By Mike Hiestand
A quick quiz: You are the editor of your public school’s student newspaper and receive the following three unsolicited ads, along with the proper payment for publication in your paper’s next issue. Which, if any, can you legally refuse to publish?
1. “It is time for every white man and white woman to regain our position and take back the Earth from Jews, homosexuals and other inferior races. For more information, check out our website.â€
2. “Pepe’s Pizza. Special: 99-cent Slices. This Week Only!â€
3. “Vote Jane Doe for School Board.†(You published her opponent John Doe’s political ad in your last issue).
Answer: You can reject any or all of them – provided only you and other students are involved in making the decision.
Recently, student media across the country have received an advertisement – similar to the first example – for a white supremacist website, reportedly paid for by a group promoting a “campaign to inform, awaken and radicalize our White American youth.” In recent years, student media have also been targeted by groups wanting to run ads denying the Holocaust, attacking Muslims or pushing some other controversial idea or message. Such ads are often submitted not so much for the sake of publication, but to stir up controversy and capitalize off of the public outrage inevitably directed against the student media organization that published the ad (or in some cases, the school official(s) who censored the ad). From student demonstrations, to newspaper thefts to demands that editors and advisers be fired, advertisers know such controversies will keep their agendas in the public spotlight. It is a strategy that has worked all too well, with student media frequently caught off guard, usually without a plan or advertising policy in place and sometimes for no other reason than staffers assumed they had to play along and publish the ad.
What many people don’t know, however, is that the First Amendment protects not only one’s right to speak, but also their right not to speak, to refuse to be associated with ideas or opinions with which they disagree or simply don’t like. As the student editor of a school newspaper, yearbook or other student publication, this generally gives you the right to reject material submitted by third parties – such as ads (classified or regular), letters to editor, guest columns, reader feedback for online stories, etc. – for any reason or for no reason. That remains true even if your reasoning might seem unfair or tick off a potential advertiser.
There is, though, a potentially big “if.â€
If you are the editor of a student publication at a public school and if school administrators (including faculty advisers) are involved in rejecting the ad, things can become more complicated. (Student media at a private school retain the right to reject virtually all outside submissions – no matter who makes the decision.)
That’s because the First Amendment limits censorship by government officials – which includes a public high school principal or a public college president, for example – and an advertiser may try to claim that by refusing to publish his or her ad, the government has censored their speech and violated the First Amendment. It may not be an argument that will win very often, but it has worked before and it has certainly led to a number of messy and costly court battles to sort things out.
On the other hand, courts have found that student journalists working on student-edited media are not government officials (the fact that a school provides financial support, operating space or an adviser to student media will typically not be enough to alter that finding.) As private individuals, they are not bound by the First Amendment, which means that a court will categorize a student editor’s rejection of an ad as simply an editorial decision, not an act of potentially unlawful censorship. While a student editor might be criticized for being inconsistent or unfair for refusing to run an ad, neither they nor their school can successfully be sued as long as only students were involved in making the decision. (Note, though, that while student editors or ad managers, acting alone, generally have the right to reject any ad they choose, this right probably only exists until a contract is formed. Once a student media organization agrees to run an ad, it generally must do so or risk paying contractual damages.)
This is not to say that public school officials can never step in to reject an advertisement submitted to student media, but they must do so with the understanding that there is some – and sometimes considerable – legal risk involved. Unlike student staffers, they are not simply making editorial decisions; a public school official’s rejection of an advertisement will always legally be classified as censorship regardless of his or her motives and regardless of whether, in the end, a court upholds the censorship as legally justified. (In fact, the risk of a First Amendment lawsuit may be two-fold if school officials censor an ad that a student editor actually wants to run.)
There is little doubt student media will continue to be targeted by those seeking exposure for their controversial messages. It is a strategy that costs advertisers little, but has and continues to generate publicity far exceeding the reach of a typical 3-inch ad. Fortunately, student media staffs can reduce the risk of being unwitting pawns in such promotional stunts by understanding their options and giving some thought to how they want to handle controversial ads before being unwillingly thrust into the hot seat.
Mike Hiestand is an attorney, based in the far, upper left corner of the “Lower 48,” and works as a legal consultant to the Student Press Law Center.