Student Press Law Center Condemns 'destructive' appeals-court ruling denying N.Y. students’ First Amendment claims

FOR IMMEDIATE RELEASEContact: Frank D. LoMonte, executive director703.807.1904 /

The Student Press Law Center on Wednesday condemned a federal appeals-court rulingdismissing the First Amendment claims of Ithaca, N.Y., students who wereprevented from publishing a political cartoon mocking the effectiveness oftheir school’s sex-education program, calling Wednesday’s decision the mostdamaging ruling to the independence of student publications in the past twodecades.

Athree-judge panel of the Second Circuit U.S. Court of Appeals decided 3-0 in R.O. v. Ithaca School District that theeditors of Ithaca High School’s student newspaper, The Tattler, had no First Amendment remedy for their school’sdecision to remove an editorial cartoon from a February 2005 edition of thenewspaper, and then to ban the same cartoon from a March 2005 paper that thestudents produced and financed independently.

The judgesdecided the case on the basis of a 1986 U.S. Supreme Court ruling, Bethel School District v. Fraser, thatallowed schools to punish “lewd” or “vulgar” speech by speakers at officialschool assemblies without running afoul of the First Amendment. Theycategorized the cartoon – which depicted crudely drawn stick figures in varyingsexual positions, as a way of satirizing the unrealistic manner in which sexeducation is taught – as “unquestionably lewd.”

The courtalso decided that The Tattler enjoyedno heightened protection by virtue of being designated as a “public forum,”which typically confers enhanced First Amendment rights beyond the minimalrights recognized by the Supreme Court for “curricular” student publications inHazelwood School District v. Kuhlmeier(1988).

SPLCExecutive Director Frank D. LoMonte, an attorney who co-signed the SPLC’sfriend-of-the-court brief supporting the Ithaca students along with volunteercounsel from Hunton & Williams LLP, said the court misapplied the law inseveral fundamental respects.

“The Fraser ‘lewd speech’ standard grew outof a mandatory school assembly before a captive audience, and it should havenothing to do with an independently produced and independently financed studentnewspaper that readers can pick up or discard at their own choice,” LoMontesaid. “As to the students’ independent newspaper, The March Issue, this quite clearly isn’t a Fraser case. The Supreme Court explicitly said in Fraser that schools can punish this typeof speech to ‘disassociate’ themselves from its message, but the independentstudent paper was very clearly unaffiliated with the school.”

As to thelevel of protection afforded to TheTattler, the Second Circuit relied solely on one of its own 2002 rulings, Hotel Employees & Restaurant EmployeesUnion Local 100 v. New York City Department of Parks & Recreation. ButLoMonte said the court selectively applied only a portion of that case to reachthe end result.

“The Hotel Employees case specifically saysthat, once it is determined that you’re dealing with a limited public forum –which is exactly the case here – you have to apply the very strictestconstitutional scrutiny to any regulation that excludes the type of speech forwhich the forum was created. The Second Circuit completely skipped over thatstep and pretended it doesn’t exist,” LoMonte said. “This court has created anew type of a publication never before seen in the law – the ‘limited publicforum’ publication – in which schools have blank-check authority to decide whatmaterial is ‘suitable.’ The Supreme Court said in the Hazelwood case that students could obtain better protection byhaving their publications designated as public forums for student expression.These students followed the rules and did exactly what the Supreme Court toldthem to do, and now you have the judges of a lower court saying they don’t haveto follow Supreme Court precedent and that the ‘public forum’ designation is ameaningless designation.”

“This caseis terribly destructive to the ability of students to voice their opinionsabout legitimate matters of public concern, and in particular on the veryschool policies about which they are most knowledgeable,” LoMonte said. “If thestudents who are opinion leaders in their school believe that the sex educationcurriculum is ineffective, that is valuable input that policymakers should takeinto consideration. The government should never be in the position of orderingpeople to stifle their criticism of government programs, particularly whenspeaking in publications that they publish themselves.”

“The onecomforting thing is that the court is so unmistakably wrong on the law – thisis so plainly an outcome-driven decision to reach the preordained result thatthe school should win – that it is very hard to see any court ever followingit. This is a case where the law says ‘up’ and the court says ‘down,’ and youjust can’t misapply the law any more blatantly,” LoMonte said. “I think in thefuture, if the ruling isn’t overturned, we’re going to see it discredited byother circuits as a wild deviation from established First Amendmentprinciples.”

Since 1974, the StudentPress Law Center has been devoted to educating high school and collegejournalists about the rights and responsibilities embodied in the FirstAmendment, and supporting the student news media in covering important issuesfree from censorship. The Center provides free information and educationalmaterials for student journalists and their teachers on a wide variety of legaltopics.