student press law center

Fall 19B5 Vol. VI. No.3 '----"-'------....,. .\> 1: � � :'. I'( ;,..;; EDITOR Contents Leslie Keros AJb;on Colleg� WRITERS Shelley Barber Mark Goodman UnlYeFSIty 0 CaldQlT\la litBerk Student Press Cover: This issue, the SPLC Report Sc:hooI0 lBW Law Canler analyzes libel law and the ques­ W. Jeffrey Connor Peter J. Mentor tion of liability in the student Syracu UnlV8 It)' Url,·/efS.ty 01 MsslaChUMtta Coli of w press.

COVER ART Jack Dickason Kerry Clark Aaron Cole Ethics ...... 3 Jack Dickason Is Journalism a profession? Bruce Young

executive djrector Mlirk Goodman Courts

Corporste Board of Direcrors • H:uelwood editors lose in court ...... 6 J. Marc Abrams. Esq. Or. Louis e. Inglehert • Intolerance peaks in Maine ...... 8 . & Pro... _ Go.tr o.pro'J� • April Fools edition unamusing ...... 9 EUIt Sr.tIO �fY • ...... NrwwY NY KKK fan fights for free speech ...... 10 Richard Johns • Aa. establishes a "newspaper" ...... 11 John Bowen a IIntJSc tall SocIerv � S<:ItooI • ..�pe" article withstands libel suit ...... 12 Dr. Robert KniQht L.IIIc OH COIIImtIie IWO Dr. Dorothy Bowles Dr· ulian Lodge K�...... 1M...... , • FIt:ncM 1m..... ,."." UnIwtMy �o,� Censorship U"'''''''''fYotlU BobLewia

• from graduation . . . . Elaine English. Esq. ",,,,,,,� ,."..�.-. Principal bans cartoonist ...... 13

1f��1IY Dorothv McPhillips • Planned Parenthood ads shunned ...... 14 Fre«Jom 0' _ Pro .. • Calif. endorsement ban stirs political debate ...... 16 D,r. Tom Eveslage Tom RoInickJ Dw>r 0' Jo<.orm.u.m S�"'"A---*", T�lI.w....1V Dr. Albert Scroggins Christopher Feger. Esq, C�o'� Administration F.".,& 5 I"'� nI SoutfI c.o.n. W DC Michael D, Simpeon. Esq. • Moral Majority gathers steam in Wyoming ...... 18 Mark Goodman. Esq, N� EclYcMion ""a.odMion • SAT scores censored from paper ...... 20 SPlC Edmund J. Sullivan • Gutsy editorials spark adviser's dismissal ...... 21 Nancy Green �� . �m·t Awa.� RIchmionc1, I Roben Trager. Esq. Mary Hires P-aon Bell6 DOtMt1 Student Government CommtinIr eon.g. �on.DC Joun'tItIlM7IA lIOn Ben Van Zanta • Colo. paper challenges funding cutoff...... 22 w .. , HJgft SdtooI • Quarterly mounts legal artillery ...... 23 IqwtI CiTY. IA • Uruv. pres. denies takeover bid by _ aled rOl PoUDO of �Mton � lden only student officers ...... 24 The SPLC Report SPl RI'pCHf. publi Ihree tim exb �r b" the Slude'll Pma currenl JIRII law Cmter. &umrnari2.c5 IIlrOYt'.fS.in inyoh·i,. sNdml libel rip TheSPl R " rnnrcbt'd. writlt'n and produced Clltird)' byjournalism:and lav. denl mlC'mJ. • Student romance draws lawsuit ...... 26 tudall Prt-u La. C'c:ntt:r RI'pOI1. Vol. VI. No. 3. FlU 1985, it • Dartmouth editors await court date ...... 27 published II} Ihe I III Plus C�nlCr. !jUlIe lOa, 800 IItb treet, NYt', W In n, DC 2 (21 "66-S2.a�. COpynPI 0 1985. • Policeman continues suit against Daily Iowan ...... 28 SCudent PIns uw Cc:nt�. All ncbl5 fC'Strvc:d. Yearly 'subecriptiou 10 • Fringe benefits wane in Michigan ...... 28 the SPlC' R 1'1 :are SIO.OO. -\U olh r c.onlnbutionlll ue IIX deductiblc. " .�ptIon order Iirm a aD n I»tr 19 . • Illinois $9 million libel Suil pending...... 28 .... Sc_tIIt Prft� t..- Cmlrr wr"'-t a.a.lHloM ", uddII...... i8p. � an4 d.PIftM IwJp tile SPLC W_ die �""tIc ju IJI unit It) C81dri...... ,_ �kbla ... ka'_tlo, '0 Ihr ,PU R rt. ,OW ...nfah co: legal Analysis: The Libel Threat

-liability In the student press...... 29

• Knowing thine enemy: defining the

elements of IIbel ...... 36 "'----_." .._- :..;: ..------_......

2 SPLC Repon FOil 1985 ETHICS

The role of the press Is Journalism a Profession?

By Deni Elliott ever, the belief that professionalism is eQuatable with licensing and external control reflects confusion between Do you consider doctors and lawyers professionals? what philosophers call necessary and sufficient conditions What about university professors, research scientists and of a profession and those that are merely accidental. marriage counselors? Would you call an auto mechanic, Accidental v. Necessary and Sufficient Conditions plumber or a beautician a professional? Most people say without hesitation that doctors and Acddental conditions are those which may be common lawyers are professionals and. after a moment of thought, to things within a certain category, but which are not include professors, scientists and counselors. There is essential in including specific examples in that category. almost universal agreement that mechanics and other For example , dogs are generally creatures that bark.

"tradespeople" are not what we mean by professionals. However, we would sttU say, " That's a dog," when Yet when you ask people whether journalists are confronted with a creature of the barkless Basenji breed or PWl fessionals , particularly if you ask reporters or editors, with a creature that had all of the essential qualities of jOurnalism students or journalism educators , you will dogginess but that didn 't bark for some unexplained certainly find a difference of opinion. You are likely to organic or psychological reason. start a debate centering on the issue of whether calling While a specific example may lack an accidental quality journalists professionals means that they must be licensed and still be included within a category, all examples must and regulated. satisfy the necessary and sufficient conditions for being I think that journalists are clearly professionals and that included in that category. their professionalism can be established without it result­ A necessary condition is a condition that a thing could ing in licensure and regulations. Licensing and external not lack and still be included in the category . For example, control would, without Question, violate the spirit as well consider the category of "mother." No creature could be as the letter of First Amendment press protections. How- continued on p.4

LAW OF THE STUDENT PRESS

The law can affect you It's been eleven years since the last comprehenw sive look at high school p(ess law was published and six since college press law was examined. Law of the Student Press, a four-yea( project of the Student Press Law Centec. is the first book ever to offer an examination of legal Is�es confronting America's student journalists, advise(s and educa­ tion administrators on both the high school and college levels. The book is understandable and (eadable with­ out giving up the essential material needed for an in-depth understanding of the legal relationships involved in the p(oduction of student newspapers, yea(books and electronic media. Low of the Student Press is available nowl Cop­ ies are only $5 each. To order, send a check for that amount, payable to "Quill and ScrOll," to:

Low 01 thB Student Press Quill and Scroll School of Journallam and Mass Communication University of Iowa Iowa City, IA 52242

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>rofessionalism - continued neluded in the category of mothers without being female. it's natural to wonder why they are cited so frequently by -Jowever, other animals may have the necessary condition those fearing the pr ofessionalism of journalism. I think llithout being included. One may be a female without these hallmarks are commonly used as the measuring rule >cing in the category of mothers, but being female is a because the professions used in comparison are norm ally leceSsary condition for being a mother. the medical and legal professions. A sufficient condition is a condition that automatical­ Doctors and lawyers are clearly professionals in this y includes a thing in the category. For example. giving society. It's natural that one would use the most obvious ,inh to a viable offspring is sufficient condition for calling cases in trying to detennine if some other practice belongs t creature a mother. However, giving birth is not a in the professional category. The problem is that while leceSsary condition. One may become a mother through the appropriate professions were chosen for comparison, onnal or informal adoption. the wrong hallmarks were chosen as the comparative The necessary and sufficient conditions for including a property. :reature in the category of mothers might be something What is it about doctors and lawyers that makes us ike "The creature is female and has either given birth or think about them as professionals? It's certainly not that las, through some other means, become primary caregiver they're licensed and that those licenses may be revoked. o a youngs ter. " As already discussed, this determination alone would classify doctors and lawyers as no different from many olecessary and Sufficient Conditions of Professions tradespeople. What primarily makes doctors and lawyers profession­ Returning to the question of whether journalism should als is the function they serve within society. A necessary � included in the category of professions, it can be shown and sufficient condition for including something in the b.at licensing and control by a governing board are neither category of profession is "the occupation plays an impor­ ecessary nor sufficient conditions for deciding if some tant role within the community it serves and practitioners 'f3ctice belongs in the professional category. These are, at have the power to affect individuals' lives in a lasting and est, accidental hallmarks which are descriptive of some significant way." rofessions. The case for these hallmarks being necessary ant Licensing and governing board control are not nec­ continued ssary in including something in the category of profes­ ion. University professors, scientists. and marriage ounselors are considered professionals without these allmarks. Now, it may be the case that some organizations that mploy professors, scientists and counselors have govern- 19 standards to monitor and limit practitioners' actions, ut the sort of monitoring done by a university board. for {ample, is often far less than the control a news organiza­ on exens over a reporter' s or editor's life. The result of iolating the standards of a specific employer may mean lat the practitioner is out of a job in both of these cases. The point in saying that licensing and governing boards 'e not n�ssary conditions for calling a practice a 'ofession is that, like journalists, someone may be a 'ofessor, scientist or counselor while not employed at a U'licular organization with specific guidelines for the -actitioner's behavior. There are no rational licensing 'ocedures, no entrance requirements in terms of testing . certification, and no procedures for removing a practi­ )ner' s ability to work within the chosen professional role r university professors, scientists, counselors, or for umalists. Nor are licensing and governing boards a sufficient ndition for calling something a profession. Auto me­ anics, plumbers, beauticians and other trade groups ve a licensing procedure and a gove rning procedure by lich those licenses may be revoked. Yet these people are ,t professionals. If licensing and governing boards are neither necessary sufficient conditions for calling something a profession,

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sufficient conditions can be better seen by applying the discovering what of interest or importance is happening in proposed conditions to the job examples listed at the their world. beginning of this column. Like doctors and lawyers, Journalists, then, play an important role in the commu­ professors, scientists and counselors all play important nity, and they are also, indisputably, very powerful indi­ roles within their communities. They are expected to viduals. Use of media power can easily result in the uphol d high standards of practice even if those standards complete ruin of an individual's personal or professional are not described as explicitly as those detailed by the life, A minimal expectation for journalists in any commu­ American Medical Association and the American Bar nity is that they will set aside their own personal preju­ Association. dices and self-interest to produce information that is as Professors are expected to hold certain commitments to unbiased, balanced and fair as possible. scholarship, scientists to research and counselors to en­ Journalists clearly are professionals when judged by the couraging psychological health and growth. Representa­ same essential criteria that make professors, scientists, tives of all three professions are expected to set aside their counselors, doctors and lawyers professionals. Calling personal interests and concerns to meet the needs of the them professionals is simple recognition of the role people they affect whether these people are students, journalists already play within a community, not a sugges­ subjects or recipients of research efforts, or clients. tion that their freedom be interfered with through licens­ These professionals are poweIful in that they can affect ing and external control. individuals' lives in a significant way. Now, it's true that One might wonder then what difference it makes to call I'll think the effect is significant when my auto mechanic journalists professionals. There is obviously reason to fear destroys rather than fixes my car, but that event is not that designation if it would result in licensing and govern­ lik.ely to have the same impact as a professor whom I trust ing boards. But it's fair to question why one should bother telling me that I really can't write, a scientist falsifying putting the label of profession on journalism. research records, or a counselor telling me that I shouldn't The tendency of some reporters and editors in some bother working things out with the bozo I married. Part of news organizations to dispute the power they flold in the the expectation of professionals is that they will be car eful community or to say that they are not responsible for the of how they exercise their power so as not to cause undue effects of their stories makes it imperative to begin or indiscriminate harm. speaking clearly about journalism as the powerful profes­ sion it is. In fact, the common argument against the Journalism Has the Necessary and Sufficient Conditions professionalism of journalism may be nothing more than a of Professionalism smokescreen covering up the real fear that if journalists are professionals, they will not be able to avoid the n Consider journalism withi the proposed necessary and responsibilities associated with their power. • sufficient hallmarks. Journalists play an important func­ tion within communities. Whether the community is a school community or the entire nation, journalists are Editor's note: Den; Efliott, who has wrillen columns on very powerful members of that community. journalism ethics for the SPLC Report for the past two Members of the community may not uncritically be­ years. willbecome Professor Deni Elliott when she joins the lieve everything they're told through the media, but they journalism faculty 0/ UTah State l..imversify in Logan. have to accept some of it as close to accurate. Media Utah, this fall, Dr, Ellioll'S dissertation at Harvard Univer­ provide the only methods that most individuals have for sity was on the teaching of journalism ('Ihies.

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Wissouri Hazelwood editors appeal court censorship decision

Three former news editors of the Hazelwood East (Mo.) SpectrulI/'s status as either a public forum for student igb School student newspaper are appealing a U.S. expression or merely an "instructionally-related activity." istrict Court decision, repeating their claim that the Tn reaching a decision. the judge said the paper was incipal's censorship of school newspaper articles on essentially a "project" of students in the Journalism 11 enage sex, marriage and runaways violated their First course: a textbook was used to teach journalistic c oncepts, mendment rights. and grades and credit were awarded upon course comple­ The case saw 18 months and three court delays pass tion. Because the school's publications policy requires :fore it came to trial in November 1984. The decisi on voTing the school, which was handed down in May. conrinued arks a major setback for Catherine Kuhlmeier, Leslie nart and Lee Ann Tippett-West, who disagreed with incipal Robert Reynolds' contention that the articles !re inappropriate for a school newspaper. "He [Reynolds) tries to cover up the fact that there are oblems in this school," Kuhlmeier said earlier in the \ se. "He wants to make it look like we live in a heaven ound here." Tbe debate arose in May 1983 when the pri ncipal leted a two-page spread of the Spectrum because it ntained material that was "personal and highly sensi­ 'e." Superintendent Thomas Lawson agreed, saying the tides were "totally unnecessary to be included in the b.ool newspaper." Reynolds testified that he had "no objection whatsoev­ , to articles on teenage marriages, runaways, juvenile linquents or teenage pregnancy. However, he objected three "personal" accounts of pregnant Hazelwood East Idents in a Spectrum article which described their use or D-use of birth control methods. Although the three females interviewed gave permission . use of their comments and were not named in the �ry, Reynolds maintained that readers would still be Ie to identify them. He also claimed the material was )0 sensitive" for the "immature audience of readers" at lZelwood East. Kuhlmeier said she was aware of eight to 10 preg nant Idents at the school when the articles were written. cause the subjects were not named, Kuhlmeier said she lieved nothing was wrong with publishing the story. The principal censored another story which investigated : impact of divorce on children, stating the reporter led to contact the parents to explain or rebut the quoted tements of their children. Reynolds said the reponers :reby violated the "rules of fairness" in j ournal ism ich justified his deletion of the article. As before. the dents' names were not mentioned in the article. In both instances, Reynolds noted the reporters' failure request the subjects' parental consent prior to writing : articles. A central factor in the case was the question of

PLC Report FOil 1985 COURTS

l ,

prior review, the court considered the principal and influenced choice of material printed, according to Good­ adviser to have "final authority" over content of the man. He noted that the paper published editorials and

paper. The judge therefore described Spectrum as a " labo­ news articles of interest to the students, that its circulation ratory exercise" which did not qualify as a public forum. exceeded 4,500 during the school year and that it was The court held that censorship of non-libelous. non­ distributed for 25 cents to the student body and to the obscene material in a "classroom exercise" such as Spec­ public, and that no evidence indicates that the adviser

trum is justifiable - provided the principal show a chose which stories were to be published.

