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Choosing the right forum can be a make-or-break decision

Forums protect your expression, audience’s right to know

What is/definitions

Forums come in three types – closed, limited and public/open – and how they are interpreted can make the difference between being censored, reviewed and restrained or being a place of learning citizenship and free expression

 

Important items of note

The three types of forum and information about them are:

  • Closed forum:

An example of closed is a PTA newsletter. The owner of the forum can control its content. Censorship is allowed. Little learning about the role of a free press in a democracy would take place. Little learning about the various roles of journalism would take place.

  • Students have no expectation of freedom of expression.
  • Students should have no expectation of learning news or objective journalism.
  • Students should have no expectation of creating original pieces.
  • Students should have no expectation of decision-making.
  • Hazelwood applies.

 

  • Limited public/open forum:

A limited forum can be limited to whatever the establisher of the forum wants it to be: a forum for sports coverage, for example. It can be reviewed, or not reviewed, by the originator’s designation. If reviewed, the owner of the forum has all the legal responsibility and control. If not reviewed, the students, for example, could be designated as being in charge and enjoy the freedoms and bear the responsibility. A good many student media fall into this category where school districts trust their students, their advisers and their curriculum. Students learn about the media’s role in a democracy, and about their own civic responsibility. If education about the media’s role in a democracy and learning critical-thinking and responsibility are the school’s mission, then the second type of limited forum is used.

 

Limited-closed:

  • Students have no expectation of freedom of expression
  • Students should have no expectation of learning news or objective journalism.
  • Students should have no expectation of creating original pieces.
  • Students should have no expectation of decision-making.
  • Hazelwood applies.

 

Limited-open:

  • Students have an expectation of freedom of expression.
  • Students should expect to learn news or objective journalism.
  • Students should expect to create original material.
  • Students should expect to make decisions.
  • Tinker applies if no prior review.

 

Public/open forum:

The third category is an open forum, much like speakers’ corner in the United Kingdom. Anyone can speak, and the school (government) bears no legal responsibility. Schools can designate student media as open forums by policy or practice. This is noted within the Hazelwood decision, as is a limited open forum with student decision-making control.

 

Within the open and limited forums, students would certainly not publish any materials they found to be unprotected speech — libel, obscenity, material disruption of the school process (Tinker guidelines), unwarranted invasion of privacy and copyright infringement. Students would be taught this through a journalism curriculum by a trained adviser or through workshops and seminars available to an extracurricular publication.

 

Open forums:

  • Students have an expectation of freedom of expression.
  • Students should expect to learn news or objective journalism.
  • Students should expect to create original material.
  • Students should expect to make decisions.
  • Tinker applies if no prior review.

 

Importance of designated forum status

  1. There is no requirement that any government agency establish a forum of any kind.
  2. But once a government does establish a forum, it cannot dictate the content of that forum.
  3. Jurisprudence sees three types of forums: open, limited, closed.
  4. The closed forum is a place that traditionally has not been open to public expression. Examples, in schools, could be newsletters or other means of communication not open to public use. So long as restrictions are reasonable and not based on a desire to suppress certain viewpoints, the government may close public access to them.
  5. The open or traditional public forum is a place with a long history of expression, such as a public park or street corner. The government can only impose content-neutral time, place and manner restrictions on speech in this forum. To override the open, public forum status, the government would have to show a compelling interest.
  6. The limited forum has the most problematic history. It is a place with a limited history of expressive activity, usually only for certain topics or groups. A meeting hall or public-owned theater are examples. The government may limit access when setting up a forum but may still not restrict expression unless there is a compelling interest. Schools, as government institutions, may, by “policy or practice,” open student media for indiscriminate use by the public or some segment of the public.
  7. A designated public forum enables students to make decisions of content, thus empowering them to practice critical thinking and civic engagement roles.
  8. Educational value of the designated open forum is mirrored by the fact most schools have mission statements identifying these as essential life skills for students to learn while in school.
  9. Prior review and a lack of trust in the product (students) schools are expected to produce undermines the very missions school officials say are among their most important.
  10. Studies have clearly shown that students, and communities in general, do not understand the importance of the First Amendment. One reason may be that students are not allowed to practice what they are taught while in schools and thus do not believe the theories of the democratic system.

 

These definitions should help you understand public forums:

  • Forums by policy:An official school policy exists that designates student editors as the ultimate authority regarding content. School officials actually practice this policy by exercising a “hands-off” role and empowering student editors to lead. Advisers teach and offer students advice, but they neither control nor make final decisions regarding content.
  • Forums by practice:A school policy may or may not exist regarding student media, but administrators have a “hands-off” approach and have empowered students to control content decisions. Advisers teach and offer students advice, but they neither control nor make final decisions regarding content.

 

Guideline:

Students should choose the forum carefully and refer to it in the policy section of your Legal and Ethical manual. It might also play a role in the Mission statement.

 

Best student practices:

Ideally, after student discussion, student will choose and be able to practice the public/open forum model. That allows the greatest freedom of expression and educational growth because it allows students the most journalistic responsibility and school officials the most protection.

