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Very Nice ACLU Brief in a Student Free Speech Case,

co-drafted by my former student Stephanie Christensen. The case is Smith v. Novato Unified School District, and here's a summary from the Student Press Law Center, which cosigned the brief:

The ACLU of Southern California, the Student Press Law Center and the law firm Caldwell Leslie Newcombe & Pettit submitted a friend of the court brief with the California Court of Appeal today in support of the free speech rights of student journalists.

"California law does not permit school districts to censor student speech simply to avoid controversy or because the speech is unpopular or even offensive," said ACLU/SC staff attorney Christine P. Sun. "Instead of stifling debate over controversial topics, school officials should support and encourage students to consider ideas that are different from their own."

Andrew D. Smith, a former student at Novato High School and current U.S. Marine, authored two opinion pieces for his school's student newspaper, The Buzz. The articles were originally approved by the school principal, but after publication school officials confiscated copies of The Buzz and said the editorials violated school policy after other students and parents complained about the content of the articles. Smith sued the school district and the Superior Court issued a ruling against him, which, if not reversed, will almost certainly chill future speech by sending the message that school officials can prevent or punish students for publishing certain views, Sun said.

Mark Goodman, executive director of the Student Press Law Center said this case is important because even though Smith's articles were provocative -- one expressed unfavorable opinions about Latino immigrants and a second piece repeated numerous unflattering racial stereotypes in support of an argument against affirmative action -- California law does not favor one brand of political speech over another.

"Andrew Smith's speech -- while offensive to many in his community -- was nonetheless speech on matters of public concern and thus entitled to the highest level of protection," Goodman said. "Andrew's experience of censorship is not an isolated one -- the Student Press Law Center receives requests for assistance from hundreds of high schools students each year who are being censored or punished by school officials for expressing unpopular or 'politically incorrect' ideas."

The amicus brief cites both the California Constitution and California statutory law that expressly provide that high school students the same rights to free speech and freedom of the press as they have outside school.

The brief states that: "Consistent with these rights, school administrators have a duty to protect the right of students to express unpopular views (even when school administrators may disagree with those views) to avoid chilling not only that student's speech, but the speech of any student who might express a controversial view."

The case, Smith v. Novato Unified School District, is also significant because the ACLU of Southern California is seeking a similar ruling in Bakersfield. The ACLU brought that case on behalf of students and student journalists at East Bakersfield High School who were prohibited by the principal from running articles about gay, lesbian, bisexual and transgender students on campus. While the articles were eventually published last year, the students are seeking a court order to ensure similar censorship is not repeated in the future.

R. Nebblesworth:
I wonder how the resident ACLU-haters will rationalize this one.
8.28.2006 8:13pm
Steveo987 (mail):
R. Nebblesworth:
"Ignore, and continue as planned!"
8.28.2006 8:20pm
Crunchy Frog:
What the heck, a stopped clock is right twice a day.

Lather, rinse, repeat.
8.28.2006 8:37pm
Justin (mail):
Crunchy, except the only time opponents of the ACLU find the clock stopped is when it is brought to their attention. If Eugene Volokh didn't alert you to this, you'd never even knew it existed. Similiarly, the countless times the ACLU does support the free expression of non-liberal speech (I won't stoop to your level by calling it conservative speech, not that you'd ever return the favor) rarely, if ever, gets to your attention, so that (esp. if you frequent biased news sources that actively try to put the aclu in a bad light) only rarely do you hear the aclu except in a way you disagree with, being able to dismiss it as an simply an outlier.

NB - I assume you actually didn't mean "a stopped clock is right twice a day" in its regular usage, but were being sloppy in calling it an outlier. If what you are saying is that "a stopped clock is right twice a day," what you'd be saying is that the ACLU is acting consistently to its principles (which I'd agree with) but that its principles are generally wrong (which I'd disagree with).

I'd note that this explanation, if I applied a "textualist" interpretation of your post, would let me infer that you were a racist who generally opposes free exercise (and supports establishment), except when the speaker is racist.