"substantial and reasonable basis" for his actions. Goodman pointed out that the grades of students "Wbere the particular program or activity is an integral enrolled in the Journalism 11 course were unaffected by part of the school's educational function, something less whether their articles appeared in the paper. Further, he than substanti al disruption of the educational process may said, students not enrolled in the course could submit justify prior restraint on students' speech and press activ­ articles for publication. ities," the court held. "Spectrum clearly had some function beyond that of the Crediting Reynolds' opinion that articles discussing Journalism II cuniculum," Goodman said. "It was not topics such as teenage pregnancy were "not appropriate" merely a course exercise which remained in the ftIes of the for Spectrum readers, "given their age and maturity." the journalism department. It was, in fact, a forum," court ruled that the principal demonstrated a sufficient Goodman also Questioned the court's decision regard­ basis for censorsbip - one which did not constitute an ing the principal's basis for censorship. In prohibiting the abridgement of students' First Amendment rights. articles from publication, the principal did not expressly Although the three editors have graduated since their deem them obscene, libelous or as causing substantial suit was filed, they appear detenn ined to continue the disruption of school activities. Courts have ruled that only lawsuit. Kuhlmeier, Smart, and Tippett-West are taking these standards justify prior restraint when a student the case to the U.S. Court of Appeals for the Eighth publication is shown to be a forum, Goodman said. Circuit and have asked the Student Press Law Center to The constitutionality of Hazelwood East's publications file an amicus curaie (friend of the court) brief on their policy appears to be a third bone of contention. Goodman behalf. stated that while the policy permits prior restraint, it does SPLC executive director Mark Goodman said he be­ not offer specific criteria as to what material may be lieves a central flaw in the court decision is the ruling that censored. It fails to include guidelines by which adminis­ Spectrum does not Qualify as a public forum for free trators can reasonably predict that certain material will expression by students. cause substantial disruption, and does not provide for an Goodman agreed that the paper was written and de­ expeditious procedure of review and appeal, Goodman signed "in large part" by journalism students, but said argued. Moreover, he said, tbe policy does not define the

Spectrum's presence was felt "far outside of the Journa­ terms "obscenity," "disruption," "distribution" and "de­ lism II classroom." famatory." Factors which distinguished the paper from a "laborato­ Leslie Edwards, attorney for the Spectrum editors, is

ry exercise" include the depth of its content, its distribu­ preparing documents for appeal. A court date has not yet tion, and the extent to which the adviser actually �n�. •

Fall 1985 SPLC Report 7 COURTS

Maine History teacher fights 'intolerance'

In a decision that could have School administrators were not Day to proceed as scheduled. implications for student publications, alone in their criticism. Less than But on Jan. 24, one day before the the Maine Supreme Court ruled in one week before the symposium, symposium was to be conducted, the July that threats of disruption from board of education members re­ superior court upheld the board's people outside a school can justify ceived numerous calls from local cancellation. restrictions on expression in a school organizations and parents critical of Five days later, Solmitz and Mc­ symposium. homosexual representation in the Connick filed suit against the Mad­ Threats of bombing and sabotage program. Some callers threatened to ison School Administrative District, aimed toward school administrators picket and bomb the school on Tol­ claiming that the board's cancella­ occurred when Dale McCormick, erance Day. tion violated their rights to freedom president of the Maine Lesbian/Gay After a closed meeting Jan. 21, the of speech and that it discriminated Political Alliance, was asked to speak board voted unanimously to cancel against the homosexual community. at Madison (Me.) High School in Tolerance Day out of concern that The court concluded that the January during "Tolerance Day," a the students' safety might be endan­ cancellation did not violate Solmitz's symposium featuring representatives gered by adults objecting to the in­ and McCormick's freedom of speech from groups against whom intol­ clusion of homosexual representation rights, because the board was within erance was thOUght to be practiced. in the program. its legal authority to bow to threats The symposium, which was subse­ Just after the cancellation, 169 "from those who wanted to keep quently cancelled to preserve the students and 23 faculty members students at Madison High from gain­ "safety, order and security" of the presented petitions supporting the ing a greater perspective on different school, also invited representatives symposium. Solmitz and McCor­ life styles in the world." from groups such as the elderly, mick subsequently filed a motion for In considering the case, the court blacks, veterans, Indians, Vietnam­ a temporary restraining order, asking ese, ex-convicts, child-abuse victims the superior court to allow Tolerance continued and Jews to speak before the high school assembly. Students were to attend an opening talk discussing "general elements of intolerance," and then had the option of attending seminars conducted by the represen­ tatives. The program, scheduled for Jan. 25, was created and proposed by D�d Solmitz, a history teacher for 16 years at Madison. The idea was fostered by students' desires to "less­ en prejudice" against these groups, particularly against homosexuals, Solmitz said. He took the proposal to a faculty meeting, and there won the teachers' approval of the program. On Jan. 15, despite the program's support from both students and fac­ ulty, Principal Tony Krapf advised Solmitz to exclude the homosexual representation, saying it wouJd not be "appropriate" for a high school assembly. The superintendent affirmed Krapfs suggestion, saying that ho­ mosexual representation would be viewed adversely by the community ------�d could injure the school's public - - - II:)! image.

8 SPLC Report Fall 1985 COURTS

noted that the Tolerance Day pro­ Tolerance Day constituted a viola­ uniquely QuahfLed for the dissemina­

�am would have been held had tion of First Amendment rights, the tion of those ideas," the brief stated, threats not been advanced against SPLC contended , because school of­ "such attempts must be opposed school administrators. ficials failed to show that the sympo­ wherever they occur." Solmitz and McConnick appealed sium itself would materially and But the supreme court upheld the the decision to the Maine Supreme substantially disrupt school activ­ lower court's decision, stating that Court and, because of the implica­ ities. the school board ultimately had the tions the case had for student ex­ "The amicus sees this case as part power to oversee the school's curric­ pression in Maine schools, asked the of a continuing effort by pu blic ulum, according to Jed Davis, attor­ Student Press Law Center to join in school boards and public school ad­ ney for Solmitz and McConnick. an amicus curiae (friend of the court) ministrators across the nation to The «most serious implication " of briefin their support. impose a pall of orthodoxy upon the this decision, Davis said, is that the In its brief, the SPLC argued thinking of America's secondary stu­ courts have "given in to threats of that the school qualified as a public dents," the brief read. disruption" /Tom outside parties. He forum, citing similar programs held "[n that the First Amendment added that Solmitz and McConnidc. at the school which featured outside precludes interference with the open may appeal the decision to the U.S. speakers from "different" back­ discussion of unpopular ideas, and Supreme Court. • grounds . The board's cancellation of because the school is an institution

Editors appeal decision Calif. court permits prior restraint

Editors of La Voz Del Vaquero and the American Civil Liberties Union are appealing a California Superior Court decision in their fight against prior restraint at Rancho Alamitos High School. After a March hearing on a motion for summary judgment - the granting of a verdict in a case before it goes to trial - the judge dismissed the suit , rejecting the ACLU's arguments that a California statute and a school district regulation which permit prior restraint are uncon­ stitutional . The case began last spring, when Principal James Delong prohibited distribution of an April Fools edition of the paper, fearing the photograph and accompanying caption of an article, "Nude Photos: Girls of Rancho:' might be libelous. At first, Delong merely objected to the use of the word "nude" in the headline. But after consulting with the school district's attorney, Delong cited as grounds for censorship the paper's announcement that Playboy mag­ azine was accepting applications for a photo spread to be titled, "Girls of Rancho," and an accompanying photo­ graph of five female students captioned., " Prospective playmates ... " The girls reportedly were unaware that the photograph would be used in that manner in the bumor edition. Newspaper adviser Edward Surek had approved the April Fools edition of the paper prior to its submission. ACLU attorney Gary Williams said he will focus the appeal on what he considers violations of student press freedoms inherent in the California Education Code.

conlinued on p.lO

FOil 1985 SPLC Report 9 COURTS

Rancho Alamitos - continlled

Williams wants the court to consider as persuasive derous" material so long as the school officialsju stify such precedent the ruling in Fujishima II. Board of Education, censorship "without undue delay." 460 F. 2d 1355 (7th Cir. 1972), which held that any system Williams said i n his complaint that the statute's consti­ of prior restraint in a secondary school setting is unconsti­ tutional flaws are "readily apparen t." First, the phrase, tutional. The Fujishima decisi on binds schools in Illinois, "without undue delay" fa ils to specify deadlines within Indiana and Wisconsin. which school officials can justify censorship of stude nt However, Willia ms said even if the court allows prior articles, he said. Also, the provisions do nol outline an restraint, as many courts have done, the "broad language" appeals procedure fo r review of a principal's decision and of the statute cannot withstand constitutional scrutiny. do not provide fo r judicial review of an adverse decision. The fe deral courts have detennined that systems of Finally, the code does not define the terms, "libelous," prior restraint "must have clear and precise standards "obscene" or "slanderous" in order to guide school defining prohibited material, a specific set of procedural administrators and students, Wi lliams stated. safeguards, specific short time fra mes fo r the rendition of In effect, he said, the education code teaches the administrative decisions. and provide fo r expeditious students of the district that the "principles of freedom of judicial review," he wrote in a court brief. speech and fre edom of the press are mere platitudes which The California Education Code permits school officials can be abrogated at any time in the discretion of a school to exercise prior restraint of "obscene, libelous and slan- principal." •

California Opinion editor fights dismissal

The opinion editor of the Los his views at the cerem ony. The trustees also considered im­ \.ngeles Harbor College newspaper. The board of trustees voted last posing a policy banning articles that ired fr om his position fo r distri bUl­ December to censure the Ha wk after "denigrate" people on the basis of ng anti-Sem itic pa mphlets during Fields' columns had "outraged" the race, ethnici ty or sexual orientation, he school's Holocaust commemora­ Jewish community. according to lo­ a local newspaper stated. But profes­ ion. has been temporarily reinstated cal newspaper reports. sors and local journalists objected, Iy a federal di strict court judge. claiming it im posed an unconstitu­ Joseph Fiel ds, Harbor Ha wk staff tional prior re strai nt on student pub­ vriter, asked the court fo r a prelimi­ lications, the paper reported. lary inju nction returning him to his The opinion editor's anti-Semitic .osition as opinion editor of the commentaries have been a "point of ewspaper. His suit claimed that controversy" fo r more than a year, ludent editor-in-chief Joseph Gran­ according to David Wolf, dean of erg had violated Fields' rights of academic affairs. He emphasized that "ee associ a tion and free speech in school ad m inistra tors and the Har­ �moving him fr om his position. bor College journalism depanment In temporarily reinstating Fields, have attem pted to remain neutral in le judge commented that Gran­ the dispute. erg's actions may have violated the "The school repeatedly made it pinion editor's First Amendment clear that it was not our role" to ghts7 but ruled that the question decide whether Fields should be re­ 'ill not arise until Fields completes moved, Wolf said. "The editor's de­ n internal grievance procedure at cision, whether we agree with it our [arbor detennining if he will be not. is final." erma nently reinstated. Gary Willi ams, an American Civil Fields was dismissed by Gra nberg Li benies Union attorney represent­ I February after assisti ng Tom ing Fields, said he is negotiating wi th letzger. fo nner grand dragon of the the school's allorney to persuade the u Klux Klan, in denouncing the Los Angeles Community College olocaust as a " myth" during the District Board of Trustees to hear )lIege's third annual Holocaust Fields' case. He said Fields may )mmemoration. Granberg said he decide 10 settle the case out-of-court ld warned Fields at length that he if the Hawk agrees his term ination ould be dismissed if he presented was "imprope r." •

) SPLC Reoort FOil 1985 COURTS

Tax exemption draws debate Florida paper wins court battle against state Dept. of Revenue

Editors at The Independent Flor­ "The price a reader pays has noth ing District Court of Appeals, which ida Alligator have won a three-year to do with the character of a pu blica­ overturned the lower court's decision court battle against the state Depart­ tion. but ad mitted that there was a ques­ ment of Revenue (DOR) over the "The A lIigaLOr presents an easy tion as to whether the AlligalOr right to be exempt fr om state sales case: It's undeniably a newspaper should qualify as a newspaper de· tax. and entitled to the same treatment as spite its free distribution. The paper In a unanimous deci sion, the Flor­ a paid-circulation paper," Johnson appealed the decision to the sta:e ida Supreme Court ruled in July that said. supreme court. the DOR was incorrect in asserting Staffed exclusively by University In reaching a de cision, the su­ that the Alligator, an independent of Florida students, the Alligator has preme court listed several fa ctors student publication at the University operated independently of the school which distingu ished the AlligalOr of Florida, could not be considered a since 1973. The paper maintains a fr om a shopper. These include the sales tax-exempt "newspaper" be­ circulation of 30,000 and supports non-profit status of its publisher, cause of its fr ee distribution. itself entirely through advertising Ca mpus Com munications, Inc. ; the re venue. "tradition of training student jour­ The question arose in July 1980 Editor Frank Lo Monte said he nalists" through practical newspaper when the DOR contacted the Alliga­ fi nds the situation "ridiculous." experience; the inclusion of a broad tor and said the publication owed the "The Alligator prints more news range of news stories including staff­ state $23,000 in back taxes which than many big city papers," he said, . written and wire service material; were unpaid between 1977 and 1980. adding that the DOR's restrictions and the relatively low percentage of Under a 1979 statute, "newspa­ have raised quest ions fr om other space devoted to advertising as com­ pers" are exempt fr om sales tax independent, fr ee-d istribution college pared to that of sh oppers. Under because such a tax was interpreted as publications such as The Flambeau these circumstances, the court con­ a re striction on fr ee speech. In an at Florida State University in Talla­ cluded that the Alliga tor qual ified as attempt to distinguish newspapers hassee. a newspaper and was tax-exempt. fr om "shoppers," which are distrib­ In November 1982, Campus Com- The court considered the DOR's uted mainly fo r advertising purposes, munications fi led suit in district ru le "inadequate" because it prohib­ the DOR added a sti pulation to the court on behalf of the AlligalOr ited bona fide newspapers like the state administrative code stat ing that against the DOR, claiming that it Alliga tor fr om being sales tax-exempt all fr ee-d istribution publications qualified as a newspaper and should because they are distributed fr ee. The wo uld not be considered "newspa­ not be req uired to pay sales tax court ruled that the DOR must in­ pers" and must pay sales tax. although it was distributed fr ee. clude a prov ision in the state admin- The Alligator had never paid sales The court granted summary istrative code wh ich would tax until the DOR contacted the judgment in fa vor of the paper, hold­ accommodate all newspapers. • publication, according to Edward ing that the DOR's ad ministrative Barber, the paper's business man­ regulation as appl ied to the Alligator ager. Ca mpus Communications, the was invalid, since the publication paper's publisher, considered the Al­ met the "common sense interpreta­ liga tor a newspaper which would tion of the term 'newspaper.' " therefore be tax-exempt, Barber said. The DOR took its case to the First Upon notification fr om the DOR, the paper began paying sales taxes in 1980 "under protest," according to Lee Johnson, attorney fo r the Alliga­ tor. But Johnson called the DOR's assessment of the AlliRa tor 's status "erroneo us," contending that the First Amendment protected the pa­ per fr om paying taxes. "Its primary purpose is the disse­ mination of news," he said in his arguments before the supreme court.

