I studentpress lawcenter ,..------. ,,.. ""�·�'ci· ",.·,: - . .- - � --.-.. ------. .1 EDITOR Jody A. Zorgdrager Contents Colbv COllege ASSOCLATE EDI TOR Cover: .JillA. Ed Tn G rge W rung on Unl ...�rsit Y • On

...... Michael Brennan Emilio Soltero • Final appc:al fails fo r TOIV de FCI7I.V ...... , ...... 8 Ben BurgraH Tommy Thompson Mike Corey Rodney Rodgers libel: Jack Dickason Bruce Young

• Parody may upand libel prouaion ...... executi ve director for Jeneyjournalists . . . 9 Mark Go m" Confidentiality: Corporate Board of Directors

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2 SPLC Report WiMer 1987-88 'I COVER October 13: the student press's tum Hazelwood case is heard by the Supreme Court

October 13 was not an ordinary school student audience, and should teaching process. Textbooks had Tuesday afternoon - at least, not not be in a student newspaper. He been issued to the students to teach for the people it brought to the later raised concerns that although journalistic concepts, and grades and Supreme Court building. Outside, some of the subjects were given credit were also awarded upon com­ some 2,000 gay and lesbian rights pseudonymns or were unnamed, pletion of the class. activists partici'pated in peaceful they still migbt be identifiable to In May of 1985, the court handed demonstrations, civil disobedience other students. Reynolds also down a ruling in favor of the school and protests on the building steps. claimed that the articles did not tell district, which said that the Spec­ Inside, a more formal protest was the parents' sides of the story. trum was an integral part of the being staged. With the help of the American school's curriculum and not a public The protest was against the Civil Liberties Union, Spectrum lay­ forum; therefore, it was not entitled censorship of a high school publica. out editor Cathy Kuhlmeier, and to extensive First Amendment pro­ tion. Hazelwood School Dislr;CI v. reporters Leslie Smart and Lee Ann tection. Kuhlmeier heame the first school­ Tippett filed a lawsuit in U.S. Dis­ That ruling was appealed by the sponsored student newspaper First trict Court for the Eastern District of students who brought the case back Amendment case ever to be heard by Missouri in mid·August. The lawsuit to court on January 16, 1987. Again, the Supreme Court. asked for a mandatory injunction the arguments centered around The case did not arrive at the requiring the school district to per­ whether the Spectrum was a public capital overnight Rather, it took mit publication of the censored &to- forum for student expression. four years of decisions, litigation and On July 7, 1986, the U.S. Court of more decisions to bring it before the Appeals for the Eighth Circuit re· nation's highest court. versed the district court's decision The first decision was made by For a third time, tlu argu­ and decided in favor of the students. three students at Hazelwood East "Spectrum was not just a class High School, in Hazelwood, Mo., to "umts wert to center exercise in which students learned to run articles about pregnancy, birth around whether the student prepare papers and hone writing control, runaways, divorce and delin­ skills, it was a public forum estat> quency in their school newspaper jou17lll1ists were entit'kd to lished to give students an opportuni­ back in the spring of 1983. lnforma· First Amendment protu­ ty to express their views while tion for the articles was collected gaining an appreciation of their through questionnaires and inter­ tion tUspite the fact that rights and responsibilities under the views , whicb were distributed to and the newspaper was pro­ First Amendment to the United completed by Hazelwood students, States Constitution and their state duced as part of a cltus in including pregnant students and stu· constitution," it said. dents whose parents were divorced. the school curriculum. However, that decision did not The subjects were aware that the settle the controversy. In November infonnation would be used for the 1986, the Hazelwood School District Spectrum. and gave their consent. asked the U.s. Supreme Court to ries and a declaration that the school Students were also given pseudo­ review the appellate co1ut's decision. district had u the stu­ nymns. infringed pon On January 20, 1987, the U.S. Su­ dents' First Amendment rights. The deadline for the issue of the preme Court granted the case a bear­ Attorneys Leslie Edwards and Spectrum in which these articles mg. Steve Miller represented t e students were to appear was set for May. But b For a third time, the arguments court on November the day before the paper was to be in 26, 1984. were to center around whether the argued the nt printed, the newly appointed adviser, Miller that stude news­ student journalists were entitled to paper was a public forum for student Howard Emerson, took the proofs to First Amendment protection despite expression and school principal Robert E. Reynolds that the school ad­ the fact that the newspaper was pro­ ministrators did not have the author­ for his approvaL Reynolds ordered duced as part of a class in the school ity to censor materials that were not Emerson to cut the spread from the curriculum. Also to be argued was obscene, libelous or potentially dis­ newspaper, changing it from a 6.paae whether school authorities could act rup i e paper to a 4-page one. None of the t v to classroom activities. to prevent invasions of the rights of Spectrum staff members were noti­ The school district countered his others by a school-sponsored news. fied of the changes. argument, saying that the students paper only when failure to do so Reynolds claimed that the articles who produced the publication were would subject the school to liability. were deleted because he thought they enrolled in a journalism class and were too "sensitive" for a hi&h that the class was part of the school's COfllilllUdOil ptJge "

Winter 1987·88 SPlC Report 3 COVER

conJilllud frompage J

When the time came fo r the court hearing on October 13. the stud�nts did not enter the court alone. Thirty­ two organizations of civil rights ac­ tivists professional journalists and jou�ism educators, including the Student Press Law Center, had filed briefs in support of them, and repre­ sentatives from manyof thoseorgani­ zations were present at the hearing. Kuhlmeier was unable to attend. The hearing opened with a presen­ tation from the school district's at­ torney, Robert P. Baine, who repeatedly stressed that the Spec trum was produced as a part of Ha.zelwood East's Publications II class. He told the Court that since the articles were part of a lab exercise and the news­ paper was not intended to be a public fo rum fo r student expression, the principal had the power to cen­ sor. Baine had barely begun in his en i argum t when he was nterrupted students' Fi rst Amendment rights allowed an article in the student by questions from the Justices. would be violated if the district newspaper that described teenage OfBaine's opinion that the princi­ adopted a policy granting the news­ pregnancy as "honible." On the oth­ pal he censor, Asso­ had t power to pape r's adviser absolute authority to er hand, one of the articles that was s re n Jr. ciate Ju tice William J. B nna censor, Baine responded, "I thinlc. censored in 1983 indicated that some said, "That really adds up to no First you could do that, but I object to teenage students were happy with Amendment protection." your use of the word 'censor.' What their pregnancies. e Justice John Paul Stev ns added the adviser did in this case was edit." Justice Antonio Scalia seemed that a rule that allowed principals the "That's a fine point. What some concerned that without some control, power to censor would also permit might call editing, others migh t caB there was potential fo r the students officials to censor all articles promot­ censorship," respo nded the Chief to publish articles that were offensive ing a particular political party or Justice. to the community. He said, "Well, viewpoint with which they did not Edwards, in arguing the students' let's say that the students decide to agree. case, did not escape the careful ques­ print that 'Hitler was right.' The Baine continued to tell the court tioning of the Justices either. She community is not going to like that that Reynolds had a better reason told the court that "viewpoint neu­ piece, and there's a school-bond is­ than merely exercising his power as a tral" editing by the school adviser sue coming up. What's a principal to principal to censor the articles. Baine was appropriate, but that the princi­ do?" said Reynolds thOUght he knew who pal should not interfere with that Edwards again emphasized that some of the unnamed students in the editing process. She said that it was there could be some degree of con­ articles were, and he figured that wrong for the principal to exercise trol in the editorial process, but that oLbers within the school would also censorship control based solely on the school principal did not have the know the identity of the anonymous the content of an article. authority to exercise that control. students. He added that the parents To that, Rehnquist said, "I'm puz­ She also stated that the students of some of the quoted students did zled that you would have the First should be involved in the decision­ not have an opportunity to respond Amendment issue turn upon how far making process in relation to decid­ to what their children had said. up the educational hierarchy the ing what material might be consid­ Fu rthermore, Baine told the court decision is made. " ered offensive to the community. that a part of the purpose of the Edwards emphasized the reason Although Edwards explained to journalism classes was to teach stu­ behind e)(ercising control by saying, Justice John Paul Stevens that the dents "good taSte and community "It's not so much who makes the adviser has the right to exercise an standards." and that if the articles decision, but the basis for the deci­ "editorial function" fo r reasons of were printed in the school newspa­ sion. You can exercise control so journalistic standards, such as edit­ per, it would "appear the school long as it's not viewpoint-based." ing poor grammar or spelling, Justice condoned the activity of young girls Edwards suggested that in the Ha ­ Scalia insisted, "You leave us with a becoming pregnant." zelwood case, the principal was exer­ terrible choice: either no papers or When Chief Justice William H. cising viewpoint-based control. She papers that are unrestricted in their Rehnquist asked the attorney if the said that in {977, the school had content."

4 SPLC Report Winter 1Q87-88 COVER

Washington, D.C. Reception held in honor of hearing

It took more than three students Although layout editor Cathy criticized state officials. brave enough to face up to their Kuhlmeier was unable to attend, the Jeffry Trachtman of New York school administration and demand two student reporters involved in the City, also involved in an important their First Amendment rights to case, Leslie Smart and Lee Ann Tip­ press censorship case as a high make the Hazelwood School District pett, were the heart of the event. school student, and now an attorney, Y. Kublmeier case the first school­ Tippett admitted feeling both "excit­ filed a brief in support of the Ha­ sponsored newspaper censorship case ed and scared," about the pending zelwood students with the Supreme ever to be heard by the Supreme hearing. Smart said she felt nervous. Court. He said he felt that this is a , Court. On the eve of the hearing by Although Smart is now a college "crucial time" for student press the nation's highest court, the Los senior and Tippett a nurse, both rights, and wrote the brief free of Angeles Times Washington bureau women pursued the case, encouraged charge on behalf of People for the and the Student Press Law Center by the willingness of their attorneys American Way. Trachtman brought hosted a reception in honor of the to see it through. The two repeatedly a lawsuit in 1976 against his high students, the people who supported acknowledged the time and energy school when school officials stopped them and the five years of hard work that Leslie Edwards, the attorney him from distributing a sex survey to that have resulted in the most impor­ who argued their case before the fellow students. tant student press case ever. Supreme Court, and Steve Miller, another attorney who represented Richard Johns, executive secretary When the hearing ended after an them in earlier proceedings, devoted of the Quill and Scroll Society, the hour, there still seemed to be un­ to the case. "If Leslie can go this far, national high school journalism hon­ settled frustration on both sides of so can we," said Tippett. orary society, felt assured of the high the case, but until the decision is level of responsibility exemplified by Jack Nelson, Washington bureau made, the issue of control will be a the articles which were censored chief of the Los Angeles Times and disputed one. from the Spectrum. "If I feel confi­ former student sports reporter for dent with any [student's right case "The question is� are student pub­ Notre Dame High School, in Biloxi, going to the Supreme Court], it is lications and students protected by Miss., knows well the problems stu­ with this one. These were not laugha­ the First Amendment? Are students dent journalists face. Nelson wrote going to be allowed to make their ble articles, but responsible ones," Captive Voices, a report and analysis Johns said. own content decisions or are the of the findings of the 1974 Commis­ schools going to be allowed to censor sion of Inquiry into High School John Bowen, Vice President of the things they don 't like?" asked Mark Journalism, which first shed light on Journalism Association of Ohio Goodman, executive director of the the censorship problems student Schools and a journalism instructor Student Press Law Center. journalists face. At the reception, he in Lakewood, Ohio, said that he The superindendent of the Ha­ observed that there is no other way thought it was hypocritical to teach zelwood School District, Francis to teach students journalistic respon­ students their First Amendment Huss, also wanted to know the an­ sibility save freeing them from rights in history class, but to then swer to that question. "It's important censorship, and added that he felt a deny them those rights in their to establish who's going to run the moral obligation to support the stu­ school publications class. A student school," he said. "The newspaper is dents in their fight. of his, Naomi Annandale, lends part of our curriculum and if we Gary Dickey of Columbia, S.c., proof to his theory that if schools can't decide what's in our curric­ who in 1967, brought to court one of allow students more freedom in deci­ ulum, then we won't have it ... They the first student press censorship sion-making in their publications, can put out a newspaper as an extra­ cases ever, also felt that he had a they will become better journalists. curricular activity." personal interest in the case. "I think Through the Washington "based Because of Justice Powell's retire­ it's great," he said. "I've been wait­ Youth News Service and with the ment, only eight Justices will decide ing [for a student press case to go to help of Bowen, Annandale became the Hazelwood case. Should the Jus­ the Supreme Court] for 20 years. It's the first teenager ever to receive tices be equally divided on the issue, long overdue." He sympathized with press credentials for a Supreme the court of appeals decision would the students, he said, because he Court case hearing. be upheld. It is likely that a decision knew what it was like to face the In aU, some 50 journalism educa­ in the case will remain up in the air establishment. As a student editor at tors, attorneys and professional jour­ until sometime in the spring of 1988. Troy State University, Dickey had nalists attended the gathering, aU Until then, student journalists and filed a lawsuit against the Alabama expressing their interest in and sup­ journalism educators from around State Board of Education after he port for the students in the case that the country will have to cross their was removed from his position be­ may change the future of scholastic fingers and wait.. cause of an article he wrote that journalism.•

Winter 1987-88 SPLC Report 5 COURTS Missouri Point Blank case shot between the eyes

To the disappointment of three objected to the limitation on hand­ tion approval of their alternative Belton High School students, the to-hand distribution. newspaper befo re distribution. U.S. Di strict Court fo r the Western In a complaint to the court, The ruling fo r the Belton students" Di strict of Missouri ruled in fa vor of Schneider wrote, "The overbreadth case read, «In summary, the court the Belton School District this Octo­ of the regulations violates the First upholds the Belton policy on student ber, upholding its unauthorized Amendment since the present regu la­ distributions with the exception of newspaper policy. tions unreasonably restrict the distri­ section 12. 1<..3." Section 12.K..3. of The students, Christopher Clark., bution by a student of virtually any the publications policy banned Steven Hann and Susan Thompson, publication, of whatever kind, on material that was an "invasion of had filed a suit against the school school grounds.,. another's right to privacy." It said district last March after they were The attorney representing Belton that the invasion of another's righ t to prohibited from handing out copies School District, Elvin Douglas, Jr., privacy includes "publication of acts of an underground newspaper, Poin t said that the policy is neither overly which place another in a fa lse light Blank. The first issue of the paper restrictive, nor is it a prior restraint (i.e., attributes to him views that Be was distributed in October L986. and policy, because it fo rbids principals does not hold or actions that he did contained an article about the from demanding copies of tbe publi­ not ta ke), and which would be objec­ school's principal and his allegedly cation. He also thought that tbe tionable to a reasonable person UD­ illegal search of students in a partic­ chances of a disruption occurring der the circumstances." Because ular class. Other articles centered on would be increased if the students Missouri courts have rej ected false military recruiting on campus and the egos of some members of the football team. When Principal Micbael St. Louis learned of Point Blan k, he acted under the advice of Superintendent Gordon Sunderland and confiscated the undistributed copies of the publi­ cation. He told two of the plaintiffs, Clark and Hann, never to distribute anything like it again. The students complained to the school board, which adopted a new policy in December 1986 governing unauthorized student publications. were allowed to pass out the newspa­ light invasion of privacy claims, the Among the provisions included in pers - which might contain critical court rejected the provision. the policy was one that said advance articles - fa ce to face. The court cautioned, however, notice must be given to the principal The court's decision in the case that it decided only that the policy prior to distribution. The new policy Clark v. Board of Education, Belton was not unconstitutional on its fa ce. also restricted hand-to-band distribu­ High School, handed down on Octo­ It left open the possibility that the tion of unauthorized publications. ber 9, denied the students' claims fo r policy could be unconstitutional in a The policy did not authorize the re lief, which included a permanent fu ture situation. principal to demand a copy of the injunction agai nst the school district Douglas said that the court's deci­ student publication prior to distribu­ that would have prohibited the sion would not have a significant tion. school from enforcing the publica­ impact on students' desire to print Karen Schneider, a Kansas City tions policy and a fine of $30 in an underground publication. lawyer representing the students on damages to cover the cost of the Schneider disagreed. "I thi nk it behalf of the American Civil Liber­ papers that were allegedly destroyed wi ll have a chilling effect on stu­ ties Union, said that the policy is not by St. Louis. dents' desire to publish an unofficial specific enough and is unconstitu­ The cou rt relied heavily on a simi­ publication," she said. tional on its fa ce. She argued that by lar decision by the U.S. Court of She added that she and the stu­ commanding students to register Appeals fo r the Eighth Circuit, Bys­ dents decided in November not to with the school before distributing trom v. Fridley High Scboo/, (see appeal the decision. "We fe lt that a their paper, the policy hinders stu­ story this issue) in making its conclu­ court that approved prior review [in dents from commenting anony­ sions. The students' in the Bystrom the Bystrom case] wasn't going to be mously on school problems. She also case were requi red to get prepublica- too sympathetic to our situation." .

