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Freedom of Speech in a Private Law School – Part 2

published April 16, 2012

By CEO and Founder - BCG Attorney Search left
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First Amendment and School Sponsored Platforms – The Hazelwood Test

In part 1 of this article we briefly mentioned the Tinker case which provides the most common benchmark for judging whether an on-campus activity by a student was within First Amendment rights or not. In this article we would discuss your freedom of speech on school-sponsored or school hosted publications. The standard of test here is laid down in the Hazelwood test where the Supreme Court distinguished the application of the Tinker test when it comes to school-sponsored publications.

In Hazelwood Sch. Dist. V. Kuhlmeir, 484 U.S. 260 (1988), the application of the First Amendment to content published in a school-sponsored newspaper was considered. The Supreme Court held that the freedom on student's activities allowed in Tinker was not applicable in the instant case because the censorship “reasonably related to legitimate pedagogical concerns.” Thus the Hazelwood test was established.

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The Hazelwood test lays down the principles that should be applied to the application of First Amendment rights of students where the alleged censorship is related to "school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school."

However, the Hazelwood limitations do not apply to school-sponsored publications that are opened as “public forums for student expression.”

The critical test to determine whether a school hosted blog or forum comes under the purview of Hazelwood or not is usually considered according to the instant case. However, it is safe to say that a school-sponsored platform where students and not school administrators have the authority to moderate content would be a ‘public forum.'

If the terms of use or policy of the platform specifies that the school has a right to edit or censor the content, then the ultimate authority rests with school administrators, though delegated to students, and it would not be a ‘public forum.' Consequently, Hazelwood's restrictions would apply.

However, it is important to note that the Hazelwood test is usually found applicable to high school publications and not to publications in a public college or university.

The First Amendment Rights of public college students are materially different from those studying in private colleges. In Kincaid v. Gibson, 236 F. 3d 342 (6th Cir. 2001) and earlier in Student Gov't Ass'n v. Univ. of Mass., 868 F.2d 473 (1st Cir. 1989), the line of thought presented in a 1973 case, Joyner v. Whiting decided in the 4th Circuit was followed. In Joyner, the Fourth Circuit Court of Appeals held, “It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.”

Some states in U.S. have extended the rights afforded by Joyner to private institutions by suitable legislation.

This series on Freedom of Speech pertaining to students would continue. The next part would consider electronic media like personal blogs run by students and censorship by the institutions where they study.

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