645 F.3d 533
2d Cir.2011Background
- The Ithaca City School District operates Ithaca High School and publishes The Tattler, a student newspaper with a Faculty Advisor who reviews content and can approve or edit submissions.
- The paper is school-sponsored in practice, funded by the District, printed on District premises, and distributed on and off campus to the school community.
- In 2004–2005 the Faculty Advisor censored a stick-figure cartoon accompanying a health article, leading to a district-wide review of Guidelines for The Tattler Advisor and Editors.
- The Guidelines required pre-approval of story ideas, final approval before publication, and allowed the advisor to edit or remove content to prevent disruption or content contrary to pedagogical concerns.
- The editors sought to publish the same cartoon in February 2005 but were again denied; the district ultimately refused distribution of The March Issue on campus due to the cartoon.
- After a new Faculty Advisor was appointed in May 2005, The Tattler resumed publication without further attempts to publish the cartoon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether The Tattler is a limited public forum. | R.O. argues the paper is a traditional/public forum open to all viewpoints. | ICSD contends The Tattler is a limited/public forum with school oversight and content control. | The Tattler is a limited public forum. |
| Whether ICSD could require Faculty Advisor review and censor lewd cartoon under Fraser/Hazelwood. | R.O. contends the censorship violates First Amendment rights. | ICSD argues Fraser/Hazelwood permit school to censor lewd or pedagogically inappropriate content. | Censorship was lawful under Fraser and Hazelwood. |
| Whether Hazelwood applies to school-sponsored speech, justifying the censorship. | R.O. asserts the paper was student-run, not school-sponsored. | ICSD shows the paper bore school imprimatur and received significant District support. | Hazelwood applies; censorship upheld as school-sponsored speech. |
| Whether the on-campus distribution of The March Issue could be restricted under Tinker. | R.O. claims Tinker is not triggered; the cartoon did not disrupt classes. | ICSD argues the cartoon would materially and substantially disrupt school work and discipline. | Fraser/Hazelwood controls; Tinker not necessary to reach result. |
Key Cases Cited
- Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (Supreme Court, 1986) (schools may prohibit lewd, vulgar, or plainly offensive speech)
- Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (Supreme Court, 1988) (school-sponsored speech may be censored for legitimate pedagogical concerns)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (Supreme Court, 1969) (students retain free speech rights except where disruptions occur)
- Guiles ex rel. Guiles v. Marineau, 461 F.3d 320 (2d Cir., 2006) (lewd speech can be regulated under Fraser; school-sponsored context matters)
- Hotel Emps. & Rest. Emps. Union Local 100 v. N.Y.C. Dep't of Parks & Rec., 311 F.3d 534 (2d Cir., 2002) (limited public forum analysis governs restricted public speech in certain forums)
- Doninger v. Niehoff, 642 F.3d 334 (2d Cir., 2011) (cited in note about Fraser/Hazelwood limitations on different contexts)