INSIDE: Supreme Court indecency ruling could push student broadcasters to the brink, Page 31 Tangled Web Courts send mixed messages on how far administrators’ authority extends online Page 10

Student Press Law Center EPORT R Fall 2008 VOL. XXIX, NO. 3 ALSO INSIDE: calif. lawmaker leads efforts to protect student speech, page  AND: Advice from the pros on covering the presidential nominating conventions, Page 18 Student Press Law Center EPORT INSIDE Fall 2008 VOL. XXIX, NO. 3 R HIGH SCHOOL CENSORSHIP PUBLICATIONS FELLOW: Michael Beder Yearbooks in spotlight for showing gay couples ...4 REPORTERS: Rob Arcamona, Kelsey Beltramea, Reporting on the LGBT community ......  Jimmie Collins CONTRIBUTOR: Jenny Fein High school censorship in brief ......  COVER ART: Jack Dickason SENIOR CONTRIBUTING ARTIST: Melissa Malisia ([email protected]) LEGISLATION CONTRIBUTING ARTISTS: Calif. lawmaker champions student speech ......  Hope Donovan ([email protected]), Bob Gandy (bob@bobcat- arts.com), danny phantOM (notfromthisplanet1459.blogspot. Teacher protection bill nears fi nish line ......  com) Legislation in brief ...... 

Th e Student Press Law CenterReport (ISSN 0160-3825), published three times each year by the Student Press Law Center, INTERNET summarizes current cases and controversies involving the rights of the COVER STORY: Digital dilemmas student press. Th e SPLC Report is researched, written and produced by journalism interns and SPLC staff . Courts diff er over schools’ authority online ..... 10 Th e Student Press Law Center Report, Vol. XXIX, No. 3, Fall Game aims to bring courts into classroom ...... 1 2008, is published by the Student Press Law Center Inc., 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209-2275, (703) 807-1904. New questions arise from digitizing old issues ... 1 Copyright © 2008 Student Press Law Center. All rights reserved. Yearly subscriptions to the SPLC Report are $15. Contributions are tax-deduct- ible. A membership form appears on page 39. ACCESS Reporters prepare to cover parties’ big bashes ... 1 Candidates’ records reveal free-speech views ..... 20 Access in brief ...... 2 LIBEL/PRIVACY EXECUTIVE DIRECTOR: Frank LoMonte ...... 24 LEGAL CONSULTANT: Mike Hiestand New privacy rules could hinder reporters ATTORNEY ADVOCATE: Adam Goldstein Wash. students suing over oral sex story ...... 2 OFFICE MANAGER/OUTREACH: Sunjha Hattin Courts rule college offi cials are public fi gures ..... 2 DEVELOPMENT DIRECTOR: Beverly Keneagy Brown

CORPORATE BOARD OF DIRECTORS COLLEGE CENSORSHIP Javier J. Aldape ● E.W. Scripps Company, Chicago, Ill. Editors take steps toward greater freedom ...... 2 Caesar Andrews ● Detroit Free Press, Detroit, Mich. Indecency ruling could aff ect college stations ... 1 A.J. Bauer ● Patriot Ledger, Quincy, Mass. Jerry Ceppos ● Santa Clara University, Santa Clara, Calif. College censorship in brief ...... 4 Shawn Chen ● Associated Press, Washington, D.C. Virginia Edwards ● Education Week, Bethesda, Md. Angela Filo ● Eastside College Preparatory School, East Palo Alto, Calif. LEGAL ANALYSIS Maureen Freeman ● Newseum, Washington, D.C......  Robert Garcia ● ABC News Radio, New York, N.Y. What to know before writing on the Web Richard Goehler, Esq. ● Frost Brown Todd LLC, Cincinnati, Ohio Tonda Rush, Esq. ● American PressWorks Inc., Arlington, Va. Frank LoMonte, Esq. ● Student Press Law Center, Arlington, Va. correction Rosalind Stark ● Radio and Television News Directors Foundation (retired), Reston, Va. — In the story “Private police facing greater public scrutiny” Mark Stodder ● Dolan Media, Minneapolis, Minn. in the Spring 2008 SPLC Report, Massachusetts state Sen. Reginald Stuart ● Th e McClatchy Company, Silver Spring, Md. Patricia Jehlen’s name was misspelled on page 20. Mark Witherspoon ● Iowa State University, Ames, Iowa Th e SPLC regrets the error. Organizations for purposes of identifi cation only A message from the splc

Report staff Journalism makes better students

he relentless news of layoffs and fall- high school grade-point average, and first- Michael Beder, McCormick Tribune Foun- ing earnings at media companies year college grades. The full text of Dvorak’s dation Publications Fellow, graduated from Northwestern University’s Medill may make skeptics question the report, High School Journalism Matters: Jour- Tvalue of journalism education. Two recent nalism Student Academic Performance in the School of Journalism in June 2007. He worked for four years studies make a persuasive case for why scho- 21st Century, is available at http://www.naaf- at the student newspaper, The lastic journalism still makes a difference. oundation.org/upload/foundation_pdf/ Daily Northwestern, where he In July, the John S. and James L. Knight scholatic_report.pdf. served in a variety of roles, in- Foundation released a summary of findings These findings make it all the more cluding as news editor, Forum editor and man- by researchers at the University of Connect- shameful that some school administrators aging editor. He interned as a reporter and Web producer at the St. Louis Post-Dispatch, icut and the University of Maryland, who are working so hard to make journalism un- and he was a Dow Jones Newspaper Fund interviewed more than 100,000 high school appealing and unrewarding. As you will read copy editing intern at the St. Paul Pioneer students about their attitudes toward the in our cover story, some extremists are urg- Press in Minnesota. First Amendment. ing the federal courts to ignore 40 years of The authors found that understanding legal precedent and rule that students have Rob Arcamona, summer 2008 Scripps How- of, and support for, freedom of speech went no First Amendment right to blog about ard Foundation Journalism Intern, graduated up significantly with students’ use of on- their schools, even outside of school on their from the Pennsylvania State Uni- versity in December 2007, where line media, both by blogging and by read- own time, if they can anticipate that their he majored in journalism. Rob ing Web-based news sources. Their findings comments will arouse discussion at school. served as a reporter, anchor, will be published in the forthcoming book, The SPLC is working to convince the news director and general man- Future of the First Amendment: The Digital courts to reject this dangerous power grab ager of Penn State’s radio news Media, Civic Education and Free Expression by a small minority of bad administrators station, ComRadio. In 2006 he served as an in- Rights in the Nation’s High Schools. who put the PR image of their schools ahead vestigative reporting intern at WTOP Radio. He The Knight-funded study reinforces the of their students’ best interests. has received multiple journalism awards from the Society of Professional Journalists, the findings of a report released in May by the Instead of squelching young people’s Associated Press and the William Randolph Newspaper Association of America Foun- interest in discussing the issues that affect Hearst foundation. He covered college censor- dation. Indiana University researcher Jack their lives, officials should heed the findings ship and access issues for the Report. Dvorak studied the academic achievement of these authoritative studies and nurture of more than 31,000 students nationwide. students’ enthusiasm for reading and writ- Kelsey Beltramea, summer 2008 Scripps The NAAF research found that students ing, even if that means tolerating a little Howard Foundation Journalism Intern, is a on the staff of high school newspapers or dissent — which, after all, is the reason we junior at the University of Iowa, where she majors in journalism yearbooks performed meaningfully better have a First Amendment. and political science. She has than non-participants in their aggregate been a metro reporter for The scores on the ACT college entrance exam, — Frank LoMonte, executive director Daily Iowan for two years, cover- ing courts and politics. She also served as a correspondent for The Des Moines SPLC spotlights stories that make a difference Register. She covered Internet issues, libel and privacy for the Report. Public-records laws can open up a world to the California Public Records Act: for police of discoveries, rewarding persistent journalists reports, for jail logs, and – most revealingly Jimmie Collins, summer 2008 College Media like those in Marcy Burstiner’s reporting class – for the closed investigative file of the district Advisers Journalism Intern, is a senior at the at California’s Humboldt State University. attorney’s review of Peters’ death. University of Texas at Austin ma- As a class project, Burstiner’s students These documents spoke for Peters, viv- joring in newspaper journalism with a focus on business. She took on the case of 25-year-old James Lee idly, and they told an important story that ex- worked at the student newspa- Peters, who hanged himself in the Humboldt emplifies the best of student journalism. per, The Daily Texan, for more County Jail while awaiting a long-delayed The work of these Humboldt students, than three years. She served in transfer to a state mental health facility. The and Burstiner’s tips on using open records many positions, including as news editor, a students found that Peters’ predicament was laws, are available on the SPLC Web site at: beat reporter and a feature writer. She also frustratingly common. http://www.splc.org/newsflash.asp?id=1777. held a reporting internship with the Austin The judge and prosecutor in Peters’ SPLC will be highlighting other such creative Business Journal in fall 2006. She covered case bemoaned the lack of adequate mental uses of legal tools to gather stories that make high school censorship, legislation and privacy health programs – yet no one wanted to talk a difference. We invite your submissions. Con- for the Report. on the record. So Burstiner’s students turned tact us at [email protected].

Fall 2008 www.splc.org • splc report  high school censorship Yearbooks face more scrutiny

N.M. book raises ire by including lesbian couples; staff prank in Calif. leads to greater offi cial oversight

By Jimmie Collins people think about her and she makes me feel t the end of each school year, stu- safe and loved.” dents pore over their new yearbooks, Adviser Carol Sin- looking at every picture, picking out gletary said the couples Atheir friends and signing messages they hope approached the staff will retain meaning for years to come. By the about being included time the next year rolls around, that annual in the spread. Student is all but forgotten and students are ready to editors were supportive move on to a new year of memory making. and spoke to Singletary COURTESY OF THE PLAINSMAN But students at some high schools will about the idea. clovis high school’s yearbook included photos and quotes from return to classes this fall to fi nd the hallways “We’re a fairly con- two lesbian couples in its “relationships” package. full of chatter about last year’s book — and servative community, so about possible changes to the way their when the [editors] want- yearbooks are run. ed to include the pictures I said it’s going defamatory and does not cause a material or After publishing pictures of two lesbian to make waves,” Singletary said. Because the substantial disruption. couples on the relationships page of the publication is student-run, Singletary said Th at language mirrors the standard set Plainsman, yearbook staff members at Clo- she and the editors discussed whether the by the Court’s 1969 decision in Tinker v. vis High School faced a crowd of upset com- photos would violate anything in the school Des Moines Independent Community School munity members at the last school board policy. District, which said administrators cannot meeting of the year. Th e group said includ- “It didn’t violate anyone’s privacy,” censor student speech unless there is a rea- ing gay couples in the book is not represen- she said. “Th e girls were the ones who ap- sonable forecast of “material and substan- tative of the community. Some even threat- proached my staff . Th ey were very public tial disruption” to the school or unless the ened to stop donating to school projects. about [their relationship].” speech will invade the rights of others. But student editors argued that featur- Th e school board at the Clovis, N. M., Th e current policy says school-sponsored ing the couples was a conscience decision to school decided to review the district’s pub- publications are public forums for student which they gave much consideration. lication policy and consider revising it, Su- speech and “material that stimulates heated “We just wanted to show that there is a perintendent Rhonda Seidenwurm said. discussion or debate does not constitute the diversity, there (are) gay and lesbian couples “Currently, our attorneys are reviewing type of disruption which is prohibited.” in the school and they have a right to be in the policy to determine whether the district Singletary, who resigned as yearbook ad- the yearbook just as much as anybody else — through the policy — has abdicated its viser just before the yearbook controversy, does,” Editor in Chief Maggie Chavez told responsibilities to oversee student publica- said it looks like the policy might be revised the Clovis News Journal. tions as defi ned in theHazelwood decision,” to meet Hazelwood standards so the school Th e Plainsman included a photo of Seidenwurm told the Student Press Law would have more control over content. then-sophomores Melody Trujillo and Con- Center in an e-mail. “I didn’t expect that,” she said. “Not one tezza Bonney and a caption in which the In 1988, the U.S. Supreme Court ruled of the things that we discussed was the fact girls talk about their relationship. in Hazelwood School District v. Kuhlmeier that this would result in a change in policy. Th e girls said they had been dating for that school offi cials may censor high school I didn’t realize it would be that big.” about two years and explained their feelings publications if they are not designated as But the First Amendment prohibits for each other. public forums for student expression, and if revoking students’ control over a publica- “We were just friends at fi rst but then the offi cials can demonstrate reasonable, ed- tion because the school disagrees with a dis- we started liking each other and by ninth ucational justifi cations for their censorship. cretionary editorial content decision, said grade we were a couple,” Bonney told the Th e school’s current policy says students SPLC Executive Director Frank LoMonte. Plainsman. “She’s crazy and outgoing, that’s control all content — with the help of the “Court after court has said that, as long what I love about her. Melody’s personal- publications adviser — as long as that con- as students don’t libel someone or steal their ity is her best quality, she doesn’t care what tent is not obscene, libelous, slanderous or copyrighted property or break any other

4 splc report • www.splc.org Fall 2008 High School Censorship laws, students can’t be punished for express- board member Dale Hancock told the Re- Covering sexuality ing a point of view in student publications,” public. LoMonte said. “If the Clovis school board At Charter Oak High School in Covina, — carefully retaliates against the yearbook because of a Calif., yearbook staff members will see more disagreement over the tastefulness of edi- teacher involvement in the editorial process By Jimmie Collins torial content that everyone agrees was le- rather than a policy overhaul. The school gal, the district will be begging for a First is working on refining the process that the hen student journalists write Amendment lawsuit, and it will lose.” staff members work under in order to make about sex it almost always Will Cockrell, a member of the Chris- sure errors do not make it to publication. raises administrative eye- tian Citizenship Team, which first opposed The change is a response to several pages Wbrows, but when the topic turns to ho- the yearbook spread, helped to mobilize the in the 2007-08 yearbook that had offensive mosexuality, the reaction sometimes es- community to speak out against the picture or incorrect names. calates from concern to alarm. at the school board meeting, according to The school is reprinting the pages with Over the years school officials have the Clovis News Journal. correct names after students replaced the censored student speech and expression The Christian Citizenship Team is a names of nine Black Student Union mem- — in the student newspaper, in the year- group at Central Baptist Church in Clovis bers with racially offensive fake names such book or on a T-shirt — that brings up that “monitors political actions and social as “Tay Tay Shaniqua,” “Crisphy Nanos” sexual orientation. actions that come to bear on society that and “Laquan White.” But lesbian, gay, bisexual and trans- are counter to Christian doctrine,” Cockrell Principal Kathleen Wiard said the year- gender advocacy organizations say it is told the Journal. book process usually allows page designers vital to allow youth to have a respectful “We don’t think that it reflects any- to temporarily fill in fake names until the discourse about LGBT issues. Censoring where close to the attitudes and the morals students are identified and changes are made based on that content is illegal and could of the community,” Cockrell said. “I don’t before the final copies are sent to the printer. be detrimental to students representing have a child in school but I’m appalled. If I For some reason, not all the final changes that part of the community, they say. were the parents of those kids, I’d own that were made this year, Wiard said. “There’s a consensus that we can sort school. Those are minors.” The school is working on changing the of control what young people are talking But Jessie Hardison, a yearbook staff proofing process to something more than about,” said Daryl Presgraves, a spokes- member, said she felt like the yearbook an editor or adviser simply asking if changes man for the Gay, Lesbian and Straight should be inclusive of all people no matter have been made, Wiard said. The teacher or Education Network. “The reality is their race, gender or sexuality. coach in charge of a given organization now young people are so far ahead of adults “It’s time for Clovis to come into the 21st will be responsible for filling in each student’s and they are talking about [gay rights].” century and be OK with people … Some- name and checking the final proofs. Censoring a story because it brings thing little like this goes a long way and if we “We’re doing that process now with cur- up the LGBT community makes those keep doings things like this, it might change rent proofs for the replacement pages,” Wi- students feel unsafe and apart from the things,” Hardison told the Journal. ard said. The school plans to have yearbook community, Presgraves said. Queen Creek Unified School District purchasers come in early August so they can “Is it fair to say to [LGBT] students in Arizona also is reviewing its policies and replace the pages in the books. that they aren’t as good as those students guidelines regarding student publications af- The school knows which students were who meet the approval of community ter parents complained about the yearbook responsible for the BSU name changes and guidelines?” he asked. in May. So far the school has asked for par- administrators now are trying to determine The GLSEN helps set up Gay-Straight ent volunteers to oversee the publication. how many other students were aware of the Alliances at high school campuses. The Parents were concerned about pictures situation and failed to report it, she said. network also helps schools find appropri- of lesbian couples, students with tattoos and Along with changing the process, Wiard ate ways to approach issues about sexual piercings, and teens named “best partiers” said the publication company the school orientation and harassment. holding red plastic cups. works with is going to help educate the stu- Presgraves said administrators often The district and parents said the yearbook dents on the duties that come with being censor stories in school papers out of a was “glorifying things that were inappropri- part of a student publication. general misunderstanding. When stu- ate for children in high school,” according to “The kids are going to camps and train- dents write about harassment based on an article in the Arizona Republic. ing with [the company] to talk to them sexual orientation, for example, princi- The district’s current publications policy about care and ethical concerns that go with pals often react solely because they see says the superintendent must review all stu- that,” Wiard said. something about sexuality in the article. dent publications before they go to print, Wiard refused to release the names of the “Regardless of what your beliefs are, but that did not happen this time, school yearbook adviser or the students involved in you can’t ignore that there are LGBT

