INSIDE: Subpoena Power: Georgia high school uses sheriff to uncover student bloggers, Page 7

Student Press Law Center EPORT R Winter 2006-07 VOL. XXVIII, NO. 1

Orientation Blues Special issues alarm college administrators Page 21

ALSO INSIDE: native american tribal colleges have history of press freedom issues, page 1 AND: advocates say california’s supreme court gave private school leonard law death sentence, page 2 Student Press Law Center EPORT INSIDE R Winter 2006-07 VOL. XXVIII, NO. 1 FEATURES PUBLICATIONS FELLOW: Scott Sternberg theft on the rise Newspaper thefts reported to the REPORTERS: Marnette Federis, April Hale, Karla Yeh Student Press Law Center almost double from previous years.. .. CONTRIBUTORS: Adam Goldstein COVER ART: Jack Dickason probing policies High schools around the country imple- SENIOR CONTRIBUTING ARTIST: Melissa Malisia (rmali@ frontiernet.net) ment Internet use policies that regulate students’ Web use at home CONTRIBUTING ARTISTS: Hope Donovan (jetcake@gmail. and at school......  com), Bob Gandy ([email protected]), Danny “Om” Jean Jacques ([email protected]), Jim Brandetsas calling for backup A Georgia high school uses a sub- poena to track down local MySpacers ...... 

Dangerous minds Texas libel lawsuit suggests student Th e Student Press Law CenterReport (ISSN 0160-3825), bloggers may not be well versed on libel issues...... 10 published three times each year by the Student Press Law Center, summarizes current cases and controversies involving the rights opening Up California court decision makes school records of the student press. Th e SPLC Report is researched, written and more open to journalists...... 1 produced by journalism interns and SPLC staff . Th e Student Press Law Center Report, Vol. XXVIII, No. 1, going online Winter 2006-07, is published by the Student Press Law Center A college student newspaper makes the jump Inc., 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209- to the Web full-time and has its funding cut...... 1 2275, (703) 807-1904. Copyright © 2006 Student Press Law Center. All rights reserved. Yearly subscriptions to the SPLC native tongue Native American tribal college student Report are $15. Contributions are tax-deductible. A membership newspapers struggle to overcome censorship...... 1 form appears on page 39. orientation issues College administrators are more sensitive to newspaper content when parents are on campus for orientation...... 21

banding together Student publications around the nation run editorial in support of ousted USC editor...... 2 EXECUTIVE DIRECTOR: Mark Goodman DEVELOPMENT DIRECTOR: Abbie Gibbs leonard’s law LEGAL CONSULTANT: Mike Hiestand California’s private college free speech ATTORNEY ADVOCATE: Adam Goldstein statute now has gaping hole, advocates say ...... 2 OUTREACH COORDINATOR: Sam Wilder religion and speech Are school administrators overly sensitive to religious speech? ...... 2 CORPORATE BOARD OF DIRECTORS

Javier J. Aldape � Hoy, Chicago, Ill. naming names Identifying minors raises legal questions. A.J. Bauer � University of Texas at Austin, Austin, Texas See the SPLC’s answers......  Jerry Ceppos � Knight Ridder (retired), San Jose, Calif. Shawn Chen � National Journal’s Technology Daily, Washington, D.C. Virginia Edwards � Education Week, Bethesda, Md. Angela Filo � Eastside College Prepatory School, East Palo Alto, Calif. BRIEFS Robert Garcia � ABC News Radio, Washington, D.C. Richard Goehler, Esq. � Frost Brown Todd LLC, Cincinnati, Ohio access ...... 1 Mark Goodman, Esq. � Student Press Law Center, Arlington, Va. college censorship ...... 2 Kathleen Kirby, Esq. � Wiley Rein & Fielding LLP, Washington, D.C. Tonda Rush, Esq. � American PressWorks Inc., Arlington, Va. high school censorship ...... 0 Cedric D. Scott, Esq. � Jackson Walker LLP, Houston, Texas legislation, libel and confi dentiality ...... 2 Rosalind Stark � Radio and Television News Directors Foundation (retired), Washington, D.C. advisers ......  Mark Stodder � Dolan Media, Minneapolis, Minn. Mark Witherspoon � Iowa State University, Ames, Iowa

Organizations for purposes of identifi cation only A message from the splc SPLC announces additions to free high school online resources The Student Press Law Center is pleased The Libel Law presentation includes the online quiz allows users to assess their to announce new additions to our Web site true-to-life examples and ends with a list of general understanding of student press law especially for high school teachers and stu- practical suggestions to help student jour- as well as a more detailed understanding of dent media advisers as well as student jour- nalists avoid common libel traps. seven specific topics: access law, libel, copy- nalists: two new Media Law Presentations The Invasion of Privacy Law presenta- right law, press freedom, cyberlaw, invasion and an expansion of the Test Your Knowl- tion addresses four categories of privacy in- of privacy and reporter’s privilege. edge of Student Press Law online quiz. vasion and uses examples and images to as- Both the SPLC Media Law Presentations SPLC Media Law Presentations are sist young journalists in determining where and the Test Your Knowledge of Student Press computer slide shows that help student lines are drawn when confronting privacy Law are linked from our Resource Center journalists better understand media law. questions. page: http://www.splc.org/resource.asp. They can be downloaded for free from the Test Your Knowledge of Student Press Law They can also be found by going direct- SPLC Web site and come with a narrative is another Web-based tool for helping stu- ly to: http://www.splc.org/presentations script. Presentations covering the subjects dent journalists better understand media or http://www.splc.org/hspresslawtest. Libel Law and Privacy Invasion join Press law. Through a series of multiple-choice Both features were made possible by a Law Primer, Press Freedom and Copyright questions based on situations similar to generous grant from the Newspaper Asso- Law. those confronted by young news gatherers, ciation of America Foundation.

Corrections

— In the story “Rays of Hope Amid Dying 32 of the Fall 2006 SPLC Report failed to in May” on page 41 of the Fall 2006 SPLC Legislation” on page 8 of the Fall 2006 include the full name and title of Jim Ewert, Report, Rebecca Contreras’ name was SPLC Report, Michigan state Sen. Michael legal counsel for the California Newspaper misspelled. Switalski’s name was misspelled. Publishers Association. — In the story “Newspaper containing — In the story “Settlement reached between — In the story “Student government’s religious cartoons stolen twice” on page 42 of military academy and student’s parents” on funding cuts jeopardize paper’s future” on the Fall 2006 SPLC Report, Cathy Stablein’s page 24 of the Fall 2006 SPLC Report, Col. page 40 of the Fall 2006 SPLC Report, Rich name was misspelled. Wheeler L. Baker had the wrong middle Ritterbusch’s name was misspelled. initial listed. — In the story “Two students named in — The story “California Dreaming” on page connection with campus newspaper taking The SPLC regrets the errors.

Report staff April Hale, fall 2006 Scripps Howard Foundation Journalism Intern, graduated from the University of New Mexico in May Scott Sternberg, Publications Fellow, 2006 with a degree in print journalism. She graduated from Louisiana State University’s is a member of the Navajo tribe and a 2002 Manship School of Mass Communication in graduate of the American Indian Journalism May 2006 with a degree in print journalism. Institute, a Freedom Forum program. She has While at LSU, he was the editor in chief of the interned at the Argus Leader in Sioux Falls, student newspaper, The Daily Reveille, where S.D. and the Navajo Times in Window Rock, he led coverage in the aftermath of Hurricane Ariz. Hale also is an active member of the Na- Katrina. Sternberg interned and freelanced for tive American Journalists Association. Hale The Times-Picayune in New Orleans, La., and covered high school censorship, advertising and several other publications in Louisiana. high school adviser cases for the Report.

Marnette Federis, fall 2006 Scripps How- Karla Yeh, fall 2006 Student Press Law ard Foundation Journalism Intern, is a May Center Journalism Intern, graduated from Col- 2006 graduate of University of California, gate University in May 2006, where she majored San Diego with a degree in Literature/Writ- in English and film and media studies. Yeh is ing. While in college, Federis worked for The currently a graduate student at Northwestern Guardian, UCSD’s student paper, as an edi- University. At Colgate, she wrote for the school tor for the news and focus sections. She also newspaper, The Maroon News, and presented for worked as a freelance writer for the East County Colgate Television. Yeh has participated in sev- Californian, and was an intern for voiceofsandi- eral internship programs, including NBC News, ego.org, a daily online newspaper in San Diego, CBS News, NBC London and BBC News. Yeh Ca. Federis covered college censorship, newspa- covered access, confidentiality, campus crime, per theft and college adviser cases for the Report. Internet and libel and privacy cases for the Report.

Winter 2006-07 www.splc.org • splc report  NEWSPAPER THEFT Newspaper theft on the rise Number of incidents reported to SPLC this fall nearly doubles from 2004, 2005 statistics By Marnette Federis versity of Tulsa’s Collegian, said college me- dia publications are sometimes not taken The number of newspaper theft inci- “as seriously” as other outside publications. dents is on the rise compared to previous “[College] newspapers have been years’ statistics, with 15 incidents reported around for decades and are established to the Student Press Law Center thus far institutions just like any other legitimate this school year. In 2004 and 2005, only newspaper,” Chancellor said. “I don’t think eight incidents each year had been reported those students who behave in that kind of by the end of the fall semester. manner really understand [that].” While advisers and experts say they are unsure why there have been a higher num- The correct response ber of thefts reported this fall, a variety of factors could be to blame — from the way Goodman said that while university of- administrators have handled theft cases in ficials have traditionally treated such inci- the past to an increased awareness of cam- dents as pranks, prevention of newspaper pus newspaper theft coverage. Many of the theft depends on how well administrators reported incidents were connected to con- handle the cases that do occur. troversial articles published in the papers. “I think the biggest deterrent is how “It’s a sign that the problem of news- trators say that they are actively pursuing college officials respond if a theft occurs,” paper theft is not going away,” said Mark the case and are investigating individuals Goodman said. “If they condemn the theft Goodman, executive director of the Student who may have been involved. and pledge to discipline anyone caught, I Press Law Center. The conservative student newspaper think that decreases the likelihood that a Goodman also said theft is an “inap- GuardDawg at University of Georgia had theft will happen again.” propriate response” to disagreements with a 1,200 copies of their paper stolen and their Goodman also said that there seems to publication and that administrators can do distribution bins vandalized in September. be a shift in how administrators are han- more to prevent it. Staff members found the bins with the dling theft cases this year. At the University of Kentucky, about words “communist,” “gay” and “homo.” “I think there’s more of an understand- 4,000 copies of the student newspaper, Editors filed a report with the university’s ing among officials why [newspaper theft is] The Kentucky Kernel, were taken from news police department, which listed the case as not acceptable,” Goodman said stands in November. The stolen issue fea- criminal trespassing. Publisher David Kirby In Indiana, three schools reported news- tured an article about a toxicology report said he believed the paper was targeted be- paper theft incidents within a two-week pe- stating that alcohol may have been involved cause of its conservative slant. Kirby said no riod in October. Newspaper staff members in the deaths of two students and an alumna one has been found responsible for the theft earlier in the year. Student editors said they and vandalism. were not surprised to find copies missing The Daily Tar Heel at University of because family and friends of the deceased North Carolina at Chapel Hill had 10,000 pleaded with the editors not to print the copies taken in November from news stands article on the toxicology report. Campus by fraternity members. The stolen issue fea- police are still investigating the theft. tured an article about the fraternity’s haz- At the University of Tulsa, students took ing violations. Leaders of the fraternity, copies of The Collegian from distribution who hours after distribution admitted to bins in November and returned them with the theft, said members were under the im- unauthorized inserts depicting a newspaper pression that the newspaper was free and staff member extending her middle finger. therefore could be taken. The Daily Tar Heel Copies of University of Georgia’s conservative Editors believe the act was in retaliation for agreed not to press criminal charges after newspaper, The Georgia GuardDawg, were an article published in the issue about an the fraternity agreed to apologize and pay found in trash cans around campus in Sep- investigation into the student government’s for the stolen issues. tember. Editors said the theft was politically fund allocation procedures. Tulsa adminis- Jennifer Chancellor, adviser to the Uni- motivated. PHOTO COURTESY OF THE GUARDDAWG

 splc report • www.splc.org WINTER 2006-07 NEWSPAPER THEFT at Ball State University and Indiana State pressing criminal charges against news- University reported that copies of their paper theft perpetrators, although there newspapers were stolen during homecom- seems to be more awareness of the issue. He ing week. About 7,000 copies of the Ball said county prosecutors usually do not put State Daily News and 600 copies of The In- newspaper theft within the same categories diana Statesman were missing. No one has as other crimes. been found responsible for the theft at Ball Staff members of University of South- State University. Two individuals at Indiana ern Indiana’s student newspaper, The Shield, State University admitted taking copies of wanted to file a police report after 2,300 the Statesman to paper mache a parade float, copies were stolen this year, but the school’s said adviser Merv Hendricks. publications board recommended that the Hendricks also said that in the two cases incident be investigated by the university. of newspaper theft that occurred at Indiana Shield adviser Patricia Ferrier said many State University in the past few years, cam- on the staff were unhappy with the decision, pus security has been quick in its investiga- and that prosecution is important in letting tion and administrators have pursued the readers know that student newspapers have cases through the school’s internal disciplin- as much credibility as their commercial ary system. counterparts. The case is still open, but Fer- But Hendricks noted the difficulty in rier said no one has been found responsible Signpost staff members reported the paper’s for the theft. third theft case in the past four years. The Ferrier said students in disclaimer allowed staff members to put a one of her classes are cur- value to the missing newspapers when they Newspaper thefts reported rently looking into how to reported the incident to campus security. to SPLC in fall 2006 get a newspaper theft law Editor in Chief Maria Villasenor said the passed in the state of Indi- case is still open but campus security is clas- Newspaper No. stolen ana. California, Maryland sifying it as “inactive.” Arizona State University at the West Campus 1,800 and Colorado are the only At Tulane University, The Hullabaloo The West Express states that have laws mak- took a different approach in dealing with a Ball State University (Indiana) 7,000 ing the theft of free news- newspaper theft incident. Tired of the uni- The Ball State Daily News papers a crime. versity’s lack of action when large numbers Bryant University (Rhode Island) 900 But other states have of newspaper copies disappear from racks, The Archway prosecuted newspaper staff members billed a fraternity for taking DePaul University (Illinois) 100 thieves under general theft about 400 papers to use for a party. The Lincoln Park Statesman or destruction of property Editor in Chief Drew Dickson said University of Georgia 1,200 statutes. there have been three theft incidents in the The GuardDawg Once a theft does oc- past two years at the university, but admin- University of Southern Indiana 2,300 cur, Goodman suggested istrators have been slow in their response. The Shield that staff members imme- Instead of filing a report and having to go Indiana State University 600 diately file a police report. through a university disciplinary process, The Indiana Statesman There are also additional adviser Chantal Bailliet said the Hullabaloo 4,500 University of Kentucky steps students can take to The Kentucky Kernel is treating the most recent theft as a simple prevent newspaper theft, University of Southern Mississippi 2,000 “business transaction.” such as listing a monetary The Student Printz Goodman said that newspaper staff University of North Carolina at Chapel Hill 10,000 value somewhere on the members should speak to campus security The Daily Tar Heel newspapers. and administrators before a theft happens Stetson University (Florida) 700 After the first case of to determine what kind of response to ex- The Reporter newspaper theft at Utah’s pect if an incident occurs. Texas A&M University at Commerce 2,300 Weber State University Goodman said university administra- The East Texan four years ago, newspa- tors are beginning to have a greater under- Tulane University (Louisiana) 400 per staff members added standing of why newspaper theft is unac- The Hullabaloo a disclaimer to the paper ceptable. University of Tulsa (Oklahoma) 700 stating that while the first “I do feel there is more than just lip The Collegian copy of The Signpost is service when it comes to newspaper theft,” Weber State University (Utah) 1,000 free, additional papers are Goodman said. “There’s more objection to The Signpost 50 cents each. In October, it than we’ve seen in past years.” n

