STUDENT PRESS LAW CENTER

SPLC org. non-profit 800 18th Street NW : Washington, D.C. 20006 us postage Room 300 paid washington dc permit no 4702

ATTENTION: Student Publication

= (TI EDITOR Peter J. Mentor Contents UnJYUf .ry Of M!'. hu n

WRITERS S. Mark Goodman J. Marc Abrams Cover: This issue. the SPL C Report ex­ o Un '" Sc LAW Siudent Press \I r 10 amines the dollars and sense - the ldW C ntOf" Richard Ripley business side - of student publica­ GpO( Wa ,n9(011 Teri L. Firmiss Unlll .r L 5C I1OO1 ltv w Un'vt>r Ityof WisconSin tions.

COVER ART Jack Dickason Aaron B. Cole Ethics ...... 3 Jack Dickason Distinguishing law and ethics Bruce Young

direcror Courts

...... J Marc At.rams • Was endorsing Mondale illegal? ...... 6

...... • Gambling on free speech in Nevada ...... 8 Corporare Board of Directors • Georgia Supreme Court re buffs dogged editors ...... 9 J Marc Abrams. E�. Dr Robert Knlghl Me) SPL C C LIbel

Or Dorothy 80V111es Or lIlian lodge Kopenhsver ...... • Suits multiply against conservative paper ...... 10 � " A VVttII �r.QtVJI v.,_*", • ...... 1001 "Beer and munchies" await day in co urt .. . . II Jack landeu. ESQ tv , • A question of rape ...... II R.-o_", CQl1mr J,...(Qr " " F,�o'_'" ...... • Class project produces libelju dgment . . . . . 12 Bob Lewis

I\III'WI�... ""'flWi_1OIra Dorothv McPhIllips Censorship JoumiIIIam � ...... Ed.£_ • Decision expected in Hazelwood case ...... 13 Tom Rolnlckl . .. . ��1fiOfI • Comic situation becomes court battle ...... 15 ""-t oS. "". ,.,...... Dr Albert Scroggins • Girls of Rancho on trial ...... 16 .Joumol% C • The Surgeon General has determined these " c·,01 Sourn c.."".."...... ads are hazardous to your health ...... Michael O. SImpson. ESQ. 17 NllltOt>4If EdrJc:MIon A� Edmund J. SullIVan Administration CcIUmtlot SdtoIMnc

...... ,.,.... � • Skirting the law in Colorado ...... J 8

...... Robert Trager. Esq • Edi tor moves on, policy goes nowhere ...... 19 � 8l1li" Oowd ...... • Homophobia in Nebraska? ...... 20 Ben Van Zante ...... • Students win in Louisiana-sort of ...... 21 WMI H.fIII School C,I ... /0 _ SrrQII 0 .... - f)' Student Governments

...... • After six years.. a day in court ...... 22

...... • Student government tri es to hit the Bull's Eye . . . . 23 Th e SPL C Repon

• P Rl'pOfl. pubhshed three lim each yt'ar by 1M Freedom of Information ludml Preu La" ('nter. summarizn C'umtli conlJ"Owrsits ...... • Bruin helps the sun shine in ...... 25 m"'oIVlIli ludenl nght . Thr pr PLC Rrpon IS researched, wnUtn and produced enlirely b) Joum bsm and law ludall inlern . The PLC . ludenl-produ d dr3win or phOlQlraPbs 10 ilhl\lral� !be' PLC f' R /Kfrl. PIca send ClOpll!!i or your

• m Itrials to Ih PUt office. udrnt Pres Law C nl('r R"porl. vol. VI. o. 2. pnn& 1985. pubhsh�-d by Ibe 'Iudenl Preu Law ('rn ler. uilt IS 300. legal Analysis: The Business Side 800 18lb Stm!t. W. Wa\htngton IX 20006 (201. 466-S242. Copy right J Q 5. tu 01 Pre La" {enl �I nllnl � r. St udent papers and mandatory fees re\en otd. YC'3rh ..utKcriplion to the . PI (' Ri'fl(Jrt � 10.00...... 28 olher c n,ribulions dl.'duclJblc II are �� ;\ ubscription order fo nn ap n pall' 39. ()m� ubml\sions ludenl Prns ,,(enler " I of ani- Beyond the bottom line: dd dra�lO� canoons and nC"� ti.x. PIt' help the PLC advertising and the student press ...... 32 the It JOUrnall m ()mmunit� b� mfonn hoi c nlnbuli", } our III.. 10 l� Sf'!- Rt'»f.rl.

Is your yearbook violating the antl·trust lows? ... 35

2 SPLC Report Spring 1985 ETHICS 'Can' does not equal 'should� Distinguishing ethics from law

but not ethical, 3) ethical but not legal, or 4) n either legal By Deni Elliott nor ethicaL Knowing that a proposed action meets legal guidelines Recently, I asked a reporter at The Philadelphia Inquir­ only means that the action is allowable within the sociaL er to explain why he was considering includina some legal structure. People choose what they consider to be damaging material in a story. 1 didn't doubt that the correct actions from a large group of actions that are information was important, relevant, maybe even vit.a.I to legally allowable. There are many actions which are the story. But, I wanted to understand how the reporter allowable, but not necessarily the right things to do. explained to himself why it was acceptable to use some Deciding the legal permissibility of an action does not material that would undoubtedly harm an individual. provide much information in helping the journalist decide The reporter looked at me blankly for a second and whether or not a proposed action is ethically correct. then shrugged. "There's no law against including it, so why not?" The Parameter of Law Although an editor has told me since this incident that One way to visualize law in society is to imagine a fi eld he finds it very hard to believe that any reporter at the that symbolizes the entire range of human behaviors. In Inquirer would confuse ethical responsibilitY with legal the center of the field there is a large corral, set off by a permissibility, I find that this reporter's automatic, surface low fence that serves more as a boundary marker than a justification of "It's legal, so why notT' reflects a problem barrier. Legally allowable behaviors are all of those inside that many professional and student journalists have in the corral; illegal behaviors are those outside the fence. differentiating questions of law from Questions of ethics. Law, like the fence, can be expanded to allow in more The question of "Should we do this?" is often confused behaviors. For example, greater understanding of women, with or reduced to the question of "Can we do this?" children, and minority groups in the last century have Legal and ethical guidelines are not t he same. A broadened legally allowable behaviors for these groups. proposed action may be L) both legal and ethical, 2) legal Women and representatives of minority groups now have

LAW OF THE STUDENT PRESS A tool made of paper...

It's been eleven years since the last comprehensive Look at high school press law was published and six since college press law was examined. LAw of the Student Press. a four year project of the

Student Press Law Center, will be the first book ever to offer an exami nation of legal issues confronting America's studentJOUrnalists. advisers and education administrators on both the high school and college levels. The book is understandable and readable without giving up the essential material needed for an in-depth understanding of the legal relationships involved in the production of student newspapers, yearbooks and electro­ nic media. LAw of the Student Press is available "owl Copies are only $5 each. To order;. send a check for that amount. payable to "QUill and Scroll," to:

lAw O/IM StfUknt Prur Quill and &:roU School 01Journalism IUld Mass Communication U D.i1'ertity of Iowa Iowa City, lA S2242

Spring 1985 SPLC Report 3 ETHICS

the same legally protected rights as white males. Thanks to tion to make it "all right" wh ile truth telJing rarely greater protection laws which have developed over the requires justification. Choosing to be honest is, fo r most past century, children have more recognized legal rights to people, a moral or ethical decision. grow up safe from physical and sexual abuse. Different Reasons for Choosingto Be Etbica.UyResponsible. Law can also be drawn in to create a smaller corral of legally allowable behaviors. State laws raising the allowa­ People choose to act in ways they consider appropriate ble drinking age from 18 to 21, laws requiring the use of fo r a variety of reasons. The example of truthtelling and seat belts, and laws banning cigarette smoking in various lying pro vides an illustrati on for various types of ethical public areas all exemplify a shift of law to narrow down justification.i legally allowed behaviors. I. Some people choose to tell lhe truth because they are The low fence is a good metaphor fo r legal limitations afraid that they will suffer if they don't. The kind of suffering from religious because one can choose to defythe dictates of Jaw just as they fe ar might be anything retalia i n to These people might one can decide to step over a low fe nce. Legal guidelines t o more direct harm. choose not to lie to an employer, fo r example, because do not restrain people. They just tell them what behaviors lhey are afraid that they will lose their job if they lied. will result in punishment if the agent is caught. II. Other people choose to tell the truth because they Law speaks to accountability, and being legally account­ believe they will be rewarded fo r doing so. Again, the able fo r an act on only of many reaso s people have i is one n reward differs from individual to individual, and may o choo ng ac ion . The f r si what they consider to be the right t include heavenly rewards as well as the hope fo r more ethical question of "What behaviors do I choose to engage mundane worldly goods. These people might choose not in?" may have very different answers fr om the legal to lie to an employer because the hope fo r a job promo­ question of "What behaviors are we unwilling to tolerate tion or greater recognition in the company if they tell the in this society?" truth.

Cboosing to stay within the boundary of legal accept­ III. Still others tell the truth because they are concerned ability may be one early step in determining moral about other people's approval. They choose not to lie acceptability. An individual may say, because they are afraid that people "One of the things I choose is to will not like them if they do. keep all of my behavior within legal IV. Some do appeal to Jaw as a limitations." But, that one decision al reason not to lie, even if it's not will not an i div du l ofT t e let n i a h societal law. For example. some so­ ethical hook. cial groups, employers, fa milies and Ethical and unethical behaviors other groups have written or unwrit­ both are included within the fe nced­ ten rules concerning the necessi.ty of in legal circle. For example, while the truthtelling. The reason that some law tells us explicitly not to lie to the people choose truthtelling is that IRS, or when under oath of court of there is some rule that says they law, it is silent when it comes to must . telling friends the truth. Yet, most of us generally choose to be honest. For most of us, the fa lsehood is some­ thing that needs to be justified; it needs an accompanying explana-

11 Report SPLC Spring IQ85 ETHICS

'-­ ------C-- �.- -

----.-.---3¥

However. using "obeYing the rules" as a justification action in each case. for ethical behavior is dlfferent from saying that a partic­ The individual journalist has the responsibility to ular behavior is ethical-because it is legal. The people who consider how his/her actions will affect many different would appeal to a rule as a reason for doing good acts, groups. What might be a good action when viewed from might respond to the question of "Why wouldn't you print one perspective may be irresponsible when viewed from damaging lies about people in the newspaper?" by saying, another. For example, the journalist has responsibility to "because it's against the law." They are saying, in effect, [ the audience, to the sources and subject of the story, to the should not do x because x is apinst the law. People who news organization that employs the journalist and to the confuse ethical obligation with legal permissibility say that practice of journalism as a whole. It is not surprising that an action is acceptable because it is allowed by law. They many journalists might attempt to avoid the whole issue are sa}ing, in effect, I should do y because y is permitted of how to balance competing responsibilities by saying by law. that any action allowable by law is acceptable. V. Another reason that people may give for telling the However, the journalist has primary responsibility to truth is that truthtelling is good for society. They may him/herself. As illustrated above with the lyin� case, explain that society's operations would be disrupted if individuals need explanations beyond the allowabIiity of people didn't generally tell the truth. They reason that the law to justify actions as moraJly permissible. The fact that right action is what's good for most people and they make the individual becomes a journalist does not remove the their decisions by appealing to this base. need to explain actions. VI. Some others choose to act in ethically responsible The individual takes on additional "tesponsibilities in ways because they feel that certain actions are inherently choosing to become a journalist; the job classification does right and others are inherently wrong. They do not judge not exempt the individual from moral responsibilities held the adequacy of action against how many people will be by all. harmed or helped, or against what societal Laws say, or against how peoplewill feel about them, or by considering how they will personally suffer or be rewarded for their action. I. In discussing different reasons for choosing responsi· These peopJe may reason, for example, that it is simply ble behavior, I have borrowed directly from the levels of wrong to lie. No matter_ what the outcome for themselves moral justificatIOn described by educational psychologist or others, they have decided that the only morally appro­ Lawrence Echlberg. priate action is absolute truth at all times, ConscientIous objectors provide a good example of this style of moral take wars because reasoning. They refuse to part in they Editor's note: Deni EllioLt, who has written columns on believe that killing of any sort is wrong. journalism ethics for the SPLC Report for the past two Providing ethical justification for journalistic action, years, will become Professor Elliott when she joins the then, is different from saying that the action is allowed Deni under law and is far harder to answer than whether or not journalism faculty of Utah Stale University in Logan. an action is legally aIJowed. It is not easy to decide which Utah, this fall. Dr. Elliot's dissertation at Harvard Univer- of many behaviors is the most responsible journalistic sity was on the teaching of journalism ethics.

Spring \Q8S SPlC Report 5 COURTS Calzfornia Right to endorse at issue in Humboldt State lawsuit

A college newspaper editor is suing the administration sity Chancellor, stating his intent to violate title 5. A at Humboldt State University (Cal.) because of an un­ lawyer fo r the Chancellor' s office wrote back urging him signed ed itorial endorsement that resulted in his dismissaL not ,to make the endorsements , but the editorial had Adam Truitt, fo rmer editor of the Lumberjack, printed already been'published. "This seemed to be one of the the editorial endorsing Walter Monda1e last October better ways of bringing attention to it," Truitt said. knowing that it broke a twenty-year ban on endorsements The suit, filed in December in Humboldt County by the Califo rnia State University system. Superior Court on behalf of Truitt and the Lumberjack Truitt is claiming that the ban is unconstitutional since editorial board, names 46 defenda nts including university it prohibits the paper's right to free speech. officials and Gov. George Deukejian. It states that the The administration is contesting the case on the First Amendment to the Constitution gi ves st udent jour­ grounds that a newspaper supported by state funds is " not nalists the right to publish unsigned endorsements. supposed to express views on partisan political issues." The ban is enforced within the 19-campus California Unsigned editorials making partisan endorsements in State Universi ty system and has been obeyed by most newspapers in the California State University system are other campus newspapers in that system. One exception is banned under title 5 of the Califo rnia Administrative the San Diego State Aztec, a Ca lifornia State University Code because such editorials are considered the policy of newspaper which also endorsed Walter Monda1e and the entire newspaper rather than a statement by an addressed a number of state and local political issues individual staffer. It is the avoidance of the appearance of without any reaction, accordi ng to survey by the San state endorsements which is sought by the ban. Fra ncisco Sunday Exa miner. Truitt and the Lumberjacks 's editoria l board were Support or oPPOsItion of a political candidate or issue is aware of the regulation and., after talking it over, decided not banned at any of the schools in the University of that they fe lt it was unconstitutional. Before making the California system. endorsements. Truitt wrote to the CaliforniaState Univer- Arnie BraafLadt, attorney fo r the Lumberjack, says in , the lawsuit that the CSU system incorrectly leans on a 1977 Supreme Court decision that said the state Depart­ ment of Parks and Recreation should not have cam­ paigned fo r the passage of a proposition to fund purchase

of more parkJands. There have been other cases involving the enforced

banning of poHtica1 endorsements. In 1970, many college ad ministatOrs turned their attention to the possibility of losing their tax-exempt status when the American Council on Educati on issued a report warning that Participation in

any campaign fo r public office would endanger that status . The result of this warning was a proliferation of guidelines issued to campus newspapers by school offi­ cials. One example was at San Jose California State Universi­ ty where the Chancellor of the California State University system advised the Sp artan Daily editors that they could discuss issues editorially but could not endorse candidates. At St. John' s University (N.Y.), a private institution, the president issued a ten-point policy statement disasso­ ciating the school from the 1970 election campaigns. Included with the policy was a warning that the student

paper would not be allowed to print editorials, features, signed co lumns, or letters dealing with the campaigns. Although the paper was allowed to print straight news stories, the school would not allow distribution of the paper offcampus ifthe stories did appear. Student papers fo und themselves re stricted by that policy until an IRS ruling in 1972, which stated that

