Actually, now that I've had time to think about it, the school will win.
The school has not infringed on any specific "free speech" right of the student. He is free to talk about the photo and free to publish it through whatever means he can.
The school is under no obligation, as the publisher of the work (the yearbook), to publish anything that is thrown their way. That they cited the wrong policy is their own fault and any such "zero-tolerance" policies are stupid. The ACLU is right to file suit against the "zero tolerance" aspect, but the chances are that even if 0-T was declared unconstitutional, the school is still within its rights to refuse the photo. In fact, they *really* should have refused it merely on the aesthetic grounds of "it's not like everybody elses and therefore makes the work artistically inconsistent" and they would haven't aroused any legal anger.
Technically the school can reject publishing a work for "any reason" and isn't even required to inform the student body what that reason might be. The only limitation to that is that the school can not use the work (and taxpayer money) to proselytize. They can not use it to promote any religious thought directly. This does become a VERY questionable situation if the students picture was rejected because they wore a "Jesus Saves" shirt, and courts have been divided on whether or not that's school (and therefore government) establishment or mere "pass-through". Precedents would have to be looked at at the local court and federal courts for the jurisdiction; the Supreme Court hasn't finalized their position on that yet.
In fact, suing over the 0-T is a guarentee the whole thing will be thrown out. If, in spite of the public statements (made in my opinion without much thought), the court finds that 0-T is not applicable but publishers artistic license is, then the case is thrown out for *both* claims (the kids AND the ACLUs).
Really, it was stupid of the ACLU to take this; it's an easy win for the school unless they get *really* stupid and focus on the weapon itself and not their rights as a publisher.
If the school has insisted that all yearbook pictures, without exception, be standardized, then I agree. However, if they've allowed even one other student picture that wasn't the standard school-photographer variety, that argument won't hold either.
doesn't really matter. they don't HAVE to tell anybody why they refused it. if anything, had they not mentioned the weapon and 0-T, there would have been no legal recourse to try anything.
legally, as a publisher (in my case, on the web), i can publish whatever is given to me by anybody. i can also refuse publication of anything given to me. it is entirely my legal right to be in control of that which goes out with my name attached to it even if i am not the originator of that work.
even if i publish for the government, i am not "refusing anyones first amendment rights" by not publishing what is given me. their rights are intact because they can choose an alternate publisher. this applies to the great many "government pamphlets" that are out there, again mostly published by state and local governments and subject to the 14th and 1st amendments. the government (and by extension, the school) can choose not to publish it; it can NOT stop the student from publishing it in other ways, such as when the photo hit the AP wires. it can not punish the student for having had the photo taken or for attempting to get it into the yearbook. THOSE are grounds for a lawsuit.
but to expect that a publisher, merely by being the government, has no right of refusal is holding the government to a standard that has no precedent in law, and plenty of precedents against it.
The school has not infringed on any specific "free speech" right of the student. He is free to talk about the photo and free to publish it through whatever means he can.
The school is under no obligation, as the publisher of the work (the yearbook), to publish anything that is thrown their way. That they cited the wrong policy is their own fault and any such "zero-tolerance" policies are stupid. The ACLU is right to file suit against the "zero tolerance" aspect, but the chances are that even if 0-T was declared unconstitutional, the school is still within its rights to refuse the photo. In fact, they *really* should have refused it merely on the aesthetic grounds of "it's not like everybody elses and therefore makes the work artistically inconsistent" and they would haven't aroused any legal anger.
Technically the school can reject publishing a work for "any reason" and isn't even required to inform the student body what that reason might be. The only limitation to that is that the school can not use the work (and taxpayer money) to proselytize. They can not use it to promote any religious thought directly. This does become a VERY questionable situation if the students picture was rejected because they wore a "Jesus Saves" shirt, and courts have been divided on whether or not that's school (and therefore government) establishment or mere "pass-through". Precedents would have to be looked at at the local court and federal courts for the jurisdiction; the Supreme Court hasn't finalized their position on that yet.
In fact, suing over the 0-T is a guarentee the whole thing will be thrown out. If, in spite of the public statements (made in my opinion without much thought), the court finds that 0-T is not applicable but publishers artistic license is, then the case is thrown out for *both* claims (the kids AND the ACLUs).
Really, it was stupid of the ACLU to take this; it's an easy win for the school unless they get *really* stupid and focus on the weapon itself and not their rights as a publisher.
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legally, as a publisher (in my case, on the web), i can publish whatever is given to me by anybody. i can also refuse publication of anything given to me. it is entirely my legal right to be in control of that which goes out with my name attached to it even if i am not the originator of that work.
even if i publish for the government, i am not "refusing anyones first amendment rights" by not publishing what is given me. their rights are intact because they can choose an alternate publisher. this applies to the great many "government pamphlets" that are out there, again mostly published by state and local governments and subject to the 14th and 1st amendments. the government (and by extension, the school) can choose not to publish it; it can NOT stop the student from publishing it in other ways, such as when the photo hit the AP wires. it can not punish the student for having had the photo taken or for attempting to get it into the yearbook. THOSE are grounds for a lawsuit.
but to expect that a publisher, merely by being the government, has no right of refusal is holding the government to a standard that has no precedent in law, and plenty of precedents against it.
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