Request By:
Mr. Sean Kelly
104 Cartmell Hall
Morehead State University
Morehead, Kentucky 40351
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to review the policies of the Morehead State University Board of Student Publications. The questions you have presented are as follows:
1) Can a student newspaper take a stand on a public political issue to be voted on?
2) Can a student newspaper take a stand for candidates for campus and public office?
3) Can a governing board of student publications determine that a student newspaper must take a neutral stand on a public political issue?
You provided us a copy of the "Charter Governing Student Publications at Morehead State University as approved by the Board of Regents at Morehead State University" effective for the Fall 1980. Your questions have been prompted by the Board of Student Publications' resolution that:
"Pursuant to Section II of the Charter governing student publications at Morehead State University, the Board of Student Publications hereby directs the adviser and editor of The Trail Blazer to maintain a position of editorial neutrality in the matter of the local option election scheduled for April 24, 1982, in the City of Morehead. The Board further directs that appropriate steps be taken to insure that news coverage, personal commentaries, and letters to the editor concerning this issue be balanced in terms of space, timing, and graphic presentation."
Your questions present, in the main, one of the stickier First Amendment to the Federal Constitution problems, that of prior restraint. The issue is when, if at all, may government officials constitutionally suppress a publication or proposed contents of a publication. In this regard, at the outset, we note generally that due to the fear that protected expression will be suppressed, the United States Supreme Court has created a presumption against the constitutionality of regulations imposing a prior restraint. See
Bantam Books, Inc. v. Sullivan, 372 US 58 (1963). And, as a usual matter the courts that have considered this issue have concluded that "only the most overriding public interests will suffice to support a prior restraint of non-obscene materials." 1
In OAG 78-170, copy attached, this office considered several issues relating to The Trail Blazer and concluded these matters were subject to the newspaper's policies and to regulations of the Morehead State University Board of Regents. However, in that opinion we did not consider the issue of prior restraint or censorship by university officials.
Looking at the issue of the right of college students to be free from censorship in their publications causes us to turn to
Papish v. University of Missouri, 410 US 667 (1973). The Supreme Court stated at pages 669-670:
This case was decided several days before we handed down
Healy v James, 408 US 169, 33 L Ed 2d 266, 92 S Ct 2338 (1972), in which, while recognizing a state university's undoubted prerogative to enforce reasonable rules governing student conduct, we reaffirmed that "state colleges and universities are not enclaves immune from the sweep of the First Amendment. " Id., at 180, 33 L Ed 2d 266. See
Tinker v. Des Moines Independent School District, 393 US 503, 21 L Ed 2d 731, 89 S Ct. 722 (1969).
Other federal courts that have considered questions involving censorship of university student newspapers have likewise concluded. In
Joyner v. Whiting, 477 F.2d 456, 460-461 (4th Cir. 1973) the court stated:
It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.* * * * This rule is but a simple extension of the precept that freedom of expression may not be infringed by denying a privilege.
Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963).
The principles reaffirmed in Healy have been extensively applied to strike down every form of censorship of student publications at state-supported institutions. Censorship of constitutionally protected expression cannot be imposed by suspending the editors, suppressing circulation, requiring imprimataur of controversial articles, excising repugnant material, withdrawing financial support, or asserting any other form of censorial oversight based on the institution's power of the purse.
But the freedom of the press enjoyed by students is not absolute or unfettered. Students, like all other citizens, are forbidden advocacy which "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." See
Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 1829, 23 L. Ed. 2d 430 (1969).
Tinker v. Des Moines Ind. Community School Dist., 393 U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731 (1969), expressly limits the free and unrestricted expression of opinion in schools to instances where it does not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."
Another very thorough consideration of censorship of a university student literary publication may be found in
Bazaar v. Fortune. 476 F.2d 570 (5th Cir. 1973). The 5th Circuit stated at page 574:
The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned. It seems a well-established rule that once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if acts consistent with First Amendment constitutional guarantees.
The court further stated in the Bazaar case at page 579:
As a final word, we can only reiterate that speech cannot be stifled by the state merely because it would perhaps draw an adverse reaction from the majority of people, be they politicians or ordinary citizens, and newspapers. To come forth with such a rule would be to virtually read the First Amendment out of the Constitution and, thus, cost this nation one of its strongest tenets.
In light of the above referenced cases, based solely upon the facts as we know them, this office must say it harbors considerable reservations about the strictures placed by the resolution of the Board of Student Publications on editorial comments in The Trail Blazer. While we believe the "Charter Governing Student Publications at Morehead State University", on its face, expresses reasonable rules governing the operation of the student publications at Morehead State University, we are inclined to believe there has been a constitutionally errant application of these provisions in restricting the paper to "a position of editorial neutrality. " This being the case, this office is of the position the answer to your first and second questions is in the affirmative and to your last question in the negative.
We apologize for our inability to respond to your inquiry at an earlier date.
Footnotes
Footnotes
1 See and compare the article entitled "High School Students' Publication Rights and Prior Restraint" , Journal of Law and Education at page 485.