6 SPLC �eport Spring 1Q85 COURTS

endorsements in students newspapers, despite the fact that candidates for two state offices. The student, who dis­ the university furnishes physical facilities. do not consti­ agreed with the endorsements, said that his payment of a tute political activity prohibited to tax-exempt organiza­ mandatory student fee, part of which supported the tions. This ruling appeared to cover not only editorials but Texan, forced an unwanted association between himself also advertisements endorsing political candidates. and the paper. A Texas appellate court ruled that the Late in 1976. a memorandum submitted to the general student had not shown he would suffer hann from counsel of the Trustees of the California State University endorsements if any injunction prohibiting them were not and Colleges by his stafT contended that a section of the issued before a hearing on the merits of the case could California Administrative Code prohibited the CSU sys­ take place. Hickman v Board of RegeJlts, 552 S. W.2d 6) 6 tem schools from endorsing candidates or taking a stand (et. App. Tex. 1974). The Texan therefore, bad the right on any ballot issue. The Adminstrative Code allows to print the editorial endorsements as there was no state "auxiliary organizations" to operate in connection with statute prohibiting them. educational institutions but neither is allowed to use Truitt doesn't think the Lumberjack should be viewed public funds to support partisian issues. This memoran­ as an agency of the state. He said that 87. percent of the dum sees an college and student body funds as being newspapers budget is from advertising revenue, about 5 public monies, thus endorsements by the school newspa­ percent is from the university's student government and per - considered an "auxiliary organization " - are nol the rest is from groups that rent the Lumberjack's equiJ)­ allowed. The report notes that it is permissable for ment. individuals, including the newspaper editor, to endorse The Lumberjack has received an answer to their com­ candidates and issues if it is made clear that such stances plaint and will have to wait until March before briefs will are personal and not those of the publication. be filed. Their focus now is to amend title 5 so that all A Texas state court has tentatively supported endorse­ college newspapers in the California State University ments by student papers where a state statute was not system would have the right to endorse candidates. If that involved. In 1976 a student at the University of Texas happens the suit would be moot. brought suit to stop a student newspaper from endorsing candidates. The Daily Texan endorsed Jimmy Carter and •

Spring lQ85 SPLC Report 7 COURTS

;.' Nevada

Las Vegas gambles on ad refusal

Planned Parenthood of Southern advertisements stated the availability �ewspapers which accepted advertis­ Nevada, Inc. (PPSN) wants to print of certain medical services, counsel­ mg. advertisements fo r their services in ing services, and other informational On October 11, the CCSD pre­ high school newspapers, and is suing services relating 10 reproductive sented a district·wide advertising at Ihe Clark County School District health. policy a meeting of the Board of over the right to do so. The ads were rej ected immedi· Trustees Policy Committee. The The lawsuit, filed December 11 in ately by five of the high schools. Six Board proposed Regulation # 1240,

the U.S. District Court fo r NeVada, other schools ran two different ad­ "Advertising in School Publ ica­ e ti ons," which would prohibit ads in a asks fo r a pennanent injunction halt· vertisements during the y ar. After ing the Oark County School Dis. some parents complained, two of number of subject areas including trict's policy of refusi ng Planned those schools dropped the ads. "gambling aids," "drugs," "liquor

Parenthood's paid advertising in stu· At that point Planned Parenthood products, .. .. pomograph y, " "bi rth and information," den t publications despite accepting consulted Roger Evans, Director of control products paid advertising from other sources. Litigation fo r the Planned Parent· and "other items which may not be The complaint seeks a judgment legally possessed by sludents less declaring that the district's policy fo r than 18 years of age." regu lating advertisements is uncon­ stitutional because it viol ales rights secured by the First and Fourteenth Amendments fo r Planned Paren­ thood, high school students and oth­ er third parties who may need to be aware of the Planned Parenthood services. Planned Parenthood Executive Director Kim Hansen has said thaI this is the first court case testing the fr ee speech of fa mily planning pro­ viders to advertise their service in high school pUblications. The lawsuit names as defendants, the Clark County School District (CCSD), Ihe Board of Trustees, the superintendaOl of the schools, and ten high school principals. Oark County includes the city of Las Ve­ gas, and over half of Nevada's resi­ dents live in the county. Planned Parenthood says the poli­ The CCSD issued a memorandum cy violates the Fi rst and Fourteenth to provide guidance to its high Amendments because it "delegates school principals, as to the exercise the power of censorhip to CCSD's of their "power" to regulate advertis­ high school principals without esta� ing in publications on April 9, 1984. I lishing narrow, objective and defi­ Each school was granted the power nitve standards to guide their to regu lale its publications. conduct," and because it violates Planned Parenthood is claiming their rights to free speech. They also that the memorandum "failed to y fe el that the policy fo r regulating provide narrow, Objective, and defi· advertisements in high school publi­ nite standards to guide the princi· hood Federation of America. He cations has been applied unconstitu­ pals. " concluded that the CCSD's censorhip tionally to prevent the receipt of Planned Parenthood submitted, at of the advertising was unconstitu­ infonnatioo by third parties who various times in the Spring and again tional. Planned Parenthood pre­ have a constitutional right to receive in the Fa ll of 1984, advenisements sented this legal opinion to the such info nnation. fo r publica tion in each of the high CCSD and requested that they insure "Our ads are not being rejected by school newspapers. The submitted publication of Ihe ads in the school the students, but by the high school

8 SPLC Report Spring IQ85 ------_. . _. __. __ ._----_._------COURTS principals," said Dan H olt, Commu­ to print them entirely. That was lation was distributed to the high nity Affairs coordinator for PPSN. when Planned Parenthood sought school pri nci pals_ All schools except Prior to 1979, Planned Parenthood legal council and presented their Clark High School have discontinued had placed ads in those high school legal opinion concerning the districts PPSN advertising until the situation publications which had directly solic­ prior restraint to the CCSD with the is resolved. ited their advertising. Then, Director request that the advertising be print­ PPSN's Board of Directors decid­ of Senior High Schools Terry Man­ ed. ed to file the lawsuit when, "it be­ ion ordered that no PPSN ads be Negotiations took place after the came apparent, after several weeks, printed in any publications. PPSN unofficial policy was distributed to that the CCSD was n ot going to act protested and as a result of negotia­ the high school principals. in a timely manner." tions with tbe CCSD, each school The CCSD policy committee had It is expected that Federal Judge was granted the authority to regu late put off acting on the proposed regu­ Roger Foley wi ll hold a hearing on its publications. The advertisements lation so that school district attor­ the case within ninety days. were run occasionally in some ne ys could gi ve the matter "further schools wbile other schools refused study_" However, the proposed regu- • Georgia Supreme Court finds Cadaver unappealing

The Georgia Supreme Court has affirmed the Court of publication of matter which she had rea sonable cause to Appeals ruling against a medical school lampoon-style suspect would be unfavorable to her. Brooks' knowledge magazine, saying that a nursing student who wrote a lett er of the history of the campus newspaper would hav e given critical of the publication did not "provoke" a harsh her reasonable cause to suspect that, if she attacke d the �tirical response from the editors_ Cadaver and its Editors, the Editors would respond in The ru ling upholds a decis ion by the Georgia Coun of kind." \ppeals which stated that a letter written by Susan The Georgia Supreme Court ruled that Brooks' letter to �rook:s, a nursing student, to the Medical College of the editor did not put he r ··at fault" because it did not :Jeorgia Cadaver did not fulfill the standards of the present a reason for the response. This made the argum ent Irovolced libel doctrine_ The provoked libel doctrine states that the editors merely retaliated ··in kind" a moot point. hat one who is at fa ult himself cannot recover civil The Supreme Court decided to hear the case because lamages from another who has retaliated in kind_ the Court of Appeals had "apparently overlooked several The case will now be up to a jury to decide whether the cases which hold that an indi vidua l cannot recover for �adaver's response was invi ted or if the magazine has invited libel in Georgia." beled Brooks. "There will be a trial som etime this year," This did n ot help the editors of the Cadaver because the aid David Hudson, attorney for former Cadaver editor Georgia Supreme Court, even after looking at the cases ohn Jarman. that wer.e binding in Georgia, agreed with the lower court. The case arose in November 1982 when Susan Brooks The Cadaver editors are now awaiting a court date for e /Tot a letter to the editors of the Cadaver asking that the their jury trial. _ ontent of the paper be upgraded. The ed itors wrote in response, "Our style of humor is eally out of control ... Our mothers were Gennan Shep­ . erds; our fathers were Camels, SO naturally we love to ,ump bitches in the heat. Say Ms. Brooks, when do you orne in season?" The editors had argued that the mag� .zine is "clear satire" but the Court of Appeals did not .ccept that argument. In the State Supreme Court, the editors of th e Cadaver vere relying on a defense based upon Georgia Power v. lusbin, 24 Ga. 180,289 S.E.2d 514 (1982), which would laVe tied the pro voked libel doctrine into the case, ,JOssibly dismissing it. There are two essential elem ents to th e provoked libel doctrine: (1) The plaintiff originally was "at fault"; and (2) the libel defendant merely retaliated "in kind." To show that Brooks was at fault, Hudson argued that she had written the letter to th e editor with the intent that it be published. At the time she wrot e the letter, the Cadaver had a history of making degrading remarks about nurses and wom en. Hudson claimed that ..It is n ot necessary for Brooks to have known what the editors would say in response. It is sufficient if she solicited the

:-::--:-:-:--:------.. _ ...__ ._-_._. -.. .-._-_. __ .. _-_ . Spt1ng 1985 SPLC Report 9 LIBEL ------_... ". __._"_."._"_._-----_._-- ---

New Hampshire Libel redux at Dartn10uth Review

The Dartmouth Review has again fo und itself in heated College, has still not been resolved. controversy as it is being sued fo r $3 million in damages Cole sued the Dartmouth Review fo r libel after they fo r allegedly printing "false, misleading and inflamatory printed an article which implied that he was incompetent information" about Dartmouth College Associate Chaplin and called his class "the most outrageous gut course on Richard Hyde. campus." Hyde is suing the Hanover Reivew, Inc -[he corpora­ In that suit, Cole is aski ng fo r $2.4 million in compen­ tion which prints the Dartmouth Review- and several sory and punitive damages. fo rmer edi tors of the newspaper fo r publishing informa­ Anomies made a motion to dismiss the case against the tion which he claims caused him "severe emotional individual editors on the grounds that the court lacked distress, embarrassment, humiliation, indignation, includ­ personal juriSdiction over them. Cole, a resident of Ver­ ing anxiety over the potential loss of his position at mont, filed the case in Vermont state coul1 although the Dartmouth College." editors lived and the newspaper was published in New "We printed some articles which Hyde claims defamed Hampshire. The motion was gra nted and the case was him in some way" because they refer to his personal life , dismissed. said Laura Ingrim, editor of the Review. That did not end the case however, as it has now been "The articles had been written six months ago," Ingrim filed " against the corporate defendent," according to Blair said. "We covered a number of Hyde's lectures on campus Soyster, the Dartmouth ,Reveiw's lawyer. The case is now and mentioned him in a fe w articles" but Hyde has not solely against The Hano ver Review, Inc. specifically named the material which he finds libelous. The Review has also had problems with a pollster fo r The lectures the Review has covered include disarma­ not printing the result of a poll which a trustee of Hanover ment in South Africa and how sex.uality fits into Chris­ Review, lnc. had requested. tianity, Ingrim said. The pol lster had agreed to do a poll for the Review with "The suit has been filed in court" but there has been no the understanding that it would be published. The Review activity on the case, according to Dort Bigg, attorney fo r published the results of its own sUJ\ley on the same subject the Review. which the pollster said was "obviously selecti vely done," This comes while the case against the Review involving There has been to date no action taken against the Professor William Cole, a music professor at Dartmouth newspaper by the pollster. _

to SPLC Report Spring 1985 LIBEL

Iowa

Definition of 'rape'

.. \ "SeE-ii! , . . . . . '" $ I 00 0 :5'o OA .•.• . . . � S-o o is issue in appeal 0 CAP-lb'< ...... $ 'I �o -SA�t>W\(�H€,S -$' bJ 060 Briefs bave finally been filed in the appeal of a $9,000 ...�u0; 1) SO c3 �At�. award against the Io wa Stale Daily for an article which incorrectly reported a rape. . "The reply briefs are just being filed now," sald Ja-:oes Brewer, attorney fo r the Daily. "It's going to be a tittle while before we get a court date." The case arose in Fe bruary 1982, after the paper reported that a female bartender at the Local American Legion Hall had been raped. Laurie Hovey sued the paper claiming that she had not been raped but sexually assaulted. Accor?ing to the I�wa Sta tutes this is not considered "rape" smce penetratIon had not occured. Rape is legally defined in Iowa as

fo rcible nonconsensual sexual intercou rse. The court Michigan ruled that the word could not be used to describe sexual abuse. The law as passed by the Iowa state legisla ture does not contain the word "rape" at all, although the editor of the High tech lawsuit state code inserted "rape" in the parentheses under the "'Sexual Abuse" chapter heading. comes to standstill Brewer argued that the press should not be obligated to write using only the legal definition of the word rape. Recently the term "'rape" has been eliminated in many A Mich iga n Slale libel suit against two News states in order to redefine sexual assaults in gender�neutral reporters has come to a standstiII until lawyers fo r terms to incorporate new categories of prohibited behav­ the newspaper file judgment motion to a summary ior according to an article in the Nat ioflLl{Law Jo urnal. dismiss the case against them by Eco Tech, Inc. Brewer is arguing that the term was used in a broad Robert H. Boling, Jr., president of Eco Tech, an sense when describing what happened. "We say the way environmental monitoring and data management we used it was broad," Brewer said. "'It's been used (that finn in East Lansing, Michigan, filed a libel su it way) in Time magazine. " Br�wer also fe lt th�t m�ny against the State News after it pri ted a series of n publications will be in trouble If they have to wnte USIng articles that Boling and his company were misusi g n only the legal definitions of rape. Such definitions vary funds from a university contract They said his . fr om state to state. was spending a large sum of money on company Hovey was not named in the aJ1ic1e directly. but she fringe benefits such as "beerand munchies." claims that she wa s easily identified because she was the unfairly singled and Boling claims he was out that only fe male bartender who worked in the early morning be informed the paper of its inaccuracies. The paper hours when the incident was reported to occur. to print the despite fa ct th continued articles the at Her lawyer, Patrick Brooks, argued that Hovey suffered professional picked up the newspapers which had every time she had to relive the incident by ex plaining to story from the State News printed retractions and people that she had not been raped Brewer will argue that stopped printing the articles. . she was not identified in the story so there is a Question as Attorn ies claim hat there ne er was fo r the News t v to the validity of there being libel. a chance to publish retractions or corrections of the Brewer also stated that "'rape, in view of the fa ct that stories ' because Boling never specifically directed there is no crime ofrape in Iowa anymore, is now defined attention false contained to anything materially in as sexual abuse. any of the articles. "The press has the right to the broader defin ition," A motion fo r summaryj udgement will be filed in Brewer said. May to dismiss the case in fav or of the St ale News. i The jury in the case was nstructed by Ju�g� Carl a , ccording to Janine Bauchat, a paralegal at Miller Baker who instructed the jurors to base thelr deoSlOn on and t n the Canfield. Paddock S o e, firm which rep­ the le�l definition of rape. Brewer said he would focus the resents the Michigan Slate News: _ appeal on that point. _

