Smith v. Novato Unified School District

That same day the Principal and Superintendent prepared a letter to parents to be sent home with all students. The letter stated: “Yesterday the November issue of our school’s student newspaper, The NHS Buzz, was distributed. This issue included an opinion article representing the beliefs of one student that negatively presented immigrants in general and Hispanics in particular. We are writing to express our deepest regrets for the hurt and anger this article has generated for both students and their parents, [f] This article should not have been printed in our student newspaper, as it violates our District’s Board Policy regarding student publications, which states, in part, ‘Students’ rights of expression shall be limited only as allowed by law in order to maintain an orderly school environment and to protect the rights, health, and safety of all members of the school community.’ H] In addition, our district has a Human Relations and Respect Mission Statement that states: In order to .'create and sustain a safe, just and respectful learning environment in the Novato Unified School District, all individuals including students; staff, parents and community members shall be treated with dignity, respect and fairness. [][] Earlier today we met informally with approximately 150 stodents and parents to discuss this issue and answer their questions. To provide a forum for the families who were not on campus today, we have scheduled a meeting tomorrow ... in the Lecture Hall. [][] In addition, we are' meeting this afternoon with the faculty to review Board Policy and the Human Relations and Respect Mission Statement, which will be reviewed with students in class tomorrow.”

Subsequently, the District instructed the teachers to review the speech policy and Mission Statement in class. The District also conducted a sécond meeting about Immigration the evening of November 15. Approximately 200 people attended. Students, parents, and staff expressed their dismay regarding Immigration.

On November 14, a Latino student threatened to “kick [Andrew’s] ass” for writing Immigration. At the end of the month, Smith suffered a chipped tooth in an altercation with another Latino student. That same student subsequently threatened to kill Smith. The Principal was concerned about Smith’s safety and asked him to report any threats or violence.

On December 4, 2001, the District Board of Trustees. held a public meeting. The Principal reported on the events surrounding Immigration. She stated that she had misinterpreted Board policy in allowing Immigration to be published because Board policy allows student “rights of expression” to be limited “as allowed ... by law in order to maintain an orderly school environment and to protect the rights, health, and safety ,of all members of the school community.” She further stated that she had “retracted the remaining copies of the paper” including Immigration. Many students and parents spoke at the meeting, including Smith and his father.

In January 2002, issue two of The Buzz was published; Smith did not write anything for that issue. In late January or early February 2002, Smith submitted a second opinion editorial, entitled Reverse Racism. The piece contained many provocative statements about race relations. For example, Smith reflected on the limited police and media reaction following an incident where a group of “minorities]” beat him up, stating “Think of it, a group of 20 drunken males beating up one black kid. I would bet my life that the police or even the media would have handled it differently.” He also asserted that O.J. Simpson would have been convicted if he had been White; expressed confusion about the “politically correct” names used to refer to “minorities;” and complained about “special privileges,” “reverse discrimination,” and “affirmative action.”

The student editor-in-chief and the journalism teacher approved the piece for publication and included it in a draft layout for review by the Principal. The Principal sent a copy of Reverse Racism to the ACLU (American Civil Liberties Union), which opined that it was protected speech. Again, the Principal had concerns about the piece, but she approved it for publication. In light of the dismption that followed publication of Immigration, the Principal thought it would be a good idea to publish a counterviewpoint along with Reverse Racism', the Superintendent agreed. The Principal met with the journalism students to encourage them “to create a product that was balanced and fair and top quality.” One of the strategies discussed was publishing a counterviewpoint to Smith’s opinion editorial. She did hot require them to publish a counterviewpoint. Because there was insufficient time for someone to write a coimterviewpoint before publication of the February 2002 issue of The Buzz, the students voted to move Reverse Racism to the next issue of the paper.

In the interim, Reverse Racism was published in the Novato Advance, a local newspaper not affiliated with the District. The newspaper reported that the opinion piece had been “removed” from The Buzz.

Reverse Racism was published in the May 2002 edition of The Buzz. There was also a counterviewpoint entitled It’s About Time and another opinion editorial by Smith entitled Embrace Diversity?

