student press lawcenter Inside: Supreme Court. Court of Appeals FALL 1986 Decisions Vol. VII, NO.3

� . EDITOR Jeff R. Coffey W stem KCtMlucky Unlversny Contents: ASSOCIATE EDITOR Audrey V. Thompson Unlver tv of Sussex En Iflnd WRITERS David Watson Mark Goodman Cover: Private school students want a free Marahalt-Wvlh 5 de rP, s press, too. The Report offers some suggestions about School of law LawCent (' how they can fight for their rigbts...... 34 College of WllhDm and rv COVER ART Supreme Court Jack Dickason Ben Burg raff Aaron Cole • Fraser's speech rejected by high com...... 3 Jack Dickason Melissa Koval Courts Bruce Young • Spectrum wins major court decision...... 5 executive director • Students not covered under N.Y. shield Iaw...... 7 Mark Goodman • Fridley High School battles Tour De Farce...... 8 Corporate Board of Directors • Daily Nebraskan can legally reject ads ...... 9 J. Marc Abrams. ESQ. Dr LouIs E In leha" Art •., � A�=& ...... �"., I ,..1""'...... ", Advisers Yor" "IV Stet lJniwW'SIr)­ IN • Oklahoma adviser continues legal fight ...... 11 .John Bowen • ...... JocInIIIi1llPlA tJOn Richard Johns Adviser removed, reinstated at Northern 111 . . 12 oI OhIo� 0u0II SaoII SocJc.orv /ow � c"". /1' La\ �W10dHIfIIt . OH Dr. Robert Knighr Open Meetings Dr. Dorothv BowIea Ar t !kncool ••10 'eIIISD_� ,Jci,m.1o&m • UCLA ends 16-month dispute ...... 14 .,�IIItd..... 1J_ _ ryOl" CGIutftootI. 110 • Miss. and Mo. address university meetings...... 16 Scf'OOI oI...IournIIAIIm �gt Dr. Lillian Lodge Kopenhever '---.KS Ar� OMI u' CommunoaIr.on Libel Beth DiCkey FIorKJtJIn� �"fli ScIuItIInt rrc; PI'Itp h � • Dartmouth Review settles $3 million suit ...... 17 AaotHrIon Robert Lewis �oI.Joo,meHm • Supreme Court gives media major victories...... 18 �otSoum Sot;fli �� CofumbIIr sc Sogmeo.fr.CN • Cumberland resolves suit ...... 18 � �. Elaine English. Eaq w�, ac • Texas A&M teacher sues Accuracy in Academia ...... 19 "....,...,.. Con"._ lei FfWMID/In01 '''' Dorothv McPhillips • Restaurant owner sues Columbia Spectstor...... 20 w..tIII..- DC JoutNII...... EdIM:MIOn"' _:wMIIC1n �.WA • State News nears settlement ...... 20 Or. Tom Eveslage Tom Rolnlcki • Kean College sued over advertisingj oke ...... 20 Dwpr�� ,...� -�-� T��lf A. -.d�""'" �P.A Student Government Christopher Fager. Eaq. • MOD tans lG!i.man gets $1 for 198&-87 budget ...... 21 LDw�r.,� Inc .-....,. TX • Wis. student courts can not bear libel suits ...... 22 Marte Goodmen. Esq. • Buffalo St. studies role of student government...... 22 SI"LC w�oc Nancy L. Green Censorship

�=-- • High school shooting censored from yearbook...... 23 �.IN • Police attack UC-Berkeley student media ...... 23 Millry Hires AI L .,."" • Not For Profit case still unsettled...... 24 COlIn �e# A.;;dOiiih NJ • Star Trek cartoon causes upr oar at Erie ...... 25 • Ithaca High principal confiscates film ...... 25

� Advertising

The SPLC Repon • Planned Parenthood ads target of censors in N.Y . .. . .26

• Court orders anti-draft ads printed in Calif...... 27

• Guidelines adopted at Va. high scbool...... 28 legal Analysis

• The Fraser decision; what does it mean? ...... 29

• Can minors consent to an invasion of privacy? ...... 31

2 SPLC Report Fall 1986 SUPREME COURT Supreme Court reverses Fraser Schools can now litnit some "vulgar" speech

The Supreme Court, in its first free expression case involving the that "materially and substantially in­ decision since 1969 involving free rights of high school students since its terferes with the education process. . . expression rights of public high landmark decision in Tinker v. Des including the use of obscene, profane school students, ruled on July 7 that Moines Independent Community language and gestures." school officials can legally 'prohibit School Distrid; (1969), when it ruled After exhausting the school d.is­ the use of vulgar and offensive that students do not "shed their con­ trict's appeal process, Fraser filed ten:n5" u ed in a school-spo- n ored stitutional rights to freedom of speech suit, claiming Bethel had violated IDS assembly. or expression at the schoolhouse First Amendment rights. In a 7 [0 2 decision, the C un. said gate." The U.S. District Court for the 'that Bethel· (W sh.)" High " hool ad­ In 1983, Fraser, now an undergrad­ Western District of Washington held ministrators did not violate the First uate at the University of California at that the school's sanctions violated Amendment rights. of student Mat­ Berkeley, gave an endorsement Fraser's right to freedom of speech, thew Fraser by suspending him in speech for a student government can­ that the school's disruptive-conduct 1983 for giving a speech in a school didate: rule was unconstitutionally vague and asseQ1.bly that contained sexually sug­ "I know a man who is fum-he's overbroad, and that the removal of gesti:�e language {Bethel School Dis­ firm in IDS pants, he's finn .in his Fraser's name from the graduation trict No_ 403 v. Fraser, 54 U.S.LW. shirt, IDS character is firm-but most speaker's list violated the Fourteenth 5054 (l;S July 7, i986). of all, his belief in you, the students Amendment's due process clause be­ Chier�ustice Warre.n Burger, writ­ of Bethel, is firm. Jeff Kuhlman is a cause the disciplinary rule makes no ing for �h Court, distinguished be­ man who takes his point and pounds mention of such removal as a possi­ tween the free speech rights of adults it in. He doesn't attack things in ble sanction. Fraser was awarded andpu blic_school children. spUrts-he drives hard, pushing and $278 in damages, $12,750 in litigation "In l'1ew Jersey v. TL.O., (11985)," pushing until finally he succeeds. Jeff costs and attorneys' fees and was BW1er wrote, Uwe reaffirmed thaI the is a man who will go to the very allowed to give his grad uation speech constitu{!jonal fights· of students in end---(:ven the climax, for each and in June 1983. public scbool are not automatically every one of you. So vote for Jeff for Bethel then appealed to the Ninth coextensive wiLh tJ;te ·rights of adults ASB vice.-president-he'll never come Circuit Court of Appeals in San Fran­ in other settings." between you and the best our high cisco, which upheld the lower court JuSltces B. ron R. White, Lewis F. school can be." decision. The appeals court explicitly Powell Jr., William H. Rehnquist, Teachers then complained to rejected the school district's argument and Sandra Day O'Connor, joined school administrators, who sus­ that the speech had a disruptive effect Burger's opinion. Justice Harry A. pended Fraser for three days and on the educational process. The ap­ Bw-kmun concurred in the ruling as struck IDS name from the graduation peals court also rejected the argument did William J. Brennan Jr., who speaker ballot. The school said Fraser that the school had an interest in wrote a separate opinion. Justices had used vulgar and indecent lan­ protecting an essentially captive audi­ Thurgood Marshall and John Paul guage and that administrators bad a ence of minors from lewd and inde­ Stevens wrote separate dissents. right to control such speecfl. The cent language in a setting sponsored Fraser is the first Supreme Court school's regulations prohibit conduct continued 011 lIeXl page

III III .1

Foil 1986 SPLC Report 3 SUPREME COURT ------.,..------�.._-_. __. __._------co,,1inued from previous page by the school. It said the school hap no power to control the language used , "The First Amend­ to x ress ideas during a student-ru � p � , ment does not pre­ aCtIVIty. '_ , The Bethel School District asked vent the school he S p m� t u re Court to d ecide w�ether \ 'officials from school officlals have the authonty to" • • deter- control uindecent" speech that is not mInIng that to per­ legally obscene , The case also ques- " " " tioned the definition of student mit a vu1 gar an d speech �hat ,creat�s a "material a�d .lewd speech such as SubstantlaJ disruptIOn of school act..lv- j(* ity," and th constitutionality of e rraser , S) would un- school policies regulating such qerm the . ine schoo speech • • l's " Burger said the appeals court in- baSIC educatIonal correctly interpreted the Tinker case ," " any for as precluding discipline Fra- mISSIOn. Chief Justice WarreD E. BIII'Jl!1 s,�, ser. There was a marked distinction �______between the political message of the wrote,' "The determination of what that the school, in this case, could armbands worn by students protest­ maI\ner of speech in the classroom or constitutionally disciplineFraser. ing the Vietnam War in Tinker and in sc.hool assembly is inappropriate Brennan pointed out, however. the se�ua1 content of Fraser's speech, properly rests with the school board." that had Fraser given the same speech Burger said. "The \ First Amendment does not "outside the school environment, he "Unlike the sanctions imposed on preveftt the school officials trom de­ could not have been penalized simply the students wearing armbands in term iDi.nithat to permit a vulgar and because government officials consid­ Tinker, the penalties imposed in this lewd SJ)eebh such as (Fraser's) would ered his language to be inappro­ case were unrelated to any political undemtine the school's basic educa­ priate," viewpoint." tional mission." In dissent, Marshall said the school "In upholding the students' right Burgei-, responding to Fraser's board did not present enough evi­ to engage in nondisruptive, passive claim that �the suspension violated dence that the speecb was disruptive. expression of a political viewpoint in due process because he had no way of Stevens claimed that Fraser did not Tinker," Burger added, "this Court knowing ibat be would be disciplined have adequate enough warning that was careful to note that the case did over the Spe«:h, said that argument he would be disciplined. 'not concern speech or action that was "wholly without merit." Jeffrey Haley, Fraser's attorney, intrudes upon the work of the schools "The school',disciplinary rules need said he didn't expect any significant or the rights of other students.' ., not be as Mtalled as a criminal code precedent set by this decision in the The Court also noted the interest which imposes \ criminal sanctions," long run because "the majority of of school officials in protecting stu­ Burger wrote.\ : justices based their decision on facts; dents in a captive audience situation Brennan, in a, concurring opinion, very little based on principle and from spoken language that is offen­ said that since tbere was no indica­ analysis." Sive. tion that schodl officials attempted to "But in the short run," Haley said, Emphasizing the school's authority u regulate Frasef's speecb because they "the decision certainly indicates the to control indecent speecb, BUIECr disagreed with his,views," he agreed attitude of the Court with respect to freedom of speech cases. I wouldn't advise others to take similar cases to \ the Court." Cliff Foster, an attorney for Bethel ; School District, said he was pleased In dissent �, '\Marshall with the decision, but that it was "not said the school board that earth-shattering a precedent." "Most Court members agreed that did not, tpresent the school had authority to regulate the speech based on its content as enough evidence that long as there was no viewpoint sup­ the speech 'w� dis- pression or discrimination," Foster : said. ruptive "We never argued, however, that this case should have an impact OD the distribution of written materials; they don't pose a captive audience , JusticeThlll"&ood Marshall prob lem " •

In a significant victory for high delinquents or teenaae pregnancy. were based upon course completion. school newspapers, the Eighth Circuit However, he objected to three "per­ But the appeals court held that Court of Appeals ruled on July 7 that sonal" accounts of pregnant Ha­ "although Spectrum was produced by the Spe from at Hazelwood East (Mo.) zelwood East students which described. the Journalism TI class. it was a 'stu­ High School is a public forum and their use and non-use of birth control dent pUblication' in every sense. The that 1he principall violatelil the Fitst methods.- students chose the staff members, de­ Amendment rights of three" former Ahhough the three females inter­ termined the articles to be written and arti- and student journaiisl by ce- rin viewed gave permission for use of printed. determined the content cles in 1983. their comments and were not namoo of those articles." - The court, inreversing a May 1985 in the story, Reynolds maintained that federal district court de i ion, said in readers would still be able to identify Kuhlmeier v. -Hazel ood School Dis­ them. He also claimed the mateii.a1 lriCl, No. 85-1614 (8th - if. JUly 7, was ''too sensitive" for the "immature 1986), "We hQld that: petron-I is a audience of readers" at Hazelwood - a public forum (or the xpresion of East. ,: ,. " ... Spectrum is student opinion and tbat -the-articles Reynolds censored another, story public forum for the objected to by the admini trafOrs which investigated the impact .of. di­ could not have �nably �n fore­ vorce on children because the r¢l>orter expression of student cast to matcriaJl di rupt cla work, failed to contact the parents to explain opinion and ... the - give - ri.se to ub tantial disorder or or rebut the quoted statementS Ofth e invade Ihe rights of olhers. According­ children. Reynolds said the feporterS articles objected to ly, we hold that the dell.'tioD violated thereby violated the "rules oLfairness" the F.irst Amendment rights of the in journalism which justified his by the administrators student gtaff" censorship. could not have been "The opinion was totally on our Reynolds also justified ceqsorship side," Leslie Edwards, the students' of both stories, claiming they could forecast to materially attorney, said. "It didn't hedge aD have warranted an invasion of priva­ disrupt classwork." anything." cy. Robert Baine, attorney for Ha­ In May 1985, the U.S. District zelwood., filed a motion for a rehear­ Court for the Eastern Di�ct of Mis­ ing by all the justices on the Eighth souri held that Reynolds had the right CircuiL to delete material from tne newspaper. uIn light of the Supreme Court's The court said that Spectrum was an The Student Press Law Center, decision in the Fraser (Bethel High integral part of the schOol's curric­ which filed a friend of the court brief School No. 403 v. Fraser, see story this ulum, not a public foru.n1, and there­ on behalf of the $ee former staffers, issue) case," Baine said, "I think there fore was not entitled to extensive First said in its brief that several facton is a good chance to affirm the lower Amendment protection. Because the disti.nguished the paper from a "labo­ court's ruling." Hazelwood East publications policy ratory exercise." Mark Goodman, The dispute began in May 1983 required prior fe\ 'ew, the judge ruled SPLCs executive director, said these when Principal Robert Reynolds or­ that the principal 'and adviser did included the depth of- its content, its dered the paper's former adviser, Bob have control over the paper's content distribution. and the extent to which Stergos, to delete a two-page spread The c.ourt declared that the principal the adviser 'aclu�ly influenced choice containing articles reporting on teen­ did not ba\'c to pro ve that a substan­ of materialprinted. age pregnancy, runaways and the ef­ tial dilirupLion would result �m the Goodman noted. that the paper fects of divorce on children.e R ynolds publicatjon. published e

!nrolled in the course could submit sion of the rights of others." Edwards said it was the first time a uticles for publication. The court held that Hazelwood coUrt ruled that an "invasion of a The district court had also held that officials could not have reasonably right" must rise to a tort level for :ensorship of non-libelous, non­ assumed that the articles in question administrators to be justified in an act )bscene material in a "classroom exer­ would "materially disrupt cLasswork of censorship. :ise" such as Spectrum is justifiable or give rise to substantial disorder." The constitutionality of the school's )rovided the principal show a "sub­ "There is no evidence which sup­ publications policy was also an issue itantial and reasonable basis" for his ports the administrators' fear that the in the case. Although the policy per­ Lctions. It said that Reynolds had pregnancy case study would create the mits prior restraint, it doesn't offer ione so through his concern that the impression that the school endorsed specific criteria as to what material trticles discussing topics such as teen­ the sexual norms of the students inter­ may be censored. It fails to include tge pregnancy were "not appropriate" viewed," the court added. guidelines whereby administrators can :Or Spectrum readers "given their age In dealing with the articles' inva­ reasonably predict that certain materi­ !.Od maturity." sion of privacy question, the court al will cause serious disruption, and The appeals court, however, point­ said that "we agree that school offi­ does not provide for prompt review � out that the board of education's cials are justified in limiting student and appeal. Also, the policy does not >olicy 348.51, entitled "Student Publi­ speech, under this (Tinker) standard, define tenns such as "obscenity," ;ations" provides: "School sponsored only when publication of that speech "disruption," "distribution" and "d� itudent publications will not restrict could result in tort liability for the fama tory. " Tee expression or diverse viewpoints school. Any yardstick less exacting The courts declined to rewrite the "ithin the rules of responsible journa­ than potential tort liability could re­ regulations for the board of education, ism." sult in school officials curtailing but said that it believed "the board of Citing the 1969 Supreme Court speech at the slightest fear of distur­ education and the school administra­ lecision in Tinker v. Des Moines bance." tors will make such adjustments to the 'ndependent Community School Dis· "We conclude that because no tort regulations necessary to comport with rict, the court said that before a action based on the articles could have the constitutional standards outlined ;chool official can legally prevent pub­ been maintained against Hazelwood in this opinion." ication of material, he must demon­ East, school officials were not justified The court also indicated in a foot­ ,trate that the student expression in censoring the two articles based on note that prior review and restraint 'materially disrupts classwork or in­ the Tinker ' invasion of the rights of could be permissible if the least re­ 'olves substantial disorder or inva- others' test." stricti ve means were followed..

