This paper was presented at the Association for Education in Journalism and
Mass Communication in San Francisco August 2006.
I am not the author. If you have questions about this paper,
please contact the author directly.
If you have questions about the archives, email rakyat [ at ]
eparker.org. For an explanation of the subject line, send email to
[log in to unmask] with just the four words, "get help info aejmc," in the
body (drop the "").
Commercial Speech in Public Schools:
Evaluating the First Amendment Rights of Advertisers
Joshua H. Godwin
Roy H. Park Doctoral Fellow
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
911 N. Columbia Street
Chapel Hill, NC 27516
[log in to unmask]
[log in to unmask]
A Student Paper Presented to the Law Division
AEJMC National Convention
San Francisco, CA
Commercial Speech in Public Schools: Evaluating the First Amendment
Rights of Advertisers
The past two decades have seen a tremendous influx of
marketing into public schools. From kindergarten to 12th grade,
schools are becoming increasingly commercialized as marketers seek
new ways to target the highly influential youth market.1 Advertisers
see children as a uniquely profitable three-in-one market: as buyers
themselves, as influencers of their parents' buying behavior and
decision-making processes, and as future adult consumers.2
In an era when brand building and recognition, customer retention
and loyalty, and lifetime value of the consumer have become pillars
of the marketing profession, in-school advertising has become a
fixture on public school campuses. In 1993, expenditures on
pre-college education represented 15 percent of all corporate
donations. This represented a 5,400 percent increase over the past 30
years, with the majority of those dollars dedicated to in-school
marketing efforts.3 More recent figures from a study conducted by the
Commercialism in Education Research Unit (CERU)4 indicate that
corporate sponsorships of school programs and activities5 increased
by 248 percent from 1990 to 2000. Over that same period, exclusive
marketing agreements increased by 1,384 percent, incentive programs6
grew by 231 percent, corporate-sponsored educational materials were
up by 1,875 percent, and appropriation of space on school grounds for
marketers increased by 539 percent, according to the CERU study.7
Chronic under-funding has left schools in dire need of
alternative fundraising solutions.8 Yet, the scope of recent
marketing efforts on school grounds has caused some to question
whether the ends justify the means. Without corporate involvement,
administrators have a dwindling supply of options available to them
in the ongoing battle to provide students with the resources required
for a quality education. The overall dollar amount required to
adequately educate each pupil has outpaced funding by nearly 20
percent over the past ten years.9 Add to that voters' unwillingness
to pass tax increases to properly fund school districts,10 and it
becomes clear why some cash-strapped school districts have come to
see in school advertising as a necessary evil, or as not evil at all.
While school districts have become relatively poor over the
past 20 years, the youth market has become relatively wealthy.11
Today's elementary-age children have tremendous spending power,
estimated at $15 billion a year. They also influence another $160
billion of spending controlled by their parents.12 Those numbers,
coupled with the fact that 43 million children spend up to 40 percent
of their waking hours in schools,13 make reaching kids in schools a
virtual necessity for marketers.
Regulation of in-school marketing has not kept pace with its
surge in popularity. Responsibility for the regulation of in-school
marketing has been passed from federal agencies to individual states
and ultimately on to local school boards. The federal government has
ceded much of its decision-making power on such matters to respective
state boards of education. States tend to shy away from such issues
as expensive, time-consuming, and best left to individual school
districts most familiar with their own needs.
The vagueness and inconsistency of the regulations governing
advertising in schools has caused confusion among already
overburdened administrators. This has led to cases in which the
districts have been forced to turn to the courts for resolution.
Responsibility for the regulation of in-school marketing has become a
hot potato that few decisional bodies seem eager to embrace.
Much of the popular, trade, and scholarly literature on this
topic focuses on advertising regulation from the perspective of
protecting students' interests. However, the First Amendment rights
of advertisers are often ignored. While commercial speech is not
afforded the same degree of protection political speech enjoys, it is
nonetheless protected by the First Amendment.14 Legal issues such as
captive audience, public forum, student privacy, and viewpoint
discrimination on protected speech are all central to the in-school
Therefore, the purpose of this paper is to examine the First
Amendment rights of advertisers to market their products on school
property and the regulation of commercial speech in schools. It will
identify and address the legal issues raised by advertising in
schools. This is an important topic because there is a void in the
scholarly literature with regard to the rights of advertisers in the
public school setting. Furthermore, attempts to regulate commercial
speech in schools have been laden with inconsistencies and warrant
This literature review examines scholarship on advertising to
children in public schools. It first focuses on the types of
advertisements in schools. An overview of the Channel One debate is
next detailed. Finally, this literature review outlines scholars'
legal concerns with regard to in-school advertising. The volume of
articles on this topic, approximately two dozen, serves as a
testament to the complexity of this debate.
Categories and Types of In-School Advertising
Society has recently seen not only a dramatic increase in the
number of advertisements in schools, but also in the variety of
tactics used to reach students in the classroom. Jef I. Richards
classified in-school marketing communications into five categories.15
Richards' list that included: 1) Direct advertising in schools 2)
Curricular involvement with brand identification, 3) Free or
discounted products, 4) Direct sale of products in schools, and 5)
Fund-raising activities in schools.
"Direct advertising in schools entails the presentation of
traditional forms of advertising in school settings," according to an
article by Richards.16 Direct advertising includes Channel One,
posters, billboards, ads on school buses, scoreboards, textbook
covers, telephones, kiosks, school lunch menus, in school newspapers
and yearbooks, on student radio broadcasts, and in bathrooms and
hallways.17 Such advertising has become ubiquitous, according to
Richards.18 Richards stated, "Today it is conceivable that students
could be exposed to advertisements when they are picked up by the
school bus, walk down the hallway in school, study in the classroom,
play on the playground, eat in the cafeteria, and ride the bus home."19
Curricular involvement with brand identification involves
corporations directly distributing brochures, lesson plans, videos,
films, computer software, and guest speakers to schools, according to
Richards.20 These include references to the sponsoring company, its
logo, or products. Other examples include case studies, in-class
experiments using a sponsor's products, and product placement in
textbooks.21 These are also known as Sponsored Educational Materials, or SEMs.
A range of practices including providing product samples,
coupons, proof-of-purchase vouchers, and in-school giveaways comprise
the free or discounted products category, according to Richards.22 He
stated, "These are becoming quite common. Both schools and students
now receive a multitude of free items from companies."23 Richards
listed coupon giveaways for free pizza, fast food, movies, and
personal hygiene products as the most common form of this type of
Direct sales of products in schools involve some of the major
players in the in-school marketing debate. Soft drink, snack chip,
and candy companies, whose products are now referred to by the
euphemism convenience foods, have been sold for decades in vending
machines in schools. Recent efforts to remove vending machines from
schools have caused the liveliest school commercialism debate since
Channel One. Highly lucrative exclusive soft drink contracts have a
long history in schools. So too do direct sale items such as Taco
Bell tacos, McDonald's cheeseburgers, and Pizza Hut pizzas, which
have come to dominate lunchtime at school cafeterias across the
country, according to Richards.25
Fund-raising activities have also seen a large increase in
corporate involvement, according to Richards.26 He said, "What was at
one time a practice to help support such things as the band's travel
expenses for a state contest is now used to support the purchase of
computer equipment or supplement the school's general budget."27 Once
involving selling candy bars or gift-wrap, fund-raising efforts have
come to include corporate giants such as Microsoft.28
It would be impossible to discuss commercial activity in schools and
not include what some view as the most creative of these attempts,
Chris Whittle's Channel One. "Perhaps no cooperative effort between
big business and the public school system has received more
attention," stated Jason Vaughn in an article for the Journal of Law
and Education. An article by Kathy Brittain McKee and Eric Haley
stated, "The emergence of Channel One has prompted great debate over
the proper role of commercial speech within the public school
environment."29 Channel One is unquestionably what brought the in
school advertising debate to the national stage. Many have expressed
deep concern over what they call a "Faustian bargain"30 and
marketing's "Trojan Horse."31
Cynthia Newsome stated in an article published in the Rutgers Law
Journal, "Because of the lure of 'free' audio visual equipment,
Channel One contracts have spread like wildfire throughout the
nation's schools." She continued, "Controversy over the program has
also spread quickly. Alarmed by the easy acceptance the program has
gained, opponents question the fairness, wisdom, and the legality of
trading the forced attention of impressionable teens for school equipment."32
Yet, Newsome also stated that Channel One advocates argue that the
equipment provided by Whittle modernizes schools and inspires student
learning at a low operating cost. Channel One's proponents point out
that advertising already pervades society, including the public
school system. Advocates of the program state, "Channel One did not
open the schoolhouse doors to commercialization; they were already
open," according to Christina Lee Dasinger.33
Some scholars have looked to Channel One's educational merits as a
barometer of how useful it is in the classroom. In her article,
"Students for Sale: The Regulation of Televised Commercial
Advertising in Public Schools" in the Law and Psychology Review,
Dasinger stated, "Whether the Channel One program is 'educational' or
'incidental to an educational purpose' so as to be allowed under most
state constitutions is an issue." Many states have provisions in
their constitutions that allow local boards to regulate in-school
commercial speech, such as Channel One, on the basis of its
educational utility. She continued, "Opponents argue that Channel One
is in conflict with the educational purposes for which school
districts were established. Advocates claim the program serves an
educational purpose and that the commercials are merely incidental to
that purpose, making them legal under most state constitutions."34
According to scholars, the courts have agreed that Channel One's
educational value is "sufficient" to justify its somewhat intrusive
Legal Issues Involved
Much of the scholarly literature on the legal issues regarding
advertising in schools focused on the history of commercial speech
law and the law on student speech rights. Scholars' statements
reflected the delicate, and often confusing, balance between
commercial speech law and the ability of the school to keep itself
free from messages it deems to be in conflict with its educational
purpose. McKee stated, "The temptation to protect school children
from the ploys and messages of marketers is great, and even though
certain restrictions and regulations are permissible under existing
laws and constitutional interpretations, some fear that educators
might go too far in their efforts to limit advertising on school premises."36
McKee continued, "From its earliest school-expression
rulings, the Supreme Court has marked the school environment as a
special setting for speech, noting that it is a state-created,
sustained world designed for the transmission of information and
values." According to Michael Hoefges and Milagros Riveria-Sanchez in
an article published in the Hastings Communication and Law Journal,
"Even with laudable regulatory goals, government does not have free
reign to restrict commercial messages."37 When ruling in cases
involving the regulation of in-school communications, the Court has
offered several tests for determining the constitutionality of such
regulations. McKee listed these as material and substantial
disruption, educational suitability, and reasonable basis.38 She also
included an analysis of the public forum doctrine as a fourth
component of the in-school advertising legal debate.
Citing Tinker v. Des Moines,39 McKee stated, "The Court ruled
that administrators can only intervene to suppress in-school speech
where there is evidence that material and substantial disruption of
the educational process will result because 'students do not shed
their right to freedom of speech or expression at the schoolhouse
gate'."40 According to McKee, the Tinker decision was used by lower
courts to protect the commercial speech rights of off-campus groups.
