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Talking Points about student free expression

Posted by on Sep 5, 2016 in Blog, Hazelwood, Law and Ethics, News, Scholastic Journalism, Teaching | 0 comments

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Talking Points and terminology related to free expression legislation
Foundations_mainWith legislation giving students decision-making power over their student media comes questions about roles, purpose and standards. If the school cannot make content decisions who is responsible? What is the role of the adviser? Of students? If the adviser cannot control content, what guidelines will students follow and why?

The Student Press Law Center has said its goal for supporting free expression legislation is to approach the various New Voices Acts as comprehensive educational legislation that will benefit students at each stage of their development, while recognizing the differences between each educational environment.

“A core value of being a journalist is to understand the role of the press in a free society. That role is to provide an independent source of information so that a citizen can make informed decisions. It is often the case that this core value of journalistic independence requires a  journalist to question authority rather than side with authority. Thus, if the role of the press in a democratic society is to have any value, all journalists – including student journalists – must be allowed to publish viewpoints contrary to those of state authorities without intervention or censorship by the authorities themselves. Without protection, the freedoms of speech and press are meaningless and the press becomes a mere channel for official thought.”
– Judge Arthur Tarnow, Dean v. Utica Community Schools

The Talking Points below, and the other materials in this package, might help clarify the importance of legislation protecting free speech and what the various terms – legal and educational – mean.

Points are used with permission from the Student Press Law Center, the Journalism Education Association’s Scholastic Press Rights Committee and JEA’s Principals and the Press initiative.

Talking points

• What do you mean that state legislation rolls back Hazelwood? Isn’t that illegal?

State legislation trumps Hazelwood because it adds to Constitutional guarantees of the First Amendment for all citizens, including students. In effect, it restores Tinker by rolling back Hazelwood.

A student editor of a school-sponsored publication in a state with these laws is entitled to both the protection of The First Amendment and the protection of the state law.  To put it another way, Hazelwood establishes the minimum level of high school press freedom that the First Amendment requires. No government official — federal, state or local — may act in a way, nor may lawmakers pass a law or policy, that provides individuals with less free speech protection than that required by the First Amendment, as interpreted in Hazelwood. Nothing, however, prevents state lawmakers from passing a law that requires school and government officials in their state to provide student journalists with more rights than the constitution requires.

• Aren’t the reasons for censorship in Hazelwood still censorable under this new legislation?

No. This legislation reverts to Tinker standards and unprotected speech: libel, material and substantial disruption, unwarranted invasion of privacy and obscenity.

• What are free and journalistically responsible student media?
Responsible student journalists strive for accuracy, completeness and balance to achieve and maintain credibility. The new legislation gives them a greater chance to achieve this practice.

Responsible scholastic journalists thoroughly gather and deliver coherent, accurate and complete content that serves their audience and its need to know – no matter what media platform they use.

Responsible students avoid unprotected speech — libel, unwarranted invasion of privacy, copyright infringement and obscenity – and language that causes a material and substantial disruption of the school day or advocates illegal use of drugs.

Students learn to pursue and act on those standards by making final decisions of content, without review or restraint by adviser or those outside the student media staff.

Administrators can improve their schools’ learning environment by providing open access to information and the freedom to choose topics and sources essential to communities’ various audiences. Responsible administrators empower their teachers to educate students on legal and ethical responsibilities, making prior review and censorship counterproductive and unnecessary.

As Bill Kovach and Tom Rosenstiel say in “The Elements of Journalism,” journalists’ first responsibility is to the truth, and their loyalty is to the citizens they report for.

“Journalism provides something unique to a culture,” the authors write. “Independent, reliable, accurate and comprehensive information citizens require to be free.”

• What if the school has existing policy and school administrators say the law does not apply to existing policy?

New legislation would likely win out over existing policy if the policy were contrary to the wording and intent of the legislation. Prior review, however, might still be allowed so long as administrators or school officials just reviewed and did not demand change or make changes. Prior review, though, would have to be severely limited in terms of time. Read and return by the end of the school day is reasonable.

The SPLC’s Frank LoMonte said, “The (Illinois) legislation doesn’t say speech can be prohibited if the speech violates school policies – it says you can prohibit speech that incites students to violate district policies. I’m sure what they had in mind was stuff that incites people to violate disciplinary rules (truancy, tardiness) that are not actually ‘illegal.’” If a school were to ever actually say, ‘We have a school policy against criticizing the principal’ and tried to override HB 5902 on those grounds, we would gladly challenge it.

• What happens if an adviser is ill-prepared to properly guide students to make the “right” content choices?

