Hazelwood School District v. Kuhlmeier - Oral Argument

Argument of Robert P. Baine, Jr.

Chief Justice Rehnquist: We will hear arguments first this afternoon in No. 86-836, Hazelwood School District v. Cathy Kuhlmeier.

Mr. Baine, you may proceed whenever you are ready.

Mr. Baine: Thank you, Mr. Chief Justice, and may it please the Court:

This case come before the Court to resolve the issue of whether a school sponsored high school newspaper produced and published by a journalism class as a part of the school adopted curriculum under a teacher's supervision and subject to a principal's review is a public forum for the purpose of the First Amendment.

During the 1982-1983 school year, the Hazelwood East curriculum included two journalism classes, Journalism I and Journalism II.

Enrollment in Journalism II required the successful completion of--

Justice White: No Court ever decided that question you just posed, did they?

Mr. Baine: --I believe the Eighth Circuit, Your Honor.

Justice White: I thought that they said that it was not part of the curriculum.

Mr. Baine: They said that it was not part of the curriculum.

Justice White: But your question was whether a journalism as part of a curriculum is a public forum.

Mr. Baine: The trial court found that it was found that it was a part of the curriculum and was not a public forum.

Justice White: I know.

Mr. Baine: The Eighth Circuit then found that because of the numerous ideas expounded in the paper that it was not a part of the curriculum.

And I think that is really the issue that is here before the Court is whether or not the school having adopted a curriculum matter in the teaching of journalism through a textbook and through a classroom setting where the teacher according to the written curriculum attended both the original teaching involving the textbook course which was Journalism I and then in Journalism II continued with that same class--

Justice White: Do you think that just the issue of whether something is part of the curriculum or not is really a question for us?

Mr. Baine: --I think, Your Honor, whether or not the matter is a public forum is a matter for you, because this then--

Justice White: But I do not think that the Eighth Circuit would have held that yes, this is a part of the curriculum but it is still a public forum.

Mr. Baine: --The Eighth Circuit found--

Justice White: That was not a part of the curriculum.

Mr. Baine: --There was a finding of fact on the part of the trial court, and the Eighth Circuit never really did find that the findings of the trial court were clearly erroneous.

What they did find was because of the diverse opinions that were allowed to be present in there that the newspaper was in fact a public forum.

I do not think that they really reversed any of the findings of fact.

Justice Brennan: Well, Mr. Baine, was is it a regulation or something at the beginning of the school year that said that the publication shall be consistent with the First Amendment or something?

Mr. Baine: No, Mr. Justice, it was not that.

On two occasions, there were printed in the paper statements not authorized by the board or anybody who developed in the evidence.

But there did appear on two occasions that the First Amendment rights of the students would not be abridged.

That there were articles appearing, one was in 1980 and one was in 1982.

Justice Brennan: Excuse me, that appeared where?

Mr. Baine: That appeared in the paper itself.

Justice Brennan: In the paper itself?

Mr. Baine: In the paper itself.

But there was no developed evidence before the trial court how that all came about, and no one was able to find out how that ever got in the paper, but it certainly was not adopted by the board of education.

Justice White: But it obviously was by the teacher, the journalism class teacher, or it would not have been in the paper, I take it.

Mr. Baine: Right.

And again I would respectfully suggest that the journalism course is taught by the teacher in accordance with the adopted curriculum.

And the curriculum stated specifically how it would be adopted, and how the story ideas, and how the course would be developed.

Justice Scalia: Did it not appear in the editorial section of the paper?

Mr. Baine: It did.

Justice Scalia: Did not the editorial section of the paper say that the editorials did not represent necessarily the views of the school or the school administration?

Mr. Baine: It did that.

There was a provision in the Hazelwood policies that matters could be submitted to the school newspaper by persons outside such as letters to the editor, which could be and as a matter of fact it was developed.

In this case, there was in the newspaper in question a letter to the editor which was edited by the teacher of the class and put in there.

But it was something that was infrequently used.

Basically speaking, the Hazelwood East Spectrum was a newspaper that was produced as a result of students successfully completing a journalism course called Journalism I.

Chief Justice Rehnquist: Mr. Baine, let me ask you one more question.

Mr. Baine: Sure.

Chief Justice Rehnquist: Do you think that the Eighth Circuit saw this case as kind of an estoppel case where the school board had in effect told the students you are going to have complete First Amendment rights, or do you think that they saw it as a case that it did not make any difference what the school board said, that once you some students over loose on a newspaper that they have got those First Amendment rights whether the school board wants to have it or not?

Mr. Baine: The concern that I saw in the Eighth Circuit's opinion which was not supported by the findings of the trial court in this case was the many and diverse articles that appeared in the paper that the Eighth Circuit seemed to find in the record were student initiated or student sponsored.

And therefore, having opened the Hazelwood East Spectrum to articles of diverse opinion, the board of education and the principal would then have been estopped--

Chief Justice Rehnquist: Lost all of its power.

Mr. Baine: --Lost control over the paper.

And we submit that the record that we developed in the trial court and that the trial court found in its 21 findings of fact did not support that, nor did the Eighth Circuit when they found that find anything clearly erroneous in the findings of fact of the trial court.

So what we have here, again if I may respectfully continue, is a newspaper which is generated in the second semester by students who have been taught certain values in journalism such as responsible journalism, journalistic ethics, copying, writing, story development, ideas and that sort of thing, and then these students are brought into Journalism II to practice that art under the supervision of that teacher.

