Saying ‘Yes’ Can Minors Give RSTUDENTEPORT PRESS LAW CENTER Consent? PAGE 14

INSIDE: Supreme Court shows interest in Hosty v. Carter case, PAGE 24

WINTER 2005-06 VOL. XXVII, NO. 1 Saying ‘Yes’ Can minors give RSTUDENTEPORT PRESS LAW CENTER consent? PAGE 14

ALSO INSIDE: Using Facebook in the newsroom, PAGE 18 AND Crime incident reports, why some colleges don’t want you to have them, PAGE 33 PUBLICATIONS FELLOW ART Evan Mayor Jonathan Brown CONTENTS Chris Crawford REPORTERS [email protected] HIGH SCHOOL CENSORSHIP Clay Gaynor Will Gaynor James Madison University New study says gender, geography affect high [email protected] school students’ views on expression ...... 4 Kyle McCarthy College of the Holy Cross Talia Greenberg High school reporters battle to cover homosexuality . . 6 Kim Peterson Danny “Om” Jean-Jacques ‘Joke’ Web site changes student’s life...... 8 American University [email protected] Students in N.J. win censorship battle ...... 10 CONTRIBUTORS Melissa Malisia Former student loses free speech lawsuit in Calif.. . . 10 InBRIEF ...... 11 Adam Goldstein Jessica Zimmer Mike Hiestand [email protected] COVER ART COVER STORY Jack Dickason Saying ‘yes’: the validity of minor consent ...... 14 Student Press Law Center Report Student Press Law Center Report (ISSN 0160-3825), published three times each year by the Student Press Law Center, summarizes current cases and controversies involving the rights of the student INTERNET press. The SPLC Report is researched, written and produced by To use or not to use: social journalism interns and SPLC staff. Student Press Law Center Report, Vol. XXVII, No. 1, Winter 2005- networking sites in the newsroom ...... 18 06, is published by the Student Press Law Center Inc., 1101 Wilson Students increasingly punished for Internet speech . . 21 Boulevard, Suite 1100, Arlington, VA 22209-2275 (703) 807-1904. Copyright © 2005 Student Press Law Center. All rights reserved. Yearly subscriptions to the SPLC Report are $15. Contributions are tax-deductible. A membership form appears on page 46. COLLEGE CENSORSHIP High court shows interest in Hosty ...... 24 Executive Director Mark Goodman InBRIEF ...... 28 Covert censorship: what it is and what to do about it . 30 Legal Consultant Director of Development Mike Hiestand Julia Pfaff New Media Legal Fellow Outreach Coordinator CAMPUS CRIME Adam Goldstein Michael Pittman Under wraps: why some Corporate Board of Directors schools are reluctant to provide incident reports. . . 33 Dr. David L. Adams Kathleen Kirby Indiana University Wiley Rein & Fielding LLP Bloomington, Ind. Washington, D.C. ACCESS Angela Buenning Terry Nelson Eastside College Prepatory School Muncie Central High School Mich. court rejects students’ request for access. . . . 36 East Palo Alto, Calif. Muncie, Ind. InBRIEF ...... 37 Jerry Ceppos Tonda Rush, Esq. Knight Ridder (retired) American PressWorks Inc. San Jose, Calif. Arlington, Va. NEWSPAPER THEFT Shawn Chen Cedric D. Scott, Esq. National Journal's Technology Daily Jackson Walker LLP Four face charges for stealing papers . . . . . 38 Washington, D.C. Houston, Texas InBRIEF...... 40 Virginia Edwards Rosalind Stark Education Week International Women’s Media Foundation Old theft updates ...... 41 Bethesda, Md. Washington, D.C. Robert Garcia Mark Stodder ABC News Radio Dolan Media LIBEL & PRIVACY Washington, D.C. Minneapolis, Minn. Professor sues student newspaper for defamation. . . 42 Richard Goehler, Esq. Mark Witherspoon Frost Brown Todd LLC Iowa State University InBRIEF ...... 42 Cincinnati, Ohio Ames, Iowa Mark Goodman, Esq. Student Press Law Center ADVISERS Arlington, Va. InBRIEF ...... 44 Organizations for purposes of identification only ROUNDUP Texas students, adviser receive Courage in Student Journalism Awards Four students from DeSoto High 2004, their school board approved a Richtsmeier stood before the school board School in suburban Dallas, Texas, and stu- $65,000 payment to a consultant named and defended her students’ coverage and dent media adviser Carol Richtsmeier Project JAMS for an assessment of gang- their press freedom. Despite frequent pub- received the 2005 Courage in Student Jour- related activity at the school. The students, lic criticism by the board, Richtsmeier’s nalism Awards presented by the Newseum, suspicious that Project JAMS had overstat- unwavering support of the Eagle Eye staff the Student Press Law Center and the ed the level of gang-related activity at the paved the way for their investigation and National Scholastic Press Association. school, launched an investigation. Delving set a courageous example of strong journal- The Courage in Student Journalism deep into the background of the consult- istic principles for her students to follow. Awards are presented each year to student ant, the students raised questions about the A NEW LOOK journalists and to a school administrator or program’s credibility and uncovered false In this issue, the Student Press Law Cen- media adviser who have demonstrated claims, unfulfilled contracts and unsub- ter Report begins a transformation that we exceptional determination and support for stantiated statistics. hope you will appreciate. Long-time read- student press freedom, despite resistance or DeSoto’s school board responded with ers will notice more news briefs and a few difficult circumstances. threats of censorship, and Project JAMS longer stories that explore in-depth the Students Whitney Basil, Eric Gentry, responded with threats of legal action. issues confronting the student media as well Zach Kroh and Jeremy Willis, who report- Although pressured to stop their investiga- as a more graphic presentation of important ed for DeSoto’s student newspaper the tion, the students continued. Eventually, facts and advice. All of this, we hope, is Eagle Eye, share the $5,000 student prize. their efforts led to a series of town meetings packaged in a more user-friendly way. Richtsmeier received a $5,000 prize as well. and gained the attention of local print and Combined with the News Flashes on The awards were presented at the National broadcast media. As a result, the school our Web site (www.splc.org/newsflash.asp), Scholastic Press Association/Journalism board rejected the nearly $1 million in addi- the Report strives to give you a complete Education Association convention in tional funds requested by Project JAMS. picture of developments in student press Chicago in November. Eagle Eye student newspaper adviser law. As always, we appreciate your sugges- The students were recognized for their Carol Richtsmeier encouraged the students tions and comments. E-mail your commitment to journalistic principles and throughout their investigation. Knowingly thoughts to our publications fellow, Evan defense of press freedom. In November jeopardizing her position at DeSoto, Mayor, at [email protected].

Report Staff Kyle McCarthy, journalism intern, is a junior at College of Evan Mayor, Publications Fellow, gradu- the Holy Cross in Worcester, Mass. He is ated from Vanderbilt University in May 2005 pursuing a double major in political science with degrees in communications and politi- and English. He served as the sports editor cal science. While at Vanderbilt, he was the for The Crusader, the student newspaper at editor in chief of the student newspaper, The Holy Cross. He was also a staff writer for Vanderbilt Hustler. He freelanced for The MLSnet.com, the official site for Major Tennessean in Nashville, Tenn., and interned League Soccer. McCarthy plans to take over as a police reporter there last summer. Mayor as editor in chief of The Crusader in the edited and designed the Report. spring. McCarthy covered access, campus Clay Gaynor, journalism intern, is a grad- crime, confidentiality and libel & privacy for uate of James Madison University in Har- the Report. risonburg, Va. He received his degree in print Kim Peterson, journalism intern, is a sen- journalism with a minor in human resource ior at American University in Washington, and development in May 2005. While at D.C. She is pursuing a major in internation- James Madison University, he wrote features, al relations and a minor in communication. news and entertainment articles for The She has worked as an intern for the Dow Breeze, the student newspaper there. He also Jones Newswires in Brussels, Belgium, and served as an editor and writer for Curio, a the Seattle Weekly. She has also written for regional interest feature magazine produced at the college. In The Eagle, American University's student newspaper. While liv- addition, Gaynor worked as a freelance writer for Harrisonburg's ing in Seattle, she worked for the Mirror, a subsidiary of The Seat- Daily News-Record. Gaynor covered Internet, high school censor- tle Times, as a staff writer. Peterson covered college censorship, ship and high school advisers for the Report. newspaper theft and college advisers for the Report.

WINTER 2005-06 SPLC REPORT 3 HIGH SCHOOL CENSORSHIP Gender, geography affect views on expression Females less supportive of press rights, urban students favor expression, new reports find

New reports suggest high veyed believe the First Amend- portive, but it seems the oppo- Males tend to make moral- school students have differing ment “goes too far” in guaran- site is true,” Watson said. istic judgements, such as the opinions on the First Amend- teeing freedom of speech and Conservative attitudes in the difference between right and ment depending on their gen- freedom of the press. suburbs, political correctness wrong, while females worry der and where they live. Researchers for the study, and hesitancy towards risk-tak- more about maintaining rela- Urban students are more funded by the John S. and ing could provide reasons for tionships, Arnold said. likely to favor greater means of James L. Knight Founda- “I don’t think young expression — such as airing an tion, questioned 112,000 women are stupider or less unpopular opinion or reciting students, more than well-read than young men,” profanity-laced lyrics — while 8,000 teachers and more [C]ivics education in she said. suburban students are more than 500 principals and America’s high schools David Yalof, a University likely to believe the govern- school administrators must be improved....” of Connecticut professor ment should have the right to nationwide. “ and researcher on the study, censor the press. Warren Watson, Eric Newton said the overall results of the “The comparatively greater director of J-Ideas, said Director of Journalism Initiatives study were not surprising. John S. and James L. Knight Foundation resources available to suburban he was surprised with the “We already had anec- students in the United States results on geographic dis- dotal evidence that students do not tend to translate into a tribution. J-Ideas is a project these tendencies, he said. were not knowledgeable or greater appreciation and toler- out of Ball State University Mary Arnold, head of the appreciative of First Amend- ance for the First Amendment that distributes the research Journalism and Mass Commu- ment rights,” Yalof said. “This by these students,” according results and works to develop nications department at South study scientifically confirmed to the study. “Indeed, in some and encourage excellence in Dakota State University, said those findings.” cases urban and rural students high school journalism, the finding that females are less Students generally were not tend to be much more enlight- according to its Web site. supportive of press rights than aware of the study’s findings, ened on First Amendment “I figured schools with the males could reflect a cultural but did talk to the SPLC about issues than their suburban least amount of journalism bias between males and their feelings on the First counterparts.” education would be less sup- females. Amendment. Females are more interested in joining student media than Lost in suburbia males, but they are less supportive of press rights, including the right of the student media to publish freely, the study said. A team of researchers at the University of Connecticut released the new findings in August and November, further distinguishing high school students’ appreciation for the First Amendment by geographic distribution and gender. The new breakout reports are an extension of the Future of the First Amendment study released last winter, which found that more than a third of all high school students sur-

4 SPLC REPORT WINTER 2005-06 HIGH SCHOOL CENSORSHIP

“People shouldn’t be able to journalism initiatives for the Amendment must be a focus go around saying things that Knight Foundation, said the of that improvement, and that are completely unnecessary, foundation’s commitment to high schools should be sure Key such as threatening people,” maintaining high standards in they include student media as geographic said Meghan Bradley, a sopho- journalism extends to student part of that effort,” Newton more at Norfolk County Agri- media. said. findings cultural High School in Nor- “We thought it would be The Knight Foundation

“Urban students were more folk, Mass. “But [the First important for the general pub- granted J-Ideas $850,000 for a likely than suburban stu- Amendment is] an important lic to understand how impor- program designed to deliver dents or rural students to freedom.” tant student media is within specially designed First think that people should Bradley’s older brother, the larger context of First Amendment programs to high be allowed to express Alex, a junior at South- schools, Watson said. unpopular opinions.” eastern Regional Voca- The program could “Nearly three in four stu- tional Technical High On the Web impact up to fifty dents from the Northeast School in South East- schools over a two-year and Midwest agree that To download the full Future of the First on, Mass., said he • period. musicians should be able Amendment report, visit firstamend- to sing song lyrics others thinks protections do ment.jideas.org/downloads.php Students are not might find offensive. By not go far enough. taught enough about contrast, that number is J-Ideas Web site — www.jideas.org “I think it’s good, • the basics of citizenry, only two in three for stu- but it is very con- •John S. and James L. Knight Founda- Newton said. dents in the South and trolled,” he said of the tion Web site — www.knightfdn.org “When schools West.”

First Amendment. teach, students learn. “Fewer students from the “There isn’t much more free- Amendment education and It’s that simple,” he said. South agree that newspa- dom of speech anymore. the teaching of civics in Researchers said they pers should be allowed to There are so many limits on schools,” Newton said. believe increased education publish freely without government approval of a it.” Emphasis on civics educa- about the First Amendment is story, as compared to stu- The Knight Foundation, a tion, and particularly First essential to ensure its future. dents in the Northeast and non-profit organization estab- Amendment issues, is neces- “It’s too early to tell, but if Midwest.” lished in 1950 to protect free sary in order to foster citizen- we don’t build a greater appre-

“There exists no difference press and promote excellence ry, he said. ciation for the First Amend- at all in support for First in journalism, spent $1 mil- The results “confirmed ment among high school stu- Amendment freedoms in lion over a two-year period to that civics education in Amer- dents, the future of the First so-called ‘red’ and ‘blue’ finance the study. ica’s high schools must be Amendment may be in dan- states.” Eric Newton, director of improved, that the First ger,” Yalof said. KM

Gender findings by the numbers

74 61 65 56 55 56 46 45 females females females females males males males males

Percentage of students Percentage of students Percentage of students Percentage of students surveyed who thought surveyed who thought surveyed who believe surveyed who said the newspapers should be student newspapers musicians should be government does not Future of The First Amendment White Paper II,

able to publish freely should be able to pub- allowed to sing songs have the right to e c r

without government lish freely without inter- with lyrics others find restrict indecent mate- u

o approval of a story. ference. offensive. rial on the Internet. S “Gender, and the First Amendment: Females More Inter- ested in Joining School Media, But Also Less Supportive of Press Rights.” For more information, visit http://firsta- mendment.jideas.org/latestresearch/index.html.

WINTER 2005-06 SPLC REPORT 5 HIGH SCHOOL CENSORSHIP Students face challenges covering homosexuality Some administrators supportive of articles on homosexuality, others censor gay content

Some may it call it censorship. But an be handed out, according to The Florida Thompson said this is upsetting interception is what a school spokesperson Times-Union. because “people need to talk about the said occurred when a Florida high school Ridgeview senior Katie Thompson issues that are going on; they need to be principal seized student newspapers con- wrote the column, titled “Homosexuality able to read stuff like that.” taining an opinion column about homo- is not a Choice.” In her column she Doering said cases like these send a ter- sexuality before it could be distributed. opined that homosexuality is a “biological rible message to gay students. All teens Many student newspaper staffs have stimulation in the brain” and Christian have bumpy times, she said, but it can be faced situations like this in attempting to counseling cannot worse for gay stu- publish stories on homosexuality. But change an individual’s dents struggling there seems to be just as many success sto- sexuality. with their identities. ries where supportive advisers and admin- Thompson, who is Students can’t just be An incident like this istrators have said this is an issue that stu- bisexual, said she was taught freedom of the tells kids the mere dents need to be able to cover. called to McCabe’s press, they need to be able mention of their sex- office and told that “ uality is so unaccept- Homosexuality ‘too mature’ her article was the rea- to exercise it.” able that it warrants son the paper could destroying the An e-mail to school board members from Bretton Zinger district spokesperson Darlene Mahla said not be distributed. Adviser, The Purple Tide school newspaper. Ridgeview High School principal Toni Her sexuality was not Chantilly High School Thompson said McCabe was able to “intercept” Panther mentioned in the col- she is not consider- Prints, the student newspaper with the column. ing legal action umn in question, “She said, ‘I’m sorry, but your article is because it would take too much time and before it too mature for the paper,’” said Thomp- too many resources. could son, who left the office crying. “She said she was afraid of the backlash. I don’t think A battle in California it offended her personally, she just didn’t The staff of East Bakersfield High School’s want to offend anybody” in a reli- The Kernal also learned the difficulties of gious community. covering an issue that can make school The paper was printed again officials uneasy. and distributed the next week The staff was set to run a spread on gay without Thompson’s article. students at their school when Principal Karen Doering, an attor- John Gibson ordered it pulled, even ney at the National Center though newspaper staff had acquired per- for Lesbian Rights, said it is mission from the parents of the students in troubling that the article the stories. He said he was worried that the was suppressed solely because of spread could incite violence against the gay its viewpoint. students mentioned in it. “I think it’s absurd to say this “Our campus is no more prone to vio- is an issue not age appropriate lence than any other,” said Maria Krauter, for high school students,” the current Kernal editor in chief and the Doering said. author of one of the stories. “I think he After being told by McCabe [Gibson] underestimated the tolerance of that her column would be cen- our school and our community. I think he sored, Thompson made copies thought he was being cautious, but he of it and handed them out at shouldn’t have pulled the articles in fear of lunch. She was again told to bullies.” see the principal and was The spread included interviews with threatened with suspen- openly gay students, as well as conversa- sion if she continued to tions with students and a local pastor who pass out her column. expressed their anti-gay views. The entire

6 SPLC REPORT WINTER 2005-06 HIGH SCHOOL CENSORSHIP feature was censored. cover sensitive topics. helps both writers and readers explore and The articles were a well-balanced look “I kind of cringe when I read stories examine their world. at sexual orientation, said Christine Sun, about administrators who shy away from “I think doing these stories helps read- an attorney for the American Civil Liber- these kinds of stories,” Satterthwaite said. ers understand other people and their ties Union of Southern California. “What are you saying when you say that communities.” “Censoring the articles made it seem kids can’t write a story about gay stu- like there was something taboo about talk- dents? What does that tell them? These A continuing issue ing about sexual orientation on campus,” are issues that they’re dealing with on a Sun, the ACLU attorney, said this issue is she said, noting that all the students in the daily basis.” not going away. She said she hopes that articles were public about their sexuality. Bretton Zinger, who advises The Purple cases like East Bakersfield’s will let student “It [homosexuality] was an issue already Tide at Chantilly High School in Virginia, journalists in California and nationwide being discussed.” agrees that student journalists need to be know that they have rights and can fight The students sued the school district in able to cover issues like homosexuality that censorship. May with the help of Sun but were denied are relevant to their lives. “More and more students are going to a temporary restraining order allowing “I think it’s important to help them to want to write about sexual orientation,” them to publish. The judge said a full hear- understand the role of the press,” he said. she said, and student newspapers need to ing was needed to consider all the facts. “Students can’t just be taught freedom of be able to cover it. “These are issues that The students were finally allowed to the press, they need to be able to exercise affect young people, and school is the print the spread in November after Gibson it.” place to get educated failed to produce evidence substantiating Zinger said The Purple Tide ran a story about them and his claims that violence would occur. written by an openly gay student about his have discus- Krauter said she did not hear any nega- experience trying to donate blood. The sion about tive comments when the newspaper was student wrote that because he admitted what’s going distributed. She also said that the staff will having homosexual sex, he was not allowed on in socie- continue the lawsuit. to donate. Zinger said he expected a reac- ty.” CG “We’re continuing because in one tion to the article and was surprised when month it could happen to someone else,” it was published without comment, good she said. “It won’t be a victory for student or bad. journalists everywhere until we have a precedent in the legal system.” Breaking new ground When students know their rights, Sun When a gay-straight alliance was formed at said, they can win these battles. Stevenson High School in Illinois, staffers Getting the stories published “is a fan- at the student newspaper decided to run tastic example of what happens when stu- two pages about what it was like to be gay dents fight for their rights,” she said. at the school, the first time the issue was covered in the paper’s 37-year history. Smooth sailing Barb Thill, adviser at The Statesman, Jennifer Allen, a writer at Michigan’s Dex- said administrators had concerns about the ter High School student newspaper, The article. Squall, said her paper has had no trouble “One thing they told me was writing about gay students. that they wouldn’t want kids to “Our administrators have always been be hurt by content in the stu- really supportive,” she said. Squall staff has dent newspaper,” she said. “I published several articles on gay students, think there was just a concern including Allen’s story last year about the that people would become the school’s newly formed gay-straight object of ridicule because of alliance, which named members of the what’s in the paper.” club. But with a supportive depart- “It’s not something you see every day in ment chair in their corner, the Dexter, we’re a very small community,” newspaper staff ran the stories, Allen said, noting that she did not hear of marking the first time the words anyone who was offended by the article. “gay” and “homosexual” were ever Rod Satterthwaite, Allen’s adviser, said used in The Statesman. it is important for students to be able to Thill said covering an issue like this

WINTER 2005-06 SPLC REPORT 7 HIGH SCHOOL CENSORSHIP Speech v. Safety What started as a ‘joke’ ended with a $5,000 settlement for one student. Experts talk about student expression post-Columbine.

