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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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No license, no car

Posted by on Jul 24, 2017 in Blog, Scholastic Journalism, Teaching | 1 comment

by Stan Zoller, MJE
One of my favorite arguments, if one can have such an entity, is with other journalism educators regarding how they start their course.

While in the midst of this discussion a number of years ago, one adviser told me she always starts with interviewing and then moves into journalistic history.

And what about journalistic laws and ethics?

“Oh,” she said, “I cover those later in the course.”

I was reminded of this discussion while teaching at a recent workshop.  My students were all editorial leaders and during our discussion of prior review, prior restraint and New Voices legislation, both the Tinker and Hazelwood cases (naturally) came up.

To my dismay none of the students were familiar with either of these cases.

Where, pray tell, were their journalism teachers and/or advisers?

While some students were working on club media, or had small programs, there obviously has to be a faculty member or administrator involved. They should, at the very least, be familiar with both Tinker and Hazelwood so they can provide guidance to the student journalists.

They apparently don’t.  Unfortunately, several students told me content for their media is prior reviewed and, as one student said, needs to be written so it presents the school in a positive light.

Why is it important to start with the fundamental press law and ethics? I like to equate it to driver’s education – you don’t get the keys to the car and go on the road until you know the rules of the road.

I can hear Fred Rogers saying “Can you say PR tool, boys and girls? I knew you could.”

Why is it important to start with the fundamental press law and ethics? I like to equate it to driver’s education – you don’t get the keys to the car and go on the road until you know the rules of the road.

While Tinker and Hazelwood are not the foundation of press law, when it comes to scholastic journalism, they are an essential part of the foundation. All journalists should know the basics of media ethics and law before they go on an interview, take a picture or start recording video.

This is not breaking news, but journalists, in this case beginning with scholastic journalists, need to realize laws tell journalists what they must do while ethics guide scribes to what they should do. This is why it’s paramount to make sure journalism students are well versed in these fundamentals before they start their work as journalists.

The basics of both the Tinker case Tinker Decision and Hazelwood case Hazelwood decision will help students understand the scope of what administrators can – and cannot do.  JEA members can find additional information about both cases in the JEA curriculum at JEA curriculum

If scholastic journalists are going to be prepared to deal with issues related to prior review, prior restraint and the scope of New Voices registration, they need to have the basics down pat.

Not sure?

Ask yourself – would you ride with someone who never took driver’s ed?

A complete look at key cases, including Tinker and Hazelwood, can be found at JEA’s Scholastic Press Rights Commission’s web site, Scholastic Press Rights Commission

 

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No one lives in a Hazelwood state

Posted by on Nov 30, 2015 in Blog, Hazelwood, News, Scholastic Journalism, Teaching | 1 comment

sprclogoby Candace Perkins Bowen, MJE

The first time a journalism teacher in a convention session asked for advice because she lived “in a Hazelwood state,” I know I frowned. What? You may be in a state that doesn’t protect student speech, but how would that make you a Hazelwood state?

The important news is — it doesn’t.

In 1969 when Tinker v. Des Moines Independent Community School District said students don’t shed their constitutional rights at the schoolhouse gate, this meant all students — it was a protection.

But Hazelwood School District v. Kuhlmeier (1988) didn’t overturn Tinker. And it didn’t say schools HAD to censor or prior review. In fact, eventually we have found some pretty big loopholes. For one thing, your state CAN pass legislation that protects student speech, as North Dakota did in April 2015 to join the other nine states that have laws (and two that have education codes). This new surge of interest in legislation has emerged in more than 21 states, with many adopting the New Voices name.

The more we can do to discourage school officials from seeing Hazelwood-supported censorship as an obligation but instead perceiving it as an embarrassment, the better off scholastic journalism will be.  Avoiding the ‘Hazelwood state’ moniker is one way to do that…Mark Goodman

But even if your state doesn’t offer such protection, you have options. For one thing, you can operate as an open forum for student expression, either by your board policy or by your own practice of having students make content decisions and avoid prior review.

