Rethinking your forum status – why the correct wording is essential
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.
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Student media designated public forums? Apply online for FAPFA recognition
We know there are a significant number of open forum student media out there, and we’d like to see you apply for JEA’s First Amendment Press Freedom Award (FAPFA).
Being an open forum for student expression, besides having exceptional educational validity and offering excellent learning opportunities for students, can also help protect a school system in cases of liability as a recent court ruling in Seattle indicates.
If you think your student media are forums, by policy or practice, then go here or here and either download the application form for FAPFA or complete it online and return the completed form to JEA. Application for the honor comes in two parts: the initial application of 25 questions for a media adviser and an administrator.
Those meeting the criteria for the award will then receive a second application to be filled out by the principal, all student media editors and advisers. Deadline for applying is Dec. 1, 2011.
Those meeting the final criteria will be recognized at the 2012 JEA/NSPA convention in Seattle. We know you’re out there. Take the time to be recognized as First Amendment Press Freedom Schools.
Read MoreAmmunition against prior review and restraint Handling controversy, Part 3 of a series
Part of the difficulty in reporting controversial issues is how to define the term and the concept. Any article, if misreported in some way, can be controversial. Journalists would start with looking at the process of gathering information, of observing and conducting research.
Each of these steps would take place following journalistically responsible legal and ethical guidelines, no matter their platform.
In short, we avoid controversy even in sensitive issues through preparation and reliance on journalistic standards.
Our goal in Part 3 of Ammunition Against Prior Review and Restraint is to show coherent reporting begins with preparation using a variety of approaches. Resources for at least some of those ways are listed below.
As Bill Kovach and Tom Rosenstiel wrote in The Elements of Journalism, “Rather than rush to add context and interpretation, the press needs to concentrate on synthesis and verification. Sift out the rumor, the innuendo, the insignificant and the spin, and concentrate on what is true and important about a story.”
Reporting in scholastic media that omits essential pieces of information because of review or restraint is an indirect form of fabrication. It destroys not only truth but credibility and reliability. Worse, it may be a little recognized contributor to a world where stakeholders – politically right and left – grow to mistrust media of all types.
We hope these resources will help you and your students in the quest to find a process for reporting stories that are thorough, accurate – and coherent:
• Reporting controversy requires establishing a sound process
• Sensitive Issues Guide
• 10 Tips for Reporting Controversy
• Using Anonymous Sources with Care
• Verification Before Publishing Prevents Issues
• Importance of Getting Consent in Some Issues
• Tips for covering controversial subjects
• Covering controversial topics guidelines, teaching outline
• Questions to ask about controversial issues
• 10 roles activity
• Introduction to handling controversial reporting PowerPoint
• Confidential sources PowerPoint
• Resources for reporting controversial issues
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Ammunition to help define disruption Part 2 of a series
Although we hoped Tinker v DesMoines might be the definitive word for what is material or substantial disruption in schools, recent events involving digital media and off-campus expression keep the issue alive – and contentious.
School safety issues, including arguments that schools need to protect themselves from cyberbullying and other off-campus speech issues making their way to campus, continue to raise questions about what is disruptive speech.
That is why a master’s thesis at Arizona State University by Kristy Roschke might be helpful not only for advisers, but students and administrators.
“More than 50 years later, Tinker still plays a vital role in protecting the First Amendment rights of students; however, the somewhat vague concept of “material or substantial disruption” has created confusion and disagreement amongst the courts,” Roschke wrote in her thesis.
Roschke cites a “mismatched set of guidelines from various cases that lead is confusing guidelines for administrators to work with, and often misapply to current situations.
Results of her study indicate the majority of decisions made by school administrators fall in category she calls “merely upsetting,” and do not reach the category of “truly disruptive.”
“Administrators’ actions often showed a misinterpretation or complete disregard for the rights granted to students by the Court,” Roschke writes, “all in the name of avoiding conflict that may or may not occur. What is worse is that, when left unchecked, school administrators are largely getting away with stifling student expression for whatever reason they deem appropriate.”
The purpose of this post then is to provide advisers and administrators with access to Roschke’s work in hopes examining it will be used to prevent misunderstanding, misinterpretation and, ultimately, censorship.
Our posting comes in two forms: an executive summary of the thesis and the entire thesis.
The full thesis provides a thorough examination of court decisions and legal standards cited and the implications of the court decisions.
We thank Kristy for agreeing to let us post her work. We hope you will find it as informative and useful as we did.
Part 1 of this series: Sisley v Seattle and liability.
Part 3 of the series will focus on reporting controversy or what can be seen as controversial.
Read MoreThe Seattle decision: providing ammunition for student responsibility. Part 1
By H. L. Hall
In what might be a landmark decision, a Superior Court judge in Washington ruled July 22, 2011, in Sisley v Seattle School District #1, that public high schools are not liable for the content of student-produced newspapers.
Student Press Law Center spokesmen have said this ruling is the first to ever establish liability protection at the high school level. They think this presents a case for allowing students to make content decisions, as a school district should not have to be concerned about being sued.
Although the decision in this case is not the law of the land, it has the possibility of becoming so, as Sisley is appealing. The appeal process could take six months or more.
It is imperative JEA follow the appeal procedures because additional rulings could have great impact on school publications throughout the country. This ruling could lead to less censorship because school officials would not have to worry about liability.
In the meantime, the Scholastic Press Rights Commission offers teaching materials so you can discuss the decision and its implications with your students now. Included here are:
• A lesson plan by Chris Waugaman on the decision
• A PowerPoint by H. L. Hall usable with students and administrators about the implications of the decision
• Resources about the decision and related issues
Later this week we will post links to a master’s thesis by Kristy Roschke that looks at what courts have considered disruptive in scholastic media cases.
Part 2 of this series: Ammunition to help define disruption
Read MoreQuestions for thought #6 part of a series
The last question of our current series.
Do you have others you would raise?
• What does a free press contribute to our democratic society? What are its advantages and disadvantages? Who benefits from a free press? Now repeat the questions for scholastic media? Are there any differences? What and why?
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