And in the practice of that art the teacher, as the evidence in the trial court was adduced, the teacher then gave these students story lines to be developed.

The students developed those story lines, and those story lines were then submitted back and forth to the teacher for as many as four or five revisions.

Evidence in the trial court indicated by the Respondent's own witnesses that a story, for example, in this newspaper on diabetes was not printed at all.

So the student had gone through the process of developing a story on diabetes, but it just was not printed.

Students were given grades whether they printed a story in this publication or not.

So they were graded not only on whether there was ultimate publication or whether their article or their effort was not published.

Some students did not participate particularly in the writing of articles, but their major job was in the layout, editing, and other things.

In fact, the three Plaintiffs in this case are not the authors of the story in question, but rather were active in the production of the newspaper as layout editor, and one of the Plaintiffs I think assisted in the design of a graph that was used in the story.

In the May 13th issue of the Spectrum, it was proposed to be a six page newspaper.

One additional fact which I think is important in this case is that the teacher who had taught these students in the fall and was teaching these students in the spring semester on April 29th was granted permission by the board of education to leave education and go get a job, had a better offer in private industry.

The board of education through the administration appointed an administrative level journalism teacher as a substitute teacher.

The trial court found that this substitute teacher was a highly qualified teacher, and as a matter of fact was the administrative person to supervise journalism.

And the reason that they appointed such a qualified person to do that is that it was at the end of the year, and two responsibilities remained of the Journalism II class.

One was the production of the final two newspapers, one of which was the May 13th edition, and the other one was the class legacy paper which came out later, both of which according to the testimony were about 90 percent complete when teacher number one left and teacher number two came in.

And the other was the production of the yearbook, a highly complex project on the part of the students, which needed to be completed.

So the administration sent in a very qualified teacher.

When that teacher received the articles from the students and reviewed them, he attempted to contact, as the evidence in trial court showed, he attempted to contact the principal about these stories as he had an objection to them.

He was unable to do that, so he went and put them into proof and sent the proof to the principal, and asked the principal his opinion about it.

And the principal said that those stories because they involved the subject matter that was in them, the story of the three young pregnant ladies who told how they got pregnant, whether they used birth control, the reaction of the father of the child, the reaction of their parents to the pregnancy, and other items, and the article on divorce where a freshman gave a story of why or the recounting of why she believed her parents got divorced and her name was involved, the principal said to Mr. Emerson, who was then the substitute teacher, what can be done about this.

Now you recall that I stated that it was a six page newspaper.

The principal thought at this time and the trial court found, and no one has set aside this fact, the trial court found that the principal believed that Mr. Emerson, the substitute teacher, was at the printers and he needed a yes or no answer at this point.

If he said yes, it would be printed; if he said no, something had to be done.

The principal said what could be done, and Mr. Emerson said we can delete page four and five, and make page six into page four, and we have got a four page paper.

The principal said go ahead and do that, and that is what happened.

So the articles that the principal had an objection to were the articles involving the recounting of the tales of the pregnancy of three school girls and the recounting of the tale of why the parents of one of the freshman, in fact several parents of students, but particularly one named freshman's parents got a divorce, were deleted and the paper was then printed and distributed to the class.

In analyzing the First Amendment issues, the District Court distinguished in this case between privately initiated speech which has strict constitutional rights, and student speech in the context of a school sponsored publication or activity that involved curricula matters.

Justice Brennan: Mr. Baine, we have not analyzed First Amendment issues in the school context in public forum terms, have we, have we not usually tested the First Amendment issue by the Tinker test?

Mr. Baine: I think, Mr. Justice, that in looking at Fraser, which decided on the same day, that Fraser had a curricula aspect to it.

Justice Brennan: But the opinion in Fraser did not turn, did it, on a public forum analysis?

Mr. Baine: But it did not turn on the Tinker analysis either.

It turned on the fact of whether or not in the role of the school in inculcating values in students that the school officials had some interest loco parentis in the outcome.

And in this case particularly, you see the principal's interest in protecting.

Justice Brennan: But did not Fraser analyze the situation as whether or not the speech had been disruptive?

Mr. Baine: I think that it analyzed it a little bit differently than that.

In fact, there was no indication in Fraser other than a few laughs that the speech was disruptive.

And I think that the Court decided it on really the content and the people involved in the audience.

And here is what the trial court did in our case.

It said while that there was nothing in there was really that outstandingly bad, but they reckoned that the principal could understand the school audience as well as anyone else in that some of the information in those articles might make it appear that because it was produced in a classroom exercise that the school in effect had condoned the activities of these children, of these young ladies who had gotten pregnant, for example.

And utmost in the principal's mind--

Justice Scalia: Even if the school would not appear as condoning it, the school was certainly providing the paper and the ink and the money to write the story, right, which was not the case in Tinker?

Mr. Baine: --Well, that is true.

Justice Scalia: It was their own arm bands in Tinker, they brought them from home, the school did not provide them?

Mr. Baine: Right.

This was not written and carried about in the school.

I think that in looking at the story and the way that it was presented in the trial court and not found to be erroneous by the Court of Appeals was the fact that the lead in these three pregnancy stories, the names have been changed to grant these young ladies anonymity.

And the trial court found that the principal by reading the article felt that he knew who the children were, who the young ladies were.

And if that was the case, he felt that others would know who they were.

And if the purpose espoused on the article was to grant them anonymity, the article failed.

Now again we have to take this in the context of the fact that the trial court felt that when the principal had the question placed to him by the substitute teacher that he had to make a decision, you know.

