A student’s right to receive information in the public school library: An exploration of the Supreme Court’s Pico decision
The only Supreme Court case to address the nature and scope of a student’s First Amendment right to receive information in a public school library is Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico (1982). Pico affirms that students do have a right to receive information in their school libraries. However, the dissenting justices in Pico raise several strong objections to the plurality opinion. These objections call into question the legal coherence of the Pico decision. Moreover, Peltz (2005) fears that Pico may be undermined by future Supreme Court decisions that attempt to align Pico with more recent rulings that weaken the free speech rights of students. In this article, the author discusses these “problems with Pico” and clarifies the scope and durability of a student’s right to receive information in the public school library. He concludes that Pico is indeed a legally problematic decision with an uncertain future. Based on precedents set by Bethel School District v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), U.S. v. American Library Association (2003), and Morse v. Frederick (2007), Pico is likely to be overturned or substantially weakened the next time the Supreme Court rules on the rights of students in public school libraries.
Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico (1982) is the only Supreme Court decision that directly addresses a student’s First Amendment right to receive information in a public school library. The plurality in Pico found that students do have a right to receive information in the public school library. That right constrains decisions to remove items from the library. Specifically, public school librarians and school officials may not remove items from the library with the intent to suppress ideas. By affirming students’ right to receive information, Pico gives students some leverage against school decisions to censor materials in the school library. Pico, however, raises certain problems with respect to its logical consistency and its compatibility with later rulings on students’ First Amendment rights and patrons’ rights in public libraries. This paper will examine the challenges to Pico and what they mean for a student’s right to receive information in the public school library.
In Pico, a school board removed books from the district’s school libraries because it found them “anti–American, anti–Christian, anti–Semetic [sic], and just plain filthy” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 857). Students brought suit against the school board claiming their First Amendment rights had been violated. The case made it to the Supreme Court, where a plurality found that removal of books from a school library violates the First Amendment rights of students if that removal was motivated by the intent to suppress ideas. The plurality opinion in Pico affirms that students have a right to receive information in the school library. Taken as a whole, however, Pico is far from an unambiguous endorsement of student rights. Out of nine justices, four wrote dissenting opinions against the plurality decision. The dissenting justices raise several, strong objections to the claim that students have a right to receive information. These objections call into question the legal coherence of the Pico decision and suggest the need for a critical appraisal of a student’s right to receive information. In addition to these theoretical questions, Pico may face a more practical problem: will it be undermined by future Supreme Court rulings? Just as the Court has weakened students’ free speech rights since Pico, Peltz (2005) argues that the same may happen to a student’s right to receive information. The purpose of this article is to explore these two issues: (1) Pico’s coherence and validity in a legal sense, and (2) Pico’s future durability. This discussion will help clarify the nature and scope of a student’s right to receive information in the public school library. Ultimately, it will be shown that Pico is both problematic and threatened. It is problematic because the plurality ruling is inconsistent with the principle used to justify that ruling. Even though a right to receive information (as articulated by Pico) is constitutional, that right can only be offended by removal decisions in the library. According to Pico, a student’s right to receive in no way constrains selection decisions in the library or school decisions regarding classroom curricula. As discussed below, this restriction is logically inconsistent with the core constitutional principle that justifies the right to receive information, i.e., the prohibition against state–sponsored censorship.
Pico is threatened because the rights affirmed by Pico are incompatible with later Court rulings on the First Amendment rights of students in schools and adults in public libraries. The Court granted students robust First Amendment rights in its landmark Tinker decision in 1969. However, several Court rulings since Tinker have significantly weakened a student’s right to free speech. In addition, the Court implicitly denied that adults have a right to receive information in U.S. v. American Library Association (2003). Given these precedents, a student’s right to receive information as affirmed by Pico stands as an anomaly, inconsistent with the diminished First Amendment rights of both students in schools and adults in public libraries. The next time the Court decides a case involving the rights of students in public school libraries, it will likely attempt to resolve this anomaly by limiting — if not denying — a student’s right to receive information.
Justice Brennan wrote the opinion for Pico’s slim plurality, affirming that students have a right to receive information in the public school library. Brennan’s opinion is founded on the principle that students do have First Amendment rights in schools. As Brennan points out (citing Tinker v. Des Moines School District), “students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 865). He argues that these speech rights naturally implicate a corresponding right to receive information and ideas (pp. 866-868). Given schools’ inculcative function and discretion over curriculum, this right to receive information has limited (if any) application to the classroom. In Brennan’s own words, “Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values” (p. 869). According to Brennan, however, the school library is a “regime of voluntary inquiry” fundamentally different from the “compulsory environment of the classroom” (p. 869). He notes that the
use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self–education and individual enrichment that is wholly optional. (p. 869)As a setting intended for “expressive activity,” Brennan argues that students have robust First Amendment rights in the school library.