BY CLAY GAYNOR of the teachers,” Shiffer said. “It was threatening. It was scary. I A new study says that the 1999 Columbine school shootings don’t think it had anything to do with free speech.” have had an impact on high school student speech — and at least Shiffer said the site, which also included other references to one student has felt the brunt of it. Satanism and urged viewers to tease those listed on it, was discov- The study, put out by the First Amendment Center in Sep- ered when a middle school student was caught looking at it in the tember, looks at the balance between school safety and protecting school library. She said the names of those posted on the site were students’ First Amendment rights. linked to their school e-mails and that anyone could send them a And Brian Conradt’s case may be an example of high school message labeled “tyme-2-die.” administrators failing to strike that balance, some student free While she would have reacted strongly regardless, Shiffer said, expression advocates say. “I’m sure I reacted Conradt, a former student at Carmel High School outside more strongly because Indianapolis, was suspended for five days in 1999 after a Web site it was after he designed calling 11 teachers and administrators “Satan Wor- Columbine. I think there is a difference shippers” was discovered the day after Columbine. “It was not at all in a student running The suspension was just the beginning for Conradt, who said humorous. I’m sorry, around saying they’re he did not mean any harm with the site. School officials ordered but flaming penta- “ him to issue a written apology and he was sued by three of the grams, the stuff about going to bomb the school teachers involved. He also left Carmel after the incident. shunning us – that’s as opposed to violent “It was a joke – that’s all it was meant to be,” said Conradt, not funny to me.” imagery in art or a poem.” who is now a supervisor doing Web work and graphic design for Shiffer said she and a digital media company. the other two teachers David Hudson “It was pretty random. I went to the Carmel Web site and pursued legal action in Attorney First Amendment Center pulled random names,” Conradt said of the faculty members order to set a prece- named on his site, which was up and running months before dent for similar cases Columbine. for what is appropriate and inappropriate and how threats to edu- Unfortunately for Conradt, some of those mentioned did not cators would be handled in the future. see the humor. Conradt, who transferred to a private school in Colorado after Laurie Hansen, Conradt’s mother, said her son was suspended the incident, disagreed about the nature of the suit. with the understanding that the school would not press charges. “I think they’re just greedy,” he said. “I think they used But that agreement did not stop three teachers from filing their Columbine as leverage for filing the suit. I honestly believe they own suit against Conradt with the Indiana State Teachers Associ- used it as an excuse for taking action. I think it was blatantly obvi- ation paying their legal fees. They settled out of court for $5,000. ous it was a joke.” “I got back from suspension and all of a sudden — thinking I’d served my time — I got sued,” Conradt said. First Amendment advocates weigh in It is fair to say Columbine has been a definite factor in student Teacher said Web site ‘not funny’ free expression, said David Hudson, an attorney at the First Helen Shiffer, one of the teachers who sued Conradt, said she felt Amendment Center and the author of the study. The First threatened by the site. Amendment Center, based in Nashville, Tenn., works to preserve “I had never seen this young man before — he only knew one First Amendment freedoms through information and education.

8 SPLC REPORT WINTER 2005-06 HIGH SCHOOL CENSORSHIP

Hudson’s 2005 report, “Student Expression in the Age of Columbine: Securing Safety and Protecting First Amendment Rights,” explores student speech post-Columbine and zero tolerance policies “that have spread from drugs and weapons to controversial student speech.” “The serious question is zero tolerance leading to zero judgement” when controversial student speech is involved, Hudson said. “There has got to be common sense. Calling someone a Satan worshipper isn’t a true threat, although it may be defamatory.” Mark Goodman, executive director of the Student Press Law Center, agreed that Columbine has been a factor in student expression. Goodman said that every time there is a violent incident at a school there is probably a spike in students punished for views that could be seen as “threatening.” “I don’t know that there was a dramatic change, but I do think Hudson said it is that there were more efforts to limit what students could publish important to look at sever- based on concerns about violence,” Goodman said. “Also, stu- al factors when dealing with controversial student speech, dents may have been more hesitant to publish things that could whether it is verbal, in art or on the Web. These factors include be perceived as harshly critical of school officials. the student’s past disciplinary record, whether or not the recipi- “Not every circumstance is a true threat — the same goes for ent of the speech was truly afraid and other events going on in humor and satire.” the student’s life. He added that it is key to consider the context Conradt’s mother echoed that sentiment. of the situation and to talk with the student’s friends, parents “They couldn’t differentiate between the two, Columbine and and teachers. him,” Hansen said. “It was a joke. His First Amendment rights “I think there is a difference in a student running around say- got trampled on.” ing they’re going to bomb the school as opposed to violent imagery in art or a poem,” Hudson said. “I don’t mean to suggest Striking a balance that students can never be punished for violent expressions, but Because students do sometimes act on threats, experts say finding they [school officials] can’t forget that students do have constitu- a balance between students’ rights to express themselves and tional rights.” school safety is not an easy task. Ken Trump, a school safety expert, talked about this balance in Kids often just seeking attention Hudson’s report. Jean Cirillo, a clinical psychologist who studies teen behavior, told “The key to balancing safety with First Amendment or any the SPLC in a past article that administrators are overreacting other rights is to have legally sound policies, reasonable and well- when then they assume students will act in a threatening way after understood procedures, and well-trained school staff,” Trump engaging in controversial or violent expression. said according to Hudson’s report. “In my 20-years plus of work- “Kids seek attention this way,” Cirillo has said. “There is nothing in schools, the vast majority of educators I have worked with ing that makes a kid feel better than scaring a powerful adult.” strive for firm, fair and consistent discipline applied with good Hansen said her son was doing just that: seeking attention. common sense. “Kids do things to show off,” she said. “He was just showing “Unfortunately, it is when the latter component – common off his ability to build a Web site to his friends.” sense — is missing that we tend to see anecdotal cases where stu- Cirillo also told the SPLC that harsh punishments, like the one dents’ rights are violated or questionable disciplinary actions come given to Conradt, do not solve anything. It would be better to talk into place.” to them about their actions than act with an iron fist, she said. Goodman also said common sense is a key component when Punishments silencing student expression may not only violate administrators are faced with controversial speech. students’ rights, but can also prove dangerous, she said. Students “Administrators using common sense and recognizing there are are left with no way to share their feelings and administrators can dangers in seeing a threat when a threat doesn’t exist” is important, miss clues revealing students who may need help. Goodman said. “What I fear happens is that many schools decide In his report, Hudson writes, “If students feel they have no what they’re going to censor based on what the reaction will be, outlet, they may resort to more subversive, violent means of not whether there’s a real risk of violence.” expressing themselves.”

WINTER 2005-06 SPLC REPORT 9 HIGH SCHOOL CENSORSHIP Students win fight over censorship of sex article NEW JERSEY — Student newspaper it inappropriate. Barnes also forbade any School District. staffers in New Jersey who won a battle mention of the article and surrounding Goldstein said that this case is a good over censorship of an article on teen sex events in any future issue of The Caldron. example of a positive outcome of students proved that knowing their rights under The article discussed national sexual knowing, and fighting for, their rights. the First Amendment pays off. trends and studies and compared them to “In general, an informed student jour- In September, the Caldwell-West Cald- Caldwell High. Many of the issues were nalist can avoid some pitfalls that the well School Board in Newark, N.J., agreed the same as those addressed in the school’s uninformed student journalist might fall to allow the publication of a previously sex education curriculum. into,” Goldstein said. “When it comes to censored article in The Caldron, James The Caldron’s efforts to appeal the cen- censorship, being informed about your Caldwell High School’s student newspa- sorship to the superintendent and school rights is like learning to do CPR. Know- per. But the victory may prove temporary, board were rejected. ing your rights won’t stop a principal from as board members are considering stricter Bennett Zurofsky, the students’ attor- making a bad decision any more than policies that could allow for greater cen- ney, wrote a letter to the school board knowing CPR will prevent someone from sorship in the future. attorney that stated neither Barnes nor having a heart attack, but in either case, “It was great because it was evident that Superintendent Daniel Gerardi had any knowing what to do certainly makes a students could fight unjust policies and legal right to censor “Let’s Talk About Sex” positive outcome more likely.” succeed,” Andrew Mangino, the former because the school board had no policy in Zurofsky said the biggest worry now is Caldron editor who led the fight against place that addressed the issue. that this case will prompt the Caldwell- the school board, said of the decision. “I Zurofsky’s letter made clear that his West Caldwell School Board to imple- hope that it will be an inspiration for other clients would pursue legal action if the issue ment stricter censorship guidelines for The students to oppose unjust censorship.” could not be resolved. He said that once the Caldron. Adam Goldstein, a legal fellow at the school board realized they had no legal “It certainly is a good sign that the Student Press Law Center, said this case grounds for censorship and would likely be school districts are willing to recognize the shows other students that fighting censor- unsuccessful in court due to The Caldron’s law,” Zurofsky said of the agreement. But ship is not hopeless. strong case, they were inclined to settle. “there are certainly indications that the “The message to students facing simi- The school board and the students board is interested in passing stricter stan- lar types of censorship is that just because came to an agreement that allowed “Let’s dards.” a school has prior review does not mean a Talk About Sex” and its sidebar to be pub- While Gerardi failed to return mes- school can censor anything they want,” lished in the October issue of The Cal- sages from the SPLC asking for comment, Goldstein said. “Prior review is just look- dron. Newark’s The Star-Ledger reported that ing at the newspaper. If the school wants The agreement states that there will be Mary Davidson, president of the school to take something out, there are legal stan- no censorship of The Caldron until the board, said the board will consider creat- dards that must be followed.” Caldwell-West Caldwell Board of Educa- ing a new policy to govern student publi- The article, “Let’s Talk About Sex,” was tion lawfully implements censorship stan- cations. pulled from the paper’s April issue after dards in accordance with the law as writ- After the victory, Mangino said, “It Caldwell principal Kevin Barnes deemed ten in Tinker v. Des Moines Independent would be a shame if they did.” CG

Former student loses free speech lawsuit; appeals filed CALIFORNIA — A Marin County attempted to confiscate copies of The California is one of six states with a Superior Court judge issued a written Buzz, Novato’s student newspaper, after statute protecting student free expression opinion in August regarding his March his article “Immigration” was printed. rights. The laws are often referred to as decision that a former student columnist’s David Greene, a lawyer at the First anti-Hazelwood statutes because many constitutional rights were not violated by Amendment Project, said this decision were a specific response to the Supreme the Novato Unified School District. could give the wrong idea to California Court’s 1988 decision limiting students’ Former Novato High School student school officials. rights under the First Amendment. Andrew Smith’s lawsuit claimed his right “Anytime a student journalist loses a “Immigration” contained derogatory to free speech under both the First case like this, it sends a message to school statements about Mexican immigrants Amendment and the California Education administrators that they have a greater and listed reasons why Smith thought Code was violated when district officials power to control the student press than immigration laws are ineffective. apologized to students and parents and they actually do,” Greene said. The court found that “Immigration” led

10 SPLC REPORT WINTER 2005-06 HIGH SCHOOL CENSORSHIP to a student walkout, administrators meet- because it was the student newspaper some of these kinds of expression, in part ing with angry parents and a fight between staff’s decision to run a counter article, because the terms are so vague,” said Smith and several Latino students. not a directive of the school or district. SPLC Executive Director Mark Good- In regards to the confiscation of news- Stella Robertson, then-editor of The man. “For example, is criticizing a school papers, the court said, “there was no cred- Buzz, told the Student Press Law Center official ‘insulting?’” ible evidence that the District removed in January 2002 that it was the principal Goodman said the decision constitutes any editions of The Buzz after they were who was delaying publication. a real diminishment of student free press distributed,” negating Smith’s claim to the In addition, the court also rejected rights as protected by the California Edu- contrary. The court found that all the Smith’s claim that the district’s policy cation Code. copies had been distributed at the time the regarding student publications was a viola- “We hope it won’t be used to justify school gave the order to confiscate them, tion of state and federal law. censorship of other student expression in thus thwarting their effort. The district has the ability “to control the future,” he said. Smith also claimed his rights were publication of material which is insulting, Arthur Mark, Smith’s attorney, said an breached when the publication of his sec- derogatory, harassing, likely to incite vio- appeal to the judge’s decision has been filed. ond article, “Reverse Racism,” was lence and/or likely to cause a substantial “The main issue is the free speech delayed so that a counter article could be disruption to the orderly operation of the rights of Andrew Smith and the free written and printed alongside it. Both school,” according to the court’s opinion, speech rights of the students of Califor- articles were published during the 2001- using terms found in the district’s policy. nia,” he said. 02 school year. Student press advocates raised ques- Mark said this case is important The court found that Smith’s rights tions about the breadth of the judge’s deci- because it will have an impact on how were not violated because he was ultimate- sion, saying it appeared to go beyond what administrators treat student speech. CG ly allowed to publish both articles. The California state law allows. Case: Smith v. Novato Unified Sch. court also said Smith’s rights were not vio- “The judge just ignored the fact that Dist., No. CV022210 (Marin Super. Ct. lated when “Reverse Racism” was delayed state law does not allow censorship for Aug. 26, 2005)

HIGH SCHOOL CENSORSHIP INBRIEF Suspension for violent, Thompson Middle School principal over the summer. James Kassebaum for violating his son’s Superintendent Sue Burgess imple- sexually explicit story First Amendment rights. mented the new policy, which includes did not violate student’s The court ruled in favor of the bans on images of students wearing school, saying, “Speech that constitutes attire that violates the student dress rights, court rules a true threat of violence, by being a code, content that associates the school NEW YORK — A U.S. District Court ‘serious expression of an intent to cause with anything other than neutral politi- for the Eastern District of New York present or future harm,’ may be pro- cal stances and advertising or promo- ruled in September that school officials hibited.” tion of any product, service or activity did not violate a student’s rights when The Finkles have appealed the deci- unlawful for minors. he was suspended for writing a violent sion, according to a secretary in Nighthawk staff protested the regu- and sexually explicit story using the Christopher Murray’s office, who is the lations to the school board and super- names of his classmates. Finkle’s lawyer. intendent. As a result, it was decided Dylan Finkle, 13, wrote a three- Case: D.F. ex rel. Finkle v. Bd. of Ed. that the lawyer who wrote the policy chapter story titled “Costume Party,” of Syosset Cent. Sch. Dist., 386 in question would rewrite the regula- which chronicled a student who kills F.Supp.2d 119 (E.D.N.Y. 2005) tions. several of his classmates and depicts Robin Sawyer, Nighthawk News’ others in violent sexual situations. Fin- Student editors up in adviser, said in an e-mail she is unhap- kle read the story aloud to classmates, arms over restrictive py with the rewritten policy, which which prompted one teacher to turn still gives the principal of the school him in to the principal. publications policy ultimate authority over newspaper After the suspension was handed NORTH CAROLINA — Student content. down, Dylan’s father, Andrew Finkle, journalists at First Flight High School’s The new proposal raises the same sued the Syosset Board of Education, Nighthawk News are fighting new regu- legal questions as the old one, said superintendent Carole Hankin and lations imposed on their newspaper Adam Goldstein, a legal fellow at the