Spring 1985 SPLC Report 11 LIBEL

New York Classroom 'newspaper' loses libel suit

A class project turned into a Paul Heintz, attorney fo r the fo nner college student in her activities with $10,00 1 libel judgment when a fo r­ Oriskany Falls district. the English class. mer cook sued a now-defunct school "There were a lot of errors made Gagnon claimed the article dam­ district becauset he students reported in the course of the trial that were aged her reputation even though she that school foo d was " not fit fo r dogs unfa vorable to the decision," Heintz had already bee n fired when the to eat." said. article appeared because of student The New York State Supreme The judge rejected the argument and faculty complaints about the Court jury awarded Carol Gagnon $1 that the students were using "fair food she prepared and reports that in libel damages and $7,500 for dam­ comment ." Under the doctrine of she fai led to store food that she ages caused by the negligence of the fa ir comment, journalists have the ordered fo r the school cafet erias. She Oriskany Falls Union Free School freedom to criticize food prepared was hired as the school's cook in District. Her husband was awarded fo r public consumption and art or January 1981 and was fired about six $2,500fo r loss of his wife's services. performances shown to the public. weeks later. The article appeared in a newspa­ New York state law says that a The students wrote articles as a per-style project that Rebecca Pitkin, person must be a public figure to be class assignment and were graded. a Colgate University student who subjected to fa ir comment . They typed the proj ect on a master was a teaChing intern , had assigned "The judge didn't accept it [f air stencil and mimeographed it Each her students. The jurors ruled that comment] because she was not a student in the class got a copy to the article ent itled "Students Rebel public figure," Heintz said. bring home, according to Heintz. Against New School Cook" h ad li­ The jury also ruled that school The Oriskany Falls districtm erged beledthe cook in 1981. officials did not provide enough su­ with the Waterville School D istrict The district asked the judge to pervision fo r the teaching intern. The in 1983. Oriskany Falls is a town of overrule the jury verdict but he has suit had charged the school district about800 people. _ not made a decision yet, according to with not properly supervising the ---- _._._._ .._------12 SPlC Report Spring 1985 CENSORSHIP

Missouri

Hazelwood editors await judge's decision

Three fo rmer news editors of Ha­ student, but commented that it is distribute hand-written, printed or zelwood East High School in Missou­ difficult to predict if they will receive dupl icated matter among their fe llow ri are awaiting a U.S. District Court damages and may receive "little or students within the schools must judge's decision as to whether they nothing at aU." assume responsibility fo r the content had the right to print articles in the "The case can be broken down of such publications ... Libel, student paper on teenage sex, mar­ into two parts." Miller said. The first obscenity or personal attacks are riage, abortion, and �nawavs. part asked, " Were the students rights prohibited in all publications." Cathy Kuhl meier, Leslie Smart violated?" The second part, which The second of the content-related and Leanne Tippett saw three court will occur only if they win the policies entitl ed "Scbool Sponsored delays and eighteen months pass censorship issue, would be a jury Publications win not restrict free before their fight against censorship trial for the students rights to co llect expressi on or diverse viewpoints came to trial on November 5, 1984 damages. within the rules of responsible jour­ in the U.S. District Court fo r Eastern The November trial over the press nalism ...No material will be con­ Missouri. rights yiolation was held · before a sidered suitable fo r publication that It began in May 1983 when Ha­ judge. Miller argued that' although is commercial, obscene, libelous, de­ zelwood Principal Robert Reynolds the district has "invoked several faming to character, advocating reli­ censored two pages fr om the Sp ec­ 'official' policies, practi� customs, gious prejudi ce, or contribu ting to trum because they contai ned materi­ rules and regulations which they the interruption of the education al which he thought was "too contend are applicable to the Sp ec­ process." controversial" fo r a high school trum," lliose policies were ignored in The third set "policies" men­ newspaper. the decision to censor. tioned by the administration dealing The post-trial brief on the case "These fa ll into two broad catego­ with content, regarding criteria and reported that "after months of re­ ries. The first relates to the paper's procedures fo r publishing material in search. writing and editing under the content and procedures fo r publica­ the Sp ectrum, is the District's Curric­ supervision of their fa culty advi­ tion. The second concerns budgetary ulum Guide fo r Journalism II. Miller ser. . . the defendents [the adm inis­ length and restrictions." explains in the brief that "Even a tration] surreptitiously ordered the There are three content-related cursory review of the document how­ stories killed." When the Sp ectrum policies used by the school district. ever shows that it is addressed ex.clu­ staffmembers confronted the admin­ The first of those is Hazelwood sively to the general concepts, istration with what they thought was School Board Policy No. 348.5 enti­ objectives, exercises, etc. fo r the illegal censorship, the administration tled "Student Publications:' which Journalism II course. It contains no "responded by threatening to prohib­ states: "Students are entitled to ex­ guidelines or directives whatever re- it publicatio\ of the final edition of press in writing their personal opi n­ the paper scheduled that year." ions. Students who edit, publish, or continued on p. /4 It also stated that when fa culty adviser Robert Stergos, under whose supervision the stories had been pre­ IS rr pared, encouraged them to stand up .. fo r their rights, principal Reynolds

"recom mended that his teaching cre­ dentials be revoked. " The three editors, who have since graduated, went to the Ameri­ can CIvil Liberties Union (ACLU) to file charges against the Hazelwood Board of Education, school principal, district superintendent and substitute adviser. Steve Miller, an ACLU attorney representing the students, is asking for a mandatory injuction requiring the school district to permit publica­ tion of the censored stories and $25,000 in punitive damages and $10,000 in actual damages fo r each ------Spring 1985 SPLC Repon 13

• CENSORSHIP

alternatives could not have been Hazelwood - continued thought to be "sensitive" or "contro­ versial. " fo llowed, according to the brief The school district also contended which also said "They chose to use garding what may or may not be published in Sp ectrum or any other that individual issues of the Spec­ an axe, where a scalpel would have

... student publication ." trum had to meet certain budgets sufficed Among the policies dealing with and were supposed to be fo ur pages The staff of the Sp ectrum did not curriculum was one entitled "Con­ in length, except for special issues know about the deletion of the pages troversial Issues," one which princi­ dealing with such issues as home­ until the day the paper was to go on pal Reynolds said "he fe lt he had coming and the prom. sale. complied with," according to the But Miller, in his brief, pointed "The whole staff was mad," said post-trial brief. out that the administration had ad­ one student in the brief. "We went The policy states: "As free obje<:­ mitted prior to the trial that written down and talked to Mr. Reynolds to tive discussion of controversial is­ budgets were not prepared fo r indi­ find out why it happened." sues is the heart of the process of vidual issues of the paper. It was also The students in the brief said that representative government, freedom shown that no written guidelines Reynolds told them "he had ordered of speech and fr ee access to informa­ existed on the issue of page limita­ the stories removed because they tion are among our most cherished tions, but it was thought to be "un­ were "too sensitive," he did not fee l traditions. " derstood" that the issue not exceed they were suitable fo r publication, The policy grants specific rights to fo ur pages. However, it was never and they in voked topics which the students, including "the right to clearly shown "by whom this was should not be covered in the paper. study any controversial issue which understood," the brief said. One student in the brief recalled has political, econ omic, or social In the brief Miller fo und that Reynolds as saying "These articles significance, and concerning which these policies and practices are "de­ are too mature fo r out immature (at his or her level) he/she should void of any substantive standards audience of readers." begin to have an opinion ..." and and procedural safeguards" which Miller said that they expected a the right "to fo rm and express one's the First and Fourteenth Amend­ decision within the next month own opinion on the controversial ments require. The brief said that [April]. issues without, thereby, jeopardizing when some of the administration Although the three students have the relationship with the teacher or attempted to rationalize the graduated, they have not gone with­ with the school," the brief said. censorship, they were invoking "rul­ out recognition fo r their efforts. In Miller contends that unconstitu­ es and regulations which staff mem­ November, the first Scholastic Press tional press ure on the Sp ectrum's bers had never before seen." Freedom A ward was awarded to content was included in a dire<:tive Reynolds had admitted that he Cathy Kuhlmeier, Leslie Smart, and from Reynolds to Robert Stergos, did not bother to consult an attorney Leanne Tippett by the National fo rmer advisor of the newspaper, about these stories, contact their Scholastic Press Association/ Asso­ issued in January 1983, requiring authors or the persons quoted to ciated College Press and the Student Stergos to submit a copy of Sp ectrum verify the accuracy of the accounts Press Law Center fo r their efforts to to Reynolds prior to printing and and consent, or even discuss with publish a series of controversial sto­ sale. Howard Emerson, Sp ectrum's advis­ ries in the student paper, demon­ Superintendent of Schools Thom­ er at that time, the possibility of strating "the ability fb raise difficult as Lawson stated that this prior making changes, the brief said. and necessary isslles in news cover­ review was not required by District The admini stration could show age." _ policy, but that it was recognized as absolutely no other evidence suggest­ "sta ndard procedure" fo r prior re- ing in any way that less restrictive . view by the principal of material ( *1l;.=J

14 SPLC Report Spring 1985 CENSORSHIP ------._------Wy oming Cartoon case goes to trial

An April 8 trial has been set in the jury of reputation." tion." It fa ils to define or provide case of Judy Worth, the former spon­ Worth and her students contacted guidelines fo r an administrator to sor of a student newspaper wh o was the Student Press Law Center and predict disruption. It does not allow dismissed from her job occause of the American Civil Libertie$ Union "the right to appeal personally and her disagreement with the banning in an effort to change the existing advocate distribution," or adequately from the paper of a cartoon that policy. The policy was revised, based define the prohibition of material ridiculed the Moral Majority and her on SPLC guidelines, and presented that would "endanger ...the health, opposition to the Campbell County to the board of trustees. But the educaton, welfare, safety or morals of (Wyo.) School District's policy that board had fo rmulated its own policy thestudents." deals with the student press. draft and approved it three days "We are fiJing fo r summary judge­ Worth claims that she was fired before Worth filed her suit-. ment [a dismissal of the case in fo r her outspoken protest of the Worth was then removed from Worth's fa vor] on twO points: (I) district's publication policy and her her position as sponsor of Ca mel Failure to publish the cartoon - attempts to change it. After issuing a Tracks and the yearbook. The school that was unconstitutional; (2) The press release denouncing censorship, district admitted that part of the current policy [of censorship by the the Wyoming Educational Associa­ reason for her dismissal was because administration] is unconstitutional," tion filed suit in the U.S. District of her stand against the school board. said Hacker. Hacker is also asking Court for Wyoming last August to A complaint was filed by Patrick that the case be tried in fr ont of a have Worth reinstated as sponsor of Hacker, Worth's attorney, stating judge, not a jury, jf the summary the school paper and yearbook. that the new policy "contains essen­ judgment motion is not granted. The case began when the student tially the same unconstitutional pro­ Hacker fe els a judge should hear the run paper, Camel Tracks. wanted to visions as the fanner one." It claims case because "there is no fa ctual run a cartoon critical of the Moral that the policy fa ils to provide crite­ issue" to be decided. Majority. They wanted to run the ria as to what is "disruptive," Hacker is also asking fo r Worth's syndicated cartoon to protest efforts "obscene," «defamatory" or define by a group of citizens to ban Steven "statements or inuendos that would continued on p. 16 King's Th e Shining from the library. subject any person to hatred, ridi­ School principal Jay Cason cule, contempt or inj ury of reputa- banned the cartoon because it "ridi­ cules the conservative viewpoint," � which violated a policy prohibiting • material which "subjects any person . to hatred. ridicule, contempt or in-

Spring 1985 SPLC Report 1 5 �ENSORSHIP

Girls of Rancho on trial Calif. court hears censorship case

Student editors are awaiting a California statute and a school dis­ prior restraint in the area of student decision on the censorship of the trict regulation which allow prior publications can be devised which Rancho Alamitos newspaper whose restraint are unconstitutional. "Edu­ imposes a restraint sufficiently short­ distribution was halted when the cational Code Section 48907 and lived and procedurally protected to principal thought material in the Garden Grove Unified School Dis­ be constitutional. What may well be April Fools edition might be libel­ trict Administrative Regulation best - although Dot constitutionally ous. 721 20. 1 establish a system of prior compelled - is a simple prohibition After a hearing on a motion fo r restraint which is unconstitution­ against the distribution of certain summary judgment-the granting of al . .. Because these measures in­ categories of material." State courts a verdict in a case befo re it goes to fringe upon the First Amendment are not bound by the Rowe ruling. trial-a California Superior Court rights of all students, this court Although other Federal circuits judge has decided to consider the should 'declare that they are void. have stated prior restraint may be arguments before making a ruling, and the defendants (the school dis­ possible, the ACLU is hoping that according to Gary Williams, attorney trict) should be permanently en­ the court will find the educational fo r the American Ci vil Liberties joined fr om enforcing their code and the administrative regula­ Union. provisions," said the court brief filed tion of the high school press to be A summary judgment in fa vor of by Williams. unconsti tutional. David Leeb, the editor of La Vo z del Williams hopes the court will A fa vorable ruling on the sum­ Vaquero. would dismiss the case adopt as precedent Fujishima v. mary judgment would prevent the before it goes to trial. Board of Education 460 F.2d 1355 principal from using prior restraint "We will have to wait and see (7th Cif. 1972) which held that any on material produced by the student how he rules," said Williams. "The system of prior restraint in a second­ newspaper. judgment will come in sometime ary school setting is unconstitutional. The case arose when principal next month [March]." Fujishima binds schools in Winois, James Delong halted distribution of The ACLU is claiming that a Indiana and Wisconsin. the April Fools edition of the paper Williams is also hoping the Court because it contained "potentially li­ will adopt the opinion from the belous" material. Wyoming - continued California case Rowe II. Campbell In the paper was a photograph of reinstatement to her fo rmer posi­ Un ion High School District. (unpub­ five girls along with an article stating tion as sponsor of the newspaper lished) (N.D. Cal. Sept. 4, 1972), in that Playboy magazine would feature and the yearbook, and suing fo r which a three judge fe deral court a nude photo spread · called "The damages for the attack on her invalidated an earlier California stat­ Girls of Rancho." The girls reported­ reputaton. utory provision which governed stu­ ly did not know when their picture The district has claimed that dent expression. The Court in Rowe was taken that it would be used that the Quality of newspaper and the stated: "It may be that no system of way in the humor edition. __ yearbook has dropped since Worth took the position as ad­ viser. But Hacker said that her track record with the paper was good if nOl better than the pre­ vious years. Worth had been put under heavy stress by the case but is reportedly "doing as well as can be expected under the circum­ stances," accordingto Hacker. Hacker also stated that the school district is trying to claim that they were worried about disruption of students in the school about the article. But he said the school ""never gave that as a reason" fo r the ban and ·'they never made any document of that," so it was too late to raise that claim in court • Ne w I� THE 8uSrNESS tOD '?