"Public school disruptions had to be documentable and likely under a
clear and present danger test before speech was prohibited under this
standard," stated McKee. According to McKee, "These rulings
suggested that both student-created and commercially-created speech
would be offered protection for dissemination within the public
school environment as long as it did not prove to be materially or
McKee's second test, educational suitability, rests on the Supreme
Court's rationale in deciding Board of Education v. Pico.42 In Pico,
a school principal removed nine books from a school library, eight of
which contained vulgarity or profanity.43 In the Court's decision,
five of nine justices agreed that any regulation of materials should
be based on educational suitability rather than content alone.44
However, in a concurring opinion, Justice Harry A. Blackmun said
school boards could restrict materials when there was an educational
basis for doing so.
Dissenting justices vigorously argued that school boards have an
overt responsibility to make content-based decisions and that those
decisions will be checked by local voters at elections. According to
McKee, "The division within the Court's ruling was evidence that the
Court was struggling to determine exactly what limitations could and
should be placed on school administrators', or other groups', power
to limit the introduction of controversial messages from those
outside the schools."45
The dissenting justices' opinions in Pico were echoed by the
majority opinion in Hazelwood School District v. Kuhlmeier, 46
according to McKee. The case involved a high school principal
removing two pages of material from a student newspaper that he found
to be unsuitable. The majority of justices ruled that the principal's
actions were reasonable and therefore constitutionally protected. The
Court said, "The First Amendment rights of students in public schools
are not automatically coextensive with the rights of adults in other
settings."47 McKee stated that the principal could impose a
reasonable basis test for regulation. "The Court ruled a school need
not tolerate speech that is inconsistent with its basic educational
mission," she said.48
McKee concluded, "Clearly there is substantial precedent for the
regulation of Channel One and other forms of commercially supported
speech within the doors of public schools."49 McKee stated that the
constitutionality of in-school advertising regulation will lie in the
application of the reasonable basis test for both commercial and
school-sponsored speech.50 However, she wrote that the educational
suitability test of Pico and the reasonable basis test of Hazelwood
suggested the Court was increasingly willing to regulate speech in
any arena in which it finds a substantial state interest.51
In an article for the Boston College Law Review, Benjamin
Wattenmaker wrote, "Traditionally the public forum doctrine has
ensured publicly-owned properties are available to citizens for
expressive activity."52 Wattenmaker outlined the three public forum
categories. They are traditional public forum, limited public forum,
and non-public forum. Each category provides varying degrees of
protection for expressive activities.53
According to Wattenmaker, traditional public forums are
places that "have immemorially been held in trust for the use of the
public and have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions."54
Government agencies may not prohibit expressive activity in
traditional public forums unless (a) the regulation serves a
compelling government interest, and (b) it is narrowly drawn to
achieve that end, according to Wattenmaker. "The state may also issue
regulations on public fora speech that restrict time, place, and
manner of expression, so long as the regulations do not discriminate
against the content of speech, are narrowly tailored to serve a
compelling government interest, and leave open alternative channels
The second category, limited public forum, consists of a
public property that the state has purposefully opened for use by the
public as a place for expressive speech by certain groups or for
discussion of specific topics.56 Once opened, limited public
forums are governed by the same restrictions as the traditional public forum.
The third category is non-public forum. In these forums,
according to Wattenmaker, the state may issue reasonable regulations
on speech that do not discriminate on the basis of the speaker's
viewpoint. "Nonpublic fora include government property that is
reserved for specific governmental purposes on the principle the
state has the power to preserve the property under its control for
the use to which it is lawfully dedicated,"57 stated Wattenmaker.
The public forum doctrine is central to the debate
surrounding in-school advertising controversy. In the context of
speech in public schools, the application of the public forum
doctrine has generally led to decisions in favor of the government's
ability to regulate speech.58 The Court has often found the medium in
question to be a nonpublic forum, thus affording schools great
Who has the power to determine if and how school advertising
can be regulated is a question that has sparked lively debate between
state and local authorities. "In considering these questions,
decisional bodies must address several unsettled issues of law,"
according to Newsome.60
In response to the Channel One controversy, state boards of
education have had to decide whether to formulate statewide policies
on the issue or defer to local discretion, said Newsome. In one
influential decision, North Carolina v. Whittle Communications,61 the
North Carolina Supreme Court took on the task of refereeing the
state/local power struggle.
North Carolina v. Whittle is a prime example of the
difficulties inherent in the state versus local authority debate,
according to Newsome. She stated, "Many state statutory schemes
provide only general guidelines for choosing non-textbook materials.
State provisions often grant supervisory control over a state school
system to the state board, and then invest authority over certain
curriculum choices in local bodies. This inevitably leads to
arguments over whether the local decisions remain under state
supervision."62 She concluded, "In the absence of legislation
governing the division of power between state and local authorities,
courts lack standards for resolving such disputes."63
The right to be free from unwanted speech is also critical to
in-school advertising regulation. Newsome stated, "This right must be
protected when the speech in question threatens an individual's
autonomy."64 However, in Public Utilities Commission v. Pollack,65
the Supreme Court considered a case based on privacy concerns similar
to those in the in-school advertising debate, according to Newsome.
In Pollack, several commuters claimed that commercial radio
broadcasts on public buses violated their First Amendment rights to
privacy.66 The Court rejected the claims, reasoning that the
passengers were not entitled to the same level of protection as they
enjoy in their homes because they had entered a public place.67
A Nevada court reached a seemingly contradictory ruling in Vance v.
Judas Priest.68 Citing a Nevada court's ruling, Newsome wrote, "If an
individual has the right to receive information and ideas expressed
by others with whom he or she may philosophically, socially,
religiously, or politically agree or disagree, he must also have the
reciprocal right to refuse to receive such information and ideas."69
Following the logic of Vance, particular aspects of Channel One might
abridge the constitutional right of students to be free from forced
commercial speech, according to Newsome.
In her conclusion, Newsome stated, "Officials at all levels of
authority have generally failed to take student interests into full
account."70 Newsome stated that in order to protect student
interests, policymaking on such issues needs to be undertaken on a
statewide rather than a local level. She concluded, "As legal
disagreements continue to emerge, legislators, regulators and judges
will need to address the fundamental concerns fueling the controversy."71
The scholarly literature on advertising in public schools
depicted in-school advertising as a serious and evolving concern to
students, teachers, administrators, local and state school boards,
and to American society in general. The literature identified and
categorized the variety of advertising practices currently in use in
America's public schools. It also detailed the arguments on both
sides of the issue and the debate between state and local powers, and
outlined the law applicable to the topic. Finally, the literature
reflected opinions on how to best proceed in the regulation of
commercial speech in public schools. This thesis will provide a more
detailed examination of the history and current status of advertising
in schools, and an analysis of the significant legal issues raised by
in-school advertising cases.
Research Questions and Methods
This paper will address the following research questions: 1)
What are the significant legal issues surrounding advertising in
public schools? 2) How have the courts addressed these issues? 3)
What do their decisions suggest about the legal rights of advertisers
to market their products on school grounds? These questions will be
addressed using U.S. Supreme Court decisions on the rights of school
administrators to regulate expression on school grounds and the First
Amendment rights of advertisers, along with the few lower court
decisions concerning in-school advertising will be analyzed.
Cases involving commercial speech at the university level
were excluded for the purposes of this thesis. Inclusion of such
cases would significantly broaden its scope and bring an expansive
variety of issues into play such as commercial involvement in college
athletics. This paper does not address cases centering on student
speech rights, the right to regulate the speech of children more than
that of adults, or on the rights of students to distribute
non-curricular publications on school grounds. It focuses only on
cases that consider, as a central issue, the right of a school body
to prohibit commercial advertising within the confines of the school,
on school grounds, or in school-sponsored publications, and on cases
dealing with the right of an advertiser to force a school to accept
Identification and Analysis of Significant Legal Issues
Despite the wealth of controversy on the subject of in-school
advertising, few court cases have specifically focused on the topic.
Six reported, relevant cases were identified.72 From those cases,
five major issues were determined to be most significant to the
in-school advertising debate. They are 1) Does the power to regulate
in-school advertising reside at the state or local level? 2) What
constitutes state action in in-school advertising cases? 3) What have
the courts said about schools, student publications, and school
grounds as public forums? 4) What "substantial" interest(s) justify
regulation of in-school advertising? 5) How are in-school advertising
regulations properly written?
It is impossible to discuss free expression in U.S. public
schools – commercial or otherwise – without an understanding of two
landmark cases, Tinker v. Des Moines Independent Community School
District73 and Hazelwood School District v. Kuhlmeier.74 Neither of
these cases focused on advertising in public schools. Yet, the U.S.
Supreme Court's analyses in these cases have been instrumental in
deciding nearly all in-school advertising cases that have followed.
In Tinker, students from a Des Moines, Iowa, school protested the
Vietnam War by wearing black armbands in school. Pursuant to a policy
adopted by school officials, the students were sent home from school
and suspended until they returned without the armbands. The students
claimed their First Amendment rights were violated by the school's actions.75
In its opinion, the Court noted that school officials had a
comprehensive authority to set rules in the school. However, those
rules had to be consistent with the First Amendment rights of the
students.76 The Court wrote that students do not "shed their
constitutional rights to freedom of speech or expression at the
The Court upheld the right of students to wear the black armbands
in silent protest. Two aspects of the Court's opinion are especially
significant. First, the Court said the First Amendment protected
speech in schools as long as it was not disruptive, obscene, or
violative of the rights of other students.78 Second, the Court
stressed that the school had permitted other political symbols to be
worn and that the school could not single out armbands worn in
protest of the Vietnam War.79 It found that the regulation in
question was directly related to the school's desire to suppress a
However, in 1988, the Court upheld the censorship of a
non-disruptive student newspaper in Hazelwood School District v.
Kuhlmeier. In Hazelwood, the Court upheld the principal's decision to
delete articles concerning teen pregnancy and divorce from the
student newspaper, Spectrum.
Central to the decision was the Court's ruling that Spectrum was
not a public forum.80 Spectrum was a student newspaper produced for
academic credit as part of a journalism class under the supervision
of a faculty advisor. The Court said Spectrum was a nonpublic forum
because it had never been dedicated "by policy or practice" for use
by the public. According to the Court, it was constitutional for the
principal to remove the articles to protect younger students from
inappropriate material, to allow the school to dissociate itself from
expression it disliked, and to protect the privacy of students and
their parents.81 The decision allows for censorship of expression
bearing the imprimatur82 of the school if reasonable regulations
serve the school's educational purposes.
Tinker and Hazelwood created law for regulating of free
expression in public schools. Tinker is significant to the in-school
advertising debate for its analysis of non-disruptive, in-school
speech. It also stated that all regulations must be
viewpoint-neutral. Hazelwood created a public forum analysis with
regard to in-school expression and stated that regulation of
school-sponsored expression need only be reasonable to remain
consistent with the First Amendment. While these decisions may appear
to be at odds with one another, both illustrate the Court's
recognition of the school environment as a unique environment for the
regulation of free expression.
Does the power to regulate in-school advertising reside at the state
or local level?
The U.S. Supreme Court has provided no guidance on this issue.
