First Amendment and school pubs
“ Not only do social studies classes throughout the country teach the basics of the First Amendment, but in journalism classes students are encouraged to take the First Amendment seriously, not because it is license to publish whatever they please but because it provides the underpinnings that protect their readers. Thomas Jefferson probably said it best: ‘Our liberty depends on freedom of the press and that cannot be limited without being lost.’”

That comment, first written in 1966, still holds true today, despite conflicting U. S. Supreme Court decisions affecting freedom of expression for high school students. These cases and others, and with their interpretations, have created an atmosphere of confusion and have led to conflicts that a sound understanding of the law and thorough practice of educational standards could have avoided.

American history classes in every school, and high school journalism programs across the country, lionize John Peter Zenger, Jefferson and Benjamin Franklin as models of those who stood against tyranny. These historical figures and the principles they created evolved into the framework for scholastic press law.

Lessons are real in journalism, a former high school journalist said. She now knows she learned her real lessons in every interview and each story. “Each time we wanted to dig slightly below the plastic veneer adolescent life with which we were presented,” she said. That lesson was journalism creates a real democracy by enabling students to reach as high as they want, as high as their imagination and willingness to have an impact, to make a difference, will carry them.

To develop a real democracy, students must have a chance to practice what they learn in American history, in English, in business and in sociology, she said. They must experience, as Supreme Court Justice William Brennan wrote in the 1988 U. S. Supreme Court Hazelwood decision, the Constitution of the United States as more than just parchment under glass.

That is why journalism teachers and advisers focus on the legal and ethical rights and obligations of student journalists before anything else: For our democracy to be truly participatory, students must learn to be empowered so they see the value of making a difference.

What Jefferson implied, public officials and high school administrators have learned and relearned since the words were first uttered: A free press does not insure a fair press, nor an accurate or responsible press. But that’s the risk we as educators have to take. The alternative is to set in motion practices that eventually undermine our democracy and everything our nation stands for.

Alternatives to censorship work very satisfactorily, including hiring of trained, certified journalism teachers and publication advisers and establishing editorial policies which outline the limits of legal expression. In October-November 1996’s Quill and Scroll, a magazine for scholastic journalism teachers and students, Florida international University professor David Martinson wrote, “Considerable evidence exists indicating our secondary schools do a poor job teaching democratic values and responsible citizenship in a free society. One former college administrator, for example, stated ‘students come to us alienated and servile. They want to be told what to do...we don’t have to say anything to them; they are most anxious to please.’ That certainly does not approximate how Thomas Jefferson would have defined the ‘ideal citizen.’”

To develop the ideal citizen, administrators, as well as advisers and student media staffs, have to consider the following areas:
• Why it is legally and educationally important school officials support the First Amendment and free expression rights of students;
• Why it is important to deny the urge to prior review or restrain, even knowing the troublesome speech that could result ;
• What administrators should be doing with school media to ensure freedom of expression;
• What the differences are between law and ethics—just because students have the right to do something does not mean they have to – and why.

Why it is legally important school officials support the First Amendment and free expression rights of students?
Helping students understand their legal obligations, as well as their rights, is an important curricular goal of journalism education, whether student media is a part of the classroom or is co-curricular.

To do this, journalism educators emphasize the teaching of five areas of unprotected speech as defined by the Student Press Law Center in its text Law and the Student Press.
Those areas are:
--Libel
--Obscenity
--Material disruption of the school process
--Invasion of privacy
--Copyright infringement

Understanding these five areas by all involved will safeguard the interests of the system, the students and the readers.

In addition, creating and maintaining student media as forums for student expression is essential to assure the best learning. It is impossible and unwise to “protect” students from knowledge of society’s problems. A public forum reduces rumor, speculation and misinformation; it offers solid information, sources of aid and a basis for wise action; provides students an outlet for comment, opinion and debate; and introduces student thought to the rest of the community and allows for community response.