WINTER 2005-06 SPLC REPORT 11 HIGH SCHOOL CENSORSHIP

Student Press Law Center. High Schools currently have the final staff, the settlement does not contain “It also appears motivated by a dis- say on what goes into their schools’ provisions preventing administrators like of the newspaper’s content,” he newspapers and yearbooks, but that from having the final say on what pho- said. may change. tos are appropriate. The Settlement Rick Senften, an editor for The says, “The principal may establish dress Principal halts Repository, a Canton newspaper, said codes for senior portraits,” but must publication over prior school officials admitted the policy grant “reasonable requests” for excep- needed to be changed. Senften, who tions – meaning the decision of what review statement has worked with high school journal- photos appear in the yearbook remains WASHINGTON — Editors and the ism programs in Ohio for the last 15 in the principal’s hands. principal of Everett High School years, said he was asked to help draft a reached a stalemate in October over new policy. School rejects parents‘ publication of the student newspaper. Senften said the board would not $1.5 million claim over Claire Lueneberg, an editor at the support a policy that denied school Kodak, said the school’s new principal, officials any review privilege, but the ’unauthorized‘ photos Catherine Matthews, will not allow the proposed policy does give students ulti- CALIFORNIA — The San Dieguito paper to be printed until the staff mate content control. Under the pro- Union High School District has reject- removes an editorial statement that says posed policy, if a principal reviews the ed a $1.5 million claim filed by the students control the newspaper’s con- paper and has objections to content, a parents of a 16-year-old girl who posed tent. meeting with the staff must be held in in her underwear for photos in a high Removing the statement would give which the administrator lays out his or Matthews the authority to review all her concerns over the material in ques- material before it is published, tion. The staff can elect to publish the Lueneberg said. The paper had been material despite administrative con- publishing the statement since last cerns, but in doing so they assume all spring. liability. In the Herald, an Everett, Wash. Senften said it appears likely the newspaper, Matthews said she is school board will adopt the new policy, enforcing a seven-year-old school board possibly as early as December. policy that allows, but does not require, principals to practice prior review. Yearbook portrait policy Lueneberg and co-editor Sara Eccle- changed; principal still ston asked the superintendent and school board in a meeting in Novem- has final say on photos ber to grant permission for them to FLORIDA — The Clay County publish as a student forum with the School Board agreed in September to editorial statement. The board denied change its portrait policy for high their requests, Lueneberg said. The school seniors after reaching an out-of- editors said they are not sure what court settlement with a former student. A photo from First Flight magazine of their next step is, but Lueneberg said Kelli Davis’ senior photo was Monterey Salka with Ben Halstead. they do not plan to remove the state- removed by school administrators from ment. Fleming Island High School’s yearbook school literary magazine. last year when she chose to wear a tuxe- The claim sought damages for School board debates do instead of the traditional drape “defamation, invasion of privacy, inade- policy on administrative required for female students. quate supervision, sexual harassment The National Center for Lesbian and related damages all stemming from prior review for media Rights filed a complaint on Davis’ unauthorized nude photographs…” OHIO — School officials in Canton behalf in May 2005 threatening legal appearing in Torrey Pines High School’s are debating their policy of administra- action if the policy was not amended. Dialogue Spring 2005 First Flight. tive review for the district’s high school School board officials agreed to The parents’ attorney, Daniel publications. change the portrait policy. Gilleon, told The San Diego Union-Tri- Principals at McKinley and Timken Unfortunately for the yearbook bune that they plan to proceed with a

12 SPLC REPORT WINTER 2005-06 HIGH SCHOOL CENSORSHIP

lawsuit against the school district. Boim’s attorney Don Keenan said beyond a press release, but he did tell The pictures feature the girl in ques- Boim, now 16, will be applying to col- The Knoxville News-Sentinel that the tion, Monterey Salka, and two other lege soon and is worried about having article featured a photo of an unnamed students posing in their underwear or to put the suspension on her applica- student baring a tattoo that her parents wearing flesh-colored tank tops. No tions. did not know about, which concerned genitals or breasts appear in the images. The journal entry in question administrators. In two images, Monterey Salka appears describes a girl who falls asleep in class The Oak Leaf published without the to be topless, but her and dreams of shooting her math article on birth control and without the hair is covering her teacher. The math teacher was not names of the students pictured in the breasts. named. tattoo feature in order to get the paper Gilleon said Salka, Boim was suspended for violating out, Thomas said. who has done profes- the student code of conduct, which But the students are not giving up. sional modeling in the prohibits students from making threats “I think we need the same rights as past, regrets posing for against the school, Mitzi Edge, a Ful- everyone else,” Thomas said. “We’ve the photos. ton schools spokeswoman, has said. always been responsible – this wouldn’t The claim stated The suit seeks only $1 in damages, have been a big deal if it had been The cover of the that at no point were Keenan said, because the Boims want released as we intended.” issue containing Salka or her parents to make it clear that the suit is not Thomas said that students and com- the photos. asked to provide con- about money — just clearing their munity members voiced their opinions sent for the pictures’ daughter’s record. on the matter at a school board meet- publication. ing and that the majority of the speak- The Salkas also contend they would Principal seizes paper ers condemned the censorship. not have given consent to publish the photos. over column on birth Study finds Web filters Dan Shinoff, the school district’s control, tattoo article block legitimate content lawyer, said the entire claim is baseless. “I think these youngsters knowingly TENNESSEE — A high school princi- Legitimate content often is blocked by participated in this issue,” he said. “She’s pal seized all 1,800 copies of a student school and library Internet filters when a model. She’s all over the Internet. For newspaper in November over objec- students are conducting research, someone who seeks notoriety for her tions to a column about birth control according to a new study by a universi- own image this is very interesting.” and an article on body art. ty librarian. Lynch said that despite the claim Oak Ridge High School Principal Lynn Sutton, director of the Z. she did not anticipate any changes in Becky Ervin objected to a column Smith Reynolds Library at Wake Forest how the district handles student publi- intended to inform students who were University, found that many school and cations. sexually active about birth control library filters were overzealous in their measures available to them, said Oak attempts to protect students from inap- Student files lawsuit to Leaf Editor in Chief Brittany Thomas. propriate online content. She presented The column quoted a local health cen- her study, “Experiences of High School clear disciplinary record ter physician as saying that teenagers do Students Conducting Term Paper GEORGIA — A student suspended not need parental consent in Tennessee Research Using Filtered Internet for writing a journal entry school offi- to obtain birth control information. Access,” Oct. 8 at the American Associ- cials deemed threatening filed a lawsuit Ervin had no problem with an ation of School Librarians conference in October asking for her disciplinary accompanying column encouraging in Pittsburgh. record to be cleared. abstinence, Thomas said, adding that Sutton interviewed two English Rachel Boim, then 14 and a student Oak Ridge’s sex education program is classes at a Michigan high school, one at Roswell High School, was expelled abstinence only. advanced rhetoric and one basic com- in October 2003 for a year after her art The principal also had qualms with position, that had been assigned term teacher confiscated her private journal an article featuring photos of students papers to be researched on school when she passed it to a classmate. The showing their tattoos and body pierc- library computers. She said almost all school district later reduced Boim’s ings, Thomas said. of the students interviewed experienced punishment to a 10-day suspension Superintendent Thomas Bailey some kind of problem with legitimate that remains on her record. declined to comment on the situation sites being filtered.

WINTER 2005-06 SPLC REPORT 13 LEGAL ANALYSIS Saying ‘yes’ What the law says about minors’ ability to consent — without parents’ permission — to stories that could invade their privacy or damage their reputation.

BY MIKE HIESTAND vate to share. Despite Jane’s unambiguous consent, they fear uring the summer following her freshman year of high allowing the student paper to publish her story could subject the school, Jane completed treatment for an eating disorder. school to legal trouble, particularly since Jane’s parents have been D The in-patient treatment and counseling she received unwilling to sign a consent form. helped her understand and overcome the problem that had Jane is fictional. But her experience — and the experience of affected her since she was about 12. Now a 17-year-old high The Student Times in trying to help her share her story — is not. school senior, Jane is, by all measures, successful and happy. She Whether the story involves eating disorders, substance abuse, has never told anyone other than her family teenage pregnancy or some other private and sensitive personal and a few close friends about her past and she experience, student and commer- is sure that many of her classmates and teach- cial news media grapple ers would be shocked to hear that in with how best to handle between volleyball practice, her studies stories such as Jane’s and and a part-time job, she volunteers other “minors” on a regu- her time by providing tele- lar basis. phone peer support to other Last spring, for exam- young women currently ple, officials at East Bak- undergoing treat- ersfield High School in ment for potentially California censored a fea- fatal eating disor- ture spread on homosexuali- ders. ty from the student newspa- She knows that, per. The spread included statistically, some of interviews with openly gay her classmates are students on campus who going through the same wanted to share how they thing she did. She remem- felt they were treated by bers how alone she others, an in-depth inter- felt and how that view with a gay student sense of isolation and her mother, inter- and embarrassment views with a student and a prevented her from getting the help she needed until it was almost local pastor who felt homosexuality was wrong, a story about the too late. It is for that reason that she has sought out The Student research that had been done on homosexuality and a story that Times, the student newspaper at her school, to tell her story. listed statistics on homosexuality in America and violence against Though her parents would rather she keep her past to herself, Jane gays. Despite the fact that the students had all consented to the is proud of having successfully confronted her eating disorder and newspaper’s use of their names and experiences, school officials wants to encourage others to do the same by putting a face on a censored the story claiming they were concerned for the students’ problem that is too often kept a secret. She hopes to raise aware- safety. The case is currently in court. ness and let others know that help is available. Unfortunately, when school officials hear of the newspaper’s The right to say ‘yes’ plans to publish Jane’s story, they order it removed. Jane, they Because so many of their subjects involve young people, a ques- point out, is a minor. Her story, they say, is too personal and pri- tion of particular interest to student media is whether minors (in

14 SPLC REPORT WINTER 2005-06 LEGAL ANALYSIS most states defined as a person under the age of 18) can validly consent — without a parent or guardian — to the publication of stories about themselves that either could invade their privacy or If material is newsworthy, could damage their reputations by libel. consent may not be required While each case is unique, involving a number of factors both legal and practical that should be carefully weighed prior to pub- While obtaining a minor’s consent may sometimes be lication, such thorough analysis frequently goes missing in favor required to protect news media when reporting on highly of a much more rigid test, which simply asks: how old is the sub- sensitive or private matters in which the minor is involved, ject of the story? Too often the result is a knee-jerk reaction to cen- in other cases the issue of consent need not even be raised. sor or withhold publication, fearing either legal repercussions or Where a story falls within the broad definition of “news- the public criticism that may come when young people share sto- worthy,” courts have generally ruled that a minor’s priva- ries or experiences involving topics that some might find uncom- cy rights are no greater than those of adults, in which case fortable. it not necessary for a publication to gain the consent of Such a response is not only legally simplistic — and, in most minors or their parents to report the story. In a unanimous cases, probably misguided — it also deprives young people of an 1979 decision, the U.S. Supreme Court ruled in Smith v. opportunity to have their voices and their stories heard on topics Daily Mail that the First Amendment protects the right of that matter deeply to them. journalists to use the names of minors in newsworthy stories as long as the information is “lawfully obtained” and 13 The law: not simply a matter of age “truthfully” reported. Following such reasoning, a Mis- The American Law Institute has noted in its Restatement, a wide- souri court, for example, found that a TV news crew did ly accepted legal authority, that a person’s consent should be effec- not violate a 15-year-old girl’s right to privacy by taping tive as long as the person giving the consent has the legal capacity her during a police search of her home. The court found to do so.1 In a comment on that section, the Restatement says a the police action to be “newsworthy” and specifically rejected the teen’s claim that Missouri law and public pol- child’s consent is and should be effective if he is “capable of appre- 14 ciating the nature, extent and probable consequences of the con- icy offered minors special protection. duct [to which he consents],” even if parental consent is not However, at least one court has recognized the limits of obtained or expressly refused.2 newsworthiness and found that when reporters deal with Courts have generally followed the reasoning of the Restate- children, particularly those under the age of 12, they must think about the probable consequences of their conduct ment in cases of invasion of privacy and defamation, finding that 15 a minor’s consent is valid when the minor seems to be sufficient- and operate within the bounds of basic decency. ly mature and capable of realizing the possible repercussions of the consent. In one case, for example, a court found talk show, a New York court that a national television found that “The Sally Jesse talk show did not invade The need for consent, whether from a minor or par- Raphael Show” did not the privacy of a 16-year-old ent, only arises when the information to be pub- defame or invade the priva- girl by airing her stepmoth- lished is private or damaging to the person in ques- cy of a 15-year-old girl who er’s reading of the girl’s tion. For example, consent is never legally required represented herself as a pros- police record in response to titute on the show. The the girl’s verbal attacks on for publishing a photo of someone in a public place court found that because the her stepmother during the or publishing information that is widely known. girl consented to the presen- same broadcast.3 The court tation of herself as a teenage based its holding on its prostitute — a claim she finding that the minor appeared on the show’s tape to be suffi- later denied — she could not subsequently sue the show for ciently mature and capable of realizing that by verbally attacking defamation.5 The court specifically rejected the girl’s claim that her stepmother on national television she would be exposing there was an exception for minors to the general principle of con- skeletons in her own closet to public airing. sent, finding that the girl “offered no authority for this proposi- “She was not so young,” the court wrote, “as to be incapable tion, and the Court is aware of none.”6 of realizing that she would be in a glass house throwing stones. We need not decide at what age a child is sufficiently mature to News v. trade waive her right to privacy, but 16 is old enough when no cir- A number of court’s have noted a distinction between a minor cumstances of deception or overreaching or limited competence consenting to publication of information about themselves for are shown.”4 purposes of news and information — where a minor’s consent In another case involving a minor’s appearance on a television is valid — and publication for commercial or trade purposes

WINTER 2005-06 SPLC REPORT 15 LEGAL ANALYSIS where a parent’s or guardian’s consent may be required. In fact, other things, invasion of privacy based on misappropriation of her a number of states have passed misappropriation or “unautho- name and likeness. This time the court found that the use of the rized publication” laws that make it unlawful to use a minor’s girl’s image in the video game might be considered a use for com- image for advertising, promotional, trade or other commercial mercial gain and therefore could constitute an unlawful invasion purposes without first obtaining the consent of a parent or of privacy by misappropriation. In such a case — which the court guardian.7 Courts have made clear, however, that such laws “do pointed out was different from situations that did not involve not apply to reports of newsworthy events or matters of public commercial gain — the minor girl’s consent might be ineffec- interest.”8 tive.12 The case is ongoing. In most cases, it will be easy to distinguish between commercial and non-commercial use. Clearly, interviewing a student for a news Why it matters story or feature would not be considered “commercial.” Indeed, There are exceptionally strong policy and legal arguments in favor with the exception of using minors as models in advertising or for of recognizing a minor’s consent as valid in the right circum- promotional material — where parental consent should always be stances. Such reasoning is in line with that adopted by courts in obtained — most student media are unlikely to use minors’ images determining whether a minor may consent to other kinds of for purposes that a court would consider commercial. actions that may harm them,16 and whether a child is responsible Still, in other contexts, it has for injuries he causes,17 his crimes18 and confessions been more difficult for courts to to crimes.19 distinguish between cases involv- Such a position also takes into account the ing news and those involving trade. importance of recognizing the First Amendment In Florida, for example, a feder- right of minors to have their voices heard. For al district court rejected a 17-year- example, without legal recognition of a old girl’s claim that the producer’s minor’s right to consent, a 17-year-old of the Girls Gone Wild video series, recovering drug addict seeking to per- in which young women are video- suade other teens to “stay clean” by relat- taped exposing themselves in pub- ing his experiences would likely find few lic places, unlawfully violated her media outlets willing to touch his story for privacy when it sold and distrib- fear of being sued by his parents or by uted a video of the girl voluntarily him when he is older. The Restate- exposing her breasts to a camera- ment view strikes a sensible mid- man on a Panama City public dle ground. It recognizes a per- street.9 Even though the video was son’s age as simply one factor, sold, the court found that the among others, to be considered in young woman was not shown determining if consent is valid. As endorsing or promoting a product long as a person understands what it — acts covered under Florida law — is that he or she is consenting to and but was rather simply part of an realizes the consequences of allowing expressive work in which she volun- such information to be published, the tarily consented. consent should be valid. Where a person Having found that the use of the — irrespective of age — is too immature 17-year-old’s image was not a commercial use for purposes of Flori- or is otherwise unable to appreciate the significance of giving con- da’s “unauthorized publication” law, the court further went on to sent, the consent is invalid. Under this view, the Student Press explicitly reject the argument that a minor could never consent to Law Center believes most high school students could provide valid publication. “Florida law,” the judge wrote, “has never recognized consent. Most elementary-aged children, because of their imma- that a minor is incapable of consenting to the publication of her turity, probably could not. image and likeness where no compensation is involved.”10 In a more recent case, a Texas appeals court refused to lift a Obtaining consent temporary restraining order issued against the maker of a video Remember, the need for consent, whether from a minor or parent, game that included images of a 17-year-old girl attending Spring only arises when the information to be published is private or dam- Break on South Padre Island.11 The girl, who used a false identi- aging to the person in question. For example, consent is never fication card and signed a consent form, voluntarily exposed her legally required for publishing a photo of someone in a public place breasts while taking part in a trivia game that was set up on a pub- or publishing information that is widely known or not embarrass- lic street. After her brother told her that the video game included ing or hurtful. multiple images of her topless, she sued the company for, among But when the material to be published could constitute an

