Law of the Student Press

Q Does the student press have the same rights and responsibilities as the professional press? A With certain exceptions, yes, student journalists have the same rights and responsibilities as professional journalists. Everyone in America is guaranteed First Amendment protection of expression.

Student journalists have the right to report on and editorialize about all topics, events or issues, including those unpopular or controversial, insofar as they affect or interest the school, community, nation and world. However, students have the same legal obligations as those imposed upon all journalists. Students must refrain from publishing or disseminating information that:

Is obscene, according to current legal definitions; Is libelous, according to current legal definitions; Creates a clear and present danger of the immediate and substantial physical disruption of the school; Is an invasion of privacy, according to current legal standards; and Advertises illegal products or services, as currently defined by legal definitions

Prior Review and Censorship All student press associations agree that prior review, prior restraints and censorship by faculty advisers, school administrators, faculty, school boards or any other individual outside the student editorial board, except as stated on the previous page, and only when these individuals can demonstrate legally defined justification, is not in the best interests of scholastic journalism or education. In addition, no one should dictate to the student media what the content of their publications should be.

Open Forum vs. Closed Forum The “public forum” analysis” is a legal doctrine the courts have developed to evaluate the legality of government restrictions on expression on government-owned property such as a civic auditorium or an airport. Public forum analysis recognizes three kinds of government-owned property.

1. The first is a traditional public forum, a place which by long tradition has been devoted to free expression, such as a street or a park.

2. The second is the “limited” or “designated” public forum, which is property that has been opened by the government for expressive activity but only for certain groups or for expression on certain topics. Content-based restrictions on expression in either of these kinds of public forums are not permitted unless the government can demonstrate that is restrictions were “narrowly drawn” and serve a “compelling interest”….

… Thus, for example, if a city were to allow plays, speeches and meetings at a civic auditorium, that auditorium would be designated a public forum, and the city would violate the constitution if it denied the auditorium’s use for the performance of a play only because city officials found the play offensive.

3. The final type is the “non-public” or “closed” forum, which is public property that has not by tradition or designation served as a location for free expression, such as a military base or a jail. In the non-public forum, the government can limit expression as long as its restrictions are “reasonable” and not simply an effort to silence a particular viewpoint.

Courts have used this “public forum analysis” to determine the level of First Amendment protection students were entitled to.

Hazelwood v. Kuhlmeier In 1988, the Supreme Court ruled that school officials had the right to censor, or prevent the publication of information, in school publications if they had “legitimate pedagogical reasons” for doing so. However, this decision was handed down in regard to one student newspaper, the Spectrum, of Hazelwood East High School in Hazelwood, Missouri.

The Spectrum’s contents were determined by the adviser; the student staff was chosen by the adviser; all assignments for the paper were made by the adviser. The students had no say in how the paper was set up. In addition, the adviser had made it his practice to submit the paper to the principal for prior review before the publication was sent to the printer.

The Court ruled that the Spectrum was NOT a public forum because the students had not been the ones to determine content, assign stories, and be in control of the general operations of the paper. Since it did not have public forum status, and was a part of the curriculum, the Court ruled that the school administration had the authority to censor its contents—but only in cases in which the officials can show that the censorship is “reasonably related to legitimate pedagogical concerns.”

The Supreme Court made it clear that this new standard did not automatically apply simply because the newspaper was school-sponsored. It was first necessary to determine if the newspaper had been opened as a designated public forum. If it had, either “by policy or by practice”, been opened as a forum for student expression where student editors had been given control over content, then the Tinker Standard would still be used to determine if censorship were permissible.

The Tinker Standard An earlier Supreme Court decision, Tinker v. DesMoines, had determined that students did not give up their First Amendment rights when they walked into the schoolhouse gate. In 1969, the U.S. Supreme Court ruled that students had the right to express themselves freely so long as that expression did not materially and substantially disrupt the school day or infringe upon the rights of others. Although the case dealt with personal expression, it was interpreted to extend to all aspects of the First Amendment, including freedom of the student press.

The “Tinker Standard” maintained that scholastic newspapers were free to publish anything that was not libelous, not obscene and which would not lead to material and substantial disruption of the school day.

Chilling Effect During the years since the Hazelwood decision has been in effect, the number of cases of censorship reported to the Student Press Law Center has risen dramatically. While SPLC helps student journalists with all legal issues surrounding the publication of their newspapers and yearbooks, including libel, invasion of privacy and use of copyrighted materials, about one-third of all calls are related to censorship of content.

The rise in the number of censorship cases has led to what advisers and press law advocates feared would happen: student staffs have begun to censor themselves in anticipation of censorship by school officials. Students are afraid that controversial stories will be cut from the publication, so they are reluctant to spend the time and energy to research sensitive issues, opting instead to write on more light-hearted topics. The fear of being censored has led to self-censorship. This is known as a “chilling effect.”

Policies and Laws Not all schools practice prior review. Some school districts have policies prohibiting prior review and censorship, recognizing the chilling effect of such actions. A number of states have gone even further, establishing laws that protect student journalists from prior review and censorship by school officials, who are recognized as having the same authority as a mayor or a governor, and who should not be involved in the determination of a publication’s content. As one of the primary newsmakers at a school, the principal has a conflict of interest when he/she is allowed to control the content of the publication.

What to do if you are censored The Student Press Law Center is an Arlington, Virginia-based organization, dedicated to helping student journalists with legal issues involving their publications. Here are eight steps students should take if they are censored:

1) Don't begin censoring yourself in fear of what might happen at your school!

Within days of the Supreme court's decision, the Student Press Law Center had calls from students and advisers telling us they were pulling stories about teen pregnancy, AIDS and other timely topics because they did not know how their principal would react to them. That response is exactly what many feared a pro-censorship decision might bring, a true "chilling effect." Nevertheless, it is precisely the wrong response.

