The Docket, UCLA Law School, February 26, 1976
Letwin taking speech case to state High Court
By Steve Owens
Leon Letwin, professor of evidence, constitutional law and civil procedure, is handling a lawsuit now pending before the California Supreme Court that will have an impact on the civil rights enjoyed by high school students throughout the state.
In Bright v. Los Angeles Unified School District Letwin is representing one of a group of University High School students who produce and distribute a newspaper called The Red Tide. The plaintiff, Susannah Bright, seeks to have the local school authorities enjoined from interfering with her distribution and sale of the newspaper on the high school campus.
At issue is the constitutionality of the district’s system of censorship of student publications and the district’s flat ban on the sale of independent student newspapers.
Court action was started after the authorities at Uni High had blocked the distribution of The Red Tide because of an article accusing the principal of another high school of lying. Letwin said that, “Among the other articles in the paper were a discussion of the right of pregnant minors to secure abortions without parental consent; a description as a myth of the generally heroic portrayal of Lincoln found in textbooks; and a discussion of ‘The Hearsts and the SLA.”
“The paper can be described as dissident, radical, unconventional in political viewpoint but, by the defendants’ own admission, not as obscene or inciting, or as frivolous.”
After an initial defeat in Superior Court, Letwin and his client won a partial victory in the California Court of Appeals in September 1975. The appellate court held that the school district could not constitutionally use its policy of prior restraint to prevent the publication and distribution of a student newspaper containing libelous material.
However, the Court avoided ruling on whether the student had the right to sell (as opposed to merely distribute) The Red Tide on campus, by resorting to a technical deficiency in the initial complaint. It said the plaintiff failed to allege that she was aggrieved by the ban on sale.
“The Court raised the issue on its own motion, since it was assumed by all parties that Susan intended to sell the paper,” explained Letwin. He stated that though the point should have been pleaded specifically, the Court’s action was “highly unusual” nonetheless.
Letwin expects to argue the case before the state Supreme Court in either April or June, as the Court would be sitting in Los Angeles during those months.
Working on the case together with Letwin is Professor Richard Wasserstrom of the UCLA School of Law. Both men have donated their services. The ACLU of Southern California, through its chief attorney, Fred Okrand, is also active on Bright’s behalf. In addition, the ACLU is paying the court costs and other expenses of the suit.
The outcome of the case is expected to be felt in all l, 100 school districts in California. Education Code §10611 orders every school board “to adopt rules and regulations relating to the exercise of free expression by students upon the premises of each . . . .” The Court’s decision will indicate whether schools may or may not prohibit the sale of material under § 10611.
Letwin argues that though the sale of newspapers is conduct rather than pure speech, it is conduct “intertwined with speech,” and indispensable to its exercise. “No one would suggest that the First Amendment protects the right of a newspaper like the Los Angeles Times only to distribute but not to sell its papers. Sale is indispensable to a free press.” Even the pamphlets of Tom Paine weren’t distributed free of charge, he noted.
While steadfastly refusing The Red Tide permission to sell, the University High School officials, according to their own testimony, have permitted the sale of bakery goods, sun visors, bagels, pickles, candy, and falafels. “What does this indicate about the educators’ values?” Letwin wondered aloud. “Students can buy and sell frivolities, but not a paper that deals in ideas and raises issues.
“The real anomaly is that the educators feel they must suppress in order to educate; they feel obligated to do these things in the name of democratic education. But it’s misguided to see speech values as fundamentally at war with educational values. The capacity and willingness of the young to think independently, to question and to challenge, to criticize constituted authorities and question established ways, are not superfluous luxuries. They ought to be the central objectives of educational policy,” Letwin said.