16 SPLC REPORT WINTER 2005-06 LEGAL ANALYSIS invasion of privacy or libel, consent is an important safeguard people often have important stories to tell and respect their right for a news organization. When obtaining consent from a to choose to share them. minor, it is essential that journalists take extra precautions to insure that the minor is fully informed of what is taking place. 1 Restatement (Second) of Torts § 892A. First, make sure that the minor understands that you are a 2 Id. at cmt. on (2). 3 See Howell v. Tribune Entm’t Co., 106 F.3d 215 (7th Cir. 1997). reporter working on a story that will be published. If you are a 4 Id. at 221. student journalist, tell him what your story will be about and 5 Weber v. Multimedia Entm’t Co., No. 97 Civ. 0682(JGK), 2000 WL 526726 (S.D.N.Y. May 2, 2000), reconsideration denied, 2000 WL 724003 (S.D.N.Y. June 5, 2000). how you intend to use the information he provides. Let him 6 Id. at 7. know that your publication is read not only by other students, 7 For example, California’s law provides that “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or but also by parents, faculty, neighbors, potential employers and goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, even other larger media, which could pick up on the story. goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons When the information is especially “sensitive,” you should con- injured as a result thereof. CAL. CIVIL CODE § 3344(a) (emphasis added). New York law states vey to him some of the possible consequences — both immedi- that “[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written ate and future — of publishing his information. Most impor- consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” tantly, tell him he is under no obligation to give you the infor- N.Y. CIV. RIGHTS LAW § 50 (emphasis added). 8 Weber, 2000 WL 526726 at 5. mation you are requesting. You may also want to suggest that 9 Lane v. MRA Holdings, 242 F.Supp.2d 1205 (M.D. Fla. 2002). 10 Id. at 1218. he talk with a parent or some other adult before proceeding. 11 Topheavy Studios, Inc. v. Doe, NO. 03-05-00022-CV, 2005 WL 1940159 (Tex. App. Austin Aug While not necessary to be legally enforceable, the Student Press 11, 2005), reh’g overruled, (Sep 14, 2005). 12 2005 WL 1940159 at 5. Law Center strongly encourages that you obtain the minor’s con- 13 Smith v. Daily Mail, 443 U.S. 97 (1979). See also Okla. Publ’g Co. v. District Court, 430 U.S. 308 sent in writing. The written consent should note how the minor’s (1977) (Supreme Court lifted an injunction that prohibited publication of the name or photograph of an 11-year-old boy charged with second-degree murder). A narrow variation to this gen- information will be used. It should also state that the reporter and eral rule may exist in cases involving the publication of the names of minors obtained during oth- minor discussed the implications of giving consent and that the erwise closed hearings involving. Where reporters have agreed not to disclose information as pre- condition to attending such proceedings they may be legally bound to honor their agreement. minor attests that he fully understands what he is doing when he 14 Parker v. Multimedia KSDK, Inc., 27 Med. L. Rptr. 2305 (Mo. Cir. Ct. 1999) (The court also signs the consent statement. suggested that girl’s failure to object to TV news crew’s filming of police search of family’s home constituted a valid waiver of her right to privacy). Note that in 1999 the U.S. Supreme Court Finally, even if it appears the minor is capable of giving valid issued rulings in a set of cases that cast some doubt on the legality of some so-called police “ride- consent (and assuming the minor does not object), it never hurts alongs.” For more information — and list of practical suggestions when considering a ride-along, see: Reporter’s Committee for Freedom of the Press, From The Hotline, NEWS MEDIA AND THE to obtain the consent of a parent or guardian (if one is willing to LAW, Summer 2003, http://rcfp.org./news/mag/27-3/hot-fromtheh.html. provide it) as well. Certainly, as discussed above, if the publica- 15 In KOVR-TV, Inc. v. Superior Court, 31 Cal.App.4th 1023 (Cal. Ct. App. 1995), the court held that a reporter intentionally and negligently inflicted emotional distress upon three girls, ages 11, tion involves any sort of trade or commercial use, parental or 7 and 5, by coming to their home uninvited and telling them of the murders of two of their play- mates, who lived next-door. At the time, the girls did not know of their friends’ violent deaths, guardian permission must be obtained. and the reporter told the children that their friends’ mother had killed her children and then herself. Id. at 1027. The court found that the reporter told the children of the murders in such a Summary manner as to cause them emotional distress that would be demonstrative to the TV audience. The reporter also questioned the girls about the murdered family on camera and intruded uninvited Recognizing the validity of a minor’s consent is an issue too into the minors’ home though fully aware that the children’s parents were not home. The court found that the reporter acted with an “alarming absence of sensitivity and civility” and was there- important to be left to a simple, one-size-fits-all age test. Where a fore guilty of intentional infliction of emotional distress. Id. at 1028. young person is capable of understanding the nature and conse- 16 See, e.g., Leonhard v. United States, 633 F.2d 599 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981) (children who consented to being taken into hiding with stepfather under the federal wit- quences of publicly disclosing personal or sensitive information ness protection program could not later sue the government for abduction and false imprison- about themselves, such informed consent should be valid. While ment); Westbrook v. Hutchinson, 10 S.E.2d 145 (1940) (court implied that woman sued for false imprisonment by 11-year-old would have defense if she proved child stayed with her voluntari- news media should also carefully weigh the pros and cons of pub- ly). lishing information about a minor, they — just like courts, school 17 Gibbs v. State Farm Mut. Ins. Co., 544 F.2d 423 (9th Cir. 1976). 18 Redman v. State, 580 S.W.2d 945 (Ark. 1979). officials, parents and others — need to keep in mind that young 19 Gallegos v. Colo., 370 U.S. 49 (1962), reh’g denied, 370 U.S. 965 (1962).

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WINTER 2005-06 SPLC REPORT 17 INTERNET Using faces from Facebook Student editors talk about using social networking sites as sources; experts say approach sites with caution BY CLAY GAYNOR constitute a “fair use.” ith deadline only two hours away, the staff of The Reflec- With no clear answers available before deadline, Reflector staff tor, Mississippi State University’s student newspaper, was said they decided not to publish the student’s picture. W at a crossroads. A freshman student had been in a car accident, striking and A different approach killing a sophomore, and was charged with driving under the When staff at The Miami Hurricane was faced with a similar situ- influence of alcohol. Unable to obtain her booking mug shot, the ation they decided to run photos from Facebook. newspaper staff was considering running a photo of the charged In November, photos of several University of Miami students student from Facebook.com. Facebook is an online directory that who indicated they went swimming in a campus lake — an act connects people through social networks at schools. Students can forbidden by the university — appeared on a fellow student’s post photos and profiles of them- Facebook profile. Patricia Mazzei, selves on the site, and the accused Hurricane editor in chief, did not driver appeared to have done just hesitate to run them, accompanied that. by the headline, “Caught on Face- Editor in Chief Elizabeth Crisp book.” thought the newsworthiness of the Mazzei said the staff considered story merited running the photo, the pros and cons of running poten- which she said would have given the tially copyrighted material but decid- coverage a hard-hitting personal ele- ed “the story’s importance out- ment. weighed any other risks.” “I think it puts a face onto it,” “We thought it was newsworthy. Crisp said. “It made it a little more It was a matter of public safety — real.” we’ve had two students drown [in the Frances McDavid, The Reflector’s campus lake] before,” she said. adviser, recommended the students Officials at Facebook disagreed, as consider the risks involved with run- evidenced by a letter their attorney, ning the photo. Chris Kelly, sent to Mazzei. News Editor Sara McAdory said “The mere assertion that some- the staff had two main worries: thing is newsworthy does not invali- misidentification and copyright date the copyright,” Kelly said. issues. The letter stated that The Hurri- “We didn’t want the wrong picture cane had no right to publish the up there.” McAdory said. “The issue material from Facebook and must was whether or not it was really the immediately remove it from their girl. We were pretty sure it was but Web site. Hurricane editors have not you never know. People can post any- complied with the request as of early thing.” December. The other question, McDavid A snapshot of Houston Ruck’s profile on Facebook also objected to The said, was who held the photo’s copy- Facebook.com. Ruck, as well as the photographer, Hurricane’s decision to tag the photos right and would the paper’s use of it gave the SPLC permission to use the photo. and profiles taken from their site with

18 SPLC REPORT WINTER 2005-06 INTERNET

“Courtesy of Facebook.com,” which Kelly said implied that Facebook supported or endorsed the article. Mazzei said the paper ran a follow-up arti- SPLC advice cle in its next issue clarifying that Facebook Social networking Web sites can be a useful resource to student journalists had nothing to do with the story. looking for information on a deadline, but sometimes, taking and reprinting In addition, Kelly said the use of the mate- pictures from or images of Web pages from these sites can ruffle feathers and rial violated the copyright interests of Face- may trigger legal problems. The two most likely complaints are invasion of book and the user who posted the photos, as privacy and copyright infringement. well as the privacy interest of those in the photos. It also constituted a breach of Facebook’s Privacy terms of service, which all users agree to when The individuals in a photograph posted to a social networking site are unlike- becoming a member of the Web site. ly to have any right of privacy in the picture because the picture has already Kelly said he is confident his client would been published online to a broad potential audience. Unlike private Web sites be successful in a lawsuit against The Hurri- that may limit access to those the user designates, social networking sites typ- cane, citing Facebook’s copyright interest in ically offer access of the images to a wide range of registered users. If journal- the overall look and feel of their Web site. But ists who do not know the photographer or subject of the picture are able to he said filing a claim is not necessarily the view the picture, it is hard to imagine how the picture could qualify as “pri- route Facebook plans on taking. vate,” assuming it ever was. Mark Goodman, executive director of the Student Press Law Center, said it is doubtful Copyright Facebook’s claims based on its own copyright Copyright problems can arise in two different ways: the Web site’s copyright would hold up in court. in the design and original content of its pages, and the copyright in the pho- “I think it unlikely that a court would find tographs placed by users in their own listings on the site. Copyright owners the use of an image of a Web page that is have the right to control the use of their works by other people, but this right accessible to thousands of people, for illustra- is limited by a concept called “Fair Use.” While determining whether some- tion of a story about the controversial activity thing is a fair use is often difficult and often should be done in consultation depicted on that Web page, an infringement with an attorney or other expert, generally speaking, a fair use occurs when of Facebook’s copyright,” Goodman said. someone uses another person’s copyrighted work in a way that does minimal “This seems like a pretty clear ‘fair use’ to harm to the copyright owner’s economic interest while offering some sub- me.” stantial benefit to the public. Although the owners of a social networking site (like any other Web site Copyright issues owner) have a copyright interest in the design and layout of their pages, stu- However, even in a newsworthy situation, dent journalists have a fair use right to use an image of the page to accompa- printing a photo taken from a social network- ny a story about the site itself or a newsworthy event taking place on the site. ing Web site could violate the copyright of the Such a use does not interfere with the value of the copyright while providing owner of the photo, said Dona Gilliam, a pro- important information to the public. fessor at James Madison University and an The user-provided images hosted on the social networking site may or may attorney who specializes in entertainment law not be available under fair use, however. These photographs will generally be and intellectual property law, including copy- owned by the individuals who took them, and whether or not you can claim right and multimedia. fair use will depend both on how the owner intends to use the photographs “The pictures put up on the Web are and on what use you have in mind. For example, it would probably be a fair owned by the person who took them,” use to reprint an image from a social networking site in a news report about a Gilliam said, “and that person maintains crime where the image itself was of the crime in progress and the photograph copyright for life plus 70 years.” was taken by a participant. On the other hand, it probably would not be a fair Gilliam said it is better to err on the side of use to take the same photograph for the same story if the photographer was caution unless the rightful owner of the pic- another journalist who posted the photograph to show her work. Contact the ture can be asked permission to use it. She SPLC to discuss your specific situation and whether you can make a fair use added even that can be tricky when Facebook, claim regarding a copyrighted image. AG or similar sites like MySpace.com and Friend- ster.com, are involved because “there is no ON THE WEB way to know who put it there.” For more information about copyright law, read the SPLC’s Student Media Guide to “Just because people upload things doesn’t Copyright Law online at www.splc.org/legalresearch.asp?id=32. mean they give consent for use [of their copy-

WINTER 2005-06 SPLC REPORT 19 INTERNET righted work],” Gilliam said. Since 1989 all original works are out they were tracked down using Facebook. copyrighted whether they have a copyright notice or not, Gilliam McDavid agreed. said. “It’s put out there for the public to consume,” she said. But there are some instances where permission may not be necessary because using the copyrighted image would be a “fair use.” What the Web sites say Kelly, Facebook’s lawyer, said the Web site has a license from users Facebook in the newsroom through its terms of service that allows his client to use the mate- The Reflector and The Hurricane are not the only collegiate news- rial members post, including photos. But that license does not papers using Web sites like Facebook as a resource in the news- grant Facebook the right to allow others to use it. room. “As a matter of policy we would not sublicense users’ material, “It’s an invaluable tool,” said Amber Corrin, editor in chief at even for the student press,” Kelly said, referring to the Hurricane West Virginia University’s The Daily Athenaeum. “It’s like any article. other piece of technology – you wonder how you got along with- Gilliam said the above statement about reproducing photos out it before.” means Facebook is claiming a nonexclusive license to display pho- Corrin said her reporters use Facebook only as a way to find tos on its Web site. Facebook is not taking an assignment of rights, sources. The Web site makes finding sources infinitely easier for she said, just a license. reporters, she said, but The Daily Athenaeum would never publish “An assignment of rights would transfer the copyright of the a photo from the site or take any posted information as fact. photo to the publisher in exchange for royalties … [This] is a “That’s pretty questionable,” Corrin said of running Facebook mere license to use not a transfer of copyright,” Gilliam said, photos. “It’s not credible enough to use for anything other than meaning whoever took the picture owns it, despite the fact it is sourcing.” displayed on the Internet. David Cross, editor of The Lantern, Ohio State University’s Gilliam said it is important that Facebook users remember to daily newspaper, said he agreed that social networking Web sites be careful when posting photos on the Internet. are a good way to find sources. Even with Facebook’s user agreement and copyright law, Cross said The Lantern used Facebook to find sources for the Gilliam said, there is no one to stop people from using Facebook paper’s stories on Julie Popovich, a part-time Ohio State student photos for reasons the poster may never have thought of, like hav- who disappeared earlier this year from a campus-area bar. Even ing a newspaper print it in conjunction with a news story. though Popovich was not listed in the school’s student directory, As to privacy concerns for using photos posted by Facebook Cross said Lantern staff members were able to find her friends and users, Facebook Spokesman Chris Hughes said, “There is no gen- subsequently who she was with the night of her disappearance eral waiver of privacy when a photo is posted, but users do clear- using her profile on Facebook. ly know and intend that their photos will be viewed by others.” Despite the usefulness of social networking Web sites, Cross, like Corrin, has doubts about using them for anything other than A continuing issue a way to find sources. As more students become Facebook users, it appears inevitable “We’ve never used a picture from Facebook,” Cross said, that questions and problems regarding its use as a newsroom tool because he said he is not sure the Web site is always accurate. will continue to occur. Corrin, Crisp, Cross, McAdory and McDavid all said Face- The Daily Athenaeum’s Corrin may have summed it up best. book is a legitimate newsroom tool. “I think the scope of it definitely remains to be seen because “I look at it as an extension of the campus directory,” Crisp it’s such a new thing,” she said. “It’s definitely something to be said. She added that no source has had a problem when they find weary of.” Fast facts on some social networking sites

FACEBOOK.COM FRIENDSTER.COM MYSPACE.COM More than 8.5 million members More than 21 million members More than 32 million members Founded by Harvard student Mark Zucker- Founded by entrepreneur Jonathan Founded in 2003 burg in February 2004 Abrams in 2002 News Corp. media mogul Rupert Murdoch Based in Palo Alto, Calif. Based in San Francisco recently orchestrated a $580 million buy- out of the company, based in Los Angeles Available to anyone with “.edu” e-mails Available to anyone over 16 years of and students at all accredited high schools age Available to anyone over 14 years of age

source: Chris Hughes, Facebook spokesman source: Friendster.com source: www.WebProNews.com

20 SPLC REPORT WINTER 2005-06 INTERNET Students increasingly punished for Internet postings New technology makes freedom of expression issues more complicated, experts say

In what some student free-expression allow students to continue to use advocates say is an alarming trend, stu- MySpace.com. dents at both public and private schools “Schools should only be concerned of ...if a student is only mak- are being punished for Internet postings 2 things: a student’s education and a stu- ing fun of a school offi- made off school grounds on Web sites not dent’s safety but only if it is in the bound- affiliated with the schools. aries of the school,” the user said. “It is not “cial, courts have said Punishing students for Web posts “sets a as if we are doing anything obsene [sic], schools must remain tone of intolerance that can very well chill we are just expressing who we are in a web hands off.” other expression,” said Warren Watson, page.” Wat Hopkins director of J-Ideas at Ball State University, a Kevin Bankston, an attorney at the communication law professor program that works to develop and encour- Electronic Frontier Foundation, said Virginia Tech age excellence in high school journalism. unfortunately private schools can do what “It’s definitely a disturbing trend.” they want, but a blanket ban such as this Incidents of students being one at a public school Educating students about being safe punished for or forced to would be “total- and responsible Internet citizens is much remove Web posts recently ly illegal.” more productive than banning online dis- occurred at two New Jersey cussion, Bankston said. high schools. The issue of whether the First Amend- In October, students at ment protects bloggers is a hot-button Pope John XXIII Regional topic right now and it will eventually trick- High School in Sparta were le down to students, Watson said. ordered to erase all blogs and “This illustrates how new technology personal profiles from the is making these issues of freedom of Internet. Rev. Kieran expression more complicated,” he said. McHugh, the private At Paramus High School, junior school’s principal, threat- Laura Iacovacci was suspended in ened those who refused to October for three days over a post she comply with suspension. made to another student on MySpace McHugh told the Daily deemed harassing by the school. Record, a newspaper serving Joe Iacovacci, her father, said school Sparta, that Web sites such as officials took a sentence from an online MySpace.com, where members conversation out of context. School offi- can share photos and journals cials said that if Laura continued to par- with a network of friends, are fer- ticipate in harassing behavior on the tile breeding grounds for sexual Internet she would be suspended again. predators to gather information She could also be transferred out of classes about students. she attends with the student she allegedly McHugh’s decision angered stu- harassed, who Joe Iacovacci said is a long- dents, who felt the ban infringed on time friend of his daughter’s. free speech and attempted to But it was not all bad news for New Jer- control their actions at home, sey students who have been punished for according to the Record. Web related issues. People who posted mes- In November, school officials in sages to a MySpace.com Oceanport agreed to pay a former group dedicated to the student $117,500 to settle a lawsuit school voiced concerns over the student filed claiming his First the new policy. Amendment rights were violated after One person claiming to be a administrators punished him for material student said the school should posted on his Web site.

