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
- There is no requirement that any government agency establish a forum of any kind.
- But once a government does establish a forum, it cannot dictate the content of that forum.
- Jurisprudence sees three types of forums: open, limited, closed.
- 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.
- 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.
- 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.
- A designated public forum enables students to make decisions of content, thus empowering them to practice critical thinking and civic engagement roles.
- 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.
- 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.
- 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:
- Collect all the documentation you can find to demonstrate why you believe your publication has been operating as a designated public forum.
- 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.
- Obtain a copy of the replacement language for the policy if whoever is making/suggesting a change has replacement language.
- 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?
- 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.
- Know your state’s education codes and state student free expression laws. It is possible you have language that can protect you.
- Call SPLC to report the move and ask for guidance.
- 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.
- 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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Letters and commentary can enhance pubic forum role QT40
Publishing letters to the editor is another way of fulfilling student media’s forum obligations to engage audiences through journalistic responsibility.
That said, students should establish clear criteria for identifying the authors, receiving and verifying the information. Such viewpoint neutral guidelines do not violate the author’s free expression rights.
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.
Guideline:
Student media should accept letters to the editor or online comments from outside the staff to solidify their status as a designated public forum where students make all final decisions of content. This allows their audience to use their voices as well. Staff should reserve the right to ask the writer to edit for grammar, length and clarity instead of editing letters for them.
Stance:
Student media should welcome letters to the editor or commentaries as ways to engage your readers and diversify the published content.
Reasoning/suggestions:
Letters to the Editor are opportunities for your community to have a voice on the pages you host. They are usually 250 words or fewer and allow community members to interact with your staff and your readers by responding to stories you’ve written, topics you have covered, or issues in the school or their world that concern them.
Your guidelines should clearly spell out your process for accepting letters to the editor, and the editors still must maintain editorial control. Editorial control does not mean student editors do not publish something with which you disagree. In fact, students should use this opportunity to welcome differing viewpoints and voices. Making sure you have viewpoint-agnostic guidelines will help to ensure your staff makes well-informed ethical decisions regarding content.
Staff should reserve the right to ask the writer to edit for grammar, length and clarity instead of editing letters for them. Letting the authors make changes keeps the public forum status intact.
Other considerations:
- A student editor must know the name of the author, and verify the response, even if the letter is published “name withheld by request.” False names or nicknames should not be published.
- Each letter should be no longer than 250 words.
- The source of emailed letters should be verified prior to publication.
- Student staffs should strive to publish all letters received as part of the forum process.
- Student staffs should develop a policy concerning staff member comments or letters to the editor. Such staffers have other avenues to express their opinions in their media, and this is not a common practice for commercial media.
Resources:
Star Tribune’s editorial pages
Letters to the Editor Policies
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Forum status of student media: Quick Tip1
Policy
If you’re 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.
Key points/action: In the post-Hazelwood world, it is more important than ever for student journalists and their advisers to know what policies their school has adopted relating to student publications or student expression.
[pullquote]Quick Tips are small tidbits of information designed to address specific legal or ethical concerns advisers and media staffs may have or have raised. These include a possible guideline, stance, rationale and resources for more information. This is the first in the series. [/pullquote]
The language of those policies (whether they give editorial control to students or keep it in the hands of school officials) and the amount of freedom that students have traditionally operated under at the school can determine whether Hazelwood or Tinker sets the standard for what school officials will be allowed to censor.
A designated public forum is created when school officials have “by policy or by practice” opened a publication for use by students to engage in their own free expression.
Often the most important question in that analysis is which of two First Amendment standards they have to meet.
- The Tinker standard (as defined by the case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)), which says schools can censor only if their actions are necessary to avoid a material and substantial disruption of school activities or an invasion of the rights of others. This language may sound vague, but as the courts have interpreted it, the Tinker standard is a very difficult one for school officials to meet and typically requires them to show evidence of physical disruption before their censorship will be allowed.
