Q: If I am taking journalism as a class that has course guidelines and requirements and is being taught by a paid adviser, do I have fewer First Amendment rights than if I were a writer for my school paper and not being taught journalism in a class?
Attorney Advocate Adam Goldstein: The short answer is, “not necessarily.” It depends on the laws of the state you’re in, what the school’s handbook says, and how the publication or class has been operated in the past.
For a longer answer, let’s start by looking at how rights work, which will hopefully clarify the significance of the response.
Any person in the United States is going to have First Amendment rights more or less all the time. There will be times, however, when the scope of the rights you can exercise in a specific place or publication will be more limited. (For example, I can say whatever I like on the sidewalk, but if I want to shop at an electronics store, I have to limit the use of my rights to whatever the store says is acceptable or I have to leave.)
So just to be clear, you always have your First Amendment rights–if they’re diminished in a particular classroom context, it doesn’t mean you can’t publish those words. It just means you might not be able to publish them in that specific place. You can take your content and publish it elsewhere.
The Supreme Court case Hazelwood v. Kuhlmeier said that public high schools can exercise more control over the content of student publications when those publications were “curricular”–that is, intended to be primarily part of the educational process, as opposed to being primarily vehicles for student expression. From that came the Hazelwood test, which examines whether a school has lent its name or resources to the publication, and whether, by policy or practice, it has permitted the publication to operate as a forum for student expression.
When something is primarily a curricular publication, student speech can be censored for a legitimate educational reason. When something is primarily a vehicle for student expression, it can only be censored when the content is illegal or creates a substantial risk of a material disruption of the educational process (that is, some physical event that stops school from happening normally).
The Hazelwood test is where people get the idea that, “oh, it’s part of a class, so therefore students don’t get the same speech rights.” While it’s true that this is a factor in determining whether a class is curricular, it’s not the only factor. The policy and practice of the operation of the publication are even more important factors, and state law trumps all of these factors (remember, Hazelwood only determined the constitutional minimum of rights you get; states can give you more).