FOil 1985 SPLC Report 1 1 COURTS

Iowa

'Rape' story gains legal acceptance

Editors at the Iowa St ale Daily lave emerged victorious in fighting a :9,000 libel suit fo rmerly won gainst the paper fo r an article re­ �rting a "rape." The decision, handed down from be state supreme COurt July 31, verturned a lower court's ruling hat the Daily's article had libelously ;' eported a sexual assault as a rape. LEGAL I ER'S The libel suit arose in January -'"k WEBST 982, after the Iowa State University e:=!�D�I�!!!i:IO::�� A=R Y��� -� .- .ewspaper published an article re­ ------� - orti.ng that a fe male bartender at the - -- >ea.I American Legion Hall had been lped. Laurie Hovey sued the Daily, laim..i ng that she was sexually as­ lulted, not raped. She asserted that parties is a child or a mentally hand­ To date, at least 20 states have lthough she was not named in the icapped person. The term "rape" is eliminated the tenn "rape" in order rtic1e, people could identify her as not explicitly defined in the statute, to redefine sexual assaults in gender­ )e victim because she was the only although the editor of the sta te code neutral terms, according to an article :male bartender who worked at the inserted the term parenthetically un­ in the Nat ional LawJournal. all when the incident was reported der the "Sexual Abuse" chapter Patrick W. Brooks, attorney fo r ) have occurred. heading. Hovey, contends that the definition The suit charged the paper with Daily attorney James Brewer of "rape" that District Court Judge reckJess disregard" because, accord­ noted that the paper had com plied Carl Baker instructed the jury to �g to a court clerk's t estimony, the with Hovey's request to print a re­ consider was proper. He claims that erk repeatedly infonned a Daily traction clarifying the charge against although the 1977 Iowa statute does :porter that Hovey's attacker had her attacker as second-degree sexual not distinguish rape from sexual �n charged with second-{jegree sex­ abuse, not rape. abuse. case law remains which de­ d abuse, not rape. Brewer, however, argued that finesthe elements of rape. The appeal centered on the trial since rape is no longer defined sepa­ But the state supreme court held lurfs decision to hold the Daily rately from sexual abuse under Iowa that in reports of matters involving :countable fo r the legal definition of law but is inse rted parenthetically in violation of the law, technical errors -ape": "forcible, nonconsensual sex­ the state code, a lay person has the "are of no legal consequence" if the U intercourse" - not to be equated right to make the assumption that report is substantially true. ith "sexual abuse." rape and sexual abuse "mean the In considering the case, the court The definition of "rape" under same thing." acknowledged that the tenns "rape" wa law has become elusive since "The press has the right to the and "sexual abuse" have been re­ e 1977 passage of a statute which broader definition," he said. Brewer garded interchangeably since passage IeS not contain the word. The stat­ added that since such definitions of the 1977 statute. Holding that the e defines "sexual abuse" as any sex vary from state to state, many publi­ Daily had established its article as t between persons done by fo rce or cations may find it difficult to write substantially true and hence not ac.­ ainst the will of one of the parties, in language that fo llows the legal tionable, the supreme court over­ any sex act in which one of the definition of rape. turned the trial court's decision. _

? SPLC Report Foil 1985 CENSORSHIP

Texas Artist banned from graduation fo r offensive cartoon files suit

An award-winning student car­ the comic strip with a magnifying affirmed McGee's decision. Due to toonist fo r the Stephen F. Austin glass. "It was not obvious," he time constraints, Ayres stated, he High School newspaper is suing the remarked. was unable to appeal to the board of Austin Independent School District Ayres, who had contributed his trustees. after it suspended him and banned comic strip, "Lucky," to Th e Ma­ On May 28 - the day of gradua­ him from graduation fo r submitting roon fo r three years, achieved first tion - Ayres filed a motion in Texas a drawing showing two students ap­ place in a contest sponsored by the district court fo r a temporary re­ parently masturbating. American Publishers Association and straining order asking the court to The case arose in May after the Quill and Scroll, an international enjoin officials fr om banning his cartoon was published in The Ma­ honor society fo r high school jour­ participation in commencement roon 's final edition of the school nalists. He received the award prior exercises, claiming his punishment year. Senior Whitney Ayres, who to submission of the cartoon which abridged his free speech and fr ee submitted the so-called "obscene" led to his suspension. press rights. The court denied his cartoon nine days after his usual Ayres appealed the principal's de­ request two hours before the ceremo­ deadline, was suspended for three cision to Associate Superintendent nies were to begin. days and banned fr om participating Go02olo Garza and to Superinten­ in graduation ceremonies by Princi­ dent John Ellis, but both officials continued on p. 14 pal Jacquelyn McGee after a hearing held by the Campus Review Board. Former Maroon adviser Tom 1e � Prentice said the cartoon was not ... T 1 ,fl subjected to "editorial scrutiny" due I 4"'1'14 to its late submission. However, 1 Pre ntice said, he requested discipli­ How d.is�l1slin� nary action against Ayres after sever­ al students brought the cartoon to his attention minutes after it was pu� lished. Prentice, current director of ser­ vices at the Texas Daily Newspaper Association, said in a May 22 Austin­ American Statesman article that the apparently obscene material was "surreptitiously and subliminally in­ .J serted into the comic strip." "It had to be pointed out to me," Pre ntice explained. "That makes it a more heinous offense because he [Ayres] clearly calculated that we would fo llow the obvious story line of the comic strip and the business of the artwork would divert our atten­ tion away from the lewdness." Editor Trey HaiJey said he re­ viewed the cartoon before publica­ tion but did not notice the masturbating characters, according to the St atesman article. After he was informed of the drawing, Hailey said, he examined

Fall 1985 SPLC Report 13 CENSORSHIP

Cartoonist continued

The motion alleged that school no grou nds in their brief fo r allegi ng nent interest; officials acted "wilfully out of mal­ tbat Ayres "waited past" his dead­ - Whether the work depicts or ice, deliberate indifference, and gross line. Also, the editorial policy of Th e describes, in a patently offensive negligence with respect to Whitney Maroon does not stipulate a deadline manner, sexual conduct as defined Ayers' rights" in suspending him and by which articles and artwork must by state law; banning him fr om participation in be submitted. - Whether the work, taken as a commencement exercises, and that The school district also alleged whole, lacks serious literary, artistic, the punishment caused him "sub­ that Ayres' cartoon was obscene and political or scientific value. stantial humiliation [and] embarrass­ therefore not protected by tbe First Obscenity is legally defined in ment. " Amendment. The brief did not spe­ Texas largely according to the Miller Ayres also claimed that his pun­ cify what legal standards the officials test (see West \I. Stafe, S.W. 2d 433 ishment lacked merit because he was used to define the cartoon as (Tex. 1974)). not charged with a punishable of­ "obscene," although Prentice later Tbe officials also alleged that pub­ re nse under school district regula­ claimed the obscenity standards used lication of Ayres' comic stri p caused tions. accorded with those of the U.S. Su­ a substantial disruption of school But in their reply brief, school preme Court. activities, but Kinney con tends that )fficials charged that by "wai ting The Supreme Court defined the no evidence to support this was )ast the deadline" to submit his latest standards for obscenity in the given by the Campus Review Board �oon fo r editorial review, Ayres landmark case Miller v. California, duringAyres' hearing. 'intentionally" set out to violate the 413 U.S. 15 (1973). To Qualify as Kinney voiced concern about the �itorial policy of the newspaper. His legally obsce ne, the Court ruled that possible effects of the censorship on lctions. they argued, constituted a material must meet all of the follow­ future Maroon staffers. He predicts riolation of class procedure and were ing criteria: that new edi tors will be "intimidated here fo re punishable under the - Whether the average person, by Ayres' punishment." .choal di strict's disciplinary policy. applying contemporary community A hearing in district court has not Owen lUnney, attorney fo r Ayres, standards, would find that the work:. been scheduled. Kinney said he is wted tbat school officials provided taken as a whole, appeals to a pru: now preparing documents fo r trial.•

Nevada

Planned Parenthood challel1ges ad refusal Planned Parenthood of Southern accept advertising. according to Planned Parenthood [evada, Inc. (PPSN) is gathering its In the amended complaint, PPSN executive director Kim Hansen. 'gal artillery in the mounting con­ claims the district's policy violates The suit names as defendants oversy over regulation of paid ad­ the First and Fourteenth Amend­ CCSD, the board of trustees, Super­ �rtisements in student publications ments because it allows high school intendent Robert Wentz and 10 sec­ ithin the Clark County School Dis­ principals to censor advertising ondary school principals. CCSD ict (CCSD). "without establishing narrow, objec­ comprises 12 high schools, 11 of In August, PPSN will file a mo­ tive and definite standards to guide which publish student newspapers. on fo r summary judgment in fe der­ their conduct." Oark County includes the city of Las district court before its suit against The complaint co ntends that high Vegas and is populated by more than CSD goes to trial. school students and other third par­ half of Nevada's residents. The nonprofit organization filed a ties who may seek access to Planned The Question originally arose in wsuit in December against CCSD Parenthood's services have been 1979 when Terry Manion, CCSD the U.S. District Court fo r Neva­ harmed by the district's refusal to director of senior high sch ools, or­ I, asking the court to declare that print PPSNadvertising. dered that no PPSN advertisements e school district violated PPSN's "Such harm is irreparable and be printed in any Clark County �e speech righ ts by rejecting continuing and is a restraint on the school publications. Previously, anned Parenthood advertising students' and other third parties' Planned Parenthood had placed ads hile accepting advertisingfrom oth- righ ts to rereive information," the in CCSD high school papers solicit­ sources, brief stated. ing its advertisements. The suit also asks the court to This court case may be the first to PPSN protested Manion's deci­ join school district officials fr om test the free speech rights of fa mily sion, and after negotiations with dis­ jecting PPSN advertising in high planning providers to advertise thei r trict officials, each school was hool publications which otherwise services in high school publications, continued

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gra nted the authority to regulate its schools published two ad vertise­ CCSD's proposed regula tion pro­ advertising policy. Several high ments during the school year, but hibits student publications from pub­ schools continued to print Planned after recei ving complaints from par­ lishing advertisements of birth Parenthood ads but olhers rejected ents, two of these schools also reject­ control products and information. the advertising. ed Planned Parenthood advertising. Other categories of advertising pro­ In April 1984, CCSO distributed a according to Hol t. hibited include "gambling aids," "t(}­ memorandum to its high school PPSN then consulted Roger bacco products," "drug 'looka­ principals to provide guidan�� "as to Evans, director of litigation for likes,' " "liquor products," and what power over advertlsmg In Planned Parenthood Federation of "items which may not be legally CCSD publications they possess." America, who concluded that CCSD possessed by students less than 18 The school district's memo did not lacked sufficient grounds to constitu­ years of age." specificaIly instruct principals on tionally proh ibit PPSN adverti sing in Although it was not fo rmally ap­ how to treat advertising of birth Clark County high schools. Pl anned proved by the policy committee, the control products or related info rma­ Parenthood presented Evans' legal proposed regulation was sent to all tion, but did suggest that ads "having opinion to CCSD and req uested pub­ CCSD secondary school principals. explicit sexual content or overtones" lication of its advertisements in the Every school except Oark High could be excluded. school newspapers which accept ad­ School has subsequently rejected During the spring and fa ll of that vertisi ng. PPSN advertising "until the situa­ year, PPSN submitted advertise­ On October 1 I, 1984, CCSD pro­ tion is resolved." ments to each high school newspaper posed a fo rmal advertising policy fo r Three weeks after the unofficial in the district, according to PPSN school publications to the Board of policy was distributed, Planned Par­ community affairs coordinator Dan Trustees Policy Committee, but the enthood fiJed its lawsuit against the Holt. The ads stated the availability committee declined action on the district. "It became apparent, ... that of certain medical services, counsel­ policy pending "further study" by the CCSD was not going to act in a ing and other informational services school attorneys. timely manner," Holt wrote in a relating to reproductive health. Sev­ newsletter. eral advertisements included the PPSN claims the district has ap­ availability of birth control products plied its proposed regulation uncon­ and related information. stitutionally "to prevent the receipt Fi ve schools immediately rejected of infonnation by third pa rties who the ads, Holt stated. Six other may seek PPSN's services and who have a constitutional right to receive such information." A court date has not been set. •

Fall 1985 SPLC Reoort 15 CENSORSHIP

Ousted editor continues suit CSU endorsen1ent ban fu els debate

A fo nner newspaper editor at tion, according to a survey con­ al opinions expressed are the views Humboldt State University (Cal.) is ducted by the San Fra ncisco Su.nday of the State of Californi a," Braafladt suing the board of trustees and Gov. Exa miner. said. George Deukmejian over the rightto Support or opposition of a politi­ "Moreover," he added, "infre­ publish unsigned editoriaJs endorsing cal candidate or issue by student quent endorsements by student poHtical candidates in the student newspapers is not banned by the newspapers do not constitute the newspaper. companion University of California government ·taking sides' or amount Adam Truitt, fo nner edi tor of the system. to fo rbidden political campaigning Lumberjack, has enmeshed himself Arnie Braafladt, attorney fo r Tr­ by the government." in a heated debate over the constitu­ uitt, said that CSU administrators In the complaint, Braatladt noted tionality of a 20-year ban enforced have misinterpreted title 5 in apply­ that Humboldt State administrators by the Californ ia State University ing it to the Lumberjack. Braafladt have not shown the endorsements to system prohibiting unsigned political argued that because student newspa­ be substantially disruptive of school endorsements in student publica­ pers are not sta te agencies, they are activities. Therefore, he argued, the tions. not bound by tbe code. restrictions imposed by the ban co n­ Truitt filed the suit in state court "We do not believe that anyone sti tute an "impenrussible" prior re- after he was suspended indefinitely reading a student newspaper would fr om his post fo r endorsing presi­ reasonably co nclude that the editori- continued dential candidate Walter Mondale on bebalf of the student newspaper last October. OLO;r ,. In his suit, which names 46 de­ �-:-:>""___ - \.J?- fe ndants.. Truitt charged that the ban '9 is a violation of students' free speech .>- and free press rights and has asked � the court to declare the ban unconsti­ tutional. CSU admini strators maintain that the ban com plies with title 5 of the California Administrative Code, which prohibits public university fu nds from being used to support or oppose candidates fo r public office. Because the Lumberjack recei ves five percent of its fu nds from the student government. school officials said it would be a misuse of tax dollars fo r the paper as an entity to endorse ballot proposals or political candidates.