6 SPLC Report Winter 1987·68 COURTS ··Nevada Court says schools must accept ad

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In southern Nevada, Planned Pa­ student publications at their schools. lished by senior high school publica­ renthood "proclaimed victory" after Every school but one - Clark High tions ... keeping in mind that in the a federal judse" decision this sum­ School - refused to print PPSN's view of this Court the tendered mer. The court's opinion upheld birth control and pregnancy testing PPSNs advertisement in this record Planned Parenthood's right to pu� ads. The Clark Charger had carried must be accepted and published in ., .!ish advertisements for its services in the Planned Parenthood advertise­ all senior high school publications." high school newspapers. ment listing its services and address Planned Parenthood of Southern for three years before the case went Nevada (PPSN) first brought a law­ to court "So why are they [Clark suit apinst the Clark County School In its complaint, PPSN claimed County School DistrictJ D;strict (CCSD) in �ber 1984, the district's policy violated the First two months after the school district and Fourteenth Amendments 1» keeping information out 0/ proposed a regulation that would cause it allowed high school princi­ the news that might ad­ prohibit student publications from pals to censor advertising "without II printing certain advertisements. The establishing narrow, objective and dress criticalproblem?" unacceptable ads would include definite standards to guide their con­ Mark BrandenbW'l those for birth control products, duct." There was no evidence that Attorney gambling aids. tobacco products, student editors bad made the deci­ drug look-a-likes, liquor products, sions to reject the ads. Other court Planned Parenthood and "items wbich may not be legally decisions, including Sinn v. Daily possessed by students less than 18 Nebraskan (see story this issue) indi­ years of age." cate that a student editor has the According to Hannon, as a result The proposal, not formally a� right to reject advertisements. of the court's ruling, Planned Parent­ proved by the school district. was CCSD attorney Tom Moore did hood proposed four alternative ad­ sent to all CCSD secondary school not think the high school newspapers vertisements to the Gark County principals, in order for them to de­ were forums open 10 the public, and School District Board of Trustees for cide the policy that would affect the said that the school district has the consideration. The Board refused to right to determine what advertising accept any of tbem for publication. is published under its name. "They refuse to negotiate," said Han­ The school district also claimed non, "And in the meantime, Nevada that the Planned Parenthood adver­ continues to have the highest teen tisement conflicted with the school pregnancy rate in the United States." district's policy on sex education. Mark Brandenburg, the attorney Under this policy, only the instruc­ for Planned Parenthood, was also tors who are approved by the Board upset by the school district's re­ of School Trustees are allowed to sponse to the ruling. He commented present material relating to the hu� on the social rather than the legal man reproductive system to second­ implication of the school board's ary school students. Instructional reaction, "We are frustt'ated to no materials must also be inspected and end, because it seems that no one is approved before being distributed. happy with unplanned teenage preg­ However, on July 23, the federal nancy - Planned Parenthood isn't district court in Nevada ruled in happy with it, and neither is the Planned Parenthood of Southern Ne· school district. So why are they keep­ vadLl v. Clark County School District, ing information out of the news that uCCSO's senior high school publica­ might address a critical prOblem?" tions are limited public fora; [and] Planned Parenthood has indicated that the sex education curriculum is that it will now try to instead have outside of tbe ambit of the limited its advertisements printed in the public fora defined by CCSD for its school district's high school year­ senior high school publications." books. Although Moore would not com­ The court continued by ordering, ment for certain whether or not the "The parties are directed 10 confer school district would appeal the case, and agree if possible on the text of Brandenberg said that it has made PPSN's advertisements to be pub-- several indications that it would.•

Winter 1987·68 SPlC Report 7 I COURTS Nebraska Court protects editorial rejection of ads The u.s. Court of Appeals fo r the identified herself as being a lesbian paper because "state action was not Eighth Circuit affirmed on Septem­ woman. That ad, and one by Sinn present in the editorial decision al ber 25 that a student newspaper at which read, "Gay male seeks room­ issue in this case," and therefore no the University of Nebraska could mate," was also refused by the paper. First Amendment infringements legitimately refuse to publish certain The two filed a suit in fe deral court, were fo und. "roommate wanted" advertisements. claiming that the advertising policy The ruling also stated, "We rej ect The court's decision ended a of the paper was a violation of the [Sinn and Pearn's] argument, which three-year dispute between the Daily First Amendment. They said they appears to approach a per se rule at Nebraskan and two members of the had a right of access to the state the other extreme: that state action is University of Nebraska community, school's student newspaper. always present in the editorial choic­ Michael Sinn and Pam Pearn. In June of 1986, the court decided es of such a newspaper." The controversy began in 1984, that "the campus newspaper of a John Wiltse, the attorney rep. when the editor of the Daily Nebras­ state supported university is entitled resenting the newspaper, was pleased kan refused to accept an advertise': to the constitutional protections af­ with the opinion. "I see the ove rrid­ ment fo r a roommate from Pearn, in fo rded the 'press,' including freedom ing significance as being that tij,e which she had indicated that she was of expression fo r the editors." courts totally objected to the First seeking a lesbian roommate. At the The ruling continued, "The degree Amendment rights argument of the time, there was nothing in the publi­ of discretion which editors utilize in plan tiffs and agreed with me that the cations policy that specifically barred rejecting advertisements is not dis­ newspaper has First Amendment Pearn's advertisement, but there was tinguishable, under the First Amend­ rights of its own." . . . an articulated policy which barred ment analysis, fr om that exercised Although Soucie didn'1 see· it quite "objectionable advertising." Accord­ over any other submitted matter." the same way, he said that he was . ing to the Ne braskan 's Business Therefore, the court added, "Re­ not that upset with the ruling, "all Manager Dan Shattil, the policy is jection of an advertisement is consti­ things considered." Soucie indicated aimed at ensur ing that the Nebras­ tutionally protected editorial that Sinn and Pearn would not ap­ kan is not a "vehicle of discrimina­ decision." peal the case another time. tion," and it says that the newspaper Jerry Soucie, the Nebraska Civil The present editor fo r the Daily will not accept advertisements which Liberties Union attorney represent­ Nebraskan, Mike Reilley, wished ' make distinctions on the basis of ing Pearn and Sinn, appealed the that the case would have been taken race, religion, sex or national origin. decision to the nation's second high­ to the Supreme Court, so that the Shortly after Pearn submitted her ad, est court. The case was argued last ruling could have a geographically the Publications Board re vised the May, and the decision was handed broader impact on student press policy to prohibit "sexual orienta­ down in September. rights. Nevertheless, he concluded tion" in advertisements. In the decision, Sinn v. Daily that the decision has been "quite a In early 1985, she tried to submit Nebraskan, 829 F.2d 662 (8th Cir. victory fo r freedom of expression, another ad in which she instead 1987), the court ruled in favor of the free from state influence." •

The U.S. Court of Appeals fo r the dents' First Amendment rights. The Eighth Circuit stood by its opinion decision was the first court of ap- . that schools have a right to review peals decision ever to approve an even unofficial student papers before existing policy of prior restraint. distribution, and the censored stu­ The students had argued in their Minnesota dents and their attorneys decided not request fo r rehearing that the cases to take the case to the Supreme the court had relied on in deciding Court. their case all dealt with official In August, the full court of appeals school publications and assemblies. refused to re hear the case Bystrom v. Tour de Farce was different, they High school Fridley High School. 882 F.2d 747 argued, because it was not school (8th Cir. 1987), brought by the stu­ sponsored or endorsed. The court, newspaper dent editors of the underground pa­ apparently, disagreed. per Tour de Fa rce distributed at Debbie Mancheski, assistant exec- . Fridley High School in suburban utive director of the Minnesota Civil loses case Minneapolis. A three judge panel of Liberties Union, said the case was the court ruled in June that prior not appealed further because "Our review by school administrators of chances of making bad law were so alternative student papers did not much greater than our slim chance of constitute an abridgement of stu- winning."

8 SPLC Report Winter lQ87·88 �OURTS New]ersey Incredible libel suit filed by administrator

Journalists aU over New Jersey the courts. The spoof privilege was may gain increased protection from obviously the most applicable one to libel lawsuits as a result of a suit the case, he commented, but that did filed by college administrator Ann not mean it would be used by the Wilorcline Walko against the Kean College In� New Jersey court. dependent's annual spoofissue. The "chilling effect" the lawsuit Have a problem? The student newspaper's 1985 par­ has bad on the newspaper coocerns ody issue, called the Incredible, in­ both Mack and Kathy Burns, attor­ Want to Rap? cluded a satirical advertisement for a ney for the student group that phone fantasy service and listed funded the spoof issue. Burns said Call Whorcline Walko, Assistant Dean of the School that the Council for Part-Time Stu­ of Education, and other school offi­ dents, whom she represents, has re­ cials among the sex staffers. Walleo fused to fund an issue since the suit at 687-SEXY filed a $1.7 million lawsuit in state was filed. "The students are paying court for libel, invasion of privacy dearly ... to defend something that is ANYTIME and intentional infliction of em� frivolous," Mack said. He argued (or good phone sex tional distress. that the studen t paper would have a In their defense, the students hard time attracting journalists be­ Featuring: claimed that because the issue was a cause the threat of libel suits would spoof, the ad could not be considered limit subject areas the paper felt it Janice Murray a false statement of fact, a prereq­ could discuss. A spoof, he said., <4is uisite for proving Libel. No reasona­ something a college paper is entitled ble person, they asserted. could to do ....This takes away something Ann Walko possibly have taken the ad seriously, jmportant." Ann Wal1co's attorney so the lawsuit is unwarranted. Proof could not be reached for comment. Steve Gutlman of this, the students said, was the fact Burns and Mack were both quick that Walko could find no witnesses to note that the Independent had Matt Lynch to say that they thought less of her as printed an apology concerning the a result of the ad. phone fantasy ad in the issue foUow­ This is the first time New Jersey in the spoof courts have examined a satir�libel Mack said he expected a decision case. I t is also the first time they in December on the students' motion The ad in question have considered a student newspaper to have the case dismissed. Terry case. David Mack. the attorney for Rose, a paralegal worldng on the lndependent editor Nannette Strehl . case, said Walko is expected to a� said he is concerned that New Jersey peal if she loses. "We're not quite state law may not provide for the sure what her motivation is," Rose She added that the vast majority establishment of a spoof privilege in said.• of experts consulted by the MCLU advised against pushing the case any further. The American Civil Liber­ ties Union attomey who had been monitoring the Hazelwood School JIiINGS To Do 'To�A."I', District v. Kuhlmeier case said, Mancheski, according to that the f. J..\€.E/ W lil-l �C>'TD&�A-'J:'I-tE'£s A-T J I � "3 (J demeanor of the Supreme Court was very much against student press 2. €.p l-ro�/ AL COLlJ�N \)£�L.O�e: rights. TODIl4

Go TO CoO� Fo� LtB�L... SO l r Mancheski said she was also told 3. that several similar cases with cir­ cumstances more favorable tban those at Fri dley High could soon come before the Supreme Court. In I the end, Mancbesld said. they decid� �

ed to limit the damage of bad law to -.�- - the Eighth Cireui t.. --/

Wlnte( 1987-88 SPLC Report 9 CONFIDENTIALITY Ne w Yo rk J oumalist subpoenaed, but does not testify: testimony not needed after dispute settled

Al though he said that he was an­ in-

The New York state shield law, which protects professi onal journal­ ists fr om having to reveal confiden­ tial sources or information in coun proceedings, would probably not

cover a student journalist like Frisk . A Nassau County, N.Y., state court judge ruled in May 1986 that a student journalist was not covered because his newspaper did not meet the requirements of a newspaper as defined by the shield law. Th at defi­ nition requires that in order fo r a publication to be con sidered a news­ paper, it must be pri nted at least once a week, and have a paid circula­ tion. The Fulcrum is published bi­ monthly during the school year and has a freecir culation.