16 SPLC Repon Spring 1985 CENSORSHIP

California Ba'n on booze ads draws suit

Liquor and tobacco ads will con� made aware of the policy," said trustees rejected that appeal. tinue to be excluded from a student David Agrela, Editor-in-Chief of the The newspaper's staffand Donald newspaper because of a policy baning Mountaineer. "It's a great pJace fo r Newman, the Mountaineer 'S fa cuity the ads set by the administration at quick r evenue . Not only big compa� adviser, said they had no other Mt. San Antonio College (Cal.) nies but restaurants and nightclubs choice than legal action. A request fo r a preliminary in� want to advertise. Our business man­ James Albanese, Mt. San Anto­ d junction against the ban by the ager has stayed away from night club nio's vice presi ent of busi ness ser­ American Civil Liberties Union advertisements because of the poli­ vices, said in the Los Angeles Times (ACLU) representing the Mo untain· cy," Agrela said. that the administration would stand eer Weekly was denied by a Los The paper wanted it made clear by its policy b�sed on the trustees' Angeles Superior Courtjudge. that they were not advocating the authority to regu late advertising in The injunction would have lifted usage of to bacco and alcoholic the Mountaineer. the ban and allowed the paper to products by the students. "Our position is that the board print the ads, but the judge fo und "What we are arguing is that the acted properly in adopting reasona­ that "no irreparable injury" would district does not have th e right to ble regulations fo r the weekly," Alba­ occur if the ban remained in effect. restrict ads in the paper," said A nto­ nese said. 'The trustees fo Uowed the according to ACLU attorney Gary nette Cordero. and ACLU spokes­ president's recommendations" that Williams. man represe nting the plaintiffs. the coilege should not take the re­ The suit, filed November I by a The controversy came to a h ead sponsibility fo r the sale and advertis­ jounalism professor, two journalism when President John Randall wro te ing of products that may be health students and a private citizen , a letter to the school 's journalism hazards to the students. cba.rges that the policy severely re­ advising committee urging the staff Cordero disputed that claim, say­ stricts the re venues that the campus to resign if they fo und the policy ing the potential health hazards and paper could earn. They claim this oppressive. the district's regulatory authority are violates the newspaper staffs and The newspaper's staff subsequent­ irrelevant to the newspaper's rightto student body's constitutional rights ly appealed to the board of trustees solicit and publish advertisements in of free speech and of the press. to repeal the ban on alcohol and "About two years ago we were tobacco advertising. In July, the

Spring 1985 SPLC Report 17 CENSORSHIP

Mountaineer - continued The administration's refusal to princi pie," Cordero said, "but be­ permit advertising fo r alcohol and cause these (advertising) revenues order to sustain itself. He said the tobacco products has not extended to could mean the difference between college, as an arm of the state, is other advertising which the editors the number of issues and pages the obligated to strictly enforce the con­ fe el may have been controversial. paper can publish, or its quality." stitutional guarantees of freedom of "We ran without complaint fo r The advertising ban threatens the the speech and of the press. several weeks an advertisement fo r weekly's ability to maintain its press President Randall disagreed with the contraceptive sponge," said Agre­ run of 6,000 copies or improve its Cordero, claiming that the adminis­ la. "That's the key issue. There could present editorial standards, according tration should regulate advertising be an ad fo r a wet T-shirt contest, to Newman. He also stated that it because work on the publication is something promoting nothing but may eventually threaten the newspa­ done fo r class credit and is not a drunkeness, or a restaurant advertis­ per's ability to continue printing its separate academic or financial entity ing dinner with a complimentary 30 to 32 editions each year. as are some fo ur year college newspa­ drink," and they could be printed, "We will probably make a motion pers. "That alone tells us we have said Agrela, who fee ls the adminis­ fo r summary judgment," Williams more control," he said, because the tration wants to make the moral said. "We still have work to do with course is primarily fo r instructional choices that the editors should make. our clients on that." purposes. We are not filing the suit just on •

ADMINISlRAliON

Colorado Adviser quits over 'low-key pressure'

In the wake of the censorship of a threatened to stop distribution of the law, but many do not. If a sponsor letter critical of a baseball coach, at March edition of the Paragon if the does not know the law, the chances least one adviser has quit her job letter was published, explaining that are that the students do not know it, citing frustration and low-key admin­ he did not want the paper to become she said. Without that knowledge, it istrative pressures in one of the na­ an open fo rum fo r students to pub­ is hard fo r the journalism students to tions largest school districts. licly criticize teachers and their poli­ recognize a violation of their rights Bobbie Rae Kay told the Student cies. or to pursue areas of interest that Press Law Center she has decided to "Mitchell used as his support they can legally explore. take some time off because the Jef­ those guidelines," Kay said. "Until The district takes the position that fe rson County (Colo.) School District such time there was little flack in this student rights are protected as much has continued to enforce guidelines county, but that incident brought to as need be under the guidelines. which restrict the rights of the stu­ the fo refront that we all live (with) Gerald Caplan, the school district's dents to publish relevant news arti­ the threat of those guidelines." attorney was consulted by the school cles. Kay feels the school district is district in deciding whether the The guidelines were called uncon­ using the guidelines as "a means of guidelines, which were drawn up by stitutional in a letter to Kay from the manipUlating the content of the pa­ administrators and citizens, are legal­ Student Press Law Center on No­ per." She fee ls that this is the result ly acceptable. vember 6, 1984. of a lack of knowledge of First "The district's attorney has re­ According to Kay, a fe w of the Amendment law by sponsors of the viewed that policy and he's rendered newspapers are good but some are newspapers. a decision that it's sound, .. said Don not and many others do not know The sponsor is a faculty member Jones, Head of Language Arts fo r their rights. who guides the students to make Jefferson County. There are eleven student newspa­ decisions and helps them to develop Kay contends however, that un­ . pers in the county. Kay considers skills in journalistic style and con­ fair pressures exist. One teacher was fo ur to be strong papers, fo ur to be tent. Kay said a requirement that charged with misconduct and sus­ good student publications and three teachers have training in journalisr;n pended over what appeared to be to be weak papers. to be able to teach it in the schools school newspaper related events. Problems with the guidelines had been "ruled out" by the state f41y said advisers are made up of came to light when Kevin Kemp, a several years ago. tenured and nontenured teachers. senior at Alameda High School in "Our certificate of teaching does Nontenured teachers serve at the Lakewood, submitted a letter to the not carry a journalism endorse- discretion of the administration, and editor critical of the coaching style of. �o reason need be given fo r them to the school's baseball coach. ,� :tls��������;;�� . be released. Alameda Principal John Mitchell to know about First Amendment Kay said the papers that are

18 SPLC Report Spring 1985

------______..., .... . ,______..______... _ ..... "� - ADMINISTRATION strong remain strong, but the weak the administration. Topics are chilling effect:' Kay said. "The only papers tend to have a "marshmallow avoided "for the simple reason that way they are going to be changed is �ress." She said that a marshmallow the administration would prefer they through a court case. Because there is press is one that lacks a dynamic are not done," Kay said, "They don't no policy of (overt) 'censorship' they editorial page or one in which the seek controversy, they avoid it." (the students) are not going to rock content of the copy is controlled by "The existing guidelines have a the boat." •

Illinois

Guideline revision ren1ains 'on hold'

There is no prior review at Richards High School (III.). but there is no publications policy either. said Bob Jason, adviser fo r the Richards ' Herald. Jason and fo rmer editor Robin Gareiss presented a proposed set of publications guidelines to the school board last spring after receiving inte nsive press coverage, culmi­ nating in an appearance on Donahue. of their fi ght to be free r f om prior restraint. The re viSIOn of the existing guidelines was an attempt to end the history of prior re view and censorship in the school district. In May. the board sen t a proposed policy to the Illinois State Board of Education (lSBE) for comment, but has not yet received word fr om ISBE on the proposed guidelines. according to school district attorney Alan Mullins. "I sent a letter (to the board) two months ago [Jan­ uary}," Mullins said. He never received a reply. The problem arose in fa ll 1983 when Richards Principal Wayne Erck assigned another administrator, Robert Guenzler, to review all material be fore it was printed. Jason and the Herald editors protested the prior re view at a school board meeting. They were told that no prior review would be exercised until a new policy was adopted. But the new policy proposed by the school board also includes prior re view. Gareiss had been worried last spring that the board members were stalling with the rev ised policy until she

graduated in May 1984. Jl "They're pushing it otT until when no one's around to fight about it," Ga reiss said. School officials denied that claim saying that there was no need to rush the policy since it was not hurting anyone. "My editor from last year [GareissJ grad uated," Jason said, "That's part of the reason it died down." When school started this year Jasen asked the principal what the policy would be fo r the Herald. Erck said there was "a policy in the making" and it was one "that we may not like," according to Jason. There has not been a policy dealing with the student publication this year. But Jason said there was nothing to challenge and that "at least they are leaving us alone:' Principal Erck was not available fo r comment on the policy that is currently in the hands of the Slate Board of Education. _

Spring 1985 SPLC Report 19 ------ADMINISTRATION

Nebraska U. of Nebraska paper fights fo r policy control

The Daily Nebraskan. at the Uni­ versity of Nebraska-Lincoln is hav­ ing trouble with its Publication Board because of disagreements over who sets policy fo r the editorial and advertisingcontent in the paper. Last fa ll, advertisements in the paper were banned by the adminis­ tration because it fo und them to be "discriminatory." That brough t about the Question of who has con· trol of the paper. "The Board can set guidelines dealing with advertising content. It ca nnot set editorial policy:' said Don Shattil, adviser for the Dail.v Nebras­ kan. Contro versy began last year when the Daily Nebraskan refused to run an ad, submitted by two women, "It's hypocritical to allow ads to student fe e money can be used fo r seeking a lesbian roommate. The two specify male/female and not sexual editorial advertisements. women complained to the Publica­ preference," Welsch said. "It's a princlple battle," Wel sch tion Board, which is made up of five "It's hard enough to find a room­ said. "They shouldn't fo rce us to students, two fa cu lty members and mate you want to live with_ If you print it." two journalists fr om outside the move in with someone and fi nd out Welsch said they would have school. he is gay you have to make a choice." printed the material anyway �ause The advertising policy, written by There is the possibility that the it would have been pan of the Ne­ the Publication Board, stated that the two women might file suit bu t no braskan 's regular news agenda. paper would not discriminate on the legal actions have been taken to date. Don Shanil said he does not see basis of race . religion. marital status The policy also makes it illegal to much difference between the Publi­ or racial origin and that the Nebras­ publish ads fo r gay bars, said Welsch. cation Board making the Daily Ne­ kan recognizes and respects the right Welsch is hoping to get a suit filed braskan print an editorial or printing of persons to specify preference of by the gay community. the material as a free ad, using the sex when looking fo r a roommate "There is no consensus fo r a Board's advenising control to print and will not prohibit stating such a change in the policy," Welsch said. an editorial piece. preference, according to Don Shattil. "The Board says we will prohiblt Welsch said the key issue is (n response to the complaint of these ads.'" whether the Publication Board has the two women, the Board re-wrote The sexual preference ban is not control to make up rules as they see the gu idelines. It now prohibits ads the only question concerning a policy fit. fr om discriminating on the basis of decision at the newspaper. The "[ don't think the Publication "sexual orientation," but it allows Board of Regents wants the Daily Board has the right to tell us what to advertisers seeking roommates to Nebraskan to print budgets and sala­ print," Welsch said. "They can't specify a roommate's ge nder. So peo­ ries of organizations that use student make up rules_" ple placing ads can request a male or fe es. The Nebraskan was told by the After the last meeting with the fe male roomate, but cannot specify Board that they must print the infor­ Publication Board, Shattil said the that roommate's sexual preference. mation as an editorial, which Shattil Board did not address the issue of

Chris Welsch. Editor.in-chief of says the Board lacks the power to do, printing the financial data. .... We are the Nebraskan disagrees with the or they must print it as an advertise­ not any fu rther (along) on this op­ policy and said he wanted it to say ment where the paper must absorb pressive maner," he said. "self description will be allowed." the cost, contradicting a rule that no •

-----_._------_._-- 20 SPLC Report Spring 1Q85 ADMINISTRATlON Louisiana Settlement permits abortion ads

An out--of-court settlement at is in the hands of the Chancellor. But there have been no problems Louisiana State University has There is precedent supporting Th e between the administrSiiOD·. and the opened the way fo r pregnancy.re­ Daily Reveille's claim that they can Reveille since the advertising ban lated advertising in the student news­ decide which advertisements to was lifted so no fu rther action will be paper. print. In MissiSSippi Gay Alliance v. taken by the newspaper, according to Th e Daily Reveille filed suit last Goudelock. 536 F.2d 1073 (5tb Crr. Strother. November and the case was to go on J 976), the U.S. Court of Appeals fo r "There is no need to go back and trial December when the settlement the Fifth Circuit ruled that student have another lawsuit," said Strother was made. The school administrators editors have the power to accept and after an informal meeting with LSU decided to lift the ban, allowing the reject political advertising. The right Chancellor James Wharton. "He students to print the ads. of student editors to accept adver­ doesn't wan t any problems. He real­ Student journalists and the Ameri­ tisements granted in the Mississippi izes that there could be a problem if can Civil Liberties Union filed suit Gay Alliance case would imply tbat the university tries to censor the on November 13, after the advertis­ no other groups, including adminis­ paper agai n," Strother said. ing manager at the Reveille received trators, could exercise that power. • an administrative memo officially announcing the ban. The ban had been "enforced a while before that ," according to Martha J. Kegel, exec­ utive director of the Louisiana ACLU affiliate. Administrators had originally banned the ads fo r abortion clinic services because they fe lt the stu­ dents should get counselling fr om the university health service "before get­ ting an abortion," according to Ke­ gel. She said the university was exhibiting a " patemalistk attitude" and that it " should acknowledge that students are mature enough to make those sorts of decisions on their own." The ban on pregnancy rel ated ads applied to the Reveille and the yellow pages of the student directory. It started as only a ban on abortion ads but then was widened by school administrators to include all preg­ nancy related ads. Advertising for adoptive services and right to life groups was also prohibited. Despite this victory for the news­ paper, some fe el it may only serve to ward off temporarily a struggle for student control of the paper. "We sued to have pregnancy-re­ lated advertising and won," said DaneS trother, editor of the Reveille. "But it was too narrow a case. We now have the right to print ads fo r abortion, but we don't have full control of the paper." The Louisiana State University Board of Supervisors, which fee ls it has the power to decide editorial policy at the paper, has said control SpOng 1985 SPLC Report 21 STUDENT GOVERNMENTS ------_.---_._- -_._._------_.. __._------