Fall 2008 www.splc.org • splc report  HIGH SCHOOL CENSORSHIP people in schools,” Presgraves said. “Regard- executive director of the National less of their opinions of them, they deserve Lesbian and Gay Journalists As- Check the basics to feel safe.” sociation. Writing a story about Tom Avila, of the National Lesbian and Gay Journalists In Florida at Ponce de Leon High LGBT students just to “make a Association, offers these suggestions for students re- School, students were told they could not check mark in the diversity col- porting stories that touch on LGBT issues. display messages or symbols supporting umn” or to make people feel gay students. Principal David Davis told proud or empowered is a com- n Put your story in context beyond the school. Look into students that homosexuality was a sin. He mon pitfall, Avila said. the community, state or geographic region. forbid known gay students from speaking to “Sometimes I think the prob- n Go beyond Google. Talk to people in the community younger students and suspended 11 people lem is one of having reached that or experts at your local university or college or in an for standing up for gay rights. level in doing journalism where LGBT organization. n In May U.S. District Judge Richard you’re able to direct the passion Look at how your professional counterparts are han- Smoak ruled against Davis and the Holmes you have for the subject in the dling LGBT stories. n Consider subjects’ privacy rights. You might need to County School Board. In his written opin- ways necessary,” Avila said. use an alias or no last name in sensitive stories. ion, issued in July, Smoak said Davis is en- Sometimes, because reporters n Get a “reporting buddy” who can critique your work. titled to his opinion of homosexuality but are so passionate about the topic, n Become an expert on the information you include. is not permitted to stifle speech. The judge they begin to “compartmentalize” Prepare to answer questions the topic is likely to raise. also pointed out that while rainbow symbols their stories and forget to do the n Leave yourself time to write. Don’t rush stories on were forbidden at the school, students were basic reporting work that goes sensitive subjects. allowed to display swastikas and the Con- into any story, Avila said. Sto- federate flag. This clearly is viewpoint dis- ries about religion, immigration, crimination, he said. LGBT or a lunch menu change should all be taking time is essential when writing about a In New Mexico at Clovis High School, treated with the same basic reporting steps. sensitive subject and can often make the dif- the student yearbook, The Plainsman, is fac- Avila suggests talking to advisers or ad- ference between a story being censored by ing a battle against the community and the ministrators ahead of time to explain the the administration or not, Avila said. school board after including pictures of two story’s importance and get their support. “I fully recognize and believe in the fact lesbian couples on its relationships spread. Students often think they know more that there is additional guidance required Critics said the pictures were not rep- about the subject than they really do, espe- when you’re looking at a student scholas- resentative of the community. The school cially those who are passionate about LGBT tic publication,” he said. But administra- board is considering changing its policy rights, Avila said. But those students should tive guidance cannot imply that that there so student publications will be considered step back and ask questions. is something wrong with people who are closed forums, which would give the ad- “This is a struggle for anyone in a mi- LGBT, Avila said. ministration more control over content. nority,” he said. “We run into problems “When we’re eliminating a population While it is important to include LGBT when you tell a story believing you know from the student press, we’re sending a mes- students in the school community, articles all the answers. Find out who might know sage, and that message is that the news and in student publications have to be done for more about the subject than you.” media is not about the full community,” the correct reasons, said Tom Avila, deputy Using the basic steps of journalism and Avila said. n

High School Censorship in brief

burning an American flag and ran an Paper nearly folded editorial on the topic. after running photo, Superintendent Mike Stuart made Online his announcement in mid-June, revers- See more high school story on flag-burning ing a decision by Shasta High School briefs on the Web: http://www.splc.org/report.asp CALIFORNIA — The superintendent Principal Milan Woollard to shut down of Shasta Union High School District in the paper. Woollard had said he would Redding plans to get help from the local eliminate the newspaper class after the Woollard and Stuart both later cited newspaper to teach student journal- last edition of the paper printed. Wool- budget concerns as the primary reason ists how to make calculated editorial lard told the Redding Record Searchlight for cutting the class. Stuart decided decisions. The principal threatened to he found the issue embarrassing and the following week to give Shasta High shut the paper down after The Volcano that it cemented his decision to cut the School extra funding to support a class printed a photo on its cover of students paper. section so the paper can continue.

 splc report • www.splc.org Fall 2008 Legislation Student voices find sympathetic ear

Calif. lawmaker has been driving Yee was elected to the California force for free-speech protections State Assembly six years ago with 78 Leland Yee percent of the vote — the largest per- California senator By Jimmie Collins centage for any Democratic candidate (D-San Francisco/ with a Republican opponent that year, San Mateo)

en. Leland Yee was one of about 3,000 according to records from the Califor- Courtesy of Sen. Leland Yee’s office protesters in the 1960s who defended nia Secretary of State. He was the first Asian/ ELECTED: a little park on the urban Berkeley Pacific American to be appointed speaker November 2006 PREVIOUS PUBLIC POSITIONS: Scampus. The park was owned by the Uni- pro tempore — the second-highest position n versity of California and administrators in- in the Assembly. In 2006, he became the California Assembly n San Francisco Unified School tended to replace it with a new dormitory. first Chinese American elected to the state District Board of Education Although the park suffered temporary Senate. Yee helped transform California stu- n San Francisco Board of damage after being ripped up to begin con- dent journalism with laws that specifically Supervisors struction, it was eventually rebuilt — com- protect the free-speech rights of high school EDUCATION: plete with trees, flowers and sod —and is and college students. n Bachelor’s: now called The People’s Park. Because of his reputation, lobbyists and University of California at Berkeley Yee (D-San Francisco/San Mateo) said free-speech defenders all over the state ap- n Master’s: his passion for defending student journalists’ proach Yee first when there is a student jour- San Francisco State University n rights stems from his passion for redressing nalism issue they feel the legislature should Ph.D: what he and other students felt were wrongs address. University of Hawaii of the Berkeley administrators. “He has such a strong commitment to “I was not a journalist, but I was a pro- advancing and protecting student speech,” a pupil engaged in conduct authorized by a tester,” he said. said Jim Ewert, legal counsel for the Califor- specified provision of state law or refusing His days as a protester — and the fact nia Newspaper Publishers Association, who to infringe upon conduct that is protected that he emigrated with his family from Chi- often works with Yee on First Amendment pursuant to state law or those constitutional na when he was three and had to fight for issues. “He’s quite effective and highly re- provisions.” his citizenship — give him a unique view of spected among his colleagues. He truly un- The Association of California School the First Amendment, Yee said. derstands the need for continuing to protect Administrators worked with Yee to make “As an immigrant, when you come to student speech.” that change. this country, you begin to appreciate this Sen. Jack Scott (D-Pasadena), who is Laura Preston, a lobbyist for ACSA, has country a lot more because the citizenship chairman of the Senate education commit- worked with Yee for many years — going you have is not given to you,” Yee said. “You tee, said he has been impressed with Yee back to when he was on the San Francisco earn it. You kind of seek it out.” since he came to the Senate. school board, where he spent eight years. The First Amendment’s protections are “I’ve found him to be knowledgeable Preston said she would rank Yee in the top incredibly important and set this country and, on the other hand, willing to listen to 25 percent of legislators she works with. apart from others, he said. the possibility of amendments to a bill that “He’s terrific; he’s very open,” she said. The senator went to public school in he’s authoring,” Scott said. “We don’t always see eye-to-eye, but one of San Francisco, attended Berkeley for his Yee is hard-working and held in esteem the things I look for when working with a undergraduate degree, San Francisco State by his colleagues, which helps them recog- legislator is that they will tell me if they are University for his master’s degree and even- nize the merits of his bills, Scott said. with me or not.” tually received a Ph.D. in child psychology While working on a current bill that Yee has always been very up-front about from the University of Hawaii. would prevent administrators from retali- his position when working on a bill, she As a longtime student, and someone ating against teachers who protect student said. Preston and Yee often find themselves who continued working with children after- speech, Yee ran into opposition from the on opposite sides of legislation, but have ward, Yee said he became passionate about University of California, which argued the maintained a friendly professional relation- educating younger generations and preserv- bill would make it difficult to discipline ship over the years. ing their rights. The best way to preserve the teachers who were not properly doing their It is important for legislators to avoid First Amendment is to make sure students jobs. Yee agreed to amend the bill so it would understand and appreciate it, he said. protect teachers “solely for acting to protect See Yee, Page 8

Fall 2008 www.splc.org • splc report  Legislation Legislature passes anti-retaliation bill

By Jimmie Collins The teacher protection bill bounced Happy Chastain, senior legislative di- back and forth between the legislative hous- rector for UC, sent a letter on behalf of alifornia teachers stand to get more es, taking on several amendments along the the university to Yee June 16 while the bill protection this fall under a bill way. As of Aug. 1, the bill had been amend- was awaiting consideration on the Assem- meant to keep high school and col- ed to counter arguments that it was overly bly floor. The letter warned that if the bill Clege administrators from retaliating against broad and to address concerns from the passed without amendments, the university them for protecting student free speech or University of California, concerned school would be unlikely to adopt its provisions. expression. board members and administrators. UC argued in the letter that the bill was The state Assembly on July 14 approved Originally dubbed the Journalism misleading because it is “not simply limited Senate Bill 1370, proposed by Sen. Leland Teachers’ Protection Act, the Assembly to free speech rights for Journalism teachers, Yee (D-San Francisco/San Mateo), with a stripped the bill of the moniker on June 2 as implied, but the provisions would extend 72-1 vote. The bill was passed in the Senate to make clear that the protections extend to all UC faculty and staff.” 31-2 Aug. 5 before moving on to Gov. Ar- to all faculty members, not just journalism The university wrote that the bill could nold Schwarzenegger’s desk for a signature advisers. restrict its ability to act against teachers who or veto. The bill then passed the Assembly with fail to meet academic standards and could The bill follows up on legislation Yee a 67-6 vote, but upon return to the Senate it expose the university to unnecessary litiga- authored in 2006, Assembly Bill 2581, was met with more amendments. University tion. School boards and high school admin- which bars administrators from punishing officials, school board members and admin- istrators expressed similar concerns. students for engaging in protected speech or istrators pushed for more changes, saying “S.B. 1370 would make it very difficult expression. A.B. 2581 took effect in January the bill still ran the risk of protecting teach- to reassign a journalism teacher who is not 2007. ers who simply were not doing their jobs. performing in accordance with academic re-

From Yee, Page 7 an assemblyman, to sponsor Assembly Bill Democrat, there was quite a bit of Repub- 2581, which amended the code to extend lican support for these bills,” Yee said. “The getting personally attached to a bill by be- the extra protection to college and univer- First Amendment is not a liberal or conser- coming emotionally involved, Preston said. sity students. The bill, introduced in 2006, vative issue.” “He does know his stuff — he does his went into effect in January 2007. Yee said that he would be prepared to homework — and when you don’t agree, he “[A.B. 2581] brought everything out support conservative speech even if it ex- doesn’t hold that against you,” Preston said. into the open and said that in California, posed a viewpoint he did not agree with, But Yee does get deeply invested in his we don’t allow censorship,” said Rich Cam- and this is a lesson school administrators legislation. eron, chairman of the California Journalism need to learn. Already a free speech advocate, Yee’s stu- Education Coalition, which has recognized Yee said it strikes him as odd that school dent journalism involvement began after a Yee for his service to journalism. administrators who teach the First Amend- 2005 ruling by the 7th U.S. Circuit Court The bill to protect teachers came this ment and tell students they should appreci- of Appeals in Hosty v. Carter, which said col- session after it became apparent that there ate it tend to have a low threshold for speech lege student publications that are not desig- was still a problem with censorship. they are willing to accept and protect. He nated as public forums can be controlled by “We had a problem that the advisers said these administrators have the attitude the administration, much like high school were vulnerable,” Cameron said. “Adminis- that, in an instructional environment, it is publications. trators decided that if you couldn’t censor OK for teachers and administrators to vio- That decision applies only in the states the students, you turn around and put pres- late the First Amendment in order to teach covered by the 7th Circuit — Illinois, In- sure on the adviser to do the censoring.” the difference between good and bad. diana and Wisconsin — and the California The legislature has been responsive to “You don’t set up bad examples,” he Education Code already protected high the bill, Yee said, and he believes most indi- said. “You don’t trash the First Amend- school students from administrative con- viduals in the legislature understand the im- ment in the course of trying to help teach trol and censorship. But colleges were not portance of free speech and free expression. a certain lesson. That’s like a parent trying included in that language. CNPA and sev- “What was rather interesting and grati- to teach their children how to be good by eral other organizations tapped Yee, then fying for me, despite the fact that I am a committing a crime.” n

 splc report • www.splc.org Fall 2008 Legislation

“If a teacher is not teaching to those stan- Rich Cameron, chairman of the Califor- dards then the district should have the ability nia Journalism Education Coalition, said he … They should understand where to discipline or take an action that it needs to was disappointed with the opposition from we’re coming from. We don’t want take,” said Jim Ewert, CNPA legal counsel. UC and school administrators. schools to come in and break the The Senate also added one word clarifying “I understand where they’re coming from law.” that administrators may not retaliate against when teachers may say ‘you’re censoring my “ Rich Cameron an employee based “solely” on the employee’s free speech,’” said Cameron, who chairs the chairman, California Journalism Education Coalition protection of student speech and expression. journalism department at Cerritos College in The CNPA originally declined this amend- the Los Angeles area. “But they should un- quirements,” wrote Brian M. Rivas, a Cali- ment in discussions with the CSBA and the derstand where we’re coming from. We don’t fornia School Boards Association lobbyist, Association of California School Administra- want the schools to come in and break the in a letter to Yee outlining the organization’s tors. law.” opposition to the bill. Their argument sug- “The sponsors were difficult to work Schwarzenegger signed a separate press- gested that schools would hold the burden with,” said Laura Preston, an ACSA lobbyist. related bill in early July that will allow greater of proving the reassignment is not due to “Normally when you oppose a bill, the spon- access to government contracts. Senate Bill the teacher’s protection of students’ rights. sors will try to find a compromise. In this 1696, also authored by Yee, is a response to “The burden of proof would be difficult case, though, they didn’t have to because they a contract between the University of Califor- to meet due to the close link between the were getting the votes for the bill.” nia at San Francisco and a private auditing teaching of journalism and the student free- But the CNPA knew early on it might firm that prohibited the school from fulfill- dom of the press,” Rivas wrote. have to accept that language because the stu- ing a January 2007 open-records request After discussions with UC, representa- dents’ protections in A.B. 2581 carry similar from the San Francisco Chronicle. The con- tives for school administrators, and the gov- restrictions, Ewert said. tract — worth $165,000 — required consent ernor — who is a member of the UC Board “Since the students are protected solely from the private firm before the requested in- of Regents — Yee agreed to amend the bill on the basis of speech conduct, we were pret- formation could be released. The school also to clarify that it is not meant “to diminish ty sure that we were going to have to do the was instructed not to release the name of the a district’s ability to take actions authorized same for the teachers,” Ewert said. company. by current law in order to maintain instruc- Ewert said they did not include the lan- The bill prevents government agencies tion that is consistent with the statewide guage in the bill originally because the CNPA from entering into contracts that would al- academic standards.” felt it was a technicality that did not change low an outside firm to control the disclosure The California Newspaper Publish- the application of the bill. of information. The law also states that any ers Association — the bill’s primary backer “Most administrators are probably savvy contract for the purpose of conducting a re- — said the added legislative intent language enough to understand that they can still take view, audit or report between a private entity bolsters the idea that the purpose of the bill disciplinary action on an employee for con- and a state or local agency is subject to the is to promote good journalism and how to duct other than acting to protect a student’s same disclosure requirements as other public teach First Amendment responsibility. speech rights,” Ewert said. records. n

Legislation in brief

allegedly bullied her via MySpace. agents to penalize legitimate speech Mo. governor signs The bill, which goes into effect Aug. done without harmful intent. law intended to target 28, clarifies the definition of unlaw- The new legislation increases ful harassment to include electronic penalties for harassment and stalking online harassment communication and expands stalking to from a misdemeanor to a felony if the MISSOURI — Gov. Matt Blunt signed include two or more acts through any act is committed against minors 17 or legislation June 30 that aims to fight means of communication. younger by someone who is 21 or older. cyber-bullying by updating the state’s Harassment is defined as any The law also requires school boards current harassment and stalking laws to intentional conduct that without good to implement a written policy requiring include communication over the Inter- cause “frightens, intimidates or causes administrators to report harassment and net and through other electronic means. emotional distress.” stalking committed on school property Missouri took up the legislation in Some First Amendment advocates to local law enforcement. This includes response to the death of Megan Meier, a worry that the definition of harassment any communication over the Internet or 13-year-old Missouri resident who took may be overly broad, which could en- through text messages while on school her life after a 49-year-old neighbor able administrators or law enforcement grounds.

Fall 2008 www.splc.org • splc report  Internet Tangled Web Courts conflict in efforts to define schools’ power over online speech By Kelsey Beltramea ally sends a terrible lesson about the role of Tips to ward off trouble speech in our society. How can we instill in t had been a long day at school for Avery Students who want to publish online the next generation an appreciation for the Doninger. Her principal, Karissa Nie- face special legal concerns, in addi- value of free speech if our educators act in a hoff, told her about scheduling conflicts tion to the traditional issues that ap- way that demonstrates little regard for it?” ply to all publishers. Our Legal Analy- Ithe school was having with “Jamfest” — a Sara Rose, an American Civil Liberties sis can help steer you away from battle of the bands contest Doninger worked Union attorney in Pennsylvania, has the danger … page 35 to coordinate as junior class secretary for her same concern. Burlington, Conn., high school. Doninger “It’s the same stuff kids have always done believed because of those conflicts, the event she said on the Internet. and said, but instead of passing it around would be effectively canceled. In a preliminary motion, a federal dis- outside school or at the mall, they’re put- Near tears as she left the principal’s of- trict court in Connecticut disagreed, refus- ting it up on the Internet,” said Rose, who fice, Doninger said she thought about the ing to reinstate Doninger as class secretary is representing student Justin Layshock in event all afternoon during talent show audi- while court proceedings were ongoing. The an online speech case. She also is a former tions and all through rowing practice that court noted Doninger’s punishment was Student Press Law Center publications fel- evening. When she finally got home from relatively minor and only affected her extra- low. “But the fact that it’s accessible to more Lewis S. Mills High School, frustrated and curricular role as a student leader. people does not mean that it should be more upset, Doninger needed to vent. But her The 2nd U.S. Circuit Court of Appeals limited.” mom was not home from work yet. So she followed suit in May, affirming the district Layshock, a former student at Hickory went to into her “office” — a cozy, renovat- court decision and ending Doninger’s effort Hill School in Hermitage, Pa., got himself ed closet adorned with posters of her favor- to be reinstated as a class officer before she in trouble on MySpace when he was a se- ite musical artists. graduated. nior. He was suspended for 10 days in 2006 Accessing her online diary, Doninger All because of what she said on the In- after a mock MySpace profile he made of his wrote on April 24, 2007, that Jamfest was ternet. And Doninger is not alone. principal, Eric Trosch, came to the attention going to be canceled “due to the douche- of school faculty. bags in central office.” She encouraged those Conflicting precedents Using a computer at his grandmother’s who read her entry on livejournal.com to house, Layshock made a profile that said write or call then-Superintendent Paula Despite the explosion in the popularity Trosch used drugs and kept a beer keg be- Schwartz’s office about the event “to piss her of social-networking sites and blogs — and hind his desk. The profile did not threaten off more.” in the number of disciplinary sanctions doled violence or otherwise encourage disturbance Her school — nearly three weeks after out to students for online expression — the at the high school, so he sued the school, the blog entry — punished her for it. Ad- Supreme Court has yet to decide a student claiming the discipline was unjustified. ministrators said Doninger used vulgar lan- Internet speech case. So lower courts have Layshock had better luck in court than guage to convey incorrect information be- been left to their own, often contradictory, Doninger. A federal judge declared his pun- cause the event ultimately was not canceled, interpretations in mulling how far school ishments unconstitutional in July 2007 be- just held at a later date. They said her plea authority extends. cause the profile was not created at school for others to call the officials to “piss” them “Avery’s case was an example of a fre- or during school hours, and when students off was inappropriate for a class officer and quent trend among public schools of pun- viewed it at school it did not cause a “sub- removed her from her post, and also pre- ishing students for expression that took place stantial disruption.” vented her from serving her senior year. off campus, and we find that to be very dis- The U.S. Supreme Court said in a 1969 But Doninger and her mother thought turbing,” said Josh Wheeler, the associate di- decision, Tinker v. Des Moines Independent the school administrators had no right to rector of the Thomas Jefferson Center for the Community School District, that students control her behavior at home. They filed Protection of Free Expression. “When school are allowed to express themselves freely un- a lawsuit in July 2007, charging that the officials start punishing students for expres- less their actions cause a “material and sub- school abridged Doninger’s First Amend- sion that has nothing to do with school or stantial disruption” of school operations or ment rights when it punished her for what is off-campus expression, we think it actu- invade the rights of other students. Defin-

