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student press law center

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BY ELLEN BlONDER-COUfHESY I>lOUIRY MAGAZINE

The Student Press Law Center is not the only place students should look to for information about their First Amendment rights. T he most important agent for freedom of the press is the press itself. With this in mind, the Center is sponsoring the Second Annual SPLC Journalism and Art Awards. We are encouraging high school and college journalists and artists to address First Amendment issues in an editorial, news anicle. feature or cartoon. Separate awards will be given for writing and art, and entries witt be grouped into high school or college categories. Winning entries will be publiShed in the Spring issue of the national S PL C Report together with a resume of the winners .

To be eligible send us a copy of the newspaper containing your entry, published in a high school or college newspaper or magazine. Entries must be postmarked no later than March 15, 1980. Entry fee: A year's subscription to your student newspaper.

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SPLC JOURNALISM AND ART AWARD

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o Yes, I have placed the SPLC on my newspaper's mailing list

PUBLISHED

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BPLC Report Staff I!DfTOR

Barton Gellman Pnl'1CO on

CONTENTS Features

rSlty

6

Student vs. Student: The Pen Against The Purse

David Danner

sny

ďż˝

BobStaake

UntY8fS ty 01

Dolores Risner

21

n Cal lorn

TYPISTS

Whipping Boy: Battle Strategies jor Adviser Survival

Diana Ouill

DIRECTOR

Michael D. Simpson

26

Staake vs. The Supreme Court: Cartoon Feature

EXECUTIVE COMUlnEE

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LEGAL ADVISORY COMMITTEE

44

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Forum Theory: Why Administrators Are Not the 'Publisher' OJ a School Paper

ADVISORY BOARD

Departments Letters . . .. . .... . . ... . . .. 4 Report Card

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Access.. . .. .. . . . .. .'. - ... . . 12

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Advisers .. ........ .... Censorship

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Government Action .......

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. 35

Libel .. .. . . . . . .. . . . .. . . .. 40 Noteworthy . .... . .. . .. 48 .

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Fali1979

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SPLC Report

3

Letters Student Press Law Center

Mystery Bill To the editor:

I read the Spring 1979 Report with great interest. The story concerning H . Frank Carey [High School)'s news­ paper is accurate all except the last sen­ tence and I know that accuracy is the key to good journalism.

'No Big Deal' To the editor: I have two complaints to report about the story on my libel case against the Iowa City Daily Iowan [see SPLC Reporr, Vo1. II, No.2}. But despite the characterization of me which my oppo­ nents seem to have provided, I am not about to make a stink out of it. One is a typo which has the effect of saying exactly the opposite of what I said. I was quoted as saying thai I wanted to set a precedenl that calling a Jew or Zionist a "racist" was not libel· ous per se. But obviously what I t<:>ld you was that it is libelous per se. �hlch is the point r wanted to make. A Simple typo, no big deal. Also, when I wrote you in March to answer your inquiry, I told you we were about to have a hearing on the ap­ peals. I told you where to write to get a copy of the judgment and thought you'd have enough sense 10 do so. YO.lI apparently forgot, so your story IS rather incomplete. William Michelson Coralville, Iowa

Fora" update. see p. 41.

WE'VE MOVED!

4

The bill which former [Carey Clip­ per editorj Miss Sofia Koutsouris left with me was returned to her and never brought to my attention again. Our records clearly indicate it was nOI paid by our school and I do not know, and neither does Mr. [newspaper adviser John] Scibelli know, whalever hap­ pened with the bill. I know this doesn't really maller very much, but I thought you might like to know that in Ihe interest of ac­ curacy this is what really happened. John

E. London Principal

rights of high school and college journalists. The Center is a

national legal aid agency providing assistance and information to student Journalists and faculty advisers experiencing censorship and other legal problems.

SPlC Report SPLC Report, published three limes each year by the Student Press Law Center, summarizes current controversies involving student press rights. SPLC

Report is researched, written and produced entirety by Journalism and law student produced articles. drawings and

Never

photographs. Please send

To the editor: Please allow me 10 clear lip sorne misconceptions which appeared in the spring edition of the Report. First, [ have never, NEVER predicted that The Cavalier Doily would operate at a loss ne xt year. I have said that I aI'll concerned about the financial future or the newspaper-as well as any editor should be. 1 have also indicated that while the newspaper made a respectable pr�fit this year, next year and the years fight after tha t might not be as profitable. Further, I never have refused to ac­ knowledge mail from the Media Board of Directors. I was not in office long enough to get the mail, much less �e­ fuse to answer it. Only one Cavalier Daily editor-in-chief refused to �c­ knowledge the mail-that was ViteI..

Mike

On another point. The Cavalier Daily wa s founded in 1890, not 1888.

SPLC Report weli'omes leflers from readers. Lellers should be typed and double-spaced. Be­ cause of space limitations, those published are subject to abridge­ ment.

According to interview notes from last February, Neel told SPLC Report: "This year the paper has been able /0 operate at a small profit. However. we'l/ probably be in the �ed neXI year because cost increases will be around nine percent...

Fall 1979

devoted exclUSively to protecting the First Amendment

interns and solicits student

Nelli address and phone: 1033 30th St. NW Washington, DC 20007 (202) 965 -40 17

SPLC Report

The Student Press Law Center is the only national organization

Richard F. Neel, Jr. Edilor-in-chief

matenals to: Student Press Law Center

1033 30 th Street NW

Washington, DC 20007

(202) 965-4017 Copyright

© 1979,

Student Press Law Center. All rights reserved. Yearly SUbscriptions to

the SPLC Report cost $5.00 for students. $10.00 for non·students. All other contributions are tax­

deductable. The Student Press Law Center also offers for sale the Manual for Student Expression: The First Amendment Rights of the HIQh School Press for $1.00 (2-10 copies $ 75 each. more than 10 copies $ 50 eaCh). The manual is presently being revised and expanded and W ill be available as a textbook in 1980. Opinions expressed in signed editorials and cartoons are not necessarily those of the Student Press Law Center.

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Robert F. Kennedy Journalism Awards As Robert Kennedy saw and listened 10 Ihe poor. so did the Journalists who !raveled

Wllh him A

The competllion. which Judges stud nl and

roleSSlonal en t r i es separately. Will award pnzes

group 01 these Journalists founded the Rob n F

In four categories prln!. elevlslOf, radiO. and

Kennedy Journalism Awards program to

photo Journalism The top prize In the student competition III be a three-month Journalism

encourage and recognlz

ouistandlng

achievement In porLraYlng those aspects 01 American life that occupied so much of hiS alienI Ion Now In ItS eleventh year. 1\ IS Ihe largest single program 10 honor outstanding reporting on problems 01 the disadvantaged

internship In Washinglon, DC, and honorable mention and cllatlon Certltlcates Will be awarded o other outstanding ent nes For an entry form and a complete set of rules, contact Robert F Kennedy Journalism Awards

03530 h Street NW Washington, DC 20007

(202) 338-744 .

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Fall 1979

SPLC Report

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� �����" �.. .# " �� �

The Pen Against the Purse

by

Barton Gellman

It is an almost ageless truism: there is bound to be some tension bet ween those who exercise political authorilY and those who criticize their perfor­ mance in prin!. When newspapers dis­ agree too vigorously with public offi­ cials, that tension often blossoms into overl hoslility-even all-out war. On college campuses, those "public officials" have traditionally been ad-

ministrators. 5t udenl journalists have had to defend their editorial freedom in the pasl against very predictable presidents, and adversaries-deans, boards of truslees. BUI school administrators are not the only ones nowadays clamping down on Ihe average campus daily. They are increasingly rivaled as censors by elected officeholders from within Ihe studenl body. Armed with expanded campus au­ thorily-often including control of im­ portant purse slrings-student govern­ ments have acquired both the power and the will to put Iheir colleclive foot down on public controversy. Sludenl

leaders in recenl years have become more and more like their senior coun­ terparls. using money as bOlh the car­ rOl and stick 10 drive newspapers in di­ rections they find convenienl. But college edilors are beginning to fight back. Most seem no more willing to accept censorship by st udents than censorship by administralors. And just as they have repeatedly taken adminis­ (rative disputes to trial over I he pasl decade, they are now slarting 10 fight the same legal baltles againsl studenl governments.

The legal issues are, as one college vice-president observed, "quite inter­ e s t i ng. " To sl udenl jou rna I i 51 s. Ihough, those issues are of more than just academic concern-their con· tinued aUlonomy is al stake. "A press thaI operates under the Ihumb of gov­ ernmenl is not a free press," said an editor at Norlhem Illinois University. Her adviser agreed: "It has got to have a chilling effecl on the newspapers' in­ clination to ferret out and comment on miscues of student governments." But is a cut off of subsidies illegal? In the paSI few years, federal courts ha ve held consiSlenlly that a slate-sup­ ported school administration cannOI legally kill-or even reduce-funding for a student newspaper because of ils "---.. _-

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content. Whether a sludenl legislative body can do so remains an open ques­ lion. The editors and adviser of Ihe Pikes Peak Community Colle ge News aim t o nnd oul. In a blockbusting test case wit h tre­ mendous precedential implications, t hey have filed suit in U.S. Distr ict Court to restore funding to the News. Former editor Martha Dyer-Allison, editor Vicky Evans, assistant edi tor Marie Moon and adviser Judith Olson seek to reverse a decision by the Pikes Peak s tudent senate to remove the

News from the senatoriaJ -an d thus the college-budget. Filed August 10, it is the firsl case in which a newspaper has chall�nged a subsidy cut off by a studenl governmenl. It is the inevitable result of an unfor­ LUnate trend. Tighten enough financial nooses around the throats of enough student papers and, eventually, some­ where, somebody will go after an in­ junction. Even against fellow stu­ dents-popularly elected leaders. At this Colorado community col­ lege, a war of allrition -dating back to 1976-between the News and the senate and administration climaxed in a 5-3 vote by the senate last June 10 end the paper's $12,400 subsidy. There was no prior announcement that the subject would be broached, no repre­ sentative of the News to defend the funding. Just a terse resolution that the Pikes Peak News "projected negative content," was "libelous," "inaccur­ ate," and "not represenlative of the students," and would no longer have the privilege 0 f senate support. After all, t he senate doesn'l have to VOle subsidies 10 a publication wilh which il fundamenlally disagrees, right? Wrong, say spokesmen for the News. Attorneys Donald K in g and Larry Hobbs, representing, respective­ ly, the student editors and adviser Olson, argue that t he same principle that prevents administrators from cut­ ling funds becaus e of con tent also stops student governments. ..

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The principle, contend King and Hobbs. is I h at a state may not regulate free expression in an established for­ um. (See. Legal Analysis, p. 43). But how can the ac tions of a student senate be the actions of a state? Because, say the two attorneys, the money con­ trolled by the senate is derived from student fees-and the Color ado Attor­ ney General s office issued an opinion last year that student fees are state funds. Besides which, they sa y the sen­ ate's budget must be approved by the school's ad m inistrati on and the State Board for Community Colleges and Occupational Education. Having received no response to a let­ ter of protest to the state board. Hobbs and King filed suit against the entire budgelary hierarchy-the student sen­ ate, Pikes Peak college council, school administrat i on and state board. Colorado Assistant Attorney Gen­ eral JoAnn Soker, who will defend against Ihe suit, said before the action was filed tha i it is by no means clear that the senate's funding cut off was a state action. "Thus far I have yel to find a case that answers that ques­ tio n Soker said. "I do not agree that [use of state funds] is neces sa r ily a state action . The assistan t attorney general said she would not discuss her legal reasoning because of the likelihood of litigation. According 10 News adviser Judy Olson, the suil is an outgrowth of a dis­ pute with the studen t senate and the '

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school administration that has been festering for over three years. " There has been harassment since the spring of 1976." says Olson. "The editor then discovered that three administrators had been fired without due process, and the president was forced to rein­ st at e them. From t hen on, the president wanted to scrutinize all copy, but the editor refused. So in the fall, t he presidenl Iried to change the college publication policy from 'no censor­ ship' to 'no unwarranted censorship.' He withd rew the attempt when the faculty student governing council dis­ covered this 'typographical' change." After that, Olson says, the paper be­ gan receiving more and m ore criticism for its alleged "negativism." In de­ fense of the News, Olson vent u res the opinion that "it '5 a fairly decent paper"-it has won 67 awards in the past five years-but says it's "not a PR sheet for the college ... Nor does the adviser believe the stu­ dent senate acted on its own. "The sen­ ate vote was d irectly influenced by the administration," she charges. "They have been trying 10 quiet Ihis paper . (Vice-President John Rodwick] has been working privately with various senat ors and making disparaging re­ marks, lot ally uncalled-for comments aboUI the paper, staff, and me." Rodwick, for his part, mak es no se­ cret of his disli ke for t he News. He told the Colorado Springs Sun, "There is enough feeling on campus that the ad­ viser to the n e wspa per is not doing her job properly-that her personal opin­ ions are affecting what is being written. We are dealt with with contempt by Mrs. Olson and her students." Rod­ wick called Ihe senate's withdrawal of sub si dy a "courageous" sland. Nonetheless, Rodwick maintains -

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Fall1979

SPLC Report

7

that "the Student Government deci­ sion was not the result of administra­ tive pressure," and denies he had any foreknowledge of "that notable vote." In the end, the court wiJi have to decide. Meanwhile, dozens of student newspapers around the country will wait eagerly-and not a little bit an­ xiously-for the ruling. If the Pikes Peak News is successful in its bid to re­ gain funding, it may well inspire a rash of similar suits before the federal

big complaints from Iranians. Jews, feminists, gays, radicals-just about every campus group-about discrimi­ natory advertising and editorial pol­ icies. " Before the ASC had a chance to act on those complaints, though, some New University critics apparenlly took mailers into their own hands. Stoner says that "for three consecutive weeks the paper was trashed" by groups ob­ jecting (0 its content. The first week.

i� bench. If not, some other paper is bound to try the cause again, so great is the magnitude of the problem. Either way, it seems inevitable that the issue will find its way into court again-and soon. On the other hand, the Pikes Peak case may avert the necessity of some li­ tigation, if the judge chooses to pro­ vide a broad definition of the powers over content-if any-that come with student government funding. That question has been hotly debated on col­ lege campuses around the country. • At the University of California at Irvine, the Associated Students Coun­ cil voted in April to withdraw a $20,000 subsidy to the New University in retaliation for that weekly's alleged­ ly "discriminatory advertising and edi­ torial pOlicies." The funds were re­ stored one week later, but only on the condition that a newly formed Com­ munication Board have final authority over the paper's content. "They didn't listen to what we said. so we said, 'Hey, we're gonna take your money away,'" according to ASC Vice-President David Stoner. "We had

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SPLC Report

FaU 1979

Stoner explained, New University ran a feature on a wet T-shirt contest at a local bar; the second week's edition was offensive to Iranians; the third­ on March 6-was a humor issue that made fun of Jews, Christians, gays, the Associated Students and the newspaper staff. Some groups also threatened to sue the paper and student government for "discrimination." Stoner concedes that "a court would not even consider such a claim," but contends that, as publisher, the ASC can regulate the paper's content anyway. New Univer­ sity disagrees that the ASC is publish· er, but a $20,000 price tag has appar­ ently taken the edge off their objec­ tions. • Editors of Pegasus, the campus li­ terary magazine at Delaware County Community College in Pennsylvania. have lasted out a similar series of aborted sanctions over content. When the magazine published a short story about homosexual rape last fall, the administration seized all but the first copies distributed. At the behest of some faculty members, however. the

Board of Trustees decided to allow dis­ tribution-but only after attaching a sticker warning that the article was "questionable" and "offensive." Soon after, members of the Student Government Associacion who were up­ set by the fiction voted to kill all fund­ ing for Pegasus. "The SGA people felt it shouldn't have been published. and wanted to prove a point to the maga­ zine-that taste should be more consis­ tent with that of other students," says an administrative spokesman. Its point made, the SGA voted to restore fund­ ing the next week. • Another financial struggle locked the Torch and the student government at St. John's University in New York. Escalating a year-long dispute between the two organizations, the student body president reportedly sought to confiscate the Torch's printing equip­ ment. The government wanted to pub­ lish its own paper, said Torch editor Tom Anderson, because "they didn't think we 'advertised' government enough." The attempted confiscation failed, however, as the Torch held the leases. So the SG president refused to sign re­ quisitions for the paper's printing costs, and the printer reportedly was not paid for months. The outcome of this squabble? Neither side could be reached during the summer. • Student government members at the University of. Alaska at Anchorage were not quite so direct. When the Uni­ versity Reporter found itself in a cash squeeze last spring due to slow pay­ ments from advertisers. the paper-as it had in the past-sought help from the student senate. This time, the sen­ ate refused, and the Reporter stopped publication for two months. Some of the paper's staffers charged that the lack of senatorial cooperation stem­ med from a running dispute over edi­ torial content. To break the deadlock, the Report­ er's editor resigned so his salary alloca­ tion could be used to pay production costs. Learning that the Reporter would publish one final issue with "voluntary editorial assistance" from the resigned editor, the senate repor­ tedly voted-paradoxically-to fire him for not producing the required number of issues. The final issue came out anyway-without incident. In some cases, student governments do not go so far as to use financial wea­ pons against student newspapers. Though calling at first for the "com­ plete disbandment" of Ka Leo, the As­ sociated Students of the University of

Hawaii laler resolved only to "investi­ gate and analyze" the studenl paper. ASUH crilicized Ka Leo for poor man­ agement, inferior quality, negalivism, lack of creativity and failure to achieve "any degree of recognit i on in national competition during the past ten years." Dennis Suyeoka, the paper's sum­ mer editor. isn't worried: "1 don't feel Ihere should be much concern over what ASUH threalens to do because ASUH does nOI exercise any control over Ihe paper." Suyeoka says the ASUH members "are very frustrated with Ka Leo's coverage of their follies, but Iheir problem is internal and can· nOI be solved by adjusting the news."

