Two Thumbs up SPLC Salutes Three Schools’ Student Journalists for Their Initiative to Protect Student Press Rights, Page 25

INSIDE: Landmark student free speech case celebrates 40 years of protection, Page 19

Student Press Law Center EPORT R Winter 2008-09 VOL. XXX, NO. 1

Two Thumbs UP SPLC salutes three schools’ student journalists for their initiative to protect student press rights, Page 25

ALSO INSIDE: Some universities have difficulties with Clery Act rules and new amendments, Page 11 AND: Web 2.0 tools make it easier for students to get out news but can cause legal problems, Page 32 Student Press Law Center EPORT Inside Winter 2008-09 VOL. XXX, NO. 1 R COLLEGE CENSORSHIP PUBLICATIONS FELLOW: Liz White Declining profits come to campus��4 REPORTERS: Alberto D. Morales, Erica Walters and Caitlin Student speech cases influence campus media��6 Wells CONTRIBUTORS: Robert Corn-Revere, Rory Eastburg and Independent paper struggles��8 Micah Ratner Newspaper thieves hurt revenues, message��9 COVER ART: Jack Dickason �� 10 CONTRIBUTING ARTISTS: College censorship in brief Hope Donovan, Bob Gandy, Jon Hughes, Marlowe Leverette, Ashley Holt and Asia Sample ACCESS CONTRIBUTING PHOTOGRAPHERS: Zach White, Matt Andrew, Ryder Haske and Wendy Crow Clery Act requirements elude universities �� 11 Alleged assault brings FOI issues to light �� 13 The Student Press Law CenterReport (ISSN 0160-3825), published three times each year by the Student Press Law Center, Covering campus elections can get tricky�� 14 summarizes current cases and controversies involving the rights of the Access in brief�� 18 student press. The SPLCReport is researched, written and produced by journalism interns and SPLC staff. The Student Press Law CenterReport , Vol. XXX, No. 1, Winter 2008-09, is published by the Student Press Law Center Inc., 1101 LIBEL/PRIVACY Wilson Boulevard, Suite 1100, Arlington, VA 22209-2275, (703) 807- Joke issues can lead to headaches �� 16 1904. Copyright © 2008 Student Press Law Center. All rights reserved. Yearly subscriptions to the SPLC Report are $15. Contributions are Libel/Privacy in brief�� 18 tax-deductible. HIGH SCHOOL CENSORSHIP Landmark censorship case celebrates 40 years�� 19 Arkansas armband case revists Tinker �� 21 Students face harsh punishments for clothes�� 23 EXECUTIVE DIRECTOR: Frank LoMonte High school censorship in brief�� 24 LEGAL CONSULTANT: Mike Hiestand ATTORNEY ADVOCATE: Adam Goldstein COVER STORY OFFICE MANAGER/OUTREACH: Sunjha Hattin Two thumbs up DEVELOPMENT DIRECTOR: Beverly Keneagy Brown High schoolers start independent paper�� 26 CORPORATE BOARD OF DIRECTORS UNC students ask for freedom agreement �� 27 Javier J. Aldape l E.W. Scripps Company, Chicago, Ill. Kentucky student appeals for open records�� 28 l Caesar Andrews Detroit Free Press, Detroit, Mich. Do-it-yourself �� 29 A.J. Bauer l Patriot Ledger, Quincy, Mass. Jerry Ceppos l University of Nevada at Reno Shawn Chen l Associated Press, Washington, D.C. Virginia Edwards l Education Week, Bethesda, Md. INTERNET Angela Filo l Eastside College Preparatory School, East Palo Alto, Calif. Undefined term could hurt journalists’ rights�� 30 Maureen Freeman l Newseum, Washington, D.C. Instant reporting tools raise new issues�� 32 Robert Garcia l ABC News Radio, New York, N.Y. Richard Goehler, Esq. l Frost Brown Todd LLC, Cincinnati, Ohio SPLC’s quick reference for Web 2.0 tools�� 33 Tonda Rush, Esq. l American PressWorks Inc., Arlington, Va. Internet in brief�� 34 Frank LoMonte, Esq. l Student Press Law Center, Arlington, Va. Rosalind Stark l Radio and Television News Directors Foundation (retired), Reston, Va. Mark Stodder l Dolan Media, Minneapolis, Minn. LEGAL ANALYSIS Reginald Stuart l The McClatchy Company, Silver Spring, Md. Keeping a lawsuit alive after graduation�� 35 Mark Witherspoon l Iowa State University, Ames, Iowa

Organizations for purposes of identification only A message from the splc

Report staff Tinker still resonates today his edition of the SPLC Report marks mines the educational benefits students gain Liz White, McCormick Foundation Publica- the 40th anniversary of the Supreme in journalism. tions Fellow, graduated from University of Court’s Tinker decision, in which the This past July, the nation’s biggest teacher South Carolina’s School of Jour- TCourt famously declared that students do not organization, the National Education Associa- nalism and Mass Communica- “shed their constitutional rights to freedom of tion, adopted a resolution declaring firm sup- tions in May 2008. She worked at the student newspaper, the speech or expression at the schoolhouse gate.” port for free expression in student media. In the Daily Gamecock, in various The 40-year history of judicial decisions resolution, delegates to NEA’s national conven- roles including editor in chief, since Tinker is largely a story of retrenchment. tion affirmed that “freedom of speech and press and was a part of the inaugural Court after court has found ways to chip away are fundamental principles in our democratic staff to take the paper daily. She also worked at the First Amendment protection afforded society granted by the First Amendment ... , at the campus magazine, Garnet&Black, and to student speech, most recently in a string of and these freedoms provide all people, includ- the journalism school’s newspaper, Carolina rulings allowing schools to punish students for ing students, with the right to engage in robust Reporter. online criticism of teachers or administrators and uninhibited discussion of issues in student on personal Web pages entirely created outside media.” Alberto D. Morales, fall 2008 Scripps Howard of school time. The NEA resolution echoed the senti- Foundation Journalism Intern, is a journalism student from Indiana University at Bloom- I recently participated in a panel discus- ment of the nation’s largest professional as- ington. He was an editor and staff writer of sion at the National High School Journalism sociation of college journalism instructors, the Indiana Daily Student and Convention on what is left of Tinker’s strong which in April 2008 issued a strong declare-established the campus First Amendment safeguards after the Supreme ration of the value of uncensored student chapter of the Society of Profes- Court’s 1988 ruling in Hazelwood School Dis- expression. The words of the Association of sional Journalists. Before going trict v. Kuhlmeier. Hazelwood granted adminis- Schools of Journalism and Mass Commu- to Indiana, he was editor in chief trators wider (though not unlimited) latitude to nication are a resounding rejection of the of the Viking News at Ocean censor school-affiliated publications. mindset of a minority of administrators who County College in New Jersey. He received The highlight of the panel was a presenta- see the student media as a problem to be the SPLC’s College Press Freedom Award for tion by Robert Haar, a distinguished litigator minimized or eliminated: preventing the firing of his adviser for articles written by he and his staff. Alberto covered who represented the Hazelwood East school “Students who work on high school high school censorship, legislation and Inter- district before the Supreme Court. Haar de- media learn to think critically, research top- net for the Report. livered a balanced assessment of the ruling and ics, conduct interviews, write clearly for an the Court’s rationale for it. But when the dis- audience and work together as a team. In Erica Walters, fall 2008 Scripps Howard cussion turned to Hazelwood’s impact on jour- schools with strong journalism programs, Foundation Journalism Intern, is a senior nalism education, Haar acknowledged that, they also learn how a free and responsible at the University of Memphis majoring in were his son to study journalism, he would press can improve their school communities newspaper journalism. Erica worked at the want his son to attend a school with the Tinker by informing, entertaining and influencing student newspaper, the Daily level of protection for student speech, because their audience. … ASJMC supports strong Helmsman, as a general assign- that is known to be the sounder educational journalism programs as not only the training ment reporter. She interned and freelanced for area Memphis method of teaching journalism. ground for future journalists but also as the publications including the Col- Haar’s observation reflects a growing place all students can learn about, appreciate lierville Herald, Memphis Health consensus among not just journalism advis- and practice democracy in action.” and Fitness and the Tri-State Defender. She ers, but all educators, that censorship under- — Frank LoMonte, SPLC executive director is a 2008 Chips Quinn scholar and interned for the Dispatch in Lexington, N.C., a New York Times regional newspaper. Erica covered Md. high school, N.J. college college censorship and newspaper theft for students win student press awards the Report. SPLC presented the Courage in Student Journalism Award, co-sponsored by the Newseum and the Na- Caitlin Wells, fall 2008 tional Scholastic Press Association, to student editors Ingelhart Journalism Intern, Jaishri Shankar and Rachel Wagner, adviser Peter graduated from Grinnell College Daddone and Principal Debra Munk of Maryland’s in Iowa, where she majored in Rockville High School for their joint efforts in publish- history and East Asian studies. ing a package of stories exposing gang activity in the She served as the copy editor neighborhood. It was the first time administrators and students at the same school had shared the of Grinnell’s student newspaper, the Scarlet SPLC’s Executive Director Frank Lo- Monte, center, presents the Courage award. At the National College Media Convention, & Black, for two years. She has also worked SPLC presented the College Press Freedom Award as a copy editing intern and freelance editor in Student Journalism Award to Jaishri Shankar, Rachel Wagner, Debra Munk to the editors and staff of the Montclarion at New for the Des Moines Register. Caitlin covered Jersey’s Montclair State University to recognize their and Peter Daddone, from left, of Rock- access, campus crime, libel and privacy, and successful fight for independence from the student confidentiality for theReport . ville High School. government association.

winter 2008-09 www.splc.org • splc report College Funding Money woes hit campus As commercial media face bleak profits, some students struggle to overcome bottom lines

By Erica Walters Heel at the University of North Carolina tentNext, a media company at Chapel Hill, are experiencing business that chronicles the econom- cross the as usual as revenue has not declined and no ic evolution of digital content n a t i o n positions have needed to be cut. that is shaping the future of the media, c o l l e g e Even though college newspapers are alike said it all comes down to extracting some Anewspapers are in their missions, they experience different value for the content in the form of a cover either struggling monetary fates. Recently, two national publi- price and/or better advertising sales. with money or cations surveyed the health of campus media “Playing with the frequency is one holding steady in at both independent and dependent papers near-term solution,” she said. Fine said cre- a less-than-perfect and came to glass-half-empty/glass-half-full ativity is key to keeping a newspaper alive. economy. While conclusions. Brad Arendt, general manager of the Ar- college publica- Inside Higher Education published an biter, a university-sponsored student newspa- tions try to keep article in September (“Print Journalism per at Boise State, said the newspaper is not their advertising Squeeze Hits Campuses”) that found a drop doing well. revenue and in funding for several campus papers, while The Arbiter’s funding was cut in half by readership the Chronicle of Higher Education published a committee composed of students, faculty up to an article days later (“Student Newspapers and administrators in the fall, and the Arbiter avoid job Escape Most Financial Problems of Larger lost its second largest advertiser, which had cuts and losing publication days, commer- Dailies”) reporting optimism for college been advertising with the newspaper for 12 cial newspapers have fallen behind. newspapers. years. Gannett Company Inc. publishes some However, when it comes to lowering of the nation’s best-known newspapers, in- Funding falls wages or cutting circulation days, he plans to cluding USA Today, 85 daily newspapers hold off on doing so. and 900 non-daily publications. In the past TheDaily Orange, an independent news- “The economic situation has hurt us,” year, Gannett declared it would lay off 10 paper at Syracuse University in Syracuse, Arendt said. percent of its local newspaper workforce to N.Y., announced it would cut publication As Arendt looks toward the future, he remedy advertising revenue loss. The Mc- days from five days to four, just as the Daily said it is hard to predict what is going to Clatchy Company, another newspaper pub- Californian, another independent newspaper happen to the newspaper. He said he would lisher that publishes 30 daily newspapers, at the University of California at Berkeley, rather cut circulation than student jobs. initiated a one-year wage freeze on all em- announced it would drop its Wednesday The Arbiter has thought about ways ployees. With the decline in revenue wors- publication. to ensure that it does not venture into the ening for the commercial newspaper indus- “The Daily Cal is in a serious financial red. With eroding advertisers, the average try, some college publications are avoiding crisis from a downturn in advertising rev- amount of 12 pages per issue may drop to their big brothers’ fate, while others are fol- enue,” said Bryan Thomas, editor in chief. 10. lowing suit. “We had to cut a day of publication this se- Because of a lack of funding, the news- With a budget provided primarily by mester, and we’ve significantly reduced other paper had to cancel travel to two confer- advertisers or the university, some campus expenses, including pay for our students.” ences the staff planned on attending and newspapers are experiencing money woes TheDaily Bruin, an independent student delay the purchase of new computers. The similar to their commercial counterparts. Be- newspaper at UCLA, does not receive fund- Arbiter staff has to deal with a lack of com- cause of the lack of money, the content and ing from the university. puters and space for its 53 staff positions, circulation of some student newspapers may “All revenue for UCLA Student Media one full-time position and 25 interns. The be in jeopardy. is generated from our own staff,” said Jer- Arbiter newsroom has five desks for in- The Daily Bruin at the University of emy Wildman, business manager. “We had terns, which cannot accommodate the 25 California at Los Angeles receives no funding a poor first month with a deep decline in interns at once. from the university and is struggling to pull national advertising, but we have had an in- Arendt said the interns have to worry in money from advertisers, while the Red and crease and look to have rebounded for Oc- about the lack of space when it comes to Black at the University of Georgia, in Athens, tober 2008.” working and gaining experience in the news- Ga., rebounded after seeing a decline in ad- The Daily Bruin’s revenue has fluctuated room. Some have to work outside the news- vertising revenue. The Arbiter at Boise State in past years, experiencing a decline in reve- room, which hinders their hands-on intern- University, in Boise, Idaho, saw its budget nue between 2001 and 2005 while rebound- ship experience. cut in half. ing in 2006 to 2008. Arendt believes that the committee that But some papers, like the Daily Tar Lauren Fine, research director of Con- cut the newspaper’s budget in half will rein-

splc report • www.splc.org Winter 2008-09 College Funding state its budget back to its original amount Staying afloat to have somewhat of a captive audience,” and that any miscommunication was cleared Montevideo said. “Since students, faculty after meeting with administrators. Economic shortfalls to one and staff are required to be on campus Miscommunication about the newspaper might be bad, but most every day, we have a large base of money the Arbiter received from for the Good Five Cent Cigar, readers congregating in a relatively small student fees, the amount of money the student newspaper at the geographic area.” the newspaper had in reserve and University of Rhode Island at TheRed and Black offers free copies and a money the newspaper made from Kingston, the state’s nine-figure wide variety of content. advertisers, painted the Arbiter deficit is giving the newspaper an “There’s something for everyone and very as having an abun- overflow of stories to report. And as few reasons not to pick one up,” he said. “It’s dance of money. fruitful as the stories are, so is the generally a quick read, and when students see “I have hope funding. their friends reading copies there’s also the because the ad- “We definitely have more ‘peer pressure’ factor.’” ministration has full-page ads than in recent years,” Logan Aimone, executive director of the recognized that we should said Chloe Thompson, managing National Scholastic Press Association, a non- not have been cut,” said Ar- editor. “ We also haven’t really had profit educational association, said that the endt. “They have been really any staffing problems. The economy is college newspaper is a nicely targeted product supportive.” giving us an overflow of stories to cover, geared towards a specific audience, but it can since Rhode Island has a deficit of more still have its problems. than $300 million.” Aimone said college newspapers, like The Red and Black, an inde- commercial papers, are facing revenue short- pendent student newspaper, is falls because of the economy. doing fine, but Harry Monte- “Advertisers are spending less,” he said. No extra cash, read all about it video, publisher of the paper, Montevideo said the Red and Black does worries that with the com- not anticipate changing anything about the Both campus newspapers and commercial mercial newspaper industry newspaper. dailies, cannot keep bad news off front pages. faltering, recruiting students “We think there is still a number of to work for the newspaper healthy years ahead for the Red and Black and may become difficult. many other college media organizations,” he “The malaise that affects said. the commercial newspaper Montevideo is also the chief administra- industry and other media may tive officer of a small “not-for-profit.” He make careers in newspapers or manages accounting, insurance and other journalism less attractive to managerial responsibilities at the Red and college students,” he said. “If Black. enrollment in the journalism He said that like the newspaper indus- programs decrease, then we try, the Red and Black is looking at ways to might find it harder to attract increase revenues from online publishing, students to come work for but the paper is having similar problems us.” as commercial newspapers with generating Montevideo said the Red the same dollar levels online as they do in and Black has not yet seen print. that happen. For 25 years, “I think for the short-term and perhaps as the Georgia paper has been long as students continue to read our printed funding a reserve “to insure its products, we’ll be OK,” he said. “Long-term, long-term viability,” he said. I think we’ll have to be more innovative in The newspaper owns its finding ways to connect our community with own building and is free of the businesses they patronize and vice-versa.” any debts or mortgages. Be- But after being in the newspaper industry cause of the economy, the pa- for many years, Montevideo admits he does per has only seen a small de- not have a quick solution to the economic cline over the past three years. problems in the industry. With no budget cutbacks, the “I wish I had a formula to share, and I’ve newspaper staff expects to been doing this for almost 30 years now,” said make a slight profit in 2008, Montevideo. “But so much has changed with according to Montevideo. the Internet, the problems commercial news- “As with most college papers are having with readership and now newspapers, we’re fortunate the economy.” n

winter 2008-09 www.splc.org • splc report College Censorship Speech rulings can impact media the students after another student was mur- violated, Hudson and Jordan were falsely ar- Student legal cases give campus dered on school property. Hudson, Brown rested and the university “maliciously” prose- publications glimpse into limits and Jordan, as part of student government, cuted them. The jury also found that the four were surveying campus for safety improve- university officials involved did not qualify By Erica Walters ments when they stumbled on payroll re- for immunity in regards to mistreating the cords in the front seat of a dump truck. The students. n 1969, the Supreme Court established records documented the corruption of some In the end, Jordan said they were glad in Tinker v. Des Moines Independent university officials. The students distributed they finally got their day in court. Community School District that students fliers with the information from the recov- Ihave the right to freedom of expression at ered payroll records and petitioned for new Overbroad speech code school as long as their expression does not administrators. cause “substantial disruption.” But when Jordan said because of their speech, the On Aug. 4, the Third U.S. Circuit Court some colleges and universities tried to gov- university retaliated by kicking Hudson out of Appeals released an opinion in DeJohn ern students’ rights, those students took the of the university, forcing Brown to leave and v. Temple University, upholding a federal matter to court and, in some cases, prevailed. pressing criminal charges against him on district court decision that the university’s These cases did not involve the media, but identity theft because the university alleged speech code was unconstitutional. the court rulings may impact student jour- a flier gave an official’s Social Security -num The speech code prohibited “generalized nalism. ber. sexist remarks and behavior.” At Texas Southern University in Hous- The students involved in the case were Christian DeJohn was a graduate student ton and at Temple University in Philadel- not associated with the media, but the fact at Temple and a sergeant in the Pennsylva- phia, Pa., students spoke out against their that university officials tried to stop univer- nia Army National Guard when he was de- universities to have their First Amendment sity-critical information from being dissemi- ployed to Bosnia. While away from school, rights upheld. At Texas Southern a jury ruled nated may affect student publications. DeJohn received anti-war e-mails from a his- that three students were retaliated against, “The students at TSU got punished for tory professor. He made his dislike for the while Temple’s speech code was found to be telling the truth and exposing wrongdoing, e-mails known. unconstitutional. Even though the cases are two things that go to the core mission of ev- After his hiatus from Temple, DeJohn different, they illustrate the struggle some ery journalist,” said Adam Goldstein, legal returned to complete his master’s degree. students face at colleges and universities advocate for the Student Press Law Center. But his degree was denied. Represent- First Amendment Center scholar David “How could a student reporter feel like they ed by the Alliance Defense Hudson pointed out that cases like Tinker could do their job in a climate where that Fund, a non-profit that pro- and Bethel School District v. Fraser, in which happened?” the Supreme Court permitted a public school Patrick Gilpin, civil rights attorney and to punish a student for a campaign speech the a former professor at Texas Southern, repre- school alleged was indecent, did not involve sented the students in their case against the student media but the rulings may impact university. He said the students were ap- how other courts rule in media-related cases. palled with the amount of corruption and “Often times cases involving non-stu- the disregard to correct the problem by the dent media have discernible impact on stu- authoritative figures at Texas Southern. dent media cases because the courts do not The lawsuit alleged the students’ First distinguish between the two to any great de- Amendment rights were violated, and gree,” said Hudson. the students asked that all of the disciplinary actions be dropped and Suing Texas Southern removed from their academic re- In 2005, three students at Texas Southern cords. sued the university, alleging the school retali- In August, a jury reached ated against them. The retaliation came after a general verdict in favor the students exposed the mismanagement of of Jordan, Hudson and school funds by university officials by distrib- Brown. uting fliers documenting the corruption. Together the stu- Justin Jordan, William Hudson and Oli- dents were awarded ver Brown’s lives at Texas Southern began to $200,000. Jurors de- change as they spoke out against university cided the students’ officials and got Texas’ governor involved. First Amendment The corruption was found unexpectedly by rights were

