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Decision protects students’ rights, since 1943 QT 63

Posted by on Apr 29, 2018 in Blog, Legal issues, Quick Tips, Scholastic Journalism, Teaching | 0 comments

Quick Hits: Student First Amendment Rights

What, students have rights? Not until 1943 (West Virginia State Board of Education v. Barnette)

Before the Barnette decision, when students came into conflict with public schools, the courts decided their cases—often against the students—without mentioning students’ right. They considered if the punishment was excessive. (Beating with a rawhide strap was okay in 1859.) They also debated if it was the parents’ right or the schools’ right to discipline the students.

The First Amendment was never mentioned.

Gathie and Marie Barnett* were attending Slip Hill Grade School in Charleston, West Virginia when America entered World War II in December, 1941. The school district installed flags in classrooms (replacing pictures of flags) and required all students to salute the flag. The West Virginia State Board of Education passed rules in January, 1942 requiring the flag salute and a recitation of the Pledge of Allegiance, which Congress would formally adopt in June, 1942.

The Barnett family, as Jehovah’s Witnesses, felt saluting the flag was a form of idolatry and a violation of their religion. As Gathie said some 60 years after the case, “We were taught that bowing down to the flag, saluting it, was like a bowing down and giving reverence to it—it was like an idol. So we believe definitely not to worship idols.”

The Supreme Court released its decision in the students’ favor on Flag Day, June 14, 1943.

Justice Robert H. Jackson wrote these memorable words in favor of students’ rights: If there is a fixed star in our constitutional constellation, it is that no official high or petty shall prescribe what shall be orthodox in matters of politics, nationalism, religion or other matters of opinion or force citizens to confess by work or acts their faith therein.”

Though the Supreme Court did not specifically address student press rights until 1988, the Barnette case is essential to student journalists. It restrains public schools from restricting students’ religious rights, the first freedom in the Bill of Rights. It established that students as young as elementary school are protected by the First Amendment.

Justice Jackson wrote, “That we are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

*A court clerk misspelled their name as Barnette

Resources:

http://caselaw.findlaw.com/us-supreme-court/319/624.html

https://www.oyez.org/cases/1940-1955/319us624

http://www.splc.org/article/2000/12/west-virginia-state-board-of-ed-v-barnette

Related issues and cases: http://jeasprc.org//?s=barnette&x=0&y=0

 

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What to tell your principal about Prior Review? QT 62

Posted by on Apr 23, 2018 in Blog, Ethical Issues, Legal issues, Quick Tips, Scholastic Journalism, Teaching | 0 comments

Quick Hits: Student First Amendment Rights

The bad news is that administrators may legally ask to see stories before they are printed or aired, but prior review leaves them in an awkward situation, because of the good news below.

The good news is that they generally cannot ask students to change anything or spike the story. That would be prior restraint, allowed legally only under narrow conditions.*

Prior Review is a bad idea for both students and the school. But how do you convince the administrations?

You have two strong arguments against prior review. The first is a legal argument, the second is a pedagogical one.

First, when administrators review student publications prior to publishing, they and the school district become responsible for its content and policies. These three cases show the protection schools enjoy when they allow student control of student media:

  1. Because Lexington High School students made all the editorial, business and staffing decisions for both the LHS Yearbook and the school paper, a suit brought against the district failed. The adults were sued because the student leaders of the paper had refused to run two ads. The school’s superintendent, principal, the two publication advisers and the five school members of the school committee escaped unharmed from the suit that alleged they were violating the First and Fourteenth amendments when the school publications refused the ads. (Yeo v. Town of Lexington (1997) in the First Circuit Court of Appeals)
  2. Because the students, not the school district, decided which senior portraits to allow in the Londonderry High School yearbook, the district was protected from successful suit for First Amendment violation when the students rejected a senior portrait with a shotgun. The judge found that it was not the school district that rejected the photo. It was the student yearbook editors. “The state has not, it seems, suppressed Blake’s speech. His fellow students have done so.” (Douglass v. Londonderry School District (2005) in the U.S. District Court for New Hampshire.) 
  3. Because the students of Roosevelt High School in Seattle practiced strong journalism and controlled the content of their student media, a lower court ruled in favor of the Seattle Public Schools and against slumlords suing the district for libel following an article in The Roosevelt News, “Sisley Slums Cause Controversy: Developers and neighborhood clash over land use.”  The lower court ruled that if what the students write is true, it is not libel, and where the students make the content decisions, the school district is protected from successful suit. (Sisley v. Seattle School District (2011 in the Court of Appeals of Washington (state), Division 1)

