Winter 2007-08 VOL

INSIDE: Editors at college papers find themselves in the eyes of very public storms, Page 4

Student Press Law Center EPORT R Winter 2007-08 VOL. XXIX, NO. 1

Two decades later January marks a generation since the Supreme Court curtailed the rights of high school journalists, Page 19

ALSO INSIDE: Federal shield law makes progress, but might not protect student reporters, Page 11 AND: Oklahoma State paper cuts off Web counterpart in dispute over editor’s authority, Page 30 Student Press Law Center EPORT Inside Winter 2007-08 VOL. XXIX, NO. 1 COLLEGE CENSORSHIP R Editors in Conn., Colo. face public outrage��4 PUBLICATIONS FELLOW: Michael Beder College censorship in brief��6 REPORTERS: Moriah Balingit, Maggie Beckwith, Casey Wooten Newspaper theft in brief��8 CONTRIBUTOR: Mike Hiestand COVER ART: Jack Dickason SENIOR CONTRIBUTING ARTIST: CONFIDENTIALITY Melissa Malisia ([email protected]) Officials search newsroom at W. Oregon��9 CONTRIBUTING ARTISTS: Hope Donovan (jetcake@gmail. com), Michelle Feng, Bob Gandy ([email protected]), danny Federal shield bill might not protect students �� 11 phantOM (www.myspace.com/nftp) HIGH SCHOOL CENSORSHIP The Student Press Law CenterReport (ISSN 0160-3825), Tackling race can be a tricky task �� 12 published three times each year by the Student Press Law Center, Jena Six coverage triggers censorship �� 15 summarizes current cases and controversies involving the rights of the student press. The SPLCReport is researched, written and Judge rules for students in modern Tinker �� 16 produced by journalism interns and SPLC staff. High school censorship in brief�� 17 The Student Press Law CenterReport , Vol. XXIX, No. 1, Winter 2007-08, is published by the Student Press Law Center Inc., 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209- COVER STORY: Twenty years of Hazelwood 2275, (703) 807-1904. Copyright © 2007 Student Press Law A decision’s aftermath, then and now �� 19 Center. All rights reserved. Yearly subscriptions to the SPLC Report are $15. Contributions are tax-deductible. A membership Calif. law kept ruling from taking hold�� 21 form appears on page 39. Principals turn down power to censor�� 26

CAMPUS CRIME Schools go high-tech to give ‘timely warning’ �� 28

LEGAL CONSULTANT/ INTERNET INTERIM EXECUTIVE DIRECTOR: Mike Hiestand �� 30 ATTORNEY ADVOCATE: Adam Goldstein Print, Web editions spar over EIC’s power OFFICE MANAGER: Sam Wilder, Sunjha Hattin Internet in brief�� 31

LEGAL ANALYSIS CORPORATE BOARD OF DIRECTORS SPLC Guide: Javier J. Aldape l Hoy, Los Angeles, Calif. Navigating Hazelwood�� 32 A.J. Bauer l Patriot Ledger, Quincy, Mass. Jerry Ceppos l Santa Clara University, Santa Clara, Calif. Shawn Chen l Associated Press, Washington, D.C. LIBEL Virginia Edwards l Education Week, Bethesda, Md. Libel in brief�� 37 Angela Filo l Eastside College Preparatory School, East Palo Alto, Calif. Robert Garcia l ABC News Radio, New York, N.Y. Richard Goehler, Esq. l Frost Brown Todd LLC, Cincinnati, Ohio Mark Goodman, Esq. l Student Press Law Center, Arlington, Va. Clarification Kathleen Kirby, Esq. l Wiley Rein & Fielding LLP, Washington, D.C. Tonda Rush, Esq. l American PressWorks Inc., Arlington, Va. — The story “Students, adviser reach agreements with college,” Rosalind Stark l Radio and Television News Directors Foundation (retired), in the Fall 2007 SPLC Report, should have noted that the Reston, Va. student paper at Ocean County College did receive the right to Mark Stodder l Dolan Media, Minneapolis, Minn. choose its own Web site as part of its settlement with the school. l Mark Witherspoon Iowa State University, Ames, Iowa The SPLC regrets the omission. Organizations for purposes of identification only A message from the splc

Report staff A farewell … s many Report readers know, at the ing its goals. All the national, regional and Michael Beder, McCormick Tribune Foun- end of 2007 I am leaving the Stu- state scholastic and collegiate press organi- dation Publications Fellow, graduated from dent Press Law Center to become the zations that allowed us to present at their Northwestern University’s Medill AKnight Chair in Scholastic Journalism in conferences or distributed our materials School of Journalism in June the School of Journal- helped our cause. And every attorney who 2007. He worked for four years ism and Mass Com- agreed to provide pro bono representation to at the student newspaper, The munication at Kent a student journalist in need did so, too. I Daily Northwestern, where he State University. After owe them my thanks. served in a variety of roles, in- 22 years as executive Of course, it is only because of our cluding as news editor, Forum editor and man- director, I can say what Photo courtesy of Mark Goodman funders — the foundations, corporations aging editor. He interned as a reporter and a wonderful experience and individuals — that the SPLC exists and Web producer at the St. Louis Post-Dispatch, this has been. thrives today. There is no organization that and he was a Dow Jones Newspaper Fund As the students and does a better job of stretching your dollars to copy editing intern at the St. Paul Pioneer advisers we assist know, Mark Goodman have the greatest impact. I hope that all Re- Press in Minnesota. no work is more satisfying than defend- port readers, like me, will continue to make Moriah Balingit, fall 2007 Louis Ingelhart Jour- ing the First Amendment. Helping young the SPLC part of your annual giving to allow nalism Intern, will graduate this term from the Americans understand, appreciate and prac- this work to continue for many more years. University of Oregon with a bach- tice press freedom has been the SPLC’s mis- And finally, I have to thank the people elor of science in journalism. sion since 1974. And while I may have been who inspired me every day of these last 22 She has worked for her college the face and name most often associated with years: the student journalists and advisers newspaper, the nationally rec- that mission, our dedicated, hard-working from coast to coast who are on the front ognized Oregon Daily Emerald, staff, interns and board of directors are what lines of fighting to ensure that all voices are covering the university’s admin- make our work succeed. I thank them all for heard. I know the future of this nation, and istration, higher education policy and issues their enthusiasm and support. of the First Amendment, is in good hands. of diversity on campus. She has also interned Beyond those on the inside, many oth- at The Sacramento Bee, The Oregonian and ers have been crucial to the Center achiev- — Mark Goodman, Executive Director The Spokesman-Review. She covered Internet issues, libel, confidentiality and privacy for the Report. … and a new beginning

Maggie Beckwith, fall 2007 Scripps-Howard rank Daniel LoMonte will be the Stu- sought,” said Rosalind Foundation Journalism Intern, graduated in dent Press Law Center’s next executive Stark, board chair. May from Syracuse University director, officially joining the SPLC Since early 2005, with a dual degree in newspaper Fon Jan. 2, 2008. Currently he is an associ- LoMonte has been a journalism and history. While at ate attorney with Sutherland Asbill & Bren- member of the SPLC’s Photo courtesy of Frank LoMonte SU, she regularly contributed nan LLP, Atlanta, where he has had a diverse Attorney Referral to the student newspaper, The commercial practice focusing on energy and Network. He also is a Daily Orange, and spent a se- telecommunications litigation. member of the State mester as a copy editor. She interned at The Prior to joining that firm in 2003, Lo- Bar of Georgia and Frank Daniel LoMonte Post-Standard and wrote for community news- Monte was a law clerk at the 11th U.S. holds memberships on the state legal com- papers in Central New York and Northeast Circuit Court of Appeals and for the U.S. mittee of the ACLU of Georgia, Georgia Ohio. Maggie covered high school censorship District Court for the Northern District of First Amendment Foundation, American for the Report. Georgia. LoMonte also has more than 12 Constitution Society and the American Bar years experience as a journalist, including Association. He also is an active volunteer Casey Wooten, fall 2007 Scripps Howard serving two years as a state capitol reporter with the Atlanta Bar Asylum Project and Foundation Journalism Intern, graduated from for the Florida Times-Union, nine years as Atlanta Legal Aid. the University of Houston in May bureau chief for the Morris News Service in “I am tremendously honored and excit- 2007, where he double-majored in journalism and political sci- Atlanta, and two years as Washington cor- ed to be succeeding Mark Goodman, who is ence. While in college, Wooten respondent for Morris. rightfully one of the most respected voices worked at The Daily Cougar as “The board of directors of the SPLC in media law in this country,” LoMonte a copy editor, senior staff writer enthusiastically welcomes Frank LoMonte said. “Mark has established SPLC as a lead- and finally as the opinion editor. Over the sum- to the organization. His strong credentials ing voice against censorship and in favor mer of 2007, Wooten was the editorial intern — both legal and journalistic — made him a of open government, and I intend to work at the Houston Business Journal. He covered compelling candidate to lead the SPLC, and with SPLC’s friends in law, education, and college censorship for the Report. his passion for our cause impressed us as just the media to bring SPLC’s message and ser- the right combination of qualifications we vices to an even wider audience.”

Winter 2007-08 www.splc.org • splc report College censorship Editors under fire

By Casey Wooten magine you are editor in chief of your college newspaper. Like any day, you walk into your office to check your voice Imail, and it is full of angry messages. You check your e-mail. It is loaded with posts from students, faculty and administrators who want you fired. Then, one of your staffers comes into the office. The local television station wants to ask you some questions about what ran in yesterday’s edition. When criticism and scrutiny hit the newsroom, it is the editor who absorbs much of the flak. Keeping a cool head — and having a little media savvy — is important when hoards of protesters are calling for your removal, collegiate press experts say. But having a good understanding of school throughout the inquiry. Two months after the newspaper’s protections under the First speech policies, your publication board’s the article ran, the task force recommended Amendment. bylaws and the law might help more when The Recorder hire a full-time media adviser “I share the concerns of my Latin-Amer- fighting to keep your job. and that Central Connecticut create a jour- ican colleagues and students and others for nalism major to provide more training for the hurt inflicted by [Rowan’s] decision to Under the microscope Recorder staff. run this offensive cartoon,” Miller said in a Media organizations were back again statement posted on the school’s Web site. By any account, Mark Rowan has had a outside The Recorder’s offices in September, “We learned from the work of the Task tough year as editor of The Recorder, Central after the paper published a cartoon depict- Force on Journalistic Integrity that there are Connecticut State University’s student-run ing two characters conversing about locking clear limits about what a state-supported newspaper. In February, the newspaper drew a “14-year-old Latino girl” in a closet and public university can do in response to such national attention when it ran a satirical col- urinating on her. actions.” umn titled “Rape only hurts if you fight it.” The cartoon was part of an ongoing se- Both incidents brought unwanted at- The day the article ran, the campus erupted ries called “Polydongs: based on true idiots.” tention to the university and The Recorder. in protest, with several groups calling for At the bottom of the strip, a disclaimer read: Rowan said it took a while to get used to Rowan’s removal. “The Recorder does not support the kidnap- speaking to the media. In the February inci- The newspaper’s editorial board fired the ping of (and subsequent urinating on) chil- dent, Rowan said he was blindsided by the author — who also was the opinion editor dren of any age or ethnicity.” ordeal and was not able to offer any words — but the move was not enough to prevent The disclaimer proved ineffective, and of wisdom to the staff. All he told them was the school’s president from organizing a task the following Friday several student groups to be careful when speaking about the con- force to review The Recorder’s editorial poli- organized a protest on campus, again calling troversy. cies. for Rowan’s removal. “At least the first time, in February, I was “It was definitely weird. Some people After the incident in February, The Re- just as shocked and unprepared as everyone were trying to say, ‘Oh you wanted all the corder had revamped how it handled poten- else in the newsroom, so I wasn’t really in attention to just get in the spotlight,’” Row- tially controversial material, which included any position to give any speeches about an said. “It was weird finding myself in that having it reviewed by the all-student edito- what to expect or anything like that,” Row- place. You turn on the news and they are rial board prior to publication. Rowan dean said. “Obviously there was a heightened talking about you, news stations are calling fended the editorial board’s decision to run sense to be careful of who you are talking to you up. It was a very weird experience.” the September cartoon, saying board mem- and what you are saying to them, because, In an interview with CNN, Rowan said bers agreed it was no more offensive than who knows how it can be taken, especially that running the column was a mistake. what students would see on an episode of when we were under the microscope by the Despite calls for Rowan’s removal, “South Park.” national and local media.” President Jack Miller promised to respect Miller publicly chastised Rowan and Being at the center of a big story was the newspaper’s First Amendment rights The Recorder, but reminded the public of an odd feeling, Rowan said. For editors who

splc report • www.splc.org winter 2007-08 College CENSORSHIP find themselves in his position, Rowan ad- said Speere, who also is student publications ered some 500 signatures on a petition call- vises that they make sure they get their ar- director at Southern Illinois University at ing for his dismissal. gument across to reporters in a few concise Carbondale. Speere said legitimate reasons In the following weeks, Colorado State’s sentences. to remove an editor might include failing to Board of Student Communications held “For someone who is speaking to a re- meet deadlines or embezzling funds. two meetings to decide whether to punish porter in front of a camera, make sure that Some content might not be protected, the newspaper for running the article, po- the things that are most important to them however. It is uncertain whether an editor tentially by removing McSwane. when dealing with the controversy are the can legally be removed, for example, for The board’s bylaws posed a challenge to things that come across in the interview the publishing defamatory material, said Mike those trying to predict whether McSwane most,” Rowan said. Hiestand, legal consultant for the Student would keep his job. One section stated the “All journalists do it, they’ll have a 10- Press Law Center. school could not ban speech solely because or 15-minute interview and end up only us- “Because defamation is not protected some found it “distasteful” or “unpleasant” ing two or three sentences,” Rowan said. “I speech, I don’t know whether there would and could not punish the publication for think we sort of, as student journalists, take be a First Amendment violation for remov- occasional use of “four-letter words” in pub- that for granted and don’t really realize what ing an editor, especially if there were more lications. Yet, another section stated that kind of effect that has on people — ‘Oh, is than a single instance,” Hiestand said, not- “profane or vulgar words are not acceptable that the most important thing I was trying ing that the issue has never been legally in opinion writing.” to get across?’” tested. The board decided not to remove Mc- In place of removing an editor outright, Swane. Instead the board issued a statement Battling boards, bylaws some boards or student governments might admonishing him for his decision to run the try to cut funding from the newspaper as editorial, calling it “unethical” and “unpro- Rowan was fortunate that his school’s punishment for running a controversial fessional,” yet acknowledging his right to president recognized the newspaper’s First piece. It is important to remember, Speere print it. Amendment protections. said, that money from the university cannot “By definition, the September 21 edi- But when editors must fight for their be taken away based on protected speech. torial was an expression of opinion, which jobs, they should be sure they understand “There is enough case law that says abso- we regard as protected by the First Amend- the bylaws under which their publications lutely no one can start tampering with fees ment,” the statement said. operate. because of the content,” Speere said. But that was not the end of the matter. At a public university, the organization Shortly after the uproar over the edito- of a student paper’s governing body can vary Controversy in Colorado rial at CSU died down, Jim Landers, then- widely, but often there is a board — gener- interim president of the school’s publica- ally composed of both school officials and Despite the protections afforded pub- tions board, proposed a change in its bylaws students — that creates bylaws and oversees lic school student journalists, some boards that would give the board the authority to all student media, including the student- – either pressured by administrators or the punish the use of “indecent, vulgar or so run newspaper, television or radio station. public – still entertain the idea of ousting called ‘four-letter’ words in student publi- At Central Connecticut it is called the Stu- an editor. cations.” dent Media Board. The latest high-profile battle between an The change would have made it easier Despite the calls for Rowan to be fired, editor and a publications board was at Colo- for the board to punish The Collegian for he was insulated by the board’s bylaws from rado State University’s flagship Fort Collins editorials like the Sept. 21 piece. Landers’ punishment for speech protected by the campus. In September, The Rocky Mountain justification was that, because the board First Amendment. Collegian published a four-word editorial considers itself publisher of The Collegian, it “Editors and managers of student publi- — “Taser This, Fuck Bush” — several weeks has ultimate authority over the paper. cations and student media shall be protect- after a University of Florida student, An- But unlike a private publisher, the board ed from suspension and removal because of drew Meyer, was tasered by campus police at CSU includes faculty members — gov- student, faculty, administrative, or public at a John Kerry speech on the Gainesville, ernment employees — and therefore is an disapproval of editorial policy and content,” Fla., campus. arm of the university itself, said Hiestand. the board’s constitution said. Editor in Chief David McSwane said Hiestand said regardless of any bylaws the Rowan said the only body with the the editorial was meant to raise awareness board might have had, it still would have power to remove The Recorder’s EIC is the about freedom of speech on college cam- violated McSwane’s First Amendment rights all-student editorial board. puses. Critics saw it as an attempt to blame by punishing or removing him for running Boards affiliated with a public univer- the president for the tasering incident in the editorial. sity generally cannot remove an editor based Florida, or an attempt by McSwane to grab The board was scheduled to vote on the on protected speech but can fire editors headlines. proposed change in December. But about who fail to perform their duties, said Lance The editorial drew national attention two weeks before the meeting, Landers Speere, former president of College Media and was the subject of tirades from several withdrew the proposal and resigned in pro- Advisers. television pundits. McSwane became the test. Landers called the EIC of The Collegian “It’s going to depend upon the operating target of protests from groups on and off the de facto publisher, and said he found papers for each student media organization,” campus. CSU’s College Republicans gath- that unacceptable.