splc report • www.splc.org Winter 2008-09 College Censorship

l In Highland Heights, Ky., Northern Kentucky was being reviewed. Speech causes problems University officials had a student arrested af- At various universities and colleges, ter he posted signs at an orientation event that l Beta Upsilon Chi, a Christian and male-only students faced harsh punishments said, “Bombing for peace is like fucking for vir- fraternity, was denied registration to become a ginity.” Dennis Chaney, a junior, was arrested student organization at the University of Florida for protected speech. These cases after passing out condoms and posting his signs in Gainesville because the university alleges may influence how officials deal with during an on-campus event. He spent a night in that the fraternity discriminates on sex and re- student media on campus, as well. jail and was ordered to perform 15 hours of com- ligious affiliation. The fraternity believes that UF munity service. Chaney petitioned the university is denying registration to the fraternity as way of to change the orientation speech policy. The uni- “dictating” the First Amendment. l In Binghamton, N.Y., Binghamton University versity said that it was reviewing its policies. In a complaint filed in court, BYX said that the officials tried to ban Andre Massena, a social university’s decision to deny its application for work graduate student, after he put up posters l Officials at the University of Texas at Austin, recognition as a registered student organization critical of the Department of Social Work. The threatened to ban Connor and Blake Kincaid because of the group’s policies violates its right university ordered Massena to apologize and after the two posted political signs in their uni- of free speech guaranteed by the First Amend- leave the program for a year without the guaran- versity dorm windows. After several attempts to ment. tee of being reinstated. However, the university make the students remove the signs, the uni- The fraternity was allowed to register as a abandoned its attempt after the Foundation for versity threatened to refuse spring registration student organization by a special motion panel Individual Rights in Education took Massena’s to the students. However, the move to subdue decision of the Eleventh U.S. Circuit Court of Ap- side. FIRE sent a letter to university President the students’ political speech sparked national peals. BYX appealed a federal district court deci- Lois DeFleur about the infringing of Massena’s attention, and two days after the students were sion to the Eleventh Circuit that said BYX “has rights. given an ultimatum to take the signs down, the not yet demonstrated a violation of its constitu- university suspended the sign policy and said it tional rights.” The case is ongoing. vides legal assistance in cases where civil liber- speech protected by the First Amendment ties might be at risk, he filed suit against the for more than 20 years. university in 2006, alleging the school denied In fact, it is the speech that of- “First Amendment rights are precious his degree because of his political views and fends or causes people to get angry, and the mere fact that someone is angered that Temple’s speech code was unconstitu- that requires protection. Speech or offended by your speech does not mean tional. it loses its protection,” French said. “In fact, David French, lead counsel in the case, “that pleases everyone does not it is the speech that offends or causes people said that DeJohn was acting selflessly in su- need a First Amendment. to get angry, that requires protection. Speech ing the university. David French that pleases everyone does not need a First “He experienced actual discrimination Lead counsel in DeJohn v. Temple Amendment.” based on his political views while he was In August 2008, the decision was upheld. there,” French said. “He wanted to get rid of court’s determination that Temple appropri- “What the court does a really good job of the policy, essentially to protect the rights of ately exercised its academic freedom when its doing here, is to pierce the university facade all Temple students.” professors determined that DeJohn’s thesis that they can somehow re-label what is nor- In April 2007, in a federal district court did not meet the requirements for a master’s mal day dissent as harassment,” French said. ruling, DeJohn was awarded $1 in nominal degree,” officials said. Although the cases involved speech and damages, and the university was barred from After Temple appealed the federal dis- not the media, they may have the ability to reverting back to its original speech code. trict court’s decision, the Foundation for In- affect the press. The university appealed. dividual Rights in Education and the SPLC, “One of the prime roles of the media “Temple University is disappointed among other groups, supported DeJohn by whether in the larger community or on cam- that the court found that its former sexual filing a friend-of-the-court brief to the Third pus, is to challenge the status quo, to exam- harassment policy was unconstitutionally Circuit Court of Appeals. ine claims of those in power,” said French. overbroad. The former policy, adopted in “The constitutional rights of Americans “That can be incredibly challenging and can 1990, tracked the Equal Employment Op- are fundamental and may not be diluted or anger those in authority.” DeJohn portunity Commission’s definition of sexual restricted simply because they hinder the However, French said that the harassment,” Temple officials said in a press plans of college administrators to establish ruling says that students are able to question release. an atmosphere free of discomfort or contro- what is being taught without a fear of pun- Temple officials said the policy was versy,” the groups stated in the brief. “Nor ishment and that because of this, the press amended in January 2007, and Temple’s cur- can these rights be abridged under the guise can freely question authorities and public rent sexual harassment policy has not been of prohibiting the unlawful conduct that is figures without a fear of being censored. challenged. distinct from speech, such as violence or true William Creeley, director of legal and De- DeJohn’s claim that the university de- harassment.” public advocacy for FIRE, said that the John nied his degree because of his political views The groups requested that the court case affirms that adult speech on cam- was dismissed and the university maintains uphold the federal district court’s ruling. pus cannot be prohibited. that DeJohn did not meet the academic re- The brief said that Temple’s speech code “The ruling indicates that the student quirements for the degree. was “vague and overbroad” and prohibited press is entitled to the same protection,” he “The opinion does not disturb the trial said. n winter 2008-09 www.splc.org • splc report College Censorship Students find independence tricky

By Erica Walters News used it, but the room was later denied. of the university when it involves student She said the explanation of the room’s use organizational rules and responsibilities, but hen former editors at the univer- mentioned the paper. After the threat, the they want to be part of the university when it sity-sponsored newspaper, the university chapter of the SPJ said it would comes to having access to university resources Chronicle, leaped to an indepen- continue to support the Quad News. Now the and the privileges of being a recognized stu- Wdent, online-only newspaper, Quinnipiac Uni- newspaper staff meets in the cafeteria. dent organization,” she said. “Unfortunately, versity officials in Quinnipiac, Conn., isolated In a letter to university officials, the -na in the real world, responsibility and playing by themselves from the student journalists. tional SPJ expressed its concern for the threat. the rules go hand in hand with the privileges The fall 2008 semester brought many The letter emphasized that banning the SPJ of membership.” problems for the Quad News, the newly inde- would hurt the university’s reputation as an Student editors at the Quad News had no pendent paper. Interviews with university of- institution that respects the First Amendment First Amendment recourse to challenge the ficials were off-limits. rights of students, faculty and staff. university’s tactics, because the First Amend- Along with 15 editors and 25 contributors, Lynn Bushnell, vice president for public ment does not regulate the conduct of private Jason Braff, a senior and editor in chief of the affairs, responded with an e-mail to the uni- actors. Quad News, kept covering news stories without versity student body that explained the situa- “It makes all the difference if we’re talk- the cooperation of university officials. tion and accused the Quad News of trying to ing about public or private, because private is “We have to continue covering the stories put the Chronicle out of business. not governed by the First Amendment,” said we want to cover,” said Braff. “They may not “It soon became clear that the real inten- Ronald Collins, scholar at the First Amend- be as good as we hope, since we don’t have the tions of the students involved in this online- ment Center. access we would like.” only paper / blog were decidedly hostile: they Collins said that any type of censorship is In September, Daniel W. Brown, student aggressively sought to undermine the con- a bad idea, but as a private institution, Quin- center director, told the student chapter of So- tinued existence of a University-supported nipiac has the right to do whatever it wants. ciety of Professional Journalists that its status newspaper for students,” said Bushnell in the While Braff may not have the help of uni- as a registered student organization on campus memo. versity officials, the Quad News has received was in danger if it continued to interact with Bushnell pointed out that the Quad News help and donations from alumni. the Quad News. The threat was made after is not a registered student organization, and it “They should continue what they are do- Quad News personnel used a campus meeting has to be independent from the university in ing and be sure they get their facts straight,” room that had been booked by SPJ. all aspects. Collins said. “Probably, the best way to deal Kendra Butters, co-managing editor at the “These students want to be independent with this kind of censorship is to get faculty Quad News, said the reserved room in ques- members, alumni and local papers to tion was approved and that is why the Quad speak out.” In October, the New York Times Editor in Chief Jason Braff, right, and the staff of wrote an editorial denouncing the threat the university-sponsored newspaper resigned in against SPJ. The editorial resulted in the the spring to create an independent paper. After university lifting its threat. running into problems with the university, the “While there were some disagree- staff now meets in the cafeteria, below. ments, occasionally vigorous, with the PHOTO BY MATT ANDREW (THE QUAD NEWS) student newspaper (Quad News) last year and at the beginning of this year, those differences were resolved,” Bush- nell wrote in the letter. Jaclyn Hirsch, president of the SPJ and co-managing editor of the Quad News, said she received a conciliatory letter from Brown, and she looks forward r to working with the administration. o s She said the Quad News has met w d with administrators to open communication. By the end of the fall semester, the newspaper had a good relationship with the university. “It is good to see the work pay off in the end,” Hirsch said. n

splc report • www.splc.org Winter 2008-09 College Censorship

rom Florida to Texas, Punishment newspaper thieves are learning after the first As the student staffs filed police reports, Ffree copy of a newspaper, if most posted editorials explaining why stealing they do not pay monetarily, newspapers is considered theft. At Tampa, Pe- they will pay somehow. But ter Arrabal, Minaret editor in chief, discovered theft prevention tips may help to that a university-issued punishment took six thwart a thief’s plan and save the months with little results. newspaper money. “I’m pretty sure that if we had gone to the Just as a newspaper bandit Tampa Police Department, we would have surfaced at Texas Christian Uni- seen full restitution, and she would have actu- versity, in Fort Worth, Texas, mak- ally had to do some real community service in ing off with 1,361 newspapers, the lieu of jail time,” Arrabal said in reference to University of Texas at El the second theft. Paso, reported 3,500 He said the campus police took weeks to newspapers were review videotapes and gave the thief a “ludi- stolen. The Univer- crous” punishment. The Minaret thief was sity of Central Ar- fined $150 and forced to work 20 hours at kansas, in Conway, the newspaper. The Minaret has not received Ark., reported 1,300 the money but was notified that the student’s stolen newspapers, too. And the record was on hold until the she paid. University of Tampa in Florida, in two “If this happens at another school, I’d separate incidents, reported about 800 stolen advise them to skip the campus police. Go newspapers collectively. directly to the local police department,” said S In each incident, the thief sought to sup- Arrabal. press information, ranging from a homecom- The Daily Skiff staff also took its case to ing queen’s fans trying to preserve her image the campus police and expects to receive about to a professor wanting to withhold bad news $700 for the stolen newspapers because of its t from incoming students. policy that makes additional copies 50 cents. The Echo at UCA and the Prospector at Thieves UTEP let the university handle their newspaper thefts. The investigations are ongoing. o At Tampa, racks once filled with Minaret UTEP did not have a policy against unlimited newspapers were emptied but not by readers. free newspapers, and the Echo thief was never A professor who did not want incoming stu- found. dents to read about a crime that took place on “It was clear who it was, but with no campus disposed of the papers and later ad- concrete evidence to go off of, they basically l mitted to the act. And a few months later, a pushed the case aside,” said Aprille Hanson, student stole newspapers because of a “cheer Echo editor in chief. or jeer” section that jeered God. She advises other schools with theft prob- While Tampa was having problems keep- lems to get the word out that it is a crime. e ing its newspaper in the racks and out of trash “I do not know if you can ever really pre- bins, editors at TCU and UCA were experi- vent something like this, but surely you can encing similar situations. At TCU, a student make people aware,” she said. dumped more than 1,300 copies of the Daily n Skiff because he thought the it went too far Prevention in publishing a picture of his favorite professor, who was allegedly involved in a domestic Some states are proactive in newspaper violence dispute. A few days later, the thief theft laws. California, Colorado and Maryland r confessed. Empty racks at UCA left specula- have laws that make emptying a box of free o s tion that an editorial critical of the Student newspapers a punishable crime, said Frank Lo- w d Government president caused the theft. And Monte, executive director of the Student Press at UTEP, an article covering the resignation of Law Center. Newspaper theft acts as a homecoming queen prompted thieves wear- “Student publishers ought to be working form of censorship that ing sorority and fraternity symbols to dump with their press associations at getting more the newspapers. such laws enacted,” LoMonte said. hurts money, content LoMonte said stealing newspapers is the By Erica Walters See Theft, Page 10 winter 2008-09 www.splc.org • splc report College Censorship

College Censorship in brief From Theft, Page 9 most primitive form of censorship. mer Editor in Chief Angela Mensing, after “It’s like burning books — because you Arizona students the Nov. 11 settlement was reached. “I am disagree with something you read, you de- protest ‘racist’ cartoon very happy. We just filed in July, and here cide that nobody else should get to read it,” it is, we are already settled, and it has been he said. ARIZONA — The Associated Students of dismissed.” Ronald Collins, scholar at the First Amend- the University of Arizona (AUSA) asked for The university agreed to reinstate the ment Center, suggests newspapers should post staff members at the student newspaper, the newspaper’s funding after the Student Gov- a sign that says after a certain amount of free Daily Wildcat, to receive mandatory training ernment Association knocked $14,760 off copies, taking additional papers would be con- in diversity and tolerance after a controver- of the Inkwell’s budget during the spring se- sidered a crime. sial cartoon was published. mester. The newspaper’s original budget was In case of theft, LoMonte said the first While the ASUA claimed it does not $69,500, which included university funds thing is to gather all the information you can seek to censor the Daily Wildcat, ASUA and advertising money. and try to figure out how many papers were President Tommy Bruce, as reported in the Mensing sought legal advice from the taken and how much ad revenue was lost. Daily Wildcat, said “the university paper Student Press Law Center and attorneys He said that the newspapers should con- needs to not be offensive.” Richard Goehler and Gerald Weber, who are sider reprinting the stolen edition online, plac- The controversial cartoon used the “N- part of the SPLC Attorney Referral Network. ing signs on the distribution bins or notices in word” in mocking racist attitudes about The lawsuit stated that the budget cut was the next newspaper telling people where to go. President-elect Barack Obama and ran in the result of articles critical of the university. “You want to make sure the theft doesn’t the Daily Wildcat after the election. Backlash During a budget hearing, Mensing said that succeed in blocking information from getting from the cartoon started the next day as stu- there was mention of the newspaper’s con- out,” LoMonte said. dents complained to Editor in Chief Lauren tent and of deficient coverage of the SGA. Although the thefts left newspaper racks LePage. Weber said that the settlement, which bare, more was lost than just the papers. While some students wanted to see a also included a payment of $7,500 in the “I felt like I had been robbed personally, front-page apology for the cartoon mishap, not of my property, but of my time,” Arrabal editors’ attorney fees, took steps toward ad- n others attacked LePage personally. A forum vancing and securing journalism at AASU. said. was held to discuss the Daily Wildcat’s mo- tive for publishing the item, and LePage admitted in an editorial on Nov. 7 that the University may revise cartoon was a mistake caused by a miscommunication. policies after sex issue “As the person responsible for ensuring KANSAS — proper communication among the Daily The University of Kansas in Wildcat staff, I hold myself accountable for Lawrence, Kan. is reviewing its procedures the comic that ran,” she said in the edito- on educating campus staff on public access rial. to facilities after the student newspaper, the Daily Kansan, published a provocative While apologizing, the newspaper did States with statutes not agree to make editorial policy changes photo in its “Sex on the Hill” issue. to eliminate anything readers might find of- The Daily Kansan published its annual Three states have newspaper theft fensive. sex issue in September and photos deemed law on the books to protect against “To allow the community to make its too racy by some led to many complaints. one of the basic forms of censorship. (Daily Wildcat) editorial decisions would be Most of the controversy surrounded a photo Maryland: Prohibits anyone from exerting control that depicted two seemingly naked students over a newspaper with the intent to stop the pub- to abdicate its responsibility as an indepen- lic from reading it. Someone caught violating the dent newspaper — something we refuse to posing in front of a KU World War II memorial, the Campanile. statute, if convicted, can be fined no more than do,” the newspaper stated in an editorial. $500 or imprisoned for no more than 60 days. Many students complained the photo was inappropriate and should not have been Colorado: Taking more than five copies of a Armstrong Atlantic taken at the memorial. Matt Erickson, edi- newspaper from a distribution container is con- tor in chief, admitted that the newspaper was sidered newspaper theft, a misdemeanor that is punishable by fine up to $5,000. settles funding suit careless in publishing the photo. GEORGIA — University officials at Arm- The university said the review in pro- California: Taking more than 25 copies of the cur- strong Atlantic State University in Savan- cedure did not restrict the Daily Kansan rent issue of a free newspaper to deprive some- nah, Ga., agreed to restore full funding to from taking photos at the World War II one of reading it is considered theft, which can the student newspaper, the Inkwell, settling a be an infraction or a misdemeanor punishable by site but protocol would be better enforced no more than a $500 fine, 10 days in county jail lawsuit filed by student editors in July. when it comes to accessing certain places or both. n “We wanted to settle with the school on campus in regard to safety concerns. Source: SPLC Newspaper Theft Forum before it reached litigation level,” said for- Photo by Zach White

10 splc report • www.splc.org Winter 2008-09 InternetAccess Campus crimes slip through cracks

By Caitlin Wells ately notify the campus community upon the confirmation of a significant emer- n April 5, 1986, 19-year-old Jeanne gency or dangerous situation,” a mea- Clery was asleep in her dorm room sure included after the Virginia Tech at Lehigh University in Bethlehem, shootings in April 2007. OPa. Another student broke into her room, However, as many universities tortured, raped and killed her. Her killer had are working on installing and testing entered the building through a door that was their emergency notification systems, supposed to be locked but was propped open. some institutions are still having Jeanne’s parents found out after her death that trouble fulfilling the act’s original there had been 181 reports of doors propped reporting requirements. open in her building in the four months before her murder and that students had not been told about multiple violent crimes on Crime logs campus over the past few years. Since it was first passed, the The Clerys met resistance from Lehigh Clery Act required that campus security de- as the university denied negligence and as- partments keep a log of all crimes reported and serted the campus was safe. The Clerys filed that this log be made available to the public Because of the Jeanne Clery Disclosure Act suit against the school for negligent failure of and kept up-to-date with incidents within two universities are required to provide information security and failure to warn of foreseeable dan- days of their occurrence. But some schools are about crimes on campus for crime blotters, like gers on campus, and in its settlement Lehigh still falling behind on this reporting. this one taken from DuPage College’s Courier. agreed to improve campus security. Reporters at Sidelines, the student news- The Clerys also campaigned for federal paper at Middle Tennessee State University in tion of the crime,” said Carter. legislation requiring colleges and universities to Murfreesboro, Tenn., published an editorial keep students informed about campus crime. on July 23 noting the crime log had not been Annual security reports The Crime Awareness and Campus Security updated for nearly three weeks over the sum- Act passed in 1990 and was renamed in 1998 mer and 418 crime reports were missing from In addition to maintaining campus crime as the Jeanne Clery Disclosure of Campus the campus crime logs. logs, some universities have found inconsis- Security Policy and Campus Crime Statistics Sidelines Managing Editor Andy Harper tencies in the way they file the annual security Act, usually known as the Clery Act. said that many of the 418 crime reports not reports that must be distributed to students Of the many aspects of the college experi- in the campus crime log were in a separate and employees. ence, the effects of the Clery Act are prevalent “case log,” which he was told contained only An Oct. 22 audit of the State University but not necessarily striking. Many students miscellaneous items like medical emergencies of New York system by the New York State probably cannot name what the Clery Act is, and fire alarms. Harper found that some of the Comptroller’s Office found inconsistencies in but they encounter its effects every time they reports that appeared in the case log included 19 out of the 29 colleges between the crime read the campus police blotter in their college vandalism, thefts and drug charges. statistics published in the annual security re- newspaper or get an e-mail notifying them “I’m not really sure what’s ‘miscellaneous’ ports and the reports submitted to the Depart- about recent break-ins on campus. about those items, but they were missing from ment of Education. One college, Empire State The Clery Act was passed almost 20 years the crime log, and I found them in the case College, reported statistics to the Department ago to ensure that college and university stu- log,” said Harper. of Education but had not created an annual dents are informed of criminal activity on S. Daniel Carter, director of public policy security report. campus. The act requires campus security for campus safety advocacy group Security “We’re not saying that we think anyone forces to maintain a log of all crimes commit- On Campus, said that consistently updated deliberately did it, but there is certainly infor- ted on campus and to distribute an annual re- campus crime logs are important in keeping mation that’s very concerning,” said Jennifer port of crime statistics. students informed about crimes occurring on Freeman, a spokesperson for New York State Amendments signed into law in August and around campus. Comptroller Thomas DiNapoli. 2008 require universities to publicize their “Each entry in the crime log is supposed The audit found some of the colleges over- emergency response plans and to “immedi- to contain an easily understandable descrip- reported crimes to the Department of Educa- tion, while others underreported incidents on their annual security reports. One school re- The point of the staff editorial was to say the police didn’t tell ported nine sexual assaults to the Department us about that. That is unacceptable. They should be alerting us to of Education, but only four in the annual se- violent incidents so close to campus.” curity report. Some of the schools misclassified Nick Coltrain crimes by categorizing crimes that fell under “ Editor in Chief of the Sagebrush, University of Nevada at Reno’s student newspaper winter 2008-09 www.splc.org • splc report 11 Access