6 SPlC Report Fall 1986 COURTS New York Students not covered under N.Y. shield law

A Nassau County, N.Y., state court judge ruled in May that student jour­ nalists are not covered under New York's shield law and must clivulge confidential information if subpoe­ naed. William Berezansky, a student re- porter for the New Voice at Hofstra University in Uniondale, wrote about a September 1985 fight involving Hofstra students outside a local bar where up to 10 men beat up two otbers in what he described as a figh t between fraternities. .Berezansky had quoted several witnesses to the inci­ dent who requested anonymity and was subpoenaed in the criminal as­ sault case this spring. As' a result , Berezansky testified at a pre-trial hearing in June. A May issue of Newsday quoted Judge Jerome Medowar as saying, "The Hofstra New Voice is not a newspaper as defined by the New York Shield Law. Accordingly, the Schor's claim through Berezansky's nOles, memoranda, documents , re­ Hofstra reporters are not professional testimony. ports and news articles regarding a journalists since they do not work for The judge 's ruling on the subpoena fight at McHebe's Depot. .. inc1uding a newspaper." was part of his decision to allow a all notes of interviews with wit­ Section 79-h of New York's Civil speciaJ pretrial hearing in June on nesses." Rights Law states that for a publica­ how the defendants were identified. Berezansky, however, said that he tion to qualify as a newspaper, it must Calling the identification process didn't reveal any off-the-record infor­ have a "paid circulation." "suspect," Medowar said that without mation during the pretrial hearing. "I Although the state has a shield law the special bearing the defendants �estified only as to how the plaintiffs that gives professional journalists an could not get a fair trial. identified the attackers . I answered absolute right to refuse to reveal con­ Marvin Zevin, Bere2ansky's attor­ the questions with information that fidential sources, the statute does not ney, asked the court to recognize a was given to me on the record," he cover student reporters, under the First Amendment privilege that said. "The answersI gave didn't both­ court's interpretation. would protect the student and his er me. I don't feel [ gave any priv­ In the New Voice stories published sources. But Medowar ruled that the ileged information." on September 23 and October 1, Sixth Amendment right of the de­ Marvin Zevin, Berezansky's attor­ 1985, Berezansky Quoted several fe.ndant to a fair trial outweighed ney, agreed, saying that Berezansky anonymous witnesses about the fight. whatever First Amendment rights Be­ only told the court what the com­ In one paragraph, he wrote that a rezansky might have. plainants had told it about identifying witness saw one of the victims "lying Medowar said, "The defendants the assailants so the court could com­ on the concrete, with approximately have a right to a fair triaL.the free­ pare the testimony to verify it. to guys around him, punching and dom of the press is not an absolute "William bas never divulged his kicking him . The witnesses, wishing right. The FlI'St Amendment privilege anonymous sources," Zevin said. to remain anonymous, refused to of freedom of the press can be denied "From my point of view," Kun1c:en identify those involved." in favor of the right of the accused to said, " Berezansky clidn't disclose Attorney Stephen Kunken, who a fair trial." anything that was confidential. The requested the subpoena, said that his Initially , Kuoken subpoenaed both court ruled that he couldn't withhold clients, Gregory Schor and two other Berezansky and Bari Coben, another the information we were seeking " defendants charged in the fight, were Hofstra reporter. He then decided to based on the situation of the case. identified through photographs of the dropthe subpoena against Cohen, but Kunken said it was unlikely that he football team that Hofstra security continued to press Berezansky be­ would subpoena Berezansky again, officials showed the vicitms. Howev­ cause Kunken believed he had more but added, "I'm reserving roy rights er, Schor said he was misidentified. information. to do so." The triaJ will begin in

Kunken hoped that he could verify The subpoenas called for "all September. _

Fall 1986 SPLC Report 7 COURTS Minnesota Fridley High battles two court cases Appealing prior review case; sued over suspensions

Weather is not {be only hot topic of publications is a violation of the First School board member Joe Lapinski hscussion this summer in Minnesota. Amendment. The school appealed the and other school officials said it \t Fridley High School in suburban decision to the Eighth Circuit Court of wasn't what the paper said, but the Viinneapolis, the air is tense and pres­ Appeals. The case should be heard way it said it, citing "totally inappro­ ,ure high as the school appeals one sometime this fall. The Student Press priate language." ;ourt decision and faces another law­ Law Center flied a friend of the court Although Goldman considers the .uit filed against it in June. brief supporting the students' position. case an opportunity to broaden stu­ The first case involves the school's Meanwhile, the school's prior appro­ dents' First Amendment rights, lap­ breat to suspend the student pub­ val policy wiU be void unless it's insld views it as an important means ishers of an underground newspaper, successful in convincing the circuit to retain school authority to stop four de Farce, in spring 1985 if they court to reverse the ruling. distribution of obscene material to tid not submit the paper to the princi­ Attorneys for both the school and students. )al for editorial review before distrilr Tour de Farce publishers agree that The school attached to its reply 1ting it. Aft er exhausting the case cOuld set precedent on stu­ brief before the Court of Appeals the tdministrative remedies within the dents' First Amendment rights that paper's last issue, which it did not .chool, publishers Cory Bystrom, John would measurably affect the seven include during district court proceed­ ::::oUins an d Martin Saperstein, joined states served by the Eighth Circuit. ings. Foley then filed a motion to )y students Adam Collins and David Jan Goldman, an attorney rep­ remove the issue fromthe brief. which )rangeid, ftled suit. resenting the students, with the Min­ will be decided during oral argUments In March ) 986. a Minnesota federal nesota Civil Liberties Union (MCLD), before the appeals court. listrict court, in' Bystrom v. Fridley said, "I think we have an absolute "V au cannot introduce new evi­ lJigh School. No. 3-85-91 1 (D. Minn. winner of a case, If they appeal, it just dence at the appeals level," Foley said. lAarch 5, 1986), granted summary means we'll win in a higher court and "There have been definite rulings on udgment for the students, ruling that have an effect on all schools in the that." my prior review of unofficial student Eighth Circuit." The second case involves the sus-

B SPL C Report Foil 1986 COURTS pension of Bystrom, Drangeid and said he didn't overreact by suspending handbook, they had until June 27 to Adam Collins on Tuesday, June 2, the publishers, but "really believed" take makeup exams and clear incom­ fo llowing an article called "Slash and they could have incited other students plete grades from their report cards. A Trash '86," that appeared in the paper to vandalize teachers' properties. school official said all three were good. the day before. Attorney Stephen Foley, who also students and the suspensions could The article reported that the home represents the students, called Ingval­ damage their high school records only of Adele Gorman, fo reign language son's comment "nonsense." ifthey failedto arrange makeup tests. teacher, had been vandalized, with "There was no reason to suspend In St Pa ul, U.S. District Judge tires slashed and the house pelted with the students," he said. "Nothing in the Donald Alsop rej ected Foley's request eggs, spray�painted and covered with newspaper incited students to vandal­ fo r a temporary restraining order that shaving cream. School Superintendent ism." would have allowed the students to Dennis Rens said the articles said that In June, Foley filed suit in federal take their final exams as scheduled. many students attending Fridley district court, claiming the suspen­ The students completed the exams on would like to claim responsibility fo r sions violated the students' rights to time, but Foley said there was "some the act. It also said, "We at To ur de due process and free speech. As of question as to whether they received Farce find this act to be pretty damn mid-July, he was taking depositions of all the preparatory materials to take funny." school officials and teachers and ex­ the tests." Rens said the suspensions were due pected the discovery · process to be MeLU Executive Director Mat­ to the article's content, not its distri­ finished sometime in September. thew Stark said he will seek a penna­ bution. School officals believed the The suspensions occurred twodays nent injunction to remove the paper had advocated student vandal­ before the end of school and prevent­ suspensions from the students' files ism against teachers. ed the students fr om taking final ex­ and to stop the schools from taking Assistant Principal Brian Ingvalson ams. According to the student such action again .• Nebraska Paper can constitutionally reject ads Court rules that paper has absolute editorial control

In a victory fo r student editors, a ual roommates. against the paper and publications federal district court ruled on June 13 T.1e publications board had already board, alleging that the refusal to that the University of Nebraska's established a "non-discriminatory" print their ads was a violation of the student newspaper is not compelled ad policy stating that the newspaper First and Fourteenth Amendments. by the Constitution to take advertise­ should not accept ads fo r roommates Jerry Soucie, the students' attorney, ments from persons wishing to ex­ that specified race, religion, or mari­ has filed a motion fo r a: new trial. press their sexual · orientations when tal status. The ads could only indicate In the opinion, the court deter­ selecting roommates. gender and smoking habits. After mined that no "state action" was "The campus newspaper of a state reviewing the homosexual ads, the present with regard to the editorial supported university is entitled to the , board added sexual orientation to its decisions of the paper. constitutional protections afforded policy. "It must be conceded that the the 'press,' including freedom of ex­ Pearn and Sinn then filed suit Daily Ne braskan is an instrumentali­ pression fo r the editors," the court ty of that state and a creation of the said in Sinn v. Th e Daily Nebraskan. University of Nebraska-Lincoln, and No. CJ85-L-556 (D. Neb. June 13, thus is sponsored by the state." 1986). "The degree of discretion "The campus news­ However, the court added, "the which editors utilize in rejecting ad­ campus newspaper is not an agency vertisements is not distinguishable, paper of a state sup­ of the state fo r all purposes. In its under any First Amendment analysis, editorial decision making the Daily from that exercised over any other ported university is Nebraskan functions like a private submitted material." entitled to the consti­ newspaper. Thus, the exercise of edi­ Therefore, the court added, "Re­ torial discretion does not constitute jection of an advertisement is a con­ tutional protections state action." stitutionally protected editorial Another issue in the case was decision." afforded the 'press,' whether the board could constitution­ The decision ended a two-year legal including fr eedom of ally control the paper's editorial deci­ battle pitting the University of Ne­ sions. braska-Lincoln student newspaper expression fo r the ed­ The board governs the paper's and publications board against stu­ business affairs and oversees its com­ dents Pam Pearn and Micheal Sinn. itors. " pliance with a code of ethics for In 1984, the Daily Nebraskan refused student publications. to accept their ads seeking homosex- continuedon next page

Fall 1986 SPLC Report 9 ----_._------COURTS ------

During trial testimony, the court equal access to its pages. "The plaintiffs' freedom to express said, some of the board's members "The Daily Nebraskan has not con­ their respective sexual orientations believed that, in effect, the self-de­ sented to unrestricted acass by the does not prevailagainst edito rial free­ scriptive ads discriminated against general public to its pages," the court dom of expression." non-gay or non -lesbian readers as said. "There is no evidence that the Sbattil was pleased with the deci­ would an ad stating "on ly homosex­ Daily Nebraskan has relinquished its sion, because "it said the student uals need apply." editorial control over advertisements press basically has the same rights as Dan Shattil . the Daily NebJ1lskan's by accepting proffered material as a a commercial newspaper and that the business manager, testified that the matter of course. It is the presence of board could not have directed the policy barring sexual orientations was this editorial discretion which pre­ edi tor not to publish the ad had he first made by the paper and then cludes a constitutional right to access wanted to." adopted by the board. to the columns of the newspaper. Shattil said that even if the judge In defining the proper relationship Consequently, neither newspapers in had ruled there Was state action and a between the paper and the board, the general nor the Daily Nebraskan in limited public fo rum did exist, the court said that the "Publications particular may be characterized as a paper needed only a reasonabLe ex­ Board acts as publisher for the Daily public fo rum." cuse not to take the ad .• Nebraskan and is responsible for the

newspaper's general business opera­

tion. However, the Daily Nebraskan is editorially independent.

"Thus, the info rmation , opinions and ideas expressed in the Daily Ne braskan are those of the editors and writers presently operating the newspaper and not those of the Uni­ versity." The court added that although the board is responsible fo r assuring that the paper"s material is "within the code of ethics, this in no way suggests that the board can censor the content of the student newspapers:' Though the board supported the editor-in-chiefs prior decision not to print the ads, and then amended its discrimination poLicy fo r advertising,

the court said "nevertheLess, the stu­ dent advertising editor ultimately in­ terpreted and necessarily applied the

policy. Moreover, the University, act­ ing through the Publications Board or otherwise, could not have directed the DaiJy Nebraslam not to publish the advertisement had it chosen to do so. Censorship of content impermis­ sibly would exist if the University were to dictate what the Daily Ne­ braskan could or could not print." "We were disappointed.," Soucie said. "We think the judge erred when he said there was no state action I involved. The publications board is : I I directly appointed by the Regents, which control funding and the news­ I I paper operates without having to pay rent or utilities." The court said, though, that its decision would have been the same had it decided that there was state action.

The court disagreed with the stu­ ---' --' dents' claim that the paper consti­ tuted a public fo rum and they were therefore unconstitutionally denied

10 SPlC Report FOil 1986 - _. . -., -.- ._--- ADVISERS Oklahoma Adviser continues fight with Putnam High

After being fired fro m her position Bleakley disagrees. "This is not a that because of their attorney-client at Putnam West High School in 1984 First Amendment issue," he said. privilege, they could not be fo rced to as newsP.flper and yearbook adviser, "There were other personnel reasons answer questions abou t tbose meet­ and then reassigned as a junior high (for MiHer's dismissal)... prior to the ings. English teacber, Patric ia Miller awaits issue of the paper." "The fact is," Onken said, "that he her chance to ft re back. Since a March 1985 settlement con­ (the judge) has already issued the Attorney Judith Onken expects fe rence fai led to resolve the legal dis­ order twice, and if he intended fo r his Miller, wbo filed suit against the Put­ pute, Onken has atte mpted to get order to (cover only sessions involving nam City School District near Oklaho­ Bleakley and his associate, Linda the school board), then he would have ma City, Okla., soon to get that Meal ey, to disclose what happened in said so." a May 1984 executive session held by chance. "The case has not yet been set As of this writing, Onken was fo r trial, but we think it will be by the the school board and in subsequent asking fo r yet another clarification. first closed meetings of the board and its end of August or the of Septem­ Onken added, however. that she ber." attorneys. had enough "circu mstantial evidence" MiUer claims she was fired for Onken filed a motion to compel, to prove that Miller was dismissed requesting that details of all allowing the student newspaper, the meetings and transferred in violation of her To wn Cryer, to publish a six-part be disclosed, which was granted. First Amendment rights, even without birth control. tee ­ Bleakley and Mealey, however, con­ series on abortion, n obtaining information fr om the closed age pregnancy and adoption. The arti­ tend that the judge meant only that sessio ns. cles, written by seven student the board's executive session be dis-­ reporters, appeared on April 4, 1984. closed, not meetings involving the The court, Onken said, referred to Onken said the school's major com­ board and its attorneys. Through the the "timing of the dismissal of Miller plaint concerned a chart describing judge's order, Onken learned that in as very coincidental.'· She pointed out contraceptives and their reliability and the May 1984 board meeting, the that during Miller's ten years as advis­ effect on sexual activities. Putnam superintendent announced he er, the newspaper had won 65 journa­ The Putnam City School District's would reassign Miller, after her dis­ lism awards. Also, MiJier received the Student Publications Gu idelines re­ missal as adviser. 1985 Beachy Musselman award, pre­ quilt: the newspaper to reflect "school After Bleakley and Mealey refused sented by the Oklahoma Press Asso­ and co mmunity philosophy in publi­ to disclose details in meetings they ciation, fo r aid ing the advancement of cation content" and "to assure relia­ attended, Onken requested the judge pri nt journalism. bility and good taste." to clarify the order. Onken contends "Miller is recogn ized in the journa­ Although the administration fo und that on clarification, the judge said lism community as quite a compete nt tbe ,;hart in poor taste, Onken argued that an meetings must be di sclosed, adviser," Onken said. "She was fre­ that the "articles dealt wi th the issue saying there was no executive session quently called upon to speak at vari­ of teenage pregnancy in a balanced pri vilege under fe deral law. ous joumaJjsm seminars, and received and responsible way." But Blealdey and Mealey argued excellent evaluations at the school. .'. Even William Blealdey, attorney for the school district agreed., say ing, "The article was probably co nsidered co ntroversial, but I think the attitude about tbe quality of the article was that it was a pretty good issue." The sch ool also said that Miller fa iled to comply with an unwrittten regulation to clear controversial issues with the administration before pub­ lishing them. Onken had tried unsuccessfully to settle the two-year dispute out of COUJ1, but said that "there was no middle gro und for settlement; no give there." Miller is seeldng reinstatement as faculty adviser of both the newspaper and yearbook. Onken is requesting compensatory and punitive damages because she contends that the school district "acted in bad fa ith" and vio­ lated Miller's constitutional rights.