Winter 2007-08 www.splc.org • splc report College CENSORSHIP

Private and independent The company’s board comprises three faculty members and five students. Faculty Editors at private universities have more members serve a three-year term, with the limited options when defending themselves. board inviting a replacement member each The more national institutions Administrators at private institutions are year. The board is the entity that selects, or … tend to operate more like a state not bound by the same Constitutional lim- removes, the editor of The Hustler. school because they embrace a its as their public counterparts. Like most incorporated college papers, “mindset of freedom of inquiry.” Some private schools voluntarily prom- the board’s bylaws generally place editorial Chris Carroll ise to give students the same rights as they control of the newspaper under the purview director of student media, Vanderbilt Student Communications Inc. would have at public institutions. And in of the editor in chief, said Chris Carroll, di- California, the 1992 Leonard Law grants rector of student media for Vanderbilt Stu- free-expression rights to all student publica- dent Communications Inc. a marketplace of ideas, Carroll said. tions, whether at public or private colleges. Carroll said removing an editor would “It’s counter to the notion of liberal arts But editors at many private schools have take a serious violation. education,” Carroll said. “But it’s also hor- little or no legal protection from being re- “I’m pretty sure the bylaws are specific rible public relations.” moved based on content. as to the reasons that they can do that,” Car- Carroll said editors are more likely to The lack of First Amendment -protec roll said. “For the most part it’s limited to a run into trouble at smaller, often religious, tions does not mean all student newspapers failure to perform — if there is any kind of institutions where there are more rigid ideo- operate under the thumb of their admin- fiscal malfeasance, and things that are out- logical standards. istrators, and many schools are hesitant to side the scope of journalism behavior, mis- Facing challenges like Rowan’s or Mc- threaten an editor’s job. conduct.” Swane’s is a trial by fire for anyone at the “The more enlightened private schools Most large private universities generally top spot of their publication. Balancing the would tend to limit it to acts of omission, will encourage a free press on campus, even media scrutiny and an often unhappy board where they just don’t do their job,” said though they might not have an independent — all while just trying to get the paper out James Tidwell, chairman of the department newspaper, Carroll said. Carroll has worked on time — can be unnerving. But Rowan of journalism at Eastern Illinois University. at three other schools, though Vanderbilt said even though at times he felt like he was To shelter themselves from adminis- Student Communication is his first incor- in over his head, he came through the ordeal trative control, some newspapers become porated paper. with valuable lessons learned. independent, converting to private corpo- “The more national institutions … “Pretty much any sort of controversy rations. At Vanderbilt University, The Van- tend to operate more like a state school be- may seem like you are in this whirlwind and derbilt Hustler celebrated its 40th year of in- cause they embrace a mindset of freedom it’s never going to end, and your journalism dependence from the university last fall. The of inquiry, they essentially have freedom of career is in shambles,” Rowan said. “But I Hustler rents space at Vanderbilt’s student speech on campus,” Carroll said. think anyone who handles themselves the center, but that is about as close as Vander- At many well-known universities, oust- best they can, and is willing to learn from the bilt Student Communications Inc. gets to ing an editor for controversial speech would experience, can definitely come out of it with affiliating itself with the school. appear to contradict the school’s position as something that they can be proud of.” n

College Censorship in brief

Primary Source, a conservative journal requirement was “a small step in the right Tufts reverses panel on campus, violated the school’s policy direction” but ignored “the most serious decision requiring against harassment. and troubling part of the decision.” The articles — a Christmas-carol par- “The dangerous precedent of label- bylines in newspaper ody, titled “O Come All Ye Black Folk,” ing political speech as harassment still MASSACHUSETTS — Tufts Uni- criticizing affirmative action and a mock stands,” Schuster said. versity’s administration announced Aug. advertisement titled “Islam, Arabic Trans- 27 it had overturned a decision banning lation: Submission” — prompted an out- Grambling orders a student journal from running unsigned cry on campus. A Tufts student and the editorials. In a separate statement, Presi- Muslim Student Association lodged com- paper to take down dent Lawrence Bacow said the private plaints against the paper last spring. story from Web site school in the future will behave as though The committee ruled in May that it were bound by the First Amendment. the articles constituted harassment and LOUISIANA — Administrators at Gram- But the university let stand the find- required that all future Primary Source bling State University on Sept. 28 ordered ing by the school’s Committee on Stu- articles carry bylines. the student newspaper to take down from dent Life — composed of faculty and Primary Source editor in chief Mat- its Web site an article and photos about students — that two articles in The thew Schuster said reversing the byline an anti-racism lesson.

splc report • www.splc.org winter 2007-08 College Censorship in brief

The Gramblinite sent a reporter and “This year we are just going to do one Amendment rights. photographer to cover an event designed [issue] in October and one in December,” Former Editor in Chief Stephanie to teach young students about racism in Fotopulos said. “We would like to see it Blahut and former business director Da- the context of the Jena Six case. One of go to a monthly publication, but that’s vid Chambers alleged that administra- the images taken showed a girl — a stu- going to depend on budget and staff.” tors purposefully restricted their access dent at Grambling’s Alma J. Brown El- The Eagle’s $5,000 budget will be to the Phoenix newsroom, refused to ementary lab school — held up in the air funded by the college, Higdon said. process orders for new equipment, re- with a noose placed around her neck. duced the newspaper’s funding approved De’Eric Henry, editor in chief of The IN THE COURTS by the student government and withheld Gramblinite, said he received a call from their pay. his news editor while driving to Dallas to Blahut said they might appeal and cover a sports event. The news editor told Ex-editors lose bid also are considering suing the school in him the paper’s adviser had removed the to keep suit against state court for withholding their wages. photos at administrators’ request. When A university spokeswoman said the Henry returned the next week, he put the Kansas State alive school had no comment on the case. story and all photos — except the one KANSAS — Two former Kansas State Case: Blahut v. Oden, No. 05-04989 image of the girl and the noose — back University students who sued their school (N.D. Ill. dismissed Sept. 11, 2007). on the newspaper’s Web site. over their newspaper adviser’s removal The Gramblinite had clashed with ad- lost their bid to amend their lawsuit and Court rules against ministrators in early 2007, when former keep their case alive. editor in chief Darryl Smith fought off Kansas State removed Ron Johnson, DJ fired for on-air the administration’s attempts to institute adviser to the Collegian student news- comments about Iraq prior review. For his efforts, Smith won paper, in 2004. Students and school of- the 2007 College Press Freedom Award, ficials demanded Johnson’s removal after MICHIGAN — Eastern Michigan sponsored by the Student Press Law Cen- the Collegian failed to cover a minority- University’s radio station did not violate ter and the Associated Collegiate Press. student event on campus. Johnson was a former disc jockey’s First Amendment removed based on a content analysis of rights after firing him for making contro- New president vows the paper, conducted by a university ad- versial on-air comments, the Michigan ministrator, which concluded that the Court of Appeals ruled Aug. 2. to keep ‘hands off’ Collegian’s quality was sub-par. After hearing the case for a second restarted newspaper A three-judge panel of the 10th U.S. time, the appellate court affirmed the trial Circuit Court of Appeals ruled in July court’s decision, siding with Arthur Tim- MISSOURI — After a brief hiatus, that because plaintiffs Katie Lane and ko, the station manager at WEMU-FM. Ozarks Technical Community College’s Sarah Rice, both former Collegian editors, Timko fired disc jockey Terry Hughes af- student newspaper will resume publica- had graduated, their First Amendment ter Hughes made comments supporting tion with a promise from college presi- claim — which sought only an injunction the war in Iraq on air and failed to run dent Hal Higdon to remain “hands off” against the school — was moot. hourly National Public Radio newscasts regarding editorial content. The appellate court denied Lane and during his show. Neither Hughes nor The Eagle ran into trouble in early Rice’s petition for a rehearing before the Timko are EMU students. 2006 after sending out questionnaires full court Aug. 20. A U.S. District Court Timko fired Hughes from the univer- to six candidates — including Higdon on Dec. 7 denied the editors’ request to sity-run radio station after listeners called — during the school’s search for a new amend their lawsuit to add a request for in to complain about his comments, cit- president. Jackie McKinsey, then presi- damages. ing a failure to run the newscasts as well dent of the board of trustees, ordered the Case: Lane v. Simon, No. 04-04079 (D. as a violation of the station’s policy re- newspaper not to publish the responses. Kan. dismissed as moot Dec. 7, 2007) quiring on-air personnel to maintain a Higdon also changed rules governing neutral position on controversial issues. who can be on the paper’s staff. Previous- James Fett, Hughes’ lawyer, said he ly, students were required to be in a jour- Suit accusing school will appeal to the state supreme court, nalism class; today, positions are open to of interfering with and to the U.S. Supreme Court if neces- anyone. Higdon said the newspaper also sary. moved from the English department to paper dismissed Case: Hughes v. Timko, No. 255229, the communications department. ILLINOIS — The U.S. District Court 2007 WL 2214147 (Mich. App. Aug. 2, The Eagle David Fotopulos, ’s faculty in Chicago dismissed a suit Sept. 11 2007). adviser, said he is excited about helping filed by two former student journalists restart The Eagle, although he does not who claimed administrators at Gover- know if he will remain as permanent ad- nors State University violated their First College briefs viser. See , Page 9

Winter 2007-08 www.splc.org • splc report Newspaper Theft in brief

Fair said several witnesses saw what were stolen, possibly in response to a Papers with article looked like students loading the newspa- mock campaign ad criticizing a member on athletes’ arrests pers into vans. of the student government. Matt Vessar, the campus police Chris Stryker, editor in chief of the taken at Shepherd U. detective in charge of the investiga- Missouri Miner, said staffers noticed WEST VIRGINIA — Staff at Shepherd tion, said he could not comment about Nov. 12 that the distribution bins University’s The Picket discovered Sept. whether police have any suspects be- around campus were empty. Stryker said 21 that nearly all of the paper’s 2,500 cause the investigation is ongoing. that was unusual for the weekly paper, issues had been taken. The staff and which prints 4,000 copies a week and adviser suspect the theft was caused by a Security cameras distributes them on Thursdays. front-page article reporting the arrest of Stryker filed a police report Nov. two football players on drug charges. record 3 removing 13, after he was contacted by a witness Three hours before the discovery, papers from stands who claimed to have seen someone tak- Demetrius B. Weeden, one of the play- ing stacks of papers out of a university ers arrested, had confronted Editor in OHIO — Three students at Findlay building. Stryker estimated that the Chief Jillian Kesner about the article, University in Findlay, Ohio, were seen theft cost the paper about $1,000 to Kesner said. on campus security cameras taking $1,500, based on production costs and Weeden was angry because both stacks of issues of The Pulse, the uni- advertising revenue. players had their felony charges dropped versity’s student-run weekly newspaper, Bill Bleckman, director of University by the local district attorney on Monday, campus security and the newspaper said. Police, confirmed that police were inves- Kesner said. The Picket had gone to press Students Kelsey Wesaw, Caitlyn tigating the disappearance of the papers before the charges were dropped. Yoder and Sarah Frankart — members of as a theft, and that the investigation was Kesner said two police officers the school’s volleyball team — are alleged focusing on a mock campaign ad as the escorted Weeden out of the newsroom. to have taken the papers in response to likely impetus for the theft. Bleckman Campus police chief Grover Boyer con- an article about an off-campus fight -in said campus police had no suspects and firmed that police were called to remove volving two other members of the team, had made little progress as of Dec. 3. Weeden. The Pulsereported in its Oct. 18 issue. Weeden could not be reached for Ken Walerius, director of campus Most stolen copies of comment. security, confirmed to the Student Press Boyer said police are investigating Law Center that Wesaw, Yoder and Nicholls State paper the theft but did not have any suspects. Frankart were the individuals recorded returned to stands removing the newspapers. Chris Underation, The Pulse’s ad- LOUISIANA — The majority of Column on Jena Six viser, said about 600 copies were taken, the stolen copies of Nicholls State might have prompted costing the newspaper about $100. University’s student-run newspaper, The Underation wrote in The Pulse’s Oct. 11 Nicholls Worth, were found returned to theft of 4,000 papers issue that the students returned most of their stands around campus, Stephen MISSOURI — A column about the the issues to newspaper stands or drop- Hermann, the university’s director of Jena Six case in Louisiana might have off areas three to four days after the student publications, said Nov. 14. led to the theft of thousands of issues of newspapers’ disappearance. About 4,000 copies of the paper the University of Central Missouri’s The Wesaw and Yoder did not respond were taken the morning of Nov. 8, Muleskinner, the newspaper’s managing to e-mail messages sent to their school shortly after being dropped in the editor said Sept. 25. e-mail accounts. Frankart sent an e-mail stands. Staffers and administrators sus- About 4,000 copies were stolen, declining to comment to the SPLC. pect the motivation for the theft was an worth about $1,000 in advertising and In the Oct. 18 issue, The Pulse ran article reporting the arrest of a student $775 in printing costs, said Charles Fair, a letter to the editor written by Wesaw’s earlier that week on rape charges. the paper’s faculty adviser. and Yoder’s parents apologizing for their Hermann said six individuals — The column said the six black de- daughters’ actions. four men and two women — have been fendants in Jena “should not be seen as identified by the school’s administration heroes or even worse martyrs. They are Police: Ad mocking in the theft, but administrators have not still misguided individuals who physi- yet released the students’ names. cally harmed another human being.” student official likely Eugene Dial, vice president of stu- Fair said most of the complaints sparked papers’ theft dent affairs and enrollment services, said he received about the article revolved his office has interviewed the students. around the idea that the writer did not MISSOURI — About 1,600 copies of As of Nov. 29, Hermann said the give a complete description of the con- the Nov. 8 edition of the University of newpaper had not yet filed a formal troversy in Jena. Missouri at Rolla’s student newspaper complaint.

splc report • www.splc.org Winter 2007-08 Confidentiality School searches newsroom Experts: State shield law should have protected Western Oregon Journal By Moriah Balingit us immediately — they were not.” appealed, but the infraction will remain on The technicians did not find or confis- his record. t happened after hours, in the dark, cate anything. But in their wake they left a when the reporters and editors had all lot of anger and uncertainty as to whether Oregon’s shield law gone home. college newsrooms could be protected from I Western Oregon University computer Oregon has the broadest state shield law being searched by campus authorities. technicians were let in to the newsroom of “The fact that they did it in the middle in the United States, said Duane Bosworth, the student newspaper, the Western Oregon of the night is very disconcerting,” said a Portland, Ore.-based attorney who spe- Journal, to look for a file containing students’ Loving. cializes in media law. The law protects jour- confidential information that had been acci- In addition, Loving was nearly expelled nalists from compelled disclosure of news dentally released on the university’s public from school for violating the university’s sources and unpublished or unbroadcast server. A day earlier, Journal staff member computer use policy, which prohibits “ac- material in almost all circumstances. It also Blair Loving had inadvertently discovered it cessing clearly confidential files that may protects newsrooms from being “subject to when using the public server. He made a be inadvertently publicly readable.” Ad- a search by a legislative, executive or judicial copy and gave it to his editor, who decided viser Susan Wickstrom also was dismissed officer or body, or any other authority hav- to write a story about it. because the university said she mishandled ing power to compel the production of evi- Director of Computing Services Bill confidential information and failed -to in dence, by search warrant or otherwise.” Kernan, who directed the search, said be- form the students about the university com- Opinions differ on whether the law can cause the newsroom is university property, puter policy. be applied to college newsrooms, especially officials were not required to seek permis- “It’s just shocking that this would hap- if the university or college is providing all sion or inform the news staff of the search. pen in Oregon,” Wickstrom said. or part of the newspaper’s funding or if the Kernan said in an e-mail interview that Wickstrom’s dismissal is being investi- newspaper is operating on university prem- the search was initiated because “We asked gated by College Media Advisers. Loving’s for the illegally copied files to be returned to disciplinary sanctions were lifted after he See Western Oregon, Page 10

College Censorship in brief

From College briefs, Page 7 Cite: Higher Education Governance Ac- 2005 ruling by the 7th U.S. Circuit Court LEGISLATION countability Act, S.B. 190, 2007-08 Ses- of Appeals. That decision,Hosty v. Carter, sion (Calif. 2007) (enacted). said college-sponsored student publications that are not designated as public State schools in Calif. Anti-Hosty law grants forums can be controlled by school ad- must release salary ministrators in the same way high school new protections to officials can control student media on info under new law their campuses. student journalists The new law effectively nullifies the CALIFORNIA — Gov. Arnold Schwar- ILLINOIS — A new set of protections Hosty ruling in Illinois for student media. zenegger (R) signed into law Oct. 12 a The decision remains in force in Indiana bill designed to open to public scrutiny for student media at state colleges takes effect in June after gaining final approval and Wisconsin, the other two states that the way state universities set compensa- make up the 7th Circuit. tion packages for their top officials. Aug. 31from Gov. Rod Blagojevich (D). The College Campus Press Act declares The Illinois law makes students re- The Higher Education Governance sponsible for all content decisions and Accountability Act, introduced by Sena- any student media outlet at a public college to be “a public forum for expression gives state schools immunity from being tor Leland Yee (D-San Francisco/San sued over material printed in campus me- Mateo), will require executive payment by the student journalists and editors.” The law also prohibits school officials dia. It also protects media advisers from packages at the California State Univer- being fired, punished or retaliated against sity system and the University of Califor- from exercising prior review. Illinois Sen. Susan Garrett (D-Lake “for refusing to suppress protected free nia system to be voted on in an open ses- expression rights.” sion by their respective boards of regents. Forest) introduced the bill in early Febru- ary — with assistance from the American Cite: College Campus Press Act, 110 Ill. The bill passed unanimously in both the Comp. Stat. 13 (2007). California Senate and the state assembly. Civil Liberties Union — in response to a

Winter 2007-08 www.splc.org • splc report Confidentiality

From Western Oregon, Page 9 versity authority,” he said. versity-owned computers and because the But he also agreed with Nelson that a newsroom was on “university premises.” ises with university equipment. newsroom search can have a “chilling effect,” But Bosworth, the media law attorney, Judd Nelson, the adviser to Portland and that regardless of a university’s author- challenged the notion that the university Daily State University student paper the ity to search a newsroom, university officials ownership of the newsroom exempted the Vanguard , said that because the newspaper should consider the grave consequences to newspaper from the shield law. he advises operates on campus property, he students’ freedom of the press. “I have no question that the shield law believes authorities can search it without “The university administrators should applies,” he said. “The statute does not itself permission. give the students the benefit of the doubt allow for any exception that arises out of the “In our case, the university owns the instead of sending someone to search the fact that it’s the school or student publica- property and we don’t pay rent, so it is their newsroom without any sort of warning,” he tion that’s funded by the school.” property,” he said. said. “That is alarming.” The only exception the statute provides Still, Nelson said that even though West- is if a crime is actually being committed on ern Oregon University authorities might be Who owns the newsroom? the premises of a newsroom. But Bosworth able to search a newsroom without permis- said that violating a school policy does not sion, they should have at least told the staff The relationship between the university constitute a crime. Journal of the beforehand. and the newspaper has been in dispute. The “In this case, if I had to guess, the ac- “My guess is that they probably can,” he newspaper is funded with student funds and tions were taken without considering the said. “But I think it’s ridiculous that they did. advertising revenue; the university pays for a media shield law,” he said. “Had there been … It’s downright sneaky and unnecessary.” faculty adviser. But when editor in chief Ger- a subpoena there would have been time to Kyu Ho Youm, a professor of journalism ry Blakney changed the masthead in Octo- decide whether the statute applied. Instead, at the University of Oregon who specializes ber to “Student owned and operated, report- they just walked in.” in communication law, said whether uni- ing the unabashed truth,” it prompted Vice Mike Hiestand, an attorney and legal versity authorities can search a newsroom President for Student Affairs Gary Dukes to consultant to the Student Press Law Center might depend on the relationship between e-mail the current newspaper adviser and de- agrees. the newspaper and the university. mand that the statement be removed. “There’s no doubt the law protects stu- “It has a lot to do with what kind of ar- “(The newspaper) isn’t actually student dent media. Keep in mind that the federal rangement is defined by tradition and by owned,” he said in the e-mail. “That part of newsroom search law and many of the state practice between the campus and the uni- the statement needs to be changed. Student laws were passed as a direct result of a 1978 fees go to the operation of Supreme Court ruling that involved law the paper, which makes enforcement officials searching Stanford it university owned … University’s student newspaper offices,” Hi- They could say student estand said. “These laws exist precisely to funded or student sup- prevent officials at Western Oregon from ported … both of these doing what they did at Stanford nearly thir- would be true.” ty years ago.” Blakney said the Bosworth also said college newsrooms newspaper has success- need to be guarded against such searches in fully resisted pressure the order to maintain their editorial indepen- administration has put dence. on the paper’s current “The only way that a newsroom really adviser to censor stories, functions properly is when there is confi- but that the paper’s edi- dence that what happens in the newsroom torial independence re- can stay in the newsroom,” he said. “There mains precarious. must be freedom within the newsroom to “This university make decisions without someone looking has … a serious history over your shoulder.” of taking over student However, Loving said he believes the rights and abusing stu- university will not repeat its mistake. dent rights,” he said. “I think they would make different “They’ve been very good choices now in this situation,” he said. “They at squelching any student understand now that they have the potential response to it.” to create a giant issue.” Kernan said he be- He added that he doesn’t believe the lieved he could search university’s attitude towards the newspaper the newsroom without has diminished its freedom of the press. permission because the “We’re really not afraid of the adminis- technicians searched uni- tration,” he said. n