to the Clery Act is the added requirement of a crimes that fell under these categories. Amending the Clery Act statement of “emergency response and evacua- tion procedures” to the annual security reports. l Whistleblowers exposing Clery Act violations Since it passed in 1990, the Clery Act Institutions are also required to immediately are protected from retaliation. has undergone several amendments. notify the campus of an imminent threat to The most recent amendments were students or staff. These measures are in part l Campus security departments are required signed into law on Aug. 14, 2008, as a response to Virginia Tech and other campus to disclose the extent of their law enforcement part of the Higher Education Opportu- shootings, and many campuses have installed authority as well as any agreements between e-mail, text message and loudspeaker systems campus security departments and state or local nity Act. The amendments expand the to meet this requirement. police on investigation. act’s reporting and emergency pre- paredness requirements. l Schools must now report hate crime-related l The Department of Education must report larceny-theft, simple assault, intimidation and to Congress each year on what it is doing to l One of the more well known amendments vandalism in their Clery Act statistics. Previ- enforce the Clery Act. ously, schools were not required to report hate Source: Security on Campus the Act’s definition of reportable burglaries residential facilities were probably included in modal system, instead of one method to have as larcenies, which are not required to be re- the student residential facilities column,” said many,” said Kiss. “This can be high or low ported. Carter in the Washington Square Times ar- technology, anything from text messaging sys- Carter said that the biggest question aris- ticle. He recommended that the school tems to on-campus loudspeakers to instant ing from the SUNY case was the definition specify which non-campus buildings messaging systems.” of burglary versus larceny or theft. While are dorms in order to clarify the At Western Kentucky University in burglary denotes unlawful presence or tres- information. Bowling Green, Ky., reports of armed gun- pass into private areas, such as a dorm room, men on campus caused officials to send out larceny covers the theft of items from public Immediate response emergency alerts via text message, e-mail and areas. Burglary is much more serious, said outdoor speakers telling students to seek shel- Carter. The Clery Act has long re- ter. Bob Skipper, the university’s media rela- “We’re very sensitive to that because the el- quired that colleges and universities tions director, said that about 1 percent of ement of illegal presence signifies a far greater notify students in a “timely manner” around 14,000 individuals did not receive potential threat than someone merely stealing to threats to their safety. Following the a text message. a book bag out of the library,” he said. “That’s Virginia Tech tragedy, amendments were “We know there are going to be some someone who’s not supposed to be there.” signed into law in August 2008 to require who don’t get the text message for whatever Freeman said that the comptroller’s office schools to have “emergency response and noti- reason,” he said. “That’s why we use the mul- had reported the inconsistencies to the De- fication procedures.” tiple layer approach.” partment of Education but it would be up to Many colleges have adopted a text mes- Other students say that their campuses the federal government to determine whether saging alert system that allows students to re- have emergency alert systems, but have not to take disciplinary action. ceive emergency notices on their cell phones, used them. Student editors at the University of Lauren Sheprow, a spokesperson for and others send out e-mails or have installed Nevada at Reno’s the Nevada Sagebrush wrote SUNY at Stony Brook, one of the colleges public address systems. an angry editorial in fall 2008 about how the cited in the audit for underreporting in its an- But there have been reports of bugs in campus police did not issue either an emer- nual security reports, stressed that the Clery the new systems. At Oregon State University gency alert or a “timely warning” to students Act violations only mean that the school is not in Corvallis, Ore., the campus phone system after a September shooting one block from reporting correctly and that overall safety is lagged behind the text messages and e-mails, campus. not an issue. The university has taken steps to as some calls came in 30 minutes after the ini- “The only way we found out about was correct its information and update the annual tial alert. Only a small fraction of the school’s through sheer dumb luck,” said Sagebrush security reports to match the Department of students and faculty had signed up for text Editor in Chief Nick Coltrain. He said that al- Education information. messages by the test date. though the university police responded to the “We take it very seriously. Obviously, we Jonathan Dolan, associate director of net- shooting as a backup unit, the incident was want to be completely compliant with the work services at the university, said that the not included in the campus crime log. Clery Act,” she said. low participation in text messages was “disap- Commander Todd Renwick of the UNR TheWashington Square Times, the student pointing,” but that the delays in the phone police department told the Sagebrush that newspaper for New York University, recently messages are a case of human error and would students had not been alerted because the reported that NYU’s Clery statistics were mis- be corrected. He said the phone delays did not incident posed no risk to students. Coltrain leading because most of the campus dorms affect public opinion. disagreed, saying that a shooting near cam- were categorized as “non-campus buildings” “Everyone was very positive and very sup- pus is something that students need to know rather than as campus residence halls in the portive of the system in general,” he said. about. annual security report. Alison Kiss, program director for Secu- “The point of the staff editorial was to say “Most people would look at the statis- rity on Campus, said that schools should have police didn’t tell us about that,” said Coltrain. tics and, not knowing the fine points of the multiple methods in case one malfunctions. “That is unacceptable. They should be alerting Clery Act, would probably assume that all the “We encourage schools to have a multi- us to violent incidents so close to campus.” n

12 splc report • www.splc.org Winter 2008-09 Access Sweeping under rugs

Finding truth takes time By Caitlin Wells have encountered a recurring conflict in the case between open records requirements and The dispute started on Oct. 14, 2007 exual assault is a serious cause for con- student privacy laws. when a female student- athlete was cern at any university, and when student The Press-Citizen requested the incident allegedly assaulted in her dorm room. athletes are involved, the cases can cause report as well as other documents relating to Oct. 15 Sa media sensation. Recent developments in the alleged assault soon after it occurred. Alleged victim meets with Athletic Department. an assault case involving two former football “We asked many different officials about She is informed that an informal investigation players at the University of Iowa in Iowa City would take less time and be handled immedi- these rumors, and they basically wouldn’t re- ately. She elects to go informally. have caused more than the usual furor. spond,” said Jim Lewers, executive editor for Oct. 19 In addition to the criminal trial, open re- the Press-Citizen. “And then once the universi- Iowa City Press-Citizen starts inquiring with UI po- cords lawsuits, inquiries into the university’s ty did acknowledge that this investigation was lice about the alleged assault. Police say they are handling of the case and accusations of former unaware of such an incident. going on, they wouldn’t answer other ques- Nov. 5 administrators suing for wrongful termination tions or release other documents.” Alleged victim contacts UI police for the first have sent the university into a media relations The university released several hundred time. nightmare. Nov. 13 pages of documents in September 2008, along On the night of Oct. 13, 2007, a female with an index of all withheld documents and Press-Citizen issues an FOI request for correspon- athlete says she was raped in an unoccupied dence between several university administrators the reasoning for withholding them. Lewers and a request for reports of sexual assaults from room in her dormitory by football players Abe said he did not know why the university ini- the beginning of October. Satterfield and Cedric Everson. The woman tially withheld these documents only to release Nov. 14 went to the Athletic Department, where she UI news release acknowledges alleged assault. them voluntarily 11 months later. Diane Staley Nov. 16 was told that an informal investigation would of the Iowa Attorney General’s Office, which is Iowa state Board of Regents notifies UI president allow the matter to be resolved quickly. representing the university in the lawsuit, said that it would investigate the university’s handling In a letter to the university in Novem- that the documents were released because they of the assault. This investigation concludes that ber 2007, the woman’s mother contends her were not of a confidential nature and part of the the university followed procedure. daughter was harassed by Satterfield, Everson Nov. 19 public record, but she declined to comment on and their friends following the assault and that Mother of alleged victim writes a letter to univer- why the documents were not released during sity criticizing Athletic Department. no steps were taken to remove her from the the initial request period. Dec. 7 situation until she brought the case to the po- Olivia Moran, the courts reporter for the UI releases some documents requested by Press- lice. The complainant also discovered that the student newspaper, said she has encountered Citizen but not others. Athletic Department had not told her that a Early January 2008 problems when tracking documents between Press-Citizen files suit against UI for documents. third student had allegedly been involved, and multiple attorneys once the information was May 16 that this student had been living down the hall released. Mother of alleged victim sends another letter to for several weeks. “I’ve been having a little bit of trouble get- the university. The local newspaper, the Iowa City Press- May 27 ting documents from the university because Citizen, filed a lawsuit in January 2008 to Arrest warrants issued for two UI football play- they’re still kind of unsure as to which docu- ers. Both later surrender to authorities and are obtain records relating to the school’s inves- ments they can release,” she said. charged. tigation into the alleged sexual assault when July 18 Staley cited three main types of confiden- UI failed to deliver all of the requested docu- tiality affecting the documents being withheld: Board of Regents learns of letters from alleged ments within the 20-day time limit. The uni- victim’s mother. student privacy laws, including FERPA and July 22 versity refused to release around 2,400 pages the corresponding Iowa law protecting student Regents vote to re-open investigation of universi- of documents, citing the Family Educational records; medical records protected under the ty’s handling of alleged sexual assault case. Rights and Privacy Act (FERPA) and other Sept. 10 Health Insurance Portability and Accessibility privacy laws. Both Act (HIPAA); and matters of attorney-cli- UI releases an index of all the documents rele- professional and vant to the Press-Citizen lawsuit and the reasons ent privilege. These documents include for withholding each one. student journalists administrator letters and e-mails Sept. 18 concerning the case, a summary of Independent law firm releases report to Regents that says university did not adequately protect al- the alleged incident given to Uni- leged victim but no cover-up was involved. versity Housing and two letters Sept. 23 from the female student’s mother. UI President fires vice president for student ser- The university did not release vices and general counsel. Oct. 21 these letters to the Iowa Board of UI files lawsuit against Des Moines Register to Regents, which governs all have a court clarify what the school is allowed to of the public universities release in relation to an Oct. 1 FOI request. See Iowa, Page 18 winter 2008-09 www.splc.org • splc report 13 Access Shining a light on campus politics

By Caitlin Wells because they are not public entities. Public his spring, banners and signs will adorn schools are considered campuses. Students will stand behind part of state govern- tables around campus, handing out fli- ment, and most school Ters and trying to convince passersby that their administrators and candidate is the best for the job. school boards are sub- For many, this scene will seem pretty fa- ject to state sunshine miliar. Students across the nation mobilized in laws — or open records November to get out the vote for the national and open meetings election, with supporters of both Sens. Barack laws. Charles Davis of Obama and John McCain plastering cam- the National Freedom puses with buttons, stickers and signs. But for of Information Coali- many students, spring marks another election tion said that students season: campus elections. interested in whether High school and college students will vote their state sunshine for the student leaders to represent and work laws apply to student for them in the coming year. Many schools governments can look Students at George hold elections for student body presidents, at the language of the Washington University class officers and student legislature positions, law that defines public in Washington, D.C. and some of these contests can get intense. post campaign signs bodies. For student journalists, covering elections for campus elections. “If it’s one that The student newspa- can lead to some interesting questions that can says public bodies are per, the Hatchet, cov- make or break a journalist’s coverage. agencies or subagencies ers elections inside- and-out. of public bodies that PHOTOS BY RYDER HASKE Public versus Private have decision-making (THE HATCHET). Information obtained through student authority, for example, government meetings and records, especially then I would say it’s When personal information is easily acces- those relating to elections, can be essential to fairly clear that a student government is cov- sible from MySpace, Facebook or the campus holding student governments accountable. ered under that state statute,” Davis said. rumor mill, it can be difficult for student jour- However, student governments may not be He said that even if student governments nalists to sift through it and determine what aware of open records and meetings laws, and are legally covered by state sunshine laws, they they can — or should — report. in some cases, might not know these laws ap- may still refuse to grant access to meetings or Most media law experts agree that it is hard ply to them. records. He recommends a preemptive ap- to invade a candidate’s privacy. James Tidwell, At the University of North Carolina at proach by asking student government officials chair of the journalism school at Eastern Illi- Chapel Hill, the student government Board of whether they think they are subject to the sun- nois University in Charleston, Ill., notes that Elections closed a meeting to reporters from shine law. “unless you’re peering in keyholes,” a reporter the Daily Tar Heel, the student newspaper. “If you get them on the record saying, can write about almost anything a candidate The board was discussing whether to fine stu- ‘We’re absolutely subject to the sunshine law,’ says or does in public. dent candidates for breaking campaign rules, well, you’ve saved yourself a lot of time and “I think that assuming they’re doing it in and the university’s student code allowed for money,” Davis said. public, that’s fair game,” said Tidwell. “If you closed meetings. After contacting open-meet- Rick Blum of the Sunshine in Govern- do it in public, in a public situation, you can’t ings law experts, the newspaper found that ment Initiative said that all student govern- complain when somebody says something student government bodies in North Carolina ments should try to follow sunshine laws about it.” are subject to the state’s open government stat- because those are the rules by which civic gov- One source of personal information that utes, and that the section of the student code ernments function. is becoming more and more pertinent to cam- cited by the board chairman was in conflict pus elections is social networking Web sites with these laws. How much is too much? such as MySpace and Facebook. While many Whether a school is a public or private college students might consider this private, it A reporter for the campus paper finds pic- institution can make a big difference when it is public as soon as it hits the Web. tures of a student presidential candidate on a comes to open records and open meetings law. “Employers are going to look at Face- social networking Web site in which the can- According to Adam Goldstein, Student Press book pages to see what people are really like,” didate is holding a marijuana pipe. Can the Law Center’s legal advocate, private school Tidwell said. “You’d think journalists would reporter write about his find? governments are not subject to these laws want to do the same thing.”

14 splc report • www.splc.org Winter 2008-09 Access

Butch Oxendine, executive director of the when reporting on something sensational or vertisements can seem like tricky areas. Some American Student Government Association, when accusing someone of doing something professional newspapers choose to endorse believes that students who are running for of- embarrassing or illegal, is to make sure the in- candidates for local and national elections, fice at public institutions should be prepared formation is true. and many allow political advertising, but to reveal everything about themselves. “Obviously, from a libel standpoint, they student journalists may feel uncomfortable. “That’s your job as the campus press, to just have to make sure what they’re publishing Tidwell said that whether to endorse student point out, ‘Look, this guy had a DUI two or airing is accurate,” he said. candidates is an ethical decision that is up to years ago. Does that show good judgment? Do Another factor when it comes to libel is the editors, but that there are no legal impedi- you want him representing you?’” he said. whether the person is a public figure. A pub- ments to publishing an endorsement even in a Law of the Student Press, a student media lic figure is defined byLaw of the Student Press publication that receives public funding. law guide published by the SPLC, noted that as someone who “voluntarily increased their Eric Roper, editor in chief of the George while some documents, such as court records, exposure to the public spotlight by assuming Washington University Hatchet, said its edito- are considered public, there are certain docu- roles of special prominence in the affairs of so- rial board has endorsed candidates for student ments and information that could be consid- ciety” and who has some access to the media governments for many years and the newspa- ered sufficiently private to give rise to a privacy to respond to false statements. per hosts a debate. He believes the endorse- lawsuit if publicly disclosed without consent. Tidwell said that when it comes to student ments benefit the campus by putting the Grade transcripts, medical records, student media, “a person running for office could be a paper’s news coverage in context and allowing evaluations and information from private public figure and someone in office could be experienced editors to analyze the practicality sources — such as diary entries or personal e- a public official, assuming they put themselves of each candidate’s platform. mails — are generally not considered “public in the limelight concerning controversial is- “When you’re an average student, it might records.” And, the book cautions, whether sues on the campus.” be helpful to get that sort of synthesis,” he information is “newsworthy” can make a dif- Public figures have to prove a higher degree said. ference. Information that has no connection of fault in order to prove defamation. Law of One of the arguments against endorse- to a public issue might not stand up to legal the Student Press cautions that it can be difficult ments is that they can make a paper seem bi- scrutiny. to determine exactly who is a public figure, es- ased, but Roper had never heard anyone com- Student journalists covering campus elec- pecially when it comes to school officials, and plain about the Hatchet’s endorsements. He tions should watch out for defamation and that student journalists should always write as explained that the paper goes to great lengths libel. These are false statements that cause em- if their subjects are private citizens. to ensure that the editorial and news sections barrassment or harm to another person’s repu- are completely separate. tation, and may lead to a lawsuit. Tidwell notes Ethical issues “We make it very transparent on the page the easiest way to avoid a libel suit, especially who’s participating in this meeting,” he said. Candidate endorsements and political ad- Matt Day, co-editor in chief of the Macal- ester College Mac Weekly in St. Paul, Minn., said that because Macalester is a smaller col- Student reporters arrested in protests at conventions lege, campus politics are laid back, and the Hundreds of protesters were arrested in Den- Weekly does not endorse candidates. ver, Colo., and St. Paul, Minn., during the Dem- “It just doesn’t seem like we need to pro- ocratic and Republican National Conventions, vide that voice,” he said. respectively, this fall. However, these mass Tidwell said that he sees no problem with arrests managed to snare student and professional reporters with the protesters. campus media endorsing candidates as long as An investigation by The Minnesota Indepen- the endorsements are made early to give the dent determined that about 46 of the over 800 other side a chance to respond. people arrested at the RNC were journalists Goldstein said there is no legal difference arrested for being close to protests, and about seven of the journalists were college students. between political ads and any other form of The American Civil Liberties Union of Colorado advertising. said that one professional and three student PHOTO BY BRITNEY MCINTOSH “Political ads are subject to the same journalists were arrested at the DNC in Denver. amount of protection and the same amount of Many of the journalists were released soon student, a friend and her adviser to cover the deference as anything else in the paper,” said after their arrest, and most were charged with convention, but spent almost three days in jail Goldstein. misdemeanors that were later dropped. How- before being released. She said that although ever, ACLU of Minnesota Executive Director she believes police were wrong to arrest her, she Charles Samuelson said that many independent knows they were just doing their job. The experi- SGA strikes back and student journalists who did not have press ence reminded her of the importance of journal- credentials were initially charged with felony riot, istic freedom, especially for students. Retaliation is a possibility that all student which was later reduced to misdemeanors but “I definitely feel like my job is more important media face, but with emotions running high not dismissed entirely. than ever before,” she said. “If the journalists University of Kentucky student photographer during elections, student journalists could face weren’t there to document what was happening, uncooperative student representatives and ob- Britney McIntosh, 19, was arrested on the first there’s no way people would know how out of day of the RNC while covering a protest. She trav- control things get.” stacles from students and administrators. eled to St. Paul from Lexington, Ky., with a fellow — Caitlin Wells See Elections, Page 18 winter 2008-09 www.splc.org • splc report 15 Libel/Privacy

Charleston, Ill., noted that many April Fools’ issues are “either lame, or they can’t come up with anything else and put ‘fuck’ in 96-point type.” Bathroom humor and gratuitous cussing may not bring down the wrath of the campus, but could lose readers’ respect and undermine the paper’s reputation as a trustworthy source of campus news, said Dave Reed, a student No media expert and former journalism professor at Eastern Illinois University. “Nothing makes a student newspaper look worse than when you do an April Fools’ Joke edition that makes you look like a bunch of morons,” said Reed. Washburn Review at Washburn University in Tidwell agreed, saying that students often April Fools’ Day issues Topeka, Kan., said that despite problems in underestimate the amount of effort necessary may seem funny, but can the past, she really wanted to put out an April to create a thoughtful and funny issue and be no laughing matter Fools’ issue for 2008. can end up paying for it long after the issue “I really think that in college papers we goes to print. By Caitlin Wells have a unique opportunity to not only pro- “Everyone wants to have fun and that’s vide the campus with news but also to provide fine, but if you have fun and make jokes at pril 1 is traditionally a day for them with not necessarily a commentary, but the expense of your reputation as a serious practical jokes like changing your a kind of flavor that you can’t necessarily get journalist, then you’re not doing yourself any Afriend’s MySpace picture, stuffing in professional journalism,” she said. favors,” he said. the toes of your sibling’s shoes with socks or However, as many student media experts resetting your roommate’s alarm clock to 5 point out, satire and comedy are not as easy Satire is hard a.m. Many high school and college newspa- as professional comedy writers make them pers also jump into the act, publishing an seem. Student journalists spend most of the Satire is an extremely tricky area for any April Fools’ Day issue to skewer school poli- year writing about factual events, and the writer, student or not, said Kelly McBride of cies and poke fun at the news they cover seri- one-day leap into comedic writing does not the Poynter Institute, a school for profession- ously for the other 364 days of the year. always turn out well. al journalists. Because its goal is to mock ex- Sometimes, though, the students work- There are several cases of April Fools’ is- isting people or situations, it has the potential ing on the paper are the only ones who get the sues that attempted to satirize racism only to be very funny or a huge headache. joke. Student newspapers have faced suspen- to come off as racist themselves. The 2005 “The problem is that satire is very diffi- sion, theft, and angry students and professors April Fools’ edition of the Drew University cult to do well, and most [students] don’t do in response to controversial pieces in April Acorn caused a campus-wide uproar because a very good job at it,” said Tidwell. Fools’ issues. Articles with immature humor it contained a letter to the editor written in a Stephen Colbert and the Onion make or questionable taste can reflect poorly on the style mocking African-American speech. Of- satire seem effortless. But McBride warned newspaper long after April 1 ends. fended students at the Madison, N.J., school that satire is an especially touchy and inflam- However, creating a humorous publica- stole copies of both the April 1 issue and the matory form of comedy, even for professional tion that entertains writers and readers, while following week’s, which contained a letter of journalists. not easy, is not impossible. apology. Two campus meetings between of- “Satire is always risky; take it out of its fended students and editors ended in shout- intended audience and it’s certain not to fly,” Easy to mess up ing matches, and the university considered she said. “And with the Internet, we can always take any piece of information out of its Many schools have a tradition of pub- instituting a prior review policy. In the end, editors estimated that they lost about $2,700 intended audience and deliver it to another lishing a joke issue on April Fools’ Day, with audience that will be offended.” stories that stretch the truth. It provides stu- in printing and advertising costs from the theft. Administrators at Stetson University dents the opportunity to poke fun at campus in DeLand, Fla., fired the entire staff of the events and issues they usually take seriously. Students have faced retaliation for inappropriate or offensive April Fools’ issues, with campus newspaper, the Reporter, over a 2003 “They’re a lot of fun,” said Mike Hies- April Fools’ issue that contained a satirical tand, legal consultant for the Student Press offended students stealing and destroying newspapers and administrators suspending sex column that advocated rape. The stu- Law Center. “I think that [students] recog- dent editors said they had not realized how nize it as an opportunity to get away from student editors or publication of the paper altogether. inflammatory the column would be and that the day-to-day routine of doing regular news, had they known how it would affect campus, and that readers also appreciate and have Another sort of problem can arise when the humor is immature. James Tidwell, a they never would have published it. some fun with it.” Hiestand said that students tend to un- ReAnne Utemark, editor in chief of the professor at Eastern Illinois University in