Second, when administrators exercise prior review, students lose the opportunity to develop skill crucial to democracy, including the ability to recognize sound journalism and fake news. When students choose the content of their publications to please—or at least “get past”—administrators, they are denied the opportunity to apply what they learn in class about news values, ethics and press law.

In contrast, students who control the content of their publication regularly consider their audience’s right to know and individuals’ right to privacy. They judge the strength and reliability of sources. They strive to make their reporting fair and accurate. They come to cherish their audience’s trust and they admit mistakes, issue corrections and retractions, and live with the consequences. They are prepared to be responsible citizens as intelligent consumers of media.

There is no evidence that prior review by administration improves learning in any way.

 

 

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*In states under the Tinker standard, an administrator could restrain stories that pose a clear and present danger of inciting students to commit crimes on school premises or violate lawful school regulations, or substantially disrupt the orderly operation of the school. The administrator could also restrain stories that contain obscenity or slander/libel.

 

In the states that remain under Hazelwood, the administrator would need a “legitimate pedagogical concern.”

 

Resources:

QuickHits So what does Hazelwood actually allow administrators to do?

QuickHits The Perks of Being a Wallflower: How a School District Escaped a Lawsuit by Fostering an Independent Student Press.  Yeo v. Town of Lexington (1997) in the First Circuit Court of Appeals

Quickhits More Perks of Being a Wallflower: How two other School District Escaped Lawsuits by Fostering an Independent Student Press. Douglass v. Londonderry School District (2005) and Sisley v. Seattle School District (2011)

 

 

 

 

 

 

 

 

 

 

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Invading privacy still a concern
in today’s public world

Posted by on Apr 23, 2018 in Blog, Ethical Issues, Legal issues, Scholastic Journalism, Teaching | 0 comments

by Candace Bowen, MJE
One area of unprotected speech is getting harder to teach all the time – partly because a fair number of students and even some adults appear not to care about protecting it.

“Unwarranted invasions of privacy” – one of the nine categories of speech the government can prohibit or even punish someone for using  – is becoming increasingly problematic.

I assigned a paper discussing the their biggest legal worry to college juniors in my Teaching High School Journalism class. One student’s response surprised me. Usually they’re concerned about libel or copyright violations, but Gabrielle started her paper this way:

“The one that I am most concerned about is invasion of privacy. By the time that I am a teacher, my students will have lived their whole lives with the presence of the Internet constantly pressing in on them. They will never know a life without social media, online search engines, and other means of obtaining personal information. I think that this will give students the wrong assumption that all the information they have access to is fair game when it comes to reporting.”

And she’s right. According to the Student Press Law Center’s “Law of the Student Press,” the legal concept of invasion of privacy claims first came up during the era of Yellow Journalism, when media were trying to out-do each other with sensational stories that could sell their papers. That concept was largely under control for about a century when the Internet with blogs and social media plunged audiences back in the world of teaser headlines about private information.

But what are these privacy issues student journalists should know about?

According to Findlaw, an invasion of privacy is “an intrusion upon your reasonable expectation to be left alone.” This can be broken into four main types:

  1. Appropriation of Name or Likeness
  2. False Light
  3. Public Disclosure of Private and Embarrassing Facts
  4. Intrusion on solitude

The first two are fairly clear-cut. In the school setting, advertising managers need to think about appropriation: Get a photo release if you’re using someone’s picture in an ad.