Individual state constitutions and statues vary with regard to
regulatory authority for such matters. Generally, control has been
given to individual state legislatures. State legislatures have ceded
broad discretion to state boards of education to make decisions that
affect the school environment. State boards of education frequently
defer to local school districts to make important decisions,
reasoning they are the most familiar with their own needs.83 However,
conflict has arisen when state and local authorities substantively
disagree on how to best address certain issues.
Two in-school advertising cases have raised this issue,
Dawson v. East Side Union School District84 and North Carolina v.
Whittle Communications.85 In both cases, regulatory control of
Channel One contracts was left to the discretion of local governing
bodies. In Dawson, a California appellate court heard an appeal
brought by acting Superintendent of Public Instruction William
Dawson. Dawson sought to prohibit California schools from entering
into Channel One contracts on the basis that state law and the
California Constitution did not permit such contracts. At the time of
Dawson's initial claim, defendant East Side Union High School
District was considering installing Channel One in its classrooms.
The trial court had rejected Dawson's claim, concluding Channel One
may be lawfully used by a school district only so long as the
students are not coerced to view the advertisement.86 The Sixth
Appellate Court of California affirmed the trial court's ruling and
allowed local school districts to enter into Channel One contracts.
Dawson was decided on several principles of law. Of
particular importance here is the court's analysis of whether state
or local officials had the right to regulate commercial speech in
California schools. A 1849 mandate in the California Constitution
gave primary authority over public education to the state
legislature.87 However, the California Constitution, and the
Legislature itself, ceded substantial discretionary control to local
school districts. According to Dawson, the California Legislature had
explicitly recognized that because of economic, geographic, physical,
political, educational, and social diversity, specific choices about
instructional materials need to be made at the local level.88 Thus,
California school districts and local school boards have been
recognized as having diverse needs unique to their individual
communities and programs, and therefore as having the authority and
flexibility to create their own solutions.89
In October 1990, California's State Board of Education
adopted a resolution headed, "Use of Commercial Television
Advertising in the Classroom."90 The resolution stated the Board's
belief that "decisions concerning the use of commercial products and
services are within the decision making authority of the local
governing boards, consistent with state law."91
The Dawson court concluded, "It follows that courts should
give substantial deference to the decisions of local school districts
and boards within the scope of their broad discretion, and should
intervene only in a clear abuse of that discretion."92 As a result,
it is generally permissible and appropriate for local boards in
California to make educational decisions based upon their personal,
social, political, and moral views.
A similar set of circumstances was present in North Carolina v.
Whittle Communications. In July 1989, Whittle made a presentation
concerning Channel One to officials at the N.C. State Department of
Public Instruction. Following that presentation, Whittle began making
presentations to local school boards in the fall of 1989. The
Davidson County Board of Education entered into a Channel One
contract in January 1990. The Thomasville City Board of Education
entered into its contract with Whittle on February 8 of the same
year. However, on February 1, 1990, the State Board of Education had
adopted a temporary rule prohibiting local school boards from
entering into Channel One contracts. When the temporary rule was
adopted, the State Board of Education decided it would not be made
retroactive and therefore did not apply to the Davidson County contract.93
Soon thereafter, the state's Administrative Rules Commission94 sent
a letter to the State Board of Education stating that the Commission
objected to the temporary rule "due to lack of authority for use of
the temporary rulemaking procedure and lack of statutory authority
for the rule."95 The State Board of Education then met and voted to
amend its rule to make the rule retroactive to existing contracts.
The State Board of Education also voted to file suit against Whittle
and Thomasville. Davidson County was not initially named in the suit
since its contract was entered into prior to the February first
temporary rule. The superintendent of Public Instruction and the
State of North Carolina joined the State Board of Education in its suit.96
The lawsuit asked the court to declare void and unenforceable
the contract entered into by Whittle and Thomasville on the grounds
that the contract was contrary to the rule adopted by the State Board
of Education, was contrary to public policy, and violated the North
Carolina Constitution. The complaint also sought to enjoin
Thomasville and Whittle from implementing their contract and to
enjoin Whittle from contracting with other local school boards in
Whittle and Thomasville filed counterclaims. The counterclaim
asked that the court declare the contracts executed by Whittle and
Thomasville to be valid and enforceable, declare the temporary rule
to be unlawful and unconstitutional, and permanently enjoin the State
Board of Education from enforcing the rule. Davidson filed a motion
to intervene as a co-defendant.98 Wake County Superior Court Judge
Joseph Stephens held the temporary rule adopted by the North Carolina
Board of Education to be invalid and thus void for lack of subject
matter jurisdiction.99 Stephens allowed Whittle's motion to dismiss
the case, concluding that the contracts were valid, lawful, and
enforceable under North Carolina law.100
In its appeal, the State of North Carolina asked the Supreme
Court of North Carolina to determine whether the trial court erred in
its determination. The North Carolina Supreme Court stated, "We
conclude that the State Board of Education did not have the authority
to promulgate a temporary rule governing this contract because the
contract involves supplementary materials, an area which the General
Assembly has delegated to the local school boards to oversee."101 The
court continued, "We further conclude that this contract does not
violate the North Carolina Constitution and is not contrary to public
The North Carolina Supreme Court pointed to a provision in
the North Carolina Constitution that states, "The State Board of
Education shall supervise and administer the free public school
system and make all needed rules and regulations thereto, subject to
laws enacted by the General Assembly."103 Thus, the court turned to
the statutes of the General Assembly to determine whether it had
enacted laws that would limit the power of the State Board in the
area of the selection of materials such as Channel One. The court
deemed Channel One to fall into the category of supplementary
The North Carolina Supreme Court concluded, "Since Channel
One is a supplementary instructional material and since the General
Assembly placed procurement of such materials under the control of
local school boards, the State Board acted in excess of its authority
in enacting this rule because the State Board had no authority to
enact a rule on this subject." The court affirmed the trial court's
order dismissing the plaintiff's complaint.
Thus, the courts in both Dawson and North Carolina v. Whittle
found regulatory authority in Channel One matters to reside at the
local level. However, each court pointed out that its ruling
pertained only to the matter of Channel One contracts. In Dawson, the
court determined the advertising content of Channel One to be
"incidental to the use of educational materials reasonably necessary
to a valid educational purpose."104 In North Carolina v. Whittle, the
court determined Channel One to be "supplementary instructional
material."105 One is left to wonder about how the court might rule in
a case that involved purely commercial speech. Yet, together, Dawson
and North Carolina v. Whittle serve as a strong indicator that the
courts will interpret state constitutions and statutes to decide
matters of state versus local control of in-school advertising in
favor of the local educational body.
What constitutes state action in in-school advertising cases?
State action refers to government involvement in the
abridgement of one's rights. In determining whether a particular
action is governmental in character, it is relevant to examine the
extent to which the actor relies on governmental assistance and
benefits.106 The Court has said that it must determine "whether the
private party charged with the deprivation could be described in all
fairness as a state actor."107 The term "state actor" refers to those
acting on the government's behalf.
The United States Court of Appeals for the First Circuit
stated, "The essential state action question is whether the
government has been sufficiently involved in the actions challenged
by the plaintiff so that it can be deemed responsible for the
plaintiff's injury. If there is no state action, then the court may
not impose constitutional obligations on private actors."108 Thus,
for speech to receive First Amendment protection, it must be
proscribed by a state actor, such as a principal or school district.109
It is important to understand the concept of state action as
it applies to in-school advertising. Several cases examined in this
paper involve state action. However, only one case, Yeo v. Town of
Lexington,110 used it as the central issue in reaching its
conclusion. In Yeo, the court allowed for the rejection of an
advertisement due to total editorial autonomy on the part student
editors. Since school officials were not involved in any way with the
rejection of the proffered advertisement, the court found no state
action, and thus no censorship that violated the First Amendment
In Yeo v. Town of Lexington, the speech interests of both
parties were raised by the decision of two public high school student
publications – the newspaper and the yearbook – not to publish an
advertisement. The advertisement was submitted by the parent of a
student, Douglas Yeo, and promoted sexual abstinence. Yeo submitted
the ad in response to a decision by the Lexington, Massachusetts,
School Committee to make condoms available to students without
parental permission. Yeo had campaigned against the policy and lost.
The two high school publications refused to publish the ads on the
grounds that each had an unwritten policy of not running political or
Yeo's initial action against the Town was dismissed on the
defendant's motion for summary judgment.112 A federal district court
judge in Massachusetts concluded that no state action had been shown.
A panel of the United States Court of Appeals for the First Circuit
reversed, holding that summary judgment should be entered for Yeo on
his claims that there was state action. The court then granted en
blanc113 review and withdrew the panel opinion. Ultimately, the en
blanc court affirmed the decision of the district court and entered
summary judgment for the defendants on the ground that state action
was not shown.114
In its decision, the appellate court stated, "This is a situation in
which the government actors – the school officials acting under a
statute of the Commonwealth of Massachusetts – have chosen to grant
editorial autonomy to the high school students."115 Citing the U.S.
Supreme Court, the Yeo court stated, "We recognize that the First
Amendment, the terms of which apply only to governmental action,
ordinarily does not itself throw into constitutional doubt the
decisions of private citizens to permit, or to restrict, speech. This
is so even where those decisions take place within the framework of a
The court pointed out that Yeo had sued only those individuals who
were public school officials. They are concededly state actors.
However, the action of which Yeo complained was an action taken
solely by the students, who are neither state actors nor parties to
Yeo's suit. Therefore, the First Amendment does not apply to them and
does not restrict their right to censor the contents of their publication.
What have the courts said about schools, student publications, and
school grounds as public forums?
The values embodied in the First Amendment require the government,
under certain circumstances, to provide members of the public with
access to its facilities for the purposes of speech. Certain state
facilities, which may be appropriately used for communication, enjoy
special constitutional status as public forums.117 In these public
forums, the First Amendment narrowly circumscribes the government's
power to exclude or regulate speech. However, the state's mere
ownership or control of a facility does not in itself guarantee
public access under the First Amendment.118 Similarly, merely
permitting access to a government facility does not necessarily open
it for use as a public forum.119 In nonpublic forums, the state has
great latitude in proscribing speech but may not act unreasonably in
In Perry Education Association v. Perry Local Educators Association
and Cornelius v. NAACP Legal Defense Fun, the Supreme Court
identified three types of forums. These include the traditional
public forum, the limited public forum, and the nonpublic forum. The
public's right of access and the type of limitations the state may
impose on speech vary depending upon the type of forum that has been created.
The Court stated that in the traditional public forum, such as
streets and parks, the government may not prohibit all communicative
activity. For the state to enforce a content-based exclusion it must
withstand strict scrutiny to show that its regulation is necessary to
serve a compelling state interest and that it is narrowly drawn to
achieve that end. The state may also enforce content-neutral time,
place, and manner restrictions on expression.
The limited public forum consists of "public property that
the state has opened for use by the public as a place for expressive
activity," according to the Court in Perry and Cornelius. A limited
public forum may be open to the public for discussion of all topics,
or there may be limitations on the groups allowed to use the forums
or the topics that can be discussed. Thus, a limited public forum may
be open to certain groups for the discussion of any topic, or the
entire public for the discussion of certain topics, or some
combination of the two. The government is under no obligation to
create a limited public forum. However, once the state has created a
limited public forum, its ability to impose further constraints on
the type of speech permitted in that forum is quite restricted.