WINTER 2006-07 www.splc.org • splc report  COLLEGEInternet Censorship Probing policies High schools enacting policies to punish students for social networking sites created outside school By April Hale authored Clark-Pleasant’s policy. icies are how schools of the future will deal Although the policy is written specifically with Internet use. The skyrocketing popularity of social to regulate blogs, White said that it includes “Schools always had the ability to regu- networking Web sites and blogs is prompt- any electronic communication, whether it is late speech and actions that disrupt the edu- ing schools across the country to create disci- a Web site, social network or online blogging cational environment,” Galovic said. pline policies for students who publish what community. Anita Ramasastry, a law professor at the administrators deem as inappropriate con- University of Washington, said she believes tent, even when its done outside that content that is posted on a social of school grounds. networking site that is not threaten- Web sites such as MySpace. ing or disruptive to the educational com and Facebook.com can offer a rights of other students is protect- relaxed, online forum for students to ed by the First Amendment. vent about the usual adolescent quan- “When students post content daries — classmates, school, home- on social networking sites outside work and parents — and those sites of school, there is still a lot of are often read by peers, and in uncertainty as to when a school some cases, school officials. may take action,” Ramasastry MySpace expert and Massa- said. chusetts Institute of Technol- These policies, though legally ogy Director of Media Studies questionable, may help to clarify or Henry Jenkins said that social supplement existing school conduct networks provide students with codes and other polices by dealing core skills to “become full partici- with a new phenomenon, Ramasastry said. pants in society.” In 2000, a federal court in Washington But when the posted content sparks state ruled that a Web site created by a stu- what school officials perceive as disruptive dent outside of school “was entirely outside behavior in school, administrators see it of the school’s supervision or control.” A as their duty to safeguard students. For Tom Galovic, principal of Indiana’s federal appeals court reached a similar con- some, establishing an Internet-use policy for Whiteland Community High School in clusion in a 1979 case involving an under- outside of school has been the answer. the Clark-Pleasant district, said his school’s ground newspaper distributed off campus. Schools in Indiana, Washington state policy, which was passed unanimously by “[T]he First Amendment forbids public and New York City are among those that the school board on Oct. 17, has yet to be school administrators and teachers from reg- have recently created policies to regulate a implemented district-wide. ulating the material to which a child is ex- student’s Internet use in school and out. But Whiteland junior Andrea Beck posed after he leaves school each afternoon,” The Clark-Pleasant School District in said the policy is “a bit strict” and students that court said. Indiana enacted a “blogging” policy in Oc- “should be able to speak [their] mind.” Ramasastry, also a columnist for Findlaw. tober 2006 that prohibits students from ac- Beck also said she understands part of com, wrote an article on May 1 specific to cessing social networks from school as well the reason for the policy because she would social networking and its impact in schools. as posting what the school deems as harmful not want a “post going around about me or In her column she said she believed that or threatening content outside of school. someone I cared about.” “[t]he First Amendment will protect many Jim White, the Clark-Pleasant School Beck said she is active on the MySpace, student postings, as long as they do not ‘ma- District’s director of technology, said that the terially disrupt’ school activities — and as district is trying to be proactive in safeguard- Facebook and Xanga social networks, which she said she accesses from home. long as the students attend public, not pri- ing the students from “online bullying” or vate, schools.” But, “If we are outside of school, the possible libel cases. Galovic said that his staff does not plan school shouldn’t regulate what we post,” “The policy gives students fair warning to play “cyber police,” and that disruptions Beck said. that they have responsibilities that come and threats “are brought to our attention with freedom of speech,” said White, who But Galovic said he believes that the pol-

 splc report • www.splc.org Winter 2006-07 Internet usually by students.” Danah Boyd, a doctoral student at the University of California at Berkeley and a Calling for backup MySpace researcher, said that cyber-bully- ing is the most common claim of Internet disruption in schools and is frequently the Georgia police use subpoena to track down cause for the so-called blogging policies. “Bullies don’t stop bullying because they high school students get punished — they get rougher but more By Karla L. Yeh invisible,” Boyd said. Susan Stoltzfus, Washington’s North- n a September search for the anonymous authors of a sexually explicit MySpace page, shore School District spokesperson, said a Georgia high school pulled out all the stops, using a police-issued subpoena to track the Seattle school does not punish outside- Idown two students. of-school Internet postings unless they are North Oconee High School Principal John Osborne said he remembers the day as “tu- brought to the attention of administrators multuous” and “a nightmare” when his students discovered they had been mentioned on an and viewed as disruptive of the school en- anonymous MySpace page containing sexually explicit gossip and rumors. vironment. Osborne said he immediately moved to find the students responsible. Whether threats posted online are crim- “I felt it appropriate to get involved in inally prosecuted is left up to law enforce- this one because of the magnitude of the dis- ment, Stoltzfus said. ruption during the course of the school day,” “We have to assume that all threats are Osborne said. credible,” Stoltzfus said. As a result of the Web page, several The district, which serves about 20,000 students sought counseling in school while students, recently suspended one student for others missed school days, causing a “major posting threats against the school, which re- disruption” in school, Osborne said. quired the school to be locked down, and It turned out that two 15-year old another for creating a faux MySpace page in female students created the page, titled the name of a teacher. “NOHS Gossip,” posting graphic details Stoltzfus said that violation of the dis- of alleged sexual interactions between their trict’s Internet policy falls under the school’s classmates. code of conduct, and content posted from “This blog was way out of bounds,” Os- home can be considered a form of bullying borne said. “I have been doing this for 22 or harassment in school even if it is never years and I have never seen anything like accused at school. A handbook outlining the what was written on that blog.” policies is given to each student at the begin- Osborne refused to disclose exactly what ning of the school year. was written on the Web page, but described Stoltzfus argues that the policies are ap- the comments as “very much inflammatory propriate because the school has an educa- and derogatory toward many students” in tional interest at stake. school. “Posing as a teacher [on a Web site] and “Nobody knows how true any of it was,” Osborne said. “The students posted some kids looking and posting on the site does pretty bad things about several students.” qualify as disruption,” Stoltzfus said. The anonymity of the creators of the MySpace page prompted an investigation in At Northshore and other Seattle public which the principal sought help from Lt. David Kilpatrick of the Oconee County Sheriff’s schools, students cannot logon to MySpace Office. When the investigation came up short, the police issued a subpoena to trace the or other social networks from school com- blog’s activity. Although officials said they had no intent to file criminal charges, subpoenas puters. were issued to telephone company BellSouth as well as Web sites MySpace.com and Yahoo. Kate Ellis, a senior at West Seattle High com. School, said the school has a program that Osborne said throughout the investigation, officials kept in mind “we weren’t dealing filters all social networks from the system. with criminals; we were dealing with kids.” But she said “the hackers” at her school The police found that the students created the MySpace page from a computer at a “can bypass anything.” parent’s home in Clark County, an area outside of Oconee County, where the high school Recently, the New York City Depart- is located. ment of Education adopted a more strict Kilpatrick said both students initially tried to blame each other for the Web page after punishment for students that post “material police identified them, but both were suspended. See Internet policies, Page 9 See North Oconee, Page 8

Winter 2006-07 www.splc.org • splc report  INTERNET

From North Oconee, Page 7 subpoena power to track down the students required to respond.” ‘Good working relationship’ for expression they engaged in outside of Fowler would not comment directly on school. the case. Osborne said the high school’s conduct “Nothing illegal was done,” said Doug- code covers circumstances under which the las Lee, a legal correspondent for the Wash- Perspective administration can regulate student activ- ington, D.C.-based Freedom Forum First ity in or out of school, including expression Amendment Center. “But the school used Lee said he would caution against this that would normally be protected under the the police as a mechanism to get informa- process becoming the norm. First Amendment. tion they couldn’t get.” “It’s the school using the police for what The school’s conduct code states it is A subpoena is an order issued by a court it couldn’t do otherwise; it makes it look a applicable to students on and off school typically at the request of a law enforcement little suspect,” he said. “But it depends on grounds if they participate in activity that agency or a private litigant in a court case. your perspective.” “if committed at school or during a school- In this situation, the police department Shana Kemp, spokesperson for the related activity, would endanger the health, said it did not intend to file criminal charg- National Association of Secondary School safety, and well-being of other students, es, Kilpatrick said. Principals, said dealing with student activ- teachers, and school personnel or would But Osborne said that the sheriff’s de- ity on the Internet is unfamiliar ground for disrupt the educational process.” partment “could actually have filed charg- schools, but each district has its own rules However, a number of courts have re- es.” to handle “those types of situations.” jected schools’ efforts to punish students for “We have a good working relationship “We are seeing a greater trend where expression that occurs outside of school. with them,” Osborne said. “We weren’t kids are using the Internet to express them- “I agree [the blog] is freedom of expres- dealing with felony criminal acts as much as selves,” Kemp said. “It’s something that sion, I have no problem with that,” Os- a distraction in school.” schools need to take into consideration to borne said. “But when false statements are Kilpatrick referred to subpoenas as deal with derogatory comments.” made against students under the name of “fact-finders” and said that probable cause Kemp said she has received several the school, then I’d very much argue that of illegal acts provided sufficient reason to calls claiming that principals are “cracking it’s my job to defend those kids.” “dig deeper.” down” on student Web sites, but there is no While Osborne, a self-proclaimed pro- Kilpatrick said the subpoena was ob- agreed-upon policy between schools to deal ponent of free speech and freedom of ex- tained under title 16-12.103 of the Georgia with rising student Internet activity. pression, said the students “crossed the line” Code, which states that it is unlawful to dis- American Association of School Ad- in creating the blog, experts questioned play sexually explicit images in “any book, ministrators Attorney Robert Ashmore said whether the school and the sheriff’s office pamphlet, magazine, printed matter how- he has noticed an increase in actions taken overstepped their bounds in employing ever reproduced, or sound recording” acces- by school administrators to teach students, sible by minors. The law does not mention parents and teachers about Internet respon- the Internet. sibility. Adam Goldstein, attorney advocate for “I’d like to see the schools fulfilling the Misuse of subpoenas the Student Press Law Center, called the function of educating students and parents The State Bar of Georgia warned subpoena use in this situation “especially to both their rights and their risks of im- against the misuse of subpoenas bizarre.” proper use and how that can hurt students in an advisory opinion issued on “Subpoenas are for law enforcement as well as others,” Ashmore said. “Schools Sept. 24, 1984, according to its purposes, not to unmask enemies,” Gold- should have a comprehensive policy that Web site. stein said. would discuss the parameters of proper use The State Bar of Georgia warns against as well as the areas that would be considered …A subpoena issued pursuant to O.C.GA the misuse of subpoenas, and says on its over the line.” … (a) should only be issued for actual Web site that it should “not be requested Ashmore said school administrators hearings and trials and should not be when in fact no hearing or trial has been need to acknowledge that as more students requested when in fact no hearing or scheduled.” are prone to write “the wrong thing without trial has been scheduled. Likewise, a subpoena issued pursuant to Rule 45 BellSouth, the Internet service provider thinking through” the consequences. of the Civil Practice Act should be re- the two students used to access MySpace. “Generally, schools [intervene] if there quested and issued only for depositions com, contributed information to the in- has been substantial disruption [of the which have been actually scheduled by vestigation without objection because they school] – that would be the way to draw the agreement between parties or where a received a valid, court-issued subpoena, line,” Ashmore said. notice of deposition has been filed and said Brent Fowler, a spokesperson for Bell- Goldstein said he questions the ease served upon all parties, and should not South. with which information regarding student be issued when no deposition has been “If there is no subpoena, BellSouth does activity on the Internet was obtained. scheduled. n not turn over information,” Fowler said. “If “The point of a subpoena is to gather we received a court-issued subpoena, we are information for law enforcement or court

 splc report • www.splc.org Winter 2006-07 INTERNET purposes,” Goldstein said. “They should ism [education] to learn not be used to vindicate rights that don’t the responsibility to use a exist in court or criminal law.” very large megaphone like MySpace,” Knopes said. A lawyer’s perspective Education the key “They will express them- The Student Press Law Center contacted Peter selves no matter what. C. Canfield, Esq., an Atlanta-based media The two students are now singing a bit- What we have to do is to lawyer with Dow Lohnes, LLC, to ask his take tersweet tune after dodging a potentially make sure we are creating on the North Oconee incident. bad situation that could have landed them good citizens and that they SPLC: What does a situation in which a school and police in jail, Kilpatrick said. are learning the responsi- department use subpoena power to track down students “Their biggest defense is that they are bilities that come with First mean for student bloggers? juveniles,” Kilpatrick said. “If they had been Amendment rights.” 17, they would have been locked up.” Phil Hartley, general Peter Canfield: Certainly there are times when it’s appro- The students, whose names could not be counsel for the Georgia priate [for school officials] to go to police and for police to obtained because they are juveniles, faced a School Boards Association, help them, but what’s disturbing is when police methods disciplinary hearing on Oct. 17 that includ- said he would not comment are used for non-criminal matters. ... It seems dangerous ed Oconee School District Assistant Super- on the case, but that social for the police to agree to use criminal investigative meth- intendent John Jackson. networking Web sites have ods when no crime has occurred. Jackson refused to comment on the out- the potential to cause major come of the disciplinary hearing because disruptions in school. SPLC: What if school officials claim that student speech is of the students’ ages, but said the hearing “Schools are having a causing a disruption in school? might be an example for other students po- real difficulty finding ways tentially involved in future investigations. to deal with the problems PC: The exercise of first amendment rights often and Osborne said all parties involved sup- that get created when stu- should make people uncomfortable, but the police ported the outcome of the hearing and are dents utilize that type of shouldn’t get involved every time someone is made uncomfortable. ... Just because there is disruption doesn’t “tickled to death with the way it turned resource which, by its very n out.” character, has a wide impact mean they need to get police involved.” Carol Knopes, director of education and implication,” Hartley projects at the Radio-Television News Di- said. rectors Association & Foundation, empha- The “NOHS Gossip” sized how important it is for students to un- MySpace page has been re- arises again in the future. derstand the possible repercussions of their moved from the site since the “major disrup- “[The situation] could have been han- speech in order to avoid disciplinary action tion” it caused in school, Osborne said. dled a lot differently if people were hon- in school. He also said he has no reservations in est,” Osborne said. “I would do it again if “Students need to have some journal- taking the same measures if this situation I needed to.” n

From Internet policies, Page 7 Ramasastry’s Findlaw.com column said. to date no serious incidents have been re- The New York Civil Liberties Union ported, said Jay Worona, the New York State or literature containing a threat of violence, argued that the policy change was an in- School Board Association’s general counsel. injury or harm (e.g., including posting such fringement on students’ First Amendment Worona also said that a school policy material on the Internet)” on and off cam- rights, citing the landmark 1969 Tinker v. that allows suspension of students for con- pus. Des Moines Independent Community School tent that does not contain threats is an issue The new provision, adopted for this District case that students do not “shed their “to be debated in court.” school year, increases the possible punish- constitutional rights to freedom of speech or Ramasastry also said that the Internet ment for violating the policy to a six- to 90- expression at the schoolhouse gate.” is still an untested area and court litigation day suspension or possible expulsion. Boyd, the MySpace researcher, also said is important in setting precedent for future Although the policy is defined to cover teachers cannot expect students to behave cases. threats, Ramasastry warned of the slippery the same way out of class as they would in But Boyd said she believes education is slope these policies create. class. the key to creating workable Internet poli- “Even if rules are not broken, the post- “It’s like asking a teacher to act like cies. ings may still trigger administrators to want they’re in a classroom whenever they go out “To educate requires understanding, why to take punitive action such as suspension, drinking with their friends,” Boyd said. youth are doing what they’re doing,” Boyd expulsion or putting a note on the student’s The New York City Department of said. “Instead of punishing students for their record that may harm his or her chances of Education’s Internet policy went into effect extracurricular behavior, what would happen college admission, or on the job market.” with the new school year in September, and if teachers would learn from their acts?” n

Winter 2006-07 www.splc.org • splc report  INTERNET

It would be tragic if schools prevented students from blogging. ... A better approach is to teach them to blog well, how to understand their rights and what the principles are surrounding journalism.” Kurt Opsahl “ staff attorney, Electronic Frontier Foundation Dangerous minds Texas lawsuit raises questions about student blogs and libel issues By Karla L. Yeh “It’s a danger,” she said. “A huge danger, ognize that in the Internet age, it is even because there are no restrictions.” more important that students understand nna Draker says she is passionate Klasing said the only way to hold the the possible consequences of their speech. about teaching valuable lessons to students accountable is to obtain a judg- The popularity of social networking sites, Aher students, and has been doing so ment against them. including MySpace.com and Facebook. for years. The high school assistant princi- “Anna’s biggest concern is that com, is increasing, with MySpace becom- pal also says that is why, after a publicized these kids, in a couple of years, will ing the most visited site on the Internet in flap over a fake MySpace profile of her, she be adults, and they will have been July 2006. decided to sue two of her students for libel. taught that they can humiliate “One of our biggest challenges as an Murphy Klasing, Draker’s attorney, said someone like this and get away organization is to ensure that the huge the married mother of two wants account- with it,” Klasing said. “We’re number of students who have become In- ability from Benjamin Schreiber and Ryan hoping that these kids will ternet publishers understand both their le- Todd, the two 16-year-old Clark High learn when you do something gal rights and responsibilities,” said Student School students who created a fake profile that is hurtful, there’s a Press Law Center Executive Director Mark page for her on the Web site MySpace.com, consequence.” Goodman. to ensure that they do not “get away” with But in order for Goodman said the SPLC is frequently the emotional and physical damage she ex- Draker to prove referring students to the libel and privacy perienced. page in the resource center section of the A school official alerted Draker to the SPLC Web site, as well as to SPLC publica- MySpace page in April 2006, a month af- tions such as the book Law of the Student ter the page was created. Klasing said the Press. On Nov. 30, the SPLC, with a grant students created the profile “in her voice” from the Newspaper Association of Ameri- and posted false information, including ca Foundation, released a new Power Point doctored photographs, fabricated quotes presentation on libel law that students and and information indicating Draker was a teachers can download for free from the lesbian. SPLC Web site. Klasing said Draker was “devastated” Blog creators are often unaware of the and “petrified” when she discovered the consequences of posting comments subject MySpace page, causing her to miss days to libel lawsuits because they are ordinary of work. He also said Draker received tele- people, and are not necessarily media law phone calls from strangers requesting to experts, according to a Oct. 3 USA Today meet her as a result of the posted informa- article titled “Courts are asked to crack tion. down on bloggers, Websites.” After “thinking long and hard about what to do,” Klasing said Draker decided to Of the more than 50 libel-related law- libel, she must show that those who read suits from the past two years listed on the file a libel suit as well as a negligence claim the page believed the statements about her against the students’ parents. Media Law Resource Center’s Web site, me- were true and not just an attempt at humor dialaw.org, four, including Draker’s, pertain Draker is suing for lost wages, court at her expense. costs and unspecified damages for emotion- to student expression. Libel lawsuits are also notoriously dif- al distress and mental anguish. While the number of Internet lawsuits ficult to win, especially when the person su- Draker could not comment on the involving students is small, media experts ing is a public official. case, but said she has her own opinion suggest that the increasing number of stu- about social networking Web sites such as Several First Amendment organizations dent blogs could indicate a growing num- MySpace. dedicated to protecting student rights rec- ber of students who will be sued.