Administrators should also ensure the school’s curriculum presents the following legal cases and their impact on scholastic journalism:
• Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
“ It can hardly be argued that either students or teachers shed their Constitutional rights to freedom of expression at the schoolhouse gate...Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect...” Justice Abe Fortas wrote for the majority. The Court ruled as long as there is not "substantial disruption of or material interference with school activities," the students' freedom to express themselves is protected by the First Amendment.

• Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
This case enabled administrators to prevent publication of material when their censorship was “reasonably related to legitimate pedagogical concerns.” The Court, however, left that phrase undefined, saying only when the censorship has “no valid educational purpose” should a court act to protect student expression.
Not everyone agreed this case was sound.

" My students' ability to publish controversial material is now in every respect dependent on my attitudes, my thoughts and my willingness to be vulnerable in front of my superintendent, my board of education and my community,” Franklin McCallie, principal at Kirkwood High School, Kirkwood, MO., wrote. “Before the ruling there was a spontaneity, even a tension which was healthy and democratic and educational and growth producing. We have lost that under the new rules.”

It is important to note Hazelwood does not say administrators must censor; it only says under certain conditions they might.

Hazelwood also did not overturn or challenge Tinker. Instead, it added a parallel set of rules that confused the issue of student free expression. Under some conditions, high school students have the right to free expression; under others they do not. When they do and when they do not seem to be at the whims of administrators across the country -- and administrators don’t seem to agree.

The Freedom Forum First Amendment Ombudsman Paul McMasters said at the summer 1996 Association for Education in Journalism and Mass Communication convention in Los Angeles, Hazelwood “legitimized stopping the potential of youth. It, in effect, said democracy itself is flawed and something to be feared” when students have uncontrolled freedom of expression.

The SPLC lists additional factors in Hazelwood’s legacy:
– The school may set standards for a student newspaper higher than those demanded in the “real” world.
– The emotional maturity of students may be taken into account when deciding whether to censor a publication or school play.
– Schools may restrict “student or faculty speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with ‘the shared values of a civilized social order’ or to associate the school with any position other than neutrality on matters of public controversy.”

• YEO v. Town of LEXINGTON United States Court of Appeals For the First Circuit No. 96-1623
The case arises from the decision of two public high school student publications -- the newspaper and yearbook -- not to publish an advertisement. The advertisement promoted sexual abstinence and was proffered by a parent, Douglas Yeo, in the aftermath of a decision by the Lexington, Massachusetts, School Committee to make condoms available to students as a public health matter. Yeo had campaigned against the condom distribution policy and lost. The two high school student publications declined to publish the advertisement on the grounds each had a policy, albeit unwritten, of not running political or advocacy advertisements. The First Circuit Court affirmed the decision of the district court, saying the state, meaning the school, had not been involved.

In other words, the Yeo decision suggests where students enjoy the responsibility of content decision-making, school administrators are not liable for content.

“The decision emphasizes schools cannot enforce the idea ‘administrators are responsible for content’ when students make content decisions,” SPLC executive director Goodman said. A “hands-off” policy, he said, may actually insulate schools from liability, even though school officials often think liability is a virtually non-existent issue for high school media.

Goodman said there isn’t one published court decision from anywhere in the country where a school has been held legally responsible for material published in a student-edited high school publication.
In reaching its decision in Yeo, the court reinforced standards long espoused by the Journalism Education Association:

• Administrators who do not censor or prior review are not liable for content. Had school officials in Yeo made decisions for students, Yeo might well have won his case.
• State laws protecting student free expression are important. Massachusetts has such a law.
• Providing financial support does not mean school authorities can control content of the publication.
• Policies calling publications forums for student expression are critical when precisely worded policies give students decision-making responsibility for content.
• Advisers are state agents and should not be involved in the decision-making process. The decision indicates Yeo might well have won the case if the advisers had made decisions and not students.

Why it is educationally important school officials support the First Amendment and free expression rights of students?