So maybe there are some lessons if you were interested in learning - about the problems with letting words speak for themselves, about the unfortunate side effects of sloppy writing, and about how you can unintentionally allow your worldview be decided by your pre-existing biases, rather than by any search for the truth.

But you'd have to have an open mind, or you'll just find some reason to ignore my advice and continue on your merry way.
8.28.2006 9:11pm
Justin (mail):
One last note on Crunchy Frog's statement - I think the natural result of what we're seeing here is that the ACLU is acting fairly on principles, but they still end up opposing conservative speakers and governments more than liberal ones.

I think the only logical solution is not that the ACLU is biased, but that (assuming you value such things, as not everyone does, see Iran) if you value free speech and the free exercise of religion, and oppose the establishment of religion, you'll note that the threat to such positions comes far more often from the right than the left.
8.28.2006 9:14pm
elChato (mail):
This is indeed a good example of a well-written California appellate brief.

Slightly off-topic: It would be great if California would make electronic copies of briefs available online, along with the appellate opinions. This might spur other state courts to follow suit.

The US Seventh Circuit has the most complete online presence of any appellate court I know-- you can get opinions, briefs, the joint appendix, and recorded versions of the oral argument, plus they have an RSS feed for opinions and arguments. If you are studying a particular case I can promise you that having these additional resources can be an enormous help.
8.28.2006 9:42pm
SFO to PHX (mail):
If the students want "free speech" they should pay for it -- If they pay for the paper and distribution then they should be able to print whatever they like (normal rules on libel, etc. apply). But, this is a tax funded paper. Rather than complain about the school "chilling" speech, this should be taught as a valuable lesson to avoid being on the public's dole.
8.28.2006 9:44pm
Archon (mail):
Reading a brief such as this is simply scary. There was a time, between RAV and Black, that most scholars thought the first pronge of the fighting words doctrine was dead. Now, post Black, you can start to see a re-emergence of Chaplinsky in lower court opinions because it got a postive cite in Black.

Now some lower courts are using Black as an excuse to find politically incorrect positions fall within the fighting words exception.

I wish the Supreme Court would have taken the chance, when deciding Black, to overrule Chaplinsky and announce a more modern bright line rule.
8.28.2006 10:37pm
Malvolio:
I am not terribly fond of the ACLU and while there are certainly many pieces of evidence out there that the ACLU is not the spawn of Satan, this case is not one of them.

It has always been (or seemed to be) the ACLU's world-view that Amerikkka consists of long-suffering gays and minorities on the one hand and vociferous hate-groups and bigots (who nonetheless deserve protection, supposedly on principle really, to keep them in the game, driving up contributions from terrified liberals).

Okay, that's an exaggeration, but let me just say I'll be impressed when the ACLU defends Wal*Mart or Phillip Morris.

If the students want "free speech" they should pay for it
Sorry, Sky Harbor, if one side of a controversy is getting taxpayer funding, all sides have to get it. But yes, better for the state to stay out of it altogether.
8.28.2006 10:38pm
Archon (mail):
A note on my earlier post...

Maybe instead of using pages and pages of prose to explain the rationale behind a decision, The Supreme Court should try something like this:

Burning a cross with the intent to intimidate another is not speech protected by the first amendment. Period. Do NOT attempt to read any further into this decision. Do NOT use this decision to justify supressing any other type of speech. ONLY cite this decision if dealing with cross burning with the intent to intimidate. Any decision from a lower court, citing this decision in any manner when that decision has nothing to do with cross burning with the intent to intimidate, will result in automatic reversal.

Maybe this is too straightforward for nine legal egg heads.
8.28.2006 11:04pm
Ken Arromdee:
The Supreme Court is, supposedly, making its decisions by reasoning from the Constitution, not by pulling them out of thin air. So they *can't* say "don't ever try to apply this to another type of case". Their reasoning either does or doesn't apply to the other case.