As former SPLC director Mark Goodman, now Knight Chair in Scholastic Journalism and professor at Kent State, said, “It goes back to the fact that Hazelwood never requires censorship by school officials.  Too many people misread or misinterpret Hazelwood as being a directive as opposed to a permission.”

He pointed out that even in these so-called “Hazelwood states” many student journalists have strong First Amendment protection as a result of their school’s policy or practice of designating them as a public forum.

“The more we can do to discourage school officials from seeing Hazelwood-supported censorship as an obligation but instead perceiving it as an embarrassment, the better off scholastic journalism will be.  Avoiding the ‘Hazelwood state’ moniker is one way to do that,” Goodman said.

 

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Jan. 13 decision paralyzes student mood about journalism

Posted by on Jan 27, 2013 in Blog, Hazelwood, Law and Ethics, News, Scholastic Journalism, Teaching | 1 comment

by Brenda Gorsuch
Hazelwood stories: When I became the newspaper adviser at West Henderson High School in 1983, I loved telling my students about the Supreme Court’s Tinker v. Des Moines Community School District decision from 1969.hazelwoodcolor

I enjoyed listening to them discuss the rights the First Amendment and the Court had guaranteed them. My students felt empowered. It was inspiring to watch the pride and spirit of responsibility they brought to their work on the Wingspan. At one point, an assistant superintendent in our school district tried to prevent my students from publishing an in-depth story on sex education, but our principal came to our defense. He reminded his boss of the Tinker decision and told her that his students understood their rights and responsibilities and that he supported their efforts.

Then came Jan. 13, 1988. We were shocked by the court’s decision in the Hazelwood School District v. Kuhlmeier case. The mood in my classroom that day was so somber that an outsider would have thought someone had died. My students felt paralyzed. How could adults as knowledgeable and powerful as the Supreme Court justices think they were not entitled to their rights as citizens?

Over the weeks and months that followed, my young journalists became tentative and, at times, timid in pursuing stories that needed to be told. It was disheartening to watch their fearful second-guessing and self-censorship.

In the years since the Hazelwood decision, I have become even more convinced that the Supreme Court got it wrong. If we expect excellence and give students the opportunity to be responsible, they will rise to our expectations. I believe students should be allowed freedom of expression in their publications.

I can understand the Supreme Court’s concerns expressed in the Hazelwood decision, but I believe the justices expected too little of today’s youth. The publications at West Henderson have never been submitted for prior review by an administrator.

As their adviser, I continue to encourage my students to tackle important issues and to report them in a fair, accurate and balanced way. In spite of Hazelwood, my students continue to inspire me.

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Only the beginning of an important discussion

Posted by on Oct 25, 2010 in Law and Ethics, News, Scholastic Journalism, Teaching | 0 comments

Columbia Scholastic Press Association Executive Director Ed Sullivan graciously agreed to share his comments from a listserv discussion about the recent Sixth Circuit court decision that teachers have no Teacher speech rights on school curriculum.

You can find those comments on the CSJblog.

His comments parallel another listserv discussion by Fellows of  a ASNE Reynolds 2010 Institute: How to best fight for First Amendment rights for our students when administrators don’t want to hear or support those arguments, and could even retaliate against teachers who make them. Like the teacher speech rights discussion, some advisers feel the fight is seemingly one teachers cannot win.

As the number of advisers dwindle who taught without the threat of Hazelwood, how can journalism organizations best help tomorrow’s teachers in the continuing and important fight to teach students the First Amendment is real – even though they might not be able to practice it.

As Mark Goodman, Kent State’s Knight chair for Scholastic Journalism, told the ASNE group, “We HAVE to teach students that censorship is wrong, morally, educationally and journalistically, even when it cannot be avoided or overcome.  And we have to do it in such a way that we don’t make kids so cynical they think the entire idea of the First Amendment is a joke.”

We’d like to hear your ideas and perspectives, too.

There will be more said here in weeks to come.

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