A California statute, Cal. Educ. Code § 48907, protects student newspapers at public schools — not just underground entirely student-run ones, but also the school-funded and journalism-class-run ones — from censorship by the administration. There are exceptions, but they are limited to speech that is "obscene, libelous, or slanderous," or "so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school." In this, California law provides much more protection than does the First Amendment, which generally doesn't interfere with public school administratos' decisions about what goes into school newspapers (see Hazelwood School District v. Kuhlmeier).
Andrew Smith, who was a high school student at Novato High School, wrote an "opinion editorial on illegal immigration" which said, among other things:
• “I’ll even bet that if I took a stroll through the Canal district in San Rafael that I would find a lot of people that would answer a question of mine with ‘que?’, meaning that they don’t speak English and don’t know what the heck I’m talking about.”The high school principal cleared the newspaper for publication (she apparently had the job of reviewing the newspaper "for spelling and grammar" and for violations of various policies). But "the next day the Principal was approached by four or five Latino parents, who were upset and wanted to talk to her about 'Immigration.'" After meeting with the parents, the Principal called the District Superintendent, who "immediately instructed [the principal] to retract any remaining copies of The Buzz. The Principal directed the journalism teacher to collect the remaining copies of the newspaper."
• “Seems to me that the only reason why they can’t speak English is because they are illegal.”
• “40% of all immigrants in America live in California . . . because Mexico is right across the border, comprende?”
• “[I]f they can’t legally work, they have to make money illegal way [sic]. This might include drug dealing, robbery, or even welfare. Others prefer to work with manual labor while being paid under the table tax free.”
• “If a person looks suspicious then just stop them and ask a few questions, and if they answer ‘que?’, detain them and see if they are legal.”
• “Others seem to think that there should be a huge wall along the Mexican/U.S. border.”
• “Criminals usually flee here in order to escape their punishment.”
Many other things followed, including (1) a school assembly at which critics of the column expressed their critical views, (2) a letter from the school condemning the column that was sent to all parents, (3) a Latino student's "threaten[ing] to 'kick [Andrew's ass]," (4) a fight with another Latino student in which Smith got a chipped tooth, and (5) a death threat against Smith from that second Latino student. For more details (and there are a lot), see the opinion linked to below.
Just yesterday, the California Court of Appeal handed down a decision holding that the retracting of the newspaper violated California law. The court of appeal rejected the trial court's conclusion that speech that is likely to cause a violent reaction is unprotected because it fits within the "so incites students" exception. Rather, the court of appeal held, "a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption. Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance."
The school did not violate the law, the court of appeal held, by expressing its disagreement with Smith's views, or by setting up a forum at which others could express their disagreement. "None of the cases cited by plaintiffs support the proposition that a school infringes on a student’s right to free speech merely by facilitating a peaceful avenue for self-expression by persons upset by the student’s speech. We decline to adopt a rule contrary to our nation’s traditions of open debate.... We conclude the District’s efforts to give the protestors a forum, to acknowledge the legitimacy of their reactions, and to distance itself from Smith’s viewpoint was not a censure or discipline of Smith."
But it did violate the law by ordering the retracting of remaining copies of the newspaper. Even if no copies were actually retracted, because all had been distributed, the order would still have impermissibly deterred Smith from trying to distribute future copies of the material.
The decision strikes me as a sound interpretation of the California statute. I think the Court was right to say that the First Amendment doesn't bar school administrators from controlling what is published in the school newspaper. It follows that the First Amendment also doesn't bar school administrators from trying to retract copies of the newspaper when they change their minds about whether something should have been published.
But the California Legislature has opted to provide student newspapers more protection that the First Amendment requires. And Smith's article was entitled to protection under that statute.
Congratulations to the Pacific Legal Foundation, which represented Smith, and to my friend and former student Stephanie Christensen, who filed a brief — together with the ACLU of Southern California, the Student Press Law Center, and some others — in support of Smith. [UPDATE: D'oh! Forgot to congratulate the Pacific Legal Foundation when I first posted this; now fixed.]