And he looked at the article and he said I know who these girls are.

He looked at the article about the divorce, and he said he know who this girl is and I know who her parents are.

I do not think that the parents have had an opportunity to respond, the issue of fairness and balance is missing in that article.

The trial court specifically commented on his finding of the credibility of the principal in that case.

So when you take into consideration the fact that the trial court found that there was a protectable interest even espoused by the article, and that is the girls should remain anonymous and the article did not protect that, we feel that the court found that it was not a public forum, that it was adopted on a curriculum basis, and that as a curricula writing that it was subject to the control of the principal.

The Eighth Circuit really said well, the school can only do that when the issue would subject the school to tort liability.

And in this case, the Eighth Circuit felt that the only liability was for the invasion of privacy of the girls.

And since the girls had given their consent, obviously their privacy could not be invaded.

We differ with that somewhat, since also the article mentioned the parents of the girl, the husband of the girl, the decision of whether or not to use birth control, and how the sexual activities occurred.

So there were other people who were interested.

But we do not think that tort liability is really an appropriate standard.

That here the interests that a school has in the well-being of the students far exceeds whether or not the coffers of the district are going to be damaged by the onslaught of litigation.

Although Judge Wolman in his dissent said that the majority's decision in the Eighth Circuit put the school district between the Scylla of suit by the students and the Charybdis of suit by somebody else who was offended by what the students wrote.

But still and all, we feel that the true test is whether or not, as expressed in Fraser and similar cases, whether or not the school district has an interest in the well-being and the nurturing of the students who were there.

Justice Blackmun: And you would fix the limits at that point I take it, the limits of what the school and its principal can do, what I am trying to find out is what your standard is?

Mr. Baine: I think that it is similar to the standard, Mr. Justice, as you said in Pico that while there may be some things that cannot be removed from a library, a school can make a decision whether or not those articles or books are suitable for different age groups.

In this case, whether or not involving students in a public telling of their life and putting it in a semi-official publication of the school district, I think that is not a hard decision for the principal to make.

And certainly discussing the family life, the private lives of the family members who make up the patrons of the district, is not appropriate fare for the school newspaper.

It would give an opinion to the students that there was some bridge or bar between the school and the community that really does not exist.

So I would submit that--

Justice Scalia: Well, you would go further than that, would you not, you would say that the school could censor the paper if it had a lot of misspelling in it, would you not?

Mr. Baine: --Well, that, of course, is the Reinke case, Judge, which the Eighth Circuit rested quite a bit on it.

And according to Reinke v. Cobb County, the Federal District Court there found that the Tinker standard applied to school newspapers would not allow the teacher to even correct misspellings.

Justice Scalia: No, I am asking what you would say.

Mr. Baine: I would say that defeats the issue of journalism.

But one agreement that I guess that we had in--

Justice Scalia: What if the journalism professor just thought that this article is in bad taste?

Mr. Baine: --Well, in the scheme of things, as the journalistic courses are set up at the secondary level, the teacher has a lot of control over good taste.

One of the things that they were to learn in Journalism I was that business of taste and the community standard.

Where that is, I think that is best left decided at a local level.

Justice Scalia: You would say that good journalists have good taste, and that you can teach that in a journalism class?

Mr. Baine: Well, I think that you can teach not good taste, but I think that you can teach an acceptable standard which does not suppress viewpoint, all right, and then allow the student and everybody else to grow as their time and maturity grows.

Chief Justice Rehnquist: Mr. Baine, supposing in this particular journalism class the faculty and the school board said we are going to let you put out a student newspaper and it is a little bit devoted to journalism, but one thing that we want you to understand above everything else is that the faculty advisor has the absolute authority to censor anything if he is a man or she if she is a woman wants to, it may be arbitrary but if you come into the class that is what you are going to come up with.

Mr. Baine: Well, as a matter of fact--

Chief Justice Rehnquist: Do you think that would violate the First Amendment if the faculty advisor goes ahead and says look, I just do not think much of this article, it does not suit me?

Mr. Baine: --Well, Mr. Chief Justice, I think that--

Chief Justice Rehnquist: Can you answer the question?

Mr. Baine: --I think that they could do that, yes.

In fact, I think that is what they did do when they adopted the curriculum and the curriculum guide indicating that the teacher was in fact an editor and not a censor.

The only objection that I would have with the word that you used in your question was the word censor.

Because I really believe that what a teacher does in that case is edit.

Chief Justice Rehnquist: Well, it is really kind of a fine point of language.

Because I suppose that the final editor might be viewed as a censor, too, if that person does not agree with what the people beneath him have done and changes it.

You know, some people might call it editing and other people might call it censorship.

Mr. Baine: Well, the only distinction that I have between censorship and editing is that censorship in my opinion is somebody who is outside of the process who comes in and says for some reason or other you have violated whatever you have violated and I want to stop that publication.

Chief Justice Rehnquist: You are saying here that the teacher was part of the process.

Mr. Baine: Part of the process and defined by the curriculum to be so and encouraged to be so, and found by the trial court to be active.

And again we get back into the story line ideas coming from the teacher, the revision process coming from the teacher, the adoption and the approval.

Justice Brennan: Mr. Baine, what that really adds up to is no First Amendment protection then in that circumstance, none for the students.

Mr. Baine: Mr. Justice, I do not believe that there never is no First Amendment protection.

Justice Brennan: Well, where, in light of what you answered?