-:-:-:-::-::------_. __ ._---_._-_.__ ._ .._._ ...... _ ...... _ ..... -_... -....._ --_._...... _ ... _. Fall 1986 SPlC Report 11 ADVISERS

Illinois .. . A tale of twists and turns at Northern IllInoIs Adviser removed, then reinstated; president resigns Since early spring, the small city of Wingfield, who was fo rced to re­ We've simply acted to correct that. DeKalb, ill., home of Northern llli­ sign after Illinois lawmakers ques­ He's seized theom freed of the press nois Uni versi ty, has been a big source tioned his performance fo llowing issue to resist a perfectl y orderly of news as the student newspaper's articles in the No rthern Star labelling administrative transfer." adviser filed suit after being removed him an "extravagant spender," con­ But Thompson said the decision to from his position and reassigned by tended that he replaced Thompson transfe r him was an attemptby Wing­ the university president, who was because of an internal audit critical of field to muzzle the student newspa­ later asked to resign. Star business practices. per, which has a daily circulation of -Jerry Thompson, who had been Wingfield said he was looking only about 17,500. At issue was Thompson adviser of the No rthern Star since at the bottom line when he replaced and the Star's editors' accusation that 1970, was transferred to a university Thompson. He believed that the ad­ Wingfield threatened their First public relations post by fo rmer NIU viser's perfonnance in overseeing the Amendment rights. president Clyde Wingfield on April paper's finances wasn't adequate. "We've got to have a free press," 30, fo llowing a series of articles crit­ 'There is not in any way a First Thompson said. "You can't let it be ical of Wingfield. In a U.S. district Amendment issue here," Wingfield eroded away, even on one little col­ court suit filed in May, Thompson said. "You cannot hide behind a lege campus." charged that the action was retaliate>­ symbol such as a free press to dis­ In his 15 years as adviser, Thomp.­ ry, and sought reinstatement and guise the fa ct that we've had fiscal son said he has di ligently encouraged $110,000 in damages fo r defamatio n and managerial non-feasance-at the paper's staff to put the spotlight of character. best-for the better part of a decade . on other people. "A newspaper's role is not to be a cheerleader fo r the administration," he once said. Thornpson and the Star's editors said Wingfield had been uncomfort­ able with th at sort of watchdog ap­ proach tojournalism. Wingfield took office in summer 1985. Before then, the university had performed two audits critical of the newspaper's finances, and John La Tourette, the president who preceded him, had ordered a blue-ribbon panel to look into the St ar's fiscal opera­ tions. According to NIU rules, because the newspaper is part of the uni vers.i­ ty, it must abide by the institution'S regulations fo r handling money. Be­ cause it is independent of the journa­ lism department, the adviser, the paper's only full-time employee, is directly responsible fo r the paper's finances. An internal audit completed in February discovered many violations of university policy: cash and checks were hidden in unlocked drawers in an unlocked office; records of finan­ cial transactions were missing; the paper's payroll was not properly oper­ ated; and on one occasion, the paper went 30 days without depositing money in its account in the university bursar's office, and then, within two days, deposited more than $55,000. Thompson and Star editors said they corrected many of the problems. They also pointed out that during

12 SPlC Report foil 1986 ADVISERS

Thompson's time as adviser, the pa­ longstanding dispute between the pa­ Thompson said NIU's attorneys per never lost money. At the end of per and administration. As a result, tried to blame him for Brod not last academic year, they said, it was the alumni, many who are now re­ showing up, "since I knew him per­ $90 000 in the black. porters and editors at various Illinois sonally. But the judge said, 'no, that Z , Right now," Thompson said in a newspapers, quickly fo rmed Alumni was your responsibility.' " mid-July interview, "we have a cash fo r a Free Press, a group that has Then, in a surprise move, NIU's balance of over $120,000, the largest since staged protests at the universi­ Board of Regents voted Thursday, the paper has had since I've been ty's graduation ceremony and law June 19, to reinstate Thompson, pen­ here." school commencement and has ding the outcome of his suit against In spring 1986, two issues concern­ started a vigorous letter-writing cam­ the university. However, university ing Wingfield received major cover­ paign to protest the decision. officials said the decision did not age by the Star. The first was the The group has also launched a mean that his job is secure. Board remodeling of his house, originally "Free Press Defense Fund," and is member James Wright said the re­ projected to cost about $35,000. encouraging other graduates to place gents voted 5-4 to permanently re­ According to the Star, the cost ex­ money in the fund, rather than giving move Thompson. ceeded $100,000. University officials it to NIU's scholarship funds. The Thompson's lawsuit is still pen­ priced the bouse's maintenance costs money will help pay Thompson's ding, with no trial date set. His law­ at about $63,000. The paper also legal fe es. yer said discovery could take a year. reported on the costs of Wingfield's Mike Royko, the Pulitzer Prize­ The regents' decision, Wright said inauguration ceremony, said to run winning syndicated columnist for the in a Chicago Tr ibune article, was $10,000 $15,000 Ch icago Tribune to and printed edito­ announced he because "we're taking so much beat rials attacking the use of university would return the "Illinois Journalist over this situation. That was a fa ctor funds. of the Year Award" given him by the in putting Thompson back." The St ar's editors said the series of school in 1971. Chancellor William Monat said the critical stories prompted Wingfield to "Freedom of the press is as impor­ board's action does not indicate a transfer Thompson. Wingfield, how­ tant at a college newspaper as it is at softer stance. "I think the regents' ever, contends the paper started the Chicago Tribune or New York strong fee ling is that the university printing the stories only after Feb­ Times," Royko said. "It's dear that has the prerogative to reassign people ruary, when a preliminary copy of the Thompson's removal will weaken and I think they are firmly com­ audit was given to Thompson. Wing­ what has been an aggressively inde­ mitted to that position," he said. field said the paper printed the arti­ pendent student newspaper." cles to make it look as though any In early May, fe deral judge Stanley Board member Clara Fitzpatrick action he might take to deal with the Roszkowski denied both a motion by said the regents will not seek a nego­ paper would be an attempt to squelch Wingfield's lawyer to dismiss the case tiated settlement. She said talks the articles. and a motion by Thompson's lawyer, ended when NIU counsel rejected "Immediately, a barrage of stories Kurt Klein, fo r a temporary re­ Thompson's requests of permanent appeared, designed, I believe, to cre­ straining order which would have reinstatement and payment of $20,000 ate the impression that any action I allowed Thompson to return as ad­ in legal fe es. would take would be retaliatory­ viser until the case is settled. "He is only reinstated because we which is patently fa lse," Wingfield Then in late May, the judge issued didn't want any more interruption in said. a fe deral court order allowing the Star operations," Fitzpatrick said. Thompson countered that many of Thompson to temporarily retain his "We fe el it will only be fo r two or the articles ran in the spring because position until approximately June 20. three weeks until we have a court that was when reporters were getting The judge also ordered journalism decision." the information. "The plain truth is, professor Donald Brod, appointed by Thompson's tentative reinstate­ 15- if we'd had the information in the Wingfield as the new adviser, to work ment also hinges on a study by a first semester, the stories would have alongside Thompson during a transi­ member committee of NIU's Univer­ run in the first semester." tion period that began June 2. sity Council asked to examine the In mid-May, after meeting with "The judge didn't want the news­ structure of the Star. That study does Wingfield, Carol Burns, chairman of paper's ability to be interfered with," not concern Thompson's past perfor­ the board of regents, issued a Thompson said, "so he gave the mance. statement, saying, "We have con­ temporary injunction to allow fo r the Klein said some have debated over cl uded that Dr. Wingfield's manage­ transition period." whether the paper should be an inde­ ment style at Northern was not Brod never appeared June 2 be­ pendent corporation instead of affil­ compatible with the board's expecta­ cause NIU's attorneys never in­ iated with the university. tions." A spokesman said the board fo rmed him of the judge's order. He said Thompson's reinstatement asked Wingfield to resign and he After listening to NIU attorneys apol­ was on a "permanent-temporary ba­ complied. ogize fo r not fo llowing instructions sis. Permanent, in that he will be John Pembroke, NIU's vice-chan­ set by the preliminary injunction, on adviser until the Star is restructured," cellor fo r administrative affairs, said June 18, the judge approved Thomp­ Klein said, "and temporary, in that the regents' decision was unrelated to son's request fo r a two-week exten­ the university committee will proba­ the St ar controversy. sion of the injunction until July 8, bly restructure the Star, but that Many Star alumni saw Wingfield's barring Thompson's transfer to an­ would take a fe w months or even a action as the culmination of a other campus post . year. " •

Fall 1986 SPLC Report 1 3 OPEN MEETINGS California UCLA ends open meetings dispute Newspaper and Chancellor's office reach compromise

In an effort to end a 16-month "The objective of the document," something," Pae said. "We (won't di spute at the University of Califor­ Sandbrook said, "is to reach an un­ pursue our right to) cover these meet­ nia-Los Ange les to determine whether derstanding, to have some procedures ings legally and they (UCLA) can't the student media and public should that will be uniform and consistent. arbitrarily close meetings." have access to university committee This is an agreement in advance to If a si tuation should arise in which meetings, the Daily Bruin student avoid having any controversy by a a committee chairman decides not to newspaper and the chancellor's office committee chairman." comply with the document because it agreed in May to work together to Both Pae and Richard Sublette, has no legal basis, Sublette said liti­ establish a document detailing which publications director, agree that the gation would be likely. committees o w uld be open. compromise is the first indication If the paper were to litigate it In preparing the document, Peter that the chancellor is "sincere ly trying would have to go through the Com­ Pae, Daily Bruin editor, and John to open up the university." munications Board to get funds to Sandbrook., UCLA's assistant cban- SUblette said the document will at pay fo r legal counsel and then use the least be a way to notify the newspaper "The objective of if and when a meeting will be closed. He added that if a committee chair­ the document," man does not notify the paper or " ...Ess entially, Sandbrook said, "is refuses it access to a meeting, the paper can appeal to the Chancellor. we've each given up to reach an under­ "Before, we've never had that oppor­ tunity," Sublette said. something," Pae standing, to have Sublette added, however, that said. "We (won't some procedures that without an eventual sign from the legislature manda ting that UCLA's pursue our right to) will be uniform and cam pus meetings be open, "it is fea si­ ble that this whole agreement could cover these meetings consistent. This is an come unraveled." agreement in ad­ " We're just going to give it a shot," legally and they Sublette said. "If it works the way we c ' vance to avoid hav­ and the chancellor want it to, then it's (UCLA) an t arbi­ a step in the right direction." trarily close meet ing any controversy The dispute i nvolved differing in­ by a committee terpretations of the California Bagley­ ings. " Keene Open Meeting Act, which stip­ chairman. " ulates that governmental bodies keep their meetings open to the public. A cellor, defined what constituted a 1983 amendment to the act made the student government's counsel. This committee, listed all campus commit­ University of California (UC) Board would be difficult, he said, consid­ tees and detenni.ned which commit­ of Regents, which oversees eight cam­ ering the adversary relationship be­ tees would be open. puses, including UCLA, subj ect to the tween the paper and the student The document was to be presented act. government. An individual, however, in its final fo rm to Chancellor Charles UCLA administra tors argued that such as an editor, couLd sue on hi s Young by the end of July, All open the open meetings law pertained. only own behalf. meetings procedures, Pae said, "will to the UC Board of Regents commit­ Pro blems began at UCLA in No­ in e ec this fa ll." be ff t tees and not to commi ttees on indi­ vember 1984 when the Associ ated The document affects nearly 100 vidual campuses. The Daily Bruin Students of UCLA (ASUCLA) Board university and administrative com­ said the statute covered UCLA com­ of CDntrol (BOe) refused to allow the mittees. The fa culty senate and com­ mittees. Daily Bruin and KLA, campus radio mittees not appointed by the "We disagreed with them," Pae station, to cover its tw

14 $PLC Report Fall 1986 OP,EN MEETINGS

dance of (he publicand student press. cy." don't compromise, you might if After dosely examining the state's Greg deGicre. press sp okesman fo rr e\'e.rYlhing, but then again you mig]: open mcetings laws, UCLA student state Sen. 8!!ri)f Kcco�. explained that gel nOlhing.." media disco\'cred that California op­ the UC system hud been left out of On Nov. 14, 1984. DirkW. van d erates under ,the Brown Act, which the Act in 1914 because Ihere �'8S a Bunt, fo rmer publisher of the Dail applies to local agencies within the commiuncnl s't thai time fr om bQth Bruin, wrote a letter to two stat state. and the Bagley-Keene Act, the statewide association or studenl \'egislalors urging that legislation b whkh eo\'crs the eight liC campuses, governments and Charles Hitch, fo r. sponsored which would amend th California SLale UniiveJl'sitles and state mer president of thc UC sy stem. that section to include the University ( agcDdes. campuscs wo uld .open tbeir meS'tings California. The problem wilh the Bagley­ voluntarily. That ,nc..-:er happened al Sen. � in response, sent a lctte Keene Act is that it does not mention UCLA. to UC President David Gardn the UC system. It states. "Under ihe So there was a compromise� de­ "blasting the university fo r den yio this access provision of atticle, the ,official Giere said. "The UC 8o�l(d of Rc.� student reponcrs to pubH' student body organization at any col­ gents includes ''some of the most meetings," lege of the Ca lifornia State Univcrsity politically powerful pcl'ople in the "I bel�e .. -e the legislature has th and Colleges.. or {)f the California state. Becau.se of verbal commit" clear constitutional ability to appl Community Colleges, shall be treated ments, the UC system was It'll out of the same· open-meeting requirement in the same maImer as .. s . state agen- the Act, Like any negotiation. if you to UC student governments, whicl legally exercise authority delegated ti them by the Regents, that it ba appljcd to the Regents themselves,' Keene said in a Jan. 28, 1985, letter. Chancellor Charies Young thel said that the BOC was part of UCLJ and nol private, but argued that i was exempt from the open mectirig requirements because the Act did .no iDclude t� UC system. However, the Daily Bmin repartee thai he bad overlooked the- 198; amendment to the act,. whicb w( the UC Board of Regents is subject t( the same rults thai· govern' state bdd IcS. Since the student $ovcrnment i: part of UClA, it is req ui.red 10 ro uo\, the ae-t because what applies. to tb( Rcgcnis applies to e\'erybody del e gated! authority by the Regents, · lbl paper argued. ASUCLA meetings.also had to· bf open because section I' 1121.2 of Ihl Act mandates ·that aO\I com millCl · which receives state fu �ds shall b( o'pen, regardless of whether it is. oper· au�d by a state body' or private oor· poration. !.be Daily Bru in reported. ASUCLA does recejve �ta(" fUD d! from both the General Fu nd anc stud(1nl tuition fees., which is ta�pa'Y' crs' mon�_ ChancclJor Young admitted he ww wrong in· claiming that the ASlJCL-A Board of Control was exem pl from the slate open meetings act, and said thai tfIe "BOC is tryins to take art ion to show that laken in spirit 1t \\'iU ·not go againstthe Bagley· Keene Act" With that baruc won, UCl�,!\ sm· dent media faced another. In No vem· ber 1985, a Daily Bruin and a Kl� radio reporter were barred trom at UCL . fm anciaI aid policy meeting. Executive Vice Chancellor William co1l11nuaJ" " nutpaK! Fall 1986 SPLC Report 15 OPEN MEETINGS