10 splc report • www.splc.org winter 2007-08 Confidentiality Shield law may leave gap

co-authored the legislation. Federal protections for “There was concern about reporters could exclude bloggers.” But Goldberg said there unpaid student writers was little or no discussion about the definition’s rami- fications for student journal- By Moriah Balingit ists. “People had the right in- or many journalists, the passage of the tentions but didn’t think of Free Flow of Information Act through how it would affect this one the House of Representatives was an subset of the (journalism) Fimportant step in creating the first federal community,” he said. shield law, which would protect journalists Laura Rychak, a policy ex- from being compelled by federal prosecu- pert with the Newspaper As- tors to disclose their sources and other un- sociation of America, echoed published material in most circumstances. this sentiment. But many student journalists may find “The House members themselves left out in the cold. The bill’s were concerned about creat- current definition of who would be covered ing a workable definition that by the law includes an income requirement. wasn’t too broad and covered Specifically, it defines a “covered person” as legitimate journalists,” she a journalist who works “for a substantial said. portion of the person’s livelihood or for sub- Currently, the Senate’s stantial financial gain.” version of the bill, which tors issuing subpoenas to student journalists Student journalists, who are frequently passed the Senate Judiciary Committee in covering anti-war protests on campus. either unpaid or only nominally paid, might October and is awaiting action on the Senate This would not be unprecedented. not be covered by the law, which concerns floor, includes no income requirement. But Though he was not a student, 24-year-old some First Amendment advocates. Goldberg said the final Senate bill likely will video blogger Josh Wolf was subpoenaed for “I am worried about any definition that include some sort of income qualification. video footage he had of a protest that turned has the potential to exclude student journal- Student journalists who are unpaid violent against a Group of Eight summit. ists,” said Kevin Goldberg , the legal counsel likely would not be covered by the legisla- When he refused to turn over the tapes, he for the American Society of Newspaper Edi- tion because of the income requirement. was charged with contempt and jailed. tors. But those who are paid for their work may “Take out video blogger and insert stu- Many say the income requirement was qualify for protection, even if the compensa- dent journalist and you have your situation included to alleviate the fear that amateur tion is only nominal, as is the case for many ready-made,” he said. “He was covering an bloggers or non-journalists would take ad- student journalists. event where college-aged or college students vantage of the legislation to avoid testify- “For college students that don’t make were protesting.” ing. very much, any compensation can be con- Goldberg said the income requirement “The fear is that the common citizen sidered a substantial financial gain,” Gold- will not only put some student journalists at will wrap themselves in the cloak of jour- berg said. risk but also set a bad precedent. nalism by writing something, anything, in Rychak said that courts will likely inter- “It’s a bad example to set to the next their blog and claiming reporter’s privilege pret the income requirement to include all generation of journalists to say, ‘We’re going as a result,” said Goldberg. paid student journalists. to exclude you,’” he said. “It’s obvious that In the end, the push to create a defini- “A paid student journalist could have a there is an importance in protecting college tion that would exclude non-journalists led strong argument that they should be cov- journalism and high school journalism, and to the income requirement. ered under the financial gain or livelihood it’s unfair that it’s being lost in the shuffle of n “They were trying to come up with a requirement,” she said. getting this bill passed.” workable definition of journalists … and Though the possibility of student jour- not to let perfection get in the way of prog- nalists being subpoenaed by a federal pros- Cite: Free Flow of Information Act, H.R. ress,” said Matt Lloyd , the spokesman for ecutor seems remote, Goldberg said the 2102, 110th Congress (2007); S. 2035, Congressman Mike Pence (R-Ind.) who situation could arise with federal prosecu- 110th Congress (2007).

Winter 2007-08 www.splc.org • splc report 11 High School Censorship Walking a fine (color) line Students trying to write about race must struggle to address sensitive topics without triggering censorship it would cause a “material and substantial race alone will not cause a disruption. By Maggie Beckwith disruption” of normal school activities or There is no absolute test to tell what nly a few hours after the Little violate the rights of others. will cause a disruption, said Robert O’Neil, Hawk staff distributed its October School newspapers often operate under founding director of The Thomas Jefferson edition — with a cover story about the more restrictive standards set by the U.S. Center for the Protection of Free Expres- Ostudents’ attitudes toward race, including a Supreme Court’s 1988 ruling in Hazelwood sion. Without a blanket answer to what will colorful pie chart indicating 13 percent of v. Kuhlmeier, which gave administrators cause a disruption, schools are left to decide students polled viewed blacks unfavorably more control over school-sponsored outlets. on a case-to-case basis. and 2 percent viewed whites unfavorably But several states, including Iowa, have laws Administrators must rely on the history — the principal pulled all remaining copies, guaranteeing Tinker-like protections for all of the school, including racial problems in saying the issue caused a disruption. student expression, school-sponsored or the past, and how similar scenarios played Mark Hanson, principal of Iowa City not. out in other schools, he said. High School, said three separate incidents O’Neil said schools do not meet the between black and white students broke out Material disruption standards for censoring speech simply be- before he made his decision to collect the cause students are upset. newspapers. In interpreting the Tinker standard, In the City High incident, Sullivan In each verbal altercation, the students lower courts have generally said that a ma- claims that Hanson’s actions were “illegal.” were shouting about racism, he said. Teach- terial and substantial disruption is a physi- ers were able to separate the students before cal event that significantly interferes with it escalated into a fight. the normal operation “This was in the name of school safety,” of the school, such as Hanson said, explaining that he has never a walk-out, a riot or a pulled copies of the paper before and does sit-in, said Adam Gold- not plan to change any policies regarding stein, the Student Press student publications. Law Center’s attorney The paper’s executive editor, Adam Sul- advocate. livan, says the principal’s actions constituted Goldstein said there censorship. are not many examples of It is a pattern that student journalists student journalists being around the country are running into. Ar- censored by administra- ticles involving race relations — racism, tors based on the material immigration, discrimination — touch on disruption standard, but topics that are important but often attract many are connected to ra- negative and critical reactions from the cially intolerant speech. community and student body — and in But a discussion about some circumstances, a backlash from the administration. There is no magic test to determine if Courtesy of the Little Hawk an article goes too far. Administrators who Iowa City High School’s prin- censor articles about race, fearful they will cipal collected all remaining increase racial tensions or upset a particular copies of an issue of the Little group, usually claim they are trying to pre- Hawk featuring a front-page sur- vent a material disruption. vey of students’ racial attitudes. For student expression that is not The principal said several fights “school sponsored,” the 1969 Supreme broke out over the survey, which Court decision in Tinker v. Des Moines In- he believed created a disruption dependent Community School District estab- that justified taking the papers. lishes that an administrator cannot censor The paper’s executive editor student speech unless the school can show called the move censorship.

12 splc report • www.splc.org winter 2007-08 High School Censorship

Hanson said the fights did cause a dis- discussion about racism. ruption and that his actions were “absolutely “We wanted to show everybody it’s not not” illegal. okay to sweep this under the rug,” he said. The way students are, you’ll “There was a disruption at the school “Racism is one of those subjects you don’t see articles scattered on the floor and I needed to find the source of the prob- touch. The administration wants to ignore because they are sick of reading lem,” he said. the white elephant in the corner … and pre- about the football star. They want to Goldstein said one fight is not a substan- tend that everything is great.” “be engaged about something that tial disruption. But several fights that cannot actually matters to them.” be stopped in any other way might be. Filling a need Sarah Swift “It depends on what else the school did Benson Gazette editor in chief to prevent the fights,” he said. When a Nebraska student newspaper The First Amendment prohibits a “heck- published an issue in April with a series of them with the student body. ler’s veto” — when an individual reaction to stories focusing on the use of the “n-word,” After the issue came out on April 10, the someone exercising a legal right causes the the school district fielded angry complaints school district placed Benson High School’s government, law enforcement or public from parents, temporarily removed the prin- principal, Lisa Dale — who reviewed and schools to silence the speaker rather than cipal and considered changes to the student approved the articles before publication — punish the person causing the disruption. publication policy. on administrative leave, but reinstated her Goldstein said Hanson’s decision is a Omaha Public Schools launched an in- three days later. She could not be reached close call. vestigation to determine how several articles for comment. “On the one hand, schools aren’t re- and cartoons, which used the full spelling of The Omaha public school district, in required to wait for a riot before preventing the “n-word” in both its “er” and “a” end- sponse to complaints, said the “n-word” ar- one,” he said. “On the other hand, a verbal ings, made it into the student publication. ticles did not belong in the student newspa- confrontation is just two students disagree- Then-Editor in chief Sarah Swift main- per, issuing a press release stating that they ing, and a disagreement is not a disrup- tains that the article addressed an important have “never condoned and cannot support tion.” issue facing the students. the actions which recently resulted in the Sullivan said the survey and editorial The Benson Gazette’s “n-word” series inappropriate articles published.” discussing the results were meant to create came out months after the Michael Richards While the district might have consid- incident, where the former Seinfeld star used ered the articles “inappropriate,” a school the “n-word” six times in cannot legally censor student speech or pub- response to a heckler in lications just because some people find the the audience. words offensive. The issue was dis- O’Neil, director of The Thomas Jeffer- tributed only a few days son Center, said that even with hate speech after radio talk show host codes, “non-threatening, offending speech is Don Imus was criticized seldom subject to sanctions.” for using racial language In the Benson case, O’Neil said dis- by describing the Rutgers cussing the “n-word” in the newspaper and University women’s basket- printing the full version of the word would ball team as “nappy-headed probably not be considered “materially dis- hos.” ruptive.” Swift said these incidents “There is a tendency to overreact,” he put racial speech fresh in the said. students’ minds and that The investigation — launched by the it was important to discuss Omaha Public Schools shortly after the issue circulated — found that the staff did nothing wrong. Parents and community Courtesy of the Benson Gazette members stopped complaining and the staff This controversial feature package continues to produce the newspaper with- exploring the use of the “n-word” out any policy changes. sparked an investigation by the “We are moving on,” said Luanne Nel- Omaha public school district into son, school district spokeswomen. “There’s how and why administrators ap- been no policy changes and all we are asking proved publication of the feature. is that students be sensitive to race issues.” Benson High School’s principal Goldstein said an article in a student was put on administrative leave for newspaper using the full “n-word” has po- three days, but the district ultimate- tential to meet the standards of a material ly did not make any formal changes and substantial disruption, but the law re- to its publications policies. quires more than mere “potential” to justify

Winter 2007-08 www.splc.org • splc report 13 High School Censorship

Swift said the staff’s publish it in the next issue. It ran in the May intent was not to cause 14, 2002, issue. controversy. Instead, she Smith continued to fight in court, argu- said the staff wanted the ing that the measures school officials took to articles to spark a dialogue delay publication were unconstitutional. within the student body. A California appellate court ruled for “The way students Smith in May. The court ruled “speech that are, you’ll see articles scat- seeks to communicate ideas, even in a pro- tered on the floor because vocative manner, may not be prohibited they are sick of reading merely because of the disruption it may cause about the football star,” due to reactions by the speech’s audience.” she said. “They want to In September, the California Supreme be engaged about some- Court declined to review the case. thing that actually mat- Smith’s case is only the third on record ters to them.” addressing the California free speech statute, censorship. and it is the first one to look at the “incite” “Students don’t write about contro- The incite provision provision, said Paul Beard, his lawyer. “Whenever free speech issues come up, versial subjects because they want to cause Even in states with anti-Hazelwood laws, a controversy,” he said. “They are writing this will set an important precedent for tri- students can face roadblocks when trying to al courts and school districts,” he said. “It about what is actually going on, whether publish articles that discuss racial issues. that be racial tension or the use of the ‘n- will offer a high level of protection to free Andrew Smith, then a senior at Novato speech.” word.’” High School in California, learned that first- The school’s actions, including the sub- The “incite” provision refers to a- sec hand after he published a column, “Immi- tion of the California Student Free Expres- sequent investigation, constitute censorship, gration,” expressing his desire for stricter im- Goldstein said. sion Law. Besides speech that is “obscene, migration enforcement in the fall of 2001. libelous or slanderous,” officials can restrict “Actions designed to discourage the next His article suggested, “if a person looks student who wants to speak is still censor- student speech that “incites students as to suspicious,” immigration officials should create a clear and present danger of the com- ship,” he said. “The schools don’t seem to “just stop them and ask a few questions, and get that there’s nothing wrong with saying ‘I mission of unlawful acts on school premises if they answer ‘que?’, detain them and see if or the violation of lawful school regulations, don’t like this,’ but there is a problem with they are legal.” saying ‘I’m going to investigate this.’” In response, some students walked out of See Racial, Page 15 Despite some negative reactions, the school and protesters complained to Princi- student staffers stand by their decision to pal Lisa Schwartz. She collected the run the articles. remaining copies and sent a letter “We went to a school where you heard it home to parents saying the article every day,” Swift said. “We wanted to focus should never have been published, on when did the word start getting popular according to court documents. and why do people use it.” Schwartz required students to The “n-word” series featured an article submit all future issues of The Buzz called “Rules of a Word” by Jeremy Bag- to her for review by, two editorial cartoons, a student panel When Smith tried to publish his Q&A, surveys about the word’s usage, an follow up piece, “Reverse Racism,” opinion article and several student quotes in February 2002, Schwartz sug- with pictures. gested the students write a counter- Bagby’s article explained that the word point piece to accompany Smith’s comes with a set of unwritten rules, the first article, according to court records. of which is that “no person of any other race Smith’s new opinion piece criticized can use it and the word can only be used affirmative action and politically with an ‘a’ ending, not an ‘er’ ending.” correct names for minorities. Bagby, a black student, said he was as- When administrators refused signed the article and at first did not have to publish his article, Smith teamed much invested it in. up with Pacific Legal Foundation, “After reviewing the subject matter and which filed a lawsuit on his behalf writing the story a little, I started to get into in May 2002 to have “Reverse Rac- it,” he said. “What I was really hoping to ism” published. The judge decided accomplish was to get a grasp on my feeling not to force administrators to run about the word.” the article because they agreed to

14 splc report • www.splc.org winter 2007-08 High School Censorship Some officials silence ‘Jena Six’ demonstrations T-shirts banned in several schools, sparking federal suit in Tennessee

ers in the black community, in- By Maggie Beckwith cluding the Revs. Al Sharpton and everal students around the country felt Jesse Jackson, planned rallies and the chill of censorship as they com- marches to coincide with a hearing mented on or showed their support for one of the students. The Jena Sfor the “Jena Six” — the name given to the Six all were originally charged with six black students in Louisiana who activists attempted murder for attacking a point to as symbols of racial injustice in the white student who was knocked legal system. unconscious and spent three hours Administrators at high schools and col- in a hospital. Many believe the leges banned T-shirts and photos with mes- charges were excessive and based sages about the Jena Six, and at least one on the students’ race. newspaper theft is believed to have occurred Smyrna’s principal was only in response to a column written about the trying to prevent a disruption, said students. James Evans, Rutherford County One of the censorship incidents resulted Schools’ spokesman. Before school in a federal lawsuit, filed in early October in started on Sept. 20, a group of stu- Tennessee. dents were making racial slurs in Dani Super, 16, filed a lawsuit alleging the hallway and the assistant princi- a violation of her First Amendment rights pal had to break it up, Evans said. against the Rutherford County Board of “Tensions were high and we Education and Smyrna High School’s assis- made the decision that students tant principal, after administrators told her wearing shirts that expressed a clear the school does not have the authority to she was not allowed to wear her “Free the opinion, like ‘Free the Jena Six,’ wouldn’t be censor shirts based only on a fear that some- Jena Six” T-shirt to school. able to wear those,” Evans said. thing might happen. Super wore her shirt on Sept. 20, a day The Supers’ attorney, W. Alan Alder, is of national support for the Jena Six. Lead- a civil rights attorney in Nashville. He said See Jena, Page 16

From Racial, Page 14 In order to legally censor a Confederate journalists can avoid problems by exercising or the substantial disruption of the orderly flag image, school officials would have to sensitivity, O’Neil said. operation of the school.” show it is a symbol likely to cause a disrup- “Put yourself in the position of the per- The school argued that Smith’s article tion based on the history of the school and son or group you’re writing about and con- was likely to incite disruption of the orderly the region. sider how it might affect you,” he said. operation of the school. For example, a federal judge threw out O’Neil said students also should watch a case last August filed by three students in out for generalizations, especially in car- Confederate flags Missouri against Farmington High School toons. after they were punished or told to remove “This includes making sure not -to en One area where schools have been able clothing with a Confederate flag. gage in stereotypes, caricatures, simplistic to use the material disruption provision in U.S. District Judge Jean C. Hamilton characterizations,” he said. Tinker is to prohibit Confederate flag sym- ruled that because of racially motivated in- But Goldstein said student journalists bols on campus. cidents at the school over the previous year, should not shy away from covering racial “The courts have gone different ways,” school officials had reason to believe the Con- stories. Goldstein said. “Part of that is that the Con- federate flag clothing would cause a material “You have to ask what is journalism federate flag means different things to differ- disruption by increasing racial tensions. The for,” he said. “At the end of the day, it is a ent people in different parts of the country. case is still in the appeals process. service profession. You’re trying to educate The reaction to a Confederate flag in Maine the public. If you don’t tell them the truth is different [than]… in Georgia.” Avoiding problems you’re not doing that. And if you offend The ambiguity of the symbol makes it them and they don’t read it, you’re not do- hard to anticipate the reaction, he said. When covering racial issues, student ing that either.” n