At Purdue University, sludent legis­ lalors sought to influence the Exponent by similarly political means. They passed a resolution of no confidence in the Exponent at the end of April and sought the removal of the paper's three lOP editors. The mOlion of no confi­ dence "had to do with their coverage of elections," says incoming president Todd Keleher. "The Exponent has a monopoly on Purdue students. They expected objective reporting. They weren 't gelling it and had no way of knowing thal." Student officers at Purdue also com­ plained that the editors had "become participants in those events that make news" and were therefore biased. That complaint originated when three editors filed for an injunction in Pur­ due's student court against question­ able practices of the Election Com­ mission. Cindy Richards, one of the edilors who sought the injunction, says a dis­ tinction must be drawn bet ween her conduct as a studenl and her conduCl as an editor. "All three of us and filed as students. They came back at us as editors by seeking our removal." Keleher does not accept the distinclion. "If she wants 10 take an action that

But students at Ihe City College of New York did more tha n just prolest when The Observation Post printed sexually explicit pictures of a woman dressed as a nun. They destroyed half the Post's press run and vOled to kill funding for the paper. As soon as the first issue of the Post's controversial May 4 edition hit the streets, it was met with cries of out­ rage and condemnation. Three stu­ dents-Frank Pagan, Modesto Alicia

"The difference between the Star's acti ons and those of the Pikes Peak News i n Colorado i s the difference between preventive medici ne and corrective surgery. If you don't practice one, you may wel l be forced - eventually - to opt for the other."

Other SA senators apparently agree with LeTourneau. SA Communica­ tions Adviser Mallhew Williams says the student group passed a motion call­ ing for a complete audit of the STar's finances. The senate approved an ex­ penditure of up to $5,000 to hire an in­ dependent consulting group to "study the Star's operations."

and Brian Thompson-gathered about

4,000 copies of the paper and burned them in a metal trash can. "I don't

want my money to have anything to do wilh dehumanizing women and the Catholic religion," Thompson says. A slim majority of CCNY students agree with him. After gathering over 3,000 signatures on a petition, the stu­ dents passed a resolution depriving the Post of all fUlure funding from student aClivity fees. But New York publisher Ralph Ginzburg, himself a veteran of

No t only student governments are exerting pressure on papers. Some­ times it's the students themselves.

Ihreatened to withdraw from the uni· versity and vowed 10 protesl every day until The Scribe either shut down or apologized for "racist stories" in its March 29 lampoon edilion. They never followed through on their threats.

ing new trend of censorship by stu­ dents? Perhaps the most promising so­ lution, Ihough by no means simple, is to seek financial independence. That is what Northern Illinois Uni­ versity's Northern Star has done, although no one can agree jusl who is breaking lies with whom.

The university's publishing board, which investigated the student govern­ ment complaint, found the editors to. have done nothing wrong.

At the University of Bridgeport in Connecticut, over 100 Iranian students

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Accusing the SA of trying to "con­ trol the newspaper's news and edilorial content by holding the purse strings," Levandowski refused to defend her budget request before the student legis­ lators. "No longer wiJl we submit to the whims, fancies and prejudices of a handful of polilicians," she says. SA Senator Jelf LeTourneau count­ ers that the Star walkout was "irre­ sponsible and theatrical. If the univer­ sity goes over the books, they wiiJ find no need for subsidy anyway."

several obscenity battles. immediately stepped in and pledged to pay for the Post's fall semester production. Mean­ while, Post editors. who have asked the New York Civil Liberties Union to re­ present them. will consider seeking a restoration of funds in court. So what is an editor to do? If no Ralph Ginzburg comes galluping to the rescue-and short of a lawsuit-how can a paper defend against this disturb­

makes news," the president says, "she should not be reporting il."

Moments after the Student Associa­ tion's Finance Committee announced a recommendation of zero subsidy for the campus paper. Northern Star editor Mary Lynn Levandowski wilh­ drew her funding request and walked out of the Apr i l 29 meeting.

Beforevoting on theSlars-budget, the senate had asserted thal Star articles "do not relleet the eth n ic background of students in De Kalb," and named a committee to investigate the problem of minority hiring al the Slar and set up affirmative action guidelines. " This sort of political intrusion is pre­ cisely what the Star hopes to escape by going independent. In a front page edi­ torial the .day after the senate meeting. Ihe Star wrote: "Determining Star ad­ vertising rates, assuming a seat on the editorial board, and influencing the se­ lection of the Star's editor wer e among the controls the SA has proposed. Re­ lations between the Star and the SA continue to deteriorate . . . because this relationship violates the spirit of a free press. We refuse to allow th i s to continue ... A Star spokesman says the paper will seek a student referendum to provide for a bulk subscription by amending the SA Constitution. University President Monat reportedly favors Ihe bulk subscripcion plan. For Ihis paper, then. the best defense against censorship is clearly a good of­ fense. The difference between the STar's aClions and those of the Pikes Peak News in Colorado is the differ­ ence between preventive medicine and corrective surgery. If you don't prac­ tice one, you may well be forced­ • eventually-to opt for the other .

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9

Special recognition must be given to the Observation Post of the City Col­ lege of New York:. The May 4 edition featured three photos of former editor Nancy Meade dressed as a nun, engag­ ing in a grotesque sex aCI. Several out­ raged students collected and burned half the press run. The student body later voted 10 prohibit any future fund­ ing for the paper. Surprised? Not me. (See p. 9).

By Michael Simpson

Birthdays and anniversaries are by their very nature times of retrospection and soul-searching. So it is with this fifth anniversary of the founding of the SPLC. Can it beflve years? Our brochure marks the dale as Oc­ tober 1974. The movement hasn't even reached puberty. In­ deed, it was a scant 10 years ago that the Supreme Court first wrote high school students into the First Amendment. The Center was founded by the Robert F. Kennedy Me­ morial after an exhaustive national study revealed that most high school student newspapers were "trivial and innocu­ ous" -nothing more than public relations tools for school administrators. Imporlantly, though, the study concluded that the cause of such triviality was student press censor­ ship. Students wanted to address some of the substantive issues affecting youth but were stilled by repressive school officials. .

Enter the Student Press Law Center. We've educated, advocated and litigated, with but one goal in mind: to upgrade the content of student publica­ tions by freeing students to write about controversial issues and serious problems. And we've won the court cases. I'll spare you the platitudes-the victory speeches. There's no doubt we're on a winning streak. The courts have said that administralOrs cannot censor "controver­ sial" articles, fire "uncooperative" editors or even cut off funding to "upstart" student newspapers. But so what? What have the students done with this newly-acquired freedom? The results, ['m sorry to say, have been mixed. I've assembled examples of recent efforts by student journalists, both high school and college. Most represent responsible, professional journalism. Some are merely exer­ cises in infantile self-indulgence. But then the First Amend­ ment guarantees only a free press, not a responsible one.

The Voice. an off-campus-we used

10 call them "underground"-publica­

lion of 50 or so students at Stuyvesant High School in New York City contin­ ues to set the standard for substantive scholastic journalism. The last couple

of issues contained articles on the problems of gay youth, criticisms of standardized testing, the legal rights of minors. improvement of the school curricula and-my favorite-the an­ nual survey of teacher performance. Students were asked to grade their teachers in seven areas (e.g. knowledge of subject matter, responsiveness). The results were published in a "Report Card" with teachers receiving marks ranging from 57 10 97.

A

I've taken the rather large liberty of assigning a grade to each endeavor reflecting my own judgment of the relative worth of each. All grades are final, subject onlv to the whim of the instructor. Here then are the good, and, yes, the ugly.

The Universil y of

Maryland

Dia­

mondhack published a 20-page supple­ ment detailing the university budget,

including the salary of every university employee and an explanation of the fi­ nancial workings of the school.

I he

A similar off-campus magazine­ Kaleidoscope-produced by Philadel­

phia high school students recently carried stories on mainstreaming

handicapped students, the decline of gang violence, the slow pace of inte­ grating Philadelphia's schools. pros and cons of marijuana decriminaliza­ tion and reform of rape laws.

bad,

c

Compare with the above, if you will, the five articles appearing on the front page of a Montana high school paper-which shall remain anony­ mous: discussions of "ParenIS' Night"

(two weeks away), student council plans for a bike-a-thon and car wash, the upcoming Junior-Senior prom, the announcement of the new newspaper staff and a note about an "in-service" day for teachers.

Last spring Joel Berg. a ni nth grader at Kakiat Junior High in Spring Valley.

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1

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New York, authored an article on the drug abuse problem at his school. When school ofricials told Joel he couldn't publish it in the school news­ paper-they called it "sensationalis­ tic"-he delivered copies to two local papers. Both papers ran lengthy sum­ maries of his findings and gave exten­ sive play 10 the censorship controversy.

The staff of the Minnesota Doily pub lished a June "humor" issue de­ voted primarily to an attack on Christ­ ianit y (Minnesota is heavily Catholic). includin g reams of sexually explicit copy. The issue was su fficiently offen­ sive to warrant a condemnation from Governor Albert Quie and hearings by the state legislature over the question of future funding for the 48).

A

student press law center

c

Daily. (See p.

Terri Nelson. adviser to the York­ town [Indiana) H igh School Broad­ cOSIer, deserves a spec ial note of appre­ ciation. She put her j ob on the line last spring by refusing to obey her prin­ cipal's order to remove the "negativ­ ism" from the paper and reveal the names of students who had written cri­ tical (but anonymous) Iellers to the editor. When she was denied tenure for her st a nd , she sued her principal and won. (See p. 18).

I've take n a pretty hard line with those st udent papers that pub l ish articles of questio nable taste and social value. Don't get me wrong; non-libelous satire or "bad taste" is never a va lid ground for censorship, and we'll defend you if need be. But it is i n credibly irritating and frustrating 10 spend five years fighting for student press freedom only 10 see these rights abused by a distinct minority. As a lawyer-and a First Amendment absolutisl-I'm sympathetic. As a jour nalist , I'm outraged. The danger , of course, is Ihat if the abuses continue, the judges may reas­ sess the recent extensions of free speech protect ions to stu­ dent j ournalists and curtail them. The bottom line is t his : if you ' re going to man the battle­ ments over press censorship, jf you 're going to fight for the First Amendment. please let it be over something that m at ters-a n d nOI o ver some silly. juvenile prank. Thomas Jefferson would want it that way. •

Fali1979

SPLC Report

11

Access

C losed H earings o n T heir Way Mem bers of the p u b l ic have no con­ st i t u t i onal r ig ht 10 atlend criminal trials, acco rd i ng to an end-of-term de­ cision by the nat i on ' s h ighest cou r l . A closely d i v ided Su preme Court ruled i n Gannell v. DePasquale t h at t he Sixth Amendment gua ra nt ee of a pu b lic t r ial i s a ri ght enjoyed by t he ac­ cused alone. Any j u dge may t herefore cl ose a pre-trial h eari ng to t h e press and pu blic when all pa rticipants i n Ihe case agree i t is necessary to ensure a fair trial , t he cou r t held . ) n its 5-4 dec i s io n , t he cou r t u pheld the decision o f a New York t ri al j udge to close a pre- t rial hearing on t h e ad­ m i ssibility o f evidence i n a m u rder case . The Gannet t newspaper chai n had chal len ged the decisio n . Not i ng that t h e press had been given an opportunity to prese n t its case and that I h e j u dge had considered t he com­ pe ting i n t ere s t s i n vo l v ed , I h e j u st i ces concluded t hat the First Amendment was o utweighed by the Sixth Amend ­ m e n t right to a fair tr ial . The decis i on applies only t o pre-t rial hearings, but coul d serve as a u t h ori t y for fu t u re decisions t o close act ual t rials whenever a j udge bel ieves publi­ city would prejud ice t h e defenda n t ' s r ig h t s . Even i f I he court does not extend t h e decision to t rials a s wel l . i t w i l l severely limit CO Url access by mem bers o f t h e press a nd pu blic . Ab out 90 percent o f cr i mi nal cases a r e disposed o f before • t rial .

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The Suprem e Court justices: Their decisions could close 1 he courtrooms in over 90 percent of 01/ criminal proceedings - the pre-trial hearings

C I A Safe - Fo r N ow Federal cou rts have t u r n ed down m otions .by t wo college newspapers seeking crA docume n t s under t he Freedom o f I n formation Ac t . Th at J 974 st atute req u i res federal a gencies to release non-classi fied i n for m a t i on t o persons who request i t [see SP LC Report, Vol. I I , No . 2] .

New J e rsey District Court J udge J . D . Lacey ruled last Dece m ber that a n FOr A request b y Fa rl e i g h Dickenson U n iversi ty Gaun tlet edi t o r M arc J . Me d off was too b roadl y worded for the CIA to com ply. Medoff filed the req u es t i n Fe br uar y 1 977 for copies o f " all fi l es that t he C I A h a s on co ntacts, approaches, a n d su rveillance " co n ­ ducted w i t h members o f t h e Farle igh D icke n so n ca m pu s _ Lacey sa id t h e C I A could not pos­ sibly comply with t he stude n t 's request u n t i l "the m a i l er o f the request was made clea r . " The c ( A did n o t raise t h e issue o f specificity in its defense, and i nstead argued that, for reasons of na­ t ional secu rit y . it could not con fi r m or deny t he existence o f mat erial sou g h t b y Med off. Lacey d i d n o t r u le on thaI conten t ion . In a n o t h e r case, a Manhattan Dis­ l rict Court j udge r uled in March t h a t t he C I A d id n o t d iscri m i na t e i n process­ i ng an FOI A req uest by t he Colu m b i a

Universit y Daily Spectator.

The news­

paper had o riginally filed an FOIA re­ quest on September 22 , 1 977, for i n for­ mation dealing wit h CIA-spon sored mind-co n t rol exper i m ents d u r ing the 1 960' s . The Spec/alor as ked for a reply w i t h­ in 1 0 wo r k i n g days as req uired by the statu te. The agency re sponded more t han a month later. sayi n g that t h e req uest h ad not yet been processed . Another four mon t hs passed before t he paper filed an admi nis trat ive appea l . requ est­ ing a response w i t h i n 20 days-also re­ qu ir ed by sta r ute. Aga i n the agency wro te bac k , saying that t h e request s t i l l had nOl been processe d . That " la c k of t i m e l y respo nse, " the Spectator co nt end ed , co nstitu tes a de facto denial o f t h e req ues t . But the C)A says t h a t t h e t i m e l i mits im posed by t he FO I Act are un rea l ist i c i n l i g h t o f t he heavy backlog of re­ quests now pending before the agency. The court agreed , r u li ng that " the met h od employed by t he C I A for pro­ cessing appeals is orderly , " and that t he Spectator would h ave to wa i t its tu r n . Al t hou gh the age n cy h as not yet for­ mally denied the request , i t so far has no t re leased any of the req u es ted i n for­

mation.

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12

SPLC R eport

Fal l 1 9 79

Access

Youthfu l T h u gs Beware The Supreme Court ruled J u ne 26 t hat a state can no t p u n i s h a newspaper for pri n t ing the name of a m i n or charged with a cri m e . The decision wil l probably apply t o s t udent newspapers. Stri king down a West Virginia sta£ ­ u te, C hi e f J ust ice Warren Burger wrote for the majority that " i f a newspaper lawfully obt ai n s tru tMul i n formation about a ma t ter o f public s igni ficance t hen s t ate o fficials may not const i t u ­ t ionally pu nish publ ication o f t h e i n ­ format ion except t o further a state i n ­ t erest o f t h e h ighest order . " There was apparently some disagree­ ment , however, over what constit utes an " i nterest of t he hi ghest order . " J o i ned by Just ices Bren nan , Stewart, White, M arshal l , Blac k m u n and S t e­ ven s , Burger wrote t h a t t h e protect ion o f a j u ven i le ' s anonymity is not im por­ tant enough 10 j usti fy su ppression o f t he pres s . " [Sjtate action to p u n ish t h e publi­ cation o f t r ut h fu l i n formation seldom can satisfy const i t utional standards," his o pi nion st a ted . Justice Reh nquist d isagreed and sug­ gested in a separate opin ion that t here may be con s t i t u t ionally acceptable ways t o prohibit reporters from print­ ing t he names o f j uven ile o ffender s . " I n m y v i e w , a state'� interest i n pre­ serving the anonym ity o f its juvenile o ffen ders . . . far oulweighs any mini­ mal in ter ference wit h freedom of t he press t hat a ban on pu b lication o f the yout h s ' names ent a i l s , " he wrote. Rehnquist said his o n ly o bjection (0 t he West V i rginia stat ute u nder q ues­ t ion was t hat it appl ied only t o n ewspa­ pers and t hus violated the equal pro­ tect ion mandate of t he Fou r tee n t h Amendmen t .

.,

1

FLOR IDA

i

And

the Boca Raton ( Florida] prosecu t o r ' s

o ffice ha.� a n n o u nced i t w i l l release t he

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names

of j u ve n i l e o ffenders

to

the

med i a . Boca Raton is one o f t he first Flor­

ida cit ies t o make p u b lic t h e names of such o ffenders. Most o t hers release t he Srates may no lo n ger prohibit /he

publicarion of arresred youths ' names

names of paren t s o f minors charged w i t h crimes. ----

"[S]tate action to pun ish the publication of truthful information seldom can satisfy constitutional sta ndards." year-old student al leged to have shot and k i l led his 1 5-year-old class mate at Hayes Junior High School i n St . A lbans, West V i rg i n i a . On M a r c h 1 , 1 97 8 , a grand j u ry re­ t urned an indictment agai n s t the pa­ pers for violat ing a s t a t e s t a t u t e that provided for cri m i n a l penalt ies for t he p u b l ication of a l l eged j u venile uffend­ ers' names. The t wo papers filed suit in t h e West V irgi nia Supreme Court of Appea l s . challenging t h e con st i t u tionali t y o f the stat u t e . The court found that t he law violat ed bot h t he First and Fou r t ee n t h Amendments, a s did t h e U . S . S u preme Court on appea l . Smith v . Daily Mail • Publishing Co.