cOnlinuedfrom previouspage other subsidiary boards are just as absurd situation." Schaeffer had reasoned that the room significant as the main bodies. There­ "If that position is correct," de­ was too crowded and asked reporters fo re their meetings should also be Giere said, "any campus of the �C to leave. • open. system could establish a subcommIt­ In the same semester, the Daily DeGiere agrees: "Because the Re­ tee of the Board of Regents and Bruin was not allowed to attend a gents have delegated authority to delegate authority to the subcommit­ UCLA Academic Senate Committee student government and the fa culty tee and then do everything in secret on Educational Policy meeting, which senate, their committees should be because the state constitution says made a recommendation regarding open. nothing about subcommittees of the the school's add/drop deadline. But James Holst, counsel fo r Regents." UCLA, said that according to the Tyrone Netters, a spokesman fo r Chancellor Young, in an apparent California constitution, article 9, sec­ legislator Gwen Moore, author of the contradiction of his earlier statement, tion 9a, only meetings of the Board of 1983 amendment, said the bill covers said the Bagley-Keene Act "pertains Regents should be open. "95 percent" of all UC activities. to meetings of the Board of Regents "The authority of the legislature to Netters said exclusions are limited and committees of the board and no enact legislation regarding open meet­ to areas such as UC hospital con­ other entity withiri the university." ings extends only to the Board of tracts, national security and personnel But because Section 11121.1 of the Regents and their committees," Holst matters. act says that '''State body' also means said. "The Educational Code restricts "The fundamental question here," any board, commission, committee, legislative authority relating to the Netters said, "is what would any or similar multi-member body which UC system beyond that." He added committee possibly want to meet exercises any authority of a state that California's attorney general sup­ about in private that the public body delegated to it by that state ports his position. should be excluded fr om, unless it is body," the Daily Bruin argued that Based on Holst's reasoning, de­ an executive session? They don't the act implies that all advisory and Giere said, the "end result is an have that right.". Mississipp i States address issue of open meetings law The Mississippi Supreme Court discussions with education officials. would encourage fra nk discussions. ruled on Oct. 2, 1985, that the The state supreme court affirmed The reviews are studies by out-of­ College Board, which governs the Robinson's decision and denied the state consultants who evaluate each state's eight pUblicly sUppOrted uru­ board's 'request for a reb,¢aring on program and department at the versiiies, 'must a.dhere' 'to ihe ' state;s Novdnber ' 6. The Court' held that eight state universities. open meetings law. the luncheon and sessions with The court ruled, however, that Mississippi Publishers Corp., institutional heads were "meetings" the reviews are "a legitimate inqui­ publisher of The Jackson Daily and that all deliberative stages of ry into the operation of a public News and Clarion Ledger, sued the the decision-making process that body" and produce valuable infor­ College Board after a reporter was lead to "formation and det.ermin­ mation which should be available excluded from meetings between ation of public policy" are required to prospective students and their the board and university presidents to be open to the public, parents .• and a luncheon with student editors "The Board's power to manage fr om each university. and control," the Court said, "is Stuart Robinson, Hinds County not unconstitutionally infringed Missouri Chancellor, ruled on Sept. 20, 1984, upon, interfered with or diminished that the College Board violated the by submission to the requirements A bill proposing to open Univer­ state's open meetings law when it of open meetings; openness, howev­ sity of Missouri meetings to the held the closed sessions. er, may be unpleasant." public finally reached the fu ll Mis­ The College Board appealed the "Nevertheless," it added, "in a souri House of Representatives ruling to the state supreme court. democratic society, the public's with a 7-2 vote from the Govern­ The board claimed that because it business must be open to maintain mental Review Committee in Feb­ was created by the state constitu­ the public's confidence in its offi­ ruary. tion and mandated by statute to cials. " Sponsors say the proposal, which govern state-supported universities, David Hardin, executive editor fa iled twice in two years, will not its constitutional duties conflicted of Mississippi Publishers, said the pass this session since other legis­ with the open meetings law re­ ruling "certainly broadened the ap­ lation has a higher priority. quired by statute. The board as­ plication of the state's open meet­ The bill, if passed, would open serted that the open meetings law ings law, and that it pretty much up meetings below the curator lev­ has to "yield fo r it to effectively upheld its intent. But the litigation el, by changing all references of function and perform its constitu­ should have been unnecessary." "governmental" bodies to "public" tional duty." The 13-member board The board also tried to keep its bodies. It would also allow access argued that the decision would in­ academic program reviews confi­ to internal audits, private consul­ hibit it from conducting candid dential, claiming that pri vacy tants briefs and other reports .•

16 SPLC Report Fall 1986 LIBEL

New Hampshire Dartmouth resolves Rev. Hyde's· l.ibel suit

A libel and invasion of privacy suit Hyde's lawyer, Jill Gonya, would those articles,", brought againstthe Dartmouth Review not discuss the case, except to say, "I Hyde claim�d the libelous articles was settled after the paper published believe Rev. Hyde is satisfied" Hyde were published fo llowing an April an apology for printing "false and left Dartmouth in summer 1985 and 1983 lecture be gave on "A Christian misleading" information about a fo r­ could not be reached fo r comment. Understandin� of Love and Sexuali­

mer associate chaplain of Dartmouth The apology, printed in the Re­ ty, " Among other charges, his suit said College in 1983 and 1984. view's special graduation issue last the paper incorrectly reported that he The apology ended a $3 million suit spring. said that two articles about defended the Man":Boy Love Associa- filed last year by the Rev. Richard H. Hyde "gave a false and misleading tion. \ Hyde against Hanover Review, Inc., account of his views on certainaspects In the April 't.6" 1984, issue, the the Review 's publisher, and fo rmer of Christian morality and life . In addi­ Review wrote a parairaph in its satiri­ editors Dinesh D'Souza and Andrew tion, one of these issues contained cal column, "The i Dartmouth liber­ \ Pickens. false and misleading infonnation ation Fr ont," sayifig, . ''This associate "The settlement was acceptable to about the Rev. Hyde' s personallife ." chapJain is barely a ClIristian. He is both sides," Peter Hutchins, the Re­ "While we did not and do not agree possessed by an uncontrollable rage, view's lawyer, said. "There were a lot with what the Rev. Hyde said," the which contracts his '.epicene manner of fa ctors involved and we seemed to paper continued, "we respect his right and generates a comic \effect. Hyde fee l that this was the best way to end to speak, as he respects our right to sometimes has a good �ord fo r the the litigation." speak and to publish this newspaper. North American Man-Bpy Love Asso-­ Hutchins added that there was "no Therefore, the Review and those re­ ciation, which may be. liis idea of action or attorneys' fee s involved," sponsible for these arti cles apol0gi2e perfected Christianity, Last fall he but would not comment further on the for any harm that may have resulted married a girl he had �et only six settlement or say whether Hyde re­ to the Reverend Hyde, and retract any weeks earlier." , \ ceived damages. and all fa lse info rmation contained in Hyde claimed the Revie'f published "several articles containing'thlse, mis­ leading., and inflammatory'. informa­ tion about his professiona1 and

personal life," which he said were

"done negligently, intentionally,' m(ili­ ciously, and with reckless disregard. to r the truth." Hyde further charged that the sto­ ries caused "severe emotional distress, embarrassment, indignation, including anxiety over the potential loss of his

position at Dartmouth College," t

Several articles, he said, "have been

read.. . by a substantial and res�ble number of individuals both within and outside of the Dartmouth College community, to impugn the integrity and moral character of Rev. Hyde." According to the Review, Hyde blamed the paper, at least in part, fo r his not being promoted to Dean of the Tucker Foundation, and Position tra­ ditionally awarded to one of the col· lege chaplains. In late 1984, the new Tucker Dean was appointed by a special committee created by the university president. Administration sources, the Review said, told the paper that Hyde's con­ , l , troversial leftist stances on issues such as abortion, homosexuality and pre­ marital sex had put his career at the college in "severe jeopardy." For whatever reason, Hyde was not ap­ pointed.•

Fall 1986 SPLC Report17 LIBEL Supreme Court decisions High Court gives media ITlajor libel victories

The U.S. Supreme Court gave the file libel suits must prove in trial that the court, in a 5-4 decision, ruled that media two significant libel litigation information was published with actu­ people who sue fo r libel must prove victories in recent months, both of al malice, that is, knowing the infor­ that the statements at issue are fa lse. which should serve to discourage libel mation was fa lse or recklessly In that case, Philadelphia Newspa­ complaints fro m being filed. disregarding whether it was true or pers, Inc. v. Hepps. \06 S. Ct. 1558 In June, the Court, in a 6-3 deci� fa lse. (1986), the court ruledthat the person sion, decided that libel cases brought This case arose when the Liberty who claims statements are libelous by public figures must be dismissed Lobby, a self-described citizens lobby, has the burden of proving they are before trial unless they show "clear filed suit against columnist Jack An­ false. Before this ruling, some courts and convincing" evidence of their derson, over two articles printed in a had placed the burden of proving the claims. The case, Anderson Y. Liberty 1981 issue of a magazine published statements were true on media de­ Lobby, 54 U.S.L.W. 4755 (U.S. June by Anderson. The article portrayed fe ndants. The side that has the bur­ 25, 1986), centered on how much th e group as nea-Nazi, anti-Semitic, den of proof has the responsibility of evidence public figures need to defeat racist and fa scist. providing evidence to substantiate his a defense motion fo r dismissal of a The decision is seen by some as claim, thus the harder job of winning case that the defense contends is so likely to clear court dockets of a large his case. weak that it should not go to triaL number of libel cases and save media This decision is expected to dis­ Dismissing a case before trial, defendants substantial sums in lawyer courage additional libel suits.• known as a summary judgment, is fe es and libel insurance premiums. important to news organizations be­ However, other observers say the cause they can save the considerable opinion does not precisely spell out Rhode Island time and expense of trials. Requiring how this tougher standard is to be clear and convincing evidence of libel applied, which will lead to confusion is a higher standard of proof than is among the lower courts. Parties settle usually required in civil cases. The opinion was the second in less The Supreme Court has said that than two months in which the court libel suit filed public officials or public figures who ruled in fa vor of the media. In April, against editor

A libel suit ftled in January 1984 by school committee member Wil­ liam O'Coin against a Cumberland (R.I.) High SchooL student, was settled in January according to the statecourt clerk. Colin Murphy, fo rmer editor of the student newspaper, the Clipper Courier, wrote an editorial criticiz­ ing O'Coin's absentee rate at school committee meetings after O'Coin had referred to teacher absenteeism at the school in a local newspaper. Murphy wrote, "He seems to be enjoying the unreasonably warm weather during the month of June . .. when his attendance rate (at committee meetings) was a mere 25 percent." O'Coin was asking for $1 million in damages. O'Coin's attorney Howard Croll confirmed that a settlement had been reached but would make no further comment. Murphy's attor� ney was unavailable fo r comment and James SantanieIlo, representing Cumberland High School, would only say, " That' s a litigation mat­ ter. I'm not at liberty to discuss it.".

1 8 SPLC Report Foil 1986 LIBEL Texas Accuracy in Academia sued for libel Texas A&M teacher claims quotes inaccurate

A professor at Texas A&M Univer­ "Virtually none of the stories come small paragraphs." This article con­ sity has filed a libel suit against Accu­ from student monitors' reports about tained the disputed quotations. racy in Academia fo r an article professors' classroom statements," Norton said a Ba ttalion editor told published in its November 1985 bi­ The Na tion wrote. "For the most part, him that "those quotes weren't exactly monthly newsletter that was sent to they are from accounts that have accurate. " nearly 200 college newspapers around appeared in print elsewhere." "The article was laughable," Ander­ the country. The Na tion incorrectly reported sen said. "It was so ludicrous that I Professor Terry Anderson, who that the University of Minnesota's didn't write a reply. I didn't think. won the college's teaching award in Daily published A.I.A.'s story. What anybody would take it that seriously." 1984, was quoted in the A.LA. article it did publish was an opinion piece Then, Campus Review, a Christian as saying, "I do not believe in the written by then-managing editor Mi­ magazine published by student writers institution of marriage .. .I'm an athe­ chael Norton, now a reporter with the in Texas, republished the flawed arti­ ist . .I am not patriotic toward Texas St. Cloud (Minn.) Daily Ti mes. The cle. It was fr om Campus Review, A&M, the flag or America." article, Norton said, was about "why Norton said, that A.LA. took the Les Csorba, executive editor of the we didn't publish the story, why it quotes fo r its story published in fall newsletter, and Matthew Scully, asso­ was potentialy libelous and why they 1985. It never checked the accuracy of ciate editor, wrote in the article that (A.LA.) did such a lousy job reporting the material with the Battalion, Cam­ "Lucifer himself could not have on it." pus Review or Andersen. framed his credo any better. But such Norton said the Daily originally was After hearing fr om Norton, Ander­ erudite comments make us wonder ready to publish a two-page spread sen sent a letter to A.LA. on Dec. 17, just what a man does revere who has that included the A.I.A. article along 1985, asking them to retract the no wife or party or country or God." with a companion piece fr om a cam­ statements. Scully left the organization in early pus professor who disagreed >,vith According to Andersen, A.LA. nev­ spring. A.I.A. er responded. The first he heard from Andersen said in the April 5 issue Norton said at the last minute he them was when an A.LA. reporter of The Na tion that A.LA.'s story is decided to call Andersen to see if the called in June, days after he and "totally inaccurate. They never comments attributed to him were ac­ Harper filed the lawsuit. Andersen checked any of those quotes with me. curate. told the reporter it was too late fo r a They say I'm an atheist; in fa ct I'm a "If it had been another day or fo llow-up story. humanist. They say I'm not patriotic; whatever, I probably wouldn't have But Csorba claimed A.I.A. sent a in fa ct I'm a Vietnam vet." checked," Norton said. "But the opin­ letter back to Andersen in January, The Na tion reported that A.LA. ion page editor said 'this (A. LA. arti­ citing the sources it had used in pub­ took the quotations from Texas cle) looks pretty rough.' " lishing the article, and saying that "we A&M's student newspaper, the Battal­ "It gnawed at me all day, so I would do whatever they asked; be it a ion, and sent the story to nearly two checked," Norton said. "I figured that retraction or whatever." "They never hundred campus newspapers. Csorba even if I called and didn't get hold of responded," Csorba said. "The first said 10 to 12 reprinted it. Andersen, that would be a mitigating we heard from them was this lawsuit." Csorba added, "our story is accu­ fa ctor if we were sued." Harper called Csorba's claim "non- rate. The papers that published it are Norton said Andersen knew noth­ . sense." the ones to be sued, ifanyone is." ing about the A.LA. situation before Csorba said, "We're going to fight William Harper, Andersen's attor­ the call. "Andersen had no idea that this suit and I think we're going to ney, said Andersen decided not to sue this was being distributed. Then he win. We still think the story is true, any student newspaper because they got angry. " basically. The professor was surely were "more of a passive receptacle of The impetus behind this tale of aware that it was true beeause he did information. He said students make twists and turns began in October not ask that it be retracted." mistakes so let's not press this on 1984, a month after Andersen re­ them." ceived the teaching award. A student "It's going to be very difficult fo r A.LA. is a 100month-old organiza­ reporter fo r the Ba ttalion did a 45- them to prove we knew the story was tion that, according to Th e Na tion minute personality sketch on Ander­ fa lse, and even if it was fa lse," Csorba article, is "seeking to root out the sen fo r a journalism class that ap­ added, "we weren't aware of it and dissemination of 'disinformation or peared in the paper two weeks later. certainly had no intention of harming misinformation' by radical profes­ Andersen said much of the article the professor, but only to point out his sors." "was out of context; five errors in 10 responsibility as a teacher." • Fall 1966 SPLC Report 19 LIBEL New York New Jersey Restaurant owner sues Sp ectator Advertising joke The Columbia University Sp ectator name, his status; has damaged him In and Spectator Publishing Co. Inc. face the profession and in the community could be costly a $ 1 million libel suit filed by Robert to the extent that plaintiffs restaurant Fortini, an owner and stockholder of has substantilaly suffered and numer­ The April 1985 spoof issue of Th e Campus Dining Room, a restaurant ous persons will no longer do any Independent, the weekly paper of and cocktail lounge. business with plaintiff or remain as Kean Col lege in Union, N.J., may Forlini is suing fo r emotional and customers of the Campus Dining lurn out to be tbe most expensive one punitive damages resulting fr om alleg­ Room." yet if the paper loses the $1,750,000 edly libelous statements in a Sept. 26, Murphy's anicle revealed that the libel suit pending against it. 1985, article by Jabqueline Shea Mur­ Campus Dining Room, now called the The issue, renamed The Incredible, phy, editor-in-chief of the New York Lower Level, had completed a $6,000 printed a classified advertisement that City newspaper and president of the renovation project, despite knowing caused Ann Walko, assi stant to the publishing company. The company that its lease with Columbia Universi­ vice president at Kean, to seek dam­ received a summons on Feb. 20, 1986. ty ex pired in February and that Bill ages. The case will appear before a New Scott., Director of Institutional Real Walko's name was one of fo ur York state trial court. Estate, had no intention of renewing listed under the "Wboreline" classifi­ According to the complaint, Forlini Th e Indepen­ it. cation, a take-ofT from and bis lawyer, Harold W. Grubart, dent's "Hotline" section. The ad sai d, Robert Fortini had stated that the contend that Murphy "fal sely and "Have a problem? Want to rap? Call restaurant's reputation as a center fo r wrongfully" printed a fr ont page story Wboretine at 687-SEXY anytime." drug transactions should not have had along with a "large" picture of Fortini, Walko is now suing the paper's any bearing on the university's deci­ saying that Forlini, his father Andrew, seven editors and the Council of Part­ sion not to renew the lease. and 21 others were indicted on ti me Students, who fu nded the issue. "I was in trouble myself fo r that a charges of running a multi-million fo r $250,000 each on six counts, in­ fe w years ago," he said in the Sp ecata­ dollar heroin and cocaine ring in May cluding "false and malicious" libel, tor article. "If I see anyone who comes 1983. invasion of privacy that put her in a Furthennore, Forlini said, Murphy in here doing anything like that they'll fa lse light and intentional infliction of "wrongly and fa lsely informed readers be asked to leave." emotional stress. 'that one of those indicted had used Neither Murphy nor Elizabeth Walko's husband added a $250,000 Campus Dining Room to make trans­ Schwartz, the Spectator 's managing count to the complaint, claiming he actions.' .. editor and secretary-treasurer, would "suffered and will in the future suffer

