Student Press Law Overview1

Prof. Holly JohnsonMercer County Community College

1. Much of this material is drawn from Law of the Student Press a publication of the Student Press Law Center 3rd ed. www.splc.org

The First Amendment to the US Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Know your rights and how they apply.

Understand that they are not absolute.

Birth of College Press Freedom• The Dickey Case - 1967

– Gary Dickey was editor of the campus newspaper at Troy State University in Alabama in 1967

– Dickey wrote a controversial editorial. The school’s president supported him. The governor and state legislators criticized the president for supporting Dickey.

– Dickey planned to write an editorial in support of the school’s president but his newspaper adviser and even the president told him not to. Instead they wanted to run an article “Raising Dogs in North Carolina.”

– Dickey ran “CENSORED” in place of his article. The school suspended him and he took them to court saying they violated his First Amendment rights. He won.

TINKER• 1969 – Tinker vs. Des Moines Independent Community School District

– Two students were suspended from high school for wearing arm bands to protest the war in Vietnam, they sued saying it violated their First Amendment right to freedom of speech.

– The Supreme Court ruled in favor Mary Beth and John Tinker saying that “Students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The Tinker Standard– The Tinker standard says that student expression is constitutionally

protected unless it “materially and substantially disrupts normal school activities or invades the rights of others.” Tinker does NOT protect libelous speech, invasion of privacy and copyright violations.

– DISRUPTION – Sometimes the court has found that a student has caused a substantial disruption due to their speech. Examples:

• A sixth grade student reading a story he wrote describing graphic murders and assaults of named students and teachers aloud to the class.

• A middle school student who used as his instant messaging icon from his home computer a drawing of a pistol firing a bullet into a person’s head above the words “Kill Mr. VanderMolen,” the name of his English teacher.

Hazelwood• 1988 – Hazelwood School District v. Kuhlmeier

– Reduced, to some extent, the broad rights preserved by Tinker. – In Hazelwood a high school journalism class created a final edition of its

school paper, the principle censored two stories --one on teen pregnancy, another on divorce- saying they were unfair and inappropriate.

– The students sued, claiming their First Amendment rights were violated.– In this case, unlike Tinker, the Supreme Court said that, the high school

principal is acting in place of the parents (in loco parentis) and therefore, in the case of minors, has the right to censor the paper if there is a valid educational reason to do so.

– The decision indicated that when the publication (student paper) was an extra curricular activity (as opposed to a class project) then students enjoy somewhat greater freedom than they would for an in-class activity.

College Papers and Censorship Private colleges face censorship constantly

Public colleges and universities generally fall under the Tinker standard for First Amendment rights.

There have, however, been many subtle attempts to censor public college newspapers such as:

--Cutting funding to the paper

--Firing the adviser

--Firing the editor in chief

-- Removing issues from the racks

These attempts have generally failed on First Amendment grounds when they go to court.

Law Break - As a student newspaper editor you’ve made some enemies from your reporting. You pissed off the school president for reporting that he purchased two puppies with school funds, you pissed off the Beta Beta Beta fraternity for doing an investigation of a cow tipping incident in which they were involved, and you irked the SGA president by reporting on her decision to purchase expensive purple T-Shirts for the spring club fair just because the more expensive ones “flattered her skin tone.”

The result is• You arrive at school on Monday as a janitor is removing all the bins of newspapers under the president’s new policy that prohibits the bins, saying they impede foot traffic and pose a safety risk. • The SGA votes to cut your paper’s funding, citing budget constraints. • The Beta Beta Beta frat goes from rack to rack of newspapers and removes them all and dumps them in a dumpster so no one will read your follow up to the cow tipping story.What are your legal options?

The Fifth Amendment to the US Constitution:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

DUE PROCESS

Due Process• Due Process means the requirement that the specific rules or

process for how disciplinary measures can be imposed must be both fair and followed.

• Schools can give you additional due process rights beyond what the constitution grants, but they cannot give you fewer rights. – For example: if a school fires the adviser to the school paper after an

unflattering series of articles appears, the due process rules set out in the faculty contract (or student handbook, for students) may say that an administrator has to provide written notice three months before failing to renew an adviser. If this has been violated, the adviser has a due process claim to make in court.