10 splc report • www.splc.org Fall 2008 Internet ing “substantial disruption” has become the dard. For example, the Su- linchpin of cases involving student speech in preme Court has said that the four decades since the Tinker decision. administrators can regulate Schools “are fairly creative with coming school-sponsored speech or up with different disruption rationales,” said speech that they perceive to David L. Hudson Jr., a scholar at the First be a true threat. Amendment Center. “They essentially come Several students at up with any kind of disruption. School Braden River High School board attorneys are becoming fairly familiar in Bradenton, Fla., were with arguing under the Tinker standard.” disciplined in June for writ- Still, it is not clear whether the Tinker ing and singing controver- decision — originally intended to address sial rap lyrics after another on-campus speech — applies to online ex- student downloaded the pression. Hudson anticipated the absence of music from MySpace and a clear authority for online student speech played it for classmates cases would ultimately result in the Su- at school. A teacher overheard the music Fraser’s on-campus speech is a long way preme Court becoming involved, perhaps — which described violence against school from Layshock’s online activity — which in Doninger’s case. officials and the principal’s daughter — and they say schools have no jurisdiction to reg- “It is a numbers game, and there are administrators doled out punishments rang- ulate. The Pennsylvania Center for the First many more decisions by both state and fed- ing from detention to prohibiting three of Amendment at Penn State University and eral courts now across the country,” Hudson the seniors from walking across the stage at the Student Press Law Center have joined said. “Doninger provides an excellent vehi- the graduation ceremony. Layshock’s case, filing a joint friend-of-the- cle, because of its interesting facts, height- A middle school in Weedsport, N.Y., court brief in support of his free-speech ened media coverage and the fact that it is a used this “true threat” rationale to justify rights. federal appeals court decision. Obviously, it punishing Aaron Wisniewski in July 2001. Frank LoMonte, executive director of is a long shot, but sooner or later I think it The eighth grader had shared an AOL In- the SPLC, said he did not expect a ruling in is inevitable given the muddled state of this stant Messenger buddy icon with friends the case until 2009. And then, “it would be area of the law.” that showed a gun shooting at a person’s crazy” for courts to try to extend the Fraser And the accessibility of the Internet head with splattering red dots and the cap- case into the setting of a student’s personal in classrooms, making information all the tion “Kill Mr. VanderMolen,” Wisniewski’s Web page, he said. more readily available, is effectively mud- English teacher. Wisniewski sued his school “There is no way that a reasonable reader dling what constitutes “disruption.” district, but the 2nd U.S. Circuit Court of looking at a student’s Facebook or MySpace In Layshock’s case, the school district Appeals affirmed a lower court’s dismissal, page, or a student’s off-campus news blog, asserted that the mock profile constituted a holding that threatening out-of-school could confuse those Web sites for official “substantial disruption” because the school speech could be punished. speech by the school,” he said. “So the ratio- had to shut down student access to the com- Administrators also can censor lewd or nale for lowering the censorship bar in Fra- puter system after students’ reading other vulgar speech that occurs in certain campus ser has no relevance to off-campus, online unapproved Web sites, like Layshock’s, dis- settings, the Supreme Court said in 1986 in speech.” rupted the day-to-day operation of Hickory Bethel School District v. Fraser. In that case, LoMonte added his fear is not that stu- High School. high school senior Matthew Fraser was pun- dents will lose the right to insult the prin- U.S. District Judge Terrence McVerry ished for a public address he gave at school, cipal but that they will lose the right to found otherwise. nominating a classmate for office, that was publish genuine news that accurately gives “The mere fact that the Internet may be filled with sexual innuendos. Some schools a negative image of the school. accessed at school does not authorize school have attempted to extend the Court’s Fraser “All good journalism prompts discus- officials to become censors of the world-wide reasoning to online speech that makes its sion, and some of the discussion may even web,” McVerry wrote in the ruling favoring way onto campus. be legitimately critical of the principal,” Layshock. “Public schools are vital institu- The Hermitage School District is- ap he said. “It can’t be the law that off-cam- tions, but their reach is not unlimited.” pealing its district court loss to the 3rd U.S. pus speech critical of the principal, or that Circuit Court of Appeals, arguing adminis- causes other people to think less of the prin- Alternate standards trators could regulate what Layshock said cipal, is outside the protection of the First because it was lewd, vulgar and plainly of- Amendment.” Courts have ruled, though, that schools fensive school-related speech. Attorneys for Layshock have argued the have legal arguments beyond the Tinker stan- But First Amendment advocates say mock profile he created was not at all an at-

Fall 2008 www.splc.org • splc report 11 Internet tempt at serious journalism, but instead was you get on and create a fake profile in the a parody — protected speech under the First likeness of another individual, you’re perpe- Amendment. Courts have defined parody as trating a fraud of another person.” I did not need the school district speech so extreme that no reasonable person Klasing said a judge threw out the ini- to reach into my home and take over would think it was intended to be true. tial defamation lawsuit against the students my responsibility. because he determined the claims were not Beyond school discipline “ Lauren Doninger disparaging, so Draker sued for intentional Avery Doninger’s mother infliction of emotional distress. The judge The First Amendment protects student threw out that claim as well. The case is be- speech only against suppression or retalia- fore Texas Court of Appeals. the social-networking site took it down tion by state officials wielding state power. The Bexar County District Attorney also on school officials’ request. Facebook and School employees who believe their rights filed a criminal charge against one of the stu- MySpace both have terms of use prohibit- were violated by online student speech can dents involved in creating the profile. He re- ing users from creating a false identity or at- still take legal action as private citizens — as ceived conditional, informal probation. tempting to use another’s account. Principal Trosch has done in suing Layshock The Indiana Supreme Court in May No matter the legality of the expression, for libel, a separate ongoing case. threw out a minor delinquency petition there is an argument that school officials do Other educators targeted by online filed against a Greencastle Middle School not have the power to act as parental authori- pranks have similarly begun considering student, identified as “A.B.”, who had post- ties when dealing with off-campus behavior. private legal remedies. ed a vulgar tirade about her principal on a Avery Doninger’s mother said she “gross- After students created a fake MySpace MySpace group she created. The state trial ly resented” the school officials stepping in profile for Edinburgh High School Spanish court determined the girl was “delinquent” to punish her daughter for the blog. teacher Trent Shupperd, his job was on the because it said her postings would be con- “Avery’s behavior happened at home at line. He told the Indianapolis Star in May sidered criminal harassment if committed a home computer at 9:30 at night,” Lauren that administrators confronted him with by an adult. Doninger said. “I am perfectly capable of an online conversation he supposedly had The state appeals court reversed that disciplining my children. I did not need the with a female student that contained sexual decision, concluding her postings were po- school district to reach into my home and overtones. Shupperd told the local paper litical speech protected by the First Amend- take over my responsibility.” the school’s administrators and police deter- ment. The Indiana Supreme Court also She also questioned whether the ad- mined three current students and one former ruled for the student, but ruled instead that ministrators were sending the right message student set up the profile for Shupperd. because the principal was not among the about civic awareness. “I am considering my options and how MySpace subscribers authorized to view the “I understand Avery may have not gone best to move forward,” Shupperd said in an group, the criticism was not directly aimed about it the right way, but the intention to e-mail to the SPLC in June. “All options are at him. make noise, create public awareness, rally open, and I am seeking legal guidance and Criminal charges of identity theft can public support for a public issue — thank the guidance of the teacher’s union on how also be pursued if someone wrongfully ob- God we have students who are doing that,” best to proceed.” tains and uses another person’s personal data Lauren Doninger said. “Passivity and apathy Anna Draker, an assistant principal at in some way that involves fraud or decep- are so much more worrisome than kids who Clark High School in San Antonio, sued tion, typically for economic gain. are learning the skills of political and social two students and their parents in 2006 over Tim Puntarelli, dean of students at organization and demonstration.” a MySpace page that said she was a lesbian Roncalli High School in Indianapolis, had Along with those skills, students must and contained “obscene comments, pictures to take Facebook to court in May so that also be trained about online responsibility, and graphics,” according to her lawsuit. he could learn who had set up a fake profile said Warren Watson, director of J-Ideas, Draker’s attorney, Murphy Klasing, said using his name. a First Amendment institute at Ball State the MySpace spoof devastated the mother of Jay Mercer, an attorney for the Arch- University. two. And that sort of material should not be diocese of Indianapolis who is representing “Students need to remember what they protected, he said. Puntarelli, said the account user sent friend post online, unlike a generation ago when “If a person gets on their own MySpace invitations that would “not be appropriate people wrote in diaries, what they do on page and makes fun of another individual, I coming from a dean of students” and also their social networking MySpace or Face- think that is protected, even though it’s vul- sent messages wrongly indicating he intend- book, is available for everyone to see,” he gar and might be obscene — it’s protected ed to discipline certain students. said. “… This concept of digital free speech because it’s their opinion. And an objective A district court judge ordered Facebook is really the new battleground of the First viewer has perspective that this is coming to turn over information identifying who Amendment, and we must determine where from a student,” Klasing said. “But when created and managed the account before the line is drawn in cyberspace.” n

12 splc report • www.splc.org Fall 2008 Internet Order on the desktop

a fictional situation in which a Computer game to draw school policy prohibits virtual on real cases to simulate students from wearing T-shirts that depict band names or lo- First Amendment lawsuit gos because students in the By Kelsey Beltramea fictional school have been argu- ing about musical tastes. The f retired Supreme Court Justice Sandra school views these arguments as Day O’Connor has her way, students disruptive. But a student wears across the country will be donning con- a prohibited logo supporting a Itroversial T-shirts and unrepentantly violat- musical group anyway and is ing school dress codes — in a virtual sense, disciplined. He challenges the at least. discipline all the way to court. The retired justice is helping to develop a free, interactive, Web-based program called Real life bases “Our Courts” for middle school students to experience civics by investigating and argu- The student’s hypothetical COURTESY OF “OUR COURTS” PROJECT Visitors to the “Our Courts” home page are greeted by ing cases — like whether T-shirts with con- situation is similar to several these animated avatars and a message that the site’s tentious messages can be worn at school. cases involving real-life students “interactive, problem-based civics learning environment” is O’Connor is providing guidance and testing the limits of their school coming soon. Abby Taylor, the project’s director, said the leadership for the two-part program she dress policies in the name of look and feel of the game still are being revised. is developing with experts at Georgetown free speech. University Law Center and Arizona State In May, the mother of a University. Minnesota sixth grader filed a the back, all three said, “47,000,000 babies One component of “Our Courts,” de- lawsuit against the school, arguing admin- aborted 1973-2008.” signed by a company in New York City, can istrators violated her son’s First Amendment K.B.’s school district has a policy that be used in classroom curricula, while the rights when they ordered him to stop wear- prohibits schools from abridging “the rights other component is a game, designed by a ing T-shirts that bore anti-abortion messag- of students to express political, religious, Madison, Wis.-based company, intended es. School officials at Hutchinson Middle philosophical, or similar opinions by wear- for students to play in their free time. School in Hutchinson, Minn., told the stu- ing apparel on which messages are stated.” The game challenges students to view dent he could not wear the shirts because As long as these messages are not lewd, vul- cases from the perspectives of several actors: they were inappropriate and “could be con- gar, obscene or profane, they are acceptable, the client, a juror, an attorney or the judge sidered offensive,” according to the lawsuit. the policy states. presiding over the case. And the first game The boy, referred to as K.B. in court More than 1,200 miles away, Paul “Pete” will be focused on the First Amendment, documents, wore three particular T-shirts Palmer confronted the same difficulty when said Abby Taylor, director of the “Our on numerous occasions in April. He was not he wore his opinion on his shirt. Courts” project. reprimanded the first day, but on another Palmer believes the dress code at Waxa- “We decided it was something that was day a teacher told him his shirts were inap- hachie Independent School District in really concrete that students could wrap propriate, the lawsuit says. Texas violated his First Amendment rights, their minds around,” Taylor said. “We know He was reproached at least eight more because administrators used their dress code you don’t lose your First Amendment rights times that month for wearing the T-shirts regulations to prohibit him from wearing a at the schoolhouse door, but we still don’t produced by the American Life League, a John Edwards 2008 T-shirt in class. really know what that means, so we’re going Roman Catholic group that supports anti- He filed a lawsuit against the school dis- to have kids grapple with that and figure out abortion activities. On the front, one had trict in April. In May, the district clarified what that really means to them.” the words, “Abortion — Growing, Grow- its dress policies about logos, slogans, words She said students will be very involved ing, Gone.” Another said, “What part of and symbols on clothing. Students can wear in testing content to make sure they find it abortion don’t you understand?” The third “campus principal-approved” collared shirts accessible and engaging. They will confront said, “Never Known, Not Forgotten.” On or spirit T-shirts with messages support-

Fall 2008 www.splc.org • splc report 13 Internet ing school-sponsored clubs, but any other you can’t just release something like this and manufacturer logo must be 2-by-2 inches or have it be done, because the law changes all smaller, according to the policy. Students unfortunately right now the time,” she said. The school’s wardrobe restrictions, have such a limited knowledge of civ- For this reason, the game will focus on prohibiting the Edwards shirt, infringe on ics in general and virtually no knowl- historic cases like Tinker and Hazelwood Palmer’s First Amendment right of political “edge of the judiciary except what School District v. Kuhlmeier, a 1988 Supreme speech, said his attorney, Hiram Sasser. they see on TV.” Court decision that determined administra- A motion for a preliminary injunction Elizabeth Hinde tors could censor many school-sponsored Arizona State University assistant professor of education that would allow Palmer to wear his shirt student publications by showing adminis- states that schools have a responsibility to trators have a legitimate educational reason teach students about constitutional princi- several students could be punished for vio- for doing so. ples “not only as part of the curriculum, but lating the uniform codes, which required “We hope to give students civics in also by faithfully applying them.” solid khaki bottoms and solid red, white or a whole new perspective,” said Elizabeth “And in the context of a presidential blue shirts. Hinde, an assistant professor of education at election year, that responsibility would The lead plaintiff, Kimberly Jacobs, re- Arizona State University who specializes in seem, if anything, to lead our schools to peatedly violated Liberty High School’s uni- social studies education. encourage undisruptive means of expressing form policy and was suspended from school She is co-chairwoman of a team of edu- political views — not to stifle them,” the five times for a total of about 25 days, ac- cators charged with developing the “Our motion contends. cording to court documents. At least once, Courts” curriculum. “We’re going to be Palmer’s case largely hinges on whether her shirt contained a message reflecting her teaching civics from a judicial point of view, the U.S. District Court for the Northern religious beliefs. and that’s what separates this from other civ- District of Texas — under the jurisdiction Judge Michael Daly Hawkins wrote in ics education programs.” of the 5th U.S. Circuit Court of Appeals — the majority opinion that Tinker did not Hinde worked as a teacher for roughly chooses to evaluate the school’s dress code apply in Jacobs’ case because the dress code 18 years before becoming a professor, and under the Supreme Court’s 1969 decision regulations were not based on particular she still regularly works in grade-school in Tinker v. Des Moines Independent Com- viewpoints or messages she and the other classrooms. She is not happy with what she munity School District or whether it decides students were attempting to convey. has been observing. the case is better analyzed under the 1968 In dissent, Judge Sidney R. Thomas “Students unfortunately right now have decision in United States v. O’Brien. wrote that the majority’s decision “repre- such a limited knowledge of civics in gen- In Tinker, the Court ruled public school sents a substantial rewriting and undermin- eral and virtually no knowledge of the judi- officials violated students’ First Amendment ing of the First Amendment protections af- ciary except what they see on TV,” she said. rights when they suspended the students for forded by Tinker.” “Our hope is that [the project] will make wearing black armbands in political protest. Allen Lichtenstein, who represents the a difference and that students will come to The decision set the standard that schools students and parents, said passive expression know and understand this third branch of cannot censor student expression unless they on clothing is protected speech. government and become more informed can clearly demonstrate the expression will “The premise that student rights do not voters and participants in our democratic cause a material disruption of normal school stop at the schoolhouse door is still good law process.” activities or invade the rights of others. according to the Supreme Court,” said Lich- Expanding students’ knowledge of the But some courts have instead applied tenstein, who is the general counsel for the First Amendment is an important part of the O’Brien test to certain types of student American Civil Liberties Union of Nevada. that effort, said Warren Watson, director of expression cases. He has filed a petition for reconsidera- J-Ideas, a First Amendment institute at Ball In O’Brien, the Court upheld the con- tion of the 9th Circuit’s ruling. State University. viction of a man who burned his draft card “I think that there’s nothing more im- in protest. It created a standard allowing First Amendment foundations portant than learning about being a good suppression of expressive conduct if the reg- citizen and being involved, and the First ulation advances a substantial government With cases like Jacobs making their way Amendment is really the best place to start,” interest and is unrelated to the suppression through the legal system, it is likely that he said. of free expression. officials with O’Connor’s “Our Courts” A study on the “Future of the First In May, the 9th U.S. Circuit Court of project will have to find a way to keep the Amendment” indicates that students do not Appeals upheld a Nevada school district’s game dynamic and continue supplementing have a solid foundation in understanding dress code, using O’Brien as a guide. The the modules as time passes, said Taylor, the First Amendment principles, Watson said. court affirmed the lower court’s decision in project’s director. Jacobs v. Clark County School District that “It’s a challenge to some extent, because See ‘Our Courts’, Page 17