Given that (1) students have a right to receive information and (2) this right is uniquely protected in the school library, Brennan next asks: how does this right limit school discretion in the operation of the school library? To answer this question, he cites significant case authority supporting the view that the First Amendment prohibits school policies that suppress ideas and attempt to establish a “pall of orthodoxy” in the classroom (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, pp. 870-871). Quoting from Tinker, he notes that “students may not be regarded as closed–circuit recipients of only that which the State chooses to communicate” (p. 868).
According to Brennan, this general prohibition against indoctrination constrains removal decisions in school libraries. Specifically, it prohibits the removal of books from the school library with the intent to suppress ideas. Given that books may be removed from libraries for a variety of legitimate reasons, removal per se is not a violation of student rights even if ideas are suppressed as an indirect and unintended consequence of the removal. The school cannot, however, remove books with the intent to suppress those ideas. As Brennan explains,
Our Constitution does not permit the official suppression of ideas. Thus, whether petitioners’ removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution. (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 871)
Justice Blackmun joined the plurality, though he did not entirely agree with Brennan’s reasoning. For Blackmun, the relevant constitutional principle was “both narrower and more basic than a ‘right to receive information’” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 878). Rather than a right to receive information, Blackmun argued that the suppression of ideas constituted the essential issue in the case: “the State may not suppress exposure to ideas — for the sole purpose of suppressing exposure to those ideas — absent sufficiently compelling reasons” (p. 877). If the school’s actions were motivated by an attempt to suppress ideas, then those actions violated the Constitution. According to Blackmun, this would be true whether the suppression took place in the library or the classroom. Blackmun, then, found it unnecessary to protect constitutional principles by positing a student right to receive information or by drawing a qualitative distinction between the school library and the classroom.
Much of Brennan’s opinion in Pico is concerned with justifying the constitutional legitimacy of a right to receive information. The dissenting justices find Brennan’s arguments unconvincing and supply an extensive list of objections to the claim that a right to receive information exists. One of the strongest of these objections concerns the constitutional basis for a right to receive information. According to Chief Justice Burger, there is no constitutional warrant for a “right to receive information” (as described by Brennan) (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 887). The First Amendment only guarantees a right of expression; it contains no reference to a right to receive information. Though Burger concedes that several case opinions include references to a right to receive information, this right is a direct corollary to the right to express one’s self and only pertains to situations in which a speaker asserts a right to express. As Justice Rehnquist notes in his dissenting opinion, in order for this right to apply to libraries, one must “contend that all authors have a constitutional right to have their books placed in junior high school and high school libraries” — a condition that as Rehnquist notes is “ludicrous” (p. 912). Kennedy (2005) points out that a right to receive information entails nothing more than a prohibition against the government placing obstacles to communication between a speaker and a receiver. This appears to support the claim that a right to receive information does not apply to school libraries because authors are not asserting a right to express themselves in those libraries.
This criticism is aimed specifically at Brennan’s opinion, but it is also applicable to Blackmun’s. Recall that Blackmun avoids positing a right to receive information by limiting the relevant constitutional principle to a prohibition against the suppression of information with the intent to suppress ideas. It may appear, then, that Blackmun escapes Burger’s critique since he never claims that a right to receive information exists. However, the principle that Blackmun defends — a constitutional prohibition against the intentional suppression of ideas — presupposes an implicit right. In situations implicating the First Amendment, the Constitution is violated when a right is violated. A right of some kind is therefore implied by a constitutional prohibition against the suppression of ideas. Specifically, Blackmun’s position entails that students have a right to not be subjected to policies that suppress ideas (with intent) and constitute indoctrination into an orthodox viewpoint.1 Since such a right is not explicitly established by the Constitution or past precedent, Burger’s critique applies to both Brennan’s and Blackmun’s opinions.
We may now turn to the merit of Burger’s argument. Is it true that there is no Constitutional warrant for a right to receive information? While it is certainly the case that such a right is not mentioned in the Constitution, a right to receive information is constitutional in the sense that it is a legitimate extension of explicit First Amendment rights. Much of Brennan’s opinion is concerned with justifying that extension. Brennan’s complete argument need not be summarized here. In defense of a right to receive information, his key points are:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . . If there are any circumstances which permit an exception, they do not now occur to us. (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 870)As Brennan shows, this principle applies to schools. According to Tinker, “In our [educational] system, students may not be regarded as closed–circuit recipients of only that which the State chooses to communicate” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 868). Blackmun cites this passage from Keyishian v. Board of Regents: “the First Amendment . . . does not tolerate laws that cast a pall of orthodoxy over the classroom” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 877).
Since suppressing ideas is a means of “casting a pall of orthodoxy,” a general, constitutional prohibition against state attempts to establish an orthodox viewpoint implies that censorship or the suppression of information with the intent to suppress ideas is also unconstitutional. In the context of schools, this means that students have a right not to be subjected to this type of suppression of information. Such a right is precisely how the right to receive information is defined in Pico. A student’s right to receive information is violated when schools remove items from the library with the intent to suppress ideas. This makes the right to receive information functionally equivalent to a right to be free of state–sponsored censorship. If state–sponsored censorship is unconstitutional, then a right to receive information (as defined by Pico) is established by the Constitution.
