Do students’ free speech rights extend to internet and TV broadcasts?

Answer

Education Code § 48907 provides that “[p]upils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.Also prohibited shall be material that so incites pupils 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.”

The statute defines “official school publications” as “material produced by pupils in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee” and provides that:

“[t]here shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section.” (Education Code § 48907 is reproduced in its entirety below.)
In a 1995 case, the Court of Appeal treated a student film as an “official school publication” in deciding that a school could suppress the film because it contained profanity. Lopez v. Tulare Joint Union High School Dist. Bd. of Trustees, 34 Cal. App. 4th 1302 (1995). In a concurring opinion, however, one of the Court of Appeal judges said that audio-visual works were simply not encompassed by the statute. Id. at 1330-1332 (Ardaiz, P.J., conc.). (That is, Judge Ardaiz agreed with the outcome of the case but would have decided it on the grounds that a prior restraint of audio-visual works is not prohibited by Education Code § 48907.)

Arguably, Lopez could be cited as authority that the protections of § 48907 are not limited to expression in print media. In addition, in contrast to a film arts class (like the one in Lopez), there would seem to be a stronger argument that a student news report from a broadcasting class qualifies as “material produced by pupils in the journalism … classes,” regardless of the medium in which the report is transmitted. Certainly the rationale for protecting student news publications would seem to apply with equal force to non-print media.

Note also that not all of the protections of Education Code § 48907 are tied to “official school publications.” The statute more broadly provides that public school students “have the right to exercise freedom of speech and of the press.”

An effort to explicitly extend the protections of Education Code § 48907 to material produced in television broadcasting classes would likely amount to a legislative lobbying effort to amend Education Code § 48907. Materials that might support such an effort could include the extensive body of case law interpreting state and federal protection for student speech, as well as factual material documenting the evolution of student media and establishing the benefits of explicitly extending protection.

Education Code § 48907
(a) Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils 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.

(b) The governing board or body of each school district or charter school and each county board of education shall adopt rules and regulations in the form of a written publications code, which shall include reasonable provisions for the time, place, and manner of conducting such activities within its respective jurisdiction.

(c) Pupil editors of official school publications shall be responsible for assigning and editing the news, editorial, and feature content of their publications subject to the limitations of this section. However, it shall be the responsibility of a journalism adviser or advisers of pupil publications within each school to supervise the production of the pupil staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section.

(d) There shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of pupil expression under this section.

(e) “Official school publications” refers to material produced by pupils in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee.

(f) This section does not prohibit or prevent the governing board or body of a school district or charter school from adopting otherwise valid rules and regulations relating to oral communication by pupils upon the premises of each school.

(g) An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.