Furthermore, Mervis has added that the shield law only protects journalists who attribute quotes to unnamed sources. Therefore, even if he had been a professional journalist,

10 SPlC Report Winter 1987-88 CONFIDENTIALITY

Frisk would not have been protected Maryland under the shield law, because he named Margaret Wingate specifica1- Iy : _ . Anita Knopp Doll, adviser of Th e Fulcrum, protested the involvement r of a student journalist in the hearing, Staffsu rrenders negatives -, saying. "I can't believe the county's case against the teachers hinges on - the testimony of a neophyte journal­ The students on thestaff of West­ the government, now that it has ist writing in a student publication. minster high school's newspaper, fo rfeited its negatives. r Whatever benefit Tom can provide Tb e Owl, recognized what they con­ On the othe hand. Gene Bracken, to Mr. Mervis can 't outweigh the sidered to be an oppoI1uruty to help editor of The Carroll Co unty Times, that __ long-term damage it wiU cause with­ somebody out when tbey turned in said fo r his paper, the concern in the campus community." photographic negatives of a Ku Klux of being viewed as an arm of the Mark Goodman, executive direc­ Klan rally to the Carroll County, state's attorney was one of the very ta ' tor of the Student Press Law Center, Md., s te s attorney's office. reasons The Times refused to obey The rally, l on ptem r 12, s mmo s. "_ agreed. He said, "Considering the 1 7 he d Se be the u n near Manchester, was also covered - subpoenas that the county attorney by a ocal bas repoI1edly issued fo r similar in- l newspaper, Th e Carroll USome institutions should - formation in this case, the subpoena Co unty Times. Because Maryland of Thomas Frisk seems unnecessary Grand Dragon of the Ku Klux be able to call them as they and suggests a belittlement of the KJan's Invisible Empire, Roger Kel­ see them - such as the rn position of the student journalists ly, fa ces one count of bu ing a cross unbridled fr ee press. The involved. " or another religious symbol illegally The assistant county attorney saw at the rally, State's Attorney Thomas press still has responsibili­ - it differently. Because Frisk had writ­ Hickman issued an administrative ties, though, and we do our ten anicles which said that fa culty summons for the pictures. However, members planned to cut office hours best to exercise those re­ - Th e Carroll County Tim es refused to - to a minimum after spring break, comply. sponsibilities. I don't write Mervis thought tbe subpoena was According to Cathy Berry, adviser fri volously, and I don 't necessary. He said that he was not at fo r Th e Owl, the students on the all col\cemed about the public's per­ staff discussed The Tim es ' decision. expect the state's attorney ception of the involvement of a "We, as a class, talked about our to issue summons fr ivo­ _ _ student journalist in the hearing. rights as American citizens. We, as a lously. " "We had to balance that risk [the staff, fe lt that if we as citizens had Gene Bracken - - public's reaction] with the risk on the something to show to help somebody Editor other side - that the professors were we would. We fe lt our First Amend­ possibly considering cutting off ser­ ment rights would not be violated," Carroll County Times vices during negotiations. It was the she said. interest of.one student [or} the inter­ Berry added that the staff had "It's hard," he said. "I won't be est of all," he said. decided, in part, to tum in the neg­ real critical of high school {students]. However, the JaUY 23 hearing nev­ atives because they did not wanI to I wouldn't have done it, no. It was er took place. Shortly before it was be issued an administrative -sum­ an infringement." He went on to say scheduled, contract negotiations re­ mons, should there be a fe deral in­ that if the state's attorney's office sumed. The hearing was postponed, vestigation. Even so, she emphasized had wanted photographs, it could and a tentative , agreement was that the students did not feel at all have hired someone t

Winter J987-88 SPLC Report J 1 ADVERTISING

California Condom ad ban leads to policy change

The dust is finally settling in Glen­ fined as publisher by the policy and said the policy as w written to de­ dale, Calif., after a five-month battle it gave the principal the right to scribe the appropriate role of the between school officials and high delete items fr om the paper without district in the student paper and, he school journalism advisers over stu­ guaranteeing students the right to hoped, simply defined the status dents' attempt to print a condom ad appeal. quo. in their school newspaper and the The policy also prohibited stu­ Lind expressed special concern new publications policy the ad pro­ dents from distributing material over the lack of an appeals process in voked. anonymously, a provision retained the case of censorship by the princi­ "I never expected it to cause such fr om the old policy, and fr om en­ pal. She said she did not object to an uproar," said Diane Bell, adviser dorsing political candidates. Crit­ the principal being invol ved in the to the Hoover High School Purple icism of the school, the policy said, paper but argued that his word Press. Her students wanted to print had to be constructive. Journalism should not be final. She also express­ an amended version of a Planned advisers had to send aJl "questiona­ ed dislike fo r the policy's definitif)n Parenthood ad advising the use of ble material" to the principal's office of the paper's role as purely educa­ condoms to prevent the spread of fo r approval. "Questionable materi­ tional and offical. If it was purely AIDS in an issue that came out the al" was not defined in the policy. educational, Lind noted, the admin­ week before the prom. She told her istration could stop its publication, principal their intentions and he because it was possible to teach jour­ okayed the ad. Then the local media Journalism advisers had to nalism without publishing a paper. learned of the ad, and the publicity An official vehicle of communication that ensued sparked a controversy. send all "questionable would not teach journalism, Lind Before the paper came out, the ad material" to the principal's argued. had been nixed by district superin­ office fo r approval. "Ques­ Lind said she seriously considered tendent Robert Sanchis who claimed resigning if the policy was passed in that it advocated sex between mi­ tionable material" was not the proposed fo rm. "It is an impor­ nors, a violation of Californ ia's stat­ defined in the policy. tant battle to fight, but I do not utory rapct law. The law says that believe it is my battle in life to engaging in sex with a woman under fight," she said. Nevertheless, she the age of eighteen is rape, regardless wrote SPLC director Mark Goodman Material that threatened the "health of the circumstances. and asked fo r his help in defeating and safety" of students was banned Bell fe lt that because of the contro­ the proposed policy. "By bucking the fr om the paper. This was a reference versy the ad's message reached many board, I am committing career sui­ to the high fa ilure rate of condoms in more people than it would have had cide," Lind observed. Meanwhile, preventing the spread of AIDS, the Purple Press printed it. She said the board tabled the policy fo r later according to Vic Pal1os, director of it made the school board come to consideration. public information fo r the Glendale grips with the issue of AIDS educa­ Goodman's analysis of the pro­ School District. The condom ad was tion by posing the question, "If you posed policy was presented at a expressly fo rbidden. won't let us run this ad, what are you school board meeting in early Octo­ Pallos said the board was con­ going to do instead?" Sanchis said ber, and the superintendent sent it cerned with the possible lawsuits that the condom ad was a "rather meek" on to the attorney who had fo rmu­ could arise from the condom ad. No attempt at AIDS education and that lated the policy. On October 20, the subject was expressly banned from the district should have an AIDS policy was again presented to the discussion, he emphasized. He ar­ education curriculum in place by the board with fo ur important revisions. gued that the principal's approval fa ll of 1988. An appeals process was guaranteed was an important safety catch fo r However, the controversy sur­ to students whose articles had been student reporters "just learning the rounding the ad also prompted the censored by a principal, and the responsibilities of journalism and of district to amend its policy on stu­ language of the policy was softened life. " dent publications and their distribu­ so that the principal now reviewed tion. The proposed policy, presented Judy Lind, journalism adviser at "disputes over inclusion of material" to the board fo r approval in late neighboring Glendale High School, rather than all "questionable materi­ September, said that the primary agreed that the condom ad was inap­ al." Students' rights to endorse polit­ purpose of the paper was educational propriate but objected to the ambigu­ ical candidates and distribute and its secondary function was as an ity she perceived in the new policy. literature anonymously were re­ official vehicle fo r the school to She said the board had created the stored. The board passed the policy communicate with students and their policy as a way to increase control that night with a promise to "leave parents. The school's role was de- over journalism advisers. Sanchis the door open ...fo r further consider-

12 SPLC Report Winter 1987-88 I: ADVERTISING

ation of people's concerns," accord­ Ne w Yo rk ing to Lind. "It is an improvement, and I aIr . preciate their willingness to reconsid­ .. er," Lind said and added that she is no longer considering resigning. She still sees problems with the policy, however, especially in the fa ct that it Staff members of a New York doesn't mention that the paper's university newspaper, The Torch , are source of funding is advertis­ main fuming over what they consider to be ing. Lind said that could allow the an unreasonable funding policy, and School to stop production of the the flames surrounding the issue are paper by denying it the right to not likely to' be extinquished unless a accept advertising and cutting off its change occurs. funding from school sources. . According to Lisa Jordan, editor� Many of the objections Goodman in-chief of the St. John's University raised, including the extension of student publication, the budget set­ · school authority implied in·the up is "archaic." Jordan explained · "health and safety" clause and the that the president of the student Policy's definitions of the proper Tole government appoints a budget com­ . . Of the paper in the school were not mittee chair, who chooses other addressed in the new policy. The members to be on the committee. . board also added in the revision a The candidates that the chair must requirement that all material to be · choose from are supposed to be · distributed in the immediate vicinity representatives from each category of · of campus be submitted to the school the organizational groups on campus. fo r approval · three days before the In tum, the committee decides upon proposed distribution. the allowances fo r the various orga­ ernmen1. As a result, the newspaper Sanchis said "only time will tell" nizations. is 40-45 percent advertisements, and if the students are sufficiently re­ It's no mystery to Jordan that this according to Pascucci, it looks like a sponsible to make the amended poli­ year the Torch 's budget was cut well "pennysaver. " cy work. below its usual $14-20,000 and that Pascucci commented that the stu­ Lind's journalism students, who although the Torch 's managing edi­ dent government constitution does produce the award winning Glendale tor Cathryn Pascucci submitted a not give it the authority to issue a High E:xplosion. also have their letter of nomination, there aren't any line of credit. Although the govern­ doubts about the new policy, al- representatives from the Torch on ment can issue a loan, she said that · thougb they admit they have not yet the budget committee. the organization has to first apply fo r . seen the latest revisions. Jordan and last year's editor-in­ it. "A lot of things we accomplished I chief, Tom NcNiff, claimed that the Staff members have initiated don't think we could accomplish decrease is linked to the fa ct that the meetings with the Torch 's adviser, tunder the new policy]" said Explo­ newspaper supported an opponent of · student government officials, the sion editor Mihran Berejikian. "We the present governing executive vice president of student devel­ like to expose things." Under the old board last spring. opment and the assistant to the vice policy the administration couldn't Torch staff members said that they president in an attempt to change the tell the students not to print things, have not been issued a real budget way the budget is determined fo r the Berej ikian explained, "now it must this year, but what is called a "line of newspaper. go through so many channels before credi 1." They have contacted several Jordan said that it is difficult to be it can be approved." He added, "It's banks concerning the terminology, in the position of writing about the not going to make the bad paperS and have concluded that "line of people who determine your budget, any better, but it will hurt the good credit" is ultimately equivalent to a and vice versa. "We're not fau lting ones." Berejikian said he would not loan, and could include interest. the people," she said. "We're faulting have printed the condom ad because Concerned that the paper ran the the situation." . it was sensational and. promoted teen risk of having to repay the line of She and other staffers would like sex. "I personally believe (an ad) credit, Pascucci asked the student to see a set percentage of the student won't help," he stated. government president, Chris Orlan­ activities fee going straight toward a "Part of education is to explore do, fo r written confirmation that the pUblications fe e. She added that issues," argued Ex plosion supple­ government would not have to be they'd also settle fo r the administra­ ment editor Natalie Brunner. She reimbursed. She said Orlando never tion deciding beforehand on the said journalism students must learn gave her the written statement she amount received. to inform, so whether the purpose of had asked fo r. A result of one of the meetings is the paper is educational or informa­ The Torch staff decided it would that a co mmittee has been fo rmed to tional, the outcome should be the rather solicit advertisements than look into the possibility of stable same.• pay back a loan to the student gov- continued on page U

Winter 1987·88 SPLC Report 13 CENSORSHIP Ne w Yo rk continuedfr om page J3 funding. The members of the com­ mittee have not been decided upon yet, but Pascucci has indicated that Yearbooks recalled she, Jordan, and Torch news editor Scott Donaton intend to be on it. Student Government President Chris Orlando preferred not to com­ "It was censorship, but censorship about the quote. ment on the subject, as it is under with a purpose," said student editor Although Smith stated that the discussion. The attorney fo r the stu­ Renee Berman of the incident that collection of the books and the re­ dent government was also unable to occured last spring at Tuckahoe High moval of the lines were not seen as be reached fo r comment. School in Tuckahoe, N.Y. censorship by either the students or Pascucci doesn't see the issue as a In April, the 1987 edition of the the student editors, Leary disagreed. matter of one party being totally school's yearbook, The Stylus, was "It was definite censorship, but it right or totally wrong. "They're distributed - and immediately re­ was censorship done to help," he afraid of losing control over the called by school officials. The call commented. money," she said, "And we're afraid back of the books was due to a page While Leary condoned the act, he of losing control over the newspa­ in the yearbook containing lines con­ expressed disapproval fo r the man­ per.". sidered to be racist. The page was ner in which the situation was han­ re printed, minus the offensive lines, dled. "They did it abruptly. I agree California and the books were redistributed. that [the quote] should have been Principal William Smith claimed taken out, but the administration that the decision to cut the lines was fa ced the school in the same way a an editorial one. parent scolds a child," he said. Vice ad ban The lines read: "Negro boys with Cathy Conrad, the co-editor of long black coats, old beat up hats, Th e Tiger 's Roar. disagreed with the suit dropped black eyes, long fingers, sunglasses removal of the lines. She wrote in an without lens, knives in hands. That's editorial, "Gee , taking out the page, A case in California involving how we like them. that's a good attitude, 'out of sight, banned alcohol and tobacco ad­ "Black - like our coffee. How do out of mind.' '' Her article also con­ vertising at Mt. San Antonio Col­ you like them? Vanilla dipped in tained the quote that was just pulled. lege has been dismissed after three chocolate - like our ice cream Conrad's editorial was printed in years of litigation. bars?" the paper, but never distributed. The Two students, their newspaper Originally printed in a section of article came to the attention of the adviser and a private citizen filed the yearbook set aside fo r students to superintendent and the principal, suit in 1984 against Mt. San Anto­ insert messages to other students, the who met with the paper's editorial nio College Pr esident John Ran­ lines were anonymously written. board, whiCh included adviser dall and the school's board of However, some students claim that Marsha Fox, English teacher Richard trustees because they had ref used the first two lines of the quote were Gross, Conrad, and Leary. According to amend the advertising policy of taken fr om a poem, which they could to Leary, the board met in order to the school's newspaper, the Mo un­ not identify. "help Conrad rewrite her editorial" Joseph Leary, Stylus staff member taineer Weekly. The students and in such a way that she wouldn't fe el adviser declared that the policy, and co-editor of the school newspa­ that her expression was being lim­ which fo rbids the publication of per, Th e Tiger's Roar, said that the ited. advertisements fo r alcohol and lines were somehow by-passed, and Leary said that Conrad's editorial . tobacco products, is a fo rm of that "somewhere along the line, was rewritten twice, neither time to prior restraint censorship and is somebody had to have missed their the satisfaction of the administra­ unconstitutional. A pr eliminary job." Berman said, "We saw it, but tion. After the second revision, Leary injunction, which would have al­ we didn't think anything of it. We said that Conrad left the school, lowed the paper to accept such were lookIng fo r typos. -I t didn't thinking that her editorial was advertisements until the dispute occur to us that it was going to make "fine." However, some of the re­ was settled, was denied by a Los such an uproar." Smith fe lt that the maining mem bers of the editorial Angeles Superior Court judge in lines were intentionally slipped past board, including him, still decided to January 1985. the student editors. pull the piece, and replaced it with The policy will remain un­ Leary added that all but two of the an announcement reading, "Congrat­ changed, however, and the ban yearbooks were recalled. Copies of ulations Seniors." will stand, because the students no the page were circulated within the According to Principal Smith, longer attend the college and have community, which led to meetings "The whole incident overall has had decided not to pursue the suit. between Superintendent of Schools a positive impact on the school and The current editors of the Mourai­ Anthony Mazzullo and Tuckahoe community, because it has made residents. Accordi ng to Leary, mem­ neer Weekly do not wish to chal­ people much more sen si tive to is­ lenge the policy in court .• bers of the com munity had threat­ sues, communication an d ened action if something wasn't done relationships." •

