Just because the 2nd Circuit Federal Appeals Court recently handed down a decision in R.O. v. Ithaca City School District laden with shaky interpretations and references, it is not time to surrender or alter our beliefs.
“Drawings of stick figures in sexual positions clearly qualify as ‘lewd,’ that is, ‘inciting to sensual desire or imagination,’” Second Circuit Judge Jose A. Cabranes wrote in the decision about why the school could censor an independent student publication and the school’s student paper, which had attempted unsuccessfully to run the drawing in the first place.
The decision also said even though school’s paper, the Tattler, was a “limited public forum,” the cartoon could still be censored.
The Student Press Law Center reported in a May 18 article, “The Second Circuit, however, distinguished between a ‘limited’ public forum and a ‘designated’ public forum, holding that a ‘limited’ forum newspaper remains subject to Hazelwood.”
If not reversed, that decision could damage student media forum status, but other courts could also ignore it as an aberration.
The First Amendment Center’s President, Ken Paulson, said May 20 in a commentary (which also provides access to the student artwork), “the cartoon was censored because the school found it embarrassing, not because it would unleash the sexual imaginations of ninth graders. They can pretty much do that on their own.”
Paulson said images on the Internet and sexting expose students to far worse.
“In this environment,”Paulson wrote, “it seems a stretch to call anatomically vague stick figures ‘sexually explicit.’”
SPLC executive director Frank LoMonte said the decision was a misapplication of the law. “The court just fundamentally misunderstood what it means to be a limited public forum,” LoMonte said. “A forum where the government gets to pick and choose which cartoons it likes is meaningless.”
“All that this ruling really changes,” LoMonte said, “is that the term ‘limited public forum’ by itself apparently is going to be meaningless. And, as in Hazelwood itself, the court looked to the actual practice as well as what was on paper.”
If the adviser starts acting like the assignment editor, he said, it’s going to be held against the students, and a court is not going to recognize the paper as a true forum paper.
“You, the adviser, are ‘the state,’” LoMonte said, “and the more actively the state is involved in editorial decisions, the less likely the paper will be a forum regardless of what appears in the masthead and even in the policy manual.”
Simply calling student media “limited public forums” may no longer be enough, LoMonte said. In an email to the JEA listserv, LoMonte said any decent publications policy will have to go further than the “forum” buzzword and will have to enumerate with precision the exclusive grounds on which censorship is permissible. LoMonte has added additional information in a new post May 22.
For those who have “limited public forums” policies, or others concerned about maintaining their forum status, here are a couple suggestions:
• Look at your policy. If it just states you are a limited public forum, add or clarify language that explains what that means and how students make that the framework of professional standards. Look at model and state law language.
• Add or clarify language that shows how students will avoid unprotected speech and report accurately, thoroughly and in context.
• Add or clarify language that students make all final decisions of content and why that is important.
Although he warned JEA members the Ithaca decision could be the “worst legal setback” since Hazelwood, LoMonte also said it is such an outlandish overreach “it may become in New York, Vermont and Connecticut what Hosty v. Carter became for the college media in Illinois — the impetus for legislators to fix the law.”