Hazelwood upsets Tinker's delicate balance by relocating that line between authority and individual liberty, so that practically nothing of the First Amendment remains. In Hazelwood, the court decided that a high school principal did not violate the First Amendment by removing two pages of articles from a student newspaper because he felt the articles lacked balance and dealt with overly mature subject matter, like teenage pregnancy.
Even though the articles were not shown to be disruptive of school, the court divided all student speech into two tiers—a protected "Tinker" tier when you're speaking as a private individual, and a much less protected "Hazelwood" tier when you're using a medium provided by the school for educational purposes. In that Hazelwood tier, a school can prevent you from speaking for essentially any reasonable basis, and the school's reasonableness is going to be reviewed with the gentlest of scrutiny and the highest degree of judicial deference.
What has been the impact of Hazelwood on the student press? Has an entire generation grown up being suppressed—or timid—about expressing themselves?
It's impossible to quantify what has been lost because of Hazelwood, but we have pretty powerful anecdotal evidence that students are regularly being prevented from sharing information and opinions just because their schools are thin-skinned about being criticized, or because their schools believe no subject matter more mature than Sesame Street is appropriate for discussion.
The Student Press Law Center hotline consistently receives about 800 calls and emails every year about censorship, and we know that is a very tiny fraction of the actual censorship taking place. Students and teachers as a whole—and especially high-achieving college-bound students who live and die for that principal's letter of recommendation—are extremely reluctant to take on school authority.
We hear almost every day from someone who has an egregious case of censorship but is terrified to go public, let alone get a lawyer and go to court. When we do hear from a student or teacher who's been censored, the explanation they are given is almost invariably the same one, verbatim, like the principal is reading from a script: "You're making the school look bad."
That is not a case of using censorship authority to teach responsible journalism or to protect vulnerable young listeners against harmful material. That is brutal, bare-knuckle censorship for the purpose of advancing the principal's career ambitions, and deceiving the public that the school has no problems.
Denying the public accurate information about the shortcomings of schools is a wholly illegitimate use of government authority, and yet it is far and away the primary basis for censorship.
More discouraging than the loss of any particular story or even any particular newspaper is what Hazelwood stands for philosophically. When you read Tinker, it's striking how Justice [Abe] Fortas admits straight-out that freedom of expression is always (as he calls it) "hazardous," but then goes on to say "we must take this risk." Hazelwood comes back and says we must not take the risk.
You have warned about lower courts expanding Hazelwood's reach to college expression. How has this occurred, and do you think the Supreme Court will take up the issue?
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