You, Too,

I n a brea k w i t h trad i t i o n a l policy.

j

;

" I t h i n k , " R e h nq u ist w rote , " t hat a general effect ive ban on publication t hat applied t o a l l forms of mass com­ mu nica t io n , electronic and print media a l i ke, would be cons t i t u t ional . · · None( h e l ess, seven o f t he eight jus­ t ices who too k part in the d e l i bera t i o n s fell t hat " ( t ]he magni t ud e o f the state ' s i n terest in ( hi s s t a t u t e is n o t su fficient to j ust i fy app l icat ion of a criminal pen ­ alty " t o publishers. The case first arose when The Char­ leston Daily Mail a n d t he Charleston Daily Gazeffe pr inted t he name of a 1 4-

--------_

Parents

A state stat ute a llows for t he publi­ cation o f young o ffenders ' names i f the media can obtai n them . The Florida Freedom o f I n formation Clearing­ house reported i n April that Boca city attorney Al Galbreth interprets "publi­ cat ion " t o include "shouting [the names] from the steps of city hall or verbalizing t h e m 10 the media . " Local police are reportedly pleased w i t h t he new policy . •

.._-_.._... _--,---

Fa l l 1979

SPLC

Report13

Access OREGON

Board G ives i n to S u it : N o Rev iew, M eeti ngs O pe n Set l li n g a t wo-mon t h old lawsu it , t h e G ladstone [Oregon] School Board h a s agreed not t o in voice any prior review of t h e high school newspaper, R oamin ' Scroll, a n d (0 limit any disciplinary ac­ tions against student j ournalists t o matl ers involving l i bel , obscen i t y . and s u b s t a n t i a l disrupt ion or material in­ ter ference with school act i v i t y . Such discipline co u l d occ ur only a fter publi­ cat ion o f t he offending mater i a l . T h e J u n e 7 s t i p u lat ion o f sel l ie men( ends a suit by Roamin ' Scroll s ta ff writers SCOII Clark , Tracy Wat son and Sandra Johns against t heir principa l , adviser, school district superin tenden! an d school board . The s t u dents filed t h e s u i t April 9 a fter Clark was denied access to a school board meeting and ce nsored when he a t t empted to write about t he den ial (See SPLC Report, Vol . I I , N o . 2] . " I ' m sat i s fied wit h t he se t t l emen t , " Clark sa i d . " A l t hough you can bet in t h e fu t u re I won ' t be assig n ed 10 write a b out too many co n t roversial iss ues . , . The lawsuit asked t ha t the U . S . D i s ­ t rict Court declare u n const i t u t ional t he G l adstone s t u dent p u blica tions gu ide­ l i nes and t o extend to student report ers t he same access righ t s as professional newsmen. I n late April, after t h e s u i t w a s filed, t he school board cha nged t h ose g u idel i n es to allow students to at­ tend all meet i n gs except t h ose deali n g wi th st ude n t o r teacher discipli nary ac­ t i ons or salary matters. A l t h ough the lawsuit stemmed from a mee t i n g in volving extra-d u t y con­ ( ract s o f teachers, Clark and ACLU at· torney Ron Fo ntana decided not to challenge t hose excep t i o n s . The suit also asked t h at a critical let­ ter by Roamin ' Scroll ad viser Li nda V ogt be removed from Clar k 's fil e . T h e set t lement made no reference to t he l e i t er. however. a n d according to Fo ntana , "it wi l l probably rem a i n . " " I t doesn ' t m a l l e r , " commented Clar k . " I 'll j u st pull i t out mysel f as soon as I t urn 1 8 , anyway . " Defending school o ffic ials agreed to t h e se( t lement despi t e a recent Oregon a t t orney gene ra l ' s opin ion th at sa id ad-

14

S P LC R epo rt

Fa ll 1 9 79

minis( ra tors can lega l l y censor t heir s t u de n t s ' pub licat io n s . That opinion brought strong protests from several journalism professors and sch o lastic press groups. Clark plans to s t a r t a n underground newspaper t his fal l . He says t h at the new paper, ten ( at i ve l y cal led the

Insur-

gen t Tribune, will cover school board proceedings. As members of t he pro­ fessiona l press, Clar k believe s , "We can overcome prob lems of access . " B u t he has n o inten t i o n o f q u i l l i n g t h e Roamin ' Scroll staff. " B y staying o n , I ' m bea t i n g them at t heir own • game. "

SUNSHINE LAWSUITS

Partly C lo u dy The Massachuset t s Court of Appeals held Ma rch 1 9 that a c losed meeting o f the Taunton ( M ass . ) School Com­ mittee did not violate that state ' s Open Meetings Law . because t h e meet i n g was held to discuss fu t u re salaries and working condi t ions o f the school dis­ t rict's non-u nion e m p loyees. Since opening the session wou ld have had " a detrime n t a l effect on t h e co mmit tee ' s collective bargai n i n g posi­ t ion , " t h e court decided it co u ld be held in secret. A ttorney General v . School Com­ millee oj Taun ton, 5 MED. L. RPTR. 1 0 73 ( 1 9 79) .

A new Jersey S u perior Court ruled J anuary 1 2 that the state's Open Meet­ ings Law requires 48 h ours not ice o f a sc hool board meet ing, even when the meet i n g is held under "emergency" fi­ nancial conditions . Despite test imony by t h e superinten­ dent o f t he Newark School District as­ sen;ng t ha t each day 's delay of the meeting would c ost t h e city $4() ,000 , t he j u dge ruled that the "adequate no­ tice" provision o f the law should have been followed because the meeting dis­ cussed "public business . " Jenkins v. Neward Board oj Educa­ tion 4 MED . L. RPTR . 2528 ( 1 979). • ,

Access

,

Book Bans School board members in Chelsea, M assachuse t t s , decided t hey d i d n ' t like Male and Female Under 18 in t he i r h igh sc hoo l li bra r y . They removed i t . I n Na sh ua, N e w H a m pshire, t h ey d i d n ' t like Ms. magazi n e . They re­ moved i t . In I sl a nd Trees , New York t hey didn ' t l i ke Slaugh ter­ house Five, The Fixer, The Naked Ape a nd nine ot her works o f fi c t i o n . They removed t h em . Book ban ning is on t he rise n a t io n a l l y , accord ing t o some li brary a ssoc i a­ t io n s , a n d or ga ni z a tions like t he Freed o m t o Read Fo u n d a t i o n and t he American Ci v i l L i bert ies Union freq uen t Iy ri l e law­ s u i t s to s t op i t . So rar , no c lear consensus o n l h e is­ sue has emerged from t he

N eve r in A merica� Tauro, " i s t he righ t to r ea d and be ex­ posed to co n t roversial t ho ug ht s and v a l u a ble rig h t su bject to Fi rs t A me nd men t pr ot ect ion. "The mosr e r rec t ive an t i d ote 1 0 t he poison of m i nd less o r t hodoxy is rcad y access t o a broad sweep o f ideas a nd

l anguage-a

The bo a rd had objected t o t he maga­ zine's pu blic a t io n of adver t isemen t s ror vibrat ors. co n t ra ce p t i ves , a nd ma­ te ri a ls d eal i n g w i t h homosex u a l i t y and wit c h c ra fl . I n h i s I S- page opi n i o n , J u d g e Devine wro t e t h a t "d e spite prot est a­ t ions contai ned in I he tes­ t i mo n y of [ t he school board} . . . it i s ( he ' poli­ tica l ' con ten t or Ms. mag­ azi n e mo re than its sex u al over tones t ha t led to i t s ar­ b i t r a ry d is p l aceme n t . Such a basis ror removal or a pu blica t i o n i s consti­ tut iona l ly i m perm issi ble . " O r i s i t ? Judge George Pra t t in New Y o r k be­ l ieves j u s t t he oppo s i t e . He ruled A ug u st 2 that ed­ uca t io na l a u t horit ies have the d i scre t i o n t o remo ve boo k s t hey find o bjec t io n ­ able. Pratt sa i d the a c t io n " d i d no t s h a r p l y a n d d i ­

rederal co u r ts . In t he t h ree

cases men ­ t ioned above, t h ree New E n g land j udges took con ­ fl i ct i n g posit ions on t he le­ galit y 0 r the pr ac ti ce. U . S . D i st r i ct J u d ge J o ­ seph L. Tauro ruled i n July 1 978 I h a t t h e Chelsea H i g h School Com mittee m ust return Male and Fe­

rect l y i mpl icate basic First Amendme n t v a l u es . "

male Under 18, a co n t ro ­ versial li terary a n t hology, t o its l i b r a ry sh el ves . Com m i t t e e m e m b e r s had removed t h e b oo k a rter readi n g " T he C i t y to a Y o u n g G i r l ," one of t he mo re g rap h ic selec t ions from the a n t hology. Wri t ­ t e n by a J 5- yea r -o l d high sch ool s t u de n t , t he poem describes i n e art h y terms t h e gi r l ' s re­ v ulsion at be i ng t rea t ed as a sex object by men o n t he street .

Andrew Qu igley , commit tee c hair­ man , had called t he poem "obscene" and said i t i s "low down d i r t y rot t e n fi l t h , garbage. fi t o n Iy for t h e sewer . " J udge T au ro rej ecte d Q ui gl ey ' s con­ ten tio n t ha t t he poem is o bscene: " W het her or no t s c holar l y , t he poem is c h al le n ging and t hought -provo k ing . It em plo y s v i v i d s t r ee t l a n guage, legit i ­ mately o rfensive t o some, b u t ce r t ai n l y n o t t o e veryon e . " " W h a t is at stake here , " added

p h il o so ph ies. There is no danger in ex­ posure. The danger is i n m i nd con ­ I rol . " Tauro also ordered the school co m ­ m i t tee t o pa y I he plai n t i ffs ' legal rees i n t he amou nt o f $27 , 300 . I n t he N a s h u a case , J u dge S h ane Dev i n e saw t o i t t hat Ms. magazine re­ ga i n ed a custome r aga i n st t he c us­ t o me r ' s w i l l . J u d ge Dev i ne ruled Ma y 7 t h at t he Firsl Amendme n t prohi b i t s Nas hua School Board mem bers fr o m removi n g t he re m i nist magazine from a school library solely because r hey d i s­ a pprove of ilS content .

----- '"'-" "" -,---------- ----.

I n remo v i n g the books from i t s h i g h s c h o o l l i b ra ry , the I sland Trees schoo l boa rd ca lled th e m " a n t i - A me r i ca n , an t i­ C h ri s t i a n , a n t i - Sem i t i c and j ust p l a i n ri l th y. " The wo rks included t w o Pulit­ zer Prize win ners . J udge Pra l l said t he boar d ' s acti o n " reflects a m i s g u i d ed e d u c a t i o n a l phi losoph y " b u t " i t does nOt con st i t u t e a s h a r p and di rect i n fr i ngeme n t on a n y Fi rst A mendment r i g h t . " Prat l added t ha t " i t fell wi thi n ( he broad range of dlsc r e l l o n t o ed u ca t i o n a l o rficials who are elected by t he commu n i t y " to determine which books remai n i n t he li b ra r y . Such sharp differences in op i ni on between federal j udges i nvites specula­ tion t hat th e S u preme Co urt wi l l e ven­ t ua l l y decide to rule on a book-banning c as e . In the meantime, the iss ue seems li k ely to remain m uddled . RighI to

Read Comm. \I. Chelsea School Comm.; Salvail v. Nash ua Board of Education; Pieo v. Board of Educa­ tion, Island Trees Union Free School District. •

SOUTH CAROLINA

N oth i n g Yet B u t a Very Lo n g F ight Job less for over a year and frus­ t rated by the delay , a former teacher o f English and journa l i s m a t M c D u ffie H igh School in A nderson, Sou t h Caro· l i n a , i s still wail i ng for her laws uil to come to trial. Ruth Carloc k , who also served as adviser to McDu ffi e ' s The Scotsman . says she was fired for a l low ing contro­ versial copy inlo Ihe school paper. O f­ ficials from Anderson County School Dist rict Five say they fired Car lock because she let students leave sc hool early without permi ssion from t he princi pa l . A U . S . District Court i n Greenville will have to decide which version t o be­ l ieve, because Carlock is suing for her job, a yea r ' s back pay and a t torneys' fees . Filed December 8 , 1 97 8 , h e r s u i l all­ ges t h at I he school board vio lated h e r First and Fou r t een t h A m endm ent rights by first d ismissing her because o f art icles i n The Scotsman and I hen denying her due process i n an appeals hearin g . The de fending school o fficials-the pri ncipal, d islrict superintendent, and school board-contesl bot h charges . While Carlock concedes she let her students leave early from school one d a y , she notes it was the l ast day be fore Thanksgiving break and says a maj or­ ity o f t he school's buses had a l ready l e ft when she d ismissed class. The ad.-;:=-:: ,..,=--= =-_.-.. .... .. .... . -.-_.

16

SPLC Report

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Fa l l 1979

............- ----- ........--....

viser also pl edged at t he time no t to re­ peat t h e move, wh ich violates school d ist rict pol i c y . P rincipal Wal lace Reid decided I he teacher's promise was nol enough . and t o ld her on t h e spot he would not re­ com m end her for cont ract renewal in t h e spring of 1 97 8 . The early d is m issal i ncident c a m e in t h e m idst o f a long-standing d i spute over the content o f The Scotsman . The dispute centered on the fi rst issue of the 1 97 7 - 7 8 school year, w h i c h co n ­ t ained th ree co n t roversial ed i t o rials­ "On Bei n g Black at Mc D u ffie , " by fo u r b l a c k j o u rn a l i s m s t u d e n t s ; " B l a m ing t h e Victi m , " b y ad viser Car­ lock ; and " H uc k , " a gossip col um n . O n Oc t ober 3 1 , Principal Reid su m ­ moned Carlock a n d student edi t o r Mike Co le t o h i s office and c ri t i cized the t h ree edi torial pieces-especially Carloc k ' s , w h ich Reid i n t erpreted as a personal a t tack on h i m self. Soon a fter, t he adviser received a let· ler o f reprimand from District Superin· t e ndent W i l l iam Royster . Royster wrol e : " Your o wn article, 'Blamin g the Victim, ' was completely out of place, I f you have complaints to m a k e concern i n g you r own p e rs o n a l pro blems . t hey are t o be discussed with t he principal [em phasis original] . " According to Carloc k ' s legal com­ plai n t , Dr. Royster a lso att acked " O n Be i n g

Black

at

M c D u f fie "

and

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" H uc k , " w n t m g t hat t h ey were the type of j ournalism that could not be tolerated in District Five. The district superintendent w rote Ca rlock again on December 1 2, a n ­ nou ncing a n e w pu blication policy t h a t requ ired a l l articles to b e accurate a nd in " good t aste . " Royster did not de­ fine good taste. N ine days later, Royster t old t he ad­ viser her con tract would not be re­ newed. Carloc k 's complaint al leges, and school o fficials deny, t hat t he adv iser ' s "exercise o f her co nsti t u t ional rights as aut hor and sponsor o f the student newspaper were a subs t an t ia l facl o r and t h e m ot i vating fac t o r " in her dis­ missal . A t torney T. Travis Medlock, who represents Carlock , supports t h at a rgu­ ment with a seco nd-and as yet un­ proven-allegat i o n : "Cu rrently teach­ ing a t M c Du ffie . . are i nd i v iduals not involved with the p u b lica t i o n o f t h e October 2S issue o f The Scotsman who have violated the same policies" as Carloc k , and yel w ho have not been fired . Michael Glenn , attorney for t h e school district , denied t hat school 0 ffj ­ cials have any know ledge o f ot her teachers m a k i ng unaut horized ear l y dism issal s . H e would not say whether .

t he sc h o o l board w o u l d dism iss another teacher i f i t lea rned the teacher had broken the rule. Carlock says s h e at tempted 10 dis­ cuss this po i n t at her d ismissal hearing, and o ffered t o document several i n ­ stances o f early d ismissa l b y other teachers. Her legal com plai n t states that " t he Board deemed this l i ne o f q uest io n i ng irrelevant t o plai n t i ff's d is­ m issal , thus prohibit ing mean i n g fu l cross-exami nation . ' , Due to t hese al leged violations o f Carlock ' s r ights , Medlock asserts h i s client has su ffered loss o f i nco m e , mental d ist ress a n d damage t o profes­ sional reputation . " But Medlock t old SP LC Report he i s do u b t fu l o f w i n n i n g the case o n F i rst A mendment gro u nd s . s i nce the school board may be abl e to document cause for Carloc k ' s d ismissal t hat is u nre­ l ated to her exercise of free expressi on . Proving that school o fficials u sed t hat only as a pretext for fi ring the a d v iser. Medlock sai d . will be di fficu l t . . .---.-.-.--�-.-•.•.....•.•.... ----.-.

Carloc k , i n a phone i n terview , was no more optimist i c . saying " Mr. M ed ­ lock has never promised m e a n yt h i ng b u t a very long fight . " I n late J u l y , Carlock said she had just fou nd a new job as a social work­ er. " I t ' s taken a year to find one be­ cause of a lack o f references and al l [ he pu blici t y given the s u it , " Car lock said . " People are a fraid if I win t he sui t I ' ll go b ac k to teach i ng . " That is, i n fac t , exac t l y what the for­ mer adviser hopes to d o . B u t . " the

o n l y way I'm going t o go back to teac hing is i f I win the case , " and that

m a y take years, Carlock said. "1 do feel the law d rags. There 's nothing you or I can do about i t b u t it d oes move very slowly Although al lorneys for both sides have l aken a great deal o f tes t i mony i n sworn statements. n o trial d a t e has been set. Med l oc k said the case co uld come to a court room as earl y as Sep­ tember or October. Carlock v. A n­ derson County School District 5 . •

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.• ,

Advisers INDIANA

Board Buckles i n Ten u re D ispute A ft er more t ha n 20 h o u rs of sc h o ol board t es t i m o ny, a massive student pro t e s t and a federal l a wsui t . Theresa Nelso n has won back her j o b . Facu l t y adv i se r ( 0 t he Yorktown

H igh School Broadcaster since 1 974 . Nelso n recen tl y s e W ed a $6.5,000 law ­ s u i t agai n s t her principal that for

months i m m ersed their small Indiana community in controversy . The sett lem ent , signed lune 25 , pr o ­ v i des t he ri rst respite in a highly publi­ ci zed , n i n e-mon t h-lo ng baule be twee n Nelson and a loose co ali t i on of stu­ dents and parents on the one hand and

the Mount P leasant Sch ool Board on t he ot her. At issue was t h e cont rol o f Y o r k ­ t o w n H igh 's Broadcaster and Nelson's fu ture as a n educator in t h e Mount Pleasan t system. Acc o rdi n g t o the text of t h e set t le ­ men t , t h e s c h o o l board agreed: • " t h a t the student publications i n

t h i s sch ool corporat ion are pr ot ected by t he First Amendmen t ; "

• to " i m mediately grant [Nelso n ) a teachi n g co nt rac t as a perma n e nt teacher. , .

I n ret u r n . Nelson dis mi ssed h er law­ suit. Th e d is p ute be ga n in l a t e fal l o f 1 978 [see SP L C Reporl , vol. II, no. 2] when

months before. Nelson had a l rea d y filed suit in U . S . District Cou rt . Her s u i ( , filed w i t h financial as sis­ tance from ( he I ndiana S t a t e Teachers Associat ion, asked t h a t Laws be e n ­ j o i ned from censoring t h e Broadcaster

Six months late r-o n A pr il 20, 1 979- t he pri nci pal did exac t ly t hat , a d vising t he school board not to renew Nelson ' s co ntract. I n t h e i nteri m , two

18

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or t h re a te n i n g 10 ri re her , and sou g h t

$65 ,000 i n damages .

B u ( be fore Nel s on 's c o m pl a i n t came to co u n . ( he school board h el d hear­ ings o ver t he principa l ' s d ism issal re­ commenda t i on .