10 splc report • www.splc.org Winter 2006-07 INTERNET

According to an online survey conduct- gan blogging as a student at Albany High haven’t encountered any time when I have ed by Pew Internet & American Life Proj- School, said. “While blogging, I made sure been writing about something that would ect, 57 percent of teens using the Internet that everything I wrote was professional. I call [libel] into question.” are creating their own content in the form mean that it articulates my emotions in a Similarly, Gabe Pendleton, a graduate of blogs. coherent manner without becoming caught of Connecticut College, said he seldomly And a majority of student bloggers in- up in emotion.” considers libel consequences while writing terviewed said they were not knowledgeable Adam Kroopnick, a freshman at State blogs. and had not considered the consequences University of New York Geneseo, began “I think the average blogger has a small of libel. writing blogs during his senior year of high enough audience that no one cares about “In my opinion, bloggers can write school. what they say,” Pendleton said. “It would whatever they want,” Tanesha Thomas, a “[Libel] is not a major concern of mine,” actually draw much more attention to the freshman at New York University who be- Kroopnick said. “I know what libel is but I blog if someone filed a claim about it then if no one did anything.” Robert Cox, founder and president of the Media Bloggers Association, said no Learn about libel one, including students, can use ignorance Libel is defined as the publication — in words, photos, pictures or symbols of the law as a defense in libel suits. — of false statements of fact that harm another’s reputation. “Any student who is out there publish- ing on a Web site who doesn’t understand the basic laws about being a publisher is · The PHIF checklist: If you are sued for libel, there are four elements that the person suing must establish to prove courting disaster,” Cox said. “Better safe he has been defamed by the defendant. If he cannot prove each of the following, the claim than sorry – understand what the rules are will fail: and then go have fun.” • He must show that the statement was published. Cox also said that the general public of- • He must be able to prove that a sufficient number of people believe he was identified. ten views the Internet as the “Wild West” • He must prove that the statement harmed his or her reputation in some way. where users do not realize the possibilities • He must show that the defendant was at fault in publishing the statement, or consequences of their speech. and knew it was probably untrue. “[In general,] there’s a basic rule of thumb that you don’t do anything that · Public officials and public figures: ends up on the front page of the New York The 1964 U.S. Supreme Court case New York Times Company v. Sullivan established that Times,” he added. “Same goes for blogs.” public officials must also prove “actual malice,” or that the publisher knew the statement was But Bruce Fein, former general coun- false or was reckless in verifying its accuracy. This was later extended to public figures. sel for the Federal Communications Com- mission, and Marilyn Lashner, owner and Remember: · principal researcher at Media Analysis & The absolute defense for libel is truth. If a statement is true — the person making the state- Communications Research, both libel ex- ment cannot be held liable. perts, emphasized the importance of distin- guishing between opinions and facts when · The following are examples of “Red Flag” statements that should be given special atten- tion before publication: publishing online. • Statements regarding improper sexual conduct, sexual promiscuity or pregnancy. Pure opinion statements cannot be • Statements that associate someone with a socially stigmatizing disease. libelous because they cannot be true or • Statements that accuse someone of committing a crime or other illegal behavior. false. Only false factual statements can con- • Statements that hurt a person’s ability to engage in his livelihood, stitute libel. business or profession. “Sources and attributions are very, very • Statements that attack a person’s honesty or integrity. important,” Lashner said. • Negative statements about grades or academic ability. Fein said students who increase their • Statements that allege racial or religious bigotry. knowledge of their state’s libel laws can • Statements that accuse a person of associating with criminals, “shady characters” prevent lawsuits and bolster their defense if or publicly disfavored groups. they are threatened with legal action. • Statements that question a person’s creditworthiness, financial stability Susan Crawford, professor at Cardozo or economic status. • Any negative statement about a lawyer. n Law School and a media and Internet spe- cialist, said the original concept of libel was Source: Law of the Student Press, Student Press Law Center (1994) designed for the select group of people who were publishers, “when the idea of hav- ing your reputation diminished on a blog

Winter 2006-07 www.splc.org • splc report 11 INTERNET seemed less likely.” statements as fact. The letter, a copy of which was provid- Crawford said she encourages students He also said that teaching students ed to the Report by Klasing, suggests that to continue expressing their thoughts about their rights and responsibilities on Schreiber did not understand libel and its through blogs, but while using caution. the Internet is incredibly important. consequences. “Students are people who have strong “It would be tragic if schools prevented In 2007, Sandy Woodcock, the director views and it’s a good idea for them to be students from blogging,” Opsahl said. “A of the Newspaper Association of America bloggers and not be chilled by litigation,” Foundation, said her organization plans Crawford said. “I hate to have legal consid- to collaborate with the Student Press Law eration shape what people do, but if you Center in a Podcasting project to address the need for increased education in issues upset someone sufficiently, they may go out Students are people who have and hire a lawyer.” strong views and it’s a good idea such as libel. Crawford said she would direct any for them to be bloggers and not be “We really need to educate everyone, students seeking information about what chilled by litigation.” not just student journalists,” Woodcock “ Susan Crawford said. is libelous to Internet resources such as the Electronic Frontier Foundation Web site, professor, Cardozo Law School Before Draker’s lawsuit was filed, Sch- eff.org. reiber was criminally charged with fraudu- The Electronic Frontier Foundation’s lent use of identifying information, a mis- Web site also offers an online guide for better approach is to teach them to blog demeanor. defamation law that provides bloggers with well, how to understand their rights and Jill Mata, the Bexar County district at- answers to frequently asked questions per- what the principles are surrounding jour- torney, said Schreiber’s court hearing took taining to libel. nalism.” place on Oct. 16. He was placed on infor- Electronic Frontier Foundation Staff Draker’s attorney filed her lawsuit in mal probation and is required to report to Attorney Kurt Opsahl said the Web site August and does not yet have a court date. a probation officer, perform community guides students through many blogging is- Shortly after the suit was filed, Sch- service and participate in counseling for no sues that may arise. reiber, one of the students named in the longer than six months. Opsahl said students are not always lawsuit, wrote a letter to Draker admitting Schreiber and Todd, as well as their aware that libel is a concern and that they that he created the MySpace page with oth- families and lawyers, could not be reached can run into difficulties by expressing false er students. for comment. n

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12 splc report • www.splc.org Winter 2006-07 ACCESS Administrative records more open in California Court decision sheds light on superintendent’s firing

By Karla L. Yeh come public after an investigation in Cali- the records as a “sweetheart deal.” A California Court of Appeal’s deci- fornia. The school had sealed the documents sion to open investigative reports regard- The court’s decision differentiated be- to the investigation and refused to disclose ing a former school administrator to a local tween high-profile public officials and or- them when the Record Searchlight, the local newspaper is a victory for both professional dinary citizens, saying that holding the newspaper in Redding, Calif., a town south and student journalists in the state, the pa- position of superintendent is high-profile of Dunsmuir, requested them. The newspa- per’s editor said. enough to warrant public access to infor- per sued in August 2004. The 3rd District Court of Appeal re- mation. “The taxpayers should have a right to quired Dunsmuir Joint Union High School Complaints surfaced after Pam Padula, know what the deal was, what the allega- to open investigative reports compiled by whose daughter attended the high school, tions were and so on,” Record Searchlight Diane Davis, who was hired by the school alleged that Morris bullied her daughter in Editor Kelly Brewer said. board in May 2004 to investigate allega- school. In February 2005, the Siskiyou County tions of abuse and bullying against former Davis’ reports included several inter- Superior Court ruled that the reports were Superintendent and Principal Bob Morris. views with parents and students regarding public, but also said that parts of the reports “I think [the case] breaks new ground Morris’ behavior. She turned her reports could be redacted. in several areas,” said John Kelly, attorney over to the school in June 2004. In June 2005, the same court ruled only for the high school. “The courts do their Two months later, Morris took a leave portions of the reports could be disclosed. best to come up with a solution, and one of absence until his official resignation at After a lengthy appeals process, the I don’t necessarily agree with on all aspects, the end of the year. newspaper was finally granted full access to but they did what they did.” The reports detailed Morris’s resigna- the reports and awarded $30,000 in court The “solution” sheds new light on the tion, including the school giving him a raise and attorney’s fees. definition of what records can be- by $5,000 and buying out his contract, which the court referred to in Clearing up the law its decision to open But school officials appealed to the Cal- ifornia Supreme Court in Novem- ber, asking it to reconsider the lower court’s decision to release the reports in full, citing its need to “maintain the confidentiality of student records.” Superintendent and Prin- cipal Len Foreman said the school board is reluctant to turn over the full records because it is concerned about maintaining the privacy of students named in the documents. “With a small student body of only 106 students, the [school] board made [its] decision based entirely upon maintain- ing the privacy of students,” Foreman said. “Certainly not [the pri- vacy of] Mr. Morris.” The school

Winter 2006-07 www.splc.org • splc report 13 ACCESS board also asked to not pay the $30,000 school did not produce a 2006-2007 stu- “It recognizes important public inter- awarded to the Record Searchlight because dent newspaper. ests and informs the public about the per- of its declining budget. The paper’s former adviser, Scott Porter, formance of public officials and potential Despite the recent petition for review, said it was “a matter of numbers” and “the wrong-doings of public officials,” Hudson Brewer said she remains confident that the school board’s decision.” said. case will stand because of its importance. Porter declined to comment on the Karl Olson, an attorney with Levy, Ram “We thought we could clear up some case. & Olson, a San Francisco law firm active in murky law in California if we got this thing While student journalists are not always First Amendment and Freedom of Informa- decided,” Brewer said. successful in their ef- tion Act litigation, Walter McNeil, the newspaper’s attor- forts to access school said California’s in- ney, said he agrees that the case paves the records, advocates fluence could affect way for access to more records dealing with from First Amend- It’s going to be most influential future decisions in public and school officials. ment organizations in California, but other states have other states. “A person who has deliberately made said this court deci- public records acts and I think “It is definitely themselves a public figure can’t expect the sion could spur stu- California is certainly influential.” a step in the right “ Karl Olson same degree of privacy about how they dents to renew cer- direction for the carry out their job than an ordinary person tain efforts involving attorney, Levy, Ram & Olson law under the Cali- would expect,” McNeil said. high-profile school fornia Public Re- Although open records laws differ from officials when their cords Act, not just state to state, all journalists, including stu- initial records requests were denied. for student journalists but for journalists dents, have the opportunity to request ac- David Hudson, a First Amendment throughout the state,” Olson said. “I think cess to public records. Unfortunately, Dun- Center research attorney, said the case is it’s going to be most influential in Califor- smuir Joint Union student journalists are “good for student media” and very signifi- nia, but other states have public records acts unable to benefit from the case, because the cant. and I think California is certainly influen-

ACCESS in brief

The Collegian decided not to go for- ployee secretly recorded a meeting be- South Dakota judge ward with the lawsuit. tween other university employees about orders university John Arneson, the Collegian’s lawyer, Sheaffer’s “serious misconduct” and argued under South Dakota’s open meet- turned the recording over to administra- interviews opened ings law that the meeting should be open tors. SOUTH DAKOTA — A student edi- to the media because it was a forum for Sheaffer then requested a copy of the tor in chief still plans to file a complaint interaction between several constituen- recording under the Wyoming Public against the South Dakota Board of Re- cies and not a discussion of personnel Records Act, but the university refused. gents for attempting to close meetings to issues. A court sided with the university that all media, even after a judge ordered that Fugleberg said a newspaper group the tape was not public record because it student journalists should be allowed to and Arneson are working on filing a was part of a personnel investigation. complaint, but it is a “slow moving pro- sit in on interviews with a school’s presi- The state supreme court reversed cess.” n dential candidates in September. the lower court’s decision and granted South Dakota State University Col- Shaeffer access to the tape because it was legian Editor in Chief Jeremy Fugleberg Wyoming high court recorded prior to the school’s employee- said the board of regents invited students declares audio tape conduct investigation. n to attend candidate forums scheduled Case: Sheaffer v. State, 139 P.3d 468 for Sept. 14 and Sept. 15, but said stu- public record (Wyo. 2006). dent journalists would be asked to leave, which prompted him to take legal ac- WYOMING — A former University tion. of Wyoming employee was granted ac- Appeals court A South Dakota Circuit Court judge cess to a secret tape recording detailing declares Maryland issued a seven-day restraining order re- the grounds of her termination after the quiring the university to open the meet- state supreme court declared the record- school flier policy ings, because student journalists would ing public record. “suffer the immediate and irreparable University Transportation and Park- ‘too broad’ injury of being unable to attend and/or ing Services Manager Corinne Sheaffer MARYLAND — A policy that governed report on the forums.” was fired in 2004 after a university em- public school officials’ authority to deter-

14 splc report • www.splc.org Winter 2006-07 ACCESS tial around the country.” available because the impulse to keep things secret is a strong one,” Scheer said. “They Privacy concerns are excessively worried about liability and intimidated by lawyers representing school As principal of Dunsmuir High School, officials.” Foreman said he understands the public’s Scheer said he commends the efforts of desire to know about high-profile dealings. the newspaper in Redding and referred to He said he feared this case could breach the ruling as “a well thought-through appel- student privacy, but the high school will late decision” in which the court balanced not implement any new policies to combat “the private interest in keeping information those concerns in the future. confidential versus the public interest in the “This case is not the norm in our com- public domain,” which he said, “clearly fa- munity,” Foreman said. “I don’t think we vors disclosure.” need to have new policies enforced.” Brewer said she also advocates for fur- According to California First Amend- ther action in ensuring public records re- ment Coalition Executive Director Peter main as they are – public. Scheer, schools across the country com- “As student and professional journalists, monly refuse to disclose reports explaining we have a duty to press these issues, to keep changes in positions of local officials. records open. I hope it encourages people Scheer said that more often than not, to take action when they see things that school officials will not say or release any- don’t look right,” Brewer said. thing about such matters, benefiting them- “We do this on behalf of the public, es- selves, not the public. pecially journalists and student journalists, “They’ll use whatever legal tricks are because we can and we should.” n

ACCESS in brief

mine which community groups can send v. Montgomery County Public Schools, committees, it must be in open session.” home fliers with students was struck 457 F.3d 376 (4th Cir. 2006), aff’ing in The decision comes after the San down in August because an appeals court part, rev’ing in part, and remanding 368 Francisco Chronicle filed a lawsuit re- said it infringed on the groups’ First F.Supp.2d 416 (D. Md. 2005). questing the board of regents’ compensa- Amendment right to free speech. tion committee decide on executive pay The Fourth U.S. Circuit Court of Court rules University in open meetings. Appeal said in its August decision that Two of the Chronicle’s claims, one the Montgomery County Public School of California system that the university be required to release system policy for deciding what materi- compensation votes records from previous meetings held als from outside groups can be sent home in private and another requiring future with students is too broad, and has no must be public private meetings to be videotaped, were safeguard against allowing administra- denied. tors to pick and choose based on the CALIFORNIA — A state court ruled At the request of a state senator, the views being expressed. in August that the University of Califor- California state legislature’s legal counsel The case did not involve the rights of nia Board of Regents cannot decide how sent a 12-page opinion to the board of students at the school to distribute mate- much to pay university administrators in regents in May that also said voting on rials, which have generally been found to meetings that are not open to the pub- compensation in closed meetings was a be greater than those of outsiders. lic. violation of state law. The court stated in its summary that The board can, however, debate the University of California General the Montgomery County Public School matters in private, but no votes can be Counsel Jeff Blair told the University of system could restrict access to outside taken, the court said. California at Berkeley’s student news- groups if it creates a “viewpoint neutral” “Education Code section 92032 paper, The Daily Californian, that it did and “reasonable” way to determine what authorizes the Regent’s compensation not intend to appeal any portion of the should be sent home from school, but committees to consider or discuss com- ruling. n the current policy “utterly fails” to pro- pensation proposals of top University of- Case: San Francisco Chronicle v. Regents vide adequate protection. n ficers in closed session,” the opinion said. of the Univ. of Calif., No. RG06269541 Case: Child Evangelism Fellowship “However, when ‘action’ is taken by the (Super. Ct. Calif. Aug. 1, 2006).