- The Hazelwood standard (as defined by the case Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)), which says schools can censor if their actions are reasonably related to legitimate educational concerns. Although this standard requires school officials to justify every act of censorship as educationally sound, it is a standard that gives school officials more extensive authority to silence or punish student expression.
Stance: Of the three types of forums, open public, limited public and closed, JEA strongly endorses the designated (open) public forum concept.
In the Hazelwood case, the Court said it believed both the policy and practice at Hazelwood East High School reflected school officials’ intent to exercise complete control over the student newspaper’s content. That finding prompted the Court to say a designated public forum did not exist.
Student publications at other schools with different policies and different practices relating to editorial control can be public forums. Where student editors have been given final authority over content decisions in their publications or where a school policy explicitly describes a student publication as a designated public forum, the Tinker standard will still apply.
Reasoning/suggestions: If you’re 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.
Two things are important about the phrasing of this policy statement. First is the use of the words “designated public forum” as opposed to “limited public forum” or other similar language. Although many once believed the two phrases were interchangeable, some recent court decisions have suggested that using the word “limited” opens the door to school censorship as permitted under Hazelwood.
Second, using the phrase “student editors make all content decisions” is in many ways a clearer restatement of the meaning of “designated public forum.” It conveys the intent behind the public forum phrase anyone unfamiliar with the relevant Supreme Court rulings should understand.
To help schools understand what we consider public forums, please note these definitions:
- 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.
Resources
When your publication is a public forum and when it is not, Mark Goodman, Knight chair in Scholastic Journalism
Choosing your forum status is like choosing the best medicine, JEA Scholastic Press Rights Committee
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Don’t let ‘funny things’ happen
on the way to your forum
by Stan Zoller, MJE
I can’t help but wonder if Pseudolus and Marcus Lycus had been journalism educators if a funny thing would have happened on the way to the forum.
For you nonmovie buffs, Pseudolus, played by the late Zero Mostel and Marcus Lycus, played by the equally late Phil Silvers, were leads in the comedy play and movie, “A Funny Thing Happened on the Way to the Forum,” a slapstick comedy about Rome.
Had they been J teachers or advisers, it’s likely one of their daunting tasks would have been, aside from reserving hotel rooms for a JEA conference, determining what kind of forum they wanted to help students establish for their student media.
Sounds simple, yes? Actually, no.
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.
For the record, none are acceptable. So what’s the solution? Obviously, develop a policy that your readers can easily find and understand. A media level editorial policy generally includes a mission statement, a letters to the editor policy, guidelines for submitting guest essay and, of course, a pronunciation as to what kind of forum your media is.
It’s not a good idea to have your media be an ‘open forum’ because, technically, that would mean you’ll accept any and everything, which could make your media a wild west show. Besides, your building is not an open forum, so you cannot be something that your school is not.
The trend about 15 years ago was for school media to be considered ‘limited open forums,’ but it wasn’t clear as to how limited the forum would be and who would establish those limits.
In the fourth edition of the Student Press Law Center’s “Law of the Student Press,” the discussion regarding limited public forum says the interpretation in “recent court rulings” is that the term ‘limited public forum’ “…has become practically meaningless.”
The book explains that “…in the middle tier of forums – a “designated” public forum – the government’s ability to regulate the content of speech is extremely limited. The book further adds that “Only where a compelling justification exists, and the restriction is narrowly designed so as not to limit more speech than necessary, will a regulation is narrowly designed so not to limit more speech than necessary, will a regulation be upheld as constitutionality permissible.” The entire discussion about limited open forums can be found on pages 52-53 of the fourth edition.
[pullquote]While legal eagles are likely to continue refining the guidelines for establishing a specific forum for student media, it is safe to say designated forums are the best options for student expression and generally (a key word) give student journalists the support they need to produce free and journalistically responsible student media.[/pullquote]
The compromise, so it seems, is to have scholastic media be “designated forums of student expression.” The intent is to clearly establish that the media, print or digital, is not only the source of information for a student community, but also the place where students can voice their opinions.
