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Susannah BRIGHT, by her guardlan ad litem William Bright, Plaintiff and Appellant, v. Los ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Plaintiff, Susannah Bright, by her guardian ad litem, William Bright, appeals from a judgment denying her declaratory, injunctive and monetary relief with respect to defendants, Los Angeles Unified School District,1 William J. Johnston, district superintendent, John Welch, principal, University High School, and Homer Gansz, vice principal, university High School.
Plaintiffs sought, among other things, in this action to have defendants enjoined from interfering with her distributing and selling at University High School an underground newspaper prepared by high school students, including plaintiff, and called ‘The Red Tide,’ or ‘any other printed material by reason of their objections to its content.’ She placed in issue herein the constitutionality of the district's system of prior restraint against libelous student publications and the district's ban upon the sale of any articles, including student newspapers, on a high school campus.
On Friday, May 31, 1974, at approximately 8:30 a.m., plaintiff and two other University High School students came to the office of the aforementioned vice principal, defendant Homer Gansz, pursuant to school rule, to obtain his approval for the distribution on campus of the summer issue of ‘The Red Tide.‘2 Gansz noticed on the first page of the publication an article entitled ‘Students Fight Rules at Locke.’ The second subheading in this article (also on page one) was ‘Principal Lies.’ Set forth below this subheading were four purported lies of Principal Hobbs of Locke High School.3 Gansz decided that the portion of the article quoted in footnote 3 was possibly libelous. He therefore informed the students that he would have to check with defendant, Principal Welch of University High School, before he (Gansz) could approve distribution. He then reported the situation to Principal Welch, who telephoned the county counsel for advice and tried three times unsuccessfully to reach Principal Hobbs to inquire about the accuracy of the accusations against him in the quoted portion of the article.4 Gansz then told the inquiring students that approval of the distribution of the newspaper on campus would be withheld pending completion of the investigation and that any students distributing the newspaper on campus without approval would be subject to suspension.
The following Monday, June 3, 1974, Principal Welch reached Principal Hobbs by telephone and asked him twice about the purported lies. Principal Hobbs answered that, to the extent that he may have made the statements5 which the article claimed were false, they were in fact true. Welch reviewed each of the purported lies with Hobbs and Hobbs specifically stated that they were not lies, but were in fact true. After consultation with his legal adviser, Principal Welch informed plaintiff and other students that they could not distribute the summer edition of ‘The Red Tide’ on the University High School campus be cause it contained the article libeling Principal Hobbs.
Defendants assert that, in thus banning the distribution of ‘The Red Tide’ on the University High School campus, they carried out the applicable portion of Education Code section 10611 and the applicable requirement of District Administrative Regulation 1276–1, subdivision (d)(2) Education Code section 10611, so far as it is directly pertinent to this cases, provides that public school students have the right to exercise free expression, including the distribution of printed materials with the exception that expression which is, among other things, libelous according to current legal standards shall be prohibited.6 The administrative regulations include among prohibited material ‘[m]aterial which is libelous according to current legal definitions.’
Plaintiff argues that the word ‘prohibited’ (as used in section 10611) does not authorize a system of prior restraint against prohibited publications such as that here imposed. Alternatively, she argues that such a system of prior restraint violates the First and Fourteenth Amendments of the United States Constitution and Article I, Section 2 of the California Constitution. In addition, plaintiff that the article in question is not libelous according to current legal standards.
The primary meaning of the word ‘prohibited’ is to ‘forbid’; its secondary meaning is to ‘prevent’. (Random House Dict. of the English Language (Unabridged ed. 1966) p. 1149; Webster's Third New Internat. Dict. (Unabridged ed. 1966) p. 1813.) According to the documentary evidence presented to the trial court by plaintiffs, section 10611 was enacted to replace Education Code sections 9012 and 9013, which a three-judge federal court in an unpublished opinion in Rowe and Zeltzer v. Campbell Union High School Dist. (Nos. 51060, 51501, N.D.Cal., Sept. 4, 1970), had ruled unconstitutional. In a supplemental opinion, apparently dated February 4, 1971, in that case the court had said: ‘It may be that no system of prior restraint in the area of student publications can be devised which imposes a restraint sufficiently short-lived and procedurally protected to be constitutional. What may well be best—although perhaps not constitutionally compelled—is a simple prohibition against the distribution of certain categories of material.’ Thus, it seems probable that in enacting section 10611 the Legislature chose the judicially recommended means of prohibiting (in the primary sense of that word) the distribution of certain objectionable written materials rather than preventing their distribution by prior restraint.7
There is another reason for giving to the word ‘prohibited’ in section 10611 its primary rather than its secondary meaning. To do the latter would raise serious constitutional objections to the statute and an interpretation avoiding these objections is, of course, to be preferred. (See Braxton v. Municipal Court, 10 Cal.3d 138, 145, 109 Cal.Rptr. 897, 514 P.2d 697.) The objections we have in mind may be briefly stated. We note that these constitutional objections are particularly acute in a case, such as this one, involving a prior restraint on expression whose only asserted vice is that it is ‘libelous . . . according to current legal standards,’ and which admittedly posed no threat of violence or disruption.