"The pri nted material, in a wil full comment. Karen Shaer, the Sp ecta­ the loss of usual services... of his wife and malicious manner," the complaint tors counsel, would not comment and has been required to provide reads, "bas damaged the plaintiff in except to say there had been no dis.­ special services and care to her." his restaurant business and his good covery proceedings as of mid-July .• Nanette Strehl, an editor fo r the . . . - - - spoof issue said, "The spoof is a Michigan tradi tion. We do it every year, but as a result of the suit, the spoof isn't being State News close to settlement published anymore. "Kean is such a pluralistic coUege The Mkhigan State University the motion (for summary judge­ that you never know if you are offend­ student newspaper, State News, ment) but before it was fi.led we got ing someone," she added. n" sees a "settlement on the horizo a settlement proposal. He (Boling) Attorney fo r the Walkos, Robert in the "beer and munchies" libel wants to dro p the case, and it Renaud, confirmed that the suit had suit pending against it, said Noah would cost more to file and argue been filed in state court on April 29. Yanich, the paper's attorney. the motion than to pay the amount "The complaint indicates that the Robert H. Boling Jr., president asked." advertisement is offensive, and it is. It of Eco-Tech, Inc. , filed a $}O,OOO StEte News ' insurance company would be to anyone," he said. suit against the paper fo r an article apparently agrees and would prefer The full-time student government, in 1983 that he claims contained to pay the amount than pay fo r according to Strehl, refuses to fund "false and defamatory matter." attorney's fe es. According to Ya­ spoof issues to protect itself fr om such The story described the ecologi­ nich, "This is a dilemma that news­ law suits. Instead the Council fo r Part­ cal data management firm's spend­ papers come up against all the Time Students took responsibility. ing of University fu nds as "Illg,hly ti me." "but the council doesn't have money questionable." The com pany was fo r libel suits", she said, "and neither allegedly using money fr om the The settlement does not include do L" university contract fund worth a retraction of the story that Tara Higgins, representative of the $227,000 on "fringe benefits" such sparked the suit. "We do nol ad mit Council of Part-Time Students had no that there was anything wrong in as "beer and munchies." comment. No trial date has yet been Yanich sai d, "We were preparing .• the story," Yanich said set.. �======�------.--­ 20 SPLC Report Fall 1966 STUDENT GOVERNMENT Mo ntana Newspaper gets $1 fo r 1986-87 budge Considering legal action against student government The Montana Ka iman. the student behaviour wh en he (Mercer) said the earning $60 a month less than tl newspaper of the University of Mon­ Ka iman didn't need the money (or) a former news editor. At the same tin tana, is thinking abou t court action fa culty adviser. the student president himself receiv( after receiving only $} for its 1986-87 "We do have enough money (from a raise of $100," she said. budge � said Faith Conroy, the paper's advertising) to get us through fo r some Mercer also proposed changing tt news editor . time, but no way are we giving up our authority of t he student pu blicatiol The decision depends on whether fa culty adviser," she added. board, which oversees the Kaiman, 1 the new studen t government, elected According to Conroy, the fo rmer get control over the paper' s content. last Ma�h, will allocate more funds student government's bebavior. was Carol Van-Valkenburg, fa culty 81 once the paper's existing revenues run brought into question when M ercer, viser to the student newspaper, sail out. newly elected to office, pushed "They tried to restructure the public The Ka iman 's budget was s.Iashed through a motion that cut salaries of tions board so t hey could specify tt in February after the fo rmer student the newspaper staff. paper's areas of news content and � government president, Bill M ercer, "He passed a fiscal policy that cut 'You must have more feat ures' ( decided "he didn't like what we were all salaries of new employees or those 'You must have more of this ( reporting," said Conroy. who switchedjobs, in a kind of grand­ that.' " "We were attacking his administra­ father clause," Conroy.said. "This was never acted -upon," sai tion pretty rigorously fo r its unethical "Wben I became news editor- I was Faith Controy "because it wa s the \a; cou ple of weeks of t he term. But was accepted by the publication con �;�BmBbwhmMmhb� mittee, although, not the whole s11 dent govern ment," she said �TV�NT �'TS Mercer has since graduated fr OJ the University of Montan a and coul not be reached. The newly elected central boar< part of the student government heal ing abo ut the proposed law suit, tol student editors that the paper woul not go under fo r lack of fu nds. The board refuses to gi.ve the Ka man any money and refuses to revers the $1 budget decision of the 01 administration, but, according to Cor roy, they insist that a special allow tion of funds will be made avai labl when absolutely necessary. The fonner student govemmer: also attempted to eliminate the fa cult adviser's position by controlling tb things the paper's money could b spent on. Van-Valkenburg said, '!They trio 10 tell the paper how to spend th money it makes from advertising ani in that way get rid of my job, but th new student government just ignofe1 this directive and have appointed m as an adviser to the publication board. "It is an unpaid position but i means they ex.pect that I will hi around fo r the next year," she said. Van -Vallcenburg will not know i her job is safe until fa ll when tbl co ntinued on next pag.

Foil 1986 SPLC Report 21 STUDENT GOVERNMENT

continued fr om previouspage student government looks again at the the Bill Mercer administration I . Wisconsin paper's financial position. would undoubtedly take action." Van-Valkenburg, who receives When asked about action the paper three quarters of her salary as the might take , to increase their budget, paper's adviser, said, "If I lose my job Conroy said, "The ACLU (American Att'y General it will be purely on the fiscal situation. Civil Liberties Union) has told us they Student bylaws might prevent this can't really help us until the board rejects suits in student government administration determines that they will not rebudget from rebudgeting, and I then might be or give further funds. The new editors student court hard pressed to blame the new central and staff don't want to get involved in board. In that case, I'm not sure what any law suit, so there's nothing we can Student courts have no authority my recourse would be. If it was still do until we run out of money.". to hear libel suits, the Wisconsin Attorney General ruled in June. Doug Hissom, editor-in-chief of New York the University of Wisconsin-Mil­ waukee's student newspaper, The Post, and state representative Bar­ Buffalo St. College studies bara Notestein asked fo r the attor­ ney general's opinion even after the Milwaukee campus ' student court relationship between student ruled in the paper's favor in a libel claim brought by UWM College newspaper and government Republicans in June 1985. Ques.­ tions were raised as to the court's legal power to issue binding deci­ Dr. Phil Santa Maria, dean of stu­ incident. sions in libel cases. dents , at 'Buffalo State College in Buf­ Ramsey said Hoffman had fired The student court had refused a fa lo, N.Y., has established a fa ct­ Morahan fo r not signing editorials, a motion by Th e Post to dismiss the finding commISSIon to set up negative attitude toward USG, taking action. The paper had claimed that guidelines fo r the student newspaper out a personal ad against USG "which the court "clearly lacks either the and student government fo llowing a was vindictive," "blatant errors" on authority, jurisdiction, or experi­ dispute between the heads of the two front page stories, and not providing ence to deal with the complex issue organizations. USG with a constitution fo r the paper. of free speech in a democratic soci­ Both Marty Morahan, editor of The But after consulting USG's lawyer, ety." Record , and Greg Hoffman, United Hoffman learned that the paper not Instead, the court accepted an­ Student Government president, grad­ having a constitution was the only other Post motion fo r summary uated last spring, Santa Maria said, legal basis fo r firing Morahan. judgment and ruled in the paper's "but there is still the question as to "After Hoffman was advised by fa vor. the role of USG overseeing the paper, counsel that he couldn't use most of The attorney ge neral's opinion and whether that role is proper." those reasons to fire Morahoan, and made it clear that "jurisdiction over The commission will be comprised that not having a constitution was the the College Republican libel action of media personnel from the Buffalo only valid reason, he sort of back­ lies exclusively with the (state) cir­ area and college alumni, Santa Maria tracked," Ramsey said. cuit court; the student court has no said. Part of the settlement was that the authority to hear the action." The dispute began when the student paper's staffprepare a rough draft of a The "suit" was filed after His­ senate, fo llowing the lead of Hoffman, constitution, which was submitted to som wrote an editorial slamming passed a motion in March 1986 to fire USG and was in the review commit­ two alleged College Republican ; Morahan. tee as of this writing. Ramsey said . members as "Nixon Youth." The "There had been a history of per­ USG considers itself a business orga­ CoUege Republicans said, however, sonal diffe re nces and bad fe elings be­ nization and campus groups it funds that the individuals were not mem­ tween Marty and Greg," Dr. Janet as members of the corporation. bers and therefore the paper was R sey, the paper's fa culty adviser, Groups are required to submit a con­ � attempting gu ilt by association. SaId, "but there was not a clear indica­ stitution to USG detailing their finan­ Referring to any further action tion that this would lead to the firing." cial status in order to receive funding. by the CoUege Republicans, Hissom Morahan refused to accept the dis­ At one time, Ramsey said, the said, "they're pretty much finished missal and continued as editor. He paper had a constitution. In the 1970s, with it. We knew that this (deci­ didn't appeal USG's decision because after a series of quarrels between edi­ sion) would be made all along so it Hoffman appointed the committee tors, one group left the paper and took really clears things up fo r any other that would have heard the appeal in a various files including the constitution groups in the future." binding arbitration. with them. Instead, the College Republicans Santa Maria then served as media­ The only constitution that could be have created a rival newspaper, tor and settled the dispute, persuading fo und was fr om 1935, which was which charges The Post with being Hoffman and Morahan to agree that inoperable because USG didn't incor­ ,too liberal, Hissom said. • both were partly to blame fo r the porate until the 1960s .•

22 SPLC Report Fall 1986 CENSORSHIP Texas Principal censors shooting fr om high school yearbook

On Sept. 20, 1985, a shooting Weiman said HOppeT fea red possi­ that has already happened. occurred at I.angham Creek High ble results of having the pictures and "Stories have become twisted. It's School in Houston, Texas, bu t you eyewitness statements of students in not been that long, and I've already would never know it by looking at the the yearbook. heard SO many stories and they're all student yearbook. Hopper said he fe els that [ngles different. " That's because principal George "may be mentally disturbed" and was The student newspaper published Hopper told the yearbook staff that concerned about what might occur if all info rmation concerning the shoot­ he didn't want any details published the eyewitness accounts were in the ing, but Weiman said that was "prob­ of the incident that left assistant yearbook and Ingles saw them if and ably accidental," saying that she principal Marvin Webster partially when he is released from jail. didn't think Hopper "realized the paralyzed. But Gayla Conners, student editor, issue was going to come out tbat The shooting occurred a month feels that even tragic events should be quick." It appeared just over a week after the high school opened when published. after the shooting. Hopper prevented Gerald Ingles, a 17-year-old student, "A yearbook is supposed to reflect the newspaper article from being in started shooting in th� cafeteria dur­ what happened at OUT school, good or the yearbook in any fo rm. ing lunch. The shots severed bad," Conners said. "And (the shoot­ After that issue, subsequent issues Webster's spinal cord and bit another ing) was the most important thing were censored "very, very carefully" student in the ankle. Ingles was ar­ that happened at our school. It's by an assistant principal, Weiman rested and beld in Harris County jail something that affected us all." said, who "wanted only positive on charges of aggravatedassault. Hopper did allow the yearbook to news." Kay Weiman, journalism and En­ be dedica ted to Webster, with a small When Ingle's trial began, Weiman glish teacber, said the staff had pre­ tribute to him written by Conners as said neither she nor anyone else was pared a double-page spread of the an opening to tbe book. But nowhere permitted to co ver the trial for the incident, including pictures of the does the book say why it is dedicated paper. Hopper also prohibited the three principal figures and eyewitness· to Webster. newspaper fr om publishing rewrites accounts of four students. The book did include pictures of from stories that appeared in Hous­ But Hopper took tbe layout Webster during bis stages of recovery, ton's local papers. materiaL "I basically didn't want a but did not say how he was injured, In the state of Texas, Weiman said, high pictorial display of the shooter. nor mention the shooting itself. it is common practice fo r the "princi­ There was a lot of emotional trauma. A story by the Houston Chronicle pal to have the last say" as to what is However, I didn't tell tbem (yearbook said that because of Hopper's allowed in student publications, de­ staff) that I didn't want anything censorship, "memories will begin to spite court rulings that have stated about the shooting in the book." get hazy." otherwise. Hopper claims he knew what the Scott Kirkham, a yearbook photog­ "The principals and school boards law was regarding censorship, but rapher who spent much time devel­ have the right to say yes or no to that under the circumstances, he did oping on-the-scene pictures and anything that goes into yearbooks or what he thought was best. gathering eyewitness accounts, said newspapers, before it goes in. ". California Police attack on student media results in co uti action Daily Californian, The the indepen­ KALX, whose broadcast was building, California Halls. dent student newspaper, and KALX, stopped while covering the demonstra­ Davis said, "The university student radio the station,t a the Uni­ tions, filed a friend of the court brief claimed the construction violated its versity of California at Berkley both in support of the student newspaper. 'time, place and manner rules' regard­ gri vances had e with the university "Power was pulled on our station ing demonstra tions." A representative fo r what they police called "intimida­ (duringthe demonstrations) so that we from the universi ty chancellor's office, tio and t n violence �ins the press." could not continue our broadcast," Lynn ALWOod, said, "Shanties that TheDa ily Cal filed fo r a temporary said Bill Davis, the station'S general were separate from California Halls restraining order against university manager. were deemed to be OK but then they police in April after newspaper staff "You could say there was a low­ attached them to the administration members were attackedwhile covering scale riot with police breaking ranks building." The university then filed student anti-apartheid demonstrations and attacking reporters aod then dem· for an injunction to have the struc­ 00 campus. onstrators throwing rocks and bot­ tures removed. Editor-in-chief Howard Levine tles. " Jane Kaplan, attorney fo r the Daily said, "One particular police officer Events started after protestors had Cal said, "The university had filed fO T jumped a police line and hit one of built parts of their shanty town too an extremely broad-based injunction our photographers in the fa ce." close to the campus administration conllnued on next page

Foil 1966 SPLC Report 23

( . CENSORSHIP that would remove the whole shanty 'sufficient pattern of violence' against ment that would get in the way of town and permit fewer demonstra­ the press. But if there are any more police action." tions." The judge granted the injunc­ problems," she added "we will request In a written statement abo ut the tion but limited it only to that part of another restraining order." events, Chancellor Ira Michael Hey­ the shanty town that was a fire hazard. Davis, in the meantime, wrote a man said, U I am and was, of course, According to Kaplan, this applied only letter to the university chancellor responsible for the campus police de­ to the parts attached to California threatening to file suit, since campus cision to make arrests,neceswy if , in Halls. police had violated Federal Commu­ order to remove the shanty structures "The university police then, with­ nications Commission regulations and from where they were. It bappenB, out warning, began to fo rcibly remove federal law with a "clear violation of however, that I was (away) that eve­ the whole shanty town and demon­ First Amendment rights," he said . ning... but I have no reason to dis-­ stratorst a 2:30 in the morning," Da­ However, an agreement was eventual­ agree with the decision to go ahead fo r vis said, "and they arrested people ly thrashed out. calling in supporting police under mu­ with the aid of an outside fo rce." It "Agreement was reached by the tual aid." was then that reporters of the Daily chancellor's office and KALX saying While much of the problem is now Cal. KALX and other local press police will not arbitrarily pull the plug resolved between the university and groups were allegedly attacked. (on the station)," Atwood said, "but KALX, some Daily Cal staff are still The Daily Cal 's restraining order KALX is obliged to observe .the same suing individual university police offi­ against the police was denied. Kaplan reasonable functions of the rest of the cers fo r personal damages, according said, "The judge said there was not a press without having oversized equip- to Kaplan.•

Florida Not For Profit case still unresolved Litigation in motion stage; court date not yet set

In October 1985, a lead article in three were depicted as cartoo n figures high school students. The suit asks the first issue of the underground in fairly degrading garb. for $1 10,000 in compensatory and newspaper Not For Profit said: All these items were wri tten by punitive damages, which Sferios said "WAKE UP! Hey! You're f- ing tben-editor of the paper, Manny Sfe­ would be divided among alI high lucky! You got your hands on the first rios, a fo rmer stude nt at St. Peters­ school students if the paper was vic­ issue of 'Not For Profit: If you save burg (Fla.) High School. He later torious. this 'zine fo r 10 years it might be moved and attended the private Michael Schwartzberg said his cli­ worth something. Right now, it isn't Thorn Howard Academy and grad­ ents are suing fo r the right to receive even worth 25 cents... Well, here it is uate d in May. Not For Profit, because with a "blan­ and we could care less whether you Sferios thought his paper was ket ban on distribution, all of the like it or not." worth fighting fo r so he and three students' rights have been denied." In fa ct, the Pinellas County School other students filed suit in fed eral Sch wartzberg said the case is still Board didn't think it was worth even district court against the school board "in the motion stages now, back and a penny, and to say they didn't care on behalf of Pinellas County public fo rth. I'm waiting for a court date to for it would be akin to saying that be set." "the sun don't shine" in Florida-a Because it is a class action suit, grossunderstatement. Schwartzberg said, under fed eral law The board said that Not For Profit one must file with the court to have could not be distributed on school the class certified to legally represent grounds and would suspend students those that have been harmed caught distributing the paper. But, he said, "the school has filed a That first issue included other con­ motion to strike the class certifica­ troversial items. Swear words. An tion, saying that my students, and in article identifying South African Pres­ particular, Manny, are not representa­ ident P.W. Botha as "A--e of the tive of the students allegedly denied Month" for his administration's sup­ their rights." port of apartheid. An article encour­ According to B. Edwin Johnson, aging people to subvert Jerry attorney for the school board, Sferios FalweU's Moral Majority by repeated· brok.e the board's publication policy ly tying up Falwell's toll-free phone when he failed to submit the paper lines. A piece attacking school board ��\"' dF A� for review prior to distribution. members Gerry Castellanos, Cal vin Johnson said that content wasn't �.,. �.\(.Yo<.l� Hunsinger and Frank Pesuth. All even the crux of the issue, as yet.