Mr. Baine: But I believe that in assigning a classroom exercise that the overriding interests of academic freedom, you know, in order to teach, that there is a First Amendment right inherent in teaching I think that was indicated in the Ewing opinion that said that somewhere there is a conflict between the academy's right to teach and the person's right to speak.

In this case, the academy is the Hazelwood School District and it is trying to demonstrate local values and journalistic standards.

And while the argument could be endless as to what the technique would be in resolving those, I think that is a balancing between that and absent a viewpoint.

Now again we go back to the trial court.

Because it was established clearly in the record that divorce, teenage pregnancy, teenage sexuality, abortion, these were articles that had been printed in the paper before.

What had never been printed in the paper before was Mary Jones' abortion, or Mary Susan's pregnancy, or John Doe's divorce.

Justice Stevens: Mr. Baine, may I just interrupt.

I just wanted to ask you if you really meant what you said in answer to Chief Justice Rehnquist's question.

You said that the teacher could have just total power or censorship.

That would mean that he could exclude all political articles that favored the Republicans and print only those that favored the Democrats.

I do not think that you mean that, do you or do you?

Mr. Baine: Well, first of all again, I would beg that the word censorship in the classroom be eliminated.

Justice Stevens: Well, forget the label, could they do that, could you give the authority to the teacher?

Mr. Baine: I would say that that is not the facts that we have in this case.

Justice Stevens: I understand that it is not the facts.

Mr. Baine: And that is a tough hypothetical.

Justice Stevens: But what is your answer to it?

I mean you gave one answer to the Chief Justice, and I wonder if that is the answer.

Mr. Baine: The answer is if you can establish clearly on the part of the school a viewpoint of discrimination that that would abridge fundamental First Amendment rights.

Justice Stevens: So then the school could not give total power to the teacher to exclude anything that he wanted to?

You cannot have it both ways.

Mr. Baine: I mean there is no evidence in this case that that is a fact.

Justice Stevens: That does not help us much.

Justice Scalia: Let us talk about viewpoint discrimination.

The principal could not exclude an article that discussed teenage sexuality and pregnancy of some of his students, and portray the whole thing in a favorable light in effect sanctioning promiscuity by the students, but would permit an article that discussed the same topic but seemed to frown upon that kind of activity, that the principal could not take a position on a subject like that.

If he allows sexuality to be talked about, he has to allow both the pros and the cons of adolescence sex to be set forth, is that right?

Mr. Baine: I guess the answer is if it is reasonable in light of the circumstance, reasonable in light of the age of the people, reasonable in light of the audience that they are trying to reach, you know--

Justice Scalia: Well, he says we are trying to form some moral attitudes in the kids in this school.

It is one of the things that this school does, and I do not want an article that condones this sort of thing.

Is he going to be able to do that or not?

Mr. Baine: --I think that what we have in this case is an article that says that if we are going to talk about it that we are not going to involve individuals.

Justice Scalia: I understand this case.

I just want to know your position.

Are you categorical that the principal or whoever has the last word cannot exercise that last word on the basis of some value judgments that discriminate between various positions on particular issues?

Mr. Baine: I am saying that he can.

Justice Scalia: He can?

Mr. Baine: Yes.

I would like to reserve the rest of my time, if I could--

Argument of Leslie D. Edwards

Chief Justice Rehnquist: Thank you, Mr. Baine.

We will hear now from you, Ms. Edwards.

Mr. Edwards: Mr. Chief Justice, and may it please the Court:

In 1777 in Philadelphia at the Public Latin School was the first student newspaper called the Students Gazette that we at least have a record of today, ten years before the Constitution, before the First Amendment was added.

Four authors for the purposes of advice both foreign and domestic for the reason of the great want of a weekly newspaper got together as students expressing their opinions, and recording who won certain political elections for the state assembly.

The essence of their ability to put out a student newspaper was their right to communicate with each other, with other students, as well as with other members of the school community.

It is an institution that existed before the First Amendment, and I think that the fact, and Mr. Baine did not mention this at all, that this is a newspaper has to have some effect upon how the Court looks at the issues.

Justice Scalia: Did the school pay for this newspaper that you are talking about?

Mr. Edwards: Three-quarters of the way.

Justice Scalia: Pardon.

Mr. Edwards: Three-quarters of the way.

Because it was sold.

So the people who paid a quarter for it also contributed to the funds that paid for the printing.

Unknown Speaker: But the school funded the printing and whatnot?

Justice Scalia: Three-quarters of it in terms of dollar amounts.

Justice Scalia: What school was it?

Mr. Edwards: Hazelwood East High School.

Justice Scalia: No, no, I am not talking about this one.

I am talking about the one in 1777.

Mr. Edwards: Oh, I am sorry.

Justice Scalia: I know this one.

Mr. Edwards: Let us start all over.

I do not know.

Justice Scalia: Do you not think that makes a difference?

Mr. Edwards: I assume because--

Unknown Speaker: Do you not think that makes a difference... what was the school, what was the school?

Mr. Edwards: --He sold it for a piece of paper.

Justice Scalia: What was the name of the school in 1777?

Mr. Edwards: Oh, I am sorry, Public Latin School.

That is the name of the school.

It became the William Penn Charter High School.

He sold it for a scrap of paper.

That is how valuable paper was at the time.

So I am assuming that the school did not, but I do not know.

One thing that he did not mention in addition is the concept that has been recognized of local control over curriculum.

And I think that an important inherent aspect to that principle is that it means ideas.