The liberty of the press guaranteed against state action by the First and Fourteenth Amendments to the United States Constitution is not an absolute right and a state may punish one for its abuse. Ordinarily, though, this is done through litigation after the fact. Prior restraint of publication because of the content thereof is a particularly odious from of censorship and is unconstitutional save in exceptional cases. (See Near v. Minnesota (1931) 283 U.S. 697, 707—709, 715–716, 51 S.Ct. 625, 630–631, 75 L.Ed. 1357, 1363–1364, 1367.) Stated somewhat differently, any prior restraint on expression bears a heavy presumption against its constitutionality. (New York Times Co. v. United States (1971) 403 U.S. 713, 714, 91 S.Ct. 2140, 2141–2142, 29 L.Ed.2d 822, 824; Wilson v. Superior Court, 13 Cal.3d 652, 657, 119 Cal.Rptr. 468, 532 P.2d 116.)
High school students possess First Amendment rights which, however, must be applied to them in the light of the special characteristics of the high school environment. Conduct by students in class or outside of it which either potentially or actually materially disrupts class work, or involves substantial disorder, or actually invades the rights of others is not immunized by the constitutional guarantee of freedom of speech. (Tinker v. Des Moines Community School Dist. (1969) 393 U.S. 503, 506, 511, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731, 737, 740, 741.)
Admittedly, one who libels another invades that person's right to be free from defamation. Tinker, however, did not specify which invasions of rights within the high school environment were beyond the protection of the First Amendment. (See Eisner v. Stamford Board of Education (2d Cir. 1971) 440 F.2d 803, 808.) Earlier in the opinion, though, mention is made of ‘the rights of other students to be secure and to be let alone’ (393 U.S. at 508, 89 S.Ct. at 737, 21 L.Ed.2d at 738) and a reading of the opinion as a whole leaves the reader with the distinct impression that the student conduct which the High Court placed outside the protection of the First Amendment is conduct potentially or actually disruptive of the educational process, including the maintenance of the discipline within the school necessary to permit that process to function effectively. (See Eisner, supra, 440 F.2d at 807.)
If this be a correct reading of Tinker, prior restraint as a method of prohibiting (if ‘sufficiently short-lived and procedurally protected’) of certain forms of student expression would appear to be federally constitutional.8 (Nitzberg v. Parks (4th Cir. filed Apr. 14, 1975, dock. no. 74–1839); Eisner, supra, 440 F.2d at 807; Shanley v. Northeast Independent Sch. Dist. (5th Cir. 1972) 462 F.2d 960, 969–970; Quarterman v. Byrd (4th Cir. 1971) 453 F.2d 54, 58; Scoville v. Board of Education (7th Cir. 1970) 425 F.2d 10, 13; Karp v. Becken (9th Cir. 1973) 477 F.2d 171, 174.)
Nevertheless, it can be argued that these forms of expression do not include mate rial ‘which is . . . libelous or slanderous according to current legal standards.’ We say this for three reasons. First, we note that Near and other prior restraint cases have never mentioned libelous or slanderous materials as among those exceptional instances where a prior restraint can constitutionally be applied Second, we note that libelous and slanderous materials would ordinarily pose no actual or potential threat of disrupting the educational process, which is the primary concern expressed in Tinker and in subsequent cases which have allowed prior restraints on school newspapers. Finally, we note that at least one federal court has suggested that the current difficulty of defining what is legally libelous today may well render a statute authorizing a prior restraint on material described only as ‘material which is . . . libelous according to current legal standards' unconstitutionally vague. (Banghman v. Freienmuty (4th Cir. 1973) 478 F.2d 1345, 1349–1351.)