The Indianapolis Star rep o rted t ha t "hundreds o f pa ren t s , students and ( eachers rallied beh i n d the j o u r n a l i sm advi ser" in h ear i n gs t h at l as t e d i nto t he early m orn i n g hours on M a y J 23 .

7, 2 1 a n d

M ost o f I he testi mony agai n s t Nel­ son , t h e Star r epo r t ed , came fro m p r in ­ cipal Laws . He c ha rged t hat Nelso n ex ­ ercised poor c o n t ro l over her classes,

fa i led 1 0 meet year bo o k deadlines. and lacked "respo n s i ble leader s h i p " w hen she allowed t he Broadcaster to p r i nl " negat ive art icles . " " I don ' t ( h i n k s h e should have exer­ c i sed more co n t ro l . juS1 more d i r ec­ t io n . " Laws reported l y said . "There's no question in my m i nd that there is a va l i d basis for d i s m issal . " Nelson , represe nted by an a tt o r n ey , tried to establish that some of Laws' cri t i ci s ms-part icularly those regard­ ing her h a n d l i ng of st udent s-were ba s ed on misrepresented fact s . and maintained that the " negativism ,. o f

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Fa l l 1 9 79

tion to hcr ten ure. Laws o ffered t o recommend Nelson for t e n u re i f she would wi thdraw her suit against h im . Nelson did not accept t he offer . The

One day after the board had voted aga i nst ten ure, over 200 students left school and staged a demonstration. A l l were given one-day suspen sions.

The sett lement, signed J une 25, provides the first respite in a h ig h l y publicized, n ine-month·long battl e between Nelson a n d t h e school board.

York town principal J ames Laws ob­ jected to the Broadcaster's pu bl ica t i o n of a n onymous let ters to t h e editor t hat c r i t icized t he sc h o o l ' s ad mi nistrat i o n . Laws a lso c ri t i cized the "over l y n ega t i ve " t o n e o f t he paper. a n d d i ­ r ecte d Ne l so n " to dev elo p a m o re posi­ t i ve a pproach by t he st u d ents . " At t his poi n t , Nelson said , Laws fi rst d i s ­ cussed t h e possi b i l i t y t h a t h e m ig ht re­ fuse to reco m m end tenure fo r her .

t h e paper was Laws' o n l y rea l objec­

advise r ' s a t t o rney. Wayn e O . Adams I l l , said the o f fer was u n acce p t a bl e be­ cause i t lac ked a pro m i se 1 0 p r otect t he publica t io n ri gh ts o f s t udent s . Ea rlier, t h e school board had vot e d u n a nimo u s ly to gran t t en u re ( 0 the controversial ad viser.

They reversed

t h e i r vote u pon lea r n in g ( ha t Nelson h ad rej e c t ed t he settlement o ffer . This reversal i m plied ( ha l ( he board fo u n d her acceptable as a teacher only as long as she agreed not to fi g h t for t he s t u de n ts ' First Amendment r i g h t s , Nels o n ' s a t t orney s a i d . " One w o u l d t h i n k t h a t t hi s would have crea t ed a rather u nlena ble posi t i on for t he

school board under MI. Healthy. " A dams argued . In Mt . Healthy School District v. Doy/e. the Su prem e Cou r t sai d a teacher c a n n o t be fired s o lel y for ex e rcisi n g First A m endment rig h t s . O ne da y a ft e r t h e board ' s v o te

a ga i n s t ten u re, between 200 a n d 250 Y o r k town H i gh School stude n t s l e ft sch oo l a n d s taged a demonst rat ion at t h e s u perint enden t ' s o ffic e . A l l were given one-day su spe n s i o n s . Socn a ft er , opin i on co l u m n s a n d let ­ t ers to t h e edit o r in local newspapers bega n 10 c r i t ic i ze t he sc hool boa r d ' s ha n d l i n g o f the case. Negoti ations du ring the month o f J u n e between Nelso n and t h e board even tually resolved the conflict out of cou rt . Nelson agreed ( 0 settle a fter the board g ua ra nt eed the free press ri gh t s of the Broadcaster. P r i ncipal Laws, contacted in July, s a i d h e is no lo n ger concerned ab o u t negativism and does not an t icip a te fur­ t her prob lem s with Nelson or t h e Broadcaster.

Nelson

\/.

Laws.

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Advisers

VIRGINIA

Sex Sy m bo l Sacked /-

.!".

Cheesecake Shot D raws M ixed Rev i ews

B i l l Cog b i l l is v e r y much I he easy­ going t y pe. So w h e n t he ed i t ors o f I h e Broo k v i l l e ( V i rg i n i a ) H i g h S c h ool Beeline asked h i m to pose fo r a ph o l ogra ph in on l y h i s gym s h o rl s , t he newly rel u rned foot bal l coach agreed . A n d w hen I he y t he n asked h i m 1 0 rec l i n e o n a sofa and hold a foot ball like a rig lea f, he agreed 10 I ha t t o o . T h e 27-year-o l d former college grid i ron star was onl y t r ying to help t he Bee/il/e, h e s a y s . That h e d id . The sl udent paper sold ou t i t s Se P­ t em ber 1 978 i ssu e in record l i me­

la rge l y because of its Playgirl- s t y l e cen te r - fold . [See S P LC Report, Vol . I I , No . I I B u t i f t h e photo was popu lar w i t h t h e s tude nt s , i l ca used a n u proa r a m on g t he i r pare n t s . They o bjected t o bot h t he pic t u re-b i l led und er a hea d l i n e a n no u ncing I he ret u r n o f " t h e sex s ym bo l " -and t he co py t h a t accompa n ied i t : " M r . Cogbi l l , we're glad you're bac k -t he g i rl � es­ pecia l l y ! , . J o i n i ng I he chorus o f objeC l ions

was school su peri n l e n den t A rnold Oa t es J r . , w h o sa id t h e d ispla y was " i n very poor l a s t e " and wrote a lel ­ l e r 10 principal Pa u l Brewer s l a t ing t h aI t he photo wo u l d nOI " co n t ri ­ b u t e t o t he i n tel l ec t ual gro w t h " o f B roo k vi l le s t u den l s . Now C ogbil l is o u t of a j o b . T h e s u d den l y co n t roversi a l fo o t ba l l coach was nOI fired , h e says, b u t

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was " c oerced " i n t o q u i t t i ng vol u n ­ l a ri l y . Al t ho u gh P r i n c i p a l Brewer said Cog b i l l "relates t o I he SI udents as well as any teacher w e ' v e e,:,er had here " and superi n t e n d e n t Oa t es gave t he c oac h a "very favora b l e " ra t i n g , O a t e s t o ld C o g b i l l h e " w a s n ' t s u re " whaf he cou l d do for h i m when h i s con t ract came up for review . Then Oates a s ked Cogbi l l , " Have you t houg h t o f resign i ng? " " I h ad never conSidered i t , " sa ys Cogbi l l , "but was coerced when he s u ggested t hat I resign for ' personal rea sons' ra t he r t h a n risk li r i ng- for t he sa k e of g et t i n g anot her job . " Don a l d Cable. d i rector o f sch ool perso n ne l . denied t haI t he sem i ­ n ud e phol og ra ph h a s a n yl hi ng t o d o w i t h Cogbil l 's depart lJre from t h e school sys t em . Cogbi l l , w h o sub­

m i l led h i s res i g n at i on J u ne 1 3, d i s­ agrees . " I lhink the cen terfold h ad an aw ­ ful l ot 1 0 do wi t h i t , " says I h e for­ mer teacher and coac h . B u l Cogb i l l i s n ' l go i n g 1 0 lig h l a bo u l i t . Some at h l e t es ' pare n t s t o l d Cogb i l l , " We ' re go n n a ra i se some h e l l , " and o t hers s u gges t ed h e s u e . Cog b i l l wasn ' l h a v i n g a n y o f i t . " I ' d ra t h er work w i t h someone than fo r someo n e , " says Cogbi l l . " I guess I ' m t oo n a i ve . I f t hey were able 10 s t a c k t he odds aga i n s t me I his l ime, t hey' I I do i t a ga i n in co u r t . "

Fal l 1 979

SPLC Repo rt

19

Advisers KA NSAS

'I nsu bord i n ate' Teac h e r H a n gs o n to J o b W i t h a m i n i mum o f fanfare a nd a m ax i m u m of cau t i o n , t h e Board of Ed­ uca t i o n o f U ni fied School Dist rict 234 i n Fore Sco t ! . K a nsa s . s igned a pact o f t ruce on April 5 wit h h igh school E n g ­ l ish a n d j o u rnalism teacher L i l y Kober . Annou nced quietly and w i t h o u t a n y com m e " , , t h e agreement ends a I WO­ year-old federal lawsu i t in w h ich Kober c h a rged t he school board with ce n sor­ ing her high schoo l ' s Tiger Times and removing her as j o u r n a l i sm teacher and Tiger Times ad viser when she re­ fused t o do so .

l isl o f g u ideli nes for her to fo llow for t he censors h i p o f fu l U re Times s t o r ie s . The guideli nes asked : 1 . I s t h e art icle " i n good t a s t e " ? 2 . I s t he an icle " posi t i ve" ? 3. Does the article con t ai n any "scath­

ing superlatives " ?

The next t wo evaluat ions focused on s u bsequent i s s ues of t he pa pe r , but " no one ever v isi t ed my (jou r n a l is m ]

Accord i ng 10 t h e A p r i l set t lemen t . K ober promised t o dism iss her lawsui l , a n d t he board prom ised t o co n t i n ue employing K ober as a j ou r n a lism­ English t eacher "as if t he above l i t i ga­ t ion had not occu rred . " The board also promised to remove t h e poor ev a l ­ u a t i o n from K ober's perso n nel fi l e . K ober ' s problems began i n Novem­ ber, 1 976, when t he newspaper ran an editorial critical of the school lunch

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Fa l l 1 979

Two o f t he agreemen l 's first five provisions deal spec i fica l l y w i t h t h e m a n ner i n w h i c h t he se t t lement sho u ld be a n n ou nced to t he public a n d t he p ress . To a n y i n q u i r ing part y , t he set ­ t lement m a n d a t es, a copy of t he agree­ men t " s hall be fu r n i shed w i t h o u t fu r­ t her comment . " M o reover: " No pa r t y . . . s h a l l e n ­ gage in press con ferences , p u b l ic i t y a n ­ nouncemen t s , or ot her act ions de­ signed Of l i k e l y t o renew con I roversy over t he past d is pu t es o f t he part ies; and no parcy s h a l l m a ke a n y c laim t hat it or he or she was vicLOrious or pre­ vai led over any other par r y in t he .. above· litiga tion . Desp i t e t he general i zed language, i t seems clear t h a I t he warning was t a r ­ geted a t Lily K o b e r , who t h e board feared would t a k e t he oppo r t ll n i t y to blast school o fficials. But was t he board p rot est i n g t oo much? " I t is t he s peci fic bel i e f a n d u ndersta nding o f a l l part ies , " says t h e agreement " t ha t re­ sol u t ion of t h e i r d ispu t es was, in fac t , deri ved from a n h o n est u n ders t a n d i n g

program . (Among other t hi ngs . the stu­ dents crit icized the cafeteria's "soggy t a cos . " ) Principa l B i l l Weat h erbie, whose w i fe is one o f ( he coo k s , ordered Kober t o s u b m i t a l l copy for fu t ure is­ sues of t he Times to him for review be­ fore p u b l icat io n . I n Decem ber . when W ea t herb ie was attending a co n ference, Kober s ub­ m i t ted the Times copy t o Super i n ­ t e ndent D r . R . E . H i c k s , w h o removed a fea t u re about t h e d i ffere n t t ypes and p u r poses of ed it oria l s . Th i s piece dea l e i n p a r t wi t h t he " soggy t acos" ed i t or­ i a l . The December 2 1 issue of t h e Times was p u b lished w i t h a blan k space w h e re t h e a r t i c le wo u l d h ave ap­ peared . but wi t h no m e n t i o n o f censor­ ship. A ft e r publ icat ion, Kober w a s n o t i­ fied t hat she would be receiv i n g t h ree e v a l u a t ions. i n case s he might be re­ moved . U nion ru les require t hese e v a l ­ uat i o n s b e fore t h e removal o f a t e n ­ u red teach e r . Accordi ng t o Kober. t h e first eva lua­ t io n was concerned wi t h t he Decem ber 2 1 issue o f t he news paper . It c h a rged t h a t s he was " i nsubord i n a t e and could not go a l o n g w i t h group dec i s i o ns . " The ev a l u a t i o n let ter a l so con t a i ned a

l o w such i n s t ruct ions were " abridge­ men t s o f her rig h t s . t he j o u r n a l i sm st u­ de n t s ' rig h t s . and t he righ t s of a l l read­ ers of said publc iat i o n a s g u aranteed by t h e Fi rst a nd Fou r t ee n t h A me n d ­ menl S. . . K o be r had ret a i ned her j o u r nalism teac h i ng post a n d advisership t hrou g h ­ o u t t he l i t iga t i on . w h i c h ended w i t h t he April 5 set t lement .

a ft er cord i a l and detai led discussions . .

I n add i t io n , t he set t lement lists sev­ eral areas of " common agreement"

MARY D RI SCOl L

classes , " says Kober, " t hey j u s t loo k e d at t he issues . . .

O n March I S , 1 977, Kober received a let t er saying t ha t s h e had been re­ h i red . Later in t he day, h o wever, s h e learned s h e h a d been rea ssigned t o teach E n g l i s h o n l y a n d wo u l d no longer be t he Times adviser. A fter a hearing before t he school board proved fru i t le�s, Kober fi l ed s u i t o n J ul y I , 1 977 i n federal court againSI t h e school d ist rict a nd seven m e m bers o f t he school board . The s u i t charged t h a t t heir i nst ruc­ t i o n s fo r cen �ors h i p o f t h e school pa­ per a n d he removal for fa i l u r e t o fo l -

over i ssues invol v i n g t h e news paper and j o u rna lism c l as s : " N e i t her t h e board n o r Kober desi rc t o 'censo r ' or ' s u p press' a pp ropriat e expression in t h e journalism class . " " The parties recognize t h a t j o u r n a l ­ i s m s t udents m u st b e a l lowed expres­ sio n , w i t h i n legal and educat ional st andards, i n order t o promote a sou n d j o u rnalism progra m . " "The part ies recog n i ze t ha t i t i s not proper for the board o r a d m i nistrators to 'censor' t h e i nclusion of art icles cr i ­ t ical but properly and accurately pre­ s e n t ed wi t h objec t i ve development . Neit her is it proper for t he j ournali s m l eacher t o a l low s ha l lo w . po o r l y pre­ pared , i naccu r a t e . u n la w fu l . or poor q u a l i l Y articles to appear . " Kober and t h e board also pledged t o "com m u nicate i n good fa i t h " abo u t fu t u re problems wit h t h e newspape r . •

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.

Battle Strategies for Adviser Survival by J. Wil liam Downs Perhaps I ' m nol t he right person 1 0 l e l l anyone h o w to play I he new game of Educational Catch 22 . You expect to hear from w i n ners how they played the ga me and won.

1 pla yed the game and 1051 . Sl ill , someti mes i t ' s not whel her you win or lose, a s I he saying goes, but how you play I he gam e . Y ou k n o w the ga m e . U ' s proba b l y p l a yed in your own school. The school establishment tells the publ ica t ions

adviser, " B reak t he law or we'll fire you ! " They say, " Y our job i s 10 censor I he students ' writings. You don'l

have to be clever ab out il . If you want 1 0 save face, go ahead . Do i t i n a way so that no one will know you are doing i l , not even the studenl s . Jusl make sure t h e Slu­ dents don 't publish anything we don ' t l i k e or I hal m a k es us loo k bad . " Sometimes in I he game the message comes as stra ight as that. Very o ften i t comes i n the form o f sugared ad­ m i n isl rative doublet alk . S l i l l , the message al ways gets t h rough . B u t every adv iser wo r l h his salt knows that the law clea r l y defines a d visers' controls over sr uden t publi­ cal ions, and the defi n i l io n s speci fical l y rule out I h e sorl of censorship school ad m in i s l ral ions usually prescribe. I k now all ab out the game. I played il last year . The day after school ended , I was fired as Ihe adviser of the school newspaper, The Smoke Signal-a name of u n ex­ pected signi ficance in a nu mber of ways. I ' m not going to go inlo great detai l abou l what hap­

pened t o me in my losing fjght to sustai n a free press al my high schoo l . Read Captive Voices [New York , Schocken Boo k s , 1 974] . You will find many st ories like m i ne in there. A sl ude", newspaper steadily i m proving over several years suddenly becomes somet h i ng everyone wan t s 10 read . Let ters in response to t h e paper po ur i n . Em ol ions run high. Con troversy flouris hes. Articles begin appearing on l een age pregna ncy, marij uana sm o k ­ ing i n and o u t of school, t h e elil ism o f the Nationa l --- _._------_.-- ..--._ ....... _---

Honor Society , budget cuts, censors h i p , why teachers q u il , and I he grad i ng sySI em . I n creasing p ressure and threals from t h e ad m i n isl ra­ tion bring bit ter responses i n print by the edito rs . The ad­ viser, Ihe wh i p p i ng boy, ta kes the editors to his p u n is h ­ menl sessions to see firsthand I h e nature o f the rel a t i o n ­ s h i p - T o clarify the s i t u a t ion , t h e adviser creates a c o m ­ mittee composed of paren t s , j ournalists. a lawyer, and ( he pri ncipal and students 10 draw up gui delines . The guid elines allow the students to co n t in u e publishing I heir a rl icles . In I h e m i dst o f t h e s t ruggle, a num ber of journal ism s l udents I h realen to wa lk out to eSI ab lish t heir rights of free speech , bul t h e editors and adv iser sland with I he principal by the fronl door to I U r n back the w a l ko Ul . At commencement, one of the school ' s most po pu l a r teach­ ers speaks of I he vitality of I he student newspaper. The graduating class claps and cheers . One day later I h e adv iser is fired a n d relieved o f his d u t ies as j o u rnalism teacher. The su pe ri ntendent ap­ points an edi tor o f his own 10 t he s i a ff . The l ocal press pri n t s a not her slory on the issu e , repo r l i n g I h al the ad­ viser is I he first eX l r ac u rricu lar acl ivil y sponsor ever t o be fired i n I he schoo l ' s history. [n the fall of the fol lowing year , the paper fa ils t o come ou t . Journalism class enrollment falls from 45 to 6 stu­ de n l s . The adviser files a grievance over his d i s missal . but the s u peri ntendent decides he hasn ' t got a case. Sl ude n i s co n l i nue t o write IeUers t o t h e local newspapers , but grad u a l l y t h ey d i m i n ish u n t i l , even tua l l y . t he bai l ie is over . I n the s pring, ( he fo rmer advi ser i s to ld his co n t rac( will not be renewed becau se o f falling enrollment a n d his lack of sen iorit y . You ' ve read t he same story or variat ions o f il before. · There's more to it than t h a t , but essemi a l ly the plOI is the same in H i llsdale or Tenafly o r Englewood or Deer Lake or M i a m i . I ' l l spare you the gory details of my story, but i f you wa n t t o see a few of m y scars, I ' ll show t hem to

Whipping Boy you when r talk abo u t battle s trat egies in the fight to crea t e and main t ai n a free student press.