FOIA and Sunshine Laws• FOIA – The Freedom of Information Act – grants access to federal

documents• Sunshine laws – state level open public records and meetings laws. In NJ

it’s OPRA – the Open Public Records act. Allows you access to records of all state level governmental institutions. A physical record includes: “any paper, written or printed book, document, drawing, map, plan, photograph, micro-film, data-processed or image-processed document, and information stored or maintained electronically or by sound recording.” A record is considered to have a government purpose when it has been “made, maintained, kept on file or been received in the course of official business.”

• Documents available under OPRA include, but are not limited to: institutional data, meeting minutes, policies and handbooks, official memos, salary information, contracts, attendance sheets, crime logs and statistics (must be made available under the Clery Act).

FERPA• FERPA – The Family Education Rights Privacy Act – • Also known as the Buckley Amendment – 1974 – revised 2x – • FERPA says that if an institution receives funding from the U. S. Department

of Education it must provide students with access to their education records, an opportunity to seek to have the records amended, and some control over the disclosure of information from the records.

• With several exceptions, schools must have a student's consent prior to the disclosure of education records.

• Examples of situations affected by FERPA include school employees divulging information to anyone other than the student about the student's grades or behavior, and school work posted on a bulletin board with a grade.

• Reporters can get copies of some records including records of disciplinary hearings and other documents. Sometimes the records must be redacted to hide identifying information.

Crime and the Clery Act• The Clery Act requires all colleges and universities that

participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses. Compliance is monitored by the United States Department of Education, which can impose civil penalties, up to $27,500 per violation, against institutions for each infraction and can suspend institutions from participating in federal student financial aid programs.

• The law is named for Jeanne Clery, a 19-year-old Lehigh University freshman who was raped and murdered by another Lehigh student in her campus residence hall in 1986. The Clery Act, signed in 1990, was originally known as the Crime Awareness and Campus Security Act.

FERPA-TASTROPHY: Why do schools routinely deny reporters access to information they are entitled to under FERPA and sunshine laws?

Complex legal obligations Genuine confusion about the law Desire to err on the side of caution

Where students go wrongLIBEL– things written that are untrue that defame or do harm to a person or institution.

• Invasion of privacy – 1. Public Disclosure of private or embarrassing facts

2. Intrusion – breaking into a place where people have a reasonable expectation of privacy in order to get information

3. False light (similar to libel)

4. Misappropriation – using someone’s image to sell something without their consent

• Obscenity and indecency – Far more regulation for broadcast than for print. In print many publications choose to self censor. High schools differ from colleges. In print four letter words are acceptable, but depiction of sexually explicit acts are not not.

• Advocating illegal drug use – The court ruled in Morse v. Frederick (2007) the “Bong Hits for Jesus” case, that students cannot advocate illegal drug use during a “school supervised” or “school sanctioned” event.

• Copyright infringement – Using images, audio or video that belong to another without permission or payment.

LAW BREAK In 1977, Toni Ann Diaz became the first woman ever elected student body president of the College of Alameda, a two-year public community college in California. Some time after taking office Diaz accused college officials of improperly withdrawing money from a student activity fund by affixing her signature to checks with a rubber stamp. The Oakland Tribune and the Reporter, the college’s student newspaper covered the dispute.

Not long after the story appeared a columnist for the Oakland Tribune received a tip that Toni Ann Diaz was actually born Antonio Diaz. Confidential sources confirmed – and Diaz later acknowledged- that she was a transsexual who had undergone a sex change operation several years earlier. Since the operation, Diaz had gone to great lengths to keep her secret, which was known only by her family. Before enrolling at Alameda she had changed her name on her high school records and her driver’s license and had attempted to have her birth certificate changed.

Having satisfied himself that the information about Diaz was true, the Tribune reporter published the information. Diaz sued for invasion of privacy.

LAW BREAKASK YOURSELF: • Would Diaz’s past sexual identity ever be of legitimate public concern? • Would it make any difference if Diaz had been the mayor of Oakland instead of a college student government president?• What if she were the state’s first woman governor?• What if Diaz had made an issue of a political opponent’s gender?• What if she were an Olympic athlete?

WHEN DOES THE PUBLIC HAVE A REASON TO KNOW?

REVIEW• Laws to Know

– First + Fifth Amendments– Clery Act– FOIA– OPRA– FERPA

• Cases to Know– Dickey– Hazelwood– Tinker– Morse

• Terms to Understand– Libel– Invasion of Privacy– Censorship– Copyright– Due Process

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