Winter 2007-08 www.splc.org • splc report 15 High School CENSORSHIP Free-speech rights upheld in modern-day Tinker

tion, if we need to re-litigate Tinker, then Judge: Ark. district wrong what good is Tinker?” to suspend students who Judge Leon Holmes, in a September 2007 ruling, said that although the Watson wore armbands in protest Chapel School District’s dress code policy was legal, punishing students for protest- By Maggie Beckwith ing it was not. He pointed to the landmark ust months after a lone United States Su- 1969 case Tinker v. Des Moines Independent preme Court Justice said he thought “the Community School District, in which the JConstitution does not afford students Supreme Court ruled that students do not a right to free speech in public schools,” a “shed their constitutional rights to freedom federal district judge upheld three students’ of speech or expression at the schoolhouse rights in a modern-day Tinker case, affirm- gate” and that schools can restrict student ing once again that students can wear black expression only if it materially and substan- armbands as a silent protest and do not lose tially disrupts the school environment or their First Amendment rights at school. invades the rights of others. When students at Watson Chapel High The school district is appealing the deci- School in Arkansas were punished in Oc- sion. tober 2006 for wearing black armbands to “They are basically asking the court to Tinker protest the district’s new dress code, free overturn , which the 8th Circuit can’t agreement with the district’s dress code. The speech proponents assumed the case was a do,” said Rebekah Kennedy, an American protest stemmed from complaints that the clear violation of the students’ First Amend- Civil Liberties Union lawyer representing policy passed the previous spring was too re- ment rights. students Chris Lowry, Colton Dougan and strictive, even stipulating exact numbers for “It’s troubling that decades and decades Micheal Joseph. buttons on shirts, belt holes and pants pock- after Tinker there still is anybody who is The case began in October 2006, when ets. The policy did allow students to wear not sure about black armbands,” said Adam students and parents passed out more than personal jewelry and similar items as long as Goldstein, attorney advocate for the Stu- 200 black armbands for students to wear those items did not overlap the uniform. dent Press Law Center. “It raises the ques- around their wrists or arms to show their dis- According to court records, about 20

From Jena, Page 15 disruption. site. The paper’s editor in chief, De’Eric “It must be substantially more than • Students at Alta Loma High School in Henry, quickly put the story and most of that,” he said, citing Tinker v. Des Moines California were told to turn “Free the Jena the photos back on the site. He did not re- Independent Community School District, a 6” T-shirts inside out when they wore them post the photo with the noose, which edi- 1969 Supreme Court case that ruled public Sept. 20. Administrators said the decision tors had agreed to take down after adminis- schools may only censor student speech if was made before first period and the shirts trators made their initial complaint. they can reasonably forecast it will cause a had not yet caused a disruption. The San • About 4,000 copies of University of material and substantial disruption or in- Bernardino County Sun quoted the princi- Central Missouri’s student newspaper, The vade the rights of others. pal saying that he can censor messages “any Muleskinner, were stolen in what the editors The lawsuit asks for an injunction to al- time there is a potential for disruption.” believe was a response to a column in which low students to wear shirts that say “Free the • Administrators ordered the student the writer said the Jena Six should not be Jena Six” to school. The Supers also are ask- newspaper at Grambling State University considered heroes or martyrs because their ing for a non-specified amount in damages in Louisiana to take down photos of an actions were still illegal, even if the initial and attorney fees. “anti-racism lesson” held at a local elemen- charges were excessive. The papers were sto- Other censorship issues involving com- tary school, including a photo depicting an len either late Sept. 20 or early Sept. 21. ments about Jena included: elementary student with a makeshift noose The paper’s faculty adviser said - hebe • At Jena High School, about eight stu- around her neck. lieves the thefts were an organized attempt dents were told they could not wear “Free The lesson, held in late September, was to stop people from reading the column. the Jena 6” T-shirts in August. One of intended to teach students about the events Before the theft, the newspaper received the students wore the shirt to support her surrounding the Jena Six. complaints that the article did not give a brother, Carwin Jones, one of the Jena Six. The Gramblinite’s adviser complied and complete description of the controversy in n The superintendent said the shirts caused a took the entire news package off the Web Jena.

16 splc report • www.splc.org winter 2007-08 High School CENSORSHIP students from the junior and senior high Amendment rights. he said. schools were suspended for participating in “There is no question that Thomas is Even the jury in the Watson Chapel case, the protest. Most students did not wear the alone on the Supreme Court in his thinking told that the school did violate the students’ armbands or removed them after they heard that Tinker should be overturned,” Gold- First Amendment rights, did not award the about the suspensions. stein said. students even nominal damages, despite the The most recent Supreme Court case Still, even if Thomas stands alone on his judge’s instruction that they must award at involving student free speech was Morse v. opinion of Tinker, his views — that schools least $1. Frederick, popularly known as the “Bong should have more control over student ex- Holmes overruled the jury’s decision Hits 4 Jesus” case. The Court ruled that pression — are held by administrators across and awarded the students $1 in nominal school officials can limit student speech that the country. damages, which also allows the students to can reasonably be interpreted as advocating “It’s sad but not surprising because ad- file for attorney fees. While the students are the use of illegal drugs. ministrators are generally not well-versed in currently filing for attorney fees, the school In his concurring opinion in Morse, student press law,” Goldstein said. district also is appealing the judge’s decision Justice Clarence Thomas, supporting the In addition to Morse, two other Supreme to award the nominal damages. majority opinion ruling against the student, Court cases have limited the protections of- “Frankly, this is such a settled point of went so far as to say that, given the oppor- fered by Tinker. law, I don’t see the 8th Circuit ruling against tunity, he would “dispense with Tinker alto- The 1986Bethel v. Fraser decision estab- decades of case history and a Supreme Court gether,” explaining that the Tinker standard lished that schools could prohibit lewd and ruling,” Kennedy said. was “without basis in the Constitution.” indecent speech during school-sponsored Goldstein said that while the courts Thomas argued that Tinker “utterly ig- events. Hazelwood v. Kuhlmeier, decided overwhelmingly continue to maintain stu- nored the history of public education” and in 1988, went further by ruling that ad- dents’ First Amendment rights, it’s impor- that schools, acting in place of the parents, ministrators could censor school-sponsored tant to remember that some individuals in should be able to govern students’ behavior, speech that interferes with the school’s basic the schools and community may disagree. including limiting their speech. educational mission. “Students need to be aware of the fact Although Thomas stated he would not Goldstein said that administrators often that there is a portion of the population that uphold Tinker if it were in the Supreme claim the law is unclear. believes their obligation as a student is to Court today, legal experts believe the rest “So they make these shoot-from-the- show up, shut up and keep their head down of the Court would protect students’ First hip decisions that are legally indefensible,” until they get their diploma,” he said. n

high School CENSORSHIP IN BRIEF

staff responded by halting publication. principal told the staff last January that Journalism program Sorrell was put on leave, then they could not print a photograph taken in Indiana folds after reached an agreement with the East Al- during a school play, which showed a len County School District that would girl ripping an American flag. censorship battle have moved her to a different school In response, Eric Sheforgen, then- INDIANA — Citing low student inter- and barred her from teaching journalism editor in chief of the St. Francis High est, Woodlan High School canceled its for three years. Instead, Sorrell took a School newspaper, removed the photo journalism program following a high- position at Keystone Schools, a private but ran a story describing the principal’s profile censorship case earlier this year, school, where she teaches English and censorship. The story reached the local but said the student paper will continue is launching a student newspaper and and national media and Sheforgen with essays from English classes filling yearbook. worked to retain the public forum status the pages. For now, with no jounalism For her actions, Sorrell received the of the newspaper. His efforts won him teacher on staff, English teachers will 2007 Courage in Student Journalism the 2007 Courage in Student Journalism select pieces for the paper. Award in the advisers category. The Award in the student category. After The Tomahawk published a col- award is sponsored by the Student Press The paper’s adviser, Glenn More- umn in January 2007 in which the writer Law Center, the Newseum and the Na- house Olson, said the school board will advocated more tolerance for homo- tional Scholastic Press Association. vote on an official student publication sexual students, the staff and the paper’s policy sometime in the late fall or early adviser, Amy Sorrell, found themselves at Students in charge winter. In May, a subcommittee of the odds with Woodlan’s administration. The board recommended that The Crier principal, believing the material was in- of paper again after retain its student-forum status. appropriate for younger students, started fight over photograph reading the paper before publication, MINNESOTA — The Crier came back and the school board named him as the See High School briefs, Page 18 publisher of the paper. The Tomahawk under student control this fall after the

Winter 2007-08 www.splc.org • splc report 17 High School Censorship in brief

From High School briefs, Page 17 up back where we were last year, but for Online now, we have been reinstated as an open See more briefs Student expelled for forum,” she said. on our Web site: http://www.splc.org/report.asp describing shooting IN THE COURTS returns to school 5th Circuit upholds Case: Ponce v. Socorro, No. 06-50709, WASHINGTON — The Northport 2007 WL 4111241 (5th Cir. Nov. 20, School Board allowed Lance Timmer- student’s punishment 2007). ing to return for his senior year of high school after school officials expelled him for violent faux-diary for writing a piece in his notebook that TEXAS — School officials were justified Former Kodak editors described a school shooting. in punishing a high school student who settle with district in Police dropped the initial felony wrote a violent story in his journal, a charge against Timmering to a misde- federal appeals court ruled Nov. 20. suit over masthead meanor count of disorderly conduct. A three-judge panel of the 5th U.S. Timmering’s father, who serves on Circuit Court of Appeals based its deci- WASHINGTON — Everett School the school board, said the notebook sion on its interpretation of the Supreme District settled with two former editors contained only a page with writing for a Court’s June ruling in Morse v. Frederick, of the Everett High School Kodak in video game level his son was developing. the so-called “Bong Hits 4 Jesus” case. August, ending a lawsuit over adminis- Timmering continues to develop games In that decision, the Court ruled that trators’ rights to read the paper before but now leaves his writings at home, his school officials can censor student speech publication. father said. that a reasonable observer would believe According to the settlement, edito- advocated the use of illegal drugs. The rial decisions are made by the students School ends prior 5th Circuit found that by similar reason- but are subject to Everett School District ing, officials also can punish speech they Policies 3221 and 3221P. Under 3221, review of paper, but believe advocates behavior endangering administrators may review the paper but staffers still worried students’ physical safety. can only bar articles that contain unpro- A Montwood High School sopho- tected speech such as libel, obscenity or WASHINGTON — Student editors more, identified in court documents as advocacy of illegal drugs. at Lake Stevens High School are once E.P., was suspended for three days in However, in policy 3221P, material again in charge of determining the con- August 2005, after Montwood Assistant that “runs counter to instructional pro- tent of the student newspaper this fall. Principal Jesus Aguirre discovered a gram” is prohibited, along with content Katie Van Dyke, the current editor violent story in the student’s notebook at that “is inappropriate for the maturity in chief, said the administration is no school. The story, written in the form of level of the students,” wording that longer trying to use prior review. a first-person diary, described the forma- suggests the newspaper will be held to Administrators made “minor tion and growth of a neo-Nazi party at the Hazelwood standard rather than the changes” to an article scheduled to run Montwood and other high schools in the more protective Tinker standard. in The Valhallalast spring. The story Socorro Independent School District, Still, both the school district and the covered a controversial assignment in an culminating in a Columbine-style shoot- students claimed victory. English class from an atheist teacher to ing at graduation two years later. The agreement ends a dispute that compare Biblical and mythological sto- E.P. and his parents maintained began in 2005, when the principal ries. The controversy was covered heavily that the story was entirely fictional, but stopped students from printing a mast- in the local media. The principal asked Aguirre concluded the writings consti- head stating the paper was not subject to remove content that pitted a student’s tuted a “terroristic threat.” When district to prior review. The students argued that words against the teacher’s, according to officials upheld E.P.’s suspension and the paper operated in practice as a public the former adviser. sought to transfer him to an alternative forum, which would limit an administra- The prior review continued through educational program at another school, tor’s power to censor the paper. the end of the school year. The paper’s his parents — Enrique Ponce Jr. and The then-co-editors of theKodak , adviser resigned, citing other reasons Rocio Ponce — put him in a private Claire Lueneburg and Sara Eccleston, but noting the distanced relationship be- school and sued the school district. filed a lawsuit after the school’s new tween the paper and the administration. The family has asked for a rehear- principal prevented the paper from Van Dyke said she still is concerned ing before the full 5th Circuit but has printing the revised masthead, which about relations with school officials. not decided what to do if that motion stated in part that the paper was “not “If something runs that the adminis denied, said Stephen G. Peters, the istration doesn’t agree with, we may end Ponces’ attorney. See High School briefs, Page 25

18 splc report • www.splc.org winter 2007-08 High School Censorship

n LEGAL ANALYSIS: All your Hazelwood questions answered … page 32 Twenty years of Hazelwood

By Maggie Beckwith or weeks following the 1988 Hazelwood v. Kuhl- meier decision, students at Upper Arlington High School in Ohio wore black armbands to Fprotest the Supreme Court’s ruling giving administrators the right to censor “school-sponsored” speech that interferes with the “basic educational mission” of the school. Student journalists around the country feared the Hazelwood case — arising from a Missouri principal’s decision to censor newspaper articles about teen pregnancy and divorce — would create a “chilling effect” by making it easer for high schools to censor speech, especially in student publications. “Hazelwood gave administrators the authority to quiet articles that otherwise would have gone to print,” said Chad Kister, who was a student journalist at Upper Arlington when the Hazelwood decision came down. “This creates bad government and corrupt officials when you don’t have the transparency you need with a free press.”

Winter 2007-08 www.splc.org • splc report 19 High School CENSORSHIP High School CENSORSHIP

By wearing the armbands, Kister and police reached the front door, it was Six other states —Oregon, Arkansas, Colorado, Iowa, Kansas other students were copying the students slightly ajar. Inside, they could see cups and Massachusetts — have since passed anti-Hazelwood legislation in Tinker v. Des Moines Independent Com- filled with “amber-colored” liquid. Kulp guaranteeing free-speech rights to public high school students. Close call munity School District. The 1969 Supreme said the officers believed the liquid was Court case was the high water mark for beer, when really it was apple juice, ac- The road to Hazelwood student speech rights. The Court ruled cording to The Quill. that school officials could not ban stu- Kister said the police came and en- After the Supreme Court decided Tinker and upheld student dents from wearing black armbands to tered the house without knocking and journalists’ rights, high school newspapers flourished. in California protest the Vietnam War because stu- without a warrant. Some of the staff “We saw the best reporting ever in high school papers through- dents do not “shed their constitutional members climbed trees with cameras out the ’70s and into the ’80s,” said H.L. Hall, a retired Journalism rights to freedom of speech or expression to take shots of the police entering the Education Association president and former newspaper adviser at A little-noticed state law shielded at the schoolhouse gate.” house. Kirkwood High School in Missouri. Under Tinker, student speech can “They were threatening to arrest me Chris Zombory, then a student journalist at Lakewood High students in Hazelwood’s wake only be censored if administrators show it would be likely to cause and eventually left,” Kister said. School in Ohio, said his school never had a problem with censor- y oriah alingit a material disruption or invade the rights of others. After the faux party, the newspaper staff wrote a “huge” cover ship. When he graduated from Lakewood in 1985, Hazelwood, B M B Although the Tinker standard still applies to most independent story about it, Kister said. which was filed in 1983, was “just gaining steam.” Looking back wenty years after the Supreme Court announced its de- student expression, Hazelwood significantly cut back the protections That’s when the relationship between the principal and the through his newspaper’s coverage of censorship cases in the years cision in the landmark student press case Hazelwood v. for school-sponsored outlets such as plays and newspapers. Student newspaper turned sour. preceding Hazelwood, Zombory said he still can see the pattern he Kuhlmeier, experts still struggle to gauge its impact. Hazelwood The Quill perceived as a student back then. TBut for a short three days at Homestead High School in Cu- journalists and advisers recall how , from the moment it Then-Principal Ralph A. Johnson told that the stu- was announced, seemed to give administrators the idea that they dents were practicing unethical journalism by staging the party. He “Public school officials were trying to clamp down, shut us up, pertino, Calif., the effects of the case were dramatic and immedi- could censor articles for just about any reason. Twenty years after Ha- sent a letter home to parents stating that the school disagrees “with make us march in lines and not cause an embarrassing ruckus,” he ate. Within two hours of the Court’s announcement and just two zelwood, journalism educators fear the decision has encouraged more the methods that mislead or misrepresented journalistic motives to said. days before the school’s newspaper was to go to press, Principal self-censorship among high school journalists and discouraged them get a story.” Their chance came in January 1988, when the Supreme Court James Warren swiftly revoked the long-established editorial inde- from writing aggressive, in-depth stories in student publications. Johnson could not be located to be interviewed for this article. ruled against three students on the staff of the Spectrum newspaper pendence of the school’s newspaper, The Epitaph, when he told Kister said the students of Upper Arlington also wore pins pro- Kister said the principal called him into his office and threat- at Hazelwood East High School in Missouri. students they would be punished if they ran an article about a testing the Hazelwood decision. And the first post-Hazelwood issue ened disciplinary action. He demanded to see a copy of the articles The decision ended a struggle between the Spectrum staff and student who was HIV-positive. Students braced themselves for of the Upper Arlington student newspaper, the Arlingtonian, fea- before they ran. Kister said he told him the students would refuse to Hazelwood principal Robert Reynolds over what the paper could what they envisioned would be a tense fight against the adminis- tured a full-color photo of the First Amendment burning with the print the newspaper if the principal instituted prior review. print in a spring 1983 issue after the Spectrum’s new adviser, How- tration to maintain their editorial independence. American flag in the background. “This is not censorship,” Johnson said in the 1989 article. “It is ard Emerson, submitted copies of the paper to Reynolds for review Then, hours later, a newspaper reporter tipped the students The principal “wasn’t too happy” with the paper’s coverage of an issue of counseling and advising.” before publication. Reynolds objected to several articles, including off to a California law that nullified the decision and ultimately Hazelwood, Kister said. But it was not until the following fall that the Kister, his adviser and the Arlingtonian staff were able to work ones about teenage pregnancy and divorce, and ordered them re- saved the newspaper from censorship. The statute – signed into principal attempted to change policies and institute prior review in with the superintendent of Upper Arlington to get a district-wide moved from the paper. Spectrum staffers called their former adviser, law 11 years earlier – was the first of its kind in the nation and response to an investigative piece about the local police department. policy in place making student publications an “open forum” for who in turn called Hall, an adviser at a nearby school. has saved countless high school student journalists from censor- Months after the Hazelwood decision, the newspaper staff at student expression that stipulated student editors — not school offi- “I suggested he tell the students they should call the Student ship under Hazelwood in California. Upper Arlington investigated claims by students that police officers cials — were responsible for determining the paper’s content, Kister Press Law Center,” Hall said. Though the students ultimately prevailed, the events that un- were violating their Fourth Amendment rights by entering private said. An open or public forum, either by policy or practice, is not Three students on the newspaper staff — Cathy Kuhlmeier, Les- folded at Homestead after the Court’s announcement foreshad- households without warrants and arresting students for underage subject to the guidelines established by Hazelwood. Instead, it falls lie Smart and Leanne Tippett — filed a lawsuit against the school, owed the new challenges student journalists would have to face drinking. Kister and other staff members set up a “party” to see what under Tinker’s protections. claiming their First Amendment rights were violated. The American in the wake of the Hazelwood decision. actions the police would take. Using a decibel meter to ensure the Kister and other student journalists and educators in Ohio later Civil Liberties Union represented the students and the Student Press music played at the party did not violate any noise violations, the lobbied unsuccessfully for a state law that would guarantee free- Law Center filed a friend-of-the-court brief on their behalf. The story student journalists waited for police to arrive, Kister said. speech rights to high school students. California passed a similar law The students lost in federal district court but won in the appeals In a 1989 article for The Quill, a Mississippi newspaper, then- before the Hazelwood decision. court. The school board appealed to the U.S. Supreme Court. The In the fall of 1987, high school senior and Epitaph reporter Upper Arlington Police Chief Tom Kulp said responding officers “I think it’s important to give student journalists the right to heard one student saying he was going to get more beer. When the make decisions and exercise their First Amendment rights,” he said. See Reaction, Page 22 See California, Page 24

Jan. 13, 1988 May 11, 1989 June 7, 1990 Feb. 21, 1992 Oct. 12, 2004 Aug. 28, 2006 Aug. 31, 2007 The U.S. Supreme Iowa’s anti-Hazelwood Colorado’s anti-Hazel- Kansas’ anti-Hazelwood A federal district court rules that a Utica, Mich., school system In response to Hosty, California enacts the nation’s Illinois College Campus Court issues its legislation becomes law wood law enacted. law enacted. had no legitimate pedagogical reason to censor a student first law prohibiting prior restraint and other forms of Press Act signed, nullify- Hazelwood ruling. newspaper article about a lawsuit filed against the district. censorship of student media at state colleges. ing Hosty in that state.