Colorado Landmark case on standing is finally before trial court

A trial date has finally been set fo r Judy Olson, a Olson's lawyers will asle: the oourt fo r legal costs and college newspaper adviser who is suing the State Board of back pay fo r the years the paper did not receive its Community Colleges in Colorado after gaining the right 10 fu nding. The back pay would be used as capital to buy sue fo r the First Amendment rights of her students. equipment to run the paper at an equivalant standard to The case, which began in August 1979, will finally come how the News functioned when the funding was with- to trial October 15, six years after it was first filed by drawn. according to Veske. . Olson and three students because funding fo r the Pikes The original case arose after thepaper's fun� were cut Peak News was-cut ofT by the student government. off because the student government at Pilces Peak Com­ But the case has already provided a landmark decision munity Col lege did Dot like the News ' content That is fo r the student press allowing an adviser to represent the when Olson and three students decided to file suit against rights of students. The deci sion is binding in Colorado and the State Board of Community ·Colleges and Occupation cou ld be persuasive precedent for the rest of the country. Education. After the Court granted a summary judgment The trial court wi ll now consider whether the rights of motion in fa vor of the college, Olson appealed. The three the students were violated. Olson, whose rights are not students , however, had graduated and did not join the considered to have been violated by the fu nding cut, will appeal. be pu rsuing the case on the students ' behalf. "We are tryi ng to establish that the student's rights were violated," said William Yeske, attorney fo r Olson. Articles critical of the school and the student govern­ ment may have been a substantial fa ctor in the student Senate's decision to retaliate against the News by cutting

fu nding, according to Yeske. Yeske pointed out that the student Senate action is , legally considered part of an action by the state govern­ ment. "The student Senate took the vote ...th e administration approved of it," Yeske said. "The Student Senate worked as only a part of the budget­ ary process," he said. Yeske is claiming that the Su­ preme Court has basically agreed with Joyner v. Wh iling, 477 F.2d 456 (1973), in wh ich the US. Court of Appeals fo r the Fourth Circuit said that censorship of constitutionally protected expression cannot be im­ posed by withdrawing financial sup­ port. The Court also stated that, "if a college has a student newspaper, its publication cannot be supressed be­ cause college officials dislike its edi­ torial comment." "We anticipate asking the court to

make a summary j udgement " which would dismiss the case in fa vor of Olson and the paper, Yeske said.. "If a summary judgm ent is granted, a trial wo uld be fo r an appropria te remedy" fo r the re institution and fu nding of the Pikes Peak News.

22 SPlC Report Spring 1985 STUDENT GOVERNMENTS

The Pikes Peak News fo lded after itS funding was substantial relationship between the party and the third withdrawn. The Pikes Peak Fuse took its place, but Olson party; the difficulty or improbability of these third parties claimed that it is not the same caliber, as it contains 90 in asserting the alleged deprivation of their own rights; or percent less content than the News. the existence of some need to avoid dilution of third party Because of the loss of funding Olson had to cbanse the rights in the event standing is not permitted." fo rmat of her class from a newspaper desip class to a Although Olson had met the first requirement of the magazine design class.e Th court held that Olson had test, the court stated that Olson could have satisfied all "sufficiently demonstrated, at least fo r the case of the three rules. third party standing, that the administrative decision to The court held that Olson met the second consideration terminate the News has a chilling impact on the free because the students fa ced obstacles in asserting rights speech of the students." themselves. They said that because Pikes Peak College is a Olson said that the program and the publication of the two year school students did not have the time to "initiate paper were interrelated and fo r that reason she could not and bring to a conclusion a lawsuit chalJenging a cutoff." separate herself from the students. The third consideration was met because enforcement Olson took the case to the appeals court and the state of the fu nding cutoff could inhibit students from exercis­ Supreme Court where she won the riJbt to sue on her ing their speech and associational rights in a student students behalf. newspaper. The Colorado Supreme Court ruled last Auaust that The Colorado Supreme Court noted that the U.S. "Olson's role as a fa culty adviser to the Pikes Peak News Supreme Court has been lenient in applying rules fo r gave rise to a substantial relationship between herself and standing in First Amendment cases to avoid inhibiting the student members of the News staft'. and that the freedom of speech. . relationship "renders Olson as effective a proponent of the The Colorado Supreme Court also stated that the First First Amendment rights of the students as the students Amendment does not give a teacher the right to require themselves. " the school to allocate fu nds to a particular student activity The court held that although Olson had no First when it is not part of the school official curriculum, is Amendment rights of her own in the newspaper, she had a managed by the students, and only advised by the teacher. third party claim to defend the rights of the students. The trial court wilJ have to consider a1\ of these issues Olson had to fu lfill at least one of three factors that were in resolving the case. applicable to the case. They were: "the presence of a •

California Student government takeover bid stalled

A student government takeover of the campus newspa­ "I would hope that our three consultants, drawing on per at California State University - Dominguez Hills has their own experience and those of other institutions, could been stalJed until the university president makes a deci­ make some positive suggestions fo r improved publication sion to accept or reject a new publications code. arrangements fo r the newspaper on the campus," Butwell The code must be appro ved by Robert Butwell, Presi­ said. dent of the university before any action can be made to The fight fo r control of the paper is being led by Louis take control of the campus paper Bull 's Eye by the st udent Armmand, president of the Associated Students of government. Butwell has the final word on all lqisIation CSU - Dominguez Hi11s (ASCSUDH). introduced by the student lovernment, includina the Armmand and the ASCSUDH are trying to push power of veto. thro ugh a new publications code that would give the The student government passed the code before submit­ officers of the ASCSUDH control over the Publications ting it to Butwell for his approval. Commission which in turn would control the newspaper. Butwell has convened a panel of two journalism profes­ The code would allow the commission to hire and fire sors and a professional newsman to .reView the proposed newspaper editors, suspend reporters and shift control of publications code. The group will also review the quality the paper's editorial policy to the Commission, which of the Bull's Eye and suggest ways to improve it would be reformed by Armmand's proposal so that the The panel includes Jay Berman, advisor fo r the Daily ASCSU DH President would directly or indirectly appoint Titan, the campus newspaper at California State fo ur of the five voting members. University - Fullerton, Steve Harvey, from the editorial Bull's Eye staff members contend that the new code department of the Los Angeles Ti mes.. and Barbara Fryer, would restrict their rights of free expression guaranteed by advisor to the Daily 49-er at California State University ­ the First Amendment. They are threatening to sue the Long Beach. student officers if the code is approved, according to Butwell will make his decision after receiving advice Nancy Harby, Editor-in-Chiefof the Bull's Eye. fr om the panel whieh bad tiee., � by iht Do�in,.., Under the structure of the new Publications Commis- uez Hills communication dtpathn tnt 'pnor to the original introduction of the proposed publications code. continued on p. 24 Spring 1985 SPLC Report 23 STUDENT GOVERNMENTS

Bull's Eye- continued coverage of campus events, ''"incompetent'' 'business man­ agement, and a tendency to fea ture "one-sided belicose" sion, the editor and fa culty adviser will no longer be attacks on student officers. voting mem� of the commission. Harby and several Annmand has been a frequent target of anack by the faculty representatives will be taken offthe commission. Bufl's Eye, which in editorials labeled him "King louis" Annmand agreed with Harby that the revised regula­ fo r remarks he had made about a rival student govern­ tions "clearly establ ish Associated Students as the newspa­ ment officer. per's publisher." He fee ls the student editors have lost the In letters to the editor, Armmand has also been called job as publishers of the paper because they did not meet "Idi Armmand" and "Louis Amin," likening him to the itsresponsibilities. deposed African dictator Idi Amin. Harby said the new regulations adopted by the student Armmand's tenure bas been filled with controversy as Senate stripped the paper of its independence and "created members of the student government bave resigned and he a dangerous mechanism fo r government control of the has been charged with circumventing the democratic pres&." process. The student government says that because half of the Kevin Clutterback resigned as Controller of the ASC­ Bull's Eye's $30,000 annual budget is derived from stu­ SUDH sa ying that Armmand "violated the Constitution dent fees , that the student government has an obligation and he enters into contracts prematurely. He violated to see that the newspaper functions in a manner accept­ almost every theory of every management book ever read. able to the student body. From the beginning there was a conflict of values." Annmand and the student government contend that Arm mand described Candy Nail, the paper's faculty they are not trying to take control of the newspaper, only adviser, as "too involved in student politics - I hope we seeking to malce changes which are designed to improve can get someone with a fresh, nonl13rtisian prespective." the Quality of the BuJJ's Eye. Armmand has called the Nail Objected to Armmand's claim saying that she newspaper the worst among the t 9-

AS c..s U "l)'&oSJ' H

24 SPLC Report Spring 1985 . _--- . . . ..-- ..,, " .. ,., . __ ---,-_ . _ ...... - ...... -- -- . . . STUDENT GOVERNMENTS ------, ..""- - ---...... '"

"advice" fr om student officers on how to do her job. staffin�; and also allows the student government to p�sh . Annmand also blamed David Safer, chairman of the acts Without defimng them - which does not allow� communication department of frustrating past effons to due process, according to Abra ms. � improve the newspaper's operations. He added that a Butwell sent a memorandum on February 27 to the major benefit of the new regulations will be to remove the college administration, the communications department, Btill's Eye fr om any cootrol by the communications the newspaper and the student government which read: department. Until further notice, the recently passed Publica­

Safer said the communications department "does n ot tions Code (including the Publications Co mmis­ control the newspaper in any way. We can only make sion created thereunder) shall be considered suggestions and the editors are free to accept or rej ect inoperative and have no validity or authority with them," respect to any publication associated with this A February 12 meeting was held between the editors of campus. Any actions taken under this code are the paper, Annmand and Gerald O'Connell. the Publica­ hereby voided. tions Commissioner appointed by Armm and . The meeting legal inquiry is underway respecting questions was called to discuss the legalities of the proposed Publica­ concerning this code (i ncluding the commission) tions Code. Present at the meeting was Marc Abrams, as is a review of th e impact of the code on the Executive Director of the Student Press LawCenter. credit-eaming course employed in the staffing of

After several heated exchanges between Ann mand, the newspaper . O'Connen and Abrams concerning the purpose fo r I have asked fo r the responses to these inquiries Abrams' presence, Annmand and O'Connell left the by Mar. 13, but I can not be assured that aU the meeting. appropriate work will be completed by then. l will Abrams fo und two main problems with the code. need a fe w days subsequently to review the results The first problem is that "moving fr om a looser control of these inquiries. In the interim, the prior Publi­ to a tighter one is unconstitutional," Abrams said. cations Code and Commission stand. The second problem is that "the nature of the docu­ This leaves the editors of the Bull s Eye and the current ment seeks to deprive, in some ways subtle and other Pu blications Board in control of the student paper until ways not subtle," control of: the editorial policy of the Butwetl reviews the results, and decides to accept or reject paper; the editors control of the advertising policy, which the student govern ments changes. affects the editorial policy by money alone; control of the •

FREEDOM OF INFORMATION

California Sun shines on UCLA student government

The student press at the Universi­ The controversy emerged when ty of California Los Angeles (UCLA) the ASUCLA Board of Control has won the righ t to attend meetings (BOC) refu sed to allow media cover­ of the Asssociated Students of UCLA age of its Nov. 9-10 retreat, raising (ASUCLA) after a debate over media legal Question about the BOC's poli­ exclusion from an ASUCLA Board cies. of Control retreat. Two reporters from th e UCLA Student media are now working ca mpus ra dio station J

Spring 1985 SPLC Report 25 FREEDOM OF INFORMATION

UCLA -continued radio station KlA, who is now an Hitch had made assurance that the attorney representing the media at University would open its meetings states that if members of the media UCLA. He informed the legJslators itself The senator also suggested that want 10 attend retreats, media chiefs of the media being ba rred from the if the University still has not carried must agree ahead of time to keep the retreat and of the BOC's view that it out these commitments, that he be­ informati on expressed "off the re­ was not required to hold open lieves it would be "prudent to do so cord." meetings and that it could prohibit now and avoid the necessity of legis­ This brough t the press to take a the attendance of students, the public lative action." close look at the open meetings laws and the campus press. He also point­ Then the Board of Con1rol in their state. California operates ed out that the University of Califor· claimed an exemption from the act under two separate open meetings nia system had been left out of the asserting that they were a private laws known as the Brown Act and act and urged that legislation be organization and not affiliated with the Bagley·Keene Open Meeting Act. sponsored which would amend sec- the university. But University of • bruin

Unl...... ofity C61ifornie. Lol Ang.�.

