State legislation provides additional protections for student expression
by Mark Goodman
Although many educators and advocates think of the First Amendment (and the court decisions interpreting it) as the most important tool for interpreting student press rights, there is another equally important source of law: state statutes.
As of September 2016, 10 state legislatures have enacted statutory protections for high school students’ free expression rights that help define the protections for and limitations on student journalists. These state laws are considered a complement to the U.S. Constitution; they provide protections that are in addition to those in the First Amendment. For that reason, school officials, teachers and student journalists must be sure that their actions comply with both the Constitution and the state law.
[pullquote]These state laws are considered a complement to the U.S. Constitution; they provide protections that are in addition to those in the First Amendment. For that reason, school officials, teachers and student journalists must be sure that their actions comply with both the Constitution and the state law.[/pullquote]
None of the 10 existing state laws are optional. Public school officials (and even private school officials in California) are legally required to follow their provisions if they are in a state where such a law exists. Thus everyone involved in scholastic journalism from the school administration down should seek a basic understanding of the specifics of their state law.
Student journalists need to understand the extent of the protections they have under state law because those protections may be greater than students in states without such statutes. Advisers and teachers need to be able to teach that information to their students in the classroom and the newsroom. Administrators need to understand that the rules their counterparts in other parts of the country follow relating to censorship of student media may not apply in their state. And communities need to know that they are part of the process as well, supporting both educators and journalists when they follow the law.
[pullquote]Everyone involved in scholastic journalism from the school administration down should seek a basic understanding of the specifics of their state law.[/pullquote]
State student free expression laws are an important way for states to define educational policy. All involved with scholastic journalism should make understanding their own state law a priority
Read MoreTips for reaching out to communities
for info on student free expression
Steps students and advisers can use to help others understand the importance and need for student and free student expression
With new legislation, or attempts to pass it, comes the need for ways to engage those who would support it. The ways can run from concept to concrete and can be delivered in many approaches with details determined locally.
- Convert or update your editorial policy so it reflects your public forum status and explain why that status is important
- Know the law in your state and have policy and practice correspond to it
- Know your school board policies and know how to bring them into line with changes in state law
- Hold a forum for your community/administrators/students to share information. Student media leaders could also invite questions and provide guidance
- Establish a strong network of alumni, parents and community members to help spread the value of free student expression and to assist you with problems
- Prepare an op-ed piece for your community media about the importance of free student media
- Maintain an active and informed voice opposing censorship wherever it occurs
- Blog what your students will do, as protected by a state free expression law, to prevent fear of irresponsible journalism. This could include discussion of media mission, policy, decisions, ethical guidelines and staff manual process
- Endorse the use of adult blogs and social media to show now that students have freedom of expression they will uphold standards of journalistic responsibility.
- Don’t self-censor. Know what to publish that is meaningful content, and how and why to do so effectively
- Empower your students, through their decision-making, to practice socially responsible journalism and to know the difference between sound and unsound journalism so they can better teach their communities
- Invite the various groups into your newsroom to see students at work
- Explain what terms like forum, etc., mean and how they will work with students making decisions
- Develop Talking Points on the educational and civic values of free student expression
- Create a press release based on a model release in this package
- Stress social responsibility across platforms in journalism: truth, accuracy , content and completeness
- Use the Panic Button to reach JEA’s Scholastic Press Rights Committee if you need additional assistance
- Remember three additional points:
–Your credibility as student media rests not on Hazelwood and review, but on journalistically responsible, ethical and complete reporting
–Journalism is at the core of democracy. If students learn that control trumps freedom because of decisions like Hazelwood and its practices, then democracy crumbles, bit by bit
–Communities cannot be informed, or act upon the information they have if it is limited, controlled or distorted by prior review or censorship
Read MoreWhy protecting student free expression is important
Students and advisers in states with recent freedom of expression legislation may want to inform their communities of educational rationale for the legislation. Additionally, those states working to pass such legislation might want to use the same points to gain support.