A nonpublic forum is public property, such as a military base
or jail, that is not by tradition or designation a forum for public
communication. The Court has recognized that this type of forum is
governed by different standards than traditional and limited public
forums. The state may reserve nonpublic forums for their intended
purposes as long as the regulation on speech is reasonable. However,
the Perry Court also stated, "The existence of reasonable grounds for
limiting access to a nonpublic forum will not save a regulation that
is in reality a façade for viewpoint-based discrimination."121
This public forum determination is central to the in-school
advertising debate. San Diego Committee Against Registration for the
Draft (CARD) v. Grossmont Union High School District and Planned
Parenthood of Southern Nevada v. Clark County School District are two
in-school advertising cases that hinged on the public forum
classifications of school publications. These cases are important
because they illustrate judicial activism122 with regard to the
public forum doctrine within public schools.
In CARD, the plaintiff appealed a federal district court's denial of
its request to enjoin the Grossmont Union High School District from
rejecting an anti-draft advertisement for placement in a number of
the district's student newspapers. CARD was a non-profit organization
located in San Diego County. At the time of this case, it was
actively involved in counseling young men on alternatives to
compulsory military service. The board is the governing body of the
Grossmont Union High School District.
In 1982, CARD sought to purchase advertising space from five student
newspapers published by high schools within the Grossmont Union
District. According to CARD, its advertisements were directed toward
providing information and counseling to male students regarding
alternatives to military service. CARD's request was ultimately
referred to the principals of the five schools. The principals then
requested that the superintendent of the school district issue a
The superintendent issued a directive instructing all
principals to reject CARD's advertisement on the grounds that
publication of the advertisements would contribute to illegal acts on
the part of the district's students. The following year, CARD filed
an administrative claim123 with the board in which it sought reversal
of the superintendent's decision. CARD's claim was rejected. CARD
then filed suit against the board alleging its actions had violated
CARD's rights under the First and Fourteenth Amendments. CARD argued
that because the board had regularly permitted advertisements
advocating military service by various recruitment offices, the board
could not constitutionally exclude CARD's advertisement of the
The district court found the newspapers in the Grossmont Union
District to be "limited in nature as a public forum."124 As a limited
public forum, "There may be limitations on the groups allowed to use
the forums or the topics that can be discussed."125 However, in a
limited public forum, "content-based restrictions must be narrowly
drawn to effectuate a compelling state interest."126 The district
court also found the military recruitment ads the papers had run to
be non-political. Finally, the district court found that board's
policies of permitting publication of student political speech and
limiting non-students' access to the paper for commercial speech were
reasonable in light of the purpose of school publications.127 The
district court entered an order denying CARD's request for a
On appeal, the United States Court of Appeals for the Ninth Circuit
used a public forum analysis to determine whether the school district
could exclude CARD's advertisements after accepting advertisements
expressing a competing viewpoint on the same topic. The appellate
court rejected the school board's claim that student newspapers were
a nonpublic forum. Instead, the court said the papers were a limited
public forum. In making this determination, the court considered what
type of forum the government had intended to create.
The CARD court stated, "the evidence before us clearly indicates an
intent to create a limited public forum."128 The court stated that
newspapers, including the board's, are devoted entirely to expressive
activity and that everything in them, including advertising, is
speech. The court found that under the test enumerated in Cornelius,
"the board's newspapers, like most other school newspapers,
constitute, at minimum, a limited public forum of the type found in
Widmar."129 The CARD court pointed out that the board allowed
non-student members of the general public to avail themselves of the
forum as long as their speech consisted of advertisements for goods,
services, or vocational opportunities for students. Again, the court
concluded, "because the newspapers are open to the entire public for
the discussion of these limited topics, the board has created a
limited public forum of the type found in City of Madison."130
Thus, the court concluded that the newspapers in CARD were a limited
public forum. While the board disagreed, claiming it had not opened a
limited public forum, the court turned to the school's actions rather
than its words to draw its conclusion. The court wrote, "The board's
actual policy and practice lead, under Cornelius, to the conclusion
that the board has established the school newspapers as a limited
public forum in which students can discuss any topic, and in which
non-students can engage in commercial speech."131 Because the board
on a number of occasions permitted the publication of advertisements
advocating military service, there can be no question that the board
intended to open the newspapers to advertisements on the topic.
The court observed, "we hold that even if the board was
correct in its assertion that the school newspapers are a nonpublic
forum, its conduct still violated the First Amendment because its
refusal to accept CARD's ads was unreasonable and constitutes
viewpoint-based discrimination."132 The court stated that the
differentiation in treatment between CARD's ad and that of the
military recruiter was arbitrary, unreasonable, and thus impermissible.
The CARD decision is important for two reasons. First, it
said that school newspapers were a limited public forum, thus
granting more power to potential advertisers seeking to force schools
to accept their ads. Second, it said that even if the newspaper was a
nonpublic forum, CARD still had a claim as the regulations were not
proven to be reasonable and instead appeared to be viewpoint-based.
It is important to note that Hazelwood was decided after CARD v.
Grossmont Union High School District. It is difficult to speculate
precisely how the CARD court might have implemented the U.S. Supreme
Court decision in Hazelwood that determined school-sponsored
newspapers are a nonpublic forum. However, one would assume that such
a determination would have bolstered the school's right to reject
CARD's advertisement and significantly hampered CARD's ability to
successfully force the school to accept it in the courts.
The Hazelwood decision played a large role in deciding Planned
Parenthood of Southern Nevada v. Clark County School District.133 In
Planned Parenthood, the plaintiff filed a suit seeking declaratory
and injunctive relief against the Clark County School District.
Planned Parenthood134 charged that the school district's refusal to
publish its advertisements in school-sponsored publications violated
its right to freedom of expression guaranteed by the First Amendment.
The district court ruled in favor of the school district. The United
States Court of Appeals for the Ninth Circuit affirmed that decision
stating, "we conclude that the publications in question are a
nonpublic forum and the restrictions on Planned Parenthood's
advertisements are reasonable."135
The school district authorized its high schools to publish
newspapers, yearbooks, and athletic event programs. The newspapers
and yearbooks were published as part of the school district's
journalism curriculum. The athletic programs were not published as
part of any course curriculum. The school district did not require
its publications contain advertising. Instead, it authorized each
high school principal to decide which publications will accept
advertising. The school district also granted its high school
principals discretion to both set guidelines for publishing
advertising and to determine if a proposed advertisement satisfied
In 1984 and 1985, Planned Parenthood submitted advertisements
to the high schools in the district for publication in their
newspapers, yearbooks, and athletic programs. The advertisements gave
Planned Parenthood of Southern Nevada's address and listed their
services including routine gynecological examinations, birth control
methods, pregnancy testing & verification and pregnancy counseling
and referral. Most of the Clark County District publications
rejected the advertisements. At the time of this lawsuit, ten high
schools did not have their own written policies. Five schools did
have written guidelines. The written guidelines of the high schools
were substantially identical. The guidelines provide that the
individual high school reserves the right to deny advertising space
to any entity that does not serve the best interest of the high
school, the school district, and the community.
Relying largely on the facts in CARD, the district court found that
the school district's publications were a limited public forum for
advertisements lawfully available to high school-age audiences; that
the school district would be required to publish Planned Parenthood's
advertisements unless the school could demonstrate a compelling136
governmental interest not to do so; and that the school district had
demonstrated no such compelling interest.137 The court ordered the
parties "to confer and agree as the acceptable advertisements, or to
submit to the court further evidence by which it could decide on the
text of advertisements."138
However, before the district court took further action, the Supreme
Court decided Hazelwood. On the basis of Hazelwood, the district
court issued a second order finding that the school district's
publications were a nonpublic forum and that the refusal to accept
Planned Parenthood's advertisements was reasonable. Based on the
Supreme Court's public forum analysis of student publications in
Hazelwood, the district court entered judgment in favor of the school
district. Planned Parenthood appealed.
The U.S. Court of Appeals for the Ninth Circuit stated that the issue
presented on appeal was whether the school district violated the
First Amendment by refusing to publish Planned Parenthood's
advertisements in its school-sponsored publications. To resolve this
dispute, the appellate court first identified the nature of the forum
in question. The court stated that it must then determine whether the
school district's justifications for rejecting the advertisements
satisfy the standards applicable to that forum.
In Planned Parenthood, the court stated, "The issue before us
is whether the school district designated the publications as a
public fora."139 The court turned to the recently written Hazelwood
decision for guidance and looked primarily at the government's intent
to determine the type of forum in question.140 As in Hazelwood, the
student newspapers in question were determined to be nonpublic
forums. The Planned Parenthood court wrote, "The government does not
create a public forum by inaction or by permitting limited discourse,
but only by intentionally opening a nontraditional public forum for
discourse. We will not presume the government has converted a
nonpublic forum into a designated public forum unless, by policy or
practice, the government has demonstrated a clear intent to do so."141
As in Hazelwood, Planned Parenthood's constitutional claims
arise in the context of school-sponsored publications. Hazelwood
requires that in such cases the First Amendment be applied, "in light
of the special characteristics of the school environment."142 The
Planned Parenthood court observed, "We must be mindful that nowhere
has the Supreme Court suggested that students, teachers, or anyone
else, has an absolute constitutional right to use all parts of a
school building for unlimited expressive purposes."143
In examining Clark County's advertising policy for its
student newspapers and yearbooks, the court turned to a memorandum by
its principal. The court stated it unequivocally illustrated intent
to limit access to these publications. The court found nothing to
indicate that the school district, by policy or practice,
demonstrated a clear intent to create a public forum with respect to
its yearbooks and newspapers. Although not published as part of any
course curriculum, the district's athletic programs were also found
to be governed by the memorandum, not intended for open public
discussion, and thus a nonpublic forum.
Planned Parenthood argued that the act of soliciting and
accepting advertising from entities outside the school reveals intent
to create a public forum. The court squarely rejected this
contention, citing Lehman v. City of Shaker Heights.144 In Lehman,
the city accepted ads from a variety of private companies and civic
organizations for publication on public transit vehicles. However,
consistent with its long-standing policy, city officials rejected a
political advertisement. The Court held the city did not intend to
create a public forum through mere acceptance of outside advertising
on its property. The Planned Parenthood court wrote, "as Planned
Parenthood would have it, the school district must either accept
advertisements from no outside entity or accept them from every
outside entity. Lehman ensures that the school district is not
required to make such a choice.145
In its conclusion, the Planned Parenthood court found the
publication in question to be a nonpublic forum as defined in
Hazelwood. As such, restriction on its content need only be
reasonable. Furthermore, the court again pointed to the memorandum by
the school's prinipal as a clear indication of the district's
intention not to open its publications as a public forum and to
reserve the right to regulate them as a nonpublic forum. Thus, the
appellate court found no violation of the First Amendment and
affirmed the district court's ruling in favor of the defendants.