24 SPlC Report FoII 1Q86 CENSORSHIP

"The question is, are Pinellas County New York school district kids allowed to pro­ duce this kind of material, and if not, "Trekkin" cartoon almost censored why should a non-public school stu­ A lengthy cartoon strip fe aturing the county attorney's office as to the dent be allowed to?" "Star Trek" characters involved in legality of withholding stipends pen­ Schwartzberg had advised the stu­ "homosexual promiscuity" persuaded ding an outcome." dents to distribute the magazine otT the administrators at Erie Commu­ According to Robinson, after the school property to avoid further nity College in Buffalo, N.Y., to bold­ paper came out only a fe w copies hassles while the case is in litigation. ly threaten censorship - and then back were distributed before school offi­ But school officials confiscated copies down. cials confiscated it. The issue was of the paper's second and third issues Marcia Sorrentino, Dean of Stu­ only released after the administration when students brought them back on dents at Erie, threatened to withold got legal advice, he said. Sorrentino campus, claiming that the magazine the stipends of the adviser, editor and insisted that they did not confiscate was obscene and unsuitable fo r the secretary of the student newspaper, the paper since distribution decisions curriculum. The Promethean, but after talking to are left up to the students. "There Sferios decided to start the paper the county attorney decided to with­ was no delay in distributing the pa­ to "get students communicating with draw the threat, according to newspa­ per. (rt) was ful ly distributed on cam­ each other. That's why we started the per adviser Richard Robinson. pus by the newspaper staff according magazine right now-it's to get our The administration threatened ac­ to their scheduled timetable." peers, you know, to start thinking fo r tion after they received complaints On the issue of whether the car­ themselves," he said in a St. Peters­ fr om someone in the community who toon was obscene Sorrentino said, burg Times story. "It seems like when brought the "Trekkin" cartoon strip "I'm not saying there. was anything you walk through the high schools all to their attention. obscene in the paper, but we go by you hear people talking about is, you In the strip Captain Kirk, of the our chancellor's code of ethics, and know, who's going with whom and starship Enterprise from the "Star we judge things on what is in the best the fa mous 'sex, drugs and rock n' Trek" television series and movies, interests of the community. We were roll' type thing and where the parties was involved in homosexual acts with just wondering if this issue fo llowed are." his arch enemy Kahn, and there were suit. " Since Sferios' publication started, sexual insinuations about Kirk and Like Robinson, the opinion of the five other magazines have gotten un­ his first officer, Spock. The strip county attorney's office was that the der way, which "I thought was great. appeared in a special lampoon issue paper was not obscene, and based on After ours came out, students fo und of Th e Promethean. previous cases there were no grounds out they could communicate and "There was some fo ul 4inguage and to take any action against the news­ expresS their views.They didil't real� . I :could·see hdW it roUld·tje.· dis'tasteful paper staff. ize that beforet he said: . to soine Peopfe. The homosexuality In a memorandum from Linda C. Sferios sees himself as a champion was the only thing bordering on ob­ Laing, assistant county attorney, to of his fe llow students' First Amend­ senity, but then they should have Sorrentino, Laing advised, "The ment rights. On a wall in his room he stopped reading it. It wasn't just a material contained in the Promethy­ keeps a quote: "Censorship of what three-box comic strip, it was a whole poon (the spoof issue of the paper) is we see, hear and read constitutes an page long," Robinson said. (not) legally obscene. Thus, sanctions unacceptable dictatorship over our Sorrentino denies that the adminis­ imposed against member(s) of the minds and a dangerous opening to tration threatened to withold stipends Promethean staff ... would be im­ religious, political, artistic and intel­ but in a written statement said, "As proper.". lectual repression." • Dean of Students I did consult with

Michael Heath, a high school tures of the incident was disruptive student photographer in Ithaca, and an invasion of the student's New York N.Y., who ftled suit when the prin­ privacy. That student and his fa ther cipal confiscated his film in March, subsequently signed papers allowing has asked fo r its return if any Heath to develop the film, but settlement is to be reached. Caren still refused to hand it over. Photographer Principal John Caren took the film after Heath photographed him A representative of Heath's at­ escorting from his office a student torney, said, "A second part of any files suit after who had been suspended fo r dis­ settlement would require the school tributing an "underground newspa­ to issue a policy in its handbook principal seizes per." The suspension began a stating the freedom of students to winter of controversy between stu­ take pictures around the school." dent journalists and administrators The school's attorneys have not his film at Ithaca High School over the yet replied to the law suit and this rights of students to distribute their delay may be used to get an out-of­ unofficial publications on campus. court settlement, according to the Caren claimed · that taking pic- representative .•

Fall 1986 SPLC Report 25 ADVERTISING NeM} York Planned Parenthood ads target of censorship

Plan,oed Parenthood advertise- But the districtvoted not to appeal. county funds was beller than try ing to ments io student newspapers have according to 6arbara Bcrstein. e-xec­ impose censorsbip. been tbe fo cus of two lepl actions utive director of the AClU in Nassau Weiner disagreed. "They (Nassau involving First Amendment violations Count)'. Count)·) can't sign a contract \\; lb us in Nassau County, N.Y. "The school board said that if we in February and tum around in March - AccOrcHng to an article in Nc wsday, didn't sue fo r damages, they wouldn't and nullif,· il." she said. "The v didn't the Nassau County chapter of lhe appeal," Bernstein said. "We made even give'causc. They just said that A.menc.a:n Civil Liberties Union flied our point. The newspaper was printed when something offr nds. no matter s�i t on JUDe 4 against the Be llmore­ and the C8$C finished." how small the population. Ihe�' don', MeJI1rick Central High School District In the ·incident iDvolving Teen fO want count)· funds y�d." seeking to remo,'e Ihe d.istrict's ban of Teen, Nassau County withdrew its Weiner said the ncwspaper's board a Planned Parenthood ad in ,the CaJ­ fubding for the new countywide news­ voted on Julv 14 to sue Nassau Coun­ boun High School newspaper, Hoof.. paper because itsfim issue contained ty for breach' of contract and "iolation bca t�. . a Plannedar P enthood ad and sugges­ of tbe First Amendment. Court papers filed by ACLU attor­ tive personal ads. The county had "Obviously the county cancelled ney' Allan Azzara in U.S. District pledged to pay $75,000. or half of the the contract because of tbe Planned Coun in Uniondale said the $ (50 ad monthly papers 1986 expenses. Pare nthood ad and that is exercising arrived on April 8 and was �mmedi­ The S 50i Planned Parenthood ad editorial control duc to conlent:� atel)" referred to the paper's faculty listed its birth�ntroJ and' preg.nao.cy­ Weiner said. adviser. She, tftcn referred it to the testing services on a "collfidentiaJ However, Carol Ginberg. special pri ncipal, who fwo days later said it basis." The 18 personal ads, at $5 assistant to Ann Irvin. t he Youth coo ld nOI run without the superinten­ each, were from young people 'looking Board's executive director, said thai it dent's �rmission. On May 5, school fo r dates.. OfiIicials foc used- on two of uwas Dot true" that the ad was why sllpcri numdent Salvatore Mugavero them: .'Sexy , 'seductive lady see king funding was withdrawn. rej ected tbe �d. . fly guy betMen tbeoages -of 18-20" and "The issue was using taxpayers'

Nc .....way quoted Mugavero as say­ "Hot hunk who loves all types of money to put out Lbe paper," she said. ing, ".1\ d.ecision was made that since excitement Do you fit ,the position?"' "Unfortunately, the Planned Parent.. the Board of Educat ion does subsidize The issue, which ran 35:000 copies, hood ad was printed, and people t,bc newspaper, we take the role of the alsO contained articleS. about the n,ew ' jumped on that. The situation was • p'ubJjs.be.t:. of the paper. Th� publisller . drinking'.age of2l and movie, record. in�rrectly r.eportcd by Nl.'V. 'sday. " . . ° decided that \YC do Dot wanq o aCcept" and .book reviews. ' Patricia Weiner, . '. Ginberg sliidl the county did 'not . O lh ad/' editor, is one of fo ur ,paid adults on want to be in the position of being a The. Hoofbeats dis-pute began two the staff. They supervise 16 high publisher. � "They were so excited weeks after tbe Nassau Counw Youth school students who solicit ads and about tbe id� of having a leen pape.F, Board wi thdrew financial suPPort of a put out the paper, which was distrib­ they hadn't tbought it through. Then youth newspaper. Teen 10 Teen, over utedfree to S5 pubJjc schools. they �zed the county should not be its Tunning an ad fo r Planned Paren­ Ne wsdBy reported that County Ex­ in 'the bustness of publ ish ing a news­ thood, aleng with some personal ads ecutive Francis PureeD sent a letter to paper," Gjnberg said. the board said were suggestive. Tbat Weiner in late March saying he was OriginaJly, there was some doubt as decision by the county, Mugavero said ending the county's subsidy because to whether the pape:r would be finan­ "prompted some of the things that we "no public funds should be expended cially able to:co ntinue publi5b.ing. did, but it wasn�t the overrldi.Qg fa c­ fo r any project which even a few, find Besides the count)" monG)". it had no tor." objectionable." other fu nding iOI ApriJ except fo r ad­ (hat vertising re venue, which cco unted fo r Azzara said in the suit the Chief Deputy County: Executive a ., district violated the students' constitu­ Henry Dwycr said he was troubled by only 20 percenl of its budget tional righls �o free speech and press, But In'in said she would help seek the ads. Ne K'sdsy quoted Dwyer .as due Pn:>Cess and equal protec tion of saying, "It's Qot a ·question of immo­ private fu nding · fo r Ibe paper. And the law. He sought monelary damages ra lity or raciness. It's that a large since spring., a number of private of $2. 500 and an injunction 10 end the segmcnt of the population could find fo undations have donan::d funds, co.­ . ban on tbe ad: this offensive.' . abling Ihe paper to comc out in May On June 6. U.S. Disfricl Court The Nassau County Youth Board. and Junc. The paper ncver intended Judge Charles Sifton gr'a nled �, prelim­ which .subsidizcs ll.>e. D to Tee n, called to publish Jol�Tand August editions. inary injunction preventing the school an emergenc. meeting March 15, and Enough mane), remains fo r the district from ba nning the ad. after more than three hours of deba te, Septcmber edi tion. Weiner said. "Ad Azzara bad said that ahhlTugh the recommended that Purcell shut off revenue has icciI"ea'scd subst.antially order was only a preliminary injunc­ [u odjng. but not enough fo r the 'paper to be tion, "it's like a permanent injunction County o..fficials,. NeM'$dBy reponed, self-supporting." • unless the (schoo.l) district gets a stay' claimed the)! could legally cancel the of the ord:r by an appeal court." agre.ement Dwyer said removing

26 SPlC R port FoB 1986 ADVERTISING

California Court orders schools to accept anti-draft ads

A federal appellate court has or­ Cir. 1986). before the entire appellate board was engaging in viewpoint dis­ dered San Diego's Grossmont Union court. crimination. " High School District to accept anti­ The district had rejected the anti· Such discrimination, the court draft advertisements initially rejected draft advertisements saying its poli­ said, is not permitted by constitution­ fo r its high school student newspape� cies prohibited political advertise­ al guarantees pertaining to limited in October 1982. ments in the student newspape�. The public fo rums. Though the govern­ The Ninth U.S. Circuit Court of ad vertisements depicted a ghost-like ment is under no obligation to create Appeals, i n a split 2-1 decision issued figure, stating "Don't Let the Draft such fo rums, once in operation they June 6, enjoined the school district Blow You Away!" and contained must remain consisten t with their from refusing the advertisements sub­ other statements encouraging stu­ original regulations. They may be mitted by the San Diego Committee dents to learn about their draft regis­ open to certain groups fo r discussion Against Registration and the Draft. In tration rights from the com mittee. of any topic or to the entire public fo r its ruling, which binds nine western However, the court ruled that the the discussion of certain topics. states, the court held that the dis­ district already had permitted politi­ Therefore, when the district trict's five high school newspapers are cal advertising when it allowed the opened the papers to advertisements limited public fo rums, "public prop­ papers to publish advertisements about political issues, it was required erty which the state has opened fo r about possible military careers, de­ to allow all sides of the topic to be use by the public as a place fo r spite i ts no-political-ads policy. aired. expressive activity. " "The board provided a fo rum to The dissenting judge argued that The district's board of trustees those who advocate military service. the board's policy proh ibiting politi­ voted on July 8 to petition fo r a The board then refused, without a cal advertising demonstrated that the rebearing of the case, San Diego valid reason, to allow those who di strict never intended to open the Co mmittee Against Regjstration and oppose military service to use the advertising columns fo r public politi­ the Draft v. Grossmont Un ion High same fo rum," the court. said. "The cal debate, despite the publication of School Dis trict, 790 F.2d 1471 (9th only reasonable inference is that the the military advertisements. The anti-