How free expression legislation provides value to:
- Students who can more effectively
— Demonstrate learning, critical thinking and decision making by applying the principles of free expression legislation
–Pursue opportunities in all aspects of journalism not available previously
–Show that principles of civic engagement practiced through journalism can make a difference their communities
–Display leadership skills that will be useful throughout their lives
–Develop a meaningful and effective voices important to themselves and society
- Advisers who can more effectively
–Help develop useful, effective and meaningful life-long learning skills in their students
–Train students to expand leadership and citizenship skills applicable to a changing society
–Express teaching concepts and issues that can empower students and enhance student experiences
— Activate enjoyable, meaningful and creative student-led learning experiences
–Build programs that continue to show the benefits of free and journalistically responsible student media
- Administrators who can more effectively
–Empower student journalists to take responsibility for all facets of their student media, practicing what they are taught
–Model journalism programs where standards guide student efforts
–Create an atmosphere where all groups learn and growth from each other
–Expand the vision of all involved in the community mission of civic engagement and social responsibility
–Enxourage student leadership who take advantage of the forum created by their media to improve school and community
- Communities who can more effectively
–Receive information that is accurate, thorough and represents diverse insights
–Collaborate with diverse age groups with diverse backgrounds in the learning process
–Experience the impact of student and citizen free expression
–Benefit from the benefits of creative and enlightened student leadership
–Contribute support so free and journalistically responsible student expression expands
Read More
Terms connected with
student free press legislation
Terms concerning free expression legislation
- Prior review is the practice of school administrators – or anyone in a position of authority outside the editorial staff – demanding that they be allowed to read (or preview) copy prior to publication and/or distribution.
Prior review itself is a form of prior restraint. It inevitably leads the reviewer to censor and student journalists to self-censor in an effort to assure approval. An officially designated adviser, when working with students and offering suggestions for improvement as part of the coaching and learning process, who reads or views student media content before publication is not engaged in prior review. However, when an adviser requires pre-distribution changes over the objections of student editors, his/her actions then become prior restraint.
This state legislation does not prevent prior review. However, every major journalism education organization have spoken against it, saying it has no educational value and is only the first step toward censorship.
- Prior restraint occurs when school officials – often after they have read material (prior review) – do something to inhibit, ban or restrain its publication.
Prior restraint prevents a complete and often factual story or set of facts from being told.
It often prevents an accurate account of the topic or issue from being told
- Forum for student expression
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 decision, 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.
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.
If you’re developing a new policy or altering current policy to reflect changes in state law, 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.
- Public forums by policy: An official school policy exists that designates student editors, within clearly defined limitations (no libel, obscenity, etc.), as the ultimate authority for determining content. (A publication’s own editorial policy does not count as an official school policy unless some school official has formally endorsed it.) School administrators 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.
- Public forums by practice: A school policy may or may not exist regarding student media, but administrators take a hands-off approach and empower students to control content decisions. For some period of time, there has been no act of censorship by administrators and there is no required prior approval of content by administrators. Advisers teach and offer students advice, but they neither control nor make final decisions regarding content. (Principals Guide)
This link describes the types and is basis for summary to be added here: http://jeasprc.org/tweet2-choosing-your-forum-status-is-like-choosing-the-best-medicine/
Read this article by Mark Goodman on forum status: http://jeasprc.org/questions-about-public-forum-status/
Administrators like to talk of responsible or accountable student media. We agree, but want to couch the terms this way: journalistic responsibility.
Journalistic responsibility includes accuracy, context, completeness and verification. Your first responsibility, as student journalists, is to present truth as best you can find it to your various communities in such a way that empowers them to make effective decisions that enhance democracy.
Such a definition precludes prior review, prior restraint and other limitations that would distort or render student reporting inaccurate or inaccurate.
- Codes of ethics
Codes of ethics are recommended journalistic guidelines. As such they propose journalistic practices akin to professional standards. But, they are not requirements. No professional journalism organization forces its members or practitioners to adhere or to follow them.