Photographers should think about false light: Don’t use a photo of people if it looks like they are doing something they aren’t – particularly if what viewers will think makes them look bad.

A school in Illinois avoided a legal case but still learned a good lesson when the photo of a teacher walking down the hall with a cafeteria tray was used to complain that faculty were taking food out of the lunchroom when no one was supposed to be able to do that. Later the staff learned it wasn’t food on the woman’s tray but papers and a gradebook.

The other two legal claims are a bit more complicated. According to the Student Press Law Center, private facts have to be (1) sufficiently private, (2) sufficiently intimate and (3) highly offensive. Clearly it would be hard to argue that publishing something someone had tweeted or posted on other social media was very private at all.

However, the SPLC warns that anything dealing with “a person’s sexual behavior, medical/psychological history or financial affairs” should raise red flags, and student journalists should consider these risky because they could easily be sufficiently intimate for a successful invasion of privacy suit.

Highly offensive is more than just embarrassing, and it, too, should be considered carefully if a reporter thinks such information has to be included in her story.

The fourth type – intrusion – is more about gathering the information than necessarily publishing it. That means interaction in the main hall of the school or the football stadium is fair game for photographers (though some photos might not be ethical to publish… but that’s another discussion). In those places, not one has a reasonable expectation of privacy.

However, be careful of trespassing to gather information. Recent demonstrations could be an example of such a problem. Yes, reporters and photographers have a right to gather news, BUT that doesn’t always mean they can go everywhere, and it definitely doesn’t mean they can break laws just to get a story.

According to the Reporters Committee for Freedom of the Press, “In recent years, some reporters have been swept up in mass arrests during protests. Other reporters and photographers have been injured or fined while covering protests. Journalists often are surprised to learn that they don’t have a First Amendment right to wander wherever they please at a demonstration. What a reporter considers aggressive reporting is often an officer’s idea of disorderly conduct.”

When one of these situations arises as the staff discusses the next stories and photos they will be producing, it’s time to check how legal and how newsworthy their ideas are before they go any further.

 

 

 

 

 

 

This concern is amplified by the presence of social media. If I ever run a student media platform like the news paper, I hope that my students are able to cover interesting and thought provoking stories. My concern would be that students would use unprofessional avenues to retrieve information on the people they write about, especially their classmates. It is very easy to cyber stalk people to gain access to information. I feel that I am fairly competent at finding information online. I can only imagine how skilled my future students will be at the same research.

 

 

 

 

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How two other school districts escaped lawsuits
by fostering an independent student press QT 61

Posted by on Apr 22, 2018 in Blog, Legal issues, Quick Tips, Scholastic Journalism, Teaching | 0 comments

Student First Amendment Rights
 Douglass v. Londonderry School District (2005) and Sisley v. Seattle School District (2011)

Douglass v. Londonderry School District (2005)

The yearbook staff at Londonderry High School in New Hampshire voted against running the photograph Blake Douglass submitted as his senior picture. The photograph showed him kneeling, a broken (open) shotgun across his shoulder, dressed in trap shooting clothing.  Shotgun shells appeared to be in his pocket. Though the student journalists rejected it as a senior picture, they did offer to include it in the community sports section.

Douglass and his father sued the school district, claiming his First Amendment rights were being violated. He also claimed the school was using “unconstitutional viewpoint discrimination” by refusing to run a picture of him with his shotgun. Douglass claimed the school could not “lawfully refuse to publish [the photograph] because they disapproved of the ‘message’ they think the readers will take from it.”

The federal judge disagreed. It was not the school district that rejected the photo. It was the student yearbook editors.  “The state has not, it seems, suppressed Blake’s speech. His fellow students have done so,” the judge wrote. “The First Amendment does not restrict the conduct of private citizens, nor is it violated when one private actor ‘suppresses’ the speech of another.”