Fall 1986 SPLC Report 27 ADVERTISING Virginia Guidelines adopted after ad dispute Administrators at Patrick County obscene or defamatory so that stu- consitutional law. (Va.) High School have developed dents will. understand .v.:hat expression But according to a: February edition new guidelines fo r student publica­ is proscnbed. DefiOltlOns must be of the Roanoke Times, Hiatt said his tions after the American Civil Liber­ provided of all key terms used such as opinions on student press freedom ties Union threatened to sue the "disruption" and "obscenity." "differ a little from the courts." school board if it did not drop its Guidelines must detail criteria by "I don't view a school newspaper as prior review policy of the school news­ which an administrator might rea- having the same freedoms as a public paper. sonably predict the occurrence of press. If the school paper dwelled on The incident involved Patrick "substantial disruption." controversial issues, it would interfere County school officials' refusal to al­ Also, any system of prior review with what students should be learning low students to accept advertising must give students the right to a in journalism class." from the Central Committee fo r Con­ prompt hearing before the decision- Also, he said, schools should not scientious Objectors (CCCO), a Penn­ maker. Procedural due process re- tam per with values taught at home. sylvania draft and military counseling quires that guidelines limit the time in "If you take a value out of the home agency, claiming the ad was unpatriot­ which the official has to reach a dec i- and start giving a different side of the ic and inappropriate fo r the school sion on whether to prevent distribu- value, I fe el you are moving too close newspaper. tion, and such time period must be into the area that should be instructed The new guidelines, adopted on reasonable. by the parent." April 14, state that either the principal Walton said he had not decided Faculty adviser O'Bryan, a fo rmer or a teacher appointed by him "may whether to pursue the matter further. Army lieutenant, said the November prohibit all or part of the proposed The ad in question said: "The Mili- ad carried a valuable message to the publication" if it is "obscene or por­ tary Offers One Thing That's Not students. While in the military, he nographic", "libelous or slanderous" Advertised. Sure you need a job. And worked with soldiers as both defense or the reviewer is "able to articulate a way to pay fo r school. A challenge. and prosecuting counsel in court mar- facts by which he may reasonably An Adventure. Pay and benefits. But tial cases and said he ' saw problems 'forecast substantial disruption of or are you willing to risk to your life or that could have been . avoided with material interference with school ac­ take somebody else's in order to get it? proper counseling - problems arising tivities on account of the distribution After the invasion of Grenada, Lt. from drugs, racial prejudice and im- of such materials." Col. Taylor said: 'Our job is to kill maturity. He said that hearing both If the reviewer does prohibit the people and destroy things.' Is that the sides of the military would give stu- publication in question, the guidelines kind of job you're really looking fo r? dents a chance to make a clear deci- state, "the students in charge of the Now's the time to find out what sion. publication, by majority vote, may you're getting into." The incident began, Hiatt said, appeal his decision." A minimum of Walton said of the ad, "How much when O'Bryan used his authority to 21 days are allowed before a decision more clearly can you put the job of override student editor Walton, who is rendered on whether the publication the military? That's what they do." didn't want to run the ad, but was can be printed. Although it was sent to over 3,000 fo rced to by O'Bryan. Stephen Bricker, the paper's attor­ schools and colleges, Patrick County "The ad didn't bother me a whole ney, said the guidelines "are probably was the first to ' encounter problems lot," Hiatt said, "except that there was too broad, but are certainly better printing the ad, according to Lou Ann a lot of disruption in the school; than what we had before." Merkle, coordinator of counseling fo r students carrying signs and such." Gregory O'Bryan, the paper's fac­ the CCCO. Walton, however, laughing in disbe- ulty adviser, fe els the review process Between the ad's appearance in lief, said, "He (O'Bryan) didn't fo rce "is still unfair." Student editor Marc November 1985 and adoption of the us to run the ad. And there weren't Walton also has some problems with guidelines, principal James Hiatt re- any demonstrations; no signs or any- it. viewed and censored The Cougar Re- thing." "I think it's too long of an appeals view, screening every page of the paper Bricker agreed. "The reason he (Hi- process," Walton said. "It needs to be before it went to print and killing a att) said that is because that's his only swifter. Also, what exactly do they CCCO ad scheduled to run in Decem- defense if we were to sue him." mean by 'substantial disruption?' " ber. Walton said Hiatt first refused to For prior review guidelines to be The paper's student staff had run the ad because it wasn't paid fo r. constitutionally sufficient, courts have wanted to run the ad again in March. Then, after CCCO agreed to pay fo r ruled that they must clearly set out It had regu larly run ads for different the space, Walton sai d, Hiatt told him what is fo rbidden and establish an branches of the military and some he didn't like what the ad said, "so administrative procedure by which students thought it only fa ir to show after that was when we contacted the students can challenge decisions to the other side. attorney." censor. Though the principal opposes run- Bricker said he agreed to suspend For instance, regulations must offer ning controversial material, courts legal action and let the school develop criteria and specific examples as to have ruled that his control over what publication guidelines .• what will be considered disruptive, students can print is strictly limited by

28 SPLC Report Foil 1986 LEGAL ANALYSIS

The Court says students still do not shed Fraser fr ee speech rights Decision at schoolhouse gate

By Mark Goodman "seriously damaging" effect on 14 year olds in the audi­ SPLC Executive Director ence.· The majority opinion briefly discussed the Question of he decision of the U.S. Supreme Court in Bethel whether Fraser's punishment was unconstitutio nal as a T Sc hool District No. 403 v. Fraser can be described in violation of due process. Fraser had argued that he had no many ways: the loss of a three-year battle fo r honor way of knowing that the delivery of his speech would student and champion debater Matthew Fraser, the first violate the school rule prohibiting "obscene, profane Supreme Court case in 17 years to deal with the free language or ge stures." According to the Court, this argu­ expression rights of high school students, one of the last ment was "wholly without merit."5 It said that school opinions of retiring Chief Justice Warren Burger. Almost disciplinary rules do not have to be as detai led as a every description suggests something momentous, a deci ­ criminal code; the language of the school rule and the fa ct sion of enonnous significance fo r high school students that several teachers had told Fra ser beforehand that his around the country. speech might causep roblems was sufficient to give him all the warning due process required. In agreeing with the judgment of the Coun, Justice Brennan said Fraser's speech given in the school assembly I� LIOAL was disruptive of the sch ool's educational mission and thus could be pu nished. However, he said that if the same speech had been given "under different circu mstances," it ANALYSIS "may well have been protected.... '" In the most cogent of the justices' fo ur opinions, Justice Marshall dissented from the majority. Because the school But is the Fraser decision really all that momentous? had not been able to demonstrate to either of the two Will the case have a dramatic negative effect on high lower courts that any disruption of the educational process school student journalists in the coming months and occurred, he said quite simply that the decision of those years? The opinion of the Court, read in its most straight­ lower courts in favor of Fraser shou ld not be disturbed. fo rward manner, suggests probably not. Justice Stevens dissented also. but on the grounds that Although the vole in Fraser was seven justices to two, Fraser had been denied due process because the school the Court handed down fo ur different opinions, and one rule was so vague he had no way of knowing his speech of the nine justices did not join in any of the fo ur. Chief would be considered a violation. Justice Burger wro te fo r the maj ori ty of the Court in the The most significant aspect of all the opinions in the opinion that becomes legal precedent. Justices White, case is their reliance on the fa ctual situation that con­ Powell, Rehnquist and O'ConDor joined his opinion. fronted theCourt. The majority certainly could have used Justice Brennan filed a separate concurring opinion, and this case to reconsider and ree valuate the First Amend­ Justice Blackmun agreed with the result of the case but ment protection that bas been afforded public high school joined in DO writlen opinion. Justices Marshall and students since Ti nker v. Des Moines Independent Co m­ Stevens each filed their own dissenting opinion. munity School District.' In Tinker the Court coined the What the majority justices said in their opinion is that oft-quoted phrase that students do not "shed their consti­ the interest of the school in "teaching students the tutional rights to freedom of speech or expression at the boundaries of socially appropriate behavior'" outweighed schoolhouse gate."8 But in Fraser the Court made clear it the interest of Matthew Fraser in giving a speech filled was merely going to "consider the level of First Amend­ with sexual puns to a school-sponsored assembly. The ment protection accorded Fraser's utterances and actions Court recognized that the public school system is responsi­ before an official high school assembly attended by 600 ble fo r not only teaching English, mathematics and sci­ students:'9 This reliance on facts will undoubtedly limit ence, but also fo r educating students about the application of Fraser to future cases. "fundamental values of 'habits and manners of civility' In at least a half dozen places the Court notes the essential to a democratic society."1 Because ofthat respon­ especially intrusive and disruptive nature of objectionable sibility, "it is a highly appropriate function of public verbal expression on a captive audience. The majority school education to prohibit the use of vulgar and offen­ opinion compares Fraser's speech to the "indecent but not sive tenns in public discourse."l The Court maj ority obscene" language prohibited from the broadcast airwaves fo und Fraser's speech to be "plainly offensive" and during hours when children would be i l kely to inadver- "insulting" and indicated that they thought it could have a continued on next page

Fall 1986 SPLC Report 29 --_.. - -.- . __ .------LEGAL ANALYSIS

// / ' os / /

------==------. ------. (( L�Roy / DtON'T I SAY You COU(.,()NrT HAVE- A MOME-NT OF S\�NT VUL-GARlTY ? II conlinuedjrom prf!llious page regulations on the appropriate manner of expression. tantly hear it. The Co urt also mentions the fa ct that the However, many school officials will see Fraser as a U.S. House of Represe ntatives and Senate have rules li mitation by the Court on the strong First Amendment prohibiting the use of offensive language during debate. protecti on students have long been afforded. Undoubted­ Special emphasis must be placed on the Court's recogni­ ly, some will use Fraser to justify their attempts at tion that a "high sch ool assembly or classroom is no place censorship of a wide variety of student expression. journalists fo r a sex.ually explicit monologue directed towards an Student should be advised that now. more unsuspecting audience of teenage students. "lo than ever, they should stri ve toward true profeSSIOnalism A seco nd important point the Court makes is that and avoid the use of unnecessary seAually explicit or Fraser's punishment fo r his speech had nothing to do with profane language. Although the Fraser opinion does not the endorsement of his candidate fo r student government. say such language could be censored, why give an anxious In the words of the Court, "the penalities imposed in this school official the opportunity to manufacture a justifica­ tion for censorship? case were unrelated to any political viewpoint. "II Or as Justice Bren nan says in his concurring opinion, "There is The aspect of Fraser that is most telling and which 00 suggestion that school officials attempted to regulate should be emphaSIzed is that tbe Court did cite as [Fraser's] speech because they disagreed with the views he authority its landmark decision in Tinker. The court sought to ex.press." 12 However, the Court fa iled to indicate implicity recognized once again that public high school how one goes about separating a viewpoint expressed from students do have the right to express their opinions on the words used to ex.press that viewpoint. The justices importa nt issues of the day.• made no mention of the holding in a previous decision I Bethel Sc hool District No. 403 v. Fraser, No. 84- 1 667 that said, "We cannot indulge the fa cile assumption that slip op. at 5 (U.S. July 7, 1986). one can fo rbid particular words without also running a 2 Id. substantial risk of suppressing ideas in the process."I� ) ld. at 6. Nevertheless, these two aspects of Fraser indicate the 4 Jd. at 7. limited effect the opinion should (and one hopes will) s Id. at 10. have. The Court's opinion is, fo r the most part. narrow 6 Jd. at 3 (Brennan, J . . concurring). enough to make it difficult to apply to other fa ctual 1 393 U.S. 503 (1969). situations. Clearly, a studen t publication will not run the 8 ld. at 506 risk of creating the same verbal assault on a trapped 9 Fraser. slip op. at 4. audience that the Court fe lt resulted fr om Fraser's speech. 10 ld. at 9. And practically, almost aU student press censorship cases I I Id. are the direct resu lt of attempts at suppression by school 1 2 Jd. at (Brennan, J., concurring). officials of controversial subjects. not "�ontent-neutral" 13 Cohen v. Ca lifornia. 403 U.S. 15, 26 (1971). -- --.- - 30 SPlC Report -- FoII 1Q86 ------=-=- �==- LEGAL ANALYSIS

Can a "child" give consent? Reporting About Minors

hen fo ur of tbe high school's 10 cheerleaders become doctrine ofthe marketplace. This protection was extendec Wpregnant during one fall fo otball season, tbe editor of to aU youth below the legal age of majority, despite the the student newspaper decides it's time fo r a story on education, experience and intelligent understanding of th« teenage pregnancy. minor involved. Well aware of the sensitivity of the subject, thea ssigned Such ab solute protection has not been extended tc reporter carefully obtains consent from the people inter­ minors who harm other people or commit crimes, howev. viewed, teenage mothers and fa thers, before writing a er. Wbile the courts have been willing to protect minon story that refers to them by name. from other people, such as clever salesmen, the protectim Later, one of the teenage mothers, anguished ve o r has been less stringent when the minors themselves ar< disparaging treatment she has received since the article's causing problems. For these areas of the law, criminal ane publication, sues the newspaper fo r invasion of her priva­ tort, the courts have only been concerned with whethel cy. A while later, the father of one of the teenase fa theno, the minor was capable of understanding the consequen� embarrassed by damage to the fa mily's reputation, also of his actions. Therefore, when a minor hurts someone: sues fo r invasion of privacy. Both lawsuits are based on whether accidentaHy or on purpose, if he's capable at the legal theory that a minor is legally unable to consent to understanding what he was doing, he is going to be tiable an invasion of privacy. Therefore, even though the teen­ regardless of his age.) The same applies to any crime he agers interviewed aU gave their consent to use of their may commit .. names and stories, that consent is claimed to beinvalid. The courts have used the same standard to accept a This scenario, while fictitious, is not all that unlikely. minor's confession to a crime as valid. If a minor, becauSt As more high school and college newspapers attempt to of his education, experience and intelligence, is capable oj report on sensitive, serious, sometimes embarrassing per­ understanding the consequences of confessing to a crime, so nal issues, such as teenage pregnancy, drug use and he may do so legally and his admission may be used in alcohol abuse, obtaining consent from the individuals court against him.l interviewed to report on these matters is vital. However, One court has implicitly recognized that a minor ma� the sources of information on which student journalists consent to invasion of his pri vacy. A federal court o' must rely often have not yet reached the legal age of appeals in Missouri, in discussing whether a school could adulthood. censor a school publication because articles about teenage No court, apparently, has ruled on tbe issue of whether continuI'd on "I'XI page a minor can give valid, legal consent to an invasion of his or her privacy, though one fe deral appeals court bas im plicitly recognized such ability exists.' Thus is created the dilemma. Can a newspaper rely on a minor's consent to print what could be embarrassing or poten tially damaging fa cts about his or her life? If so, what's to protect unknowing minors from the aggressive pressure tactics of prying reporters? If not, how will a minor with legitimate issues to air publicly find a medium of expression? To analyze the problem, it's easiest to start with the absolute protection given to minors in the field of contract law. Courts have long upheld a rule that a minor may rej ect any commercial contract, as long as that contract is not fo r the purchase of necessities,l The purpose seems to be protection of youth unable to fe nd fo r themselves in a market where the ancient rule was "the buyer beware" and the competitive bargain was woo by the most cun ning participant. The common law conception was that a minor did not possess the discretion and experience of an adult and must be protected from his own contractual fo llies. Tbe rule of "anyone who deals witha minor does so at his own risk" became a corollary to the buyer beware

Fall 1986 SPLC Report 31 LEGAL ANALYSIS pregnancy might lead to an actionable tort claim against And when the pregnant 16-year-old wants to tell her the school, determined that invasion of privacy was the story to the local press fo r the lesson it might teach to her only possible tort claim that could arise. In deciding that peers, the newspaper will likely avoid the issue completely no such claim could be filed as a result of the articles in if the teenager's parents are overruling the daughter's question, the court said, "Certainly the parents of the girls decision. could not maintain this tort against the school because the If the courts refuse to recognize a minor's right to article did not expose any details of the parents' lives, only consent to an invasion of his privacy, a situation could about the students, and they fully consented"6 develop where a minor would be· fo rced to sue the Some courts have even recognized that a minor may governent fo r deprivation of his First Amendment rights consent to a tort, a harm, against himself. A fed eral court of free speech . Without a legal rule making his consent to of appeals in New York ruled in 1980 that children who invasion of privacy valid, he probably will not be given consented to being taken into hiding with a step-father access to media. Therefore, only a legal rule making his under the fe deral witness protection program could not consent valid will give him opportunity for thataccess. later sue the government fo r abduction and fa lse impris­ However, it seems unlikely that such a situation will be onment. 7 In 1940, a South Carolina court seemed to allowed to occur. Given the fa ct that courts have allowed implicitly recognize that a woman sued fo r fa lse imprison­ minors, with sufficient capabilities, legal abilityto make so ment of an l l-year-old would have a defense ifshe proved many significant decisions, such as abortion, adoption, the child stayed with her voluntarily.8 and criminal confessions, it would be logical to extend In addition, courts have given minors the legal right to that legal capability to the less significant decision to allow make other significant, important 'decisions, regarding someone to invade his privacy. This outcome appears child bearing and rearing. The U.S. Supreme Court has even more necessary when the First Amendment rights of held that minors have a right to obtain contraceptives and minors are considered as well. have abortions without parental consent.9 State courts Practically, a student journalist who interviews a minor have held that a minor may give his or her child up fo r fo r a story and plans to rely on statements the minor has adoption. 10 made about intimate details of his or her personal life Despite these rulings, medical treatment fo r minors still should always attempt to get the consent of one of the requires parental consent. One reason advanced fo r this minor's parents, too. And if that consent is not forthcom­ seeming contradiction is that parents are going to be ing, you should think long and hard about the appropri­ responsible financially fo r any improper medical treat­ ateness of running the story. If your thinking convinces ment. II Other courts still maintain that minors are not you that the story should run, make sure you have the capable of understanding enough about the consequences written and intelligent consent of the minor, for clarifica­ of treatment to give consent.'l The Supreme Court has tion purposes, and go with it. said that the difference between giving consent fo r abor­ Although no court has dealt with the issue, min()rs tion and other medical treatment is that an abortion is a should be able to give valid consent to invasions of their constitutional right, while other treatment is not.') privacy as long as they have sufficient age, knowledge, Constitutional rights, the court has said, "do not experience and education to appreciate the serious conse­ mature and come into being magically only when one quences of their actions. Such a rule not only protects attains the state defined age ofmajority." '4 minors too immature to appreciate the consequences of The dilemma confronted with invasion of a minor's the consent, but also protects the free expression of minors privacy seems to be resolved in fa vor of the mature, fully aware of such consequences.• intelligent minor in the legal compilation, Restatement I Kuhlmeier v. Hazelood School District, No. 85-1614

(Second) of Torts, section 892A. That widely accepted . (8th Cir. July 7, 1986). authority says consent to an invasion of a person's I Porter v. Wilson, 106 N.H. 270, 209 A.2d 730 (1965). interests is effective if the person has the capacity to do so. ) Gibbs v, St ate Fa rm Mutual Insurance Co., 544 F.2d In a comment on that section, the Restatement says a 423 (9th Cir. 1976). child's consent is effective if he is capable of appreciating 4 Redman v. State, 265 Ark. 774, 580 S.W.2d 945 the nature, extent and probable consequences of the (1979). conduct to which he consents, even if parental consent is l Gal/egos v, Colorado, 370 U.S. 49 ( 1 962). not obtained or expressly refused. Such reasoning is in line • Kuhlrneier, slip. op. at 15. with that adopted by the courts in determining whether a 7 Leonhard v. United States, 633 F.2d 599 (2d Cir. child is responsible fo r his torts, crimes and confessions to 1980). crimes. 8 Wes tbrook v. Hutchison, 195 S.c. 01, 10 S.E.2d 145 Returning to the problem of whether a student publica­ (1940). tion can rely on a minor's consent to an invasion of his 9 Planned Parenthood of Missouri v. Danforth, 428 U.S. pri vacy, the issue becomes intertwined with that of a 52 (91 76). Ca rey v, Population Services International, 431 minor's right of free speech, a constitutional right to which U.S. 678 (1977). the U.S. Supreme Court says a person is entitled despite 10 Austin v. Col/ins, 200 S.W.2d 666, (Tex. Civ. App. his age . I j A minor without a legal ability to consent to 1 947). such an invasion is not going to have many fo rums " Lacey v. Laird, 166 Ohio St. 12, 1 39 N.E.2d 25 available in which to express himself. The 17-year-old (1956). campus radical, dependent on publicity to get his message II Bonner v. Moran, 126 F.2d 121 (D.C. App. 1 94 1). across, is going to be shunned by the media if publishers I) Pla nned Parenthood, 428 U.S. at 74. fe ar they could be sued two years later by the reformed 14 Id. business student attempting to get his first job at IBM. 15 Id.