The federal constitutional hurdle does not stand alone, however, in this state. There is also Article I, Section 2 of the California Constitution which, since 1849, has read essentially as it does today: ‘Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.’ (Emphasis added.) Our Supreme Court has quite recently characterized this section as ‘more definitive and inclusive than the First Amendment.’ (Wilson v. Superior Court, supra, 13 Cal.3d at 658, 119 Cal.Rptr. at 472, 532 P.2d at 120.) In view of the language therein that we have emphasized, and the tradition in this country alluded to at length in Near, supra (283 U.S. at 713—715, 51 S.Ct. at 630—631, 75 L.Ed. at 1366–1367), of punishing libelous statements after they have been made instead of preventing their making and distribution, it would seem that the prior restraint in the distribution of a high school underground newspaper by high school students on the high school campus would, at the very least, be of questionable state constitutionality.
This is not the only constitutional problem, though, that this case presents. If, notwithstanding what we have just said, we assume for the sake of discussion only that the system of prior restraint involved in this case is generally constitutionally permissible, we have to decide then whether it was constitutionally exercised. We believe not. Principal Welch of University High School banned the distribution by his students on the campus of that school of the summer 1974 issue of ‘The Red Tide’ because it contained on its first page facially libelous statements headed ‘Principal Lies' (see Civ.Code, § 45a) without a reasonably complete and fair investigation to establish that such was the case. Although the article, by reason of its content, was facially libelous and, although the statements therein at issue were subsequently established in the trial court to be in all probability false, all that Principal Welch knew when he banned the distribution of this newspaper on the campus of his school was that Principal Hobbs of Locke High School had told him that the characterization as ‘lies' of what he had allegedly said was false and that earlier an assistant principal at Locke High School had told Welch substantially the same thing. Prior to placing the ban in effect, Welch made no inquiry into the truth of the facially libelous statements beyond obtaining from the two other presumably informed school administrators their verbal assurances that the accusations therein were false. He did not extend his inquiry into the truth or falsity of these accusations to more disinterested sources at Locke High School nor did he attempt to ascertain there himself the underlying facts from which he could have made his own informed judgment on this issue.
But the limited nature of Welch's factual inquiry into the issue of the truth or falsity of the facially libelous statements was not the major deficiency in his preban investigation. He made no attempt to find out from his students who had written the article at issue and what was the information upon which the article was based in the repects that it was claimed libelous.
Libel in California is ‘a false and unprivileged publication’ in writing (among other ways) of defamatory material. (Civ.Code, § 45; Snively v. Record Publishing Co., 185 Cal. 565, 574, 198 P.1.) Principal Welch made no inquiry at all as to whether the publication of this facially libelous article was conditionally privileged under Civil Code section 47, subdivision (3), or otherwise. A newspaper serving a particular community (here the high school community) is conditionally privileged to comment on one in a position of prominence therein (here the principal of Locke High School) even though the article may adversely affect that person's reputation. (Maidman v. Jewish Publications, Inc., 54 Cal.2d 643, 651—652, 7 Cal.Rptr. 617, 355 P.2d 265.) Since the article in ‘The Red Tide’ dealt with the student dress code at Locke High School its subject matter concerned a public issue within the high school community and Principal Hobbs, the person facially libeled with respect to his official conduct, was a public figure in that community as the chief administrator of that high school within defendant district. (See Rosenblatt v. Baer (1966) 383 U.S. 75, 85–87, 86 S.Ct. 669, 15 L.Ed.2d 597, 605–606; Nitzberg v. Parks, supra; Reaves v. Foster (Miss. 1967) 200 So.2d 453, 459; Cal.Admin.Code, Tit. 5, §§ 5551, 5800m.) These circumstances brought into possible play an overriding conditional privilege—the constitutional privilege first enunciated in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 283, 84 S.Ct. 710, 727—728, 11 L.Ed.2d 686, 708.
To defeat either of these conditional privileges and thus render the facially ‘libelous' article libelous according to current legal standards, Principal Welch had to investigate whether the accusations that Principal Hobbs had lied in the four particulars mentioned had been made with malice, as that term is used in section 47, subdivision (3), or, if the overriding constitutional privilege obtained, with actual malice as that term is defined in Sullivan. Malice that destroys the statutory conditional privilege and which is not inferred from communication (Civ.Code, § 48) appears to include hatred or ill will toward, or a primary intent to injure, the person defamed, knowledge of the falsity of, or no reasonable basis for believing the defamation to be true. (See Brewer v. Second Baptist Church, 32 Cal.2d 791, 797, 197 P.2d 713; MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 552, 343 P.2d 36.) Similarly, the actual malice required to defeat the overriding constitutional privilege has been defined in Sullivan as knowledge of the falsity of the defamation or a reckless disregard of whether it is false or not. (376 U.S. at 279–280, 84 S.Ct. at 725–727, 11 L.Ed.2d at 706–707; Kapellas v. Kofman, 1 Cal.3d 20, 28, fn. 6, 81 Cal.Rptr. 360, 459 P.2d 912.)