July 14, 1988 April 10, 1995 Feb. 21, 2006 July 13, 2007 The first law designed to nullifyHazelwood is signed in Massa- Arkansas’ anti-Hazel- U.S. Supreme Court refuses to hear Hosty v. Carter, letting Oregon anti-Hazelwood chusetts; California already had passed a similar law protecting wood law enacted. stand a 7th U.S. Circuit Court of Appeals ruling that the bill becomes law. student free-expression rights in 1977. reasoning of Hazelwood could be applied to colleges.

20 splc report • www.splc.org winter 2007-08 Winter 2007-08 www.splc.org • splc report 21 High School Censorship

Courtesy of Franklin McCallie From Reaction, Page 21 The decision to run these ads in Court agreed to take the case and heard oral the Kirkwood Call at Kirkwood arguments on Oct. 13, 1987; three months High School drew protests from later, on Jan. 13, 1988, a sharply divided parents and activist groups. Court issued its decision upholding the school’s actions.

Initial reactions High schools across the country felt the aftershock of the Hazelwood decision. Susan Hathaway Tantillo, an adviser in Illinois, recalls how the principal reacted after the first issue post-Hazelwood came out. He went out to the loading dock to take a look at the just-delivered papers, something he never did until after the Hazelwood decision, she said. was a “staunch supporter of student press churches collected 1,400 signatures on a pe- “He let me know the Supreme Court rights” and that he “had words over the is- tition asking to have the ad removed from now said it was okay for him to see it be- sue more than once” with Reynolds, Hazel- future publications. fore it ‘hit the streets.’ At least that was his wood’s principal. McCallie said he got a call from his su- interpretation of the decision,” said Tantillo, “There need to be more administrators perintendent midway through the week. He Wheeling High School’s adviser from 1971- like McCallie who aren’t paranoid and who wanted to meet with the staff and ask them 2001 and current JEA awards chairwoman. don’t think that anything negative that oc- to remove the ad. But Tantillo said the principal never in- curs in their school district is a black mark “I said, ‘That’s not us,’” McCallie said. terfered after that. against their school,” Hall said. “And he said, ‘You don’t know these anti- In Washington state, Douglas Mc- McCallie, now retired from his position abortion groups; they will try to beat us Comas, then-adviser of Wenatchee High as Kirkwood principal, said he knew right down. We’ll lose our levies. They’ll come to School’s newspaper, the Apple Leaf, said away that the Hazelwood decision would be all our meetings.’” the Hazelwood decision, plus some “slightly terrible for student journalists. After getting off the phone with the controversial articles,” prompted adminis- “When the principal says ‘you need to superintendent, McCallie called his wife to trators to tell McComas he must bring in run it by me first,’ then he’ll get less than tell her that it might be his last day. He said the paper’s paste-ups to the office for prior the best because it’s not the students’ news- he was so upset he was nearly in tears. approval. paper,” he said. “If you limit what they can “If the superintendent forced these “I simply responded that he could come write about, it’s not as good of a paper.” kids to pull the ad, that is not the mission by the newspaper room any time to look A few years after Hazelwood, in the fall I signed up for,” he said. “And it does not over our shoulders,” McComas said. “I add- of 1990, McCallie faced a controversy at his meet the mission of the district. What are ed that if he insisted that we take the paper school in response to an ad The Kirkwood we yielding to?” to the office prior to sending it to the print Call published from Planned Parenthood. McCallie said telling the students to re- shop, I would be contacting the Student Unknown to McCallie at the time, move the ad would not be in line with what Press Law Center for legal support. I never Planned Parenthood sent the ad out to 80 the district was trying to teach the kids to heard anymore about it, and he never both- schools in Missouri and only eight chose to do: make their own decisions. ered to come look over our shoulders.” publish the ad in the school newspaper. The following day, McCallie said he The Call ran the ad in the first few issues went with the superintendent to meet with of the year without any incident. In the Oc- the students. Kirkwood’s approach tober issue, the Planned Parenthood ad ran “We went during last period and the su- While some administrators may have with an ad from Missouri Right to Life on perintendent introduced the idea that there seen the Court’s ruling as a way to control the facing page, and still no one complained was nothing wrong with the decision to run students’ expression, others took a strong to McCallie. it, but now we want you to reconsider,” he stance in support of students’ rights. But in November, the St. Louis Post- said. The superintendent told the students Not far from Hazelwood East was Kirk- Dispatch ran a front-page story about the they would have a week to decide and that wood High School’s principal, Franklin Mc- Planned Parenthood ad, saying that only he knew they would “make the right deci- Callie. eight schools chose to print it and naming sion.” But before the deadline was up, pub- Several other school districts near Hazel- only two schools: Kirkwood and Clayton. lic opinion shifted in the students’ favor. wood signed a court brief in support of the “The phones went off the hook,” Mc- McCallie, in an interview with the Post- Hazelwood administration, but McCallie Callie said. Dispatch, said the school was getting a lot did not. Anti-abortion groups and parents called of negative feedback. After that, the positive Hall, Kirkwood’s adviser, said McCallie his office to complain, and local Catholic letters and phone calls started rolling in.

22 splc report • www.splc.org winter 2007-08 High School Censorship

“Before that interview, the letters were ten school policy or followed in practice, three-to-one against us. After the statement, can take advantage of the protection against Tinker Online they were five-to-one for us,” he said. censorship set forth in . Student me- Courts, advisers and The superintendent changed his mind dia that do not qualify as public forums are student journalists and the students continued to run the ad. subject to administrative censorship under still struggle with the language of Hazelwood’s McCallie said protesters with picket signs less protective standards. Hazelwood’s standard. Read the The Correspondent gathered outside of the school board meet- After ’s January issue, story on the Web: ing in February, and the school lost several and other “controversial” articles in district http://www.splc.org/report.asp elections to raise the levy in the years that student newspapers, Levin said the district followed because of the ad. By 1993, the held a workshop for advisers in June. The school board passed a levy and it seemed district’s lawyer also attended the work- controlling its own content and maintain- voters had moved on. shop. ing its mission to inform,” it says. “We had one of the most exciting, Venitia Miles, a district representative, stimulating years in 1991 because of The said the workshop was not in response to Hazelwood’s legacy Kirkwood Call,” McCallie said, recalling the any particular article. Instead, the district discussions created by the controversial ad. wanted to address questions that had arisen Advisers agree that Hazelwood has re- McCallie said principals and adminis- regarding student publications. sulted not only in more censorship from the trators do not give enough credit to student “(The lawyer) was bothered by the open administration but also self-censorship by journalists. Students, under the guidance of forum status,” Levin said. “She thought we student journalists. a trained journalist, are learning to make were completely ignorant about press law “The Hazelwood decision had a some- their own decisions. Taking editorial control and that she could just come in there and what chilling effect on what the students from their hands sends the wrong message tell us how to run the paper.” elected to cover,” said Tantillo, a retired and does not teach them anything, he said. Miles said that the school district has adviser from Illinois. “My students always “These are 14, 15, 16, 17-year-old kids never practiced prior review and they have were concerned they not be the first staff ‘to and we’re telling them you can’t make any no intention to do so in the future. drive the administration to implement prior decisions; you don’t have the intelligence to “There’s been some articles that have review.’ They may have chosen not to cover make decisions,” McCallie said. “Then after raised the eyebrows of community mem- some issues because of this fear.” high school, they are going to college, to bers and maybe some administrators, but The fear of tackling stories that might work, to war — are they going to grow up the administration is not going to start ask- anger administrators affects the quality of five minutes after graduation?” ing to see the articles before publications,” high school journalism. she said. “That’s not what this is about. The “There’s no doubt in my mind that Finding a forum administration is very supportive of student newspapers after the Hazelwood case became publications.” more conservative and less willing to take After a column in the January 2007 Miles said the district questioned the on the more controversial, sensitive stories,” edition of The Correspondent mentioned an newspaper’s forum status not only for stu- said Hall, the former adviser at Kirkwood incident at another district high school — dent publications, but also for the school High School in Missouri. involving a student ejaculating into a con- grounds and facilities. She said this was to Hall said Hazelwood made teachers and tainer of ranch salad dressing — school ad- emphasize that outside groups do not have students more afraid to challenge the administrators at John Hersey High School in equal access to school property. ministration, which often does not under- Illinois wanted to remove the paper’s state- Ultimately, Levin and her students de- stand the implications of the decision. ment that it was an “open forum.” The inci- cided to remove the words “open forum” “It does not give administrators the right dent was widely reported in the local media from their staff box, while leaving in an ex- to censor anything they want, but some before The Correspondent mentioned it. planation that school officials do not review think it does,” he said. “In fact, if a publica- It is a scenario that high school newspa- any material before publication and that the tion has been operating as a public forum, it pers across the country operating under the student staff determines the content of the doesn’t give the administration the right to Tinker standard dread. paper. Without putting in the exact words, censor at all [under Hazelwood].” “Before Hazelwood, we didn’t need a the masthead still describes the paper as a statement in the paper,” said Janet Levin, The public forum. Coping strategies Correspondent’s adviser for the past 23 years. The students accompanied the new Since the decision, advisers have learned But in a post-Hazelwood world, where masthead with a column detailing the rea- the so-called “forum status” of a student ways to fight and beat censorship resulting sons the paper would continue to operate as from the Hazelwood standards. publication dictates the amount of First an “open forum.” Amendment protection it will receive in a Hall said a good editorial statement Explaining a need to “ensure that the should prevent censorship. legal battle, student journalists and advisers paper’s standards do not decline” or that “the must constantly be mindful of where they “However, a heads-up to the adminis- staff’s journalistic values are not compro- tration about a controversial article might stand. mised,” the August 2007 editorial addresses Student media that can claim “public be wise,” he said. “That doesn’t mean the the question of the public forum status. The administration censors the article, it just forum” (or more accurately, “limited public newspaper “will function as a public forum, forum”) status, expressed in either a writ- means they are made aware of a possible

Winter 2007-08 www.splc.org • splc report 23 HighCOLLEGE School Censorshi CENSORSHIp P sensitive issue.” ists across the country are having currently before they meet with administrators. Another suggestion by a former adviser are a result of young, inexperienced admin- When a new principal enters the school, is to practice good journalism. istrators who have yet to develop faith in the first thing Levin and her students do is “If you don’t want to face problems, students to make sound decisions,” Tantillo ask if he or she believes in censorship. then do a good job of reporting,” said John said. “They probably fear for their own job “They always say no, but it’s hard in Bowen, chairman of JEA’s Scholastic Press security and worry they may lose their posi- practice,” she said. “It’s my job and the stu- Rights Commission and a professor at Kent tions if student media in their buildings are dents’ job to explain to the principal about State’s School of Journalism and Mass Com- allowed to research and write the truth, es- censorship and the role of the student jour- munication. “Do a good job of digging, get pecially about school-related issues.” nalist.” the facts right.” Students can work to calm administra- Finally, if administrators do censor an Still, even with thorough reporting, ad- tors’ fears by meeting with them to discuss article or attempt to change existing poli- ministrators might not trust student jour- the importance of First Amendment rights cies, Bowen said students should go to the nalists. Former Illinois advisor Tantillo said for students, suggests Levin. commercial media and ask the community she thinks new administrators start censor- Levin, who has worked with four prin- to support the students. ship policies or practices out of “fear.” cipals since the Hazelwood decision, said it “Show the public the democratic value “Many of the problems student journal- is important for students to know press law in having students make decisions.” n

From California, Page 21 the physical symptoms of AIDS. Pallakoff In an interview with The Epitaph in the Kathryn Pallakoff learned that a close friend also indicated that the student wanted his days that followed, Warren said he put a hold had recently tested HIV-positive. While she story told. Ferentinos told Pallakoff to tri- on the article because he thought the Court’s helped her friend cope with the revelation, ple-check the story so they could be abso- decision might confer additional responsibil- she saw an important opportunity to edu- lutely sure of its accuracy if the newspaper ity on him to oversee the newspaper. cate other students about the virus. came under fire. “I told (The Epitaph) to hold off on pub- “People were very ignorant about what Pallakoff agreed to hold off a month to lication of that article until I got clarifica- it was and how you contract the virus,” she make absolutely certain the subject of her tion of the decision,” he said. said. “Here was a student that contracted story was HIV-positive. The story, they de- But Calcagno saw the move as prior re- HIV, the point being that it was not some cided, would run in January. straint. distant weird thing happening to other “I was livid,” Calcagno said said. “Not communities. It was happening here.” January 13 only was it a regressive decision, but it was being applied to us. It was such a betrayal.” Elsewhere, the virus had created fear and On Tuesday, Jan. 13, 1988, Ferentinos panic, said Nick Ferentinos, who was then The principal had threatened to suspend learned that a case his journalism class had Pallakoff and Calcagno if they defied him, the newspaper’s adviser. So he decided to let been following, Hazelwood v. Kuhlmeier, had the principal know about the story because Pallakoff recalled. Ferentinos had left the been handed down in Washington, D.C., decision to run the story up to the students, of the sensitive nature of the topic. that morning. The case dramatically expand- Before the paper went to press in No- and they told Warren that they were going to ed a school’s ability to censor many high run the story and accept the consequences. vember for its December edition, Pallakoff school publications. The Court determined and Editor in Chief Mike Calcagno received “I didn’t care about (getting suspended),” that a school-sponsored newspaper that is Pallakoff said. “To me the principle was larg- a visit from district officials. not a public forum could be censored based “They urged the students not to run the er. The issue of protecting free speech was on any “legitimate pedagogical concerns.” not something you backed down about.” story,” Ferentinos said. “They were afraid of Ferentinos, before starting class, peeked repercussions on the campus. … They pre- Within hours, local media had descend- into the principal’s office and told him about ed on the campus to witness the effects of dicted there would be gay-bashing.” the decision. Two hours later, while Ferenti- Warren, in his first year as Homestead’s the decision unfold. As the students braced nos was in the midst of explaining the day’s themselves to go to bat against the principal, principal, also expressed anxiety over the ruling to one of his journalism classes, the story and urged the students not to run it. San Jose Mercury-News reporter Dan Nakaso principal interrupted his class and announced tipped Ferentinos off to a law that suddenly “The principal was concerned there that he would be shelving Pallakoff’s article. might be violence and it didn’t feel to me like gave the students hope. It was the first time in the school’s history The law, California Education Code Sec- that was going to happen,” Pallakoff said. “If that a principal had exercised censorship over anything, I was more concerned there was tion 48907, delegates the responsibility for the paper, Ferentinos said. “assigning and editing the news, editorial, apathy, that people would just not care.” The students were furious and anxious. Ferentinos had some concerns about the and feature content of their publications” The January edition was to go to the printer exclusively to student editors. It also granted story. Pallakoff used a pseudonym to - pro in two days and Pallakoff’s story constituted tect the identity of the student and never freedom of the press to students except for a large chunk of it. material that is “obscene, libelous, or slan- revealed the student’s name to anyone but “At this point, we have about 24 hours her mother. The student claimed to be HIV- derous” or incites a “substantial disruption.” to put this baby to bed,” Ferentinos said. Passed 11 years earlier, it was the first positive but had not yet developed any of “We really didn’t know what to do.”

24 splc report • www.splc.org winter 2007-08 High School CENSORSHIP state law in the nation to specifically protect Pallakoff and Calcagno prepared student journalists. In January 1988, it was to take the newspaper to the press still the only one of its kind on the books. that night. The next day, a special Ferentinos knew of the law but assumed issue of The Epitaph hit the stands the Supreme Court decision had superseded with Pallakoff’s article and an- ac it. In reality, the decision only established companying story that detailed the the minimum rights a school must provide; struggle to get Pallakoff’s piece in states were free to offer broader protections. the paper in the first place. Even with knowledge of the law, the The violence district officials principal held his position, telling the stu- had feared never materialized. That dents that he wanted to get legal advice be- Friday was like any other publishing fore he would lift the ban. day, Ferentinos said. By Wednesday night, Calcagno’s confi- “Students were really avid read- dence was building. Legal experts, including ers of the newspaper,” he said. “When the Courtesy of Nick Ferentinos one from the State Department of Educa- paper came out, the silence on the campus all of his journalism students in press law, tion, reassured him that Hazelwood did not was palpable.” which ultimately appeared to pay off. change California law. Calcagno was relieved and content that “We had a sense of justice and injustice the article had survived the threat of censor- and we took it really seriously,” she said. ‘Ultimate teaching moment’ ship because he viewed the subject as espe- “The issue of free speech was incredibly im- cially relevant to students. portant … and we wanted to make a stand The following morning, Ferentinos “Education about AIDS for a lot of stu- called Mark Goodman, the executive direc- about that.” dents who are just starting out their sexual That year, The Epitaph added the Stu- tor of the Student Press Law Center, who life could be a matter of life or death,” he again confirmed that the California law nul- dent Press Law Center Freedom Award to said. “The HIV story was exactly the sort of its many journalism awards. lifiedHazelwood . story we thought was important to run.” Two hours later, Warren announced he “It’s probably the most important award Pallakoff recalls the tense 48 hours of we ever received,” he said. “It really con- would lift his hold of the article after con- wrangling with the principal as “the ultimate sulting with the chief counsel of the State firmed that we were a champion of student teaching moment.” Ferentinos schooled n Department of Education. press rights.”