 

Questionsto ask those who oppose public forum status for student media:

  1. Collect all the documentation you can find to demonstrate why you believe your publication has been operating as a designated public forum.
  2. Ask administrators why they are objecting to/changing your public forum status (and try to get their response in writing). Try to keep the communication channels open so you and students know the reasoning and details.Pay special attention to any statements they make suggesting their actions were in response to something the publication published.
  3. Obtain a copy of the replacement language for the policy if whoever is making/suggesting a change has replacement language.
  4. Find out whether the changes come from the board of education or from administrators. If the board, did it make the changes in an open meeting? If it has not made the decision yet, when will it and can discussion occur?
  5. See if you can find out if and how administrators or the board is receiving legal assistance. Also find how, and if, these people have handled similar cases or incidents before. Being aware of their arguments might enable you to anticipate and counter them.
  6. Know your state’s education codes and state student free expression laws. It is possible you have language that can protect you.
  7. Call SPLC to report the move and ask for guidance.
  8. Seek and prepare individuals and groups (from students, parents, commercial journalists and possibly even a local attorney — preferably one who understands scholastic media law) to ask questions, voice concerns and to be observers of the process.
  9. Prepare a process to keep the discussion about change in the public’s eye

 

Quick Tip:

Forum status of student media   If your students are revising or developing a new policy, the Scholastic Press Rights Committee recommends using language something like this:

[Name of publication] is a designated public forum for student expression. Student editors make all content decisions without prior review from school officials.

 

Quick Tips index   A list of nearly 70 journalism processes showing the interaction between every day journalistic processes and actions and ethical principles.

 

SPRC blogs

When your publication is a public forum and when it is not,Written by Mark Goodman, Knight chair in Scholastic Journalism at Kent State university, this article focuses what makes student media public forums and what does not. Goodman writes, “School officials’ ability to legally censor school-sponsored student expression at public junior high and high schools is determined by whether they can meet the burden the First Amendment places on them to justify their actions. Often the most important question in that analysis is whichof two First Amendment standards they have to meet.” Those standards are Tinker or Hazelwood.

 

 

Choosing your forum status is like choosing the best medicine   Establishing your student media as open forums for student expression – not closed or limited forums – can make a huge difference in developing a cure of Hazelwood. The best forum is like preventative medicine. The worst is like being exposed to active disease cultures.

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Rethinking your forum status – why the correct wording is essential   With the Supreme Court’s refusal to hear appeals on the 2nd Circuit’s Ithaca decision, student media advisers and their journalists should be aware of a potential conflict over how they use the word “forum.” In short, if an editorial policy is going to say student media are forums, students and advisers must be able to explain what that means and why it is educationally important.

 

Re-establishing our belief in the right forum   Just because the 2nd Circuit Federal Appeals Court recently handed down a decision inR.O. v. Ithaca City School Districtladen with shaky interpretations and references, it is not time to surrender or alter our beliefs.

 

Maybe #Firstonthefirst initiative can help move the needle   Make a commitment to talk to strangers about the First Amendment. A few minutes of conversation can make a huge difference.

 

“Drawings of stick figures in sexual positions clearly qualify as ‘lewd,’ that is, ‘inciting to sensual desire or imagination,’” Second Circuit Judge Jose A. Cabranes wrote in the decision about why the school could censor an independent student publication and the school’s student paper, which had attempted unsuccessfully to run the drawing in the first place.

 

Muzzle Hazelwood with strong journalism, status as an open public forum   This post looks at a circuit court decision that explains public forum possibilities and values. Also link to Why Dean v. Utica is important.

 

Letters and commentary can enhance public forum role  Letters to the Editor are opportunities for your community to have a voice on the pages students host. They allow community members to interact with your staff and your readers by responding to stories students have written, topics covered, or issues in the school or their world concerning them. Also,accepting guest commentaries, offered randomly, reinforces student media’s role as a public forum for student expression. This would not include the creation of stranding guest columns for administrations, faculty or other school or city officials.

 

Don’t let ‘funny things’ happen on the way to your forum   Many scholastic media outlets appear to come up short when developing and posting an editorial policy.  It appears that common practices are to:

  • Just call a publication “a forum.”
  • Call it an open forum.
  • Call it a limited-open forum.

Or if all else fails,

  • Not have a policy at all

 

Hazelwood’s costs: Open forum status helps win court case, then striped, not returned  Hazelwood stories: by Kevin Smyth “When I joined JagWirein September 2007 as a 51-year old adviser with no advising background, and limited experience as a student journalist, I had no idea I’d become a poster boy for “things that can go wrong your first year as adviser.’ It’s been a difficult story.”

 

 

Seattle School District seeks to remove forum policy for prior review   Even though its current open forum policy helped it avoid a lawsuit earlier this year, the Seattle School District seems determined to change course and install prior review, making the adviser responsible for all content and the administrators able to review at will.

 

Podcast/RPM:

Eliminating prior review  A conversation focused on learning rather than “press rights” may help administrators do away with prior review when students and teachers outline the benefits of student expression that come from critical thinking and problem solving.

 

SPLC resources:

 

 

Other resources:

 

 

JEA law/ethics curriculum:

 

 

Related Content       | Mission | Policy | Staff manual | Prior review | Prior restraint |  Censorship |

 

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