Under the due process clause of the Fourteenth Amendment to the United Stated Constitution and Article I, Section 7 of the California Constitution, before the distribution of the summer 1974 issue of ‘The Red Tide’ on the University High School campus could be constitutionally prevented by Principal Welch on the ground that it contained libelous material, he had to make a ‘fundamentally fair’ and reasonably complete (considering the stringent limitations of time)9 investigation to determine whether the facially libelous material was libelous ‘according to legal standards.’ (Cf. Goss v. Lopez (1975) 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725, 734.) This, we have demonstrated, he did not do because of the limited nature of his factual inquiry into the truth or falsity of the material at issue and because of the complete absence of any investigation by him as to whether the distribution of such material might be conditionally privileged.10
Accordingly, we hold that plaintiff has established in her first cause of action (distribution) her right to declaratory relief against defendants in accordance with the views expressed in this opinion.11 In particular, we hold that Education Code section 10611 does not authorize the system of prior restraint involved in this case.
On the other hand, we do not perceive any basis for relief for plaintiff under her second cause of action (sale). Here she did not state a cause of action because it is nowhere alleged in her first amended complaint that she has sold or intends to sell (as opposed to distribute) ‘The Red Tide’ or any other publication for that matter, on the University High School campus. She likewise failed to allege that she desires to purchase any such publication. Without such allegations plaintiff is not a party aggrieved by the enforcement of the defendant district's Rule No. 1251, banning the sale generally to pupils, among others, of all articles on school campuses. (See Klopstock v. Superior Court, 17 Cal.2d 13, 17—19, 108 P.2d 906; Parker v. Bowron, 40 Cal.2d 344, 350—352, 254 P.2d 6.)
The judgment is reversed and the case is remanded for further proceedings below consistent with this opinion. Costs on appeal shall be borne by the party incurring them.
I concur in reversal of the judgment.
If the majority opinion in fact holds that a system of prior restraint is, under appropriate circumstances, constitutionally permissible but that, in the case at bench, the restraint was not constitutionally exercised, I could concur in the opinion as written. Because I am unable to fully understand the substance of the opinion and the practical effect of the reversal contemplated thereby, I feel constrained to explain further what I consider to be the proper basis for the action taken by this court.
In my opinion the academic atmosphere existing at the high school level, not only permits of, but requires, the reasonable exercise of a measure of prior restraint by the school administrators upon the students' right of free speech if the educational process is to perform its basis function of teaching the young to live and associate with others as responsible members of society now and in the future. I agree with the majority's reading of Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, wherein it concludes that prior restraint as a method of prohibiting certain forms of student expression may be, under appropriate circumstances, constitutionally permissible. In my opinion Education Code section 10611, recognizing the right to free expression, limiting that freedom in certain specific instances and providing for the adoption of rules and regulations governing the conduct of such activity, is not constitutionally invalid per se. On the other hand I agree that any system of prior restraint or prohibition, even at this academic level, must bow to the constitutional requirement of due process. Thus, to be constitutionally exercised, any restraint on the students' right of free speech must preserve the right to a plenary hearing on the merits of the controversy and for review of the decision made by the administrator before the restraint could be properly exercised.
It appears that the decision against publication in the instant case was rendered without regard to this fundamental right. Resolution of the issue of whether the material sought to be published is in fact libelous according to legal standards or violates any of the other criteria condemned by the statute and/or administrative regulations dictates the need for a hearing. Minimum due process requires that the school administrator charged with making the decision promptly set a time and place for consideration of the libelous nature of the material and/or of its potential for so inciting ‘students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school . . ..’ (Ed.Code, § 10611.) Those whose testimony is necessary to a resolution of the issue should be invited to attend the hearing together with any others capable of furnishing information relative to the issue, i. e., in the case of libel ‘according to current legal standards,’ a person trained in the law. The potential libelor and libelee should be permitted to confront one another before the administrator under conditions reasonably calculated to elicit the truth. The conclusion reached following the hearing would serve a two-fold purpose. It would furnish a sound basis for the original decision regarding publication and a basis for review.
