High school may censor George Floyd sonnet from student literary magazine

The Court of Appeals holds that a high school was able to censor a student publication by rejecting a student-written sonnet about the George Floyd killing.

The case is Kristoffersson v. Port Jefferson Union Free School District, a summary order issued on July 12 Student speech rights in the high school setting are governed by a few Supreme Court rulings, including the Hazelwood decision from 1988, which gives school principals broad rights to edit and censor school-sponsored publications. Few cases prevail under the Hazelwood ruling, and this one fails, as well.

The school would not allow the high school literary publication to run plaintiff's poem about Floyd, whose murder gave rise to nationwide protests in 2020. The complaint alleges as follows:

In April 2021, shortly after a jury found Derek Chauvin guilty of Floyd’s murder, R.R. wrote a sonnet in iambic pentameter with the title “Derek Chauvin’s Ode to George Floyd: A Dark Sonnet.” According to the complaint, the sonnet was intended to “reflect the contemptuous racial hatred demonstrated by a white figure of authority for a helpless African American,” “capture the deeply bred racially motivated cause of the death of George Floyd,” and “convey the intense reason for the nation-wide reaction to Chauvin’s murder of George Floyd.”

While the school district told the plaintiff that her sonnet was "very well-written," it denied its publication on the basis that it would "create adverse emotional reactions and strife in the Port Jefferson community, amongst students and faculty, due to the sonnet's allegedly controversial content." 

At first glance, it might look like plaintiff has a great case, as the school district's decision appears to be pure censorship. And, besides, who is the school to claim that a sonnet like this will cause serious problems at the school? But, again, the Hazelwood decision governs this case. Hazelwood says the school may generally restrict speech in school-sponsored publications unless the district is censoring one political viewpoint over another. That is not the case here, as the district did not allow a contrary viewpoint on the George Floyd case to be published, and, in this Rule 12 context, plaintiff's claim that the school did not want to offend the white majority in the student body is conclusory and devoid of additional factual allegations that might allow this case to proceed any further. Content-based discrimination is legal under Hazelwood; viewpoint-based discrimination is not legal. Since this is a content-based discrimination case, plaintiff loses.

The Supreme Court lately has been reexamining prior precedents and has even rejected them decades after they were initially decided. Although the Justices who decided Hazelwood are long gone, I seriously doubt Hazelwood will be reversed by the Supreme Court, at least not this incarnation. I do not see a movement to overrule Hazelwood, and while the Court has extended broad First Amendment protections in other contexts (campaign finance, union dues, religious speech), the Court is not prepared to second-guess high school authorities on what can and cannot be published in student publications. The Second Circuit (Raggi, Menashi and Nathan) has no power to ignore Supreme Court rulings, and that dooms this case.

As a former high school and college journalist who did professional journalism for a brief period before going to law school, I can relate to plaintiff's frustration in not having her sonnet published. In the spirit of high school journalists everywhere, I will publish it here, taken from the trial court ruling:

From Momma's hands, you had not any chance. The street, the `hood made you so young ashamed To stand tall, to control your circumstance. "Black man, it's you we'll crack," white men proclaimed; "Stay down," they say, your fate is in our hands. Obey, ok, obey me, I'm the cop Who kneels upon your naked soul, who stands On top your darkened head until you stop Your sorry cry for mamma; take no breath, I bring justice here, pressed upon your neck. If I decide, you now face certain death, A fate deserved, `cuz you passed a bad check. You can't breathe? Then cease your black man drama, I will make you weep for "Mamma! Mamma!"