Nebraska court cautions against illegal student media censorship in lawsuit dismissal

A Nebraska judge dismissed a former student journalist’s lawsuit against his high school this week, but not before warning school administrators that censoring student media based on content they disagree with could violate the First Amendment.

Former Northwest High School student Marcus Pennell, along with the Nebraska High School Press Association, sued Northwest Public Schools in federal court in March. The lawsuit alleged the school violated Pennell’s First Amendment rights when they shut down The Viking Saga student newspaper following the spring 2022 publication of stories addressing LGBTQIA+ issues. The complaint also noted that administrators had previously ordered the student journalists to use only legal names and pronouns in stories and bylines after the Saga included Pennell’s preferred name in his byline earlier that year. 

The U.S. District Court in Nebraska did not reach those First Amendment arguments, instead dismissing the case because Pennell had already graduated when the school decided to terminate the paper and thus had no legally protected interest. 

For someone to bring a lawsuit, they must show they have “standing,” meaning in part that they allegedly had been harmed or deprived of a legally protected interest. The court noted that had Pennell been a current student, which the judge noted “may have come down to just a matter of days,” he would have been more directly affected by the newspaper’s closure. (For more on this issue, read this Student Press Law Center guide.) 

Judge John M. Gerrard, however, cautioned schools that viewpoint discrimination in student media is unconstitutional. His opinion emphasized that “school administrators would be wise to remember that policies and decisions to restrict speech in student newspapers . . . may run afoul of the First Amendment if they ‘reflect an effort to suppress expression merely because the public officials oppose a speaker’s view.”” 

SPLC Executive Director Gary Green said the ruling was a clear signal to schools not to overstep the First Amendment.

“While it’s disappointing this case was dismissed, the decision lays out a legal path for other student journalists who have been discriminated against by school administrators,” Green said. “Officials should heed the judge’s warning to avoid censoring student media for speech they simply disagree with. This warning also strongly highlights the need for state laws that explicitly spell out the rights of student journalists to help school administrators steer clear of violating the First Amendment.”

Pennell and NHSPA are represented by attorneys at the ACLU of Nebraska and could decide to appeal the decision or refile their lawsuit with current students. Northwest administrators denied the newspaper’s closure was content based, and the Saga returned in spring 2023 as an online-only publication with a new adviser.

SPLC has helped Pennell and other Saga student journalists since they first contacted the SPLC Legal Hotline in April 2022. SPLC’s chosen name guide helps student reporters understand their rights when it comes to using students’ preferred names and pronouns. Student journalists facing censorship on this or any other issue can get legal help by contacting the Legal Hotline.

Read the court’s full decision here.