Students, the First Amendment and the Supreme Court
by Jan Ewell
Permission granted to use at will for non-commercial purposes
The Bill of Rights and Schools
The First Amendment, along with the rest of the Bill of Rights, became the law of the land in 1791, but 216 years later in 2007 Supreme Court Justice Clarence Thomas wrote in Morse v. Frederick, “As originally understood, the Constitution does not afford students a right to free speech in public school.”
Thomas was an originalist, one who interprets the Constitution and the Bill of Rights according to what the Founding Fathers—the original authors—intended. Public education was virtually non-existent at the time. Thomas says the Founding Fathers did not intend the Bill of Rights to limit the power of schools and were not specifically concerned about the rights of public school students.
Fortunately for the student press, the other eight justices instead debated which First Amendment rights students should have. They looked at past court decisions for precedents, that is, earlier rulings by the court, that set a rule or pattern for deciding similar cases.
The precedent for almost 100 years was the 1833 Supreme Court decision in Barron v. Baltimore, which said the Bill of Rights applied only to the federal government. According to Barron, “Congress shall make no law” meant the United States government—Congress–could not make laws “abridging freedom of speech, or of the press.” States and cities—and school districts–could and did make laws that established religions, and abridged free speech and freedom the press, and limited the right to assemble. “A local school teacher was not Congress within the meaning of `Congress shall make no law,’” said David L. Hudson Jr. in Let the Students Speak! Only the federal government was forbidden to make such laws.
The Supreme Court began to apply the Bill of Rights to the laws and practices of states starting in 1925 with Gitlow v. New York. By 1965, in Gideon v. Wainwright, the court indicated that all forms of government—not just the federal government–were restrained by the Constitution and its amendments, including the Bill of Rights. Public schools are a form of government.
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Foundations for Scholastic Journalism
Late last year, the Scholastic Press Rights Commission asked JEA members and others what clear statements about legal and ethical issues they would like to see compiled in one easy-to-access place.
From their responses the Commission created these 11 Foundations for Scholastic Journalism, in downloadable PDF form below, the first installment of our series. Foundations run from the general, including curriculum standards for law and ethics, to the precise, such as how and when to get consent when publishing articles. It’s a start, and the Commission welcomes suggestions for others we can add in the future.
Some of these incorporate and expand on JEA policies and statements the Board has passed and are available elsewhere on the Web, but here you will find them all in one place. They also offer links to resources that support each concept and can serve as handouts or posters.
1. Journalism as 21st Century skills
- 2. A Free and Responsible Student Press
3. Administrators Should Support Scholastic Journalism
4. Why advisers should oppose censorship
5. The Importance of Getting Consent
6. The Use of Anonymous Sources
7. Verification is important
8. Handling controversy
9. Foundations to meet Common Core standards for law and ethics
10. A road map: Getting to know the SPLC
11. Who owns the copyright?
We welcome your feedback and recommendations.
Read MoreMirror, mirror on the wall: leadership in the digital age
Expanding scholastic journalism into the digital environment is like delving into the world of fantasy, complete with magic mirrors that enlighten and show implications for the future and connections to the past.
Our dilemma is how to decide what traditional journalism standards are worthy of transfer to the magical world of digital media and, in particular, whether those standards include editorial leadership and extended reporting.
It’s still the mirror versus the candle debate — should journalists simply reflect reality to their audiences or should they shine light into the dark corners and make their world a better place? Our new tools — all those digital bells and whistles — offer leadership opportunities but also hold challenges to that leadership.
Even now, in digital media’s initial stages of growth, a quick check of school Web sites shows a number do not publish staff editorials. Some do not expand their reporting beyond that of showing what surrounds them. What is reported includes cafeteria menus, game scores and requests to get involved in school activities. In some cases it’s even hard to differentiate between fact and opinion writing. The I dominates the we of editorial leadership.
JEA president Jack Kennedy said possible causes for the disappearance of editorial leadership in scholastic journalism could include:
• students are scared.
• advisers are scared.