The Brown Act is the statute tion 11121.5 of the Bagley-Keene Act Cal ifornia Chancellor Charles Young which applies to local agencies with­ to re ad: "Under the provisions of said that they were "not a private in the state. UCLA, along with other this article, the official students body orga nization," but a part of the- uni· University of California branches, organization at any campus of the versity. He added however, "They California State Universities and University of Ca lifornia, Ca lifornia are not covered by the Bagley�Keene state agencies, is covered by the State University, or the California Act because the university is not Bagley-Keene Act. A problem fo r the school press Section 11121.2 of the Bagley-Keene was the way the act was written. The Bagley-Keene Act states that "Under Act states that, " 'State body' also means the provisions of this article, the official student body organization at any board, commission, committee ... any college of the California State which is supported, in wh01e or in part, University and Colleges, or of the California Community Colleges, by fu nds provided by the state body, whe ­ shall be tre ated in the same manner as a state agency.-' This is the clause ther such body is organized and operated which enables reponers to gain ac­ by the state body or by a private corpora­ cess to student governments at the se insti tutions. But the legislature, in tion. " enacting the bill, omitted the Univer· sity of California fr om this section. Community Colleges, shall be treated covered by the Bagley · Keene Act." in the same manner as the state But Young had overlooked a 1983 body." amendment to the act which pro-­ "I believe the leg­ Then, David P. Gardner, Pre si· vided that the University Board of islature has a dent of the University of California Regents is, with certain specific recei ved a letter fr om state Senator exemptions, subject to the act's rules clear ... ability to Barry Keene, co-author of the open­ governing all state bodies. mee tings act, "blasting the Universi­ Attorney Geoffre y Cowan, a apply ... ope n ty of Califo rnia fo r denying student UCLA media law lecturer, said in meeting require­ reponers access to public meetings," the Daily Bruin that if ASUCLA is according to an article in the Daily part of the university, it is subject to ments to U. of Bruin. the same provisions of the Bagley­ "I bel ieve the LegiSlature has a Keene Act as the Regents. "Wh4t n a Califor i student clear constitutional ability to apply applies to the Regents applies to the same open- meeting requirements everybody delegated authority by the governments. " to UC student governments, which Regents," Cowan said. legally exercise authority delegated to It was thought that ASUCLA A letter regarding the open meet­ them by the Regents, that it has would be bound to the provisions of ing laws was wri tten on November applied to the Regents themselves," the Bagley-Keene Act by the 1983 14 to state Senator Herschel Rosen­ Keene said in his January 28 letter. amendments to the act including the thal and Assemblyman T om Hay· Keene explained that the Univer­ University of Cali fornia, until the den of Ca lifornia by Dirk W. van de sity of California system had been HOC raised tbe question of its pri­ Bunt, a fo rmer publisher of the Daily left out of the act in 1974 because vate status. However, Student Press Bruin and operator of the campus fo rmer system President Charles J. Law Center Executive Director Marc ------26 SPLC Report Spring 1965 FREEDOM OF INFORMATION

Abrams told the Bruin that regard­ mentions the University of Ca1ifor� be aware of how the student govern­ less of the BOC's private status or rna Board of Regents, confusion still ment is representing them," Shih the omission of the University of ex.ists over whether or not that in­ said. California from section 11121.5, all cl udes the student government, On February 14, both the Daily ASUCLA meetings had to be open according to Nick Grossman, faculty Bruin and KLA radio issued editori­ under another clause of the Bagley­ representative of ASUCLA's Com­ aJs that praised Chancellor Young on Keene Act, section 11121.2. munications Board. his effort to resolve the controversy Section 11121.2 of the Bagley­ The ASUCLA Communications surrounding press access to UCLA Keene Act states tbat, "'State body' Board unanimously passed a petition and ASUCLA meetings. They ac� also means any board, commission, on February 7 of this year saying it, knowledged that this was only the committee, or similar multi-member "respectfully petitions Chancellor beginning and expressed their will­ body which is a state body. .. and Charles Young to support state legis­ ingness to work with the Chancellor which is supported, in whole or in lation amending section 11121.2 of towards creating a binding, written part, by funds provided by the slate the Bagley-Keene open meeting act policy governing public access to body, whether such body is organized which will clearly define the appro­ UCLA and ASUCLA meetings. But priate application of the they stated that the need fo r a and operated by the state body pr. by California both a private corporation." Bagley-Keene Act to include the Uni­ clear definition spelling out rights to ASUCLA receives state fu nds. versity of California student govern­ attend university meetings, in line Chancellor Young admitted he ment and associated organ.i.zations." with the spirit of the Bagley-Keene was wrong when he claimed that "We need legislation that specif­ Act, was needed. UCLA and the ASUCLA Board of ically includes student government The Bruin editorial stated, "If the Control were ex.empt fr om the state and ASUCLA," said Bruce Shih, Regents do not take appropriate open meetings act. "Under section Communication Board chairman. steps, then the state legislature must. 1112[.2 arguably ASUCLA is includ­ "UCLA student media need stro� The purpose of any open meeting act ed in the act," Young said. "BOC is legal grounds on which they can is to ensure the accountability of going to take action to show that obtain access to student government, representatives to their constituents. even in spirit it will not go against which is spending and utilizing state Without public access, students are the Bagley-Keene Act." money. Student government must be denied the opportunity to know, and Although the 1983 amendment to accountable to tbe students it is therefore comment, on what affects the Bagley-Keene Act specifically representing and the students should their lives." _

- --

Spring 1985 SPLC Rapon 27. MANDATORY FEES Mandatory fe es A legal right to fu nding? In 1982, the Board of Regents fo r the University of Minnesota announced that the portion of mandatory [I]f a coUege has a student newspa­ student fees used to subsidi2e the campus newspaper, the per, its publication cannot be sup. Minnesota Daily. would be refunded to any student upon pressed because college officials request. The action fo llowed a series of angry complaints dislike its editorial comment . . . and an atmosphere of public outrage resulting from the Censorship of constitutionally pr0- Daily's publication of a "Humor Issue," which included tected expression cannot be imposed cartoons and advertisements satirizing social, political and by suspending the editors, suppres­ religious groups and a "blasphemous 'interview' " with sing circulation, requiring impri.m&­ Jesus Christ on the Cross. I With a possibly fatal restriction tur of controversial articles. excising placed on the papers financial lifeline, the Daily responded repugnant material, withdrawing fi­ by filing a lawsuit, asking the coun to restore the fo rmer nancial support, or asserting any system of funding. The paper argued that the funding other fo rm of censorial oversight modification. which created a cutback: in the amount of based on the institution's power of money the paper received, violated the Daily's FIrst and the purse.' Fourteenth Amendment rights.1

The crux of the matter is the motivation behind the I� LEOAL school's action. If the action is substantially motivated by the content of the newspaper, it will usually be fo und in violation of the First Amendment The publication has the ANALYSIS responsibility of convincing the court that the action had both a content-related motive and an adverse effect on the publication.1 The latter can be overcome, fo r example, by A vast majority of college student publications like the showing a monetary loss or a chilling effect on editorial Daily are susidized with a portion of a mandatory fe e policy as a result of the withdrawal. The fo rmer is the assessed every student each year by their school.1 These essence of the pUblication's First Amendment claim and is fees are usually included with tuition in a student's met by showing the relationship and prorimity between semester bill. This subsidy, while usually not the publica­ the action and content. In Stanley v. Magralh, the Daily tion's sole fo rm of support, nevertheless constitutes a met its requirement by showing that the action - a sizeable slice of the publication's annual budget.· Conse­ modification allowing fe es used in funding the Daily to be Quently, loss of even a small percentage of this amount refunded - came on the heels of a public clamor could have a serious, possibly fa tal, effect on the paper's concerning the content of a recent issue, and moreover, operation. that the action was implemented onJy at the university campus where the Daily was published' Editors' and advisers' concern over the revocation of their funding by the school is justified. A school adminis­ Once the publication has met these requirements, the tration may under certain circumstances terminate (,. responsibility shifts to the school. If the school can show modify this support. What happens when a school - like that more likely than not a permissible motive existed and the University of Minnesota - decides to tenninate or that motive would have brought about the action regard­ modify the financial support to a student publication? less of the established impermissible motive, the publica­ Does a paper have any protection from being hung by the tion's claim will fail. In dicta., the Stanley court stated, purse strings? "[ilf the Board of Regents would have changed the funding mechanism simply because of student's obj ections The answer, characteristic of.the law, is - it depends. A [to the system], it should prevail here, even ifoppos ition to school is under no specific legal obligation to establish the Daily's contents was also in the board's collective support for a student publication. Once it bas, however, mind."9 Tbe court, however, fo und that the university COU1'U will carefully review any revocation or modification fa iled to establish sucb a motive and the action was of this support. This review will be applied to any public deemed unconstitutional. school or private school where state action, an l e ement needed before the school is subject to constitutional Student publications are therefon: constitutionally pro-­ restrictions, is established.� tected from such actions when they are shown to be not content-neutral. But a school is not pecluded from tenni­ Certain constitutional protections are afforded to a nating fmancial support of a student publication fo r rea­ student publication once it has been established by a sons unrelated to the First Amendment This allowance is college: understandable since, fo r ex ample, a school in a bud&et

26 SPlC Report Sp(lng 1985 MANDATORY FEES

SQueeze [not an unfamiliar situati on] may find itself In Kania v. Fordham, J1 tbe Fourth Circuit Court of baving to revoke or reduce support fo r the student Appeals held that the University of North Carolina's use newspaper solely out of fiscal necessity. Editors and of mandatory fee s to subsidize the campus newspaper, The advisers, however, should be wary of the justifications Daily Tar Heel, did not violate the plaintiffs' Fourteenth accompanying any withdrawal of funding and Ulke a bard Amendment rights. The plaintiffs, a group of students, look at the school's motivation fo r any improprieties argued that in using their fe es to fund Th e Daily Tar Heel inconsistent with the publication's constitutional protec­ the university required them to subsidize the publication tions. of views with which they disagreed, thereby violating their This restriction on the school's conduct concerning constitutional immunity from coerced expression under funding also defeats the complaints of the students who the Fourteenth Amendment. ll The co urt rej ected this pay these fees every year. Butdoes this also preclude them contention. Acknowledging the school's role as a "market­ from questioning the decision of the school to fu nd the place of ideas,"19 the court stated that the key issue was publication in the first place? whether Th e Daily Ta r Heel playeda part in that fo rum.20 Case law indicates that courts will generally allow a The court determined thatthe Ta r Heel did function as an school to choose who it will fund with the collected fe es integral educational element in the fo rum. Consequently. and how much each organization will receive so long as although the Fourth Circuit agreed that the plaintiff's the school is not discriminatory in its distribution and immunity was restricted, it concluded that the restriction does not promote or impose one particular viewpoint with was minimal and indirect and did not violate the Four· the fees , whether it is social, religious, economic, or teenth Amendment in view of the fa ct that the newspaper r politica1.IO increased the overall exchange of ideas.2\ The United States Supreme Court has yet to hand Specifically, the court stated, "[t]he government may down a decision on this point In 1974, however, the abridge incidentally individuals' rights.of free speech and Court did handle an analogous situation in Abood v. association when engaged in furthering the constitutional Detroit Board of Education.11 In Aboodt he Court upheld goal of 'uninhibited, robust and wide open' ellpression" the assessment of a mandatory "�rvice fee" upon non­ [emphasis added].ll In its rationale, the court stressed union employees as constitutional when it is used only fo r several aspects of the paper's situation besides the newspa­ collective bargaining, contract administration and griev­ per's vital role in UNCs "educational mission."23 First, ance adjustment and not to support the union's social or tbe newspaper was editorially independent from and political objectives.12 This distinction in function has been financially dependent upon UNC. These indicate both the cited by lower courts when dealing with schools' student newspaper's need fo r the system and that the uni versity activity fee systems. I) did not use the funds to exercise censorial control over the Several courts have determined that where a school paper. Moreover, the plaintiffs fa iled to show that the Tar decides to subsidize an organization it has classified as a Heel was inaccessible to opposing views. fo rum participant, co nstitutional challenges by the fee This rationale was recently extended to refundable fe e payors against the fe e system used will fa il unless the systems. In general, a refundable system allows any payors can convince the court that this classification is student to request a refund of a portion of her activity fe e wrong.l�A fo rum participant is an organization which the collected by the school which is used in a way that a court determines has a role in the school's role as a student thinks is improper or with whicb she simply "marketplace of ideas."\� When a school classifies an disagrees. Such a system may be viewed as a compromise organization as such, the courts have said they will respect to the situation which arose in Kania in that creating an the school's choice most of the time.t6 As a result, opportunity fo r a refund would eliminate similar chal­ challenges by students will usually faiL lenges to the fee system.

SprIng 1985 SPLC Report 29 MANDATORY FE ES

the New Jer sey In Gaida v. Rutgers.2• District Court rej ected a constitutional cballenge of a mandatory-but­ refundable fe e system employed at Rutgers, a state univer­ sity. Here the students were required to pay the fee but could later request a refund by submitting a fo rm pro­ vided by Rutgers. The fe e in question helped fund the New Jersey Public Interest Group (PIRG), a nonprofit, nonpartisan corporation engaged in research and lobbying. Plaintiffs in GaJda asserted a charge similar to that in Kania, adding that the refundable nature of the fee system "did not cure the constitutional infinnity."lS The district handled this contention by first addressing the issue discussed in Ka nia. The threshold question was whether PIRG was a "forum partici pant."26 In other

words, was the group an educational function - as was the Tar Heel in Ka nia - or essentially a political action group with only an incidental educational component If PIRG existed as tbe latter, the funding scheme would probably be fo und unconstitutional, si nce it would consti­ tute a promotion by the school of a political and social point of viewY The court, based on its deference to the university's classification of the organization and other evidence, concluded PIRG was indeed an element of Rutgers' educational mission. The refundable system used by RutgerSwas upbeld. The Gajda ruling seemingly wouLd apply to a student publkation as well. Certain similarities between PIRG and a student publication makes the application quite logical. A publication has a more obvious educational function than an organization such as PIRG. This makes it harder fo r the plaintiff to rebut the university's classification. Moreover, unlike many student publications, PIRG was not dependent upon student fe es. Therefore a court might

AWARD

Scholastic Press Freedom Award

In November, three young women Nominees fo r the award should be who fo ught their old high school fo r a responsible representation of press over two years fo r the right to pub­ freedom through writing or actions lish articles relevant to the lives of and the ability to raise difficult and their fe llow students were awarded necessary issues in news coverage. the first Scholastic Press Freedom Nominations of any person, stu­ Award. dent newspaper, student magazine, Cathy Kuhlmeier, Leanne Tippett yearbook OT student radio station and Leslie Smart continued to fight will be accepted. Nominations fo r what they believed in - all the should clearly explain why the nomi­ way to fe deral court - even though nee deserves the Sc holastic Press tbey had graduated from high schooL Freedom Award . Each year, the Scholastic Press Nominations must be received by Freedom Award will be given to August 1 of each year to be consid­ students or student media who, like ered fo r that year's award. Cathy, Leanne and Leslie, fight for Send nominations to: the First Amendment rights of stu­ Scholastic Press Freeeom Award dents. The award is given jointly by StudentPress Law Center the Student Press Law Center a.nd 800 18th Street., N.W. the National Scholastic Press Asso­ Room300 ciation/Associated Collegiate Press. Washington, D.C. 20006 •

30 SPLC Report Spring 1985 MANDATORY FEES

be even more hard pressed to strike down any system, 21. Id. at 480.

h h r refundable or m ry , the resu lt 22. ld. w et e an dato when end might be the possible shutdown of the publication. 23. ld. These decisions provide some sense of security fo r 24. 589 F. Supp. 479 (D.N.J. 1984). student publications or should at least alleviate the fear of 25. Id. at 481. l control of a pu li t the 26. editoria b ca ion via pocketbook. The Id fe e system method of funding student pUblications is 27. See supra note 10 and accompanying text. • commonplace and constitutional. Further, student news­ papers funded through such a system, whether mandatory or refundable, are protected fr om influence upon their editorial policies through the threatened loss or modifica­ tion of this subsidy.