WINTER 2005-06 SPLC REPORT 21 INTERNET

The settlement comes as a result of an ment right.” property. April 3 decision in which a U.S. District After Miner appealed his punishment In North Carolina, a student at Char- Court found Oceanport School District to Duquesne’s judicial affairs office, the lotte’s Butler High School was suspended officials violated Ryan Dwyer’s right to free essay was shortened to eight pages and the for 10 days in October for posting an speech. topic was changed from homosexuality to altered picture of his school’s assistant prin- Dwyer was an eighth grader at Maple the dignity of all human beings regardless cipal, Calvin Easter, on MySpace. Place Middle School in 2003 when school of race, religion, gender or sexual orienta- Dimitri Arethas posted a photo of East- officials suspended him for a week, tion. er’s head on top of Robocop’s body, accord- removed him from the school baseball Miner said he is unsure if he will write ing to an article in Creative Loafing, an team for a month and barred him from a the essay, which is due Dec. 15, saying the alternative weekly newspaper serving class trip because of his “Anti-Maple Place” school did not tell him what would hap- Charlotte, N.C. The Charlotte Observer Web site. The site described the school as pen if he refused to comply with the pun- said the picture also included a racially “downright boring” and urged visitors to ishment. offensive “thought bubble.” sign a guest book to express their hatred for Also in Pennsylvania, the Columbia “If a student is at home posting threat- the school. Central School Board said in August that ening stuff then obviously those kinds of In Iowa, a student who faced a felony school district officials can punish students things can be investigated and punished,” charge of threatening a terrorist act of vio- for actions that take place off school said Wat Hopkins, who teaches journalism lence for material he published online pled grounds. and communication law at Virginia Tech. guilty to a lesser charge in October. Superintendent Harry Mathias told “But if a student is only making fun of a Paul Wainwright, who posted what The Associated Press the new policy would school official, courts have said schools officials found to be a threatening message help the district discipline students who must remain hands off.” on an Internet discussion board used by use the Internet to threaten other students. Principal Joel Ritchie was alerted to the students and alumni at Grinnell College, According to the policy, students have photo by several students who printed it put in a guilty plea to a serious misde- the right to express themselves meanor of willful disturbance. unless it “materially or sub- Wainwright’s attorney, Al Willett, said stantially” interferes with his client was sentenced to two years of other school policies or probation and received a suspended jail activities. sentence of 120 days. Off-campus and after Willett said Wainwright could have hours speech “likely to faced up to five years in prison and a materially and substantial- $7,500 fine if he had been found guilty on ly” disrupt school activities the original felony charge. is considered unprotected The message board was not affiliated expression, according to with the school. the policy. In Pennsylvania, a student at Pittsburgh’s Duquesne University was ordered in October to write a 10-page essay on the pros and cons of homosexuality after officials said a post The policy he made on Facebook.com violated the says unprotected private school’s code on discrimination expression is defined based on sexual orientation. Facebook is an as libel, advertising online directory that connects people substances or materials through social networks at schools. to endanger students, Ryan Miner referred to homosexuals as threats against stu- “subhuman” on a Facebook group protest- dents or administra- ing a gay-straight alliance some students tors, profanity in any are trying to start on the Catholic campus. form, encouraging “They [administrators] have no right to violations of state law police Facebook — it’s like saying they can and school policy police your thoughts,” Miner said. “People and speech or actions may not like it, but I have a right to say it. affecting normal I should be able to have my First Amend- school functions or

22 SPLC REPORT WINTER 2005-06 INTERNET out and showed it to him. Creative Loafing punishment was not the best answer when handling of the situation, telling The State reported those students had to have looked they were faced with controversial Internet that codes that attempt to regulate or pro- at the picture off of school grounds posts from students in November. hibit certain types of speech are notorious- because Ritchie said MySpace is blocked The State, a Columbia newspaper, ly ineffective and face high constitutional on the school’s computer system. reported that University of South Carolina hurdles. He also said such measures often Even though Arethas apologized and administrators decided not to block a Web drive hateful speech underground. removed the photo, Ritchie suspended site which contained racist remarks about Tom Eveslage, chairman of the journal- Arethas for 10 days based on a Charlotte- the first black fraternity house to be built ism department at Temple University, said Mecklenberg School System rule against in the school’s Greek village. cases like these will continue to occur. “any inappropriate information, relating in Dennis Pruitt, vice president for stu- “I don’t suppose that there’s any chance any way to school issues or school person- dent affairs, said the university did not these cases are going to diminish,” Eves- nel, distributed from home or school com- want to set a precedent for blocking sites, lage said. “People are going to be more puters,” according to Creative Loafing. The according to The State. Instead, the school brazen about what they say online and suspension was later reduced to two days. applied pressure on the site operator and school officials are going to flex their mus- But not all school officials have decided the Greek community to monitor its cles a little more strongly to curb them that censoring students’ Web posts is the members and Web sites. from doing that. best way to combat content they deem Robert O’Neil, director of the Thomas “Journalism instructors, and teachers in inappropriate. Jefferson Center for the Protection of Free general, need to educate about responsibil- In South Carolina, officials decided Expression, commended the university’s ity as well as freedom.” CG Think you know Student Press Law? Try one of our new online quizzes

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WINTER 2005-06 SPLC REPORT 23 COLLEGE CENSORSHIP High Court shows More than 35 organizations file three briefs

BY KIM PETERSON mat of their respective publications without censorship or advance one chilling. That is how Charles Davis from the Missouri approval." School of Journalism described the Hosty v. Carter decision The newspaper’s student editors, who had published stories B out of the 7th U.S. Circuit Court of Appeals. and editorials critical of the administration, refused the adminis- Davis’ school along with 35 other college journalism programs, trator’s demands and their newspaper stopped publishing. free expression advocacy groups and national media organizations were represented in three briefs filed in October asking the U.S. Court shows some interest Supreme to hear the Hosty case. In October the Supreme Court requested that Carter file a response It is a case that makes student journalism advocates like Davis to the students’ petition, a move some say shows the Court is inter- cringe — a case that is already ested in case. being used as an excuse for admin- The deadline for Carter’s istrators to censor student newspa- response was scheduled for Dec. pers, regardless of whether or not At a time when robust debate on campus is 28, 2005. the school is in the 7th Circuit. Lisa Madigan, the Illinois And student media advocates too often threatened by the campus thought Attorney General, had previously are hoping the Supreme Court “police, this case risks undermining even fur- waived her right to file a response will hear the case and set the ther the right and ability of college students to the petition filed by the stu- record straight on student free to express their viewpoints.” dents asking for Supreme Court press rights. review. Anne Neal So what has all of these organ- This action may force Madi- President izations so worked up? American Council of Trustees and Alumni gan to make clear her position on On June 20, the 7th Circuit college press freedom, an issue held that college administrators that prompted debate before she can censor school-sponsored student publications using the stan- received a national freedom of information award from the Society dards set by the 1988 Supreme Court decision in Hazelwood School of Professional Journalists. District v. Kuhlmeier. That case dealt with the rights of high school Long-time Supreme Court reporter Lyle Denniston wrote on students. his blog in October that the letter shows “the Supreme Court is The case arose in the fall of 2000 when Dean Patricia Carter at showing some interest in the case.” Denniston has covered the Governors State University in Illinois demanded that she or Court for various newspapers such as The Baltimore Sun and The another GSU official be allowed to read and approve the student Boston Globe over the course of nearly 50 years. newspaper prior to publication. “This does not assure review by the justices, but it does indicate Carter's directive was issued despite a university policy that an interest in the question at stake,” Dennison wrote on his blog. said the student newspaper staff "will determine content and for- Four of the nine Supreme Court justices must vote to grant a

Nov. 1, 2000 Jan. 19, 2001 Nov. 18, 2001 May 3, 2002 e n

i Patricia Carter, Gover- Margaret Hosty and A federal trial court judge drops James Ryan, then attorney general of l nors State University Jeni Porche, editors of three administrators from the law- Illinois, files a brief claiming that the e dean of students, tells The Innovator, file a suit, saying they qualify for immunity 1988 U.S. Supreme Court case, m i the company that prints lawsuit against Gover- as government actors. The judge Hazelwood v. Kuhlmeier, does apply t t The Innovator to stop nors State University in allows the case to go forward to university and college publications. y

t printing the student U.S. District Court against Carter, however, saying she The Hazelwood decision gave high s newspaper without prior

o seeking more than $1 does not qualify for immunity. She school administrators greater control

H administrative reivew. million in damages. later appeals this decision. over school-sponsored publications.

24 SPLC REPORT interest in Hosty with U.S. Supreme Court in support of students

writ of certiorari. A decision about whether or not the Court will Supreme Court should make a separate ruling that applies directly hear the case is expected in early 2006. to college students. What the petition says Organizations show support The students’ petition argues that several past court cases have Each of the three briefs filed in support of the students presented a upheld strong First Amendment protections at the university level. unique argument representing the wide range of Among them is the 1972 Healy v. James case in which the groups and interests named in the briefs. Supreme Court decided unanimously that universities One brief submitted by the Foundation for could not refuse to recognize controversial campus Individual Rights in Education argued that the groups or speakers. A year later, in the decision of Papish effects of Hosty could extend well beyond student v. Board of Curators of University of Missouri, the newspapers. FIRE filed the brief on behalf of Court extended the strong First Amendment pro- 10 other organizations including sev- tections recognized in Healy to a student newspa- eral that have defended the rights per. of campus conservatives. “In more than three decades “Under the logic of Hosty, a following Healy and Papish, this state university would be respon- Court has never deviated from sible for — and theoretically control this view of the First Amend- — the speech of all student fee recipi- ment’s proper application in the col- ents…. The entire student fee structure is lege and university setting,” the petition thus transformed from an engine of free stated. speech into a pretext for institutional The students argue that because the cases control,” according to the brief. mentioned above are not mentioned in the 7th Some organizations joining Circuit ruling and because the federal appellate FIRE’s brief focused primarily on a courts have conflicting decisions on the relevance of student’s right to free expression. the Hazelwood decision to colleges, the Supreme Court should “At a time when robust debate on campus is too often threat- hear the case. ened by campus thought police, this case risks undermining even Furthermore, they point out that the Hazelwood ruling on further the right and ability of college students to express their which the court based much of its decision addressed only the viewpoints,” said Anne Neal in a press release. Neal is the president rights of high school students. The students’ petition argues that of the American Council of Trustees and Alumni, one of the groups university students are rarely minors and university publications sel- that signed on to FIRE’s brief. dom part of a curriculum-based class. Therefore, because these cir- Sarah Dogan, national campus director of Students for Academ- cumstances differ from the circumstances of Hazelwood, the ic Freedom, said that while her organization is not directly involved F v o April 10, 2003 June 25, 2003 June 20, 2005 Sept. 16, 2005 i i n r s t f i t o t h w A three-judge panel of The 7th Circuit throws out the An 11-judge panel of the 7th Cir- The students file a r w e m m w m the 7th U.S. Circuit three-judge panel decision cuit rules that Hazelwood can be petition for writ of cer- a w t o i . o Court of Appeals, after and agrees to rehear the tiorari asking the U.S. s

applied to colleges and universi- s t n p u o l hearing Carter’s appeal, case before a full panel of ties if the student media are not Supreme Court to hear u o c p n . - rules that the Hazel- judges after Illinois Attorney designated public forums. This their case. In October o

H r H o

wood standard cannot General Lisa Madigan files a decision marked the first time three briefs were filed - /

d s

t a

y be applied to colleges petition asking the 7th Circuit Hazelwood was applied to college in support of the stu- y s t , u and universities. to rehear the case. student publications. dents’ petition. e

SPLC REPORT 25 COLLEGE CENSORSHIP with student journalists, it joined the brief to uphold the right to free speech and the right to free association. “The civil exchange of ideas is important… it seems like a very, very dangerous decision,” Dogan said. Veronica Vera from Feminists for Free expression said her organization joined the brief because freedom of expression is important to the cause of feminism. “The job of the newspaper is to check the administration, not to be checked by the administration,” Vera said. The Student Press Law Center’s brief, on the other hand, focuses on how the Hazelwood decision has been misused by high school administra- on the journalism educators’ tors. brief. Fourteen national student and professional news media organ- Despite the different izations joined the SPLC’s brief. focuses of the briefs, all three “Seventeen years of living with Hazelwood have shown that had some overlapping argu- school officials and other state actors… [use] it to justify the reg- ments. Each brief mentioned ulation of virtually any form of teacher and student speech… that college student journalists should not be treated the same as there is no doubt university administrators are poised to take high school student journalists. advantage of their new censorship powers,” the brief stated. “We believe its wrong to extend what’s going on in the high Marsha Schuler from the National Federation of Press Women school level to the collegiate level… college journalists deserve the said that her organization joined the SPLC brief in part to show same First Amendment rights that professional journalists solidarity. deserve,” said Scott Bosley, executive director of the American “We need to support those who are supporting the First Society of Newspaper Editors, which joined the SPLC brief. Amendment on the front lines,” Schuler said. Tonda Rush, speaking for the National Newspaper Associa- Two successes in an ongoing campaign tion, said the organization joined the SPLC brief because she said When the 7th U.S. Circuit Court of Appeals made its decision it is essential that aspiring journalists learn the importance of the that college newspapers could be subject to the same First Amend- First Amendment. ment restrictions as high school journalists, the court left the door “We are finding a future where we may be turning out students open for student journalists to protect themselves. If the student who don’t have an appreciation for the role of the press and are newspaper is a designated public forum at the university level, willing to accept authority almost then it cannot be subject to high without question…. [Profession- school standards of control. al newspapers] want to hire stu- What’s next? On Sept. 15, Illinois State Uni- dent journalists who know what versity became the first school in the First Amendment is about,” The Supreme Court has asked Carter to respond to the the 7th Circuit to explicitly desig- Rush said. students’ petition by Dec. 28. After the response is nate its student newspaper a pub- The third brief, filed by jour- received, four of the nine Supreme Court justices must lic forum in response to the Hosty nalism educators, focused that vote to grant a writ of certiorari. A decision about decision. By doing so, the Daily argument. whether or not the Court will hear the case is expected Vidette cannot be subject to prior in early 2006. “If university administrators review by administrators that is can impose prior restraint on now permissible in Illinois, Wis- campus newspapers, college journalists will fail to learn the impor- consin and Indiana under the Hosty decision. tance of autonomy and professional responsibility because they “It was a pretty simple process for us… [President Bowman] will be neither autonomous nor responsible,” the brief said. signed it no problem,” said Vidette Editor in Chief Suzanne Bell. Journalism educators said there is no substitute for experience. She said that since the signing of the statement, she has got- “We want students who can go out into the field and have the ten calls from other newspapers asking about the statement, and same experience as what they’ll see as professional journalists,” some calls come from newspapers in other states, even outside of said Jennifer McGill, executive director of the Association of the 7th Circuit. Schools of Journalism and Mass Communication, another group Less than a month later, University of Southern Indiana Presi-

26 SPLC REPORT WINTER 2005-06 COLLEGE CENSORSHIP dent Ray Hoops signed a statement designating the student media and a student-run television show on his campus as public forums. “The university administration have always been very supportive and Hosty Talk hands off, but it just shows great support that they put it in writing,” said Shyloh Karshner, editor of The Shield, the university’s student newspaper. The designation of these two schools is part of an effort by the SPLC to “Universities are using the Hosty case as an declare the student media at all universities and colleges in the 7th Circuit excuse to censor,” public forums, but there are still many to go. More than 80 universities and said Dan Watson, editor in chief of the colleges in the 7th Circuit have not taken a stand either way. Mustang Daily, California Polytechnic Officials from the journalism department of Vincennes University in State University’s student newspaper, in an editor’s column on Nov. 8. Indiana are working to have The Trailblazer, the student newspaper, declared a public forum. “We’re very nervous,” said Mark Stalcup, the journalism department chair at Vincennes University. On Nov. 29 he met with the president of the university and hoped to have a statement signed soon after “Hosty v. Carter. Add those to the growing list of that meeting. names you need to remember to track the government’s restrictions of the First Amendment,” The Trailblazer has had a history of problems with administrative inter- vention with the newspaper. A former adviser is currently suing the school said Andy Guess in an opinion piece in The Cornell Daily Sun, Cornell University’s because he claims he was dismissed after the paper ran articles criticizing the student newspaper, on Oct. 24. administration. Campus Editor Lindsey Owens is skeptical that a court case or policy change would help the paper because she said if the administration wants to censor the paper, they will just do it. “I don’t really think on our campus it’ll have much effect,” Owens said. “Students who want more free press protection Some student newspaper editors in the Hosty states said they aren’t wor- than they get inside the school should strike out ried about the decision because it doesn’t apply to them. on their own. Set up a Web site or blog about school issues from home,” James Monteleone, editor in chief of the Chicago Flame, said he has never heard of the Hosty decision. But he said since the newspaper is entire- said Jeffrey McCall in a column in The Indianapolis ly independent from the University of Illinois in Chicago, he did not think Star, a community newspaper, on Sept. 24. it affected him. Pressure felt outside the 7th Circuit: “A college population is one of legal adults without While the Hosty decision only applies in three Midwest states, student need of censoring parents or administrators...Prior editors have felt the effects of it from coast to coast in the six months since review would allow university administrators the decision was handed down. around the country to check over news content, The University of North Carolina at Chapel Hill’s Chancellor signed a thereby castrating the media and its role as a statement affirming the editorial independence of its student media Sept. 27. watchdog,” Ryan Tuck, editor of The Daily Tar Heel, UNC’s student newspaper, said said an unsigned editorial in The Daily Texan, staff members drafted the statement after they heard the student plaintiffs the University of Texas at Austin’s student in Hosty had petitioned for the case to be heard by the Supreme Court. newspaper, on June 22. “As student journalists and First Amendment advocates, we were out- raged,” Tuck said of the Hosty decision. The 7th Circuit decision has also been felt on the other side of the country in California. “Even if we had an editorial group that I didn’t Ten days after the ruling, a memo was sent to presidents of the Califor- trust, that I thought were actually poor journalists nia State University system that included a discussion of the case’s possible and making bad judgments, and (in) the most impact on the Golden State. extreme case, abusing their privilege of putting “[T]he case appears to signal that CSU campuses may have more lati- ink on paper, I still think that’s not grounds for our stepping in to censor a newspaper,” tude than previously believed to censor the content of subsidized student newspapers, provided that there is an established practice of regularized said the University of North Carolina at Chapel Hill’s Chancellor James Moeser as quoted in an unsigned content review and approval for pedagogical purposes,” wrote CSU general editorial in The Daily Tar Heel on Sept. 29. In light of counsel Christine Helwick. the Hosty decision and at the request of student jour- Helwick’s memo has prompted an effort to declare student publications nalists, Moeser signed a statement Sept. 27 affirming in California public forums. the independence of all student media on campus. See Hosty, PAGE 32

WINTER 2005-06 SPLC REPORT 27 COLLEGE CENSORSHIP

COLLEGE CENSORSHIP INBRIEF Student files suit after Instead of disbanding the station, A lawyer representing the two stu- the panel said it could begin airing dents who originally filed the lawsuit Troy university censors shows in February provided station against the University of Maryland said nude photographs managers fulfill a number of restruc- that his clients will not appeal the deci- turing requirements. sion regarding non-student speakers. ALABAMA — The Foundation for Cantor disbanded the station in Case: ACLU v. Mote, 423 F.3d 438 Individual Rights in Education, a group October after some students expressed (4th Cir. 2005) that advocates students’ free expression outrage over an entertainment show rights, filed a federal lawsuit Oct. 31 modeled after “The Daily Show with Student leaders try to against Troy University for a speech code Jon Stewart.” The show made light of FIRE’s President David French called require student paper to eating disorders, date rape and lynch- “incompatible with a free society.” ing, among other issues. run column by president The lawsuit was filed on behalf of Some students say the chancellor’s Blake Dews, a senior art major at TENNESSEE — Student government actions as well as the faculty panel’s Troy’s main campus. In the fall of leaders revised a resolution at the end decision may chill unpopular view- 2003, he designed a photographic dis- of September that would have forced a points on campus. play for an assignment about birth, student newspaper to run a weekly col- Syracuse feels “much more like a photographing nude models. The art- umn by the student body president junior high school than a top tier uni- work did not meet the definition of after a lawyer advised them that the versity,” said Jared Novack, editor in obscenity under federal or state law, resolution was not legal. chief of The Daily Orange, the univer- but several photos were taken off dis- The original senate resolution, passed sity’s student newspaper. play anyway, FIRE’s press release said. by the student government at the Uni- Because Syracuse is a private univer- “The photographs in question dis- versity of Tennessee at Martin, required sity, administrators there do not have played male full frontal nudity and the that The Pacer “publish a weekly editori- the same constitutional limitations in university did not consider the photo- al, which is to be entitled Student Gov- censoring student media found at pub- graphs to be consistent with our com- ernment Association’s Corner, which is lic institutions. munity’s standards,” wrote Clif Lusk, to be published without any changes or Ironically, the journalism school at coordinator of Troy University media alterations by Pacer staff.” Syracuse joined a brief supporting stu- relations, in a statement. On Sept. 22, the student govern- dent press freedom before the U.S. Lusk said in the statement that the ment president proposed an amend- Supreme Court in October (See Hosty university’s attorneys are looking into ment to resolve the legal problems coverage, Page 24). the matter and beyond that he had no with the resolution, which passed further comment. without dissent, said Tomi Parrish, Speech zone policy OK, The Pacer’s adviser. The new version Faculty panel overturns appeals court rules encourages the student newspaper to publish a student government column, MARYLAND — A three-judge panel chancellor’s move to but does not require it to do so. shut down TV station of the 4th U.S. Circuit Court of Appeals decided Sept. 12 that the Uni- Officials say they will NEW YORK — A faculty panel at versity of Maryland at College Park Syracuse University in November par- could keep its policy confining speak- not appeal 5th Circuit tially overturned Chancellor Nancy ers who are not students or faculty to pamphlet decision Cantor’s decision to disband the specified “free-speech zones.” TEXAS — University of Texas at school’s student-run television station. The appeal dealt only with the rights Austin officials said they have decided But Cantor’s move has created a of non-student speakers. Two years ago not to appeal a court decision that “bitter, emotional, very divided” the university settled an initial lawsuit found a policy banning the distribu- debate on campus pitting free speech by rewriting its Event Management tion by students of anonymous pam- advocates against those who supported Handbook to allow students and faculty phlets on campus is unconstitutional. Cantor’s decision, said journalism pro- to speak and distribute literature in any The 5th U.S. Circuit Court of fessor Charlotte Grimes. outdoor area of the campus.