Sisley v. Seattle School District (2011)

The March 2009 edition of “The Roosevelt News,” the student paper for Roosevelt High School in Seattle, included an article on a potential project that would tear down rental homes near the school and replace them with a tall building.  “Sisley Slums Cause Controversy” included this sentence: “In 15 years these [Sisley] brothers have acquired 48 housing and building maintenance code violations, and have also been accused of racist renting policies.”

Hugh Sisley sued the Seattle School District Number One for defamation, that is, making false, derogatory claims. He objected to one clause in the article, the clause that read “and have also been accused of racist renting policies.”

The Washington state superior court judge ruled against Sisley and in favor of the school district, writing “a public school student is not an agent or employee of the school district.” In addition, “the public school district is a governmental entity constitutionally prohibited from censoring or otherwise curtailing a student’s First Amendment right to free speech unless there is evidence censorship is necessary to prevent disruption of the school environment. No such evidence exists.”

The Sisleys appealed and the appeals court ruled against the Sisleys—and for the school district–simply because the Sisleys had not proved the statement in the “The Roosevelt News” was untrue.

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More than a march;
a civics lesson and a wake-up call

Posted by on Mar 25, 2018 in Blog, Ethical Issues, Legal issues, News, Scholastic Journalism, Teaching | 0 comments

Students lined up outside Buffalo Grove High School in Illinois re watched by security. Photo by Stan Zoeller, MJE, and SPRC committee member.

by Stan Zoller, MJE
The walk-outs by thousands of high school students on March 14 did more than call attention to a revamping of the nation’s gun laws, they also provided Americans with several other things.

A wake-up call.

A civics lesson.

And a realization that high school students today are doing what high school students did when I was in high school — speak up and demand to be heard.

When Baby Boomers were in high school, we dealt with Vietnam, equal rights for women and the lowering of the voting age from 21 to 18.

Vietnam was popular with very few people while the Equal Rights Amendment (ERA) and the lowering of the voting age in Illinois via Project 18, sparked

divisive debates across generations.

The murders of students by gunfire appears to be no different as they seem to be awakening a generation that

discovered it has a voice that needs to be heard.

Parents, politicians and school administrators need to listen.

Two high schools in my hometown allowed students to participate in the March, although in different ways.

One allowed students to congregate only near the main entrance. The entire campus was off limits to anyone with one security office saying it was because the march was a “school event,” which make no sense. Neither does the comment by another security officer who said I wouldn’t be allowed to take pictures because many of the students were minors.

The district’s official position, said the district’s communications supervisor was “the District decided to restrict access to our campuses for a brief period this morning to ensure the safety and security of our students during this morning’s walkout. The decision to briefly restrict access is also in line with how most schools in the Chicagoland area handled the nationwide walkouts.”

She added that “These displays were student-led and peaceful, and our student leaders did a phenomenal job making sure everyone was back in the building when the 17 minutes were over.”

Spoken like a true flack.

It’s interesting that she said, “The decision to briefly restrict access” was “in line with how most schools in the Chicagoland area handled the nationwide walkouts.”

According a spokesman for the other school, “We had an estimated 2,000 students participate in the walkout (today). We reached agreement with the student organizers to have an organized march starting from the “circle drive” entrance and heading south along the building to the Garden of Peace, Hope and Remembrance. From there, students walked into the alley behind the school building to go back inside and return to class. The walkout went off without incident.”

While the school blocked its main entrance, access was available through a second secondary entrance without any problem.

The need for tight security is understandable. The display of local police officers at the first school was unprecedented for a “school event” – even the truck enforcement officer was there.

By limiting students — as many districts did – including one which allegedly told students they could march if they didn’t say anything political, are educators limiting the opportunity for students to become civically engaged?