CARD and Planned Parenthood are important for several
reasons. In CARD, the court found the publication to be a limited
public forum, thus allowing advertisers more leverage to force the
district to accept it advertisements than they would have had in a
nonpublic forum. With regard to the district's intention to create a
public forum, the CARD court turned to the district's actual policies
and practices, instead of its stated intentions, in reaching its
determination. Planned Parenthood relied heavily on the Supreme
Court's Hazelwood decision and rejected the CARD decision, finding
the newspapers in question to be nonpublic forums. The court found
the schools clearly did not intend to create a public forum.
Therefore, accepting advertising was determined not to be an
all-or-nothing proposition for schools. Instead, schools were given
wide latitude in deciding which advertisements to reject. This
decision may serve as a devastating blow to advertisers seeking to
force school districts to accept their advertisements.
What "substantial" interest(s) justify regulation of in-school advertising?
The four-part test for determining the constitutionality of
regulations on commercial speech was set forth by the Supreme Court
in Central Hudson Gas & Electric Corporation v. Public Service
Commission.146 Under the four-part test promulgated in Central
Hudson, a court must first determine if the commercial speech in
question is eligible for First Amendment protection, that is that it
is for a legal product or service, is not false or misleading, and is
not obscene. Second, a court must examine whether the government
asserts a substantial interest in regulating the expression.
Regulation of political speech burdens the government with having to
prove a compelling interest. Commercial speech, which receives less
First Amendment protection than political speech, can be regulated
when the government demonstrates the lesser substantial interest.147
The government has frequently met the second part of the
Central Hudson test by demonstrating its substantial interest in
preserving the health, safety, morals, and aesthetic quality of the
community. If the commercial speech in question meets the second
standard, the court must then determine whether the regulation
directly advances the governmental interest asserted. If so, the
court in the fourth step decides whether the regulation is as
narrowly drawn as possible as not to incidentally sweep up other
speech in its wake.148
This section surveys the substantial interests asserted in
the six reported in-school advertising cases. These substantial
interests include protecting the health and safety of students,
preventing substantial disruption of the school environment,
preventing viewpoint discrimination and the perceived imprimatur of
the school, preventing students as captive audiences and protecting
student privacy, and promoting educationally suitable materials.
Protecting the Health and Safety of Students
In Williams v. Spencer,149 a federal appeals court ruled that
schools have a substantial interest in protecting the health and
safety of students. In Williams, students Gregory Williams and Mark
Gutstien brought suit against the Montgomery County Board of
Education. They claimed that Springbrook High School in Montgomery
County, Maryland, had violated their First Amendment rights. On
appeal, the students sought an order enjoining school authorities
from restricting distribution of their non-school sponsored paper,
Joint Effort, on school grounds. The U.S. Court for Appeals for the
Fourth Circuit affirmed the trial court's judgment in favor of the
defendants. Elizabeth Spencer was the superintendent of schools for
During the 1976-77 school year, the plaintiffs published and
distributed the first issue of Joint Effort, a self-styled
underground newspaper designed for alternative student expression.
The issue was distributed on school grounds with prior permission
from the principal. The principal had no prior knowledge of the
content of the publication. Following the success of the first issue,
the plaintiffs published a second issue that contained various
literary contributions, cartoons, and advertisements.
Shortly after the second issue was distributed, faculty
monitor Austin Patterson confiscated the remaining copies of the
paper and gave them to the principal. Patterson had taken issue with
a cartoon on the back of the paper that depicted him in a derogatory
fashion. The principal upheld Patterson's seizure of the paper and
banned distribution on school property. As required by a district
school policy entitled the Student Rights and Responsibilities Policy
(S.R.R.P.),150 the school principal, within two days of halting
distribution, stated in writing his reasons for the action.
In his statement, the principal outlined two reasons for
halting the distribution of the publication. The first stated that
Joint Effort was found to be in violation of Section 4C of the
S.R.R.P. The specific violation involved the depiction of a staff
with clear racial overtones. The second violation, according to the
principal, was an advertisement for the Earthworks Headshop, a store
that specialized in the sale of drug paraphernalia. The advertisement
primarily promoted the sale of a water pipe used to smoke marijuana
and hashish. The ad also advertised paraphernalia used in connection
with cocaine.151 This was found to be in violation of a section of
the S.R.R.P. that prohibits the distribution of material that
encourages actions that endanger the health and safety of students.
The students sought several administrative appeals. Following
those unsuccessful attempts, the students filed suit against the
school board, the superintendent, and assistant superintendent,
claiming the seizure violated their First Amendment rights and that
the school's regulatory scheme was facially invalid.
Regarding the alleged First Amendment violation, the district
court considered only whether the presence of the ad for the head
shop provided the school with the right to halt distribution of Joint
Effort. It held that the school was justified in halting
distribution. With regard to the facial invalidity of the guidelines,
the court held that the health and safety regulation was not so vague
as to violate First Amendment standards. Because of its reliance on
the health and safety regulation, the district court did not address
whether the school could halt distribution of the allegedly libelous
material contained in the cartoon. The appellate court affirmed the
district court's decision on the advertisement, making it unnecessary
to consider the rule allowing the school to halt the distribution of
allegedly libelous material.
The plaintiffs in this case challenged the health and safety
regulation in the S.R.R.P. as impermissibly vague and thus violative
of the First Amendment. The Williams court disagreed, holding that a
prior restraint regulation must contain precise criteria sufficiently
spelling out what is forbidden so that a reasonably intelligent
student will know what he may write and what he may not write. The
court was not persuaded by the students' argument and found no merit
to their claim that a reasonably intelligent high school student
would not know that an advertisement promoting the sale of drug
paraphernalia encourages actions that endanger the health and safety
of students. The court stated, "Indeed the plaintiffs themselves
concede that drug use is a harmful activity endangering health and safety."152
Conspicuously absent from the Williams case is the four-part
test of Central Hudson. This due to the fact that Williams was
decided just prior to Central Hudson. Had the Central Hudson test
been in place, the Williams court would have had to look no further
than its first part to determine that the commercial speech at issue
was not protected since it promoted an illegal product or service.
However, even had the court determined the ad was for a legal product
or service, it could have asserted a substantial government interest
in protecting the health and safety of the students. Therefore,
advertisers will have a high hurdle to pass in forcing schools to
accept advertising for products that may be deemed to jeopardize the
health, safety, and welfare of students.
Preventing Substantial Disruption to the School Environment
Courts have recognized preventing substantial disruption to
the school environment as a substantial interest in regulation
in-school expression. The Supreme Court established a standard for
measuring the compatibility of school speech with the school
environment in Tinker. The Tinker test has two elements. First,
student speech must reasonably lead school officials to forecast a
substantial disruption. Second, school officials must present
evidence to substantiate their belief.
Although the Williams court ruled in favor of the school on
the health and safety issue, the court also went on to address the
substantial disruption issue. The court found no merit to the
argument that the school officials had to demonstrate that the
material had substantially disrupted school activities.153 The court
noted that the Supreme Court's ruling in Tinker and several of its
own decisions154 indicated that school authorities may exercise prior
restraint on publications distributed on school premises in
circumstances where they can reasonably forecast substantial
disruption will result.
The court continued, "Such disruption, however, is merely one
justification for school authorities to restrain the distribution of
a publication; nowhere has it been held to be the sole
justification."155 In addressing the substantial disruption issue,
the Planned Parenthood court also observed, "where the principal
function of the property would be substantially disrupted by
expressive activity, the court is particularly reluctant to hold the
government intended to designate a public forum."156
Determinations by the courts that substantial disruption
qualifies as a substantial interest in regulating commercial speech
in schools should serve notice to potential advertisers that
disruptive advertisements will be rejected. Considerable precedent
exists to allow school districts to restrict advertisements that may
be determined to detract from the school's ability to perform its
Preventing Viewpoint Discrimination and the Perceived Imprimatur of the School
In both Planned Parenthood and Yeo, schools successfully asserted
the substantial interest of avoiding participation in viewpoint
discrimination and the perception that they had endorsed a
controversial viewpoint. The result has been increased discretionary
control for the schools in rejecting would-be advertisers.
Viewpoint discrimination has previously been addressed in
this paper. In Tinker, the Supreme Court stressed that the school
could not single out armbands worn in protest of the Vietnam War. It
found that the regulation in question was directly related to the
school's desire to suppress a particular viewpoint. Likewise, in
CARD, the school district was not permitted to accept advertising
from one side of a controversial issue and not the other. The court
stated that the papers were not required to accept controversial
advertisements, but once they did, they could not reject similar ads
from opposing viewpoints. The regulations were found to be arbitrary,
unreasonable, and were therefore unconstitutional.
In Hazelwood, the Supreme Court upheld a principal's right to remove
articles from a student newspaper to protect younger students from
inappropriate material that the school disliked. The Hazelwood
decision allowed for censorship of expression bearing the
imprimatur157 of the school if reasonable regulations serve the
school's educational purposes. Imprimatur of the school refers to the
potential perception that the school has endorsed the viewpoint,
product, or service in question.
Similarly, in Planned Parenthood, the school district was allowed
to reject an advertisement based on its content. The determining
factor in that case was the Hussey memorandum, which clearly stated
the school's desire to avoid the impression it endorsed a viewpoint
at variance with its educational program. The Planned Parenthood
court concluded that school newspapers, yearbooks, and athletic
programs all bear the imprimatur of the school. Thus, the school was
reasonable in attempting to ensure that the views expressed within
those publications are not erroneously attributed to the school.158
In its decision, the Planned Parenthood court stated, "A school
is entitled to dissociate itself from speech wholly inconsistent with
the fundamental values of public education."159 If a school "need not
tolerate student speech that is inconsistent with its basic
educational mission, then this must also be true for outside speech
that is equally inconsistent."160 In Yeo, the student editors of the
publications were even more cautious in adopting a policy of not
accepting any political or social ads in an effort to remain
While seemingly contradictory, these decisions indicate that the
courts are increasingly willing to allow schools to regulate
commercial speech on the basis of its content. When the school may be
viewed as endorsing the product or service being advertised, the
courts are particularly willing to allow such restrictions. Likewise,
if an advertisement is deemed to be in conflict with the school's
educational function or curriculum, the courts have ceded great
regulatory power to the schools, even in cases of viewpoint discrimination.
Preventing Students as a Captive Audience and Protecting Student Privacy
Citizens who are forced or compelled to receive speech are part of a
captive audience. As such, citizens' privacy rights to be free from
unwanted messages – commercial or otherwise – have been at raised in
Supreme Court cases. In addition, state officials in North Carolina
v. Whittle and Dawson successfully asserted a substantial interest in
preventing the conversion of students into a captive audience for advertisers.
These issues are significant to the in-school advertising
debate for several reasons. First, the state has the right to compel
student attendance in public schools. Also, most state constitutions
contain a clause stating that taxation shall be used only for public
purposes, and state tax dollars are used to fund public schools.
Therefore, if a state forces attendance in schools, funds those
schools with tax dollars, and then sells access to its students, the
state may be viewed as having provided a captive audience to
advertisers. Second, school officials are authorized to act en loco
parentis, or in the best interest of school children in absence of
their parents. However, schools' willingness to subject students to
advertisements in schools has been viewed by some as a violation of
that trust. Taken together, these issues have been at the heart of
the debate of Channel One in schools.