We would urge advisers to make use of the myriad of materials available to them from multiple sources. The Student Press Law Center, The Freedom Forum, the national and regional scholastic press associations and the Journalism Education Association all have teaching and background resources. The Scholastic Press Rights Committee also urges advisers to work with students to design a journalistically  and educationally sound mission statement for student media, an editorial policy designating student media as public forums, journalistically responsible ethical guidelines that have clear processes students will follow.

All this is not just adviser and student responsibility. School boards and administrators also have an obligation to ensure advisers have adequate access to teaching materials and educational opportunities, including professional organization membership and workshops for teacher/adviser and students.

The reason we have professional organizations like JEA is to better prepare teachers, who may not be trained in journalism, for this important work. Just as some coaches may not have formal training to coach, student media advisers sometimes must learn on the job. This is not a reason to deny students the opportunity to have their voices heard by imposing administrative control over content, which only suppresses critical thinking and halts civic engagement; rather, it is a reason to encourage excellence and to support student responsibility by providing access to resources and training.

• How much is this going to cost schools?
Absolutely nothing. In fact, it might save districts money in the long run by protecting them from legal liability.

• Why shouldn’t students be subject to censorship? After all, commercial journalists are subject to editing.
Editors of commercial media news are not employed by the government; the work they edit is work-for-hire. Student journalists are not employed by the school. School administrators are, in fact, government officials. The First Amendment was crafted to protect U.S. citizens from government censorship. Student speech is protected by the First Amendment, as long as it is lawful and does not cause a “substantial disruption” of the educational process.

The Student Press Law Center provides the legal definition of what is considered, by law, to be “unprotected speech.”

Commercial journalists do not seek permission from their primary sources to publish information and, in fact, have a longstanding tradition of not letting sources see stories before publication. Administrators are primary sources for student journalists. The temptation to censor can be irresistible for administrators, especially in cases when they do not agree with the subject matter or fear that content might reflect poorly on them and their schools.

• Why should we limit the censorship authority of administrators over student media produced on school time with school resources?
Allowing genuine student media outlets that provide students with a meaningful voice on issues that truly matter to them can be a threatening idea to those used to controlling the message. However, we have a First Amendment because, as a nation, we decided that free and independent media play a vital role in our democracy – even if they sometimes are messier than state-controlled media. The fact that student media is produced using school resources does not empower administrators to dictate content. Advisers and administrators are responsible for teaching students so they can make informed content choices.

Fortunately, a number of administrators don’t look upon their student media as adversaries or threats. Instead, they view independent student media as important school assets. They see the value in providing students with forums to express their concerns, and recognize the educational opportunities provided by strong, well-supported student journalism programs.

• Are schools liable for content in student media?
There has never been a reported court decision where a public school or school district has been held legally responsible for content in student media. This legislation ensures that school districts and school administrators are protected from lawsuits. With this law, students would be legally responsible for content in their media – not school officials or school departments.

• Does this legislation give students the right to publish whatever they want?
No. This law does not protect unlawful speech – the same categories of speech that every journalist must avoid (libel, material that invades a person’s legal right to privacy, obscenity as to minors, etc.). The law also imposes an additional category of speech restriction specific to schools: High school students cannot publish speech that would materially and substantially disrupt normal school activities. This establishes a meaningful balance between administrative authority to maintain a safe and effective learning environment and student free speech rights.

• What about the questionable stories published in student media?
Such incidents have occurred, but they are certainly the exception rather than the rule. The majority of student media outlets practice journalism in a responsible manner.

The ability to cover important issues without censorship, promotes a safe and healthy school environment. Students don’t just complain about the cafeteria food. They confront real issues, especially those which are relevant to teens. While it may make administrators uncomfortable, students often cite real safety concerns in their schools. They may cite the need for repairs that have been ignored, especially those that are outside the public view to which students have access, such as locker rooms, student bathrooms and most classrooms. They often bring about change as a result of their vigilance, courage and honesty. The greater good of the students and staff superaedes the reluctance of administrators to hide the truth. They need to be held accountable by the public for not securing a facility properly. Often, board of education members will discover something that they all have read only in the school newspaper, and will investigate the matter once the conditions are exposed.

• What effects do free student media have on the school climate?
School communities need and deserve stories that reflect the authentic student experience. Giving students a voice actually can help guard against disruptive and potentially dangerous behavior by shedding light on issues of concern and empowering the powerless. In fact, coverage of sensitive and important issues often can effect positive change.

• Is there anything, legally, student journalists cannot print?
Yes. The First Amendment does not cover all forms of speech. According to the First Amendment Center, there are essentially nine types of unprotected speech: obscenity, fighting words, defamation (includes libel, slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, solicitations to commit crimes. For more information, click here.