Before r go a ny fu rt h er , howeve r , one question m ust be answered . Has it been worth i t ? W o u l d I do it aga i n ? I n a word, yes . I ha ve always wa n ted t o be free. I k n ow m a ny of t he young people in my classes are loo k i ng for free­ d o m , t he freedom to be th emselves , to become whatever they m ight be, free to d iscover w hat that is. I ' ve been searc h i n g al l my li fe for that t oo . Sometimes even now r feel the k i nd o f depression t hey sen s e . I t 's the depression that comes from bel ieving t here ' s no freedom in t h is world, t he fee l i ng we ' re ail slaves o f the need to ea c , sleep , clo t he and ho use o u r ­ selves. I learnep early, just as m y s t udents are lear ni ng , c hat experiments o ften wind up h u r ti ng you. I t 's depress­ i ng . But I ha ve fou n d a n escape from t h i s sla very o f l i fe . I have found t h at my im a gi na t io n can save me the pa i n of a lo! of experi men t s in l i fe . I n reading and writ i ng and t h i n k in g , r find freed om and sa fety , and I feel s ure I lead a bel ler l i fe because o f t he freed o m I h ave to experi m enc in t he world of the m i n d . I ' ve come t o see t hai t h e o n l y rea l freedom I will ever fi nd is this freedom of i m agi na t ion . In I hi s old humdrum w o r l d o f a teac her , r still c an find ad ven t u re . I can leap off mountains, fall th ro ugh space, die and l i ve agai n , and dream of terror a nd ecst asy . I bel ieve t hat we teachers should teach our st udents about bot h t h ese tw o worlds-the physica l , or w hat some people call t he real , and I he spi ri t u a l . We need to show I he young peopl e in our schools how and where to tie down t h e tent ropes i n the physical world . BUI we also need to show t hem t ha t in t he s pi ril u a l world I hey can t i e d ow n t he ropes any where an d anyhow I hey choose . W e need to s h o w them t h e rel ationship o f t hese t wo world s , t h a t someh ow, t hey o ft e n ric h ly com p lemen t one an o t her . To o pen up t h i s wor l d o f t he imaginat ion to you n g peo ple, I ' ll risk a lo t . Thai mea n s I ' l l p u t o u t a lo ! fo r a free student press . S t u den t pub l i ca t ion s are products of t he free world o f t he spi rit . They are p l aces to explore and experiment freely . T h ei r free t h ought can s t i m ulate more free t hough ts . Censoring them mean s clos i ng o ff one pre­ cious element in the world of t he m i nd . Is that wonh st o ppi ng , worth figh t i ng against ? Oh,

God, yes. I e 's o n l y a q u est ion of t h e measure o f con tempt

deserving any teacher u n wi lli ng to give someth i ng o f him­ self for t h is precio u s d ime nsion of h uman l i fe . N o w what a bout bai l ie st ra l egies i n t h e fig h t to encou r · age free express ion in o u r st udent s ' p u b l ications? A fter the con fession o f fait h , what nex t ? What are t he t h i ngs you can do to establish a free press in your school? • Seek 10 m a k e you r studen t s responsible for what t hey prinl . M a ke il clea r to t hem t h e y must ta k e t he con ­ sequences o f t hei r words. Two years ago a vice-pr i n c i pa l comp la i n ed to me because the ed i tor o f t he paper called him Elwood in o ne ed i t i o n , the n am e t h a t the evidence suggests is his rea l first name. I did n 't deal with t he prob­ lem. I sen t the ed i t or who wro t e the article in to t h resh t h e t h i ng o u t . No o n e backed d o w n on t h e ques t i o n , b u t a! least r was out o f t he arena. • Work o ut a system where t he st u de n t s can choose the i r own editors. Let t h e editors or sta ff d o i t . Encour-

22

SPLC R epo rt

Fall 1979

age them to select on a reasonable basis . The easiesl way t o censor is to choose the edi t ors yourse l f . No one k nows i t 's happening. You c hoose an eager, college-bo u nd , sen ­ sitive sluden t , b u t you may j ust b e choosing a patsy. The same d u l l paper comes out every year . Nice young people ea rn t he mselves good recom mendati on s t o co l l ege . A s u re i nd i cation o f a ce nsored paper is one that never pu b­ lishes a co n t roversia l a r t i c l e , never causes a rum ble in t he ed ucat ional establishme n t . •

I f your stude n t s w a n t to pu bl ish somet hi n g

foolish ,

lei Ihem . Protect your school from a laws u i t it wou ld

lose, o f cou rse, a n d your s t u den t s . Do n ' t al low them t o break t he la w , but be careful o f imposing you r st andards. You are I here 10 advise, not dict ate. What ba i l i e st rategies c a n you use once freed o m o f speech comes u nder a t t ack i n yo ur school? Long be fo re­ hand, you should expeci tro u ble . I t can happen to yo u . II will happen t o you . If you t h i n k your si tua t io n is special , beware-you are part icu l arly v u l nerable. A rig h t -t h in k­ ing and co urageous admi n is t ratio n may pro t ec t yo u r school pu b l i ca t i o n now , but admin ist rations c h a nge. Commu n i t ies and t i mes change. The bel l er prepared you are , the be t t er your chances of wil hst a nd ing a n a t t ack when il com es . • Know t he laws o f free ex press ion and the relevan t cou r t decisions. Get the m a t er ials o n I he law and gu ide­ lines from the St udent Press Law Cen t e r . The J ournalism Education A ssocia t i o n a lso s u p plies much useful mater­ ial. Does yo u r state require guidelines ? C i rculate co pies o f Captive Voices i n yo u r school . If n O l h i ng else, be i n g knowledgeable and u p -t o-dale a b o u t your rights a nd t hose o f your s t udents gives a d m i n ist rators somet h in g t o t h i n k about when t hey feel pressed t o censor s tudent speech . • Use every bit or fo rce yo u can muster to develop gu id el i nes for your schoo l ' s publications. If t he ones you h a ve are u n workab l e , get rid of t h em . M a n y s t ales now requ i re gu idel i nes . Often t hey d e fine t hese gu idelines i n a way t ha t prot ec ts free speech . Yo u r state may be o ne o f these. • Earn good eval uat i ons for your pu blica t io n from a rep u table jou r n al ism assoc i a t io n . I believe these assoc i a ­ t i o n s ough t to g i v e out stand ing ra t i ngs to a n y student paper t ha i s h ows i n d ication o f free st uden t in volvement . Good ra t i ngs can C U t d o w n t he mudsli ngi ng b y a d mi nis­ t rat ors and the fo rces o f censors h i p . I remem ber very wel l once comi ng to work at my English depa r t m e n t carrel a n d over h earing a conversa­ l ion bet wee n the principal a n d the assista n t c ha i rm a n , w h o had t a k e n my j o b as newspaper adviser a n d j ournal­ ism teacher. " A fter a l l , " t he pri nci pal was saying, w i t h w h at seemed to be a very defensive n o t e i n h i s vo ice , "whal does a fir s t place i n t he Col u m bia Sc h o l as t ic Press Associal ion co ntest mean a n y w a y ? " O u r good rat i ngs o bviously had made it d i f ficu l t for h i m to use poor q u a l ­ i l Y a s a j ust i ficat io n f o r clampi ng down o n t he pa per . • I n the same w a y , build u p your own cred i ts . O f cou rse, education cre d i t s in wri ti ng an d jou r na l ism hel p , b u t I bel ieve p u b l icat ions a d v isers should g o beyond t h i s .

I ha ve 25 years o f experience i n educatio n . I have wor ked with ma ny k in d s of sc ho ol p u bl i ca tio ns . r have published articles. r h a ve also earned some awards and spoken at t w o recent CSP A co nven t i ons . These factors and degrees from Harvard and New York U n iversity fended of( a t ­ tacks agai nsl m e until t he very e n d o f my bai l ie . a I f you can-and despi t e m y a t tempt s r was unsuc-

cessful in this-get writlen evaluat ions of s ome SOrl on your work as an advise r . As k your pri nci pal, " Was my work o n t he paper sa l is facl O ry t h is year ? " If he praises you , as k h i m to put it on paper for your own records or to be enlered i n to yo ur person ne l file • Sl rive to get your teacher's association to protect you. Maybe you can get fair treal ment for ex tracu rric u l ar advisers written i n l o your next contract . E nco u r ag e your a ssoc ia ti on to adopt recommendations support i ng free press rig h t s . I find it very di scou raging Ihat neither t he NEA nor t he AFT h as made any such recommendation as yet. rf enough of t h eir members exert pressure, these n a ­ t ional o r gani zat io n s m i g h t be i n fluenced .

.

My local represe n t at i ve , u n fortunately, was hardly re­ s po nsi ve When the su per i n tenden t t h reatened to t a k e ac­ l ion againsl me, I went to my bran ch of t h e NEA . My re­ presental ive began by asking me i f I k new how m u ch t rouble I was bri nging i n t o t h e co nt ract nego l i at ions as a result o f t he s tori es a ppea ri ng i n our school pape r . I asked i f he did n ' t t h i n k I s h ou ld obey the law. He said he didn't t h i n k I he laws should apply 1 0 sch ools . " We cou ld never run a sc hool he said , i f we fo ll owed every law . " r n con clu sion h e adv ised m e t o " watch m y ass . " I to ld him r d i d n ' t get into teac h i n g to do that . • Yo u m igh l even want to sue . Right now I ' m wa tc h ing for t h e o u tcome of t h e case i nvol v in g the Ten a fly teachers [see SPLC Report, V ol H , N o . I ] . Since il ap­ pears I ' m about 10 be oul o f a j ob I c an t a fford riskin g

.

,

,

"

"

w ill prod uce studen ls' int erested in a free, controversial p u blicat ion . The t i m ing i n my school was all wrong. The teachers and t he board o f ed ucation were involved in bit­ ter cont ract negol i al ions and the sc hool system was go­ ing t h ro u gh a demoralizing financial cru nch . Some fel t our studen t s needed firmer d isci pl i n e The place was on edge wi t h lens ion and c hok ed w i t h change. S t i l l , when Cecelia Ch ang and Bi l l Stein set out to crea t e their news­ paper r cou l d n t tell them to wait a year or two when the cl imate might be bel l e r . There was only one time for t hem . rt had t o h a ppen t hen . Th i s isn ' t a l l you need to kn ow aboul strategies for creati ng a nd maint aining a free st Udent press in you r schoo l . R i ght no w , we're o n new battlegrou nds, figh t i n g battles i n m a n y ways unli k e a ny ot hers fo u g h r i n second­ ary educat ion . When t he casual t ie s are co u nl ed and ot hers can report how the y survi ved the fie rcesl combal , maybe we ll have more re lia ble, good prac l i ces Of course, t h e co urts cou ld resol ve t he who le t hi ng They could ta ke action againsl people who exhort indi­ vid uals to break the law by t h re at en ing t h e i r job securi l Y . I f I he co u rl s d i d that , we m ight gel a l i u le more o f Amer­ • ica bac k from Kafka's world and Catch 22.

,

.

,

'

.

'

.

­

.

,

'

the expense of a s u i t , but i f t he c hances appear good as i nd icat ed by the Tenafly dec isi o n , r m i g h t risk so me o f m y daug h l e r ' s college tuit ion o n li l igatio n . • Fina l ly , don ' l expeci to be a ble 10 pick the l i me to do ba t t l e . Some generals may be lucky eno ugh to do so, b u t you l l never k n ow when t he ri g h t co m b i na ti on o f fac tors '

1. William Downs, a graduate of Harvard and New York University, writes and lectures occasionally on the

studen t press. A t Pascack Vatley High School in Hills­ dale, New Jersey, where he teaches English and journal­ ism . Mr. Downs serves as adviser to The Smoke Signal. After preparing th is arlicle, Mr. Downs learned of a Slale la w pro viding educa tional seniority for military ser vice, and he has retained his job at Pascack.

z

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..

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Fal l 1 9 79

( .

SPLC Report

23

Censorship NEW JERSEY

tO i rty Words,' C lean Ed itor Filt hy or n o l , Geo rge Carl i n ' s "seven d i n y words you can ' t say on t elevision " can now be pu b l ished in Cran ford ( New J e rsey ) H igh School 's Spo/lig h t . B u t t hey probab l y w o n ' t be . Despi t e an out-of-court sel l iement perm i t t i ng a Spotlight sta ffer t o use t he " d i rt y words , " t he pape r ' s new editor says she w i l l not print t hem . T h e staf­ fe r , u n s u r p r i s i n g l y , is n o n e t o o pleased. M a t t Smi t h filed suit in M arch against t he Cran ford Board o f Educa­ t i on because i t had censored one of his ed it orials on t he grou nd of obscen i t y . The ed i t orial discussed t he S u preme Court ' s r u l i n g on a widely publ icized rad i o broadcast of George Ca rli n 's "seven d i T l y word s " a n d made speci fic reference t o t he controversial l a n g­ uage. (See S P LC Report, Vol . I I , N o .

2 .]

The laws u i t d i d not , h owever, come to trial . In a June I I agreemenl , t he school board said it " sh a l l not i n a n y w a y prohibit o r prevent t he publica t i o n o f s u c h an an kle ( t he Carlin ed i t orial] i n t h e school magazine k nown as t h e Spotlight . " But t hat doesn ' t mean t he ed itoria l w i l l be p u b l ished . "The set t lement , " Smi t h ex pl a i ns , " makes i t very c l ea r

t h at t h e q ues t i o n o f p u b l i ca t i o n res t s w i t h t h e ed i t o r , and [Spo/light ed i l or Sarah S t ernl has said t ha t i f it were u p t o her s h e w o u ld n ' t r u n i t . " Contacted at her home , St ern con­ firmed t hat she does not i n tend t o r u n t he piece . . " was n ' t planning on i t . , d i d n ' t like i t . " The st udent edi t o r said the o u t co m e o f t he l a w s u i t does no t ob­ lige her to print anyt h i n g she does not like. " The words are obscen e , and , don ' t t h i n k t hey 're at all necessary. " Sm i t h said t he words are i nc lu ded i n h i s ed i t o r i al " i n t he i n t erest o f com­

pl ete and accurate repor t i n g. " A l l hough S m i t h is d isa ppoi n ted w i t h St e r n ' s refusal to publ ish his ed i t orial . ACLU a t t orney Ric hard Norris insists t h at h is c l ie n t ' s object ives h ave been met . "The prime issue , " Nor r is said . " was to h a v e t he prior rest rai n t re­ moved. and we accomplished t hat . " P r i ncipal Robert Seyfart h . for his part , was " t ot a l ly opposed t o t he set ­ t lemen t . " Sey fa r t h said h e is worried t h at " t here seems to be no d istinclion between elemen tary and h i gh school p u b licat ions a nd co l lege newspapers. I t h i n k t hat in h i g h s c h o o l we s hould be t r y i ng to t each people w h a t j ou rnal ist i c • good t as t e i s . "

Reporter Mall Smith: Was his edilorial needlessly vulgar or "full and complete reporting " ?

24

SPLC Repo rt

Fa l l 1 979

----------- , " "'

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Censorship NEW

YO Rk

H a rd

fo r 'Hard

Tim e s

A fed era l J u d ge in New York has ruled t h a t an underground magazine pri n ted by h Igh school students was not protected by the Fi rst Amendment, even t h ough i t was d i s t ribu ted o ff school g rounds, caused no disru p t i o n , and was n o t obscene . Cal l i ng the decision " o u t rageo us, " t h e stude n t s ' ACLU aU orney has fi led an appeal w i t h the U . S . Court o f A p­ peals for t h e Second C i rcu i t . " I t is hard for my mind , " wrote U . S . Dist rict Court Judge J a mes T. Foley , " t o accept w i t h equ a n i m i t y t h e propos i t i on t h a t t h i s h i g h school ad­ ven t u re . . . ri ses t o t he stat ure of a fed eral co nstitut ional case . . . " (The magazine] i s , at bes t , a cr u d e attempt to create sensation al high school news . . . and, at worst . . . patent l y o ffensive and vulgar . . . . "To my mind , the conduct throu g h ­ o u t w a s nothing m ore than a n appro­ priate exercise of t he educational au­

T i m e s'

t h e proposition t hey assert . It simply i s not s o t h at pub lic sch ools m a y curb s t udent expression s o l e l y because t h at ex pression o ffe nds readers or l is­ t e ners . . . . " A plural i s t i c society , " t h e a l t or­ neys co n t i n ued , "guaran t ees more freedom than su ppression and pun ish­ ment on t h e basis of taste. Schoo l s have a wel l-establis hed const i t u t ional obligation t o guaran tee the survival of pluralism 0 f t h ought and expression . " The N Y CLU a t t orneys also noted t h at the school o fficials relied hea v i l y on t he assertion t h at Hard Times was obscene, si nce t hey did n o t contend

insubordinat.e conduct in l i g h t of prior [verbal] warnings; and the potential disruption of discipline proceed i n g from s u c h insu bord inat i o n . " At to rney Emery said that anal ysis " doesn ' t seem to be very well rea­ soned. H e bases it o n the Tinker Iv. Des Moines] s t a n dard of d i sruption , then poi nls to only one fact t h at fu lfi lls that s t a n d a rd : t h e school board presiden t ' s com p l a i n t . But t h e Tinker case says j u s t t ha t sort of ' u n ­ d i fferen tiated fea r ' is not adeq u ate. " I t ' s just o u t rageous, it ' s as sim ple as ( h at . I f you can censor t h at [maga­ zine), you can censor anything. " I t just shows he doesn ' t underst and t h e case . " Argu ments i n t h e case will be heard by t he Court o f A ppea l s t h i s fall . Thomas v. Board of Education. Gran ­ • ville Central School Dis tri ct

,

t h o r i t ies ' discretion to i m pose disci­ p l i ne upon insubordinate studen ts . " The magazine in question , Hard Times, was wri tten b y four s t udents at Gr a n v i lle ( N ew York] J u nior -Senior High School and sold outside a nearby store . Using sexual spoofs as t heir prin­

c i pal theme , the students modeled Ha rd Times loosely on National Lam­ poo n . Other Gran v i l l e students bought about 70 copies of the magazine be­ t ween Jan uary 23 and 26. On Jan uary 29, President Beverly Ta t k o of t h e local board of education said Ha rd Times was " the worst t h i n g she had ever seen " and demanded a school i n ­ vestigation o f t h e m agazine, That ni g h t , t h e board meted out three-day s u spensions to t h e four " k ey actors " in Hard Times ' pub licat i o n . T h e board founded i t s disciplinary de­ cision on a Gran ville policy that sa y s : " (AJ st udent may b e suspended tem­ porarily who is ' i nsubord i n a t e or disor­ d er l y , or whose cond uct o t h e rw i se . . . endangers t he safe t y , m ora l s , hea l t h or wel fare of others . ' " New York Civil Li berties Union at­ t orneys Richard Emery and R ichard W o l f , represe n t ing t he pla i n t i ff stu­ den t s . asser ted that sc hool offi cials h ad ci ted " no t one sh red of aut h or i t y for

CALIFORNIA

The Way I t Was .�­ .-..