One Chicago area district, Downers Grove District 99, reportedly issued nearly 1,000 detentions to students who were brazen enough to participate in marches at Downers Grove North and South high schools.  The detentions, according to one media report, were in an auditorium where there were conversations about gun violence.

A nice gesture, but what is the result of these conversations? Student voices need to be continuously heard in public, by the public and by lawmakers – not just by school administrators who are bent on control issues.  Gun violence is not the first issue to fire-up student voices.

A rash of shooting of African-American men in 2014 sparked the “Black Lives Matter” movement and was fueled by demonstrations and outcries le by young people who wanted their voices heard and action taken.

Which raises the question – is squelching student voices the best practice if we want today’s high school students to become more civically engaged?

This is not the first generation of young people to push for change.  All administrators need to do is crack open a history book and, as Mr. Peabody would say, “set the way-back machine, Sherman.”

They’ll find that what goes around comes around as it did in the Vietnam era of the 1960s. Students at the collegiate and scholastic levels were relentless in their actions and messages. Today’s students need to have that same relentlessness and resiliency, so their concerns become actions in the nation’s statehouses and in Washington, D.C.

People – whether students or not – need make sure their voices are continually heard and not silenced by overzealous school administrators or PAC-induced lawmakers.

People’s voices, not silence, will make a difference.

But only if people listen and act before it’s too late.

Again.

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Legal issues in covering protests

Posted by on Mar 23, 2018 in Blog, Legal issues, News, Scholastic Journalism, Teaching | 0 comments

by Mark Goodman, Knight Chair of Scholastic Journalism
The 1960s earned a reputation as the decade of protest: the Vietnam War, equal rights for African-Americans, women and gays. But the 2010s are on the way to rivaling the 60s as a decade of protest, especially for young people.

Black Lives Matter, the Tea Party, #metoo, anti-gun violence and New Voices have not just been social media campaigns. They have resulted in on-the-ground protests, in and around schools, that student journalists have done their best to cover.

Reporting in the midst of protests can present a unique set of legal issues. One of the most important questions for journalists engaged in protest coverage: what rights do the protesters have to engage in their protest?  Are public school administrators or law enforcement officials legally able to stop or limit their activity?  (Remember, the First Amendment is only a limitation on the government. Thus private school officials do not infringe on First Amendment rights by their actions.  However students in two states, California and Rhode Island, may have protections under their state laws.)

The legal rules regulating protests may be different depending on whether the protest occurs on campus or off. In the community, students or adults engaged in protest have the same First Amendment protections: they can’t break the law by engaging in violence or impeding traffic or public passage on a sidewalk, for example.  But their right to voice their views is entitled to protection.

At school, expressive activity is subject to greater limitation but still is protected by the First Amendment. The general rule used to justify censorship of student speech at a public school is based on the U.S. Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District.

The legal rules regulating protests may be different depending on whether the protest occurs on campus or off. In the community, students or adults engaged in protest have the same First Amendment protections: they can’t break the law by engaging in violence or impeding traffic or public passage on a sidewalk, for example.  But their right to voice their views is entitled to protection.

In that 1969 case, the court said a public school must tolerate student expression at school unless school officials can show the speech will invade the rights of other students or create a material and substantial disruption of school activities.  Invasion of the rights of others is typically defined as libeling someone or invading their privacy.  Material and substantial disruption most commonly translates to some kind of physical disruption of classwork or extra-curricular activities.

So what kinds of protest activities could result in punishment under this Tinker standard?  Advocacy of violence or engaging in vandalism, participating in an unapproved walkout or otherwise failing to participate in classes are possible examples. Thus student protesters may choose to walk out of school but a school is probably legally justified in punishing students who engage in that form of protest.

What is clear is neither school officials or police can punish protesters simply because they are motivated by a desire to protest.  The punishment issued for walking out of class or blocking a street as a means of protest can be no greater than the punishment received by those who engaged in the same offense for non-protest-related reasons.