That when you are talking about local control, you are talking about local control over ideas.

Chief Justice Rehnquist: When you say local control, Ms. Edwards, does that mean student control?

Mr. Edwards: No, sir.

I am talking about the school district.

That the school board is elected by the people, the principal, and the superintendent.

I think that is an established interest that they have which is valid.

Chief Justice Rehnquist: And how does that help you in this case?

Mr. Edwards: Well, I think that when you balance or confront the First Amendment with that interest that it is very dangerous because it assumes ideas and viewpoint control.

So I think that just means that we have to look at it a little more carefully.

Chief Justice Rehnquist: Than if what were otherwise?

Mr. Edwards: Than if you had a situation of an Army facility where the Army's interest is in security, order, and maintaining a certain discipline.

We are not talking about suppression.

The government's interest in that situation is not speech related, it is not content related.

It is related to order, security, or another government interest.

That is a little bit separate sort of issue.

Chief Justice Rehnquist: Let me ask you one other question.

In your view, does this case depend on some sort of representations that were made to the students putting out a newspaper by either the faculty or the school board, or would it be totally the same no matter what the faculty or school board had tried to establish in the way of a system?

Mr. Edwards: I certainly think that it does depend.

Because they could have set up a newspaper, call it that, which is mimeographed, which is used in class, which is handed out in homerooms in which they are told to discuss only school issues, be a bulletin board, and in fact we are going to give you a weekly interview with the principal.

Fine, they set the limits, that is within their power.

Chief Justice Rehnquist: Supposing they set them a little bit differently, and said that this is going to be printed the way that ordinary newspapers are, it does not come out during class, you are going to work on it as an extracurricular activity, but here are the rules.

You are going to be subject to review on your subject of topics, and to take Justice Scalia's example, we want to promote morality as we see it.

So if you are touching subjects such as high school sex, we will encourage and insist on one point of view rather than another.

Mr. Edwards: I think that they can do that, but I think that there would be trouble doing it with an extracurricular activity.

Chief Justice Rehnquist: Why?

Mr. Edwards: Well, because I assume that extracurricular means that they are only putting in the money and do not have a journalism instructor there.

Chief Justice Rehnquist: Well, supposing that there is an instructor.

Mr. Edwards: Then I think that it sort of falls similarly where we do in the middle.

We are not extracurricular and we are not a laboratory experience only in the classroom.

Chief Justice Rehnquist: But what does that distinction contribute to the First Amendment argument, the difference between the curricular and extracurricular?

Mr. Edwards: Access.

The harm that the First Amendment is designed to prevent is that a viewpoint that the government does not like for any reason is excluded.

And when you have students allowed to make certain editorial control decisions or allowed to have certain access to their expression in the written columns, then the First Amendment applies and that is protected.

Chief Justice Rehnquist: Supposing it said the students are to write these pieces and we are not going to write anything ourselves, but the faculty advisor reserves the right to say no to anything that involves taking a position that is morally undesirable for high school students.

Mr. Edwards: I think that the school board, the principal and superintendent, superiors, can delegate the editorial function to an advisor, and he can exercise that in whichever way he thinks as long as it is not viewpoint based.

Now if he says that it is viewpoint based, then I do not think that would be protected.

Chief Justice Rehnquist: So the advisor cannot say I reject this article which encourages what I think is immorality in the part of high school students, but I will accept this article which I think encourages morality?

Mr. Edwards: It does not serve an editorial function and it does not serve an educational interest.

I do not think that would be constitutional.

Justice Scalia: So you either have to have no school paper or you have to have a school paper that carries articles like smoking pot is fun, that is the constitutional choice?

Mr. Edwards: I do not think so.

I think that you can allow the school to set up one that is related to their educational interests, so long as they do not tell the students now go and exercise your Tinker First Amendment rights.

Justice Scalia: I do not understand.

Mr. Edwards: I do not think that it only has to be one or the other.

I mean I think that the school can--

Justice Scalia: I could set up a newspaper then and say you are not going to have any articles in it that encourage the smoking of pot, I can do that?

Mr. Edwards: --If it is viewpoint based, I do not think that they can.

Justice Scalia: They cannot.

So I either have to have no newspaper or I have to have a newspaper that has articles encouraging the kids who go to that school to smoke pot.

Mr. Edwards: Along with other viewpoints, yes.

They have to allow that viewpoint, if that is what you are asking.

Justice Scalia: I understand your position now.

Mr. Edwards: I mean I think that the viewpoint discrimination is sort of a key to what they did in this case.

And it reminds me of something that you asked about of Mr. Baine.

The 1977 article on pregnancy said this is horrible, trauma, leaves scars, do not ever do this, it has nothing to do with, you know, being a good person in school.

The 1987 article says I am happy having this baby.

And the effect, whether the principal intended it or not, was to leave out that what he perceived, which you categorized as a moral choice in some sense, to leave out that one viewpoint that that one student had which said, you know, this is okay for me today.

And to only allow... because for some arbitrary reason this article on pregnancy was allowed ten years before... to only allow the viewpoint that this is a horrible thing, and do not dare go and do anything like this if you want to be a decent person.

Justice Scalia: What about teaching in the school, I presume that you could try to teach the students that smoking pot is no good or could you, would you have to have a teacher come up and give the other side and say on the other hand maybe smoking pot is good?

Mr. Edwards: I do not think that you can pair a newspaper with what they teach in social studies.

Justice Scalia: Why can the school enforce a point of view in the one case and not in the other?