• everyone is turned off by the proliferation of ill-considered rhetoric in the media.
• we (students and advisers) are not very comfortable with persuasive essay style.
• readers simply do not look to their own student press for leadership.
How these sites and online media in general will perform a classic leadership role isn’t clear yet. But unless we take time to address leadership issues, including those above or ones similar, scholastic journalism’s potential will be thwarted. The future effectiveness of student media may well depend directly on how they employ today’s standards in creating content for new media.
Should those standards be like the traditional mirror or candle, or should we create some new blend? How will student media lead? Or will they?
Part 3 will examine possibilities and offer some direction.
Read MoreCan the Elements of Journalism help replace prior review?
As we’ve tried to emphasize in the last several posts, prior review is not a valid or workable educational practice. It betrays the trust of the audience (as well as that of student journalists and their advisers) and negates any concept of students taking responsibility for what they write.
Let’s see if we can build some common ground to lessen the need for prior review, which we have seen lately undermines the whole educational process.
Bill Kovach and Tom Rosenstiel call this approach the science of reporting.
Together, these points, say the authors, lead to the discipline of verification, meaning published material is accurate, truthful and in context.
Paired with responsible journalism, as defined by JEA and outlined in an earlier post, Kovach and Rosenstiel’s verification of information and science of reporting provide a framework for scholastic journalism without prior review.
Given the outrageous examples of recent prior review, isn’t it time to give student journalists a chance to prove good journalism can and will occur without review?
In their book, The Elements of Journalism, they outline five points for this concept:
• Never add anything that was not there: This requires solid reporting and a variety of credible sources.
• Never deceive the audience: This requires building a framework of trust with your audiences and ties to the next point.
• Be as transparent as possible about methods and motive: It allows the audience to judge the validity of the information, the process by which it was gathered and the motives and biases of the journalists providing it, the authors say.
• Rely on your own original reporting: Reporters who can do their own work, with encouragement and support from school officials and advisers will produce stronger, more complete reporting. This might even mean turning off the Internet filters so they can have unfiltered access to information and sources.
• Exercise humility: Journalists should be humble about their own skills as well as what they see and hear from sources. This reinforces the need to know perspective on stories as well as being open-minded to story-changing resources.
Recent examples of prior review leading to censorship clearly show we must find a way to encourage students practice what they are taught. We hope The Elements of Journalism can help pave the way.
Read MoreLinks to important scholastic media court cases
JEA members using the listserv this week were making a list of important scholastic media court cases. That list, or one like it, is on the Court cases page (see link at the top right of this page) – and with links to information about those cases.
We hope you will find these cases and links to them useful We also hope you will suggest other cases and links you found useful.
Read MoreAvoiding Legal Problems, Step 1: Interview Notes Deadline
Student newspapers have two ways to avoid legal problems. Your students can never print anything controversial, creative or of interest to their readers, or you can teach your students how to write about controversy responsibly.
This responsibility begins long before the story is printed. Having your editors check the interview notes of the reporters can quickly reveal that the students haven’t talked to the all the right people to get a balanced story. It gives time to check out possible liability and to get permission to use quotes in place.
It also prevents procrastination, always a problem for all of us.
Students often only talk to their friends, or, worse yet, use the internet and don’t localize the story by talking to students, administrators or local sources. Brainstorming sources and questions can help get students off in the right directions.
Have your editors negotiate reasonable individual story deadlines for these notes and stick to them. Extending deadlines needs to be done ahead of time and in extreme cases only. If a student isn’t “dead” for missing a deadline, deadlines don’t mean a thing.
Interview skills are a sellable skill and one that journalism classes teach well. You might remind your administrators that, although they might prefer not to answer students’ questions about controversial topics, the students are really learning important skills that will help them in all sorts of situations throughout their lives.
Role playing interview situations with beginners can teach those skills and can be loads of fun as well.
Adding “interview notes” to the list of deadlines can help get things moving early and make sure that stories are well balanced and have the important information that will avoid legal problems when the story is published.
Fern Valentine, MJE