Can the school newspaper get in trouble for publishing an article on sex education and using relvent photos of birth control?

There are a few ways the school administration may be able to censor a story in its school newspaper. The first and most important way is if the newspaper was a nonpublic forum. There are three different types of forums a publication can be: a nonpublic forum, a limited public forum, and a public forum. The order of these goes from most restrictive to least restrictive. When a publication is a nonpublic forum, the school has the ultimate control over the newspaper. In a nonpublic forum, the school exercises prior review, the publication receives funding from the school, and the publication is completely sponsored by and affiliated with the school. There are many factors that go into determining what type of publication a school newspaper is, and to figure out what kind of forum your school newspaper is, see our Q&A on “How do I know if my school’s newspaper is a limited public forum?”

Now, considering your school only now is implementing a prior review policy, your school newspaper was probably a limited public forum at the time this article was published. This means that your school authorities had limited authority to censor the content of the newspaper. The school has not exercized prior review before, so you and the other student journalists should not get in trouble for publishing this story about sex education even though it conflicts with your school policies. See, here’s the thing about limited public forums—there’s only a limited connection between the publication and the school, and the school does not completely sponsor the newspaper. So the newspaper can publish things that don’t necessarily align with the school’s beliefs, especially if the school has never reviewed or censored a story in the past.

Despite the type of forum a school newspaper is, the school will still have the authority to limit speech that causes or may cause a substantial disruption to the school environment. This is because a school’s mission is to educate its students, and if there is anything that interferes with that learning environment, the school can exercise its discretion in limiting the disruption. For example, if a school newspaper that is a limited public forum publishes a story urging students not to come to school on Friday because it is a “senior skip day,” the school has the power to censor that story. Encouraging people to skip school would clearly disrupt the learning environment, so the school can shut down that story.

Plus, if the story advocates for illegal drugs or anything harmful to the general student welfare, the school could also censor the story. For example, if your story advocated for students to use Adderall to help them study for exams, the school could censor that story because urging students to abuse prescription drugs is not only detrimental to their health but also detrimental to the student welfare of the school. 

Here, your sex ed story is actually the opposite of speech that is detrimental to the student welfare—it is highly protected political speech that is educating people about safe sex. Political speech is any speech regarding a social, moral, or political issue. The Supreme Court deemed political speech the most protected type of speech. Therefore, this story should be highly protected for its educational, social, and political value.

Finally, the school may try to argue one last thing to try to censor the story: that it was lewd (a fancier way of saying inappropriate). Schools typically have the authority to censor any lewd speech that occurs within the school or has a close connection to the school. For example, if some girls took pictures of themselves sucking on penis-shaped lollipops and posing in sexual positions in the school bathroom and the school newspaper wanted to publish those pictures, the school could censor them for lewdness. Your story is much different. Showing condoms is not lewd, and it’s not advocating for anything sexual. It’s actually teaching students to be safe while engaging in sexual activity. Considering all of this, the school’s argument that the pictures were lewd would also fail. 

This is good news for you! Despite many arguments that school authorities may try to raise, they probably are not going to win on any of them. So go ahead, publish your story about safe sex with pictures of condoms. They probably can’t stop you.

Well, if our school newspaper has always been a limited public forum. How can the school just change its policy on us?

Now they’re just being sneaky. The school realized that they can’t stop you from publishing your safe sex article, so now they want to be more involved in the school newspaper. In most states, this is perfectly fine. Schools have the authority to write and implement new school policies all the time, so if it wants to exercise prior review or change other policies regarding control over the school newspaper, it probably can do so. If your school does change its policy on you, the policy wouldn’t be retroactive, meaning that school authorities could not go back and censor previous articles before this policy was implemented. It could only exercise control over articles that were published after the policy was implemented, so don’t worry about the school censoring your sex education story.

However, in the past few years, there has been a movement among many states to give more power to student journalists to encourage free speech and protect the student press. This movement is called the “New Voices” movement, and fourteen states have already passed New Voices laws. The passage of these laws significantly decreases the censorship powers that schools have over their student newspapers, despite school policies. In “New Voice” states, schools could not pass overly restrictive policies that allow schools to exercise great editorial control over the publication. 

On top of the fourteen states that have passed these laws, many New Voices bills are being considered in Colorado, Hawaii, Idaho, Kentucky, Minnesota, Missouri, Nebraska, New Jersey, New York, Pennsylvania, and Virginia. To learn more about this movement, see the Student Press Law Center’s take on these laws.

If your state is a New Voice state, then this school policy is invalid. Thus, despite your school’s best efforts to try to exercise editorial control over your publication, it simply cannot do so according to the law. However, if you are not lucky enough to live in one of these states, a school can probably create whatever kind of policy it wants over school publications, including implementing a policy that creates prior review. Hopefully you live in a New Voice state so you can publish as many sex education stories as you want, but if not, think twice before publishing a story that may violate a school policy because the school could probably shut it down through prior review.