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SOUTH CAROLINA
LAW REVIEW
ARTICLES
ADMINISTRATIVE CENSORSHIP OF THE INDEPENDENT
STUDENT PREss-DEMISE OF THE DouBLE STANDARD?
Leon Letwin
EFFICIENCY, EXPECTATION, AND JUSTICE: A
JURISPRUDENTIAL ANALYSIS OF THE CONCEPT OF
UNREASONABLY DANGEROUS PRODUCT DEFECT
F. Patrick Hubbard
NOTES
THE CLASS AcTION DEVICE IN TITLE vn CIVIL SuiTS
MARRIAGE COUNSELING THROUGH THE DIVORCE COURTSANOTHER
LOOK
VOLUME 28 MARCH 1977 NUMBER 5
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SOUTH CAROLINA LAW REVIEW
VoLUME 28 MARCH 1977 NUMBER 5
ADMINISTRATIVE CENSORSHIP OF THE
INDEPENDENT STUDENT PRESS –
DEMISE OF THE DOUBLE STANDARD?
LEON LETWIN*
INTRODUCTION
Suppose a municipal ordinance routinely required newspapers
to submit every issue they published to the mayor prior to
distribution. The mayor was to determine whether that issue contained
libel, obscenity, or illegal incitement-prime examples of
unprotected speech-each suitably defined to conform to existing
constitutional standards.• In the event it did, he was to ban distribution.
Once a ban was ordered, a right of appeal to the city
council would arise. That body would hear any appeal within
twenty-four hours of the time it was filed and decide the matter
within another twenty-four hours. From an adverse decision, the
publisher would be free to appeal to the courts. Until and unless
the mayor’s ban was set aside by court order, however, it would
remain in effect.
Constitutional?
A law school graduate confronted with such a question on a
bar exam would probably experience paroxysms of pleasure upon
encountering a question where the issues and results appeared so
clear.
First, the examinee might note, the scheme is irreparably
defective in conferring the power to censor upon an administra-
• Professor of Law, University of California School of Law, Los Angeles; Ph.B., University
of Chicago, 1948; LL.B., University of Wisconsin, 1952; LL.M., Harvard University,
1968.
1. Thus, the libel definition would conform to the requirements of New York Times
Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); the obscenity definition to those of Miller v.
California, 413 U.S. 15, 25-26 (1973); and the incitement definition to those of Brandenberg
v. Ohio, 395 U.S. 444, 447-49 (1969).
The notion of unprotected speech derives from such cases as Miller v. California, 413
U.S. at 23; Roth v. United States, 354 U.S. 476, 481 (1957); Chaplinsky v. New Hampshire,
315 U.S. 568, 571-72 (1942).
565
566 SoUTH CAROLINA LAw REVIEW [Vol. 28
tive official rather than upon a court, contrary to the requirements
of Freedman v. Maryland. 2 That case held that the power
to impose prior restraints, assuming this power exists at all, 3 must
reside with the courts; it must be exercised only after an adversary
hearing;• and the burden of initiating that hearing must rest
2. 380 U.S. 51, 58 (1965) (movie censorship); accord, Paris Adult Theatre I v. Slaton,
413 U.S. 49, 54-55 (1973) (where the Court approved the use of public nuisance actions to
enjoin the exhibition of obscene materials and justified that result in part on the basis
that no restraint was imposed “until after a full adversary proceeding and a final judicial
determination by the Georgia Supreme Court that the materials were constitutionally
unprotected. Thus the standards of (prior decisions] were met.” ld. at 55.); Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 69-71 (1963); Kingsley Books, Inc. v. Brown, 354 U.S.
436, 442-45 (1957); Letwin, Regulation of Underground Newspapers on Public School
Campuses in California, 22 U.C.L.A. L. REV. 141, 161-63 (1974).
Under Freedman, a valid censorship scheme might permit administrative restraints
to remain in effect pending judicial determination of an application for a temporary
restraining order brought by the censor. This is perhaps not a serious issue in connection
with movies, the medium involved in Freedman, since instant distribution of movies is,
in any event, impossible. It follows that, whether or not the movie censor is granted a
power of temporary administrative restraint to preserve the status quo until the court
hears the application for temporary restraints, it is the court, not the censor, that effectively
determines whether distribution is to be restrained.
With respect to newspapers, however, any delay in distribution, however short, is
tantamount to a total ban since newspapers do presuppose near-instant dissemination. If
an administrative censor effectively could bar distribution of a newspaper until a court
looked at the matter, even if only for a matter of hours, the administrative decision for
all practical purposes would be the final one. The issue of whether an administrative
censor should have a temporary power of restraint does not appear to have arisen in
connection with the press because the very idea of administrative review, restraints, or
licensing of the press is anathema in our society. It will be remembered, for example, that
in New York Times Co. v. United States, 403 U.S. 713 (1971), the United States did not
even claim any administrative power to restrain the press. It invoked the equitable power
of the court, based on its claim of compelling national interest, and lost.
3. In the case of newspapers, the holdings do not offer much support for a power of
prior restraint even at the hands of the judiciary. Nebraska Press Ass’n v. Stuart, 427 U.S.
539 (1976) (gag order directed against the press in order to insure fair criminal trial held
unconstitutional); New York Times Co. v. United States, 403 U.S. 713 (1971) (Pentagon
Papers case); Near v. Minnesota, 283 U.S. 697 (1930) (statute authorizing permanent
injunction against the future publication of “a malicious, scandalous and defamatory
newspaper” held unconstitutional). There is, to be sure, dictum supporting such a power,
e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. at 569-70; Near v. Minnesota, 283 U.S. at
716. Compare the concurring opinion in Nebraska Press Ass’n of Justice White at 570 with
that of Justice Powell at 571 and Justice Brennan Goined by Justices Stewart and Marshall)
at 572, each of which at least leans strongly toward an outright prohibition against
prior restraints of the sort involved in that case. Justice Brennan, in fact, argues for the
narrowest possible scope for prior restraint of the press, short of the absolute prohibition
of such restraints.
4. Note 2 supra. For cases establishing the higher hurdle necessary to authorize
seizure of presumptively protected material, see Roaden v. Kentucky, 413 U.S. 496 (1973);
A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Marcus v. Search Warrant, 367 U.S.
717 (1961).
i
-.
1977] ADMINISTRATIVE CENSORSHIP 567
upon the official seeking to impose such restraints and not upon
the publisher seeking to have the administrative restraints lifted.