NOTES 719 F.2d 279, 280 (8th 1983). I. Sranely v. Magrath, Cir. 2. Id. at 282. 3. Studies show that 13.5 percent of school newspapers are com pletely fu nded by the institution and 56.3 percent receive some funding. L. Kopenhaver, "Publi­ cations Budgets: CMA survey reveals wide variety of " funding programs , 23 College Media Review 8, 9 (1984). To the author's knowledge, there are no public high schools which exact mandatory fees from stu­ dents, and any such fee system used in parochial or private schools would be private action beyond the reach of the Constitution. See infra note 5. Conse­ quently. the case law discussed would probably not extend to the high school level. 4. 23 College Media Review at 9. 5. The Constitution sets fo rth restrictions upon the government, not private parties. First Amendment claims, such as the one in Stanley.require the presence of state acti on when the claims are asserted against private entiti es. State action comprises a variety of things, discussion of which is beyond the scope of this article. 6. 477 2d 1 97 ) Joyner v. Wh iting. F. 456, 460 (4th Cir. 3 (emphasis added). 7. 7 19 F.2d at 28 1. See Girhan v. Western Line Consol­ idated Sc hool Disl. , 439 U.S. 410 (1979); Mi : Healthy School Disl. Bd. of Educ. v. Doyle. 429 U.S. 274 ( 1 977). 8. 7 1 9 F.2d at 284. d 9. Id. at 283. �� \T OF' A N��e:. 10. A. Gibbs and G. Crisp, "The Question of First Amendment Rights vs. Mandatory Student Acti vity �"t �.k.YoCJ� Fees", 8 Jo urnal of Law and Education 185 (1979). II. 43 1 U.S. 209 ( 1 977). ' ''' .5'". 12. Id. at 235. 13. 702 F. 2d 475, 4 79-80 (4th Cir. 1983). 14. 702 1983); Kania v. Fordham. F.2d 475 (4th CiT. Blousrein. 58'} Supp. 479 op. GaIda v. F. slip (D.N.J. June 20, 1984). 15. 702 F. 2d at 477, citing Healy v. Ja mes. 408 U.S. 169. 180 ( 1 972). 16. ld. 17. 702 F.2d 475 (4th Cir. 1983). 18. Id. at 477 and cases cited therein. 19. See supra note 15. 20. 702 F.2d at 477.

Spring lQ85 SPlC Report 31 ADVERTISING RESTRICTIONS

Money is not the question Advertising in the student press

Just how much control can a audience deserve a commercial "provides only indfective or remote school exercise over the advertisi ng speech classification. support fo r the government's pur­ that goes into its student publica­ In Central Hudson. the Supreme pose."? Moreover, the regulator car­ tions? It's a question that many Court reemphasized that even purely ries the burden of demonstrating that student journalists and school ad­ commercial speech was entitled to its interest cannot be protected in a ministrators are asking these days. First Amendment ' protection. The less extensive manner, by a warning Most agree that the non-advertising court established a four-part analysis or disclaimer for example. "In tbe columns of a student newspaper, to determ ine when a state or some­ absence of a showing that a more magazine or yearbook are beyond one acting on its behalf could consti­ limited speech regulation would be the control of school officials. Unless tutionally restrict commercial ineffective," the Court will refuse to the school can prove that certain advertising. The four steps used by approve an advertising restriction . material is obscene or libelous or the court were: "To the extent that tbe order sup­ that it will create "a substantial dis­ I) Is the speech protected by the presses speech that in no way im­ ruption of or material interference First Amendment? To be protected, pairs the State's interest . . 0, [it) with school activities,"1 the school commercial speech must concern violates the First and Fourteenth

d ­ probably cannot stop publication. lawful activity and not be mislea Amendments and must be invali­ ing. dated."s 2) Is the asserted governmental In Tinker, the Supreme Court said interest substantial? that the First Amendment rights of 3) Does the regulation directly students were not coex.tensive with advance the governmental interest those of adults. But the, Court did set asserted? a standard fo r limiting speech in the 4) Is the regulation more extensive school environment. "[WJhere there than is necessary to serve that inter­ is no finding and no showing that However, commercial advertising is est?6 engaging in the forbidden conduct not entitled to this same high stan­ The court made clear that it would ' materially and substantially dard of treatment. According to the would not defer to the judgment of interfere with the requirements of Supreme Court, the protection af­ the state or its agent on the third and appropriate discipline in the opera­ forded commercial speech is less fo urth parts of the analysis . A regula­ tion of the school,' the prohibition than that afforded other constitution­ tion of commercial speech will not [on speech) cannot be sustained..

--:-:--=--=------_._------_..... _. _------32 SPLC Report SpOng 1985 ------LEGAL ANALYSIS ------

e _ speech in question. Because commer­ second part of Central Hudson's " co mpre h nsi ve auth orit y . . of school officials . .. to prescribe and cial s peech "is not entitled to the four-part analysis. In light of the control conduct in the schools"IO same degree of protection as other special situation of the school envi­ gives them greater power to control types of speech," the court deter­ ronment, avoiding a material disrup­ lesser protected commercial speech. mined that the school's authority to tion would be a s ubstan tial interest if ll The only case to deal specifically halt and ban was strengthened. asserted by the schooL It would not with censorship of commercial ad­ But Williams never really at­ be a substantial interest if asserted by vertising in a student newspaper is tempted to reconcile the commercial some other agent of the state. ThUs, speech and Tinker theories. Rather it as the Supreme Court determined in Williams v. Spencer. II Although the case came before the decision in contrived Tinker and casually men­ Tinker. those maleing regulations in­ Central Hudson, it was after First tioned commercial speech. One must side the school environment have Amendment protection of commer­ look to other cases to help develop a greater authority than do those out­ cial speech had been recognized by commercial student speech standard. side of it. the Supreme Court in Virginia Board Two recent cases noted both the The school's ability, as Tinker reaso of Pharmacy. In Williams. the special nature of commercial speech requires, to " nably forecast and

Fourth Circuit upheld a school dis­ and the requirements of Tinker. pro ve" that a material disruption trict's confiscation of an unofficial American Future Systems v. State will occur without the regulation student newspaper that contained an University of New Yorkl] and Ameri­ embodies the third and fourth parts advertisement for drug parapherna­ can FWure Systems v. Pennsylvania of Central Hudson's analysis. Show­ lia. The court in Williams first held State Universityl� dealt with universi­ ing that the regulation goes directly that the substantial disruption re­ ty regulations prohibiting group sales to avoiding the material disruption quirement of Tinker was not in­ demonstrations in residence halls. In in the least restrictive way is the tended by the Supreme Court to be the words of the New York court, its burden placed on the school implicit the only pennissable justifi cation for task was to "measure the regulation in Tinker.16 Thus, if the school can curtailment of student speech. The against the Central Hudson standard meet the Tinker requirements, the Fourth Circuit said that avoiding the with due consideration for the uni­ four parts of the Central Hudson analysis will be met and commercial encouragement of actions endanger­ versity's educational object ives ."l s ing the health and safety of students Both courts found that the uni versi­ speech can be permissibly regulated was an equally sufficient reason. ties could not meet the requirements the same as non-commercial speech. ti of Central Hudson. Practically. it seems that ad vertis­ Merely as an "addi onal reason for upholding the prohibition" the court What these cases suggest is that ing in a student publication will noted the commercial nature of the Tinker considerations fall within the seldom threaten material and sub­ stantial disruption of the school en­ v m n iron e t. In Portland Women's Health Center v. Portland Commu­ \ nity College. the court found no ---� suggestion that an advertisment for legal abortion services would satisfy that requirement}? Even the Fourth Circuit found no such threat in Wil­ liams. More often an interest such as that of protecting the health and safety of students as asserted in Wi/­ liams will be presented, and a school will have the difficult job of showing it to be a substantial governmental interest. Moreover, a restriction on advertising will seldom be more than an "ineffective or remote support" for the asserted purpose. When stu­ dents see the same ads every day on television or in magazines and news­ papers in their own school libraries, restrictions in the student press will be of little consequence. If the schools interest in avoiding the dis­ ruption "could be served as well by a more limited restriction on commer­ cial s peech, the excessive restrictions cannot survive."I. As the Court in Central Hudson suggested, warnings or disclaimers in many situations will be appropriate less extensive restrictions.

Spfing 1985 SPlC Report 33 LEGAL ANALYSIS

�,"",,-.;. . . Some � commercial advertlsments this advertising restriction argument. rights,l3 Thus, whether a right of in high."$ehOOi" publications, fo r ex­ First. alcohol advertising restrictions access exists even when the school am*·�·t1iose 'selling alcohol or ciga­ might be allowable because of the has no control over advertising poli­ rett� might be prohibited as Twe nty-first Amendment, which � cy is not clear. When advertising "conCerning unlawful activity." As­ pealed Prohibition. The language of restrictions are thrown into question, sumedly all high school students that amendment has been recognized issues like these are likely to be would be under the legal drinking as giving the states special authority raised. age in a 21-year-old state. Under to regulate advertising concerning Summarized, the standards of and Tinker Centra! Hudson 's first part, such alcohol. 20 At least two Un ited Sutes Central Hudson indicate advertisements would not be pro­ Circuit Courts of Appeals have that avoiding a material disruption tected by the First Amendment. upheld general restrictions on alco­ of school acti vit.i.e8 is a substantial However, the illegality Question is hol advertising.ll Perhaps a public state interest toward which a state not so clear when dealing with ciga­ school as agent of the state could can directly and restrictively regu­ rettes or with alcohol in an 18-year­ make its own restrictions fo r its late. Of course, a school's power to old state or in the college environ­ student publications that a court prevent libel and obscenity is no ment. Statutes prohibiting the sale would also uphold. more restricted fo r advertising than and use of cigarettes vary fr om state The second issue is whether an it is for editorial content. But beyond to state, with some placing restric-­ advertiser has a First Amendment this special treatment given student tions only on those under age 16. right of access to the fo rum of a expression, . a regulation of the con­ Many. if not most, high school stu­ public school's newspaper. Some tent of commercial advertising in dents are over that age. Similarly, courts have suggested that she does,n student publications must meet the even in those states that have a while another has said that the state same requirements as anyother regu­ drinking age of 21, the majority of a has no right to 'iflterfere with the lation of commercial speech. state university's students may be student editor's First Amendment legal drinkers, not to mention the fa culty and staff that make up a publication's readership.19 Arguably, if the activity were legal FOOTNOTES Sept. 4, 1981).

fo r even one person who would see - 1. Tinker v. Des Moines Indepen 18. Central Hudson, 477 U.S. at 565. Lhe advertisment, it would not con- dent Community School District, 19. See Kernal Press, Inc. v. Alcoholic cern unlawful activity per se, and 393 U.S. 503, 514 (1969). Beverage Control Board, No. thus it would deserve First Amend- 2. 447 U.S. 557 (1980). 8761 1 (Franklin, Ky., Or. Ct. ment pr tection· An adverti�ment ? 3. 393 U.S. 503. June 8, 1977) (almost 7,000 fa e- encouragmg rea ders to vote 10 an ulty and staff members plu 57 . 4. Virginia State Board of Pharma- s u�ommg eI ect' Ion d oes not concern percent of the students at Univer- . cy v. Virgi nia Citizens un 1 aw ful aCl!vl"t y stmpJ y because Consumer sity of Kentucky were over 21). Council. - 425 U.S. 748, 762 some who read it will be underage or (1976). 20. California v. 409 U.S. convicted fe lons who legally cannot LaRue. 109, 114 (1972). do so. However, a school could still 5. 376 U.S. 254 (1964). 2 L Dun-agin v. City of Oxford. 718 F. assert that its interest in protecting 6. Ce ntral Hud on. 447 U.S. at 566. s 2d 738 (5th Cir. 1983), cert. den- even one student fr om an illegal 7.. Id at 564 n. 6. ied. No. 83-1221 (U.S. June 25, activity is substantial. The leey bal- 8. Jd. at 570-7 1. 1984); Oklahoma Telecasters As- ancing by a court would most likely 9. Tinker. 393 U.S. at 509. sociaJion v. Crisp, come under Ce ntra! Hudson 's fo urth 699 F.2d 490 (lOth Cir. 1983), reY 'd on other step in determining whether the re- 10. d at 507. I . sub nom. Capital Cities striction is more extensive than nee- 11. 622 F.2d 1200 (4th Cir. 1980). gro unds Cable Inc., v. Crisp, slip op. at 23. essary. The percentage of students 12. ld. at 1206. will 22. n fo r whom the activity is illegal 13. 565 F. Supp. 754 (N.D. N.Y. P.°rtLela nd HBeath supra · 1 ' c�:U be one relevant fa ctor. But more 7 e v. oar:d oJ er.egen ts, 306 1983). 1 R important will be the fa ct that the F. Supp. 097 (W.D. Wisc. 1969), 14. 688 F . 2d. 907 (d3 C' Ir. 1982 ). best way to fu rt her the state's interest ajJ'd, 44 1 F.2d 1257 (7th Cir. 15. St te University of New Yor , 565 would be to enforce the statutory a k 1971). F. Supp. at 763. prohibition at the place of the trans- 23. Mississippi Gay Alliance y. 16. Joyner Y. Wh iting, 477 F.2d action, rather than placing restric- See Goudelock, 536 F.2d 1073 (5th tions on protected speech. 456, 46 3-64 (4th Cir. (973). Cir. 1976), cen. denied. 430 U.S. • Two side issues may creep into 17. No. 80-558, slip op. at 6 (D. Or. 982 (1977). ------_ .. _-_.... _--_ . __ .. _ ------.)4 SPlC Report $pIing 1985 FRIENDS OF SPLC

f SPLC grate ully acknowledges the W. H. & Carol Ferry (NY) Carol Ann Hall (OH) generous support of the following The Nashville Tennessean (TN) Mary E. H ires (NJ) institutions and people, without Los Angeles Times (CA) Sylvia S. Jones (CA) whom there might not be an SPLC, Newsday (NY) CONTRIBUTORS ($25 to M9) and without whose support defend­ Lancaster Newspapers (PA) The Carencro HS Edition (LA) ing the First Amendment rights of Nebraska High School Press Sarah & Reuben Ornstein (NY) the student press would be a far Association (NE) Colorado High School Press more difficult task. Journalism Association of Ohio Association (CO) BENEFACfORS ($100 or more) Schools (OH) Missouri Journalism Education Journalism Education Association Playboy Foundation (IL) Association (MO) ABC, Inc. (NY) SUPPORTERS ($50 to $74) Connie Ruggles (FL) Sigma Delta Chi, Society of Al Scroggins (SC) U. of Cincinnati News Record (OH) Professional Journalists (IL) Tom Rolnicki (MN) Regis Boyle (DC) Gannett Foundation (NY) Morehouse CoUege Maroon Tiger The Pony ExpressJThurston HS Columbia Scholastic Press Advisers (GA) . (OR) Association (NY) Nancy Green (TX) Diane Bolz (CA)

YEARBOOK CONTRACTS ------Yearbook Local photographers are raising questions about Contracts: how you are doing business.

