Can the school ban the student newspaper from publishing stories about School Board candidates?

We talked about three forums: a public forum, a limited-public forum, and a nonpublic forum. Your newspaper is a forum. So is city hall. So is a school board meeting. Basically, it is a place that is considered public property and the state allows for the public to express itself at such a place (or through print, since we’re talking about your newspaper at your public, government-funded school here). The three different forums are listed from least restrictive to most restrictive when it comes to how much control the school can exercise over your publication. Public forum is the least restrictive, and nonpublic forum is the most restrictive. 

When we determine what kind of forum your newspaper is, we have to look at nine different factors to lead us in the right direction. These factors are: 1) whether students produced the paper as part of the school curriculum; 2) whether students receive grades or credit for the course; 3) whether there was a faculty member overseeing the publication; 4) whether the school is somehow straying away from its policy by publishing the paper; 5) how much control the administration or the advisor exercises; 6) any written policies from the Board of Education; 7) the school’s policy regarding the forum; 8) the school’s practice regarding the forum; and 9) the publication at issue and its activity. 

As we mentioned, the fact that your newspaper is student-run, financially independent, and the administration has not exercised any prior review of your stories before now are big wins for your paper. Your newspaper is likely a limited-public forum, which means that the school has less control over what you print. But, it still has some control in different ways, so it is not a totally public forum. (Remember this, we will come back to it.) 

Being a limited-public forum means the school and the Board cannot just impose whatever regulations they want when no such regulation previously existed. Let’s play this out. Long-time School Board member Jamal Thompson just stepped down from his position and a new candidate, Maya Gonzales, wants to run for that position. You reported on Mr. Thompson’s resignation. The Board implemented the new policy. Now, you cannot report on Ms. Gonzales’ candidacy. This situation and the policy violates freedom of the press, given how the school has previously worked with you and the newspaper. 

For more on limited-public forums, visit our Q&A, “How do I know if my school’s newspaper is a limited public forum?”

Okay, so my paper is a limited-public forum. Is the policy unconstitutional? 

To lay the groundwork on why this policy likely violates the First Amendment, we need to consider what the Supreme Court has said about school newspapers and student speech. In Tinker v. Des Moines Independent Community School District, the Court held that a restriction on student speech has to be more than to avoid uncomfortableness or unpleasantness. Speech can, however, be restricted if it disrupts school activities and learning. Because reporting on an election or on bonds and finances is not causing students to lose focus during class, the speech cannot be restricted. 

Further, political speech is super important to the Supreme Court. It is the most highly protected speech! This was the case in Tinker, where students wore black armbands to protest the Vietnam War. The Court held that the armbands were not disruptive to the school environment, but also that the students were commenting on a huge political topic. Here, not only is the school board election political, but it also directly affects the students. So not only should the political process be reported on, it is also relevant to the student body. The bonds and finances, while not political, also directly affect the students. What if the student auditorium is falling apart? What if the white boards in classrooms really need replacing? Diverting funding can harm students. So, yes, they need to know about financial topics too because it goes hand-in-hand with a good education. 

This is all good news. However, it is important to keep in mind that disruptive speech -- even speech that is printed in a newspaper -- will not be allowed in schools. This is not the case in this particular situation, but we want you to be aware of your limits as a student. 

Is there any other reason why this policy violates the First Amendment?

Yes. Definitely. This policy is what we call a content-based regulation. A content-based regulation violates the First Amendment because it censors speech that is about a certain message, rather than how that message is communicated.

Look at the policy closely. It does not allow reporting on School Board elections or bonds. This is specifically tailored to the Board and does not mention national politics or national candidates, for example. It seems as if the Board is attempting to protect itself from any type of criticism or public opinion by preventing the school paper from reporting on these issues that are specifically about the Board, its candidates, and its finances. That is a content-based regulation, and it violates the First Amendment. Tisk-tisk. So, all-in-all, we vote in favor of the student newspaper here.