14 splc report • www.splc.org Fall 2008 Internet Old issues, new questions

By Kelsey Beltramea per over the corrected version,” he said. “Otherwise, corrections should appear at t is a routine practice for people look- the bottom of the page, but never in the ing for internships and jobs. One let- text itself, because changing the original ter after another, they carefully type text [may] create a new window for law- Itheir names into Google and hit “Enter” to suits.” delve up their pasts. High school sprinting Each state has a statute of limitations records. Scholarship announcements. And a for libel, beginning when a statement mention in the university police blotter for is first published. Though the laws vary underage drinking? from state to state, they usually require Widespread use of search engines and that libel lawsuits be filed within one to Web archival systems have upped the ante two years, no matter the medium. When for journalism; because of the Web, records an article is altered, it could be construed no longer simply appear in print one day as republishing, essentially restarting the and disappear to microfilm the next. The clock. long-term accessibility of electronic pub- lishing and rapid response abilities of on- requests to delete, change or update items When archives go online line posters often put journalists in ethical on publication Web sites by allowing the quandaries, balancing a desire to preserve student editors to decide on a case-by-case As publishers increasingly migrate to the historical record while simultaneously basis. Almost 44 percent of more than 80 the Internet — making years of archived minimizing harm and avoiding liability. people who responded to a separate survey material newly accessible on the Web — it question said their outlets have specific, is not clear when that clock begins ticking. Correcting Web content clearly written policies that govern Web cor- Since December 2004, when Google rections, updates and deletions. co-founders Sergey Brin and Larry Page an- “We get a lot of people that Google Though The Daily Pennsylvanian has no nounced their “Google Books” Library Proj- their name, and they find some quote they formal policy of its own, staffers try to fol- ect, about 30 institutions across the country gave us in 1997 and they think it makes low the example set by professional media have partnered with the program to upload them look bad,” said Albert Sun, Web editor outlets. Most papers retain all stories exactly millions of volumes of text, which often in- in chief at The Daily Pennsylvanian. “But we as they appear in the final print edition and clude back issues of campus newspapers. tell them we just can’t [delete archived infor- append any corrections in a separate box. Other institutions have resolved to mation]. You want your newspapers to be a But the immediacy with which content can digitize on their own. For example, about good record of what’s happened in the past, be altered and the triviality of the error must 25,000 pages of the Yale Daily News dat- but you have to balance that with people’s also factor into staffers’ decisions to make ing back to 1878 now are available online expectations that things they’ve done in the corrections, some argue. thanks to the university’s Digital Production past will stay in the past.” “If something was wrong online for five and Integration Program. The Daily Pennsylvanian alters content minutes, you might be doing more harm The first phase was mostly accomplished in a story only when the material is proven than good if you say this was wrong before,” by May, when nearly 21 selected years of to have a factual misrepresentation. In ad- said Eric K. Meyer, an associate professor Yale Daily News archives were released onto dition to running a correction in the print of journalism at the University of Illinois at the Internet, including the first year of pub- version of the newpaper, the staff puts an Urbana-Champaign. “That’s one of the very lication and those spanning World War I asterisk in front of the corrected Web story, complicating factors in online corrections.” and World War II. The Yale Daily News is indicating the date the article was corrected, Adam Goldstein, attorney advocate for the oldest college daily newspaper published and sometimes includes a description of the the Student Press Law Center, advised that in the United States, and 123 years of ar- correction at the bottom of the article, Sun publications alter articles only with a writ- chives will be available when the digitization said. ten agreement releasing them from liability. is complete. An unscientific poll on the College Me- “If someone wants the original text cor- But those records are not accessible di- dia Advisers Web site found about 41 per- rected, they should be willing to sign a re- rectly through Google. One must first open cent of the nearly 50 respondents handle lease that agrees they won’t sue the newspa- the newspaper database to search material

Fall 2008 www.splc.org • splc report 15 Internet from old publications. sition to review the content of those books Media Network hosts through College Pub- Kevin Vanginderen, an alumnus of Cor- to see if there is anything defamatory in lisher, roughly 60 percent of them allow the nell University, found his school’s old pub- them,” he added. comments to go up without any modera- lications can be found simply by Googling Frederick Martz agreed. He is the special tion, Lewis said. his own name. projects librarian in Yale University’s Digital Charles Derry, a professor of theater arts Vanginderen, who practices law in Cali- Production and Integration Program. at Wright State University in Dayton, Ohio, fornia, was taken aback when he found a “If you really had to fact check every- wished there would have been more moder- 1983 article from the Cornell Chronicle, a thing, it would simply stop the project. We ation of student publication The Guardian’s non-student publication owned by the uni- simply couldn’t do that,” Martz said. message board. versity press office, that linked him to bur- Officials at Yale are describing their Students approached him after reading a glary and theft charges. project as “a faithful digital reformatting” comment he allegedly authored in response Vanginderen filed a $1 million law- and not “republishing,” he said. to a student’s online letter to the editor. The suit in October that claimed the Chronicle Yale’s Usability and Assessment Librar- posting called a student Derry advises in the libeled him in the article and that the re- ian, Kathleen Bauer, added, “We’re taking theater arts department a fool. cent digitization of the article constituted something that’s publicly available on our “I felt as if I had been the victim of “republication” — making the paper liable library shelves right now, and in my view, identity theft, that someone had taken my again for the article, though the statute of we’re just making it more accessible.” name,” Derry said. “And it was immediately limitations for claims against the original clear to me that someone who did this was story ran out long ago. Comment boards someone who knew I was the student’s ad- A federal judge dismissed Vanginderen’s viser and was trying to hurt her by having claim, ruling that the article was substan- But unlike when articles were published her mentor humiliate her in public.” tially true and thus could not be libelous. and only stored away on library shelves, au- He asked The Guardian to remove the But to the dismay of Cornell attorney Nel- diences now have the ability to offer their comment, but editors refused, citing the son Roth, the judge refrained from ruling immediate opinions on the Internet. And First Amendment rights of whoever did on the republication issue, which Roth said those comments can be instantaneously af- post the comment. So he filed an official held larger implications. fixed to articles with the click of a mouse. complaint requesting that the Student Me- “If we were to redact or delete that in- Rusty Lewis, director of newspaper re- dia Board force The Guardian to remove the formation like [Vanginderen]’s asking us to lations at the College Media Network, said comment and also provide the true identity do, we would be redacting or deleting that his company offers two ways for the news- of the poster. part of the historical record, a record that paper staffs it hosts to monitor their com- The matter was settled, however, when was always available on the library shelves,” ment boards. Editors either moderate the editors at the newspaper learned a College Roth said. messages as they come in, or allow them to Media Network policy prohibited imper- Peter Hirtle, Cornell University Library’s immediately go live onto the Web site and sonation on Web sites it supports. A clause intellectual property officer, said a ruling take down those they consider to be offen- in the “Terms of Use” agreement says the against the university in Vanginderen’s case sive. Web site owner should not use or allow oth- would likely bring worldwide efforts to Of the more than 600 college newspa- ers to use the site in any manner that, among digitize library and commercial archives to per Web sites the New York-based College other things, “may or may appear to imper- a “screeching halt.” sonate anyone else.” The editors If the court deemed Web up- removed the comment without loading of the newspaper to be “re- disclosing the poster’s identity. publishing,” Hirtle said it would be “Ultimately in our case, be- “disastrous for projects that wanted cause of that small line in the Col- to make material available online. lege Publisher online policies, we … [E]very time you wanted to dig- were able to take care of this prob- itize something, you would have to lem at this time,” said Ann Biswas, make the same sort of editorial de- The Guardian’s adviser. “But it re- cisions that the original editors did ally was eye-opening that we really the first time they published it.” need to be proactive and create Hirtle said the Cornell Univer- policies in advance of complicated sity Library just finished digitiz- First Amendment-type clashes ing 100,000 books with Microsoft that we might experience.” and will add another 500,00 with Biswas said her students’ main Google. “And we are under no po- concern was protecting the First

16 splc report • www.splc.org Fall 2008 Internet

Amendment rights they believed the poster a university employee’s lawsuit. The newspa- outweigh thoughtful dialogue. “It’s impor- held, because they wanted to maintain an per’s adviser, Vince Filak, said people posted tant from a quality control perspective for open forum. Now staffers at The Guardian personal attacks on the woman in response the operator of the site, including student are considering whether they want to have to the story on the Web, and she wanted to newspapers, to have a meaningful monitor- editorial oversight of the comments before know who the posters were. ing function.” they are posted, she said. Biswas noted she When she subpoenaed the Ball State Dustin Gardiner, The Daily Utah wished there was a better mechanism for Daily News for the posters’ identifying in- Chronicle’s editor in chief, said stories on its verifying posters’ identities before allowing formation, the paper refused to provide it. Web site can acquire up to a couple dozen them to comment. “We really didn’t want to turn the in- comments if they are popular. The student- But Lewis said there is very little the formation over just on general principle, newspaper staff monitors comments after server can do to verify identities of those because we didn’t want to set any kind of they are posted, looking for instances of li- that respond to articles online beyond re- precedent,” said Filak. bel and hate speech. quiring that users provide a working e-mail He said he worried that a wave of oth- “We’ve written a lot of stories about address. ers might come to the Ball State Daily News undocumented immigration, and a lot of In any event, neither Lewis’ company Web site to uncover posters’ identities and times you get people that post hate speech nor the publications it hosts can be held li- that there would be a chilling effect on the that distract from the purpose of the online able for comments on the Web. Section 230 comment board. The newspaper obtained forum,” he said. of the federal Communications Decency volunteer legal counsel through the Student Whereas newspapers can be held liable Act shields College Media Network and Press Law Center’s Attorney Referral Net- for content published in print as a letter publications like The Guardian from liabil- work to contest the subpoena, and the mat- to the editor, they cannot be punished for ity, because it holds that no provider or user ter still is pending. material published online unless it infringes of an interactive computer service can be Though there are legal protections for a copyright or constitutes child pornogra- treated as the publisher of any information media outlets, Bob Steele, a scholar of jour- phy, or unless newspaper staffers collabo- provided by someone else. nalism ethics and values at the Poynter Insti- rate with the poster in creating the content. However, someone could subpoena tute , said media outlets still have a responsi- Even newspapers that choose to monitor identifying information, like an IP address, bility to their readers to keep an eye on what Web comments — removing material that about a suspect poster through the courts. others post on their message boards. staffers determine is inappropriate or seems An IP address is a numerical identification “The problem is there can be great libelous — cannot be held accountable in that can be traced to a specific Internet ser- harm to individuals if the monitors aren’t court for “publishing” those statements. vice provider. watching closely,” he said. “People can leave “We don’t monitor comments because The Ball State Daily News in Muncie, quite harmful remarks toward individuals or you have any legal responsibility to do it,” Ind., was subpoenaed in March for records groups.” Gardiner said. “We do it because we think after staff members published a story about Steele added that diatribes can quickly it’s the right thing to do.” n

From ‘Our Courts’, Page 14 Seventy-four percent of those surveyed just that. Hinde said “Our Courts” will em- would prevent public school students from brace students’ “21st-century skills” to en- Despite increases in the number of First wearing a T-shirt with a slogan that might gage them in civics education and appeal to Amendment classes from 2004 through offend others, even though the Supreme teachers wanting something more than just 2006, nearly three-fourths of students take Court has repeatedly said, even in the a textbook from which to teach. the First Amendment for granted or do not school setting, that mere “offensiveness” “We have teachers lined up, literally, know how they feel about it, according to does not remove speech from the protection who are willing to participate and test run the 2007 survey, conducted by David Yalof of the First Amendment. And 25 percent of the program and work out early kinks,” and Ken Dautrich of the University of Con- Americans said “the First Amendment goes Hinde said about Arizona educators. necticut. And students’ level of support for too far in the rights it guarantees.” The pilot project is tentatively planned constitutional rights varies depending on Gene Policinski, vice president and ex- to begin in Arizona, Virginia and New York how relevant they feel the rights are to their ecutive director of the First Amendment City, with a prototype of the first free-speech own lives, the study reports. Center, in a statement released with the module scheduled for release in December A 2007 First Amendment Center na- study’s findings, said the results “endorse 2008. tional survey on the “State of the First the idea of more and better education for Taylor said “Our Courts” hopes to have Amendment” found similarly vague knowl- young people — our nation’s future leaders the module fully functional by spring 2009, edge about the rights guaranteed under the — about our basic freedoms.” thanks to funding from numerous charita- First Amendment. The “Our Courts” project aims to do ble foundations. n

Fall 2008 www.splc.org • splc report 17 ACCESS Conventional wisdom Reporters, officials offer advice on covering the nominating conventions

By Rob Arcamona Stater press pass. “I tried to tell nside, American flags will drape over him that I was a the walls while balloons float to the member of the press. floor below. Music will keep the mood He didn’t listen, just Ilight and delegates on their feet. Outside, zip tied my arms and protesters will rattle chain-link fences and sat me down on the scream insults as riot police stand ready to corner,” Rankin said. squash violent protests. Rankin and the The two scenes seem worlds apart but scores of protesters will happen side by side when the presiden- she was with were tial conventions roll into Denver and Min- hauled off to Pier 57, neapolis-St. Paul in late August and early the NYPD’s “Post Ar- September. Rankin and two other Stater journalists rest Staging Site.” The conditions at the site “I’m actually pretty nervous,” said Anna had come to New York City in late August caused a media firestorm. Ewart, a reporter with The Minnesota Daily, 2004 to cover the Republican National “There was this stuff on the floor, it the University of Minnesota’s student news- Convention. They were shadowing a group got everywhere. It made people break out paper. “I don’t really know what to expect.” of activists from Kent State who had de- in rashes,” Rankin said. “They were like gi- The two atmospheres of the presidential cided to take part in the protests going on ant dog kennels. There were a few hundred conventions, the pomp of the convention throughout the city that week. people milling around. My press pass had itself and the grit of the protests outside, are “We went to a street rally in Union been thrown away and all my stuff had been poles apart and present student journalists Square to meet up with our sources,” Rankin taken. I tried to tell them I was a reporter, with the dynamic and sometimes daunting said. “There was a lot of tension and riot cops but they weren’t listening.” task of trying to cover it all. were everywhere. A group of people started In October 2004, the New York Civil Melissa Subbotin, a spokeswoman marching down this one city block, and I Liberties Union filed a lawsuit against the for the Republican National Convention, had two seconds to decide to stay where I City of New York for police actions during which will take place from Sept. 1-4 in St. was or follow my sources. I followed.” the Republican convention. The NYCLU Paul, said there are enough events going on Rankin said that as she walked with claims NYPD mass-arrest tactics resulted in during the convention to make even a sea- protesters, constantly scribbling time-cod- the unlawful arrests of bystanders and ob- soned reporter’s head spin. ed notes, police blocked off the protesters’ servers. The NYCLU also claims detainees This may seem like a dream assignment route — and then circled behind them. were kept in “unhealthy and perhaps dan- to some reporters, but serious consequences “I had never seen such large riot cops gerous” conditions. The case still is -pend come with the task. As one student journal- before. A police officer yelled that everyone ing. ist found out, one wrong move and a re- was going to be arrested and we better just In its answer to the NYCLU’s lawsuit, porter might be forced to take notes from sit there,” Rankin said. the NYPD said its actions did not violate inside a jail cell. According to press reports compiled any law or provision of the Constitution. by the New York Civil Liberties Union, Eventually, Rankin managed to borrow New York, 2004 the New York City Police Department ar- a detained demonstrator’s smuggled cell rested 1,187 protesters on Aug. 31. Rankin, phone and called her mother, fellow report- “Everything was going really smoothly,” a working reporter, was among the arrested. ers and editors at The Stater. At that point, said Beth Rankin, a former reporter for In total, the NYPD reported 1,827 arrests Rankin had been in custody for nearly 24 Kent State University’s student newspaper, in relation to the convention. hours. The Daily Kent Stater. “We were actually After police had cordoned off the march- “The food was half rotten and my ribs surprised how few arrests there were … un- ers, Rankin said she went up to a police of- were swollen,” Rankin said. Just a few weeks til August 31.” ficer and tried to avoid arrest by showing her before coming to New York, Rankin had

18 splc report • www.splc.org Fall 2008 access surgery on her right ribs. “They were still even cross my mind. We haven’t even started have any rights beyond citizens to violate technically broken,” she said. planning for it,” Ewart said. security rules and regulations. A reporter The zip ties Rankin was cuffed with had Officials at the St. Paul Police Depart- can’t just cross a police line,” Kissinger said. rubbed off much of the skin on her wrists. ment do not expect a repeat of the 2004 Re- “They may find that the story is worth get- She was moved from one holding cell to an- publican convention. Peter Panos, a public ting arrested, but that’s up for the reporter other on the pier as the day went on. Even- information officer for the department, said to decide.” tually, Rankin was taken from Pier 57 and if a protest were to get out of hand, reporters The better option, Kissinger said, is brought to a police precinct. should get themselves out of the situation. to ask a police officer if they could follow “Each time I moved I thought I was get- “Reporters are grown adults and know protesters. If the officer says no, “go ask ting out, but they just took me to a different what they’re doing. They have to take re- another one. They may say yes,” Kissinger pen. It really messed with my head,” Rankin sponsibility for themselves,” Panos said. “If suggested. said. you get in the middle of protests, you’re not Randy Furst, a reporter for the Min- After a few more hours sitting in the going to get special treatment.” neapolis Star Tribune, said if he were faced precinct, Rankin was released. Jessica Sundin, a spokeswoman for a co- with the decision, he would heed police “They threw me out of the back door alition of protest groups in St. Paul, said a warnings. onto the street. I had no phone, no money, standoff with police is possible during the “Your job is to get the story, be the eyes nothing. I didn’t even know where I was,” Republican convention. In July, protest and ears,” Furst said. “Not to make things Rankin said. “It was something out of a groups lost a lawsuit against the city that crazier. You can’t report if you’re locked movie.” would extend the hours they were permit- up.” Rankin said that from the time she was ted to march beyond the noon to 4 p.m. Aaron Montoya, editor in chief of the first detained until the time she was forced window the city had allowed. In a July 16 Rocky Mountain Collegian, Colorado State out of the back door of the police precinct report, Sundin told the Minneapolis Star University’s student newspaper, said his first 30 hours had passed. Thirty hours in police Tribune that current protest hours aren’t priority is reporters’ well-being. custody, for covering a story. long enough. “Keep safe above everything else. If you “I think there’s a chance of a confronta- can stick around for the coverage, do that,” Covering it from the outside tion with police when it’s 2 or 3 o’clock and Montoya said. “Our advisers are telling us there are still tens of thousands of people we should get to a high point and stay above Rankin’s experience is a dramatic exam- trying to get to the Xcel [Energy Center],” the action.” ple of what a student journalist covering the Sundin said. The St. Paul and Denver police depart- conventions could face. This year, in both Panos added that if journalists were to ments will be assisted by dozens of other Denver and St. Paul, protests and demon- get caught up in a mass arrest, they should local and federal police agencies during the stration routes are planned throughout the comply with police orders until they are able conventions. Although the St. Paul police cities. to identify themselves as part of the media. may have a good working relationship with Ewart, a reporter with The Minnesota The Reporters Committee for Freedom local media, the problem, said attorney Bill Daily, said she was unaware of Rankin’s of the Press, a non-profit group, has set up Tilton, is getting all of these agencies to story. a 24-hour hotline for journalists who get work together. “The thought of getting arrested didn’t into trouble at the conventions this year and In Denver, a $50 million federal grant need to speak to a law- has funded the city’s effort to keep the streets yer. Ashley Kissinger, safe for the 50,000 visitors, not including a partner at the Wash- protesters, that city officials expect to flood ington, D.C.-based law Denver in late August. The city has nearly firm Levine, Sullivan, 600 outside officers committed to assisting Koch & Schultz LLP, the Denver police during the democratic will be assisting journal- convention. ists at the Democratic The police department for Aurora, a city convention in Denver. just east of Denver, will send more than 300 Kissinger said if a officers to Denver for the convention, nearly journalist chooses to half its force. Police Chief Dan Oates told follow protesters into the Denver Post in July that his officers were restricted areas, they are receiving crowd control training. Denver po- just as liable to be arrest- lice have been tight-lipped about the actual ed as the protesters are. “Reporters don’t See Conventions, Page 22