Brennan’s arguments in favor of a student’s right to receive information in the public school library are supported by Justice Souter’s dissenting opinion in U.S. v. American Library Ass’n, Inc. (2003). Though Souter is specifically referring to the rights of public library patrons, his remarks also apply to students in school libraries. As Souter explains,
In practical terms, if libraries and the National Government are going to be kept from engaging in unjustifiable adult censorship, there is no alternative to recognizing a viewer’s or reader’s right to be free of paternalistic censorship as at least an adjunct of the core right of the speaker. (U.S. v. American Library Association, Inc., 2003, p. 244, n. 8)As noted above, a “right to be free of paternalistic censorship” is in practice equivalent to Brennan’s right to receive information, though for students it would be subject to limitations imposed by the school environment and students’ status as minors.
In Pico, Brennan uses examples to lend further support to a student’s right to receive information:
If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all–white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, pp. 870-871)In American Amusement Machine Association v. Kendrick (2001), Judge Posner gives another extreme — but in this case historical — example to demonstrate the importance of accepting and protecting a student’s First Amendment right to receive information: “The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion” (p. 577). These examples do not prove that students have a right to receive information. They do, however, inspire a sense of injustice that even Justice Rehnquist finds persuasive. Rehnquist “cheerfully” admits that Brennan’s hypothetical example would indeed constitute a violation of student rights (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 907). If this is the case, it entails that students do have a First Amendment right to receive information. Yet Rehnquist denies that such a right exists. Brennan’s example is so convincing it leads Rehnquist to “cheerfully” contradict his own denial that a right to receive information exists.
As discussed above, the right to receive information is limited to school libraries and to removal alone. Do these restrictions make sense? A right to receive information is in part based on a constitutional prohibition against state attempts to suppress information with the intent to suppress ideas (often identified with state–sponsored attempts to establish an orthodox viewpoint motivated by a partisan or political agenda). If the Constitution prohibits the establishment of such a state–sponsored orthodoxy, even in schools, there does not seem to be any logical reason why the right to receive information should exclude school classrooms and the selection of materials in the school library. The school library is not the only place where school authorities might attempt to establish an orthodox viewpoint. As Justice Burger points out, “It would appear that required [classroom] reading and textbooks have a greater likelihood of imposing a ‘pall of orthodoxy’ over the educational process than do optional reading [in the school library]” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, pp. 892). Moreover, selection decisions — in the classroom or the library — can be used to establish an orthodox viewpoint just as much as decisions to remove materials. The limits Brennan places on a right to receive information appear inconsistent with the constitutional principles that justify the right. Rehnquist is not without some justification when he remarks that
This right [to receive information] is a curious entitlement. It exists only in the library of the school, and only if the idea previously has been acquired by the school in book form. It provides no protection against a school board’s decision not to acquire a particular book, even though that decision denies access to ideas as fully as removal of the book from the library, and it prohibits removal of previously acquired books only if the remover “dislike[s] the ideas contained in those books,” even though removal for any other reason also denies the students access to the books. (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 910)
Brennan was no doubt aware of these problems. Why, then, did he place these limitations on a right to receive information? Brennan gives several, unconvincing reasons to limit a right to receive to removal in libraries. For example, he seems to suggest that the facts of the case dictate the scope of its potential application. Since the facts concern the removal of books in school libraries, Brennan claims that “Our adjudication of the present case . . . does not intrude into the classroom, or into the compulsory courses taught there” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 862). Neither does it concern the “acquisition of books” (p. 862). In other words, because the case involves removal of materials in a school library, the Court’s ruling on the case will only apply to that specific situation (i.e., other cases involving censorship in school libraries). Elsewhere in his opinion, Brennan points out that the relevant constitutional principle concerns suppression of ideas (with intent). A right to receive information therefore only applies to the removal of materials since removal is a direct form of suppression. In Brennan’s own words, “Because we are concerned in this case with the suppression of ideas, our holding . . . today affects only the discretion to remove books” (pp. 871-872). Finally, Brennan restricts a right to receive information to libraries based on what he believes is a qualitative distinction between school libraries and the classroom. Whereas the former is a site of voluntary, expressive activity, the latter is compulsory and charged with the function of inculcating community values.
None of these justifications are persuasive. First, the relevance of a constitutional principle is not limited by the facts of the case in which that principle is applied. If a right to receive information is in part based on a constitutional prohibition against state sponsorship of an orthodox viewpoint, that right is violated in any context in which the state attempts to establish an official orthodoxy motivated by political or partisan bias. The fact that in Pico that right happens to be violated in the library through the removal of books is immaterial to the fact that there may be other contexts where a right to receive information might also be violated — specifically, through selection decisions in the library and/or through selection or removal of materials in the classroom.
