Coming to a state near you?
For those who have not read it, SPLC executive director Frank LoMonte’s recent post on Indiana’s HB 1169 is a chilling reminder of why free expression – and not just for high school students – requires eternal vigilance.
For those who will celebrate Scholastic Journalism Week next week, LoMonte’s post is literally mandatory reading.
For those who are not aware, the proposed legislation – already passed in the Indiana house – would allow schools to control student expression in or out of schools for anything “reasonably be considered to be an interference with school purposes or an educational function.”
For those of us who are teachers and educators, that language, says LoMonte, can mean just about anything, any thought or action conceivably upsetting to a school official or administrator.
For those of us who now live with the application of a supposedly limited Hazelwood decision, the spectre, to put it mildly, is reminiscent of the chill breathed into scholastic media as school officials interpreted its meaning.
For those of us who want critical thinking, decision making and civic engagement to remain alive not only in our schools but in our communities, becoming aware and creating ways to sidetrack such thinking and legislation becomes paramount.
For those of us who are unaware, such legislation might be coming to a state near you.
Read MoreRe-establishing our belief in the right forum
Just because the 2nd Circuit Federal Appeals Court recently handed down a decision in R.O. v. Ithaca City School District laden with shaky interpretations and references, it is not time to surrender or alter our beliefs.
“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 school’s paper, the Tattler, was a “limited public forum,” the cartoon could still be censored.
The Student Press Law Center reported in a May 18 article, “The Second Circuit, however, distinguished between a ‘limited’ public forum and a ‘designated’ public forum, holding that a ‘limited’ forum newspaper remains subject to Hazelwood.”
If not reversed, that decision could damage student media forum status, but other courts could also ignore it as an aberration.
The First Amendment Center’s President, Ken Paulson, said May 20 in a commentary (which also provides access to the student artwork), “the cartoon was censored because the school found it embarrassing, not because it would unleash the sexual imaginations of ninth graders. They can pretty much do that on their own.”
Paulson said images on the Internet and sexting expose students to far worse.
“In this environment,”Paulson wrote, “it seems a stretch to call anatomically vague stick figures ‘sexually explicit.'”
SPLC executive director Frank LoMonte said the decision 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.”
“All that this ruling really changes,” LoMonte said, “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.”
If the adviser starts acting like the assignment editor, he said, it’s going to be held against the students, and a court is not going to recognize the paper as a true forum paper.
“You, the adviser, are ‘the state,'” LoMonte said, “and the more actively the state is involved in editorial decisions, the less likely the paper will be a forum regardless of what appears in the masthead and even in the policy manual.”
Simply calling student media “limited public forums” may no longer be enough, LoMonte said. In an email to the JEA listserv, LoMonte said any decent publications policy will have to go further than the “forum” buzzword and will have to enumerate with precision the exclusive grounds on which censorship is permissible. LoMonte has added additional information in a new post May 22.
For those who have “limited public forums” policies, or others concerned about maintaining their forum status, here are a couple suggestions:
• Look at your policy. If it just states you are a limited public forum, add or clarify language that explains what that means and how students make that the framework of professional standards. Look at model and state law language.
• Add or clarify language that shows how students will avoid unprotected speech and report accurately, thoroughly and in context.
• Add or clarify language that students make all final decisions of content and why that is important.
Although he warned JEA members the Ithaca decision could be the “worst legal setback” since Hazelwood, LoMonte also said it 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.”
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Only the beginning of an important discussion
Columbia Scholastic Press Association Executive Director Ed Sullivan graciously agreed to share his comments from a listserv discussion about the recent Sixth Circuit court decision that teachers have no Teacher speech rights on school curriculum.
You can find those comments on the CSJblog.
His comments parallel another listserv discussion by Fellows of a ASNE Reynolds 2010 Institute: How to best fight for First Amendment rights for our students when administrators don’t want to hear or support those arguments, and could even retaliate against teachers who make them. Like the teacher speech rights discussion, some advisers feel the fight is seemingly one teachers cannot win.
As the number of advisers dwindle who taught without the threat of Hazelwood, how can journalism organizations best help tomorrow’s teachers in the continuing and important fight to teach students the First Amendment is real – even though they might not be able to practice it.
As Mark Goodman, Kent State’s Knight chair for Scholastic Journalism, told the ASNE group, “We HAVE to teach students that censorship is wrong, morally, educationally and journalistically, even when it cannot be avoided or overcome. And we have to do it in such a way that we don’t make kids so cynical they think the entire idea of the First Amendment is a joke.”