On May 2, 2002, plaintiffs filed the present action. In September, plaintiffs filed an amended complaint. The complaint alleged violations of Smith’s right to free speech under the United States and California Constitutions and the California Education Code and challenged the District’s speech policies as facially invalid. Plaintiffs sought an injunction prohibiting further illegal infringement of speech and nominal damages of $1.00. Following a bench trial, the court found in favor of the District and the individual defendants on all causes of action. The judgment included an award of costs to the District.

We granted the request of the ACLU Foundation of Southern California and the Student Press Law Center to file an amicus curiae brief in support of plaintiffs.

Discussion

The First Amendment of the United States Constitution provides in part: “Congress shall make no law . . . abridging the freedom of speech . .. .” Article I, section 2, subdivision (a) of the California Constitution guarantees that “[ejvery person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” The purpose of both provisions is “to abolish governmental censorship and to constitutionalize society’s substantial interest in protecting the right to comment on issues of public concern.” (Lopez v. Tulare Joint Union High School Dist. (1995) 34 Cal.App.4th 1302 , 1309-1310 [ 40 Cal.Rptr.2d 762 ] (Lopez).)

Although the constitutional provisions do not expressly exclude students, students’ free speech rights lacked judicial recognition until the landmark United States Supreme Court ruling Tinker v. Des Moines School Dist. (1969) 393 U.S. 503 [ 21 L.Ed.2d 731 , 89 S.Ct. 733 ] (Tinker). Previously, “it was generally accepted that school officials stood in the stead of parents, i.e., in loco parentis, and had parent-like authority to control student conduct and expression.” (Lopez, supra, 34 Cal.App.4th at p. 1310.) Tinker recognized the authority of public school officials to control student conduct but concluded that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Tinker, at p. 506.) Tinker held that a student may exercise the right to freedom of expression unless the “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others ....” (Id. at p. 513.) Any regulation prohibiting student expression “would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” (Ibid.) Although students’ First Amendment rights had to be “applied in light of the special characteristics of the school environment,” students could not be “confined to the expression of those sentiments that are officially approved.” (Tinker, at pp. 506, 511; see also Bright v. Los Angeles Unified Sch. Dist. (1976) 18 Cal.3d 450 , 455-460 [ 134 Cal.Rptr. 639 , 556 P.2d 1090 ] (Bright) [discussing Tinker].)

Applying Tinker, supra, 393 U.S. 503 , a California federal district court found unconstitutional sections 9012 and 9013 of California’s Education Code, which banned “partisan” and “propaganda” publications on high school campuses. (Bright, supra, 18 Cal.3d at pp. 457-458.) The California Legislature responded in 1971 by repealing sections 9012 and 9013 and enacting section 10611, “the nation’s first statutory scheme for protecting students’ free expression on school campuses.” (Lopez, supra, 34 Cal.App.4th at p. 1311; see also Bright, at p. 458.) In 1978, the Legislature replaced section 10611 with section 48907, which specifically protects student expression in official school publications. (Lopez, at p. 1312.)

Section 48907 provides: “Students of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not such publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school, [f] Each governing board of a school district and each county board of education shall adopt rules and regulations in the form of a written publications code, which shall include reasonable provisions for the time, place, and manner of conducting such activities within its respective jurisdiction. [<ft] Student editors of official school publications shall be responsible for assigning and editing the news, editorial, and feature content of their publications subject to the limitations of this section. However, it shall be the responsibility of a journalism adviser or advisers of student publications within each school to supervise the production of the student staff, to maintain professional standards of English and journalism, and to maintain the provisions of this section, [f] There shall be no prior restraint of material prepared for official school publications except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to any limitation of student expression under this section, [f] ‘Official school publications’ refers to material produced by students in the journalism, newspaper, yearbook, or writing classes and distributed to the student body either free or for a fee. [f] Nothing in this section shall prohibit or prevent any governing board of a school district from adopting otherwise valid rules and regulations relating to oral communication by students upon the premises of each school.”