One of Brennan’s own examples supports this conclusion. As evidence that students do indeed have a right to receive information in the library, Brennan uses the hypothetical example of a school board ordering the removal of all books by Republicans from its libraries. Brennan notes that in this situation “few would doubt that the order violated the constitutional rights of the students” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, pp. 870-871). Brennan’s example, however, is just as applicable to the classroom and to selection in the school library. Imagine if (1) a school board ordered all books by Republicans removed from classrooms or (2) ordered the librarian of a new school to never select materials by Republicans. Both actions appear just as offensive to the Constitution as Brennan’s example focusing on book removal.
Brennan’s attempt to limit the right to receive to the school library and not the classroom is also problematic. According to Brennan, the right to receive information “is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 867). Likewise, Brennan establishes that students have a First Amendment right to express in school (not just in the library). If the right to receive information is a corollary to a right to free speech, the former should be co–extensive with the latter. In other words, students should have the right to receive in the school, and not just in the school library. Brennan also claims that the constitutional prohibition against establishing a “pall of orthodoxy” in the classroom supports a student’s right to receive information. If the constitutional principle that justifies a right to receive information includes the classroom, why would the right to receive information be limited to the school library? Brennan himself explains that “the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment” (p. 864). It makes little sense to limit such a “transcendent imperative” to the library and not the classroom. Brennan’s own precedents for the existence of a right to receive point to its application to the school in general (including classrooms), not just school libraries.
Blackmun’s opinion avoids at least one of these problems. Blackmun rejects the distinction between the library and classroom. Focusing on the constitutional prohibition of state sponsorship of an orthodox viewpoint, he recognizes that such a principle applies to the classroom just as much as the school library. And while he justifies a restriction to removal for evidentiary reasons,2 he also expresses “some doubt that there is a theoretical distinction between removal of a book and failure to acquire a book” (Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 1982, p. 879, n. 1).
Blackmun’s reasoning is an improvement over Brennan’s, though his appeal to evidentiary reasons to justify a restriction to removal is problematic. It may indeed be much more difficult to prove a conspiracy to establish an orthodox viewpoint through selection as opposed to removal. Nevertheless, the possibility that selection could be used for that purpose means that selection policies and decisions could violate constitutional principles. To imply otherwise would entail tacit approval of a school board’s decision to direct its librarian to only select items for the library that were (for example) pro–American.
Pico’s dissenting justices are correct, then, that the plurality’s opinion suffers from a serious inconsistency. If the right to receive information stems from a constitutional prohibition against the suppression of ideas (motivated by a political or partisan agenda), it should encompass selection just as much as removal, the classroom just as much as the library. Pico does give students the ability to resist censorship in the school library. But by restricting a right to receive information to the removal of books in school libraries, students may be unable to resist positive efforts at politically–motivated indoctrination in the classroom and/or through selection decisions in the library. Pico fails to articulate a coherent and sufficiently robust right to receive information, i.e., one that applies to both the classroom and the selection of materials in the library.
Regardless of the problems a right to receive information may suggest in theory, Pico’s affirmation of a student’s right to receive information has exercised significant influence on lower court decisions (Peltz, 2005). For example, in 2006, Judge Gold ruled in favor of the ACLU and other plaintiffs against the Miami–Dade County School Board based in large part on the precedent set by Pico (American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., 2006). In this case, a school board ordered the removal of an entire set of children’s books from schools and school libraries because the books portrayed “inaccurate” (according to the school board) information about Cuba. Judge Gold found that the board’s actions violated the rights of elementary school students and ordered the books returned to the schools. (As an aside, one of the issues at stake — as in Pico — was the board’s irregular procedures which violated students’ right of due process.) Given cases like these, students appear to have solid grounds for asserting their First Amendment right to receive information in the school library.
This example notwithstanding, Peltz (2005) believes that Pico is threatened. The more conservative orientation of the Supreme Court since Pico has resulted in a series of rulings that favor school authority over student First Amendment rights. These rulings have progressively diminished the expressive rights of students. Given that the right to receive information affirmed by Pico is a corollary to the right to express, it seems reasonable to conclude that greater restrictions on students’ right to express will eventually entail greater restrictions on students’ rights to receive information.
As Peltz (2005) explains, Tinker v. Des Moines Indep. Community School District (1969) forcefully upheld the First Amendment rights of students within the necessary constraints of a school setting. Based on Tinker, students have strong First Amendment rights to express unless the expression disrupts the educational mission and activities of the school. Peltz notes, however, that subsequent court decisions have substantially eroded these rights. Bethel School District v. Fraser (1986) upheld the rights of schools to restrict student speech when that speech is vulgar or obscene. Hazelwood v. Kuhlmeier (1988) affirmed the right of schools to restrict student speech in a school–sponsored newspaper based on “legitimate pedagogical concerns” (p. 273).3
Fraser and Hazelwood substantially expanded the discretion of school authorities to regulate student speech. Student speech no longer needed to be disruptive to school activities to justify restriction. At least with respect to curricular and school–sponsored activities, school authorities only need to cite “legitimate pedagogical concerns” to justify the suppression of student speech. The Fraser and Hazelwood decisions, however, do not necessarily overrule Tinker. Since Fraser and Hazelwood both apply to the curricular domain, Tinker should (in theory) still apply to extracurricular activities. The contrasting applications of Tinker and Fraser/Hazelwood create what Peltz (2005) refers to as the “Tinker–Hazelwood dichotomy”: robust student speech rights in the extracurricular domain (following Tinker) as opposed to much more limited student speech rights in the curricular domain (based on Hazelwood and Fraser). Peltz argues that this Tinker–Hazelwood dichotomy has important implications for student rights in school libraries.
