Twenty-five years ago this week, the Supreme Court issued a First Amendment ruling whose deep impact is still felt in public schools and, now, even at public universities.
The Jan. 13, 1988, decision in Hazelwood v. Kuhlmeier was one of those Supreme Court rulings that may have seemed routine at the time, but over time transformed the legal underpinnings of an entire segment of lawin this instance, the power of school administrators to restrict student expression. It gave schools the upper hand, finding that student speech "inconsistent with its educational mission" need not be tolerated.
It was a marked shift from Tinker v. Des Moines Independent School District, which said students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Few people have charted the impact of Hazelwood as closely as Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va. Formerly a journalist and then a litigator at Sutherland Asbill & Brennan in Atlanta, LoMonte and his organization help student journalists deal with efforts by school administrators to censor their work.
In a recent article in the Harvard Law & Policy Review, LoMonte warned that federal courts are invoking Hazelwood to uphold restrictions on speech at public universities. In an interview last week, LoMonte discussed the continuing impact of Hazelwood.
Why was Hazelwood such an importantand devastatingdecision for student free expression?
The Supreme Court has consistently said that, when you have close judgment calls to make about regulating the content of a speaker's message, every benefit of the doubt is supposed to go to the speaker. If you have a choice between erring on the side of too much freedom or on the side of too much regulation, that's supposed to be an easy decisionthe speaker is supposed to get "breathing space" so he is not intimidated by the fear of punishment into censoring himself.
Hazelwood upended all of the normal presumptions, so that the benefit of the doubt now goes to the government regulator, whose judgment a court will rarely, if ever, be willing to second-guess. Hazelwood marked a very pronounced mentality shift, where the judiciary's greatest concern became protecting the ability of government authority figures to "keep the trains running on time" and not protecting vulnerable individuals against government overreaching.
How did Hazelwood change the model of student constitutional rights embodied in the Tinker decision?
Hazelwood greatly undermined the high degree of First Amendment protection that the Warren Court recognized in 1969 in the famous anti-war armbands case, Tinker v. Des Moines Independent Community School District. First Amendment law is always a matter of line-drawing and balancing of interests, and in Tinker, the court located a very sensible middle ground where students' rights were protected to a degree, but nowhere near as broadly as the rights of ordinary citizens walking down a public street. Under Tinker, the government can prohibit or punish speech if the speech threatens to provoke a substantial disruption of school activities. That sensible middle ground gave students the freedom to speak out about divisive political or social issuesor even to criticize school policies and programswithout fear of retaliation.