We note that Leeb, supra, 198 Cal.App.3d at page 54, did not take into account the language in section 48907 authorizing journalism advisers “to maintain professional standards of English and journalism.” Under that language, educators may well be able to exercise some of the control over student speech in school newspapers permitted under Kuhlmeier. (Kuhlmeier, supra, 484 U.S. at p. 271.) The issue was not raised by the parties and we need not decide how the authority conferred to schools under the “professional standards” language in section 48907 differs from the authority recognized in Kuhlmeier (see pt. III.B., post).

In 1992, the Legislature enacted section 48950, which provides further protections for student free speech rights. The section prohibits school districts from making or enforcing “any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication” that, if engaged in off campus, is protected from government restriction by the First Amendment or by article I, section 2 of the California Constitution. (§ 48950, subd. (a).) The Legislature also expressly reaffirmed section 48907, stating that nothing in section 48950 may be construed to supersede, limit or modify the provisions of section 48907: (§ 48950, subd. (e).)

Against this legal and historical backdrop, we must determine: (1) whether Immigration is protected speech under section 48907 and (2) if so, whether the District’s response to Immigration infringed on Smith’s exercise of his right to free speech under the statute. We then consider whether the District infringed Smith’s free speech rights with respect to Reverse Racism, whether the individual defendants are entitled to immunity under Government Code section 820.2, and whether the District’s speech policies are facially invalid.

Sta

tutory construction is a question of law we decide de novo. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692 , 699 [ 170 Cal.Rptr. 817 , 621 P.2d 856 ].) Generally, the trial court’s resolution of disputed factual issues is reviewed for substantial evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951 , 983 [ 64 Cal.Rptr.2d 843 , 938 P.2d 903 ].) However, where an issue implicates the First Amendment, the trial court’s resolution of “constitutionally relevant facts” is subject to independent review by this court. (See In re George T. (2004) 33 Cal.4th 620 , 631-634 [ 16 Cal.Rptr.3d 61 , 93 P.3d 1007 ].)

The independent review standard arises from a reviewing court’s obligation to make an independent examination of the whole record in order to ensure that the judgment does not constitute a forbidden intrusion on free expression. (In re George I, supra, 33 Cal.4th at p. 631.) “It is necessary ‘because the reaches of the First Amendment are ultimately defined by facts it is held to embrace’ and an appellate court must decide ‘whether a given course of conduct falls on the near or far side of the line of constitutional protection.’ ” (In re George I, at p. 632.) In re George T. held that the independent review standard should be employed in determining whether speech characterized by a government entity as unprotected is in fact outside the scope of the right to free speech. (Id. at p. 633.) Like the criminal threat statute, Penal Code section 422, at issue in In re George T, section 48907 incorporates constitutional free speech standards. (Lopez, supra, 34 Cal.App.4th at p. 1318; see also Bright, supra, 18 Cal.3d at pp. 458, 463.) We independently review whether Immigration is protected speech under section 48907. (See In re George T., at p. 634.) We independently review whether the District’s response constituted infringement under section 48907 because that is another “constitutionally relevant fact[]” (In re George T., at p. 634) and because, as we explain later, the Legislature incorporated constitutional standards for infringement into section 48907.

“Independent review is not the equivalent of de novo review ‘in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes’ the outcome should have been different. [Citation.] Because the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are hot subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue.” (In re George T., supra, 33 Cal.4th at p. 634.) We will defer to the trial court’s credibility determinations but will make an independent examination of the whole record in determining the existence of the constitutionally relevant facts.

HI. Protected Speech Linder Section 48907

Plaintiffs contend that the District was not authorized to prohibit publication of Immigration under section 48907. In particular, they contend that contrary to the trial court’s conclusion, the opinion editorial was not speech likely to incite disruption of the orderly operation of the high school. Resolution of this issue requires üs to construe the meaning of the term “incites” as used in section 48907.

A. Plain Meaning of “Incites” in Section 48907

Our primary objective in interpreting a statute is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., § 1859.)