The Supreme Court addressed both captive audience and privacy
issues in Public Utilities Commission v. Pollack.161 In Pollack, the
Supreme Court considered a case based on the privacy concerns of
commuters. The commuters claimed that radio broadcasts on public
buses violated their rights to privacy, forcing them to listen to
unwanted points of view as a captive audience. The Court rejected the
claim reasoning that the passengers were not entitled to the same
level of privacy that they enjoyed in their homes.
Justice Douglas dissented. In his dissent Douglas asserted that "the
right to be left alone, including the right to pick and choose what
to listen to, is the very beginning of freedom."162 The right to
privacy is grounded in the Constitution's protection of the
fundamental autonomy of the individual.163 Justice Douglas echoed his
dissent in Pollack in his concurrence in Lehman. He stated that an
advertiser "has no right to force his message upon an audience
incapable of declining to receive it."164 In Lehman, Douglas
observed, "In asking us to force the transit system to accept his
message, the petitioner overlooks the rights of commuters. In my view
the right of commuters to be free from forced intrusions on their
privacy precludes the city from transforming its vehicles of public
transportation into forums for the dissemination of ideas upon this
To address the captive audience issue in the context of
public schools, it is necessary to revisit North Carolina v. Whittle
and Dawson v. East Side Union High School District. While the North
Carolina case centered on the state versus local control issue, it
also involved the captive audience argument. In Dawson, the court
addressed students as a captive audience as the critical issue in
making its determination.
In North Carolina v. Whittle, the state board of education
adopted a temporary rule that prohibited local school boards from
entering into Channel One contracts. The rule provided, "Local school
boards are obligated to assure that students, as a consequence of the
compulsory attendance laws, are not made a captive audience for
required viewing, listening to, or reading commercial advertising."166
In the North Carolina case, the N.C. Supreme Court ruled that
the Channel One contracts did not violate the North Carolina
Constitution. As discussed earlier, the North Carolina court
determined the temporary rule to be invalid on the basis that the
state board of education did not have a right to enact the rule, not
on the captive audience issue. However, the temporary rule
promulgated in North Carolina v. Whittle indicated that state boards
of education were reluctant to serve students to advertisers as a
In Dawson, the court was asked to decide four questions on
appeal, two of which are significant here. The first was whether the
trial court correctly concluded that Channel One may lawfully be used
only so long as the students are not coerced to view the
advertisements. The second was whether the trial court properly
granted injunctive relief that compelled a school district to adopt
court-specified procedures by which students could choose not to
watch Channel One.167
While Channel One has been debated on its educational merits,
its stated motive is to make a profit. To do this, it must be able to
persuade advertisers that it is a viable medium for reaching teens.
To do this, Whittle offers its free equipment and programming on the
condition that participating schools provide the company with
schools' attendance figures and enrollment data, and that the
programming is shown to an agreed upon percentage of students on 95
percent of school days. Basically, Whittle reserves the right to
terminate its contracts with school districts if the audience is
deemed insufficient to justify its expense.
In Dawson, a California superintendent of public education
took issue with Channel One's use of students as a captive audience.
He suggested that even if legal, Whittle's proposal should be
"resisted for ethical and educational reasons."168 The California
official stated, "Parents entrust their children to our public
schools. We have no right legally or morally to sell access to our
students even if the schools benefit in return."169
The appellate court in Dawson pointed to the record that
indicated Whittle and the school district had an agreement that
students would not be required to watch Channel One, but instead that
Channel One would be an optional student activity. The court
observed, "from the outset parents were advised that students could
opt out of viewing Channel One with parental permission."170
The trial court in Dawson took the position that the law is
offended only if students are coerced directly or indirectly into
viewing commercial material. The court concluded that there was no
evidence of direct coercion; however the plaintiffs had demonstrated
the reasonable possibility indirect coercion may exist on the part of
faculty members. The court expressed the view that coerced or
otherwise involuntary viewing of Channel One would be in violation of
California law. On these bases, the trial court ordered that Whittle
and the school district were "permanently enjoined and restrained
from broadcasting Channel One in any classroom in which students are
required to attend, except on the condition that formal policies and
procedures insured viewing of Channel One was strictly voluntary."171
The court concluded, "No student shall be required to view Channel
One, nor shall a student's standing with the school be adversely
affected by a decision not to view Channel One."172
The trial court also ruled that parents of all students
viewing Channel One would be informed in writing. Additionally, the
school district was required by the court to provide a structured,
supervised alternative activity. The appellate court agreed. After a
lengthy discussion of all of the issues involved in the case, the
Dawson court adjudicated the case primarily on the basis of the
captive audience argument. While the court found Channel One to be
legal and its contracts valid in California, it did allow for
students to choose not to view the programming. The court wrote, "The
parties to the contract may lawfully perform the terms of the
contract so long no student is compelled to view Channel One, and no
student's standing with his or her classroom teachers, school
administration or school district is adversely affected by a
student's decision not to view Channel One."173
The Dawson decision will serve to restrict advertisers'
access to students as a captive audience. The decision was a victory
for those who challenge commercial advertising in schools on moral or
ethical grounds. Similarly, Dawson was a victory for student privacy
concerns. The ruling laid out clear guidelines for allowing students
to choose what commercial advertising they are subjected to in
schools. Conversely, advertisers seeking the compelled attention of
students may find them opting out of Channel One viewing. The ruling
also struck a blow to Whittle, which must guarantee advertisers the
highly desirable teen audience to justify its advertising revenues.
Promoting Educationally Suitable Materials
State educational officials have asserted a substantial interest in
maintaining the educational suitability of all materials used in
schools, including those containing commercial content. State
officials challenged Channel One contracts on the basis of the
program's educational merits in both North Carolina v. Whittle and
Dawson v. East Side Union High Schools. The educational suitability
of Channel One was upheld in these cases. This is important to the
in-school advertising debate because it illustrates tolerance by the
courts for commercial advertising that is part of a larger,
educationally valid tool.
In North Carolina, the court held Channel One to be
"supplementary educational materials."174 Therefore, control remained
with the local school boards as mandated by the North Carolina
General Assembly. It is unlikely the same determination would have
been made had the Channel One programming been less educational and
more commercial in nature.
In Dawson, the court also deemed the Channel One programming
to be educational. Borrowing language from Supreme Court decisions in
Riley v. National Federation for the Blind175 and State University of
New York v. Fox,176 Whittle asserted that the commercial portions of
Channel One were "inextricably intertwined" with its educational
content and that one could not exist without the other. Whittle also
sought shelter under California law. According to the California
Constitution, every activity of a California public school must be
focused upon a valid educational purpose. However, California courts
have recognized that activities and procedures other than those
traditionally considered educational have been deemed suitable for
educational purposes and thus not in conflict with the purposes of
the school. Such materials are said to be merely "incidental to the
use of materials reasonably necessary to a valid educational
purpose."177 The Dawson court stated, "The commercial advertising
embedded in the video programming known as 'Channel One' is, and
remains, incidental to a valid educational purpose."178 Advertisers
can use the Dawson decision as a touchstone in designing their own
in-school advertising. According to the court in Dawson, there is
room in public school for commercial speech, so long as it is
inextricably intertwined with, or incidental to, a valid educational purpose.
How are regulations properly written?
To determine how regulations of in-school advertising are properly
written, this paper returns to the Central Hudson test. After the
commercial speech in question has been deemed to be eligible for
First Amendment protection and a substantial government interest has
been asserted, the analysis turns to the third and fourth prongs of
the test. Often taken together, these two prongs state that the
regulation in question must directly advance the government's
asserted interest and be narrowly drawn to address only that interest.
The Supreme Court has, at times, assumed without hard evidence that
a commercial speech regulation would advance a government interest.
Such was the case in Posadas de Puerto Rico Associates v. Tourism.179
In Posadas, the Court assumed that barring casino advertising in
Puerto Rico would serve the government interest of keeping citizens
out of casinos. The Court said it was reasonable for the Puerto Rican
Legislature to believe casino advertising would cause an increase in
gambling. However, since Posadas, the Court has been less willing to
make such assumptions. More recent cases, such as Rubin v. Coors
Brewing Co.180 and 44 Liquiormart, Inc. v. Rhode Island,181 have seen
the Court strike down advertising regulations because there is no
real evidence that they directly advanced the government's asserted interest.
In addition to the third prong's mandate that a commercial speech
regulation directly advance a government interest, the fourth part of
the Central Hudson test states that a regulation must be narrowly
drawn.182 The Court has stated that there must be a reasonable fit
between the government interest and the proposed regulation.183 This
criterion serves to limit the government's ability to enact broad
regulations that may restrict truthful speech for lawful products.
While Central Hudson is the landmark Supreme Court decision regarding
the regulation of commercial speech, the preceding analysis of this
chapter has shown the school to be a special environment for
advertising. Therefore, it is important to examine the two cases from
the case list in which schools were allowed by the courts to reject
advertisements to see how regulations are properly written.
In Planned Parenthood, the Clark County School District was allowed
to refuse to accept an advertiser's ad based on its content. This was
due in large part to the Hussey memorandum. Written before the ad was
submitted, Hussey's memo was designed to "provide guidance" to
principals as to what power they possess over advertising in their
schools.184 The memo lists several categories of advertising it may
exclude, including ads for drug paraphernalia, alcohol, and sexually
explicit materials. It also stated that if advertising is allowed
that promotes one side of a controversial issue, advertisements from
the opposing viewpoint should also be accepted. All of the guidelines
within the memo were found to be reasonable by the court.
The student editors took a different approach in Yeo. Each student
publication had an unwritten policy not to accept advocacy or
political advertising. In making its determination, the Yeo court
turned to the publications' actual practices rather than their
unwritten policies to make its determination. It found the record
supported the student editors' claims that they had never published
any ad contrary to its policy.
While Planned Parenthood was decided primarily on its public forum
analysis and Yeo on the issue of lack of state action, important
policy issues can be gleaned from both cases. First, for a school
seeking to reserve the right to reject advertising, it is better to
have a proactive rather than reactive policy. Second, policies are
best written to contain regulations that will be found reasonable by
the courts. Finally, schools should maintain not only policies, but
also practices, that are consistent with the values of the faculty,
students, and communities in which they operate.
Schools find themselves in the unenviable position of having
to both find new ways to generate auxiliary income and protect the
best interests of students. The current status of in-school marketing
may be best characterized as one of escalating bargaining power.
Marketers and school administrators have become more savvy in their
dealings with one another. As each group has embraced the practice of
in-school advertising, it has developed increasingly elaborate
mechanisms to fortify its negotiating position. Both groups appear to
have dug in for the long haul as even in-school advertising's
staunchest critics have conceded that the practice is here to stay.
The preceding cases have shown that courts recognize schools
as a unique environment for advertisers. The analysis has shown that
regulatory power over in-school advertising most often resides at the
local level. It has shown First Amendment claims can only be
substantiated if state action has occurred in rejecting an
advertisement and what was and wasn't state action. Student
publications were found to be a nonpublic forum, and thus subject to
any reasonable regulation. The analysis established protecting the
health and safety of students, preventing substantial disruption of
the school environment, preventing viewpoint discrimination and the
perceived imprimatur of the school, preventing students as a captive
audience and protecting student privacy, and promoting educationally
suitable materials as the substantial government interests that have
been asserted in the in-school advertising cases surveyed. It also
identified characteristics of properly written regulations as
narrowly drawn and proactive.
