By Gene Barton

As you have no doubt heard, The Seattle Times and the Seattle Post-Intelligencer are in litigation over the Times’ efforts to revisit and possibly terminate the newspapers’ 22-year-old joint operating agreement. The question of whether the Times can terminate the agreement goes to the details of the agreement itself. Good old contract law. In a blow to the P-I and its owner, Hearst Communications, the Washington Supreme Court -- affirming the Court of Appeals -- ruled on June 29 that the Times could rely on an “escape” clause in the JOA that allows the Times out of the pact if it posts operating losses for three consecutive years.1

The minutiae will not be revisited here. Rather, we are looking into historical context. In 1969, the Supreme Court decided United States v. Citizen Pub’g Co., 394 U.S. 131, also known as the “Tucson case.” The case involved, principally, a joint operating agreement between the city’s evening newspaper, the Tucson Daily Citizen, and its morning paper, the Arizona Daily Star. As is now typical in JOAs, the agreement merged the two newspapers’ printing, circulation and advertising operations while maintaining separate editorial departments.

The Antitrust Division of the Department of Justice saw things differently and filed suit to divorce Tucson’s strange bedfellows. The U.S. District Court for Arizona found for the government and the U.S. Supreme Court affirmed. In an opinion written by Justice Douglas, the Court found that “beyond peradventure of doubt” the Tucson JOA violated antitrust laws. In so holding, the Court rejected the newspapers’ argument that the agreement was permissible under the “failing company doctrine” used to slip mergers and acquisitions under the anti-trust radar.

At the time, there were 22 JOAs between competing newspapers across the U.S. Congress immediately stepped in, acting in response to howls of protests from publishers. Just two days after the Tucson decision was handed down, bills were offered in both houses of Congress to legalize JOAs. Building on momentum generated during hearings in the prior session on the “Failing Newspaper Act,” the redubbed “Newspaper Preservation Act” quickly gained legs and was signed into law by President Nixon on July 24, 1970.2 The Act was given another name by its detractors: the “Crybaby Publishers Bill.” One challenge to the Act’s constitutionality, brought by a monthly newspaper publisher in San Francisco, failed.3

What Right Does a School District Have To Control Content in a Student Publication?

You may have caught the story in the Times on July 18 reporting that the Shoreline School District shredded about 200 copies of Shorewood High School’s annual literary magazine, Imprints. The incident stemmed from a student poem about a teenager’s first sexual encounter that included a profane word in the title. After the shredding, the District reprinted the magazine without the poem, leaving a blank page in its place. The District’s associate superintendent said the entire poem was not age-appropriate.

The District’s decision was grounded in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), in which the Supreme Court ruled: “[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”4 In Hazelwood, much like in Shoreline, a school principal took issue with two stories in an upcoming edition of the school’s student newspaper, Spectrum, regarding divorce and teen sex. He ordered the two pages on which the articles appeared (which also included other stories) removed.

The newspaper was published as part of the school’s journalism class, which figured significantly in the Court’s decision. As part of the regular curriculum, the class was a “supervised learning experience for journalism students” and, therefore, not a public forum where the school’s ability to restrict speech would have been lessened.5 “Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner.”6

The Court identified the relevant issue as “whether the First Amendment requires a school affirmatively to promote particular student speech” particularly with respect to “school-sponsored publications . . . that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”7 Such activities, the Court found, “may fairly be characterized as part of the school curriculum. . . so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”8 The Court held that schools could “exercise greater control over this second form of student expression,” in part so that “readers . . . are not exposed to material that may be inappropriate for their level of maturity . . . . Hence, a school may in its capacity as publisher of a school newspaper . . . ‘disassociate itself’ . . . from speech that is, for example, . . . vulgar or profane, or unsuitable for immature audiences. . . . [A] school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics[.]”9

While the facts of the Shoreline incident probably satisfy the Supreme Court’s “pedagogical concerns” in Hazelwood (Imprints being the product of the school’s magazine class), the District may have overreacted and, thus, violated the Hazelwood tenets, by omitting the entire poem from the re-issued Imprints, rather than just deleting the offending word from the title. But, then, we don’t know what the poem said. If, in fact, it was not “age-appropriate” under Hazelwood, the District may well have been within its constitutional rights to pull it. n

1 See Hearst Comm., Inc. v. Seattle Times Co., No. 75400-4, 2005 Wash. LEXIS 549. See also Hearst Comm., Inc. v. Seattle Times Co., 120 Wn. App. 784, 86 P.3d 1194 (2004).

2 See 15 U.S.C. ¤¤ 1801--04.

3 See Bay Guardian Co. v. Chronicle Pub’g Co., 344 F. Supp. 1155 (D.C. Cal. 1972).

4 484 U.S. at 273.

5 Id. at 270.

6 Id.

7 Id. at 270--71.

8 Id. at 271.