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Noting that recent Supreme Court decisions (including Hazelwood School District v. Kuhlmeier and Bethel School District No. 403 v. Fraser) moved markedly away from protecting students' First Amendment rights, this paper examined justifications for granting public school students freedom of expression. Rather than looking at where students' First Amendment rights stand, the paper's focus is on where they should be. The paper notes that courts have granted students expressive rights (such as the case of "Tinker v. Des Moines Independent Community School District"), but then essentially withdrew them on legal (public forum) and educational (inculcating the majority's values) grounds that can lead only to continually diminished protection for students' freedom of expression. The paper argues that the approach should have been--and should be--utilizing freedom of expression rationales which are advocated for society at large. Arguing that the First Amendment is instrumental in providing the foundation for dissent, self-fulfillment, human dignity, and liberty, the paper concludes that students' expressive rights should be seen as a "basic educational mission" and are best protected by applying to the school setting basic First Amendment principles. One hundred forty-four notes are included. (RS)

Since the "New York Times Co. v. Sullivan" decision in 1964, courts have debated the degrees of protection from defamation that should be offered to individuals and the concomitant degree of freedom that the press should have to report on matters of public concern. Most recently, the Supreme Court has attempted to balance these competing interests in the cases of "Gertz v. Robert Welch, Inc." and "Time, Inc. v. Firestone." From these two cases come new definitions of public figures and private individuals, two categories given differing amounts of protection under the law. After examining the various manners in which state courts and lower federal courts have construed these definitions, it is concluded that there will be no rest for publishers and broadcasters while the criteria for determining who is a public figure and who is a private individual are so unsettled. (Author/KS)

In the landmark "Gertz" decision, the United States Supreme Court held that, in the interest of protecting libel plaintiffs, the states under certain conditions could define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods. This paper explores several applications of the "Gertz" decision, by various states, in the two years since the opinion was handed down (23 states have cited "Gertz"). The paper concludes that the full impact of "Gertz" will not be known until state courts have had more opportunity to fully interpret the "Gertz" standards in light of the traditional common-law principles of defamation. (JM)

The Supreme Court of the United States has issued three significant rulings on the question of prior restraint by government officials of material to be published in print media. Each time it ruled that only in exceptional circumstances will prior restraint be permitted. Lower federal courst have not taken the same view regarding prior restraint in public high schools. Several have held that school officials may censor material before publication in high school student newspapers or periodicals, whether school-sponsored or not. However, one Circuit Court of Appeals has taken a strong stance in opposition to high school precensorship, holding that while punishment may be imposed after publication of material that is not otherwise protected, prior restraint is permitted on the secondary level only under highly unusual conditions. While school officials may establish reasonable rules regarding time, place, and manner of distribution of student publications, a reading of the Tinker case indicates that prior censorship may not be permissible in the high school. The conflict among the Circuit Courts of Appeals, however, seemingly can only be resolved by the Supreme Court. (Author/TO)

After a unique court decision forbidding prior restraint in public high school publications in three states, a study was devised based on the responses to individual questionnaires sent to principals, faculty advisers, and student editors in each of the schools in the judicial district involved in the decision. Respondents answered questions concerning school size and location, frequency of newspaper distribution, newspaper sponsorship, and supervision of the paper. Other questions dealt with censorship, underground newspapers, freedom in high school newspapers, and personal familiarity with the court decision. Advisers and principals answered additional questions regarding their journalism experience and training and their practices for reviewing printed material. The results disclosed the following: only 10% of the advisors and 15% of the principals were familiar with the court decision; the decision did not precipitate an increase in campus disruptions; the journalism atmosphere was less restrictive in large communities and schools; and principals and advisers with academic or professional backgrounds tended to give students more freedom. The lack of consistency among the schools in permitting student freedom indicated that the court decision had little effect on high school journalism. (MAI)

High school students and administrators continue to meet in courtrooms to dispute the extent to which freedom of expression is granted to writers and editors of student publications. A review of more than a dozen such cases decided by state and lower federal courts in the last two years shows that judges have given increasingly greater freedom to students while insisting that school officials may do no more than establish narrow, carefully drawn regulations to prevent printed material from causing substantial interference with school operations. Court decisions against regulations that allow high school administrators to impose prior restraint on printed material make it increasingly difficult to impose such censorship. Other court decisions on libel and obscenity in school publications indicate that standards set by the courts for the general community do not change in the high school setting. (Three appendixes contain samples of regulations, legal definitions, and excerpts from student codes that are pertinent to student press rights.) (Author/RL)

The press and public should have access to pretrial discovery documents in civil litigation when matters of public concern are at issue. Recently, the Supreme Court expanded the public's First Amendment right of access to criminal proceedings, and based on that, some lower courts have granted access to civil trials. In its decisions establishing public right of access to criminal court proceedings, the Supreme Court established that (1) the requested right of access must be rooted in judicial history, and (2) access must serve important public interests, particularly the opportunity for the public to assess how well the judicial system functions. Access to civil discovery documents meets both these criteria, and therefore the public and press should have a First Amendment right to examine such material. Courts refusing access to pretrial discovery documents have relied on the Supreme Court's opinion in "Seattle Times Co. v. Rhinehart.""Rhinehart" arose from an action for defamation and invasion of privacy filed by the head of a "spiritualist church." But "Rhinehart" is inapplicable to most cases in which access has been sought. Several courts have recognized that public interest demands access in certain cases, and this view should be adopted widely. Continued secrecy prevents the press and public from learning about matters which may affect them directly. (Six pages of footnotes are included.) (AEW)

Since the 1974 Supreme Court dicta in "Gertz v. Robert Welch, Inc.," many courts have held that statement of opinion is constitutionally protected. However, statements that appear to be opinion based on undisclosed facts or knowledge not generally known to the public can be an exception. For instance, courts have protected specific unfavorable restaurant and book reviews, but refused to protect as opinion a statement by the owner of a baseball team, reported in a newspaper, that the club's former general manager was a "despicable human being." This presents a problem for the media, which may be impeded in debating issues of public concern for fear that the opinions they publish, which had formerly been protected under fair comment, may not be qualified for legal protection. The Restatement of Torts in 1977 attempted to distinguish between "pure" and "mixed" opinions, and a later torts hornbook posited "deductive,""evaluative," and "informational" opinions. Courts have also taken the possibility of intended malice and "rhetorical hyperbole" into account. To protect the right to debate issues of public concern, courts should consider merging the ideas of Judge Robinson's dissent in "Ollman v. Evans" and the Supreme Court's opinion in "Philadelphia Newspapers v. Hepps," and protect any comments, without consideration of whether they are fact or opinion, that cannot be proven false. (Four pages of footnotes are included.) (JC)