28 SPLC REPORT WINTER 2005-06 COLLEGE CENSORSHIP

Appeals upheld on May 27 a district court ruling that the anti-abortion student group Justice for All should have been allowed to hand out pamphlets on campus, even though they did not list a campus group responsible for them. A U.S. District Court ruled in Justice for All’s favor in February 2004. The school’s policy required all handouts to have a school-affiliated person or group responsible for distributing the handouts listed on the materials. Case: Justice For All v. Faulkner, 410 F.3d 760 (5th Cir. 2005) Both charges dropped against student protestor VIRGINIA — Prosecutors dropped ensure students’ free speech rights are forms public to anyone this time charges Nov. 16 against a George protected.” around. Mason University student who was arrested by campus police for protest- Official says Ball State Former college radio ing military recruiters. violated open records host to appeal decision Tariq Khan said he was protesting Marine recruiters at a student center act in refusing document CALIFORNIA — A former student on campus at lunch in September INDIANA — Ball State University radio host who sued Occidental Col- when campus police told him he had administrators violated the state’s lege for $10 million has decided to to leave the area because he did not Access to Public Records Act when appeal a Los Angeles superior court’s have a permit. they refused to give the student news- decision that dismissed his lawsuit. In Khan said that although he was glad paper documents they made available the lawsuit, Jason Antebi claimed that the trespassing and disorderly conduct to the rest of the campus community, his rights were violated when school charges were dropped, he still has a according to a Nov. 10 decision by the officials fired him for content he aired. “big problem” with the university. state’s public access counselor. “The primary reason [for the “They still have a long way to go Faculty, staff and students were appeal] is that we think the court got it because the university administration allowed to see the provost candidate wrong,” said Christopher Arledge, and the police still won’t admit any evaluation forms, but they first had to Antebi’s attorney. wrongdoing,” said Khan, a junior soci- sign a document saying they would not The court ruled Aug. 1 that Califor- ology major. distribute the information publicly. nia’s Leonard Law, which gives students University officials have concluded The forms were evaluations of the at private colleges some of the same that the police did not do anything provost candidates filled out by admin- First Amendment protections enjoyed wrong after conducting two internal istrators, faculty, staff and students who by students at public schools, can only investigations of the incident, said uni- interviewed the candidates. be used by students who are enrolled in versity spokesman Daniel Walsch. Administrators denied editors at school at the time they file a lawsuit. Khan, who was represented by the The Ball State Daily News their original The court dismissed Antebi’s lawsuit American Civil Liberties Union of Vir- requests for the evaluation forms. But against Occidental College because he ginia in court Nov. 14, said he is consid- in light of the public access counselor’s filed the suit eight months after he ering legal action against the university. decision, university officials have since graduated from the institution. “He never should have been charged turned over the forms. Arledge said the ruling made the in the first place,” said Rebecca Glen- A provost was not selected from the Leonard Law ineffective because berg, legal director of the Virginia search in question. Administrators have administrators can avoid the law by ACLU. “We are looking forward to see started a new provost search and have expelling students. what GMU does to revise its policies to said they will not make the evaluation See Briefs, PAGE 32

WINTER 2005-06 SPLC REPORT 29 COLLEGE CENSORSHIP ‘Covert’ Censorship In cases where censorship is not clear, the question becomes, ‘Was content a motivating factor?’

BY KIM PETERSON factor?” Goodman said. Confiscating newspapers. Requiring prior review. Removing But even when content cannot be proven as a motivating fac- objectionable material. These are all actions courts have prohibit- tor for administrators’ decisions regarding a student newspaper, ed public college administrators from taking against student those decisions can still adversely affect the student publication. newspapers. But when school officials attempt to censor by cutting funds, The case at Catholic firing editors or some other indirect means, student journalists Starting in fall 2004, Catholic University of America’s President can have a more difficult time demonstrating they have a First David O’Connell and the university spokesman refused to speak Amendment case. to or meet with The Tower, the university’s student paper. “If you’re dealing with overt censorship you know what the On Feb. 4, The Tower ran a story about O’Connell and rules are and what you’re dealing with. When it’s covert censorship spokesman Victor Nakas’ refusal to comment. it’s harder,” said Kathy Lawrence, president of College Media Editors said shortly after the article ran, Vice President of Advisers, an organization of advisers designed to help student Enrollment W. Michael Hendricks announced that $80,000 in media leaders improve their media operations. “At least with overt scholarships given to the student newspaper, yearbook and stu- censorship you know what’s going on.” dent government would be reallocated as merit and need-based And in these “covert” censorship cases, it all comes down to the scholarships, ending a 40-year tradition at Catholic. motivation behind administrators’ actions — which is very diffi- Nakas said that the change was a “business decision” to cult to prove in some cases, student press law experts say. In many increase merit and need-based scholarships. cases, content motivation is easily identified. There are a number While Nakas said that the tensions between the administrators of cases, however, where administrators or student government and the change in scholarship funding were completely separate leaders insist that their decisions regarding student newspapers incidents, the students involved viewed the situation differently. were not based on content, while the student editors involved sus- “For me, it seems very coincidental that the administration pect that content was a factor. takes an action…after a contentious year between the two of “It’s a tough call to make. You see those kind of subtle attempts us…. This is very much a free speech issue,” said Phil Essington, to curb student opinion. And we get a little suspicious about former editor in chief of The Tower in an interview with the SPLC what’s behind it,” said Tom Rolnicki, executive director of the last year. Associated Collegiate Press, a nonprofit educational membership Because Catholic University is private, it does not have the association that provides professional services to student mem- same constitutional limitations in censoring students that apply to bers. public institutions. But even if Catholic University was public, A court ruled in a recent case out of the State University of students would have had to have proven that content was a moti- New York at Albany that a student government’s attempt to cut vating factor in Hendricks’ decision to cut scholarship money to funding for a conservative student newspaper was content moti- have a First Amendment claim against the school. vated and therefore violated the student editor’s First Amendment rights. The case at SUNY Albany In a recent incident at Catholic University of America in When funding cuts are based on content, the law is on the side of Washington, D.C., student editors and administrators disagreed the student publications. A student’s lawsuit against the State on the reasoning behind a decision to cut scholarship money for University of New York at Albany illustrates this point. the newspaper’s editors. A New York District judge ruled in August that the student Mark Goodman, executive director of the Student Press Law government had wrongly denied Jeff Barea’s conservative newspa- Center, said the two most important elements of making a suc- per funding in what Barea considers a victory for student funded cessful First Amendment claim are that the action taken is detri- press. mental to the student publication and is a result of the publica- Barea said he believes the council refused to fund the paper tion’s content. because of its conservative content, a contention the court agreed “Sometimes courts describe it as: was the content a motivating with.

30 SPLC REPORT WINTER 2005-06 COLLEGE CENSORSHIP

“This sets the standard for New York State that freedom of the that the administration is not being clear with the students,” press exists,” Barea said. Goodman said. Nicholas Chiuchiolo, chairman of the senate, said in response And mending lines of communication could be a first step in to the lawsuit the school has been working to fund school groups preventing covert censorship. without bias. He said the senate has done so by requiring student Hernandez said she’s noticed that Essex’s problems with the government members to attend workshops about how to make student newspaper come and go. funding decisions that are viewpoint neutral. But Chiuchiolo said “We had a similar issue in the late 90s. It isn’t new that the col- the student government plans to appeal the decision. lege has a problem with the paper… but as of right now they [the administrators] seem to be getting better,” she said. The case at Essex County College Kate McGovern, current editor of The Tower at Catholic Uni- At Essex County College in Newark, N.J., student editors have versity, is working to improve relations between the student news- said administrators have made it very difficult for the student paper and administrators, and she said it seems to be working newspaper to publish. because the president gave his first statement to the newspaper in After their adviser quit last spring, Observer staff published its nearly a year for an October issue. May issue without one. Shortly after, Dean of Students Susan “I tried to rebuild some bridges this year and I think things are Mulligan informed the staff that they could not publish their definitely getting better,” she said. paper without an adviser. Lawrence pointed out, however, that there should be some ten- Student editors Joel Shofar and Melinda Hernandez found an sion between administrators and the student editors. adviser, but Mulligan rejected him as unfit for the job. “If they [the student media] do have a very harmonious rela- Despite Mulligan’s rejection, Observer staff moved forward tionship, they may not be doing their jobs,” Lawrence said. “But with their graduation issue anyway. When Mulligan found out the there does need to be mutual respect on both sides.” students still planned to publish the issue, she told the newspaper’s Gregory Roberts, executive director of College Student Educa- printer that the school would not authorize payment. tors International, said student media leaders and administrators The students published the issue without school authorization need to build a relationship to communicate effectively and min- or funds. imize misunderstandings. Roberts’ organization works with col- Hernandez said student editors and administrators agreed on a lege administrators to foster student learning. new adviser in late October, but the paper would not put out its “I think it should be a very open one,” Roberts said of an ideal first issue until January. relationship. “You have an opportunity to build a relationship. “They have made things very difficult in working with us,” Just communicate what is the expectation.” Hernandez said. Goodman said clear expectations are the best way for student Mulligan admits that the paper has had a problem publishing, media to avoid covert forms of censorship. but insists that the problem has nothing to do with censorship. “The key in most cases is to create an attitude among officials “I have no content-related issues,” Mulligan said. on campus that a free press is important,” he said. Preventing covert censorship It is easy to prove the negative affects an administrator’s or a student government leader’s actions can have on a student publication, but proving motivation can be much more difficult. The clearer the First Amendment protections for the college media have become, the more clever school officials have been in their effort to censor, Goodman said. In these covert censorship cases, student editors are often at odds with administrators on why a decision was made. This conflict can result from a misunderstanding or bad communication between students and administrators. “When there is a misunderstanding, that in itself is a sign of a problem,

WINTER 2005-06 SPLC REPORT 31 COLLEGE CENSORSHIP

From Hosty, PAGE 27 they want to designate Riverside a non-pub- From Briefs, PAGE 29 lic forum,” said Matt Hendrickson, editor On the statewide level, the California in chief of the Norco Voice, one of the three Arledge said Antebi is in the Newspaper Publishers Association is cur- student-run newspapers in the Riverside process of appealing. rently drafting a bill that would designate all Community College District. student media at public Station suspended schools in California as public indefinitely forums. What you can do to Jim Ewert, a lawyer with CALIFORNIA — A one-night the organization, said that the hiatus for the student-run tele- respond to Hosty CNPA originally was not too vision station at the University concerned about the Hosty Free press advocates say the best way for stu- of California at San Diego has decision because it did not dent newspapers to protect themselves from cen- turned into an indefinite sus- apply in California. However, sorship is to be proactive. pension. when Helwick’s memo Rather than waiting for the Supreme Court to Student government officials, became public, “That kind of hear the case or for the effect of the 7th Circuit’s worried the station was plan- sent up a red flag, maybe decision to be felt on other campuses, the Student ning to air unscreened material they’ll use Hosty as an argu- Press Law Center is calling for college and univer- on Nov. 3 in violation of a ment [in California].” sity presidents and chancellors to declare their recent amendment to the sta- Ewert said that the bill is student media as public forums with complete edition’s charter, asked the universi- still in the drafting stage, and a torial independence. ty to pull the station off the air final proposal of the bill will “We are urging student journalists to ask their for the night, according to The not come out before the Cali- school administrator to immediately adopt a state- San Diego Union-Tribune. fornia legislature reconvenes ment that recognizes campus student news organ- School administrators would in January. izations are designated public forums,” said SPLC not turn the station back on This fall, administrators Executive Director Mark Goodman. The SPLC sug- when student government offi- delayed a plan to revise River- gests language similar to one of the following: cials asked them to a day later, side Community College Dis- [Name of student news media organization] is said student government presi- trict’s campus speech policy a designated public forum. Student editors have dent Christopher Sweeten. and eventually adopted an the authority to make all content decisions without “It’s completely censorship,” amended revision to address censorship or advance approval. said station manager Tiffany concerns that the new policy If using this version, a separate statement will Rapp, who said students now could lead to censorship of the be needed to protect each student news organiza- see this as a free speech issue. district’s student newspapers. tions on campus. “This is not about censor- The speech policy revision Or protect all media with a single statement: ship,” school spokeswoman provoked concern because it All student-edited campus media are recog- Stacie Spector told The Union- declared that Riverside Com- nized as designated public forums. Student editors Tribune. “This is about ensur- munity College was not a have the authority to make all content decisions ing student safety, security and public forum. without censorship or advance approval. the effective enforcement of The revision to the speech The SPLC recommends that a school adminis- rules and regulations.” code was a move to comply trator signs such a policy statement. Verbal state- The television station with recent court rulings in ments will not necessarily indicate a clear intent, should not face censorship California, said Linda Lacy, nor will existing policies whose language signifi- from the student government vice chancellor of student serv- cantly differs from what is suggested above. or the school, Rapp said. ices. Lacy also said that the For more information, visit www.splc.org/publicforumcolleges University officials have said policy only applied to protest- the station will not be put back ing and distributing flyers on on the air until a programming campus and that the newspaper has a differ- So far, administrators have put a foot- board is established, among ent policy. note in the speech policy specifying that it other prerequisites. Sweeten Still, student editors and advisers in the does not apply to the student media. In said rewriting the station’s char- district said they were already worried about addition, administrators have agreed to ter to meet administrators’ the possible effects of Hosty. review the school’s student publication pol- could take months. “Right after we heard about [Hosty] and icy, said Sharyn Obsatz, adviser to the were nervous about it, then we find out that Norco Voice.

32 SPLC REPORT WINTER 2005-06 CAMPUS CRIME Crime under wraps A look at why administrators at some prestigious schools are reluctant to give out incident reports.

BY KYLE MCCARTHY the school’s reputation do not play a role in determining which records the campus police department releases to the Crimson or or student journalists at The Harvard Crimson, Harvard to the public. F University’s student newspaper, struggling with the campus But former Crimson President Amit Paley said concern for rep- police department to obtain records is commonplace. utation could factor in the decision to release information. Crimson editors have appealed all the way to the Massachu- “I think that Harvard is very cautious about releasing informa- setts Supreme Judicial Court in a fight to gain access to incident tion that might make it look bad,” said Paley, who now works for reports they say campus police have routinely denied the paper. The Washington Post. “Some speculated that was why the universi- “If that uniformed, badge-wearing gentleman on the corner ty did not want to release certain types of crime information. But looks like a policeman, carries a gun like a policeman, stops, I don’t know for sure why administrators decided not to release searches, questions, and arrests students and non-students alike records to us.” like a policeman, and executes warrants like a policeman, then he’s probably a policeman,” said an unsigned editorial summing Institutional pressures up the logic of The Crimson’s lawsuit. The editorial ran Nov. 14, The role of campus administrators in maintaining the school’s four days after justices for the Massachusetts Supreme Judicial public image can lead to institutional pressure for the police Court heard oral arguments in the case. department to restrict access to certain crime records. The student journalists’ plight at Har- “Although we had good relationships with individual officers vard parallels the problems student edi- and received information from them, there was an institu- tors have at other private universities tional decision not to release certain information that was that are attempting to balance the crucial to public safety and keeping the public’s right to know about campus informed about campus crime with institu- crime,” Paley said. tional pressure to maintain Concern about student pri- student privacy. vacy is the basis for the lack of And some open records cooperation in some circum- advocates said concern about stances, said Lauren Schuker, maintaining the school’s presti- current Crimson president. gious reputation further compli- “The department has been cates efforts to obtain police records. forthcoming in some situations and less so in others,” Schuker Factoring in reputation said. “Since their records are not James Herms, a partner at the Student- public, they are simply not allowed to Alumni Committee on Institutional Policy, a divulge some information. This is why we are Cambridge, Mass,-based non-profit firm that fighting this in court rather than on a personal consults with schools on security policy, said he basis.” believes reputation is a significant factor in The police department files daily crime logs on its Web site. obtaining records at prominent private schools. Schuker said the newspaper gathers most of its information from “Harvard will get international publicity” if a the log, but the logs are “incomplete” and lack detailed informa- significant incident hits the press, he said, noting tion. that the school draws significant coverage globally. When outside groups raise legal issues with campus police “Parents of students can say ‘Gee, there haven’t been any of department policies, officials are more willing to listen, Herms these issues at Stanford or MIT’,” Herms said. “If there was pub- said. licity, would people want to send their kids to the school?” After Herms’ group consulted with the Harvard University Harvard University spokesman Joe Wrinn said concerns about Police Department over compliance with the Clery Act, the

WINTER 2005-06 SPLC REPORT 33 CAMPUS CRIME department enhanced its logs, offering a hard copy and an online version. The Clery Act, which passed in 1990 and has been amended Clery Act Q&A several times since then, requires all public and private colleges and universities that participate in federal financial aid programs What is the Clery Act? to release information about campus crime and safety including Passed by Congress in 1990, the law forces all schools annual campus crime statistics and a campus security department receiving federal funding to provide a daily campus crime log, an annual statistical report and “timely reports” regarding crime log. crimes presenting an ongoing threat to the campus Herms said his organization worked with Harvard to improve community. its public police logs to comply with federal law in 2004 and 2005 because the logs used to omit dates and report crime locations What information has to be included in the log? The log must include the nature, date, time, general location from where the student phoned in a crime rather than where the and the disposition of the complaint. However, it does not crime actually occurred. have to include the names of the people involved. “They now have the best online log” of universities with which he is familiar, Herms said. Do officials have to provide a photocopy of the log? While the police department now offers an updated log, it No, although state laws usually require public schools to do so. refuses to offer incident reports. The crime log offers minimal When must the log be made available? information, including date, time and place of an incident, but it The log must be available to the public during normal busi- does not include the officer’s detailed report. ness hours Monday through Friday. Harvard spokesman Joe Wrinn said the school created an inter- When must information be added to the log? nal advisory group to review police department policies. Accord- Within two business days of the initial report. ing to the final report issued by the group in May 2004, the group did not favor the release of incident reports because of privacy and How long must campus officials keep old logs? 60 days. other concerns. A student-attached addendum written by Paley and two other student members of the committee dissented from What crimes must be included? the report issued. All crimes reported to a campus police or security department.