Second, warming to the task, the bar examinee might note
that the requirement of prior submission of the newspaper, even
if only to permit the mayor to decide whether to seek judicial
restraints, would probably be intolerable. Such a requirement
would invite a form of Parkinson’s law that would expand the
··quantity of mate~ial censored, whether directly at the hands of
the censor or indirectly through self-censorship.5
Third, even if the power to censor were exercised solely by
the courts, there would be grave doubts as to whether certain
forms of unprotected speech, libel for example, could ever be
constitutionally censored.8 To say that speech is unprotected is
to acknowledge that some form of official displeasure will greet
its dissemination: damages, a fine, or even imprisonment. But
the prior restraint of speech is a heavyhanded and dangerous
remedy, and its employment requires extraordinary justification.7
Fourth, the bar examinee might stress the crucial role of a
free press and point out that efforts to restrain it would appropriately
trigger the most inhospitable judicial review, whatever the
substantive grounds offered in justification. 8
5. A system suffering the defect of coerced self-censorship was condemned in Bantam
Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There the practice of the Rhode Island morality
commission was to attempt to dissuade book dealers from selling books that the commission
had determined objectionable for minors. It did not formally suppress the books. The
Court however looked through form to substance and found that the booksellers’ selfcensorship
in reality was coerced and therefore unconstitutional. ld. at 67-72.
The author is aware of no cases involving a governmental attempt to require the
publisher of a commercial newspaper to submit its issues to advance administrative
inspection. Once it is recognized that administrative review has the potential for producing
a coerced form of self-censorship, then the unconstitutionality of a requirement for
routine submission for administrative review follows a fortiori from such cases as Nebraska
Press Ass’n v. Stuart, 427 U.S. 539 (1976); New York Times Co. v. United States, 403 U.S.
713 (1971); and Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
6. Public officers, whose character and conduct remain open to debate and
free discussion in the press, find their remedies for false accusations in actions
under libel laws providing for redress and punishment, and not in proceedings
to restrain the publication of newspapers and periodicals.
Near v. Minnesota, 283 U.S. 697, 718-19 (1931). See Nebraska Press Ass’n v. Stuart, 427
U.S. 539, 556-59 (1976); New York Times Co. v. United States, 403 U.S. 713 (1971).
7. See, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 588-95 (1976) (Brennan,
J., concurring); Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546, 559 (1975); New
York Times Co. v. United States, 403 U.S. 713 (1971); Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 70-71 (1963). See generally, T. EMERSON, THE SYSTEM OF FREEDoM OF
EXPRESSION (1970).
8. See note 3 supra.
568 SOUTH CAROLINA LAW REVIEW [Vol. 28
All in all, our examinee could wrap up the essay with the
black letter observation that prior censorship comes with a heavy,
if not conclusive, presumption against its constitutionality,9 one
that has scarcely been met in the hypothetical case.
Now pose the same question with the following changes. Substitute
“school,” “principal” and “student distributor of an unofficial
student newspaper” for “city,” “mayor” and “publisher.”
In short, suppose a school regulation purports to empower a principal
to review and censor all independent student newspapers
prior to their distribution on school grounds. Would such a procedure
be constitutional? Transposing the issue in this manner converts
it, at least for many observers, into an altogether different
and troublesome issue, one warranting markedly different answers
than would be deemed acceptable in the society at large.
Courts confronting this issue have approached it from at
least two different perspectives. Probably the majority of courts
begin their analysis with the view that restraints are permissible
in the school context which would be anathema in the society at
large. Such a view commends itself to these courts because of the
special circumstances, youth, and immaturity of the students
which exist within the school context.10 Other courts appear to
regard our society’s general hostility toward prior censorship as
an appropriate stance even in the school setting.11
9. “[P]rior restraint on publication [is] one of the most extraordinary remedies
known to our jurisprudence.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976).
See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59 (1975); New York
Times Co. v. United States, 403 U.S. 713, 714 (1971); Carroll v. President and Comm’rs
of Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
70 (1963); Wilson v. Superior Court, 13 Cal. 3d 652, 656-57, 532 P.2d 116, 119, 119 Cal.
Rptr. 468, 471 (1975).
10. Nitzberg v. Parks, 525 F.2d 378, 382 (4th Cir. 1975); Baughman v. Freienmuth,
478 F.2d 1345, 1348 (4th Cir. 1973); Sullivan v. Houston Ind. School Dist., 475 F.2d 1071,
1076 (5th Cir.), cert. denied, 414 U.S. 1032 (1973); Shanley v. Northeast Ind. School Dist.,
Bexar Cty., Tex., 462 F.2d 960, 967-69 (5th Cir. 1972); Quarterman v. Byrd, 453 F.2d 54,
57-59 (4th Cir.1971); Eisnerv. Stamford Bd. ofEduc., 440 F.2d 803,807-08 (2d Cir. 1971).
11. See Fujishima v. Board of Educ., 460 F.2d 1355 (7th Cir. 1972). In that case the
court was called upon to review a scheme of school administrative restraints. In the course
of its discussion, the court had occasion to assess the effect of Tinker v. Des Moines Ind.
Community School Dist., 393 U.S. 503 (1969), which had affirmed the rights of school
children to wear black armbands to school in protest against the war in Vietnam. Tinker
had upheld the students’ right to engage in such a demonstration based, in part, on the
reasoning that the school authorities had adduced no facts “which might reasonably have
led [them] … to forecast substantial disruption of or material interference with school
activities.” ld. at 514. In Fujishima, the court noted that some courts, e.g., Eisner v.
Stamford Bd. of Educ., 440 F.2d 803, 807-08 (2d Cir. 1971), had interpreted the quoted
language from Tinker as implying that, where such a forecast reasonably could be made,
I
..
1977] ADMINISTRATIVE CENSORSHIP 569
This is not to say that courts holding the majority view have
been indifferent to the evils of prepublication administrative restraints.
Rather, they have sought to deal with such evils by
means more moderate and equivocal than the flat prohibition of
such systems. They have, instead, expressed their concerns by
requiring the promulgation of various standards and procedures
designed to reduce the inherent risks of administrative censorship.
12
school authorities would be permitted to restrain student newspapers in appropriate cases.
In rejecting this interpretation of Tinker, the court said:
Tinker in no way suggests that students may be required to announce their
intentions of engaging in certain conduct beforehand so school authorities may
decide whether to prohibit the conduct. Such a concept of prior restraint is even
more offensive when applied to the long-protected area of publication.
The Tinker forecast rule is properly a formula for determining when the
requirements of school discipline justify punishment of students for exercise of
their First-Amendment rights. It is not a basis· for establishing a system of
censorship and licensing designed to prevent the exercise of First-Amendment
rights.
Fujishima v. Board of Educ., 460 F.2d at 1358.