“ ‘Our first step ... is to scrutinize the actual words, of the statute, giving them a plain and commonsense meaning.’ ” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627 , 633 [ 59 Cal.Rptr.2d 671 , 927 P.2d 1175 ].) “ ‘[W]e seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose . . . .’ ” (Id. at p. 634.) “If the words of a statute are reasonably free of ambiguity and uncertainty, we look no further than those words to determine the meaning of that language.” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494 , 1503 [ 82 Cal.Rptr.2d 368 ], citing Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810 , 819 [ 226 Cal.Rptr. 81 , 718 P.2d 68 ].)

The statutory language of section 48907 critical to our review, follows: “Also prohibited shall be material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.” (§ 48907.)

We resolve the statutory interpretation issue on the plain language alone. The Black’s Law Dictionary definition of “incite” is “To arouse; urge; provoke; encourage; spur on; goad; stir up; instigate; set in motion; as, to ‘incite’ a riot. Also, generally, in criminal law to instigate, persuade, or move another to commit a crime; in this sense nearly synonymous with ‘abet.’ ” (Black’s Law Dict. (6th ed. 1990) p. 762, col. 2.) The definition focuses on conduct that is directed at achieving a certain result.

The established meaning of incite/incitement in California law is consistent with this understanding of the verb “to incite.” In the criminal context the word “abets” means “to incite or encourage,” as used in determining accomplice liability. (People v. Elliott, (1993) 14 Cal.App.4th 1633 , 1641 [ 18 Cal.Rptr.2d 426 ]; see also People v. Bishop (1988) 202 Cal.App.3d 273 , 282, fn. 6 [ 248 Cal.Rptr. 678 ] [words alone might provide basis for criminal liability “if they amount to incitement, instigation, or advisement”].) The offense “incitement to riot” applies to a person who “engages in conduct that urges a riot, or urges others to commit acts of force or violence.” (Pen. Code, § 404.6, subd. (a).) In upholding the constitutionality of the penal statute, the California Supreme Court held that the conduct necessary to establish incitement to riot “is neither similar nor comparable to speech which merely stirs to anger, invites public dispute, or brings about a condition of unrest.” (People v. Davis (1968) 68 Cal.2d 481 , 485 [ 67 Cal.Rptr. 547 , 439 P.2d 651 ].)

Similarly, in Braxton v. Municipal Court (1973) 10 Cal.3d 138 , 142-143 [ 109 Cal.Rptr. 897 , 514 P.2d 697 ], the Supreme Court narrowly

interpreted a statute authorizing the exclusion of persons who have “ ‘willfully disrupted the orderly operation’ ” of a college campus. To preserve its constitutionality, the court interpreted Penal Code section 626.4 “to permit exclusion from the campus only of one whose conduct or words are such as to constitute, or incite to, a substantial and material physical disruption incompatible with the peaceful functioning of the academic institution and of those upon its campus.” (Braxton, at p. 150.) The court avoided a construction that would have permitted the exclusion of persons who caused a disruption simply through provocative speech that was offensive to the audience. (Id. at pp. 146-147.) On this point, the court cited Tinker, supra, 393 U.S. 503 and quoted Terminiello v. Chicago (1949) 337 U.S. 1 , 4 [ 93 L.Ed. 1131 , 69 S.Ct. 894 ], for the proposition that “ ‘[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’ ” (Braxton, at pp. 146-147; see also In re Brown (1973) 9 Cal.3d 612 , 623 [ 108 Cal.Rptr. 465 , 510 P.2d 1017 ] [statute “prohibiting disturbing the peace by tumultuous and offensive conduct must be limited to disruption of public order by acts that are themselves violent or that tend to incite others to violence”].)