Peltz (2005) explains the implications of the Tinker–Hazelwood dichotomy on Pico using public forum analysis. Briefly, the courts recognize four types of forums when considering First Amendment issues: public forums, designated public forums, limited public forums (a sub–category of designated public forums), and nonpublic forums. In all four, restricting speech with the intent to suppress a viewpoint4 is a violation of First Amendment rights. In other respects, a government actor may restrict speech to varying degrees depending on the type of forum under consideration.
Public forums are areas that historically have been used for free expression. The paradigmatic example of such a forum is a public park. With the exception of time, place, and manner restrictions, the government’s ability to regulate speech in a public forum is severely limited. Speech restrictions in public forums are constitutional only if they satisfy “strict scrutiny” criteria: the restriction must serve some compelling government interest and it must be narrowly tailored such that its restrictions do not extend beyond the speech being regulated. In practice, very few restrictions on expression satisfy these criteria, and so restrictions on speech in public forums are almost always ruled unconstitutional.
Designated public forums are those forums that have been established by the government for the purpose of facilitating expressive activity in general. The courts treat a designated public forum much like a public forum: any content restriction is subject to strict scrutiny. However, when a designated public forum is created as a site or avenue for a specific type(s) of expression it becomes a limited public forum. In a limited public forum content restrictions may be constitutional if those restrictions apply to forms of expression falling outside the stated or implied purpose of the forum. (The purpose of a forum may not be explicit but inferred by the court from the history of expressive activity in that forum.) In that case, a restriction on speech merely has to satisfy rational basis review: the government actor has to show that the restriction is a rational means of realizing a legitimate government interest. On the other hand, if the restriction applies to expression consistent with the purpose of the forum, that restriction is subject to the same level of scrutiny applied to public forums (i.e., strict scrutiny).
In contrast to public, designated, and limited forums, the state has the greatest discretion to limit speech in nonpublic forums, i.e., forums not created with the specific intent to facilitate expressive activity. (Prisons and military bases are typical examples of nonpublic forums.) In nonpublic forums, content restrictions are generally constitutional provided they satisfy rational review criteria.
How does public forum analysis apply to Pico and the Tinker–Hazelwood dichotomy? According to Peltz (2005), the extracurricular domain is comparable to a limited public forum, in which a school’s suppression of student speech is more likely to be subject to strict judicial scrutiny. In contrast, following Fraser and Hazelwood, the curricular domain is a nonpublic forum in which school authorities have greater discretion to regulate student speech as long as this regulation is not motivated by the intent to suppress a viewpoint. For Peltz, this means that Pico’s affirmation of strong student rights in the school library can only stand if the school library is considered extracurricular and, therefore, a limited public forum. To whatever degree the school library is defined as curricular, student rights are eroded (following Hazelwood and Fraser) and Pico is undermined.
According to Peltz (2005), the decision in U.S. v. American Library Association (2003) has additional, ominous implications for student rights in the school library. ALA concerned the constitutionality of the Children’s Internet Protection Act (CIPA). CIPA requires libraries that receive certain types of federal funding to install internet filtering software on their computers. The issue addressed by the Court concerned the constitutionality of such filtering. Specifically, are filtering programs on library computers a violation of the First Amendment? The Court found that CIPA is not a violation of the First Amendment. In relation to Pico, two points about ALA are noteworthy. First, ALA explicitly denies that public libraries are either public forums or designated public forums, implying instead that libraries are nonpublic forums. Based on ALA, then, patron rights are guaranteed only minimum First Amendment protection. This position stands in contrast to Brennan’s Pico opinion, which suggests that the public school library is a designated public forum.5 Second, ALA addressed the constitutionality of CIPA without considering a patron’s right to receive information. Rather, the plurality limited its analysis to the First Amendment, expressive rights of web publishers. By avoiding the possibility that CIPA might violate a patron’s right to receive, the Court’s plurality implicitly denied that such a right exists.
As Peltz (2005) points out, the ALA decision leads to a paradoxical conclusion in relation to Pico: students in school libraries have stronger First Amendment protection than adult patrons in public libraries. This inconsistency poses a potential threat to Pico. Even though Pico has (somewhat surprisingly) exerted a strong influence on lower court decisions, it seems unlikely that the Supreme Court will accept the inconsistency between Pico and ALA. What is “true” of the public library (according to the Supreme Court) must be true of school libraries as well. If anything, students — as minors within the more restrictive atmosphere of the school — should have more limited rights than adult patrons of public libraries. It seems likely that at some point (whenever another school library case makes it to the Supreme Court) an attempt will be made to harmonize Pico and ALA. Like the public library, the school library as a library (regardless of its curricular or extracurricular status) may be declared a nonpublic forum, giving school authorities greater discretion to regulate student speech. Moreover, following ALA, a student’s right to receive information may be either ignored or denied.