See also Riseman v. School Comm. of Quincy, 439 F.2d 148 (1st Cir. 1971}, where the
court permitted time, place, and manner rules for leaflet distribution on school grounds
to remain in force, “provided that no advance approval shall be required of the content
of any such paper.” ld. at 149 n.2; Antonelli v. Hammond, 308 F. Supp. 1329, 1335-36
n.6 (D. Mass. 1970} (college case}; Rowe v. Campbell Union High School Dist., No. 51060
(N.D. Cal., Sept. 4, 1970 and Feb. 4, 1971) (three-judge court) (Rowe I [Sept. 4, 1970]
and Rowe II [Feb. 4, 1971]), which struck down two sections ofthe California law banning
partisan and propaganda publications from school campuses. The Rowe court also rejected
a system of prior restraints subsequently proposed by school authorities as “too
encompassing and potentially devastating to withstand constitutional scrutiny,” stating
that “[i]t may be that no system of prior restraint in the area of student publications
can be devised which imposes a restraint sufficiently short-lived and procedurally protected
to be constitutional. What may well be best, although not constitutionally compelled,
is a simple prohibition against the distribution of certain categories of material
[without any requirement of prior approval).” Rowe II, quoted in Bright v. Los Angeles
Unified School Dist., 18 Cal. 3d 450, 457-60, 556 P.2d 1090, 1094-96, 134 Cal. Rptr. 639,
643-45 (1976) (discussing the decisions in both Rowe I and Rowe II); Poxon v. Board of
Educ., 341 F. Supp. 256 (E.D. Cal. 1971) (the court barred a prior censorship scheme
because of the absence of a showing that “less offensive alternatives to a prior restraint
system are unavailable.” ld. at 257}.
In Bright v. Los Angeles Unified School Dist., the California Supreme Court struck
down a scheme of prior censorship on the basis that the California legislation recognizing
the speech rights of public school students was drafted so as to deny school authorities
the power to impose prior restraints. While the court expressly declined to place its
decision on constitutional grounds, it arrived at its statutory interpretation, in part, because
of skepticism that the legislature wished to authorize regulations “embodying constitutionally
suspect prior restraint systems.” 18 Cal. 3d at 464, 556 P.2d at 1099, 134 Cal.
Rptr. at 648.
12. See, e.g., Shanley v. Northeast Ind. School Dist., Bexar Cty. Tex., 462 F.2d 960,
570 SOUTH CAROLINA LAW REVIEW [Vol. 28
The Supreme Court has yet to. address this conflict as to
whether routine administrative restraints, which would be impermissible
elsewhere, are rendered constitutionally tolerable due to
the special conditions extant in the school context.13 However, of
the numerous circuit courts of appeal that have considered this
issue, whether their initial disposition was to support or. condemn
a double standard, “none … [has] actually upheld a system
of prior restraint.”14 Even the courts committed to the constitutionality
of school restraints have yet to find valid an actual censorship
scheme presented to them by school authorities. It has,
apparently, proved a good deal easier to endorse prior administrative
restraints in principle than to find an acceptable system.
970-78 (5th Cir. 1972); Eisner v. Stamford Bd. of Educ., 440 F.2d 803, 808-11 (2d Cir.
1971). The experience of the Fourth Circuit is discuBBed in detail at notes 20-62 and
accompanying text, infra.
13. The constitutionality of prior restraints in the school situation might have been
resolved by the Supreme Court in Board of School Comm’rs oflndianapolis v. Jacobs, 420
U.S. 128 (1975), but the Court dismissed the case as moot, having learned at oral argument
that the student publisher had graduated from high school following the grant of
certiorari.
14. Bright v. Los Angeles Unified School Dist., 18 Cal. 3d 450, 463, 556 P.2d 1090,
1098, 134 Cal. Rptr. 639, 647 (1976) (analyzing the existing authority in the federal circuit
courts of appeals). The court continued:
Some courts have focused upon the need for clear, precise standards of review
and have found the standards proposed unacceptable [e.g., Jacobs, Baughman,
and Shanley] while other courts have focused upon the need for procedural
safeguards, such as prompt review within a definite time limit, as well as provision
for appeal, either judicial or administrative [e.g., Eisner, Quarterman, and
Baughman].
Sullivan v. Houston Ind. School Dist., 475 F.2d 1071 (5th Cir.), cert. denied, 414 U.S.
1032 (1973), might be offered as a case which contradicts the generalization in the text,
because the court did uphold the punishment of a student for violation of a school prior
censorship scheme. However, the reason the punishment was upheld was that the student
had conducted himself in “flagrant disregard of established school regulations.” I d. at
1077. This, in the court’s view, constituted sufficient grounds for disciplining the students
irrespective of the constitutionality of the underlying censorship scheme. The court observed
with approval that other courts had “declined to reach the student’s constitutional
arguments … because he [the student] had failed to challenge the principal in an
orderly manner,” id. at 1076, and implied that it, the Sullivan court, was doing likewise.
Today we merely recognize the right of school authorities to punish students for
the flagrant disregard of established school regulations; we ask only that the
student seeking equitable relief from allegedly unconstitutional actions by
school officials come into court with clean hands.
I d. at 1077. Sullivan, then, did not validate the censorship scheme before it; it rather
refused to decide the iBSue, essentially on a theory of waiver because the student had failed
to come to court with clean hands.
There is dictum in the opinion tending to approve the constitutionality of the standards
employed. Id. at 1076. However, there is also dictum tending to disapprove the
procedures employed. ld. at 1076 n.4.
..
1977] ADMINISTRATIVE CENSORSHIP 571
Nowhere has the effort to fashion an acceptable compromise,
one which would tolerate administrative restraints but also protect
against excesses in its use, proved more determined and extensive
than in the federal courts of the Fourth Circuit. These
courts have sought, in a succession of three cases11 over a five year
period, to find a constitutional censorship scheme. One has yet
to be found. More important, the experience of the Court of Appeals
for the Fourth Circuit suggests that one cannot be found
and that an acceptable, “sanitized” censorship scheme based on
a diluted version of student first amendment rights is an unattainable
goal. An anticensorship principle appears to be lurking
within its decisions waiting to be born, notwithstanding that
court’s commitment to rhetoric affirming the validity of prior
restraints. The experience of the Fourth Circuit argues that the
failure to find a constitutional censorship scheme is not accidental,
the product of incompetence, or the result of lack of effort,
but rather, is inevitable, given the intrinsic risks of prior censorship.
It is time for the common law to perform its classic task of
extracting a new principle from the inchoate teachings of accumulated
decisions. That principle is that prior, routine administrative
restraints are an unsalvageable evil when applied against
independent student newspapers just as such restraints would be
if applied to the press at large.