32 SPlC Report Fall 1986 LEGAL ANALYSIS

-' ,/

Foil 1986 SPLC Report 33 LEGAL ANALYSIS

Cover Story The private school press:

oes a student at a private high school or college have Second, if the private school believes that its ultimate Dto check his constitutional rights at the campus gate function is to turn students into valuable citizens, a basic when he walks to class each morning? understanding of and experience with the wor.lci.ngs of a It's a well known fact that many of the rights public democratic society is a requirement. A student journalist school students take for granted go by the wayside on the who experienced censorship and prior restraint throughout private campus. Of particular interest to student journal­ his academic career is going to approach the realities of ists are the First Amendment guarantees of free speech journalism and its role in American society with a warped and press. As the law is perceived by many, journalists at perspective. When censored, the students of a private private schools don't have to worry about those rights: school receive a lesser education than their counterparts in they don't have them. Because the First Amendment says, public schools, thereby decreasing the stature of the . . "Congress shall make no law .... " courts say only the private schools that stifle expression. gove�ent can be' stopped fr om denying a person his free Third, because many private schools are churcb .-affi1� speech .rights. When a private institution is trying to iatOO, a special affiility fo r the Firs� Amend.t\len� should censor, there's nothing the First Amendment can do about crea te a common bond with journalists and their free it. I expression rights. If it weren't fo r the First Amendment and its protections fo r the free exerci se of religion, many of the schools themselves might not exist. It would seem incumbent upon church schools to advocate the guar­ antees tbat proteCt journalists as much as themselves I-- LBGIL withi n the same amendment. When this kind of reasoning doesn't work. there re­ mains the possibility that public and political pressure IIILYSIS may lessen an administrator'S desire to censor students. Organized groups of students, parents and faculty, publicly expressing their grievances to the regular, local press sometimes get results that internal discussion does not. Or at least, that' s the belief that has allowed some Ultimately, however, is the possibility going to private campus officials to routinely censor those stories there of seeking legal fo r wrongs done, eve they don't like and punish those students who refuse to court, redress the n are pri comply. when those wrongs committed by a vate institution. The chances fo r reliefseem slim, but there are at least fo ur But al l is not lost on the private school ca mpus. Despite legal theories under discussion that might gain a favorable popular opinion and belief, there are some valid legal hearing court. theories, along with some strong policy argum ents, to help fr om a the private school journalist who's confronted with threats and acts of censorship. Contract Rights The following suggested policy argu ments against In the right situation, the legal remedy most likely to censorship are ones that private school student journalists protect the student journalist in a private school is based can present to school officials to belp convince them that on breach of contract. Those catalogs, student handbooks censorship is a bad practice. and brochures distributed by schools usually contain pages First, just because a court is not going to preve nt of policies, regulations and rules. Some courts have ruled censorship at a private school doesn 't make it right. This that distribution of these documents and their acceptance is the nation where Pa trick Henry said, "Give me li berty by students creates a contract relationship. 2 This means or give me death," and any official censorship of a that what the school promises to provide to the student, in newspaper , whether by private school administrator or exchange fo r the students' completion of course require­ government action seems patently un-American. A private ments and adherence to the rules, must be provided. school that actively seeks to stifle the expression of its Othe rwise, there is a breach of contract fo r which the students is not only violating fundamental democratic student may take court action. concepts, it also is re tarding one of the basic necessities of For example, a private university is not legally required the learning process-unfettered free flow of ideas. Minds to provide a procedure for a student to respond when the simply need new ideas and means of expression to grow. school wants to take action against rum, such as a hearing Free expression is what has made America the country it to answer a charge that could result in a student's is today and what separates it fr om the totalitarian nations exp Ulsion. With no government roles to guide it, a private that we condemn. school can expel a student fo r no reason. However. when

34 SPLC Report FaIt 1986 LEGAL ANALYSIS

Ways to win free speech

that school has a written policy outlining the procedures the state for its existence, relying on infusions of public to be fo llowed in student disciplinary action. those proce­ money, financing and other visible means of support. In dures must be fo llowed. ) If not, there is a breach of return. the state depends on the private school to perform contract and the student may seek damages or reinstate-­ a part of its function. Initially it might seem that practical­

ment. This "due process" does not need to meet the ly all pri vate schools might fall into this category because standards of the federal Constitution, but it does need to of the massive amounts of money the state and fe deral meet the standards specified in the brochure, catalog or governments provide for the support of education and other policy statement. students. However, this is not the case. In several in­ Therefore, if a private school states in its policies or stances, courts have ruled that financial support is not regulations that its student publications will be free of enough . Only in Pennsylvania has this interdependent administrative interference, with final editorial control left relationship been recognized. The state not only provided to the students, any action contrary to that policy is a money to the schools in question, it also had designated breach of contract fo r which a court would presumably representatives on the boards of trustees. In addition, there give relief. Students should check to see if such a policy existed state statutes creating and defining the role the exists at their school. and if not, encourage the adoption of private schools were to play in the state university system. one. Even the names of the schools had been changed to

demonstrate this role . With statutes to support them, the State Action courts ruled that the schools were in effect part of the public university system, making them subject to restric­

Regardless of whether a contract exists, a coun will tions on governmenta ction. ' exercise its jurisdiction and protect free expression rights Stale action might also be found without this dependent if it is shown that the private university is really taking relationship if the private school is only doing what the what amounts to governmental action when it censors the go vernment tells it to do. This is called the "close nexus" student press. This so-called "state action " doctrine comes test, wherea citizen is being deprived of his rights because in three forms, each rare and difficult to demonstrate. The a private institution is adhering to a government regula­

first is proof that the private school and the state have tion . 6 Under tbis rule, a student journalist would receive developed an interdependent, symbiotic relationship. 4 First Amendment protection if a government regulation This is possible when the school is heavily dependent on was fo rcing the private school to exercise censorship or prior restraint Such a scenario is unlikely, however. Finally, state action may be fo und if the private institution is performing duties and functions that tradi­ tionally have been o d ne exclusively by government. 7 This public function doctrine developed from a case in which a company-owned town was performing all the functions traditionally done by local government. Because the company was doing all these activities, the court ruled that it had to abide by the same fed eral guidelines as a government. The key to this legal doctrine is its exclusivi­

ty . Couns have found that a private entity is perfonning a public function only when that function has been done exclusively by government in the past. 8 An example is

police protection. Education, which has a private as well as public history, would probably not fit this standard. One means of gaining legal relief being tentatively explored by the courts relies on use of individual state constitutions and free expression guarantees. Unlike the federal Constitution, which only prohibits government interference with free speech, thecons titutions of 44 states have language that affinnatively protects free expression. The wording of the Pennsylvania Constitution, art. I, sec. 7, is typical of these types of provisions: "The free cOlllinued on next page

Fall 1986 SPLC Report :l5 LEGAL ANALYSIS conJirwed/rom prevWus page fo rum fo r student expression. Courts have held that public communication of thoughts and opinions is one of the fo rums at public schools may not be subject to administra­ invaluable rights of man and every citUen may freely tive control speak, write 01' print on any subject, being responsible fo r In tiaddi on, the court would have to hold that publica­ abuse of that liberty." tion of the article would not cause any substantial or This wording sounds like the government has a duty to material disruption of the school's leamiJ1g en vironment stop anyone, private or public, fro m depriving someone State supreme courts that have mdicateq thaI the else of his right of free community. affirmative language in their conslitutional fr ee · xpression Just su. years ago, the U.S. Supreme Court said that provisions provides broader pmt "lion than the fed era1 states � free to provide protection beyond that of the Constitution's FlI'S t Amendment are Califo.rnia. New federal Constitution in their own constitutions. 9 In the Jersey, Pennsylvania and Washington. Ho 1'. other case where this rule was stated, the court said states may states with similar affirmative langu in th ir constitu· provide greater. even affinnative, protection fo r free speech. tions have said there is no free speech protection greater ­ guaranteeingits exercise on private propertyas long as the than the federal Constitution. The.s:c Slates oar - orim�cti­ value of the property was not diminished and the purpose cut, Florida, Michigan, New York. and North wlina.,u­ for which it was used was not disrupted. 10 In addition., tbere are six states \\i tb free expression provisions similar to the fed eral IF-irsI Al11endment;, Ha­ waii, Indiana, Oregon, So�th CaroJi�a, Lilah and West State Constitutions Virginia. Presumably. these state prm

36SPlC Report Foil 1986 LEGAL ANALYSIS

requires a careful delineation between a privately owned tions be filled by students or other individuals who are not public foruman d a simple privately published newspaper. school officials. Incorporation is practical for only a fe w Beca use the legal definition of public fo rum fo r student papers, though. An incorporated newspaper at a private expression implicates such a large role for student editori­ school should not expect any financial or material support al control, however, a distinction from a non-academic from its school if it wants to guarantee its freedom from private publication can be easily made. censorship. Because of the ongoing costs involved, only the largest coUege newspapers have fo und incorporation a Incorporation realistic alternative. Although official control of student journalists at Of course, the best way to resolve a legal dispute is to private schools remains a legal and practical reality, the take preparatory measures that prevent the dispute ever student victim of censorship and prior restraint has some from arising. To fo restall administrative control of private strong policyme argu nts and avenues of legal action open school student journalism, the publication may incorpo­ to him. Ideally, control of the press should be as repug­ rate itself as an entity separate from the school. The nant to the school as to the student journalist. But where provisions separating control of the paper from the that is not the case, given the right set of circumstances, school's grasp must be explicit in the articles of incorpora� whether there is state action, a contract or even a state tion, however. Many incorporated papers handle this by constitution providing protection, press freedom on pri­ requiring that a majority of the board of directors posi- vate cam puses can realistically be fo ught fo r and woo .•

I Hudgens v. NLRB., 424 U.S. 507 (1976). II Robins v. ProneYard Sh opping Cen ter, 23 Cal. 3d 1 Steinberg v. Ch icago MediC81 School, 69 TIl. 2d 320, 899, 153 Cal. Rptr. 854, 592 P.2d 34 1 (1979); Alderwood 13 Ill. Dec. 699, 371 N.E.2d 634 (1977). Associates y, Wa shington En vironmen tal Co uncil, 96 . 1 Ja nsen v. Em ory University, 440 F. Supp. 1060 (N.D. Wash. 2d 230, 635 P :2d 1 08 (1981). Ga. 1977). 12 Commo{lwealth of Pennsylvania v. Ta te, 495 Pa. 1 58, � Builon v. Wilmington Parking Authority, 365 U.S. 432 A.2d 1382 (1981); St3te of New Jersey ' v. Chris 715 (1961). Schmid, 84 N.J, 535, 423 A,2d 6 1 5 (1980). S Isaacs v, Temple Un iversity, 385 F. Supp . 473 (E.D. I) Cologne v. Weslfann Associates, 469 A.2d 1201 Pa. 1974); Braden v. University of Pittsburgh, 552 F.2d (Conn. 1984); Dep t. of Education v, Lewis, 416 So. 2d 455 948 (3rd. Crr. 1977). (Fla. 1982); Woodland v. Michigan Ci tizens Lobby. 423 6 Jackson y, Metropolitan Edison Co., 419 U.S. 345 Mich. 188, 378 N.W,2d 337 (1985); Shad Alh'ance v. (1974). Sm ith Haven Mall, 66 N.Y.2d 496, 488 N.E.2d 121 1 1 Marsh v. State ofAla bama., 326 U.S. 501 (1946). (1985); State v. Felm et, 302 N.C. 173, 273 S.E.2d 708 8 F1aggB ros. v. Brooks. 436 U.S. 149 (1978). (198 1). 9 PruneYard Sh opping Center v. Robins, 447 U.S. 74 '4 Miami Herald Publishing Co mpany v. Tamil/o, 418 ( 1 980). U.S, 241 (J97 4). 10 Id. at 83, IS Wooley v. Maynard., 430 U.S. 705 (I 977).

Foil 1986 SPlC Report 37 AWARD -----i � The Scholastic Press Freedom I A ward is given each year to the high school or college student or ,. student medium that has demon­ strated outstanding support for the First Amendment rights of stu­ dents. The award Is sponsored by A the Student Press Law Center and the National Scholastic Press Asso­ ciation/Associated Collegiate book Press. Nominations for the award are accepted until Au ust 1 of each worth year and should clearly explain why the nominee deserves the Scholastic Press Freedom award reading. and provide supporting material. A nominee should demonstrate a responsible representation of press freedom through writing or actions and the ability to raise difficult and necessary issues in news coverage Send nominations to:

Scholastic Press Freedom Award Law nfthe Student Press. :I fo ur· year project of the Studf:nt Press Law · 'l1�r. is thE first Student Press Law Center book ever to offe r en examination of legal issues confron ting American's student journalisUl, 800 18th Street, NW advisers and education administrators on both thehigh school aDd college1eval8. The book is understandable and readable without giving up the eseent.ia.l m.awrialneeded Suite 300 fo r an in-depth understanding of the legal relationships involved in the produiiOn ·of student Washington, DC 20006 newspapers. yearbooks and electronic media. Topics overed include libel. obsce nity. cOP;· c .- right, prior review. censorship and model publications guidelines. The Student Preu La,!!, Center Is, Lawof the Student Press is available Dowl Ccpies are only $5 each. To order, . send a check for that amount. payable to "Quill and Scroll," to; here when you need It. If you are facing' a legal problem or have a Lawof tbe Stu�Dt Press QuJlland Scroll question about your rights as a School of Journalism and M6.B8 Communication student journalist or faculty advis­ University ot Iowa er, call our attorney at (202) 466- Iowa City, JA 52242 52.2. All services are provided cost·tree to students and teach­ ers. Internship opportunltle. with FRIENDS Of SPLC the SPLC are available during each school semester and the SPLC gratefully acknowledges SUPPORTERS ($50 to $99) summer for college and law stu­ the generous support of the fol­ dents with an Interest In student lowing institutions and people, Missoufi Journalism Educator's journalism. Interns write and pro­ without whom there might not be Association duce the SPLC Report, handle an SPLC, and without whose sup­ requests for information on stu­ port defending the First Amend­ CONTRIBUTORS ($25to $49) dent press rights and assist the ment rights of the student press Executive Director by providing would be a for more difficult task. Donal Brown (CA) research and paralegal support . James D. Cobb (FL) Interested individuals are encour­ Penelope Deakin(NY) aged to write for more Informa­ (Contributions from April 15 to July 15) Grosse Pointe South High School tion . (Ml) Drawing., cartoons and newl BENEFACTORS ($ 100 or more) Harbinger, Mount Wachusett tips are welcome and needed. Community College (MA) Help us inform the scholastic jour­ College Media Advisers nalism community by contributing Great Lakes InterscholastIc Press your skills and information to the Association SPLC Report. Help Journalism Education Assocatlon Write or call us at: Mary Olive Pierson (LA) Student Press law Center Support North Carolina Scholastic Press Suite 300, 800 18th Street NW Association The SPLC WaShington, DC 20006 (202) 466-5242 �______L- ______���� 38 SPlC Report______Fad 1986 Let Yourself In On The Scoop

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