Talking Points about student free expression
Talking Points and terminology related to free expression legislation
With 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.
[pullquote]“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[/pullquote]
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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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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The role of student media
Ethical guidelines
Journalists often are considered mirrors on society. As such, journalism should reflect the community in which it is produced. In order to also maintain their watchdog function, journalists must also be able to act as candles that illuminate and challenge a community’s values and preconceptions. Monitoring the status quo and the powers that be is one way journalists can both reflect and challenge their communities. This journalistic practice helps maintain the free and accurate flow of information.
Additionally, student media should be independent from their school’s public relations arm. The purpose of student media is to report school and community issues and events. Consequently, the purpose of student media is not to protect the image of the school or district.
These roles are premised on the idea that student media can operate in an independent manner.
JEA strongly rejects both prior review and restraint as tools in the education process and agrees with other national journalism education groups that no valid educational justification exists for prior review of scholastic media.
Prior review and prior restraint of student media content by school officials are weapons in the arsenal of censorship. Not only do they limit student learning and application, but they also restrict student critical thinking and analysis.
- Prior review occurs when school administrators – or anyone in a position of authority outside the editorial staff – demands to read, view or approve content prior to publication and/or distribution. JEA includes review, but not demanding change, as part of the adviser’s role.
- Prior restraint happens when anyone not on the student staff – often after they have read material (prior review) – requires pre-distribution changes to inhibit, ban or restrain content before release to the audience.
Free expression, supported by journalistic responsibility, empowers students to exercise their civic engagement and responsibility as they practice the principles of a free, open democracy.
Staff manual process
A media-level editorial policy/guideline should designate student media as public forums for student expression in which students make all final decisions of content without review from school officials.
Student journalists must be attuned to the institutions, people and issues that most affect their readers: students. By engaging with this community, actively looking for stories and becoming part of the institutional fabric of their schools, student journalists will be prepared to recognize which stories will reflect and challenge their community.
Students should define this distinct role in their school community and should highlight the difference between their role and that of the school’s public relations department.
Suggestions
• Persuade school officials to adopt or endorse a policy that designates student media as public forums for student expression in which students make all final decisions of content without prior review.
• Develop principles and procedures that uphold scholastic media as designated public forums practicing professional and ethical standards.
• Be the eyes and ears for readers. What information should they know but aren’t likely to seek on their own?
• Assign beats to represent the most important topics, institutions and people in the community. Keeping tabs on the same topic throughout the year will help students develop a keen nose for news and will help them understand the unique dynamics at play in their community.
• Include entrepreneurial assignments that allow students to explore key issues and events in the communities, expanding their eyes and ears for news.
• Address strategies that help reporters remain detached from stories they cover in their own communities. The staff manual should address strategies for situations when students are too entrenched in the community to cover it in an ethically sound manner.
• Elaborate the specific role of student media in the community and how this role differs from the school’s public relations functions.
• Encourage an open-door policy and open line of communication between editors and administrators, but don’t allow student media to serve as an extension of the district public relations department.
• Ensure coherent and complete coverage of events, issues and people provides evidence of the student media program’s commitment to professional standards.
How administrators can help
Strong strategies exist to help administrators support quality journalism programs. These include:
• Working with advisers and students to develop public forum policies
• Hiring qualified advisers and journalism teachers
• Working with students cooperatively to be good sources for stories
• Building trust in the learning and communication process in a way that also reduces liability concerns of the school system
• Offering constructive feedback after each publication or airing
• Increasing dialogue among school staff and students, thus encouraging outlets of expression that strengthen school safety( • Expanding school and community understanding and appreciation of the value of free, journalistically responsible, student media
• Providing necessary resources to support and maintain student media programs, including financial support, master schedule preferences, development opportunities and time.
JEA condemns prior review because it
• Contradicts the school’s responsibility to teach and maintain, through example, the principles of democracy
• Enables school administrators, who are government officials, to decide in advance what people will read or know. Such officials are potential newsmakers, and their involvement with the news-making process interferes with the public’s right to know
• Creates the possibility of viewpoint discrimination, undermining the marketplace of ideas and all pretext of responsible journalism
• Leads to self-censorship, the most chilling and pervasive form of censorship. Such fear eliminates any chance of critical thinking, decision-making or respect for the opinions of others
• Stifles growth so students do not mature into thinking, discerning, effective contributing citizens in the democracy
• Impairs the ability of a school’s communities to discern the truth about the school and the accuracy of information citizens need to make logical decisions and cast intelligent votes
• Negates the educational value of a trained, professionally active adviser and teacher working with students in a counseling, learning environment. Prior review simply makes the teacher an accessory, as if what is taught really doesn’t matter.
Instead, we believe
• Rights, not authority and discipline, prepare students for roles in a democracy as thinking, discerning, contributing citizens
• Student media best serves their communities when they are editorially independent and present truthful and accurate information
• Student media are safe and peaceful places a for dissemination of ideas, and with ideas there is no clear right or wrong
• Ultimate civic engagement and involvement only occur where students learn that they can practice constitutional guarantees
• Responsible journalism occurs when a qualified faculty adviser, clear publications policies and professionally oriented journalism curriculum exist
• Prior review interferes with the dynamic process of learning. Such review and censorship are the last resort of an educational system failing its present and future citizens.
Resources
Journalism Education Association Statement on Prior Review
Statements to Accompany JEA’s Definitions of Prior Review and Restraint, JEA Scholastic Press Rights Committee
Lesson: Crafting the Argument, Journalism Education Association
Questions for Those Who Prior Review, JEA Scholastic Press Rights Committee
Building a Climate of Trust Can Ease Prior Review, JEA Scholastic Press Rights Committee
Seeking a Cure for the Hazelwood Blues: A Call to Action, JEA Scholastic Press Rights Committee
Audio: Positive Administrator Relations, JEA Scholastic Press Rights Committee, Press Rights Minute
Audio: 10 Tips for Dealing With Censorship, JEA Scholastic Press Rights Committee, Press Rights Minute
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New Hampshire bill may do more
than control surveys
by Stan Zoller
The First Amendment guarantees five freedoms: freedom of religion, speech, press, the right to assemble and the right to petition.
And while journalists – whether student journalists or professional journalists – wrap themselves in the security blanket afforded Americans by the First Amendment, it does not guarantee good journalism.
What does help, and this is not breaking news, is for news organizations, student or otherwise, to check the pulse of their news consumers; in other words, localize national news stories trend stories.
It’s not rocket science and it just makes sense.
Unless you’re in New Hampshire.
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Panic button!
If you are a JEA member or students of a JEA member who need assistance concerning censorship issues, use the panic button to generate an online form to fill out explaining your situation.
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