Yearbooks seem synonomous with pictures; a yearbook: within the managerial control granted by state legis­ sans photographs would be a pretty dull yearbook. Year­ latures.1 Moreover, the scope of this power is broad.2 As a books usually include the work of both student and result, the emphasis shifts to the validity of the contract professional photographers, so schools and students often under antitrust law. work closely with a local professional photographic service The case law on this point is sparse, but generally holds during production. This relationship between school and that an exclusive contract given to a photographer or a photographer recently has given rise to two questions: publisher is not objectionable as violating antitrust law, Does an exclusive contract between the two precluding the especially in the case of the contract awarded to the lowest use in the yearbook of any other professional photogra­ and best bidder.) pher's work violate federal antitrust law, and is the payment of a commission or "finder's" fee to a school by the photographer for the award of the busi�s likewise unlawful. As esoteric as this first question may appear on its face, I-LEGAL it creates serious concerns. Several high school (and college) yearbooks have been threatened with antitrust suits by professional photographers who claim the exclu­ AIALYSIS sive contract made with another service violates antitrust laws. Antitrust laws preclude conduct which may lessen or For the school's conduct to violate the Sherman Act, a restrict competition. Enforcement of these laws is instru­ federal antitrust statute, the agreement must unreasonably mental in preserving the free and open marlcetplace. The restrain trade, or the conduct must constitute an attempt possible ramifications of an antitrust charge include judi­ at monopolization.4 cial termination of the contract and the assessment of An exclusive agreement is not an unreasonable re­ treble damages, which require the school to pay triple the straint, especially when it results from a bid system. In a dollar amount of injury shown. With the possibility of the bid system, an organization presents an "item," such as a school's liability running into thousands of dollars, the building project Or business opportunity, to a general question is less abstract than it first appears. group of interested parties. They each, in turn, confiden­ The charges asserted against a school raise several more tially inform the organization what they will offer in questions: Does the school have the power to contract a exchange for the "item." The organization considers each photographer in the first place? If so, can the agreement be bid and chooses the one offering the best deal. exclusive, to effectively protect the contracted photogra­ Most schools use such a system to distinguish among pher from competition? Does the school's control o ver the potential contractors, then select the party submitting the yearbook constitute an illegal monopoly? most attractive bid. Assuming it is operated legitimately, All high schools have the power to contract. It exists this process would seem to promote competition by

Spring 1985 SPLC Report 35 YEARBOOK CONTRACTS

encouraging bidders to offer their best work at their lowest affordable price. In fac t, rather than unreasonably re­ straining competition, a legitimate bid system represents model competition. One court fo und such a contract essentially the same as the award ing of a legitimate franchise.� The contract in question, the product of a bid system, authorized a studio to photograph students fo r school ID cards and restricted use of the school premises to that studio only.6 The plaintiff contended that the restriction exceeded the school's statutory powers. The court disagreed, reasoning that if a school could not protect a valid franchise from /�tition, there would be n

particular line of commerce or products such as auto­ The Robinson-Patman Act precludes the payment or mobiles or women's shoes. But a monopoly does not e",ist acceptance of any compensation by anyone involved in just because the product said to be monopolized differs commerce except fo r services rendered., unless otherwise fr om others.J2 It must lack reasonable interchangibility in exempted.14 Its purpose is to eliminate the use of kick­ Quality and use with other products.lJ Take for example a backs in the buying or selling of goods or services. company which produces all the cellophane in the world. The restrictions of th e Robinson-Patman Act are specif­ It would not be considered a mooopoly because cel lo­ ical ly avoided if the payment is a fee fO T services provided phane itself is not a relevant market. Other wrappi ng to the photographer or if the entire transaction is exempt materials, such as saran wrap and wax paper, would be fr om the Act.IS available, and although they are somewhat different from The relevant exemption is section B(c) of the Robin­ cellophane, they are interchangeable. The same applies to son-Patman Act, usually referred to as the Nonprofit school yearbooks. At the most basic level, one yearbook is rnstitutions Act. The Robinson-Patman Act does not the same as another. Simple exclusion fr om one's school apply to purchases of supplies by a school fo r its own yearbook does not prevent one from going to another use.16 Thus applicability depends on whether the photo­ yearbook. Even if the school was able to fit the role of a gra phs constit�te "supplies," and fu rther, if these supplies seller, the yearbook cannot be classified as a relevant are fo r the school's "own use." market; itself Burge Bryant as a buyer of services, it cannot in be a In the only court opinion on the point, v. market. The idea that a single entity would per se be a Public Sch ool District of Saline Co untY, 17 the Eighth

36 SPLC Report Spring 1985 YEARBOOK CONTRACT�

Circuit Court of Appeals held that a contract between a tion. If no such exemption exists, these alternatives may school and a photographer, which contained severa 1 provide a way to avoid tbe state statute: unique requirements including the payment to the school I. The school may set up a system where it buys the of a 10 percent commission for photographs sold. was photogaphs wholesale and sells to the students for exempt from the Robinson-Patman Act. The court tirst retail� this will, however, require some capital outlay, found no trouble including photographs within the genera1 2. The school could place in their initial bid offering a flat meaning of "supplies.",q The court thcn said that the fee requirement ofuX" amount per student enrolled. photographs would be for the school's "own use" if they 3. If a charge for services rendered is required by stale could be reasonably "regarded as use by the school in the statute merely to be "reasonable," - as with tbe sense thal such use is a part of and promotes the ... Robinson-Patman Act - rather than restricted to the overall education of its students."2o The coun believed actual cost of the services provided, any sort of com­ that the use of the photographs for student IDs, in the mission could be included in that charge. Burge sug­ school yearbook and on school bulletin boards, adequately gests that this would be a matter of bargaining between fulfilled this·definition.21 The transaction thus fell within the parties with no significant differences in levels of the Nonprofit Institutions Act and was not subject to the bargaining power and therefore not reviewable under Robinson-Patman ActY antitrust laws, The court also considered the assertion that the com­ These suggestions merely attempt to elude a situation mission was simply compensation for services provided typical of the difficult nature of antitrust law, and are not by the school, such as building space and clerical work. cut and dried solutions. Schools in this dilemma should Although it was not the basis for the court's decision, the consult an attorney knowledgeable i.n this area of the law court suggested that a school could charge a reasonable before taking action. Without further judicial clarification, amount for such services, and that amount could be set by possible resolutions remain nothing more than thoughtful the two contracting parties.2) In other words, a school guesswork. could charge whatever a photographer would be willing to pay so loog as it was not outrageous and such an NOTES agreement would not be considered a IUckback. 1. See, e.g., Northwest School Dis!. Y. Pittenger, 397 F. Supp. 975 (D.C. Pa. 1975); Gragg Unified School The Burge opinion, however, is not the save all it may v. seem. While Burge may be followed by other federal Dist. No. 287, 6 Kan. App.2d 152, 627 P.2d 335 (Kan. courts, it applies only to federal antitrust laws. Qualifica­ C .. App. 1981); School Dist. No.1 of Morgan County tion under the Nonprofit Institutions Act does not nec­ Y. School Planning Committee of Morgan County. 164 78 (1968). essarily exempt the conduct from stale antitrust laws. In Colo. 541, 437 P.2d 7 states with their own antitrust laws, the opinion might be 2. Statelegislatures authorize schools to contract for most insufficient protection. For example, Virginia has a state necessary supplies and services and act as the sole antitrust law similar to the Robinson-Patman Act.14 Its source of limitation. See supra note I. 3. LaPorte Escanaba Area Public Schools, counterpart to the Nonprofit Institutions Act, however, is See generally v. N.W.2d comparatively narrower.l� It is consequently debatable 51 Mich. App. 305, 214 840 (Mich. 1974); whether a transaction like the one in Burge is exempt. In fact, Virginia's Attorney General has advised that it probably is 001.26 In dealing with state antitrust laws, schools should look first for a state counterpart to the Nonprofit Institutions Act and detennine whether it is applicable to the situa-

Spring 1985 SPlC Report 37 YEARBOOK CONTRACTS

So uthwest Broadcasting Co. v. Oil Center Broadcasting 14. The pertinent provision states: Co. . 210 S.W.2d 230 (Tex. Ct. Civ. App. 1947). It shall be unlawful for any person engaged in 4. Section I of the Sherman Act states in pertinent part, commerce, ... to pay or grant, or to receive or "[e]very contract . . . in restraint of trade commerce accept, anythina of value as a commission, : .. or among the several States is declared illegal." Section 2 other compensation, . . . except fo r services ren­ reads: "[e]very person who shall monopolize or at· dered in connection with the sale or purchase of tempt to monopolize ... any part of trade or com­ goods, . . , either to the other party to such a merce among the several States . . . shall be deemed t.ransaction or to an agent, representative, or other ;: , iuilty of a felony. " 15 U.S.c. 1, 2 (1981). For a section intermediary ... . 1 violation. the U.S. Supreme Court has held that the IS U.S.c. section 13(c) (1982). restraint must be unreasonable. Standard Oil of New 15. SHsupra note 14 Jersey v. United Slates, 221 U.S. 1 (191 1). 16. The section provides as fo llows: "Nothing in section 5. LaPone v. Escanaba Area Public Schools, 214 N.W.2d 13 to Ilb and 218 of this title, shall apply to purchases 840, 843 (Mich. 1974). of their supplies fo r their own use by schools, colleges, 6. /d. universities.. public libraries, churches, hospitals, and 7. Id. charitable institutions not operated fo r profit." 15 8. See, e.g., United States v. United States Steel Corp.. U.S.C. section l3(c). 2SI U.S. 4\7 (1920). 17. 520 F. Supp. 328 (D. Ark.), ajJ' d 658 F.2d 61 1 (8th Cir. 9. See, e.g. , HeatranSjer v. Volkswagenwerk, A.G., 553 1981 ). F.2d 964 (5th Cir.) cert. denied, 434 U.S. 1087 (1978) 18. ld. at 332. (7 1 to 76% sufficient for a direct inference). 19. Id. 10. See, e.g., United St ates v. Un ited States Steel Corp. , 20. ld. at 33 1. 25 1 U.S. 417 (1920); United States v. Aluminum Co. 21. Jd. at 332. O!Am erica, 148 F.2d 416 (2d Cir. 1945). 22. 1d. II. Un ited States v. E.I. duPont de Nemours & Co ., 35 1 23. Id. at 333. U.S. 377, 389 (1956). 24. Va. Codesection 59. 1 -9.7(c) (1982). 12. Jd. at 394. 25. Va. Code section 59. 1·9.4 (1982). 13. Jd. at 395, 400. 26. 1976. 1 971 Va. Att'yGen. Rep. at 229. _

CHANGING OF THE GUARD

We are pleased to announce that S. Mark Goodman (left) has been hired to replace J. Marc Abrams (right) as Executive Director. Mark is a native of Versailles, Mo. He obtained a B.J. with honorsfr om the University of Missouri S<:hool of 1 Journalism in 1982, where he ranked in the top five percent of his class all four years and was a member of both Sigma Delta Chi and Kappa Tau Alpha, the Society fo r Professional Journalists and the journalism hon­ orary. He then moved to Duke UniveRi. ty, where he just completed his Juris Doctor degree. He took the February Bar examination. and hopes to be admitted in Georgia and the District of Columbia. Mark also becomes the fint SPLC Executive Director to rise from th ... ranks of intern alumni; he worked with us last summer as a legal sum­ mer associate. Marc Abrants will be staying in· valved with SPLC as a Vice �i­ dent of the Board of Directors. _

38 SPLC Report Spring lQ85 EDITOR Peter %LMentor UflV,SrtV oascachu.tt Contents WTER S Mark Goodman Marc Abfeme Cover: This issue, the SPLC Report ex Duke Urwere $choø øf Law J Student PrØs Law center amines the dollars and sense — the The ichard iØIey — of rei L. Prms business side student publica Vawereetaw SchoO lJawerntty cfeonkirr tions. cows AT Jack Olokason Aaron tL Ethics 3 Best Jack Otckaon Sruce Von Distinguishing...... law and ethics dkector Courts J< Marc Abrens • Was endorsing Mondale illegal?...... 6 • Gambling on free speech in Nevada 8 Ticket • Georgia Supreme Court rebuffs dogged.... editors 9 Corporate ord of Directprs IdaroA*ranta Esq Pr. obørt *tipht npw dv0; — Libel Dr Ddtothe Bøwbe Or l4iartLodplanhaarr’ • Suits multiply against conservative paper...... 10 We1an4ten W ewiop(cr rnor d1erew • “Beer and munchies” await day in court ...... 11 In Jack tJea4au lq, Tto • A question of “rape” •...... ii pøpr dCOwew aob44w • Class project produces libel judgment ...... 12 chtisopher Faber. Eeq Qor6y MoPteihps Censorship Warnrigmn OC • Decision expected in Hazeiwood case ...... 13 Torn RoMIØI Town L Mark Oocxtrwon. mac. ac • Comic situation becomes court battle 15 • Girls of Rancho on trial 16 F; Nancy Preen Or lbenr acnoia • The Surgeon General has determined these ads are hazardous to your health 17 Carol nn I-tall Mtchaal P e dive tnte Ufwwwy Edmqnd J. SØvan Administration Mary sires • Skirting the law in Colorado 18 Yoursubscriptionsupports lioberr Tragar so • Editor moves on, policy goes nowhere 19 Dr. rks a. tngiekert lbraw • Homophobia in Nebraska 20 W,k4waarrw Sen the workofthe Student Press LawCenter Var • Students win in Louisiana—sort9 of 21 Mkherd JOhns Student Governments saint icr a paseref int*ncseaia The Student Press Law Center is the only national Please enter m subscription to SPI (. Reports. • After six years, a day in court 22 organization devoted exclusively to protecting the First [ii year at $10.00 • Student government tries to hit the Bull’s Eye 23 Amendment rights of this nation’s high school and Along with this blank I e collegejournalists. ha enclosed a heck r aones order The BPLC Raporr payable to. The Center serves as a national legal aid agency SPLç Rpc Iaibh*4 lli h Øt by Freedom ot Information providing legal assistance and information to students Sdat l%e *w srmxta4rc rm*nk koa1lw1 • Bruin helps the sun shine in 25 and faculty advisers experiencing censorship or other Student Press Law Center ieøMg dent sdh Thk $PL kj l legal problems. 800 18th St., NW *d £ro4ued nlfr* b loralism an4 law ltØ4 / Three times a year (Winter, Spring, and Fall>,the Suite 300 Center publishes a comprehensive Report summarizing Washington, DC 20006 current controversies over bte es student press rights. In Name — addition, the Reports explain and analyze complex legal yr issues most often confronted by student journalists. Stode4tt P’ew Law CMer á4peL Vet VI. 1cr. 1 tip Major court and legislative actions are highlighted. Address tIle*rateattésr Legal Analysis: The Business Side Defending your rights isn’t cheap. Subscription — lth Sweet NW, WaIlhte D cR1e6<24b> dollars form a large part of our budget. (it,State,Zip —— prigbt 1*5 $adert ris çer. A Your subscription price will help us continue to sere rawtead. Ytty a&ti9lb to Ihe WL &qe ate Student papers and mandatory tees 28 as the national advocate for the rights of student Please begin my subscription wid Report journalists. Other contributions are tax-deductible, e ElI wish to support the work of t ie Stud ‘nt Press L w (enter with a contribution in the following amount 4at Pre Uw tec *elcwmelubeiW at Beyond the bottom line: dk diiasWre eteeaa aad eMw tipe Ibast bØ 1be)Pl4 advertising and the student press 32 rhe SPLC is interested in the titles or pos tic ns f it jntm 11wd,ohstu jmfritaksnt eceirtearty b aa#III*W All orders must be pre-paid, individual subscribers: )s11wkill 1011ieSPL( Raport Is your yearbook violating the anti-trust laws? ... 35 - Now a benefit of Journalism Education kssociation Membership Spring 1985 Spring 1985 STUDENT PRESS LA W CENTER I S'-LCI non-profit org. Room 300 : 800 18th Street NW : Washington. D.C. 20006 us postage paid washington. de

permit no 4702

A TTENTION: Student Publication

-

. .J.