16 splc report • www.splc.org Winter 2008-09 Libel/ Privacy derestimate the effort that goes into crafting fused to allow the paper to publish again until truly effective satire. it published a “statement of ethics.” Not-so-funny mistakes “They really do need to be thought about Hiestand said that though students from April Fools’ issues and satirical ar- and worked on, and have a couple pairs of private schools face harsher punishments if ticles intended to cause gut-busting eyes take a look at it before it goes to press,” administrators find the paper offensive or -in laughter have ended in tears. he said. “Things that are funny at 2 o’clock appropriate, the standards for libel and other Carnegie Mellon University Tartan in Pitts- one morning aren’t necessarily funny at noon legal issues are pretty much the same. burgh, Pa. the next day.” Controversy: In their April Fools’ edition, includ- Protect yourself ed a cartoon containing a racial slur and poems High school vs. college about rape When it comes time to put together an Consequences: Protests on campus; editor in Students who publish controversial or April Fools’ Day issue, there are several things chief and managing editor both resigned; university established a commission to review the offensive material in their April Fools’ issues editors can watch for to decrease the likeli- paper may find themselves defending their content hood that their humor will backfire. Libel to their fellow students or, in some cases, to and defamation suits can be a problem with Drew University Acorn in Madison, N.J. their school’s administration. April Fools’ Day issues. Tidwell, an attorney, Controversy: Featured satirical letter to editor about Pan-African Studies major entitled “Afree- “I often joke that April 2 is our busiest said that most libel and defamation suits are can Studiez be all up in my grillpiece bout diver- day of the year at the Student Press Law Cen- based on the claim that a reasonable person shizzle and izzle” ter,” said Hiestand. who read the story would believe that it is Consequences: Some students and faculty However, what actions administrators based on actual fact, and taking certain steps believed piece was racist; paper ran apology in may take can differ depending on whether can decrease what people would believe is next issue; copies of both April Fools’ and following issue stolen totaling loss of $2,700 the students involved are in high school or true. college. Tidwell recommended separating the Stetson University Reporter in DeLand, Fla. “High school publications could be con- “joke” stories of the April Fools’ issue from Controversy: Officials believed the issue con- trolled a lot more by principals and school of- the real news of the regular reporting, wheth- tained racist joke and a sex advice column advocating rape ficials,” said Tidwell, adding that high school er by labeling the section, changing the name Consequences: University fired entire staff and students have the added burdens of creating of the paper in the “joke” section to indicate suspended publication of the paper for the re- content that is age-appropriate and relatively that it is not the “real” paper, or including the mainder of the year inoffensive while still being funny. McBride satirical and comedic stories as a supplement Pioneer High School in Ann Arbor, Mich. noted that high school students may face to the regular newspaper. Controversy: Seven students published four- steeper consequences for infractions than “We always tell them to make sure that page satirical underground newspaper that their college peers. somehow people can figure out pretty quickly made fun of students and teachers An Eighth U.S. Circuit Court of Ap- that it’s an April Fools’ edition and intended Consequences: Teachers found the paper of- peals decision in Stanley v. McGrath directly to be fun, not intended to be taken seriously,” fensive and upsetting, and the students were addressed the issue of satirical issues at pub- said Reed. each suspended for five days lic universities. The Minnesota Daily, student This advice should be applied to online newspaper of the University of Minnesota in versions of the stories as well. Administrators Minneapolis, published a finals week issue in at Hamline University in St. Paul, Minn., less likely you are to get into legal trouble, be- 1979 that lampooned the administration and shut down the newspaper’s Web site tempo- cause the bottom line is for something to be contained satirical pieces that offended stu- rarily after the university was flooded with libel, it’s got to be something which a person dents, administrators and members of the recalls from alumni and others who had mis- can reasonably interpret as fact,” he said. ligious community. The Board of Regents, the taken an April Fools’ story for fact when it McBride said that because of the risks in- governing body for the university, attempted showed up on search engines without a dis- herent to satire and the maturity level neces- to cut funding to the newspaper, and the stu- claimer. sary to get it right, she advised against high dents took the case to court. The court con- The Michigan Journal, the student news- school students attempting satire. cluded that cutting the paper’s funding due to paper of the University of Michigan at Dear- Reed warned student journalists that al- its content violated the First Amendment. born, had a similar problem. Editor in Chief though April Fools’ issues take up a great deal Private colleges, however, have a great deal Kristina Calvird said that one already-contro- of time and energy, they should be sure not more power to punish student newspapers for versial story — which satirized the campus’ to neglect their regular reporting duties. offensive or inappropriate content, said Hi- many candlelit vigils by describing a fictional “Whatever time you put in to try to get estand. A cartoon in the April Fools’ issue of candle factory fire — was put on the paper’s out an April Fools’ edition is time you’re not the Tartan at Carnegie Mellon University in Web site and picked up by a local news outlet putting into the regular paper and serving Pittsburgh, Pa., sparked student protests and that mistook it for fact. your readers by trying to find out what’s go- forced the resignation of the editor in chief In addition to physically separating the ing on, and keep them alerted to problems, and managing editor. At the University of humorous stories from rest of the paper, and things a newspaper is supposed to be do- Scranton in Scranton, Pa., the vice president Tidwell said that the subject matter of the ing,” he said. of student affairs shut down the paper, locked stories themselves make a difference. “But,” he added, “they’re great fun when the editors out of the publication office and -re “The more outrageous something is, the they’re well done.” n

winter 2008-09 www.splc.org • splc report 17 Access

Access in brief Libel/Privacy in brief From Iowa, Page 13 in Iowa, during its initial investigation. The Education department Students sue after Regents did not learn of them until they were published in the newspaper. finds UVA incorrectly oral sex story in high There is a dispute over why these letters were not released during the first investigation. used privacy laws school newspaper UI President Sally Mason told the Board that VIRGINIA — The Department of WASHINGTON — Four current the university incorrectly interpreted student Education has ruled that a confidentiality and former students from Emerald Ridge privacy laws to mean that the letters were to be policy formerly in place at the University High School in Puyallup, Wash., are suing kept private, said the Press-Citizen. of Virginia in Charlottesville violated the the school district, saying they were quoted A second investigation conducted by the Clery Act by making victims of sexual as- by name without permission in an oral sex Stolar Partnership, an independent law firm, sault sign an agreement not to release in- story that appeared in the JagWire student concluded that there had been no cover-up formation about their cases. newspaper. but that the university had made several mis- Campus safety group Security on The suit, filed Nov. 12, claims that the takes in handling the case. The report cited Campus filed the complaint with the De- JagWire invaded the students’ privacy by general counsel Marcus Mills and Vice Presi- partment of Education in 2004 on behalf publishing details of their sexual history, dent of Student Services Phillip Jones as fol- of Annie Hylton, a former UVA student which subjected them to harassment and lowing university policy but not doing enough who was forced to agree to a confidential- ridicule, and that no permission was given to protect the alleged victim. Both Mills and ity agreement after she took her sexual as- to print their names. The newspaper and Jones have been fired for their role in the in- sault case to the University Judiciary Com- the district said the students gave permis- vestigation, and Jones is pursuing legal action mittee. sion for their names to be used in connec- for wrongful termination. University officials The university had said that the con- tion with their statements. are standing by the Stolar report. In the event fidentiality policy was necessary to com- Student publications in the Puyallup that Jones’ case goes to trial, he could produce ply with the Family Education Rights and school district are now subject to prior re- evidence to the contrary. Privacy Act (FERPA). Students who talked view under a new district-wide policy. Ad- The Press-Citizen’s lawsuit has yet to be about their cases faced disciplinary action. ministrators justified the policy as protect- decided. In a brief it released in September, The Department of Education ruled that al- ing the district from legal action. Student the university claimed that because the Press- lowing victims to talk about their cases did editors are working with the Student Press Citizen knows the names of the football play- not violate FERPA, and that the policy at Law Center and the Washington Journal- ers and the alleged victim, there is no way to the time violated UVA’s obligation to dis- ism Educators Association to have the redact all identifying information so all the close serious crimes under the Clery Act. n policy reversed. n records should be withheld. After the Des Moines Register, a newspaper about 110 miles away in Des Moines, Iowa, requested records related to student sexual as- “Campus politics can certainly get From Elections, Page 15 saults over the past three years, the university See Tinker, Page 20 nasty,” he said. “And of course, the student filed a lawsuit seeking a ruling on which re- The Messenger at City College of New media that have to go hat-in-hand to stu- cords it is obligated to release. York faced difficulties in 1998 after a stand- dent groups for funding and so forth are Lee Rood, the Register’s special projects off with the college administration. The obviously asking for trouble.” editor, believes the lawsuit will be dropped. college had elected a slate of activists to Newspaper theft can also be a problem. The Register sent the university another open the student government that opposed the Several thousand copies of the University records request that said the university’s law- administration, and the college president of Central Arkansas Echo in Conway, Ark., suit set bad precedent. declared the student government elections were stolen in September, and editors for “Before outlining a new request, I would void and changed the locks on both the the paper believe the copies were stolen be- like to state for the record how disappointed I student government and the newspaper’s cause of an article criticizing the student am that no good-faith effort was made whatso- offices. She justified these actions by saying president. ever to provide the answers sought,” the letter that the newspaper had been biased toward Tidwell added that bal- stated. the candidates. A lawsuit filed by the stu- anced coverage could prevent Lewers said that although the case could dent candidates against the president was these problems. drag on for months, the Press-Citizen will con- heard in U.S. District Court in October “It’s impor- tinue to push for the documents. 2008 and has yet to be decided. tant to make “Now we know their side of how many James Tidwell pointed out that trouble sure you cover documents, and we know why in general can come not only from the administration, everyone and terms, and we also have the documents re- but from student candidates that feel the not give people leased [with the report],” said Lewers. “But newspaper’s election coverage was overly the excuse to say we still would argue that many, many more negative or biased. Often, this resentment your coverage is bi- of those documents should be released, and so can take the form of funding cuts. ased,” he said. n we’re certainly pursuing our case.” n

18 splc report • www.splc.org Winter 2008-09 High school censorship

1969 / Peace Three Iowa students’ silent protests with black armbands led 2008/Policy to a landmark victory for student Today, three speech 40 years ago. Arkansas t was November 1965 when teenagers John Tinker and Chris Eck- students hardt were on a bus to Des Moines, Iowa, after participating in a protest against the Vietnam War in Washington, D.C. A discussion still struggle Ibegan about wearing black armbands to show disapproval of the for a voice conflict. The death toll had not reached its peak, and the war was inside the in its infant stages of public discourse. But to John, 15 at the time, and Eckhardt, 16, the lives being sacrificed in Viet- schoolhouse nam were too many. John described his parents as activists against dis- gates. crimination and the Vietnam War. John said they hen Chris Lowry, raised him and his siblings to be aware of the world Colton Dou- around them at a young age. gan and Michael JosephW walked into their high “We have two active wars going on right now. Back then, war and the killing was a school in Arkansas on Oct. 6, 2006, horrible thought,” he said. “Now it just they did not expect to be filing a law- seems everyday reality. For us it was just a suit against the school in federal court human reaction to a horrible thing.” four days later. On Dec. 9, 1965, Sen. Robert F. And their attorney from the American Civil Kennedy urged the United States to Liberties Union in Arkansas, Holly Dickson, did extend a 12-hour Christmas Eve not expect to find herself in front of the very same U.S. truce the Vietcong in Vietnam Court of Appeals that had handled a similar case almost suggested. 40 years earlier that she thought had conclusively settled the The Tinker and the Eck- students’ right to peaceful protest — Tinker v. Des Moines Inde- hardt families felt they had pendent Community School District. a mission after hearing It all started when Lowry’s mother, Wendy Crow, joined other citizens in addressing the Watson Chapel school board with See Tinker, Page 20 concerns regarding the school dress code policy. Crow felt it was unfair to impose punishments on her son, who has Attention Defi- cit Disorder and sometimes could not remember to bring his name tag or belt to school. After the meeting, parents met to discuss what actions could be taken by the students to stand up for themselves. Crow and Lowry decided to go on the Internet to find ways to peacefully protest at the high school. They found the Tinker case and immediately wanted to do the same type of peaceful protest to oppose the school’s dress code policy. They bought black fleece and made armbands. Crow printed out the Tinker Supreme Court decision, and her children handed copies out to other students in school with the intention of teaching them their First Amendment rights. It was nearly four decades earlier that Mary Beth Tinker, John Tinker and Chris Eckhardt were disciplined for wearing black armbands to protest the Vietnam War, challenged the discipline and won their case at the U.S. Supreme Court in

See Lowry, Page 45

Stories By Alberto D. Morales

winter 2008-09 www.splc.org • splc report 19 High School Censorship High SchoolAccess Censorship Then and now 40 years ago, Tinker and Eckhardt families solidified Black armbands continue to raise important speech questions First Amendment rights for all students on school grounds for students protesting issues on-campus

From Tinker, Page 19 band. She did. After the students were suspended, they met at From Lowry, Page 19 other states. Kennedy’s plea. They felt the arm- the Eckhardt’s home to call the school board president. But he 1969. The decision now protects students’ rights to express “I don’t think he understands that he’s bands had to be worn to protest the refused to speak to them. their views at school nationwide. done a really great thing,” Crow said. war and support Kennedy’s urgency John and some other students decided to wear the arm- The only difference between the modern day case and Lowry said he was not nervous at all when for a truce. bands the next day. He was told he could not return to school the one 40 years ago was that Lowry, Dougan and Joseph he went to school that day and knew the other Mary Beth Tinker, John’s then- wearing an armband, and John complied after the American protested the dress code policy by wearing the black arm- kids at school disagreed with the dress code 13-year-old sister, said she learned Civil Liberties Union of Iowa felt they would lose a case if the bands on their wrists, forearms or biceps. None wore the policy. her viewpoints on moral and politi- students were labeled disobedient. John said he was praised by black armband over any part of their uniforms; the dress code “Everybody wanted to wear one because cal issues while watching television some teachers, including one teacher who asked him to talk policy allowed wristbands as long as they did not overlay the they didn’t like the dress code policy,” Lowry reports from the war. about the Vietnam War in front of the class. uniforms. The school even sold black rubber wristbands at a said. “And, they wanted to stand up for their “The images from the Vietnam But Eckhardt’s recollection of that day is not so pleasant. pep rally with the school’s name on it. Still, the students were rights.” War on TV that we would see every- Eckhardt said his father dropped him off at school that cold, suspended for wearing the anti-dress code armbands. The Watson Chapel School Board ap- day after school … ” she said. “Like families snow-filled morning. His plan was to go into school, reveal As Lowry v. Watson Chapel School District began its trial pealed the Eighth Circuit’s decision at the U.S. fleeing from their homes, soldiers injured on the armband and immediately walk to the principal’s office to at the federal district court level on Sept. 11, 2007, Dickson Supreme Court in the ground and being put in body bags.” turn himself in. said she was confident. On Oct. 31, 2007, the district court December. The armband protest became public when “I had butterflies in my stomach, and I was scared,” Eck- ruled in favor of the students. The school district appealed the “They weren’t student Ross Peterson wrote an article about hardt said. case, to the Eighth U.S. Circuit Court of Appeals, arguing punished for wearing it for Roosevelt High School’s newspaper that His mother, Margaret, was scared for his safety. The day the district court ruled incorrectly in relying on the Tinker the armbands, but for the adviser turned over to the principal. Prin- before the protest, pro-war students verbally threatened any precedent. the message,” Lincoln cipals around the Des Moines Independent fellow students they thought were going to protest. “Defendants attempt to distinguish Tinker by empha- said. “We are fighting Community School District were also The principals’ ban on armbands largely succeeded. The sizing that the Tinker students protested the federal govern- to determine whether informed of the student protest, and seniors who initially were to protest feared it would hurt their ment’s Vietnam war policy, whereas here the protest object or not it’s permissible on Dec. 14, 1965 — two days be- chances at getting into college. But Eckhardt, a sophomore at was merely a dress code,” the three-judge panel on the Eighth to regulate the time, fore the protest — in a secretly held the time, said he felt he was doing the right thing. Circuit wrote in their opinion. place, and manner of meeting, they adopted a policy to ban “When the vice principal threatened me with a busted This point was argued also by Ivy Lincoln, an assistant a student protest of a armbands. nose, a tear fell from my eye,” Eckhardt said. superintendent of finance and compliance and civil rights school rule using ap- Tinker said he remembered being The vice principal called in an adviser who tried to con- coordinator with the school district, saying Tinker was being parel.” worried and felt that he and his fellow vince Eckhardt to take the armband off because protesters were misinterpreted by the ACLU because protesting a national Lowry’s case students should appeal to the princi- not accepted in college and that he was too young to have an event was different from protesting a local event. caught the eye of John pals to change the policy. When the opinion. They questioned Eckhardt about why his parents had “If a second-grader wants to protest the War in Iraq to- Tinker, one of the liti- Chris Lowry, top, and day of the protest came around, Eck- put him up to it. Eventually, Eckhardt was suspended until he morrow, then that kid won’t get in trouble here,” he said. gants in the case 40 years ago. Tinker had a few fellow students, includ- hardt and Mary Beth wore the arm- came back to school not wearing an armband. But the appeals court did not agree saying, “whether stu- choice words to say about Lowry’s case and ing Emma Brown, left, bands to their schools. Mary Beth was According to the evening paper, the Des Moines Tribune, dent speech protests national foreign policy or local school about the school district’s position. used the Tinker deci- the only one at Harding Junior High John, Mary Beth, and Eckhardt returned to school after board policy is not constitutionally significant.” Lincoln said he did not agree with the sion as a starting School wearing a black armband. Christmas break on Jan. 4, 1966 without armbands, but with Watson Chapel School Board’s attorney also argued to the way the ACLU was interpreting the Tin- point to protest “I was nervous and scared, and I another form of protest. Eighth Circuit that Tinker was different than Lowry because ker lawsuit. their Arkansas went to my morning classes and not They decided to wear black clothes for the remainder of the dress code policy in place was made well before a protest “Tinker is not on point,” Lincoln school’s dress too much happened,” she said. “But I the school year. There was no opposition from school admin- even occurred. In Tinker, the policy to ban armbands was said. “Black armbands are a logical code by wearing knew after lunch I was going to go to istrators or students, “and, everyone knew what it stood for,” made after a school principal learned of a planned protest. trap.” black armbands. Mr. Moberly’s class, my math teach- John said. But again the Eighth Circuit disputed Watson Chapel’s Tinker heard of the case and re- After being sus- er. And I knew I was going to get in It was during this time in 1966 that the students and their argument by saying Tinker and Lowry were similar in facts. sponded to Lincoln’s comment. pended, the students trouble there because the whole day families set in motion what would become a First Amendment “We hold that Tinker is so similar in all constitutionally “Yeah they were a logical trap,” Tin- filed a lawsuit and Mary Beth Tinker, top, Chris Eckhardt, before in class he talked about how landmark, the case of Tinker v. Des Moines Independent Com- relevant facts that its holding is dispositive,” they wrote. “In ker said. “And they fell for it.” won, solidifying their middle, and John Tinker garnered kids were going to get in trouble if munity School District, which failed at both the district and both cases, a school district punished students based on their Dickson said Watson Chapel School First Amendment national attention in 1960s for their they wore armbands to school.” circuit court levels. non-disruptive protest of a government policy.” District believed their policy was the law. rights on campus. silent protest at their Des Moines, And she did get reprimanded Dan Johnston, the cooperating attorney who took on the A few days after the three-judge panel’s decision was filed, She said Americans, in general, are not PHOTOS COURTESY OF Iowa schools, which would lead to s when the math teacher told her to case for the ACLU of Iowa, was a few years out of law school at Crow said she did not think her son understood the mag- standing up when their rights are being WENDY CROW landmark ruling in student speech. go to the principal’s office where she the time. He said he never thought the case would go past the nitude of the case. Crow did not realize that her son’s case violated, but in this case, teenagers broke PHOTOS COURTESY OF MARY BETH AND JOHN was ordered to remove the black arm- would be legal precedent, not just in her state, but also in six TINKER AND CHRIS ECKHARDT. See Tinker, Page 22 See Lowry, Page 22