JEA’s Adviser Code of Ethics establishes Best Practices for teaching and advising journalism and student media. NSPA’s Student Code of Ethics is but one model code for students. Another, used by many student media as a model is the Society of Professional Journalists Code of Ethics.
JEA recommends establishing a board -level editorial policy, media mission statement, media-level policy, media codes of ethics for students with a strong staff manual on the processes students will use to practice ethical guidelines.
The policy statements should show student media as designated public forums for student expression where students make all final decisions of content without prior review. For detailed information on wording and process for these guidelines, go to the SPRC’s Foundations package.
Relevant court cases
- Tinker: The Tinker Standard (1969) protects student speech unless it is libelous, an invasion of privacy or creates a “clear and present danger” or a “material and substantial disruption” of the school.
- Hazelwood: The Hazelwood decision (1988) allowed administrators to easily justify censorship of legitimate speech in curricular settings. The following states have this protection. Click on each state to see their law.
Common legal definitions (as defined by the SPLC):
- Libel: Any published communication – words, photos, pictures, symbols – that falsely harms a person’s reputation. Libel is written; slander is spoken defamation. A five of these elements must be present for there to be libel: publication, identification, harm, falsity and fault. Provable truth is an absolute defense against libel.
- Invasion of privacy: The right to privacy is not explicitly guaranteed by the Constitution, and not all elements recognized by all states. The four types of invasion of privacy are: Public disclosure of private and embarrassing facts; Intrusion; False light and Misappropriation
- Obscene as to minors: True obscenity is not protected speech; identifying it easier said than done. Profanity and nudity are not in themselves obscene. To be determined as obscene, something must meet all three tests: material has no serious literary, political, artistic or scientific content; predominantly appeals to the prurient, shameful or morbid interest of mines and patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors and is utterly without social importance for minors
- Material and substantial disruption: The Tinker standard. Claims of material and substantial disruption must have factual support, which can include “reasonable forecast” of disruption “Undifferentiated fear or apprehension of disturbance” or a “mere desire” to avoid unpopular views does not qualify. Sometimes referred to as “clear and present danger” in legislation.
Specific legislation language (Illinois)
- School official: A school principal or his or her designee
- School sponsored media: Any material prepared, substantially written, published or broadcast by student journalists and available to others outside the classroom
- Student journalist: Any public high school journalist who gathers, compiles, writes, edits, photographs, records or prepares information for dissemination in school-sponsored media
• Student media adviser: An individual employed, appointed or designated by a school district to supervise or provide instruction relating to school-sponsored media.
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Apply for First Amendment recognition
with FAFPA Award
Constitution Day participation can be a time to focus student journalists a on recognition for First Amendment practices and policies as well as civic engagement.
For instance, the FAPFA award.
This First Amendment Press Freedom Award recognizes high schools that actively support, teach and protect First Amendment rights and responsibilities of students and teachers. The recognition focuses on student-run media where students make all final decisions of content without prior review.
Roughly, here’s a sample of what the judging committee looks for in determining FAPFA recipients:
- No prior review or restraint by school faculty for all student media.
- Student staffers make all final decisions of content for all student media.
- Establish policies at all student media and school system levels or both as public forums for student expression.
- Remove Internet filters for student journalism use
- Students, advisers and administrators agree on First Amendment practices, philosophy and application across platforms.
As in previous years, schools compete for the title by first answering questionnaires submitted by an adviser and at least one editor. Those who advance to the next level will be asked to provide responses from the principal and all media advisers and student editors, indicating their support of the First Amendment. In addition, semifinalists submitted samples of their school and media online or printed policies that show student media applying their freedoms.
Schools recognized as meeting FAPFA criteria will be honored at the opening ceremony of the JEA/NSPA Spring National High School Journalism Convention in Seattle.
First round applications are due annually by Dec. 1. Downloadable applications for 2017 will be available on the JEA website in the fall.
Save this link and apply now.
Meet the challenges raised by Constitution Day. Apply to be a FAPFA-recognized school.
This is the 17th year for the award.
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