Administrators would not think of planning the chemistry teacher’s lessons or calling the plays for the football coach. Yet routinely they ask for prior review and prior restraint of student media.

It is important to define these terms:
• Censorship – prohibiting publication of information, preventing reporters access to public information or creating an atmosphere in which students censor themselves.
• Prior review – examining copy prior to publication for any reason.
• Prior restraint – learning of something which will be published and forcing the staff to remove or change it prior to publication.

Administrators and sometimes media advisers practice prior review/restraint even though there is no definable educational value in prior review or restraint. Taking decision making away from students clearly tells them and their advisers:
• Their ideas no have value.
• They don't need to be critical thinkers.
• Someone else will take responsibility for whatever they do.
• The First Amendment is not a necessary part of society.
• The school does not have to practice what it preaches in terms of the principles of a democracy.
• Trained journalism teachers are not needed because administrators know what is best for their schools.
• If students pursue a career in journalism, others should always choose what the readers need to know, and
• Students would no longer need to have responsibility, morals, values or ideas, imagination, dreams and hopes because they could expect someone else to always provide them.
As we see in the Yeo case, there is also strong legal rationale for encouraging student journalists to make the final decisions of scholastic media. Once school officials censor or require prior review, court decisions suggest they become responsible the content of the publication and thus bear the financially liability. If they do not interfere or read, if they maintain a hands-off attitude, no court will hold administrators liable.
• What administrators should be doing with school media to ensure freedom of expression
One of the most important steps administrators can take to ensure freedom of expression and to protect themselves is to work with students and advisers to encourage students and advisers to develop publications policies. In the Yeo case, Goodman said it was essential students had clearly established a policy for the newspaper and yearbook and school officials not only supported it but endorsed it.

“There is a danger of policies being overbroad,” Goodman said. “In this case it was quite clear students made decisions of policy and the paper was designated as a forum for student expression by student editors.” By stating student editors make all content decisions, there is no risk some disgrunteled advertiser or letter-writter can say their First Amendment rights were violated.

The Yeo case also quoted Massachusetts law about what could be good policy for all student media. “No expression made by students in the exercise of such rights shall be deemed to be an expression of school policy and no school officials shall be held responsible in any civil or criminal action for any expression made or published by students,” the case stated.

The case further outlined why student decision-making was important. “School officials have an interest in their (students’) autonomy to make educational decisions,” the court reported. “Officials have determined the best way to teach journalism skills is to respect the students’ editorial judgment a degree of autonomy similar to that exercised by professional journalists. That choice by the officials parallels the allocation of responsibility for editorial judgments made by the First Amendment itself.”

• Practices administrators should avoid
For years, JEA and the SPLC have urged advisers and students to develop editorial policies as the first step to a professional, student-directed, journalism program.
Some policies, like the following, however, are too broad and are not defendable in terms of what they argue is unprotected speech. Terminology in this category can read like:
• Material inconsistent with the shared values of a civilized social order;
• Material potentially harmful to juveniles or offensive according to community standards as to what is suitable for juveniles;
• Materials offensive to good taste;
• Material that endorses any candidate for public office or takes a political stand on any issue;
• Material that endorses any candidate for school board;
• Denying of equal opportunity for all viewpoints unless the material is generally acceptable to the community
• Denying ads if they would be offensive to a significant minority or the majority of the community
• Requiring a by-line shall to accompany every article
• Forbidding school publications endorsement of any candidate for public office
• Subjecting all material to review by the advisers and/or principal. Those who are denied approval for inclusion of materials in school publications may appeal to a committee composed of the principal, the advisers of the school paper and yearbook and the presidents of each class. The function of this committee is advisory, based to review the material presented. The decision remains with the principal.

Policies also need to avoid questionable objectives for student operated media:
• To create a wholesome school spirit and to support the best traditions of the school;
• To promote cooperation among taxpayers, parents, the school and its students;
• To promote and encourage school-sponsored activities;
• To serve as public relations media.