HIGH SCHOOL CENSORSHIP In Brief

From High School briefs, Page 18 a settlement in November in its open- former middle school student who was subject to prior review by administra- meeting lawsuit against the Danbury not allowed to pass out anti-abortion tors, faculty or community members.” school board. literature at school. Shortly before the settlement, U.S. In a March 19 closed-door meeting, Michelle Heinkel, then a student at District Court Judge Ricardo Martinez the board heard an appeal from Danbury Cypress Lake Middle School, sued the denied the school’s request to dismiss High School students protesting their district in March 2004, arguing that the the case. He said that while students principal’s decision to pull the Decem- district’s policy on distributing written could not sue the principal for threaten- ber 2006 issue of the student paper from materials — which banned anything ing to read the articles before they were distribution. The Brazosport Facts, a local that included “political, religious or published, exercising prior restraint commercial paper, alleged the meeting organizational symbols” — was uncon- — not letting the students publish a should have been open under Texas law. stitutional. specific, otherwise lawful article — is The district argued the meeting fell under The 11th U.S. Circuit Court of illegal in Washington state. the law’s exception for discussing person- Appeals agreed in an August 2006 rul- Case: Lueneburg v. Everett School Dist. No. nel issues. As part of the settlement, the ing, although it still allowed the school 2, 2007 Westlaw 2069859, (W.D.Wash. district gave The Facts a recording of the to bar Heinkel’s literature based on July 13, 2007). meeting, which the paper posted online. officials’ judgment that it would cause a substantial disruption. Board must pay legal A federal district court in Septem- Newspaper settles ber ordered the school board to pay open-meeting suit costs for student who Heinkel’s attorneys’ fees and expenses of about $108,000. against school board fought leaflet policy Case: Heinkel v. Sch. Bd. of Lee County, FLORIDA No. 04-184, 2007 WL 2767366 (M.D. TEXAS — A Texas newspaper reached — The Lee County school board must pay attorneys’ fees to a Fla. Sept. 20, 2007).

Winter 2007-08 www.splc.org • splc report 25 High School Censorship A different path Hazelwood expanded principals’ authority to censor — but not all school leaders choose to exercise the power

By Casey Wooten ing faculty to receive training in First Amendment law. hen Nelson Beaudoin became “One of the things that principal of Kennebunk High we have really focused on is School in Kennebunk, Maine, the parallel tracks of freedom Wseven years ago, he said students thought of the press and teaching his philosophy about free speech was novel, journalistic ethics,” McClos- even a bit strange. But within a few years, key said. “We gradually sort the school had started a student newspaper of withdrew adult supervi- and a student senate, and Beaudoin had de- sion.” veloped a reputation as one of its most ap- Even before working with proachable administrators. First Amendment Schools, With the help of a grant from the Nash- Beaudoin had taken prior re- ville-based First Amendment Center, Beau- view of the school’s newspa- doin created an example of the benefits of per off the table. school policies that advocate free speech. “We’ve been able to walk Beaudoin and principals like him repre- that balance between things sent an often-overlooked group — adminis- being so sterile that nobody trators who choose to reject the power they wants to read them and things could exercise under Hazelwood. being so outrageous that it creates all sorts of The survey showed that each student “I think it’s much easier to have the controversy,” he said. who attended the dance knew at least one kids view you as someone who understands Sometimes, Beaudoin said, the newspa- person who was there intoxicated. them and listens to them, and cares about per staff will come to him with a “red flag” “Obviously putting that in the newspa- what they think,” Beaudoin said. issue, to give him a heads-up on an upcom- per creates a funny world for the high school Aside from being a principal, Beaudoin ing controversial story. principal,” Beaudoin said. “But at the same is a well-known education consultant and “I’m not somebody who is big into pro- time, not putting it in would be a funnier author of several books on education reform test,” Beaudoin said. “I’m more into com- world.” and student speech. promise. A lot of time controversies happen Newspaper staffers at Kennebunk High About four years ago, Beaudoin’s school in school when people draw lines, as op- say they appreciate the trust Beaudoin puts received a grant through the First Amend- posed to communicating well.” in them. ment Center. The group was expanding its From his early years as a basketball “We’re really in a great position in that, First Amendment Schools project, and Ken- coach, Beaudoin says his experience as an pretty much, as long as we have some kind of nebunk High School was among five schools educator has shown him the value in sup- journalistic purpose we really can write just added to the inaugural class of 11 in May porting student speech. Involving his play- about anything we want,” said Ben Good- The Rampage 2004, receiving $12,000 a year for three ers in the decision-making process led them man, managing editor of . years to support free-speech initiatives. to play more inspired, Beaudoin said. “Certainly any red flags the adviser or the ed- “Our premise is that everyone may be “I’ve found it worked — the more I gave itorial boards find, we run by school admin- born with their inherent rights, but we are kids responsibility, the more they participat- istration, and they’ll give us their input.” not born with knowing how to use them,” ed,” Beaudoin said. Goodman said when the newspaper said Molly McCloskey, project director of When Kennebunk’s student paper, The went to the administration with the alco- First Amendment Schools. Rampage, published a survey in September hol survey, administrators told him that al- To date, almost 100 institutions official- about students drinking at a recent dance, though they had doubts it was accurate, “we ly have adopted the program’s philosophy; Beaudoin didn’t object. Beaudoin had faith are not going to tell you not to publish it.” The Rampage the program is directly working with 17 in his students’ judgment. Molly Pierce, ’s adviser, schools from California to New York. “They did a very responsible thing,” came to Kennebunk High School six years McCloskey said the program fosters a vi- Beaudoin said. “They put in a qualifier in ago with no intention of teaching another brant press at its schools. Some funding the there saying that this is a survey of only 44 journalism class. initial schools received was put toward buy- kids out of 80. They said it wasn’t a scientific After teaching journalism at two schools ing newsroom equipment, as well as send- survey.” in Colorado — one of seven states protected

26 splc report • www.splc.org winter 2007-08 High School Censorship by student free-expression laws — Pierce was “They will know these laws — Hazel- free speech in their schools. nervous, concerned that there might not be wood, Tinker — and now the more current Started in May 2007, the inaugural enough freedom to run the paper properly. laws that are coming out, in terms of Morse members of the Principal’s Coalition for the When she got to Kennebunk High School, v. Frederick,” Clark said. “They’ll know these First Amendment are educators who took the newspaper had been dormant for several laws. They understand, they’ve been through Ball State’s graduate course in free-speech years. After a year of teaching, the rest of them and they’ve lived it.” law for principals and administrators. the English department convinced Pierce to Alan Weintraut, adviser to Annandale The course is designed to help - educa start publishing the paper again. High School’s award-winning newspaper, tors see the benefits of student speech on Pierce said Beaudoin’s commitment to a A-Blast, said he feels fortunate his school has campus, as well as familiarize them with the free student press helped grow the newspa- always been one where the paper can oper- complexities of cases such as Hazelwood. per into the popular class it is today. ate free of prior review or censorship. “One of the goals is to better educate “I feel that Nelson has our back 100 Weintraut, who has been advising at the administrators and principals about the law, percent,” Pierce said. Annandale, Va. school for seven years, has to point out that the First Amendment can never worked under prior review and said he be an asset for the administrator, not some- In the hot seat has told all three principals he has worked thing that’s a yoke around your neck,” Wat- for that he never will. son said. “The main goal is to familiarize Some principals have come under fire Weintraut said administrators often administrators about what Hazelwood does from their supervisors, and occasionally invoke Hazelwood because they fear their and doesn’t do, and the other cases that cre- their communities, for protecting the stu- schools could be sued over articles published ate this labyrinth of legality.” dent press. in a student newspaper. Watson said he hopes the coalition will In December 2005, the quiet, mid-west- “We are living in an age of increasing extend the philosophy behind Ball State’s ern town of Columbus, Ind., was thrust into accountability and authority in the school, course into more high schools. By connect- the media spotlight when Columbus North and that has to be vested with a person — ing like-minded administrators, Watson High School’s The Triangle published an ar- the principal,” Weintraut said. “It’s just one said the coalition will create examples other ticle about the dangers of oral sex. News- more task that is added to the very long list principals can follow. paper staffers had gone to the principal, of school activities that the principal feels “We saw the potential for the develop- David Clark, to alert him about it. Clark, that he is empowered to govern.” ment of the organization, a group of people impressed with the quality of the article, did But liability does not extend as far as who could then showcase best practices and not object to running it. some principals imagine, said Mike Hies- model principles, showing a lot of good “I went out on a limb and I trusted that tand, legal consultant to the Student Press things about principals who exhibit strong what they were doing was right, this was Law Center. Hiestand said there has been no support of the First Amendment in the gov- something that needed to be heard,” Clark published court decision in which a school erning of their schools,” Watson said. said. district has ever been held liable for material Others have seen the value in reaching After the story ran, members of the published in student media. Some are sued, out to educators who want to shed Hazel- community complained about the piece, but Hiestand said it happens rarely, and most wood’s legacy. In October 2007, the Mc- with several calling for Clark’s resignation. cases are settled before they go anywhere. Cormick Tribune Foundation announced a The district’s administration was at odds “If you want to eliminate a liability at $40,000 grant to help the coalition to de- with Clark as well as the students, but Clark your school, get rid of your football team,” velop its ideas. stood by his decision to let the story run. Hiestand said. For student journalists who work with The incident eventually gained the at- administrators sympathetic to a free press, tention of national media. Like-minded principals the experience can leave them with a bet- “It got to be a circus as far as I was con- ter sense of civic duty and appreciation for cerned,” Clark said. “There were calls from Warren Watson, director of J-IDEAS, a the Constitution. The classic mindset of the the O’Reilly Factor, calls from Geraldo, they program at Ball State University dedicated educator lends itself to viewing the student wanted me to appear on their show and to advancing high school journalism, said as someone whose opinions need to be tem- debate their subject. My response to those interacting directly with principals on First pered by a higher authority, Beaudoin said. guys was, ‘No, that’s not what this is about, Amendment issues may be one of the best But Beaudoin thinks differently. this is about my students.’” ways to keep censorship — and Hazelwood “We go into education thinking that we For tenaciously backing The Triangle’s — out of high school newsrooms. are going to help kids, help them develop piece, the Newseum, Student Press Law “We can reach a higher level of First and improve,” Beaudoin said. “Yet there is Center and National Scholastic Press As- Amendment awareness not just by talking something in us that subconsciously wants sociation gave Clark a Courage in Student to advisers, but by working with principals to keep them incapable and quiet and silent. Journalism Award in 2006. and administrators to set a good environ- “I don’t know why that happens in edu- Over time, the public’s attention moved ment where the First Amendment is en- cation, but I think it’s kind of a subconscious elsewhere. But in retrospect, Clark said the couraged,” Watson said. thing. It makes teachers and educators feel experience benefited his students. The news- Watson and the rest of the staff at J- needed, and I think we need to believe that paper’s staff in particular, he says, got a first- IDEAS recently created a program to help kids are capable and thoughtful and help hand lesson on the First Amendment. educate and encourage principals to support them when they stumble.” n

Winter 2007-08 www.splc.org • splc report 27 Campus Crime Safety alerts go high-tech

By Casey Wooten versus accuracy, and some say adequate investigation is needed before students can be he text message to students read: informed. “From Public Safety. Male was found Douglas Tuttle, an instructor and policy on campus with rifle. Please stay in scientist at the University of Delaware and a Tyour buildings until further notice. He is in Clery Act expert, said the majority of cam- custody, but please wait until the all clear.” pus crime investigations need time before In late September, a student, armed with any useful information can be given. a rifle, walked onto the campus of St. John’s “One of the challenges with the crimi- University in New York. Later identified nal incidents is that oftentimes there needs by police as Omesh Hiraman, the man was to be some amount of investigation before spotted by student police cadet Chris Ben- you know what really went on,” Tuttle said. son. As Benson and campus police officers “It’s hard to give meaningful warning if you were subduing Hiraman, Benson felt his cell don’t think you understand what went on. phone vibrate; it was the text message from Crimes are often reported incorrectly by the the university warning him of the gunman person who calls on the outset.” on campus, he later told reporters. In most cases, Tuttle said, he believes an The same month, at the University of informative report by the next business day Wisconsin at Madison, a suicidal gunman experts say the acceptable amount of time for a university to give warning might be is adequate. For more serious crimes, or if came onto campus. Part of the university’s a danger is still posed to the campus, that efforts to alert the public included a $100 ad shrinking. Others say new systems may improve compliance, but the effect will not time may shorten, Tuttle said. placed on UW-Madison’s Facebook network “Frankly, the more serious the crime or warning students of the danger. Students set a new standard for the largely nebulous “timely warning” requirement. outrageous the behavior that goes on, the who clicked on the ad were brought to the easier it is to figure out what you need to tell school’s Web page, which provided-up-to- No definite timeframe people,” Tuttle said. “The majority of crime the-minute information about the incident. on campus is more complex.” Both incidents ended with no one hurt, With the law stating only that “reports According to Security on Campus, in but in the wake of April’s shootings at Vir- shall be provided to students and employees the nearly two decades since the Clery Act’s ginia Tech, public and private universities in a manner that is timely and that will aid passage, the Department of Education has are investing in technology to better dissem- in the prevention of similar occurrences,” ruled that five schools failed to tell the pub- inate information about campus security. experts say what is timely warning under lic about a crime on campus in a timely Mass text-messaging and e-mail, flat-panel the Clery Act is mostly subjective. The act manner. televisions displaying campus information does not give a finite window for a universi- The latest timely warning violation oc- and partnerships with social networking ty to report a crime on campus. That deter- curred at Eastern Michigan University, sites such as Facebook are popping up on mination is left to the U.S. Department of where the Department of Education found campuses across the country. Education, which, after a complaint is filed, the university failed to meet federal safety Since the passage of the 1990 Campus decides whether the school gave adequate standards after 22-year-old Laura Dickinson Security Act, all universities that receive notice and issues any penalties. If a school is was discovered murdered in her dormitory federal funding have been required to is- found not to have given timely warning, it room in 2006. sue alerts in a timely manner on all crimes could be fined up to $27,500. The school issued a release the day after that pose a serious, ongoing threat to the Catherine Bath, vice president of Secu- the body was found but stated there was “no campus community. The act was amended rity on Campus, a Pennsylvania-based group reason to suspect foul play.” Later releases in 1998 and renamed the Clery Act, after that promotes Clery Act compliance, said did not inform the public that police were Jeanne Clery, a Lehigh University student she would want administrators to warn stu- investigating Dickinson’s death as a murder. murdered in her dormitory in 1986. dents sbout serious crimes immediately. Ten weeks after the body was found, police Student newspapers rely on the infor- Realistically, though, it takes a little lon- arrested another student, charging him in mation guaranteed under the Clery Act to ger, Bath said. Dickinson’s killing. report campus crime. In addition to giving “I would say within 30 minutes of the In an 18-page report issued in July, the timely warning, schools must maintain a discovery of the crime,” Bath said. Education Department said, “EMU’s failure daily police log and publish an annual sta- Few experts can agree on what is an ac- to issue a ‘timely warning’ concerning the tistical report of incidents on campus. ceptable length of time for a university to re- death of this student is exacerbated by its With technology changing how uni- port campus crime. It is a function of speed issuance of contradictory published state- versities comply with the Clery Act, some

28 splc report • www.splc.org winter 2007-08 Campus Crime ments, which publicly claimed that a crime ing, e-mail, digital signage and Web-based for example,” Janosik said. “Whether or not had not occurred.” methods of informing the student body that causes an individual administrator or In the report’s aftermath, EMU’s board about events on campus. When the compa- an institution to become liable for failing to of regents fired the school’s president. The ny launched its product in 2003, it had seven act responsibly remains to be seen.” board also chose to accept the resignations customers. Today, the company has installed The DOE is tight-lipped about its deci- of the university’s vice president of student its system on close to 300 campuses. sion-making process when it comes to time- affairs and the director of the school’s- de Clery Act compliance plays an impor- ly warning. Education department spokes- partment of public safety. Both administra- tant role in his business model, said Ara woman Stephanie Babyak said only that tors were involved in the investigation into Bagdasarian, president and co-founder of while the DOE could not require schools to Dickinson’s death. The ousted president is Omnilert. Bagdasarian said he was motivat- adopt any new security technology, it cer- suing the university and the board of reed to develop a better way to warn students tainly encourages them to do so. gents, claiming his firing was an attempt to of danger when he read about the Clery silence his criticisms of some in the univer- Act’s namesake. Technology not a panacea sity’s administration. “The idea was sparked in 2003 when I The Department of Education’s final was actually reading an article about Jeanne Janosik said despite new systems that report, issued in November, concluded that Clery,” Bagdasarian said. “It immediately make communicating with students easier, the school did violate the Clery Act. The made sense that students carried phones; students and faculty cannot expect them to Department has not yet determined how or why not use mobile phones and text mes- flawlessly deliver information to every per- whether to punish the university. saging as a means to communicate to stu- son. Technology has its limits and is only as dents to prevent another Jeanne Clery-type helpful at the people using it, Janosik said. Raising the bar situation.” “I do think that all of the technology Bath said such systems help get infor- that is available today will certainly create College students are no strangers to us- mation out quickly not only to students but the expectation that students, staff and facing the Internet or cell phones, so it is no to media outlets as well. ulty on campuses are notified more quickly,” surprise they would adopt the new warning “The fallout is that reporters are get- Janosik said. “But I think that it is going systems so quickly, Tuttle said. ting hold of it right away, so now incidents to be important for everyone to remember Tuttle said with the new technology that we wouldn’t have heard of in the past that despite all of these advances and con- comes a higher expectation among students — not only are they warning their campus veniences in technology, that none of them and faculty that they will learn about inci- effectively and in a timely fashion, but the will really guarantee that everyone get noti- dents quickly. world knows,” Bath said. “So no longer are fied in a timely manner.” “Over time I think it will have the ef- they keeping their campus in the dark, but Technology does not replace human fect of raising the bar,” said Tuttle. “But, it the rest of the world is also not being in the judgment, and even the latest systems still will also focus some more attention on the dark.” have the potential to fail, Janosik said. importance of having a policy that lays out Within a few years, the influence new “We’ve been though two serious emer- how these decisions are made.” technology will have on the DOE’s deci- gencies at Virginia Tech, and the thing that Tuttle said in the past many universities sion-making will be better understood, I’ve noticed is that e-mail starts to slow down had not laid out a plan to warn the entire Bath said. After more timely warning cases due to the tremendous traffic though the campus of impending danger. are reviewed by the Education Department, Internet systems,” Janosik said. “Whether “They’ve never really thought ‘how can universities will be able to better gauge what you are using a cell phone or a land line, the we really provide a timely warning?’ ‘What is an acceptable amount of time to inform circuits get so overloaded that being able to is timely?’ ‘Who needs to be the decision students of a crime. get though to people becomes much more makers?”’ Tuttle said. “I think that there will be tighter stan- difficult in times of emergencies.” Tuttle said mass e-mail or text messag- dards,” Bath said. “And sometimes when it Janosik said universities also might not ing might be the most efficient way to in- is not specified in the law, when the Depart- be able to reach students via cell phone form a tech-savvy student body about cam- ment of Education starts making rulings when they are in class, as many professors pus crime. about the timely warnings, they kind of set ask students turn them off while they are “There is nothing in the [Clery] Act that a precedent that people find out about and teaching. mandates how a school elects to provide the start following.” Despite possible shortcomings, Janosik warnings. There’s always been a great deal Stephen Janosik, associate professor at said he is optimistic about the potential for of flexibility, but I think now that there are Virginia Tech and co-author of a number of new systems to continue to drive the im- several providers of, let’s say, e-mail or text studies on the Clery Act, agrees timely warn- provements to campus security the Clery messaging systems, if you want to reach stu- ing might be on the verge of a change, but he Act started 18 years ago. dents, I thinks it’s the best way to do it,” said he does not know if that will influence “While a lot of people have these com- Tuttle said. how the DOE interprets “timely warning.” munication devices and use them frequently, Leesburg, Va.-based Omnilert is one of “I think there’s an evolving standard, technology is not going to be a silver bullet the leading companies offering mass com- and I can see that day certainly where be- with respect to timely notice,” Janosik said. munication systems for schools. Omnilert’s ing able to alert people by e-mail or by cell “But it certainly will be better than anything product, e2campus, combines text messag- phone will become the industry standard, else we’ve had before.” n

