Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
News happens, on occasion, even when something doesn’t happen — as in a recent decision by the U.S. Supreme Court not to consider an appeal involving a California high school student’s editorial writings on immigration.
The decision not to decide leaves intact a California court holding on basic principles about free speech, and particularly speech that some, many or even most of us would prefer not to hear.
Andrew Smith was a senior at Novato High School, in northern California, when he wrote a newspaper editorial published in 2001 that, in part, said immigrants who could not work legally might earn money through “drug dealing, robbery or even welfare. Others prefer to work with manual labor while being paid under the table tax free.” Smith also wrote that it “seems to me that the only reason why they can’t speak English is because they are illegal.”
After the editorial appeared in the school’s newspaper, The Buzz, school administrators at Novato High School and the school district received complaints from some parents, who said they felt insulted and angered. School officials later said in a letter to parents that the editorial should not have been printed because of local policies on maintaining an orderly school environment, and apologized for the hurt caused by publishing Smith’s views.
Smith — via his parents — challenged school officials. He said his free-speech rights were violated because administrators attempted to confiscate any remaining copies of the paper, because they told parents the editorial should not have been published, and because of delays in publishing a later essay.
A local state court supported school officials, holding the immigration editorial was not protected by the First Amendment because it ran afoul of school regulations prohibiting material that was insulting, derogatory and disrespectful to an ethnic group, and incited violence.
But a three-judge panel of the California Court of Appeal disagreed, saying that Smith’s editorial — albeit, as the court said, written in an “unsophisticated and disrespectful manner” — is speech that is protected by California law, which affords even more protection to student speech than federal law under the First Amendment. The three judges said Smith made no direct threat or attempts to incite violence, and in fact ended his essay with a call for tougher laws regarding immigration.
There’s no denying that the editorial angered and hurt some students and parents. Smith himself later claimed he was injured in a fight with a student as a result of his words. But, as the appeal court noted, the incident also had positive effects. The school system held several meetings with parents and students to hear views on the dispute.
The school newspaper published a later edition exploring racism that included both a second essay by Smith and a counter-view from another student. Noting the wide community debate over the editorial and school response, the court concluded, “it is likely that, viewed as a whole, the publication of ‘Immigration’ resulted in a useful exchange regarding how different persons and communities might view the sensitive topic of illegal immigration.”
Conflict is not the only way to discuss controversial issues. But the nation’s founders realized that important issues often involve strong passions — and that speech that challenges majority views frequently will tempt censors, even well-meaning ones.
In this instance, we are reminded that one justification for protecting free speech is that by hearing views we don’t like, we may be moved to speak out ourselves as advocates for our views — the kind of “vigorous public debate over issues” that the founders envisioned and democracy requires.
Concurring in Whitney v. California (1927), U.S. Supreme Court Justice Louis Brandeis wrote that "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Brandeis added: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
From the California appellate court’s opinion: “Even if Smith or the most belligerent protestors learned little from the process, it is likely that the school community gained understanding of the issues. For example, following publication of ‘Immigration’ some students formed a group called Todos Unidos (Everyone United), in order ‘to help our students understand the meaning of different cultures.’”
That’s free speech and the First Amendment in action — and reaction.
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].