Public schools a different ballgame For more information: visit www.splc.org/cleryact to read the SPLC’s legal If Harvard journalists attended a public institution, access to research page on the Clery Act. records would fall under state open records laws, Herms said. Herms cited the University of Massachusetts at Amherst as an nary records are not public, Herms said. example of how a public records system can work. Police should make incident reports available in cases where The school’s police chief has had “no problems” with the open the community would be better served if its members were aware records policy, he said. of the information, he said. Any member of the public can request files and expect a In order for the records to be released to the public, Herms response in approximately ten days, Herms said. If the request is said, there must be overriding public interest. approved and a check for copying costs is sent to the department, Daniel Carter, senior vice president of Security on Campus, a the person requesting the files can expect the files in a reasonable non-profit organization created to increase transparency in cam- time period. pus crime records, said Harvard is in a unique position because its If a police department denies the request, students can appeal officers are considered deputy sheriffs for two Massachusetts to a supervisor of public records. The request will be heard with- counties. State law gives them the authority law enforcement offi- in three to four weeks, he said. cials, not just that of private security officers. The appeals process is particularly useful for schools in contro- The designation allows officers to make arrests off school versial situations, because campus police officials can deny the grounds, but those files may fall under Harvard privacy laws, he request to appease administrators, passing along the responsibility said. of granting access to the records to the state officials, Herms said. “Viewing HUPD as a professional police force it is claimed to be, and not merely a private security detail, requires it to be treat- The public’s right to know ed as its ‘real world counterparts are,” the Crimson editorial said. Leading campus security experts argue the public’s right to know “Among the benefits the Harvard community could hope to gain crime information outweighs any harm caused to the school’s rep- from greater University openness are a more complete knowledge utation. of crime trends and information on why people are stopped, ques- Releasing records at a private university “would not affect stu- tioned and arrested.” dent privacy for 99.5% of students” because their private discipli- Harvard thinks the students who get in trouble deserve special

34 SPLC REPORT WINTER 2005-06 CAMPUS CRIME protection, Carter said, but other students end up with less protection because they have less information about potential crimes. “To afford a select number of special protections, they are sub- What about your police? jecting others” to a dearth of uncensored information, Carter said. If your campus police are covered by a state open Paley said the community needs the records to hold Harvard records law, they will often have to release some police accountable. detailed crime records, including incident reports. “I think it is crucial that the campus and the surrounding com-

munity have access to the crime documents that Harvard is If you are at a public college or university and the campus required to release under state law,” he said. “The documents give police are employees of the school, you should be covered. citizens important information that can help them stay safe.”

If you attend a public college or university where security services are contracted through a private company, it is Similar institutions, similar problems likely records will fall under open records law. Student editors at other prestigious institutions have encountered similar problems. If you are at a private college or university where the cam- At Cornell University in Ithaca, New York, The Cornell Daily pus police have “law enforcement authority,” such as the ability to make arrests, records could fall under the law. Sun Editor In Chief Erica Temel said tension affects the relationship between her reporters and the university police department. If you are at a private college or university that does not “Our relationship isn’t that great,” Temel said. “They are not have “law enforcement authority,” you may get access to that eager for us to get involved.” records required under federal law, but state statutes rarely The Sun interacts with the Cornell University Police Depart- require the release of information. ment frequently while compiling a weekly crime log and covering For more information: visit www.splc.org/ccc to download the SPLC’s campus other Ithaca crime news. crime booklet (requires Adobe Acrobat). Temel said she believes privacy is the foremost concern for the police department, which she said is not subject to open records laws despite state funding for the university’s agricultural school. Incident reports are not available to Pennsylvanian staffers, The university police department does not make incident although police officials do read and give details from the report reports available to the newspaper, said former Sun crime reporter when speaking with reporters, he said. and current news editor Michael Morisy. The Daily Pennsylvanian Managing Editor Garrett Young said The Crimson’s day in court the relationship between the University of Penn- The justices “aggressively questioned” The sylvania Division of Public Safety and Crimson’s case during oral argu- the student newspaper is tenuous. ments, said Herms, who was in “Sometimes, both sides get frus- the courtroom. trated with each other trying to do Justices were more recep- their jobs,” Young said. tive to Harvard’s case and sat The newspaper runs a week- back and let Harvard lawyers ly crime log with the aid of an explain the school’s side, he online database compiled by the said. police department. A sergeant “My impression is that they helps student reporters file are leaning towards a narrow through a more extensive paper application of the law,” Carter crime log if reporters need addi- said. tional information, Young said. Even if the court rules in favor The flow of information of the university, Carter said, between the department and the efforts are underway in the state newspaper “depends on the situa- legislature to pass a bill forcing cam- tion and depends on the officer,” he pus police at private institutions to said. release all records under public When students fall under records law. investigation, the flow of infor- Case: Harvard Crimson, Inc. mation slows. v. President & Fellows of Harvard “They aren’t keen to divulge details College, et al., No. 2004-4-0774 of an ongoing investigation,” Young (Mass. Nov. 7, 2005) said.

WINTER 2005-06 SPLC REPORT 35 ACCESS Court rejects students’ request for meeting access Question of whether university boards are exempt from Open Meetings Act unanswered

MICHIGAN — A state court of between the two cases in dismissing the covers these meetings on a regular basis. appeals in August rejected an appeal from appeal. Eshmawe said gaining access to certain the Oakland Post, Oakland University’s “In Federated Publications, the presi- closed meetings is important because student paper, to force university officials dential selection committee meetings were reporters need to know the reasoning to reveal details from a private meeting not ‘formal’ board meetings,” according to behind controversial budget decisions to between members of the board of trustees the decision. “Similarly, here, plaintiff better inform readers of the impact of and lobbyists. does not argue that the defendant’s meet- those decisions. But a prominent journalism academic ing with its lobbyist firm was a ‘formal’ Representatives from the Post filed suit said the court did not address the issue the session. Instead, because the meeting was in Oakland Circuit Court in November student newspaper had wanted answered: informal, the Legislature is constitutional- 2003 to protest a closed-door meeting whether Michigan public university gov- ly precluded from requiring compliance held between members of the board of erning boards are constitutionally exempt with [the Open Meetings Act].” trustees and lobbyists to discuss potential from the state’s open meetings act. But Briggs-Bunting said the court fundraising options in the wake of govern- “The appellate decision has extremely ducked the issue of whether university ment spending cuts. limited application,” said Jane Briggs- governing boards are exempt from all pro- Newspaper staff members said they Bunting, former Post adviser and current visions of the state’s open meetings act. believed access to the meeting was man- director of the journalism school at Michi- “That’s the question we had hoped to dated under the Michigan Open Meetings gan State University. “The appeals court resolve,” she said. Act. said that under the particular facts of the Post adviser Holly Gilbert said the deci- After the court found in favor of the case, the session with the lobbyist was not sion baffled the newspaper’s staff. school on Oct. 30, 2003, the editors of the a meeting.” “It’s frustrating,” Gilbert said. “We’re Post appealed. In an opinion issued Aug. 30, the kind of scratching our heads, wondering Student newspaper staffers are not appellate panel based its findings on a what the courts are thinking.” planning on appealing the decision, said 1999 Michigan Supreme Court decision, Gilbert said that the university does Post lawyer Marshall Fink. Federated Publications, Inc. v. Michigan not foster press freedoms on campus. It may take another set of circum- State University Bd. of Trustees. “The paper can’t serve its function if it stances for the court to make a broader That case, which stemmed from can’t have access to meetings and financial decision concerning university boards and Michigan State University’s refusal to fur- information,” she said. “Press freedom the Open Meetings Act, Briggs-Bunting nish records from a presidential search, doesn’t seem to be very high on this said. established state precedent allowing high- administration’s agenda.” “The college and commercial press er education governing bodies more lati- But director of media relations Ted need to be very conscious of covering gov- tude in making decisions without public Montgomery said the university is com- erning boards and the closed pre-meetings access if such access would “unconstitu- mitted to open access. that seem to be occurring with alarming tionally infringe the governing board’s “The only thing I would say is to reit- regularity across the state,” she said. power to supervise the institution.” erate that the Oakland University board of “That’s the issue that needs to be Because public universities have a spe- trustees has always and will continue to addressed. With a different set of facts, it cial status under the state constitution, the conduct the business of the university in likely will be.” KM court said they could not be subject to open meetings,” Montgomery said. Case: The Oakland Sail v. Oakland some provisions of the state freedom of Roqaya Eshmawe, current editor in University Bd. of Trustees, No.252391, information laws. chief of the Post, said the newspaper has 2005 WL 2086134 (Mich. App. Aug. 30, The appeals court found parallels access to monthly board meetings and 2005) (unpublished)

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36 SPLC REPORT WINTER 2005-06 ACCESS

ACCESS INBRIEF Student newspaper wins Chad Livengood. Woodbeck and Fer- “We disagree with the police depart- guson were covering the event for the ment on their definition of ongoing fight for incident report Central Michigan University student investigation,” Banner-Herald executive OKLAHOMA — After two years and newspaper. editor Jason Winders told the Red & a lengthy court battle, the Daily O’Col- “It was not our best police work,” Black, the student newspaper at the legian, the student newspaper at Okla- Meridian Township Police Chief David University of Georgia. homa State University in Stillwater, Hall told The Associated Press. Sandi Turner, a spokeswoman for the obtained an incident report on a recent Livengood said he believes the inci- county speaking on behalf of the police graduate who is now an NFL running dent infringed upon a journalist’s right department, said the department does back. to report on the news. not comment on pending litigation. The school had refused to release “At the end of the day, government records relating to a 2003 incident can’t step on our toes and force us to Campus police officer involving former college football star self-censor ourselves because it thinks a seizes student’s film Vernand Morency. Morency, who now corporation doesn’t like what we’re plays for the Houston Texans, was doing,” he said. ILLINOIS — Southern Illinois Univer- accused of rape, but school investiga- sity at Carbondale officials denied a tors could not substantiate the claim. Newspaper files lawsuit Freedom of Information Act request A court ordered the school to release to gain access to murder from a student whose film was seized the records in January. Morency after photographing an arrest in October. appealed, but filed a motion to dismiss records of two students Matthew Bowie, a junior photojour- on Aug. 29, thereby releasing the docu- GEORGIA — A local newspaper filed nalism major, requested a copy of the ments to the newspaper. The paper ran a lawsuit against the local police on incident report from campus police a story on the records Aug. 31. Sept. 9 in Clarke County Superior after an officer demanded that he turn “It was a victory for collegiate jour- Court under the Georgia Open over film from his camera on Sept. 14. nalism and something I’m proud of Records Act to gain access to informa- The request was denied because of being a part of, if only on the fringes,” tion on the murders of two University an ongoing investigation, Bowie said. said former Daily O’Collegian Editor in of Georgia students. Bowie said he was riding his bicycle Chief Jared Janes. Athens Banner-Herald reporters want on campus when he saw a campus to investigate the pair of unsolved mur- police officer making an arrest. He Police confiscate two ders using police files, but their efforts stopped and took photographs of the cameras at mall protest have encountered resistance from the incident. The police officer then Athens-Clarke County Police Depart- demanded his film, threatening him MICHIGAN — Two photographers ment. with arrest and school suspension if he assigned to cover a protest Nov. 3 out- refused to comply. side of a local Victoria’s Secret in Merid- The officer visited Bowie that night, ian Township were given a choice by telling him he was an undercover offi- local police officers: delete the photos cer and did not want to see his face on they had taken of the protest or follow the Internet. The officer also told police officers back to the police station. Bowie he could pick up his film the Student photographers Jill Wood- next morning, Bowie said. beck and Merissa Ferguson chose the Bowie said he wrote a letter to latter option, following the officers back school officials to ask for an official to the station. After the officers consult- apology, but as of November he had ed with superiors, the cameras were not received one. released with the pictures fully intact, “The only thing I ever wanted from according an Associated Press article. this investigation was an apology,” The pictures were of three students Bowie said. “There was wrong done protesting the use of non-recycled here and someone should take respon- paper in Victoria’s Secret’s catalogs, said sibility.” Central Michigan Life Editor in Chief See Access, PAGE 43

WINTER 2005-06 SPLC REPORT 37 NEWSPAPER THEFT Four face charges for stealing student papers rosecutors have been tough on stu- showed they take newspaper theft serious- dent newspaper thieves this school ly when three students were charged in Successful prosecutions year, pressing charges against four October with criminal mischief for P University of California at Berkeley, 2003 people accused of stealing newspapers in allegedly stealing 7,000 copies of The Trail- two unrelated cases — all in one month. blazer, Morehead State University’s stu- University of Kentucky, 1997 The charges are particularly noteworthy dent newspaper.

University of Texas at Austin, 1995 because out of 129 newspaper thefts Danielle Brown, 22, Andrea Sharp, 22, reported to the SPLC over the past five and Jennie Williams, 20, were charged Pennsylvania State University, 1994 years, there has only been one successful with third degree criminal mischief for

University of Florida, 1988 criminal prosecution of a newspaper theft their alleged involvement in the newspaper For more information: visit our Newspaper Theft Forum at during that time. theft, according to the criminal complaint. www.splc.org/newspapertheft.asp. Strong evidence may be the principle The three women “voluntarily came in reason these newspaper thefts led to crimi- and signed a written statement, admitted An article in The Trailblazer reported nal charges. However, in the case at Uni- to the offense,” the complaint said. that Keith McCormick, Sharp’s lawyer, versity of Wisconsin in Milwaukee, a poli- However, at a hearing on Oct. 19, the had requested a separate plea for her, cy advocated by the Student Press Law three girls pled not guilty to the charges in because the facts in her case were different Center in which the price for taking more a Rowan County district court. from the other two. The judge denied the than one newspaper is placed on copies of “I’m just really confused,” said Ashley request, and all three pled not guilty. free distribution newspapers may have Sorrell, editor in chief of The Trailblazer. The theft that brought about the been a determining factor in the decision Sorrell said she thought the girls had made charges took place on Sept. 22. That to press charges. a deal with the district attorney to plead evening 7,000 copies of the paper were guilty. stolen from 31 on-campus and 15 off- The case in Kentucky The district attorney said he could not campus newspaper racks. Rowan County officials in Kentucky comment about an ongoing case. “Every single one put out for public consumption was taken,” said Joan Atkins, The Trailblazer’s adviser. Editors of the paper said they believe the papers were stolen by members of fraternities and sororities in reaction to a story about a sexual assault in an off- campus house. “There was a phone call to our editor’s line [Sept. 21] by a student who told us we needed to retract the story or we’ll destroy the papers, but we didn’t think they’d really do it,” Atkins said. The caller did not identify herself, and campus police said they have not yet identified the caller. The maximum penalty for a third degree criminal mischief charge — a class B misdemeanor — is a $250 fine and less than 90 days in jail, said Lt. James Frazier, a detective working the case for the campus police department. The pre-trial hearing was scheduled for Dec. 14.

38 SPLC REPORT WINTER 2005-06 NEWSPAPER THEFT

While criminal charges against student Leader News Editor Joe Ahlers, who wrote newspaper thieves are rare, this is not the the story. By the numbers first time that a prosecutor in Kentucky Ahlers said that Brown took about 500 has filed charges against suspects of news- copies of the paper when he was asked to 25 thefts reported in 2004-05. paper theft. In 1997, a Fayette County stop by the campus police. Later in the day 18 thefts reported in 2003-04. prosecutor filed criminal mischief charges Ahlers said staff members saw Brown take against three University of Kentucky stu- an additional 2,000 copies of the paper 28 thefts reported in 2002-03. dents for stealing approximately 11,000 from the newspaper office and douse the 29 thefts reported in 2001-02. copies of The Kentucky Kernel, the student papers with water. Campus police arrested newspaper there. The students received Brown after the dousing, but he was not 29 thefts reported in 2000-01. community service for the offense. charged at that time. Source: Student Press Law Center — number of “There have been cases in other states During that incident, Ahlers said student newspaper thefts reported to the center in the last five years. where judges have struggled with the value Brown threatened him. of free newspapers. That’s not the case in Leader staff filed a report with the Kentucky,” McCormick said. police on Sept. 29. Brown is scheduled to appear in court “I took it seriously,” said Art Koch, Jan. 4, according to the Milwaukee Coun- The case in Wisconsin detective sergeant of the UWM police. ty Circuit Court’s Web site. After allegedly stealing 2,500 copies of “The information out there is something Ahlers said that while he was research- The Leader, a student newspaper at the everybody should have access to.” ing how other states and schools deal with University of Wisconsin in Milwaukee, The campus police, working with the newspaper theft he came across the fact Christopher Brown faced class A misde- Milwaukee County District Attorney’s that two states, Colorado and Maryland, meanor charges. Office, charged Brown with two class A have passed legislation specifically identify- Brown is accused of stealing copies of misdemeanors, criminal damage to prop- ing free distribution newspaper theft a the Sept. 28 issue of The Leader, which erty and theft of movable property. crime. contained a story about him being fired If found guilty, the penalty for a class A Ahlers said that he plans to research the from his position on the student govern- misdemeanor is a fine of up to $10,000 or laws, and intends to lobby lawmakers in ment and vandalizing a rented van, said as much as nine months in jail or both. Wisconsin to pass a similar law. A policy that works Quick facts & advice The Leader is a free newspaper. Howev- er, on an inside page a policy indicates that

Possible criminal charges for a student newspaper theft include: larceny, petty theft, criminal mischief or destruction of property. while the first newspaper is free, additional copies cost 76 cents.

