Rethinking your forum status – why the correct wording is essential

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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.

Instead of using wording like this student publication is a limited forum or limited public forum, the Press Rights Commission strongly recommends use of this wording: This student publication is a designated public forum.

In addition, the commission also strongly recommends editorial policies also include this statement: Student editors will make all decisions of content. That statement can show the purpose of the forum and how it is carried out. Additional explanation can share why students should make all final decisions of content.

The need for these changes comes because just stating, as many student media do, that they are forums in name is no longer enough because of the Ithaca decision.

SPLC executive director Frank LoMonte said, in that organization’s May 18 News Flash, Ithaca was a misapplication of the law.

“The court just fundamentally misunderstood what it means to be a limited public forum,” LoMonte said. “A forum where the government gets to pick and choose which cartoons it likes is meaningless.”

Mark Goodman, Knight Chair of Scholastic Journalism at Kent State University, said the court’s decision shows students and advisers can no longer rely on calling themselves a limited forum or just a forum for student expression.

He said the Ithaca court added a new definition of “limited” from what other courts had used, stating “limited” means (in the Ithaca decision) that student media content can be limited to certain subjects. Previous courts had consistently ruled “limited” meant schools could direct content to selected  audiences.

“All that this ruling really changes,” LoMonte said in the News Flash, “is that the term ‘limited public forum’ by itself apparently is going to be meaningless. And, as in Hazelwood itself, the court looked to the actual practice as well as what was on paper.”

LoMonte later said in a post to JEA’s listserv that Ithaca is such an outlandish overreach “it may become in New York, Vermont and Connecticut what Hosty v. Carter became for the college media in Illinois — the impetus for legislators to fix the law.”

“The Ithaca decision cannot be considered a legal precedent and has no real application beyond the 2nd Circuit (New York, Connecticut and Vermont),” Goodman said.

While changing your policy’s wording does not guarantee protection against censorship (what does?), it provides a clearer, more definitive what kind of forum guides your student media.

Background

“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.

The decision also said even though the school’s paper, the Tattler, was a “limited public forum,” the cartoon could still be censored.

Speaking of word precision, let’s all start referring to publications run by and for students as “student media, not school media. Another suggestion would be yearbook “printing company” rather than yearbook publisher. The more precise we are in our references, the less confusion we may mistakenly create.

Resources: Model editorial policies
JEA model editorial policy
SPLC model policy
Designating your publication as a public forum
Publications policies are double-edged swords

 

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