Further, they argued , political edi­ toriaJs in student publications must be signed to insure that readers do not presume the opinion of the paper to be that of the school. The ban is enforced throughout the CSU system and has been fol­ lowed by most CSU newspapers. One exception is the San Diego State Daily Aztec. which also endorsed "1/ you do n't like it. resign!" Mondale and addressed state and local political issues but did not rece ive adverse administrative reac-

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straint on student expression. endorsements. Assembly Member However, the HSU College Re­ Truitt's edi torial has also spurred Dan Hauser introduced the bill to publicans bave not shared this opti­ debate among student government the legislature in March. mism. In June, the club was granted officers regarding future funding of If approved by Gov. Deukmejian, its motion to intervene in Truitt's the Lumberjack. Assembly Bill 1720 would bar CSU suit, claimi ng that all sides were not During a November 12, 1984. officials fr om prohibiting political being "properly represented" in the meeting, Associated Students voted endorsements, so long as the publica­ case. to place the Lumberjack on budget­ tion prin ts a disclaimer stating that In their complaint, the CoUege ary probation, noting that Truitt's the opi nions expressed are those of Republicans argued that unsigned editorial violated the student govern­ the editorial staff and do not nec­ . political endorsements abridged the ment 's budget language which re­ essarily represent those of the state, student body's First and Fourteenth quires the paper to obey the CSU university, campus, Associated Stu­ Amendment righ ts by "com pelling ban on unsigned pol itical endorse­ dents, or any other entity providing students to support candidates, par­ ments. financial suppo rt of the publication . ties, ideologies or causes which they The student government warned AB 1720 has been passed by the may be agai nst"

Truitt that " any fu ture violations of assembly and several senate commit­ The CoUege Republicans asked AS budget language may jeopardize tees, according to Paul Knepprath, the state court to declare constitu­ fu ture fu nding following due pro­ legislative director of the California tional the un iversity' s ban on un ­ cess." State Student Association (CSSA). signed political endorse'ments by the But Truitt claimed in his co m­ He expects the bill to be "on the Lumberjack The club also req uested plaint that the student government's governor's desk" fo r consideration the court to permanently enjoin the enforcement of the ban is an " unrea­ by the end of August. paper from fa iling to "properly dis­ sonable and unconstitutiona l interfe ­ Knepprath said the Humboldt claim" such endorsements so as to rence" with his ex.ercise of First and State board of trustees opposed inform readers that the opinions

Fourteenth Amendment fr eedoms. Hauser's bill at a July 10 meeting. expressed are "personal" 10 the ma­ He said the ban unconstitutionally Gov. Deukmejian was present at the jority of the Lu.mberjack editorial restricts receipt of student govern ­ board meeting but did not offer any staff. ment funding by requiring the paper comments during the board's dis­ Truitt's attorney opposed the to agree nol to make po litical en­ cussion, Knepprath said. club's interve ntion, argu ing that it dorsements. To date, 15 CSU campus newspa­ ra ised extraneous issues and would Since filing the su it, Truitt has pers have hailed Truitt ' s efforts and block an ex.peditious trial. sought passage of a bill in the Cali­ support AB 1720, according to' the Braafladt said he may file a mo­

fo rnia legislature clarifying the Ques­ California Polytechnic State Univer­ tion fo r summary judgment to dis­ tion of unsigned p o liti c a l sity Mustang Daily. miss the case before it goes to trial. _

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Wy oming

Adviser seeks 'constitutional' policy

A newspaper ad viser fired fr om tions pol icy had still not surfaced. dom of the press." :Jillette (Wyo.) High School has re­ Instead, Wonh was removed fr om As in many disputes over advis­ used to drop her suit against the her eight-year post as adviser to ers' rights, this case may hinge on :

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( ,

or injury of reputation," nor did it latest U.S. Supreme Court standards, chain of command' in contacting the specify material that would "endan­ and setting "reasonable" timelines ACLU and the SPLC in support of ger or be detrimental to the health. fo r due process. student fre e press rights." welfare, safety or morals of stu­ "It's a far more liberal policy" The school district denied that it dents," Hacker noted. It failed to than the existing one, Hacker ob­ took "great exception" to Worth's provide guidelines by which adm in­ served. He emphasized, however. consultations with the ACLU and istrators could predict disruption, that Worth will not drop her suit SPLC, but adm itted that it queried and prohibited publication of anony­ against the school district until it students on their methods of contact­ mous materiaL Further. he said, the adopts a "constitutionally accept­ ing the organizations, � policy neglected to meet the requisi­ able" policy. In her complaint, Worth had tes of due process, such as the stu­ Worth has asked the court to asked the court to reinstate her as dents' right to personally appeal an enjoin the school district from carry­ adviser to Ca mel Tracks. and to official's decision or advocate distri­ ing out the existing policy until it award her an unspecified amount of bution of material. develops one that meets legal stan­ back pay and compensation'for erne>­ "rm talking to the stone age," dards. Since the filing of Worth's tional suffering. damage s to career Hacker chuckled. suit, the board of education has and reputation injury. There are indications that the agreed to revise its publications poli­ "What has happened to Judy rep­ board is relenting to Worth's de­ cy. The proposed revisions were resents one of the most serious mands for a revised policy. Hacker scheduled fo r public hearings in late th reats to an uncensored student said a new policy is being negotiated July. press and the education of students," that would Temove "many vague, Worth's complaint also charged WEA President Stowers said. generic terms" fr om the existing poli­ that the district "wilfully retaliated" "Freedom of the press is the cor­ cy. Revisions proposed by the board against her fo r protesting censoTship nerstone of our democracy, and pub­ include eliminating au tomatic prior of the school newspaper. lic education is the key to teaching review, defining "obscene" and "li­ It claimed Worth was "specifically young people to understand and belous" material according to the chastised for 'not going through the maintain that freedom." •

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New Yo rk Former adviser files lawsuit to regain 20-year position

A fo rmer newspaper adviser at Other articles which Le istman or­ In her complaint, Su\sky said she Carle Place (N.Y.) High School is dered deleted or cen sored discussed ex.ercised her own free speech rights

suing the board of education to re­ the drafting of women and a report in the use of ber assistance and gain her 20-year position, claiming of the high school's Scbolastic Apti­ association with the student newspa­ she was dismissed by the principal tude Test (SAT) scores, Sulsky said. per and through her refusal to censor fo r refusing to censor and delete But in each occurrence of at the request of tbe principal. articles in the student newspaper. censorship, the principal fai led to To support this claim, Liotti Joan Lyo ns Sulsky, fo nner adviser show that publication of the articles noted a fe deral court's decision made to The Crossroads and tenured En­ in Th e Crossroads would ca use a in Bertot v. School District No. 1, 522 glish teacher at Carle Place. is asking material and substantial disruption F.2d 1\71 (lOth Cit. (975), which a fe deral district court to reinstate of school activities, noted Thomas states that an adviser's acts of "assis­ her position as ad viser and to enjoin LioHi, attorney fo r Sulsky. Such a tance and association" with a stu­

school officials from " interfering procedure is required by the courts dent publication are protected, with her First A mend ment fr ee to justify censorship of non-libelous although no writing of her own may speech rights." and non-obscene material in student be involved. Sulsky, who was removed as ad­ Sulsky also claimed Leistman's viser to the student newspaper in actions h ad a direct impact on stu­ 1981, is asking the court to award dent reporting. her $50,000 in damages . as well as "Due to the chilling effect of the compensation an d back pay. The ...... principal's reprimands, students suit. filed in April 1982, names Pri n­ shrank from publishing tbeir articles cipal Edward Leistman. Carle Place and fe ared retaliation if they insti­ Superi ntenden t Frank J. Flood and tuted complaints," she added. the Carle Place Union Free School School officials stated that if stu­ District as among the defendants. []. dents' rights were abridged by the Sulsky still retains her position as principal's censorship demands, it English teacher at the school. would be "a matter fo r a member of Tbe controversy began in '978 - the student staff or the student audi­ only one month after Leistman be­ ence" to raise a complaint. came principal of the Long Island /' Liotti argues that Sulsky bas gh school. After publication of an hi standing to defend the First Amend ­ article in the student paper entitled, ment rights of her students. He cites "Teachers Walk but Want to Talk," as persuasive precedent the Col orado d etai ling teachers' contract negotia­ Supreme Co urt decision in Olson v. tions, Leistman ordered all subse­ newspapers. Slale Board Jo r Co mmunity Colleges quent issues of Th e Crossroads be The main issues before the court and Occupational Education, 687 submitted to him fo r prior review. are whether Sulsky has First Amend­ P.2d 429 (Colo. 1984), which gra nted gh Since then, Sulsky said she has ment ri ts as an adviser and wheth­ advisers standing to file a First continually fo ught fo r authority to er such rights were violated by the Amendment claim on behalf of their protect the First Amendment rights principal's actions. students (see story this issue). of both her students and herself. Her The school officials contend that To establish standing, Liotti said suit cites I 1 incidents in which Leist­ Sulsky does not have a First Amend­ Suis ky must satisfy three elements of man ordered Sui sky to change or ment clai m by virtue of her position the doctrine known as jus tertii, :ielete articles and advertisements. In as adviser, since no speech or writing w hich allows an individual to sue on lddition. her suit notes an oral repri­ of her own is invol ved in the produc­ behalf of the rights of a third party. mand by Leistman after a student tion of Th e Crossroads. Therefore, The first element in volves the -eporter requested a copy of the they argue, the principal's decisions presence of a substantial relationship ;chool district's annual budget fo r an to censor the paper do not abridge n vestigati ve assignment. Sulsky's fr ee press rights. continued

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between the assertcr and the third ity which she, the asserter, wishes to claims are re ndered moot by gradua­ pany. pursue. tion but censorship has a "continu­ Acc ording to Lioni, SuI sky satis­ Liotti contends here that Sulsky, ing inhibitory effect" on the rights of fies the first element of thi rd pany as adviser, satisfies the second el­ present and future students' rights. standing by virtue of her position as ement of the doctrine because she the third element of the doctrine is adviser of Th e Crossroads. defended - and avoided restraining satisfied. "It would have been extremely - her student's First Amendm ent Principal Leistman maintained difficult fo r the student writers to rights "in the face of the principal's that Sulsky was removed from the enjoy their First Amend ment rights demands to unconstitutionally in­ advisership as a result of her "dete­ without the aid and support of the fringe upon those rights." riorating role as an adviser," but did fa culty adviser and the existence of a The final element of the doctrine not elaborate on how he perceived genuine pupil-teacher relationship," requires that there exist a difficulty that role. Liotti said. or improbability of these third par­ The school district filed a motion To satisfy the second element, ties in asserting the alleged depriva­ fo r summary j udgment in April, Sulsky must show that the enjoy­ tion of th eir own rights. asking the court to dismiss the case ment of the third party's rights is Liotti argues that because stu­ before it goes to trial. The coun has inextrica bly bound up with the activ- dents' individual First Amendmen t not yet rendered a decision . •

Colorado Adviser cites censorship in dismissal

An award-winning journal ism teacher dismissed from board of education accepted the charges and solicited the Bear Creek High School is seeking support from the opinion of Judith Schulman, a hearing officer at the Colorado Education Association in her quest to end Colorado Department of Administrati on. censorship of "gutsy" editorials in the student newspaper. In her 29-page report, Schulman noted that Doggett Charlotte Norton, a journalism teacher and adviser at became "extremely angry" and voiced his concerns to the school fo r two years, is appealing her dismissal in state Norton and the editorial staff on several OtXasions when court, claiming she was oppressed fo r refusing to censor the student paper's editorials contained negative com­ the student newspaper, Bear Fa cts. Her attorney, William ment!\ about the school district or administrative actions. Bet hke, said she also plans to file a defamation suit Doggett had also ceased distributing Bear Facts to the agai nst the principal. community, claiming the monthly paper was "just too Norton was dismissed in June fo r misconduct afters he controversial, " according to the report. admitted buying beer fo r two students, asking them to "It is apparent that from the beginning of his tenure as perform personal erran ds for her during school hours and principal at BCRS, Dr. Doggett took: a different view than using profane language in the Bear Facts newsroom. Norton as to exactly where the balance would be strUck "I made an error in judgment," Norton explained. "But between studen t journalistic interests an d independence this whole case stems from censorship of the high school and the interests of the administration," the report read . paper . If I hadn 't been the newspaper adviser, this [inves­ "Doggett clearly wanted Norton to take a stro �er stand in tigation] wouldn't have happened." directing students to reflect a positive view of administra­ Principal Maran Doggett said in a Denver Post article tive actions and activities than Norton felt was either that although be approved of Norton's teaching methods, necessary or appropriate ." he requested ber dismissal because her actions "were However, the hearing officer concluded that "whatever unbecoming to any professional." concerns Doggett may have had regarding the content of But Nonon mai ntains that Doggett was "ou t to get her" Bear Fa cts bad no influence whatsoever on either initiat­ dismissed �s adviser. "Through his constant investigations ing or conducting the i nvestigations concerning Nor­ and probing of studen ts," she said, "he finally found ton ... " something. " Nonon said in a Rocky Mo untain News article that she In 1983, Nonon was nominated fo r the Colorado High was surprised by the school board' s decision to dismiss School Press Association's Journalism Teacher of the Year her. award , and received the Distinguished Adviser Award. "I thought they would see beyond this," she said. "To Under Norton, Bear Facts twice won the All-American me, the school board copped out. The whole notion of Award from the National Scholastic PTess Association. cen sorship was completely covered up." After a three·month investigation of Norton's tenure at Bethke said he is now prepari ng documents fo r (he Bear Creek High School, Superintendent of Schools John appeal. A coun date has not been set. Peper filed charges in December against the teacher. The •