Many of the above statements would not stand careful legal scrutiny.
Positive steps administrators can take to ensure freedom of expression include:
• Learn to what extent the student press is governed under provisions of the 1988 Hazelwood decision.
• Remember: Students have First Amendment protection.
• Understand the distinction between school publications that are by policy and practice forums for student expression and those in which advisers or principals determine the content.
• Work to have a common understanding of what constitutes a “reasonable” educational justification to censor student publications.
• Work with your media advisers and students to develop policies like the SPLC Model or other policies elsewhere on this site (XXXXXXXX).

What are the differences between law and ethics?
Law says what we should do; ethics says we could do, helping us explore the options. Then, and only, then, we decide what we would do. The goal in asking ethical questions before stories are published is to carefully consider the implications and consequences of the journalist’s choices.
Ethics can be helpful in reporting sensitive or controversial issues. A staff working its way through a list of questions to make reasonable, ethical decisions can provoke many valuable comments, discussions and considerations helping in many situations.

In short, making ethical choices should be part of the daily routine and an integral part of the journalism or publications curricula.

Common ethical problems student media face:
• Conflict of interest: Examples include interviewing friends; only interviewing one grade or those with a specific, known, point of view; “getting even” with those who might have wronged you; doing anything that might compromise your objectivity in the reporting of the truth.
• Plagiarism: Taking others’ work as your own essentially stealing from them. You must credit other people’s materials and ideas, including those published in newspapers, magazines and books. This includes “borrowing” or downloading visuals to usewithout permission with your stories.
• Anonymous sources: Although many reporters use anonymous sources, there are rules about when to use them. You have to determine the information’s value and whether is it possible to get it any other way. You also have to determine whether you need to protect the source from harm from being an identified source. A comment about the cafeteria’s food should not be permitted to remain anonymous, for example.
• Offending or distasteful content: Although it is impossible to run any story without offending, insulting or displeasing someone, student journalists must strive to keep the press open and accessible to a wide range of views without stooping to gratuitous offense. While some use of “dirty” language might be necessary, you have to decide if there is another way to present the information or if the presentation will be so offensive it will preclude readers from getting the information.
• Invasion of privacy: While this is often a legal issue, it is also an ethical one. Student – and professional – reporters must consider the consequences of publishing the outstanding newsvalue photo or naming someone in an article.
• Bias: Human beings cannot be purely objective. The mere selection of one story over another raises the issue of value judgments. Those who create content must attempt to be as fair and impartial as is possible. Every issue has more than one side, and all sides should be represented as much as possible. Student journalists trying to objective should not avoid exploration, experimentation and variety in the press.
• Commitment to accuracy: Little undermines integrity and therefore effectiveness more than carelessness (or deceit) leading to inaccuracy in the press. Not publishing information is almost always better than publishing inaccurate information. The rush to be first, prized today and available to anyone now with the Internet, is no justification for not checking out data, information and sources.

Robert Dardenne in a Poynter Paper, A Free and Responsible Student Press, addressed the issue of media freedom and some solutions. Dardenne wrote that the student press and the professional press share information with their communities, which are sometimes the same, and thus should be treated the same.

“ Students are not exempt from responsibility and decision making. Therefore, they need information a free student press can provide and help them share. The student press provides a model that helps all the students in the community learn how to form and discuss ideas, think critically and analyze information, and it encourages them to get involved in their community”

Solving the censorship problem will come from professionally-oriented journalism teachers, assisted by far-thinking administrators who see that the mission of schools is not to prevent the expression of unpleasant or controversial ideas, but rather to illuminate them by publication where they can most effectively be evaluated.
" School administrators who give young writers and editors room to advocate, to question and to ruffle a few feathers are doing the best job of preparing students for ruffle and responsible citizenship," stated a Washington Post editorial following the Hazelwood decision.