Peltz’s (2005) concern for the future of Pico is valid, but not (primarily) for the reasons he thinks. The problem with Peltz’s analysis concerns his application of public forum analysis to Pico and the extracurricular–curricular distinction. Brennan’s opinion in Pico turns out to have contradictory implications from the perspective of public forum analysis. On the one hand, Brennan is careful to describe the school library as a place of expressive activity and voluntary free inquiry qualitatively different from the compulsory environment of the classroom. If the school library’s function is to facilitate “expressive activity” (broadly defined), this would seem to indicate that the library is a limited public forum.6 Even though the library is a site of voluntary, expressive activity, however, Brennan also makes it clear that student rights are constrained or mitigated in the school library by three factors: (1) students are minors and therefore have fewer rights than adults, (2) schools serve an inculcative function which requires school authorities to exercise broad discretion over school affairs, and (3) libraries remove books as part of their routine operations. Given these three factors, a student’s right to receive information in the school library turns out to be quite limited. It is only violated when books are removed with the intent to suppress ideas. This standard, however, is inconsistent with the level of scrutiny applied to limited public forums, in which viewpoint discrimination is completely prohibited and content exclusion may be subjected to strict scrutiny review. The Pico criterion is roughly equivalent to the criterion associated with a nonpublic forum, in which strict scrutiny is only used to evaluate regulations motivated by the intent to suppress a viewpoint. Pico, in fact, articulates legitimate reasons for removal that echo the “school as nonpublic forum” criteria of Fraser and Hazelwood. For example, compare Blackmun’s claim that items may be removed from the library because of “educational unsuitability” to Hazelwood’s justified suppression of student speech based on “legitimate educational concerns” (Peterson, 2005, p. 936). In opposition to Peltz, then, Pico is not threatened by the possibility that the school library will be found to be a curricular, nonpublic forum and therefore come under the influence of Fraser and Hazelwood. Pico already defines a standard of scrutiny consistent with nonpublic forums. Consequently, defining the school library as extracurricular is immaterial to the First Amendment rights of students to receive information in the public school library.
Peltz’s analysis is flawed, but he is correct that Pico is threatened. The threats to Pico are twofold. The first threat is the precedent set by ALA. As discussed above, ALA implicitly denies that patrons have a right to receive information. If the Court believes that adults do not have a right to receive information in the public library, it is doubtful the Court will affirm such a right for students the next time it decides a case involving student rights in the public school library. The second threat is posed by the Court’s ruling in Morse v. Frederick (2007). The Court’s decision in Morse continues the trend established by Hazelwood and Fraser — the progressive diminishment of students’ First Amendment rights. In Morse, a student (Frederick) was prohibited from displaying a banner that read “Bong Hits 4 Jesus” at a school–supervised event. He was also suspended from school for his refusal to take down the banner when requested to do so by the school’s principal (Morse). The student filed suit against Morse and the school board, arguing that his First Amendment right to free expression had been violated. The Court ruled against Frederick, finding that students do not have a right to speech that “encourage[s] illegal drug use” (Morse v. Frederick, 2007, p. 397). The Court’s decision expanded the discretion of schools to restrict student speech beyond the standards set by Tinker (i.e., schools may restrict student speech that disrupts school activities), Fraser (schools may prohibit students speech that is lewd or obscene), and Hazelwood (schools may regulate students speech based on legitimate pedagogical concerns). Morse adds yet another circumstance in which schools may prohibit student speech, i.e., whenever that speech promotes (or appears to promote) the use of illegal drugs.7 The parenthetical qualification — appears to promote — is significant. Frederick’s banner did not convey an explicit pro–drug message. Its meaning was ambiguous. The Court ruled against Frederick based on what the banner could mean. Schools, then, are not only authorized to prohibit speech that explicitly favors illegal drugs; they may prohibit ambiguous speech that merely appears to convey a pro–drug message.
Morse poses a potential threat to Pico in several ways. First, Morse could be used to justify censoring any material in the library that advocates (or appears to advocate) the use of illegal drugs. Following Morse, schools could prohibit “debate . . . about the wisdom of the war on drugs or of legalizing marijuana for medicinal use” (Justice Stevens, Morse v. Frederick, 2007, p. 445). A novel in the school library in which the characters smoke marijuana could be interpreted as advocacy by school authorities and, based on Morse, removed from the library.
