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Buzz wins First Amendment appeal in SF court

Former NHS student's column was protected by state law, judge says

By Kendall Watson Staff Writer
Wednesday, May 30, 2007 4:43 PM PDT

The Buzz may be long gone, but the words of the defunct student paper are still ringing in the ears of the Novato Unified School District.

Reversing a 2005 decision, the 1st District Court of Appeals court in San Francisco ruled May 21 that the NUSD had violated a student's free-speech rights in 2001 and is liable for litigation fees totalling more than $20,000. Andrew Smith, a 2002 Novato High School graduate, was an opinion editor for the school paper, The Buzz, and penned a provocative editorial, titled “Immigration.” The article ran in the student paper Nov. 13, 2001. In it, he described the steps immigrants must follow for legal citizenship and criticized what he saw as illegal immigration. He specifically cited Mexico as a source of illegal immigrants.

“There should be no tolerance for anyone to be an illegal immigrant,” he said. “ If you can't comply with our requirements, then stay out of our country.”

The next day, a number of students walked out of their classrooms in protest and stormed then principal Lisa Schwartz's office. The reaction prompted then-Superintendent John Bernard and Schwarz to send a letter home to parents saying that the article should not have been published, and later insisted that any further articles from Smith in the same vein be balanced with an opposing viewpoint.

Andrew and his father, Dale, filed suit in Marin Superior Court in 2002 and eventually faced Judge John Sutro in 2005. The Smiths paid the District's litigation costs when they were held liable by Judge Sutro when he dismissed the case. But the Smiths refused to give in. The appeal, which was later joined by the ACLU and the Student Press Law Center, was ultimately successful.

“This is the first time that (a state court) defined incitement,” said Paul Beard II, an attorney from the Pacific Legal Foundation representing Smith in the case. “It's a published decision that will apply to all the schools in the state.”

In her decision, Appellate Judge Linda M. Gemello said that state law “mandates that a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.” The California Education Code and the state constitution offer significantly stronger free speech protections to high school students than federal law, said Beard. “We're probably the most protected state” in terms of free speech, he said.

Following the notoriety of the case, The Buzz reportedly failed to garner interest from students in 2002 and was scrapped.

Fighting the allegations for over five years, NUSD Superintendent Jan La Torre-Derby said the school district has not yet decided the next step. “It's disappointing,” she said. La Torre-Derby was the District's Assistant Superintendent at the time. “The district's insurance carrier, Keenan and Associates, will determine the next course of action,” she said. The NUSD can file motions to dispute the findings of the appeals court, but the clock is ticking. They must file a petition of the ruling by June 5 or appeal the decision to the California Supreme Court by June 29.

Smith, now 23 years old and serving in the U.S. Marine Corps Reserve, is back in Novato and has applied for admission to the Oakland Police Academy. “There are some hard feelings,” said Smith. “We just wanted what was right.” After years of fighting the case, his father Dale was circumspect. “It was a tough thing to go through,” he said.

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