Constitutions
(ColllillJU.dfr()tft pa8� U) "freely speak, write and publish his sen timents on all SUbjects." The trial court held that the language and purpose of this clause were not the same as those of the First Amendment and that the New Jersey Constirution shoul d be interpreted to provide stron gex protection for student expression. Other students are making similar state constirutional claims in two cases curren tl y before courts in Oregon3 and Washington state.4 (See Winter 1992-93 SPLC Report, p. 4; Fall 1992 SPLC RepoN, p.
stand a California Supreme Court deci sion stating that the California Constitu tion protects speech and petitioning, reasonably exercised, in [private] shop "
ping centers," even though such speec h rna y notbe protected by the First Amend menl Since Pruneyard. courts in other states, i nc l udi ng Wisconsin, Pennsylva nia and New Jersey have interpreted their s tatecoosLituuons to provide greater protection for spuch on private prop erty.
9.)
While the trial court in Desilets based its de cision on the narrow facts of Ihe case and did not announce a broad
While the trial court deci si on in DesiielS is tbe onl y one to explicitly hold that a state constitution provides stu dents with greater protection than does the First Amendment, it is not the fIrSt time a court has interpreted state consti tutional provisions more broadly than their counterparts in the U.S . Constitu tion.
In the con tex t of free expression, the U.S. Supreme Court has twice invited states to interpret their own constitu tions to provide greater protection than theFirst AmendmenL In Gertz v. Robert
Court adopted a negli
for libel suits
arising
under the FiAt Amendment. but it said states could adopt standards more pro tective of free expression. Some states have since done so. Also, in PrUJ1eyard Shopping Center v. Robins,6 the U.S. Supreme Court let Foil 1993
speaJc, write and publish his sentiments subjects .j. Some cotn1s have held that because of these differences, the stat.e constitutional provi. sions should be in terpreted more broadl y than the First Amendment. It may not al ways be ahe case that these differences in 13nguage will lead a court to apply a differ ent interpretation. but it can be an important factor. In add ition to the language used in the free express io n
on all
.
..
. alsobe persuasive. Moststate
stitutional issue.
SWldard
matively establishes a right to freedo m of expression ("Everype:rson may freely
tions. the legislativ e history behind those provisions may
the battle to undo the effects of Hazelwood. The Court of Appeals' decision in Desilets did notaddress the state con-
Welch. lnc.,S the
...
provisions of state constitu
standard for censorship of stude nt expression, the d ec ision could still mark a rurning point in
gence
AmendmeOL The First Amendment is worded in the negati ve and states what the govemment cannot do ("'Congress shall make no law abridging the fr(» do m of speech, or of the press") . Most state constitutions. however. contain at least some positive language that afftr
In ordec to be successful, students who want to use their state constitutions to fight censorship mus t somehow dis tinguish the U.S. Supreme Coun's First
Amendment decisions. While those decisions are not binding on interpreta tions of state constitutional free expres sion prov i sions, they are often persua sive TO state court judges. Most likely, a student woul d have to show that the language used in the state cons titutio n is
so different from the First Amendment' s language that the two should be inter preted differently. If that fails, !he stu dent could try to show that the legisla ture that drafted the state constitution intended to provide grearer protection for speech than did the drafters of the First Amendment. With respect to the langWlge used. the free ex pression provisions of mosLStates constitutions are different from the speec h and press clauses of the First '
supreme courts have not ex amined the precise intentions of those who drafLed their state's constitutional pro vi sions. Still, sluden[S bringing a c laim based on the state constillltionshouldsearch for any evidence that the con stitution 's draft ers
intended
to provide greater protec
tion for expression than that prov ided by
the First Amendment States whose courts ace most likely to support a student free expression c1aim -arising under their own constitutions include Alaska, Califomia, Co lohdo Indiana, Massachusetts, New Jersey, Oregon and Wisconsin. These are states whose courts have said that !heir con sti tutions provide greater free expression protection than the First Amendment and where there is at least some indica tion that a claim by a student journalist might be successful. Note that Califomia, Col oradO and Massac husettS (as well as Kansas and Iowa) have all passed student free ex press ion laws, which probabl y provide students as much protection as lhey .
(5.« CONmTUTlONS !Idle 26) SPLC Report 25