1

Illinois Student publication is literature, not litter

sa y

A Chicago principal rerently Lane if our students are not reading ly misinformed a bou t the unlawfulness learned that a litter problem on cam- it," she said. of the ban. Had she pus is not reason enough to trash a Mark Goodman, executive direc- been aware, said Carson, she would student newspaper. tor of the Student Press Law Center not have barred the publication. Maude Carson, principal of Lane in Washington, D.C.,-disagreed with "She thinks the content of our paper Technical High School in Chicago, Carson's reasoning. "School officials is excellent - and she always has," m., said she was concernoo about the can't prohibit students from distrib- said Hodge-West. amount of newspapers that cluttered uting their newspaper during school Adolfo Mendez, staff member of n the school's campus. So in early June hours," he said. "The litter rationale Ne w Expression, and a stude t at she issued a ban on the city-wide has been raised by school officials in Chicago's Kelvyn Park High School, newspaper New Expression. the past and the courts have rou- was «glad, bu t not surprised" that New Expression has published ar- tinely said ' that' s not a good enough the ban was lifted. He said that he tides on controversial subjects such reason.' " fe lt confident about the issue, but

as date vlolen�, teen sex and drug The ban, however, didn't last long. also afraid that it would turn into a use. It is produced by Chicago-area The school board lawyen came to court battle. students who work in the offices of the same conclusion as Goodman. "1 didn't want conflict with Lane Youth Communication, a not-for- "There can't be a prohibition of Tech," he said. "I just wanted stu­ profit organization. With a circula- distribution of a general interm pub- dents to be able to read New Ex ­ tion of 120,000 , Ne w Expression is lication," said board spokesperson pression. distributed in several private schools Robert Saigh. By the end of August, Hodge West comment� on behalf and all of Chicago's 64 public high the ban had been lifted. of students, saying that they were at schools. Carolyn Hodge-West, the exec- no poi nt concerned abou) the inci­ Carson said that copies of the utive director of Youth Communica- dent, because they knew they were publication are often fo und littered tion in Chicago, did not think that right - that the paper could not be outside the school building. "If they the ban was issued because of the legally banned. The law just backed are in every other school in the city, controversial content of the publica- them uP. she said, and as a result, I don't see why they have to be in tion . She saidthat Carson was mere- they fe lt "quite accomplished.". ,------Arizona Last April, when K.appa Sigma It didn' t take long fo r the police fraternity mem bers reaJi2� that to trace ODe ·of the cars to the they had mistakenly printed an ad Kappa Sigma fra ternity house, Frat nabs paper in the Daily Wildcat a week early, where the papers were later photo­ Staff members of the Daily they schemed up a plan on how to graphed by a Wi/deal staff mem� Wildcat at the University of Ari- retrieve the papers. Several mem- ber. The two Kappa Sigma

zona weren't laughing last spring bers drove to the printer' s, and, fraternity brothers who were sus­ n at what they considered to be a posing as replaceme ts fo r the pected of masterminding the plun­ practical joke that got out of hand. regular driver, they loaded up derage were recommended fo r

In fa ct, according to news editor their cars with some 12,500 copies suspension and ordered to r esti­ Paul Allvin, they were "pretty of the Daily Wiltkat. hot off the tute $3,952 by the UA dean of outraged" by the incident. press. students.•

Winter 1987-88 SPlC Report 15 CENSORSHIP Oklahoma Paper re-established after an II-year fight , but former editor says battle may not be over

Students at Tulsa Junior College in Oklahoma will finally have an official school newspaper to call their own next semester. And according to TJC student David Arnett, the 10- year battle fo r the paper has proven to be a valuable one. In 1971, when the Horizon was first published, no written policy on how the newspaper was to function existed. Two years later, James Tid­ well was hired as a journalism in­ structor/newspaper adviser. Under his supervision, the paper grew to a circulation of 4, 000, until 1976, when it ran an editorial that en­ dorsed a position conflicting with that of the administration. The edito­ rial expressed support of the place­ ment of a state correctional fa cility near the college's downtown campus. Shortly afterward, the school cre­ ated an official editorial and proce­ and on September 9, the TJC Board dural policy regard ing the Horizon, Lion's club, and the Optimists, Ar­ of Regents approved a plan fo r a which asserted that the paper was a nett revealed the fa cts surrounding student newspaper submitted by the "laboratory exercise" in which "final the issue. In addition, he attended school's Policy Committee. decisions regarding content will con­ every meeting of TJCs Board of Regents subsequent to his dismissal tinue to be made by the adviser." ' The publication's funding will petitioning fo r a school newspaper. The policy also fo rmally fo rbade the come primarily from a new student Although the members of the Tul­ publication of letters-to-the-editor. fee, which will add 25 to 50 cents sa organizations were supportive and In 1985, the Horizon 's circulation more per credit hour, from advertis­ encouraging, it was the Oklahoma was limited to 200; by 1986, it had ing and from the regular TJC budget. Legislature who, in June, helped the been supressed to 100, and copies of A Publications Advisory Board will cau in perhaps the biggest way by it could not officially leave the jour­ � consist of a "faculty adviser the passmg a resolution included in a nalism classroom. editor, the chairperson of Co�mu­ higher education appropriation bill. These restrictions incited then-edi­ nication Services Division on the The non-binding resolution read: tor David Arnett into action. Along mpus where the newspaper office "It is the intent of the Legislature � with delivering a 20-page proposal IS located, the Provost fo r Student that institutions of higher education fo r a student newspaper to the col­ Services, the president of the Student within the Oklahoma State System of lege's president, Arnett published an Association from one of the cam­ Higher Education respect the First editorial also calling fo r a free stu­ puses, the president of Phi Theta Amendment rights of the students of dent press. Shortly afterward, he was Kappa from one of the campuses, such institutions, especially with ref­ fired fr om his position as editor. The and a representative from the Fac­ erence to the press of student news­ next editor, Dana Mitchell, was also ulty Association." It will create fired after only a month fo r "ques­ papers." guideli�es fo r production, which will tioning policy." The resolution continued to say, be subject to the Board of Regent's Rather than give up, Arnett publi­ . "The Oklahoma Legislature will not approval. clZed the situation in whatever way tolerate abridgement of such free­ However, Arnett says the battle is he could. He created the Indepen­ dom." den t Studen t Ne ws, a newspaper not necessarily over. "There are whose content foc used mainly on the Foll owing the passing of the reso­ some holes (in the plan) which could journalism situation at TJc. In dis­ lution, the TJC administration com­ allow for future administrative re­ cussions with members of organiza­ missioned a survey of some 300 pression," he said. He added that in hons all over Tulsa, including the students. The results said that 90% of October, he wrote to the Board of Jaycees club, the Kiwanis club, the them fa vored a student newspaper, Regents, req uesting officially that

16 SPLC Report Winter 1987-88 CENSORSHIP

they consider changing the newspa· is left with little choice, as the re­ similar struggles is optimistic, and per policy, but his request was is· gents would not consider his "helpful indicates his pleasure in the outcome nored. recommendations." If financial back­ of the battle. "In retrospect," he said, Arnett intends to continue pub-­ ing stabilizes by the semester's end, "it is not often we have a chance to I lishing the Independent Student Arnett plans to expand the In depen­ effect such change in the system. We Ne ws at least until the end of the dent StudeD t Ne ws, making it into a ought to jump at it then. If you stand semester. He said that he doesn't publication that would be available flat-footed on principles of justice, intend to be in direct competition to all college students in Tulsa. no one can ever defeat you - even­ with the new TJC paper. but that he His advice to students involved in tually.". Arnett wins press freedom award

David Arnett, the fo rmer editor of the Horizon at Tulsa Junior College, has been awarded the 1987 Scholastic Press Freedom Award. The award. sponsored. by the Student Press Law Center and the National Scholastic Press Associa· tinn/Associa ted Collegiate Press, is given each year to the high school or college student or student news medium that has demonstrated out­ standing support for the First Amendment rights of students. The award was first given in 1984 to three high school students who re­ cently took their battle fo r student press freedom to the Supreme Court in the case Hazelwood School District v. Kuhimeier. In selecting Arnett fo r the award, SPLC Executive Director Mark Goodman cited the tireless efforts of the student journalist in u sing wide-ranging public pressure, in· eluding local and national media coverage, to achieve press freedom fo r Tulsa Junior College students . .. Many s tudents, faculty mem­ bers and concerned Oldahomans had a part in this success story," Goodman said. "But David was the catalyst that prompted TJC officials fe ated the creation of a review freedom through writing or actions to back down after a decade of comm ittee created by their school's and the ability to raise difficult and fighting against a free press. And he student government, and the staff necessary issues in news coveraae. did it all without going to court." at the student newspaper Sword Nominations of any individual, stu­ The 1987 Scholastic Press Free­ and Sh ield at South Plantation dent newspaper, magazine, year­ dom Award was presented to Ar­ High School in Plantation, Aa., book or broadcast station will be nett on November 1 at the whose outstanding support for press accepted . Associated Collegiate Press/College freedom and coverage of controver­ Nominations should clearly ex­ Media Advisers national conven­ sial issues included a story on ster­ plain why the nominee deserves the tion at the S1. Louis Sheraton Ho­ iod use by high school students that award and provide supporting tel. was picked up by local and national materials. All nominations should Goodman noted the high level of media. be sent to: competition fo r the award this year. Nominations fo r the Scholastic He mentioned other outstanding Press Freedom Award are accepted Scholastic Press Freedom Award nominees included the yearbook until A ugust I of each year. A Student Press Law Center staff at Montclair State College in nominee should demonstrate a re­ 800 18th St., NW. Suite 300 New Jersey, who battled and de- sponsible representation of press Washington, DC 20006 •

Winter IQ87·88 SPLC Report 17 ADVERTISING California Angry adviser ousted; claims harassment

Gary Daioyan used to be the ad­ viser for The Lincolnian at Lincoln High School in Stockton, Calif He also used to teach journalism, En­ glish and typing. But fo r now, having first been reassigned and then fired., he does none of these things. The controversy began during the 1979-80 school year with the devel­ opment of problems between Da­ loyan and Principal Dean Welin concerning the use of space and facilities fo r school pUblications. It worsened in 1982, when Welin ex­ pressed displeasure with some of the content of the newspaper, and in­ fo rmed Daloyan that reassignment of the position of adviser was being considered. Then, in the 1982-83 school year, Daloyan complained because no budget money had been allotod to the newspaper. Consequently, the funds were restored to 60 percent of their previous levels. That same year, Daloyan was told that he would removed as a permanent certified In the meantime, in addition to be observed in the classroom fo ur employee of the district. The Com­ filing a workers' compensation suit times, instead of the usual two times. mission said it was " unfo rtunate that against the district fo r stress and Feeling harassed, Daloyan filed this situation was brought about by physical inj uries sustained on the grievances under the teachers' col­ respondent's transfer from his jour­ job, Daloyan bas also filed a $9 lective bargaining agreement, which nalism assignment and, without such million civil rights suit against the the superintendent denied in May transfer, respondent might have district's trustees and administrators, 1983. Daloyan appealed the denial to taught fo r many, many years without which is expected to go to coun arbitration, and at the same time, the kind of problems described, the sometime ,after the first of this year. was informed that he would be reas­ Commission is convinced that even signed to Lincoln Senior Elementary if respondent is victorious in his law While he continues to patiently School to teach English, typing and suit, his disdain for the District and make his way through what he calls, one period of journalism. disillusion with the teaching profes­ "the lepl muck. of court bureacra­ On May 12, 1987, a three member sion willr p event him from regaining cy." Daloyan is interviewing fo r col­ Commission on Professional Compe­ the proper perspective on his role as lege positions and free lance writ­ tence ruled that Daloyan should be a teacher of young people." ing...

Missouri law went into effect on September accessible to students. Also, gov­ 28. ernmental bodies must now make Among the revisions included public records available for copy­ by the new law is the expansion of ing fo r a reasonable fee . The fine Brief the definition of "public govern­ for violating the law has increased mental body" to include "any from $100to $300. On July 15, just two hours body, agency, board, bureau, before the close of the 1987 legis­ council, commission, committee, The revision of the law was lative session, the Missouri Legis­ board of regents or board of cu ra­ lauded by Attorney General Wil­ lature major revisions to passed tors of any institution of higher liam L. Webster, who said, "This i,ts "Sunshine Law," which will education, supported in whole or has been needed fo r a long time. not only affe<:t professional jour­ in part from state funds." As a . .. Those who believe in open nalists but student journalists as result of this change in the law, government, accessible to all Mis­ well. Signed by Gov. John Ash­ meetings, records, votes, actions sourians, should join with me in croft on July 1, the new Missouri and deliberations of public gov­ praising the Missouri General As­ Open Meetings and Open Records ernmental bodies will be more sembI ....