Winter 2006-07 www.splc.org • splc report 15 High SchoolCOLLEGE Censorship Censorship in brief Taking the plunge After taking their weekly newspaper exclusively online, staff members at one college publication encountered a funding threat continues on the ad- By Marnette Federis vantages of new me- When students at Eastern Connecticut dia both on and off State University arrived for school in Sep- Eastern Connecticut tember, copies of The Campus Lantern, the State University’s school’s student newspaper, were noticeably campus. Some are missing from news racks, replaced only with also asking whether fliers that read “Where Is It?” controlling the medi- The cryptic message was not a prank, um a student media but rather part of a campaign to let students organization uses can know that the newspaper was switching from be classified as a form its weekly printed editions to an online-only of censorship. daily. The clever advertising campaign cre- Murley said that ated the buzz staff members of The Campus the student govern- Lantern were looking for. ment’s funding cut bought a domain name and software that al- “It got the campus talking, it was really could be called “indirect” censorship. great,” Editor in Chief James Gibson said. lowed staff members to turn in work from “The student government is attempt- any location. “We [also] got the administration talking, ing to exercise control over a decision that But as editors prepared to launch the site they’ve never seen a campaign like that.” should rightfully be the decision of student in September, they received word that mem- Since its launch in September — the- editors — how to disseminate content,” bers of the university’s Student Government campuslantern.com — boasting news, Murley said. “That plays out, ultimately, in Association were unhappy with the paper’s opinion, entertainment and sports sections content decisions.” has recorded about 72,000 individual pages plans to go online. Student government Campus Lantern staff members first -de viewed. members argued that The Campus Lantern cided to make the leap to the web to cre- As media sources increasingly use tech- should have first consulted the student body ate room in the budget to pay staff. In the nology and the Internet to disseminate up- about the change. 61-year history of the newspaper, writers to-the-second information, experts say that Student Government Association Presi- and photographers had never been compen- student media groups may lead the way. dent Benjamin Sanborn said that because sated. An online newspaper, they thought, While many student newspapers have online editors did not communicate their plans, could use money allocated to printing costs versions of their paper, The Campus Lantern funding for The Campus Lantern was with- toward paying the staff. Gibson said over is the first college student media organization held. the years the lack of pay has often resulted to cease print publication and create an on- “It’s more the process they went about it,” in the newspaper losing quality writers and line-only daily newspaper, said Consultant Sanborn said. “It was deceiving because they photographers. Bryan Murley from The Center for Innova- were passing it off as if they were printing a tion of College Media, a think tank assisting Gibson said the staff went to work quick- newspaper, but there is no newspaper.” student media in adapting and flourishing in ly, extensively researching online resources. At a meeting between the two parties, the new media environment. He said the facts pointed to an increase in Gibson said student government members But the road from print to online has consumers getting their news online. raised concerns about students’ computer ac- been anything but smooth. Staff members “If all these signs are pointing to the cess and whether students would appreciate clashed with members of their Student Gov- fact that advertising dollars are going down the change. Gibson called the student gov- ernment Association, which initially with- for [print] newspapers, that people our age ernment’s reluctance to give the newspaper held funding for The Campus Lantern after aren’t reading newspapers,” Gibson said. its yearly funding “baffling,” and reflecting they learned of the change. Student govern- “Then why are we perpetuating this printed an attachment to the physical newspaper. ment leaders objected to the fact that the media?” Sanborn said there were negative con- newspaper had ceased its printed editions. Editors created a test site in August and sequences with the change — students who While the student government even- began experimenting on how an online news were paid to deliver copies of the newspaper tually restored some funding, the debate site would function. The Campus Lantern to news stands, for example, lost their jobs.

16 splc report • www.splc.org Winter 2006-07 COLLEGE CENSORSHIP

But Sanborn said the new site does allow for voted to allocate funding just for the maga- in funding has created another obstacle for quicker and more regular news updates. zine, but not new equipment, cutting the his staff members, who are increasingly be- “I’ve heard both positive and negative,” total amount given to the newspaper from coming frustrated with the lack of pay. Sanborn said. “I heard some people who say about $15,000 to $10,000 per semester. At Eastern Connecticut State University, that since the newspaper went online, I’ve “It’s kind of like a slap in the face be- both student editors and student leaders said never checked it.” cause essentially they’re saying we’re not go- that the funding conflict has nothing to do But Gibson said that student govern- ing to pay for anything except for something with content. But Murley, who follows new ment members ultimately disliked how staff in print,” Gibson said. media trends in college media, said he sees members bypassed the group in the decision Sanborn said the student government is potential censorship issues arising from the to move exclusively online. not allowed to give funding to organizations user-generated content of online newspa- “It was kind of like a loss of power,” Gib- specifically for equipment.The Campus Lan- pers. Online student newspapers might host son said. “They don’t like the fact that we’re tern got lower funding because the requests forums where students can criticize student not printing a newspaper.” were made later in the year, he said. government leaders or administrators. The The initial launch of the Web site was Gibson said The Campus Lantern still “holder of the purse strings,” could then de- funded through the newspaper’s advertising has does not have the money to pay its staff cide to cut funding, he said. revenue, Gibson said. But The Campus Lan- and is currently using its own funds to buy “Already we sometimes see schools that tern was still tied to a $19,000 contract with new equipment and to sustain the Web site. have been averse to putting up student me- its printer, which allowed them to print 13 Gibson said there is a possibility that the stu- dia Web sites because of the potential for issues during the school year. Staff members dent government will amend its policies to negative publicity about campus crime, ad- decided to create a quarterly magazine in or- include funding for equipment and stipends ministration and student behavior,” Murley der to meet its contractual obligations to the for next semester. The Campus Lantern is also said. printer. seeking a way to void its printing contract. Roger Soenksen, media law commit- In October, the student government Meanwhile, Gibson said the current cut tee chair of the College Media Advisers, a national association of professionals who advise media organizations, said censorship Is it censorship? occurs when a student government starts us- ing the “purse strings” to dictate a newspa- By Adam Goldstein, SPLC attorney advocate per either through content or its ability to The ability of students to legally choose the medium in which they publish is compli- deliver news. cated because of two simple legal doctrines that intersect in an unusual way: the right “Any type of budget control over student of students to be free from censorship, and the right of schools to choose how money media has, at least on the perception level, is allocated as long as they are doing so for non-content reasons. the ability to create a chilling effect as far as the media being able to communicate to stu- Because denying the right to publish content in a new medium is a limitation on the ability to disseminate that content, it is a form of censorship to deny the right to publish dents,” Soenksen said. in that new medium. But schools are not obligated to fund every new venture. Murley said that the key in new media success is finding ways to engage readers, Determining the right to publish in a particular medium requires analyzing the relation- something that is already showing through ship between the publication and the school and the allocation of funding. You should in the revamped Campus Lantern. call the SPLC to discuss your particular situation, but here are three general rules to “If you look at the discussion and keep in mind. comments about the SGA funding on A school CANNOT force you to publish in a medium you DO NOT want to use. Under the Web site,” Murley said. “You can basic First Amendment law, you cannot be compelled to speak against your will. That see editors and students are respond- does not mean the school is obligated to pay for your new medium; it only means you ing and engaging in the news — it’s need not provide your words to the old medium. something you can’t do in a newsprint.” Gibson said that the new online format en- A school CANNOT prohibit you from publishing in a medium you DO want to use. gages the campus community more than a As editors at a public college, you have the right to determine how to disseminate your print edition. Previously, it was difficult to work. For example, while a school is not obligated to provide funding for an online pub- lication, it could not deny funding to an existing print publication because the editors gauge readership, he said, but with an online wanted to publish the content online as well. format, staff members get faster feedback from students. Gibson said comments come A school CAN allocate funds to a specific type of medium. If a publication submits a minutes after an article is published and staff budget for the next year that includes printing costs, it cannot take the money allocated members can see which articles get the most for printing and use it for buying a server to host its digital edition. This is not a media reads. issue; if someone is granted funding for a volleyball team, they couldn’t take the money and fund a basketball team. n “It’s amazing what data we can collect now,” Gibson said. “I can’t imagine going back to print.” n

Winter 2006-07 www.splc.org • splc report 17 COLLEGE Censorship Native tongue Native American tribal colleges have a history of censorship, small support for journalism programs

By April Hale Native American tribal colleges are unique. Most of them are located on tribal lands, sovereign from the United States, yet are funded with federal dollars. Some are more vocational than academic, and few of- fer four-year degrees. Only a handful have a student-produced publication, and none have a journalism program. In tribal college media, student journal- ists and their advocates say they treasure in- dependence, and they know that in the past, freedom of the press has been considered optional by school officials. Almost two decades ago, school ad- ministrators in Lawrence, Kan., censored the oldest tribal college student-produced publication, Haskell Indian Nations Uni- versity’s Indian Leader, because of an article it published about the university president’s involvement in a money mismanagement school reached a settlement that gave the In- he had been relocated to Washington, D.C., investigation. dian Leader staff autonomous control. by the school’s board during the investiga- The article was actually a compilation of After the Leader had resumed publica- tion. facts from several stories published in other tion, Stevens wrote an editorial giving his area newspapers, but after publication the reasons for filing the lawsuit. Censorship Policy administrators froze the Leader’s account in “We decided to bring this action to 1989 and students could not print any is- protect your First Amendment right to In Santa Fe, N.M., the Institute of sues for several months. read uncensored news written and edited by American Indian Arts’ student newspaper, Marcel Stevens, then managing editor Haskell students without any interference or the IAIA Chronicle, faced stong administra- of the Leader, and seven other students filed pressure from the administration,” Stevens tive pressure of its own in the mid-1990s a lawsuit after the Leader’s adviser and his wrote in 1989. when the school faced budget cuts from the son tried to print a “counterfeit” issue with Today, the Indian Leader staff has com- U.S. Congress and many employees were what were described as “biased, one-sided” plete control over the content of the paper. laid off. Several employees filed lawsuits, articles. “If the university wants to respond to an which started a long bout of negative pub- Out of print for six months, a federal article, we’ll have to do it through a letter to licity for the school. judge granted a temporary injunction in fa- the editor and even then it’s up to the staff to The Chronicle, under tight administra- vor of Stevens’ group that stopped publica- print it or not,” said Haskell Vice President tive control, did not publish any articles re- tion of the so-called “counterfeit” issues. of Academic Affairs Venida Chenault. garding the lawsuit, for fear of censorship, In court, the students’ lawyer argued Gerald Gipp, Haskell’s president at the said Chronicle adviser Evelina Lucero, a that “even one publication of ‘counterfeit’ time of the incident, said he was cleared of member of the Isleta and Ohkay Owingeh issues would irreparably violate Stevens’ all allegations and was “surprised” when the Pueblos of New Mexico. First Amendment rights, as well as damage censorship lawsuit occurred. “Because of the negative publicity they the newspaper’s reputation and ability to Gipp said he was “not aware of the cen- were receiving in the local newspapers the publish ‘timely’ news.” sorship incident” and he was “not on cam- school permitted statements to the press In September of 1989, the students and pus” during the time of the incident because through the president’s office only,” said -Lu

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cero, which made it difficult for Chronicle fore are not subject to the same tribal re- reporters to gather information. strictions as community tribal publications The school’s president also demanded are, said McAuliffe, a member of the Osage Where they are to review a Chronicle reporter’s story on the tribe of Oklahoma. According to Denny McAuliffe, Univer- school’s budget, but both the reporter and McAuliffe said that shows tribal col- sity of Montana journalism professor Lucero refused. lege newspapers are in one way more free and founder of Reznetnews.org, only “I explained to the president that we than the professional newspapers owned 10 Native American tribal colleges did not allow [prior review] but would be by the tribe. Autonomy protects tribal col- have student media of any kind: happy to verify all quotes by her for accura- lege newspapers from censorship by tribal Blackfeet Community College (Montana) cy,” Lucero said. “If we didn’t state a policy council members that are unhappy with CrownPoint Institute of Technology (New Mexico) and stand by it, administrators would at- stories in the paper. Fort Belknap College (Montana) tempt to censor the paper.” “Theoretically, freedom of press can ex- Haskell Indian Nations University (Kansas) TheChronicle ’s editorial policy refers to ist on tribal lands if you use tribal college Institute of American Indian Art (New Mexico) the First Amendment of the U.S. Consti- newspapers,” McAuliffe said. Little Priest Tribal College (Nebraska) tution to guarantee the right of freedom of Technically, the First Amendment does Saginaw Chippewa Tribal College (Michigan) the press. It also cites the 1957 U.S. Su- not apply to all tribal lands, McAuliffe Salish Kootenai College (Montana) preme Court decision in Roth v. U.S. that said. Stone Child College (Nebraska) ensures the “unfettered interchange of ideas In the 1896 case Talton v. Mayes, a United Tribes Technical College (Wisconsin) for bringing about the political and social court decided that the U.S. Constitution changes desired by the people.” does not apply to tribal land and its mem- In adherence to the idea that it is a bers, said Thomas Birdbear, lawyer and said Tom Arviso, Jr., publisher of the Na- public forum, the IAIA Chronicle will not adjunct lecturer at the University of New vajo Times. shy away from coverage of controversial Mexico Native American Studies Depart- topics, Lucero said, but instead will seek to ment. Education and Censorship cover all stories fairly and accurately. Yet, all tribes are subject to the Indian “Censorship is repressive and the op- Gipp, who is now the executive direc- Civil Rights Act of 1968, which includes a tor of the American Indian Higher Educa- posite of what educational institutions seek free and independent press, but it is “up to to teach,” Lucero said. tion Consortium, which oversees all tribal the tribes to exercise this right,” Birdbear colleges, said press freedom at tribal colleg- TheChronicle covers a variety of issues, said. ranging from drug abuse on the reservation es is important, but journalism programs The 1978 Santa Clara Pueblo v. Mar- are not a tribal college priority. to art shows, legislation in the state and ed- tinez decision stated again that the U.S. ucation on a national level, Lucero said. But advocates say the two are linked. Constitution does not apply to tribal land, Of the 34 tribal colleges across the “After the first attempt at censorship by because tribes are sovereign nations with the administration the distrust of the stu- country, only 10 have a student-produced their own government and law, and also newspaper — online or print — a televi- dent media disappeared,” Lucero said. that tribes pre-date the Constitution. But Denny McAuliffe, University of sion station, radio station or even a jour- “It’s a misnomer that freedom of press Montana journalism professor and founder nalism program. is a right in Indian country, unless a tribe of Reznetnews.org, a Web site designed to Pam Wynea of the Sisseton Wahpeton writes it into its constitution,” Birdbear promote journalism among Native Ameri- College in northeastern South Dakota said said. can youth, said tribal college newspapers it is difficult to find a faculty member in- simply do not tackle hard-hitting issues, Tribal courts could also assert a free- terested in taking on the task of advising a which is why tribal colleges are rarely sub- dom of the press guarantee, but a case student paper or journalism program. ject to censorship. would have to be filed and not many tribes “It’s really personality driven,” Wynea In Lawrence, current Indian Leader have taken such a proactive approach, said. Editor Robert Smith said the problem is of Birdbear said. Blackfeet Community College in Mon- personnel. “You’re dealing with an area that doesn’t tana offers a few journalism classes through “It would be nice if the Leader had a have a lot of legal precedent in tribal ju- its liberal arts program, but does not have a bit more of an edge, but the truth is we are dicial law, which makes objective writing student publication. severely understaffed,” Smith said. “I can difficult,” said Paul DeMain, editor of the Communications Coordinator Mar- put anything that I feel appropriate [in] independently owned tribal publication ion Salaway said a journalism program the paper.” News From Indian Country. is “something we’re discussing. We just The two largest Native tribes, the haven’t had the resources and mainly the More Free Cherokee and the Navajo nations, have a personnel and money for a publication.” freedom of the press law written into their Funding for printing and distribution Tribal college newspapers are often not constitutions. Both tribes have a free press is a problem for many tribal colleges as directed by the tribal council, and there- independent from the tribal government, well. But the Salish Kootenai College in

Winter 2006-07 www.splc.org • splc report 19 COLLEGE CENSORSHIP

Montana has eliminated the printing and ervation is conservative and distribution process and gone digital with an the group was concerned online publication called the Camp Crier. about backlash from com- With the help of McAuliffe, Salish munity members. Kootenai was able to set up a Web site that “We thought the ad- includes articles about the school and two ministration wasn’t going to galleries showcasing students’ artwork and let us run it, but they did,” photographs. Wayne Smith said. A recent graduate of Salish Kootenai, Wayne Smith said the Wayne Smith, Jr., said he recalls a short arti- college president stood cle he wrote for the Camp Crier about being “completely behind” the a child unaware of conflicts and war. Wayne publication. Smith, also a veteran, referred to his own let- Wayne Smith, a mem- ters and said the content was “innocent.” ber of the Blackfeet tribe of The photo that accompanied the story Montana, is also a graduate was of a woman breastfeeding an infant. of the American Indian Jour- David Spear, the Camp Crier’s adviser, nalism Institute, which is a (left) Tia Keene, a student at the Institute of American Indian said the community surrounding the res- three-week intensive course Arts, is interviewed by Valencia Tso-Yazzie (right), the student sponsored by the Freedom editor of the IAIA Chronicle Tribal free press Forum at the University of PHOTO COURTESY OF DULBERT YAZZIE/THE IAIA CHRONICLE South Dakota at Vermillion. papers, Coleman said the Volante was much The Cherokee and Navajo nations, Wayne is now attending the University of more structured, the coverage was more le- the largest Native American tribes, Montana’s journalism school. gitimate and deadlines were quicker. both have adopted press freedom Cynthia Hernandez, of the Prairie Band “I fostered my journalism career at protections in recent years. Potawatomi tribe and Travis Coleman, of the Haskell, it was a low-pressure environment,” · Principal Chief Chad Smith signed the Ponca tribe of Nebraska, both former editors Coleman said. Indian Leader Cherokee Nation Independent Press of Haskell’s and graduates of But McAuliffe said that news coverage Act into law in 2000. The Cherokee American Indian Journalism Institute, said and deadlines are not the only difference Phoenix is the oldest community tribal the Native American journalism movement newspaper that covers the news of the between public and tribal college publica- is progressing. tions. Cherokee nation in Oklahoma. “In the next five to 10 years young Na- The act reads, “The Cherokee Nation’s McAuliffe said public college newspapers Press shall be independent from any tive American journalists will flood main- are usually separate businesses or fall under undue influence and free of any par- stream newsrooms,” Coleman said. a student government’s control. He said the ticular political interest. It is the Coleman, Hernandez and Wayne Smith duty of the press to report without president’s office or an academic department are the only three tribal college students that controls tribal colleges publications. bias the activities of the government he knows of who have moved on to larger and the news of interest to have in- Journalism couple Valencia Tso-Yazzie formed citizens.” universities to pursue a writing degree, and Dulbert Yazzie said they value the right McAuliffe said. to freedom of the press at the IAIA Chroni- · The Navajo Nation, the largest reser- McAuliffe referred to them as trailblaz- cle, whose publication is under the creative vation, covers parts of New Mexico, ers. All three of the students contribute to writing department. Arizona and Utah. Title one section four McAuliffe’s Reznetnews.org news Web site. Valencia, the Chronicle’s student editor of the Navajo Nation Bill of Rights al- “A lot of Native kids have an opinion lowed the Navajo Times to become an and Dulbert, a reporter, are both members but they don’t have a forum,” Wayne Smith of the Navajo nation, and said that it is not independent press in 2003, although said. “Without an outlet we sit silenced.” the tribal council did have to vote on its in the paper’s “interest to silence anyone.” autonomy. Dulbert said that informing the com- “Freedom of reli- The Difference The section reads, munity is important to the entire staff and gion, speech, press, and the right of assembly and petition. The Navajo The disconnection between profession- each reporter strives to be accurate and fair Nation Council shall make no law als and students is obvious, McAuliffe said, with every story. respecting an establishment of reli- and tribal college newspapers are not getting Dulbert said the tribal student newspa- gion, or prohibiting the free exercise the job done. per does not feel the need to hold back its thereof; or abridging the freedom of “Tribal college newspapers are not de- opinions, either. speech, or of the press; or the right “Students can often feel disempowered of people peaceably to assemble, and signed to teach journalism or even promote to petition the Navajo Nation govern- journalism,” McAuliffe said. in institutions of education, and student ment for a redress of grievances.” Coleman went on to write for the Uni- newspapers can be an effective tool for them versity of South Dakota publication, the to address and challenge controversial is- Volante. In comparison of the two school sues,” Dulbert said. n