20 splc report • www.splc.org Winter 2008-09 winter 2008-09 www.splc.org • splc report 21 High school Censorship

From Tinker, Page 20 “In order for the State in the person of clean air, clean water, a safe place to live, a place district court level. school officials to justify prohibition of a par- to live and a world that is safe and is not filled “I thought we should have won at the trial ticular expression of opinion, it must be able to with so much violence,” Mary Beth said. “So, court, and I thought we should have won at show that its action was caused by something I thought if I could encourage kids to speak the Court of Appeals,” Johnston said. “And, I more than a mere desire to avoid discomfort up for themselves and make things better for was surprised both times we didn’t win.” and unpleasantness that always accompany an themselves in these areas, then I should do Johnston said he took the case because he unpopular viewpoint,” Fortas wrote. “Certain- that, and I should tell them my story about the felt a strong empathy for the rights of the stu- ly where there is no finding and no showing armband case and how speaking up for what dents because he felt they were a minority. that engaging in the forbidden conduct would you believe in can make a big difference.” “They were certainly a minority in their ‘materially and substantially interfere with the Mary Beth recalls seeing her math teacher views,” Johnston said. “They were a religious requirements of appropriate discipline in the in 1992 when the Des Moines School District minority first of all because they were Quak- operation of the school,’ the prohibition can- invited her, John and Eckhardt back to speak. ers and Unitarians. And out of those religious not be sustained.” “Mr. Moberly was there, and he gave me traditions came this political view, which was a In the dissenting opinion, Justice Hugo a big hug,” she said. “And I asked him would minority political view at the time, which was L. Black, who had been an ardent supporter he do the same thing now and he said the ad- opposed to the Vietnam War.” of the First Amendment, stunned the Tinker ministration made the ruling and he had to The case was argued before the U.S. Su- family and Johnston with his views. comply.” preme Court on Nov. 12, 1968, and the deci- “It may be that the Nation has outworn John lives in Missouri and runs an infor- sion was handed down in favor of the students the old-fashioned slogan that ‘children are to mational Web site where he hopes more soon Feb. 24, 1969. The final ruling was 7-to-2. be seen not heard,’ but one may, I hope, be cial activists will go to get educated about the Eckhardt said watching Johnston argue permitted to harbor the thought that taxpay- world around them. the case in front of the Supreme Court justices ers send children to school on the premise that Johnston, who is semi-retired and living was a moment he will never forget. at their age they need to learn, not teach.” in New York, takes on a few cases. He said he “Dan, as far as I was concerned, was a Johnston said he remembered reading does a lot of sailing and jokingly commented, rooster cocked with his feathers full blown Black’s dissent and being disappointed because “I answer a lot of questions about Tinker.” and he knew in his heart we’d won also. I felt he was one of his favorite justices since his un- As an adult, Eckhardt had a scrape with grand, and Dan was walking on clouds.” dergraduate studies. the law and served time in prison on a charge Justice Abe Fortas wrote one of the best- “He was really good on free speech stuff, of misappropriating money. He said Tinker known opinions in Supreme Court history and he just seemed to have a blind side on this molded his life. that continues to defend students’ free speech case that I’ll never understand,” Johnston said. “Two out of my top five peak experience rights around the country. “He was just mean.” moments were, one, walking out of the Su- “It can hardly be argued that either stu- While John and Johnston say they do not preme Court knowing we’d won and, two, dents or teachers shed their constitutional feel the case molded their lives or careers in when I was officially told we won,” he said. rights to freedom of speech or expression at any direction, Mary Beth said the case defined Eckhardt currently lives in Florida and is the schoolhouse gate,” Fortas wrote. her life, leading her to be a nurse who largely an advocate of human, prisoner and gay rights Fortas addressed the U.S. district court’s works with kids and teenagers. Today, Mary as expressed through his writings on his per- ruling that concluded the actions of the school Beth travels around the country to speak at sonal Web site. He said he would never take district to punish the students who wore arm- First Amendment events to encourage young back any events that occurred in response to bands was reasonable because they feared it children to think differently. the lawsuit — bad and good. would cause a disturbance. “I realized that kids need not only First “It shaped my life, it affected my life, and Amendment rights, but kids have a right to I loved it all,” Eckhardt said. n

So, I thought if I could encourage kids to speak up for themselves in these areas, then I should to that, and I should tell them about my story, about the armband case and how speaking up for what you believe “in can make a big difference.” Mary Beth Tinker From Lowry, Page 21 Tinker said his lawsuit, nearly 40 years it to hear the case. ago, gave him a degree of added confidence. The school district is asking the Court the status quo. Forty years later, one more person has to decide whether the Eighth Circuit im- “The silence is sometimes deafening gained a little more confidence, as well. properly applied Tinker saying the “misap- when it comes to civil liberties violations,” “It makes me want to do a lot more ac- plication of Tinker can have far reaching Dickson said. “Because we have been com- tivism,” Lowry said. “I like standing up for effects” and that the Supreme Court must placent about exercising and protecting our myself.” intervene to resolve a “split among the civil liberties, you get enclaves of entities In December, the Watson Chapel Eighth, Fifth and Ninth Circuit Court of like this who certainly won’t respect them School District filed a petition for certio- Appeals concerning the application of Tin- and are surprised that anyone would dare rari to the U.S. Supreme Court asking for ker to school dress codes.” n call them on a civil rights violation.”

22 splc report • www.splc.org Winter 2008-09 High School Censorship Rights undressed By Alberto D. Morales ing it a misunderstanding of a line in the dress Dress code violators code policy. September 2007 – s millions of high school and middle More cases have popped up across the Heather Gillman, a student school students walked through the country in which students were disci- at Ponce de Leon High School in Ponce de plined for what they called expressive Leon, Fla., wore a rainbow belt and a schoolhouse gate after summer vaca- handmade T-shirt that read: “I support Ation, many found their T-shirts were not so apparel, including face paint, eyeliner gays” in support of her cousin who was accepted by strict administrators and teachers. and piercings. David Hudson, with the chastised by school administrators for Since late August, a cluster of students First Amendment Center in Nashville, being a lesbian. Gillman sued the school district for banning pro-gay symbols. A wearing T-shirts with messages deemed inap- Tenn., is not sure why there has been a sudden spike of cases. federal judge ruled in favor of Gillman in propriate by faculty or administrators have May 2008 and ordered school officials to been reprimanded. Some First Amendment “I don’t know whether it’s just students lift the ban. In July 2008, the court ordered advocates are saying they do not remember are more cognizant of their First Amend- the school to pay $325,000 in attorney’s fees, when T-shirts have been a problem like this. ment rights or it’s that school officials saying the Holmes County School Board vi- are stricter in enforcing dress codes and olated the students’ First and Fourteenth Nearly 30 students from Millard South Amendment rights. High School in Omaha, Neb., were suspend- uniform policies,” Hudson said. April 2008 – A student at Hutchinson ed on Aug. 27 for a three-day period for wear- One thing Hudson is sure of: this is Middle School in Hutchinson, Minn., was ing a T-shirt memorializing a fellow student not the first time he’s heard of students banned by administrators from wearing T- shirts with pro-life messages on National who was murdered during the summer. Kelsey being censored by school administrators for the messages printed on their shirts. Pro-Life T-shirt Day. The student sued and the Penrod, a 17-year-old senior, said she did not school settled with him, paying attorney costs expect to walk into school and be suspended He became interested in studying cases of and $1 in damages. August 2008 – for wearing something school officials deemed T-shirt censorship in the early 1990s Twenty-seven students “gang-related.” when he said it became continuous at Millard South High School in Omaha, and caught his attention. Neb., were suspended for wearing a T- The shirt read “Julius RIP” on its front, shirt that read “Julius RIP.” School offi- with a photo of slain student Julius Robinson, A federal district court in 1992 cials said the term “RIP” was gang-related. 18, smiling. While Penrod had no agenda oth- took up the case of a Norfolk, Va., stu- The district eventually lifted the suspensions er than to memorialize a classmate, adminis- dent attending Blair Middle School, who from the students’ records and let them wear the shirts after the American Civil Lib- trators claimed “RIP” was a gang symbol. The caused an uproar when she wore a T-shirt of her favorite pop band New Kids on the erties Union of Nebraska got involved. American Civil Liberties Union of Nebraska September 2008 – Jake Shelly, a student at got involved and eventually the district quietly Block. The shirt’s message: Drugs Suck! Dos Palos High School in Dos Palos, Calif., was removed all the suspensions and allowed the The district court ruled in Broussard v. disciplined for wearing a tie-died American students to wear the shirt. School Bd. of City of Norfolk that Kim- flag T-shirt that read, “United States of berly Broussard’s T-shirt was not pro- America, Washington, D.C.” Shelly was Robinson’s story is not the only T-shirt forced to wear a yellow shirt that read censorship story in the country. A dress code tected under the First Amendment “DCV: Dress Code Violator” as substi- violation mishap occurred on Sept. 16 at Dos and could be prohibited “based on tute for his shirt. The school district later Palos High School in Dos Palos, Calif., after reasonable forecast of disruption,” and apologized after protests. Daxx Dalton, a fifth grader at Aurora student Jake Shelly came to school wearing a that the “school’s determination that ‘suck’ was lewd, vulgar, or offensive was Frontier K-8 school in Aurora, Colo., was tie-died American flag T-shirt with the mes- suspended for wearing a homemade T- sage, “United States of America, Washington, not merely prudish failure to distinguish shirt that read, “Obama is a terrorist’s best D.C.” The new school vice principal deemed vigorous from vulgar, but was (a) decision to friend.” The boy’s father said he was thinking of the shirt a violation of the dress code policy regulate middle school children’s language into pursuing a lawsuit. socially appropriate speech.” Alison Reinholtz, a student at La Quinta High that prohibits “shirts/blouses that promote School in La Quinta, Calif., was told she specific races, cultures, or ethnicities.” But a less restrictive ruling was hand- could not wear two stripes of “war For the rest of that school day, Shelly was ed down in 1992 when the Ninth paint” on her face for her yearbook forced to wear a bright yellow replacement U.S. Court of Appeals in Chandler v. picture. Reinholtz said she wore the stripes to represent her recently dis- shirt given by the high school principal that McMinnville School Dist. ruled in favor of high school students who wore covered Cree Indian roots. read “DCV: Dress Code Violator.” Vice Prin- November 2008 – Students report- cipal Heather Ruiz realized her mistake and buttons reading: “I’m not listening scab”; edly were told to take their anti-Obama apologized to Shelly and his parents. But soon “Do scabs bleed?”; “Scabs” with a line T-shirts off because of the message: after, local media reported the story and stu- drawn through it; “Scab we will never “Obama Loves Osama BFF” at Klein forget”; “Students united for fair settle- Oak High School in Spring, Texas. A dents protested by wearing red, white or blue school official said students were allowed to school the next day. The superintendent of ment”; and “We want our real teachers back.” to wear shirts supporting a presidential candi- the district also made a public apology, call- date but not if the candidate was paired with an See Dress Code, Page 24 offensive message that creates a disruption. winter 2008-09 www.splc.org • splc report 23 High School Censorship

From Dress Codes, Page 23 school officials would have realized pretty The political messages protesting the school quickly that this is not something the court is Know before you fight district’s decision to hire replacement workers going to allow me to get away with.” Hudson agreed, saying some administra- The First Amendment gives students during a teachers strike were deemed a disrup- the right to express themselves but tion by a vice principal, and the two students tors do not have a good understanding and grounding with the U.S. Constitution. with some limits. Know your rights be- involved were suspended. The court later ruled fore going up against administrators. in favor of the students, upholding their right “I think they are in the mindset that to express their political views on the buttons. courts should defer to school administrators 1) Decide whether the T-shirt or sticker is truly Hudson said courts nationwide have not and courts should not be in the business of be- meant to express a message. Once speech is had a consistent pattern on cases of free ex- ing a grand superintendent,” he said. the reason for wearing attire, the first hurdle has been jumped. pression regarding T-shirts and other forms Hudson advised students to challenge of expression and that the U.S. Su- some of the dress code policies 2) Speech advocating the use of drugs is preme Court will have to make in their schools through not protected according to the U.S. Supreme that decision. peaceful civil disobedience Court, unless the speech is a political view. Mike Hiestand, legal such as wearing protest consultant for the Student buttons or armbands. 3) Stay away from speech that is considered Press Law Center, said he is He said that some stu- indecent or vulgar. amazed that schools are fight- dents, in order to gain ing in court to defend what ap- more rights in their 4) Don’t be subtle in your political speech. In pear to be clear-cut violations of the freedom to express Morse v. Frederick, a 2007 Supreme Court their ideals on cloth- decision in which an Alaskan student held First Amendment. up a vague and unclear message, the court “There’s a lot of these cases ing might have to “go ruled against the student. Hiestand said over- where I don’t know why they through some trials broad statements are something students n are ending up in court,” Hi- and tribulations.” want to avoid in their political speech. estand said. “In years gone by,

High School Censorship in brief

ing the school violated the First Amend- Prior review policy 2 Calif. high school ment. removed from papers shut down Mount Si High School CALIFORNIA — Two California high ‘Bong hits’ case school newspapers, in Belmont and Fall- settled out of court WASHINGTON — Administrators and brook, were shut down after administrators students at a Snoqualmie, Wash., high deemed published content inappropriate. ALASKA— After nearly seven years of school came to a compromise in Novem- At Carlmont High School in Belmont, litigation, including a decision from the ber to get rid of a prior review policy that administrators shut down the paper after U.S. Supreme Court, the high school free prompted the students to withhold pub- editors published a satirical column of a speech battle known informally as “Bong lishing their paper. student deeming himself as “sexy.” A school Hits 4 Jesus” is over. Student editors of Cat Tales refused spokeswoman said the decision had noth- According to a press release by the Amer- to create content for the paper after they ing to do with the column but instead was ican Civil Liberties Union of Alaska, both learned in September that their principal because the adviser to the paper quit. But parties settled all claims, including $45,000 wanted to enforce a 14-year-old prior re- a letter from a vice principal said the paper to be paid to former student Joseph Fred- view policy. Administrators claimed that was shut down because of the column. erick. Of that amount, $25,000 will come the prior year’s editor had used offensive The school district in Belmont re- from the City and Borough of Juneau. The language. started the Carlmont High School paper a remaining amount will be paid from the The students published their first - is week after their local senator, Leland Yee, school district’s insurer. Frederick’s actions sue on Nov. 10 without prior review. The publicly chastised the school for the cen- punished by the school were expunged from Washington Journalism Education Associa- sorship. his official school records, as well. tion mediated the new policy with the prin- At Fallbrook High School, the Toma- The informal moniker, “Bong Hits cipal and the students to make sure a high hawk student newspaper was shut down 4 Jesus,” refers to the landmark First standard of journalism is practiced. If stu- after two articles critical of the school ad- Amendment case that reached the U.S. dents are not sure whether content should ministration were censored. The Student Supreme Court in 2007. Frederick later be published, they will get advice from the Press Law Center and the American Civil said he intended for the message, which local paper’s editor. Liberties Union have filed a lawsuit claim- he saw on a bumper sticker, to be “a little bit controversial” and “absurdly funny.” n

24 splc report • www.splc.org Winter 2008-09 Cover Story

Two thumbs UP

The Student Press Law Center gets calls every day from student journalists with problems ranging from access questions to outright censorship. For many students, these legal issues can be daunting. But students from three schools decided to take a stand and make sure their rights were recognized. The SPLC gives Curtis High School’s Viking Underground, University of North Carolina at Chapel Hill’s Daily Tar Heel and Eastern Kentucky University’s Progress two thumbs up for preserving their rights.

By Alberto D. Morales By Erica Walters By Caitlin Wells olin Moyer, 18, has no current he freedom of expression torch once ditors of the Eastern Progress, student plans to become a professional carried by former editors at the newspaper for Eastern Kentucky journalist but felt it was his civic Daily Tar Heel was passed to a new University in Richmond, Ky., scored Cduty to start his own independent newspa- Teditor to ensure that the legacy of the 2005 Ea victory for open records in an appeal to per at his high school. freedom of expression agreement remains at the Kentucky attorney general that chal- Curtis High School in University Place, the University of North Carolina at Chapel lenged the university’s redaction of informa- Wash., has not had a school newspaper for Hill. But after a new chancellor was named tion from campus police reports. four years, according to the principal and in 2008, the agreement had to be signed Former police reporter Ben Kleppinger, Moyer. So when Moyer went to Principal again. a 22-year-old senior, noticed that the sum- David Hammond in April 2008 to tell him Allison Nichols, editor in chief, was a mary crime reports provided by the campus he wanted to spearhead the effort to create freshman when two former UNC editors police department contained numerous re- the publication, Hammond had no objec- approached then-Chancellor James Moeser dactions that seemed to be growing more tions. for his signature on a freedom of expression and more excessive as time went on. Early in “I talked to him about why we don’t agreement. It was 2005 when the agreement 2008, Kleppinger observed that the depart- have a paper and if he had some interested became an idea after the federal appeals ment was redacting not just highly personal kids, then we could probably find some- court case Hosty v. Carter challenged the information such as Social Security num- body to run the school paper,” Hammond idea of freedom of the press on college cam- bers, but curse words, portions of conversa- said. “And he didn’t want to do that. He puses in Indiana, Illinois and Wisconsin. tions and other information, often without wanted to do it this way, kind of outside Hosty v. Carter delivered bad news to explanation. the school.” the student newspaper at Governors State “They were censoring stuff that was just Moyer said he has not had any prob- University in University Park, Ill., after it absurd,” Kleppinger said. lems yet, and that his teachers have spoken allowed the college to censor the student The campus police department had to him and his staff about how they sup- newspaper. Margaret Hosty and two other been voluntarily supplying the Progress with port his efforts. student reporters sued the dean after she free police reports, and the university took Moyer said he decided to create the stopped the publication of the Innovator, the the position that it could freely redact these paper after a separate issue with the school student newspaper, because the staff refused summary reports. A full report made via made him feel that a student voice was to submit articles for prior review. However, an open records request, however, could be

See Viking, Page 26 See UNC, Page 27 See EKU, Page 28 winter 2008-09 www.splc.org • splc report 25 Cover Story High schooler starts own paper Moyer, with help from classmates, began Viking Underground to speak out From Viking, Page 25 know why, but there’s just needed at the school. He said he determined something about it that I it was easier to start an independent paper like.” because administrators and former advisers Vaskina said the staff made it sound too difficult to start one in has not heard any objec- school. tions from administrators So, with his final year at the high school at the school, but said coming up and with no prior experience in they were prepared for journalism, Moyer started planning at the such a conflict. end of the 2007-08 school year to find stu- “Even if they did, they dents and organize an effort. He went to the couldn’t do anything Washington Journalism Educators Associa- to stop us,” Vaskina tion conference and spoke with journalism said. “Since we’re advisers at other schools to learn the methods underground, we’re of putting a print newspaper together. protected by the First While at the conference, Moyer said he Amendment. And, be- The staff of the Viking Underground picked up a business card of a company he sides, we’re responsible pose for a staff photo. This is the Viking felt would do a good job printing the paper. not to write anything Underground’s first year in production He then put out a business letter and started inappropriate.” after Curtis High School had not hosted meeting local businesses to get advertising to Hammond said he a newspaper in four years. support his cause. He also created a mission was a little uncomfort- PHOTO COURTESY OF COLIN MOYER statement, journalistic ethics policies for his able after hearing the staff to follow and a “statement of freedom,” description of the paper But Hammond remains opti- which was crafted with First Amendment but kept an open mind. mistic saying the superintendent of protections in mind. He said he understood the the school district has seen the pa- On Aug. 19, a few weeks after the confer- school’s rights to determine per and showed her support to Moyer by e- ence, the Viking Underground was born. Its the manner of distribution for the paper, and mailing him and praising him for his work. motto: “For the students, by the students.” as long as it did not “disrupt the educational Vaskina said the staff has not had any The paper came at a cost, though. He had process,” he had no problems. ethical or legal concerns. little time to attract advertisers for the first is- “When you have something called an “A lot of it, at least to me, seems like sue to pay for the printing costs, so Moyer ‘underground newspaper’ and you’re a high common sense, stuff that you can and can’t used the money he earned over the summer. school principal, obviously there are some put in it,” she said. “But if we do have advice With that, he was able to get 750 copies for concerns,” Hammond said. “But Colin is do- issues, I know we have the SPLC.” the first issue and hand out 650 copies during a great job, and one of his goals, if you The staff hopes the paper will survive ing the school’s registration day before the look at the Web site, is to be fair and bal- through next year when Moyer, Vaskina and school year officially began. anced. He’s a very ethical young man, so I the majority of the staff graduates. They plan “We got not one single, negative reac- don’t have any issues with that.” on having a recruiting cycle of sophomores or tion,” Moyer said. “But we didn’t have any- He admits, though, if the paper had con- juniors to take on the paper. thing in the first issue that would make ad- tent in it that he felt was unethical, then he Moyer said other students who are in- ministrators unhappy.” would tell the students they would not be al- terested in starting their own publications Moyer does not take all the credit though. lowed to hand the papers out during school should be prepared to dedicate much time He said his “right-hand woman,” fellow senior hours but would still be able to do so outside and effort to it. Juliya Vaskina, does a great deal of the work. of school. “I would tell them if you really want to As the managing editor, she shoots and edits “I told him that I would be looking at do this, don’t do it half way,” Moyer said. photos, draws cartoons and designs graphics. the content, and I would want the first copy “You have to really go all the way into it and She also created the paper’s Web site. to review before he hands it out because if find people that are really strong leaders for Vaskina, 18, said she heard about the there’s a story in there that’s favorable I don’t your staff.” idea of starting a newspaper from a teacher in have a problem with that,” Hammond said. He said he still has time for a personal life her English class. “But if it’s unfavorable and they haven’t thor- and not all is dedicated to just the newspaper. “I really, really like it,” she said. “This is oughly researched both sides and aren’t repre- He said his grades have not been affected and one of the things I’m passionate about. I don’t senting both sides, I do have a problem with credits organization. n that.”