18 SPLC Report Winter 1987-86 FREEDOM OF INFORMATION

Indiana Former Ball State University reporter continues to fight fo r access to meetings

Students at Ball State University Meanwhile, she said, "The Universi· they certainly ought to be able to in Muncie, Ind., appear to have won ty was trying to rush the appeals find out what hap pened." The people a battle but are baving a hard time process and we were kind of stalling can't do that unless the press can get continuing the war to gain access to fo r time to find some money - an y in, Goudy claimed. a university committee's meetings. money." The universi ty closed the meet­ Bob Vitale and Diane Goudy, fo r. In October, Goudy took her case ings, according to Goudy, so that mer student reporters fo r the Ball to the Indiana Civil Liberties Union. people would not become "prema­ State University Daily News, sued However, the attorney interested in ture ly angry" at the committee's de­ the university in March of 1987 fo r taking her case had pneumonia, and cisions. Jon Moll, the university'S barring them from Calendar Transi­ she has had to wait fo r confirmation attorney. said it is just as vali d to ask tion Committee meetings, which that the ICLU wi ll take on her case. why a meeting should be open as claim were closed i atio ,"\ why it should be closed. He pointed they in v ol n (r of the Indiana Open Door Law. The out that open co mmittees were re· Calendar Transition Committee was \\\\ quired by the Open Door Law to - set up to recommend a plan for announce meetings and agendas 48 implementing the University Board bours in ad vance. Opening all meet­ of Trustees' decision to convert Ball ings, he said, would bog down the State from a quarter system to a decision-making process. Moll also semester system. The school agreed stated that the Open Door Law was when the suit was filed to postpone intended to open governmental Calendar Committee meetings until meetings and thus was not well-tai­ the case was tettled. The students lored to the university. also charged that the university Goudy said she thinks the Univer­ wrongly denied them access to the sity is working to overturn an earlier names of candidates fo r several cam­ decision, also involving Ball State, pus posts. that expanded the types of meetings In July, a state court judge issued covered by the law. The school, she an opinion that the students had a claims, recently lobbied the state right of acCess only to the names and legislature to defeat an amendment records of employees of the universi­ to the Open Door Law that would ty. not candidates, but agreed with impose a $500 fine fo r violating the the students that "there does not She said she has every reason to law and broaden the definition of seem to be any public policy reason believe they will. committee meetings required to be why the Calendar Transition Com­ The university, Goudy said, is open. Dr. Tim Perry, thCd university mittee should not have open meet­ now claiming the work of the Cal­ official in charge of monitoring pro­ ings." endar Committee is done. She as­ spective state legislation that would Shortly after that decision, the serted that the committee was not affect the university, claims that the students' attorney. who had taken nearly finished with its work when sch ool did not lobby for or agai nst the case on contingency basis, mean­ the two sides agreed all Calendar the bill, as such action is fo rbidden ing that his fees would be paid by the Committee meetings would be post· by state law. He said the university university if the students won , an­ poned. She said she thought the supported the version of the amend­ nounced that he could not continue uni versity had simply reassigned the ment which eventually passed. with the case until his fees were paid. work to other committees. Calendar Goudy said she was almost sure Even though the studen ts were win· Committee chairman Th omas that she would win her case as long nina. they already owed the attorney KaluzynsJcj refused to comment. as she had a lawyer. The school, she $6,000 , and the school was planning Goudy said she refuses to drop her said, plans to appeal the case to the to appeal. The attorney explained suit because of the wider implica­ state supreme court if it does not get that his caseload was too great to tions a court decision will ha ve. a favorable decisi on. She explained continue without pay. Observing that the school is a state that she had no idea when the case Goudy. although she had grad· university supported by state taxes, would actually be heard on appeal uated in May. began to search for she said. "Any taxpayer oUght to be but that they might have to wait as another attorney to take the case. able to get into those meetings - long as a year._

Wlnfer 1967-88 SPLC Report 19 UNDERGROUND NEWSPAPERS

Texas Final tum fo r Twisted Times is settlement

In Texas, neither the school super­ � allowed the school officials to contin­ intendent, nor an attorney represent­ ue to review any alternative student ing two high school students will say newspaper prior to distribution. fo r certain what led to the sett1ement The case was to be pursued in of their case this fa ll. Furthermore, ��e.�\ f court by the students' attorney, all parties involved have agreed that � James Harrington, in mid-July, at the amount paid by the school to the �r ; which time the validity of the students will be kept strictly confi­ school's publication policy was to beI dential. 9:J1 ! re-evaluated. The settlement ends a controversy \(. �) " According to Superintendent Guy which in the fa ll of after ·�\i Gorden, the case didn't go back to began 1985, ,VI high school student Karl Evans was court because an out of court set­ suspended by school principal Jerry tlement was made. The settlement Kirby fo r distributing his alternative includes an undisclosed payment to paper at Bryan High School without JJ \ / . the students and the adoption of a receiving prior approval from the / \ � new publications policy by the school administration. The Twisted schooL TilI1e s criticized school officials, in­ In addition to other provisions, � �l ! cluding the principal. \� ' i the new policy gives the principal the When Evans appealed his suspen­ authority to prohibit distribution of sion to the Texas Education Agency, publications "which advocate actual the suspension was upheld, although and material insubordination toward the school district agreed to remove the school board or the Administra­ all references to the inciden t from tion or advocate illegal action or Evans' permanent record. disobedience to published rules on When Evans graduated in May Court of Travis, Texas, issued an student conduct adopted by the 1986, his sister Veronica became the injunction to the school, ordering school board." editor of the paper to keep the case that it could not enforce a ban on Both Harrington and Gorden from becoming moot material that "connotes insubordina­ claim that the students are satisfied In January 1987, the District tion toward the staff." The court with the outcome of the settlement .•

The u.s. Court of Appeals fo r or profane language sometimes at the Ninth Circuit will hear oral issue in alternative publication arguments on December 9 on the cases. The students' stated purpose constitutionality of prior review was a desire to exercise their First by school officials of non-school Amendment rights in the fa ce of sponsored publications distributed the "not-so-subtle censorship mes­ on school grounds. sage broadcast by the Renton Wa shington The students of Lindbergh High School District." School in Renton, Wash., ap­ Court decisions in the area of pealed the case Burch v. Baker prior review and re straint of stu­ Students appeal when a fe deral court judge, despite dent newspapers not published by strongly Criticizing the school's the school are mixed. The Seventh • prior review policy, upheld in Circuit Court of Appeals said such pnor reVIew principle a schoo]'s right to pre­ a policy is improper. The Second, view material before it is distrib­ Fourth and Fifth Circuit Courts uted. have said a prior review policy in Ninth Circuit The school had disciplined five could in theory be constitutional students for distributing an unre­ but rej ected the specific policies vieWed underground newspaper at presented to them. In the recent a 1983 senior picnic. The newspa­ Bystrom v, Fridley High School per contained the results of a case, the Eighth Circuit Court of survey which had asked students Appeals became the first court of to rate the teachers at the school, appeals to uphold an existing but contained none of ti:le vulgar prior review policy .•

20 SPLC Report Winter 1987·88 FOCUS: RELIGION Colorado Christian students sue La Junta High School says allowing magazine is endorsing religion

La Junta High School in La Junta, Amendment rights and violated Col- The school also says that the pa­ Colo., has become the third high orado law. per's Christian viewpoint on current school in country to be sued fo r The school board claims that it issues attempts to convert students limiting student distribution of the suspended students fo r "willful dis- to that view. Distribution of material Christian oriented magazine Issues obedience" in violating school poli- that proselytizes a particular religious and Answers on their campus. Ad- cies, not fo r exercising their First or political belief is prohibited by ministrators at La Junta claim that Amendment rights. district policy. However, that fa cet of the magazine is commercial and is According to the students, the the policy was fo rmulated only after intended to convert people to a cer- school banned the paper in part the controversy surrounding the stu­ tain religious viewpoint and have because of a subscription offer in- dents' right to distribute had already banned distribution of the paper. cluded in the magazine, which was begun. The school suspended three stu- distributed to students at no cost dents in February and March fo r The school argues that the subscrip- French says he believes this new distributing the magazine, and one tion offer made the magazine com- policy was adopted in order to allow official allegedly warned a fo urth mercial in nature. Distribution of the school board to stop distribution student that possession of the mag- "material designed fo r commercial of the paper on religious grounds. He azine was grounds fo r suspension. A purposes" is fo rbidden by a school says that such a policy oversteps the teacher informed one of the students district policy. powers of the school board as stated who had been suspended that distri- David French, an attorney rep- by Colorado state law. Fre nch also bution of the paper even off of resenting the students, disagrees. The claims these kinds of regulations school property would result in deni- magazine prints articles on current don't agree with Supreme Court rul­ al of an award as top student in her issues of interest to students, French ings which say religious speech is class, according to a complaint filed argued and added that the single protected by the First Amendment. in fe deral court by the suspended one-and-a-half by two inch subscrip- students. The students claim that the tion offer does not, in his view, make The school board. sa)!S .it believes school's action infringed their First the publication commercial. that the lawsuit is premature because _..... -- -..;-- the students have not yet completed the appeals process the school board policy provides fo r. The board claims it has not rendered a final decision about the students' objec­ tions.

Nonetheless, the school board ar­ gued that if it allowed distribution of the paper, it would appear to endorse the viewpoint in Issues and Answers, thus violating the constitutional ban on state establishment of religion. The board also notes that parents as well as students distributed the paper . - on school grounds.

French argues that the students have chosen voluntarily to distribute Issues and Answers. He says that to allow an activity the students have chosen could not be seen as endorse­ ment by the school. By banning distribution of the paper, the school is placing itself in a position of judgment, according to French. Al­ lowing distribution of anything that is not libelous, obscene or disruptive, he says, is "content neutral" regula-

continued on page 22

Winter 1987·88 SPLC Report 21 FOCUS: RELIGION

conl lnued (r om page21 enter. The students had been distrib­ uting before school in the locker lion and is acce ptable. French be­ area. They object, however. to the Issues lieves that and Answers was time as well as the place restrictions. banned fo r its religious content and Round Lake High permitted distri­ in an improper exercise of school bution before and after school and authority. during lunch in specified places French describes La Junta's policy around the campus. as "dangerous" because it excludes Students at both ls schoo felt the controversy from the school atmo­ restrictions on distribution were arbi­ spbere. "The core of First Amend­ trary and unreasonable and viobted ment values [is that} all things ' the rul� They were suspended and should be allowed in the public de­ Charlie Johnson, a student at Round bate," French avers. Lake High. was allegedly shoved by Steve Epstein, attorney fo r the his principal when the administrator schoo) administration, re fuses to attempted to confiscate Johnson's comment on the issues involved, copies of the magazine. Johnson's saying that "the press is not an record was later expunged of the appropriate forum fo r deciding some suspension, but the students at An­ of these extremely important social tietam still have the suspensions on issues." Epstein accuses French of their permanent records. Three An­ religion and for which French works. using the press to prom ote the view­ tietam students were suspended in Epstein says that he is very much point of the Caleb Campaign, whi ch May of 1986, Johnson in May of s s behind the school board philosoph­ prints Is ue and Answers and of the 1987. Rutherford Institute, a legal group ically and that he will have "plenty which deals with issues of freedom of to say" once the case is over.• The ad:ministration at Antietam claims that the students were sus­ Pennsylvania, Illinois pended fo r "direct disobedience" and that students never tried to express their viewpoint in a less Students want fr ee religion, confrontational manner. However, Bryan Thompson, one of the stu­ dents suspended, said that he fe lt challenge publication policies "[p]resenting a copy of Issues and A.tSwers to a friend at school is to me The religious magazine Issues and magazine is the first such request in a proven, tactful way of sharing my Answers is creatin g headaches fo r 10 years. The school's policy of re· religious fa ith with other students school administrators in Pennsylva­ viewing student materials before dis­ without fo rcing my views on others." nia and Illinois who are trying to tribution, administrators argue, Thompson claims to want to distrib­ balance what they see as a conflict means that anything passed for dis­ ute the magazine in order to "lead between the separation of church and tribution carries the school's stamp people to the Lord." The school state and the freedom of speech of approval. , --- seems to imply that there are other clause in th e First Amendment. Stu­ The schoo! also claims that stu­ ways fo r Thompson to express his dents at Antietam Junior High dents are a captive audience, re­ viewpoint. School in Waynesboro, Penn., and quired by law to be in schoo1 . The Round Lake High School in Round students argue that if they do not Round Lake High was accused in Lake, IlL, have sued their schools fo r have the right to freely distribute Johnson's lawsuit of creating a IDS­ infringemen t of the students' First Issues and Answers, the students are . toct policy specifically designed to Amendment rights. captive to "those particular points of prevent the di stribution of the mag· The students claim that allowing view approved by the school sys­ azine. School board members, them to distribute Issues and An­ tem." according to Johnson, met with swers. a monthly magazine which Antietam and Round Lake decid­ knowledge of the problem s at Round addresses current issues fr om a ed, despite their concern s about state Lake and created the policy that Christian perspective, could not be advocacy of religion, to allow limited limited the time and place of the construed as school advocacy of a distribution of Issues and Answers. distribution. Prior to tha4 Johnson particular religious point of vi ew. Antietam's attorney, Robert G. Han­ claims, the principal administered an The action is student initiated and na, said parents' groups probably unwritten policy that varied fr om the students want nothing more than would have sued the school had case to case. Robert Mesaros, princi­ to be let alone. They advocate a unrestricted distribution been allow­ pal at Antietam Junior High, also policy that would neutrally allow ed. Antietam �rmitted the students created special guidelines in response distribution of anything that is not to distribute the magazine at any to the attempted Iss ues and A nswers obscene, libelous or disruptive. time before 7:50 a.m. in front of the distribution. What is unclear is For Antietam Junior High, the school's front doors through which whether those policies were created students ' request to distribute the three Quarters of the student body fo r the specific purpose of curtailing

22 SPLC Report Winter 1987·68 FOCUS: RELIGION

the distribution of a religiously distribute violates the First Amend­ rules. They suggest that rather than oriented magazine or whether similar ment. limiting the times and places at restrictions would have been created which the magazine can be distrib­ Students at Antietam claim that in response to the mass distribution uted, the school should limit the other ctistributions and solicitations of any type of non-school literature. number of copies students may dis­ similar to that of Issues and Answers tribute in any one day. The students occur at their school and cite specif. Both administrations expressed did not explain how this would be a o e the content of the mag­ ically the distribution of their school concern v r lesser infringement on their First azine, but Antietam listed other con­ paper, trading 1IU18IIzjnes in the balls, Amendment rights or how such a cerns as well. Administrators cited club meetings in classrooms after policy might be enforced. previous problems with congestion school, and selling tickets to rallies and graffiti in the locker area where and sports events. The school says Both parties in the An tietam case students wanted to distribute Iss ues that none of these situations is simi­ have moved fo r summary judgment, and Answers. They said students lar. The school paper, nUlies, and which means there will not be a trial were not allowed in that area without sports events are part of the school if the motions are granted. A deci­ supervision in any case. Antietam curriculum. Distributing magazines sion is expected soon. Both sides also expressed concern that allowing to the student body, they claim, is anticipate an appeal and suggest that distribution of Issues and Answers not similar to voluntary attendance the case could go aU the way to the would lead. to a large number of at a club meeting. Trading mag­ Supreme Court. The lawsuit again st requests fo r access to the student azines, according to the school, is not Round Lake High was filed in Au­ audience by non-school groups. An­ comparable to the mass ctistribution gust of 1987. and the two parties are tietam argues that its policy prohib­ of Issues and Answers. trying to reach an out-of-court set­ ited access to the school fo r any In response to the administration's tlement. If that fai ls, the lawsuit will group wishing to distribute non­ concern that the mass distribution of continue with a decision expected school sponsored materials, so the the magazine may be a so� of some time early next year. Lengthy Iss ues and Answers policy is not disruption significant enough to war­ appeals are possible in either case, ctiscriminatory. This raises the ques­ rant limitations, Antietam students and it may be years before the bal­ tion of whether allowing no one to propose alternative distribution ance is found .•

Winter 1987-88 SPlC Report 23 LEGAL ANALYSIS

Religion and the student press :

------

Administrators suspend a high school student for hand­ to exercise one's religious beliefs against the state's interest ing out religious pamphlets in the hall. Another student is in regulating a particular activity. If a student can show prevented from running a Bible quotation next to her that his religjon requires hi m to distribute religious name in the school yearbook. A college newspaper editor's writing, the school must justify a restriction on that authority to publish a regu lar religious column is ques­ activity. tioned by readers and the school administration. Incidents FREE SPEECH lilce these have happened, or could happen, across the country. The cu rrent controversy over religious speech in Religious speech, like all other fo rms of "pure" or the schools has students wondering - is it constitutional message-conveying speech, is protected expression under to ban religious writing fr om public high school and the First Amendment . Tinker v. Des Moines Independent college campuses? When can schools restrict distribution Community School District established the rule that stu­ of religious material in student publications on campus? dents' right to free speech must not be abridged unless that The short answers are no, and hardly ever. Religious speech "materiaUy disrupts c1asswork or involves substan­ writi ng, when it is inniated solely by st udents, is protected tial disorder or invasion of the rights of others."2 speech. The constitutional prohibitions against state estab­ This rule applies whether or not school administrators lishment of or interfe rence with religion should not be a agree with the ideas disseminated by that speech. Even if concern for school officials who do not encourage religious the writing is perceived as offensive or controversial the writing or unfairly discriminate against theological ex­ pression.