Mr. Edwards: Because student expression as opposed to the teacher's control of content of a classroom is a difference.

The life and families class at Hazelwood East taught, and he was interviewed for our articles, taught one viewpoint in class with curriculum.

That is curriculum, that is totally curriculum.

I do not think that has anything to do with student expression.

I mean sure you have to answer a question, you might have to write a paper.

And it is conceivable that you could get some First Amendment protection down the road, but I do not think that it close.

Justice Scalia: So the only way to avoid all of the good stuff that you are doing in the classroom teaching them that smoking pot is no good is not to have a student newspaper, that is the only way that you could avoid the school formally subsidizing that opposing value judgment.

Mr. Edwards: Not to pay for it, not to have an advisor.

Justice Scalia: Right.

Mr. Edwards: And not to allow the other viewpoint to be presented.

To only have one viewpoint, you would have to have no school newspaper, yes.

Justice White: So I take it on your theory that the school could not even require that the students include in the newspaper the idea that smoking pot is bad.

Mr. Edwards: Oh, sure.

That is both viewpoints to be presented.

Justice White: That is not First Amendment law, that is not First Amendment law.

Mr. Edwards: Oh, I am sorry, did you say that the school could require them to put that in?

Justice White: If they are going to have a story that says smoking pot is great, you have to have a story that says smoking pot it bad.

Mr. Edwards: No.

Justice White: No what?

Mr. Edwards: I do not believe that is required at all.

I do not think that anybody said that they had to have.

Justice White: What is required?

Mr. Edwards: That they would have to put in a story.

The point is excluding a viewpoint.

Justice White: I know.

But the school says to the paper you have put in a story that smoking pot is great, now you have to put in a story along with it that smoking pot is bad.

Now could they do that to the newspaper?

Mr. Edwards: No.

The school is not the editor.

Justice White: All right.

So the students could exclusively say only that smoking pot is great, that is your theory.

Mr. Edwards: If that is all the students wanted to say, and it is open to the discussion of student ideas at this level.

Justice Scalia: Unless red line applies.

I mean maybe this is like the FCC.

I mean this is after all a school newspaper.

It is their type, it is their paper and whatnot.

So maybe they do have to provide viewpoints on matters of public controversy.

Mr. Edwards: Well, we did not require a newspaper to with a political candidate.

Justice White: No, your position is the school could not do that.

Mr. Edwards: So I do not think that a school newspaper could either.

Justice O'Connor: Do you think that the school newspaper can impose any journalistic standards whatever?

Mr. Edwards: Yes, through the advisor and through accuracy.

I think that if you had to push it that the principal could reach down and say this is not accurate, but he has to check it out.

He cannot just say this is reasonable belief by one person by his thought that this is not accurate.

He would have to either go to somebody with training in journalism or he would have to let the advisor do it, or investigate it himself and have some objective facts to allow that.

Justice White: But that advisor could not say look, if you are going to say smoking pot is good, in fairness have a story that gives the other side, you would say that the school advisor could not do that.

That is what you just said a minute ago.

Mr. Edwards: Yes, my sort of knee-jerk response I am afraid.

I really do not know the answer to that.

I mean I think that it has so much to do with other things such as public access and things to the airwaves and things like that, I really do not know.

Justice O'Connor: You do not think that you could have a class in which you are teaching students journalism and teaching them how to produce a newspaper and maintain school control over all aspects of that publication including content?

Mr. Edwards: Not if the content is placed and delegated to the students or jointly with the students' advisor, and not if it is discussion or an expressive vehicle as they admit this paper was for student expression.

I think that when you get student expression involved, then the school's control cannot be absolute.

Justice Stevens: May I ask you this question about this case.

As I understand it, part of the problem arose because the person who normally exercised responsibility, Mr. Stergos left, and there was kind of confusion about it.

Supposing that he had not left and everybody was used to working with him and recognized that he was the teacher who controlled it, and he took plenty of time to reach the same decision that the principal reached here, told the students all about it, and had just as weak reasons as the principal did, but he came to that conclusion that this is not a very good article for the paper and you cannot print it.

Would you still have a case?

Mr. Edwards: If he--

Justice Stevens: If he ended up after all of the deliberations had gone into whether these articles ought to go in or not, and he comes to the conclusion that these are not very good articles for this school, I think that I will cut them.

Do you have the same right to say?

Mr. Edwards: --Frankly, I think that it is not very strong, no.

I would say that the advisor has the ability and the right because of his expertise to do some editorial function.

That has been delegated by the school to him, and that is different than the principal.

Justice Stevens: So you would say that is a different case?

Mr. Edwards: Yes, sir.

Justice Stevens: So what you are really complaining about is the fact that this principal did not use very good judgment?

Mr. Edwards: That they reached up and got someone who was not part of the editorial function who was not skilled in journalism or experienced, and did it for a reason other than journalistic standards or editorial discretion.

Justice Stevens: Well, say he decided journalistic standards, this article does not show the degree of maturity that we think that it ought to show to have the school name on it and all of the rest, there is some misspelling in it and some bad grammar, a mixture of reasons, that is not enough?

Mr. Edwards: The advisor, that he could do that?

Justice Stevens: If the advisor can do it, I do not understand why the principal cannot.

Mr. Edwards: Because the advisor is part of what has been delegated by the school to be the training and practicing of student expression.

Justice Stevens: It seems to me what you are saying is if you are going to have censors that they have to be good censors.