Winter 2007-08 www.splc.org • splc report 29 Internet Digital divide

They share a nickname and news stories, but a hiring dispute has called into question who controls a student paper’s Web site

He asserts the editor in chief should y oriah alingit B M B have control over all newspaper content ormer editor in chief Jenny Redden of that appears on the Web site, but content Oklahoma State University’s student that does not appear in the newspaper — The public face of it is that it’s the newspaper, The Daily O’Collegian, al- such as blogs and videos — should be the same organization … The editorial Fways thought of the newspaper and its Web content should come from the editor purview of the Web editor. counterpart, ocolly.com, as one and the “The editors claim that they should of the newspaper.” “ Joey Senat same. have jurisdiction, editorial rights over of all Oklahoma State journalism professor But in November, when general manag- material that doesn’t appear in the newspa- er and Web site adviser Fritz Wirt allowed per,” he said. “The bylaws don’t allow it.” an employee that Redden had recently fired Until now, Wirt hired the Web editor, co-equal Web and print editors. to write for the Web site over Redden’s ob- whose only job was to copy and paste stories “I don’t know of any executive editor jections, this notion was shaken. from the newspaper onto the Web site, Red- who would stand for having the Web site “His justification for this move is that den said. being co-equal in power,” he said. “That the Web site and the print publication are “All he did was load the stories we had doesn’t seem to be the norm in the industry different publications,” said Redden, a for- already created,” Redden said. “He was not and it still defies a lot of logic for the set up mer Student Press Law Center intern. making editorial decisions.” down here.” As a result of Wirt’s move, the newsroom Redden said that past editors oversaw Senat noted that the O’Collegian’s mis- stopped providing content to the Web site in some non-newspaper content, like Web vid- sion statement seems to indicate that the protest. As of Nov. 9, ocolly.com has featured eos that accompanied print news stories. Web site and the newspaper were intended content from the Associated Press and other But Wirt said a web editor would be bet- to be seen as one publication. college newspapers. The newspaper is still ter suited to manage exclusively Web mate- The mission statement reads: “It is the accessible on ocolly.com, but readers must rial. The editor in chief position already re- mission of The Daily O’Collegian, with its download the entire paper in a PDF file. quires 25 to 40 hours a week, he said, and a printed and Internet editions, to persevere The paper and the Web site are owned Web editor would have to possess skills that as the definitive source and distribution ve- by The O’Collegian Publishing Company, an editor in chief might lack. hicle for campus news …” whose board oversees the finances of both. “It seems to me that either broadcast “Up until this point, I don’t know of The fissure has caused the university’s majors, PR majors and broadcast photogra- anyone who would have said the Web site is Board of Student Publications, which over- phy majors would have more training and a separate entity,” he said. “The public face sees student media at the university, to re- time to spend 25 or more hours on the Web of it is that it’s the same organization … The examine the relationship between the news- site,” he said. editorial content should come from the edi- paper and its Web site. Redden said time would not be an issue. tor of the newspaper.” Redden appealed to the board to estab- “I don’t really think it would create so Redden said ideally there would be a lish a policy formally defining the relation- much extra work that it would make it un- Web editor who was not co-equal, but on ship between the paper and the Web site to feasible,” she said. the same level as a managing editor. help resolve the dispute. But when the board She also said that having two editors “I recognize the Web is important,” she failed to act, Redden pulled the newspaper would not solve personnel conflicts like the said. “But in the end you need one boss to content from the Web site. one that arose between her and Wirt. call the shots.” While Wirt and Redden remain at log- “That still doesn’t solve the personnel is- Rhiannon Mako will succeed Redden in gerheads, the board has created a committee sue because if one person was fired by the January and plans to continue to withhold that will recommend a policy to define in the newsroom they could still be rehired by the the newspaper’s content from the Web site bylaws how the Web site and the newspaper Web,” she said. until the board clarifies its policy regarding would operate in relation to each other. Joey Senat, an associate journalism pro- hiring practices for the newspaper. She said As of now, Wirt said there are no bylaws fessor at Oklahoma State, agreed with Red- if the board declares the Web site a seperate that define who has editorial control over den and said that the two largest newspa- publication, she will explore the possibility the Web site, and he challenged the assump- pers in the state — The Daily Oklahoman of charging the Web site to host O’Collegian tion that it should be the editor in chief. and the Tulsa World — did not operate with content. n

30 splc report • www.splc.org Winter 2007-08 Internet In Brief

all of its costs with advertising revenue, ing. A portion of the act reads, “It is the Both sides to appeal but the college had been picking up the sense of Congress that no student ... on in case over mock remainder of the tab, about $30,000 to the basis of participation in protected $50,000 a year, since the paper ceased to speech or protected association” should profile of principal be a class-produced publication in 2003. be punished. PENNSYLVANIA — Both Hermit- After Professor William Babcock, But Mike Hiestand, legal consultant age School District and former student who was then chairman of the journal- to the Student Press Law Center, said Justin Layshock will file appeals in a ism department, protested the pro- that because the free-speech provision is case where the court ruled the district posal, he was removed from his post as prefaced with the phrase “sense of Con- violated Layshock’s rights by punishing chairman, although he remains on the gress,” it is not enforceable as law. him for creating a mock MySpace page journalism department’s faculty. While Key’s complaint also alleges a breach of his principal. Babcock insists it was the controversy of contract because Key said he was In July, the U.S. District Court of around the proposal that led to his de- induced to come to Regent based on Western Pennsylvania ruled the school motion, the university maintained that promotional material that boasted of district violated Layshock’s First Amend- other factors, such as the department’s the school’s defense of religious liberties. ment rights when it suspended him for failure to receive accreditation, contrib- Since he termed the posting of the pho- 10 days and transferred him out of his uted to his removal. tograph religious speech, he said his right school to an alternative program as pun- Newspaper staffers also were opposed to post the photo should be protected. ishment for the mock MySpace profile to the idea, saying that an online publi- Case: Key v. Robertson, No. 07-04060 he created. Specifically, the judge ruled cation was not feasible because online ad (S.D. Tex. filed Nov. 29, 2007). that the punishment was unconstitution- revenue accounts for less than a percent al because Layshock created the profile of their total ad revenue. Others argued Court rules against off school grounds and the profile did that any changes should be approved by not cause a “substantial disruption,” even students on the newspaper staff. student who called when accessed on campus. However, the As of December, no feasibility study officials ‘douchebags’ judge disagreed with Layshock’s conten- has been conducted and the paper tion that the policy that he was punished remains in its current format. CONNECTICUT — A high school under was unconstitutionally broad and student’s bid to regain her class office that the district’s actions violated his Student who posted after she was barred from running after parents’ due process rights. calling administrators “douchebags” on The parties filed their notices of -ap picture of Robertson her blog was denied Aug. 31. peal in late November. online sues Regent Avery Doninger, now a senior at Case: Layshock v. Hermitage School Dist., Lewis S. Mills High School, sued the 496 F.Supp.2d 587 (W.D.Pa. 2007), TEXAS — A former student at Regent school district in the U.S. District Court certificate of appealability denied at 2007 University School of Law filed suit Nov. in New Haven in July, claiming that WL 3120192 (W.D.Pa. Oct. 23, 2007). 29 against the university, claiming that administrators violated her First Amend- it violated his rights when it punished ment rights by punishing her for speech him for posting on Facebook a freeze- that originated off-campus. Official’s proposal frame shot of university president Pat Doninger was barred from running to end print version Robertson scratching his face with his for re-election as class secretary last middle finger on television. spring after writing “vulgar” comments worries paper’s staff Adam Key, who was a first-year law about school administrators on livejour- CALIFORNIA — A dean at California student at the private Virginia Beach, nal.com. Although her name was not on State University at Long Beach proposed Va.-based university, was threatened the ballot, she won the election through converting the student newspaper, with disciplinary sanctions and then write-in votes. But she was not allowed the Daily 49er, into an online-only suspended indefinitely because officials to take office. The injunction she was publication in September, causing an said he brought a gun to campus. seeking would have compelled adminis- uproar among faculty members and the Key maintains he never brought trators to hold new elections and allow newspaper staff and possibly resulting in a gun to campus and that Regent was her to run for class secretary. the unseating of the journalism depart- punishing him for the online photo. Doninger appealed her case to the ment’s chairman. Key now resides in Spring, Texas, 2nd U.S. Circuit Court of Appeals, Gerry Riposa, dean of the Col- and filed his suit in the U.S. District and the case will be heard sometime in lege of Liberal Arts, proposed hiring a Court in Houston. The case might mark January, according to her attorney, Jon consultant to explore the feasibility of the first time a student has made a First L. Schoenhorn. the plan after announcing that he was Amendment claim based on the Higher Case: Doninger v. Niehoff, 514 F.Supp.2d pulling the college’s subsidies from the Education Act, a federal law that applies 199 (S.D. Conn. 2007) (denying prelim- newspaper. The newspaper covers nearly to all schools that receive federal fund- inary injunction).

Winter 2007-08 www.splc.org • splc report 31 LEGAL ANALYSIS Hazelwood School District v. Kuhlmeier The Supreme Court decision, its aftermath and what it means for student media 20 years later

By Mike Hiestand What the Decision Says Note to students n January 1988, the United States Su- Hazelwood School District v. Kuhlmeier at private schools preme Court handed down its opinion in was decided on January 13, 1988. The 5- 1 Hazelwood School District v. Kuhlmeier. 3 vote reversed the decision of the U.S. Because the First Amendment IThe decision upheld the authority of pub- Court of Appeals for the Eighth Circuit in only protects against the actions lic high school administrators at Hazelwood St. Louis, which had upheld the rights of of government officials, and the East High School in suburban St. Louis, the students. Justice Byron White wrote the Hazelwood case only dealt with Mo., to censor stories concerning teen preg- Court’s majority opinion, which was joined First Amendment rights, private nancy and the effects of divorce on children by Justices Rehnquist, Stevens, O’Connor school students are not legally af- from a school-sponsored student newspaper. and Scalia. Justice William Brennan filed a fected by the decision. They must Hazelwood was in dramatic contrast dissenting opinion that was joined by Jus- rely on school policies or state to court decisions from across the country tices Marshall and Blackmun.2 law to protect their free expres- handed down over the previous two decades Justice White began by noting that the sion rights. For more information, that had given student journalists extensive rights of students in public schools are not see the SPLC’s Legal Guide for First Amendment protections. necessarily the same as those of adults in the Private School Press.46 Although the Supreme Court was only other settings. White also pointed to a stu- dealing with a student newspaper in Hazel- dent speech decision the Court had handed wood, all public high school student news down two years earlier, Bethel School District gal standard. and information media have been affected. No. 403 v. Fraser, 3 where it found that even From that point on, the Court said, a Student newspapers, yearbooks and literary within the school, a student’s First Amend- new — and less protective — First Amend- magazines as well as online student media ment rights could vary depending on the ment test could be used to analyze admin- and non-broadcast radio and TV programs type of expression involved and where and istrative censorship of school-sponsored can use the information in this guide. how it took place. speech that occurred in a non-public fo- Probably the most significant aspect of In Hazelwood, the Court found that rum. Henceforth, the Court said, school the decision was the emphasis it placed on the Spectrum, the student newspaper at officials could censor such speech if they determining whether a student publication Hazelwood East High School, which was could show it was “reasonably related to is or is not a “public forum” for student ex- produced as part of a journalism class, was legitimate pedagogical concerns.”6 In other pression. not a “forum for public expression” by stu- words, if a school could present a reasonable As a growing number of lower court dents.4 Therefore, the Court held that the educational justification for its censorship, cases have confirmed, student media that school was not required to follow the stan- it would be allowed. qualify as public forums receive greater First dard established in Tinker v. Des Moines Applying its new standard, the Court Amendment protection than non-public fo- Independent Community School District,5 a found that the principal at Hazelwood East rum student media and are not subject to 1969 Supreme Court case that struck down had acted lawfully in censoring the newspa- Hazelwood’s censorship standards. The de- as unconstitutional a school’s suspension per. The Court found that it was “not unrea- termination of forum status may not always of students who had worn black armbands sonable” for the principal to have concluded be clear, but this guide points out the factors to protest the Vietnam War. In Tinker, the that “frank talk” by students about their that a court is likely to consider. Court said school officials could only limit sexual history and use of birth control, even Recent court decisions have also helped student speech when they could demon- though the comments were not graphic, was to more clearly define what types of admin- strate that it would cause a material and “inappropriate in a school-sponsored pub- istrative censorship Hazelwood allows and substantial disruption of school activities or lication distributed to 14-year-old fresh- what types it does not. While the Hazelwood an invasion of the rights of others. men....”7 standard remains far from clear, these cases The Hazelwood majority noted that In his sharp dissent, Justice Brennan said provide some useful guidance about where unlike the school-sponsored Spectrum, he found the newspaper at Hazelwood East the outer boundaries lie. however, the armbands worn by the Tin- to be a “forum established to give students Please note one thing above all else: All ker students constituted independent, an opportunity to express their views....”8 public high school students still have im- non-school-sponsored student speech. This He said the Court should have applied the portant First Amendment protections that distinction between school-sponsored and Tinker standard. Brennan said the censor- limit the ability of school officials to restrict non-school-sponsored student speech was ship “aptly illustrates how readily school what students publish or to punish them one that the Court had not directly made officials (and courts) can camouflage view- for what they say or write. Public school of- before. TheHazelwood Court went on to say point discrimination as the ‘mere’ protec- ficials — no matter what they may say or that a different category of student speech tion of students from sensitive topics.”9 think — do not have an unlimited license allowed for the application of a different le- “Such unthinking contempt for indi- to censor.

32 splc report • www.splc.org winter 2007-08 Legal Analysis vidual rights is intolerable from any state official,” Brennan continued. “It is particu- larly insidious from one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guar- antees.”10 What the Decision Means TheHazelwood decision struck a serious blow to scholastic journalism. The Court significantly cut back the First Amendment protections public high school students had been afforded for years. At some schools, censorship has become standard operating procedure; at any school it remains an ever- present threat. In 1974, the report of the Commission of Inquiry into High School Journalism, titled Captive Voices, made some significant findings. “Censorship is the fundamental cause of the triviality, innocuousness and uniformity that characterize the high school press,” the report said. “Where a free, vigorous student press does exist, there is a healthy ferment of ideas and opinions with no indication of disruption or negative side effects on the educational experience of the school.”11 If a free student press encourages active learning and civic participation by students, as Captive Voices found, Hazelwood was clearly a step backward and the decision, which one commentator has described as a potential “censorship tsunami,”12 has been roundly criticized by journalism education groups. While it is impossible to sugarcoat the negative impact Hazelwood has had on student media, the Court left some important safeguards against censorship intact. The following discussion will address those and other common questions raised by the decision. sored student media that are (2) not public outside of school — such as off-campus e- Does Hazelwood apply only to the forums for expression by students. Cur- mail, a private Web site or social networking student news media? ricular and extracurricular student media site, or a flier for a non-school organization that qualify as public forums, as well as published and distributed outside of school No. Any curricular, non-forum student independently produced (non-school-spon- — is not subject to Hazelwood’s restrictions. activity that involves student expression is af- sored) “underground” student publications Except in extraordinary cases, such expres- fected. The Court specifically mentioned the- — even if distributed on school grounds sive activity retains the highest level of First atrical productions, and over the years lower — still retain much stronger First Amend- Amendment protection and school admin- courts have cited Hazelwood in cases involv- ment protections.14 istrators will generally have no authority to ing other student activities such as art shows, restrict such content or punish students in- 13 debates and academic presentations. Does Hazelwood apply to volved. Of course, as always, students remain off-campus, private expression? responsible for everything they publish and Does Hazelwood apply to all high can be held liable if they commit libel, invade school student media? No. Hazelwood only applies to school- another’s legal right to privacy or engage in sponsored student expression. Independent some other unlawful speech or activity.15 No. It only applies to: (1) school-spon- student speech that takes place entirely