THE FIRST AMENDMENT I� LIIIL The First Amendment states, in part, "Congress shall make no law respecting an establishment of religion, or III LYSIS prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Protections fo r right to publish and distribute remains . In Stanley v. religious writing in public schools or colleges are derived Magrath,) fo r example, the Regents of the University of from this clause. The First Amendment applies to states Minnesota instituted a fee refund plan after the school and public schools through the Fourteenth Amendm ent, newspaper published an April Fools' Day "interview" which guarantees that those freedoms "implicit in the with Jesus Christ. The Regent's action was determined to concept of ordered liberty" will be preserved against state be unlawful content-based discrimination . And in Shanley as well as federal action. '" v. Northeast Independent School District.· a high school This article will analyze first free speech and press case, student writers were suspended after they distributed rights. If the principle of free speech protects student an undergro und paper containing an article about birth publication of a particular point of view, then that control an d an editorial advocating marijuana law reform . protection applies to religious writing. The court of appeals held that the school had not estab­ Second, the prohibition against any "law respecting an lished reasonable guidelines which would enable a predic­ establishment of religi on " will be considered. This clause, tion of " 'substantial and material' disruption of school called the "establish ment clause," requires government activities." The school's argument that the student news­ actors to maintain a neutral position with respect to paper contained "controversial" articles was not convinc­ religion. Jf they do so. the fa ct that religion is advanced by ing: "[I]n a democracy 'controversy' is, as a matter of a private actor - the student writer - should not be constitutional law, never sufficient in and of itself to stifle considered a problem. the views of any citizen."

Finall y . the " free exercise" clause, which protects reli­ Shanley indicates that just as ad ministrato� cannot gious parties fr om interference with their religious beliefs interfere with an official student publication because it and practices, will be briefly discussed. Few students could does not meet campus "standards" for subjeci matter, claim that thei r religion requires them to write for the unofficial, or "underground," publications may not be campus paper. but o\her activity, such as pam phleteering, discriminated against because of their status. Rel igious might come under this heading. Courts balance the right pamphlets are entitled to th is protection as well. The

24 SPLC Report Winter lQ87-88 LEGAL ANALYSIS

The right to free expression protects religious writing

Supreme Court has consistently recognized pampleteering declared that a rule allowing a high school principal to as a fo rm of speech. Heffron v. International Society fo r preview published materials and to approve or deny Krishna Co nsciousness, Inc. (1981)5 and Murdock v. Pen n­ distribution was void because it was unconstitutionally sylvania (1943)6 are just two of the cases to which the vague. That court explained, "The regulation complained Court applied First Amendment/free speech analysis to of reaches the activity of pamphleteering which has often distribution of religious pamphlets. Student press cases been recognized by the Supreme Court as a fo rm of fo Uow the same logic. communication protected by the first amendment." Brubaker v. Moelchert7 applied free speech principles to It stands to reason that religious writing may not be pamphleteers on a state college campus, striking down censored because of official disapproval with the subject rules which discriminated against "outsiders" by giving an matter, fo r the same reason that other ideas or fo rms of administrator power to decide who could or could not writing may not be prohibited. Similarl y, the constitution­ pamphlet on campus. "Advocates of ideas not popular al principles apply to religious pamphleteering that apply enough to obtain invitation from an established organiza­ to distri bution of unofficial publications on other subjects. tion to speak in a public place are those who most need Thus, in the unlikely event that newswriters and editors their First Amendment rights." Baughman v. Freienmutlzl transformed a school paper into a pro-Christian, Moslem, or Jewish publication, or where an independently pro­ duced paper or pamphlet stridently proclaimed the value of one faith and the fa ults of another, to censor that publication because of its subject matter would be uncon­ stitutional under the Tinkerstandard.

UNPROTECTED SPEECH

When the state interferes with free speech or fr ee exercise of religion, it normally must pass the "strict scrutiny" test. Courts scrutinize rules that affect speech to determine if they are narrowly tailored to meet a compel­ ling state interest.and if they are one of the least restrictive methods of achieving that interest. In the university setting, the Supreme Court.bas applied the "exacting scrutiny" it applies to the restriction of speech in any other public fo rum. Where students are prevented from speaking because of the subject matter of their discussion, and other similarly situated students have been allowed to speak, a school must justify its action.9 In secondary schools, the Court of late has appeared willing to give more weight to the determinations of school officials as to what, exactly, is of compelling state interest.lo Nevertheless, the presumption of invalidity continues to apply to censorship at all levels. The Court has said that the "bare assertion" of an interest in separating church and state is insufficient to overcome the constitutional consideration raised by the interfe rence with free speech. I I As the fo untainhead of student press law, Tinker has been interpreted as justification fo r the prohibition of speech which poses the threat of immediate and substan­ continued on page 26

Winter 1987-88 SPLC Report 25 LEGAL ANALVSIS

continued from pagi' 25

tial disruption. Also, speech which generally is unpro­ tions for prohibiting religious wntmg do not fit the tected fo r adults can be prohibited of students, and thus rationale fo r treating, for example, sexually sug�ve language which is libelous, obscene or invades privacy language differently in high school than in college. While may be discouraged government sponsorship of a religion OT enforced religious It is hard to conceive of a situation where religious activity is repugnant under our Constitution because of content alone could justify censorship. Only in the unlike­ the value our society places on free thought and worship, Ly event that religious speech would drive already dis­ the same values weigh fo r free religious expression when it turbed or disruptive students into a frenzy, if the is not supported or enforced by the state. There is no body publication contains libelous attacks or if distribution was of thought which supports a flat declaration that religious made in a disruptive fashion could the speech be prohib­ thought is disruptive or dangerous to students., so Tinker i.ted or punished. Note, however, that college administra­ and its progeny, including Trach tman, do not lend support tors do not have the right to preview publications, or to to its censorship. their distribution.11 exercise prior restraint over TIME, PLACE AND MANNER RESTRICTIONS A school administrator might claim concern fo r the mental health of students as a justification fo r censorship, A school has the right to set out reasonable regulations but support fo r that position is quite slim. In rrachtman on the time, place and manner in which a pUblication can ' Y. Anker13 a federal appeals court upheld the action of high be distributed, provided that these regulations don t stran� school officials who refused to permit distribu tion of a gle speech on campus. In Heffron v. International Society questionnaire to students. The questionnaire asked about fo r Krishna Consciousness the Court found sufficent interest on the parto f the operators ofthe Minn esota State Fair lO justify a requirement that tbe Hare Krishnas pass Only in the unlikely event tMt religious out literature only in a designated location, even though that interfe red, in a sense, with the Krishnas' religious speech would drive already disturbed or ritual of soliciting converts and donations. As that case disruptive students into a frenzY... could illustrates, time, place and manner regulations are rea­ sonable if they have no relation to the content of the be such speech prohibited or punished. speech, if they fu lfill a significant government in terest and if they allow ample alternative channels fo r commun ica­ students' sexual practices. including masturbation and tion. homosexuality. The school argued that students might be FREE SPEECH ESTABLISHMENT traumatized by the questioning, and the court, after OR OF RELIGION? considering expert testimony, let the school's judgment Despite the clear First Amendment/free speech prohibi­ stand. The decision was rather arbitrary, since experts tion against .content-based censorship in the schools, testified on both sides of the issue. Trachtman, while the administrators continue to ex.press reservations about only one of its IOnd, is a dark cloud on the horizon of religious speech - whether it is pamphleteering or publi­ student press law. cation. School administrators who attempt to prohibit Could this holding be extrapolated to justify prohibiting reli.gious speech on campus often argue that providing a religious writing. because it might shake students' fai th or fo rum fo r that speech violates the "establishment clause" cause them to fea r damnation? The connection would of the Constitution. certainly be tenuous, and the school would bear the The mingling of religion and the state in schools can be burden of showing that their concern was more than an a matter of grave concern. Nevenheless, a distinction undifferentiated fear. This seems to be an area where must be made between cases where a state has "estab­ before-the-fact conjectures would be difficult to justify·d lished" religi on and those where, in the process of fulfil­ religious freedom and free speech are both cherishe ling a secular objective (such as ensuring free speech), values. religious activity is "accomodated." There may be differences in the subject matter that can In Widmar Y. Vincent, members of a religious student be censored in colleges and in high school and in the group argued that a university regulation which proh.ibited treatment of the question of prior review. but the justifica- them from using the fa cilities fo r religious discussion and

26 SPLC Report Wint&r 1987-68 LEGAL ANALYSIS

* t

worship violated their right to free speech because It denied them equal access to a public fo rum, impinged on their free exercise of religion and violated the establish­ ment clause as an "unjustifiable hostility" to re ligion. The t * campus had been generally available fo r the use of student groups. The Supreme Court asked whether, in that situa­ tion, the school could close its fa cilities to a registered group that happened to be religious. The answer, of course, was no. The Widmar Court applied "forum" analysis to the case. It fo und that the university had established its campus as a "generally open" fo rum fo r student use, and that therefore the Constitution fo rbade the school from excluding expression of a religious viewpoint without * t meeting the "heavy burden of justification." 14 The Court emphatically categorized religious "worship and dis­ cussion" as speech "protected by the First Amendment," and based its holding on the rights of fr ee speech and association. In its decision, the Court drew on the rea­ soning of two seminal school fr ee-speech cases: Tinker v. Des Moines Independent Co mmunity School District, which upheld the right of secondary school students to engage in political expression,1s and Healy v. ja mes,16 which held that a college could not fo rbid speech on t* campus either because it disagreed with a left-wing organi­ zation's philosophy or because of an unsupported fea r of disruption. Thus, the Court drew on the pre-existing body of Fl fSt Amendment law which had bee n applied to the schools. It is apparent fr om the Court's reasoning that .,j religious speech may not be discriminated against because of its particular content any more easily than other types of expression. In Widmar, the Supreme Court applied a straightfor­ ward free-speech-in-a-public-forum test, but the setting * t was a public university. The Court stated, "University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutral­ ity toward re ligion." It is not certain that the court would apply the same test in a public secondary school setting, but signs point to that conclusion. In Bender v. Williams­ port Area School Dis trict17 the Supreme Court dismissed a challenge to a religious group's right to meet in a high school fo r lack of standing. However, fo ur justices would have t * considered the case on its merits, and on the basis of Widmar, held fo r protected fr ee speech rights in the discussion of religious concepts. continued on page 28

Winter 1987-88 SPlC Report 27 I LEGAL ANALYSIS

continued fr om page 27 While Widmar and Bender don't deal directly with the government a�i�n "only when ...there was no question that the . ' . act!vlty was "motivated wholly" by religious student press, the principles they espouse on free speech . . , apply equally to the written and the spoken word. The conSiderations. Even "substantial" benefits to religion Court's reliance on the Tinker and Healy cases, often cited are permissible. in student press cases, makes the connection clear: Con­ THE "FREE EXERCISE" OF RELIGION tent-based censorship of student publications will not be tolerated, whatever the subject. Even though neutral regulations may interfere with a In the final analysis, the constitutional prohibition student's sincerely-held religious practice of proselytizing against the establishment of religion is not very pertinent or soliciting donations, it is unlikely that a court would in the student speech context. As is pointed out above, the find that the student's desire to solicit contributions, fo r Supreme Court has typically analyzed religious expression example, outweighed a school's interest in keeping stu­ as just that - expression, protected as speech, or under dents free of such pressures while on its grounds. Heffron the right to associate, or to practice one's own religion. v. International Society fo r Krishna Consciousness, in Only when state and religion become intertwined in ways addition to supporting time, place and manner restric­ that are unlikely in the setting of the student press does tions, appears to defeat a student's claim that such the establishment clause enter the analysis. restrictions are unconstitutional because they interfere As the court in Widmar characterized the test: "a party with the "free exercise" of religious beliefs. The language In He/fron supports this inference: "None of our cases suggest that ... solicitation as part of a church ritual Allowing any student to express her own entitles church members to solicitation rights in a public fo rum ...nor fo r present purposes do religious organiza­ thoughts and beliefs in a student publica­ tions enjoy rights to communicate, distribute and solicit­ tion does not violate the establishment ...superior to those of other organizations clause if it results from the school provid­ having ...other messages."20 Still, an important distinction must be made between ing a "neutral fo rum. " limitation of the time, place and manner of the conduct involved in soliciting funds and a total prohibition against distributing religious writings simply because they are sold will not offend the Establishment Clause if it can pass a or because they contain subscription fo rms or advertise­ three-pronged test: 'First the [governmental policy] must Since the 1940's it has been settled that these have a secular legislative purpose; second, its principal or ments. factors will not justify prohibition of these publications .. primary effect must be one that neither advances nor The Supreme Court recognized that financial support inhibits religion ... fm ally, the [policy] must not fo ster 'an obtained from sales and subscriptions of advertising may excessive governmententang lement with religion.' "18 be necessary in order to disseminate ideas in Murdock v. Lynch v. Donelly'9 illustrates the Supreme Court's intent Pennsylvania: "Freedom of speech, freedom of the press, to limit the circumstances in which the establishment freedom of religion are available to all, not merely to those clause would be called into play. The Court upheld the who can pay their own way."21 This truism is echoed in city of Pawtucket's right to place a nativity scene in a Peterson v. Board of Education, 22 a high school newspaper park, finding the city's action to be an acceptable govern­ decision. ment recognition of the role of religion in our nation's development and heritage. Thanksgiving, the Court said, THE WORST -CASE SCENARIO and even the scene of the Ten Commandments in the Supreme Court Building are examples of this permissible In a worst-case scenario, an abrasive religious group "recognition" of religion. "takes over" a student paper and uses it to publish Lynch characterized the establishment clause as affirma­ diatribes against other beliefs. This would not be a tively mandating "accomodation, not merely tolerance, of violation of the establishment clause, repugnant as the all religions," and as fo rbidding "hostility toward any." ideas expressed might be to the administration or some The Court went on to state that it invalidated such students. Why? Because. applying the test set out in

