.

“While ICSD apparently opened the newspaper to some—or even many—types of speech, there is no evidence that the schoolpermitted ‘indiscriminate use by the general public,’ as is required to createa traditional public forum or designated public forum,” Judge Jose Cabraneswrote.

The Student Press Law Center has for years told studentjournalists that having their publication declared a “public forum” willprovide them with greater freedom than is available under the U.S. SupremeCourt’s 1988 Hazelwood School District v.Kuhlmeier decision. In that case, the Court decided schools may censornon-forum, curricular publications for legitimate educational reasons.

The Second Circuit, however, made a distinction between a“limited” public forum and a “designated” public forum, holding that a“limited” forum newspaper remains subject to Hazelwood.

Frank LoMonte, executive director of the SPLC, said thecourt misapplied the law, and that a forum is “limited” because it’s limited tostudent authors – not limited to the topics approved by administrators.

“The court just fundamentally misunderstood what it means tobe a limited public forum,” LoMonte said. “A forum where the government gets topick and choose which cartoons it likes is meaningless.”

As to the independent MarchIssue, the court found the school justified in keeping it off campusbecause the cartoon was “lewd” and could be prohibited under the SupremeCourt’s decision in Bethel SchoolDistrict v. Fraser. In Fraser,the high court upheld the discipline of a high school student who gave a speechat a school assembly filled with sexual innuendo.

“Although the Supreme Court has not clarified the extent towhich the Fraser doctrine applies incontexts beyond the facts of that case… we have not interpreted Fraser as limited either to regulationof school-sponsored speech or to the spoken word,” Cabranes wrote.

LoMonte said the purpose of Fraser was to allow a school to disassociate itself from lewdspeech in front of a captive audience. He said readers of an independentstudent newspaper are the exact opposite of a captive audience.

The former editor of TheTattler who brought the lawsuit, Robert Ochshorn, said he had not yet had achance to read the decision. His lawyer, Raymond Schlather, was not availablefor comment.

Calls and emails to representatives of the school districtwere not returned by press time.

The Ithacadecision now becomes binding precedent in Connecticut, New York and Vermont,unless it is appealed to the Supreme Court or reheard by all 12 judges on theSecond Circuit.

LoMonte said more specific student publications policies maynow be needed to protect the rights of student journalists.

“I think the words ‘limited public forum’ by themselves mayno longer be enough,” he said.

However, LoMonte said the seven existing state laws designedto provide enhanced free expression rights for high school students are not injeopardy after the ruling. Those statutes, he said, do not use the term“limited public forum” in isolation. He hopes to see additional states passlaws in response to Wednesday’s ruling.

“Any reasonable legislator who looks at this case is goingto realize that it sets up an intolerable situation,” LoMonte said. “I wouldanticipate that this is going to ignite a movement in all of the Second Circuitstates to rein in the discretion that the court has just granted.”