Of course, the real problem happens when the Supreme Court *does* pull decisions out of thin air, but pretends as a convenient fiction that those decisions are based on the Constitution. But if someone takes that fiction as fact, acts as if the SC really did find something weird in the Constitution, and uses it as a precedent for something the SC might rather not want done--that's the SC's own damn fault. They're not supposed to make up stuff and claim it's in the Constitution, even to stop cross burnings.
8.29.2006 1:51am
fishbane (mail):
This will be rambling, so please excuse me upfront, and skip if that's not your thing.

To Eugene's great credit, he's able to praise and criticize the ALCU as he feels appropriate, based on his principles. Many seem to only be able to attack them because of the very existence of a group that disagrees with them - it becomes partisan politics, and partisan politics that have a particular way of broking no dissent (which is odd, given the "big tent" aspects of Republicanist thought, which allows a lot of internal dissagreement on, for instance, economic issues, but put this aspect aside for now.)

That Cato and the Discovery Institute can agree on certain issues with AEI and Heretidge is interesting to me, in that they can more or less behave as a unit on lobbying. Why not the ACLU. at least at times? DI and Cato are going to fight, but that still works out sometimes. I know the ACLU's 2cd waffling is a downer for many people (me, too, in fact), but I find it strange that they are so shunned.
8.29.2006 3:04am
sksmith (mail):
Aside from whether the ACLU remains the spawn of satan, is the brief actually correct? I had always thought that students (high school and below-not college) specifically DON'T have the same free speech protections that adults do-that school administrations have the added obligation of setting limits in order to educate that would not apply to adults. In California, could a student newspaper run a pornographic column, if the student editor chose to, for instance?

Steve
8.29.2006 10:15am
Houston Lawyer:
Next I'm going to sue the Houston Chronicle for not printing all my lengthy letters to the editor. Every paper has an editor or an owner who can choose to print or not print as he chooses. The fact that the government owns the publication in question shouldn't matter.
8.29.2006 11:29am
S. Sommerdorf (mail):
As you can see below, the California Education Code gives students the full protection of the First Amendment whether or not their speech occurs on campus. Thus, in California student speech is protected to a higher degree than required by Supreme Court cases dealing with on campus expression.

California Education Code 48950. (a) School districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.
8.29.2006 11:40am
SFO to PHX (mail):
1) The original post didn't mention any activity by the school related to "subjecting any high school pupil to disciplinary sanctions." Instead, the school confiscated copies of the newspaper after publication.

2) Sorry, Malvolio, it just isn't the case that "if one side of a controversy is getting taxpayer funding, all sides have to get it." NEA doesn't fund every artist. The government doesn't fund every political campaign (although some people would like it to). Further, the govenment funds plenty of one-sided political movements (anti-smoking, anti-drugs comes to mind). Heck, the government even subsides the marketing of industry groups.

3) There is always the balance of community standards with free expression. That balance shifts more towards the former when it involves tax-funded speech or children in schools. As Steve mentioned above, there is probably a defendable ban on pornographic (or adult content) material in the school paper too.
8.29.2006 6:02pm
Jared K.:
Malvolio, don't be inane. Obviously a donation-supported interest group is going to focus its efforts on defending those who lack the resources to defend themselves (whether they be gay or bigots or gay bigots or whatever). Regardless of politics, it would be a grossly inefficient use of donated money for such an organization to represent a Fortune 100 company. Big corporations can and do employ plenty of lawyers to protect themselves, and any contribution from the ACLU would be a drop in the bucket.
8.29.2006 6:32pm
Crunchy Frog:
Wow, Justin, where do I begin? Feel free to infer whatever you wish, but please refrain from ad hominem "racist" accusations, please?

Yes, I do believe that the ACLU (or several of its local chapters, at least) do operate somewhat consistently with their principles, and yes, I disagree with them a majority of the time. I applaud the action to protect umpopular speech, even that which its members would find repugnant. God forbid that speech have any reference to God, however.
8.29.2006 7:42pm