Olivia N. v. National Broadcasting Co. (1981) 126 Cal.App.3d 488 [ 178 Cal.Rptr. 888 ] drew a distinction between speech that incites violence and speech that results in a copycat crime. The court held that a television broadcaster could not constitutionally be held liable on theories of negligence and recklessness for broadcasting a film allegedly causing viewers to decide to commit a similar rape. Plaintiff was required to show “incitement,” which she admittedly was unable to do. (Olivia N., at pp. 491, 494-495.) The court applied the test for incitement set forth in Brandenburg v. Ohio (1969) 395 U.S. 444 , 447 [ 23 L.Ed.2d 430 ,., 89 S.Ct. 1827 ] and concluded that “incitement” referred to speech that “advocate[s] or encourage[s] violent acts” or speech that was “ ‘directed to inciting or producing imminent lawless action.’ ” (Olivia N., at pp. 491, 494-495, quoting Brandenburg, at p. 447.) The court emphasized that “the United States Supreme Court has ‘consistently held that the fact that protected speech may be offensive to some does not justify its suppression.’ ” (Olivia N., at p. 495, quoting Carey v. Population Services International (1977) 431 U.S. 678 , 701 [ 52 L.Ed.2d 675 , 97 S.Ct. 2010 ].)

The focus on inciting speech, rather than speech that may result in disruption or other harm, reflects what has come to be known as the “heckler’s veto” rule: speech that seeks to communicate ideas, even in a provocative manner, may not be prohibited merely because of the disruption it may cause due to reactions by the speech’s audience. (O’Toole v. Superior Court (2006) 140 Cal.App.4th 488 , 508 [ 44 Cal.Rptr.3d 531 ].) The Supreme

B. Immigration Is Protected Speech Under Section 48907

Even if we assume that the disruption that followed the publication of Immigration constituted “substantial disruption of the orderly operation of the school” and that there was a “clear and present danger” of disruption as required by section 48907, Smith’s opinion editorial could only be prohibited under section 48907 if it incited the disruption.

The editorial is a communication of ideas, the expression of a viewpoint on an emotionally debated contemporary issue. “It is firmly settled that under our Constitution the public expression of -ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” (Street v. New York, supra, 394 U.S. at p. 592.) Immigration suggests that a significant proportion of undocumented immigrants are criminals and that any person who cannot speak English should be suspected of being an undocumented immigrant. Although Immigration communicates Smith’s viewpoint in a disrespectful and unsophisticated manner, it contains no direct provocation or racial epithets. We conclude that Immigration was not inciting speech that the District was authorized to prohibit under section 48907. We cannot allow the reactions to Immigration by the reading audience (that is, the “heckler’s veto”) to silence Smith’s communication of unpopular views. Immigration is protected speech.

The District contends that Immigration was incitement because Smith testified that his purpose in writing the opinion editorial was to get people “pissed off’ and he wanted a “response . . . that would cause action.” However, his express purpose is not evidence that he intended to cause substantial disruption of the school, as opposed to other action, such as enforcement of the immigration laws. Immigration ends with such a call to political action: “I feel like there has to be some major reforms in immigration policy. I just hope it happens before our country rots from within.”

Our conclusion does not mean that the District lacked authority to teach writing and journalism standards. The statute provides schools some authority to control student speech in school newspapers. Section 48907 makes it the responsibility of student journalism advisers “to maintain professional standards of English and journalism.” For example, this responsibility permits the prohibition of profanities in official school publications. (Lopez, supra, 34 Cal.App.4th at pp. 1323-1327.) It likely authorizes journalism advisers to restrict the publication of student writings that are ungrammatical, poorly written, or inadequately researched.

We need not determine the scope of the “professional standards” provision in section 48907 because we are not here confronted with circumstances in which a journalism adviser sought to improve the journalistic

quality of a student piece and the student refused the suggestions. To the contrary, Smith accepted the only prepublication suggestions made to him regarding Immigration, to wit, the journalism teacher’s suggestion that he state where he got his facts about the requirements for citizenship and the Principal’s request that he remove the word “Hell” from the opinion editorial. Although section 48907 permits schools to engage with student journalists regarding the linguistic and journalistic merits of their work, that is not what happened here.

The tri

al court concluded that there was no infringement of Smith’s right to free speech regarding Immigration because the piece was published and Smith was not disciplined for writing it. The court misconstrued the scope of protection of free speech accorded by section 48907.