Such a principle could rest on either of two bases: 1) on the
broad view that even public school students presumptively are
entitled to the same constitutional rights as others;18 or alternatively,
2) on the narrower view that whatever tolerance the constitution
may exhibit for treating school children differently, that
tolerance does not extend to the area of prior censorship because
of the special dangers associated with that technique.17 Either of
the above attitudes, a generic view about student constitutional
rights or a special view about the dangers of prior censorship,
would amply support a judicial rejection of prior censorship in the
school context. Under either view, the Fourth Circuit experience
suggests a constitutionally tolerable prior censorship scheme is
unlikely to be found .
15. Nitzberg v. Parks, 525 F.2d 378 (4th Cir. 1975); Baughman v. Freienmuth, 478
F.2d 1345 (4th Cir. 1973); Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971).
16. Letwin, After Goss v. Lopez: Student Status as Suspect Classification?, 29 STAN.
L. REv. 627 (1977).
17. See Haskell, Student Expression in the Public Schools: Tinker Distinguished, 59
GEo. L.J. 37, 50-58 (1970). Cf. Note, Prior Restraints in Public High Schools, 82 YALE L.J.
1325, 1332-34 (1973).
572 SOUTH CAROLINA LAW REVIEW [Vol. 28
THE FOURTH CIRCUIT EXPERIENCE
In the Fourth Circuit’s most recent confrontation with the
issue in Nitzberg v. Parks, 18 Justice Tom Clark, sitting by designation,
noted that this was the third occasion that circuit had had
to reject proposed school censorship regulations. 19
The first of the cases to which he referred, Quarterman v.
Byrd, 20 was decided in 1971. It involved a student who had distributed
an independent paper on school grounds which contained,
among other things, the words:
IF WE HAVE TO-WE’LL BURN THE BUILDINGS OF OUR
SCHOOLS DOWN TO SHOW THESE PIGS THAT WE
WANT AN EDUCATION THAT WON’T BRAINWASH US
INTO BEING RACIST.21
For this she was expelled. The expulsion was premised on a school
rule whose crowning glory was its stark simplicity: it prohibited
distribution of material “without the express permission of the
principal. “22 It provided neither the most rudimentary standards
nor procedures to control the principal’s discretion. On these
grounds, the Fourth Circuit declared the regulation unconstitutional.
This conclusion was not a difficult one. It required only
that the court reject carte blanche control by school authorities
over student expression. The court, that is, had only to assume
that students enjoyed some first amendment rights to conclude
that a totally discretionary power would leave school administrators
“adrift upon a boundless sea,”23 free to exercise censorial
· powers on an ad hoc, subjective, and therefore constitutionally
impermissible basis.
That students shared in the protections of the first amendment
was an undebatable proposition after the Supreme Court’s
landmark decision in Tinker v. Des Moines Independent School
District. 24 Students, it proclaimed, did not “shed their constitutional
rights to freedom of speech or expression at the schoolhouse
gate.”25 However, “the Court has repeatedly emphasized the need
18. 525 F.2d 378 (4th Cir. 1975).
19. Note 15 supra.
20. 453 F.2d 54 (4th Cir. 1971).
21. ld. at 56.
22. ld. at 55.
23. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 504 (1952).
24. 393 u.s. 503 (1969).
25. Id. at 506.
1977] ADMINISTRATIVE CENSORSHIP 573
for affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional safeguards,
to prescribe and control conduct in the schools.”26 Tinker
resolved the conflict between these rights in favor of the students’
right of speech unless it could be shown that such speech activity
“would materially and substantially disrupt the work and discipline
of the school. “27
Tinker did not, however, reach the issue of prior press restraints.
It did not address, much less specifically answer, the
question of whether the school context somehow warranted censorship
of published student material that would be unthinkable
elsewhere. Tinker’s strict holding was that students had the right
to express opposition to the war in Vietnam by wearing black
armbands on school grounds. That, in itself, represented a historic
advance in the constitutional rights of school children. 28
However, as might be expected in a case expressing such a fundamental
change in attitude toward young people and toward
school authority, the Court’s decision can be read broadly or narrowly.
Snippets of language can be culled from the opinion pushing
in either direction, and both those who support and those who
oppose prior restraints in the school context have been able to
draw some comfort from the Tinker decision.29
The Fourth Circuit in Quarterman was prepared to strike
down the particular censorship scheme it confronted on the basis.
of its reading of Tinker, but not merely because it employed prior
censorship. The rights of school children, it held, were not coextensive
with those of adults. The fact that the censorship scheme
was of a kind that would be unthinkable in the external society
was not its “basic vice.”30 Its vice, rather, was that it failed to
limit the discretion of the administrators with appropriate cri-
26. /d. at 507.
27. I d. at 513. The Court, in short, adopted something akin to a clear-and-present
danger test but without specifying how clear, present, or dangerous the danger would have
to be to warrant sanctions in the school context. Compare Brandenberg v. Ohio, 395 U.S.
444 (1969).
28. Tinker v. Des Moines Ind. School Dist., 393 U.S. 503 (1969), constitutes a significant
advance from prior decisions, notwithstanding the attempt by Justice Fortas to
characterize the holding as a virtually foreordained consequence of the Court’s prior
decisions. /d. at 507.
29. Notes 25 and 26 and accompanying text supra. For a discussion of the different
approaches courts have taken in applying the Tinker forecast rule to the issue of the
constitutionality of prior restraints, see notes 10 and 11 and accompanying text supra.
30. 453 F.2d at 57.
574 SOUTH CAROLINA LAW REVIEW [Vol. 28
teria and procedural safeguards. Censorship was permissible, but
only if criteria were established by which the authorities could
reasonably “forecast substantial disruption of, or material interference
with, school activities”31 and if expeditious review procedures
were provided to test their censorship decisions. It said
little else on the subject of standards or procedures.
A fair reading of Quarterman would have been that administrative
censorship, though unacceptable in the society at large,
was permissible in the school context so long as appropriately
limited by standards and procedures designed to mitigate the
danger of suppressing protected speech. 32 School authorities turning
to the task might have been excused for believing the goal was
within easy reach.
The Fourth Circuit’s second encounter with the issue came
in Baughman v. Freienmuth. 33 The drama tis personae had
changed: a different student, school system, and panel of judges
were involved.34 The issues, however, were much the same. Litigation
was triggered by a warning letter from the principal to students
who had distributed a pamphlet criticizing the prior restraint
regulations then in effect. The court did not assess the
content of the pamphlet since its concern was only with the validity
of the regulations on their face. As in Quarterman, the court’s
starting point was to reject any flat prohibition of school administrative
censorship. Public school students properly could be subjected
to rules which would be unthinkable in the society at
large.35
31. !d. at 58 (quoting Tinker v. Des Moines Ind. Community School Dist., 393 U.S.
