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Ithaca 'Tattler' Loses Another Round in Cartoon War

2nd Circuit issues an opinion as rinky-dink as the school's sex ed classes

Ithaca 'Tattler' Loses Another Round in Cartoon War

ITHACA, N.Y.—Kids! What'cha gonna do about 'em? Aside from deep-six their constitutional rights, that is?

There's this school, see—Ithaca High School—and the school has a monthly newspaper called The Tattler, whose name in itself suggests that its contents might be a bit racy ... but after all, it is high school, so how racy could it get?

But they do teach "sex ed" in high school, though since this situation occurred right after the 2004 presidential election, and W was riding high in the polls, how much sex education could the Ithaca High School (IHS) students expect beyond "Don't do it"?

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But in late December of '04 or early January of '05—no one's sure of the exact timing—The Tattler's editor-in-chief Robert Ochshorn accepted for publication, for the February 2 issue, an article titled  "How is sex being taught in our health classes?," according to an article at the Student Press Law Center website.

But it wasn't the article that got this legal ball rolling: It was the cartoon that was to accompany the article, reproduced above. It depicted a crudely-drawn doorway labeled "Health 101" and a crudely-drawn stick-figure teacher standing by a crudely-drawn blackboard and pointing to six crudely-drawn stick-figure couples having crudely-drawn stick-figure sex. Even by 2005 standards, the depictions rank way, way below even Sears catalog underwear ads in terms of sexual stimulation.

But before anything is published in The Tattler, it has to be approved by the newspaper's faculty advisor, who in late 2004 was English teacher Stephanie Vinch—and she's supposed to oversee (and censor) articles that are (allegedly) "ungrammatical, poorly written, inadequately researched, inaccurate, libelous, biased or prejudiced, unethical, vulgar or profane, or ... not suitable for immature audiences."

Guess what she thought that crudely-drawn stick-figure cartoon was?

Needless to say, Ochshorn didn't agree, and after Vinch forced him to remove the cartoon from the upcoming issue of The Tattler, he ran the story anyway with a blank space where the cartoon would have been, and the following month, Vinch resigned her post as advisor, leaving the paper unable to publish as "The Tattler," so the staff took the paper "underground," financed the printing with their own money, and published as "The March Issue"—including the censored cartoon. The Ithaca City School District (ICSD) then decided that, because of the cartoon, The March Issue wasn't fit for distribution on school property either, and banned it. The paper's staff appealed that decision as far as they good, with no success.

"I believe that the cartoon at issue is obscene, and further that its distribution would be offensive to many students and confusing to others, particularly immature students whose understanding of and views about sexual relations are not fully formed," declared ICSD superintendent Judith Pastel. "Further, its distribution would interfere with teaching of the current health curriculum, in particular that sexual relations is a matter to be taken seriously."

Seriously. She said that. About that cartoon.

Oh, yeah; and after the paper's staff graduated, they filed suit in district court to remove the ability of the school administration to censor The Tattler.

Sadly, the suit hasn't fared very well.

"In its Memorandum Decision and Order, the District Court held that The IHS Tattler qualified as a 'limited public forum,' and, therefore, that its contents were subject to 'reasonable and viewpoint neutral' restrictions," the Second Circuit panel recapped. "Next, the Court held, pursuant to [Bethel School District No. 403 v.] Fraser and Hazelwood [School District v. Kuhlmeier] that ICSD's refusal to publish a sexually explicit cartoon in The IHS Tattler was reasonable and viewpoint-neutral because the cartoon was lewd and conflicted with the school's legitimate pedagogical concerns. Third, the Court held, pursuant to Tinker [v. Des Moines Independent Community School District], that ICSD's refusal to distribute The March Issue was reasonable and viewpoint-neutral because distribution of the cartoon would materially and substantially disrupt the classwork and discipline of the school." [Citations removed here and below]

Wow! "Sexually explicit," "lewd," "substantially disrupt the classwork and discipline of the school"?—that friggin' cartoon???

The Tinker case, of course, is the Supreme Court's seminal 1969 student freedom of speech case, having involved a school district that prohibited students from wearing anti-Vietnam War armbands on school grounds, which the high court found to pure, protected political speech.

"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the Supreme Court wrote in Tinker. "This has been the unmistakable holding of this Court for almost 50 years."

Moreover...

"The court just fundamentally misunderstood what it means to be a limited public forum," stated Frank LoMonte, executive director of the SPLC, of the district court decision. "A forum where the government gets to pick and choose which cartoons it likes is meaningless."

LoMonte added that the "forum" was "limited" only because authorship of articles in the paper was limited to students at the school, not "limited" to topics approved by the school's administrators. Moreover, he noted that the Fraser case involved a student who gave a speech at a school assembly that contained many instances of sexual innuendo, and therefore was inapplicable to the current case.

The appeals court, of course, disagreed with all of that.

"While ICSD apparently opened the newspaper to some—or even many—types of speech, there is no evidence that the school permitted 'indiscriminate use by the general public,' as is required to create a traditional public forum or designated public forum," The appeals court wrote. "Rather, the school confined the paper to content consistent with a supervised, age-appropriate learning experience for student editors and high school readers... In a limited public forum, the government may restrict speech in a way that is viewpoint-neutral and reasonable in light of the forum’s established purpose."

And of course, ruling against sexual material—even that hand-drawn piece of crap—is always "viewpoint-neutral and reasonable" when it comes to "supervised, age-appropriate learning experience[s]" for 15, 16 and 17-year-olds.

"The censored cartoon that is in the record before us contains drawings of stick figures in various sexual positions and is unquestionably lewd," the appeals court stated—and who in authority would argue with that?

Maybe Second Circuit Judges Jose Cabranes and Denny Chin, and district court judge Edward R. Korman (sitting by designation) ought to take a short course in M-TV if they want to see what "lewd" images high-schoolers are watching in 2011.






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Mark Kernes

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