Fall 2008 www.splc.org • splc report 19 ACCESS AccessACCESS

Public positions offer insight that year. The most high-profile challenges- in advantaged political candidates who use into presidential candidates’ The law called for the government to de- volve the law’s limits on how private groups their own money to run for office by allow- velop a Web site that would disclose grants, Where they stand and individuals may spend money during a ing their opponents to raise money above views on free expression loans and contracts doled out by the govern- political campaign. the usual limits. ment. The Web site, www.usaspending.gov, In Federal Election Commission v. Wis- The case reaffirms the court precedent of By Rob Arcamona keeps track not only of how much money our nation,” McCain said in April. McCain-Feingold amended the Fed- consin Right to Life, Inc. the U.S. Supreme equating money spent in a campaign to po- is given out by the federal government but Both senators also supported a 2006 bill eral Election Campaign Act of 1971, which Court ruled in 2007 that a portion of sec- litical speech. In July, the FEC said it would t might be impossible to predict just also which companies receive it. that raised the maximum fine a broadcaster among other things regulates how much tion 203 in McCain-Feingold violated the stop enforcing the millionaire’s amendment how the Democratic and Republican Both senators have said they would sup- could receive for airing obscene or inde- candidates may spend if they decide to ac- First Amendment as applied in certain con- to comply with the Supreme Court’s ruling. presidential candidates would act as port the Free Flow of Information Act, a cent material, such as curse words. McCain cept public financing for their campaigns. texts. In June, Obama decided to opt out of Icommander in chief, but looking at what federal shield law to protect journalists from cosponsored the legislation that allowed McCain-Feingold added new restrictions The provision prohibited independent the public financing system McCain had at- Sen. John McCain and Sen. Barack Obama having to reveal confidential and anony- the FCC to fine broadcast outlets up to on the amounts and sources of money that groups from running advertisements that tempted to regulate, choosing to fund his have done in their careers could give poten- mous sources in federal court. Although 32 $325,000 for every violation. The Broadcast campaigns, party committees and indepen- use a candidate’s name in connection with campaign entirely using privately raised tial voters a clue. states and the District of Columbia have Decency Enforcement Act of 2005 passed dent groups may raise and spend. a specific issue within 30 days of a primary funds, although he still is subject to contri- Although many campaigns focus on statutory shield law protections, they do not unanimously in the Senate and was signed Several advocacy groups called the law a election and 60 days from a general elec- bution limits and disclosure requirements. separating the two major presidential candi- protect journalists from federal subpoenas. into law on June 15, 2006. violation of the First Amendment. tion unless they do so through a registered Obama said his decision was a way to avoid dates, on some First Amendment and other Obama has signed on to the bill as a co- The U.S. Supreme Court has struck political action committee. These PACs are being beholden to outside groups and press-related issues, McCain and Obama sponsor. McCain, although he supports the McCain-Feingold down several provisions of the law as un- subject to Federal Election Commission wealthy individuals. agree with each other. bill, has expressed deep reservations. constitutional. In the 2003 case McConnell regulations. “The public financing of presidential In April 2006, the two candidates sup- “I must confess there have been times One speech-related piece of legislation v. Federal Election Commission, the Court This year, the Supreme Court struck elections as it exists today is broken, and we ported the Federal Funding Accountability when I worry that the press’ interest in that McCain, in particular, has been criti- said a provision that barred people under down another provision of the law, known face opponents who’ve become masters at and Transparency Act of 2006. The law was getting a scoop occasionally conflicts with cized for is his sponsorship of the Bipartisan 18 years old from contributing to political as the “millionaire’s amendment,” in Davis gaming this broken system,” Obama said. passed unanimously in the Senate and was other important priorities, even the first Campaign Reform Act of 2002, also known campaigns violated their First Amendment v. Federal Election Commission. The court See the chart below for the candidates’ signed by President Bush in September of concern of every American: the security of as the McCain-Feingold Act. rights. said the McCain-Feingold Act illegally dis- stances on other free-expression issues. n

McCain does not Sen. Barack Obama Sen. John McCain appear to have much Democrat of Illinois Republican of Arizona general respect for First I do not view either Courtesy of Obama for America Courtesy John McCain 2008 - www.JohnMcCain.com “Amendment principles. candidate as a tireless In June 2006 the Senate failed to recommend a 28th amendment to the When confronted by talk The 2006 proposed amendment was not the first time McCain had voted to defender of the First U.S. Constitution by just one vote. Obama voted against the amendment that Flag-burning amendment outlaw flag burning. In 1999 the Republican-controlled Congress attempted, show host Don Imus “Amendment. The bottom would have banned “desecration of the American flag.” Obama noted that and failed, to add a similar constitutional amendment. In his support of the 1999 law, McCain he was in favor of legislation that would make it illegal to burn the flag, but did not think a consti- about the claim that his said he did not believe that “guaranteeing respect for our national symbol by prohibiting ‘acts’ of line is that we can rea- tutional amendment was necessary. The alternative law, proposed by Sen. Richard Durbin (D-Ill), campaign finance legis- desecration impinges on political ‘speech.’” sonably predict that both would have imposed penalties for burning the American flag as a means of intimidation or inciting lation violated the First candidates would be in violence but would not have banned flag-burning altogether. Durbin’s bill was rejected 36 to 64. Amendment, McCain favor of tighter controls Video game violence During a June appearance in New Hampshire, the blog GamePolitics.com re- responded by stating: on broadcast indecency. In addition to being in favor of tougher standards for broadcasters, Obama has ported McCain had said he felt that parents should take the active role in said, as president, he would ensure that violent and potentially disturbing video regulating which video games their children play. In May 2000 the Senator “I would rather have a Obama’s views on cultur- games would be clearly marked. In an interview with CommonSenseMedia.org, Obama said he sponsored the Media Violence Labeling Act, which would have mandated a labeling system for clean government than al restrictions are lesser wants the video game industry to regulate itself, “but if the industry fails to act, then my admin- violent media. The bill has yet to be voted on. McCain’s stance differs from Obama’s in that the one where quote ‘First known because he hasn’t istration would.” Republican senator puts a stronger emphasis on parental restrictions on what video games chil- dren play rather than emphasizing a stronger government role. Amendment rights’ are been around as long as being respected that has McCain.” McCain has proven himself to be a staunch advocate of protecting children become corrupt … If I had As a state senator in Illinois, the Democrat co-sponsored the Verbatim Record Other legislation from offensive or indecent media. McCain introduced the Children’s Internet Robert Richards Bill, which was signed into law in August 2003. The legislation requires govern- my choice, I’d rather have director, Pennsylvania Center for the First Amendment Protection Act in the Senate in 1999. CIPA requires schools and libraries that ment organizations to make video or audio recordings of all closed-door meetings. The bill had the receive certain discounted technology or federal education funds to install measures in their com- the clean government.”” strong support of the Illinois Press Association. puters that would block Internet access to “visual depictions that are obscene, child pornography, or harmful to minors …” President Clinton signed the bill in December 2000. Lawrence G. Walters First Amendment lawyer and partner at the Florida- based law firm Weston, Garrou, Walters & Mooney

20 splc report • www.splc.org Fall 2008 Fall 2008 www.splc.org • splc report 21 access

From Conventions, Page 19 per, book, broadcast, or other similar form of public communication.” Come prepared security plan they will use during the con- There are some exceptions to this law. If you are covering the conventions, vention. A police spokesman told the Asso- But, Kissinger said, they are limited. here are a few precautions to take. ciated Press that they have talked with local Police may confiscate a reporter’s equip- ITEMS TO CARRY AT ALL TIMES protest groups to “clear up any misunder- ment if the reporter is suspected of commit- n Important phone numbers, including standings and rumors that are out there.” ting a crime by using that equipment. For those of family, friends, hotels, editors and Tilton will be working for the RCFP’s instance, if a reporter were to start taking journalism advisers. Write them on paper hotline for journalists covering the Repub- pictures within a courtroom that has banned in case your cell phone is lost or taken. lican convention. all photos, that reporter’s camera could, un- Two more numbers to hold on to: “The most awkward situation would be der this act, be legally confiscated. SPLC: 703-807-1904 if a journalist were to get arrested and no The law also says a reporter’s notes could Reporters Committee 24-hour hotline: one had any record of them being part of be taken if “there is reason to believe that 1-800-336-4243 the media,” Tilton said. the immediate seizure of such materials is n Panos echoed that worry. He said there necessary to prevent the death of, or serious Cash ($50-$100) would be a “media center” in the city where bodily injury to, a human being.” n Photo ID journalists can register for city-issued press Covering it from the inside credentials to help identify themselves as re- n Credit card porters in the case of a mass arrest. “We want to help reporters, not kick In addition to the protests going on in n Change (for pay phones) them out,” Panos said. the streets, there are still the conventions Kissinger suggested reporters make themselves to cover. n Press pass issued by your newspaper, themselves clearly identifiable to police. She “I think people forget that a lot of busi- radio or TV station. said reporters should wear hats or helmets ness actually gets done during these things,” that say “Press” and wear their credentials Natalie Wyeth, a Democratic convention OTHER TIPS n around their necks at all times. spokeswoman, said. “All of the caucuses Mark yourself as a reporter by writing “If you get caught up in a mass arrest, tell meet and we select the official party plat- “press” on a jacket or hat. This might help police distinguish journalists in a crowd in the police right then that you’re a member form for the upcoming election.” case of a mass arrest. of the press,” Kissinger said. “Be courteous Wyeth said the convention will start at and respectful to the officers, but tell them 7 a.m. with prime-time programming wrap- n Establish a meeting point with other re- you’re a journalist before you get arrested.” ping up around 9 p.m. That’s 14 hours of porters and photographers in case you get One problem Rankin, the Kent State meetings, speeches, rallies and discussions separated. Work out a plan with editors in journalist, ran into was that she did not to cover. case a reporter is detained or arrested. know what to do with her notes when she Adam Nagourney, a political reporter was being arrested. for The New York Times, said it is impossible “I had heard from someone that the po- for one reporter to cover everything that will be available online. lice would take my notes,” Rankin said. “So, happens at a convention For the most part, political conven- I started ripping pages out of my notebook “You’re dealing with an incredible tions are scripted events; surprises or scoops and shoving them into my bra and pants. amount of information and data. It’s hard for journalists to jump on are few and far Really, anyplace I thought they wouldn’t be to filter it all,” Nagourney said. “Reporters between. Nagourney said to look for the taken from me.” should focus on a particular story or story- themes that will begin to present themselves This was not a unique situation. There line and go with that.” as the events unfold. have been occasions where police officers Richard Valenty, a reporter for Colorado “Everything big happens at night, so the have confiscated a reporter’s notes or- vid Daily, a professional newspaper focused on deadlines are intense … intense,” Nagour- eotape while making an arrest. However, the University of Colorado, said he is read- ney said. the Privacy Protection Act of 1980 provides ing everything he can in anticipation for the To actually enter the Xcel Energy Cen- strong protections for a reporter’s notes and Democratic convention. ter in St. Paul or the Pepsi Center in Denver, other documents. “I’m preparing to spend time both in- reporters must have filed for and received The law says a government agency, in- side and outside on the street,” he said. “The press credentials from the respective con- cluding police, may not “search for or seize inside stuff might be as interesting as the vention administrators. any work product materials possessed by a outside stuff. We’ll have to wait and see.” Montoya said the Rocky Mountain Col- person reasonably believed to have a pur- Subbotin, a Republican convention legian received six press credentials to the pose to disseminate to the public a newspa- spokesperson, said lists of each day’s events Democratic convention with varying de-

22 splc report • www.splc.org Fall 2008 ACCESS grees of access. dium holds 76,000 people, compared to the lic,” Wyeth said. “There are some that give us access to Pepsi Center’s 20,000. Officials expect nearly 15,000 members the area outside the arena but not actually in The details of how to gain access to the of the news media to attend the Democratic the Pepsi Center,” Montoya said. “There are speech have not yet been set. However, Wy- convention. other credentials that get us into the hallway eth said officials are working on a “commu- “There will be a lot of big-time media and a rotating floor pass that will allow us to nity credentialing” plan that would allow there,” Ewart said. “It feels good to be work- talk to delegates.” thousands of people, including non-creden- ing with the professionals.” Although security is usually tight at these tialed journalists, into the event. Wyeth said student journalists, who may events, Wyeth said, a press pass will not be In addition to Obama’s acceptance be covering something of this magnitude for required for all aspects of the convention. speech, other events at the Democratic con- the first time, should follow the profession- On July 7, Barack Obama announced vention will be open to the public for jour- als and ask questions if they are confused he would accept the Democratic presidential nalists who were not able to secure media about where to go or proper etiquette. nomination at Invesco Field at Mile High, credentials. “Trust your own judgment,” Nagourney the Denver Broncos’ football stadium, not “Between 10 a.m. and 2 p.m. there will advised. “Don’t let people spin you. If you at the Pepsi Center where most of the con- be caucus meetings in the Colorado Con- think someone did a good job on a speech, vention’s activities will take place. The sta- vention Center. They’ll be open to the pub- go with it.” n

ACCESS in brief

agreement with the U.S. Department ated student groups’ requests for access University to pay of Education and we appreciate their to the university’s over-realized fund. largest-ever fine for recognition of the progress and improve- The fund built up $750,000 that would ments EMU has made during the past be doled out for the 2008-09 year. faulty crime reporting year in regards to Clery Act compli- The meeting, then-Oregon Daily ance.” Emerald Editor in Chief Laura Powers MICHIGAN — Eastern Michigan In a Dec. 14 letter to the university, said, was in violation of Oregon’s public University in June was ordered to pay the education department called EMU’s reports and meetings law because the $350,000 in fines for 13 violations actions an “egregious violation, which public was not given 24 hours advance of the Clery Act, the largest fine ever endangered the entire EMU campus notice as is required by Oregon Revised imposed for violating the law govern- community.” Statue 192.640. ing disclosure of campus crime data. The controversy over EMU’s At the meeting, Powers raised an The fine is $7,500 less than the original handling of the Dickinson murder led objection, but Dotters-Katz said the amount issued by the U.S. Department to the dismissal of former university meeting continued because members felt of Education. President John Fallon and two other no action could be taken against them Among the violations, the depart- university officials. Fallon has filed a so close to the end of their Senate terms. ment found EMU inaccurately reported lawsuit against the university, claiming In an e-mail to the ASUO Senate, the circumstances surrounding the death his rights were violated under the Michi- Patrick Boye, then-chairman of the of student Laura Dickinson in 2006. gan Whistleblowers Protection Act when Over-Realized Committee, wrote that EMU police “immediately determined he was fired. he did comply with public meeting laws the death to be suspicious in nature,” when he contacted Emerald reporter the Education Department said. But a Editor alleges student Robert D’Andrea about the meeting. day after Dickinson’s body was found, a Powers filed three grievances with university statement said there was “no senate at U of Oregon the ASUO Constitution Court in rela- reason to suspect foul play.” tion to the May 13 meeting. The court, The Clery Act is a federal law that broke sunshine law in a June 8 decision, dismissed Powers’ requires any university taking federal claims and stated Powers did not make money to disclose information about OREGON — A University of Oregon “a factual showing that it was a meeting crime on campus, including “timely student senate committee disregarded that would fall under Public Meetings warnings” about serious ongoing threats. the state’s open meetings law, according Law requirements.” The university also settled a civil to student government president Sam Powers graduated in May and is no lawsuit with the Dickinson family for Dotters-Katz. longer able to file complaints with the $2.5 million. A May 13 meeting of the Associated Constitution Court. She said she hopes In a press release, the university said, Students of the University of Oregon the Emerald will refile a complaint with “We’re pleased to have arrived at an Senate Over-Realized Committee evalu- the court.

Fall 2008 www.splc.org • splc report 23 LIBEL/Privacy Privacy rules could stunt access

By Jimmie Collins rectly relates to the student’s attendance, the department is creating a new exception that roposed changes to the regulations is “not found in the statute, is without au- governing the Family Educational thority and is potentially damaging,” wrote Rights and Privacy Act could result the Center for Law and Education (CLE), a Pin denying access to information that would non-profit organization that provides legal be crucial to keep schools accountable, some assistance in low-income communities. First Amendment advocates say. The Center argued in its comments that The U.S. Department of Education’s a school could continue to collect informa- Family Policy Compliance Office currently tion about its former students, including is reviewing 121 comments made about the negative information such as allegations changes and expects to finalize the proposal of criminal activity, and that information sometime in December, said Jim Bradshaw, would not be treated as a confidential edu- a spokesman for the Department of Educa- cational record under the proposal. tion. Once finalized, the changes are expect- An education record is an education ed to take effect in January 2009. record whether the person it involves is in Comments from several organizations, attendance at the time or not, said Kathleen including the Student Press Law Center, ex- Boundy, CLE co-director. pressed concern that some language in the Boundy asked that the Family Policy proposal might be overly broad and would this provision to mean that any record cre- Compliance Office consider students who allow schools to deny access to records that ated or received after a student is no longer have dropped out, been expelled or who in- would otherwise be open under the statute. enrolled is not an education record under tend to re-enroll. Data the school collects on FERPA forbids schools and colleges that FERPA,” the department wrote. a student between attendance periods could receive federal funding from releasing indi- The department provided an example of be considered unprotected information un- vidual students’ educational records to the what would be considered private under the der the proposed rule, she said. public, with a few exceptions for informa- proposed changes to the regulation: a settle- “Although the definition of student tion that has personal identifying informa- ment agreement about events that happened properly includes former students, this ex- tion redacted or that does not pertain to a when a student was enrolled. emption from the definition of ‘education specific student. But a settlement agreement is precisely record’ undermines the former student’s The Department of Education is in the kind of document that might be news- ability to exercise his rights under the stat- charge of administering and enforcing FER- worthy, the SPLC wrote in its comments. A ute,” Boundy wrote in an e-mail to the PA, and periodically issues clarifying regula- settlement could involve sexual harassment SPLC. tions that implement the statute. by an instructor, an injury due to the school’s negligence or any other instance where dis- Reading minds? Confusion on former students closure would be necessary to hold the insti- tution accountable, the SPLC wrote. While FERPA requires schools to with- U.S. Secretary of Education Margaret “By using a ‘settlement agreement’ as hold records that contain educational infor- Spellings proposed a change to the defini- an example of a confidential record, the mation about named individuals, proposed tion of educational records clarifying that Department sends a very dangerous mes- changes could effectively expand FERPA records created or received after a student sage to schools — a message that invariably by denying information that is “linked or leaves school — and that are not directly will multiply the already alarming number linkable” to a specific student, even if the related to the student’s attendance — would of wrongful FERPA-based denials,” wrote information does not name or identify any be excluded from FERPA protections. The Frank LoMonte, SPLC executive director, student. The proposal also says schools Department of Education wrote in the Fed- in comments to the department. should refuse information to a requestor eral Register that there has been some confu- But some privacy advocates argue that if the institution believes the requestor has sion among schools about the provision ex- the rule does not go far enough in protect- “direct, personal knowledge of the identity cluding alumni records from the definition ing confidentiality. By declaring that FERPA of the student to whom the educational re- of educational records. does not cover records received after a stu- cord directly relates.” “Some schools mistakenly interpreted dent’s enrollment unless the document di- Some fear this language adds a subjective