503, 514 (1969)).
32. First Amendment rights of children are not “co-extensive with those of
adults.” … Specifically, school authorities may by appropriate regulation,
exercise prior restraint upon publications distributed on school premises during
school hours in those special circumstances where they can “reasonably ‘forecast
substantial disruption of or material interference with school activities’ ” on
account of the distribution of such printed material.
Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971). However, the court continued:
What is lacking in the present regulation, and what renders its attempt at
prior restraint invalid, is the absence both of any criteria to be followed by the
school authorities in determining whether to grant or deny permission, and of
any procedural safeguards in the form of “an expeditious review procedure.”
ld. at 59.
33. 478 F.2d 1345 (1973).
34. The judges in Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971), were Haynsworth,
C.J., Winter, and Russell; the judges in Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir.
1973), were Winter and Craven, Circuit Judges, and Bryan, District Judge.
35. 478 F.2d at 1348.
1977] ADMINISTRATIVE CENSORSHIP 575
As to the appropriate contours of a school censorship scheme,
the court’s answer was more interesting. The school authorities
here had attempted to promulgate specific standards. They
claimed no total, ad hoc power. In fact their standards tracked
vaguely the usual definitions of unprotected speech, including
speech which “contains libelous or obscene language, advocates
illegal actions or is grossly insulting to any group or individual
•••• ” 38 To be sure, this formula suffered from numerous defects
judged by existing constitutional standards applicable to the society
at large.37 However, it was not at all clear that non-school
standards provided the test (any more than they had on the issue
of school censorship).
The court, however, rejected the scheme, holding that prior
censorship was presumptively unconstitutional, even in the
school context. 38 The prohibitions against illegal advocacy and
against “grossly insulting” language failed for overbreadth in
going “beyond the . . . permissible standard . . . of forecasting
substantial disruption. “39
As to unprivileged libel or material that was obscene if read
by children, the court agreed, in theory, that such materials properly
were banned from the school grounds; but the court found
that the particular censorship procedure under consideration in
Baughman suffered from the problem of intolerable vagueness.
Proscriptions against “obscene or libelous material”40 might provide
a permissible measure for post-publication sanctions, 41 but
not for purposes of prior administrative restraints. “[W]e think
letting students write first and be judged later is far less inhibiting
than vice-versa.”42 In a noteworthy insight into the dangers
36. /d. at 1347.
37. In addition to the court’s objections to these standards set forth in the ensuing
text, the following may be noted: the libel and advocacy provisions are not suitably
narrowed to conform to constitutional requirements embodied in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), and Brandenberg v. Ohio, 395 U.S. 444 (1969), respectively.
As to the obscenity provision, there is no such thing as obscene language, only obscene
materials or works judged as a whole. See Miller v. California, 413 U.S. 15 (1973); Roth
v. United States, 354 U.S. 476 (1957). Absent the requisite prurient appeal, the most
vulgar words are incapable of being obscene. See Cohen v. California, 403 U.S. 15, 19-20
(1971).
38. 478 F.2d at 1348.
39. ld. at 1349. The court adopted the reasonable forecast test as the standard for
speech suppression based on Tinker v. Des Moines Ind. Community School Dist., 393 U.S.
503, 514 (1969).
40. 478 F.2d at 1349.
41. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 69-71 (1963).
42. 478 F.2d at 1350.
576 SOUTH CAROLINA LAW REVIEW [Vol. 28
of censorship in the school context, the court continued:
The use of terms of art such as “libelous” and “obscene” are not
sufficiently precise and understandable by high school students
and administrators untutored in the law to be acceptable criteria.
Indeed, such terms are troublesome to lawyers and judges
. . . . [A] Justice of the Supreme Court has confessed that
obscenity “may be indefinable.” … “Libelous” is another
legal term of art which is quite difficult to apply to a given set
of words ….
Thus, while school authorities may ban obscenity and unprivileged
libelous material there is an intolerable danger, in the
context of prior restraints, that under the guise of such vague
labels they may unconstitutionally choke off criticism, either of
themselves, or of school policies, which they find disrespectful,
tasteless, or offensive. That they may not do.43
In order for a prior restraint system to be valid, the court concluded,
it must consist of standards which contain “precise criteria
sufficiently spelling out what is forbidden so that a reasonably
intelligent student will know what he may write and what he
may not write. “44 Thus, after Quarterman and Baughman, a valid
prior restraint system must provide standards which enable students
to understand their rights and duties and enable school
officials to determine what constitutes substantial disruption of
or a material interference with school activities.
School authorities were left with the unenviable task of defining
difficult terms with precision, and with defining one of
these terms, obscenity, with a degree of precision that no one ever
has been able to achieve.45
Turning to the procedures in the rules before it, the court
found them wanting. Not only was there no “expeditious review
procedure,” but the rules failed to provide a “specified and reasonably
short period of time in which the principal must act.”48
The court did not specify what period of time would be permissible,
but observed that: “[W]hatever period is allowed, the regulation
may not lawfully be used to choke off spontaneous expres-
43. ld. at 1350-51.
44. Id. at 1351.
45. Id. at 1350.
46. ld. at 1348. A further defect, the court observed, was that the regulation failed to
specify what would happen if the principal neither expressly granted nor expressly denied
permission to distribute during the short time in which the principal had to act. Would
this mean a student could or could not distribute the paper?
,A
…
1977] ADMINISTRATIVE CENSORSHIP 577
sion in reaction to events of great public importance and impact.”
47
The case thus marked a notable advance over Quarterman
in the required level of protections. If the court still was committed
in principle to upholding school censorship, the gap between
first amendment protections in the society at large and on school
grounds had shrunk considerably. The substantive standards for
protected speech were quite similar in the school context to those
that pertained elsewhere, 48 and such standards had to be defined
with extraordinary precision if they were to serve as a basis for
prior restraints rather than mere after-the-fact punishment.
To this unfulfilled task the school authorities returned in
Nitzberg v. Parks, 49 the third chapter of this saga. That case
involved yet another plaintiff and another school system. The
panel included one judge who had sat on the Quarterman panel,
one judge who had sat on the Baughman panel, and retired Supreme
Court Justice Tom Clark, sitting by designation, who authored
the opinion. ·
Two independent student newspapers had been banned at a
Baltimore high school, one because of an article about cheerleaders
which apparently described them as sex objects.50 School
administrators saw this as obscene and demeaning to the school
and threatened the students with suspension if they put out another
issue. 51
Of particular significance was the fact that the regulations
here had conferred no blanket or unguided discretion upon school
authorities, as in Quarterman. Nor had they employed unelaborated
standards such as libel and obscenity as in Baughman. The
school authorities had attempted instead to promulgate adequate
guidelines for both the students and the school officials by fash-
47. !d. at 1348-49. Since the regulation appears to have required the principal to act
within three days, id. at 1347, the court’s language casts doubt on this time period as being
a brief enough interval for the initial administrative decision. See Rowe v. Campbell
Union High School Dist., No. 51060 (N.D. Cal., Sept. 4, 1970 and Feb. 4, 1971) (threejudge
court).