Shelley Adams and JoOee Ci pponen t hought it was rather in nocen t , as ed i ­ torial copy goes : "Why, even I h e school superintendent denies t h e girls basketball team a tournamen t o f their own . The two Modesto, Calfiornia, ed· itors of Hughson Union High Sc hool' s The Way II Is were talking about male chauvinism, but soon they were faced with a di fferent problem. Learning that The Way It Is planned t o chastize him for sexist sports poli ­ cies , s c h o o l su peri n t e n d e n t Gary Brophy said he was "sick o f yellow journalism " and ordered in writing t hat t h e paper be brought t o his o ffice b e fore distribut ion . Apparen t l y changing h i s m i n d , "

�� ...,, "" ..,....... _ , .'

, ,

Proclaiming itself "uncensored - vu/gar immoral " Hard Times offended both [he school board and the judge thai it disrupted school fu nction s . And Emery and W o l f said Hard Times did not even approach cons t i t u t ional stan­ dards o f obscenity . J u dge Foley disagreed that obscenity was t he issu e . " [Tl h is court does n o t deem it necessary to become entangled in t he el usive concept of obsce n i t y . " I n his 1 9-page o p i n i o n , released May 2 , Foley wrote thai t h e sc hool board ' s act ions " w ere reaso nable res trai n t s u pon ex pression which proceeded from

Brophy released the issue almost imme· diately after receiv i n g i t . B u t adviser Marjorie Brooks had oblained an a t ­ t orney, and told Ihe school board s h e wo uld not distribule the issue without written' perm ission because the con fis­ cation order had been in writing'. She received i t . and t he May I J issue of The Way It Is was distributed t h ree days late. Cali fornia Teachers Associa­ ' t i o n at torney Cornelius Sulliva n said that since the paper was eventua lly dis­ t ributed , its con fiscation would be " a dead issue i n t he Cal i fornia courts . " The May 28 a n d J u ne g issues o f The Way !I Is were distribu ted without i n ci ­ • den t .

Fal 1 1 979

S PLC Report

25

Un iversity of Southern California Daily Trojan political cartoonist and SPL C Report staff member Bob Staake has been less than pleased with this year 's series of Supreme Court decisions affecting the press. He offers some of his comments . . .

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Censorship PENNSYLVANIA

S m i les o r Tea rs for 'Tow n Crie r' ? A ft e r 20 m o n t h s o f l e g a l maneu vering, a n exhaustive fou r-day l rial I h at produced more than 800 pages of l estimony and scores of newspaper and broadcaSI accounts o f the controversy, t h e case of Gellman v. Wacker-students versus the Phi ladel­ phia educat ional establish ment-has been set tied . Who wo n however, is not exactly clea r .

the school newspape r , " says Snyder . to " ' n t h at sense it was a t o tal victory.

Other parts o f the A pril settlement provide that t he To wn Crier will re­ sume pu blication w i t h financial sup­ port comparable to that of previous years, that the school board will pay

responded by fi ling suil in November i n federal co urt, charging the school wi t h violat i o n of their First Amend­ ment righ ts . They also called a press con fe rence at a local Hilton hotel . de­ nouncing the seizure as "silly" and "a waste o f time" amidst tl]e larger finan-

,

The censorship case-which gener­ ated n a t i o n a l a t t e ntion , i ncluding stories on ABC News and i n The Ne w York Times and other major dailies­ began o n October 21 , 1 977 when George Washington High School Prin­ cipal Carol Wacker seized 5 , 000 copies of the To wn Crier and suspended the student newspaper ' s operations. H has not published since. An ar ticle on birt h con t r ol , one of three related stories d iscussing teenage pregnancy, provoked the con fiscation . " Couched in rat her cli nical language " accordi ng to one e d i to r , the article de­ scribed several methods o f cont racep­ tion and mentioned abort ion . The related stories di scussed the na tional problem of t een age pregnancy and gave an anonymous account o f one pregnant teen ' s t raumatic experience. Under the recent ly annou nced settle­ ment, future editors of t he To wn Crier will resume publication wit h t h e " u n re­ stricted righ t " to publish the first two censored st ories. But due to doubts that the pregnant teen in the t h i rd story ever gave her co nsent for pu blicatio n, the t hird story will not be printed . And the Philadelphia school system will be able to review fu t u re articles under a new set of procedu ral guidelines. As might be expected , both sides cla im victory . " We ' re extremely pleased , " says Principal Wacke r . " W e won more pre­ rogatives than we'd been previously allowed. There was no prior review of t he student newspaper before-no means of censorship. Now we do . " Bul Craig Snyder, one o f t he slud enl plai nti ffs, says t he sch o o l ' s agreemenl to reprint the censored art icles is an ad ­ mission that it acted i llegally. "The fundamental goal o f the law­ suit was to have the art icles prin ted i n

28

SPLC Report

Fa l l 1 9 79

m <:)

'-

<:)

'-

.

., \

"(I-r) Eleanor Pel/ta , Craig Snyder. Robert Gordon , Bart Gellman "

the editors $ S OO of their legal costs of nearly $ IC)OO , and I h at the To wn Crier will be subject to a new set o f publica­ tion guidelines. According to t h e guidelines, the newspaper adviser w i l l inspect a l l copy and c h a n nel artic les he believes " (inJappropriate . . . for . . . publica­ t ion, based u pon t he Canons of Jour­ nalism and . . . the co nstitu t i o n " to the pr i ncipa l , who may choose to pass i t on to the superintendent o f schools. The superintend e n t will have I he ulti mate authority 1 0 censor a story , based on t he recom mendations of the school dist rict ' s legal counsel and I he president o f I he Philadelph ia News­ paper G u i ld . The entire review process must take place with i n 72 hours . It is a somewhat ambiguous ending to a long and acrimonious battle . At the t i me of the seizure in 1 977. a school district spokesman asserted the bi rth contro l art icle was censored be­ cause "t here are other options, like ab­ stinence, for inst ance . " Principal Wacker also claimed a U l hori ty for the seizure on the basis o f a 1 93 9 Pen n syl­ vania stat u t e prohibiting the l eac h i ng of birth con trol . The t h ree editors-Barton Gell m a n , Robert Gordon, and Craig Snyder-

cial problems plaguing the schOOl dis­ t r ict . Quick to enter the fra y , the Ph i ladel­ phia press provided eX l ensive coverage of the developing controversy. The Phi/adelphia Inquirer and The Evening Bulletin both ran editorials su pporting the stud e n t s , the latte r comparing the school districl 's behavior to that of na­ t ions in t he Communist bloc. A fter t h e initial publicity su bsided and the four-day t r i al came 10 an eod , nine long m o nt h s passed before U . S . Dis trict Court J u dge J o h n B . H a n n u m called together t h e a t t orneys to t ell them thaI school o fficials had com­ m i t ted a "technical const i l u t ional vio­ lation . " He did not hand down a for­ mal decisi o n , however, a nd i n stead or­ dered the school to negot iate. To wn Crier ed itor Gellma n , in a col­ umn appearing i n I h i s issue of SPLC Heport (see page 50), criticizes Ju dge Hannum 's failure 10 issue a fo rmal opinion I h at would have ended the al­ ready prolo nged court battle. "We didn 't want t o negotiate a com­ promise , " Gellman writes . "We did n 't feel we should have to compromise our First Amendment righ t s . We l old I he judge I ha l . No t h ing happened . " Gell ­ man said he and his co-ed itors decided

Censorship

1

I

!

Wac k er , w h o mai n t ains s h e origi n­ ally con fiscated t he paper under orders from s u perint endent Mich ael Marcase.

to seU le the case ten months laler, when Hannum th reatened t o dec l a re t he issue moot and d is m i s s t he c ase . Now , despite t he legal settleme n t , principal Wacker s u ggests t h e To wn Crier might not resume pub l ication . " We attempted to do that last J u ne , " says W ac ker . " I appointed two ed i tors but there wasn ' t enought time to get t h e edi tion oul .

doesn ' t believe she violated t he consti­ l u t io n . "I do n ' t t h i n k t he To wn Crier �omplies wit h t h e d e fi n i t i o n o f a real newspaper , " says Wacker . " I I was never decided I hat t he paper was not a ho u se o rgan or t hat I was not t h e pu b­ , lisher . '

"The paper must have a fac u l t y sponsor and so far I'm h av i ng trouble

The pr incipal also assert s that the anonymous account of a Washington

The principal says she will consider charging the students with suing her merely to harass, with no reasonable expectat ion of winning. " I don't know what they gained in the suit:' she says, "other than notoriety." fi nding someone w h o wants t h e j o b . Y o u can ' t h ave a paper withou t a n ad­ viser and t h e teachers' u n io n ru les pro­ h i b i t appoi n ting an admi nist rator as a paid ext racu rricular spo nsor . " School d i strict General Cou nsel Eu ­ gene Braz i l , part of whose j o b is to i n ­ terpret t h e union con t rac t , rej ects Wacker ' s contention t hat appointment of an adm i n i strator to the newspaper sponso rship would violate u n i o n ru les . " I f n o faculty adviser will take the job and [an ad mi nistrator) i s willing to d o it, I see not h i ng il legal about i t , " h e says. Wacker says she's co nsidering crea t ­ i n g an " i n -house" radio sta t i o n at the schoo l as a possible replaceme n t for the To wn Crier. A t t orney Joseph H arbau g h , who re­ presented t he s t udent editors , says i f t h e paper does n o t r esu me p u blicat ion h e wil l fi le suit in sta t e co u r t , cha rgi n g t he s�hool system wit h breach o f con­ t r ac t . " Th e agreement makes it clear that [Wacker] does n ' t have the righ t to avoid publish ing the paper. The agree­ ment is legally bi nding , " says H ar­ baugh . General Cou nsel Brazil says he ex­ pects the To wn Crier to start pu blish­ i ng again i n t he fall : " I f t h e agreem ent says i t wi l l be p u bl i shed , it will be pub­ lished . Everyone i n t he school system will abide by the settlemen t . We 're cer­ tai nl y not goi ng to violate an agree­ ment t h a t ' s a mat ter of co urt reco rd . "

High School g i r l ' s pregnancy might have been an i nvasion of t he girl ' s pri

­

vacy. Some hea rsay evidence was pre­ sen ted at the To wn Crier trial that t he gi rl had not consented to the interview a nd could be iden t i fied b y t he facts presen t ed in t he story . The Philadelphia Inquirer publ ished the accou n t i n its e n t irety, without i nci­ den t . W h i l e t h e case was s t i l l pending, t he ed i t ors filed several grievances w i t h school distric t a u t horities. chargi ng t hat Wac ker was " h arassing" t hem by revok ing sc hool pr i v i lege� . Gellman says t he principal deliberately kept him from seei ng an unsolicited reco m m e n ­ dation she wrote t o co lle ges t o which h e applie d . Wacker calls t h e c ha rge "absolutely fa l se , " m ai n t ai n i ng she sent away the original and did not keep a copy. The recommendat ion W a c k er s ub­ m itted to P r i ncet o n U niversity, where Gel l ma n now at t ends schoo l , reads: " I do not feel as t hough I could give a re­ com mendation t h at would be helpful t oward Bar t o n ' s acceptance by your i n ­ sti t u tion . " Gel l man grad u at ed seven t h i n a class o f 1 ,000 . The princi pal says she wi l l co nsi der

filing a " mal icio us process" su i t -a legal action charging t h at t he plai n t i ff sued merely to harrass , and wi t h no ex­ pect at ion of winning .

" I still do n ' t know w h at t hey gained i n t he s u i t , ot her t han n o t o riet y , " she • 5 a% .

---_

.... .......

- ._-_._......

NEBRASKA

P lay i n g Off Key "He who pays the fiddler clJlls the tune. When st udents pay the bills. th�y can determine what goes in the newspa­ pers" a Nebras ka h i gh school pri n ­ c i pal . -

A masters degree candidate at t h e U n i ve rsity o f Nebras k a says this state­ ment is t ypical of the attit udes of most principals and newspaper advisers in her home state. Robin Had field , who wrote a t hesis e nt i t l ed "The St a t u s of St udent Press F re e d o m i n N e b r a s k a ' s H i g h School s . " found a d i s t u rbing gap be­ tween I he state of stude n t press l aw i n the opinion o f t hese teachers a n d ad · m i n i s t rators on I he one hand a nd t he nat ion ' s COU f l S on t h e o t her . " All hough it appears t hat cou rts across t he cou n t ry are expanding the press rights of h igh school st u den t s , " H ad field wrot e, " t hose stude n t s are still exercising only a lim ited a mo u nt o f jo u rna l i st ic freedom . " The grad u a t e student based her con­ c l u sio n on a December 1 978 poll she admi nistered t o high school pri ncipal s and newspaper ad visers. The poll asked questions on ce nsorship, prior review , and t he First Amendment rig h t s o f st u dent j o u rna list s . N i nety-six perc en t o f Hadfield ' s re­ s ponde n t s believed a newspaper advis­ er has the a u t hori t y to censor st udent copy, and every respondenl save one said his school ' s adviser i nspects a l l copy before pu b l ic a t it1n . O f the advisers. 29 pe rcen t agreed s t ro ngly and 39 percent agreed some­ what that censorship is necessary . Among t he princi p a l s , 42 perc en t ag reed st rongly and 33 pe rcen t agreed somewhat . Fou rteen percen t of t h e ad­ visers and 1 2 percent o f t h e administ ra­ t o rs were u ncertai n . The pol l , cond ucted by mail , re­ quested respo nses from every pri ncipal and newspaper adviser i n the state. The

response rate was 4Q percent . Dr. John Ba yley. pro fessor o f pol i ­ t ical science a t Georgetown U n i versi ty and an expert on po lling, said t h e poll is probably accurate to wi t h i n plus o r m i n us 1 5 pe rce n t . •

Fa l l 1 979

SPLC

Report

29

Censorsh i p N EW

YOR K

'CI�lieftain' Buries the Ax-Reluctantly Represen t a t ives of t he n a t ional o f­ rice of t he American C i v i l Libert ies U n i o n have decided not to appea l an un favorable r u l i n g on the seizure o f Sew a n h a k a H i gh School 's Chieftain i n Floral P a r k , New York . B u t A l an Azza ra , t he l ocal A C L U a l l orney w h o represe n t ed t wo Sewan­ h a k a st udents i n t he case, said he was opposed to a l lowing t h e U. S . Dist rict Court ' s ru l i ng to st and unch a l l e n ged . " I was not in favor of t h at decisio n . I t was t aken o u t o f m y hands by t he na­

" Second circuit law is hangi ng i n the balance. I think we' re better off with the bad case i n the district."

t ional o ffice , " Azzara said . A t t orney R ichard Emery of the A C L U 's nat i onal o ffice i n New York C i t y -a pa rl ic i pa n t i n t he decision not to appe a l -said t he case was t oo risky to b ring t o t he c i rcuit court . Two edit o rs of t h e Chieftai" h a d cha l lenged Principal R o bert A ndrews'

N YCL U 's Richard Emery

'

dest ruct ion of t h e pape r s last issue of

the

1 97 8

school

Reporl, V o l . J J , N o .

year

1).

(see

SPlC

A nd rews h a d con fiscated and dis­ posed of t he issue because it contained t wO o bjec t io n a b l e lellers. O ne , from t he lac rosse t ea m , t h reatened t he Chieftain 's sports edi t o r . a n d t he ot her leveled accusat ions against a s t udent gover n m e n t o fficer . J udge George C . Prat t ruled in De­ cem ber o f 1 978 t hat t h e pri n c i pa l ' s ac­ t ions were j u s t i fied because t he fi rs t lel ler could have caused a s u bst a n t ial d isrupt ion o f school a n d the second m i g h t w rongly h ave dam aged t h e s t u ­ d e n t government o fficer 's reput a t i o n . A C L U ' s Eme r y said he feared t h e st u d e n t s might lose i f t he y a ppealed . " The p ri n c i pal forecast disrupt i o n , " Emery said, "and was n o t co n t radicted i n any way. Th ere was n o fact u a l c o n ­ t est . " But t he overal l reaso n , a n d i t was a gro u p decisio n , was a general feeling that Second C i rc u i t law i s hangi n g i n t he balance. [ t h i n k w e ' re bet t e r o f f w i l h t he bad case in t he dist rict ( t han i f . "

it w e re i n t he ci r c u i t] A lso i n fl ue n t ial i n t h e A C L U dec i ­ sion n o t t o appea l , Emery expla i ned , was a previous co m m i t m e n t to appea l ano t her student press case in New Yor k . " We have a n o t her case goi ng t o t he

30

SPLC Report

Fa l l 1 979

Second C i rc u i t , " t h e a t t o rney sai d , " t hat i s m u c h , m u c h st ronger o n t he fac t s . There was no forecast of d isrup­ t i on and no disru p t io n . W h a t t he sch ool did t here [see story page

25) was

purely the res u l t of t he fear of pol i t ic a l conseq uences. "We t hought we ought t o bring t he st rongest case u p . " Frasco v . ..1 11-

dre ws.

NEW YORk

U n d e r the I n f l u e n ce D r ug p roblem ? What d rug problem?