24 splc report • www.splc.org Fall 2008 Libel/privacy standard that entrusts too much discretion erations, but also in regard to the safety of fenders who enroll at the institution. The to school officials to make judgment calls on its students, parents and other members of school is instructed to make information releasing or withholding documents. the educational community,” Ramirez said about that student available to the campus “The Department’s proposal would - re in an e-mail to the SPLC. community, campus law enforcement and quire school employees to ‘read the minds’ Many people from both sides of the local law enforcement agencies. of people requesting public documents, open-records debate contend that as long Although these statutory changes went with the illogical result that the very same as a document does not contain personally into effect seven years ago, the Family Policy piece of paper will be an open record to one identifiable information or that particular Compliance Office said the agency is not re- requestor and a confidential educational information has been redacted, the record quired to make changes to the regulations record to the next requestor, based on the should be made available regardless of any every time an amendment is made, but that subjective judgment of a school employee,” other information the requestor may have. the agency enforces the statutory changes LoMonte said in a written statement. The statute defines personally identifi- and provides written guidance until the Betsy Hammond, an education reporter able information as a student’s name, social regulations are amended to catch up with for The Oregonian, wrote comments on be- security number, student number, Internet the statute. half of the Education Writers Association identifiers, family members’ names and per- “Writing regulations is quite time-con- saying that the proposal runs the risk of sonal characteristics that would make the suming and the more changes you have to closing the doors to performance data be- student’s identity easily traceable. Proposed make, the longer it takes to get everything cause disclosing information by students’ changes to the Education Department reg- through and to publication in the Federal grade levels or ethnicities could reveal in- ulations would add biometric identifiers Register,” Bradshaw said on behalf of the of- formation that is “linked or linkable” to a — such as fingerprints — and other indi- fice. “Typically, we wait until we have sev- particular student. rect identifiers such as the place and date of eral changes that need to be made before Hammond also said that both educa- birth or mother’s maiden name. undertaking the regulatory process.” tion reporters and parents might have trou- The CLE also suggests that further clari- The amendments to department regula- ble accessing records because they are likely fication of the “linked or linkable” standard tions, proposed in March, are meant to im- to know students at the school and have is necessary, saying there is no need to ques- plement those changes made to FERPA by the ability to connect them to the records tion the motives of those who request re- Congress. The proposed changes also make at hand. cords if the standards for personally identifi- clarifications that arose from two Supreme For instance, parents of an eighth-grade able information remain restricted to those Court decisions and “amendments that have student might be ineligible to receive statis- authorized by the statute. been identified as a result of the [Depart- tics on dropout rates because they are likely Boundy said this change in the regula- ment of Education’s] experience in admin- to have direct knowledge of many of their tion is intended as further protection for istering FERPA,” according to the notice of children’s classmates. students, which her organization advocates, proposed rulemaking. “These unintended consequences of pro- but the standard is confusing. Changes also were made in response posed changes in language regarding ‘per- “This proposed language appears to cre- to the shootings at Virginia Tech. Those sonally identifiable information’ mean the ate an unenforceable standard, transferring changes would allow campus officials to definition must be further refined to protect to the holder of the records responsibility share more information about students’ the public [interest] in being able to scru- for making a subjective determination of mental health. tinize the performance of public schools,” what is in the mind of the inquirer at the The final regulations are expected to be Hammond wrote. time of the request,” the CLE wrote. published in December and — unless oth- Clifford A. Ramirez, who worked in the erwise noted — will take effect 30 days after Registrar’s Office at the University of Cali- Balancing rights publication in the Federal Register. A discus- fornia at Los Angeles, said that the regula- sion of the comments received that were rel- tions are not meant to impede or obstruct Congress made changes to the FERPA evant to the proposal will be published with the evaluation of academic programs or the statute via the USA PATRIOT ACT of 2001 the final regulations, Bradshaw said. ability of citizens to hold schools account- and the Campus Sex Crimes Prevention “It is laudable that open records ad- able. Act. The Patriot Act changes allow schools vocates continue to argue for vehicles to Ramirez said the school can release re- to release information to the Attorney Gen- ensure the integrity of our public institu- dacted information — such as statistics on eral — without consent or knowledge of the tions,” said Ramirez, the former UCLA of- dropout rates — but the institution may student — in connection with the investiga- ficial. “Not to be forgotten in that dialogue, also deny access if there is suspicion of a tion or prosecution of terrorism crimes. The however, is consideration for the privacy of “targeted” request. Campus Sex Crimes Prevention Act makes the citizens themselves. In other words, our “The institution must make a -respon an exception to FERPA allowing schools to Constitutional rights do not end at the First sible judgment based upon privacy consid- release information about registered sex of- Amendment.” n

Fall 2008 www.splc.org • splc report 25 Libel/privacy Sensitive subject

tion of emotional distress, among other Students’ oral sex quotes claims. But an official lawsuit has not yet been filed. Washington state law land Wash. high school AN OPEN FORUM FOR STUDENT EXPRESSION requires petitioners seeking legal action paper in legal trouble against any local government entity to By Kelsey Beltramea file a claim outlining their case before they actually file the lawsuit in court. igh school journalism depends on The petitioners argue they express- minors consenting to interviews. ly requested anonymity in the newspa- In Claremont, Calif., a high school per and were told by newspaper staff Hjunior told the student newspaper she sup- members their names would not be ported a new law banning cell phones while printed. But JagWire staffers told the driving. A freshman at a Jewish day school Student Press Law Center they took in Rockville, Md., discussed morality and extra care to make sure it was OK to capital punishment with her student pub- publish names, even returning to each lication. And in Palo Alto, Calif., a student source to check wording for accuracy. newspaper quoted a high school junior on This case touches on an area of the his feelings about the constitutionality of law that is surprisingly underdevel- EMERALD RIDGE HIGH SCHOOL.12405 184TH ST E SOUTH HILL, WA 98374 volumeEIGHT.issueFIVE.february2008 same-sex marriage. oped, said Mike Hiestand, legal consul- COURTESY OF THE JAGWIRE But when a 17-year-old girl in Puyallup, tant to the SPLC. He said courts have Several students who were quoted in Emerald Ridge Wash., told members of her student news- never addressed consent by minors in High School’s student newspaper talking about their paper staff about her oral sex experience, student media, although they have oral sex experiences now are alleging they were and they printed her name and statement, addressed the issue in cases involving told their names would not be included. Editors say she cried foul. professional media outlets. The courts the students agreed to be quoted by name. The girl is among a group of four stu- have recognized that a minor’s consent dents and their parents who have filed generally is valid if he or she is capable nors’ or their parents’ consent merely to re- claims against the Puyallup School Dis- of understanding the consequences, even if port the story. trict; three reporters from Emerald Ridge parental consent is not obtained or parents Hiestand advised that newspapers take High School’s student newspaper, the Jag- expressly refuse. As long as the person has extra care when the material is “sensitive.” Wire; and two faculty members, contending the legal capacity to give consent — regard- “When you have particularly private they did not have permission to print the less of age — courts have considered the information or private stories, you need to students’ testimonials about oral sex in the consent adequate. be careful with everyone involved,” he said. paper’s February issue. The U.S. Supreme Court set the foun- The same ethical standards apply to profes- Four pages of that issue were dedicated dation for this standard in 1979 in Smith v. sional and student media. to the topic of oral sex, with stories ranging Daily Mail Publishing Co. when it ruled that Hiestand said journalists should make from a description of the hormones triggered journalists can print minors’ names as long sure their fellow students know they are in oral stimulation to counterpoint columns as the information is “lawfully obtained” speaking with a reporter and that the re- in which reporters discussed whether it is and “truthfully” reported. Daily Mail had porter is interviewing them for a story that immoral to engage in the behavior. The stu- challenged a West Virginia statute, which will be published. They should remind dents bringing claims shared their personal criminalized publishing names of any youth sources that the publication may be read by oral sex experiences in pull quotes displayed charged as juvenile offenders without court students, parents, teachers and members of prominently in the package. approval, on behalf of two newspapers that the community. For example, one 18-year-old female se- were prosecuted for printing the name of a And when journalists are interviewing a nior — who was also identified by name in 14-year-old student alleged to have shot and minor, Hiestand said it is advisable to get the article — said, “I was 15. I was horny. It killed a 15-year-old classmate. consent in writing, wasn’t really a relationship at that point.” The courts have determined minors’ pri- “It’s best to get these consents in writ- Each of the student plaintiffs is seeking vacy rights are analogous to adults’ when the ing because stories change,” he said. “They up to $1.5 million in damages for invasion subject matter is “newsworthy” — meaning of privacy, negligence, and intentional inflic- reporters do not necessarily need to get mi- See Jagwire, Page 28

26 splc report • www.splc.org Fall 2008 Libel/privacy Public figure hurdle remains high College officials fall short in suits challenging statements published about them

campus and the paper’s allegedly defama- By Kelsey Beltramea tory statements were related to that con- Online ourts in two recent cases have re- troversy, the court ruled. For those reasons, A law professor is suing affirmed that university professors Lewis could win his lawsuit only if the pa- several students who he and administrators are public fig- per published the statements with “actual says defamed him by accusing him Cures who face heavy burdens when trying malice.” of making racist remarks. to claim they were harmed by information “It’s always gratifying in a case like this http://www.splc.org/report.asp published or circulated about them. when there’s an admitted and serious error Courts in Minnesota and Maine threw that’s made and you win,” said the Chron- former girlfriend had secured. out the officials’ lawsuits, ruling that because icle’s attorney, Mark Anfinson. “That’s the Members of the fraternity decided to the plaintiffs hold public positions at their whole notion of New York Times v. Sullivan use this information. They made copies of institutions, they must meet standards the where the actual malice standard came from the records, sealing them with an unsigned law requires of public figures. — a necessary breathing space for error and memo that read: “Enclosed please find news- Eric Robinson, staff attorney for the debate.” paper articles and court documents detailing Media Law Resource Center, said neither Mr. Fiacco’s previous legal difficulties: DWI, case is necessarily groundbreaking; they just Truth as a defense Sexual harassment, and Domestic Violence. underline present law. Is this honestly the best qualified candidate “My impression is that public university In Maine, a federal appeals court ruled the University of Maine could find for the employees have more or less typically been that administrator David Fiacco could not Office of Judicial Affairs?” held to be public officials,” he said. “These win his intentional infliction of emotional With the help of an alumnus in Colora- cases just reinforce that.” distress lawsuit against a fraternity because do, the fraternity members mailed the pack- the statements he claimed members made ages without return addresses to the univer- ‘Breathing space for error’ were essentially true. Fiacco is the director sity president, several deans, the University of the Office of Community Standards, of Maine System Board of Trustees and two In Minnesota, the state’s appeals court Rights and Responsibilities at the University local newspapers. In his lawsuit, Fiacco said ruled in January that Richard D. Lewis could of Maine at Orono. this caused him insomnia, nightmares and not win his libel and defamation lawsuit Whereas private individuals can win depression. against St. Cloud State University’s student emotional distress claims even if they con- But the court ruled the statements in newspaper because the University Chronicle cede the statements in question were true, the memo were not false because Fiacco did not publish its statements with “actual public officials or public figures must show was convicted of Driving While Ability malice,” knowing the statements were false. those that published the statements knew Impaired, similar to Driving While Intoxi- The Minnesota Supreme Court refused to they were false or were reckless in verifying cated, and his former girlfriend obtained review the case in May. their accuracy. the restraining order under the Colorado The Chronicle quoted a former student And because what the campus chapter Domestic Abuse Act, which indicated the saying Lewis “mistreated” her by changing of Sigma Alpha Epsilon said about Fiacco court found Fiacco had committed an act of her grade from an A to an incomplete. The was essentially true, Fiacco — as a public violence or threatened to do so. student also said that the former dean was official — had to meet this standard of “ac- anti-Semitic and accused him of using ra- tual malice.” The 1st U.S. Circuit Court of Drawing lines cial slurs, but she later retracted those state- Appeals ruled he did not. ments, saying she meant them about some- After Fiacco began investigating Sigma Gary Dickstein, president of the Associ- one else. The Chronicle printed a partial Alpha Epsilon for misconduct in 2002, a ation for Student Judicial Affairs, said presi- correction, and Lewis sued. group of fraternity brothers hired a private dents of universities are obviously public of- But in January, the Minnesota Court of investigator to look for evidence of bias Fi- ficials. But he said judicial affairs officers at Appeals threw out the lawsuit, ruling that acco might hold against fraternities. Instead, fair-sized institutions are not typically con- Lewis is a “limited-purpose public figure.” the investigator uncovered a Colorado Driv- sidered to wield that much executive power. Lewis was meaningfully involved in a pub- ing While Ability Impaired conviction and lic controversy regarding anti-Semitism on a restraining order against Fiacco that his See Officials,Page 28

Fall 2008 www.splc.org • splc report 27 Libel/Privacy

From Jagwire, Page 26 oral sex, but the district’s sex education cur- wrote it up on a bathroom wall, the school riculum did not address the topic. would hurry to erase it and make sure it was might have thought it was a good idea to “People think the design and the quotes taken down,” he said. “And in this case, they talk to the newspaper about their sex lives in were just to be sensationalistic, and that’s put it in a newspaper.” February, but when the paper comes out in not what they were for. They were so parents Kathy Schrier, past-president of the May they might change their minds.” couldn’t say, ‘That’s not my kid,’ ” LeConte Washington Journalism Education Associa- It also never hurts to get parental con- told the SPLC. “If you put a pull quote that tion, said it was her understanding that the sent, if possible, Hiestand said, though says one in three kids is having oral sex, many, students at the JagWire took sufficient pre- court rulings suggest such consent is not many, many parents will say ‘Well, that’s the cautions before printing the students’ names. legally required. bad one third of the students. That’s not my In any case, she said she did not think there Lauren Smith, a member of the JagWire’s kids.’ And that’s just not the issue.” was anything illegal about a student newspa- editorial board, said a couple of students No administrators at Emerald Ridge per quoting an underage student who knew changed their minds about being quoted High School were available to speak with the he or she was on the record. It would be dev- even before the issue went to print. The staff SPLC. One parent bringing a claim said all astating for journalism if minors could not respected a girl’s wish to retract her com- families had been advised not to comment. talk openly with reporters, Schrier said. ments and altered a boy’s quote a couple of Their attorney, John R. Connelly, Jr., “I think it’s hard to imagine that could days before publication at his request. said the students did not know their names ever happen, but it is a slippery slope, so Gerry LeConte, also an editorial board would be printed and did not understand when things like this happen at the JagWire, member, said they considered eliminating the consequences of sharing their oral sex and that’s the direction things seem to turn names altogether but feared losing the mes- experiences with the paper. in, it makes me pretty nervous,” she said. sage they wanted to convey in the first place. “The concern that I’ve got is that you’re “It would put a real chilling effect on the The newspaper conducted a poll that found publishing very private information, and reporters’ possibility of getting a full story if one in three students had participated in it’s the type of information that if someone something like that would happen.” n

Libel in brief From Officials, Page 27 him damages for her role in reviewing Former student plans the search warrant application. “Generally, they’re somewhere between appeal in suit against The federal district court refused to address the criminal libel statute’s middle managers and senior staff,” he said. Colo. prosecutor constitutionality, ruling that Mink The court’s reasoning, distinguishing Fiacco as a public official because he had author- COLORADO — A former University could not contest the law because he ity to decide whether students were allowed of Northern Colorado student will ap- was never charged under it. An appeal peal a federal judge’s decision to dismiss was unsuccessful on that claim, but the to continue in school, could be applied to his lawsuit against a prosecutor to the appeals court allowed Mink to continue many school officials, he said. 10th U.S. Circuit Court of Appeals. his case against Knox. Jane Kirtley, director of the Silha Cen- Thomas Mink is contending that a dep- In district court in June, Judge ter for the Study of Media Ethics and Law, uty district attorney wrongfully issued a Lewis T. Babcock ruled that Knox was said without the actual malice standard, it warrant to search his home and seize his entitled to qualified immunity, which would be impossible to evaluate people in generally protects most public officials computer while investigating a criminal positions of power. from being sued for actions performed libel accusation against Mink in 2003. “When we’re talking about professors A professor at the university, Junius as a part of their official duties. A reasonable official in Knox’s posi- at any kind of state university, certainly at Peake, had alleged that doctored photos least there is a threshold to the argument and parody columns that Mink pub- tion could believe that the statements that since you’re on the public payroll, your lished in his online journal, The Howling in The Howling Pig were not protected Pig, defamed Peake. Susan Knox, the statements under the First Amendment actions are clearly a matter of public inter- deputy district attorney, approved a and could violate the state’s criminal li- est and you should be considered a public search warrant for Greeley police to bel law, justifying the warrant, Babcock figure for at least that particular purpose,” investigate Mink, but her office never concluded. Mink filed a notice to appeal she said. pressed any charges. in July. But the expanse of that classification is a Mink filed his lawsuit in 2004, Case: Mink v. Knox, No. 08-1250 (10th reasonable topic for debate and discussion. arguing the state’s criminal libel law Cir. appeal docketed July 15, 2008), ap- Said Kirtley, “I’m not sure just becom- pealing from No. 04-00023 (D. Colo. and the investigation violated the First ing a professor, and I speak as one, doesn’t June 28, 2008). Amendment. He also said Knox owed necessarily open you up as a public figure in every instance.” n

28 splc report • www.splc.org Fall 2008 College Censorship A new year and a new path Editors at 3 schools prepare for their outlets’ first years of independence