48. The only clear exception noted by the court was that a reduced standard for
obscenity was permissible in respect to children under Ginsberg v. New York, 390 U.S.
629 (1968). 478 F.2d at 1349.
49. 525 F.2d 378 (4th Cir. 1975).
50. ld. at 380 n.l.
51. How extraordinary a remedy this was will be seen when one notes that this did
not bar merely the offending issue but all future issues, whatever their content. See id.
Cf. Near v. Minnesota, 283 U.S. 697, 711-15 (1931) (commercial newspaper).
578 SouTH CAROLINA LAw REviEW [Vol. 28
ioning precise definitions. These attempts were made at the insistent
prompting of the trial court, which had required no less than
three rewrites of the rule before approving the version that ultimately
came before the court on appeal. 52 That version barred
“obscene or libelous”53 material and material that would
“reasonably lead the principal to forecast substantial disruption
of or material interference with school activity. “54 Each category
was defined with considerable particularity.55 Nonetheless, Justice
Clark found such definitions to be vague and overbroad and,
thus, found the regulation to be unconstitutional. The substantial
disruption standard was fatally flawed because it did not provide
specific criteria as to what would constitute such disruption.
Equally fatal was the absence of criteria by which an administrator
might reasonably forecast that the disruption, however it was
defined, would occur. 58 It was, in short, insufficient merely to
employ the substantial disruption test of Tinker u. Des Moines
Independent School District57 in the hope that its contours would
be fleshed out properly by administrative discretion.
The libel definition fared no better. That definition purported
to set forth the libel privilege of New York Times u.
Sullivan. 58 However, the court observed that it had failed to apply
the standards of that case “and its progeny. “59 Whether the court
meant that the rule did not adequately reflect the teaching of
New York Times or that it failed to incorporate the refinements
of “its progeny,” or both, was left unanswered.
52. 525 F.2d 378, 380-81 (4th Cir. 1975).
53. ld. at 381.
54. Id.
55. ld. at 381 n.3.
56. A crucial flaw exists in this directive since it gives no guidance whatsoever
as to what amounts to a “substantial disruption of or material interference
with” school activities; and, equally fatal, it fails to detail the criteria by
which an administrator might reasonably predict the occurrence of such a disruption.
/d. at 383. The court’s concern, of course, was with limiting the suppression of speech to
circumstances where the risk was both serious and imminent, an approach paralleling
closely the clear-and-present danger test.
57. 393 U.S. 503, 513 (1969). The Nitzberg court observed that, though the
“substantial disruption” and “material interference” language came directly from Tinker,
393 U.S. at 514, it did not follow that such phrases were sufficiently precise when they
were employed in a regulation without further amplification. 525 F.2d at 383.
58. 376 u.s. 254, 279-80 (1964).
59. 525 F.2d at 383, by which it meant, presumably, Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974). Time, Inc. v. Firestone, 424 U.S. 448 (1976), was decided after the
Nitzberg decision.
!
1977] ADMINISTRATIVE CENSORSHIP 579
At best, from the point of view of the school authorities, the
attempted definition of obscenity may have been sufficient,
though even this seems doubtful. 80 In any event, the court reversed
and remanded the case. 81
Consequently, the Fourth Circuit, after its third encounter
with a school censorship scheme, found itself still committed, in
theory, to the proposition that school authorities possess extraordinary
censorship powers. In the application of this principle,
however, the court has been unable to endorse any of the schemes
which the school authorities had bee.n able to fashion over the
course of three lawsuits and five years. Nor did the court offer any
detailed guidelines to help the school authorities out of the morass.
Instead, it contented itself with noting the defects before it
without suggesting alternatives. This was of course consistent
with a classic common law notion of the proper role of a court. It
was also a form of cruel or unusual punishment if the court did
have a solution in mind, given the tortured course of this litigation.
THE IMPACT AND EFFECT OF THE FouRTH CmcuiT VIEW
One conclusion which might be drawn from this experience
is that, with renewed effort, school authorities will yet be able to
fashion a censorship scheme that can survive close scrutiny. A
more realistic view, however, is that any form of school censorship
will create intolerable and incurable dangers of “unconstitutionally
chok[ing] off criticism of [school authorities] or of
school policies which they found disrespectful, tactless or
offensive.”82 Despite what the Fourth Circuit has said, what it
has done tends to demonstrate its awareness that these dangers
infect any scheme which permits school authorities to review
60. The definition seems to have incorporated essentially the terms of the Maryland
obscenity statute, Mo. CRIM. LAw CoDE ANN. § 417 (1957), which in tum appears to be
patterned after the requirements of Miller v. California, 413 U.S. 15 (1973). Whether the
court thought this definition adequate is unclear. The only reference to it is at 525 F.2d
at 383 n.4, where the court cryptically states that it could find no clear purpose for
including Maryland’s obscenity statute in the regulation.
61. The regulations were also found defective in failing to meet the procedural requirements
of Baughman v. Freienmuth, 478 F.2d 1345, 1351 (4th Cir. 1973). In particular,
the regulations did not specify how quickly the principal was required to render a decision
on a proposed publication nor did the regulation provide an adequate and prompt review
procedure within the school hierarchy. Nitzberg v. Parks, 525 F.2d 378, 383-84 (4th Cir.
1975).
62. Baughman v. Freienmuth, 478 F.2d 1345, 1351 (4th Cir. 1973).
580 SOUTH CAROLINA LAW REVIEW !.Vol. 28
speech in advance of distribution, to ban that of which they disapprove,
and to enforce that ban until and unless student litigation
secures eventual relief from the courts. Neither administrative
procedures nor substantive standards, the safeguards repeatedly
invoked by the court, can be fashioned to give reasonable
assurance that protected speech will not fall victim to “arbitrary
action and unfair treatment”83 by school administrators. The reasons
why this is true are not difficult to state.
The task of formulating acceptable standards is a formidable
one. First, the substantive grounds for restraint apparently must
be defined so as to reach substantially only that speech which is
unprotected under existing constitutional standards. This excludes
the use of such categories as speech which is embarrassing
to school authorities, objectionable to parents or community figures,
disrespectful, controversial,- vulgar, and the like.84
Second, the standards must be defined with sufficient precision
so that both school authorities and students are given clear
notice of what is prohibited. This excludes the bare and unilluminating
use of such categories as obscenity or incitement, requiring,
rather, detailed elaboration and perhaps even particularized
illustrations of what those terms embrace.