Despite the controversy surrounding in-school advertising, a
legal analysis found a disproportionately small number of cases
specifically addressed the First Amendment rights of advertisers. Six
cases were identified as relevant to the debate. The five major
issues extracted from those cases were state versus local control of
in-school advertising, state action in in-school advertising cases,
schools as public forums, substantial government interests in
justifying regulation, and how regulations of in-school adverting are
properly written. These issues were addressed using decisions from
the U.S. Supreme Court and all the in-school advertising cases.
The analysis showed courts have found authority for
regulating in-school advertising lies with local education officials.
In both of the cases that discussed this topic, state educational
bodies were unsuccessful in attempting to prevent local school boards
from entering into Channel One contracts. Courts in North Carolina
and California found decisions regarding commercial advertisers in
schools were best made at the local level based on the familiarity of
individual school districts with their own needs and resources.
State action was a crucial criterion that potential
advertisers must first prove to further a First Amendment claim.
While the First Amendment provides advertisers with some protections,
it does so only in cases where the government is implicated in
limiting speech. Censorship by private actors does not bring
constitutional obligations into question. In cases where rejection of
a proffered ad was the result of students acting alone, courts found
no state action and upheld the right of the publication to refuse to
The courts have frequently employed a public forum analysis
in deciding cases of in-school advertising regulation. Based on the
cases reviewed, courts appear to be increasingly willing to rely on a
school's intentions in creating a public forum, and not merely its
policies and practices, in determining schools to be a nonpublic
forum. Thus, schools have been allowed wide latitude to choose those
advertisers they wish to accept and those they wish to reject.
Several substantial interests that schools have asserted to
justify their regulation of commercial speech were identified. They
are protecting the health and safety of students, preventing
substantial disruption to the school environment, preventing students
as a captive audience and protecting student privacy interests,
preventing viewpoint discrimination and the perceived imprimatur of
schools, and promoting educationally suitable materials. Generally,
the courts have decided cases in favor of a school's right to reject
advertisements it deems to be at odds with its educational mission.
Overall, as the presence of in-school advertising has grown,
so too has the schools' authority to keep it out. The cases analyzed
unanimously point to the conclusion that local school boards have
virtual carte blanche in making advertising decisions. Thus, an
advertiser hoping to force a school to accept its advertisements is
faced with a daunting task. This thesis clearly shows an advertiser
has very limited rights in forcing a school to accept its
ads. However, the scarcity of cases focusing on advertisers'
attempts to force schools to accept their ads indicates litigation is
often not needed. Local school boards have frequently welcomed most
advertisers into schools.
Four types of in-school advertising currently provide the greatest
fuel for debate. Advertising on school buses, exclusive soda contacts
and vending machines, signs and billboards on school buildings, and
technology-based learning aids are the most hotly contested
incarnations of in-school advertising. The preceding analysis
provides some guidance as to possible outcomes in cases regarding
these types of advertising.
All indicators point to advertisers as a fixture in U.S.
public schools for the foreseeable future. However, this is not due
to the limited First Amendment protection their messages receive.
Instead, their presence is justified as a matter of educational
utility resulting from strictly economic considerations. As long as
schools remain under funded, local officials will continue to turn to
private business as a resource to supplement their budgets. However,
when doing so, school officials have been afforded great freedom by
the courts to enact guidelines and policies that allow them to reject
ads at their own discretion.
Advertisers are enjoying unprecedented access to students in
schools. However, an advertiser seeking to force a school to accept
its advertisement has little legal recourse in doing so. Yet,
marketers will continue trying to build customer retention and
loyalty. Recognizing the lifetime value of the consumer, they attempt
to build long-term, value-laden relationships by establishing product
preferences from the earliest of ages. Schools provide an invaluable
resource for research, development, testing, and sales that
indoctrinate young consumers and breathe new life into the old
Proctor & Gamble credo "from the cradle to the grave."
Emerging from this analysis is the realization that there is
an enormous amount of concern surrounding in-school advertising.
There are heated issues and deeply held beliefs on either side of
this debate. However, frequently both advertisers and schools
officials need to educate themselves on the law of commercial speech
in schools. For those that want advertisers out of public schools,
the answer is frustratingly simple, find ways to inject more money
into the system. Until that is accomplished, the school-business
partnership cycle is destined to repeat itself as the dollar amounts
and sophistication of school commercialism continue to escalate.
Those seeking national, blanket prohibitions on in-school adverting
are unrealistic. Furthermore, opponents of in-school advertising who
are fighting this battle at the national level are missing the mark.
Although this is an issue of national importance, all decision-making
authority resides at the local level. Those attempting to affect
change must direct their efforts to district, county, and local
officials to have any chance of success. Until they do, they are
merely spinning their wheels.
1 Jef I. Richards, Ellen A, Wartella, Cynthia Morton & Lisa Thompson,
Children and Television: The Growing Commercialization of
Schools, 557 ANNALS AM. ACAD. POL. & SOC. SCI. 148 (1998).
2 Amy Aidman, Advertising in Schools, Eric Digest ED389473 (December
1995), available at http://www.ed.gov/databases/Eric_Digests/ed389473.html.
3 Richards et al., supra note 1, at 151.
4 Commercialism in Education Research Unit (CERU) conducts research,
disseminates information, and helps facilitate a dialogue between the
education community, policy makers, and the public at large about
commercial activities in schools. CERU is the only national academic
research center dedicated to schoolhouse commercialism.
5 CERU defines the sponsorship of programs and activities as
corporations paying for or subsidizing school events and activities
in return for the right to associate their name with the events and
6 CERU defines incentive programs as programs that provide awards,
goods, or services to a student, school, or school district when
students, parents, or staff engage in a specified activity or
demonstrate particular behaviors. They serve a variety of purposes
including encouraging students to read, to stay in school, to improve
standardized test scores, and to stay out of trouble.
7 Alex Molnar & Jennifer Morales, Commercialism @ Schools, 58
EDUCATIONAL LEADERSHIP 39, 38-44 (2000).
8 Consumers Union Report, Captive Kids: a Report on Commercial
Pressures on Kids at School (1998), available at
http://www.igc.org/consunion/other/captivekids/summary (last visited
Nov. 25, 2005).
13 Gary Ruskin, Good News on School Commercialism (2001), Commercial
Alert, available at
(last visited Nov. 22, 2001).
14 Robert A. Weisenfeld, Comment, Paraphernalia Advertising at the
Schoolhouse Gate: Williams v. Spencer and the Restriction of Student
Speech, 62 B.U. L.REV. 1029, at 1030 (1982).
15 Richards et al., supra note 1, at 151.
20 Id. at 153.
23 Id. at 155.
27 Id. at 154.
29 Kathy Brittain McKee & Eric Haley, Regulating Channel One Within
Public Schools: Precedents and Parameters, 16 COMM. & L. 37 (1994).
30 Jason Vauhgn, Big business and the Blackboard: A Winning
Combination for the Classroom? 26 J.L. & EDUC. 35, 36 (1997).
"Faustian Bargain" refers to a character for Johann Wolfgang von
Goethe's 1883 novel, "Faust: Part One" in which the title character,
Dr. Faust, makes a pact with the devil for supernatural powers. The
term has come to represent the negative consequences of making a deal
with the devil.
31 Cynthia Newsome, Pay Attention: A Survey and Analysis of the Legal
Battle Over the Integration of Forced Television Advertising into the
Public Curriculum, 24 RUTGERS L.J. 281, at 283 (1992). "Trojan Horse"
is a commonly used metaphor originating in Greek mythology. According
to myth, the Greeks were at war with the inhabitants of the walled
city of Troy. The Greeks built an enormous wooden horse and left it
outside the gates of the city. The Trojans, told that the horse was a
gift to the goddess Athena, wheeled the horse inside the city. That
night, Greek soldiers emerged from the horse, opened the city gates,
and let the rest of the Greek army in. Today, "Trojan horse" is a
metaphor for a tactic used to defeat an adversary from within and is
often used when describing strategy.
33 Christina Lee Dasinger, Students for Sale: The Regulation of
Televised Commercial Advertising in Public Schools, 20 LAW & PSYCHOL.
REV. 197, 214 (1996).
34 Id. at 199-200.
35 Id. at 210. See also Dawson v. East Side Union High School
District, 28 Cal. App. 4th 998 (1994).
36 McKee et al., supra note 29, at 39.
37 Micheal Hoefges & Milagros Riveria-Sanchez, Vice Advertising and
the Supreme Court's Commercial Speech Doctrine: The Shifting Central
Hudson Analysis, 22 HASTINGS COMM. & ENT. L.J. 345 (2000).
38 McKee, supra note 29, at 40-43.
39 In Tinker, a school district's principals passed a regulation that
prohibited students from wearing black armbands protesting the
Vietnam War. Students who ignored the regulation were suspended.
Students sued the school district claiming their First Amendment
right to freedom of expression had been violated.
40 McKee, supra note 29, at 40.
41 Id. at 40.
42 Board of Education v. Pico, 457 U.S. 853 (1982).
44 Id. at 871.
45 McKee, supra note 29, at 42.
46 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 271 (1998).
47 Id. at 266.
48 McKee, supra note 29, at 43.
49 Id. at 45.
51 Id. at 50.
52 Benjamin Wattenmaker, Yeo v. Lexington: Abridging Rights of
Publication in Student Newspapers, 40 B.C.L. REV 573, 580 (1999).
55 Id. at 581.
58 Recent Case, First Amendment – Freedom of Speech—School District
May Exclude Advertisement from School Newspaper, 105 HARV. L. REV 597 (1991).
59 Wattenmaker, supra note 52, at 597 (referring to Hazelwood and
60 Newsome, supra note 31, at 283.
61 North Carolina v. Whittle Communications, 402 S.E.2d 556 (N.C. 1991).
62 Newsome, supra note 31, at 298.
64 Id. at 307.
65 Id. at 305.
66 Public Utilities v. Pollack, 343 U.S. 451 (1952).
67 Id. at 464.
68 Vance v. Judas Priest, 16 Media L. Rep.2241, 2249 (Nev. Dist. Ct.
1989). In Vance v. Judas Priest, parents of a teen who attempted
suicide after listening to music by the band Judas Priest claimed
their son's constitutional privacy rights had been violated due to
subliminal messages encouraging suicide in the music. The court found
the freedom to be free from such messages to be fundamental and
outweighed the band's First Amendment rights of expression.
69 Newsome, supra note 31, at 308.
70 Id. at 319.
72 Williams v. Spencer, 622 F.2d 1200 (4th Cir. 1980); San Diego
Committee Against Registration and the Draft (CARD) v. Governing
Board of the Grossmont Union High School District, 790 F.2d 1471 (9th
Cir. 1986); Planned Parenthood of Southern Nevada v. Clark County
School District, 941 F.2d 817 (9th Cir. 1991); North Carolina v.
Whittle Communications, 328 N.C. 456 (N.C. Sup. Ct. 1991); Dawson v.
