FSP Handout: The Independent Alternative

Free Student Press informational handout for student workshops and other promotional/outreach events
By Damon Krane
Circa 2003

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Student Press Rights & Independent Publications

Few students know they are legally permitted to pass out their own publications at public schools, free from the censorship of school officials. Yet this has been true since the 1969 Supreme Court ruling in Tinker v. Des Moines Independent Community School District.

More commonly called “underground newspapers” or “zines”, independent student publications are produced by students, off school grounds, and without the use of school resources. ONLY IN THE FOLLOWING SITUATIONS are school officials legally permitted to prevent students from distributing independent publications at public schools:

1.) When school officials (if later challenged by students in court) can present persuasive evidence that a publication’s distribution is likely to cause a serious disruption of normal school proceedings. For example, courts have allowed school officials to censor leaflets announcing a school walkout after a previous walkout had occurred. Similarly, a court upheld a school’s censorship of racially inflammatory literature which students intended to distribute at a time of high racial tensions at the school.

2.) When a publication invades the rights of others. That is, if later challenged in court, school officials must demonstrate that the publication contained instances of speech not protected by the First Amendment, such as libel, invasion of privacy and obscenity, which invade the rights of others.

Otherwise, school officials cannot censor independent student publications – even if those publications are critical of school officials or include “four letter words.” This rule is known as “The Tinker Standard,” named after the Supreme Court case from which it comes.

Advantages of Independent Student Publications

Unlike independent student publications, official school-sponsored newspapers may be legally edited/censored by school officials unless there is either a written policy or a long-standing tradition of students holding full editorial control (see Hazelwood School
District v, Kuhlmeier, 1988
). Often students must be enrolled in a journalism class in order to write for the newspaper. Also, official school newspapers are usually modeled after commercial newspapers in which decisions are typically made through an anti- democratic chain of command and writers lack creative freedom and control over their own work.

Independent student publications, on the other hand, ensure that editorial control will be held by students. They also allow students greater flexibility in determining who will write for their paper, how their paper will be governed, and what writers will write about. While some independent publications are produced by a small and exclusive clique of writers with similar opinions and interests, other publications adopt a public access format in which anyone can contribute writing on any topic. Thus independent student publications provide students with a range of options that is as rich as the creativity of the students involved.

Legal Liability & Basic Journalism Law

Just like professional journalists, independent student publishers can be sued for publishing unprotected speech, such as libel, invasion of privacy, obscenity, or unauthorized reproduction of copyright protected material. Thus it is very important for students thinking about creating their own publications to not only know their First Amendment press rights but also basic journalism law. To learn more, contact Free Student Press or visit the Student Press Law Center’s website at http://www.splc.org

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