20 splc report • www.splc.org Winter 2006-07 COLLEGEINternet Censorship

With parents and new freshman on campus, college administrators become hypersensitive to student-produced orientation guides that they see as Trashing their image

by Marnette Federis

airfield University’s orientation pro- Editors at public universities have also gram was awkward for incoming encountered similar conflicts with adminis- F freshman Mike Gianelle. He said he trators. Front-page photos published in past recalls receiving class information, looking orientation issues of The Daily Nebraskan, at majors and learning about the dangers of the student newspaper at the University of alcohol. He does not remember the student Nebraska, have also stirred some controver- newspaper, The Mirror, because he never re- sy, so much so that administrators contem- ceived a copy. In fact, Gianelle did not even plated pulling copies of the newspaper, but know the paper existed. Unbeknownst to did not, according to adviser Dan Shattil. him, Fairfield administrators pulled copies At the University of Nebraska, orienta- of a freshman guide put out by The Mirror tion guides are placed in auditorium seats before new students and their parents ar- where students and parents listen to remarks rived for the orientation program in June. at orientation. In 2001, a parent complained Orientation issues are a staple for most to the university because of a cover photo of college student newspapers and often offer a martini glass. Shattil said the parent was freshmen a first glimpse into college life. But worried about the photo because he did not it is the audience that these freshman guides want his daughter exposed to alcohol. target — new students and their parents were found to be “inappropriate,” The Mir- Shattil said the incident shows that be- — that student editors say makes school ad- ror reported. The articles in question were cause the orientation guides’ target audience ministrators especially wary about content. student columns — one mentioned the lo- is comprised of students and parents, there At two universities this past summer, ad- cal bar scene, another elaborated on the up- can be more anxiety over them. ministrators pulled copies of orientation is- perclassmen fascination with freshman girls. “Administrators are concerned about sues from the racks, citing content that they The last controversial column gave a male the image the university projects more deemed “inappropriate” for orientation. The student’s observations about the opposite than [with] regular issue, which is primar- incidents are raising concerns among stu- sex. ily focused on existing students and faculty,” dents and faculty alike who worry that ad- At Boston College, also a Catholic Shattil said. ministrators are putting the school’s image school, an administrator ordered copies of before the rights of student media to publish the student paper, The Heights, pulled away An Image the truth. from the footpath of parents and incoming Student press advocates also say that be- freshmen before orientation began in June. At campuses across the country, pub- cause parents are possible sources for dona- Copies of the newspaper were later found in lishing an orientation issue has become a tions in the future, administrators become trash cans. The head of the of the school’s balancing act. Student journalists who want more determined to portray the university in orientation program objected to a student to portray real college life have clashed with the best light. And orientation issues, which column describing orientation as “miser- administrators who want another image of might feature a list of the best professors to able.” the university projected. take classes from alongside stories of late- Heights Editor in Chief Tom Wiedeman “I think that any college administration night parties, might not fit the mold. said he worries administrators do not seem walks a tight rope,” Simon said. “Wanting “Any self-respecting college newspaper is to understand that orientation guides offer to encourage critical thinking, exposing stu- not a public relations vehicle for the admin- a unique student perspective unavailable in dents to a lot of points of view, but some of istration,” said James Simon, adviser for The other forums. those might not be so positive.” Mirror. “You can easily see the best interest “We’re here to inform students,” Wi- University of Nebraska Associate Dean of a newspaper, which is different from the edeman said. “As much as [administrators] of Admissions Pat McBride, who runs the interest of the administration.” believe they were acting lightly, I hope they school’s orientation program, said orienta- Officials at Fairfield, a small Jesuit -col realize our intention with the guide was also tion guides at his school face more scrutiny lege, pulled the issue after several articles to help students.” from administrators because they are placed

Winter 2006-07 www.splc.org • splc report 21 COLLEGE CENSORSHIP in the seats of every program participant. Marchese said. “There are many agencies, “Anything that goes out is definitely individual professors or outside vendors who looked at more carefully,” McBride said. come to present there, but we don’t see that “[Orientation guides] are different from constructed into the orientation program.” other issues.” McBride said he faced a tough decision Role of Orientation Issues during his first year as orientation director, when the newspaper published a photo that While it is unclear for some administra- some described as sexist. McBride said the tors whether freshman guides should play a orientation committee discussed whether specific role in orientation programs, some the publication should be pulled, but in the student editors see a bigger purpose for the end, the orientation issue stayed. special issues. Boston College’s First Year Experience “It’s part of our mission to inform the Director, Rev. Joseph Marchese, gave the community,” said Michael Zennie, editor in order to move the freshman guides at his chief of Indiana University at Bloomington’s The Indiana Daily Stu- school, and said the issue had some informa- student newspaper, dent tion that would have diminished the cred- . “It’s especially important to reach out ibility of the school’s orientation program. to the freshmen who are the most suscep- The most contentious article for him was an tible to being left in the dark about things editorial from Wiedeman, which described that are going on.” of publishing the 80-page publication as a The Daily Student the orientation process as “miserable.” publishes a freshman “five-week long project.” Manchir said that guide, called The Orienter, annually. “We’re trying to get the students’ at- at one point she encountered some concerns For many student newspapers, produc- tention, trying to give validity in what the from administrators over an article about the ing orientation issues has other benefits. The orientation leader is saying,” Marchese said. university’s ranking as one of the top party guides might entice freshmen to become “And [the article] doesn’t help.” schools in the nation. The article ran, but staff members. The pages, filled with- ad Marchese said Wiedeman’s column Manchir said universities want to appear as vertisements from businesses trying to cash “the perfect school” for kids and parents. countered the mission of his program and in on the freshman market, provide ad rev- would confuse students on information they “But [orientation issues] are important enues, which become a substantial portion because it’s by students for students,” Man- would receive from orientation leaders. of newspaper’s budgets. But free press advocates argue that these chir said. “They’re about what we know Wiedeman said The Heights lost advertis- about campus and its traditions.” freshman guides should not be treated dif- ing revenue, which he said was more than ferently from regular issues. what the newspaper gets for regular issues, Working together “To change the rules from a student per- when administrators removed the guides spective on what incoming students need is from news stands. While the goals of a student newspaper not only unwise but it also sends a troubling “Advertisers want to get their teeth into and administrators often differ for orienta- message to the whole campus,” said Paul freshmen early, so we did have a fair amount tion programs, some have found ways to McMasters, an ombudsman for the Free- of revenue that would have been generated,” come together as part of producing freshman dom Forum. Wiedeman said. “We decided to not charge guides. Melanie Payne, associate director of Greg Lukianoff, president of the advoca- the advertisers in the end because we did not orientation programs at Indiana University, cy group Foundation for Individual Rights feel it was fair.” said she and staff members of The Orienter in Education, said that the act of removing At The Daily Nebraskan, ad revenues have a “nice relationship” and collaborate on orientation issues is not any different from for orientation issue make up about 38 per- the guide. other types of censorship he has seen. cent of the newspaper’s summer sales. The “I don’t necessarily assume input on the “It’s rationalizing censoring a newspaper 60-page freshmen guides at Northwestern articles, but I have, in the past, suggested because they think about the opportunity of University’s The Daily Northwestern carry topics and issues that would be of interest or future sources of giving, including parents,” about 70 percent ads and include in-depth important for new students,” Payne said. Lukianoff said. “It’s a chance to raise funds features. Likewise at Boston College, Marchese and [removing issues] is not seen as some- “We’re trying to give them useful infor- said his relationship with the newspaper has thing negative.” mation that they might have to learn through always been harmonious, until the incident But Marchese said the question lies in trial and error,” Ryan Wenzel, editor in chief in June. exactly what role student publications should of The Daily Northwestern, said. “It’s more “We sort of had this informal relation- play in orientation programs that have a spe- about experienced people on staff letting ship,” Marchese said. “They would do the cific, and perhaps different, mission. freshman know some of their secrets.” [orientation] issue, but we didn’t present “There are a lot of other avenues where Michelle Manchir, editor of last year’s the [orientation] edition as anything official, these other points of view can come in,” Orienter at Indiana, described the process more informational.”

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Simon said it might be useful for news- paper staff members to set clear guidelines What they said... with administrators to define what the pur- College administrators objected to the following passages in Boston pose of the orientation issue is. At Boston College’s and Fairfield University’s 2006 freshman orientation guides College, Wiedeman said he plans to meet “A welcome to the Heights, from The Heights” with administrators to discuss the role of “Call me a pessimist, but orientation is pretty miserable for most people — or at least it was for me. orientation issues in the future. Long speeches, small group chats, and weird, random roommates all distract you from the summer of “We’re currently working proactively fun you were having back home. But don’t fret if your OL is a bit overbearing and you’re wondering what in terms of next summer,” Wiedeman said. the hell you’re doing up here in Boston; I promise life at Boston College gets much, much better.” “How exactly does the university interpret our role in orientation and what role can we Tom Wiedeman, The Heights, Boston College play?” At Fairfield University, the academic “She said... what? Meg’s advice for lady frosh” council, the governing body of the univer- “Freshmen girls get to enjoy the upperclassmen’s unfounded notion that they will get to corrupt you. sity’s general faculty, created a committee to Thus, freshman girls can expect to have sweet nothing’s whispered in your ears while a strapping young investigate the censorship incident this past junior or senior gentleman escorts you to the keg. Full solo cups and heavy flirtation for one year is a summer. definite pro to being a freshman girl. So take advantage because when you come ackb as a sophomore “The academic council decided to get you might as well have crow’s feet and saggy grandma boobs to upperclassmen boys..” serious,” Simon said. “They’re going to take testimonies to figure out who knew what Meg Donlon, The Mirror, Fairfield University and when.” “He said... what? Dan’s pet peeves” Simon also said students need to be care- “Here, in 400 words, is my list of most annoying traits of the opposite sex … always thinking their butt is ful that the special editions are not weak- too big: Ladies, if the Tip Drill video has taught us anything, there is no such thing as a butt that’s too ened, because they can build the reputation big. I want too see badonkadonks so big they leave me fumbling through my wallet like Nelly searching of a newspaper. for credit cards to “swipe.” “I SAID IT MUST BE YO’ ASS ‘CUZ IT AIN’T YO’ FACE.” I agree with you, “Students shouldn’t put out a mush ori- Nelly. It must.” entation issue,” Simon said. “It’s the first thing [new students] are going to see, it Dan McClovey, The Mirror, Fairfield University sets the tone to how they’re going to see the newspaper.” n College papers around the country run editorial to support USC editor

y arnette ederis B M F Beecher, who was serving as the Daily Tro- picture goals” for the Daily Trojan. Some of Student newspapers around the coun- jan’s editorial director, was approved to take the changes he proposed included creating try published an editorial last month con- his place. another managing editor position for day- demning the University of Southern Cali- The editorial questioned whether the to-day production, which would allow the fornia for creating a “chilling effect” on university’s action was in retaliation for editor in chief to focus on long-term goals. college media by blocking the re-election changes proposed by Fox, including “prob- Fox’s application also said his proposals of USC Daily Trojan Editor in Chief Zach ing questions” into the newspaper’s budget would “keep editors sane, but also improve Fox. and a push for financial transparency. Fox the newspaper.” Eighteen college newspapers published also wanted to reorganize student editor He said his staff was supportive of his the same editorial on Dec. 5 in support of positions. ideas and he was eventually re-elected to Fox, who had been re-elected by the Daily During his tenure, Fox said he request- the position. Adviser Larry Pryor stated in Trojan’s staff but was not approved by the ed more information from the university a memo that the vote for Fox was 37 to 28, university’s media board. about the Daily Trojan’s finances. He said indicating a lack of unanimous support. “This was a very clear case where any he was repeatedly rejected but continued to The university’s media board still had of us, as a journalists, felt our journalistic advocate for financial transparency. to approve Fox’s re-election. The board, integrity would have been compromised, “As a journalist, I’m always pushing to which consists of students, faculty and ad- if the same thing happened in our school,” get things revealed to people,” Fox said. “I ministrators, approves policy affecting the said Harvard Crimson Co-Editorial Chair think an editor can only effectively lead the Daily Trojan. Michael Broukhim, one of the editorial’s paper if he knows where the resources are But Fox’s application never reached the writer. and where to allocate them.” group. Michael L. Jackson, the university’s Fox resigned from his fall position in Fox also said he saw a need for the edi- protest of the board’s decision and Jeremy tor in chief to focus on what he calls “bigger See USC editorial, Page 28

Winter 2006-07 www.splc.org • splc report 23 COLLEGE CENSORSHIP Ineffective protections A recent court decision has rendered California’s private college free-expression law useless, advocates say

By Marnette Federis censorship in court. “I think that this inter- irst Amendment advocates say a re- pretation of the Leonard Law cent California Supreme Court de- creates a huge loophole in F cision not to hear an appeal from a the statute allowing colleges former Occidental College radio host has to engage in behavior they left a gaping hole in California’s Leonard shouldn’t,” said Christopher Law, which affords freedom of expression Arledge, the lawyer who rep- protection to private college students. resented Antebi in the law- The case centered on former shock jock suit. Jason Antebi, who claimed the university One part of Antebi’s violated his rights under the California lawsuit, alleging defamation Education Code section 94367 (frequent- against a university official, ly referred to as the Leonard Law after its is still pending. The judges sponsor, former state Sen. Bill Leonard), a also rejected a request from statute designed to protect free expression the First Amendment Project, at private colleges. Similar California laws an advocacy group in Oak- provide protections to high school and pub- land, and the Student Press lic college students. A lower court’s ruling Law Center to de-publish the said that Antebi could not make the claim opinion from the lower court’s because the statute only applies to current ruling. A California Court of students. Antebi did not file his lawsuit Appeal’s ruling is legal prec- until after he graduated from the college, edent if it is published. almost a year after he was fired over com- on the student council and comments he Stuart Tochner, who represented Occi- made on his show angered some students ments made on his popular student radio dental College in the case, said he is pleased show. who eventually engaged in a recall effort with the California Supreme Court’s deci- against him. Court documents state that his Reaction in California has been mixed, sion, and is prepared to defend the defama- with some student editors and student me- opponents called Antebi a “racist,” that he tion claims against his clients. “sexually harassed women” and that he was dia advisers doubting that the decision will Meanwhile, Antebi said he will con- have much of an impact. But others say anti-Semitic. tinue to pursue his cause in the state legis- Antebi claimed he tried to report the they worry that the state supreme court’s lature, where wording of the Leonard Law refusal to review the case now renders the incidents to administrators, but was told could be changed to apply to both current he “would have to fight [his] own battles.” Leonard Law ineffective, and paves the way and former students. for administrators to censor. On March 11, 2004, Antebi used his radio “I was hoping throughout all of this show to mock and criticize his opponents. “The one law meant to protect students that Oxy wouldn’t have gotten away with at private campuses from being punished In the two weeks after Antebi made his what they did, but in the end I guess they comments, three students filed sexual ha- for speech is demolished and useless,” An- did,” Antebi said. “I would hate to see pri- tebi said. “It’s devastating for any student rassment complaints against him based on vate colleges in California to use the ruling the on-air remarks and he was fired. media, any student who has an opinion that in my case to stifle speech.” could be deemed offensive to the adminis- Maryanne Horowitz, Occidental Col- tration.” Antebi’s case lege’s Title IX officer, investigated the com- Antebi asked the state supreme court to plaint and found that the March 11 pro- review the previous ruling because he says it An Occidental College student from gram had violated the university’s policy allows administrators to censor students by 2000 to 2004, Antebi was active in the stu- against creating a hostile environment and simply kicking them out of school so they dent council and had his own show at the sexual harassment. Her report recommend- will not have legal grounds to challenge the student-run radio station. ed that Antebi apologize to the complain- Antebi said decisions he made in 2004 ants, to the college community and seek