By Rob Arcamona Magazine, KCSU ra- dio station and CTV hen student editors decide to go television, came after it alone, the road can be a rocky a Sept. 21 editorial in one. At Quinnipiac University, the newspaper that WJason Braff looks at his online publication’s read “Taser This… bank account. It’s empty. Meanwhile, Aar- Fuck Bush.” on Montoya of Colorado State University The editorial cre- wrangles with the Internal Revenue Service ated a media firestorm as Bobby Melok of Montclair State Univer- that prompted officials sity sits with his lawyer drafting paperwork. to look for a way to re- These student newspaper editors, from structure the newspa- Connecticut to Colorado to New Jersey, all per, and eventually all have one thing in common: They are mov- of Student Media. Sev- ing their newspapers away from the shel- eral ideas were thrown ter of the university and into the outside around, including selling the paper to media vices and a subscription fee to the Collegian world. giant Gannett. Eventually, a university com- and College Avenue, as well as for providing mittee endorsed a plan to form a nonprofit an educational laboratory experience for the Rocky Mountain Student Media corporation. 2008-09 year. According to the agreement, The Board of Governors gave Student the university must hand over $500,000 of On June 3 Colorado State University Media a deadline of Aug. 1 to make the that amount by Aug 1. announced it would spin off its student-run switch to their new structure. The agreement, which ends in July 2011 media outlets from the school. The Board of “The last couple of months have been if it is not renewed, calls for funding levels Governors approved a measure that allowed a little hectic because the timeline is fairly to be renegotiated in May 2009 and May Student Media — which consists of the short,” Montoya said. “We’re working day 2010 for the following year. school’s student newspaper, radio station, and night to make sure things are in place.” One of the first things Steward said television station and magazine — to form Larry Steward, president of Student Me- would happen is updating the radio and a nonprofit 501(c)(3) corporation. dia, said forming the nonprofit was the best television stations’ equipment. The newly formed Rocky Mountain thing the university could have done with “The TV and radio station has been Student Media Corporation has filed paper- the program. under-funded and needs to be upgraded,” work with the Colorado Secretary of State “We’re going to be more student-ori- Steward said. “That’s a high priority. These and the IRS for official recognition as an in- ented and more student-focused,” Steward kids need the right tools to do a good job.” dependent nonprofit company. Other uni- said. “Students will be protected from all Although Montoya said forming Stu- versities, such as Michigan State University, forms of prior restraint and content censor- dent Media was done at a breakneck pace, Iowa State University and the University of ship.” he expects everything to be up and running Texas, have taken similar steps to form non- In July the university released its formal by the time Colorado State students begin profit corporations for their student media operating agreement with Student Media. classes on Aug. 25. operations. A nine-member governing board — com- “Our goal is to have readers not notice a “We’re stressing the fact that we’re no posed of five students and two members of difference because of the change,” Montoya longer a university department,” said Aaron the university, as well as Steward and Ray said. “Our professional advisers will notice Montoya, editor in chief of Student Media’s Caraway, president of the Community changes, but we don’t want our readers to newspaper, the Rocky Mountain Collegian. Foundation of Northern Colorado — will notice a thing.” “Our goal is still to be here for students, but run the corporation. we work for the corporation now.” Under the deal, Student Media will re- The Quad News The move to reorganize Student Media, ceive $1 million in assistance from the uni- which includes the Collegian, College Avenue versity for transition funding, broadcast ser- After wrestling with Quinnipiac Univer-

Fall 2008 www.splc.org • splc report 29 College CENSORSHIP sity officials over who should have control affairs, believes the paper will do just fine over the newspaper, then-Editor in Chief without the experienced editors. Jason Braff, along with 20 other editors, “We have a fresh crop of ambitious, We thought they were taking too walked out of the Quinnipiac Chronicle’s extremely talented young people, many of much control out of our hands and at newsroom, refusing to work for the paper. whom recognize the importance of building that point thought it better to walk off “We thought they were taking too much a resume with experience at a student news- and start our own paper.” “ Jason Braff control out of our hands and at that point paper,” Bushnell wrote. former editor in chief of The Chronicle at Quinnipiac University thought it better to walk off and start our One of Braff’s biggest concerns lately is own paper,” Braff said. finding funding forThe Quad News. Braff and his team of editors formed an “Right now, we have no money whatso- At a Feb. 27 SGA meeting, University online-only publication called The Quad ever,” Braff said. “We’re working with Col- President Susan A. Cole said that by July 1 News, which they expect to launch in the lege Publisher to host our Web site for free. The Montclarion would no longer be a part fall. They have the assistance of a Quinni- They’ll generate advertisement dollars and of the SGA and that the university would piac law student who is volunteering to help hopefully we’ll boost our market share to ensure the newspaper would have enough the new outlet become a limited liability make some money.” funds to print for the rest of the academic company. year, in case the SGA decided to pull fund- “We’re going to operate just as the The Montclarion ing for the paper again. Chronicle did, except that it will be all on- Later in that same meeting the SGA, in line and we can publish events when they’re On July 24 the Montclair State Univer- a 7-to-7 vote that came down to a tiebreaker happening,” Braff said. “We’ll have all the sity Board of Trustees approved a measure from the SGA vice president, voted to un- same stories plus more.” that will raise the student activity fee by freeze the newspaper’s budget for the rest of In addition to the 20 editors who left $3.80. Those funds will help pay for the stu- the year. the Chronicle, Braff expects about a dozen dent newspaper’s operating budget, as well The separation deadline was pushed reporters to leave the Chronicle in the fall as needed supplies. back until the Board of Trustees meeting, and write for the Quad News instead. The Montclarion drafted paperwork to which guaranteed funding for the new cor- Braff’s disagreement with Quinnipiac be filed with the New Jersey Office of the poration. The university will not fund The officials spanned his run as editor in chief Secretary of State to officially break with the Montclarion’s entire projected $120,000 at the Chronicle during the 2007-08 year. In university’s Student Government Associa- budget. Karen Pennington, vice president of December Braff met with university officials tion and form a nonprofit corporation. student development and campus life at the to end a policy that restricted the Chronicle “I think it’s the best situation for the university, said some of newspaper’s funds from publishing stories on its Web site until newspaper right now,” said Bobby Melok, would come from outside sources such as the printed newspaper had been delivered. The Montclarion editor in chief. “This is ev- advertisement revenue. That policy has since been repealed. erything we need to get up and running.” “All we’re doing is giving them seed The newspaper next took issue with The move came after months of talks money because they’re starting from scratch,” the university’s new policy for selecting with both the SGA and with university of- Pennington said. “We’re giving them an op- Chronicle editors. The university, as part of ficials. The newspaper formerly had been a portunity to get up and running.” a two-year “trial structure” that was set up subdivision of the student government and In mid-July, members of the SGA began to gauge whether the paper could survive received its funding through the SGA. removing some office equipment from the a total break from the university, had the Support to break the newspaper from newspaper’s office. vice president and dean of students, Manuel the SGA came when the organization froze “The SGA is taking two computers, a Carreiro, make the final selection of student the Montclarion’s budget in January, claim- desk, a couch, a keyboard, a paper cutter, editors out of a pool of applicants recom- ing the paper had improperly spent its funds a stapler, and two pairs of scissors,” Melok mended by the paper’s editor in chief and when it hired attorney Sal M. Anderton to said. “It’s not really much at all. We still other managing editors. advise the paper on its claim the SGA vio- have almost everything and ordered all new The policy, which Braff rejected as -un lated state open-meeting laws. SGA officials computers and furniture.” fair, broke with Quinnipiac’s past policy of demanded the paper turn over all its corre- Melok said the university’s money will allowing the editor in chief, managing edi- spondence with Anderton before they would go toward buying new equipment for The tors, faculty adviser and the dean of students release the funds. Anderton and the paper Montclarion newsroom. to select editors together in a round of in- refused, citing attorney-client privilege. Melok and Pennington agree the Board terviews. After its budget was frozen, the weekly of Trustees’ latest move is the first step in After the walkout, Griffin McGrath was newspaper published one online-only edi- their eventual goal of having The Montclar- named student publisher of the Chronicle. tion before the student government issued ion able to support itself with little or no Lynn Bushnell, vice president for public 30 days of emergency funds. university help. n

30 splc report • www.splc.org Fall 2008 College censorship Dirty words

If the FCC wins before the Supreme Court this term, a split- second of profanity could put student broadcasters in peril The Pacifica case By Rob Arcamona And now, the U.S. Supreme Court will hear On Oct. 30, 1973, WBAI, an FM radio a case that could allow those restrictions to station in New York City, broadcast come- alyn Feigenbaum was sitting in the tighten. dian George Carlin’s 12-minute monologue DJ’s chair at Pennsylvania State titled “Filthy Words.” In the satirical rou- tine, Carlin repeatedly rattled off strings of University’s WKPS radio when it Fleeting expletives expletives. A man, who said he was driving Khappened. Through the driving bass line with his son at the time, heard the comedy and shattering cymbal crashes, she heard it In its next term, the Supreme Court will skit and complained to the FCC. come over the airwaves as though it was a hear oral arguments in the case FCC v. Fox The commission did not fine the Pacifi- hand slapping her in the face. Television Stations. The case centers on fleet- ca Foundation, which owned WBAI, but did “Oh, God,” she thought. “I hope no- ing expletives, one-time utterances of words say it could administer formal sanctions in body caught that.” that may be indecent according to FCC response to any similar complaints in the On that darkening November evening regulations but were not penalized by the future. during her radio show, The Indy 500, a caller commission — until recently. Pacifica successfully appealed the asked to hear a song by punk band the Dead The case will be the first major review of FCC’s decision to the District of Columbia Kennedys. In a rush to please her listening the FCC’s indecency policy since the land- Circuit Court of Appeals. Judge Edward Al- len Tamm, one of three judges who heard faithful, Feigenbaum spun the disk, forget- mark 1978 decision in the case FCC v. Paci- the case, wrote in his opinion the FCC’s ac- ting to screen it first. fica Foundation. In the case, which involved tion amounted to censorship. The FCC ap- “A swear word got dropped. I can’t re- the late comedian George Carlin’s comedy pealed to the U.S. Supreme Court. member which one, but I knew I shouldn’t skit “Filthy Words,” the Supreme Court af- In overturning the D.C. Circuit’s deci- have played it,” Feigenbaum said. “We have firmed the FCC’s right to regulate speech on sion, the Supreme Court said the FCC has a a button to fix that sort of stuff, but I don’t the airwaves. legal right to regulate the content of speech know if it worked.” Although the FCC issued a policy state- over the radio. The court stressed that the It was only Feigenbaum’s second time ment in April 2001 to give broadcasters a FCC may not censor radio broadcasts but is behind the microphone and already she better idea of what language it considered to permitted to regulate them. thought she had gotten herself fired, or be indecent, the commission has not issued The court also ruled that indecent worse, fined by the Federal Communica- a list of words it considers to be explicitly speech is not synonymous with obscene speech, which has no First Amendment tions Commission. WKPS has a strict pol- indecent or obscene. protection. This ruling shot down Pacifica’s icy, Feigenbaum said: No swearing, at all, According to managers of student radio argument that because Carlin’s routine was ever. Minutes passed as she waited for the stations, honest, one-time mistakes, like not obscene, it deserved full First Amend- fallout, her eyes repeatedly fixing themselves cursing while on-air or playing a song that ment protection. Thus, indecent speech is to the studio’s telephone, sitting mercifully contains a swear word, are all too common protected by the First Amendment, but not quiet. in student radio. in all circumstances. Indecent speech in The call never came. Feigenbaum did “It happens all the time,” said Sarah Co- over-the-air broadcasts (not cable or satel- not receive a complaint about the song, and lombo, general manager at the University lite) may be regulated but not banned. her bosses did not raise the issue either. Her of Georgia’s WUOG Radio in Athens. “We As a result of the 5-to-4 ruling, the FCC story, a common one in student broadcast- try to stop it but these are students, many had a clear mandate to regulate broadcast ing, is a sobering reminder to any student of them aren’t even broadcast majors. Slips speech. The ruling also led to the “safe harbor” rule. Because the Supreme Court in front of a camera or microphone to not happen.” ruled that indecent broadcast material may only watch what they say, but what others The current Supreme Court court case be “uniquely accessible to children,” the are saying. originates from the 2002 and 2003 Bill- FCC banned indecent material from 6 a.m. Since 1976 the FCC has policed the board Music Awards ceremonies where ex- to 10 p.m. Indecent speech may be aired airwaves for indecent speech, such as swear pletives were said during the programs. outside of those hours, unlike obscene words, issuing fines to stations that violated The most infamous case, however, speech, which is completely prohibited its regulations. These fines can be cripplingly happened during the 2003 Golden Globe from the airwaves. steep to a low-budget, student-run station. Awards where singer Bono of the rock band

Fall 2008 www.splc.org • splc report 31 College CENSORSHIP

U2, upon receiving the award for Best Orig- $15,000 for airing indecent inal Song, said, “This is really, really fucking speech. However, in a move brilliant.” that has confused broadcast- Complaints poured into the FCC after ers and legal experts alike, in Bono’s remarks, largely facilitated by activ- February 2005 the commis- ist organizations such as Parents Television sion ruled that it would not Council. But despite the uproar, the FCC fine ABC Television for its ruled in October 2003 that it would not presentation of the filmSav - fine the broadcast. ing Private Ryan, in which “We have previously found that fleeting several of the same words and isolated remarks of this nature do not are said. warrant Commission action,” the agency “Broadcasters want a ruled. clearer understanding of So, it seemed, the FCC believed one- where the line of permissible time use of the F-word was excusable. Not broadcast lies. It’s a difficult quite. line to find, for broadcasters and the gov- trarily and capriciously” when it issued the Just five months later, the FCC did an ernment,” said Richard Wiley, former FCC fine for such a fleeting image. about-face, saying that not only are fleeting chairman. “Hopefully the Supreme Court According to court documents, Jackson’s expletives subject to indecency fines, but decision will provide some guidance.” breast was exposed to the 90 million people that any use of the F-word, “in any context,” Current FCC commissioner Deborah watching for nine-sixteenths of one second, is indecent and would constitute a violation Taylor Tate, in a speech at the First Amend- enough time for it to fall under a fleeting of FCC policy. ment Center in June, defended the commis- image category. The court said the FCC fine “It is problematic how radically the sion’s regulation of indecent speech, saying was issued without proper notice that the FCC’s policy has changed in the last 5 to 6 it protects children from words that may commission had changed its fleeting images years,” said Robert O’Neil, director of the prove to be harmful to mental health. and expletives policy. Thomas Jefferson Center for the Protection Tate said the commission’s approach “Like any agency, the FCC may change of Free Expression. is a “balance [of] First Amendment rights its policies without judicial second-guess- Several television stations asked the 2nd with the protection of our most valuable re- ing,” the court opinion said. “But it cannot U.S. Circuit Court of Appeals in November source, our children.” change a well-established course of action 2006 to review the FCC’s policy change, In June the Parents Television Council without supplying notice of a reasoned ex- claiming the commission did not have an filed a friend-of-the-court brief with the Su- planation for its policy departure.” adequate reason for changing its policy so preme Court supporting the FCC’s policy. Radio stations may be able to protect abruptly. In supporting the television sta- On its Web site, the PTC argued the 2nd themselves from fines for knowingly airing tions, the court ruled that the change went Circuit’s decision, which said the FCC had repeated swear words, said Leslie Kolovich, against nearly 30 years of precedent set by no right to radically change its policy, “ran general manager of 30A, a small radio sta- the commission. contrary to nearly 80 years of jurisprudence tion in Seaside, Fla., but stopping one-time about the publicly-owned airwaves.” mistakes are much harder. Shades of gray “The simple solution here is that broad- “That’s what worries me,” Kolovich said. casters could and should adopt a zero-toler- “Everyone could have a slip-up.” One of the toughest issues facing stu- ance policy towards indecency, just as they 30A is licensed to the Seaside Neigh- dent broadcasters is that, at the moment, promised they would during a Congres- borhood School, a middle school in a small it is not clear what the FCC will consider sional tribunal after the Janet Jackson inci- beachfront community. Kolovich said the indecent and what it will not. dent,” PTC President Tim Winter wrote in FCC’s policy might force her to be more “The uncertainty they’ve created is bad,” a press release. careful about whom she allows behind the O’Neil said. “Everything is in utter confu- “Janet Jackson” refers to the 2004 Su- microphone. sion.” per Bowl halftime performance where the “Students get to come in and learn In March 2004, television station singer’s breast was revealed during what was about broadcasting and radio. They even get KCSM-TV, a PBS affiliate owned by the coined a “wardrobe malfunction.” to go on air with a little supervision,” Ko- San Mateo County Community College in In July, the 3rd U.S. Circuit Court of lovich said. “It’s a great learning experience Calif., broadcast the Martin Scorsese docu- Appeals, in a three-judge panel, threw out for them, and teaches them things they can’t mentary The Blues: Godfathers and Sons.The the $550,000 indecency fine the FCC lev- learn any place else.” film’s dialogue includes several F-words and ied against CBS for the halftime show. In its Over the last seven years, indecency S-words. KCSM-TV subsequently was fined ruling, the court said the FCC “acted arbi- complaints have skyrocketed. In 2001 the

32 splc report • www.splc.org Fall 2008 College CENSORSHIP

FCC received 346 indecency complaints “It’s just really hard and would be horri- stemming from 152 different programs. ble if we had to closely monitor everything. Last year, according to Tate, there were Especially when someone calls in,” she said. Defining indecency more than 150,000 indecency complaints Kolovich echoed Black’s concern that Below is the FCC’s explanation of what con- filed with the FCC. despite the best efforts of many student stitutes indecency: David Black, general manager and ad- broadcasters, one slip or obnoxious caller viser to WSUM, the University of Wiscon- could mean the end of a valuable learning Material is indecent if, in context, it sin’s student radio station, said the message experience. depicts or describes sexual or excretory to student broadcasters is that their work is “We’re just a small volunteer station. A organs or activities in terms patently offen- not like “playing in a sandbox.” People are first offense would kill us,” Kolovich said. sive as measured by contemporary commu- listening. “We’re totally supported by the community. nity standards for the broadcast medium. In each case, the FCC must determine With the recent spike in complaints and Every dollar keeps us on the air.” whether the material describes or depicts millions of dollars in fines issued, student Student radio and TV stations are of- sexual or excretory organs or activities and, stations have a reason to be wary of the fered no additional protection from fines if so, whether the material is “patently of- FCC’s indecency policy. than are commercial stations. In 2005, those fensive.” “A fine would kill us. Absolutely kill us,” fines became much harsher. The Broadcast In our assessment of whether material Black said. WSUM started as a school proj- Decency Enforcement Act of 2005 raised is “patently offensive,” context is critical. ect in 1993 and assumed its current form the amount the FCC may fine a station for The FCC looks at three primary factors when in 2002. Black boasted that WSUM is one an indecent broadcast ten-fold, to $325,000 analyzing broadcast material: (1) whether of the largest student radio stations in the for every indecent word. the description or depiction is explicit or country. Although Wiley said the FCC does take graphic; (2) whether the material dwells on “It’s hard to decide in 20 seconds wheth- a station’s budget into account when issuing or repeats at length descriptions or depic- tions of sexual or excretory organs; and (3) er or not something is indecent,” Black said. fines, college stations are not exempt from whether the material appears to pander or “Can someone speak metaphorically? What large penalties. In 1993, WSUC, the stu- is used to titillate or shock. No single fac- if it’s just once? You have such little time to dent radio station of SUNY Cortland, was tor is determinative. The FCC weighs and decide whether to hit the dump button.” fined $23,750 for airing a rap song the FCC balances these factors because each case Within the radio industry, a “dump but- ruled was indecent. presents its own mix of these, and possibly ton” is commonly understood as a mecha- The line between indecent and non-in- other, factors. nism that will delete a small portion of a decent speech lies at the core of the contro- broadcast, usually only a few seconds, be- versy for student broadcasters. Conflicting Source: FCC fore it is broadcast. rulings from the commission and several But for this to work a station needs to legal challenges have muddied an already universities have adopted the policy of al- run on a time delay, be equipped with the unclear area of broadcasting law. lowing their student-run stations to manage proper machinery and have skilled techni- Glen Robinson, a former FCC commis- themselves. cians running the on-air booth. sioner, said the current FCC is “definitely However, Black said if a station were to Kristen Mattern, KZSC station manager overstepping the boundaries” in choosing get fined by the FCC, the university would and a senior at the University of California to regulate speech that was never previously likely change its laissez-faire policy. at Santa Cruz, said even with the delay sys- considered indecent. “The best news that can happen toa tem at KZSC, there are no guarantees that For some cash-strapped student broad- station like ours is no news,” Black said. the station could monitor every word said. casts, a $23,000 fine, or even $2,300, could “If we’re on their radar screen, they can be drive them to bankruptcy. But, more draconian than the FCC would ever according to Black and oth- be about what we do.” ers, if a student station were to This fear of insurmountable fines and violate FCC policy, a hefty fine university censorship has led to a culture of would be the least of its wor- self-censorship, Black said. ries. Lili Levi, a professor at the University of Miami School of Law, said the increase Chilling education in indecency fines, in conjunction with the FCC’s unclear guidance as to what it consid- In most cases, student ers indecent speech, has led even commer- broadcast stations are licensed cial television stations to err on the side of to a university’s board of trust- caution. ees or board of regents. Many She pointed to the Saving Private Ryan