Ni n t h grade repo rter J oe l Berg o f t he Kakiat J u n io r H igh Sc hool in Spri ng Va l ley, New York says that ' s t he a t t i ­ t ude of h i s school adm i n istrat ors. Berg, who is s po r t s e d i t o r o f K a k i a t ' s SII/oke Signal, co u ldn ' t get a n arl icle o n d rug abuse p u b l i shed i n t h e school paper, s o h e sen t copies t o The Rockland Re IJiew and The Journal Ne ws wi l h a combined readers h i p o f over 1 60,000 . -

The t wo local papers devoted co nsi­ derable s pace 10 Berg 's problem , and printed exce r p t s from t he drug abuse piece as wel l . . . A ft e r t al k i n g t o school o ffic ials, I real ized my a rt i cle would never be

pri n t ed in a sc h oo l paper . " Berg t o l d S P LC Report . " 1 s a w sending t h e a r ­ t icle t o t he local papers a s m y l ast

resort . I h ope t h at t he pub lic will now be i n formed of t he rea/ t ru l h . "

School o ffi cials t old The Journa/ Ne ws t ha t t hey had re fused to run t he s t o ry because it was i naccurate and gave a bad i m p res s ion of t he schoo l . " 1 do n 't feel i t 's a censorshi p s i t ua­

tion . "

t he fac u l t y adviser t old t he "There a re conce r n s a bo u t q u e s t i o na b l e j u dg m e n t a n d fac t ­ gat hering abi l i t y . I t smacks a l i t t le sen­ sat ionalist ic . »

News.

The d i rect o r o f secondary educat i on i n t he East R am apo School Dist ric t ,

h owever, t ol d t he News h i s m a i n objec­ t ion was t h a t Be rg ' s a rt i cle sing led out K a k i a t J u n io r H i g h School . " Possi bly it ' s c l ose to the t r u t h , " t h e d i rect o r commen ted , " b u t 1 don ' t t hi n k i t ' s di fferent at Kak iat t h a n a n y ot her sc hool . '

--_ ........._......._.......

,

----

·

Berg's con t rovers i a l slory , " M ari­ juana Use Climbs But H ard Drug A b u se Remains Lo w . " s a i d t h a t " m arijuana i s t h e preferred drug over cocaine. P . c . P . . ' hard drugs , ' and al­ coh o l " at Kakiat . Berg based his concl u sions on a sur­ vey taken of " more t han 100 st u d e n t s grades sevent h t h rough n i n t h . " H i s ri n d ings agreed in substance w i t h a s t udy l aken by the New Y or k State Di­ v ision of Substance Abuse Services. liased o n his sa m p li n g of I h e sch ool's 1 . 1 00 s t u den t s , Berg esti mated t hat some 1 5 to 30 frequently use hard drugs such as met h adone, angel d ust , cocaine and speed. "Even I hough signi ficant pen a l t i es

are en fo rced for the u se and sale o f t h ese d r ugs, m ost of them can b e pur­ c h ased at K a k i a t w i t h o u t m u c h t rouble , " Berg wrote. In defense of his s t ory's accuracy , Berg said t h at " the nat u re o f the a r t icle made it obviously i m possible t o q uote people [by name) " b u t t hat everyt h i ng he wrote was " bac ked u p by hard fac t s . "

Censorship HAWAII

Belated S p ri n g I t t ook a year and two days, but fu nding has fin al l y been resto red to t h e beleaguered Impulse magazine o f the U n i versity of H awaii .

mering the settlement i n t o cont ract form . it was n ine long months be fore t he next issue of Impulse finally h i t the street s.

As part of an agree ment wit h the u n i versilY's East-West Center, Im­ pulse d i s t r i bu t ed i t s l o n g-delayed spring 1 978 issue on April 27 , 1 979. D is t r i bu t ion followed m o n t hs of prot r ac t e d n e g o t iat i o n s a fter a n

The i n i l ial b rouhaha stemmed from t he pu b l icalion in t h e winter 1 978 Im ­ pulse of a con troversial poster-en­ t i t l ed " Spies on Cam p u s "-al l eging the existence o f an elaborate syslem of

e l e ve n t h - h o u r i n l e r i m a g r ee m e n t averted a U .S . District Cou rt hearing by j ust one day. I n J u ne 1 978 an American Civil U­ berties U nion att orney had s o u g h t an inj u nction o n beha l f o f t he Impulse edi t orial board to release magazine fu nding. [See SPLC Report 8 ) . The board accepted a set t lement o ffer from the Eas t - West Center on A u gust 1 7 , one day before the issue was sc hedu led to be t ried. But because o f the di ffi c u l t y o f ham-

govern ment. On April 25, 1 97 8 , a fter an ou tcry agai nst t he magazine by C h i nese s t u ­ d e n t s , a uni versi t y ad m i n istra t o r a n ­ nou nced t h at Impulse 's fu nding w o u l d b e "termi nated for the good o f the [East-West) Cente r . "

campus i n fo rmers fo r t he Tai wa nese

The ad m i n ist rator c l a i m ed that t he magazine had been "journalistically i rresponsible" i n p r i n t i ng t he poster and t he t ranslation . The Impulse staff had spe n t t h ree weeks p ri o r t o p u blication researc h i n g t h e even t s su r rounding t he protests cont ai ned i n

FLORIDA

t he poster.

Offe n d e rs A n o nymous

Before fil i ng suit t he st aff attem pted to negot iate with t h e school a d m i n is­ t ration . The edit ors ag reed t o print a d isc lai mer in t h e next issue s t a t i n g t ha t

The princ i pa l and newspaper adviser at Coral Springs High Sc h ool have ap­ pare n t l y decided to protect t he parents of j u venile cri m i nals at the expense of t he st udent -edited Pony Express. And at least one of the paper 's sta ffers is not p leased with t he decision .

t he Center had nothing t o d o with the posters and t o delete a l i ne i n t he mast ­ head that said ( he Impulse was an " o f­ ficial East-West Center activ i t y . " The sta ff even agreed t o allow a l l fu ­ t u re stories printed in t h e magazine t o be subject t o "libel revi ew" b y a mu­ t ually acceptable attorney. H o wever, when t he school a n ­

Despite a police policy in t h is Florida t own of releasi ng the names of paren t s whose children a re charged with fel­ onies, t he high school admi nist rators

nounced t h at t he reviewer w o u l d b e the law fi rm for t he East - West Cent e r , t he

re fused to al low st udent reporter Fra n k Beauchamp t o print t he m .

s t a ff b a l k ed and fi led su i l . U n der the terms o f t h e fi nal agree­ ment signed A pril 27, Impulse is to be pub li shed by a new corporation t h at is i ndepende n t o f the u n iversity. "The East-West Center wHl con t i n u e to fund

Beauc hamp wrote a story for the J u ne Pony Exp ress abou t t w o t een­ agers a rrested for a string of five bu r­ glaries at a local shopping cen ter. The s t udent reporter correctly identi fled t heir parents as Mr. and M rs . Robert Pearly and Mr. and Mrs. Brian B arr. Adviser Charlene Martin excised the names, req u i r i ng Beauchamp t o make o n l y general reference t o t h e " t wo set s o f paren t s . " The pri n c i p a l upheld Mart i n ' s decision over t he objections of repo r t er Beauc h a m p . Beauchamp,

w h o has since g rad-

Reporler Frank Beauchamp u ated, said he has decided against legal act ion . The principal and adviser d id n o t re­ spond to SPLC Report i n q u i ri es by _ t elephone and letter.

the m agazine indi rectly by purchasing copies fo r d i s t r i b u t ion to the Center com m u n ity , " acco rding to an Impulse news release . John Blac k . speaking for t h e Im­ pulse board, said he t hi n ks the agree­ m e n t is excel len t . "We consider t he cont ract a victory and a v i ndicat ion of our stand for freedom o f s peec h . " _

Fall 1 979

SPLC Report

31

Censorship K ENTUCKV

A H ol low Victo ry I t came as l ittle consolation to Tom Murray when a U . S . Di st r ict Court j udge told him his first Amendment rights had been v i ol at ed M urray, ed i t or of the U n i versi t y o f Louisville student newspaper. was fi red fro m that posit ion after h e re­ fused to apol ogize for publ is h i n g a cont roversial A pril foo l s ' editi o n . Although J udge Thomas Ballantine ruled May 1 5 that the university acted i l legal l y in removing M u rray from t h e salaried post, h e also held that t h e con­ troversy was moot because all sched­ u led editions of last yea r 's paper had been published . Murray had asked to be reinst ated as editor for an extra commencement edi t ion o f t he news­ paper. Ballantine also refused to order t h at .

the universi t y give Murray bac k pay or

" I'm s ick and ti red of the sancti monious hypocricy of the federa l bench."

al torneys ' fees , making Murra y 's vic­ tory a ho llow one at bes t . W i nning pla i n t i ffs i n civil rights actions usually recover attorneys' fees from t he defen­ dants. Clearl y . Judge Ballantine did not thin k much of The Cardinal's April Foo l s ' edition . H e said i t was " replete with obscen i t y , l ibel and i n fantile, heavy-handed a t tempts at sati r e . " H i g hlights o f t h e j oke issue incl uded a report t hat the e n tire football team had been arrested o n charges ranging from rape and sodom y to "associating with subversive newspaper ed itors, an advertisement for coca i n e at "$ 1 9 . 95 a gram " and a front-page photograph displaying sev e r a l h u n d r e d na ked bac k s ides . The st o ries were also sea­ soned with a l i beral s p r i n k ling o f pro­ fanit y . I f

However o ffended h e was , J udge Balla n t i n e conceded the ous ted ed i t o r h a d a consl i t u t i onal right t o p r i n t t he

32

S P LC Repo rt

Fall 1 979

sati rical issue wit hout bei n g forced to apolo gi ze . The board o f student comm unica­ tions had asked Mu rray to p u b l i s h "a promi nently displayed apology . " He refused . When the board t hen fail ed to m uster the t wo-thirds vote necessary for dism issal, Vice P r es ident for Stu­ dent A ffairs Ed Ham mond personally fired the edi tor. Hammond based the firing o n Mur­ ray ' s "insubord i nat i o n " and said he violated the u n i versity's st udent j o u r­ nal ism code o f ethics. J udge Bal lantine commented at the hear i ng that t h e code cou ld not undercut M u rr a y ' s constit u ­ t ional freedoms . Bot h sides have fi led not ices of ap­ peal with the U . S . Court o f Appeals for the S i x t h Circu i l . U niversity o ffi · cials d isagree with Bal l an t i ne's holding that they i n fr inged on Murra y ' s First Amendme n t r i ght s . M urra y ' s aUorney, Daniel Taylor, argues that Murray, now a sen ior. has a legal right t o publish one more edition of The Cardinal. U na ble t o obt a i n a hea ri ng before t he fi nal i ssue was p u b l i shed . M urray wanted to p r i n t a special c o mmence­ m e n t ed i t ion . Judge Bal la n t i ne ru led that t he decision o f w h e t h er 10 publish t h e special issue was t he respo nsi b i l i t y o f t he schoo l , not t h e edito r . "The t hrust o f Murray's argu­ ment , " wrote the judge, " seems to be thaI as editor i t was h is determination whether or not t o p u b l ish a commence­ ment issue. This a rgument is w i t h o u t m e r i t si nce the decision t o publish r ests with the pu b l isher, in t his case, the University. Once the U n iversity deter­ m i nes t hat i t will publish an edi t io n , t h e content o f t h at ed i t ion becomes t h e responsibility o f t h e ed itor . " Attorney Taylor says that decision is "dead wro n g , " but his criticism ex­ tends beyond the j udge ' s legal reason­ ing. Tay lor charges that Ballan t i ne de­ layed m a k i n g a formal d ecision u ntil after commencement so he would not h av e to o rder Mu rray ' s reinst at ement as editor. The attorney also believes the j udge abused h is powers by re fusing to order any sanctions against t h e universi t y de­ spite fi nding the school had deprived Murray of his rights . " I ' m sick and -

t i red o f t h e sancti monious hypocrisy of the federal benc h , " said Ta y lo r Taylor will also seek attorney s ' fees under the Civil Rights Ac t . He has do­ nated his services but says he's en­ countered di fficuhies raising money for the a p peal . The Playboy Fou n da­ t io n is thus far his only contributor, with a $350 grant t o cover t h e cost of t h e t r a n scr i p t required for a n appe a l . I r reverent April Fools ' edi tions are so met h i ng o f a t radition at t he U n iver� sity of Louisville. Cardinal editors caused a storm of cont roversy several years ago by falsely repo r t i ng ( hat u n i ­ versi t y President James M i l ler had d ied . That edit ion sparked a budget­ cu t t i ng t h reat by u ni ve rsity o fficials, as did t h e most recent sat ire. Now the uni­ versity wi l l reportedly study proposals t o make The Cardinal fi nancially inde­ pende n t . The week l y receives about hal f its $50,000 budget from the un i versi t y. Murray v. Board of Trustees, University oj Louisville . • .

­

Censorship TEXAS

F riend o r Foe - o r Both? For over half a century. t he Texas St udenl Publ ications Board has made long-term budgetary pol icy for t h e University o f Texas at Aust i n ' S Daily Texan. and exercised prior reView and censorship powers over I he st udent paper. Somet imes frien d l y . sometimes strained , relations between t he TSP Board and the Daily Texan o ften fluc� t ua l e , and remai n somet hing o f a para­ dox-even to those d irectly i n volved . " I t ' s confusi ng, " ad m i t t ed Texan editor Bet h Fre r k i n g . "Sometimes t he y ' re good and sometimes they ' re bad . " Lately, t hey've been bOl h . When t wo U niversity o f Texas law students decided to sue the Daily Texan for l i be l , the TSP Board was "be h i n d us a l l t h e way , " accord ing 10 Fre rki n g . But w h e n former Texan editor Gary Fendler sought to p u b l ish a cartoon containing touchy l anguage, h e soon fou nd t h e TSP Board on t he ot her side of t he ring. The l ibel con flict began in April 1 97 8 , when law s t uden t s Eric Samuel­ son and David M i tcham pri nted a hand b i l l conlaining copyrigh ted news stories and a car t oo n from t h e Daily Texan . Complaining t h at I h e Texan had provided inadequate coverage o f an u pcom i n g referend u m , I he I wo st u­ den t s wanted to distribute t he handbills to the un iversity comm u n i t y . D a n Malone, t hen editor o f t he Texan. told the law stude n t s t ha I distri­ bution wou l d require written per­ m i ssion from t he pape r , which h e did not want t o give . Malone said he re fu sed perm ission to " prevent anyone from using something i n the Texan t o advance a poli tical cause . " Adding insult t o injury, the Texan I hen ran a story abou the alleged viola­ t ion o f its copyrigh t . The paper q uo t ed M i tcham , a I h ird-year law s l u de n l , as sayi ng " I just had com plele ignorance of t he issue, " and "1 had no idea 1 was break ing t he l aw , " C harging I h a l t h e Texan article was biased, Samuel so n s u b m i t ted an edi­ torial col u m n 1 0 cell whal really hap­ pened . Edi t o r Malone refused to p r i n t i t . saying it w a s t oo l o n g and con tained

fact ual er rors . M i tcham and Sa muel son t h en staged a demonSl ral ion 1 0 protest I h e biased

story and the u n pu b l ished col um n . Accord i n g to the Daily Texan, t wo students dressed as go ri l las dro pped a fa ke sh r u n k en head-s y m b o l i c o f Malone-at M i t c h u m ' s feet . then released b l ack baloons and wal k ed away . The "small spectacle" was i n tended to represent the Texan 's " r epression o f our free speech , " Malone report ed l y said . Nearly a year later, last April 24 , the t wo law students fi l ed a $ 1 00,000 damage s u i t against M alone. t h e T S P

committee voted , 2- 1 , to u phold H i l­ b u r n ' s censo rs h i p . W i t h advice from t he American Civil Liberties U nion, editor Gary Fendler cited court cases -Popish v. Board oj Curalors and Cohen v. Cali­ lornia-that said profanity is not le­ ga i l y o bscene, and d r a fted an A pril 20 editorial cal l i n g for the TSP 1 0 start paying " more then lip service to t h e ph rase ' freedom of I h e press . ' " Fendler ' s editorial j oi ned t h e Th ree M il e-i sl and cartoon on t he cutti ng­ room noor . H i lburn h ad aga i n exercised h is censors hip prerogat ive. A ft e r several m or e days of squabb l ing between t he TSP Board and t h e Texan, t he board relenled -voting 8-2

mSfREr( �n",: A. � #j ; CAtfff£,1NVF

z .----:Board and the University <{ =...... r----, Board of Regents. Samuel- � \. :;OIL son and Mitcham charge that t he Texan caused them � ItIU 1St w·_ .I " great anxiety and mental ;;; -'" dist ress " by " h o l ding them � up to pub lic rid icu l e " in the <5 news stories about the copy- 0 right violation and dem on­ st ratio n . They say the sto r ­ i e s w e r e l i belous and " p u b­ lished w i t h actual malice . " The lawsuit contends u se of the Texan 's material con­ stit u t ed non-profit " fa i r use" a n d does n o t violate any copyr ight l aw . A deci­ sion is pending. "Anybody can sue a n y­ body for anyth ing, and t h is is the perfect exam ple o f that , " said J e ff Case, then preside n t to allow Fendler t o pri n t an ed i t orial o f t h e TS P Board . Ed itor Malone column on t he quest ion o f profan i t y . and TSP General Manager Loyd Ed­ T h e editor found t h a t H i l b u r n h ad i n m onds would not com m en t , and the past years regu l ary repl aced profani t y plai n t i ff law st udents could not be w i t h Jess o ffe nsive euphemisms. Fend­

,

'--�� ' � '

reached. If the TSP Board was hel pfu l and supportive d u r i ng I he l ibel cont rover­ sy, il p u lled a Jeckyl l-and -Hyde t rans­ format i o n w hen t he Daily Texan t ried to pr i n t a cartoon con l ai n i n g pro­ fanil Y · The carto o n d e p i ct ed engi neers sea r c h i n g t h r o u g h an i n s t r uc t i o n manual at I h e Three M i l e I sland nuclear power plant , with t h e last panel ca pt ioned , " Look u nder F for fuck-up, Zek e . " Edi t orial Manager Rob ert H i l b u r n , a fu ll-l i m e u niversi t y empl oyee charged by t h e TSP Board to review all Texan copy, removed t h e cartoon on t he ground t hat it violated "good journal� istic practices . " The TSP ' s review sub-

ler

w rote t hat "substi l u l i n g 'cow ' pa l l ies' for ' b u l l s h i t-, was n ot o n l y u n ­ cal led for, b u t i t also changed t he i n ­ l e nded mea n i ng o f t he sen lence. Can anyone's argument rea l ly be full o f cow patties? " Bul Fend ler denied I h al t he Texan would " belabor the iss ue o f censors h i p or f i l l t h is c o l u m n wil h every expletive

imaginable just because we are free to do so . Thai was not whal we were try­ i ng t o ach ieve . . . . "

What I h e Texan h as achieved , ac­

cording to i ncom i ng edi t or Frer k i ng, is a private agreement wit h censor H i l ­ b urn t h at he " w i l l n O I stop anything u n less i t 's l i belous . " " H e gelS along with u s j ust fine • now , " says Frer k i ng .