----_._. __._ ...._--- .. FOil lQ85 SPLC Repor! 21 STUDENT GOVERNMENT

Colorado Paper challenges fu nding cut-off

A journalism teacher at Pikes Peak Community College right to use the paper as a teaching tool or to assert the (Colo.) is co ntinuing a six-year court battle to reestablish First Amendment rights of her students. fu nding fo r the student newspaper after gaining the right Olson pursued the case to the appellate court and to the to defend the First Amendment rights of her students. state supreme court where she was granted the right to sue Judith Olson, adviser to the Pikes Peak News. and three on behalf of her students. The three students had grad­ student staff members sued the State Board of Commu­ uatedand did not join her in the appeal. nity Colleges and Occupational Education after the stu­ In determining whether Olson had standing to chal­ dent senate terminated fu nding of the paper. lenge the fu nding cut on behalf of her students, the The case, scheduled to come to trial October 15. has Colorado Supreme Court stated that Olsoo must meet at already provided a landmark decision by the Colorado least one of three criteria used to establish a third party Supreme Court allowing an adviser to sue on behalfof her claim. students. The decision is binding in Colorado and may set First, the court held that Olson's role as fa culty adviser persuasive precedent fo r the rest of the country. established a "substantial relationship" between herself The issue now before the trial court is whether the and her students, rendering Olson "as effective a propo­ students' rights were violated by the fu nding cutofT. nent of First Amendment rights of her students as the William Bethke, attorney fo r Olson, filed a motion fo r students themselves," summary judgment in May, claiming that a "substantial Fulfillment of this fa ctor alone could grant Olson the and motivating fa ctor" in the student government's fund­ right to sue on behalf of her students, the court held. ing cutotT to the News was its disagreement with the paper'sreporting and editorial policies. continued Olson is asking the court to dedare that the cutolTis a violation of the First Amendment rights of Pikes Peak News student editors. Her attorney cites as persuasive precedent the fe deral court decision in Joyner v. Wh iting. 477 F.2d 456 (4th. Cir. 1973), which ruled that censorship of constitutionally protected expression cannot be im­ posed by withdrawing financial support. Attorneys fo r the defendants, however, said it is unclear whether the News content was a substantial fa ctor in the senate's decision to terminate funding to the paper. The conflict arose in 1979 when student senate mem­ bers terminated fu nding to the Pikes Peak News. claiming that the paper printed "libelous" articles and that its content was not representative of the student body. Because of the funding cutoff, the News fo lded and was replaced by the Pikes Pea k Fuse. a low-budget magazine fu nded by advertising revenue and the college operational budget. Olson, who continued as adviser, modified her journalism design class to fa cilitate production of the Fuse. In August 1979, Olson and three students filed suit in Colorado District Court against the State Board of Com­ munity Colleges and Occupational Education, claiming the senate's fu nding cutofTvio lated the First Amendment rights of both her students and herself. [n her complai nt, Olson claimed that the senate's actions had a chilling effect on the free speech rights of her students. She also argued that the student government actions had restricted her ability to teach First Amend­ ment values because the Fuse contained 90 percent less content than the News. The court granted summary judgment in fa vor of the board, ruling that Olson lacked standing to challenge the fu nding cut. It held that she preserved no constitutional

22 SPLC Report Fall 1985 STUDENT GOVERNMENl

However, the court stated that Olson had also satisfied the elTect on students' ability to exercise their fr ee speech remai ning cri teria of the test. rights, and that th e students' constitutional i nteres ts could In assessing the second criterion, the court noted that be d iluted in the event Olson was not gran ted standi ng. because Pik.es Peak college is a two-year school, students However. the supreme court reversed the lower court's only had a "brief tenure" in wh ich to initiate and bring to ruling that Olson's own First Amendment righ ts were conclusion a lawsuit wi thout thei r i ndividual claims being viol ated by the fu nding cutotT to the News. not i ng that the rendered moot by graduation. Al th ough other students First Amendment does not gi ve Olson the right to require could be substi tuted as plai ntiffs, the court held that there the school to allocate fu nds to the newspaper when it is was su fficient difficulty or i mprobability in the students not pan of the official curriculum. asserting their own rights. Bethke said t hat if t he district court grants summary "There is little lost in term s of effective ad vocacy by judgment in favor of Olson. he would then request a trial allowi ng Olson as teacher and fa culty adviser to assert the to determ ine the rcinst itution and fundi ng of t he Pikes rights of the stude nts," the court said. Pea k News. The fmal considerat ion concerned the question of the Olson's attorneys sa id they will ask the court fo r st udents' rights being "inextricably bound up" with Ol­ co mpensation covering the years the paper did not receive son's efforts to prohibit tennination of funding to the its funding, which would then be used to produce the Pikes Peak News. In addressin g this criterion, the court News at the caliber it maintained before the funding stated that the fundi ng cutoff could have an inhibiting cu toll •

California Student government fa ces lawsuit

Editors of the Universi ty of Cali­ of all student publications, the s tu­ suggested that the papers provide fo rn ia - Irvine student paper, New dent body vice presiden t and t he equa l access fo r all viewpoints. UniverS ity, may joi n a suit against admi n istrati v e v ice presi dent. Both the Mestiza and the Univer­ the student government after it con­ accord ing to Sullivan. Ed itors of the sit l' have contacted t he American fiscated 5,000 copies of the paper stude nt paper are nomi nated by t he Civil Liberties Union, and the Mest i­ because it contain ed student election communications board, but must za has reportedly filed suit against endorsemen ts. ga in the official approval of the ASUCL Although the Univers itJ' has Univers ity ed itor Da nny Sullivan ASUCI before they are i nsta ted. not joined the suit against the said the endorsements appeared in The board, which has been acti ve student government, Sullivan said La Voz Mestiza, an alternative stu­ since Janua ry, has set no guidelines the paper " ce rtainl y su pports" th� dent quarterly that was inserted in an fo r what can or cannot be published su i t. • issue of the Univers iTY. As a resul t of in student papers. However. it has the paper's endorsements. the stu· dent government declared the elec· tions void and reschedu led new elections, according to Sullivan. Gaspar Copado. editor of the Mes· Tiza, could not be reached fo r com· ment. The Mestiza is completely fu nded by the studen t government, Asso­ ciated Students of Uni versity of Cali­ fo rnia-Irvine (ASU CI). The Univers ity receives approximately ei gh t percent of it s $155,000 budget fr om AS UCl. A communications board is re­ spon si ble for overseeing the student papers' operat ions. Su llivan said . Boa rd membe rs i nclude the edi tors

FoU 198S SPlC Repo!! 23 STUDENT GOVERNMENT

Calijornia Assc)ciated Students takeover bid quashed by university president

CaJlj(lrni;; ,)ta[(,' University - has final word on all legislation paper at CSU - Long Beach and DUlllinguez HIlls President Robert passed by the ASCSUDH, rejected a Barbara Fryer, adviser fo r the Daily

Rutweli has ul:,,<;;i!d :i plan to drasti­ revised publications policy, proposed Forty-Niner at CSU - Fullerton said "ally change funding and control of by ASCSUDH president Louis Arm­ they believed passage of Arnunand's .,:.' C'::.mpus nl'\\'sp�per to upgrade its mand, which called for a structural code would have given rise to "chilly tlli.;:iny and ICIl10Ve it from the reorganization of the Student Publi­ climates" within the student press at thf<:at 1)1' stude ill government con­ cations Commission and a shift of CSU - Dominguez Hills. troL control of the Bull's Eye editorial "The policy was vague where it Beginning lhis fa ll. the Buffs Eye and hiring policy. should have been specific," Fryer will no longer recei ve fu nds from the The university president convened said. She noted that Armmand's pro­ student governmCJlL ,·\ssociated Stu­ a panel of two journalism professors posed restructuring of the Student dents at Ca lifomia Slate University in March to review the proposed Publications Commission detailed - Dominguez Hills (ASCSU DH), policy and offer suggestions on who suspension and term.ination proce­ The paper nonnatly rece ives half of should oversee the paper. dures of commissioners, but it failed Panelists Jay Berman, adviser for to offer grounds fo r "such drastic its $30,000 budget fr om the student government. the Daily Tital. the campus news- actions." Instead, ButweH said the paper "Th is could easily give rise to will be financed by school funds and terminations being arbitrarily en­ Buffs Eye advertising revenue, fo rced, creating a chilly climate fo r according to his three-page editors and reporters who must be statement. free of intimidation if they are to do , The university president also their jobs properly," Fryer said in a plans to give control of the pubJica­ draft of her analysis. tion to a media advisory board com­ Fryer added in an interview that posed of fa culty, student and profes­ although the code specified procedur­ sional journalists, students outside al appointments of commissioners, it the communications department and fa iled to suggest journalism experi­ alumni. The board's responsibilities ence as a prerequisite. wi ll ioclude developing a process fo r "We thought control {of the Buffs selecting editors, detennining fr e­ Eye] would be stacked on those who quency of publication and finding know little or nothing about journal­ way!; to increase the paper's advertis­ ism," she ex.plained. ing revenue. Buffs Eye staffers believed Arm­ Butwell is also conducting a na­ mand's code would restrict their free tional search to replace David Safer, speech and free press rights. They fo nner communications department had threatened to sue the student chairman. The new department government if it had approved the head will be given "a specific man­ code. date to make our paper one of the Armmand and the ASCSUDH best" in the 19-campus California called fo r control of the Student SUte University system, Butwell Publications Commission which in said. tum would control the Bull's Eye. Bull's Eye staff members could The code would have allowed. the not be reached fo r comment on commission to hire and fire news­ Butwell's plan. paper editors and suspend news staff The changes in funding and con­ members if it believed the paperhad tro l of the Bull's Eye were prompted not provided "fair, accurate and bal­ by an attempted student government anced " reporting. ukeover of the paper. Butwell, who MARY DRISCOLL continued

._._.. _ ...... _ .. _-_ .. _._. ._ ...... _ ... _------24 SPLC Report Fall 1985 STUDENT GOVERNMENT

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The code also would have shi fted personal interest in the student gov­ defend the academic rights and fre e­ control of the paper's editorial policy ernment's effort to gain control of dom of students enrolled in the offi­ to the publications commission. The the paper, according to the Times cial (journalism] course," Nail wrote ASCSUDH would directly or indi­ article. in her resignation letter. She is now rectly appoint fo ur of the five voti ng The ASCSUDH leader also de­ with the journ alism department at commissioners and would eliminate nou nced the paper fo r its lack of CSU - Ful lerton. as voting members the editor and "systematic coverage" of events and Harby was unavailable fo r com­ adviser of the paper. issues important to the student body, ment, but Nail said Harby resigned According to a Los Angeles Times "incompetent" business manage­ due to similar fr ustrations and "for article, Nancy Harby, then editor-in­ ment, and propensity to fea ture personal reason s." chief of the Bull's Eye, believed the "one-sided, bellicose" attacks on stu­ The media advisory board is al­ ASCSUDH intended, via its pro­ dent officers. ready discussi ng revisions to the posed publications code, to lay the "What's surprising is that the pa­ campus publication� code, accordine groundwork fo r future political con­ per has been allowed to go on this to Safer. The code will define more trol of the paper by attempting to way fo r so long," Armmand said. precisely the re sponsibilities of the "dictate" editorial policy. Harby After battling the student govern­ paper' s editors, he sai d, and will seek mentioned that several Bull's Eye ment fo r control of the Bull's Eye. to fo ster "mutual discussion of edi­ articles and cartoons published last adviser Candy Nail and Harby re­ torial policy" by Bull 's Eve staff year criticized Armmand's "dictator­ signed their posts in March, just members. ial" style of leadership. weeks before Butwell announced his Safer said he could not discuss the Several letters to the editor ambitious efforts to reorga nize con­ specifics of the code's revisions be­ dubbed him HIdi Armmand" and tro) and fu nding of the paper. Nail cause they have not been fo rmally "Louis Amin," likening him to the said she quit because the university approved, but remarked that "the deposed African dictator Idi Amin. administration had allowed student whole direction is positive." Harby suggested that Armmand may officers to "run the campus." Although the current code recom­ have proposed the code to punish "I cannot provide quality instruc­ mends that published material be "in the paper. tion to my students when the admin­ good taste." Safer said the board Armmand said Hull's Eye report­ istration prefers to indulge the petty does not plan to include guidelines ers relied on "questionable fa cts" in tyrannies of a power-hungry Asso­ as to what material can be prohibited articles about him, but denied any ciated Students officer rather than fr om publication. _