In addition to its direct implications for Pico, Morse may indirectly undermine a student’s right to receive information. Morse provides the justification for significantly expanding a school’s discretion to regulate student speech. Even though Morse is technically limited to speech concerning illegal drugs, the reasoning used to justify this restriction has broader implications. The Court justifies its support of a school’s authority to suppress student speech about illegal drugs based on a concern for the safety of students.8 A concern for student safety, however, could apply to far more than drug use. An appeal to the safety of students could be used to justify the suppression of student speech concerning any potentially dangerous activity or situation. As Justice Stevens (Morse v. Frederick, 2007) rhetorically asks, “Under the Court’s reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers” (p. 446)? Even though the plurality limits its decision to speech concerning illegal drugs, the ruling could be used as a precedent to justify future Court decisions that expand a school’s authority to regulate student speech — and a student’s right to receive information — based on a general concern for the safety of students. Of course, both the Court and school authorities should be concerned for student safety. The problem, however, is that “ensuring student safety” may serve as a very broad justification for suppressing student speech (or a student’s right to receive) when there is in fact little evidence of imminent harm or danger. Morse v. Frederick is itself an example of this possibility. As Stevens (Morse v. Frederick, 2007) argues in his dissent, the claim that Frederick’s banner constitutes a danger to students — that it would inspire non–marijuana smokers to start smoking marijuana — is highly improbable.
Morse poses another potential threat to Pico. The Morse standard authorizes — or potentially authorizes — the suppression of a viewpoint.9 Based on Morse, schools may prohibit speech that encourages the use of illegal drugs. A speaker who encourages others to use illegal drugs certainly appears to be expressing a viewpoint. However, even if we restrict the meaning of “viewpoint” to political speech alone, the Morse standard would authorize viewpoint suppression since certain forms of political speech — e.g., the claim that marijuana should be legalized — could be interpreted as encouraging the use of illegal drugs. One of the bedrock principles of First Amendment jurisprudence is protection against viewpoint suppression. This protection is somewhat mitigated by the special conditions of schools, as set forth in Tinker and Hazelwood.10 Nevertheless, the Court has continued to affirm the principle set forth in Tinker, i.e., that students do not shed their constitutional rights at the schoolhouse gate. If students have First Amendment rights, the fundamental form of those rights is the freedom to express and receive a viewpoint. That right can only be abridged if the restriction on speech satisfies strict scrutiny criteria. The state must demonstrate that it has a compelling interest in prohibiting such speech, and the prohibition must be narrowly tailored to restrict only the speech in question. As Stevens remarks in his dissenting opinion (Morse v. Frederick, 2007), “censorship based on the content of speech, particularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification” (p. 436). The plurality, no doubt, feels that it has satisfied these criteria. The danger posed by drugs justifies a compelling state interest in suppressing speech that promotes the use of illegal drugs; the ruling is narrowly tailored because its prohibition applies only to speech concerning illegal drugs. As we have seen, however, both claims are questionable. It is highly unlikely that student speech concerning illegal drugs constitutes immediate incitement to use illegal drugs. For example, “The notion that the message on [Frederick’s] banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible” (Stevens, Morse v. Frederick, 2007, p. 444). The state’s interest in suppressing student speech is far from “compelling” without a convincing explanation of how that speech would incite imminent illegal activity. Neither is the standard narrowly tailored. The fact that the standard authorizes the suppression of student speech that merely appears to advocate the use of illegal drugs “suggests that the principle it articulates has no stopping point” (Stevens, Morse v. Frederick, 2007, p. 444). Student speech can be suppressed based on the subjective judgment of school authorities that the speech in question appears to advocate the use of illegal drugs. In addition, the justification for the standard — a concern with student safety — “could in fact authorize further viewpoint–based restrictions” (Justice Breyer, Morse v. Frederick, 2007, p. 426). The Court’s approach to viewpoint discrimination in Morse demonstrates its wide discretion to interpret strict scrutiny criteria. The right to receive information affirmed by Pico constitutes a form of protection against viewpoint discrimination. In light of Morse, however, the standards that should serve to uphold that right — strict scrutiny criteria — are unreliable. Morse suggests that the prohibition against viewpoint suppression may do little to protect a student’s right to express or receive information.
Morse has another implication for the Pico decision. Unlike Fraser and Hazelwood, which appear to apply to the curricular domain exclusively, Morse applies to the school in general. Early in his opinion, Chief Justice Roberts considers whether or not Frederick’s banner should be considered school speech. For Roberts, the issue at stake was not curricular vs. extracurricular, but school vs. not–school. The Court found that the case did involve school speech based on the circumstances of Frederick’s expression. Frederick unfurled his banner at a “school sanctioned,” “school–supervised” event (Morse v. Frederick, 2007, p. 396). In addition, “the event occurred during normal school hours” (p. 400). These criteria apply to the school library as much as the classroom or any other school event or activity. Morse’s negative implications for student’s First Amendment rights can not be mitigated by an appeal to the curricular vs. extracurricular distinction. The precedent set by Morse applies to any school–sponsored event or activity, including student activities in the school library.
In sum, Morse continues the trend established by Fraser and Hazelwood, and it does so in a way that renders the curricular–extracurricular distinction irrelevant. It sets the stage for the further expansion of school discretion to regulate student speech regardless of whether or not that regulation takes place in a library or a classroom and regardless of whether or not it suppresses a student viewpoint. Morse was decided in 2007, so it post–dates Peltz’s 2005 article. Peltz was not in a position to consider its implications for Pico. If he had, it might have significantly increased his pessimism regarding the future prospects for a student’s right to receive information.