A. The Standard for Determining Infringement

Before the enactment of section 48907, it was established that “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” (Laird v. Tatum (1972) 408 U.S. 1 , 11 [ 33 L.Ed.2d 154 , 92 S.Ct. 2318 ]; see also Adcock v. Board of Education (1973) 10 Cal.3d 60 , 66 [ 109 Cal.Rptr. 676 , 513 P.2d 900 ].) A violation of free speech rights may be established where a governmental response to speech “ ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’ ” (Mendocino Environmental Center v. Mendocino County (9th Cir. 1999) 192 F.3d 1283 , 1300; see also Bennett v. Hendrix (11th Cir. 2005) 423 F.3d 1247 , 1254.)

The rationale for the “person of ordinary firmness” test is set forth in Bennett v. Hendrix, supra, 423 F.3d at pages 1251-1252, where the court explained that “[a]n objective standard provides notice to government officials of when their retaliatory actions violate a plaintiff’s First Amendment rights. In contrast, ‘a subjective standard would expose public officials to liability in some cases, but not in others, for the very same conduct, depending upon the plaintiff’s will to fight.’ [Citation.] ‘[I]t would be unjust to allow a defendant to escape liability for a First Amendment violation merely because an unusually determined plaintiff persists in his protected activity . . . .’ [Citation.] There is no reason to ‘reward’ government officials for picking on unusually hardy speakers. At the same time, we recognize that government officials should not be liable when the plaintiff is unreasonably weak-willed or suffers only a ‘de minimis inconvenience to her exercise of

First Amendment rights.’ [Citations.] The ‘ordinary firmness’ test is therefore protective of the interests of both government officials and plaintiffs alleging retaliation.”

Because the California Legislature intended to incorporate constitutional standards into section 48907 (Lopez, supra, 34 Cal.App.4th at p. 1318), we construe section 48907 as incorporating the same standard for determining infringement of the right to free speech applicable under the United States Constitution. That is, a governmental response that would constitute a violation of a student’s free speech rights under the First Amendment would also constitute a violation of a student’s right to exercise freedom of speech under section 48907.

B. The District Responses to Immigration

1. The District’s Effort to Facilitate Responsive Speech

The District facilitated the protesting students’ response to Immigration by holding an assembly the morning after the newspaper came out. At that meeting, parents and the students who had left their classes were able to express their reactions to Immigration, both orally and in writing. A similar meeting was held at the school the evening of November 15. Plaintiffs contend that by providing a forum for expression of the protestors’ viewpoint the District facilitated a “heckler’s veto” and infringed Smith’s right to free speech. Plaintiffs further contend that on November 14 the District should have disciplined the students who left class and enforced rules limiting parental access to campus.

We disagree. The District did not infringe Smith’s right to free speech by holding meetings that provided an opportunity for the protestors to express their reactions to Immigration. It is quite the opposite. By enabling the protestors to respond to offensive speech with their viewpoint, the District modeled the civil discourse education should foster. “ ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ [Citation.] It is the classroom and academic institutions which are the marketplace of ideas and where the exchange of ideas and arguments are to be fostered, not curtailed.” (Adcock v. Board of Education, supra, 10 Cal.3d at p. 67; see also Tinker, supra, 393 U.S. at p. 512.)

None of the cases cited by plaintiffs support the proposition that a school infringes on a student’s right to free speech merely by facilitating a peaceful avenue for self-expression by persons upset by the student’s speech. We decline to adopt a rule contrary to-our nation’s traditions of open debate.

3. The District Did Violate Section 48907 by Announcing That Immigration Is Not Protected Speech

Unfortunately, the District response included announcing that the District should never have published Immigration and ordering that remaining copies of The Buzz be retracted. In so doing, the District violated section 48907.

In its November 14, 2001 letter, the District stated that Immigration “should not have been printed” because it violated the District’s policy regarding student publications and the District’s “Human Relations and Respect Mission Statement.” The letter quoted a portion of the District’s speech policy that states “Students’ rights of expression shall be limited only as allowed ... by law in order to maintain an orderly school environment and to protect the rights, health, and safety of all members of the school community.” The letter also quoted a portion of the District’s Mission Statement stating that “all individuals, including students, staff, parents and community members shall be treated with dignity, respect and fairness.” The clear message of the letter was that Immigration was outside the scope of Smith’s “rights of expression” and that future speech similar to Immigration would not be tolerated.

