A Supreme Lesson In The First Amendment

On Veterans Day, when Americans are apt to take an expansive view of their freedoms and the role of their armed forces in securing them, The New York Times ran an article calling into question the commitment of one sitting Supreme Court justice to the First Amendment to the U.S. Constitution.  Anthony Kennedy, a Reagan appointee who is considered a staunch First Amendment defender, addressed an assembly on October 28th at the tony Dalton School on Manhattan’s Upper East Side.  The talk was covered by the student newspaper, The Daltonian.  The judge’s staff insisted that he be able to pre-approve the resulting article, and the school complied with this demand.

Kathleen Arberg, the court’s public information officer, said Justice Kennedy’s office had made the request to make sure the quotations attributed to him were accurate.  The justice’s office received a draft of the proposed article on Monday and returned it to the newspaper the same day with “a couple of minor tweaks,” Ms. Arberg said. Quotations were “tidied up” to better reflect the meaning the justice had intended to convey, she said.

According to the Times, Ellen Stein, the head of Dalton, said that pre-approval “allows student publications to be correct… I think fact checking is a good thing.”  It’s a central tenet of journalism to get your facts straight, but this has never required a pre-publication review.  Writers often read an interview subject’s quotes back to them for verification.  But even if the subject disputes a quotation, the show must go on, and he or she is free to write a letter to the editor or, for on-line publications, comment directly on the post (as Mss. Arberg and Stein, as well as Justice Kennedy, are free to do here).   As The New Jersey Star-Ledger opined:

No public official gets to check your copy before it is published.  Imagine if President Obama (or Bush or Clinton) was able to “tweak” and “tidy up” all the news stories written about him and his administration. Or if your mayor, governor, or any other official you covered insisted on molding every story you wrote by taking a first pass at it.

Student journalists often face obstacles in publishing their work, but high school students possess real, albeit qualified, First Amendment rights.  In Tinker v. Des Moines (1969), the Supreme Court stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” ruling that nothing short of activities that “materially and substantially disrupt the work and discipline of the school” could justify restricting students’ political expression.

But subsequent Supreme Court decisions gave school administrators greater latitude to limit student speech.  In Bethel School District v. Fraser (1986), the Court ruled that a student’s First Amendment rights were not violated when he was suspended for delivering a speech laced with sexual innuendo at a high school assembly.  In Hazelwood School District v. Kuhlmeier (1988), the Court upheld a principal’s censorship of articles on pregnancy and divorce in a high school newspaper.  The paper was produced as part of the school’s journalism program, and the Court held that it could reasonably be assumed to “bear the imprimatur of the school,” whereas a completely student-run paper would not.  (Justice Kennedy had recently joined the Court and did not participate in the decision.) Kennedy voted with the majority in Morse v. Frederick (2007) which found in favor of a high school principal who suspended a student for engaging in what the principal interpreted as pro-drug speech.

If public school students’ First Amendment protections are qualified, those afforded to students at private schools such as Dalton are far more restricted.  The government cannot censor private school publications, but the administrators are not considered “state actors” and can do pretty much as they please.  A few states have laws or court rulings granting private school students the same rights as their public school colleagues, but New York is not among them.  Had The Daltonian gone ahead and printed the article as originally written, before the good judge clarified what he really said, there’s little Justice Kennedy could have done about it.  But the students might well have faced consequences from the timorous Ms. Stein, from which no court would have protected them.

But the issue is not primarily a legal one.  A school like Dalton can be expected to be deferential to the wishes of the powerful, from whose ranks their students are largely drawn.  Obsequiousness is probably second nature.  Moreover, the political atmosphere has not been conducive to activism of late, and many students are reluctant to make waves.  According to a large-scale study conducted in 2004, more than a third of high school students thought that the First Amendment went “too far” in protecting individual rights.  Far fewer students than teachers thought that people have a right to express unpopular views.  Chillingly, only half (51%) of these budding fascists believed that newspapers should be allowed to publish articles without seeking government approval.  (The figure was 61% for students involved with their school newspaper.)  In a follow-up study in 2006 , the percentage of students who believed that newspaper articles should not require government approval edged up slightly from 51% to 54%, but the general hostility to the First Amendment as going “too far” was now expressed by 45% of them.

The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.  Those aren’t my words; they’re Justice Kennedy’s, from his concurrence in International Society for Krishna Consciousness v. Lee (1992).  The sheer pettiness of his (successful) attempt to control his image should give us pause.  Presumably he did not reveal any state secrets at Dalton.  In all likelihood his prepared remarks were unremarkable.  But between his petulant demands and Ms. Stein’s shaky grasp of the notion of a free press, the future movers and shakers at Dalton are not getting their full $31,000 worth of education this year.

Image of The Dalton School via www.inquisitr.com.