Fall 2008 www.splc.org • splc report 33 College CensorshiP case as an example. Although the FCC even- journalism at Penn State, said it is nearly things like that?” tually concluded the film did not contain impossible to control everything that fans Colombo, of the University of Georgia’s indecent speech, Levi said dozens of stations and on-lookers say at big sporting events. WUOG, said she has had similar troubles. at the time refused to carry the broadcast out “If you’re in a stadium with 100,000 peo- “We want to keep providing live broad- of fear of an FCC penalty. ple, how are you going to control every- casts of music events. We have a segment Feigenbaum, of Penn State’s WKPS, one?” Moran asked. “Or let’s say a student is called Live in the Lobby where we have lo- said if college broadcasters thought they working at a basketball game. The play-by- cal bands come in and play,” Colombo said. would get fined for every mistake, or if the play announcers are right on the floor next “Sometimes, the musicians make a mistake university began meddling in content re- to the coaches. What if the coaches start and curse. We tell them not to before they strictions, no student would take the time cursing? What are you going to do, shut the begin, but it happens.” to become a DJ. announcer’s mic off?” Moran said students studying to be “Half the kids I know would quit. They Even when college television and radio broadcasters would be missing a valuable would be sitting in their chair shaking the stations have time-delay systems, indecent learning experience if they were forced to whole time and wouldn’t ever learn any- images or words slip by and make it onto stop coverage of all live broadcasts because thing,” Feigenbaum said. the airwaves. of a change in FCC policy. Also at stake are student broadcasts’ cov- “How can you prevent something if you “Stopping live broadcasts will absolutely erage of live sporting and music events. Un- don’t know that it’s there?” Black said. “I’ve hurt students,” Moran said. “There were der the current FCC policy, a station is re- heard of a case where during a loud rock things that I learned doing play-by-play sponsible for all of the content it sends out, performance, you can hear the F-word said that helped me as a newspaper reporter that even if it doesn’t have control over it. very softly in the background of this loud I never would have figured out had I not Malcolm Moran, professor of sports rock concert. How are we supposed to catch done live play-by-play.” n

College Censorship In Brief

IN THE COURTS newspaper’s ad revenue by $10,500, rep- removed from No. CV081617-KA resenting a net reduction in the paper’s (Super. Ct. Chatham County Ga. filed budget of $4,260 from the year before. July 3, 2008). Editors sue school, At the budget meeting in February, SGA Sen. Chris Nowicki asked for copies ADVISERS student government of every issue The Inkwell published that over budget cutback year. Mensing said this was proof the SGA was using the newspaper’s content Adviser group issues GEORGIA — Editors at The Inkwell, as a reason for the budget cut. Armstrong Atlantic State University’s stu- The Inkwell was one of just two letter of concern to dent newspaper, filed a lawsuit against the student organizations to have its funding university and its Student Government cut for next year. Western Oregon U Association in June accusing the school of The university has yet to comment OREGON — The faculty group Col- stifling their right to free speech. on the lawsuit. On August 5, it filed no- lege Media Advisers has issued a letter of Angela Mensing, former editor in tice to remove the suit to federal court. concern for the health of student media chief of The Inkwell, claimed the univer- The Inkwell plaintiffs — editors at Western Oregon University and of- sity slashed the newspaper’s budget for Mensing, Kristen Alonso and Brian fered to work with officials to create a 2008-09 year because of the paper’s ag- Anderson — claim the university violated better working environment. gressive and critical approach to covering both the federal and state constitutions The organization investigated a the school administration and SGA. and are asking the court to return the number of claims of wrongdoing, “The university didn’t like our con- newspaper’s funding to its previous level. including accusations that the student tent choices, they didn’t like the stories Attorney Gerald Weber, who is repre- newspaper’s adviser was fired for protect- and they didn’t like the way we covered senting the student editors, took the case ing her students’ newsgathering abilities the student government,” Mensing said. through the SPLC’s Attorney Referral after they found unsecured, sensitive In March, the university’s student Network. student data on the school’s Web site. government cut the amount The Inkwell Case: Mensing v. Armstrong Atlan- A student editor had also accused receives from student fees by $14,760. tic State Univ., No. 08-154 (S.D. Ga. The SGA raised its projection of the notice of removal filed Aug. 5, 2008), See College briefs, Page 37

34 splc report • www.splc.org Fall 2008 LEGAL ANALYSIS Web publishing carries promise and pitfalls Legal tips for students looking to speak out online

By Jenny Fein tion is speech that constitutes a threat. The Avoiding gratuitous insults and unnecessary First Amendment does not protect true profanity will generally give a message great- aintaining a personal Web site physical threats.3 In recent years, because er impact. It is also likely to put the Web site is a fun and creative form of of an increase in school violence, school on stronger footing with a judge or jury if its expression that is becoming in- officials have disciplined students for mak- content becomes the subject of litigation. Mcreasingly popular and commonplace for ing threats, even those intended as jokes. In students of all ages. People who create Web cases where school officials punish students Other Legal Considerations sites may not think of themselves as “pub- for Web sites containing what could be per- lishers” but in the eyes of the law, they have ceived as a threat of violence, courts have Online publishers should also be aware responsibilities similar to publishers of tra- given school officials considerable leeway to of issues that plague the traditional print ditional print media. In addition to the legal determine what they believe is an appropri- media: copyright, defamation, and privacy. issues of which every publisher, whether in ate response.4 It is advisable, therefore, for By understanding and successfully navigat- print or online, should be aware – copyright Web site publishers to steer clear of any ing these issues, online publishers can avoid issues, libel and defamation, and privacy speech that could conceivably be viewed as incurring legal difficulties. rights – the Internet raises new questions re- a threat, even when your intention is simply garding whether speech posted by a student to poke fun. Copyright off-campus on his or her own time can be One of the more common pitfalls in regulated or punished by school officials. Insults and profanity publishing, either in print or online, is copy- The following explains some of the most School officials are inclined to take ac- right infringement. Copyright infringement common issues related to online publishing tion against Web site posts that personally occurs when you publish all or a substan- and school officials’ reactions, as well as a insult a teacher or administrator. Where in- tial part of an original work that belongs to few general publishing tips to reduce the sults have resulted in a significant disruption someone else. This can be avoided by taking likelihood of legal battles arising out of an to school, courts tend to favor the school’s a few necessary precautions prior to publica- off-campus Web site. disciplinary authority over the student’s tion. freedom to speak.5 Copyright belongs to the original author School administrators’ authority While parodies and jokes may be in- (or, in cases of work made for hire, to the over online speech tended in good fun, online speech that is employer). It protects work that is fixed in mean-spirited or that offends a teacher or a tangible form of expression, such as a lit- The traditional tests used by the courts administrator might be taken seriously and erary, musical, or dramatic work. Pictorial, to determine whether student speech is punished. To avoid this kind of hassle, make graphic, sculptural, and architectural works protected from censorship by the First it clear that the intent of the comment is are also tangible forms of expression, as are Amendment arose out of speech at school- harmless or, safer yet, refrain from posting sound recordings, motion pictures and au- sponsored events or on school grounds.1 the insult altogether. dio-visual works. The federal Copyright Act Where the speech does not occur on school Unnecessary profanity posted online provides protection to the authors and gives grounds, as is often the case with content can also result in backlash from the admin- them the exclusive right to reproduce, dis- posted or viewed off-campus, some courts istration.6 This is specifically important to tribute, perform, and display their work, as have nevertheless upheld punishment where remember when legitimately criticizing the well as create adaptations and sequels.7 the speech was directed at the school and/or actions of a teacher or administrator. When To ensure you are not infringing on calculated to cause a substantial disruption upset about a decision or action of a school a copyright, get explicit consent from the at school.2 official, voicing that opinion is fine, even owner. Sometimes this is as simple as ask- Some simple precautions can help mini- encouraged. To do so effectively, however, ing permission. Other times, a fee may be mize the risk that school officials will try to one should maintain his or her composure charged. Some uses of copyrighted work fall punish or regulate student speech on an off- and refrain from blanket insults and profan- under the “fair use” exception, requiring no campus Web site. ity. Respectful postings that are carefully re- express permission for reprinting. For ex- searched and written and provide insight to ample, a typical fair use would be publishing Threats to students or faculty a problem that might have been overlooked some of the lyrics to a song as part of a stu- One type of student speech that has may not only be seriously considered but dent paper’s review of the musician’s latest prompted school administrators to take ac- could bring about the change you desire. CD. Courts look at four factors to determine

Fall 2008 www.splc.org • splc report 35 Legal Analysis

Privacy if the use of a copyrighted work is fair. remember that registration with the Copy- right Office is not a requirement for protec- The legal right of privacy has been de- • The purpose and character of the use. tion; further investigation may be necessary fined as the right to be left alone.12 There are Non-commercial uses for purposes like to ensure that a publication is not infring- four kinds of privacy invasion of which to news reporting, teaching, criticism or ing another’s copyright protection. In fact, be aware and avoid. commentary are more likely to be fair. it is a good practice to assume that a work is First, if a person can show that infor- protected by copyright unless you are able to mation published about them is sufficiently • The nature of the copyrighted work. conclusively determine that it is not. private and not already publicly known, suf- Uses of works containing mostly fac- ficiently intimate, and highly offensive to a tual material like maps or biographies Defamation reasonable person, then the publisher may are more likely to be fair than uses of Another potential pitfall is libel, a form be held liable for publicly disclosing these highly creative and original works like of defamation. Libel is the publication of a facts, whether in print or online. novels and cartoons. false factual statement, which can include Second, where the portrayal of the per- images, about another person that seriously son is found to be “highly offensive to a • How much of the original work is damages his or her reputation. reasonable person” and the publisher had used. No more of the work than what If an identifiable person is defamed, a knowledge of or acted in reckless disregard is necessary may be used fairly. The test Web site owner can be held liable. Individu- as to the falsity of the publicized matter is both quantitative and qualitative. als, corporations or business entities can all and the false impression it would convey, be defamed by a Web site post. Very large the publisher may be liable for a false light • The effect of the use on the commer- groups, such as “every Vietnam veteran” or claim.13 “False light” issues commonly arise cial value of the copyrighted work. “all Republicans,” cannot bring a claim for from the use of photos or videos out of This is the most important factor. If the “group libel.” However, individual mem- context, such as a stock photo of a person use would eliminate the need for con- bers of much smaller groups (for example, standing outside of a mosque to accompany sumers to buy the original, it probably a six-person tennis team) might be able to a story about the links between terrorism will not qualify as a fair use.8 claim that their individual reputations have and the Islamic extremist groups. been harmed by libelous statements about The act of newsgathering can also cause The use of copyrighted material in paro- the group. In order to bring a successful privacy problems. Reporters can be liable dies can constitute a fair use under certain libel lawsuit, a person must show that the for “intrusion” where they engage in news- conditions. First, the parody must be obvi- published statement has seriously harmed gathering in a place or in a manner that in- ous. The audience must reasonably perceive his or her reputation; speech that only vades an individual’s reasonable expectation that the use is a criticism or commentary of mildly embarrasses or hurts a person’s feel- of privacy. Be careful not to trespass, use the original. A disclaimer or notice (like a ings is generally not enough. Examples of hidden surveillance or misrepresent yourself heading, “Satire”) that clearly alerts readers seriously harmful speech include false com- in gathering the news. Whether it is to be of the parody may prove useful. Second, the ments about a person’s sexual activity, health published in print or online, the process of use must reproduce no more of the work issues, illegal or immoral behavior, or alle- gathering the information should be done than the minimum necessary to conjure gations of racism or bigotry. The publisher honestly and respectfully. up the original in the audience’s mind. For may be liable for defamation if the subject Finally, the unauthorized use of a per- example, a slight change in the appearance can show that the statement was made with son’s name, photograph, likeness, voice or of a cartoon character will be insufficient fault – that is, without taking reasonable endorsement to promote the sale of a com- to satisfy fair use. Finally, the use must not precautions to verify its accuracy. mercial product or service is misappropria- destroy the market for the original work. If To avoid defamation, the best precau- tion. This can easily be avoided by having the public will purchase your use as a substi- tion is, of course, to make sure all informa- the person sign a waiver. tute for buying the original (or a parody of tion published is true; where it can be prov- A statement’s newsworthiness will the original created by the actual copyright en, a true statement cannot provide the basis trump a claim of privacy invasion. Use owner), then the use is probably not fair.9 of a successful defamation lawsuit no matter common sense to determine what is news- If you are unsure of whether a work is how harmful it is. Also, statements of “pure” worthy and what is private information. copyrighted, a starting point is to contact opinion are not defamatory (for example, Generally speaking, if you would be out- the Copyright Office. For works created after “Sturgis is the worst teacher in the school”). raged about this type of information being 1978, you can search the Copyright Office’s To be protected by the opinion defense, published about yourself or a close friend Web site to see if a particular work has been however, such statements must not state or or family member, it should be considered registered.10 This simple inquiry could save a imply a fact that is provably false (“Sturgis private. In such cases, you can attempt to lot of headaches later and help avoid the le- is the worst teacher in the school because he obtain consent from the subject to publish gal hassles of a copyright infringement. But bought his college degree on eBay”).11 the information, or consider publishing in

36 splc report • www.splc.org Fall 2008 Legal Analysis

a more generic form by carefully concealing is a third-year student at the University of the distinguished from constitutionally protected the subject’s identity (although you should District of Columbia David A. Clarke School speech). clearly acknowledge the concealment to of Law. 4 Wisniewski ex rel. Wisniewski v. Bd. of Educ., your readers). Of course, you may reason- 494 F.3d 34 (2d Cir. 2007). ably decide not to publish it at all. 5 J.S. v. Bethlehem Area Sch. Dist., 807 A.2d Endnotes 847 (Pa. 2001). Liability for third-party postings 6 Doninger v. Niehoff,527 F.3d 41 (2d Cir. The federal Communications Decency 1 The Supreme Court concluded inTinker 2008), aff’g514 F.Supp.2d 199 (D. Conn. Act (“Section 230”) protects the operators that on-campus student speech could only be 2007). of Web sites from liability for unlawful con- abridged where it materially and substantially 7 17 U.S.C. § 106. tent that is posted to their Web sites by out- interferes with the operation and discipline of 8 Harper & Row Publishers, Inc. v. Nation side parties, such as reader comments to a the school or invades the rights of others. Tinker Enterprises, 471 U.S. 539, 566 (1985). news story.14 That protection can be lost if v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 9 Campbell v. Acuff-Rose Music, Inc., 114 S. the Web site operator crosses the line and 503, 513 (1969). The Court modified the rule Ct. 1164 (1994). becomes a co-creator of the content. So, and found in Fraser “the First Amendment 10 See www.copyright.gov for more while it is legitimate to delete profanity does not prevent the school officials from information and to search records. from a reader comment or to pull down an determining that to permit a vulgar and lewd 11 Milkovich v. Lorain Journal Co., 497 U.S. unacceptable posting entirely, it is danger- speech…would undermine the school’s basic 1 (1990). ous to rewrite a reader submission. educational mission.” Bethel Sch. Dist. v. Fraser, 12 Federal Trade Commission v. American Also, if you actively solicit specific read- 478 U.S. 675, 685 (1986). And the Court held Tobacco Co., 262 U.S. 276 (1923). er-submitted content – “tell me something in Hazelwood that “educators…[may] exercise 13 Restatement (Second) of Torts, Sec. 652E. about Janey Jones’ sex life” – you may lose editorial control over the style and content of 14 47 U.S.C. § 230(c)(1), (f)(2). See Doe v. your Section 230 immunity when Janey’s student speech in school-sponsored expressive MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) lawyer comes calling. activities so long as their actions are reasonably (holding that plaintiff’s claims are barred by related to legitimate pedagogical concerns.” 47 U.S.C. § 230(c)(1), (e)(3), which prohibit Conclusion Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. claims against Web-based interactive computer 260, 273 (1988). services based on their publication of third- Online publishers face unique challenges 2 See J.S. v. Bethlehem Area Sch. Dist., 807 party content) (citing Carafano v. Metrosplash. in today’s digital world. By taking necessary A.2d 847 (Pa. 2001) (finding that the school com, Inc., 339 F.3d 1119 (9th Cir. 2003) precautious, one can avoid the punishing had the authority to punish a student for (holding, under 47 U.S.C. § 230, a Web-based hand of school administration bent on con- Internet speech because it was aimed at the dating-service provider was not liable when an trolling student speech. At the same time, school and it would inevitably wind up on unidentified party posted a false online personal by being a responsible reporter and steering school property). But see Emmett v. Kent Sch. profile for a popular actress, causing her to clear of traditional legal traps, you can avoid Dist., 92 F. Supp.2d 1088 (W.D. Wash. 2000) receive sexually explicit phone calls, letters, and having your Web site become the target of (finding that although the student’s Internet faxes at her home); Zeran v. America Online, censorship or litigation and help ensure that speech regarded the school, it was outside the Inc., 129 F.3d 327 (4th Cir. 1997) (holding that it remains an open and thriving forum for school’s authority). 47 U.S.C. § 230 protects Web-based service student speech. n 3 See Watts v. United States, 394 U.S. 705 providers from liability even after the provider is Jenny Fein, summer 2008 SPLC legal intern, (1969) (finding that a true threat must be notified of objectionable content on its site).

College Censorship in Brief

From College briefs, Page 34 Because the former adviser, Susan Wickstrom, does not want her position administrators of violating First Amend- back, CMA will work with school offi- Online ment freedoms of speech and press in See more college briefs cials to develop better policies regarding several incidents throughout the school on the Web: student journalists, said Ken Rosenauer, year. The school’s own “Ad-hoc Com- http://www.splc.org/report.asp the organization’s president. mittee on Free Press” investigated and Officials at Western Oregon Univer- found no evidence of First Amendment sity did not respond to several requests seven schools for wrongly removing ad- violations but concluded that a better- for comment. visers and issued statements of concern operating Student Media Board was nec- Since CMA developed its adviser ad- for four institutions, including Western essary to heal the relationship between vocacy program in 1998, it has censured Oregon University. the newspaper and the administration.

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38 splc report • www.splc.org Fall 2008 Student Press Law Center Membership

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