Fall 1985 SPlC Report 2S UBEl

New Jersey 'Student romance' sparks libel suit

A Madison (N.J.) High School student and her fa ther declined comment on tbe specifics of his defense. lre suing the student newspaper for compensatory and In mid-March, the Madison school board proposed its )unitive damages, claiming that an article concerning first publications policy fo r the district. According to itudent romance between classes da maged their reputa­ Cosimano, the current president of the New Jersey Press .ions. Association. the Dodger has not operated under a written The libel suit springs from a June 1984 article in the set of guidelines in its 25-year history. Dodger entitled, "Student Romance Gives Hallway 'R' Cosimano pondered the timeliness of the policy, as Rating." Madison student Danielle Romano appeared board officials introduced it just two months after the .vith a male student in the accompanying photograph, Romanos filed suit against the Dodge r. "I think it's more .vitb a caption that said the two students were displaying than coincidental," she said . reelings of affection between classes. The policy introduced in March met with staunch In their complaint, Romano and her fa ther, Louis, resistance from parents, teachers and students in the :harge that the article, picture and caption collectively district, who ralIied against it at a subsequent board -vere "false, misleading, libelous and slanderous," and meeting, according to Cosimano. The main reasons fo r "'ere published "maliciously and with intent to injure" resistance to the policy, she said, were that it permitted Danielle Ro mano. prior review by the principal and prohibited publication of The suit fu rther alleges that the younger Romano had material "deemed harmful to impressionable pupils." ;offered humiliation, ridicule, and emotional and physical The board agreed to remove tbe above provisions and IOjury as a result of the Dodger's article. Her fa ther claims adopted the policy in May. Under the new policy, the that the publication caused bim embarrassment and has adviser holds official authority to review material before 'brought [him) into public disgrace and infamy amongst publication. Cosimano said this has been an informal tlis neighbors and in his community." practice si nce the Dodger was established. The male student with whom Romano appeared in the But concerns remain over the constitutionality of the photograph reportedly has not taken legal action. board's policy. which prohibits publication of material The suit, filedin New Jersey Superior Courtin January, considered "grossly prejudicial to an ethnic, national, names as defendants the Madison Borough Board of religious, or ra cial group or to either ge nder," and material Education, fo rmer adviser Angela Cosimano and Dodger which "seeks to establish the supremacy of a particular reporter Dianne Kricku s. A court date bas not yet been religious denomination, sect, or point of view over any >et. other." In clarifying his position, Romano said he believed Although the policy also prohibits publication of readers would automatically associate his daughter with obscene, libelous or slanderous material, Cosimano noted the subject of the article. that it fa ils to provide specific definitions of such material. "The picture didn't bother me, and the article didn't Accordingly, she said. Madison students will not be made bother me," he explained. "It's placing the picture under aware of the legal standards ordinarily used to define the article that bothered me," obscenity or libel. • Romano added that he considered it "poor judgment" to "single out two people who are not aware of what the picture is being used fo r. " But Cosimano maintains that the Dodger is a "careful paper." "We go out of our way to print only the facts, and not Lo damage anyone's reputation," she said,addin g that she believes the suit lacks merit. School board attorney David Rand agrees, saying the mit is "ridiculous." "It has been blown utterly out of proportion," he said. "1 have absolutely no belief that there is any basis fo r those allegations in fact." Rand also questioned the Romanos' decisi on to name Krickus, who wrote the article, as a defendant. "If you look at the involvements" in placing the article with the photograph, he noted, Krickus is the "most remote" fro m liability. "The article was published in good fai th ...we believe that our peo ple will be vindicated," Rand said. He

26 SPlC Report Foll 191l5 LIBEL

New Hampshire Professor drops $2.4 million suit

A Dartmouth College music pro­ respond after it was published, and Sexuality." The article, which fe ssor has dropped his $2.4 million according to the statement. Cole bad appeared in a satire column entitled, libel suit against the Hanover Re­ declined response on the advice of "The Dartmouth Liberation Front," view, Inc., publisher of the Dart­ lega l counsel. said Hyde "sometimes has a good mouth Review. "The Review has vigorously de­ word fo r the North American Man­ William Cole, music professor and fe nded its article and its Fi rst Boy Love Association. wbich may be chairman of the music department at Amendment right to report on mat­ his idea of perfected Christianity. Dartmouth, had accused the Review ters of interest and concern to the Last fa Jl he married a girl he had met of actual malice after it published a Dartmouth com munity," the only six weeks earlier." January 1983 article questioning his statement read, adding that the writ­ Although the article also satirized

teaching methods. ers made efforts to allow readers to other Dartmouth officials. none have The article, entitled, "Prof. Cole's reach their own conclusions. reportedly filed suit.

Song and Dance Routine, " described But the publication has not seen According to Peter Hutchins, at­ Co le's course as "renowned to be the the last of libel suits . Although Cole torney fo r Hanover Review, the arti­ most outrageous gut course on cam ­ dropped his suit in May, the Dart­ cles cited by Hyde are privileged and pus, home of the thicknecks," adding mouth Review fa ces a $3 million libel qualify as fa ir comment since they that, "Nothing worries Bill Cole. Not suit fI]ed in March by Richard Hyde, refer to comments the professor regulations, not teaching. Nothing:' associate chaplain and professor of made during a public lec ture. Fur­ According to a statement an­ religion at Dartmouth. ther, since the articles are "clearly nounaing termination of the two­ Hyde claims that severaJ articles satire" and were not published with

year-old suit, Cole, who is black, published in the Review contained actual malice, they cannot be consid­ considered the article "racially moti­ "faIse, misleading and inflamma­ ered defamatory or actionable. Hut­ vated and unfa ir and inaccurate both tory" information which threatened chins said in his brief. in its descriptions of him and its his personal and professional reputa­ A court date in New Ham pshire characterization." tion and position at Dartmouth Col­ Superior Court has not yet been set The Dartmouth Review, a conser­ lege . He also claims in the suit that Hu tchins said the Hanover Review vative weekJy published by students the articles constituted an invasion may file a motion fo r summary

independently of the college . main­ of privacy. judgment, asking the state court to tained that it made efforts to contact One article referred to an April dismiss the suit in fa vor of the Cole for comment prior to publica­ 1983 lecture Hyde del ivered entitled , Dartmouth Review before the case tion of the article and invited him to "A Christian Understa nding of Love goes to trial. _

Foil 1985 SPLC Report 27 LIBEL ---... _------

Editors battle multiple libel suits Daily Iowan awaits trial which had picked up the stories complied with his request to pri nt retractions and discontinued printing the series. Student editors at The Daily Iowan are fa cing a Attorneys representing the News contend that the paper 200,000 libe l suit after they reported several criminal did not publish retractions because Boling fa iled to specif­ )mplaints alleged ly fi led against an Iowa City police ically mention anything materially fa lse co ntained in the I1i cer. articleL • Po lice Ofticer Daniel Dreckman, who filed the suit in Jnc 1983, is charging the paper with defamation, actual lalice, and negligence. The suit is pending in district $9.1 million suit pending )urt. The controversy began in October 1982 when the Daily A student at William Rainey Harper College (III.) is )wan, an independently incorporated publication staffed fa cing a $9. 1 million libel suit after wri ting a pointed y University of Iowa students, published an investigative commentary about his journalism professor in the student :ory describing an assault charge filed by Cathy White newspaper. ?,a inst Dreckman which was dismissed later that year. The debate arose when senior Michael McCarthy wrote 'he article quoted Thomas Mikel­ a guest column in the May 1983 )n, president of the Iowa City ed ition of Th e Harbinger, reflecting ranch of the National Association on his experiences at Harper College, )r the Advancement of Colored citing problems he perceived at the 'eople, as sa ying that a similar as­ school and criticizing Professor Hen­ mit complaint had been filed ry Roepken's academic performance. gainst Dreckman that summer. In his col umn, McCarthy, who has Dreckman contends in his suit since graduated, included a para­ .1at no criminal complaints other graph describing Roepken as a "very Jan the one brought by White have fo ul-mouthed journalism instructor een filed, He maintained that the who always hated student-run opera­ aper should have verified the accu­ tions if they weren't run HIS way, :lcy of Mikelson's statements. and held it against his students if Dreck man's suit names as de­ they professed their allegiance to that �ndants the Daily Iowan and Mikel­ orga nization ..." on. • McCarthy fu rther described Roep­ ken as "the most disgusting , hard­ headed, stingy instructor I know," Beer and munchies ' contractor and concluded with, "As the saying goes, if you can't; teach'!" 'rings suit against State News Roepken, who is also a professional broadcaster, filed the suit in state court in January 1984 claiming that Student reporters at Michiga n State University are McCarthy's remarks were calculated to injure his personal waiting a court date fo r a libel suit brought against them and professional reputation. The judge dismissed the suit. fter they published a series of investigative stories in Roepken appealed the decision in August of that year, 983 describing "highly questionable" expenditures of naming as defendants McCarthy, the editors and adviser niversity funds by an ecological data management firm. of Th e Harbinger. two administrators, Harper College and Robert Boling, president of Eco-Tech, Inc., filed a the board of trustees. 10,000 libel suit against Th e State News in state court In his appeal brief, Roepken claims the comments fter the student newspaper alleged that his company was made in McCarthy's col umn implied that the professor smg fu nds from a $227,000 university contract toward acts unethically as a teacher and incompetently as a fringe benefits" such as "beer and munchies." journalist. Roepken contends that McCarthy's statements The articles, based on an MSU internal auditor's report, fa lsely and maliciously damaged his reputation as a Iso accused Boling of billing the university fo r his private citizen. rother's airplane tickets. But Sarah Sotos, an attorney fo r Harper College and The company president said in his complaint that the Th e Harbinger. said McCarthy's comments constituted tate News "refused" to print retractions of its allegations "mere name calling," and as such were neither defamatory Iter he informed the paper of its "false and defamatory" nor actionable. lformation. Boling noted that professional newspapers A hearing fo r Roepken's appeal has not been set. •

8 SPLC Reporj Fall 1985 LEGAL ANALYSIS ------_._- --.... -- . -- --_.. -

Wh o really pays fo r libel? Liability and the student press

In the last twO decades, a new type of student journalist student editors were sued . and the fa culty ad viser was has evolved. Rather than reporting only who won the last sued in six cases. The school paper was named as a basketball game or who has the nicest car on campus, defendant most freq uently - a tota l of 14 times. The these journalists cover important and controversial issues. school itse lf was na med in a suit a tOlal of eight times. At the same time, the student journalist takes the risk that While nine of the cases are still pending, the 19 concluded by probing into such things as corruption, teacher compe­ cases present interesting results. Of those 19 cases, five te nce, or sexual assault, the subject of an article wi ll sue were dismissed either on summary judgment (there was fo r libeL But is it really the reporter who runs the risk of no material issue of fact to be decided by the jury) or fo r liability fo r de famat ory remarks in the student paper? Or fa ilure to continue the suit. Of the five cases that were is it the paper - or the school - who ends up actually fully litigated, th ree were won by the paper. All of the paying? remaining nine cases were settled out of court, with the In contrast to the hundreds of cases filed against plaintiff receiving some amount of money. Of those professional newspapers in one three-year period,I the settled, only two were settled fo r payments in excess of several dozen suits filed against stude nt publicati ons in $10,000- one for $14,000 and one fo r $50,000.6 In other the last 10 years seems small. In comparison to the words, in 19 cases collectively seeking more than $62 number of libel suits filed against student publications in million in damages, payments for the 11 cases won by the 45 years before 1975, however, there is a significant plaintiffs totaled only $96,550. The nine cases still pending seek nearly $95 million in damages. The exorbitant damage figures batted around in li bel suits are typical of lawsui ts in general, and the money actually paid indicates that the fe ar they cause is exagger­ I� LBOIL ated. The plaintiff'S hope is that the high figure will do one of two things. First, a defendant will see imminent bankruptcy looming after a long and expensive court IIILYSIS battle, and Quickly attempt to settle the case fo r a increase_ Between 1930 and 1975 only 19 libel suits were considerably smaller am ount than that originally sought. brought against student pUblications.2 Money damages And second, the plai ntiff hopes that by asking fo r outra­ were paid in only seven of these cases, six of the cases geous damages, he will at least be awarded big damages. bei ng settled out of court, and one case being fu lly tried.) What usually happens is the plaintiff is gra nted his first Twenty�ight libel suits re ported to the Student Press Law hope and is usually as willing to avoid going to court as Center have been filed since 1975, a warning to student the defendant. The fa ct is that plaintiffs awarded damages journalists and schools, as well as a reminder of how in 11 libel suits collectively received approximately one litigious our society has become. Few people who believe -> tenth of one percent of damages requested . they have been defamed will consider an apology suffi­ conlinut!d 01/ p.30 cient remedy. Widely publicized libel cases, such as Carol Burnett's suit aga inst the Na tional En quirer: and Miss Wyoming' s case against Penthouse'> have created recogni­ tion of the potential fo r handsome compensation fo r libel, at least agai nst the professional media . What eftects do large libel suits have - or shou ld they have - on high sc hool and college publications? To answer this, it is necessary to step beyond the fig ures and analyze where the money paid fo r l ibe l suits is coming fr om and why it is coming fr om those places. . The 28 libel cases of the past decade (see chart) present a clear pattern. The person alleging libel often sues fo r an amount far in excess of any actual damages - in 17 of the cases. the relief sought was $ !OO,OOO or more. The plaintitTs who believe they have been libeled will often sue i ndividual and organi zational defendants; in 12 of the cases, the reporter was sued, in five of the cases the

Fall 1985 SPLC Report 2'; LEGAL ANALYSIS

This outcome is comparable to the results fo und in the jury), and five won jury verdicts. In sum, of the 55 rofessor Marc Franklin's 1981 litigation study of libel cases that were actually litigated, libel plaintiffs won only lits against professional publications,? in which he report­ three. The results were equally as dismal for plaintiffs on I that a large majority of plaintiffs lose their libel cases. the appeal level.8 ranklin also found that plaintiffs are rarely compensated There are several explanations fo r why plaintiffs so lrough a final judgment in a trial, but rather that rarely see their case reach either a fm al judgment in their Impensation came through some sort of settlement. One fa vor or a fm al judgment at all. Current libel law, as Jel insurance company's data showed that of 110 cases discussed elsewhere in this Report, makes it very difficult osed in 1979, 25 were dropped by the plaintiff, 30 were for a plaintiff to recover damages, especially if the plaintiff ,ttled fo r some type of payment (ranging between $300 is a public official or a public figure. Also, it is often Id $50,000) and 55 were tried in court. Of those tried, 20 desirable fo r both parties to settle before the case goes to ,suited in summary judgment for the defendants, 22 trial because of the high legal costs involved. The expense �fendants won on motions to dismiss, five won directed of defending a libel suit, whether won or lost, is estimated �rdicts, (verdicts given by the judge without ever going to continued

Libel suits filed since 1975

'ear publication/school those sued amount outcome notes

1975 Daily Iowan paper unknown $3,000 se ttlement paid by pa- tavern described as "gay bar" Univ. of Iowa per's insurance co.

1975 Daily Iowan paper unknown paper won brought by developer of Dalkon Univ. of Iowa Shield

1976 Lantern reporters. $860,000 $2,500 seHlement paid by remarks concerning local Ohio Sr. Univ. adviser paper landlord

1976 Kaiman reporter, $102,000 $14,000 senlement paid by re marks concern ing paper's print Univ. of Montana paper school's insurance co. and shop student government

1977 State News paper $2.5 million case dismissed rema rks concern ing baseba ll Michigan Sr. Univ. pJayer

1977 State News paper $1.65 million $50,000 senlemen! paid by remarks concerning shooting by Michigan Sr. Univ. paper's insurance co. police officer

1977 Crimson White no fo rmal lawsuit $10,000 $3,000 senlement paid by re marks made in "valentine" Univ. of Alabama school's med ia planning bd.