24 splc report • www.splc.org Winter 2006-07 COLLEGE CENSORSHIP counseling. istrators] want to violate their free speech Antebi appealed the findings within the rights,” Lukianoff said. university. Rameen Talesh, associate dean of Lower courts said they interpreted the Leonard’s Law students, conducted a disciplinary confer- Leonard Law by its plain language, which ence with Antebi and ordered censure until states, “any students enrolled may com- California Education Code Sec- May 17, 2004. Antebi also appealed Talesh’s mence a civil action.” The courts also said tion 94367 is also known as the findings to the university president and the that the legislature could have extended the “Leonard Law.” college’s board of trustees, but only after the application of the statute to “any student deadline to do so passed. Antebi graduated enrolled or who was enrolled,” when the California is the only state that has from the university in the spring of 2004. law was created in 1992, but did not. enacted a law that prohibits pri- In his lawsuit filed in March 2005, But in the debates that led to the pas- vate colleges from making or en- forcing any rule that would subject Antebi claimed that his termination vio- sage of Leonard Law, clarifying who the law a student to disciplinary action for lated the Leonard Law. The law says pri- would apply to was never discussed, former engaging in expression that would vate schools may not punish a student for state Sen. Leonard said. He said that his in- normally be protected by the First expression that would be protected by the tent was to provide free speech protections Amendment or the California Con- First Amendment off-campus. to all students, even those that have gradu- stitution. Below is the text of the The lower court rejected Antebi’s ated. law, enacted in 1992. claims, saying that because he had already “It’s irrelevant whether or not they’re graduated from Occidental College when still a student, if they are wrongfully disci- (a) No private postsecondary educa- he filed the lawsuit, he could not sue the plined for free speech, then they have right tional institution shall make or enforce school because the law only applies to stu- to sue,” Leonard said. “It doesn’t even mat- any rule subjecting any student to dents “enrolled” in school despite the fact ter if [the student] drops out or has gradu- disciplinary sanctions solely on the that he had been a student when the pun- ated.” basis of conduct that is speech or ishment occurred. Leonard also said that the Antebi case is other communication that, when en- exactly the type of situation his law was cre- gaged in outside the campus or facility Antebi and the Leonard Law ated for. “It’s quiet clear he was disciplined of a private postsecondary institu- for something he said related to the campus In his petition for review to the Cali- tion, is protected from governmental and the campus disciplined him,” Leonard restriction by the First Amendment fornia state Supreme Court, Antebi claimed said. “That’s the situation the Leonard Law to the United States Constitution or that the lower court’s ruling eviscerates the was designed to cover.” Section 2 of Article 1 of the California protections offered by the Leonard Law. Constitution. Foundation for Individual Rights in Student media reaction Education President Greg Lukianoff said (b) Any student enrolled in a private the ruling will make way for administrative In the wake of the California state Su- postsecondary institution that has abuse of power. preme Court’s decision, some worry how made or enforced any rule in violation “The court’s interpretation of the law the Leonard Law’s interpretation will affect of subdivision (a) may commence actually creates incentives for private col- California private school student media. a civil action to obtain appropriate leges to kick students out when [admin- David Greene, executive director of the injunctive and declaratory relief as First Amendment Project, said determined by the court. Upon motion, he was especially disappointed a court may award attorney’s fees to with the court’s decision not a prevailing plaintiff in a civil action to de-publish the opinion pursuant to this section. from the lower court’s ruling. “It’s a shame,” Greene (c) This section does not apply to any said. “[If the opinion is pub- private postsecondary educational lished], it’s a powerful thing institution that is controlled by a reli- and has life of its own beyond gious organization, to the extent that the case.” the application of this section would But opponents of the not be consistent with the religious lawsuit dispute that the court tenets of the organization. of appeal’s previous ruling (d) Nothing in this section shall be con- will have the impact An- strued to authorize any prior restraint Jason Antebi (foreground) began his lawsuit against Occiden- tebi is claiming. Nothing has of student speech. tal more than two years ago and is now lobbying the California changed, they say. Calif. Educ. Code Section 94367 legislature to change what he describes as a gaping hole in “As it stands, a party needs the private school Leonard Law. PHOTO COURTESY OF JASON ANTEBI to be an existing student in or-

Winter 2006-07 www.splc.org • splc report 25 COLLEGE CENSORSHIP der to file as a plaintiff and allege a violation of the Leonard Law,” Tochner said. “That’s the way the legislature wrote the law.” History of the Leonard Law Some student editors and advisers in Pioneering law has stood for more than a decade California said they are also uncertain whether the case will dramatically lessen The California state Legislature passed from schools, who defended their codes and students’ rights — that administrators can the Leonard Law in 1992, the first statute of claimed that their policies did not restrict free now easily expel students they want to cen- its kind affording free speech protections to speech. sor. students enrolled in private colleges. “It’s the attitude of some private schools Michelle Carter, an adviser from Notre Leonard, a Republican from San Ber- that they have more control over free speech,” Dame de Namur University in Belmont, nardino, said he introduced the law after stu- Leonard said. Calif., said that expulsion at her school is dent groups approached him claiming that The bill was eventually approved through their schools were trying to restrict their rights support from both Democratic and Republi- not an easy process. to free speech through codes and policies. can speech advocates, Leonard said, and “Every school I’m aware of has in place “Schools are not arbiters of proper lan- was signed by former Gov. Pete Wilson. procedures for appealing an expulsion,” guage,” Leonard said. “We found that schools Leonard, no longer a state senator, is Carter said. “I would expect that during the were trying to do just that.” now a member of the California State Board appeal process, the real reason for the expul- Leonard said the bill faced opposition of Equalization. n sion would be discovered and the expulsion would be overturned.” Airan Scruby, news editor for Pepper- decision is a legal precedent that will haunt should raise concerns. dine University’s student newspaper The student organizations around California.” “Anything that waters down or is per- Graphic, said that while the Leonard Law is Natalie Zanzucchi, editor in chief of ceived as a loophole [in the law] is detri- important, he does not think Antebi’s case University of San Diego’s student newspa- mental to the freedom of the student press,” will affect him. per, The Vista, called diminishing the rights Nelson said. “The case strikes less of a chord for me,” of student publications in private schools The California Supreme Court’s deci- Scruby said. “My concerns about Leonard “frightening.” She also said she disagrees sion has not dampened Antebi’s spirits, Law focus on whether I will be protected that the Leonard Law should only apply to though, and he said he hopes to convince …. while I am a student and able to publish enrolled students. the state legislature to change the wording in the newspaper, not whether I will be able “[Antebi] was a student at the time the of the Leonard Law. to sue when I have graduated.” university fired him, the application of the He said he is optimistic about lobbying But Lukianoff warned against the think- Leonard Law should be when the incident state legislators to take up the issue. ing that Antebi’s case would not set a prec- happened,” Zanzucchi said. “There is little doubt we will pursue this edent or that it would not impact student Tom Nelson, Loyola Marymount Uni- in the state legislature,” Antebi said. “The media groups around the state. versity’s director of student media, stressed trend in California has been on the side of “Fundamentally, that decision is prec- the importance of the Leonard Law and free speech and we look forward to working edent for everyone” Lukianoff said. “This said that anything that weakens the statute with anyone who is willing to help us.” n COLLEGE Censorship in brief

NEWSPAPER THEFT Ashley Sorrell, editor in chief of The only took 15 copies and recycled them. Trail Blazer, and Joan Atkins, her ad- In April 2006, Andrews held a viser, initially asked for criminal charges meeting with Department of Commu- Morehead State against students Danielle Brown, An- nication and Theatre Chairman Bob editor, adviser drop drea Sharp and Jennie Williams. Willenbrink and Atkins to negotiate a Each was charged with third degree resolution for the charges, but did not case against alleged criminal mischief, but those charges were allow Sorrell to attend, she said. newspaper thieves later dropped once university President Sorrell said she remains frustrated Wayne Andrews found out that one of for “backing down” after the students KENTUCKY — An editor and ad- the students had hired a lawyer. put her through “a month of hell.” viser at Morehead State University have Sorrell said she was instructed to The other two students were re- complied with the university president’s withdraw her complaint because uni- quired to write a letter of apology and request to drop a criminal complaint versity officials “just didn’t want to deal pay the newspaper $300. against three students who allegedly with a lawsuit.” Sorrell said she has not yet received stole approximately 7,000 copies of the Sharp contended that she did not the letters or payment, but is “focusing student newspaper in October 2005. commit newspaper theft because she on other things.” n

26 splc report • www.splc.org Winter 2006-07 COLLEGE CENSORSHIP IN BRIEF

student publications board are awaiting the administration. Johns Hopkins a response from the Texas Board of Re- But Judah said the university should initiates new gents as to whether the Daily Texan will have allowed staff members to correct remain what many believe is the only the mistake themselves. distribution policy major daily college student newspaper He said 3,000 copies of the paper that is subject to prior review of its were later reprinted with a new headline after recent theft content by an adviser. along with a formal correction. MARYLAND — New policies created The board of regents had proposed Thompson said Gargoyle staff mem- by Johns Hopkins University regarding in the fall a re-declaration of trust with bers will be taking a look at their system where student publications can be dis- the student newspaper that not only kept in order to prevent similar mistakes. n tributed are raising concern among some prior review in place, but also would students and advocates following an in- have expanded it to all student media on FAU president sends cident where newspapers were removed campus, including radio and television. from residence halls last spring. Daily Texan Editor in Chief J.J. scathing letter to Copies of the conservative campus Hermes said he was surprised at the newspaper The Carrollton Record were board of regents’ changes, but the Texas student government found missing from distribution spots Student Publications Board submitted a FLORIDA — Florida Atlantic Universi- in 2005 after a story criticizing another revised version of the board of regents’ ty President Frank Brogan sent a scathing student organization was published. agreement eliminating prior review and letter to student leaders in October after Administrators said they removed allowing TSP board members to take on the Student Government Association at about 300 issues from residence halls be- the role of advising the newspaper. the Boca Raton campus attempted to cause the residential life department did TSP Director Kathy Lawrence said shut down OWL Radio, the student-run not properly approve the paper. Another she thinks members of the board of re- station. 700 copies went missing at other spots gents are currently conducting informal Brogan wrote in his letter that the on campus and are still unaccounted meetings that pertain to changes in the student government had been acting in for. agreement, but she said she does not ex- a “selfish, immature and potentially un- Last summer, administrators created pect anything to formulate until a for- ethical manner.” new guidelines for distributing campus mal meeting at the beginning of Febru- OWL Radio workers were asked to publications. ary 2007. n turn in their keys because student lead- Until the new policy, publications ers said no one was being held account- can only be distributed in pre-designat- Faulty headline able for the station’s equipment. ed areas, including the library, academic But students and administrators halls and residential dining facilities. causes president to have called the act an attempt to shut But Greg Lukianoff, president of the pull college paper down the station because of an ongoing advocacy group Foundation for Individ- feud between the two entities. ual Rights in Education, said restricting FLORIDA — Editors of the Gargoyle, Current Productions Director Josh the distribution of publications to cer- Flagler College’s student newspaper, Wetherington, a volunteer radio station tain areas on campus is just another way are calling university President William staff member, said that students have of limiting the rights of student press. Abare’s actions inappropriate when he been forced to volunteer status because Jered Ede,, the editor in chief of The pulled copies of the paper from racks in the student government cut the budget Carrollton Record, said the newspaper September because of a faulty headline. from a total of about $80,000 last year will comply with the new regulations, According to Brian Thompson, di- to $20,000 this year. but will pay close attention to how the rector of public information for the Wetherington said the cuts elimi- policy is implemented. university and adviser to the newspaper, nated three main positions. He also he is looking at legal options Abare made the decision to pull the is- There also is currently no station to address the additional 700 copies of sues the night the paper published. manager or permanent adviser for the the newspaper that are still unaccounted By morning, the empty racks caused station. for. n some to suspect censorship, he said. Student workers at the station said But Thompson said the only rea- administrators instructed them to keep board son Abare ordered the papers removed their keys and to continue running the Daily Texan was because the headline read “Campus station. looks to end prior Growth Forces Tuition Hike.” A petition is being circulated asking review policy Gargoyle Co-Editor Glenn Judah ad- the student government to fully restore mitted that the original headline was a the station’s funding. n TEXAS — University of Texas at Austin mistake because it indicated an increase student journalists and the university’s in tuition had already been approved by See College briefs, Page 28

Winter 2006-07 www.splc.org • splc report 27 COLLEGE Censorship

From USC editorial, Page 23 more goals,” Fox said. vice president of student affairs and chair of USC journalism professor Bryce Nelson, Banding together the board, refused to pass on Fox’s applica- who is also a member of the media board, tion to the media board stating that Fox’s said he disagreed with how the university Among the student newspapers that goals were “irreconcilable with the media went against the votes of the student staff. collaborated on and ran the editorial board’s outline for the role,” according to the “I think students should be the people to regarding editor selection at the Dec. 5 editorial. pick their editor,” Nelson said. “The admin- University of Southern California were: James Grant, a spokesperson for the uni- istration should be careful in overruling the The Brown Daily Herald versity, said that Jackson deemed Fox’s pro- wishes of the newspaper staff.” The Cavalier Daily (U. Virginia) posals “inappropriate” because they had not Grant also said the university has taken The Cornell Daily Sun been properly discussed. Fox’s proposals seriously. The Student News- The Daily Californian (California-Berkley) “No one else has ever applied for the paper Task Force, created to analyze some The Daily Evergreen (Washington State) job and then wanted to drastically change of Fox’s proposed goals, recently published The Daily Illini (U. Illinois) it,” Grant said. “It has never come up and a report recommending that the editor in The Daily Orange (Syracuse U.) it was determined that it was not the wisest chief and other senior editors have more in- The Daily Pennsylvanian approach.” put on the Daily Trojan’s annual operational The Daily Princetonian The Daily Reveille (Louisiana State U.) But Fox said his proposals were not so budget. The report also stated that the there The Daily Sundial radical that it warranted the rejection of his is a need for its leadership to “re-examine the The Daily Texan (U. Texas) application. He also said he has not been roles” of the editorial staff in order to update job descriptions as necessary. The Daily Trojan (Southern California) informed about what part of the position’s The Harvard Crimson Fox said he hopes that the recommenda- current job description would not have been The Michigan Daily tions will be approved and implemented. fulfilled with the proposed changes. The Oregon Daily Emerald “I knew what the job entailed, knew In a statement, Jackson said he would The Stanford Daily what it took to run the paper, and I thought consider the task force’s recommendation The Yale Daily News we would be able to do that while achieving and make a decision in January. n COLLEGE Censorship in brief

From College briefs, Page 27 made a unanimous decision to cancel Four Daily Bruin student reporters were coverage of any homecoming activi- at the scene, interviewing people and tak- Grambling journalists ties the student union board sponsored. ing notes Assistant News Editor Anthony denied passes to Smith said the denial of passes was in re- Pesce said. taliation for a “mid-term report card” the Pesce said Los Angeles officers wear- homecoming events Gramblinite published, which criticized ing riot gear formed a line and began to the school’s student union board and the LOUISIANA move through the street in order to clear — The Gramblinite, Gram- Student Government Association. n bling State University’s student newspa- the area Pesce said he and the other re- per, cancelled its coverage of the school’s porters held out their press passes and homecoming week after members said UCLA student shouted that they were reporters. The student leaders and administrators de- reporters allegedly police ignored their shouts and they were nied them access to events. hit with batons and shoved, he said. Each year, The Gramblinite publishes struck by police The student reporters eventually an issue highlighting activities through- CALIFORNIA — Although they said moved to another street where another out homecoming week, and usually re- police line formed. Pesce said they again ceives at least six passes for its staff mem- they clearly identified themselves as members of the media, student reporters identified themselves as members of the bers to use, Editor in Chief Darryl Smith press and one reporter held out a press said. This year, staff members were only from the University of California at Los pass. They were again ignored and one given one pass, which they assumed could Angeles’ Daily Bruin said they were hit officer told a reporter that the pass did be used by at least two people. But when with batons by city police officers who staff members tried to cover a concert, were trying to clear a small riot near cam- not “mean shit,” Pesce said. they were told only one person could use pus on Dec. 3. Sgt. Lee Sands, a spokesperson for the pass. At another event, staff members Editors say an all-night celebration of the Los Angeles Police Department, said were again told two people could not use the UCLA football team’s Dec. 2 victory any complaints filed are taken “very se- one pass. over the University of Southern Califor- riously” and will be investigated. Sands Smith, calling the incident “censor- nia got out of hand as a crowd burned also said the department recognizes “any ship,” said Gramblinite staff members couches and newspapers in the streets. legitimate media.” n

28 splc report • www.splc.org Winter 2006-07 HIGH SCHOOL Censorship Lawsuits explore religion, freedom of expression Administrators often afraid of religious speech, advocates say