I have had considerable difficulty with this case because of the problems which all too often arise between effectuation of school administration bona fide aims in perfecting and protecting the educational process and the demands made by certain students and their advisors for first amendment and due process rights at this relatively early stage in life. It appears to me that only by administrative recognition of these rights in the educational process and by student understanding of the need for reasonable restraint upon the exercise of freedom of speech, can the educational goal be achieved.
With the foregoing in mind, I would hold that Education Code section 10611 establishes a permissible basis for a system of regulating student activity in the area of free speech but that the rules and regulations adopted pursuant thereto, in failing to provide for the due process requirements mentioned above, render the regulation constitutionally defective. The failure to afford due process in this case requires reversal of the judgment.
1. The district is only a nominal defendant for the Los Angeles City Board of Education. (See Ed.Code, § 1002.)
2. Earlier in the school year two other issues of this publication had been approved and distributed on the University High School campus.
3. The offending paragraph read in full as follows: ‘Also during the course of this meeting, Hobbs stated a number of lies, 1) that the no hats in class rule was made both by students and teachers, and not by him, 2) that the hats question is neither a frequent or heated subject of debate in faculty meetings and in fact the faculty is generally in support of the no hats rule, 3) that student council has never made any attempt to change this rule, and 4) that the faculty and students are generally in support of this rule.’
4. Principal Welch did reach by telephone on this Friday Assistant Principal Chris Caras of Locke High School who, on inquiry, told Welch that the statements attributed to Principal Hobbs in the article, if made by him, were in fact true.
5. Principal Hobbs was sure that he had said to Larry Robinson, a student at his high school and a former student at University High School, the statement numbered (1) in the article and that part of the statement numbered (2) to the effect that the faculty is generally in support of the no hat rule. He did not recall making to Larry Robinson the remainder of the statements attributed to him, although he conceded that it was possible that he might have said words to this effect.
6. This section added by Stats.1971, chapter 947, page 1854, section 3, has always read ‘[s]tudents of the public schools have the right to exercise free expression including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, and the wearing of buttons, badges, and other insignia, except that expression which is obscene, libelous, or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school, shall be prohibited.‘Each governing board of a school district and each county superintendent of schools shall adopt rules and regulations relating to the exercise of free expression by students upon the premises of each school within their respective jurisdictions, which shall include reasonable provisions for the time, place, and manner of conducting such activities.’
7. The guidelines for student expression on the campus, adopted by the State Board of Education on October 15, 1971, contain the following statement: ‘There should be no prior censorship or requirement of approval of the contents or wording of the printed materials related to student expression on campus.’
8. The forms of student expression prohibited by Education Code section 10611, other than that which is ‘obscene, libelous or slanderous according to current legal standards' may be within the categories of such expression to which prior restraint may be constitutionally applied under the First and Fourteenth Amendments. We refer to student expression ‘which so incited students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.’ We do not, however, so decide. The Legislature may wish to consider amending this section to make prior restraint applicable to such situations.
9. The applicable University High School regulation allowed the principal 24 hours for this decision. We do not fault the principal, however, upon the amount of time he took to make his investigation in this case. We fault him only on the extent and the one-sided nature of his investigation.
10. It would seem that the constitutionally prudent way to proceed in prohibiting the distribution of libelous material in student underground newspapers by students on high school campuses would be to require their prior submission to the appropriate school authorities for informational purposes only and if any question arose thereafter as to such a paper containing such material the matter could be handled by appropriate disciplinary proceedings embodying the rudiments of due process suggested in Goss v. Lopez, supra, 419 U.S. at 577—584, 95 S.Ct. at 738—741, 42 L.Ed.2d at 737—740. Where district policies are involved, as in this case, provision for district review of such disciplinary proceedings would appear to be in order. (See Shanley, supra, 462 F.2d at 977—978).
11. We see no basis for monetary relief, however. because none was established in the trial court. As will be seen from what we are about to say respecting plaintiff's purported second cause of action and the posture of the case otherwise, we do not believe that plaintiff is entitled as of this time to any injunctive relief.
COBEY, Associate Justice.
POTTER, J., concurs.
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Docket No: Civ. 45538.
Decided: September 30, 1975
Court: Court of Appeal, Second District, Division 3, California.
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