Mr. Edwards: No, I think that they have to be journalistically involved, so the motivation of the school is good journalism and not a viewpoint.

Justice Scalia: It is a constitutional line whether you are violating the Constitution depends on whether you have a good journalist involved or not in the censorship?

Mr. Edwards: The constitutional line comes with whether student expression is protected or not.

Once it is, then I think that the scrutiny has to be very strict.

I thought that we were talking about a very detailed situation where the actual censorship was done by one person at one level with a certain motivation as opposed to another.

So that detail is not to me of constitutional limits, but the censorship is.

Justice White: Well, I would think that you would say that the principal not being acquainted with journalism could not order this piece deleted even it had inflammatory matters in it.

Mr. Edwards: I think that is because of Tinker.

I do not think that has so much of a policy aspect except of the school's educational interests.

Justice White: Here is this principal who is not the advisor, and he is telling them to take it out.

Mr. Edwards: I think that he could do that.

Now I am hoping that is not a practical situation.

Justice Scalia: But he could not say well, I think this article ought to be taken out because it involves some parents who really ought to have a chance to say their piece before anything is published like that, he could not say that?

Mr. Edwards: No.

Justice Scalia: Does not any newspaper have somebody who makes a judgment as to whether what is published in the newspaper will offend the community, I assume that any newspaper does not try to publish stuff that is offensive?

Mr. Edwards: Sure.

Justice Scalia: Now who does that when you have a school newspaper.

Suppose the principal says here is an article that is on premarital sex, it is an interesting article, but this is a very conservative rural community, our people will find this offensive.

If I were running the local newspaper, I would not run a piece like this.

Now what if he makes that judgment.

And if he cannot make it, who makes it in the school then.

You are telling me that you have school newspapers that cannot exercise any judgment as to what offense be.

Mr. Edwards: When the government is the publisher, I do not think that we can equate it to one person with the same rights as the private press.

I do not have a very good answer for that difficult question.

I do not think that the students have to be involved in that if it is their expression.

Justice Scalia: Once again, you leave us with a terrible choice, either no newspapers at all or newspapers that have to be offensive as no private newspapers need be.

Mr. Edwards: Well, why would a student newspaper need to be either.

I mean I think that--

Justice Scalia: Because nobody can stop them.

Well, all right, you have to get very responsible adolescents who have very good judgment as to what is offensive to the whole community or not and care.

Mr. Edwards: --I think that private newspapers print offensive things all of the time to some portions of the population.

Justice Scalia: They do not try to, I do not think.

Mr. Edwards: Well, you have this advisor, this instructor supposing monitoring it a little.

I mean there may be some restraint because you have a teacher, you have an advisor, you have a curriculum developed to try and learn how to do it according to ethical and journalistic standards that are better than the private.

I mean the private aim at that also, but you have a little bit more control because you have an advisor there who hopefully has some background in journalism, some experience perhaps as a reporter.

Justice Scalia: You let him do it?

Mr. Edwards: Yes, I think he could.

Justice Scalia: He could exclude it because I think this will offend the community?

Mr. Edwards: As long as it is not only because of a viewpoint discrimination, yes.

Justice Scalia: Well, but it is.

I mean he thinks this viewpoint will offend the community.

Mr. Edwards: It seems to me that offending the community would not have--

Justice Scalia: The students want to print something Hitler was right.

And the advisor says gee, this community will not like that piece, and there is a school bond issue coming up he thinks.

There is just no solution for that problem.

Mr. Edwards: --Well, I think that the advisor can exercise editorial control.

Justice Scalia: But the principal?

Mr. Edwards: Not viewpoint.

Well, to say that he cannot, what I am saying is that it requires strict scrutiny if he does.

And there may be a compelling state interest.

That is fine.

It may be inflammatory.

Then he can constitutionally.

Justice White: Well, so can the principal then?

Mr. Edwards: Yes, if it is inflammatory, libel, obscenity, and disrupting school, and invading rights of privacy of others.

Chief Justice Rehnquist: I am puzzled by the fact that the First Amendment implication seems to turn on how far up in the educational hierarchy that the decision is made.

What if you had a small rural school where you do not have a whole of people and you do not have a whole any journalism advisor, and the principal says I will fill in as journalism advisor?

Mr. Edwards: Well, I think that in attempting to analogize to the private press which has a reporter, editor, publisher and an owner, that we have gotten a little bit away from the First Amendment application.

Now it is not that that is not relevant, okay.

There is something that I think needs to be addressed there.

But the main this is this protected speech or not, and what is the standard.

And I do not think that who makes the decision necessarily determines that.

I think that the type of speech that we are talking about in a newspaper and the content.

Chief Justice Rehnquist: I must say that I did not get that impression of your case from the answers that you have given to the questions.

I got the impression that you thought that it was very important who made the decisions, whether it was the faculty advisor or the principal.

Mr. Edwards: Well, I do not think that it is as important as where the decision is made and the manner.

We are talking about a newspaper, the content of it, the basis for the decision.

There is no question that it is a very difficult position for the advisor to be in.

And the principal is far removed from the journalism education going on in that classroom.

I do not know if that really has any constitutional importance other than situations where you would have to apply the First Amendment to high schools because they vary so much.

You know, you might have the local newspaper in Carol, Iowa that publishes every Thursday that high school's newspaper.

The private publisher says here to the students, here is your one page, publish it.

You have got a school with a high educational quality in Hazelwood that says every three weeks we are going to have six or eight pages and we want you to do all of this journalism aim for learning all of these journalism things, editorials, news, columns, letters to the editor, everything.

