Monthly Archives: March 1977

1977.03.00: Administrative Censorship of the Independent Student Press – Demise of the Double Standard? (South Carolina Law Review)

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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

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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.

..,.-

We give you our word. It’s a sol id,

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full measure experience, loyalty

and dignity. And it’s your sound

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and trust execution. Take our

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