While legal eagles are likely to continue refining the guidelines for establishing a specific forum for student media, it is safe to say designated forums are the best options for student expression and generally (a key word) give student journalists the support they need to produce free and journalistically responsible student media.
Examples of editorial policies can be found at SPLC.org or at the JEA’s Scholastic Press Rights Commission’s web site, JEASPRC.org.
It’s essential that you and your student media staff research, establish, write and include a comprehensive editorial policy in every issue and on every student digital media site.
Because the last thing you want to end up with is comedy tonight.
Read MoreQuestions about public forum status
When your publication is a public forum
and when it is not
by Mark Goodman, Professor and Knight Chair in Scholastic Journalism, Kent State University
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 which of two First Amendment standards they have to meet.
- The Tinker standard (as defined by the case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)), which says schools can censor only if their actions are necessary to avoid a material and substantial disruption of school activities or an invasion of the rights of others. This language may sound vague, but as the courts have interpreted it, the Tinker standard is a very difficult one for school officials to meet and typically requires them to show evidence of physical disruption before their censorship will be allowed.
- The Hazelwood standard (as defined by the case Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)), which says schools can censor if their actions are reasonably related to legitimate educational concerns. Although this standard requires school officials to justify every act of censorship as educationally sound, it is a standard that gives school officials more extensive authority to silence or punish student expression.
How do you determine which standard applies? Forum status.
The Supreme Court made clear that the standard it created in the Hazelwood case did not automatically apply to every school-sponsored student publication. Rather, to determine which standard applied to a particular act of censorship of a student publication, a court must first ask this question:
Has the publication, by either school policy or practice, been opened as a designated public forum for student expression?
Even curricular, school-sponsored student publications may still be entitled to strong First Amendment protection and exempt from Hazelwood’s limitations if they have been designated a “public forum” for student expression.
[pullquote]The Supreme Court made clear that the standard it created in the Hazelwood case did not automatically apply to every school-sponsored student publication. Rather, to determine which standard applied to a particular act of censorship of a student publication, a court must first ask this question:
Has the publication, by either school policy or practice, been opened as a designated public forum for student expression?[/pullquote]
How do you determine public forum status?
A public forum is created when school officials have “by policy or by practice” opened a publication for use by students to engage in their own free expression.
In the Hazelwood case, the Court said that it believed that both the policy and practice at Hazelwood East High School reflected school officials’ intent to exercise complete control over the student newspaper’s content. That finding prompted the Court to say a designated public forum did not exist. Nevertheless, student publications at other schools with different policies and different practices relating to editorial control can be public forums. Where student editors have been given final authority over content decisions in their publications or where a school policy explicitly describes a student publication as a designated public forum, the Tinker standard will still apply.
At schools where student editors are given the authority to make final decisions about what will be included in their publication or where a school policy reflects an intent to give students that authority, public forum status will still be found and schools will have to meet the Tinker standard before they can legally censor.
Is your publication a designated public forum?
In the post-Hazelwood world, it is more important than ever that student journalists and their advisers know what policies their school has adopted relating to student publications or student expression. The language of those polices (whether they give editorial control to students or keep it in the hands of school officials) and the amount of freedom that students have traditionally operated under at the school can determine whether Hazelwood or Tinker sets the standard for what school officials will be allowed to censor.
[pullquote]If you’re developing a new policy, the Scholastic Press Rights Committee recommends using language that reads 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. [/pullquote]
Two things are important about the phrasing of this policy statement. First is the use of the words “designated public forum” as opposed to “limited public forum” or other similar language. Although many once believed the two phrases were interchangeable, some recent court decisions have suggested that using the word “limited” opens the door to school censorship as permitted under Hazelwood.
Second, using the phrase “student editors make all content decisions” is in many ways a clearer restatement of the meaning of “designated public forum.” It conveys the intent behind the public forum phrase that anyone unfamiliar with the relevant Supreme Court rulings should understand.
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