We’d like to hear your ideas and perspectives, too.
There will be more said here in weeks to come.
Read MoreGood student work makes a difference
Student conduct in preparing controversial coverage spurred an attorney to change his mind and say he will work for a bill that protects both student journalists and their schools.
Don Austin, of a law firm that currently represents Puyallup, Washington, schools and was their counsel in the recent case involving Jagwire’s coverage of oral sex, said he would work for state legislation to guarantee student expression and still protect school systems, something he said he once opposed because he did not feel it gave schools enough immunity from lawsuits.
He said the cost of defending the lawsuit, nearly $250,000, the fact the jury found no invasion of privacy and no negligence on the part of the school system with students making content decisions, helped him see he should involve administrators in creating bulletproof immunity for schools – while still protecting students’ rights.
At one time, he said he did not believe students could successfully exercise control of publications.
“The kids convinced me,” he said of why his views had changed.
Austin said as part of the pre-trial briefings for the recent Jagwire case, he interviewed both adviser Kevin Smyth and his students.
“I went through and methodically evaluated his program,” Austin said. “I was impressed with the approach he and his students took” in regard to the process of reporting the oral sex stories. “Students acted as adults to do what they did.”
Austin said he wanted to “avoid future litigation” by working with school authorities and student expression supporters. He said those who have supported student free expression should know there is now a “different audience” to help work on this legislation.
The goal, he said, is to protect all parties.
Kathy Schrier, WJEA executive director, said Austin’s testimony favoring such legislation would be a huge help in the Senate Judiciary Committee. She said she would like to see changes in language to protect all parties.
“Don Austin spoke against legislation last time,” First Amendment advocate and former Auburn High adviser Fern Valentine said, “but now realizes that is is the answer for both the students and school districts.”
Valentine said legislators will need to hear from school attorneys who support the legislation and can testify that a strong state law will not only insure students learn the most possible in their journalism classes but will also protect school districts from the expense of possible litigation.
WJEA president Vince DeMiero said he believes Austin is a convert.
“I truly believe if we nurture this relationship that it will be beneficial to both parties,” DeMiero said. “He’s busy, but he’s the first lawyer outside of the SPLC who I really think understands what we’re talking about. He’s incredibly focused and very intelligent. So, to have him on our side would be huge.”
Until legislation is again proposed, students in the Puyallup district and others around the state continue to fight against prior review and restraint. Check out information about the Puyallup student efforts, and about a new policy based on NEOLA standards at Seaholm High School. The NEOLA site, in a Webinar, talks about all four policy options referred to in the Seaholm article.
Read MoreMichigan schools face loss of open forum status
Despite the Dean v. Utica court decision and despite the fact they have had histories of being forums for student expression, at least two more Michigan schools and their student media face school board rejection of that student media status.
In a number of similar instances, a common factor, according to boards and advisers, is the consulting group, NEOLA.
NEOLA released a revised set of policies this fall for student media, 5722, which consisted of four possible selections instead of a single choice, last updated in 2000. The 2000 model NEOLA policy did not support an open forum concept for student media. NEOLA says its updated four choices have two non open forum models and two open forum ones.
Either of the two forum offerings, as NEOLA presents them, allows a district to choose which student media not to permit to be called open forums. School boards can pick and chose which of the options they want to adopt.
NEOLA says it does not advocate any of the four choices over the others.
Information reported in today’s Hometownlife.com reported otherwise for journalism students in the Plymouth-Canton Community Schools.
“Acting on a recommendation from NEOLA,” the policy consultant used by the district,” the publication reported, “Plymouth-Canton’s policy committee recommended changes to the policy covering school-sponsored publications and productions.”
According to hometownlife, “The new policy, if adopted, applies to “school-sponsored media” such as Perspective, 88.1, yearbooks, playbills, blogs, library journals, theatrical productions and video and audio productions. It also extends to posters, pamphlets, and school-sponsored clothing such as T-shirts.”
The online publication also reported that a Michigan law firm supported imposing the restrictive Hazelwood interpretation of how school districts can control student media.
According to the article, school officials do not plan to change “the way we do business. We have an obligation to make sure our students maintain high standards of academic achievement.”
JEA’s Scholastic Press Rights Commission is talking to Michigan advisers and NEOLA officials for additional information.
Reports of NEOLA-led changes came from the Dexter Schools. Student media in Dexter also face hostile blog attacks.
Anyone in Michigan or other states who faces similar actions over policy reversal should let their state JEA directors and the press rights commission know the details.
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