For example, the student who leaves school to attend an anti-gun violence rally can’t be punished more severely than the student who skips class to get fast food for lunch.

At many schools and in many communities, journalists have been given some special authorization to operate on the scene of news events like protests.  For example, some law enforcement agencies will issue press credentials to journalists affiliated with a legitimate news organization that may make it easier for journalists to do their job.

If such a credentialing process exists, student journalists should take advantage of it.  When it doesn’t exist, many newsrooms have created their own “press passes” that journalists can wear or show if needed when covering a protest.

The benefit of a press pass is it can help with one of the biggest challenges for journalists: distinguishing yourselves from the protesters. The more reporters or photographers look like protesters, the greater the likelihood they will be treated like them and could be subject to the same limitations.

Journalists have private lives as well and may want to be involved in supporting causes.  But they cannot ask to be treated like a journalist, with any special recognition that may provide, if they are engaging in protest at the same time.

Press credentials are one valuable tool for the journalist in avoiding legal problems when covering a protest.  But there are other tactics that are equally useful.  It’s valuable for a news gathering to fully understand where he or she has the right to collect information.

Journalists have private lives as well and may want to be involved in supporting causes.  But they cannot ask to be treated like a journalist, with any special recognition that may provide, if they are engaging in protest at the same time.

As one would expect, public spaces are fair game.  Protesters in action on a sidewalk or city park (or even a school athletic field) have no reasonable expectation of privacy and cannot object to their activity being reported on or filmed when it occurs there.

But protesters who meet in a private home to discuss their plans for their next big event would have a reasonable expectation of privacy and sneaking into their meeting could be an actionable invasion of privacy.

Ultimately, a student news organization most wants the ability to meaningfully cover a protest.  Having conversations in advance with school officials and/or police about the unique and important role of journalists in documenting the events can sometimes help avoid problems before they arise.

The reality is some of those in authority would prefer there was no media coverage of protests. They may believe it encourages others to join in the protest or they may disagree with the message of the protest altogether.

The ability of public school officials to limit student press coverage of protests is guided by the same standards that apply to other acts of censorship: the Supreme Court decisions in Tinker and Hazelwood School District v. Kuhlmeier (1988).

Hazelwood only applies to school-sponsored venues for student expression like student media when those media outlets have not been operating as designated public forums.  (Public forum means student editors have been allowed to make their own content decisions. That status can be determined by either school policy or the practice of how the publication has traditionally operated.)

For a non-forum publication, Hazelwood says school officials could censor if they can show their censorship is based on a reasonable educational justification.  That standard, still much debated, gives a significant amount of ability to censor to school officials, but it’s not unlimited.

Before they could censor a factually accurate story about a protest, administrators would have to show their motivation wasn’t based on disagreement with the views of the protesters but instead was based on some legitimate educational concern.

For student news organizations operating as designated public forums where students make the content decisions, the school’s ability to censor is much more constrained.

For student news organizations operating as designated public forums where students make the content decisions, the school’s ability to censor is much more constrained.

As with the protesters themselves, the school would have to show the media coverage caused a material and substantial disruption of school activities or a legal invasion of the rights of others (the Tinker standard). That’s a difficult test for school officials to meet.

And, of course, if a student journalist is working in one of the 14 states[1] that have enacted a student free press law (Washington state joined the list just this week!), the school would have to comply with the provisions of that state law before it could censor as well.

As with all media law questions, students and their advisers should go to the experts when they have questions about their legal rights and responsibilities in covering protests: the Student Press Law Center.

Check out the SPLC’s valuable guide to covering protests: http://www.splc.org/page/covering-walkouts-and-protests.

[1] Arkansas, California, Colorado, Illinois, Iowa, Kansas, Maryland, Massachusetts, Rhode Island, Nevada, North Dakota, Oregon, Vermont and Washington.

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