26 splc report • www.splc.org Winter 2008-09 Cover Story Ensuring freedom to all

From UNC, Page 25 he said. “The biggest drawback to the agree- wished more universities, public and private, ment is the fact there has to be an agreement, would have such agreements or statements Hosty v. Carter a federal appeals court in ap- but a little preventative medicine — in the about their policy. Hazelwood v. Kuhlmeier — plied in which form of a free expression agreement — never Nichols said Thorp has been open and ac- the Supreme Court decided that public high hurts.” cessible to the Daily Tar Heel and that he has school newspapers, not established as public Although Nichols, a senior, was a fresh- demonstrated a commitment to working with forums, are subject to lesser First Amendment man at the time, she understood why the edi- the newspaper. The agreement, however, is not protection — to the college level for the first tors before her were proactive in ensuring the one sided; the Daily Tar Heel and the univer- time. Daily Tar Heel’s right to freedom of expression sity are in good relations. Although the ruling only applied to the and the press. In 2008, UNC appointed a new Erica Perel, adviser and former editor, said Daily Tar Heel Seventh Circuit, former Edi- chancellor, which meant that the freedom of the paper has not had a problem with the uni- tor in Chief Ryan Tuck sought an agreement expression agreement needed renewal with a versity censoring the paper in the past. with Moeser out of fear that campus publica- new signature. “TheDaily Tar Heel, since it is an indepen- tions at UNC may be censored. It was signed Chancellor Holden Thorp signed the dent newspaper, the agreement doesn’t change in 2005. agreement on Aug. 13 solidifying the Daily a whole lot,” she said. “It is good to know the While remembering what the former edi- Tar Heel and UNC student publications’ free- chancellor believes in the mission of our news- tor did, Nichols said the process to have the dom of expression. However, he amended the paper, that it is student-produced and a teach- agreement was easy because the chancellor was original version to pertain only to “exclusively” ing newspaper.” willing to cooperate with the newspaper. student-edited publications. The agreement Perel said that learning is an important Mike Hiestand, legal consultant at the now states, “As chancellor of the University part of student newspapers, and even though Student Press Law Center, said that the idea of North Carolina at Chapel Hill, I, Holden mistakes may occur, Chancellor Thorp be- that the independent student press can bring Thorp, support the editorial independence lieves in the newspaper’s teaching mission and about change remains strong. and press freedom of all exclusively student- does not wish to censor the content. Her ad- “The agreement shows a commitment to edited campus media.” The agreement allows vice to students who want to have a freedom the idea that student free speech on American for the students to work freely at the univer- of expression agreement should point out how college and university campuses is an essential sity-level without fear of being censored. journalism enhances education and is benefi- ingredient to a robust learning environment,” The Daily Tar Heel is the only indepen- cial for college. dent publication on campus free of student “College should be a loci of free inquiry fees. The other dozen or so publications are and free expression,” said David Hudson, not. author and scholar at the First Amendment We feel like we have to advocate “We feel like we have to advocate for all of Center. for all of our peers.” our peers,” Nichols said. Although UNC officials signed an agree- Allison Nichols The agreement that Nichols kept alive ment to freedom of expression, the newspa- protects all student media, including the Daily per continues facing issues that student media “Editor in Chief of the Daily Tarheel, student newspaper at the University of North Carolina at Tar Heel, even though it has been independent commonly confront. In October, the Board of Chapel Hill since 1929. Elections closed its doors to student reporters Gene Policinski, vice president and during a meeting. The Daily Tar Heel argued executive director of the First Amend- that the group could only declare a closed ment Center, said when a university signs meeting after giving nine specific reasons such an agreement it is valuable on many why the meeting should be closed. However, levels. the board only cited one. Because of this, the “It provides for some additional le- Daily Tar Heel published articles regarding the gal protection from censorship,” he incident and spoke with the chancellor. said. “It is a statement to the Even though the Daily Tar Heel is not broader college community completely free from journalistic problems, that that institution supports the freedom of expression agreement and its freedom of expression and financial stability without university funds has free press.” kept the newspaper from being censored. UNC’s chancellor signed the agreement, The Daily Tar Heel’s re- Nichols said that becoming financially right, to ensure freedom of expression for quest for a speech agreement independent as well as having a good relation- students, like those in the Daily Tar Heel is not common on most ship with administrators are the best ways to newsroom, above. n PHOTOS COURTESY OF THE DAILY TAR HEEL campuses. Policinski said he ward off censorship.

winter 2008-09 www.splc.org • splc report 27 Cover Story Uncoding the redactions

From EKU, Page 25 Progress faculty adviser Reggie Beehner praised Kleppinger for filing the initial re- redacted only if all redacted information fit quests and appeal, noting that he did this the narrow definition of Kentucky Revised largely on his own. Statute (KRS) 61.878(1)(a). The statute “I’m just proud of Ben, that he saw what allows a state employee to withhold other- he thought was unjustified action and took wise-public information as long as it is “of a it upon himself to see it through to the end,” personal nature where the public disclosure Beehner said. thereof would constitute a clearly unwar- Following the attorney general’s ruling, ranted invasion of personal privacy.” the university made it clear that they accept- Kleppinger and his then-editor, Marty ed the decision and were going to work with Finley, decided to file a Freedom of Informa- the paper to deliver reports. tion request for the full reports from several Ben Kleppinger, editor in chief of Eastern “In light of the recent AG’s opinion, the weeks in March 2008 to compare with the Kentucky’s student newspaper, challenged his University is specifically reviewing how it free voluntary police reports and determine university’s police report redaction policy. provides police reports to The Eastern Prog- exactly what had been removed. When PHOTO COURTESY OF BEN KLEPPINGER ress,” Associate Vice President of Public Re- the requested documents arrived, editors lations Marc Whitt stated in an e-mail. found the university had not included cer- addresses from the reports. Kleppinger returned to the Progress tain crime reports in the weekly free reports “We are aware of no prohibition on dis- as editor in chief for the new school year. and the full reports still had addresses, ages closure of campus addresses appearing in an Throughout the fall semester, he and the and phone numbers redacted. Kleppinger incident report, or according them greater Progress staff worked with the Eastern Ken- decided to appeal the case to the Kentucky protection, with the exception of the ad- tucky general counsel and the police depart- attorney general’s office. He called the Ken- dresses, whether campus or home, of vic- ment to obtain full police reports without tucky Press Association to make sure he had tims of sexual offenses,” Attorney General having to file open records requests. Now, a case, and then wrote up and submitted the Jack Conway stated in the decision. the department issues full reports to the appeal himself. Kleppinger and the Progress staff were Progress every week, and in cases where the For several months, Kleppinger and the thrilled by the outcome. reports must be redacted due to an ongo- Progress continued to file open records- re “Basically, it verified everything we ing investigation, the department provides a quests for police reports and put pressure on claimed when we made our appeal,” Klep- summary report of the case. the university. The attorney general’s office pinger said. “It told the university that they Kleppinger is glad to be finally working sided with Kleppinger. The decision, issued can’t censor just whatever they want to in with the university to keep the campus in- July 24, said that Eastern Kentucky Univer- the police reports based on the KRS statute formed. When considering what he would sity had overstepped the law by removing they were citing.” have done differently, he wished he had learned more about open records law before the case began because some of the information he requested was actually legal for Kleppinger changed the look of campus police reports the university to withhold. As a police reporter, Ben Kleppinger noticed crime logs were unusually black “I would probably research what from redactions. Now the student newspaper can report on crimes fully. the law specifically allows the university to redact before I complain to the university about things they actually Before After were allowed to redact,” he said. Kleppinger also noted that the case took up a lot of effort and time, vs. and that anyone in a similar situation should expect to fight hard to achieve any change. However, he had no re- grets about the appeal. “I think we did exactly what we needed to do,” he said. “We saw a problem, developed a plan to fix the problem and got the university to work together with us on that.” n

28 splc report • www.splc.org Winter 2008-09 Cover Story Do-it-yourself

Going underground Fighting for freedom Searching for records Step 1: Decide whether you want your If possible, get an agreement in place Freedom of information laws allow journalists independent/underground paper to be on- before a censorship incident occurs. It’s to request government records. These laws line, in print or both. Once you have done much harder to negotiate a blanket policy ensure that government records and meetings that, figure out what laws protect you during (or immediately after) a dispute, so remain open to public scrutiny. locally and federally. wait until any open hostilities have died This may be different down. Freedom of information laws can be divided depending on whether into five categories: you are in a private or Have the student publications staff, not 1) federal Freedom of Information Act publicly funded school administrators or their lawyer, draft the 2) state open record laws policy. Seek independent advice from a 3) the federal open meetings law Step 2: Decide what licensed attorney knowledgeable about 4) state open meetings laws kind of content will be media law, if needed. 5) miscellaneous state and federal freedom of published. Be vigilant information provision for libelous or obscene Take the “Goldilocks” approach to You can check your own state’s laws at www. content in your publica- detail: Not too much, not too little, just splc.org/openrecordlaws. tion. The First Amendment right. Avoid making exclusive lists that does not protect this type limit your rights – for instance, even if Records requests can be made verbally in many of speech. you aren’t publishing online today, make states by calling or visiting the relevant office. sure the policy leaves room for that in the Written requests are needed for federal records Step 3: Do not lightly defy school policies. future. and can be helpful for obtaining information Some school policies could be considered from state agencies that may not respond to a unlawful, but some may not. Courts look Although policies verbal request. unfavorably on censorship claims by should protect students who are defiant just for the sake student speech in When writing a request letter: of defiance. all forms, a policy -cite the relevant FOI law should specifi- -note the specific time constraints and any Step 4: Observe the line between le- cally mention penalties gitimately provocative journalism versus student media -describe the material you are requesting in inciting disruption. You can advocate on and student such a way that someone familiar with the controversial matters, but do not create a editorial con- subject matter would be able to find it: try not to “how-to guide” that instructs readers on trol. be too broad or narrow in your requests violating the law or disrupting the learning -be courteous and professional process. Cover the agreement as a news story in your medium. You can find SPLC’s open records law letter Step 5: Do not use shock value just for at- Help students understand the importance generator at www.splc.org/foiletter.asp, which tention. Using racy or vulgar words/photos of free speech, and that they — not just allows you to fill in the blanks to create your is a lightning rod that attracts censors’ at- the media — are protected. own FOI request letter. In the event that your tention and may detract from the serious- FOI request is rejected, you may be able to ap- ness of your message. Some edgy content You should have good access to your col- peal. The appeals process should be described is fine if used in context and newsworthy, lege president, but if you don’t, work your in the relevant FOI law. The appeal usually such as controversy over a coach’s use of contacts and use go-betweens. Outside involves writing a formal letter to a higher profane insults. third parties – alumni, attorneys, the pro- authority. If the appeal is denied, there fessional media – can be allies if carefully may still be hope. Some states allow Step 6: Do not use other people’s photos cultivated. for administrative review or a court or graphics without permission. Whether case. At this point, you might online or on paper, publications must Remember that, at a public university, an want to consult a profes- respect copyright laws. Get legal advice agreement makes life easier but should sional for advice. Source: if you are unclear on what is a lawful not be a necessity. Except for the states Law of the Student Press amount of excerpts from others’ work. covered by the Hosty decision (Wisconsin and Indiana), college student media enjoy broad First Amendment protections, and Online Get the SPLC’s full guide to in those states, an agreement merely surviving as an underground confirms what the Constitution already publication by visiting us requires. online at: http://www.splc. org/legalresearch.asp?id=40

If you have any problems or questions, contact the Student Press Law Center at (703) 807-1904 to get free legal help. winter 2008-09 www.splc.org • splc report 29 Internet Undefined attacks: Gossip sites prompt ‘bullying’ crackdown people to be OK with that, I think is ridicu- New Jersey is be- By Alberto D. Morales lous,” Grage said. lieved to be the first state f you did a Google search for the name Grage said he understands the likelihood to seriously contemplate “Thaddeus Grage” you would find the of the posting being taken down is “slim to disciplining college-aged Indiana University at Bloomington soph- none” but wishes the college was able to come adults partaking in cyber- Iomore’s name associated with some unsavory up with in-house policies protecting students bulling. Most enforce- allegations on the anonymous gossip Web site from defamation on sites like JuicyCampus. ment efforts have focused on the elementary, JuicyCampus.com. That suggestion is not so far from reality. middle and high school levels. Grage says what is posted on the Web site Mark Goodman, Kent State University could possibly hurt his chances with future Legal ramifications Knight Chair in Scholastic Journalism and employers, especially if the site becomes as former executive director of the Student Press popular as social-networking sites like Face- In August 2008, New Jersey Attorney Law Center, said that while policies like this book or MySpace. General Anne Milgram sent a two-page let- are becoming popular among administrators “You really don’t care until you’re the vic- ter to New Jersey college presidents explaining in elementary and high schools, this was the tim, until you are publicly humiliated,” Grage that Milgram’s office was launching an investi- first time in his decades advocating for stu- said. “As long as someone wasn’t saying any- gation into JuicyCampus to “protect residents dents’ First Amendment rights that he has thing about me, I didn’t go on (JuicyCampus. of the State.” Milgram wrote that with in- seen this type of recommendation at the col- com), and I didn’t really care.” creased access to social-networking Web sites lege or university level. But Grage says he was a target of a female with “personal information regarding students “It fails to recognize that we’re talking former student who wanted a relationship … posted on the Internet using these forums, about adults here,” Goodman said. “Admit- with him. Grage said she was the one who increased harassment has occurred.” tedly, some may be young adults, but on many anonymously posted his name and labeled Milgram then asked the presidents to campuses some are 21 and older. The idea that him a “disgusting lying sleaze ball” who “sends check school polices and to “incorporate the the state attorney general, let alone the college naked pictures of himself” and “has unpro- topic of cyber-harassment, which includes administration, should play the role of nanny tected sex.” stalking, bullying, and/or sexual exploitation, for these adults is just ludicrous.” He first learned of the post from his neigh- into your school’s code of conduct, with con- Goodman said college students writing bor’s girlfriend from another Indiana-based sequences for those who engage in these activi- off-campus speech on Facebook or MySpace college. Grage did not know who posted the ties.” as well as independent college publications comment in March 2008, but he had an idea David Wald, spokesperson for the New could be punished, if a policy like this is ap- it was his former classmate. He cut ties with Jersey Attorney General’s Office, confirmed proved. her before his name was posted on JuicyC- the letter was sent to all the state’s colleges and “A mainstream student newspaper or ampus. universities, including private institutions. a more traditional college student publica- Grage said the former classmate confirmed He said personal information like college tion probably won’t have a lot of problems,” she wrote the post after trying to apologize students’ dorm room addresses and phone Goodman said. “But what I would be more to him two weeks before her college gradua- numbers was part of the reason Milgram concerned about is the more alternative pub- tion. When contacted, the former classmate wrote the letter to college and university lication; especially those that are Web-based declined to discuss the matter except to that presidents. that may publish harsh criticism of other stu- the “original posting as far as I know, is in fact “That’s part of it and of course things that dents.” true” and that “I wouldn’t care if anyone post- are malicious and just wrong,” Wald said. Goodman advised public colleges or ed about me because I’m not insecure enough “Those are the things we worry about when universities in New Jersey and elsewhere to really care what some anonymous person people abuse the Internet.” who feel they are being put in a situation has to say about me.” to reprimand students for cyberbullying to For the first week the rumor was on the make sure they talk to attorneys who under- Web site, Grage said it only slightly bothered stand how the courts have applied the First him, and he tried to laugh it off with friends Amendment on college campuses. He said who poked fun. But then more students colleges could oppose this type of request started posting replies on the original rumor, from the state attorney general on constitu- making it more popular among Indiana Uni- tional grounds. versity students visiting the site for the latest “What I see this letter and press release gossip. doing is not even just inviting, but almost de- “For someone to be able to publicly hu- manding that college and university officials miliate somebody and not tell who it is and for intervene when unpleasant expression occurs