Special laws in Maryland and Colorado criminalize the taking of free newspapers. Ahlers said having the policy in place was an important factor in Brown being

Depending on the amount of loss (frequently a maximum of $2,500), student media may be able to pursue a civil claim in small claims court for minimum cost criminally charged. and without the expense of an attorney. You will need to have carefully document- “[Law enforcement officials] were ed evidence of your losses. telling us was that [policy] was one reason we could get away with charging him,”

Even if there is insufficient evidence or grounds for criminal prosecution, newspaper thieves can be punished by campus officials for their misbehavior. Ahlers said. “I just looked at the circumstances and

Include a price tag in your student newspaper. The Student Press Law Center rec- made my decision based on that,” said ommends including a statement in the newspaper’s flag that reads: “Single copy free.” In your masthead and rate card include additional information indicating Assistant District Attorney Anthony additional copies may be available for purchase by contacting the newspaper’s White. business office. For example: “Because of high production costs, members of the The criminal complaint recounting the State University community are permitted one copy per issue. Where available, events specifically mentions the editorial additional copies may be purchased with prior approval for 50 cents each by con- policy two different times. tacting the Student Times business office. Newspaper theft is a crime. Those who violate the single copy rule may be subject to civil and criminal prosecution and/or In both of the cases where charges have subject to university discipline.” Of course, determining the actual price is up to been filed for newspaper theft, the three you. It is not necessary that you always collect the money. You remain free to give common denominators were obvious sus- copies away when you feel it is appropriate. pects, campus police willing to fully inves- For more information: visit our Newspaper Theft Forum at tigate and a prosecutor willing to press www.splc.org/newspapertheft.asp charges. KP

WINTER 2005-06 SPLC REPORT 39 NEWSPAPER THEFT

NEWSPAPER THEFT INBRIEF

Editor says fraternity not taking into account the lost advertising revenue. The total press run for attempted to censor the newspaper is 9,000. letter on hazing Youngs said campus investigators told the newspaper staff that charges UTAH — More than 8,500 copies of are likely. She went on to say that in The Daily Utah Chronicle were stolen addition to possible legal charges, the from campus bins at the University of suspects will face punishment by the Utah in November in what newspaper fraternity and by the university. staff said was an effort by the fraternity Pi Kappa Alpha to censor a letter to $2,000 press run the editor about hazing. A security camera recorded one stu- stolen, no motive, dent taking stacks of newspapers. editor says Shortly after leaders of Pi Kappa Alpha were shown the tape, fraternity mem- UTAH —The entire press run of The bers came back to the office to apolo- Globe, Salt Lake Community College’s gize, said the paper’s editor in chief, student newspaper, was stolen from the Steve Gehrke. delivery dock on Oct. 19. Gehrke said he thought the motive “It wasn’t an easy or quick theft,” said was a letter to the editor in which a Quentin Wells, facility manager of the student had recounted a hazing experi- student media center. He said the theft ence with the fraternity. He estimated cost the newspaper $2,000 in advertising that more than 8,500 copies of a total that had to be rerun or refunded. press run of 15,000 were stolen. Wells said the newspaper staff reported the theft and campus police Campus police said they are investi- result were investigating, but that there had gating. The newspaper staff estimates of the general ideology of the paper not been any leads or suspects so far. the loss from the theft at $900. rather than a specific article since it has “We know of no controversial arti- been a consistent problem. Suspects identified in cle in the paper that might have pre- Maneater theft cipitated the theft, and no other Editor reports thieves motive is evident,” he said. MISSOURI — Campus police have take ‘50 here, 20 there’ identified seven suspects in the early Halloween issue stolen December theft of 1,650 copies of The OREGON — A newspaper distribu- Maneater, the student newspaper at the ILLINOIS — A string of newspaper tion bin and 100 copies of The Liberty, University of Missouri at Columbia. thefts at Illinois State University culmi- a student newspaper at Oregon State The chapter president of the Phi nated at the end of October with a University, were stolen from a rack out- Kappa Psi fraternity said the suspects larger theft of 1,000 copies of The side the school’s library the weekend of were members of the fraternity, a story Indy, a progressive student newspaper. Oct. 17. By the end of the month 500 in The Maneater reported. On Nov. 1, editors of The Indy filed more newspapers had been stolen. Editor in Chief Jenna Youngs said a complaint with campus police when Editor in Chief Luke Sheahan of she believes the newspapers were stolen approximately 1,000 copies of the The Liberty said he noticed the bin and because the issue included an article paper’s Halloween issue were stolen the newspapers were missing Oct. 17 about a former president of the frater- over the course of the week. Indy co- and filed a report with the campus nity who is being sued by a current Phi editor Anthony DiMaggio estimated police Oct. 19. Sheahan said that every Kappa Psi member for allegedly sexual- the cost of the theft at around $100. press run several hundred newspapers ly assaulting him in 2003. DiMaggio said that he does not are stolen in small quantities, “50 here, She said that the cost of the theft know of any specific suspects so far, 20 there,” out of a total press run of was $240 for printing the stolen papers, but said he believes that the theft was a 4,000.

40 SPLC REPORT WINTER 2005-06 NEWSPAPER THEFT

“It’s unfortunate that there are Updates on past thefts members of our community that are so CALIFORNIA — Last spring three students who con- overcome with intolerance that they fessed to stealing student newspapers at Loyola Mary- will sink to petty theft to suppress mount University in Los Angeles were punished by an ideas that they disagree with,” Sheahan internal campus disciplinary process. Tom Nelson, the said in a press release. Los Angeles Loyolan’s adviser, said the paper’s policy He said that no suspects have been that the first newspaper is free and every additional identified. He said he repeatedly asked newspaper costs $1 helped the campus police to take the university’s president to publicly the theft more seriously. “If 3,000 papers are denounce the theft, but so far neither stolen [with the policy in place] you then have he nor any member of the administra- $2,999 worth of stolen property,” Nelson said. tion has done so. CALIFORNIA — In April, a student confessed to defacing 300 copies of an election issue of The Daily Nexus, the University of California at Santa Barbara’s Theft article could have student newspaper. The student paid the paper full restitution, valued by the caused theft, says editor newspaper staff at $640. ARKANSAS — An estimated 3,000 GEORGIA — There has been no progress in finding who stole 1,100 copies of copies of the University of Central The Sting, the student newspaper at Southern Polytechnic State University in Arkansas’ student newspaper were Marietta. According to Editor in Chief C.J. Shrader, the Dean of Students ques- stolen in mid-November, said Echo tioned one suspect but the student denied the charges and the newspaper did not Associate Editor Traci Waller. have definitive evidence that the student was guilty. “I wish I could have proven Staffers distributed 5,500 papers at who did it and punished them, but so far, it looks like they locations around campus Nov. 15, but might just get away with it,” Shrader said. more than half of the papers were gone INDIANA — Last December an internal judiciary process at when Waller arrived on campus the Vincennes University in Indianapolis punished fraternity next day, she said. members who officials say stole 1,600 copies of the Editor in Chief Kim Vowell said the student newspaper after it ran an article about the theft could have been in response to a suspension of the fraternity for alcohol violations focus piece in the issue on a former and alleged rape. The punishment included paying advertising director who faces felony the cost of reprinting the paper and community theft charges for allegedly stealing service, according to Campus Police Chief James thousands of dollars from the paper. Jones. Echo staff have received complaints about the crime log from parents and INDIANA — Information about a staff member who threw away an issue students, and she said she is not ruling detailing the salaries of staff members on campus in Purdue University’s student it out as a motive for the theft either. newspaper, The Exponent, was passed on to the county prosecutor last December. Staff members reported the theft to No charges were filed because the newspapers were free, said the county prosecu- the University of Central Arkansas tor’s office. Police Department, but Vowell said NEW YORK — One girl found responsible for stealing 1,000 copies of The previous thefts have not been taken Ithacan at Ithaca College called the newspaper to apolo- seriously by the campus police. gize for the theft. According to Ithacan Editor in Chief Vowell estimated the cost of the Beth Quill, the judicial process at the college is not issue – with three sections with full public, so the newspaper staff never found out if the color on the front and back of each girl received further punishment. section – at around $1,500. “Whoever wants to use this form of NEW YORK — No suspects were ever identified censorship is not going to succeed,” in last spring’s student newspaper theft and van- she said. “The stories really didn’t get dalism case at the State University of New stopped. Yes, it was a financial loss, but York at Binghamton. After a controversial the most important thing is that the April Fools’ Day issue, 5,000 copies of Pipe UCA community still had access to Dream were stolen and the lock to the news- these stories.” See Thefts, PAGE 43

WINTER 2005-06 SPLC REPORT 41 LIBEL&PRIVACY Professor sues student newspaper for defamation

MINNESOTA — The adviser to a stu- dampen reporting at other schools. Chronicle reporters had learned an dent newspaper being sued for defamation “I hope they don’t pause,” Vadnie said. important lesson not to rely on one-source said reporters will continue their work, “I hope they continue to report.” stories because of the case, Vadnie said. but he said he worries the threat of legal Vadnie said the lawsuit did not have a Lewis first filed suit in a district court action could discourage other student “chilling effect” at the Chronicle because in Ramsey County on March 11, 2004, newspapers around the coun- the editors at the time of the incident against the university. The suit described try. graduated. the Chronicle as an agent of the school, Michael Vadnie, adviser to Chronicle attorney Mark Anfinson said making St. Cloud State liable for its the University Chronicle, the stu- he does not know what Lewis has to actions. dent newspaper at St. Cloud State gain from the suit. The newspaper A Ramsey County district court judge University, said the newspaper holds no libel insurance and does dismissed Lewis’ lawsuit, ruling the univer- would remain “aggressive” in its not possess a large advertising sity cannot be held liable for the newspaper reporting under his watch. budget, Anfinson said. because it does not hold or exercise editori- Former dean Richard Lewis, “[The damages] are al control over it. An appeals court affirmed who is currently a history professor very negligible in a case the lower court ruling and the state at the university, filed suit in like this,” Anfinson Supreme Court refused to hear the case. Stearns County District Court in said. The university has taken a “laissez- September against the Chronicle. Lewis’ attorney, faire” approach to the newspaper and has The Chronicle published an Marshall Tanick, said shown a “time-honored” commitment to article on Oct. 23, 2003, quoting a his client wants “vin- the Chronicle, Vadnie said. former student who accused dication for his Vadnie said the newspaper receives Lewis of anti-Semitism, racial reputation.” $130,000 in student activity fees and gen- slurs and obstruction of free Tanick said erates further revenue from advertise- speech. the retraction was ments. Any profit is returned to the stu- Editors retracted the article on Nov. “unsuccessful” in restoring Lewis’ reputa- dent activity fund at the end of the year. 20, 2003. The correction apologized to tion. Lewis is “entitled to exercise his rights Lewis and said the article “contained seri- “We retracted the story on legal to sue for defamation” but Vadnie said he ous errors.” advice,” Vadnie said. “We were wrong and had faith in the merits of the case if it goes Vadnie said he worries the lawsuit will we printed a falsity. We’re not proud of it.” to trial. KM

LIBEL & PRIVACY INBRIEF Settlement ends 14-year Edwards’ lawyer. The agreement ended according to a January 2002 opinion. a 14-year dispute between Edwards The paper printed a front-page dispute between man and the newspaper. retraction the next day. and local newspaper Because of the confidential terms of the settlement, O’Callaghan said he Adviser dismissed from ILLINOIS — A man wrongly identi- could not comment any further. invasion of privacy, fied in a suburban Chicago newspaper An e-mail sent to Daily Herald after editors used his high school year- managing editor Eileen Brown was not defamation lawsuit book photo to accompany a story on a returned. CALIFORNIA — A lawsuit filed drug bust settled his defamation law- The Herald used Edwards’ picture against a high school newspaper advis- suit against the paper in September. erroneously on March 28, 1991, after er after the paper named a student as a Christopher M. Edwards reached a the Illinois State Police arrested another victim of Internet bullying has been settlement with Paddock Publications, “Christopher Edwards” – Christopher dismissed in Los Angeles County publishers of the Daily Herald in A. Edwards – in conjunction with a Superior Court. Chicago, said Joseph M. O’Callaghan, drug sting the previous morning, Movie producer Lee Caplin and his

42 SPLC REPORT WINTER 2005-06 wife Gita filed a $100 million lawsuit North Hollywood school published a emotional distress among other claims. in April against a number of officials at story about the incident, reporting that According to Neumeyer’s attorney, the prestigious Harvard-Westlake law enforcement agencies were investi- E. Randol Schoenberg, the complaint School, including Chronicle adviser gating and that the targeted student, against his client was dismissed on Kathleen Neumeyer, after derogatory who was named, had transferred to a Aug. 31. and threatening comments about their school in northern California. The lawsuit against other school son were posted by students at the According to the Caplins’ com- officials and parents of the students school on a Web site devoted to his plaint, the defendants’ actions consti- accused of the Internet harassment is performing career. tuted civil rights violations, invasion of ongoing. The student newspaper at the private privacy, defamation and infliction of

From Thefts, PAGE 41 From Access, PAGE 37 private during the university system’s paper’s office was glued shut. The theft recent search for a new president. Southern Illinois spokeswoman inspired a new campus policy, making it Susan Davis told The Illinoisian University retracts an offense to take more than one newspa- she was not aware of a similar inci- per with the intention of suppressing its dent at the school. policy restricting content. However, according to Editor in “It’s certainly not been a prac- student speech Chief Matthew Chayes, “The new rule tice on this campus to interfere probably wouldn’t have changed things INDIANA — Tri-State University with the freedom of the press,” since the responsible individuals were officials revoked a school policy Davis said. never identified.” asking students to contact market- NEW JERSEY — The staff of Rutgers Time and place of ing officials before granting media University’s student newspaper decided not interviews on Oct. 31 after criti- to press charges against a law school secre- interviews should be cism from students and free tary who trashed 300 copies of the March public, attorney expression advocates. 21 edition of the Observer last spring. The School spokesman Patrick secretary confessed and was reprimanded general says Johansen said the university, locat- by school officials but retained her job, NORTH CAROLINA — Univer- ed in Angola, Ind., retracted the according to an article in The Star Ledger, a sity officials are not required to policy because officials are in the community newspaper. hold open meetings to interview process of revising it and the revi- candidates for president under sions are “taking longer than state open government laws, but expected.” they must notify the public of the School officials sent an e-mail place and time of those meetings, to students and employees on Oct. Attorney General Roy Miller told 14 asking them not to answer schools in an advisory legal opin- reporters’ questions without explic- ion released in October, according it permission from the school’s to a local paper. Department of Brand & Integrated “You can have the whole thing Marketing. in closed session, but the public is Because the school is a private entitled to know when and where university, it does not have the the meeting is,” University of same constitutional limitations in North Carolina at Chapel Hill gov- censoring students that apply to ernment professor David Lawrence public institutions. told The News & Observer. But such policies could have “a Leslie Winner, general counsel chilling effect” on students want- for the university, told The Associat- ing to discuss crime on campus, ed Press she followed old advice said Daniel Carter, senior vice from the attorney general’s office president of Security on Campus, a For more recent stories on when allowing the committee to non-profit organization dedicated newspaper thefts, visit keep the time and place of meetings to campus crime awareness. www.splc.org/newspapertheft.asp

WINTER 2005-06 SPLC REPORT 43 ADVISERS

ADVISERS INBRIEF Magazine adviser ed for a week with pay in November rights of the adviser or the students. 2004 after the student newspaper “We’re really concerned about the restored after being printed an article about a student precedent and setting the record fired for sexual poem arrested on murder charges. straight about what administration can He was eventually reassigned to a and can’t do with a college newspaper,” WASHINGTON — Administrators at middle school, which he said he saw as Lane said. The adviser, Ron Johnson, Shorewood High School reinstated punishment for allowing publication has dropped his name from the case. Steve Kelly for the 2005-06 academic of the article in question. Johnson, who had been the paper’s year as adviser of Imprints, the school’s After asking to be reinstated as adviser for more than 15 years, was literary magazine, after he was asked to adviser and being denied, he filed suit told in May 2004 that he was being resign last year when the publication against the school district claming his dismissed. Later he was told it was he oversaw printed a poem about a and his students’ First Amendment because of a lack in overall quality of sexual experience. rights had been violated. the student newspaper. Kelly was asked to resign in June after 17-year-old student Zoya Raskina Two students win award Paper staff up in arms published a poem titled “My first fuck” in the 2004-05 edition of the for pursuing lawsuit over adviser’s removal magazine in which the narrator KANSAS — Two former students were NEW YORK — On Oct. 7, adminis- describes being pressured into a first presented with the 2005 College Press trators at Le Moyne College elected sexual experience. Freedom Award at the Associated Col- not to renew the contract of a popular After a grievance hearing on Aug. 8, legiate Press convention in October for student newspaper adviser. district officials withdrew a proposed pursuing a lawsuit to protect the First As a result, The Dolphin’s editorial letter of reprimand and restored Kelly Amendment at Kansas State University. staff voted 7-0 to halt publication of as adviser, according to Donna Lurie Mark Goodman, executive director the newspaper until Alan Fischler is of the Washington Education Associa- of the Student Press Law Center, said reinstated, said Dolphin Editor Andrew tion, a local teachers union. that Katie Lane and Sarah Rice won Brenner. the award “for their selfless commit- “We were absolutely livid” about Newspaper adviser gets ment to their adviser, their university, the decision, said Brenner. He added $74,000 in settlement their student newspaper and the First that the staff will remain loyal to Fis- Amendment, long after they have any chler, who has been the newspaper’s INDIANA — Franklin Township prospect of personally benefiting from adviser for eight years. Schools will pay former newspaper their efforts in this case.” Shawn Ward, vice president for stu- adviser Chad Tuley about $74,000 and The two former students are appeal- dent development, said the decision to cover his attorney’s fees per an out-of- ing a federal court decision made over remove Fischler had nothing to with court settlement reached in October. the summer in Kansas that said the the newspaper’s content. He said the Tuley, who is on sabbatical leave, university’s decision to fire their adviser newspaper had not printed anything will continue to be paid his regular based on an “overall content analysis” the college was unhappy with. The salary through the end of the school did not violate the constitutional decision was based on quality and year, when his resignation takes grammatical mistakes, effect, and will receive an addi- Ward said. tional $40,000 lump sum pay- But Brenner said Ward ment after that, according to told him in a meeting in the settlement. The settlement November that among also stipulates the school dis- other reasons for their deci- trict will pay Tuley’s legal fees sion, administrators were of $23,125. upset with a weekly satire Tuley agreed never to work column in which the for the school district again. columnist sometimes Tuley was removed as advis- poked fun at the college. er of Pilot Flashes and suspend-

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