28 SPLC Report Winter 1987-88 LEGAL ANALYSIS

* t

______w_ .• ______•• ______•______.� ___

Widmar: I. the school has not acted to fo ster religious growth - its purpose is not to encourage religious activity, but to allow a student paper to determine fo r itself what its editorial policies will be; 2. the primary t * effect is not to support religion, which is only incidentally aided, but to provide fo r fr ee speech; and 3. there's no entanglement if the school avoids involvement. Panarelia v. Birnbaum,23 a New York case, supports this view. In Panarella, officials at state-supported colleges were asked to suppress articles in student newspapers that some saw as offensive to religion. The court fo und that through student newspapers, "the colleges merely pro­ vided a neutral fo rum fo r debate, and did not evidence an intent to advance or destroy religious beliefs." The court * t noted that the establishment clause has been in terpreted to prevent the government from becoming an "active partici­ pant" in religious affairs. When governmental activities have secular objectives, the Supreme Court has often sustained them, despite "incidental benefit or hindrance to religion." Allowing any student to express his or her thoughts in a student publication, even if this means a particular publication is dominated by religious thought, does not violate the establishment clause, then, if it results fr om the school providing a "neutral fo rum." t * Sinn v. Daily Nebraskan24 also established important precedent on this question. In that case, the court of appeals ruled that a college newspaper was entitled to exercise its editorial discretion to decide whose advertise­ ments to nin. The court held that the newspaper was not an arm of the state, and that its editorial decisions did not constitute "state action." Sinn refutes a school's argument that allowing religious writing in a student publication is state action in support of religion. As the Supreme Court said in Everson v. Board of Education,25 the establishment clause "requires the state to * t be neutral in its relations with groups of re ligious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to fa vor them." In schools, the yearly turnover of student publication staffers provides fo r di versity of opinion. Where re ligion is concerned, administrators need to maintain objectivity. It's often argued today that "liberals" control the papers. Control by the rel igious does not justify censorship any t * more than that assertion could. The worst-case of a student publication dominated by a religious fa ction has never happened and is not likely to happen. Most journalists take objectivity very seriously, continued on page 30

Winter 1987·88 SPLC Report 29 LEGAL ANALYSIS

-.\'-

continued/rom page 29 and students prize intellectual openness. Eve n among com pletely private, non-student publications. the pub­ lisher that allows no comment other than that she ad­ vances is rare. For school administrators to pounce on the occasional religious writing or distribution as a violation of the establishment clause would be a great overreaction

- and a violation of tbe First Amendment. •

I E.g. Pa lko v. Con nect icut, 302 V.S. 319 (193 7) (dis- cussion of Fourteenth Amendment's role). 2 393 V.S. 503, 513 (1969). 3 719 F.2d '279 (8th Cir. 1983). � 462 F.ld 960 (5th Cif. 1972). 5452 U.S. 640 (1981). 6319 U.S. 105 (1943). ? 405 F.Supp. 837 (W.D.N.C. 1975). a 478 F. 2d 1345 (4th Cir. 1973). 9 Widmar v. Vincent. 454 V.S. 263, 269-270 (198 1); See also Sch iff v. Williams, 519 F.2d 257, 261 (5th Cir. 1975). 10 See, e.g. , Belhel School District No. 403 v. Fraser, __ U.S. _ [106 S. Ct. 3159] (1986). I I Widmar, 454 U.S. at 276. 1 1 Antonelli t'. Hammond, 308 ESupp. 1329, 1337-1338 (D. Mass, (970).

13 563 E2d 512 (2d Cir. 1977). 14 Widmar, 454 U.S. at 268. I S Tinker also involved a religious element. The Tinker siblings, students who sued fo r violations of their fr ee speech rights, came fr om a Quaker fa mily. War was against their beliefs, and they fe lt an obligation to protest it. When they wore black armbands to school in protest of the Vietnam War, they were punished. 1 6 408 U.S. 169 (1972). 17 475 U.S. 534 (1986). 18 The three-pronged test fo r violations of the establish­ ment clause is nOI universally applied. The Court in 668 (1984) stated Lynch \'. Donelly, 465 U.S. its "unwillingness to be confined to any si ngle test or criterion . .." Jd. at 679. 19 Jd. 20 452 U.S. at 652. 21 3 19 U.S. at 111. 22 370 F.Supp. 1208 (D.Neb. 1973). 23 343 N.Y.S.2d 333 (App. Div. 1973). l� 829 F.2d 662 (8th Cir. 1987). l� 330U.S. I. 18( 1947).

30 SPLC Report Winter 1987-88 LEGAL ANALVSIS Stolen words

Using the law to stop newspaper theft

Newspaper theft is a crude but effective way to censor tive monthly Florida Review, thefts fo llowed dissension the student press. Student editors at the State University over voting improprieties in the College Republican club of New York at Albany and the University of Florida elections. The thieves were not those who disagreed with recently reported to SPLC that large qua n tities of newspa� the paper's politics, Cornelius said, but "a group whose pers were stolen fr om their stands. "Basically, [our ene­ immorality had been exposcd." mies] have tried to obliterate us," said John Cornelius, ...... executive editor of the Florida Review. Sometimes thjeves disagree wi th the paper's political stance. After papers were taken from the SUNY Albany I� LEaJlL campus, an anonymous phone caller told the Albany Studen t Press, "We stole your issues and we'll do it again. You betrayed us wjth your bullshit propaganda." Papers AIALYSIS may tu rn up missing after editors endorse candidates in The tirst and possibly most difficult step involved in student government elections or publish arti cles critical of figh ting back against papertheft is identifying the perpe­ special jnterest gro ups. There may be disagreement be­ trators . If thefts happen repeatedly, enlist the help of the tween newspaper personnel and others. At the conserva- continuaion page j)

...

Winter 1987-88 SPlC Report 31 LEGAL ANALYSIS

Melissa Koval

32 SPLC Raport Wlnle( lQ87-88 LEGAL ANALYSIS

The press that finds itself victimized by theft may have the option of seeking campus disci­ pline or criminal prosecution.

conti nued frompage 31 Florida Review - and said that he would consider taking campus security office. Its officers will probably be willing the case to an appeals court if it were not accepted at the to keep an eye on sites where newspapers are distributed if trial level. they are made aware of the problem. Publication staffers The crime of theft, or larceny, is typically defined as the might also try· watching certain spots that seem to be unlawful, intentional taking of property belonging to favorite targets themselves. It would not be wise to wrestle another. Thus, in order to be found guilty of a crime, a with a thief or to wait in a dangerous area to try to catch person who took papers must be judged to have taken one, but if it is possible to learn the identity of the people something (1) of at least a minimal value, (2) belonging to who are removing publications, legal action can then be someone else and without the legal authority to do so, and considered. (3) with the intent of depriving the owner of the value of Florida Review managing editor Paul Paffe and other the property) staff members watched newsstands for thieves, and the The traditional civil action to collect damages from effort paid off. In July, students were observed and photo­ theft is called "conversion." To file a cause in conversion graphed literally cleaning out boxes of the papers that had a publication would have to show (I) a possessory interest been set out hours before. Campus police turned the in the papers, (2) that they were in fact taken (and thereby matter over to the university administration, and internal "converted") and (3) damages resulting from the taking.2 disciplinary proceedings followed. The university has kept To pursue either a criminal or civil case, a court would results of those proceedings confidential. have to be convinced that "free" papers are not really free

Cornelius is not quite satisfied with that tum of events. - they do have value. Usually, advertisers and subscrib­ He would have preferred a more public punishment, and ers pay for them, and students may support the paper he says thieves hit the paper again in September. He has through their fees. If many papers are taken, the publica­ contacted the State Attorney's Office about the possibility tion may have to refund an advertiser's money, or provide of a criminal prosecution. free advertising space, in order to preserve the value of The press that finds itself victimized by theft may have the property. Attorney Stephenson told the Report that the the option of seeking campus discipline or criminal Florida theft statute specifically included the deprivation prosecution. If a staff member finds that papers have been of a "beneift" as grounds for prosecution. He character­ stolen, he or she may either report it to campus authori­ ized the advertising revenues from a free paper as a type ties, file a criminal complaint with the local police of benefit that is stolen when large numbers of the department setting out the facts as observed, or both. If newspaper are physically removed. Even a patkr without there are witnesses to back up the accusation of paper advertising conveys a benefit to its publisher when the theft, the chances for action on the matter are good. money and effort spent in printing it leads to its content The other option a student paper has against thieves is reaching the desired readership. civil action. A "civil action" is a lawsuit seeking a remedy, Those who get caught trying to take aw?y armfuls of typically money damages, for an action which is not free papers can be expected to argue that they had a necessarily a crime. In Florida through statute a criminal perfect right to do so. After all, the papers are "free for the court has the power to substitute a damages remedy for taking." Several arguments refute this claim. First, news­ criminal penalties. In other states, both actions might be papers are logically the property of the publisher until they appropriate. are taken by permission - inferentially, and by custom, Can "free" papers be stolen? Although the answer may one at a time. be an obvious "yes" to some, there are no published court A publisher has a "possessory interest" in the publica­ cases dealing with the issue. However, with a suitable case tion, that is, a legal right to claim the property even after a publication might successfully both press criminal the papers have been put out in their stands or at their charges and me a civil claim against individuals who take regular distribution points. American Law Reports, an large quantities of free distribution papers. John Stephen­ encyclopedia of American law, states that "a mere right of son, criminal prosecutor at the Rorida State Attorney's possession is generally regarded as an interest sufficient" office in Gainesville, agrees. He planned at press time to to maintain a civil lawsuit for taking or interfering with file criminal charges against students caught taking the continuedon page 34

Winter 1987-88 SPLC Report JJ LEGAL ANALYSIS

Newspaper theft can harm morale and finances. It can also make an editor more cautious about creating controversy_

rontilluNfr om page 33 another person's property.) It's likely that criminal couns, which can be both proven and attributed to the theft. as well, would consider this right of the publisher superior These would include costs resulting from reprinting, to that of a peTSOn whose only reason fo r taking papers is redistributing papers or reduced advertising values, among to deprive the publisher, the readers and other supporters other things. from the benefits of that product. Finally, a paper may be able to win punitive damages. Imagine a newsgirl standing next to a stacie. of papers, Where a thief acted with malice, or the will to do harm. a ye lling "Extra! Read all about it!" If a thug grabbed the punitive award will punish that behavior, as well as newspapers and ran, that would be an obvious violation of compensate the publication fo r the extreme nature of the the publisher's interest. Similarly, if the papers are in a action committed.� newsbox. the concept that they are in the publisher's It should be recognized that the actual damages award "possession" is easy to visualize. But even if they are might be low fo r a free newspaper - perhaps less than simply sitting on the floor in an authorized area, the press $100 fo r stealing 100 papers (this is undoubtedly one should still be considered to have the legal right to prevent reason no cases can be fo und). Yet the motive fo r filing a this kind of taking, since a right to reclaim the papers lawsuit against a paper thief is not likely to be profit. before distribution exists. Satisfaction can be gained from a legal victory over one's But if papers are available fo r the taking, can anybody attackers, and a person who is found- liable fo r taking who takes an extra to line her bird cage or to show to his papers in a court of law will probably think twice before roommate be prosecuted? Certainly not. A difference he or she does anything like that again. exists between the student who takes a copy to pin an One fa irly simple way to sue people known to have illustration on bis wall and the thief who cleans out the taken papers is through small claims court. The limit on stand anddumps them in the trash. That difference can be the amount sued fo r in these court varies fromjurisdiction fo und in theintent of the person taking the newspaper. to jurisdiction. but" is-usually less than $lOOO; the courts In a criminal case, intent to steal must be shown. Intent may not allow claims punitive damages either. People who could be inferred from a person's actions, but the nature sue in small claims court usually do not use and may be of a criminal trial would likely require an obviously prohibited from using lawyers. They simply obtain the malicious act before a prosecution would be successful. A required fo rms from the court, fill them out, perhaps pay a person could claim that she took 50 copies to pass them filing fee , and then go to court and plead their case. Small out at the night's party - but if she was seen putting them. claims courts, like other courts, do require evidence of the in the trash. that defense would not hold up. claimed wrong, so witnesses, photos or a record of The arguments outlined above would apply equally to a criminal proceedings would need to be produced. civil lawsuit, but the burden of proving inte nt - and Until a court rules on the issue of newspaper theft, UKUiIt" - is not so high in a civil as in a criminal case. In censors-who-would-be-thieves may not be convinced that a civil action fo r conversion ill intent is not generally they are subject to criminal or civil penalties fo r their necessary. However, if the court wanted to be u ca tious actions. Nevertheless, the student press must be aware of about holding a civil defendent liable, it would likely its rights. Newspaper theft can harm morale and finances. inquire into intent.4 It can also make an editor more cautious about creating a Assuming that the thieves have been caught red�hand� controversy. ed. the concern at this point turns to the amount of "The important thing is that our readers get the daJrul8tS that a paper can collect for the theft. The information;' said Bill J acolls, editor of the Albany tnaditional measure of damages in this type of lawsuit is Student Press. No thieves should be allowed to interfere based on the commercial value of the property stolen. If with that goal.. papers were priced. thieves would be liable for that value. t 50 American Law Reports (ALR) 2d, "Larceny," sees. Most student papers are free, so other methods for 143 et. seq., Lawyers Cooperation Publishing Co. 1970. valuation would have to be used. A paper might argue 2 18 ALR 2d, "Con version," sees. 1-3, 76. Lawyers Coop­ that a subscription price provides a measure. or that a fair erati ve Publishing Co. (985. commercial price, based on similar publications in the l /d. . sec. 3. community, should be implied. The paper might also � [d. , sec. 75. collect "'special damages" - that is, any real damages s [d. . sees. 105, 114.

34 SPlC Report Winter 1987·88 MODEL GUIDELINES

New & f'U6LICA110Ns Improved

For ye tuden Press Law C nt r has POLICV 14 ars now, the S t e e been providing legal infonnation, advice and aSSistance to student journalists , their advisers and school officials. In 1987 alone, we will have responded to legal requests from over 600 of you. Of all the information the SPLC provides, our Model Guideli nes for Student Publications continue to be among the most requested. First published in the Winter 1978-79 Report. our guidelines have been adopted by high schools across the country as is or have been used as a basis for creating a new policy. During the summer and fall of 1987, we decided that the time had co me to update our guidelines in accor dance with court decisions that have been handed down in recent years. With the i nput of many attorneys, college professors and h igh school journalism advisers, we have done just that. Our special thanks go to Dr. Tom Eveslage, chairman of the Department of Journalism at Temple University, a nd Marc Abrams, an attorney with the Philadelphia law firm of Schnader , Harrison, Segal & Lewis, for their coordination of the effort. We hope that the "new and improved" Model Guidelines, which are very similar to the old version, will help you and your school create and support a positive educational environment that recognizes the First Amend­ ment rights of the student press. Let us know if you ad opt them for your student publications. SPLC Model Guidelines for Student Publications

Preamble: The following guidelines are based on state and federal court decisions that have determined the First A..mendment rights of students. These guidelines do not provide a legal basis for school officials or employees to exercise prior restraint or prior review of student publica­ tions. Additio nal safeguards, including specific examples of prohibited expression, a timely and impartial appeals process and distribution of the guidelines to all stu dents, would be required for any valid pre-publication distribu­ tion action. The Student Press Law Center cautions that court rulings indicate that policies which provide for prior review and restraint and meet constitutional requirements of p recision, narrow scope an d protection of speech are almost impossible to develop. In addition , schools that adopt a prior review and/or prior restraint policy assume legal liability for the content of the publications, whether they are school-sponsored or non school-sponsored. Court decisions i ndicate that a school likely will be protected from liability ifby practi ce or written policy it rejects prior review and prior restraint. continued on page 36