30 splc report • www.splc.org Winter 2008-09 Internet

Fargo said he understands the concern that some people who are topics on JuicyC- Defining “Cyberbullying” ampus may have, but said on the flip side of l l l | things, the Internet is really the only medium cy ber bul ly | sībərboŏlē| that is still free, open to the public and not noun government-regulated. “I can’t speak for the world, but I get the 1 “Cyber bullying is the use of modern communication technologies to embarrass, sense there are mixed feelings about this,” he humiliate, threaten, or intimidate an individual in the attempt to gain power and said. “Everyone can picture themselves hav- control over them.” — Glenn Stutzky, Michigan State University ing 3,000 e-mail messages saying, ‘I just read 2 “Online bullying, called cyberbullying, happens when teens use the Internet, cell you’re a lying sleaze ball on the Net’ and hav- phones, or other devices to send or post text or ing the feeling you can’t do anything about images intended to hurt or embarrass another it.” person.” — National Crime Prevention Council A group of First Amendment advocates 3 “One or more acts by a pupil or a group of including the SPLC, the New Jersey Society pupils directed against another pupil that consti- of Professional Journalists and the Founda- tutes sexual harassment, hate violence, or severe tion for Individual Rights in Education wrote or pervasive intentional harassment, threats, or a letter to the New Jersey attorney general in November 2008 raising caution flags about a intimidation that is disruptive, causes disorder, blanket prohibition on “bullying.” In the let- and invades the rights of others by creating an cyberbully? ter, the groups acknowledge that threatening intimidating or hostile educational environment, speech is not protected by the First Amend- and includes acts that are committed personally ment but warn that prohibiting harmless or by means of an electronic act.” — California Assembly Bill 86 speech under the undefined legal term “bul- 4 “Cyberbullying” is when a child, preteen or teen is tormented, threatened, ha- lying” could cause constitutional problems. rassed, humiliated, embarrassed or otherwise targeted by another child, preteen or “An open-ended directive that colleges teen using the Internet, interactive and digital technologies or mobile phones. It has enact codes of conduct that punish the use of to have a minor on both sides, or at least have been instigated by a minor against computers for ‘bullying’ will invariably cause another minor. Once adults become involved, it is plain and simple cyber-harass- some administrators to penalize lawful speech ment or cyberstalking. Adult cyber-harassment or cyberstalking is NEVER called that falls within the protection of the First Amendment,” the groups wrote. “There is a cyberbullying.” — StopCyberBullying.org difference — qualitatively, and constitutionally — between speech that threatens versus online,” Goodman said. “It is setting up these like Grage’s. that which merely causes hurt feelings.” schools for First Amendment lawsuits by peo- “The problems this highlights is kind of Goodman agreed and said “bullying” is ple they attempt to punish or censor.” a growing problem that there are conditions not illegal as long as it does not reach legal ha- He also recommended to students who that exist with the Internet that don’t exist with rassment or libel. are punished or censored for protected speech other publishing groups,” Fargo said. “Mainly, “‘Bullying’ doesn’t have a legal definition is at the university or college levels to make sure you can be anonymous on the Web, and there what it boils down to,” Goodman said. “What they take action against those institutions for is law that protects them.” they are trying to do is use amorphous, un- violating their First Amendment rights. Fargo said the Telecommunications Act defined terms as a legitimate justification for “The students can take them to court, of 1996 gives exemptions to Internet service restricting constitutionally protected speech.” and I hope they will,” Goodman said. “But providers, which includes sites like JuicyC- He also said students on college campuses what I believe is that colleges will be smart ampus. in New Jersey who have a MySpace page, blog, enough to get advice from lawyers about He said that if someone were to take a or any other form of communication on the what legally they can do before they take any case like Grage’s to court, the facts would be Internet should be worried. actions.” highly sympathetic on the side of the com- “Those who are most likely to fall victim plainant, but the law would favor the Web to this request are the Web-based publishers of information critical of others,” he said. “For Ethical concerns site operator. Fargo says that if the owner of JuicyCam- example, any student who on a Facebook page Anthony Fargo, an associate professor at pus does not create content on the Web site says something mean about another student the Indiana University School of Journalism, and is just a “common carrier,” then the owner could find themselves in a situation if univer- specializes in media law and media ethics. He is not liable. He compared the relationship sity officials take this seriously, that suddenly addressed Grage’s conflict with his media law of a common carrier to the phone company they’re threatened with punishment as a result class after reading about it in the local newspa- — a person can make an illegal phone call but of that.” per. He said two-thirds of his class knew what the phone company is not responsible for the JuicyCampus was. Fargo said courts across the call. country have been split on defamation cases See Cyberbully, Page 34 winter 2008-09 www.splc.org • splc report 31 Internet From the pen to the masses Web 2.0 tools can get student news out quickly, cause new legal issues can bring an instant backlash — in her class and admits to self-censoring be- By Alberto D. Morales case, from a journalism professor who cause of the precarious situation. witter. It is a name many student jour- was the target of her commentary. “There are a lot of times when nalists coming back from media con- “It was just the kind of stuff you my first instinct would be, ‘Wow I ventions have heard so often. would say on Twitter. And I’m so want to Twitter what she just said’ TThe “micro-blogging” service is used to used to blogging and micro-blogging or ‘I want to Twitter what just hap- communicate with people on the Web with about what happens to me in my daily pened,’” Taylor said. “But I don’t be- similar interests. The purpose of the Web site life, that was just another event to me,” cause already I know there’s so many is to “tell us what you’re doing in 140 charac- Taylor said. people watching me and not every- ters or less.” Taylor, 20, says her NYU journal- one agrees with it.” Instead of creating a blog post with a head- ism professor told her not to Twitter While remaining active in line, photo and body of text, Twitter users give or blog about class discussions after part-time journalism jobs she status updates (aka a “tweet”) similar to fea- she wrote an online entry on the popu- gained through Twitter, Taylor says tures used on social-networking sites like Face- lar blog MediaShift. The site is run by the Pub- the future looks bright for Web 2.0 tools for book but with the same amount of content lic Broadcasting Service (PBS) and is widely the future of journalism. space as a text message. And the service has read among the journalism community. “I think with all these new tools and ev- become a social-networking hit. According to In the opinion article “Old Thinking erybody sharing their information, it’s like September 2008 Nielsen Online ratings, Twit- Permeates Major Journalism School,” Taylor there is just going to be so much more content ter had 343 percent growth in comparison to wrote that her professor started explaining to find in smaller micro-communities that can the prior year. how blogs “are becoming more important” be created,” Taylor said. While Twitter is still young, student jour- and asked the 16 students if they had a blog. While there has been high-profile First nalists have taken advantage of its marketing “One hand slowly rises. It’s mine. None of Amendment litigation concerning students’ capability. Ashlee See, a student disc-jockey for the other students in the class have a blog. It rights to comment about school events on so- Seattle (Wash.) University College radio sta- comes as a shock to me that the students in a cial-networking sites, Taylor’s is believed to be tion KSUB, said she started tweeting for per- class about ‘how our generation is very much the first instance of a college student drawing a sonal messages and decided to expand it to the invested in the Internet’ are not actually as in- rebuke for comments made using Twitter. student radio station. volved,” Taylor wrote. “Again, perhaps I am an With journalism migrating into popular “It’s been kind of mixed reviews,” See said exception to the norm, but I like to think that Web 2.0 tools like Twitter, MySpace, Face- of the reaction to her use of Twitter in con- having a blog is as normal as having a car.” book, YouTube and Flickr, the question is how junction with her radio program. She said she Her professor read Taylor’s 1,500-word traditional principles of the First Amendment “Twitters” when she is on-air for her weekly opinion article and several tweets about the and media law will apply in these instanta- show and gets a small audience that listens to class and was not happy, according to Taylor. neous and sometimes highly informal chan- the online-hosted radio show. Taylor said her professor called her to her of- nels of communication. Some college newspapers are using Twit- fice and told her not to blog or “tweet” about Adam Goldstein, Student Press Law Cen- ter, too. The Daily Tar Heel at University of class or what the professor said. Taylor said ter attorney advocate, says people using these North Carolina-Chapel Hill uses the service to her professor, Mary Quigley, told her “that Web services could face all the same legal get information out quicker and to a different I bashed the school, burned her as a source, problems that may occur on more traditional audience, student editor Andrew Dunn said. went behind everyone’s backs, and I invaded platforms — like a newspaper. While these See and Dunn are just a few of the stu- privacy in doing everything that I did.” problems on Twitter are so far more hypothet- dents worldwide using Twitter to get their in- The article and several Twitter posts later ical than real, Goldstein said that the majority formation out quicker. They both say reaction turned into an ethics and First Amendment of laws to protect journalists were well-estab- to the service has been unnoticed to some but discussion after MediaShift Editor Mark Gla- lished before the advent of Web 2.0 and have hope more students will recognize its simplic- ser wrote a follow-up article saying that Tay- not changed for decades. ity soon. lor’s professor “stifled” her use of blogging and Basic copyright law did not change until But with the popularity of these social- tweeting. Quigley later e-mailed Glaser to say 1998, “but in terms of what a journalist does, networking tools, it is only a matter of time that, while students should not send e-mail the copyright law for a journalist was the same before freedom of speech and press is tested or make calls during class, after class students as it was in 1978 as it is today,” Goldstein said. for student journalists using these tools for re- “were free to text, Twitter, blog, email, post “Libel law hasn’t changed in light of the Web. porting. on Facebook or whatever outlet they wanted Invasion of privacy hasn’t changed in light of Alana Taylor, a journalism student at New about the course.” the Web. The laws that they might violate by York University, learned that instant blogging Taylor has decided not to write about the using these services are virtually all the same.” n

32 splc report • www.splc.org Winter 2008-09 Internet

Ask Frank: A student journalist’s guide to instant journalism and media law Student Press Law Center’s Executive Director Frank LoMonte gives some guidance to what student journalists should avoid when using popular Web 2.0 tools. While this may cover the basics, LoMonte reminds journalists to follow each site’s Terms of Service agreement, get permission whenever possible and follow the Society of Professional Journalists’ Code of Ethics.

Twitter is a micro-blogging service where you can publishing is subject to greater school control because it’s theoretically ac- send and receive messages with a 140-character cessible by more people. But, that’s really not the rule. There aren’t two First limit answering the question, “What are you do- Amendments. There’s only one,” he said. LoMonte says the Communica- ing?” Journalists are using it for reporting on-the-ground live news as users tions Decency Act, which states that proprietors of a Web site are not legally can “tweet” with text messages on cell phones or use a computer. responsible for content put on the site by third parties, gives additional “In terms of legal issues, the main thing to look out for would be in the protections to online speech. LoMonte said student journalists should try to haste to meet the strict character limits in a ‘tweet’ that you have oversimpli- avoid replying to comments in message boards or in a comments section fied something in a way where it’s misleading or deceptive. You can defame that are critical of their stories. somebody by oversimplifying something. For instance, if your tweet says ‘Trump Jailed’ when in fact he was taken to the jail for a booking photograph BlogTalkRadio is a podcasting service where and was immediately released, was he defamed by that?” LoMonte said. users can set up call-in talk shows similar to traditional radio stations. Listeners can listen to archived shows on iTunes. Facebook / MySpace are social-networking sites LoMonte says the Federal Communications Commission (FCC) does not used by millions of people around the world. Both sites regulate online speech currently. So, you are not constrained by the FCC’s provide a forum to keep up with friends or family and indecency standards as to the content of an online or closed circuit broad- upload an unlimited amount of photos, videos and cast (campus radio only heard on campus). “Depending on how much the share interesting Web sites. Every age demographic content is connected to the school and how raw it is, you may still be subject can use the sites, but Myspace tends to have younger users. For journalists, to the Tinker standard. So if you use the school network to broadcast these sites have become another “phonebook” to find sources. hardcore, sexual content or something that appeared to be stirring people LoMonte says the general rule journalists should follow with Facebook is to up to violence, you might find yourself violating theTinker standard. As long always assume that everything online is someone else’s copyrighted prop- as you’re not using school property and school time and school resources to erty. “Everything that someone has written on a Facebook or MySpace page broadcast it to people on school grounds during school time, you ought not is theoretically a copyrighted property or it may be the copyrighted property be subject to the school’s authority either. In terms of the editorial content, of the person who provided it to them. For example, a picture of me is not it becomes an ethical and not a legal standard.” my copyrighted property. It is the property of the person who took the photograph,” he said. Exceptions to this rule would be if the copyrighted material YouTube is a video sharing Web site where users can becomes newsworthy. If a student creates a Web page saying he wants to upload video content they have created. Some videos blow up his school, that content is newsworthy and can be reprimanded for on YouTube are copyrighted material that third-parties journalistic purposes. have “pirated” without consent. Otherwise, there is a good deal of original content created for the world to see Flickr is used primarily for image hosting. You upload online. photos to the Web site and users can view them. You can grant or reserve LoMonte said student journalists should avoid copyright issues such as rights for each photo in case you do not want them to be used commercially, using others’ music and videos. He said everyone should be mindful that or to protect from someone else using your creation. Recently, Flickr added YouTube content may be posted in violation of someone else’s copyright. So, video, but this feature is not yet as popular as other Web sites. For users on avoid embedding YouTube videos to your Web site such as episodes of TV the go, you can instantly upload cell phone photos via e-mail to the site. series. “They could post a link to it and I think would not be liable for copyright LoMonte said it is hard to generalize about Flickr because each photo may infringement, although there would be an ethical have a different level of protec- consideration of knowing that what you were tion. Many of the photos have a doing is encouraging people to view copyright Creative Commons license, which infringing material. Is that really what you want waives some copyright protec- to do? It would be like pointing to a Web site tions. He warns to make sure that teaches you how to make a bomb.” student publications review the terms of each license on the Web Ustream.tv is a video site. “Much of the stuff on Flickr is streaming Web site reusable by a student publication where you can broadcast using a Web cam. without having to go through the While “lifecasters” are the norm on Ustream, routine of having to get express another set of users often use the site to permission,” he said. broadcast shows similar to radio but with live video and a broader audience. WordPress is a free service that LoMonte says anytime you have an open allows users to create blogs about microphone broadcasting to the world, you whatever topic they wish. run the risk of saying something defamatory “Blogging is, for all intents and and invasive of somebody’s privacy. “In a purposes, print journalism. All broadcast studio setting, if somebody blurts of the same rules are going out a libelous statement, it doesn’t pro- to apply. There are some tect them to say, ‘oops, I thought the misperceptions by some mic wasn’t on.’ It’s the same thing schools that online if you had a streaming Internet broadcast in your newsroom, it’s not a legal defense to say, ‘oops, I didn’t mean to say that.’”

winter 2008-09 www.splc.org • splc report 33 Internet

Ditching the “Red Cup” plined by administrators at Eden Prairie From Cyberbully, Page 31 Have you been punished High School in Eden Prairie, Minn., for photos posted on Facebook.com of them JuicyCampus controversies for Facebook photos? at a party with red cups in hand. While Matt Ivester, JuicyCampus CEO and Who would have thought that when Il- some were shown drinking in the pho- president, does not do many public inter- linois-based Solo Cup Co. first introduced tos, it was reported, “students holding a views, and initially turned down a phone the red plastic drinking cup on Nov. 20, red cup were enough to merit a call to interview, agreeing only to answer e-mailed 1972, students would be getting reprimand- the dean’s office.” questions. Ivester said in the e-mail exchange ed nearly 35 years later for posing in a photo And at the University of California that he started the site he labels “the ultimate with the telltale red container? at San Diego, the college newspaper, the gossip platform” over a year ago. In January 2008, the Minneapolis Star- Guardian, reported on Dec. 13, 2007, When asked about harm to the future Tribune reported that 42 students were that ultimate Frisbee student athletes at employment of people like Grage who are questioned, including 13 who were disci- the school were hit with five conduct vi- attacked by posts on the site, Ivester said he olations after Facebook photos including cannot say whether any given post is defama- alcohol consumption by the players at a tory and only courts can determine that. sports club event and a claim of hazing “We encourage everyone to take what suspended the students from competing they read with a large grain of salt,” Ivester in an upcoming tournament. wrote. “And we don’t think that a responsible Has this happened to you? When employer will make decisions based on un- does a school cross the line when they substantiated anonymous gossip.” punish students for photos posted on Ivester would not comment on the inves- Facebook or MySpace? Is this a First tigation being led by the New Jersey Attorney Amendment issue? We want to hear your General’s office, only to say he felt confident thoughts by posting a comment on our his company was operating within the law. Facebook or MySpace page. In November, Ivester accepted a phone — Alberto D. Morales interview to address his outrage with Tennes- Photo illustration by Liz White see State University’s decision to ban the Web site from being accessed through its Internet Internet in brief network. The decision to ban JuicyCampus. com from the university’s servers came after gal professionals before imposing the ban an upset student’s parent complained to Mi- Tennessee State bans the same day the parent called to com- chael Freeman, vice president for student af- popular, anonymous plain to him. But after consulting legal fairs, about an anonymous comment posted counsel from Tennessee State University, about her child. gossip Web site Freeman said his decision was legal be- Ivester said he would support any stu- cause according to TSU’s Office of Chief dent at Tennessee State if they wanted to sue TENNESSEE— JuicyCampus.com, a of Staff and University Counsel, the ban the school for First Amendment violations. popular but controversial Web site where did not violate the First Amendment for “His [Freeman’s] inability to quell the campus gossip is encouraged through two reasons. The first reason explained concerns of an angry parent and explain the anonymous posts and comments, was was that students have newer ways of free speech implications is really not an ex- banned from Tennessee State University accessing the Internet using their cell cuse,” Ivester said. servers on Nov. 12. phones and through other wireless net- He said many people are reacting too The Nashville, Tenn., college was work providers. Freeman said since the emotionally to the less appealing anonymous of the top five searches on the Web site servers are not a “public forum” then free comments that are posted on JuicyCampus at the time, but Michael Freeman, vice speech rules do not apply. and that the U.S. Constitution protects those president for student affairs, said that JuicyCampus.com is a Web site tar- comments. He said the issue of banter on the had no impact on his decision to ban the geted toward college students who are Internet needs to be addressed sooner or later Web site. encouraged to post anonymous com- by students. Freeman said a parent called and ments with the latest gossip from their “Ever since Facebook, people can com- complained about an anonymous com- campuses. There is no registration pro- ment on other people’s profiles. They post pic- ment concerning her daughter that he cess and anyone can post an anonymous tures of themselves drunk with their friends,” felt could cause a safety concern. comment. Ivester said. “This is an issue that this genera- Matt Ivester, the CEO of JuicyCam- Tennessee State University is the first tion is going to need to really deal with.” pus.com, likened Freeman’s decision to publicly funded university in the country In the meantime, Ivester said JuicyCam- “joining the ranks of the Chinese govern- to ban JuicyCampus. A few private col- pus is doing well in numbers. The site gets ment in internet censorship.” leges have imposed bans on using school about 150,000 hits a day and nearly one mil- n Freeman said he did not consult le- computers to access the Web site. lion unique visitors come to JuicyCampus every month. n

34 splc report • www.splc.org Winter 2008-09 LEGAL ANALYSIS Keeping your case alive after graduation A student plaintiff’s guide to avoiding mootness By Robert Corn-Revere, Rory plaintiffs must plead. As a result, school ad- discussed in Lane. Perhaps the most obvi- Eastburg and Micah Ratner ministrators have a perverse incentive to cen- ous is simply to add other plaintiffs who will sor underground media outlets, which may not graduate in the near future. This strategy Davis Wright Tremaine LLP not have the succession structure to substi- of “rolling plaintiffs” requires the plaintiff to lthough graduation day is tradition- tute plaintiffs, or to censor students close to file a motion with the court, which the judge 10 ally a time for celebration and for new graduation. But Lane also presents an oppor- may grant “on just terms” at his discretion. beginnings, it can bring an unhappy tunity to discuss strategies that student press The drawbacks to this strategy are numer- Aending to the legal claims of a student who plaintiffs may use to avoid mootness upon ous. First, under federal rules, a judge has is challenging school censorship. In gen- graduation in the future. discretion whether to add a party, and some eral, challenges to school policies must be judges will not permit plaintiffs to completely 11 raised by currently affected students. When The Challenge of Injunctive roll over. Second, as in Lane, students that a student graduates, a court may dismiss Relief come later may not wish to get involved in the her claims as moot.1 Several federal appeals litigation and may decline to become parties. courts have agreed.2 Lane v. Simon, a 2007 As a fundamental matter, courts are un- This is especially likely where “rebellious” edi- case decided by the Tenth Circuit, illustrates able to address moot issues because, under tors have been replaced by more compliant how this mootness problem can present seri- Article III of the Constitution, the courts editors. Third, it takes considerable planning ous challenges to student press plaintiffs’ abil- may only hear live cases or controversies.5 In and diligence to ensure that plaintiffs who ity to secure their First Amendment rights other words, federal courts have no power to are far away from graduating are added to the through litigation. But Lane also provided give opinions on moot questions or declare litigation with sufficient time to prevent the a road map of possible ways to overcome a principles of law that cannot affect the mat- controversy from becoming moot. Fourth, claim of mootness. ter at issue in the case.6 Cases become moot some student press outlets, such as under- In Lane, the Tenth Circuit held that the when the parties lack a legally recognized in- ground newspapers or blogs, do not have a claims of two former editors of Kansas State terest or a personal stake in the outcome of clear chain of command and may not have University’s newspaper became moot after the controversy.7 the organizational structure to add plaintiffs they graduated.3 The student editors had Students fighting censorship almost al- later. Still, adding plaintiffs is a popular strat- filed a federal civil-rights action under 42 ways ask for an injunction – a court order egy where it is feasible. directing the censor to cease interfering with U.S.C. Section 1983, alleging that the uni- B. Do the Past Acts Have Lasting student editors’ autonomy. They may also versity violated their First Amendment rights Consequences? by removing the newspaper’s faculty advisor seek a declaratory judgment – an order that based on the content of the newspaper. The does not actually direct any party to do any- A simpler strategy is to characterize the district court granted defendants’ motion to thing, but simply declares that a certain prac- First Amendment violation as having some dismiss, and the two editors, who had since tice is legal or illegal. Federal courts gener- present, future, or collateral consequences graduated, appealed to the Tenth Circuit. In ally have held that graduation moots a claim that the court may address. If the student holding that the former editors’ claims were for declaratory or injunctive relief against a plaintiff continues to suffer consequences of moot, the court reasoned that university school’s action or policy, even if the student the wrongful action and pleads for injunctive defendants could no longer impinge on the retains a live claim for money damages.8 In relief, the student’s graduation will not moot former student editors’ exercise of freedom of addition to the importance of stopping an a controversy.12 Courts have held that when press after their graduation. The court also unlawful practice, injunctive relief is also a a student’s record contains negative infor- noted that plaintiffs had not (1) substituted valuable recourse for another tactical reason mation based on allegedly unconstitutional current editors as plaintiffs; (2) sued for dam- – unlike money damages, state government school regulations, that information may ages; (3) added the separately incorporated officials do not enjoy Eleventh Amendment jeopardize the student’s future employment newspaper as a plaintiff; (4) sued in a repre- immunity from court injunctions that mere- or college career.13 If a former student’s re- sentational capacity in a class action, or (5) ly direct them to cease doing something in cord contains evidence of disciplinary sanc- alleged that the First Amendment infringe- the future.9 tions, and she seeks an order requiring school ment caused them any present or future con- Given the need for some sort of injunc- officials to expunge the discipline from her sequences.4 tive relief in most media cases, student plain- record, the action will likely not be moot.14 The Tenth Circuit’s decision outlines tiffs should ask whether any exception to For example, in a Ninth Circuit case decided some of the obstacles in front of student press general mootness rules might apply. in 2007 where a student was reprimanded plaintiffs. By requiring continual substitu- A. Can You Add New Parties? for student election code violations, a claim tion of plaintiffs and pleading for monetary by the student seeking to cleanse his record relief, with its qualified immunity challeng- Plaintiffs may employ several common was not moot even though he had gradu- es, Lane complicates the way student press strategies to prevent the mootness problems ated.15 Student press plaintiffs can argue that