And then you have a place that prints its own in the basement of the school, and it is going to be a mimeographed sheet eight by the eleven, and they are going to hand it out to the people in the classroom.

I mean there is just such a variety that it is true that many people in the situations that the student press encompasses make those decisions.

I think that you can look at the issues without being stuck into one of those who is the censor.

Justice Stevens: Given your different examples, is it of any significance in this case that the school had no objection to the distribution of xerox copies of the material that was excluded from the newspaper itself, they just did not want to associate the school officially with the material?

Mr. Edwards: That did not happen.

Justice Stevens: Oh, did it not, I misunderstood.

Mr. Edwards: It is in finding of fact No. 21 from the District Court, it is in a footnote of the Eighth Circuit.

There is nothing in the transcript.

The articles were never, there is no reference.

I do not know where it came from.

It is absolutely without any basis.

They were never distributed.

Justice White: Maybe it was in oral argument.

Mr. Edwards: I probably said it.

Justice White: Oh, you were there?

Mr. Edwards: No.

So I cannot answer your question because it did not happen, unless you would like a hypothetical.

Justice Stevens: Well, I certainly do not question your representation.

But when we have got a finding of fact on something, I tend to treat that as part of the record, unless somebody demonstrates to me that it is clearly erroneous.

Mr. Edwards: I do not think that it makes a difference, but that is just my--

Justice Scalia: Ms. Edwards, if I recall your response, you said that it would be okay if the school said this is a house organ, we are not going to allow everything to be published, we are going to have the last word, that would be okay.

Now suppose it did not say that, at the beginning it said it is going to be a wide open paper, but then it begins behaving otherwise, and it starts excluding material when the school was exercising its own judgment that the material is not very good.

That would violate the First Amendment then, right?

Mr. Edwards: --Yes.

Justice Scalia: Why should that be, I mean it is sort of a violation of the First Amendment that depends on breach of contract or estoppel or what.

Suppose the school in the middle of the school year says yes, we said at the beginning of the year that it was going to be wide open but we have changed our mind, from now on what comes is only what we say comes in.

Would that be okay, if they changed their mind in the middle of the year?

Mr. Edwards: Well, I might qualify my answer a little.

If it were communicated to the students in some manner that they now knew that this was the new way to operate, then it might be all right.

What happens, I thought that you were asking about--

Justice Scalia: This was done too informally, so this First Amendment violation consists exclusively of the fact that the principal did not publish a regulation or something to change whatever course there was, that is the First Amendment violation?

Mr. Edwards: --No.

Justice Scalia: It is a pretty frail protection, if that is all that we are talking about.

Mr. Edwards: Well, I do not think whether they write a regulation or not depends upon whether the First Amendment applies.

But I do think that the school can limit how they run their journalism program and their newspaper as they put it out.

Justice Scalia: Well, the principal limited it.

Mr. Edwards: He did not limit the program.

He did not limit the newspaper.

He limited one idea.

Justice Scalia: I see, I see.

Mr. Edwards: Now I think that he can limit the whole thing.

And maybe, you know, people might disagree.

Justice Scalia: It is the ad hoc nature of it that you are objecting to here?

Mr. Edwards: Well, there is some distinction between practice and policy I think, so I did not know if you were asking about that.

You may have a practice that is different than a policy, and I think that you would have to go by the practice as opposed to what they wrote down.

Justice Stevens: I wonder if you are saying that your students had a First Amendment right to have a teacher as good as Mr. Stergos.

Mr. Edwards: I suspect that things would have been different had we not had this change.

Thank you.

Rebuttal of Robert P. Baine, Jr.

Chief Justice Rehnquist: Thank you, Ms. Edwards.

Mr. Baine, you have three minutes remaining.

Mr. Baine: Thank you, Mr. Chief Justice.

In answer to Justice White's question, in our petition for writ, we have included the decision of the Eighth Circuit.

And on page A-9 it says,

"Although as the District Court noted, the Spectrum was produced by members of the Journalism II class, its staff was essentially restricted to students of the class and the Spectrum was a part of the school adopted curriculum. "

We would submit that the curriculum that was adopted by the Hazelwood School District was adopted as the Respondent's own witness said

"in the best fashion for the teaching of journalism in a secondary level. "

and that is under the supervision of a classroom teacher as opposed to an extracurricular, that the curriculum was a very well thought out and well set out correlated with textbook and classroom instruction.

And therefore, it was a curricular matter and subject to the supervision of the principal.

Justice White: But the court said that it was something more, too.

Mr. Baine: You are correct there.

They added that it was something more because of the diverse number of ideas which I feel is a finding of clearly erroneous without saying clearly erroneous.

I think that if the Eighth Circuit wanted to say that the District Court's finding that it was a curricular matter was erroneous that they should have said it or would have said it.

Justice Scalia: Is there not also some other inconsistency, is there not a footnote in the Court of Appeals opinion that says that there was no active involvement brought by the instructor in the production, and a flat finding by the District Court that there was active involvement by the instructor?

Mr. Baine: If you read the 21 findings of fact, there is a lot of activity.

Justice Scalia: Where did the Court of Appeals get that from?

Mr. Baine: I do not know, I really do not know.

I think that is what they found.

I think that they found facts.

They read the evidence and they read the record, and they read it differently than the trial court did.

But without going to a Rule 52, it is clearly erroneous.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Baine.

The case is submitted.