Third, though the point has yet to be considered in any of
63. Nitzberg v. Parks, 525 F.2d 378, 385 (4th Cir. 1975).
64. The Fourth Circuit cases support this proposition in various ways. First, they
repeatedly invoke the test provided by Tinker v. Des Moines Ind. School Dist., 393 U.S.
503 (1969), which protects student expression except in those “special circumstances”
where school authorities can “reasonably ‘forecast substantial disruption of or material
interference with school activities.”‘ Quarterman v. Byrd, 453 F.2d 53, 58 (4th Cir. 1971).
This rationale expressed in Quarterman was cited approvingly in Nitzberg v. Parks, 525
F.2d 378 (4th Cir. 1975), as expressing the “controlling constitutional principles.” ld. at
382. This test would preclude routine interference with the categories of speech described
in the text and would permit interference only in those special circumstances where such
speech was likely to disrupt school activities. Furthermore, any such finding would require
specific factual proof; interference could not be based simply on an administrator’s
“undifferentiated fear or apprehension.” Tinker v. Des Moines Ind. School Dist., 393 U.S.
at 508.
Secondly, the court in Nitzberg, upon reviewing the school’s efforts to proscribe
disruption, libel or obscenity, did not accord the scope of such labels much greater breadth
than would be allowed in the non-school society. See notes 49-55 and accompanying text
supra. Therefore, these categories do not appear to be permissible vehicles for freewheeling
speech restrictions in the school setting anymore than elsewhere.
The biggest area of uncertainty in the relative rights of students as compared to others
results from uncertainty in the breadth of the substantial disruption test of Tinker compared
to the clear-and-present danger test. See generally Letwin, Regulation of Underground
Newspapers on Public School Campuses in California, 22 U.C.L.A. L. REv. 141,
173-90, 197-205 (1974).
1977) ADMINISTRATIVE CENSORSHIP 581
the Fourth Circuit opinions, not all unprotected speech is properly
subject to prior restraints, as opposed to mere post hoc
remedies. 65
However, even if the standards drawn were sufficiently narrow
and precise, the danger that speech suppression will spill over
beyond its theoretical confines remains great.
First, the very requirement of routine, prior submission to
school authorities for content approval has a chilling potential
that belies the theoretical standards. Any institutionalized review
system tends to foster informal but, nevertheless, coerced selfcensorship.
66 This is true irrespective of the intentions of the censors.
There is good reason to be wary of those intentions as well.
If prior restraints are permitted, it is simple practicality for courts
to recognize what school officials themselves will recognize: that
school censorship is immune from review except in the unusual
circumstance that a student is willing and able to challenge it in
court. School authorities inevitably then will be tempted to restrict
speech with less self-restraint than if judicial review were a
routine and inescapable precondition to a ban on distribution. 67
There is, additionally, reason for concern about the disinterest
and impartiality of the school censors. It is not mere student
paranoia to fear that the authorities will utilize the inevitable
play in such terms as “obscenity” and “disruption” to suppress
speech that criticizes them. The desire to do so is a natural tendency
of all governmental officials, and, for that reason, our society
displays little inclination to permit them the opportunity. There
is no reason to suppose school officials are immune from this
tendency.
If one places trust not simply in carefully drafted standards,
but in appropriate procedures for reviewing administrative censorship
decisions, no procedures are fast or efficient enough to
keep those decisions from interfering with students’ constitutional
rights.
65. Libel is one such form of unprotected speech which is subject to punishment after
publication but not subject to prior restraint. See note 6 and accompanying text supra.
See also Letwin, note 64 supra, at 169-70, 184-90 (1974).
66. See note 5 and accompanying text supra.
67. To be sure, there is a damage remedy presently available against school authorities
who knowingly deprive students of their rights, Wood v. Strickland, 420 U.S. 308,322,
rehearing denied, 421 U.S. 921 (1975). However, this remedy is inadequate because,
among other reasons, it may take years to obtain, during which time the restraints imposed
may remain in effect.
582 SOUTH CAROLINA LAW REVIEW [Vol. 28
Even if no more than a day or two each were allowed for the
principal to make the initial censorship decision and for review
by higher school authorities, this would often be intolerably
long. 88 If the material is attuned to events of the moment, delay
is tantamount to suppression. Even if the student emerges at the
end of the review period with a right to distribute material, it may
no longer be timely. 89
From another viewpoint, a four day period for both the hearing
and the adminstrative review to take place is far too short,
for the student has a due process right to present evidence and
arguments.70 Assume, for example, that a newspaper’s criticism
of a principal is objected to as libelous. Due process undoubtedly
requires that the student be given a fair opportunity to show that
the statements were true, or that the speaker had not spoken with
“actual malice. “71 Similar factual issues are, of course, generated
if the student is accused of disruption or dissemination of obscene
materials. To deny such opportunity is to deny due process. To
accord it is often to insure that the speech will be moot by the
time the deliberative process is concluded. To make the student
choose whether he wants a fair hearing or a speedy decision is to
make him elect between his fourteenth amendment and his first
amendment rights. The point to be stressed is that this is not an
68. Nitzberg v. Parks, 525 F.2d 378,383-84 (4th Cir. 1975). See note 46 and accompanying
text supra.
69. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560-61 (1976); A. BICKEL, THE
MoRALITY OF CONSENT 61 (1975); note 46 and accompanying text supra.
70. One would expect that [the mandatory submission of student material
for the principal’s review] would include the right of the student to appear and
present his case …. Since [distribution following a principal’s] …
“negative decision, shall be sufficient grounds for confiscation of such material
and suspension of the student by the principal,” elementary due process requires
confrontation and a hearing of some type before a step as drastic as
suspension is taken.
Nitzberg v. Parks, 525 F.2d 378, 384 (4th Cir. 1975). The court cited in support of this
proposition the landmark case of Goss v. Lopez, 419 U.S. 565 (1975), which extended due
process protection to public school students. Here due process is an imperative not only
because a suspension is potentially involved, but also because administrative action may
deny students their first amendment rights. See generally Monaghan, First Amendment
“Due Process,” 83 HARv. L. REv. 518, 524-26 (1970).