winter 2008-09 www.splc.org • splc report 35 Legal Analysis they continue to suffer consequences of the a high school within the same district. Or, But requesting money damages is not a wrongful action, and thus, the court should this case may be applicable, where a college cure-all, because doing so raises public-rela- not moot their claims for injunctive and de- student graduates, and enrolls in a graduate tions and Eleventh Amendment immunity claratory relief upon graduation. program at the same school. Students bring- concerns. Student press lawsuits ideally aim ing First Amendment press challenges should to protect free speech principles rather than C. Was the School’s Action Capable not rely on the “capable of repetition, but to pad the pocketbook, and it would distract of Repetition Yet Evading Review? evading review” exception, but they should from those principles if student press plain- Another relevant exception to the moot- continue to argue that exception should ap- tiffs sought large sums of money. One way to ness doctrine applies to a limited set of cases ply to the student press setting. avoid public relations concerns is to request nominal damages – often a single dollar. Yet that are capable of repetition, yet evading D. Is Declaratory Relief Available? review.16 This exception applies when the al- even if a plaintiff requests nominal damages, legedly unconstitutional practice has a finite The Declaratory Judgment Act provides the plaintiff must jump over high hurdles of term that makes it impractical to bring a le- in part that “in a case of actual controversy Eleventh Amendment immunity. gal challenge; the textbook example is a chal- within its jurisdiction . . . any court of the Qualified immunity shields public of- lenge based on a woman’s pregnancy, which United States, upon the filing of an appro- ficials from having to pay money damages will run its full course in nine months before priate pleading, may declare the rights and when sued under 42 U.S.C. Section 1983 as 28 a court case can be tried and appealed.17 But other legal relations of any interested party individually named defendants. Qualified the practice must have the potential to affect seeking such declaration.”23 Although most immunity requires the court to rule in favor the very same person; it is not enough to ar- courts will consider an action for declaratory of a government employee sued for money gue that the unconstitutionality could injure judgment moot if a request for injunctive re- damages unless the employee’s conduct vio- other people. Consequently, the Supreme lief is moot, it may be worth challenging this lates clearly established statutory or consti- Court has held that, in the absence of a class conventional wisdom. tutional rights, of which a reasonable person 29 action, this exception is not available when In Super Tire Engineering Co. v. McCorkle, would have known. students request prospective or injunctive re- the Supreme Court held that district courts Qualified immunity is challenging to lief and have graduated from the defendant are obligated to decide the merits of declara- overcome. For example, in Husain v. Spring- college.18 tory relief claims even where a request for in- er, the Second Circuit held that a university Following this rationale in Lane, the junctive relief is moot.24 The Court found president violated the First Amendment by Tenth Circuit refused to adopt the exception that “even though the case for an injunction nullifying a student government election for cases “capable of repetition, yet evading dissolved with the subsequent settlement of after the student newspaper supported par- 30 review,” because the case failed the second [a labor] strike,” the parties to the underlying ticular candidates. Plaintiffs had sought a prong of the test. The court stated that “there dispute “may still retain sufficient interests declaratory judgment, injunctive relief, nom- is no reasonable expectation that Lane and and injury as to justify the award of declara- inal compensatory damages and punitive Rice will be subjected, post-graduation, to tory relief.”25 damages, but the declaratory judgment and censorship by defendants in connection with Thus, while most courts will moot a injunctive relief claim were held to be moot. that newspaper.”19 Similarly, in Cole v. Oro- declaratory judgment claim along with a The requests for monetary damages survived, ville Union High School District, the Ninth mooted claim for injunctive relief, plaintiffs but despite finding a clear First Amendment Circuit refused to apply the “capable of rep- should challenge the court to make a separate violation, the Second Circuit held that the etition yet evading review” exception to the determination and uphold standing on the president may have been entitled to qualified mootness doctrine to a high school valedic- declaratory judgment relief. immunity and sent the case back to the dis- 31 torian whose speech was censored by school trict court. officials, but who had graduated by the time Seeking Damages May Another instructive example of the chal- 20 lenges associated with qualified immunity the case reached appeal. Avoid Mootness, But Has However, this exception may still be was Hosty v. Carter, where student journalists useful for some student plaintiffs. In Lee v. Drawbacks sued university officials and a dean for prior 32 Weisman, the Supreme Court found that this restraint of their speech. After a college Probably the most straightforward way exception applied to a student who objected newspaper printed stories critical of the dean, a student plaintiff may avoid mootness con- to a prayer at her middle school, even though the dean instructed the paper’s printer not to cerns is to seek monetary relief.26 For ex- she had graduated from middle school, be- print any further issues unless the dean ap- ample, in Husain v. Springer, the court found cause she had enrolled in a high school in the proved them in advance. The students sued that student newspaper plaintiffs’ injunctive same district.21 Therefore, it appeared “likely, seeking injunctive relief and damages for relief and declaratory judgment actions were if not certain, that an invocation and bene- a First Amendment violation. The district moot upon graduation, but their graduation diction [would] be conduct[ed] at her high court dismissed the university officers, but did not moot the claims for damages.27 A school graduation.”22 While this case falls granted summary judgment in favor of the student plaintiff should request monetary under First Amendment jurisprudence relat- student plaintiffs against the dean. The dean relief from the beginning, since in some cir- ing to the Establishment Clause, its reason- appealed and the Seventh Circuit reversed, cumstances courts may not grant plaintiffs ing may be applicable to student free speech holding in part that the dean was entitled to leave to amend their complaint and request cases where a student’s free press rights are qualified immunity because, at the time the monetary damages. violated in middle school and she enrolls in dean acted, it was unclear whether the Su-

36 splc report • www.splc.org Winter 2008-09 Legal Analysis preme Court’s Hazelwood v. Kuhlmeier deci- sible, separately incorporated entities should When a defendant’s conduct affects a sion applied to college as well as high school become parties to the litigation, as the cor- large number of students and a claim against newspapers.33 The Hazelwood decision al- porate entity will have a continuing stake in a defendant is brought as a class action un- lowed public schools to regulate the content the litigation, even after individual students der Federal Rule of Civil Procedure 23, the of curricular media paid for by the school, graduate. case may stand a better chance of surviving if the regulation advanced “legitimate peda- a mootness challenge. The lead individual gogical concerns.” Thus, the student news- B. Third-Party Standing plaintiffs in a class action are known as the paper’s right to be free from prior restraints Another creative solution is to claim “class representatives,” who sue on behalf of by the university was not a clearly established third-party standing, although the chances themselves and others sharing their interests. constitutional principle that a reasonable per- of succeeding with this strategy are uncer- The claims of unnamed members of a class son should have known, and the dean was tain. Courts sometimes permit one plaintiff may remain alive even though the claims of 34 entitled to qualified immunity. to stand in as the representative for another, the class representatives have become moot. Husain and Hosty notwithstanding, if the injured party would have difficulty Students occasionally have success- many free press protections are clearly es- bringing suit on his own behalf; for instance, fully used class actions to protect their First tablished constitutional principles of which physicians have been allowed to bring suit Amendment rights, by challenging school a reasonable person should know. In these to address injury to their patients. In Lane, policies on behalf of all current and future cases, First Amendment plaintiffs have made however, the Tenth Circuit expressly rejected students in a district. For example, in Her- it past qualified immunity. For example, a the plaintiff’s request to confer third-party nandez v. Hanson, plaintiffs sought to enjoin federal appellate court recently upheld an standing on former editors of the student pa- enforcement of policies and regulations of award of nominal damages and attorneys fees per, on behalf of the newspaper’s current and the Omaha School District, which required and costs where students were disciplined for future editors.39 students to obtain prior approval before dis- wearing black armbands in protest of school Though it is not common, some courts tributing literature on behalf of non-school 35 policies. Similarly, another federal appellate have held that third parties may bring suits sponsored organizations within public 42 court refused to grant a motion for summary on behalf of student publications whose schools. Even though these students had judgment on behalf of Alabama teachers who rights were violated, but who cannot bring graduated, the court held that certification of allegedly disciplined a student for “silently a claim because the affected students gradu- the case as a class action pursuant to Rule 23 raising his fist during the daily flag salute -in ated. In State Board for Community College precluded a mootness defense. stead of reciting the Pledge of Allegiance with and Occupational Education v. Olson, the Plaintiffs who wish to bring class actions 36 the rest of his class.” That court held that trial court held that the students’ claims were must be careful to specifically request Rule immunity was inappropriate because the Su- moot because one student could exercise her 23 class action status, because the courts will preme Court “clearly and specifically estab- First Amendment rights through a replace- not imply it. In Board of School Commission- lished that schoolchildren have the right to ment newspaper and the two other student ers of the City of Indianapolis v. Jacobs, the 37 refuse to say the Pledge of Allegiance.” plaintiffs had graduated during the litiga- Supreme Court explained that six students’ tion.40 On appeal, however, the Colorado First Amendment claims would be dismissed Other Strategies to Consider Supreme Court held that a faculty adviser as moot after they graduated, unless the case 43 to Avoid Mootness Upon had third-party standing to challenge the was properly certified as a class action. The student senate’s termination of funding for named plaintiffs in the class action were stu- Graduation a community college sponsored newspaper, dents involved with the student newspaper, to protect student journalists’ First Amend- who alleged that the defendants interfered A. Corporate Standing ment rights.41 The court reasoned that the with the publication and distribution of the faculty adviser had a substantial relationship paper. The students sued as representatives of Where a publication is separately incor- with the students and would be an effective a class of all students attending schools man- porated, student plaintiffs should consider proponent of their First Amendment rights. aged by the defendant board, but did not ad- making the corporation a co-plaintiff. In Further, the court recognized that without equately comply with Rule 23(c), which re- Lane, for example, the students may have third-party standing, the rights of students quires the named plaintiffs to certify, identify, avoided the mooting of their claims if the would be diluted, since students would be and describe the class. The Court noted that publisher had become party to the litigation. mooted out upon graduation. the class description is especially important The Tenth Circuit expressly pointed out that Following Olson, student press plaintiffs in cases where the litigation is likely to be- Student Publications, Inc., the non-profit should consider alleging third-party stand- come moot as to the initial named plaintiffs corporate publisher, was not named initially 44 ing if mootness becomes an issue, especially prior to the exhaustion of appellate review. as a party, and did not seek to join litigation.38 if a faculty adviser is willing to join the suit. Similarly, in Fox v. Board of Trustees of SUNY, Unfortunately, corporate standing will work While few such claims are successful, third- the court would not regard the lawsuit as to avoid mootness only for those media out- party standing may be more successful in a class action, where the students who had lets that are incorporated, which excludes the future if courts find that mootness upon graduated did not attempt to have a class cer- nearly all high school media. Moreover, chal- graduation prevents students from enforcing tified, or allege in their pleadings that they lenges may arise if faculty members who are their First Amendment rights. were bringing an action behalf of similarly sympathetic to the university sit on the board situated students.45 of the corporate entity. However, where pos- C. Class Action Lawsuits Plaintiffs attempting to bring a class ac-

winter 2008-09 www.splc.org • splc report 37 tion for violations of First Amendment rights corporate entity as a plaintiff. That will pre- 10 Fed. R. Civ. P. 21. should be careful to comply with all of the vent mootness upon graduation of individual 11 Compare Interphase Garment Solutions, LLC v. Fox Television Stations, Inc., 566 F. Supp. 2d 460, 467 elements of Rule 23. If students bring a class students. Also, student press plaintiffs should (D. Md. 2008) (granting unopposed Rule 21 motion to action correctly, it may provide protection continue to make third-party standing ar- drop all named defendants in favor of new defendant) from mootness claims after the named plain- guments, which may be more successful in with Banks v. Gonzales, 415 F. Supp. 2d 1248, 1251- tiffs graduate. Class actions may be most ap- schools where the faculty advisor has a sub- 52 (N.D. Okla. 2006), aff’d, 490 F.3d 1178 (10th Cir. 2007) (refusing to grant a complete substitution of par- plicable to challenge policies that affect large stantial relationship with the outlet in a teach- ties under Rule 21). numbers of students, such as challenges to ing capacity. Finally, for secondary school 12 Flint v. Dennison, 488 F.3d 816, 823-24 (9th school district policies. press plaintiffs and potentially students from Cir. 2007). large universities, a class-action lawsuit may 13 Id. D. Relief Under State Law successfully prevent mootness upon gradu- 14 Id. at 824 (citing Hatter v. L.A. City High Sch. Dist., 452 F.2d 673, 674 (9th Cir. 1971)). California legislators took action in 2008 ation of the named plaintiff representatives. 15 Id. avoid the inequity of depriving student plain- Overall, student press plaintiffs and their at- 16 Murphy v. Hunt, 455 U.S. 478, 482 (1982). tiffs of their claims in mid-stream. The leg- torneys should pursue common and creative 17 Flint, 488 F.3d at 824 (citing Weinstein v. Brad- pleading strategies, with awareness of the chal- ford, 423 U.S. 147, 149 (1975)). islature approved, and Gov. Arnold Schwar- 18 See Bd. of Sch. Comm’rs of Indianapolis v. Jacobs, zenegger signed, a statute providing that lenges associated with each, to navigate and 420 U.S. 128, 129-30 (1975) (dismissing as moot a students whose free-speech rights are violated prevent mootness issues. challenge by high school student to regulations of their while they are in school do not forfeit their school newspaper after the court learned at oral argu- 46 ment that all plaintiffs had graduated). claim when they graduate. While Califor- 19 Lane, 495 F.3d at 1187. nia’s is the only explicit “claim saving” statute Endnotes 20 Cole, 228 F.3d at 1098. enacted since Lane, student plaintiffs should 21 Lee v. Weisman, 505 U.S. 577, 584 (1992). at least consider whether a state-law remedy 1 15 James Wm. Moore et al., Moore’s Federal 22 Id. Practice ¶ 101-176.6 (3d ed. 2008). provides more relief than that recognized by 23 28 U.S.C. Sec. 2201. 2 See Lane v. Simon, 495 F.3d 1182, 1186-87 (10th 24 416 U.S. 115, 121-22 (1974). the federal courts. Cir. 2007) (holding that since plaintiffs had graduated 25 Id. and no longer served on the board of their student news- 26 University of Texas v. Camenisch, 451 U.S. 390, Conclusion paper, defendants could no longer impinge on their free- 393-94 (1981); 13A Charles A. Wright, Arthur R. dom of press, and the claims for declaratory and injunc- Miller & Edward H. Cooper, Federal Practice & To prevent the mootness issues raised by tive relief were moot); Fox v. Bd. of Trustees of SUNY, 42 Procedure: Jurisdiction 3D Sec. 3533.3, at 262 (2d F.3d 135, 140 (2d Cir. 1994), cert. denied, 515 U.S. 1169 Lane v. Simon and similar cases, student press ed. 1984). (1995) (holding that declaratory and injunctive claims 27 Husain v. Springer, 494 F.3d 108, 121 (2d Cir. plaintiffs may be best off if they request sev- were mooted by graduation); Alexander v. Yale Univ., 2007). eral forms of relief, including injunctive relief, 631 F.3d 178, 184 (2d Cir. 1980) (holding that gradua- 28 Morse v. Frederick, 127 S. Ct. 2618, 2624 n.1 declaratory relief, and nominal monetary re- tion prevented the court from hearing the claim); Peder- (2007) (citing Wood v. Strickland, 420 U.S. 308, 314 n.6 son v. Louisiana State Univ., 213 F.3d 858, 873-75 (5th (1975)). lief. When requesting injunctive relief, plain- Cir. 2000) (holding that injective relief claim asserted by tiffs should attempt to add students who will 29 Id. at 2640 (Breyer, J., concurring) (quoting female university student in a Title IX effective accom- Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). not graduate in the near future and should modation suit, but not the damages claims, were mooted 30 Springer, 494 F.3d at 113. continue to do so throughout the litigation. by graduation); Sapp v. Renfroe, 511 F.2d 172, 175 (5th 31 Id. at 131. Furthermore, if plaintiffs successfully argue Cir. 1975) (holding that graduation from school termi- 32 412 F.3d 731, 735 (7th Cir. 2005) cert. denied, nated existence of live controversy); Caldwell v. Craig- that the defendant’s violation of their First 546 U.S. 1169 (2006). head, 432 F.2d 213, 218 (6th Cir. 1970), cert. denied, 33 Id. at 738. Amendment rights has present, future, or 402 U.S. 953 (1971) (holding that a free speech case 34 Id. at 739. collateral consequences, claims for injunctive was mooted by graduation); Jordan v. Indiana High Sch. 35 Lowry ex rel. Crow v. Watson Chapel Sch. Dist., and declaratory relief will not become moot Athletic Ass’n, 16 F.3d 785, 787 (7th Cir. 1994) (holding 540 F.3d 752, 762 (8th Cir. 2008). that student’s graduation rendered claim moot); Johnson 36 Holloman v. Harland, 370 F.3d 1252, 1259 upon their graduation. With declaratory re- v. Florida High Sch. Activities Ass’n, 102 F.3d 1172, 1173 lief, plaintiffs should challenge courts to de- (11th Cir. 2004). (11th Cir. 1997) (holding that a 19-year-old high school 37 Id. at 1269; see also Seamons v. Snow, 84 F.3d termine separately whether the issue is moot. football player’s suit seeking to enjoin enforcement of a 1226, 1238 (10th Cir. 1996) (“[i]n light of the well es- In requesting monetary relief, plaintiffs will rule forbidding students 19 and over from participating tablished principle that the government may not deny avoid mootness upon graduation, but must be in high school athletics was moot because the football a benefit to a person because of his constitutionally season had concluded and the student planned no fur- prepared to argue that the First Amendment protected interests, and the well established framework ther participation in high school athletics). of the Tinker analysis, we cannot say at this point that right violated was clearly established and that 3 Lane, 495 F.3d at 1186-87. Defendants are entitled to qualified immunity”) (cita- reasonable people would have known of that 4 Id. at 1187. tion omitted). right. Students should continue to argue that 5 Friends of the Earth, Inc. v. Laidlaw Env’l Services, 38 Lane, 495 F.3d at 1187. Inc., 528 U.S. 167 (2000) (construing U.S. Const. Art. 39 Id. the “capable of repetition, yet evading review” III, Sec. 2, cl. 1). exception should apply. Such arguments will 40 State Bd. for Community Colleges and Occupa- 6 Church of Scientology of California v. United States, tional Educ. v. Olson, 687 P.2d 429, 431 (Colo. 1984). challenge the courts to address these critical 506 U.S. 9, 12 (1992); Lane, 495 F.3d at 1186. 41 Id. at 434. student mootness issues. 7 New York City Employees’ Retirement System v. Dole 42 430 F. Supp. 1154, 1156 (D. Neb. 1977). When student plaintiffs employ more Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992). 43 420 U.S. 128, 129-30 (1975). 8 Cole v. Oroville Union High Sch. Dist., 228 F.3d creative strategies, they should be mindful of 44 Id. 1092, 1100 (9th Cir. 2000). 45 Fox v. Bd. of Trustees of SUNY, 42 F.3d 135, 142 the school setting. For those student press 9 Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975); (2d Cir. 1994). outlets that are separately incorporated from Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 46 2008 Cal. Legis. Serv. Ch. 525 (S.B. 1370) the school, those plaintiffs should add the (1989); Ex Parte Young, 208 U.S. 123 (1908). (West), to be codified at Ca. Educ. Sec. 48907 et seq.

38 splc report • www.splc.org Winter 2008-09 The Student Press Law Center gratefully Knowledge is the Best Defense acknowledges the generous support of the following institutions and Individu- and Membership is the First Step als who have joined as partners in our effort to defend the free press rights of The Student Press Law Center now offers Supporting student voices with annual memberships.* The SPLC is the student journalists. only national, nonprofit resource center that The Student Press Law Center Contributions from July 26 through Dec. 7, 2008. educates and assists student journalists and their teachers/advisers on media law, FREEDOM FIGHTERS ($10,000 or more) censorship and other free-expression issues. American Society of Newspaper Editors Since its founding in 1974, the SPLC has Ethics and Excellence in Journalism Foundation been a leading advocate for student press Gannett Foundation rights and responsibilities in secondary Journalism Education Association schools, colleges and universities throughout Samuel Newhouse Foundation the United States. Sigma Delta Chi Foundation Membership benefits STUDENT VOICE CHAMPIONS ($5,000 to $9,999) include: National Scholastic Press Association • Subscription to Western Assoc. of Univ. Publication Managers the SPLC Report, a three-times-yearly FREE PRESS PROTECTORS ($1,000 to $4,999) magazine that keeps Assoc. For Education in Journalism & Mass Comm. you informed of all the College Media Advisers changes in student Frost Brown Todd LLC media law and chal- Kansas Scholastic Press Assn. lenges to student free Kansas Associated Collegiate Press expression in schools and colleges Quill & Scroll in the United States. Society for Collegiate Journalists • Legal Alert, mem- TheDaily Tar Heel bers-only monthly (school-year) bulle- STUDENT VOICE ADVOCATES ($500 to $999) tin, that will be sent Logan Aimone (MN) to your e-mail address. California College Media Association • The opportunity to support the free legal Thomas Eveslage (PA) assistance that you and all student journalists Illinois C.C. Journalism Assoc. E. IL. U. and advisers receive from the SPLC, including Student Television Network Inc. telephone and e-mail advice and referrals to University of South Carolina media attorneys in your area when necessary. • Ten percent discount on the new edition of FIRST AMENDMENT FRIENDS ($100 to $499) The Law of the Student Press. John Bowen (OH) *Membership benefits do not include voting privileges. Candace Perkins Bowen (OH) Judith Buddenbaum (IN) All of this comes to you for a small Diane & Lloyd Eisenberg (MD) price: Michele Green (FL) $15 individual student. Paul Ryan Gunterman (IN) $30 individual for teachers/advisers, parents or John Hannan (IN) other non-students. John Hart (IL) $60 high school student publication or student Carole Hemmerly (OH) media department. Kent State University $130 college student publication or student media department. David Langlois (NJ) $300 associate memberships for associations, Aaron Manfull (MO) organizations or nonstudent media. PA School Press Association Membership is for one full year beginning with the date John David Reed (IL) membership is received. Donations to the SPLC are tax Rock Canyon Publications deductible. Leslie Shipp (IA) Edward Seaton (KS) Helen Silha (MN) Become a member and donate online at Southern University Newspapers www.splc.org Lois J. Sweeney (NC) University of NY at Binghamton Bryan Ward (GA) Washington and Lee Univ. As a not-for-profit organization, the SPLC is entirely Gerald Weber (GA) dependent on contributions from those who are Stephen Wermiel (MD) committed to our work. Support the Student Press Law Center through our Web site (www.splc. ENDOWMENT CONTRIBUTORS org/give) or by mailing your check to: Shawn Chen (VA) Student Press Law Center John Rory Eastburg (DC) 1101 Wilson Blvd., Suite 1100 Susan Everett (NJ) Arlington, VA 22209-2275 winter 2008-09 www.splc.org • splc report 39 visit us online at Law of the Student Press, Third Edition The first update in 14 years! An indispensable reference tool for the latest media-law developments

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