1978 Daily IIlini reporter, $250,000 case dismissed remarks concerning business' Univ. of Illi nois publisher fa ilure to pass on manufacturer's discounts

1978 Daily Iowan paper unknown $250 plus costs paid by paper lener labeled "Bloody Zionist" Univ. of Iowa

1978 Pipe Dream state unknown case dismissed fo rged le({er identified writer State Univ. of N.Y.· as gay Binghamton

1979 Daily Chronicle reporter $52 million $4,000 se nlemen! paid by remarks concerning governor's Univ. of Utah school's insurance co. aide

1979 yearbook bd . of ed uc. $ 1.5 million pending "I'm easy" caption on studenl Port Richmond HS (NY) biographical sketch

1979 Colorado Daily paper. reporter, $500.000 undisclosed se {(lement paid remarks critical of a director of a Univ. of Colorado program director by paper study abroad program

1979 yearbook school $50.000 case dismissed student'S name below picture of Christian Cty. HS (KY) dog

1981 maneater paper $120,000 $7,800 senlement paid by remarks made in classified ad Univ. of Missouri· school and paper Co lumbia

1982 Iowa SI. Dai ly paper $9.000 paper won see story th is issue Iowa Stilte Unlv.

) SPLC Report Fall 1985 LEGAL ANALYSIS

to begin at $20,000.9 For example, in the 1979 case against student editors, and even faculty advisers, are usually the University of Utah Daily Chronicle, a reporter had judgment-proof, meaning they lack sufficient money to pay printed an article concerning the unethical behavior of a even a small judgment. A school paper. funded through governor's aide. The a ide sued after he was dismissed fro m student fees or advertising revenues, has a larger amount his job. The reporter was eager to go to court, claiming he of money. A high school or university has still more . Even had proof of the aide's behavior, and attorneys estimated better news fo r a libel plaintiff is that schools and that the reporter had an 80 % chance of winning. But the newspapers often carry insurance policies. II So if a plain­ school chose to settle out of court for $4,000 rather than tiff can find some way to bring the school into the suit 88 a pay the much higher cost of going to trial. defendant. his chances of actually getting money from a The Utah case illustrates an interesting point. Although settlement or judgment rise considerably. . the reporte r WIUI willing to go to trial, it was the university Thus. a justification for a school having to pay student that negotiated the settlement. The university probably libels is the "deep pocket" theory, which is often used in thought that it would be held financially responsible in the personal injury law making certain parties financially end. Why? A simple answer, of course, is that students, continued on p.32

l:eAr l!u blicatioDLscbool those sued upount !!u tcome notes

1983 Dartmouth Review reponer $2.5 million case dismissed sec SlOry Ih,s issue Danmoulh College (NH)

1983 Daily Iowan paper $200,000 pending re marks made concerning com- Univ. of Iowa plalllis agalns, police officer

1983 Observer reponer, $4,000 $2.000 damages awardcd re marks concern ing inslruclors Southern Univ. of roitor, slate againsl sludenls. dismissed New Orleans (LA) against Slate

1 983 Lan/ern reponers. $1.5 million plaintiff loses at lrial rc ,narks conce rning bar manager Ohio 51. Univ_ editors. paper, adviser. school, Slate

1984 Cadaver ed ilors, $150.000 pending co mments made in response Lo a Georgia Medical Co llege adviser readcr's letter

1984 Harbinger reponer. $9. 1 million case dismissed, see �IOry Ihis Issue William Ramey Ha rper editors, appeal pending College (IL) paper. ad visers. adm i n isI ralors. bd. of LrUSlees

1984 State News paper $10,000 pend i ng see slOry Ihis issue Michigan SI. Univ.

1984 Clipper Courier reponer. $1 mIllion pendi ng remarks blaSlmg a school ad min· Cumberland HS (RI) adviser, IstralOr fo r absenleelsm journalism dep'-

1 984 Owl reponer. $80 million pending allegAlIons made against haskel· Vniv. of Santa ('lara edilor. ball fa n (CA) unlV. prcs.

1984 Dartmouth Reyiew publisher $) million pending see siory (hiS 15SUl' Da nmoulh College (NH) (off-campus pa per)

1985 class prQjecl school unknown $10,00(} damages re marks concern ing so:l1ool cook Oriskany Falls HS (NY) dlSlricI awarded and caf('(<;ria fo od In newspaper- fo rmal <:lass proJcCt

1985 Dodger feporter. unspecified pending "slUd"nl romance" capllon un- MadlSQJl H.S. (NJ ) adVIser.

Li$1 is based on caseS lhal have betnreponed (0 Iho SPLC

._------_.------...__ .. . _----_._--- __ ._------......

Foil 1985 _------SPlC Report 31 LEGAL ANALYSIS

)nsibleP In essence, this theory involves the search review to prevent any potentially libelous material from Iho is in the best position to pay . The plaintiff himself being printed. Potential liability has been used 88 an usually be forced to absorb the loss to his reputation excuse to control some student publications_ However, the career as a result of the libelunless the school provides fear operating here on the part of many administrators is :ompensation. The theory goes that the school is in a largely illusory for public schoolS in light of court decisions )r position than the libeled individual to pay for the rendered in the past decade. age. Moreover, the school is better equipped to foresee Ten years ago, administrators' fears of potential liability insure against the risks of a libel action than is the were not completely ungrounded. due to lack of clear law Bpecting victim of a libel. The school can also spread in the libel area and to the sUPpOrt of some scholarly works :ost of insurance either by self-insuring or by purc has­ published at the time claiming that there were several ;he insurance along with other school insurance at a possible bases fo r school liability.'6 One of these views age rate. considered the school liable under Ii theory of "vicarious 'hy schools perhaps ought to pay, however, is not the liability," which means holding one person re8pOll8ible for � as why they do end up paying. The reasons they do the actions of another because of the relatioD8hip between go beyond the fact that student journalists and editors them}' Believing the crux of the issue to be whether or not lsually judgment-proof. In the University or Utah case, the school had control over the paper, some argued that plaintiff sued the reporter, not the school, yet the the school could be said to "control" the newspaper if it aI's insurance company negotiated and paid the set­ offered financial sUpport.18 ent.l3 In a suit against the University of Montana's The assertion that a school which financially supports a mt paper, the Kll imin, the reporter, the paper, the publication will be financially responsible fo r its libelous ersity and the student government were sued. Again, comments is partially misguided in light of several impor­ miversity's insurance company negotiated an out-of­ tant cases. Every court which has addresaed the issue has � settlement, of which the insurance company paid declared that public college administrators do not have the thirds and the student government paid the other power to exercise editorial control over Ii student publica­ LI4 In a suit involving the University of Missouri­ tion because the publication is funded and sponsored by mbia maneater, only the paper was sued, yet the the schooL In Joyner v. Wbiting,19 tbe editor of the ersity's insurance policy paid all defense costs. The student newspaper sued the university's president, who �rsity and the paper shared the out-oC-court set­ had withdrawn fm anciaJ support from the newspaper and ent payment that was reached.l� had set up a number of encumbrances to prevent the paper fl idea exists among some school officials that if the from printing and distributing its racially segregationist JI might be liable fo r what gets printed in the student content. The U.S. Court of Appeals for the Fourth Circuit ication, then the school has the right to exercise prior continued bel Insurance: The Nuts and Bolts

ould':\.student newspaper invest Bauer, the cost of defending a libel costs down. Bauer says that each new :>el insurance? Not necessarily. suit is completely unpredictable and insurance applicant is carefu lly ance can sometimes appear to varies dramatically. screened. Old copies of the publica­ laintifTas a "deep pocket," thus The most critical factor in rising tion are reviewed for quality and ng a paper more vulnerable to defense costs has become the increas­ content. A paper with a heavy em­ (. Moreover. Obtaining libel in­ ing difficulty in persuadinga judge to phasis on investigati ve reporting, fo r ce can sometimes be as difficult grant summary judgment (deciding example. may have a difficult time ling to get auto insurance after before trial that the plaintiffdoes not obtaining insurance because the risk al accidents. have a valid case). This difficulty of suit is higher. The "claims experi­ thus fo rces cases to go through ex­ ence" of the publication is also re­ rstanding the Market pensi ve fu ll trials. R.D. Spurling, viewed: companies may ask if the vice president of Mutual Insurance paper has been sued before, and if �dia/Professional I n surance, of Bemluda, has said that since 1975, so, how often. An independently s one of the few companies that Ihe cost of libel suits can best be incorporated paper in particular may bel insurance to student publi- described as "an uncontrolled fire experience difficulty in securing in­ 1S. Willia m Bauer, the compa­ storm : ' surance because some companies, executive vice president, says such as Media/Professional, require narket fo r student libel insur­ Securing the Insurance a minimum financial stability level is small because spiraling de- to ensure the paper's ability to pay costs do not make the market Insurance companies have thus 'ularly profitable. According 10 had to take definite steps to keep continued

._-_._------lC Report Fall 1985 ------LEGAL ANALYSIS

squarely held that public colleges and universities are not state colleges from exercising anything but advisory con­ immune from complying with First Amendment protec­ trol over student newspapers, these colleges could not be tions, and thus cannot restrict or suppress publication held liable fo r any defamatory articles in the studen t merely because their officials dislike the content of the newspaper. editorial comments, regardless of whether they financially The question of whether prior restraint is constitution­ support the paper. ally acceptable in the special circumstances of a high The issue of whether a public school can be held school environment has been litigated several times in responsible fo r a student publication's libel was addressed recent years, and different courts have given diffe rent in the 1978 case Mazart v. Ne w York.20 Plaintiffs brought continued 011 p.34 suit against the state of New York for a libelous letter printed in a state university's student newspaper. The court dismissed the case against New York, finding that because the state did not direct or participate in publica­ tion of the newspaper and could not exercise prior re­ straint, it thus could not be held responsible fo r anything printed therein. In Milliner v. Turner,21 a 1983 Louisiana case, state college fa culty members brought a defamation action against student reporters, who had printed articles in the school paper describing one plaintiff as a "proven fool," and another as a "racist." The court found that the choice of material to go into state college newspapers was an exercise of editorial control and judgment, and regula­ tion of this process by college administration officials would be inconsistent with First Amendment guarantees of a free press. The court found that the relationship between a university and its student newspaper was not analogous to a private publisher and his or her newspaper, since publishers may censor as much as they like. But public universities are almost completely barred from censoring their student papers because such prior restraint would impede the fr ee flow and expression of ideas. The court then concluded that because the First Amendment barred

both its premiums and its deductible. The Insurance Policy worth of liability. Like the deduct­ ible, however, higher "caps" can be Factors Affecting Insurance Rates A standard insurance policy will purchased. A standard policy covers usually have a minimum "deduct­ libel, slander, copyright infringe­ If a publication is accepted for ible" of at least several thousand ment, invasion of prtvacy, and the insurance, its premium may also dollars. This means that if the news­ . additional suits that are often close ly depend on fa ctors such as geograph­ paper is sued it must pay a set linked with cases such as emotional ical location and size of circulation. amount before the insurance compa­ distress or outrage. For example, Bauer says that pre mi­ ny begins to pa y. Medial Not nearly as many suits are ums fo r publications in California Professional's standard deductible is brought against student publications are higher than average due to the $5,000 with higher deductibles avail­ as against profe:.isional publications, state's "notoriously large" jury able. Mutual Insurance of Bermuda but when they are, such suits can be awards. Texas, Oklahoma, and has initiated a plan that has the just as expensive. Insurance can be North Carolina's state libel laws ap­ newspaper pay 20 percent of the one way of alleviating the costs, but pear to be less fa vorable to de­ defense costs in excess of the stated · there are other alternatives available, fe ndants than fe deral law, so deductible. This enables the com pa­ such as self-insurance and consulting premiums in those states are higher ny to offer insurance at a manageable legal professionals before publishing as we ll. The circulation of the paper price and gives the insured greater something potentially libelous. Re­ also affects the premium - the responsibility in monitoring defense sponsible journalism i neludes weigh­ larger the circulation, the bigger the costs. ing the pros and cons of each risk of a large da mage award, thus, The average policy will cover be­ alternative against the specific needs the bigger the premium. tween one and two million dollars of your paper. _

Fall 1985 SPLC Report 33 LEGAL ANALYSIS

answers.. The u.s. Court of Appeals fo r the Seventh proper guidelines students should fo llow. Guidelines could

Circuit, which binds lliinois , Indiana and Wisconsin, has aI.so be usedinhigh schools and private colleges 8.8 written held that prior review in high schools is not permissible. proof that the school does not and wiD not exercise which would seem to place highschools in those jurisdic­ content control over student publications.. This could tions on the same footing 8.8 public universities.'l2 A prove to be an aid in protectingthe school from liability. maj ority of the eourt8, however, have allowed prior review 2) A college newspaper staff should consider making its for potentially libelous material provided it was accompa­ publication a corporation separate from the university.t7 nied by proper procedural safeguards to ensure evenhand­ Currently, about one-fifth of aU college publications are edness and unifonnit)'.23 Both Ma zart and Milliner rely independently incorporated.:18 This does not mean the heavily on the fa ct that colleges in those cases could not paper must give up its financi.a1 support from the school. constitutionally prevent publication of a libel even is they but some student press experts believe this may be a way wanted to. This suggests that in states where prior review of distancing the paper from the school if the paperis has been approved fo r public high schools. and at all already functi oning autonomously. If this route is foUowed., private colleges, the school could be held responsible fo r the fo rmalities of a corporate separation should be careful­ defamatory statements in the student newspaper. ly followed during both the formation and operation ofthe One other way a public school might be protected from incorporated publication. This includes aU newspaper liability is through the doctrine of sovereign immunity, funds being administered separately from the school's which appliea only to state imtitutions. Sovereign immu­ funds. The publication should also print in each edition a nity prevents a plaintiff from suing the state without disclaimer emphasizing its separate operation and that the permission of the state. The pivotal case in this area is views expressed in the paper are not necessarily those of AppJewhite v. Memphis State Un iveF8ity.loI. The court the university. found that Memphis State University was protected from 3) The school could carry an insurance policy covering a libel suit because it was part of the state. However, its own liability, including defense costs. The school could because the university presa W8.8 separately incorporatOO., carry insurance for the paper as well, or a college publica­ the court fo und' that it could be sued. Sovereign immunity tion that is independent of the university could carry iUi for states baa been on the wane the last fe w years. own insurance. There are drawbacks to insurance, howev­ however, and even when still used, public colleges and er, and they should be carefully considered. (See box). universities have often been exempted.26 Ai!. should be evident, an inconaistency exists in schools So how C8ll a school walk that fine line of protecting possibly appearing vulnerable to liability and at tf.d ee.me itself while at the eame time respecting students' free time not being able to exercise direct control over the expression rights? The cases seem to indicate that paper through prior review and censorship. Court decisions public colleges and perhaps public high schools can best seem to suggest a test: when a school has some control protect themselves by not attempting to censor at aU, thus over the content of the paper, it will be held liable. diatancing themselves 88 much 88 po88ible from the Schools, not sure of the control they can be said to hav e. functions of the newspaper. But fo r private schools and often opt to "play it safe " and settle out of court rather public high schools outaide the Seventh Circuit, no fool­ than see the case reach final judgment. Only one of the proof answe r exists. However, several alternatives can be cases reported to the SPLC shows that an individual considered. Most important, both sides must �k the continued S8lDe goal: a financially healthy and well�respected publica­ tion. A publication that meets the high standards of most professional newspapers will be a benefit to both the &Chaol and its students. It can enhance the reputation of a BChool, edu<:ate a student body and disseminate informa­ tion of special concern to the school. If administrators view the paper 8B an aid to their interests, everyone can work to insure that the proper mixture of caution and freedom is exercised. The fo llowing proposals should be carefully considered and cliscuseed among administrators and students at aU schools to decide what is appropriate for their particular situation: 1) A clear, written set of guidelines, read by all report­ era, advisers, and involved administrators could be helpful in many C88e8. The guidelines should delineate what types of worda or descriptions should send off "warning bells" in the reporter's head. A complete copy of model student publications guidelines are printed in Law of the Studen t Press,- and. this issue of the Rsport cont.ains an article Willthe libel monster get you? concerning the elementa of libel which may help clarify