Winter 1987-88 SPLC Report 35 I MODEL GUIDELINES

continued fr om page 35 statements that do demonstrated injury to an individual's �r business's r�putation in the community. If the allegedly I. STATEMENT OF POLICY hbeled party IS a "publIc. figure" or "public official" as defined It is undeniable that students are protected in their below, then school officials must show that the exercise of fr eedom of expression by the First Amendment fa lse statement was published "with actual malice," i.e., to the Constitution of the United States. Accordingly, that the student journalists knew that the statement was school officials are responsible for ensuring freedom of fa lse or that they published it with reckless disregard fo r the truth - without trying· to verify the truthfulness of the expression for all students. It is the policy of the Board statement. (pewspaper), of Ed';lcation that (yearbook) and Oiterary (a) A public official is a person who holds an electedor magazine), the offiCIal, school-sponsored publications of appointed public office. _ --�-_ High School have been estab­ :-:-:----:- � (b) A public figure either seeks the public's attention or lished as fo rums fo r student expression and as voices in is well known because of personal achievements. the uninhibited, robust, free and open discussion of issues. (c) School employees are public officials or public Each publication should provide a full opportunity fo r figures in articles concerning their school-related students to inquire, question and exchange ideas. Content activities. should reflect all areas of student interest, including topics (d) When an allegedly libelous statement concerns a about which there may be dissent or controversy. private individual, school officials must show that I t is the policy of the Board the fa lse statement was published willfully or neg­ of Education that student journalists shall have the right ligently, i.e., the student journalist who wrote or to determine the content of official student publications. published the statement has fa iled to exercise rea­ Accordingly, the fo llowing guidelines relate only to estab­ sonably prudent care. lishing grounds fo r disciplinary actions subsequent to (e) Under the "fair comment rule," a student is free to publication. express an opinion on a matter of public interest. II. OFFICIAL SCHOOL PUBLICATIONS . Specifically, a student may criticize school policy or the performance of teachers, administrators, school A. Responsibilities of Student Journalists officials and other school employees. Students who work on official student publications 3. Students cannot publish or distribute material that determine the content of those publications and are will cause "a material and substantial disruption of school responsible fo r that content. These students should: activities." I. Det.ermine the content of the student publication; (a) Disruption is defined as student rioting; unlawful . 2. Stnve to produce a publication based upon profes­ seizures of property; destruction of property; or SIonal standards of accuracy, objectivity and fa ir play; substantial student participation in a school boycott, 3. Review material to improve sentence structure, sit-in, walk-out or other related fo rm of activity. grammar, spelling and punctuation; Material such as racial, religious or ethnic slurs, 4. Check and verify all fa cts and verify the accuracy of however distasteful, are not in and of themselves all quotations; and disruptive under these guidelines. Threats of vio­ 5. In the case of editorials or letters to the editor lence are not materially disruptive without some act concerning controversial issues, determine the need fo r in fu rtherance of that threat or a reasonable belief re buttal comments and opinions and provide space there­ and expectation that the author of the threat has the fo re if appropriate. capability and intent of carrying through on that B. Prohibited Material threat in a fa shion not permitting acts other than I. Students cannot publish or distribute material that is suppression of speech to mitigate the threat in a "obscene as to minors." "Minor" means any person under timely manner. Ma terial that stimulates heated the age of 18. Obscene as to minors is defined as material discussion or debate does not constitute the type of that meets all th ree of the fo llowing requirements: dis ruption prohibited. (a) the average person, applying contemporary commu­ (b) For a student publication to be considered disrup­ mty standards, would find that the publication, tive, specific fa cts must exist upon which one could !Bken a� a whole, appeals to a minor's prurient reasonably fo recast that a likelihood of immediate, IOterest m sex; and substantial material disruption to normal school activity would occur if the material were further (b) the p';lblication depicts or describes, in a patently offenSIve way, sexual conduct such as ultimate distributed or has occurred as a result of the materi­ sexual acts (normal or perverted), masturbation and al's distribution. Mere undifferentiated fe ar or ap­ lewd exhibition of the genitals; and prehension of disturbance is not enough; school (c) the �ork, !Bken as a whole, lacks serious literary, administrators must be able affirmatively to show artIstIC,. polItIcal. or scientific value. subtantial fa cts that reasonably support a forecast of Indecent or vulgar language is not obscene. likely disruption. [Note: Many statutes exist defining what is "obscene as (c) In determining whether a student publication is disruptive, consideration must be given to the con­ to minors." If �uch a. statute is in fo rce in your state, it should be substituted 10 place of Section II (B)(I ).] text of this distribution as well as the content of the 2. Students cannot publish or distribute libelous materi­ material. In this regard, consideration should be al. Libelous statements are provably fa lse and unprivileged given to past experience in the school with similar

36 SPlC Report Winter 1987-88 MODEL GUIDELINES --_ ... .. _--

material, past experience in the school in dealing PROTECTED with and supervising the students in the school, IV. SPEECH current events influencing student attitudes and School officials cannot: behavior and whether there have been any instances I. Ban speech solely because it is controversial, takes of actual or threatened disruption prior to or con­ extreme, "fringe" or minority opinions. or is distasteful, temporaneously with the dissemination of the stu­ unpopular or unpleasant; dent publication in question. 2. Ban the publication or distribution of material (d) School officials must protect advocates of unpopular relating to sexual issues including, but not limited to, viewpoints. virginity, birth control and sexually-transmitted diseases (e) "School activity" means educational student activity (including AIDS); sponsored by the school and includes, by way of 3. Censor or punish the occasional use of indecent, example and not by way of limitation. classroom vulgar or so called "four-letter" words in student publica­ work, library activities, physical education classes, tions: official assemblies and other similar gatherings. ' 4. Prohibit critcism of the policies, practices or perfor­ school athletic contests, band concerts, school plays mance of teachers, school officials. the school itself or of and scheduled in-school lunch periods. any public officials; 5. Cut off funds to official student publications because C. Legal Advice . . . of disagreement over editorial policy; of student editor, student �llo�al 1. If, in the opinion 6. Ban speech that merely advocates illegal conduct material proposed for p �hcaho� staff or faculty adviser, � without proving that such speeh is directed toward and or would cause an Imme?l­ may be "obscene." "Iibelous" will actually cause imminent unlawful action; dis tion of school achv­ ate, material and substantial r:u!' 7. Ban the publication or distribution of material attorney should be ities," the legal opinion of a practICIng written by nonstudents; the attorney for the toca1 newspa­ sought. The services of 8. Prohibit the school newspaper from accepting adver­ the Student Press Law per or the free legal services of tising; or are recomme ded . . Center (202-466-5242) � 9. Prohibit the endorsement of candidates for student With the consulta- 2. Legal fees charged in connectIOn office or for public office at any level. . . tion will be paid by the board of educatlOn . . 3 The final decision of whether the matenal IS to be pubiished will be left to the student editor or student V. COMMERCIAL SPEECH editorial staff. Advertising is constitutionally protected expression. School publications may accept advertising. Acceptance or Ill. NONSCHOOL-SPONSORED PUBLICA nONS rejection of advertising is within the purview of the publication staff, who may accept any ads except for those of non­ School officials may not ban the distribution for products or services that are illegal for all students. Howev­ school sponsored publications on �hool grounds. Political ads may be accepted. The publication should not II(B) may be er. students who violate any rule hsted under accept ads only on one side of an issue of election. disciplined after distribution. . 1. School officials may regulate the Hme, place and ADVISER JOB SECURITY manner of distribution. . VL Nonschool-sponsored publication wIll have .the (a) � The adviser is not a censor. No teacher who advises a rights of distribution as offiCial school pubhca- same student publication will be fired, transferred or removed tions; from the advisership by reason of his or her refusal to means dissemination of a pu bI'lca- (b) "Distribution" exercise editorial control over the student publu.ation or to students at a time and place of normal tion to otherwise suppress the protected free expression of or immediately prior or s�bsequ�nt school activity, student journalists. thereto, by means of handing out �ree copIes,. seilIng offering copies for sale, acceptln� donatIons for or VII. PRIOR RESTRAINT copies of the publication or displaYIng the student . publication in areas of the school whIch are general­ No student publication, whether nonschool-sponso�ed ly frequented by students. or official will be reviewed by school administrators pnor to distrib�tion or withheld from distribution. The school 2. School otllclals cannot . assumes no liability for the content ?f any stud�nt hterature or (a) Prohibit the distribution of anonymous publication, and urges all student joumal!s�. to �ecogn�ze require that literature bear the name of the sponsor- that with editorial control comes responsibilIty, Indudmg ing organization or author; . , the responsibility to follow professional journalism stan­ (b) Ban the distribution of literature because It con tams dards. advertising; (c) Ban the sale of literature; or . . VIII. CIRCULATION (d) Create regulations that �iscrimInate agaInS� non­ . school sponsored publicatIOns or mterfere Wlth the These guidelines will be included in the handbook on effective distribution of sponsored or non-sponsored student rights and responsibilities and circulated to aJi publications. students. Winter lQ87-68 SPLC Report 37 -[ The Student Press law Center is here when you need it. If you are facing a legal problem or have a question about your rights A as a student journalist or faculty adviser, call our attorney at (202) 466-5242. A ll services are pro­ book vided cost-free to students and teachers. Internship opportunities with the SPLC are available during W"orth each school semester and the summer for college and law stu­ dents with on int erest in student reading. journalism. Interns write and pro­ duce the SPLC Report, handle requests for Information on stu­ dent press rights and assist the Executive Director by providing research and paralegal support. Interested individuals are encour­ aged to write for more informa­ tion. Drawings, carto ons and news Lawof the Student Pre5/). a fou r·year project of the Student Press Lew Center, is the fU'S t tips are welcome and needed. book ever kl offer an examination of legaJ issues confronting American's student joumaJists, Help us inform the scholastic jour­ advisers and education administrators on both the high school and college levels. nalism community by contributing The book is understandable and readable without giving up the essential material needed your skills and information to the for an in·depth understanding o{ the legal relationships involved in the production of student newspapel'll, yearbooks and electronic media. Topics covered include libel. obscenity, oopy­ SPlC Report. right, prior review, censorship and model publications guidelines. Write or call us at: Law of the Studen t Press is available now! Copies are only $5 each. To order, send a Student Press law Center cheek fo r that amount, payable to "Quill and Scroll." to: Suite 300, 800 18th Street NW La w 0/ the Studen t Press WaShington, DC 20006 Quill and Scroll (202) 466-5242 School of Journalism and Mass Communication University of Iowa Iowa City, IA 52242

The Report Staff Th15 SPLC f«Ipof1 "'0$ prodvced en1lfetv by 0 crea1lve 1oIIItIng. Sheosp/(et. londIn intematlonol jo'..moll$m. team o( $tudent lotems IoIIorIdng out 01ottlc.. In JIll A. Edy bI a f6C\iof majoring In poIItlcol commu­ EtizoOsih M. Kle$zl(oW$k1 Is 0 third-year law stu­ Wostiington. DC. nlcatklns at George WCJShjog1on UnflleBity. She dent oi Itle Unlverslly o( Colltomlo. Davis, ood s0me­ Jody A. ZorQdroger Is 0 Junior at COlby Coa.ge. wantt to be rIcl'I and (omous when Ihe grows up_ time ,.,rller (01 the CaHfomio Aoa� She's QCHno to majoring In QOllemrnent witha coocentrotlon 11'1 !)nU IMn. she.. Wlt1Ie (Of graduate studies In ErIQ' write. proctice 10..,. ond cnonge the world.

FRIENDS OF SPLC

SPLC gratefully acknowledges College Newspaper Business & SUPPORTERS ($50to $99) the generous support of the fol� Advertising Managers Mary Hires (NJ) lowing institutions and people, leslie Edwards (MO) Grace lee (MO) without whom there might not be Great lakes Interscholastic Press an SPLC. and without whose sup­ Association CONTRIBUTORS ($25 to $.9) port defending the First Amend­ Nancy L. Green (IN) Nicholas Ferentinos (CA) ment rights of the student press Highlights, Coral Gables High Lillian Lodge Kopenhaver(Fl) would be a for more difficult task. Sc hool (FL) Reid Montgomery (SC) Illinois College Press Association Louise S. Ott (DC) (Contributions from August 1 to Iowa High School Press Kay D. Phillips (NC) November 30) Association St . Paul's School (MD) Journalism Association of Ohio Plantation High BENEFACTORS ($100 or more) Sword & Shield, Schools School (FL) David L. Adams (KS) Joumallsm Education Association John C. Slothower III (MN) Association for Education in Kansas Scholastic Press Ronald E. Spielberger (TN) Journalism and Mass Association James A Tidwell (ll) Communication - Society of Collegiate Journalists Robert Trager (CO) Newspaper D ivision Southern Interscholastic Press WiPoHiSc, Winter Park High Sc hool econdary ducation S E Association (Fl) Division Washington Journalism Education Marilyn Weaver (IN) College Media Advisers Association

38 SPlC f?eport Winter 1987-88 Let us make your day.

Your subscription supports the work of the Student Press Law Center.

The Student Press UW Center is the only national Please enter my subscription to SPLC Reports: organization devotedex.clusively to I?rotecting the First o J year at $10.00 of this nat on's hIgh school Amendment riplls i and Along with this blank I have enclosed a check or money order college journahsts. to: The Center serves as a national legal aid agency payable legal assistance and information to st dents providing u Student Press Law Center and faculty advi sers experiencing censorship or other legal problems. 800 18th St., NW Suite Three times a year (Winter, Spring, and Fall), the 300 Center publ ishes a comprehensive Report summarizing Washington, DC 2000 6 controversies over student press In current rights. Name ------'(���aru��n�(rj------addltion, the Reports explain and analyze complex legal issues most often co nfron ted by student journalists. Major court and legislative acllOns are hIghlighted. Address ______Defending your rights isn't cheap. Subscription dollars form a large pan of our budget. CitY,Slale,Zip ______Your subscription price will help us conrinue to serve as the national advocate for the rights of student journalists. Other contributions are tax-deductible. o I wish to support the work of the Student Press Law Center with a contribution in the following amount: ______The SPLC is interested in the titles or positions of ils All orders must be pre-paid. indi vidual u i ------" s bscr bers: uilll(i

Now a benefit of Journalism Education Association Membership

Winter 1987·88 SPlC Report 39 The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free Exercise thereof; or abridging the freedom of speech. or of the press; or the right of the people peaceably to assemble, and to petition the governmentfor a redress of grievances

The first amendment guarantees to newspaper editors, students, and everybody else freedom from any form of censorship by any member of any branch of the government at any level. Thatbulwark of a freesociety will be- the focos of the national celebration of Freedom of the College Press Day on January 19, 1988. College Media Advisers urges college student mediaacross the country to conduct that celebration throughout the month of January by

spreading, explaining, discussing. sowing, distributing , dissemin shouting, raving about, singing, signing, circulating.

trumpeting, presenting , publicizing, promulgating, proclaim-

ing, advertising, annou ncing, reporting, writing, editOrializing about, and otherwise publishing and broadcasting the crucial message of the First Amendment. Watch your mailbox for further details from the CMA Press Law Committee. If you can't wait. write to the committee at Student Publications. Eastern minois University , Charleston. 111. 61920 (or call 217-581-6003) .

non-profit org. us postage paid I SPLC I washington, de permit no 4702

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A TTENTION: Student Publication