With a slim plurality and seven different opinions, Pico should have had little, if any, influence on subsequent litigation in the area of student rights in school libraries. Against expectations, this has not been the case. Lower courts have consistently relied on Pico’s guidelines to rule in cases of book removal in libraries. Pico has also been cited in cases involving the rights of students in general.
The unexpected authority of the Pico decision, however, is tenuous. On the one hand, Pico affirms a right that reflects the minimum standard of First Amendment protection. In this sense, the rights of students to receive information should be secure. However, both ALA and Morse upset that expectation. ALA implicitly denies a right to receive exists. In this sense, a minimum standard of protection is irrelevant to Pico since it can not protect a non–existent right. But even if a right to receive were to survive ALA, Morse demonstrates the fragile status of that right. First, it shows the Court’s discretion in the application of strict scrutiny criteria to justify viewpoint suppression. Second, Morse supplies a justification for the suppression of student speech (a concern for student safety) that is widely applicable to diverse forms of communication and information. Based on Morse, the Court could affirm the school’s authority to censor information in the library if that censorship were motivated by a school’s concern for the safety of students.
In addition to ALA and Morse, the future of Pico depends on two more factors: timing and the political make–up of the Supreme Court. Pico will survive until the Supreme Court decides another case involving student rights in the public school library. It may be quite a while before that happens. How the Court will decide such a case will depend on its political orientation. There is little doubt that the current, conservative Court would use cases like ALA and Morse to substantially overturn Pico. However, the political orientation of the Court may change. The next case involving student rights in the library may be decided by a more liberal Court. In that instance, the precedents set by ALA and Morse may have little, if any, impact on Pico. If there is any hope for Pico, that hope rests in the unpredictable political orientation of a future Supreme Court. This possibility notwithstanding, the future prospects of Pico remain bleak given the precedents set by ALA and Morse. A student’s right to receive information in the public school library is unlikely to survive given the Court’s ongoing efforts to erode the First Amendment rights of students.
2See also Justice Souter’s remarks in U.S. v. American Library Assín, Inc., 2003, pp, 242-243 and Peltz, 2005, p. 147 (“book removal . . . [is] conveniently susceptible to judicial review because of its evidential transparency”).
5Pico predates the development of public forum analysis. Nevertheless, Brennan’s distinction between the school library as a site of “voluntary inquiry” as opposed to the compulsory environment of the classroom approximates the distinction between public or designated public forums and nonpublic forums.
6At least this seems to be the implication of Rehnquist’s analysis in ALA. Rehnquist argues that the public library is not a traditional or designated public forum because it is not a place designated to facilitate expressive activity (I interpret “designated,” to include limited, since limited is often construed as a type of designated). Rather, the library’s function (he claims) is the dissemination of materials of requisite and appropriate quality, making it (apparently) a nonpublic forum.
7As noted by Justice Stevens (Morse v. Frederick, 2007), the state may suppress speech that encourages illegal activity only if “the advocacy is likely to provoke the harm that the government seeks to avoid” (p. 436). This principle does not justify the prohibition sanctioned by Morse, since “It is . . . perfectly clear that promoting illegal drug use . . . comes nowhere close to proscribable incitement to imminent lawless action” (Justice Stevens, in Morse v. Frederick, 2007, p. 438, internal quotation marks omitted).
8The basis of the plurality decision is somewhat unclear (see Justice Stevens, in Morse v. Frederick, 2007, p. 441). Chief Justice Roberts relies on two points to justify the Court’s decision: (1) a compelling state interest to protect students from the dangers of illegal drug use, and (2) the declaration by Congress that “part of a school’s job is educating students about the dangers of illegal drug use” (Chief Justice Roberts, in Morse v. Frederick, 2007, p. 408). Roberts appears to indicate, however, that student safety is the basis of the decision while government mandates regarding anti–drug education in schools exemplify or confirm that compelling state interest to protect students from the dangers of illegal drugs (see Morse v. Frederick, 2007, p. 408). Unlike Roberts, Justice Alito makes it clear that the basis of the decision is “the threat to the physical safety of students” (Morse v. Frederick, 2007, p. 424).
9The issue at stake here concerns the implications of the standard affirmed by the Court, not the meaning of Frederick’s banner. In other words, Frederick’s own claim that the banner was meaningless does not change the fact that the standard affirmed by the Court authorizes schools to prohibit a form of meaningful speech that expresses a viewpoint, i.e., speech that advocates the use of illegal drugs.
Randall Studstill is a recent graduate from San José State University’s School of Library and Information Science. In addition to his MLIS, he holds a Ph.D. in Religious Studies and has taught surveys of Asian and Western religions as a part–time lecturer at San José State University. Dr. Studstill has published in the areas of mysticism and Buddhism. He can be contacted at email@example.com.