• What does research report about student learning when they control student media?
A 2015 survey of more than 900 Kansas and Missouri high school journalists indicated students felt more confident about being an engaged and productive citizen where:
• School support of First Amendment protection empowers students
• Faculty and students respect and listen to each other fosters civic journalism
• Lighter teacher control yields greater student confidence
• More practice and experience creates confidence in promoting their involvement
• This matters because empowered student journalists said they felt they would be more critically involved in citizenship responsibilities.

Study results can be found at civicsandjournalists.org

 

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Talking Points: Starting a discussion between advisers and administrators
to build the case against prior review, restraint

Posted by on Sep 6, 2013 in Blog, Hazelwood, Law and Ethics, News, Scholastic Journalism, Teaching | 0 comments

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by Lori Keekley
Advisers and administrators should be partners in education, not adversaries.

Advisers must teach principals about the importance of journalism and its relevance to today’s curriculum as well as enlighten them about the pitfalls of prior review and restraint.

We’ve created these Talking Points, based in part on Quill & Scroll’s new version of The Principal’s Guide to Scholastic Journalism (available in print from Quill and Scroll) to help advisers begin to build their cases for a strong, student-driven journalism program.

Most points are further referenced in the Principal’s Guide, which are the page numbers that appear following the main point. Others have links in which advisers can find more information on the topic, including links to the online version of The Principal’s Guide  and materials from JEA’s Scholastic Press Rights Commission.

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Prior review imposes ineffective educational limits on learning, citizenship

Posted by on May 3, 2019 in Blog, Law and Ethics, News, Scholastic Journalism, Teaching | 0 comments

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Words and ideas often become scrambled with prior review


by John Bowen, MJE
Unbelievably, prior review seems to be spreading.

It occurred recently in Illinois, California, Ohio, Texas and numerous additional states. It shows no signs of slowing, despite efforts to pass state legislation to protect student expression.

To read about California review and restraint demands, go here. To read the articles in question go here.

Every scholastic journalism organization has opposed prior review and, hopefully, will continue to do so.

Legally, though, prior review is not unconstitutional although prior restraint – censorship – is in some states, Thus, the best way to fight it is with educational principles and the need for stronger civic engagement.

Arguable points against prior review include:

• It limits student intellectual and societal growth

• It delays or even extinguishes the development of journalistic responsibility

• It shackles critical thinking

• It leads historically to prior restraint which leads to mis- and disinformation

• It has no educational value

Yet, it still continues and spreads.

As journalism teachers we know our students learn more when they make content choices. 

Prior review and restraint do not teach students to produce higher quality journalism or to become more journalistically responsible.

As journalism teachers we know the only way to teach students to take responsibility for their decisions is to train them for that responsibility.

As journalism teachers we know democracy depends on students who understand all voices have a right to be heard and have a voice in their school and community.

It is our responsibility to find and publicize ways to convince those who support prior review why the practice has no place in scholastic journalism.

For our democracy, our educational system and our individual abilities to separate credible information untruths.

To gain traction against prior review, JEA’s Scholastic Press Rights Committee will focus its efforts to provide educational and civic support for advisers, students, parents and administrators so they can best educate their communities.

The resources below represent our initial steps to extend the discussion about the dangers of a practice that historically only led to censorship.

Resources

Prior review
What to tell your principal about prior review?

Why avoiding prior review is educationally sound

Dealing with unwanted, forced prior review?

JEA Adviser Code of Ethics

Definitions of prior review, prior restraint

Prior review vs prior restraint

Questions advisers should ask those who want to implement prior review
Why we keep harping about prior review

Understanding the perils of prior review and restraint

Talking points blog and talking points to counter prior review

And much, much more at Scholastic Press Rights Committee

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A pillar of strength: the Tinker decision

Posted by on Jan 27, 2019 in Blog, Scholastic Journalism, Teaching | 0 comments

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Mary Beth Tinker takes pictures at Kent State University’s May 4 Visitor’s Center of exhibits from the sixties. The center documents the era as its protests and time of anti-war expressiion foreshadowed the deaths of four Kent State students.

We realized as we were creating content ( see Lori Keekley’s blog) to celebrate the 50th anniversary of the Tinker case, we have so much relevant material. Here are a  few by category.

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Editorial policy sets forum status,
decision-making standard and more

Posted by on Oct 25, 2018 in Blog, Legal issues, Scholastic Journalism, Teaching | 0 comments

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Editorial policy

What is it/definition: Designed to provide legal framework for student media, editorial policies come in two forms, school-board level and media-level. In case of conflicts, a school-board policy usually will take precedence. Absent a policy, practice can help determine freedom of expression status. Typical content of an editorial policy can include:

  • Level of freedom of expression
  • Responsibility for student media content
  • Forum status
  • Prior review and restraint
  • References to guiding legal decisions and theories
  • Language about journalistic responsibility, civic engagement and future of democracy 
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