Shafer, also one of the lawyers in that By April Hale case, said the student had the right to sing Several recent court cases involving re- the gospel song during a school talent show ligious speech in public schools show that because the school also created a “limited school administrators are overly sensitive public forum.” to religious speech and do not have proper School administrators also said they did knowledge of the law, advocates say. not allow the student to sing the song to In September, a federal court ruled the avoid violation of the establishment clause that Saginaw School District in Michigan of the U.S. Constitution, which requires the had violated the First Amendment rights separation of the church and state. of Hadley Elementary School student Joel The court did not agree, stating in the Curry when the school did not allow him order that “even if the school sponsored and to hand out an ornament with a religious promoted the talent show as an event, the message attached. school did not promote plaintiff’s — or any Curry, then a fifth-grade student, was other student’s — individual performance given an assignment to make a product to or speech.” sell during a school project, called “Class- The required separation of church and room City,” which was intended to teach state is a defense often mistakenly used by students civics through marketing, litera- schools in freedom of religion cases, Shafer ture and government. said. With the help of his parents Curry made “It is a worn-out, misused and ambigu- a candy cane-like ornament and attached a ous phrase,” Shafer said. “Censorship of a note explaining the religious meaning of “Student religious speech is protected student’s religious speech is an issue of ei- the candy cane. Part of the note read, “The to the same extent as any other kind of ther ignorance of the law or intentional sup- stripes: remind us of Jesus’ suffering — his speech,” said Shafer, also a lawyer for the Al- pression of speech that the school officials crown of thorns, the wounds in his hands liance Defense Fund, an Arizona group that oppose.” and feet; and the cross on which he died.” advocates for religious freedom. “A school’s Haynes also said school administrators School administrators said the product restriction on religious expression is not need to educate themselves on the estab- was unacceptable because the attached mes- only unlawful, but it is oppressive.” lishment clause and its appropriate applica- sage referred to Jesus and that Classroom Shafer also said censorship of religious tion. City was considered “instructional time.” speech is often a “product of ignorance.” John Whitehead, president of the Ruth- Charles Haynes, a senior scholar at the The judge also granted qualified im- erford Institute, a Virginia-based non-profit First Amendment Center, said the law al- munity to Hensinger, which would pre- civil liberties group, said all too often school lows students to share their religious views vent Curry from taking further legal action administrators are ignorant to the law and a in classroom assignments as long as it meets against her. student’s rights. the teacher’s criteria. In October, the Curry family decided to “The truth is teachers just don’t know Jeff Shafer, Curry’s lawyer, said Curry appeal the judge’s qualified immunity rul- the law and that may hinder a student’s free simply complied with the guidelines of the ing. speech,” Whitehead said. assignment and made a creative product. Shafer said the court made an “error in The Rutherford Institute is representing School Principal Irene Hensinger said its qualified immunity determination.” seventh-grade student Amber Mangum in a Curry could sell the ornament with the re- The Alliance Defense Fund also recently lawsuit against a Maryland School District ligious note outside in the parking lot after won a First Amendment case that involved after the school’s vice principal allegedly school, but not in Classroom City. Curry an elementary school student who was pro- threatened to suspend Mangum for reading chose not to sell the product outside. hibited by her school from singing the pop- her bible during the lunch hour. The judge said that Classroom City ular Christian song “Awesome God” during Mangum’s school, Dwight D. Eisen- was a school project, but it still resembled a a school-sponsored talent show. hower Middle School, has a policy that “limited public forum” for free speech, and School administrators said the song was states students may engage in activities that ruled that Curry was well within his right to “overtly religious” and of a “proselytizing “do not cause disruption” during “non-in- sell a religious product. nature.” structional” time, which includes the lunch

Winter 2006-07 www.splc.org • splc report 29 HCighonfi Sdchoolentialit Censorshipy in brief hour. “Public school officials have the duty of church and state should not appear in the The policy says that “students may read to ensure that a secular education is met,” classroom unless a teacher is advocating cer- their Bibles or other scriptures, say grace be- Leaming said. “They have to be cognizant tain religious views or telling the students fore meals, and pray before tests to the same of the curriculum and make sure not to ad- that they are all “going to hell.” extent they may engage in comparable, non- vocate one religion over another.” If a student initiates religious dialogue, disruptive activities.” But Whitehead said the is- then it is entitled to First Amendment pro- But student-initiated religious speech sue of the separation tection, Whitehead said. is generally not problematic, said Lisa So- “Free speech is a citizen speaking on ronen, staff attorney for the National School matters of private concerns with no back- Boards Association, adding that it is a “mat- ing from the government,” Whitehead said. ter of separation of church and state.” “If the government or school administrators When school officials themselves ex- are involved then the establishment clause press religious viewpoints, or coerce it comes into play.” from students, is when the conflicts arise. Whitehead said he believes a school’s re- Jeremy Leaming, spokesperson for the striction on religious speech is a hamper to Americans United for Separation of Church a student’s preparation for participation in and State organization, said that student- American society. volunteered religious speech in public “You can’t have diversity and freedom schools is protect by the First Amendment in the classroom if everybody is saying the but that right is not absolute. same thing,” Whitehead said. n

High School Censorship in brief

IN THE COURTS favor of the school. Frederick appealed ment between high school student jour- to the Ninth U.S. Circuit Court of Ap- nalists and school administrators paved peals, where the previous decision was the way for a new policy that requires the U.S. Supreme Court reversed, stating the expression was not school to exhaust all possible options be- will hear ‘Bong Hits 4 made in a sexual context and that it was fore censoring student publications. not expressed at a school-sponsored event, In August 2005, student journal- Jesus’ case in spring therefore both Fraser and the 1988 deci- ists at The Kernal, East Bakersfield High WASHINGTON, D.C. — The U.S. sion Hazelwood School District v. Kuhl- School’s student newspaper, had planned Supreme Court will hear a freedom of meier did not apply. to publish a series of articles that included expression case Frederick v. Morse in its The appeals court ruled that the interviews with several students about February sitting. school could not censor Frederick because the treatment of gay and transgendered Joseph Frederick, then a senior at the banner did not cause significant dis- students in school, as well as an inter- Juneau-Douglas High School in Alaska, ruption to the educational environment view with a student and local pastor who held up a “Bong Hits 4 Jesus” sign during as the standard established in the land- thought homosexuality is wrong. But the 2002 Olympic torch relay that passed mark 1969 U.S. Supreme Court decision school officials prohibited students from in front of his high school campus. Tinker v. Des Moines Community School publishing the stories because they said Principal Deborah Morse ordered District requires. they were concerned for the safety of the Frederick to take down the sign. When Former Whitewater special pros- students named. ecutor Kenneth Starr is representing the The students collaborated with the he refused, she grabbed it away from him n and suspended him for five days. Freder- school district for free. American Civil Liberties Union of South- ick said he then quoted Thomas Jefferson Case: Frederick v. Morse, 439 F.3d ern California and other groups to file a in protest, and Morse added five more 1114 (9th Cir. 2006), cert. granted, NO. lawsuit against the school administrators days to his suspension. 06-278, 75 USLW 3290, 75 USLW 3293 claiming the censorship was unjustified. The school argued that the sign en- (U.S. Dec. 1, 2006). One of the subjects of the story was dorsed illegal drug use, which is against also a plaintiff in the lawsuit. school policy. The school also said the Settlement reached in The students andKernal adviser Ran- banner was offensive. Frederick sued the dy Hamm said they were caught off guard school district in 2002. East Bakersfield High when the principal censored the article Basing its ruling on the 1986 U.S. censorship case and wanted to stand up for their rights by Supreme Court case Bethel School District filing the lawsuit. v. Fraser, a federal district court ruled in CALIFORNIA — A November settle- “I hope this new policy will make a

30 splc report • www.splc.org Winter 2006-07 High LSibelchool & P Criensorshipvacy in brief in brief

difference for student journalists all over bumped off-air by a commercial station tion of the test while only 16 percent of the state,” Hamm said. n after a settlement was reached in Novem- the black students passed. Case: Paramo v. Kern County High ber. The students received the informa- Sch. Dist., No. S-1500-CV-255519 (Su- KMIH, Mercer Island High School’s tion, which is public record, from the per. Ct. Calif. dismissed Nov. 16, 2006). student-run radio station, will change school. its frequency and a commercial station The administration initially offered will move into its old spot on the radio to pay the cost of a reprint, but newspa- Former student sues dial as well as pay for several years of le- per adviser Joseph Humphrey said the school for prohibiting gal proceedings totaling approximately staff’s first concern was getting the paper $100,000, the settlement says. published and distributed on time. Confederate apparel Although KMIH will remain on air, Humphrey said the staff is handling MISSOURI — A former Farmington the station will relocate from 104.5 FM the situation well while “trying to move n High School student is suing the school to 88.9 FM and KMCQ, the contesting on.” district claiming that officials violated his contemporary adult commercial radio First Amendment rights when he was not station, will move to the area and broad- allowed to wear clothing with Confeder- cast at 104.5 FM, ending five years of ate symbols. dispute and litigation. According to the lawsuit, Bryce Ar- The Federal Communications Com- chambo arrived at the high school Sept. mission ruled in 2004 that KMCQ could 27 wearing a baseball cap with an emblem move into the area, and that KMIH, of the Confederate States of America that “would be required to suspend operation” the school described as the “rebel flag.” if its broadcast interfered with KMCQ’s. Archambo, who again wore a t-shirt KMIH Attorney Howard Barr said and belt-buckle with Confederate em- the station privately negotiated with the blems the next day and was disciplined by FCC to relocate to 88.9 FM. Barr said officials, was permanently removed from three other area radio stations that broad- the school by his mother after the suspen- cast at 88.9 FM granted KMIH’s reloca- sion, the lawsuit says. tion because there was minimal potential The complaint, filed in federal district interference. court, calls the actions of the school offi- Barr and KMCQ Attorney Dominic cials “unconstitutional,” “overbroad” and Monahan said the settlement was favor- n High school paper discriminatory.” The lawsuit also states able for all parties. that the wearing of clothing with the pulled for content Confederate flag is a form of protected Florida high school speech under the First Amendment. school administrator Tom Mickes, who represents the newspapers passed deemed controversial school district, said that the school’s ac- out with a hole tions were taken in order to ensure an CALIFORNIA — Two issues of a high educational environment free from “in- FLORIDA — Hillsborough High school student newspaper that allegedly timidation.” Mickes also said the school School students stayed after school in included problematic editorials were con- never suspended Archambo but merely October and physically cut out an article fiscated by a school administrator two told him to turn his shirt inside out. n from every issue of the student newspa- weeks in a row. Case: Archambo v. Farmington R-7 per before distribution at the request of While Carson High School adminis- Sch. Dist., No. 06-01691 (E.D. Mo. filed the principal. trators said they considered remarks made Nov. 21, 2006). William Orr said he objected to an in the articles offensive and inappropriate, article written in the Red & Black student California law does not allow administra- MISCELLANEOUS BRIEFS newspaper about an achievement gap in tors to limit student expression because it state test scores between white and mi- is deemed offensive. nority students at his school. The Nov. 21 editorial in the Trail- Settlement moves The article, which Orr was quoted blazer, the monthly student newspaper, high school station to in, showed the significant difference be- titled “Looks like the circus is in town,” tween white and black students’ reading described the unnamed author’s frustra- lower frequency scores in Florida’s Comprehensive Assess- tions with the apparent chaos at a local ment Test. Taco Bell restaurant. The author said the WASHINGTON — A high school radio The article reported that 69 percent crowd in the restaurant was predomi- station is no longer in danger of being of white students passed the reading por- See High School briefs, Page 37

Winter 2006-07 www.splc.org • splc report 31 LEGISLATION, LIBEL AND CONFIDENTIALITY IN BRIEF

LEGISLATION LIBEL CONFIDENTIALITY Washington state Judge dismisses Oklahoma State U. legislator, student former St. Cloud journalists not collaborate on dean’s libel suit required to sign student press bill MINNESOTA – A former dean who agreement sued a university student newspaper WASHINGTON – The legislative pro- after it published comments that impli- OKLAHOMA – Students and faculty cess has begun for a bill drafted by a cated him as being anti-Semitic and a involved in Oklahoma State Universi- Washington state legislator that would racist is deciding whether he will appeal ty’s student publications no longer have ensure free press protections for both a court’s October dismissal of his case. to sign a controversial confidentiality high school and college journalists in The court opinion said that although agreement the university proposed in one statute. the published comments were admit- August. The proposed bill ensures that “no tedly wrong, Richard D. Lewis, former The university distributed the agree- school officials nor the governing board dean of St. Cloud State University’s Col- ment and a list of students at The Daily of the school or school district” will in- lege of Social Sciences, is a public figure O’Collegian who were required to sign it terfere with students’ free speech and and could not prove actual malice, a li- before they could be paid. free press rights, and that student media bel standard for public figures. The confidentiality agreement pro- will not be subject to mandatory prior In the fall of 2003, following the hibited student and faculty employees review. settlement of a discrimination lawsuit from disclosing unspecified confidential Brian Schraum, a former student at involving Jewish faculty members, the information, determined by the univer- Green River Community College who university reassigned Lewis from his po- sity, about the stories they were cover- is now a student at Washington State sition as dean. The newspaper’s article ing. University, said he contacted state Rep. chronicling his troubles was published Employees were skeptical of the Dave Upthegrove (D-SeaTac) to talk Oct. 27, 2003, and Lewis sued the uni- broad and unspecified measures of about proposing a state-wide anti-cen- versity, claiming defamation. The article confidentiality and refused to sign the sorship law in light of the Seventh U.S. contained an interview with Robbi Hoy, documents. Circuit Court of Appeals’ decision in a former student involved in a previous Oklahoma State University Direc- Hosty v. Carter. dispute with Lewis, who said she over- Schraum, the former editor in chief tor of Communications Gary Shutt said heard Lewis making racial and deroga- the purpose of the original agreement of The Current, Green River Communi- tory comments. ty College’s student newspaper, said he was to protect sensitive student infor- After publication, Hoy told the mation, including grades and social se- wanted to protect the newspaper after Chronicle reporter that the remarks she curity numbers. the Hosty decision. heard came from another professor, not If the bill is made law, Washington Lewis. The newspaper published a re- Student journalists at the news- will become the seventh state with laws traction in November 2003, but Lewis paper said they viewed the agreement supporting a free student press. continued the libel lawsuit. as a breach of their First Amendment The proposed bill is unique from In March 2005, a state appeals rights. other states’ laws because it would pro- court dismissed Lewis’ claim against the Shutt said the university has since tect speech at both the high school and school. Lewis refiled his lawsuit against developed mandatory online confiden- college levels under one statute. the newspaper itself in September. tiality training sessions meant to teach The earliest date that the bill can Lewis had until the end of Decem- employees about handling confidential- be filed is Dec. 18, 2006 and state Rep. ber to decide to appeal. No decision had ity. Upthegrove will request a hearing for been made as of press time. n Shutt said the university was simply the bill when the legislative session re- Case: Lewis v. University Chroni- “trying to make our employees aware opens on Jan. 8, 2007, according to a cle, No. CX-05-5539 (Minn. Dist. Ct. that there is information that has to be spokesperson from his office. n Stearns Co. Oct. 24, 2006). kept confidential,” said. n

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32 splc report • www.splc.org Winter 2006-07 ADVISERS in brief

IN THE COURTS paper to be lacking. there was no forum for discussion and Former Collegian editors Sarah Rice that most editors were not involved with and Katie Lane filed a lawsuit claiming the communication going on between New Jersey adviser the university’s actions violated their Brenner and the university. Martin was back at work, plans First Amendment rights. Rice and John- the news editor during Brenner’s tenure, son, who both attended the hearing, said and has decided to work with the new to continue lawsuit they were impressed with the amount adviser. NEW JERSEY — Karen Bosley is back to of knowledge the judges had about the Brenner said he will continue his case. protest and is looking into his legal op- work as the adviser of the Ocean County n College Viking News after a federal judge A group of nine national student tions. granted a preliminary injunction in her and professional media and civil rights student’s pending lawsuit, and students groups led by The Student Press Law CMA censures say her return has been essential to the Center filed a friend-of-the-court brief in paper’s production. support of the students’ claim. Oklahoma Baptist U. Bosley was reinstated as the news- At the end of the hearing, Rice said after adviser con- paper’s adviser in August by the college’s presiding Judge Carlos Lucero made a board of trustees after a federal judge or- comment about the broad implications tract not renewed dered a preliminary injunction against the of the case and how its effects might go beyond student newspapers. OKLAHOMA — College Media Advis- college’s attempt to remove her from the ers, a national association of professionals position. Bosley and her students have Johnson said he was pleased that the judge brought up the larger consequenc- who advise college media organizations, two separate lawsuits pending. Bosley’s censured Oklahoma Baptist University lawsuit alleges her removal was a result es of the case. A decision is not expected for another five to six months.n after it did not renew the student news- of age discrimination and retaliation for paper adviser’s contract because of his articles that appeared in the paper critical Case: Lane v. Simon, No. 05-3266 (10th Cir. filed July 8, 2006), appeal- objections to prior review. of the college’s administration. CMA began its investigation after The battle between the students and ing from No. 04-4079-JAR, 2005 WL 1366521 (D. Kan. June 2, 2005). the university decided not to renew Phil- the college’s administration began last ip Todd’s contract in the spring of 2005. year when three editors from the paper Todd had worked with the student news- filed a lawsuit claiming several actions Le Moyne student paper, The Bison, for four years starting in taken by the college administration, in- paper resumes 2000. A year after his hiring, the college cluding Bosley’s removal were a form of president began asking Todd to edit ev- censorship and unconstitutional. publication with new ery issue of the newspaper, the associa- Bosley, who has been the Viking tion said. According to CMA President News’ adviser for 35 years and is a former student staff, adviser Lance Speere, the group found that Todd member of the Student Press Law Center NEW YORK — Le Moyne College’s stu- was hired for the job with the under- Board of Directors, has said she will con- dent newspaper, The Dolphin, resumed standing that the position did not entail tinue her lawsuit. n publication with a new adviser and new prior review. Case: Bosley v. Larson, 06-02747 (D. staff members 10 months after its former In its censure, CMA also said that the N.J. filed June 19, 2006). staff voted to halt publication. university’s student handbook and The Andrew Brenner, the paper’s former Bison’s policy manual ensured students’ Court hears oral editor in chief, says the change in staff- freedom to make content decisions. ing and a new adviser was the university’s CMA’s investigation found that admin- arguments in Kansas way of removing students who have op- istrators tried to change Todd’s job de- State adviser case posed the administration and its refusal scription to require prior review but were to renew former adviser Alan Fischler’s rejected by the dean and the publications COLORADO — The 10th U.S. Circuit contract. committee. n Court of Appeals heard oral arguments Staff members have been in protest Nov. 13 in its review of a lower court’s since Fischler left his position last year. Got a story tip? ruling that upheld the 2004 dismissal of While the university has said that Fis- a Kansas State University student news- chler’s contract was not renewed because paper adviser. of the quality of the newspaper, Brenner Former adviser Ron Johnson was said that the university was actually un- Fill out our reassigned from his position as adviser happy that certain articles critical of the feedback form at in 2004 after the university conducted administration were published. a content analysis of The Collegian and Olivia Martin, the new co-manag- www.splc.org found the “overall quality” of the news- ing editor, said that during the protest,