The message of the November 14 letter was reinforced when the teachers reviewed the speech policy and mission statement in class, and again at the December 4 public District Board of Trustees meeting when the Principal stated that Immigration could have been prohibited in order to “maintain an orderly school environment and to protect the rights, health, and safety of all members of the school community.” She further emphasized the point in stating that she had “retracted the remaining copies of the paper” including Immigration.

The District speech policy, at least as construed in the November 14 letter, constitutes regulatory government action that may result in an actionable chill, and the threat of censorship implicit in the letter is a legally cognizable harm. (O’Keefe v. Van Boening (9th Cir. 1996) 82 F.3d 322 , 325.) At a minimum, the District’s response had the effect of chilling any further dissemination of the protected message in Immigration. “[T]he right to free speech protects not only the content but the dissemination and circulation of the material as well.” (Bright, supra, 18 Cal.3d at p. 466.) Although the record is ambiguous as to whether copies of the paper were actually retracted, it is clear that as of November 14 there were no more copies of The Buzz containing Immigration available on campus. If Smith wanted to continue to express the ideas in Immigration he needed to copy and disseminate the opinion editorial on his own. To do so would have amounted to open defiance of the Principal and Superintendent. At the very least the District’s actions

threatened that any future efforts to distribute Immigration would be censored. (Cf. Sypniewski v. Warren Hills Regional Bd. of Educ. (3d Cir. 2002) 307 F.3d 243 , 251-252 [considering motion for preliminary injunction to prevent enforcement of racial harassment policy to prohibit wearing of shirt where, after shirt was allowed to be worn, school district indicated that “ ‘in hindsight’ ” shirt should have been prohibited].)

We reject any suggestion that the District’s response was merely a “ ‘de minimis inconvenience’ ” to Smith’s exercise of his free speech rights. (Bennett v. Hendrix, supra, 423 F.3d at p. 1252.) That phrase refers to government responses to protected speech that are so insignificant that they cannot be viewed as adequate to chill or silence a person of ordinary firmness. (Bart v. Telford (7th Cir. 1982) 677 F.2d 622 , 625 [noting, for example, that an action cannot be based on allegations that an authority figure frowned at the plaintiff in response to the speech activity].) We conclude that the District’s response to Immigration would have a significant impact on a person of ordinary firmness. The November 14 letter and subsequent actions constituted an official interpretation of the District’s speech policy and communicated to Smith that Immigration was not within his “rights to expression” on campus. In doing so, the District inaccurately represented the scope of Smith’s right to free speech. The letter was handed out to the entire student body and it was signed by the Principal and Superintendent, who are authority figures with substantial discretionary powers and whose words “carry a presumption of legitimacy.” (Holloman, supra, 370 F.3d at p. 1269.)

Such an advisory opinion can constitute the suppression of free speech. For example, in Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58 , 61, 66-67 [ 9 L.Ed.2d 584 , 83 S.Ct. 631 ], the United States Supreme Court concluded that letters from a state commission on morality advising book distributors that the commission’s members considered certaiii books objectionable for sale to youths constituted “informal censorship” in violation of the First Amendment even though the books were not banned and the commission lacked authority to apply legal sanctions. The court concluded that the practice amounted to a “system of prior administrative restraints, since the Commission is not a judicial body and its decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned.” (Bantam, at p. 70.)

In considering the legal effect of the District’s response, we must keep in mind that the hypothetical “person of ordinary firmness” or resolve is a teenager, still developing self-confidence and intellectual independence, still subject to peer pressure and more likely to be intimidated by authority. (See Bennett v. Hendrix, supra, 423 F.3d at p. 1252 [noting that the analysis “ ‘focuses on the status of the speaker, the status of the retaliator, the

Disposition

The trial court judgment is reversed and remanded for proceedings consistent with this decision.

Simons, Acting P. J., and Needham, 1, concurred.

A petition for a rehearing was denied June 20, 2007, and respondents’ petition for review by the Supreme Court was denied September 12, 2007, S154067.