By Mike Hiestand
Here are two things most of you already know: First, in its 1988 decision, Hazelwood School District v. Kuhlmeier, the U.S Supreme Court significantly cut back on the First Amendment rights of most high school student journalists when working on school-sponsored publications. Second, so far, six states (Arkansas, California, Colorado, Iowa, Kansas, Massachusetts) have passed student free expression laws and a number of local school districts have enacted student publication policies that limit the ability of school officials to their censor student media.
These laws, which some have dubbed “anti-Hazelwood” laws, and policies have successfully limited censorship and shielded the free expression rights of students who have turned them for protection. In effect, they give back to students essentially the same free speech protections that existed for the two decades prior to Hazelwood. Still, based on questions we hear, there remains some confusion about what these laws do and how they work.
Chief among those questions: how can state laws (or, for that matter, local school policies, which work the same way as a state law but on a smaller scale) “trump” a United States Supreme Court decision?
In short, they don’t. They exist independently.
Hazelwood was a First Amendment case. Think of the First Amendment as establishing a “floor” of federal protection from government censorship. No government official – federal, state or local – may ever act in a way nor may lawmakers ever pass a law or policy that provides individuals with less free speech protection than that required by the First Amendment. That’s why a public high school principal can’t institute a policy, for example, that allows her to halt publication of any material she simply disagrees with. The First Amendment – and specifically Hazelwood – requires more than that.
As a case that interpreted the First Amendment, Hazelwood established the minimum free speech protection that must be afforded every public high school student journalist in America.
Nothing, however, prevents lawmakers from passing a law (or school board members from enacting a local district policy) that requires school and government officials to provide student journalists with more free speech protection. In other words, Hazelwood and the First Amendment establish the ground floor of censorship protection – but anyone – where they believe the First Amendment provides insufficient protection against government censorship – can raise the ceiling and establish a higher floor. And that is precisely what state lawmakers and school board officials have done in passing student free expression laws and policies.
Kansas student journalists, for example, are protected by both the federal First Amendment and the Kansas Student Publications Act. However, because the First Amendment – as a result of Hazelwood – provides little protection against some forms of administrative censorship, Kansas students can also look to their state law for help. And Kansas school officials, whose actions might not violate the First Amendment, must think twice before acting because the state law does not allow censorship except in those rare cases where student journalists have crossed established, well-defined legal boundaries.
Hazelwood has taken an enormous toll on many high school student media programs and left a generation of future citizens with a warped view of the role of free speech and a free press in America. State student free expression laws provide students and journalism educators with a legitimate and effective means for undoing much of that damage.