34 SPlC Report Fall 1965 LEGAL ANALYSIS

student writer ha s paid a libel judgmenl.29 Instead the schools. newspapers and their insurance companies have made all payments, with insurance companies paying the

bu lk of the claims . Of the 14 cases that were settled rather than dismissed. the school or its insurance company was involved in six. It is estimated that they will be involved in at least three of the remaining nine cases still pending, if either a settlement or liability arises. The question of legal responsibility is directly related to

who has had control over printed material. Thus, the status of the school is an important fac tor in determining who is potentially liable. The cases illustrate that a state o college or university or a public high school in the o Seventh Circuit cannot be held liable if it does not attempt to control the content of the student newspaper. It cannot exercise control in violation of the First Amendment by censoring the contents before publication; it can only advise. However, a public high school or a private high school or college that does not exercise control because it has developed a "hands-off ' policy may still be liable because it has the legal authority to control. It must be stressed that the law in this area remains unclear. /' Whoever may be financially responsible for a libel judgment, all would agree that libel is something to be �� avoided. The one guideline to follow in all settings is that 'r ar aware of awareness. Student journalists who e that -C Ellrr,Yi!ICI'..:S -r--���

NOTES 11 Note, To rt Liability of a University fo r Libelous 1 Franklin . Libel Suit.s lIgainst the Media: A Litigation Ma terial in Student Publica tions, 71 Mich. L. Rev. 1061, Study, Am. B. Found. Research ,J ., Summer 1981, at 795. 1088 (1970). The article commented that some 35 percent The study shows that the number of libel cases against of the newspapers su�eyed were covered by their own or professional newspapers averages about 100 a year - 300 their school's insurance policy. cases were reported in the three-year period fr om 1977- 12 W. Prosser, The Law of Torts 459 (4th ed. 1971). 1980. That statistic does not tell the whole story, however, 13 SPLC Rep., Fall 1979. at 25. for many more cases are filed and settled out of court than 14 SPLC Rep., Fall 1977, at 22. 16 are actually litigated. For example, the Columbia Jo urna­ SPLC Rep ., Fall 198 1 , at 28. lism Review, .July/August 1981, at 17, stated that in the 16 Note, sapra; Church, supra . years just before 1979, the libel claims filed against clients 17 Prosser, supra, at 458. of Employer's Reinsurance, a leading insurer in the libel 18 Note, supra, at 1071. field, had tripled to reach the 1979 figure of 692. In 1980, 19477 F. 2d 456 (4th Cir. 1973) . claims filed against the insurer totaled 65 1. 20 441 N.V.S. 2d 600 (1981). 2 2 Church, Who Pays Wh en Student Papers Sued?, SPLC 1 436 So. 2d 1300 (La. App . 1983). Rep., Spring 1980, at 39. 22 Fujishima v. Board of Educa tion, 460 F. 2d 1355 (7th 3 [d. Cir. 1972) . Antonelli v. Ha mmond, 308 F. Supp. 1329, • "Carol Burnett's Jury Verdict Cut in Half'. N.Y. Times, 1335 n. 6 (D. M8!l8. 1 970) suggests the same.

May 13, 1 98 1 . at 7 (jury verdict reduced to $800,0(0). 23 Baughman v. Freienmuth, 478 F. 2d 1345 (4th Cil. h Miss Wyoming's verd ict was reduced to $14,000,000. 1973); Sh anley v. Northes.st In dep . School Dist., 462 F. 2d N.Y. Times, March 28, 1981 , at 6. 960 (5th Cir. 1972); Eisner v. Stamford Bd. of Edac., 440 6 The Kaimin, University of Montana, settled for $14,000 F. 2d 803 (2d Cir. 1971 ). in 1976. The Michigan State University State Ne ws 24 495 S.W. 2d 190 (Tenn. 1973). settled fo r $50,000 in 1977. 26 Student Press Law Center , Lawof the Student Press 36

7 Frankli n , supra. at 795. (1984). 8 Half of the 25 per cent of the cases in which plaintiffs 26 Id. 21 were successful at the trial level are reversed on appeal. Jd. See Incorporation: Sh ould college papers risk taking this at 80 1. road? SPLC Rep., Fall 1984, at 1 t. 91d. at 797. 28 Note, supra, at 1088. 10 SPLC Rep .. Fall 1979, at 25. 29 Milliner, 436 So.2d at 1300.

------...... ----- FOil 1985 SPLC Report 35 LEGAL ANALYSIS

[(nowth ine enemy Defining the elements of libel

Libel is one of the most misunderstood areas of mass community. In order to prove injury, the plaintiff need ledia law, its elements being frequently misinterpreted by only show that his reputation has been tarnished in the )tb journalists and the public. It is important that esteem of any "substantial and respectable group," even udent journalists have a basic understanding of libel law though that group is only a small m.inority of the public. ld its complexities, fo r they might one day find them­ For example, one court held that an article which attrib­ :lves at the center of a libel lawsuit. uted the authorship of an inferior book: on Palestinian Libel has been defined as a fa lse statement which culture to a noted writer was libelous, even though only a �ures the reputation of a person. It has fo ur basic fe w experts in the field realized the implications of the ements: publication identification, injury and fa ult. article. 1 Certainly, school personnel alone could constitute The first element in a l ibelous statement is publication: this group requirement. [t is essential to tort liabi lity fo r either libel or slander The final, and possibly most controversial, element of lat the defamation be co mmunicated to someone other libel law is fault and the different standards used to find Ian the person defamed." I For example, a defamatory whether a journalist is responsible fo r the defamation be riting by a student journalist concerning a college dean publishes. The U.S. Supreme Court has ruled that a "public official is barred fr om recov ering damages fo r defamatory comments about his official conduct unless he proves with convincing clarity that the comments were made with actual malice." 8 Actual malice is fo und when a journalist knew that the statements he printed were false or when he recklessly disregarded the truthfulness of the( statements. A public official is defined by the Supreme >mmunicated only to that person would not constitute Court as one who has or appears to have a substantial bel; but when the student writer communicates it to any lher person, it may then be determined libelous. 2 The ltionale behind the need for publication is that there mst be a lowering of a person's reputation in the )mmunity' if the statements never reach the public, then ley never have the chance to diminish his reputation.l A libelous statement must also i dentify the person who aims he has been defamed. Identification does not �uire that the individual be mentioned by name: "It is :tough that there is such re ference to him that those who �ad or hear the libel reasonably understand the plaintiff ) be the person intended."� Thus, fo r example, if a f� ult .udent publication asserts that a "big, bad, bald man" llicits prostitution and a school principal can prove that \p Ie readers of this publication understood that the descrip­ on refers to him (perhaps he was the only "big, bad, aid man" in the school), then he has proven identifica­ on-that the article was of and concerning him. Further­ lore, not everyone who reads the article need understand iat it is of and concerning the person who claims he has een libeled; identification is proven when merely some !aders believe the statement is about h im. � What Idnd of injury is required to show a libel? One uthor defined it as "that which tends to injure reputation 1 the popular sense: to diminish the esteem, res�t, good rill, or confidence in which the plaintiff is held, or to x:eite adverse, derogatory, or unpleasant feelings or opin­ )ns against him." 6 Journalists must re member that the !putation of the person who claims he was defamed does ot have to be lowered in the eyes of aU members of a

) SPLC Report Foil 1985 LEGAL ANALYSIS

influence over governmental affairs. 9 At least one coun has held that teachers are not public officials because the re lationship between teaching and the conduct of govern­ ment is too remote to qualify as a substantial influence over governmental acti vities. 10 However, couns may consider school principals and college pres iden ts as public officials because of their broad control over the operation of public schools. Although they do not qualify as public officials, school personnel, students and members of the public may have to prove that the journalist they sue fo r libel acted with actual malice. According to the U.S. Supreme Court, public fig ures also must prove actual malice to win their libel suits . .. A fe deral appeals coun held that a three� point test must be met to determine whether a person is a public figure. First, there must exist a public controversy involving the pers on suing for libel, a con troversy which "has fo reseeable and substantial ram ifica ti ons fo r persons beyond its immediate participants." Second, the person "must have been purposely trying to influence the out� come or realistically have been expected, because of his position in the controversy, to have an impact on its resolution." Finally, the l ibel at issue must be gennane to the person's involvement in the controversy; libelous comments wholly unrelated to the controversy are unpro. tee ted by the First Amendment. 12 The fo llowing hypothetical example may help to show bow people in the high school or college environment become public figures. If a student newspaper prints an article about homosexual rights and asserts that a teacher Other courts believe the special practices of the press-the who is active in the homosex ual rights movement is gay reasonable journalist standard-must be relevant to a when in fa ct he is not, the teacher bringing a libel suit definition of negligence. The Utah Supreme Court has against the paper fo r that article is a public fi gure when: I) said that a media defenda nt will be held responsible fo r the movement is a matter of public debate, 2) th e teacher the skill and experience normally possessed by journal­ has taken an active role in the controversy, and 3) the ists. 1 7 Si mply put, the reasonable journalist standard is alJeged libel pertains to the teacher's role in the controver� defined as the ordinary care of journalists: negligence wi ll sy. At least one court has held that a school football coach be fo und when the journ ali st fa ils to use ordinary journa­ may become a public figure, J) while another has deter­ listic practices in seeki ng to determine the veracity of his mined that even studems can become public figures. 14 In statements. However divergent 1hese two standards ap­ the latter case, the student was a student senator who pear, both require the journalist to take care to check the spoke out against the campus newspaper and took part in accuracy of his fa cts. Ifhe does not, a finding of negligence various campus issues. As long as the three-point test is will be likely. met, anyone can become a publ ic ftgure. However, it is When sued fo r libel, a student journalist has a number crucial to remember that only a coun can ultimately of defenses. One major defense is truth: if :t. damaging determ ine who is a public figure; student journalists statement is true, no libel suit can be maintained. Also, should resist fonnulating their reporting methods accord­ opinions are not subject 10 libel law. Th is defense is ing to their view of the public or private fi gure status of an referred to as the fa ir comment rule: "Mere words of individual. abuse, indicating that the defendant disl ikes the plaintiff If a person is neither a public official nor a public and has a low opinion of him, but without suggesting any figure, he may recover fo r a libel if he can show that the specific charge against him, are not to be treated as journalist was negligent in preparing his defamatory sto­ defamatory." 18 The U.S. Supreme Coun has held: "[UJn­ ry. ,� The courts have reaso ned that private figures need der the First Amendment there is no such thing as a fa lse more protection against libel, as they have not subjected idea. However pernicious an opinion may seem, we themselves to public scrutiny and opened their actions to depend fo r its correction not on the conscience of judges public criticism. Courts have not been uniform in defining and juries bu t on the competition of other ideas. But there negligence. Two schools of thought exist: the "reasonable is not constitutional value i n fa lse statements of fact." 19 man" standard and the " reasonable journalist" standard. There are two aspects of libel law popularly believed to The Arkansas Supreme Coun has applied the re asonable be defenses but which in fa ct are not. Many believe that man standard, sayi ng negligence eq uals the fa ilure to no act ion can be taken fo r libel if the author only intended exercise ordinary care prior to publication to determine the m aterial to be a joke. Most couns have agreed that in 6 the defamatory potential of the statements in question. 1 COlltinued on p.38

FOil 1985 SPLC Report 37 LEGAL ANALYSIS

an action fo r defamation it is immaterial what meaning � Dyjkstra v. Westerink, 40 1 A.2d 1118. 168 N.J. Super. the speaker intended to convey, and that if a person in jest 128 (1979). 20 conveys a serious imputation, he jests at his own peril. 5 Prosser, supra, at 749. When publishing a humorous column or a parody edition 6 Prosser, supra, at 743. of a publication, students should consider whether any 1 Bel-Oliel v. PressPub licat.ion Company, 25 1 N.Y. 250, person could reasonably construe the article to be serious. J 67 N.E. 432 (1 929). If any doubt exists, it is advisable not to printthe material 8 Ne w York Ti mes Co. v. Sullivan, 376 U.S. 254, 311 unless consent is obtained from the individuals whom the ( 1 964). story concerns. Also, it is crucial to remember that no 9 Rosen blatt v. Baer, 383 U.S. 75 (1966). defense exists if a person merely reprints a libel expressed 10 McCu thcheon v. Moran, 425 N.E.2d 1130, 991l1.App.3d by another person. even if directly quoted or in a letter to 42 1, 54 IlL Dec. 913 (1981). the editor. Before printing statements of fa ct gathered II Gertz v. Robert Welch, Inc. 41 8 U.S. 323. 339 (1973). 12 from others, student journalists should verify the accuracy WaJdbaum v. Fairchild Publications, Inc., 627 F.2d of these statements. 1287 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980). In the last 10 years, 28 libel suits against student lJ Win ter v. Northern Ti er Publishing, 4 Med. L Rptr. publications have been reponed to the Student Press Law 1348 (N.Y. S. Ct. Westchester Co. 1978). Center. The threat of a libel suit should prompt student ,. Klahr v. Wi nterable, 418 P.2d, 4 Ariz. App; 158 (1966). journa.l.ists tokeep the elements of libel in mind. • 15 Genz, 418 U.S. at 339. 16 Dodrill v. Arkansas Democrat Co. , 590 S.W.2d 840

(Ark. 1 979). \7 See Miller v. KSL. Inc. 626 P.2d 968 (Utah 1981). NOTES I S Prosser, supra, at 742. I W. Prosser, The Lawof Torts 776 (4th ed. 1971). 19 Gertz, 418 U.S. at 339. 20 21d. at 767. Brooks v. Stone, 10 Med. L. Rptr. 1517. 1518 (Ga. Ct. J Id. App. 1984). FRIENDS OF SPLC

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