December 14, 2008

Anti-Evolution Censorship In Roanoke

A subject near and dear to my heart since my legal career began is student newspapers. Fact of the matter is that student writers and editors, at least at the high school level, have diminished free speech rights with respect to the subject matter of their newspapers, because the student newspaper is an educational activity as well as an expressive one, and in most cases the educational imperatives of the newspaper production process outweigh the expressive activities inherent therein. Hazelwood School District et al. v. Kuhlmeier et al., (1988) 484 U.S. 260.

But that said, there are still some limits to the ability of the school to censor and control what goes in a student newspaper. While such a newspaper is not a "public forum," the school administrators may still not engage in viewpoint censorship, even if they can engage in certain kinds of content censorship -- if the reason for censorship is related to some educational concern. Thus, the school can decide that discussing a controversial subject (say, abortion) is not appropriate for the student newspaper, but once the subject is allowed, the point of view on that subject (say, pro-choice) is wide open. Cf. R. A. V. v. City of St. Paul (1992), 505 U.S. 377.

The result is that student newspapers sometimes turn out to be very educational activities indeed. However, the lessons that are taught are lessons about censorship, free speech, the law, and the quality of the people who run the schools -- subjects which were hardly the intended pedagogical objective of the exercise.

So it looks like there was a First Amendment violation in this very interesting story. Brandon Creasey is a sixteen-year old student at a high school near Roanoke, Virginia. Creasey wrote a pro-evolution editorial for a student publication (characterized as a magazine rather than a newspaper, but that's a distinction without a difference). Kevin Bezy, the principal, censored it. Why? Creasey says it is because the principal personally does not believe in evolution. So what does Principal Bezy have to say for himself?
"The law gives the principal the responsibility to edit publications of the school," Bezy said. "It is an important responsibility because the principal has to look out for the rights and sensitivities of all students, especially in a diverse and multicultural area."

Continuing, he said of the piece: "It didn't present the theory with a sensitivity for those who hold other theories. The teacher of the student was asked to take out language that stated his theory is the only theory."

David Campbell, who teaches the Introduction to Media class in which Creasy wrote the article, said Bezy told him "the article sounded angry with the church, it wasn't based on fact and he [Bezy] intimated that the potential for community backlash might be an issue."
Translated, sentence for sentence: 1) I have the power to censor; 2) Some people might be offended by what Creasey wrote; 3) Creasey didn't present alternative theories to evolution in his pro-evolution editorial; 4) Creasey refused to insert
alternative theories to evolution in his pro-evolution editorial; and 5) I thought he sounded anti-church and I was afraid that some people would be offended by that.

That looks like viewpoint-based censorship -- Bezy didn't like the pro-evolution point of view of the article because it doesn't treat with "sensitivity" points of view contrary to the article. He's not saying that the subject of evolution was off limits. Instead, he's saying that Creasey's point of view of the subject matter was improper because it was critical of contrary viewpoints and contrary religious teachings. The essay uses some less-than-clinical language ("
Evolution is a fact folks, not a theory! " and "Show me a way to disprove that some god (any god) created the world, that could be done through natural investigation, and I'll say it meets one of the criteria. I haven't seen such a way even offered yet.") but sophomoric writing can be expected of, well, sophomores. But the point remains that in an editorial, argumentative piece, Creasey should not be forced to attack his own point of view.

Now, here's the argument the school will offer: harmless error. The theory goes like this: even if there was an unconstitutional reason for the censorship in reality, if the article could have been censored for a Constitutionally valid reason, then no violation of the student's Constitutional rights took place. It looks like the student may have plagiarized the article. Here is what seems to be the source piece. (Creasey's complete editorial appears at the bottom of the Roanoke Times article.) Punishment of plagiarism is obviously related to a legitimate educational objective.* So even if the article wasn't censored for its viewpoint, it could legitimately have been censored because it was the product of plagiarism. However, it is apparent from the Roanoke Times that no one mentions plagiarism at all, and the only mention of it comes from a comment in the Religion Clause article that tipped me off to the story.

So here's what I want you to think about before you comment, Readers. Assume for the moment that 1) Bezy did engage in unconstitutional viewpoint-based censorship, 2) Creasey did plagiarize the article, and 3) neither Bezy nor any other teacher knew that Creasey committed plagiarism when they decided to censor the article and we only learned about the plagiarism after the fact. Given that resolution to those three issues of fact, is Creasey entitled to a remedy?

I think the answer must be "yes," because the Constitutional error cannot go unacknowledged. Creasey is entitled to express his point of view in the student newspaper. But the remedy can't be publication of the original article, because equity will not sanction commission of a wrongful act to remedy another wrongful act. What's more, I think Creasey can and should be subject to an academic sanction if he submitted plagiarized work -- even if the plagiarism was not discovered until a later date.

The best solution, I think, should be for the student newspaper (excuse me, "magazine") to have a special edition focusing on the subject of evolution, inviting many students to submit research and opinion pieces expressing a multiplicity of viewpoints. There should be room for Creasey to re-write his essay and expressing his point of view, this time in his own words. Unfortunately, such a sensible, free-speech inclusive resolution would require everyone involved in a fight that has already proceeded to judgment in a lawsuit to all put down their swords and shields and work together in a friendly fashion again, so it doesn't seem likely to actually happen.


* There are also some grammar problems -- for instance, Creasey confuses "its" with "it's", a particular source of irritation for me. Requiring the article to use good grammar would also be a legitimate educational reason to censor it. But the Roanoke Times article makes the same mistake. Frankly, the mistake is so widespread that it's likely that even his teachers don't know the difference between the contraction and the possessive.

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