Winter 2007-08 www.splc.org • splc report 33 Legal Analysis

What is “school-sponsored”? the government can demonstrate a reason- of forum analysis. As one court has said, able need to restrict free speech activities. “Whether a school newspaper is a ‘public The Court’s opinion mentions three dif- forum’ can be determinative of whether at- ferent criteria that it might look to in deter- What is the difference between tempts to limit or control the expressional mining if a publication is school-sponsored an “open public forum,” activities undertaken by the newspaper vio- and thus covered by the Hazelwood decision: a “designated public forum” late constitutional rights.”22 (1) Is it supervised by a faculty member? (2) Was the publication designed to impart and a “non-public forum”? What are the factors used to particular knowledge or skills to student Courts analyzing the constitutionality determine the forum status of participants or audiences? and (3) Does the of administrative censorship of public high student media? publication use the school’s name or resourc- 16 school student media first look to determine es? Even a student media organization that whether the media at issue is: (1) a tradition- A designated or limited public forum is receives no direct funding from the school al, open public forum, (2) a “designated” or created when school officials have “by policy could be “school-sponsored” if it has a facul- “limited” public forum or (3) a non-public or practice” opened student media for stu- ty adviser, uses school equipment or facilities forum.21 dents to express themselves freely. In Hazel- or is produced in relationship to a class. In open public forums, such as streets, wood, the Court majority said it believed the adviser to the newspaper had acted as “the Are all school-sponsored student sidewalks or a town square, the government must accommodate virtually all speakers. final authority with respect to almost every media covered by Hazelwood? “Designated” public forums (also called aspect of the production and publication... including its content.”23 (The dissenting jus- No. At least one federal court has found “limited” public forums), meanwhile, have tices said they thought the facts indicated that school-sponsored student publications not historically been open to the general otherwise.) That finding by the majority, produced as part of a class can still be pub- public but are considered to occupy a middle combined with the fact that the school nev- lic forums where student editors have been ground because the government has opened er explicitly labeled the student newspaper allowed control over the publication’s con- the forum for a specific expressive purpose as a “forum” in its written policies or gave tent.17 or for free speech use by a specific group of people (such as student journalists working other explicit evidence of an intent to des- Does the decision apply to on a public high school newspaper). Speak- ignate the newspaper as a forum, prompted student media produced in an ers using such forums in their designated the Court to say a forum did not exist. In fact, Hazelwood was the first case to extracurricular activity? manner are entitled to the same strong First Amendment protections as speakers in a tra- find that a particular student newspaper did It is unclear. In at least two federal court ditional, open public forum. not constitute a forum for student expres- cases, judges have said that extracurricular Non-public forums have not been sion, and the Court indicated that had stu- student media may be beyond Hazelwood ‘s opened to the public, and speakers in such dent editors been given final authority over reach.18 However, at least one court has said forums receive the least First Amendment content or had the school explicitly desig- that even an extracurricular publication can protection. Because non-student members nated Spectrum as a public forum for stu- of the general public are generally not per- dent expression, the result in the case would be covered by Hazelwood if under faculty 24 supervision and intended to impart particu- mitted to use a student publication to pub- likely have been different. lar skills to the student participants.19 lish anything they choose, student media As most Courts have agreed, the school’s will generally be categorized as either a “des- intent is a critical factor in the forum cal- What is forum analysis? ignated” (or “limited”) public forum or a culus.25 That can be determined by written non-public forum. school policy, if one exists, or by how the In weighing the authority of the gov- publication has operated over time. “‘Actual ernment to regulate expressive activity that Why is it important to determine practice speaks louder than words’ in deter- occurs on government property or that uses whether a student outlet mining whether the government intended 26 government resources, courts have turned to qualifies as a public forum for to create a limited public forum.” what is commonly known as “forum analy- In two recent cases, federal district 20 student expression? sis.” The idea is that the government’s au- courts found that high school-sponsored thority to regulate such speech varies accord- Even curricular, school-sponsored stu- student newspapers were not subject to ing to the type of forum in which the speech dent media may still be entitled to strong Hazelwood because they were operating as takes place. Some places, it recognizes, are First Amendment protection and exempt public forums.27 In both cases, the courts more appropriate for speech activities than from Hazelwood’s limitations if they qualify noted that the publications had been oper- others. For example, the government’s inter- as “designated public forums for student ating free from censorship and that school est in regulating speech that takes place in expression.” Thus the key question for most officials were well aware of that fact. The a town’s public square, where speakers have student media in determining the impact of advisers to these student publications also traditionally been allowed to host gatherings Hazelwood is whether they operate as such testified that neither they nor school admin- and share their message, is much less than on a forum. istrators were telling the students what they a tightly guarded military base or in the pri- Indeed, at least a half-dozen post-Hazel- could publish. vate office of a government employee where wood cases have emphasized the importance In cases where the publication is a pub-

34 splc report • www.splc.org winter 2007-08 LEGAL ANALYSIS lic forum for student expression, school of- material that would “associate the school the publication of a pro-choice editorial, ficials will only be allowed to censor when with anything other than neutrality on mat- would be engaging in viewpoint discrimina- they can demonstrate a compelling reason, ters of political controversy.”31 tion. However, there is some disagreement such as meeting the broader protections of These examples — frightening in their among lower courts about whether Hazel- the Tinker standard. breadth and vagueness — suggest that wood imposes a viewpoint-neutral require- school officials might be allowed to censor ment.36 Until the Supreme Court clarifies When is censorship by school a great number of things simply because the issue, most courts continue to conclude officials allowed? they disapprove of them. In fact, the Court that censorship of student speech based on said schools could demand of their student viewpoint is constitutionally impermissible. Hazelwood expanded the authority of publications standards “higher than those school officials to censor student media that demanded by some newspaper publishers ... Is prior review allowed after is school-sponsored and not a public forum. in the ‘real’ world.”32 Hazelwood? School officials will be allowed to censor Fortunately, a growing number of lower non-forum student media when they can court decisions decided since Hazelwood The Hazelwood Court indicated that show that their censorship is “reasonably have indicated that this standard still im- school officials can review non-forum, cur- related to legitimate pedagogical [educa- ricular student publications before they go 28 poses significant limitations on school of- tional] concerns.” When the censorship ficials’ authority. For example, in Desilets v. to press, and probably can do so without has “no valid educational purpose,” it will specific written regulations.37 Prior review 29 Clearview Regional Board of Education the still be prohibited. New Jersey Supreme Court rejected school by school administrators has long been one Despite what many seem to believe, officials’ justifications for censoring reviews of the most problematic and insidious forms school officials were not given limitless -au of R-rated movies from a student newspaper of censorship. Where mandatory adminis- thority under Hazelwood. Even where a stu- under the Hazelwood standard as “equivo- trative prior review exists, it will likely be a dent publication is a non-public forum, ad- cal and inconsistent.”33 The court noted that rebuttable indicator that the publication is ministrators still have the burden of showing there was nothing offensive in the reviews, not operating as a public forum. For those that their censorship has a valid educational that R-rated movies were discussed in class publications that have been designated as purpose. If they cannot, the censorship will public forums, prior review may require 30 by teachers, that such reviews were available be struck down as unconstitutional. in the school library and that the student that written policies with procedural safeguards be present. What is a “legitimate newspaper had, in fact, reviewed such movies in the past. Did the Supreme Court pedagogical [educational] In Dean v. Utica34, a federal district court concern” that justifies in Michigan rejected a school’s censorship of overrule its decision in the Tinker censorship under Hazelwood? a student newspaper story about a lawsuit case? filed against the school by community mem- No. The Hazelwood Court reaffirmed That is a question that student- jour bers who claimed they were suffering health nalists, school officials and courts have the Tinker decision and the notion that problems from breathing diesel exhaust from neither students nor teachers lose their free struggled with since Hazelwood was handed idling school buses. down. Considering that every major na- expression rights at the schoolhouse gate. The court found the student newspaper But it did seriously cut back on Tinker’s ap- tional organization of journalism educators to be a public forum, but said even if it had in the country has said that censorship in plication. By refusing to apply that decision not been, the school’s actions were uncon- to any situation in a public high school in- and of itself is an educationally unsound Hazelwood stitutional under . Assessing the volving a non-forum, school-sponsored stu- practice, one might think that schools could story on criteria including fairness, accuracy, never get away with censorship. However, dent expression, the justices made Tinker a writing quality and bias, the court said the shadow of the protective shield for student the Supreme Court indicated otherwise. school had presented no legitimate justifica- The Court gave several examples in its journalists it had once been. tion for censoring. Good, solid journalism, For all public forum, extracurricular decision of what might be censorable: mate- Hazelwood the judge found, can trump - and underground publications, the Tinker rial that is “ungrammatical, poorly written, based censorship. inadequately researched, biased or preju- standard is still the law. School officials can diced, vulgar or profane, or unsuitable for Are there any other limitations only censor those publications when they immature audiences.” Potentially sensitive on school officials’ authority to can demonstrate their content will result in a material and substantial disruption of topics, such as “the existence of Santa Claus censor? in an elementary school setting” or “the par- school activities, an invasion of the rights of ticulars of teenage sexual activity in a high other students or that the material falls in to Most courts will also require that school 38 school setting” can also be banned. And officials be able to show that their censor- another area of unprotected speech. “speech that might reasonably be perceived 35 ship is “viewpoint neutral,” that is, that Are there any other legal to advocate drug or alcohol use, irrespon- they did not censor simply because they dis- sible sex, or conduct otherwise inconsistent agreed with a particular view students were protections students might have with the ‘shared values of a civilized social expressing. For example, a principal who to fight censorship? order’” may also be censored. In addition, censored a pro-life editorial, but allowed the Court said school officials could censor Yes. It is important to remember that

Winter 2007-08 www.splc.org • splc report 35 Legal Analysis

Hazelwood only addressed the protections in 2007 Illinois lawmakers passed a law pro- future of press freedom in America remains available under the First Amendment. The tecting college student media from admin- unknown, but we hope that no student Court left open the possibility that other istrative censorship that should effectively or adviser is resigned to give up the battle avenues of protection, including everything negate Hosty’s impact for college students in against censorship. from state constitutional provisions or state that state.43) Most importantly, however, the Since 1974, the Student Press Law Cen- laws to school board regulations, might still Hosty decision has no legal impact outside ter has been a source of free legal help and prevent school officials from censoring. the boundaries of the 7th Circuit, and the information for students and journalism ad- Arkansas, California, Colorado, Iowa, law prohibiting virtually all forms of advisers who are facing administrative censor- Kansas, Massachusetts and Oregon have ministrative college censorship remains un- ship. You can contact our legal staff through state laws that protect the free expression changed. In fact, the Hosty decision is in di- our Web site (www.splc.org) or by telephone rights of their high school students.39 Other rect conflict with court rulings dating back at (703) 807-1904. In addition, the Center states across the country have considered — nearly four decades. Moreover, the U.S. Su- remains the only national clearinghouse and continue to pursue — enacting similar preme Court, which has still not ruled on devoted solely to collecting information legislation. In addition, some states, such as the question, has consistently noted in other about the cases and controversies affecting Pennsylvania and Washington, have state cases the important role of free speech on America’s student press, and we rely on you regulations that may protect student rights. American college and university campuses. to help us track student media censorship. And dozens of individual school districts Unfortunately, some misguided or opportu- If you are involved in — or simply aware of across the country, such as Dade County in nistic college officials outside the 7th Cir- — student media censorship in your area, Florida, Fairfax County in Virginia and Au- cuit have pointed to Hosty to justify more please contact us. n burn School District in Washington State, administrative control over student media. have enacted student expression policies College student media must challenge such that provide significant protections to their interpretations immediately.44 student media programs. Endnotes Courts in New Jersey40 and Washing- What the Decision Has Done ton41 have specifically said their state consti- 1) 484 U.S. 260 (1988). tutions may provide additional free speech Requests for legal assistance to the 2) Because of the retirement of Justice Lewis protection to student media. Additionally, SPLC from high school students and ad- Powell, Jr. in 1987, there were only eight sitting the free speech provisions of other state con- visers around the country indicate that the justices at the time Hazelwood was argued stitutions include language that could be in- Hazelwood decision has had at least one instead of the usual nine. significant effect: a dramatic increase in the 3) 478 U.S. 675 (1986). terpreted as providing broader legal protec- 4) Hazelwood, 484 U.S. at 270. tions than the federal First Amendment. amount of censorship. From 1988 to 2003, calls for help re- 5) 393 U.S. 503 (1969). 6) Hazelwood, 484 U.S. at 273. Does Hazelwood apply to ceived by the Center increased by about 350 7) Id. at 274-75. college student media? percent, a nearly constant rise that shows no 8) Id. at 277. sign of decline. Student media continue to 9) Id. at 288. In a footnote, the Hazelwood majority report censorship of articles, editorials and 10) Id. at 289. said, “We need not now decide whether the advertisements that are perceived as “con- 11) Captive Voices, The Report of the same degree of deference [to school censor- troversial” or that school officials feel might Commission of Inquiry into High School ship] is appropriate with respect to school- cast the school in a negative light. Disturb- Journalism (J. Nelson ed. 1974). sponsored expressive activities at the college ingly, professional student media advisers 12) Richard J. Peltz, Censorship Tsunami Spares and university level.”42 For nearly twenty are also reporting a growing number of College Media: To Protect Free Expression on years — up until a 2005 decision by the 7th threats to their jobs if they refuse to follow Public Campuses, Lessons from the “College U.S. Circuit Court of Appeals in Hosty v. Hazelwood” Case, 68 Tenn. L. Rev. 481 (2001). school officials’ orders to censor. And almost 13) See e.g., Hansen v. Ann Arbor Public Schools, Carter — courts had consistently rejected all student journalists and advisers have said 293 F.Supp.2d 780 (E.D.Mich. 2003); Curry ex the application of Hazelwood to college stu- that they attributed the censorship at least rel. Curry v. School Dist. of the City of Saginaw, dent media. In Hosty, however, a divided in part to the Hazelwood decision. 452 F.Supp.2d 723 (E.D.Mich. 2006). court found that Hazelwood provided the 14) More information about the rights of “starting point” for analyzing college cen- Some Final Words underground newspaper publishers — and sorship cases. suggestions for avoiding trouble — are available The Hazelwood decision is now two de- For students attending a public college in the SPLC guide Surviving Underground: cades old. An entire generation has lived its or university in Illinois, Indiana and Wis- http://www.splc.org/legalresearch.asp?id=40 entire academic life — and is now moving consin (the states covered by the 7th Cir- 15) More information for student publishers of into the professional ranks — under Hazel- cuit), Hosty is now the law. As a practical private, off-campus print and online media is wood’s influence. Far too many of our future available on the SPLC Web site at: matter, most college student newspapers will journalists, citizens and leaders unques- http://www.splc.org/legalresearch.asp?subcat=5 still be considered designated public forums tioningly accept that school administrators 16) Hazelwood, 484 U.S. at 272-73. and entitled to the strongest First Amend- — government officials — should have the 17) Dean v. Utica Community Schools, 345 ment protection because that is the way they authority to dictate what they read, write F.Supp.2d 799, 806 (E.D.Mich. 2001). have been operating for decades. (Moreover, 18) Romano v. Harrington, 725 F. Supp. 687 and talk about.45 What this means for the

36 splc report • www.splc.org winter 2007-08 Legal Analysis

(E.D.N.Y. 1989)(finding that rights of student in question had not been opened as public 26 (2007), held that student expression that journalists who produced newspaper after forums). advocates illegal drug use or that is lewd or school and not for class credit rights were 23) Hazelwood, 484 U.S. at 268. vulgar (citing Fraser, 478 U.S. at 685) are also “less limitable” than those of the students on 24) Id. at 267-271 unprotected by the First Amendment. the Hazelwood newspaper, even though both 25) See, e.g., Lueneburg v. Everett School District, 39) The text and citations for these laws can all publications received school funding); Lodestar 2007 WL 2069859 (W.D.Wash. July 13, 2007). be found at: http://www.splc.org/law_library.asp v. Board of Education, No. B-88-257 (D. Conn. 26) Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 40) Desilets v. Clearview Regional Board of March 10, 1989)(holding that school-sponsored 2001). Education, 266 N.J.Super. 531 (N.J. Super A.D. publication might not be “characterized as 27) Draudt v. Wooster City School District, 246 1993); affirmed on other grounds, 137 N.J. 585, part of the school’s curriculum” and censored F.Supp.2d 820 (N.D. Ohio 2003); Dean, 345 590 (N.J. 1994). under the Hazelwood standard if its history F.Supp.2d at 806. 41) Lueneburg, 2007 WL 2069859 at *9. and method of operation show it was an 28) Hazelwood, 484 U.S. at 273. 42) Hazelwood, 484 U.S. at 273 n. 7. independent student voice). 29) Id. 43) 110 ILCS 13/1 - 13/97. (Effective June 19) Desilets v. Clearview Regional Board of 30) See., e.g., Dean, 345 F.Supp.2d at 810. 1, 2008). As of January 2008, Oregon and Education, 137 N.J. 585, 590 (N.J. 1994). 31) Id. at 570. California had also passed laws protecting 20) Perry Educ. Ass’n v. Perry Local Educator’s 32) Id. college student media as a result of the Hosty Ass’n, 460 U.S. 37 (1983). 33) Desilets, 137 N.J. at 593. decision. The text and citations for these laws 21) While some courts debate whether there 34) 345 F.Supp.2d 799 (E.D.Mich. 2004). can all be found at: is a distinction between a “limited” and a 35) See e.g., Planned Parenthood, 941 F.2d at http://www.splc.org/law_library.asp “designated” public forum, we use the terms 829; Dean, 345 F.Supp. at 813; Hansen, 293 44) More information about the Hosty case interchangeably here. See, e.g., Roberts v. F.Supp.2d at 780. and Hazelwood’s application to college student Haragan, 2004 WL 2203130 (N.D. Tex. Sept. 36) Compare, Fleming v. Jefferson County School media can be found at: 30, 2004). District, 298 F.3d 918, 926-928 (10th Cir. http://www.splc.org/legalresearch.asp?subcat=4 22) Desilets, 137 N.J. at 589. See also Lodestar, 2002), cert denied, 537 U.S. 1110 (2003), with 45) A 2004 national study sponsored by the No. B-88-257 at 10 (“fair ground for litigation Peck v. Baldwinsville Central School District, Knight Foundations revealed, among other exists as to [the student publication’s] status ... 426 F.3d 617, 631-632 (2nd Cir. 2005), sobering statistics, that more than a third of all as a ‘public forum’ never validly closed by school cert. denied, 547 U.S. 1097 (2006). See also, high school students surveyed believed the First authorities”); Planned Parenthood of Southern Busch v. Marple Newtown School Dist., 2007 Amendment went “too far” in guaranteeing Nevada v. Clark County School District, 941 F.2d WL 1589507, *8 n. 15 (E.D.Pa. May 31, freedom of speech and freedom of the press. 817 (9th Cir. 1991)(upholding the authority 2007)(discussing conflicts among circuits). More information from the “Future of the First of school officials to limit pregnancy-related 37) Hazelwood, 484 U.S. at 273 n. 6. Amendment” study is available at: advertising in student publications, but only 38) The Supreme Court’s recent decision in http://www.firstamendmentfuture.org/ after it had determined that the publications Morse v. Frederick, 127 S.Ct. 2618, 2625- 46) http://www.splc.org/legalresearch.asp?id=52

Libel in brief

article predicted that she would be fired University of Nebraska — Lincoln for Jurors find for school from her zoo job “after being raped by a $700,000, claiming an editorial libeled in former student’s monkey.” Inman found the comments him and caused him to lose his bid to especially egregious because she was al- rejoin the board in the 2006 election. suit against paper legedly raped in April 2002. The Daily Nebraskan published an INDIANA — Jurors on Oct. 5 found The paper’s adviser intended to re- editorial titled “Regents must be held to against a former Whiteland Commu- move the comments but did not save the high standards” in October 2006 that nity High School student who sued the changes, the Associated Press reported. said Prokop had plagiarized portions of school district, claiming the school’s Case: Peek v. Clark-Pleasant Community a column he submitted to the newspa- newspaper defamed her, violated her School Corporation, No. 41D01-0406- per when he was a regent in the early privacy and caused her emotional CT-00081 (Johnson Super. Ct. No. 1 1970s. distress. Oct. 5, 2007)(jury verdict) The allegations stem from a con- Heide Inman, formerly Heide Peek, troversy surrounding the paper’s refusal sued the Clark-Pleasant Community Former regent sues at the time to print Prokop’s column. School Corporation and several admin- Editors defended their decision by run- istrators in 2003 after an article in the Nebraska paper over ning an article that showed similarities May 2002 edition of the school paper, plagiarism allegations between the column and excerpts from Smoke Signals, awarded her the “worst the book “Homosexuality: Disease or reputation” award and said her favorite Way of Life.” NEBRASKA song was “Underneath Your Clothes.” — Former university Case: Prokop v. The Daily Nebraskan, No. Additionally, after quoting Inman saying regent Robert Prokop filed suit Oct. 18 07-441 (Colo. Lancaster Co. Dist. Ct. that she hoped to be a zoologist, the against the student newspaper of the filed Oct. 18, 2007).

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38 splc report • www.splc.org winter 2007-08 Student Press Law Center Membership

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