71. The definition of actual malice, supplied by New York Times Co. v. Sullivan, 376
U.S. 254 (1964), is applicable if one assumes that the principal is properly classified a
public official or figure. The assumption appears well founded. See Baughman v. Freienmuth,
478 F.2d 1345, 1351 (1973); Reaves v. Foster, 200 So.2d 453, 459 (Miss. 1967);
Letwin, Regulation of Underground Newspapers on Public School Campuses in California,
22 U.C.L.A. L. REv. 141, 185-86 (1974).
1977] ADMINISTRATIVE CENSORSHIP 583
accidental or avoidable consequence. It is an inherent dilemma
in any scheme of administrative licensing of the press. 72
Further, realistically speaking, the pertinent time period is
not the two to four days it might take to exhaust administrative
remedies but the months or years it would take to obtain judicial
review, and even that review would come only if the would-be
distributor had the will and the capacity to litigate tenaciously ·
over a school-imposed ban. Here, again, the inertia of a system
which permits school-imposed censorship weighs heavily on the
side of restricting speech irrespective of the ultimate merits.
A possible response is that the nature of the school setting
requires that the students’ rights yield to the need for school
discipline and that this justifies school censorship of the sort
which would not be countenanced in other environments. It
might then be said that a system of prior restraints is required to
deal with the danger of illegal incitement by students which
might endanger other students and imperil the school’s academic
program. However, this danger is easily exaggerated. In the large
number of public school newspaper cases thus far litigated, few;
if any, have arisen for this reason. The case has yet to be made
that this anticipated danger warrants the draconic meas-qre of
systematic prior restraints.
The risk that school authorities will be tempted to use any
censorship powers they possess to suppress pointed or disrespectful
criticism is a near certainty. 73 Experience suggests that the
72. In the non-school world that dilemma is resolved in favor of free speech rather
than in favor of suppression: administrative restraints are prohibited and no material is
banned until a judicial determination following a contested hearing. See, e.g., People ex
rel Busch v. Projection Room Theatre, 17 Cal. 3d 42, 57-58, 550 P .2d 600, 608-09, 130 Cal.
Rptr. 328, 336-38 (1976); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-71 (1963); note
2 supra.
73. See, e.g., Bright v. Los Angeles Unified School Dist., 18 Cal. 3d 450, 556 P.2d
1090, 134 Cal. Rptr. 639 (1976) (newspaper banned at Los Angeles High School because
it called the principal of another Los Angeles high school a liar in respect to certain
statements he had made); Scoville v. Board ofEduc., 425 F.2d 10 (7th Cir. en bane), cert.
denied, 400 U.S. 826 (1970) (student expelled for distributing an underground newspaper
pungently criticizing school authorities, describing an official school pamphlet as
“ridiculous, .. describing school attendant procedures as “idiotic and asinine … ); Dickey v.
Alabama, 273 F. Supp. 613 (N. D. Ala. 1967) (publication of editorial prohibited by college
authorities under rule prohibiting editorials in school papers critical of the governor or of
the state legislature). This tradition of preventing student criticism of school officials has
an extensive historical background, see, e.g., Wooster v. Sunderland, 27 Cal. App. 51, 148
P. 959 (1st Dist. 1915) (student expelled from school for delivering an address to student
body in which he denounced the Board of Education for maintaining the school buildings
as firetraps and belittled it for doing nothing to improve the safety of the school).
584 SOUTH CAROLINA LAW REVIEW [Vol. 28
power to prevent illegal speech is far more likely to be used
against protected speech by school authorities operating under
unrefined and expansive notions of disruption, obscenity, or libel.
In balancing these risks, the prudent course is to reject ex parte
restraints by school authorities, that is, to reject the very premise
of the Fourth Circuit decisions to date: that a double standard
in respect to the press rights of students is feasible and necessary
in the school context. 74
Such a resolution would scarcely leave school authorities
helpless to deal with legally prohibited speech. They have the
power to subject their students to school disciplinary proceedings.
If necessary, they can draw upon the police powers of the state
to deal with unlawful disruption. Finally, in extraordinary circumstances,
the school even can seek injunctive relief from the
courts against illegal student activity. 75 These devices provide
adequate remedies in the school context, even as they do in society
at large.
The Fourth Circuit thus far has energetically striven to find
a way to protect students’ right of speech within a framework that
upholds the administrative licensing of speech. Its experience
In only the last of the cases cited, decided in 1915, did the court ultimately approve
the school administration’s repression of the student expression.
For a further catalogue of cases demonstrating the various rationales, having nothing
to do with disruption, which motivate school administrators to restrain newspaper distribution,
see J. NELSON, CAPTIVE VoicES, HIGH ScHOOL JouRNALISM IN AMERICA (1974).
C{. Norton v. Discipline Comm. of E. Tenn. State Univ., 419 F.2d 195 (6th Cir. 1969)
(college authorities were held to have acted properly in suspending students for distributing
material “calculated to cause a disturbance and disruption of school activities and to
bring about ridicule and contempt for the school authorities”). One may question, as
Judge Celebrezze in dissent did, whether this decision comports with current constitutional
standards as to the scope of protected speech. ld. at 204-13.
74. The rejection of such a premise rests on the distinction between the power to
punish an individual student for violative publications and the power to prevent the
exercise of such first amendment rights. Fujishima v. Board of Educ., 460 F .2d 1355, 1358
(7th Cir. 1972), and excerpts from this case in note 11 supra.
75. To say that the school officials can seek injunctive relief is not to concede that
they are entitled to it. Assuming the approach suggested in the text were adopted, the
court would have to determine whether this was one of those rare occasions when press
censorship was permissible. See note 3 supra.
In Bright v. Los Angeles Unified School Dist., 18 Cal. 3d 450, 556 P.2d 1090, 134 Cal.
Rptr. 636 (1976), the court struck down the school’s scheme of prior restraint, finding prior
restraints impermissible under state law. In the event prohibitable material were distributed,
the court said, “school authorities would be authorized to stop distribution of the
offensive material and discipline those responsible.” ld. at 464, 556 P.2d at 1099, 134 Cal.
Rptr. at 648. Presumably, however, except in case of a genuine emergency, a search
warrant adequate to support seizure of presumptively protected material would have to
be obtained first. Roaden v. Kentucky, 413 U.S. 496, 502-04 (1973).
1977) ADMINISTRATIVE CENSORSHIP 585
suggests that students cannot, at an acceptable cost, be denied
these protections, which are taken for granted in society at large,
against administrative restraints. The appropriate accomodation
of first amendment rights and school disciplinary needs is toreject
that constitutionally abhorrent form of governmental power,
affirm the vitality of the first amendment in the educational system,
and rely on traditionally favored remedies to deal with any
serious abuses that may arise.
..,.-
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single syllable that promises you
full measure experience, loyalty
and dignity. And it’s your sound
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Leon Letwin (1929-2015) 