Winter 2006-07 www.splc.org • splc report 33 LEGAL ANALYSIS Naming Names Questions arise over student journalists’ decisions to publish names and photos of minors

ood high school journalists take seriously the obligation to that case, the Court struck down a West Virginia law that had been cover their peers in meaningful ways. As student publications used to prosecute two West Virginia newspapers that printed the struggle to provide both a voice for other students and serve name of a 14-year- old junior high school student alleged to have Gas a watchdog of student misbehavior, many reporters and editors are shot and killed a 15-year-old classmate. facing challenges when it comes to telling student stories that some Following the Daily Mail ruling, other courts have, for example, would rather not be told. A growing number of young journalists ruled that newspapers can publish the name of a minor charged with are being asked by school administrators to leave out of information unauthorized use of a motor vehicle and hit-and-run driving, the that identifies individual students. And many, questioning the name of a juvenile who was kidnapped and sexually assaulted, the wisdom and legality of these restrictions, have begun to ask why. name of a high school student viciously attacked by his classmates at school, the name and photograph of a 12-year-old who was charged What the courts say with the attempted murder of a police officer, the names of juveniles In a unanimous 1979 decision, the U.S. Supreme Court ruled in who testified in a trial in which the adult defendants were charged Smith v. Daily Mail that the First Amendment protects the right of with supplying alcohol to minors, the photograph of a minor child journalists to use the names of minors in newsworthy stories as long taken while in the arms of her mother on the courthouse steps as the information is “lawfully obtained” and following a much-publicized paternity “truthfully” reported. In hearing and the name and course of mental health treatment of an individual

34 splc report • www.splc.org Winter 2006-07 LEGAL ANALYSIS convicted of sexual assault when he was 14, but who was no longer cases they have even required parents to sign consent forms before a minor at the time of publication. their child’s name or photo can be published in student-edited Even where a court proceeding or government record can be media. In rare instances they have simply banned the use of student lawfully closed by government officials, courts have generally said names or photos entirely. Often, they justify their censorship that the government may not restrict the press from publishing or restrictions by pointing to a federal law known as the Family newsworthy information from such records or proceedings Educational Rights and Privacy Act (FERPA), also sometimes called — including minor names — when such information has been the Buckley Amendment. While their intentions in such cases is lawfully obtained through other means. However, where a reporter usually not sinister, their interpretation of the law is misguided. voluntarily makes an agreement ahead of time that allows them to FERPA was enacted in 1974 after Congress found that some obtain access to information that would otherwise be off-limits, that school officials were mishandling student records. The law has two agreement must generally be honored. parts. First, the law requires that students and parents be given For example, in most states juvenile court proceedings and access to the students’ own school records. Second — and this is records can be closed to the public. Some states also allow judges the provision that causes most of the confusion — FERPA penalizes to close down the portions of adult trials that require juvenile schools that indiscriminately release certain student “education testimony or evidence. In such cases, the decision of whether to records” to third parties. allow access is often left to the discretion of a judge. Where the policies directed at student media miss the mark As a result, judges have occasionally placed conditions on is that FERPA only restricts the release of information by school reporters’ access to otherwise closed juvenile proceedings by allowing officials or those acting for them. Outside parties — including reporters in — but only after they have promised not to disclose student reporters, who are neither state actors, employees nor agents certain information about minor participants that might be revealed of the school — are not restricted by the law. Unfortunately, school during the proceeding. Such conditions are probably valid. But even in such cases, the power of judges to restrict press coverage is limited. For example, a California appellate court struck down an order that prohibited reporters admitted to a juvenile custody proceeding from revealing virtually any information about the minors involved, including a ban on interviewing the minors without an attorney present, interviewing their caretakers with the minors present, interviewing any mental health professional to whom the minors had been referred or “doing any act in the future that might interfere with reunification or have a negative impact upon the providing of reunification services.” While the media could have been denied access to the proceeding altogether, the appeals court said, it was beyond the juvenile court’s power to restrict the press’ right to investigate and publish information it had lawfully obtained outside of the courtroom. Despite the Supreme Court’s clear ruling in Daily Mail and the lower court cases that have followed, the misconception that juvenile names are strictly “off-limits” persists. Student journalists continue to battle — and educate — school officials over their right to publish student names or other identifying information as part of their regular news coverage. This seems to be particularly true when students seek to publish “student information” (information about student grades, discipline, etc.) or when they publish online. Of course, the same invasion of privacy rules that limit the publication of identifying information about adults in certain situations apply to information about minors as well. But these limitations are based on restrictions that apply to all, not just minors. Student Information and FERPA Many school officials — predominately at the high school level — have become particularly squeamish about allowing student journalists to publish information about their classmates. In some

Winter 2006-07 www.splc.org • splc report 35 LEGAL ANALYSIS and government officials sometimes do sites went online in the mid-1990’s, not understand — or simply choose to school officials began imposing ignore — this distinction. special restrictions on their use by While it is entirely appropriate, for student journalists. Among the more example, that school districts create a common restrictions were limitations, policy regarding a principal’s disclosure or outright bans, on the posting of of protected student information to student photos or names in the online a student reporter (or anyone else) version of student-edited publications. during an interview, it is wrong for the Such policies were often justified by school to impose the same limitations pointing to some unspecified privacy on student-edited media, prohibiting or safety concern, often accompanied them from disclosing to their readers by a blanket claim that the law accurate information lawfully required such restrictions. obtained by student journalists during In fact, there are no laws that the newsgathering process. Despite require school officials to prohibit the claims of some school officials, or restrict student journalists from any policy that imposed such a flat publishing the names or photos of ban on the publication of accurate, students in their online publications newsworthy and lawfully obtained when that information is lawfully information by student-edited obtained, accurate and newsworthy. media would almost certainly be Where information can be lawfully unconstitutional. published in the print version of For example, in the only published a publication, it can be lawfully court decision to address the issue, published online as well. And contrary a New York federal court refused to to all the dire warnings, there remains extend FERPA to cover the release of no hard evidence to suggest that online student information published in a student publications pose any more of high school student newspaper, ruling a danger to students than their print- “the prohibitions of the amendment cannot be deemed to extend to based counterparts. But no matter, a fear of the unknown has always information which is derived from a source independent of school accompanied the introduction of new technology and media and, records.” until the dust settles, such battles are regrettable, but probably Requiring student media to limit news coverage to “approved” inevitable. students destroys the student media’s reputation as a credible Besides merely being silly, though, such policies could source of news. It also creates a logistical nightmare, forcing staff have serious legal implications for the student media and school to consult an ever-changing master list of “approved” students who districts. Every libel law primer begins with essentially the same had consented to coverage before writing or publishing a story advice: publish only complete and accurate information. By about them or including their photo in the yearbook. Under such a requiring the publication of misleading or incomplete information, complicated scheme it is inevitable that students or school officials a strong argument can be made that the policies prohibiting the use will make mistakes. “Unapproved” names or photos will be published of full names or other identifiers like photos increase, not decrease, in some cases and “approved” students mistakenly omitted from the odds that student media — and possibly the school district that student publications such as the yearbook in others. Such mistakes created such a faulty system — will be subjected to libel or invasion could expose a school district to liability — or certainly accusations of privacy lawsuits because of misidentifications created from the of incompetence — that had previously not existed. confusion. Such polices — which have been criticized by various Student news organizations have published millions of journalism groups — also hurt an online publication’s reputation as individual publications — full of student names and photos a serious and credible news source. — without incident. In FERPA’s 30-plus years in force, no school has ever been fined under the law because of anything published The decision to publish or not publish in a student publication. It is unclear why school district lawyers Even though there should generally be no across-the-board and administrators now believe it necessary to enforce such policy legal barriers to student media publishing minor names — in changes. FERPA does not require it, the Constitution almost print or online — there are valid reasons for not doing so in some certainly prohibits it — and common sense suggests the system is circumstances. For example, many news organizations do not, as both fraught with problems and just plain stupid. a rule, publish the names of young people accused of less serious Online Publications crimes. Children, the thinking goes, should not be stigmatized for the rest of their lives for an error in judgment they made while From the moment the first high school student media Web growing up.

36 splc report • www.splc.org Winter 2006-07 LEGAL ANALYSIS

12. See SPLC Legal Brief: Invasion of Privacy Law , Available online at: http://www.splc.org/legalresearch. The Poynter Institute’s Al Tompkins, who has written widely on asp?id=29 (last viewed Dec. 5, 2006). media ethics, has created a useful list of questions and factors that 13. 20 U.S.C. Sec. 1232g. student journalists may want to consider when deciding whether 14. See, e.g., Owasso Independent School District No. I-011 v. Falvo, 122 S.Ct. 934, 939 (2002) (a student is not a person “acting for” educational institution for purposes of FERPA); Yeo v. Lexington, 131 F.3d 241 or not to identify juveniles, particularly those involved in criminal (1st Cir. 1997) (en banc), cert. denied, 524 U.S. 904 (1998)(student editors of high school yearbook were not “state actors” and their editorial acts must be judged apart from school administrators); McEvaddy v. activities. City University of New York, 633 N.Y.S.2d. 4 (1995). See also, Sevier County Bd. Of Educ. v. Worrell, Among them: (1) Who is served by identifying the juvenile? (2) 1994 WL 666926 (Tenn.App. 1994)(distinguishing between information about students obtained by reporter and student records maintained by the school and protected from disclosure by state’s version How newsworthy is the story? (3) What is the juvenile’s history? (4) of FERPA). The U.S. Department of Education, the agency charged with enforcing FERPA, has said: Would others be harmed if the minor was not named or if rumors “FERPA was not intended to apply to campus newspapers or records maintained by campus newspapers. Rather, FERPA applies to ‘education records’ maintained by an educational agency or institution, or by were allowed to circulate unchecked? a person acting for such agency or institution. Letter from LeRoy S. Rooker, Director, Family Policy The decision about when and how to identify young people Compliance Office, U.S. Department of Education (Sept. 1993). 15. For a thorough discussion of the Family Educational Rights and Privacy Act and its application – or misap- involved in news stories can sometimes be tough. In the end, plication – to student media, see “FERPA Fundamentalism,” Student Press Law Center Report, Spring 2001, at 35. http://www.splc.org/report_detail.asp?id=685&edition=18. For a discussion of public high however, the decision should be an editorial and ethical choice — school students’ First Amendment rights, see the SPLC’s Hazelwood Guide, available online at: http:// not one dictated by law. n www.splc.org/legalresearch.asp?id=4. For information about the rights of students attending private schools, see the SPLC’s Legal Guide for the Private School Press, available online at: http://www.splc. 1. Smith v. Daily Mail, 443 U.S. 97 (1979). See also Oklahoma Publishing Co. v. District Court, 430 U.S. 308 org/legalresearch.asp?id=52 (documents last viewed Dec. 5, 2006.) (1977)(Supreme Court lifted an injunction that prohibited publication of the name or photograph of an 16. Frasca v. Andrews, 463 F.Supp. 1043, 1050 (E.D.N.Y. 1979). 11-year-old boy charged with second-degree murder). A narrow variation to this general rule may exist in 17. See, e.g., Policy restricts newspaper’s online edition, Student Press Law Center Report, Fall 1998, at 20 cases involving the publication of the names of minors obtained during otherwise closed hearings. Where (http://www.splc.org/report_detail.asp?id=295&edition=10)(last viewed Dec. 4, 2006). reporters have agreed not to disclose information as precondition to attending such proceedings, they 18. There has been some question about whether a provision in the Children’s Internet Protection Act (CIPA), may be legally bound to honor their agreement (see discussion, below). 47 U.S.C. § 254, could be construed to prohibit school-sponsored online student publications from 2. Mikan v. Valley Publishing, 589 P.2d 1201 (Ore. App. 1979). publishing identifiable information about students. CIPA, a federal law that requires schools and libraries 3. Poteet v. Roswell Daily Record, 584 P.2d 1310 (N.M. 1978). receiving subsidized rates for Internet access to install filtering software on their computers, contains a 4. Tucker v. News Publishing Co., 397 S.E.2d 499 (Ga. Ct. App. 1990) provision that requires schools to adopt and implement an Internet safety policy that addresses unauthor- 5. Arkansas Democrat-Gazette v. Zimmerman, 20 S.W.3d 301 (Ark. 2000). ized disclosure, use and dissemination of personal identification information regarding minors. 47 U.S.C. 6. George W. Prescott Publ’g Co. v. Stoughton Div. of the Dist. Court, 701 N.E.2d 307 (Mass. 1998). Sec. 254(L)(1)(a)(4). Some school districts have interpreted this provision as prohibiting the publication 7. Heath v. Playboy Enterprises Inc., 732 F.Supp. 1145 (S.D. Fla. 1990) (men’s magazine’s publication of photo- of minors’ names or photos in student-edited publications that are hosted by school Web sites. In fact, graph of minor child — the grandson of former talk show host Johnny Carson — did not give rise to pri- the Federal Communications Commission has offered no guidance as to what constitutes personal iden- vate facts case brought by child’s court-appointed guardian despite lack of consent to photo by child). tification information. Instead, the FCC has concluded that “local authorities are best situated to choose 8. Register-Herald v. Canterbury, 449 S.E.2d 272 (W.Va. 1994). which … Internet safety policies will be most appropriate for their relevant communities.” Federal-State 9. See, e.g., In re H.N., 632 A.2d 537 (N.J. Super. Ct. App. Div. 1993) (New Jersey appellate court upheld Joint Board on Universal Service: Children’s Internet Protection Act, 47 CFR Sec. 54 (2001). This vague the right of a newspaper to publish the name and other identifying information about a 16-year-old directive — and the lack of a mandated definition regarding what constitutes “personal identification charged with scalding her two-month-old nephew to death while bathing him. The court noted that the information” — hardly supports the argument by some school school administrators that CIPA compels information was lawfully obtained from press conferences and other disclosures made by law enforce- them to prohibit the publication of students’ names or photos on school Web sites. Where school of- ment officials.) ficials remain unconvinced, however, students may want to explore alternatives to school-sponsored Web 10. Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. 1993) (Minnesota Supreme Court upheld lower court sites, such as the free Web site hosting services offered by the American Society of Newspaper Editors. order permitting media to attend closed trial only if they agreed not to reveal the names of the juvenile (http://my.highschooljournalism.org/intro.cfm)(last viewed Dec. 4, 2006) since CIPA does not apply to victims and witnesses); In re A Minor, 595 N.E.2d 1052 (Ill. 1992)(Illinois Supreme Court ruled that private Web hosting services. a reporter admitted to a juvenile proceeding after agreeing not to disclose names could not publish the 19. See, e.g., “School districts carefully weigh using online images,” Associated Press, April 29, 2001 (report- identities of two minor children, which he had learned during the course of the proceedings); In re ing that there have been “no known cases where child online pornography could be traced to a school Minor, 563 N.E.2d 1069, 1077 (Ill. App. 1990). See also, Edward A. Sherman Publ’g Co. v. Goldberg, Web site”). 443 A.2d 1252 (R.I. 1982). 20. See, e.g., Journalism Education Association and National Press Photographers Association policies. See 11. San Bernadino County Dep’t of Public Social Services v. Superior Court, 283 Cal.Rptr. 332 (Cal. Ct. App. http://www.splc.org/newsflash.asp?id=126&year=2000. (Last viewed Dec. 4, 2006). 1991). See also, In re A Minor, 595 N.E.2d 1052 (Ill. 1992)(information obtained by reporter outside of 21. Tompkins, A., “Identifying Juveniles,” The Poynter Institute (Feb. 29, 2000). Available online at: http://www. closed juvenile hearings not subject to non-publication agreement). poynter.org. Enter QuickLink number: A5555. (Last viewed Dec. 4, 2006).

High School Censorship in brief

From High School briefs, Page 31 High school principal school for purchasing a $700 television nantly black and referred to them as “a for the front office instead of spending pack of monkeys.” delays newspaper to the money on “better purposes.” The Los Angeles Times reported on Senior sports writer Eric Ritter said Dec. 2 that Principal Kenneth Keener ‘discuss articles’ the school should have spent the money postponed the issue that was due out on FLORIDA — A high school administra- on cleaning the bathrooms and school Nov. 27, which contained editorials ad- tor delayed the release of a student news- supplies. vocating for legalized marijuana, calling paper in October because he said several PawPrint adviser Joe Malley said that masturbation “America’s favorite forbid- articles required prior review and discus- situations like this make student jour- den pastime” and promoting sexual free- sion with student journalists. nalists “realize the limits of their First dom for teens. The Oct. 27 issue of Deltona High Amendment rights.” Keener said the editorials needed to School’s PawPrint was not released until Students are reminded they publish at be better written and include alternative early November because Principal Gary a school where prior review is the norm, viewpoints. Marks “wanted to meet with [student he said. Trailblazer Adviser Gregory Vieira journalists] and talk about concerns” he Marks said that students are only held and Editor in Chief Alex De Vera said had about the stories, he said. to their responsibility to “write articles they agreed with the school’s reaction to Marks flagged eight articles after he that are journalistically sound.” the first article, but told the Times they said he found “some issues” with them. Malley said he anticipates little change may “fight back” on the recent delay.n One of the articles criticized the in the prior review policy. n

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