The U.S. Supreme Court began its October 2011 term this morning, kicking off what could be a major season for the student media. The SPLC is tracking five cases that will be addressed by the Court this term — even if it is just to refuse to hear the appeal. Any one of these cases could dramatically reshape the First Amendment climate for students. Before we preview those cases, however, it’s worth brushing up on some High Court 101.
Note that unlike lower courts in the federal system, the U.S. Supreme Court gets to choose which cases it will hear. In fact, the justices grant only a small fraction of the hundreds of requests (commonly called “cert petitions”) they receive each term. The justices meet at private conferences on most Fridays during the term to decide which cases to take — and to discuss pending cases they’ve already heard. If the Court agrees to take a case, each side will file briefs detailing its position and oral arguments will be scheduled. Outside groups with an interest in the outcome of the case frequently file “friend-of-the-court” or “amicus” briefs in support of either side. The Court announces decisions throughout its October-to-June term.
The SPLC is closely monitoring a handful of cases that may be — or in one instance, already have been — accepted for Supreme Court review:
R.O. v. Ithaca City Sch. Dist.
This case involves former student editors at the Tattler newspaper from Ithaca High School in Ithaca, N.Y. Editors wanted to run an editorial cartoon criticizing the school’s sex-ed curriculum. It depicted a teacher pointing to an image of stick figures in various sexual positions with the words “Test on Monday” written below. When the students were told they couldn’t run the cartoon in the Tattler, they created an independent newspaper called The March Issue with the same cartoon — but school officials denied them permission to distribute it at school. In May, the 2nd U.S. Circuit Court of Appeals found both actions did not violate the students’ First Amendment rights, in a decision some advocates called the most damaging to student media in more than 20 years.
As to the Tattler, the court found the newspaper was a “limited public forum,” but said the paper was subject to the speech-restrictive Hazelwood v. Kuhlmeier censorship standard anyway. The ruling appeared contrary to the Supreme Court’s statement in Hazelwood that, if a newspaper is operated as a public forum, then it enjoys heightened First Amendment protection — presumably under the more speech-friendly Tinker v. Des Moines standard, under which school officials can censor only to prevent a material and substantial disruption of school.
As to the independent March Issue, the Second Circuit found that distribution could be prevented under the Supreme Court’s Bethel v. Fraser decision, which allows schools to regulate lewd and vulgar speech.
STATUS: The former editors have petitioned the Supreme Court to hear the case. The justices will consider it at their conference this Friday, Oct. 7. The Court will likely announce whether or not they will hear the case in orders released Oct. 11. (Note that another part of the case, in which the students are challenging the actual guidelines under which they were censored, is still pending in the trial court).
Doninger v. Niehoff
In the first of three cases involving online, off-campus student expression, Avery Doninger is fighting her former Connecticut school over a 2007 LiveJournal entry. Doninger, in the middle of a dispute over a school concert, wrote on her blog that the concert had been cancelled because of the “douchebags in central office.” It also encouraged students to complain to the superintendent to “piss her off.” When school officials discovered the blog, Doninger was prevented from running for senior class secretary — and when she won anyway as a write-in candidate, principal Karissa Niehoff prevented her from taking office. At a school assembly the following month, Niehoff also made several students remove T-shirts supporting Doninger with the words “Team Avery” on the front.
In April, the 2nd U.S. Circuit Court of Appeals declined to rule on whether Doninger’s First Amendment rights were violated. Instead, it held that any free speech right at issue was not “clearly established” under existing law, and as such, Niehoff was protected against liability under a doctrine known as “qualified immunity.” The court found both the right to criticize district officials on the blog and the right to wear the T-shirts was not clearly established.
STATUS: Doninger has petitioned the Supreme Court to hear the case. The justices will likely consider it at a conference in the coming weeks.
J.S. v. Blue Mountain Sch. Dist. and Layshock v. Hermitage Sch. Dist.
The final two off-campus speech cases were decided together by the 3rd U.S. Circuit Court of Appeals and are being appealed together to the high court. Both cases involve Pennsylvania students who created fake MySpace profiles ridiculing their principals. After being punished, both students sued, arguing that punishment for off-campus expression violated their First Amendment rights.
In June, the Third Circuit — sitting “en banc” with all 14 judges — agreed. It declined, however, to declare a clear standard for student expression rights off campus. The court appeared unanimous in holding that the off-campus speech is not punishable merely because it is “lewd,” a standard that applies to speech at official school functions under the Supreme Court’s 1986 Bethel Sch. Dist. v. Fraser ruling. It was split, however, as to whether the Tinker disruption standard should apply in cyberspace.
In Layshock, the circuit judges unanimously found in favor of the student, on the grounds that Fraser is the wrong legal standard for off-campus, online speech. In J.S., they ruled 8-6 that the profile was not disruptive — assuming without deciding that Tinker was the appropriate standard. Six of the judges would have explicitly held that Tinker applies off campus, while five would have explicitly held it does not.
STATUS: The districts jointly received an extension of time to file their appeal with the Supreme Court. Their joint petition is due Oct. 27. The districts have indicated they will be petitioning the two cases jointly, and have secured legal assistance from the University of Virginia School of Law’s Supreme Court Litigation Clinic.
FCC v. Fox Television Stations
Broadcasters and First Amendment scholars are closely watching a case that the high court has already agreed to take this term. The Court will have its first opportunity in years to address the concept of broadcast indecency, an important issue for college radio and TV stations. The case stems from the airing of the 2002 and 2003 Billboard Music Awards, in which one-time uses of the words “fuck” and “shit” inadvertently made their way onto FOX television. In response, the Federal Communications Commission announced that it would, contrary to past practice, begin fining stations for even one-time uses of so-called fleeting expletives. The FCC’s ability to fine stations for “indecent” broadcasts was upheld in the 1978 Supreme Court case of FCC v. Pacific Foundation — a case involving George Carlin’s “filthy words” monologue.
The Fox case has been to the Supreme Court before, on procedural grounds, but last year the 2nd U.S. Circuit Court of Appeals addressed the underlying First Amendment concerns. It found that fines for one-time expletives violated the First Amendment, and seriously questioned the relevance of Pacifica after 30 years. Of course, only the Supreme Court can overturn its own decisions, which it will have an opportunity to do now that the case is once again up on appeal. The case sets the stage for a potential sweeping new pronouncement from the Court about whether the FCC can police broadcast indecency at all.
STATUS: The FCC has filed its brief with the Supreme Court, along with nine amicus briefs; Fox’s brief is due in Nov. 3. Oral arguments have not yet been scheduled. The SPLC will likely file a brief in the case.