If your publication has prepared a well-written, accurate story on any topic of interest to you and your readers, do not drop it because of Hazelwood. Now, more than ever, you should strive to produce the highest quality work you can. But when you have done that, you should not hesitate to publish it. If your principal or some other school official wants to censor, let them do it. Do not try to guess what they might not like and censor yourselves as a result. If you head down the road of self-censorship, it will not be long until your publication is as superficial and unchallenging as many student publications were a generation ago. It is up to you not to let that happen.

2) Establish your publication as a forum for student expression by policy.

The Hazelwood decision said that student publications that are public forums for student expression have much greater First Amendment protection than those that are not. If a policy is not already in existence for your school, push your principal, superintendent or school board to adopt one protecting the right of student journalists to make their own content decisions. Many schools across the country have adopted such policies over the years, and those that have find that high quality publications and students with a greater sense of responsibility for their work result. School districts from rural Colorado to urban Miami have set fine examples.

The Student Press Law Center's Model Guidelines for Student Publications have since 1978 been a pattern for schools of all sizes. The Model Guidelines set reasonable limitations on the material that students can include in their publications. Plus, they protect the rights of students to be free from arbitrary censorship by school officials. Gather the support of students, teachers, parents and community members, and urge your school to adopt a policy that protects press freedoms for students

3)Establish your publication as a forum for student expression by practice.

If you don't think that your school officials will agree to a policy that supports student press freedom, try to establish that by practice your publications are serving as forums. Include a statement in your masthead, staff box or colophon that says your publication is "a public forum for student expression ? student editors make all content decisions." Adopt a similar statement in your editorial policy and have your editor and adviser sign and date it.

4) If you are censored, appeal.

If a school administrator raises objections to a story, graphic or advertisement you want to publish, be prepared to respond. Ask for specific objections to the material in question, in writing if possible. If the problem is poor grammar or style, see if you can improve your work. If the official complains of factual inaccuracies, check the facts again and show why you believe the story to be true. If the complaint is simply the "sensitive" nature of the topic, make sure the material does not fall into one of the areas of " unprotected" speech such as libel. Be willing to sit down with your administrator and talk with a cool head about why the material in question is important for your student publication.

If the day comes when, despite all your efforts, your principal tells you not to run that story about date rape or drug abuse in your publication, do not accept that decision as the last word. Appeal the principal's decision to the school superintendent. Present the superintendent with your well thought-out reasons why the story should run. If the superintendent sides with the principal, go to the school board. Ultimately, the school board has the final decision on what your school officials will be allowed to censor. Your job is to persuade them why your reasons for running the story in question are good ones. If you accept a principal's decision as final, you may be giving up too early.

5) Use public pressure to your advantage.

If you are appealing a decision by school officials to censor or trying to get your school district to adopt a free expression policy, get as many people on your side as you can. Drama and debate groups as well as librarians might be especially interested in joining in this effort. The support of your fellow students, faculty members and parents can have a big influence. Petitions, armbands and buttons all might be appropriate measures when talking about the problem gets no results.

Also, do not be afraid to go to the local media with your situation. They can help publicize your problem and let the community know how serious you are about your student publications and they may offer editorial support. Call the local newspaper or television station and tell them that your story on AIDS was censored from your student newspaper and that you are appealing the decision to the school board. The chances are good that the media will take notice and so will your school board. Most schools don't want to be known as censors. Many will listen more carefully to your concerns if they know the risk of being so labeled exists.

At the same time, if your school officials do not censor, reward them for that. Write an editorial in your own publications and at year end give them an award for their support and commitment to high quality student journalism and the free press rights of students. Be sure to let the local media know about your award. Tell them how lucky you are not to be students at Hazelwood East High School. If you reinforce the positive behavior of your school officials, you are much more likely to see them repeating it.

6) Call the Student Press Law Center or some other legal authority on student press issues if you are censored.

The SPLC can help you make a plan of action for fighting censorship in your school and can help explain what your rights are under state law as well as the First Amendment. If your rights have been infringed and you want to go to court to defend them, the Center can also help you find an attorney in your area that will be willing to offer assistance.

7) Remember alternative publications.

If all the public pressure you can bring to bear does not stop the censorship, remember that you still have the right to create and distribute your own alternative (sometimes called "underground") publications. Alternative publications are not an ideal answer because they seldom provide the important training offered by a professional journalism adviser. But if you are not allowed to express your views or write about the topics that you think are important anywhere else, an alternative publication may be your last resort.

An alternative publication does not have to be expensive to produce. If a small student group is willing to pool money, they can type one up at home or in the public library and photocopy it for pennies a copy. It also may be possible to get money through advertising from members of the community who are supportive of your initiative and perseverance.

Do not take an alternative publication lightly. If you use such a publication only to make fun of people or to explore the boundaries of good taste, you will likely find yourself with minimal support, only reinforcing the notion that the school should never give students control of their school-sponsored publications. But with an alternative publication, the content decisions, for better or worse, will be yours.

8) Make a push for legislation in your state to protect student free press rights.

Many state legislatures have already begun to consider bills to undo what the Supreme Court has done in Hazelwood on a state level. Your state could pass similar protections for students, but it will only do so if it gets an indication of support from students, teachers, parents or other concerned individuals. If you would like to see such a law exist in your state, contact your state scholastic press association or a state legislator.

As one commentator has said, the Supreme Court in Hazelwood "may have unintentionally taught America's youth an important lesson about the precariousness of our constitutional freedoms. Even in America...freedom of the press cannot be taken for granted." A sad and cynical lesson perhaps, but one that if taken to heart can prompt us all to fight to make student journalism's enormous potential a reality.

Law of the Student Press

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