East Side Union High School District, 28 Cal. App. 4th 998 (1994);
and Yeo v. Town of Lexington, 131 F.3d 241 (1st Cir. 1997).
73 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969).
74 Hazelwood Sch. Dist. v. Kulhmeier, 484 U.S. 260 (1988).
75 THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES,
875 (Kermit L. Hall ed., 1992).
77 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969).
80 See public forum discussion in literature review, p.22.
81 Kent R. Middleton et al., THE LAW OF PUBLIC COMMUNICATION 55 (1997).
82 Imprimatur refers to the official approval of publication by a censor.
83 North Carolina v. Whittle Communications, 328 N.C. 456 (N.C. Sup.
Ct. 1991); Dawson v. East Side Union High School District, 28 Cal.
App. 4th 998 (1994).
84 Dawson v. East Side Union High School District, 28 Cal. App. 4th 998 (1994).
85 North Carolina v. Whittle Communications, 328 N.C. 456 (N.C. Sup. Ct. 1991).
86 Much of Dawson hinges on the captive audience argument, which will
be discussed later in this chapter. However, the Dawson court also
chose to specifically address the issue of state versus local
control, which is of interest here.
87 Cal. Const., art. IX § 1.
88 Dawson v. East Side Union High School District, 28 Cal. App. 4th
998, 1018 (1994). See also Cal. Ed. Code, § 60002.
90 Id. at 1014.
92 Id. at 1018.
93 North Carolina v. Whittle Communications, 328 N.C. 456, 460 (N.C.
Sup. Ct. 1991).
94 N.C. Administrative Rules Commission is a division of the Office
of Administrative Hearings (OAH) and performs administrative and
technical duties in the compilation, production, and publication of
the North Carolina Register and the North Carolina Administrative
Code. It has the authority to enact temporary rules in certain
emergency circumstances. Temporary rules remain in effect for 270 days.
95 North Carolina v. Whittle Communications, 328 N.C. 456, 460 (N.C.
Sup. Ct. 1991).
97 Id. at 461.
99 The authority of a court to decide a particular type of case is
called subject matter jurisdiction and is set by the federal or state
constitution, or by state statutes as it was in this case.
100 North Carolina v. Whittle Communications, 328 N.C. 456, 462 (N.C.
101 Id. at 463.
103 Id. at 464.
104 Dawson v. East Side Union High School District, 28 Cal. App. 4th
998, 1019 (1994).
105 North Carolina v. Whittle Communications, 328 N.C. 456, 464 (N.C.
Sup. Ct. 1991).
106 Tulsa Professional Collection Services Inc. v. Pope, 485 U.S. 478 (1988).
107 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
108 Yeo v. Town of Lexington, 131 F.3d 241, 249 (1st Cir. 1997).
109 Marsh v. State of Alabama, 326 U.S. 501 (1946); Hudgens v.
National Labor Relations Review Board, 424 U.S. 507 (1976).
110 Yeo v. Town of Lexington, 131 F.3d 241 (1st Cir. 1997).
111 Id. at 242.
112 Summary judgment means to rule on the basis of affidavits rather
than after extensive testimony has been taken about contested facts.
Typically, summary judgment occurs in cases in which the facts are
not in dispute.
113 En blanc is a French term used when all the judges of an
appellate court decide a case. More typically, a single judge or
small number of judges, called a panel, decide a case.
114 Yeo v. Town of Lexington, 131 F.3d 241, 242 (1st Cir. 1997).
115 Yeo v. Town of Lexington, 131 F.3d 241, 249 (1st Cir. (1997).
116 Denver Area Educ. Telecomm. Consortium, Inc. v. Federal
Communications Comm'n, 518 U.S. 727 (1996). See also Yeo at 250.
117 See generally Cornelius v. NAACP, 473 U.S. 788, 105 S. Ct. 3439
(1985); Perry Education Association v. Perry Local Educators'
Association, 460 U.S. 37, 103 S.Ct. 948 (1983).
118 United States Postal Service v. Council of Greenburgh Civic
Associations, 453 U.S. 114, 129-30, 101 S.Ct. 2676 (1976).
119 Greek v. Spock, 424 U.S. 828, 96 S.Ct. 1211 (1976).
120 Cornelius v. NAACP, 105 S.Ct. at 3448 (1985).
121 Perry Education Association v. Perry Local Educators'
Association, 460 U.S. 37, 46, 103 S.Ct. 948 (1983).
122 Judicial activism refers to judges turning away from established
precedent in creating new case law. In cases of judicial activism,
judges often infer new meaning when interpreting the old words of the
123 The administrative claim is a non-legal course of action through
the local school board that can be used to resolve such matters prior
to, or instead of, filing a lawsuit.
124 San Diego Committee Against Registration and the Draft (CARD) v.
Governing Board of the Grossmont Union High School District, 790 F.2d
1471, 1473 (9th Cir. 1986).
125 Perry, 460 U.S. at 45; See also San Diego Committee Against
Registration and the Draft (CARD) v. Governing Board of the Grossmont
Union High School District, 790 F.2d 1471, 1475 ( 9th Cir. 1986).
126 Perry, 460 U.S. at 46; See also San Diego Committee Against
Registration and the Draft (CARD) v. Governing Board of the Grossmont
Union High School District, 790 F.2d 1471, 1475 (9th Cir. 1986).
127 San Diego Committee Against Registration and the Draft (CARD) v.
Governing Board of the Grossmont Union High School District, 790 F.2d
1471, 1473 (9th Cir. 1986)
128 Id. at 1476.
129 CARD at 1476, citing Widmar v. Vincent, 454 U.S. 263, 267, 102
S.Ct. 269 (1981). In Widmar, the Court held that a university, which
had created a wide-open and independent forum for registered student
groups, could not exclude those groups who sought to use the forum
for religious worship or discussion.
130 San Diego Committee Against Registration and the Draft (CARD) v.
Governing Board of the Grossmont Union High School District, 790 F.2d
1471, 1476 (9th Cir. 1986), citing City of Madison Joint School
District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167
(1976). In City of Madison, the Court found the necessary intent to
create a public forum for discussion of school board business.
Because the board meetings were open to the public, the state created
a forum for direct citizen involvement in which any citizen could
have presented his viewpoint. The Court found the discrimination
between speakers to be impermissible.
131 Id. at 1478.
133 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817 (9th Cir. 1991).
134 Planned Parenthood is a non-profit corporation that conducts a
family planning program that provides clinical, educational, and
counseling services relating to reproductive health.
135 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 936 (9th Cir. 1991).
136 As in CARD, the court determined the commercial speech in Planned
Parenthood to be political in nature and thus deserving of the
greater protection the compelling interest standard affords.
137 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 939 (9th Cir. 1991).
139 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 940 (9th Cir. 1991).
140Id.; Hazelwood v. Kuhlmeier, 108 U.S. 560, at 568.
142 Hazelwood v. Kuhlmeier, 108 U.S. 560, at 567.
143 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 941 (9th Cir. 1991), citing Perry, 460 U.S. at 44.
144 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974). In Lehman,
the Court held that much like a newspaper, periodical, or radio
station, a city transit system need not accept every advertisement.
Instead, the Court allowed the city the discretion to make reasonable
choices concerning the type of advertising that may be displayed on
its vehicles, so long at the policies and practices are not arbitrary.
145 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 944 (9th Cir. 1991).
146 Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S.
557, 6 Media L. Rep. (BNA) 1487 (1980).
147 Id. at 562-63. It is interesting to note that, although decided
after Central Hudson, both CARD and Planned Parenthood required the
government to prove a compelling interest, instead of a merely
substantial one, even though the cases involved commercial speech.
This is at odds with Central Hudson and likely resulted from the
court's consideration of the speech in question as political and not
merely commercial, or one that proposes merely a commercial transaction.
148 Middleton, supra note 81, at 304. Also, the third and fourth
parts of the Central Hudson test will be discussed in more detail
later in this chapter.
149 Williams v. Spencer, 622 F.2d 1200 (4th Cir., 1980).
150 (S.R.R.P.) § IVC-2 (d). If the distribution is halted, the
principal shall state his/her reasons in writing within two days,
providing a copy to the students making the distribution and a copy
to the area assistant superintendent. Such a decision may be appealed.
151 Williams v. Spencer, 622 F.2d 1200, 1203 (4th Cir. 1980).
152 Id. at 1205.
154 Quaterman v. Byrd, 453 F.2d 5 (4th Cir.1971), Baughman v.
Freiemuth, 478 F.2d 1345 (4th Cir. 1973), and Nitzberg v. Parks, 525
F.2d 378 (4th Cir. 1971).
155 Williams v. Spencer, 622 F.2d 1200, 1206 (4th Cir. 1980).
156 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 940 (9th Cir. 1991), citing Cornelius, 473
U.S. S.Ct. at 804.
157 Imprimatur refers to the official approval of publication by a censor.
158 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 940 (9th Cir. 1991), citing Hazelwood, 108
U.S. S.Ct. at 569.
159 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 940 (9th Cir. 1991).
160 Id. at 941.
161 Public Utilities Comm'n v. Pollack, 343 U.S. 451 (1952).
162 Id. at 467.
163 Id. at 466.
164 Lehman v. City of Shaker Heights, at 301.
165 Id. at 307.
166 North Carolina v. Whittle Communications, 328 N.C. 456, 460 (N.C.
Sup. Ct. 1991), See also N.C. Admin. Code tit. 16, r. 6D .0105 (February 1990).
167 Dawson v. East Side Union High School District, 28 Cal. App. 4th
998, 1010 (1994).
168 Id. at 1012.
170 Id. at 1014.
171 Id. at 1016.
173 Id. at 1046.
174 North Carolina v. Whittle Communications, 328 N.C. 456, 561 (N.C.
Sup. Ct. 1991).
175 Riley v. National Federation for the Blind, 487 U.S. 781 (1988).
176 Board of Trustees of the State University of New York v. Fox, 492
U.S. 469 (1989).
177 Dawson v. East Side Union High School District, 28 Cal. App. 4th
998, 1046 (1994).
179 Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico,
478 U.S. 328 (1986). In Posadas, the Puerto Rican government sought
to ban advertisements for casino gambling asserting controlling
gambling to be a substantial government interest.
180 Rubin v. Coors, 115 S.Ct. 1585, 23 Media L. Rep. (BNA) 1545
(1995). Rubin v. Coors struck down a federal regulation prohibiting
statements of alcohol content on beer labels because the ban would
not sufficiently advance the government interest in preventing
strength wars, contests in which brewers attempt to increase market
share by advertising the high alcohol content of their product.
181 44 Liqourmart, Inc. v. Rhode Island, 116 S.Ct. 1495, 24 Media L.
Rep. 1673 (1996). In 44 Liqourmart, the Court struck down a ban on
advertising alcohol prices because it did not demonstrate that the
ban would directly advance the government's asserted interest of
182 There has been a great deal of debate as to the true meaning of
the fourth part of the Central Hudson test as the Supreme Court has
often been indecisive with regard to its application.
183 Board of Trustees of the State University of New York v. Fox, 492
U.S. 469 (1989).
184 Planned Parenthood of Southern Nevada v. Clark County School
District, 941 F.2d 817, 821 (9th Cir. 1991).