Fal l 1 979

SPLC Report

33

Censorsh ip MICHICAN

B ut I t S u re Beats Losi ng Somet imes w i n n i n g i s n ' t every­ thing. A l l hough a former editor of t he Wayne Coun t y ( M i c h i ga n l Commu­ nity College Open Door has wo n a favorable sett lement in h i s s u i t a g a i n s t the col lege. he s a y s t h e vic­ t o ry doesn ' t help h i m much . H . Sam u el Kemp set t led in Feb­ ruary for $ 1 5 in cou r t cos t s , a $6 compens a t ion , and a cou r t -en forced agreemen t pro h i biti n g a d m i n ist ra­ t i ve censors h i p o f the Open Door. The former editor also received a g uarantee o f t u i t io n -free classes u n t i l 1 98 1 -a m ea n in g less ges t u re .

t old him to revise the piece " s o as not t o make t h e presiden t look

si nce Kemp h a s long si nce t rans­ ferred t o a four-year coll ege . " ( was less than sat isfied , " Ke m p sai d . Nonet heless , Kem p ' s set t leme n l seems li kely 1 0 head o ff Cu rther co n­ t roversy a t the Open Door. H i s l aw su i t , filed i n U S . Dist ricl Court i n J u ne of 1 97 7 , alleged t ha t h e h a d been i llegally oust ed from h i s pos i t i o n a fter p u bl is h i n g an edi t or­ ial t hat crit ici zed t he a d m i n ist rat i o n . The M ay edito r i a l , censu r i n g t he c o l l e g e f o r r e p o r t e d l y p a y i ng $45 ,000 " u nder the t a ble " to i n d u ce a vice-president to resig n , said t h e

Kem p said t he board j u s l i fied h i s dismi ssal w i t h s a m e t h i n g abo u t academic d e ficie nc y , " b u t t he for­ mer editor mai n t ai ned t hat h is aver­ age was wel l above t he req u i red 2 . 5 , and s pecu l a t ed t h a t WCCC a d m i n­ i s t rat ors had pressu red t he board i n t o i t s decision .

m o n ey w a s "excessive " and cou l d h ave been u sed t o fund scholar­ s h i ps . According t o Kemp, some WCCC ad m i nist rators got w i nd of t h e edi­ t or i a l before i t was published and

A n ad m i n i s t ra t i ve s po k es m a n said she is " n ot a u < h orized t o com ­ men t " on t h e K e m p case, and added t hat no o t her ad mi n is t rators would be available to answer q uestions a bo u t t he a ffair . •

.

bad , "

W hen Kemp refu�ed , he said h e was locked o u t o f h i s o ffice a n d d is­ mi ssed from his ed i t orial posi t ion by the St udent P u b l i ca t ions Board . "

TEXAS

A n $800,000 Q uestion M ark Me mbers of the Pan A merican U n i · vers i t y Lat i n s t uden t s ' orga n i zat ion'say Ihey ex pec t a hea ri n g soon o n a law s u i t t hey filed aga i n s t t he u n i vers i t y a n d several ad mi nist rators . The st uden l s fi l ed suit i n September 1 977 , a fter ad­ m ini s t rators con fiscated an issue of t he s t uden t newspa per , £1 Sol, w h ich q uoted a n anonymous source as charg­ i ng t hat $800,000 was u nacco u n t ed fo r fol l owing a uni versi t y aud i t . Vi ncen t Slein of t he San J ua n , Texas , O f i c i n a Legal d e l Pueblo U n ido says I h al because of changes i n federal j udges , " the courts have done not hing on the matter for more t h a n a yea r , " The s u i t charges t ha t u ni ve rs i t y Pre­ sident Ralph Sc h i l l i ng and ot her ad­ m i n is t ralors vio l a t ed bot h t h e school ' s p u blication policy and t he st udent 's First a n d Fo u r t ee n t h Amend m e n t rights by ban n i n g on-campus dist r i bu­ t ion o f £1 Sol i n Septem ber 1 977 . A Texas dist r ic t court enjoi ned t h a t ban a mon t h l a t er fol l ow i n g the co n fis­ cation o f a second issue. The paper h as publ ished regu larly s i nce t h e n . N o w t h e L a l i n st uden t s ' o rgan iza­ l ion asks t h aI Ihe u n iversi t y be perm a ­ nen t l y enjoi ned from i n t er fe r i n g w i t h

34

SPLC Report

Fa l l 1 9 79

" Schi lling responded by ban n i ng distri bution of the newspaper, and ordered the confiscation of the August issue." t he pape r ' s publicat i o n and d i s t r i b u ­ t io n , I t a l so see k s c o m pensatory d a mages . A ft er t he article appeared in I he Augus t 1 977 issue, Sch i l l i n g called ed­ i LOr Raul A rredondo and £1 Sol facu l t y adviser Juan Chavira i n t o h i s o ffice and as ked t he m to reveal t he source o f , t h e s l o r y . T h e y refused , saying on l y t h at t heir sou rce was " h ighly rel i a ble . " Sc h i l l i n g responded b y ba n n i n g d is­ t ri bu t i o n of the newsp a pe r , a n d or­ dered t he confi sca t ion of the Aug ust i ss u e . M ore t han 1 , 5 00 cop ies were rounded up. The s l U dents' o r g a n i za t i on filed a class act ion in Texas diSl rict court on Se p t e m b e r 30,

Because Sc h i l l ing ' s ban was s l i l l in effect a m o n t h l a t er , u n i versi t y a d m i n ­ i s t rat ors c o n fiscated J 5 0 cop ies of t he O c t o ber 4 i ssue as wel l . Two weeks l a t e r , at t orney J a mes H arrington o f t h e O fici na Legal asked for and re­ ceived the court i nj u n c t ion aga i nst such i n t er ference. £1 Sol publicat ion pol icy al lows t ha t " t he s t udent newspaper shou l d be free of ce n sors h i p and advance approval o f copy . " That policy w a s approved b y I h e Pan A merican U n i vers i t y P u b l i ca ­ l ions Co m m i l l ee and , acco r d i n g t o £1 Sol, en forced by I he a d m i nistrat ion s i nce 1 97 6 . B u t Sch i l l i n g s a y s t h a t h e o n l y wa n t ed t h e s t u de n t s to n a m e t heir source o r ver i fy i t s i n formal ion , He would nOl s a y t h at t he al legat ions were u n t rue a t t he t i me of ( he i r publica t io n , alt hough he says t h at I h e a u d i t i s now complete and t hat a l l funds a re ac­ cou n t ed for. H arrington filed a m ot ion for s u m ­ m a r y j udg m e n t l a s t A p r i l 24 . T h e s t a t e a t t orney general ' s o ffice fi l ed a cross­ m O l ion J u n e 8 . Slein expects a hearing date t o be set · ·somet ime soon . " •

Censorsh�p CALI FORNIA

Fal lout at 'Th e The Justice Department is co n s i der ­ ing cri m i nal prosec u tion againsl t he

editors of the University of California at Ber keley Daily Californian for pub­ l i shing a l et t er by four n uclear scien­ tists that criticized t he Department o f Energy's document classificalion pro­ ced u res . DOE o ffi c i als believe the let­ ter contains in formation usefu l 1 0 the construction of a hydrogen bom b , and that i l s pu blication was a violation o f th e 1 954 A l O mi c Energy Act . Violation of t he Atomic Energy Act carries a maxi mum I O-year jail s e n­ tence and a fi ne of up 10 $ 1 0 ,000 . The A pril 25 le tter-w ri tt e n to Sen­ alor J o h n Glenn (D.-Ohio) b y Theo­

dore Postol,

George Sta n ford , Gerald Marsh and A l exa n der DeVolp; of the

A rgonne National Laboratory near Chicago-charged I hat the Depart­ ment of Energy may have classi fied i n ­ for m at i on and documents for polit ical p urposes . The scientists asked for a fu l l-sc ale congressional inquiry into the

m a i l er . The Senale Subcommittee on Energy and Nuclear Proli feral ion, which Glenn chairs, already had begun hear­ ings on the DOE ' s c l a ssi ficat i o n pro­ cedures, sh or tly a fter I he Progressive magazine at t e m pted 1 0 p ub l i s h an a r­ ticle en l i £Ied "The H-Bomb Secret: ' How We GOt H , W h y We're Telling It. " That attempt was I h w ar ted March 26 w h en a U.S. D is tr i ct Court in Mad i ­ son , W i sco n s i n , issued a preli m i n ary injunction to pro h i b i t l he article's pub­ l ication . The c o u r t said t h a t I he art icle conlained previo u s l y u npubl ished tec h ­ nical i n format i o n and sketches show­ ing the worki ngs o f a h ydro ge n bom b . Attorneys for t he Progressive ma i n ­ tai n , howeve r . t hat a l l t h e facts in t he

article came either from public sources or from in formation declassi fied by t he g ov ernmen t , and th a t t herefore i ts publ ication co u ld not dam age n ationa l securi t y . Howard Morland, a u t hor o f

t he ar­ t icle, says he obt ained his in formation from a w i de variety of pu b l i c sources: p u blic li br arie s , u n ivers i t y l i brari es , unclassi fied gover n me n t docu ment s and i n t erviews , ma n y of which the De­ part ment of En ergy a r r ange d for h i m . In u rgi n g Glenn to study t he DOE ' s

ai ly Cal ifo r n ian' As SPL C Report went to press, Justice Department attorneys obtained a tem­

porary restraining order from federal judge Robert H. Schnacke on Septem­ ber 15 prohibiting The Daily Califor­ nia n from publishing a 17-page leller describing the hydrogen bomb written by computer-programer Charles Han­ sen. The government alkged the letter re vealed "secret restricted data. " Details in the winter SPL C Report.

procedures, th e scientists charged, dist urbing aspect of t h e govern­ men t ' s handling of [classi fiedl i n for­ mation pertain s to the po s si b l e use o f c la ss i fication and declassification for pol iti cal purposes. The Government's confirmation of the general accuracy of Ihe M orlan d article might be a con­ scious attempt to i nfluence the out­ come of Ihe case by increasing t he ap­ parent sensitiv ity of M orland's infor­ mation i n the hopes o f establish i ng a legal precedent for p r i or res t raint . . . .

" (AI

"The power t o select i ve l y classi fy d ocu m e n t s t hat con t a i n i n form a ti on that i s , and should be, in the public do­ main, i s an effective tool for in fluenc­ ing policy d i scussion and ' pu bl ic opin­ ion . " The scientists also c hallenge d I he go vern m en t ' s a rgument in t h e Progres­ sive c ase-that the d i ss e m i nat i o n of in­ formation contained in the Morland article could significantly has ten a country's n uc l ear development-by discussing the difficulty such a cou n t ry would h ave in i m plement in g reported weapon-design co ncepts. [t c ited as an example the concept diagramed in Ed­ w a r d Teller ' s 1 97 6 Encyclopedia A mericana a rt icle [ 1 976, Vol u m e 1 4, p . 65 5 ] . That diagram, t he scientists say, is si m i lar to I he di agram th e govern­ ment h as suppressed in the Morland ar­ t icle.

All four of the scientists filed d avi ts on M orland ' s behalf in the gressive c ase .

affi­ Pro­

The scient ists originally sent t heir letter to The Washing/on Post. The New York Times, Sen ato rs Frank C h u rch ( D . -Idaho) a nd Birch Bayh

Fa l l 1 9 79

S P LC Report

35

Censorsh i p (D. - I n d . ) and Congressman Richard­ son Preyer (D . - N . C . ) .

MISSISSIPPI

Glenn forwarded t h e letter t o the DOE, requesting that Classifications Chie f Jack G i f ford loo k i n t o the scien­ tists' charges . Six weeks later, Gi fford ordered their lei ter class i fied "secre t ­ restricted " because i t was, in his words, " found to contain Restricted Data as defined b y the Atomic Energy Act o f 1 954. " H e ordered all copies rounded u p " for safekeeping . "

After That Demon Ru m A centu ry-old specter has risen u p to haunt t he U n iver­ sity of Mississippi ' s Daily Mis­ sissippian, and the student editors there say they w i l l try to kill it once and fo r all. Ka t h y Dunagin and G len Allison fi led suit i n federal cou r t in an a t tempt to strike down a 1 9t h-cent ury state stat· ute prohibiting liq u or adver­ t i s e m en t s . The st uden t s contend t h e Jaw is unconst i t u ­ t ional. The suit was s parked when the attorney for the local city of Oxford demanded t hat the Daily Mississippian stop ac­ cept i n g beer advertisements. The attorney t hreatened to

I n late May, scientist H ugh DeW i t t o f t h e Li vermore Nat ional Laboratory in Cal i fo r nia sent copies o f the lei t er to several Bay area newspapers, including t he Oa k l a nd Tribune, t h e San Jose Mercury and the Daily Cal{(ornian . J oe La Grone, a D O E o fficial in Oakland, warned t he news papers o n J une I I t hat possession o f t he letter was illega l . But Daily Californian editor Tom A bate cal led t he DOE ' s ac­ t ions "an apparent misuse of powe r , " and contacted Congressman Pete Mc­ Closkey ( R . -Cali f . ) for adv ice . McCloskey, a member o f the House Subcom mittee on Government I n for­ mation and I ndivid ual Rights and a longt i me proponent of abolis h i ng the DO E , told Californian edi t o r s that "absolu tely nothing i n t he letter is con­ fide n t ial and there i s no j us ti fiable rea­ son for classi fy ing i t . He advised, " I f I were you , I ' d r u n i n o n t h e fron t page . " The Californian ran the letter i n its It

entirety o n June 1 3 , alongside an edi­ torial charging that " t he government wields t he most powerful of political weapons whe n it decides what can be discussed by the public . " Leonard Weiss. s taff director o f G lenn ' s energy s u bcommittee, agrees t ha t t h e DOE's class i fication of t h e let­ ter " exacerbates a n already di ffic u l t si­ tua t io n . They have put the mselves be­ hind the eight ball . " B u t he said t h e Californian 's publicat i o n o f a class i ­ fi ed docume n t - w h e t h e r c lassified rightly o r wrongly-" has p u t t hem in v io l atio n o f the law , w i thou t a doubt . " Since June 1 3 , a t least t hree other newspapers-the U n iversit y of I lli nois Daily JIIini, the I llinois State U n i versi t y Videlte and t he U n i versity o f Wiscon­ sin Daily Cardinal h a ve pu blished t h e letter i n its entirety. The Justice De­ partment has planned no legal action against those papers. Accord ing to a source in t he Justice Depar tmen t , t h e case reached t he desk -

(Clockwise): Civiletti, the contro versial issue, and rhe composition room will Justice prosecute?

36

SPLC R epo rt

o f Deputy Attorney General Ben j a m i n C i v i l e l t i j u s t before his a ppoi n t ment as attorney generaL I t is not kno wn w hether Civiletti w i ll contin ue to take a • personal role in t he case.

t a ke legal action to e n force the stat u te ' s ban i f the edi tors re­ fused . Soon after t h e case came to cour t , state A t torney General A . F. S u m ner issued an opin­ i o n stating t ha t t h e stat u t e does not apply t o beer ads . Oxford then o f fered t o d ro p i t s o bjec t io n s . B u t t he edi tors " decided to c h allenge t h e validity o f t h e ent i re s t at u te, " s a i d G rady Tollis. an atto rney for the s t u­ dents. " We ' r e challenging t he law as a violation o f the First A m e n d m e n t protect ion for commerci al free speech . " The students seek an i nj u nc­ tion agai nst en forcemen t of t h e ba n , a dec l aration t hat t h e l a w is unconst i t u t ional and at ­ torneys' fees. S t a t e a H o r n e y H u b b a rd Sau nders dec l i ned to discuss t he case in de t a i l . but re­ marked t ha t ( he ad ban has " been on t h e boo k s , in o ne form or anot her, si nce t h e J 800s . " He s a i d t h e sta t e w i l l argue t h a t liq uor advert ise­ ments are not ful l y pro t ec t ed by t he co nst i t u t i o n . •

--- ----------------.._..._ .... - --- --_.._.._-----------

Fal l 1 9 79

Government Action

The shooting suspect fleeing (above) and apprehended (be/ow): Was T h e Daily Forty-Ni ner in terfering or protecting its credibility ?

with justice :t> Z Z ,., )<. z c o (/0 m Z

CAL I FORNIA

'I Destroyed Eve ryt h i n g' "The rat ionale was simple: I would not let the Daily Forty-Niner become a conduit to the police, t h e prosecu tor's o frice or even t h e d e fense a t torne y ' s o ffice. The credibility o f t h e paper would have gone dow n t h e t u bes . " Thus does editor M i k e Sturman defend his decision to destroy his paper's pho­ t ographs of a campus s h oo t i n g i ncident rat her t h an t urn t hem over to aut hor­ i t ies . A senior at California State U n i v er­ sity's Long Beach campus, Sturman gathered toge t he r t he negatives and prints, set a m a tc h to t he pile, and calm l y watched t hem burn -knowing all t he while t hat police i n t ended to subpoena t he mate rial . Needless to say, local law en force­ ment o fficials don ' t t h i n k t hat was a very good idea. " I t is irresponsible to dest roy evidence , " says Assi stant Dis­ trict At torney Peter Breg m an . who w i l l prosecu te t he s u s pect in t he shooting incid ent . "That s u bstitutes yo u r judg­ ment for t h a t of t he cour t . " Bregman dismisses the Daily Forty-Niner 's con ­ cern over i t s cred i bility a s afl i mpart ial con d u it o f ne ws: " That ' s not t he poi n t . " What is t he poi n t , Bregman says , i� that t he s t u d e n t newspaper m a y have t hrown a wrench i n t o the machinery o f j u s tice . Horace W . Herndon, a Ca l

State Long Beach s t u d en t , has been c harged with three felon y counts; as­ sault w i t h i n tent to commit m u rder, deadly assau l t against a police o fficer and bringing a weapon o nto camp u s . The 24-year-old Herndon allegedly fired a shot on April 30 t h rough the w i ndow of Associated Students Presi­ dent Dan Soury, then ned from t he scene and exchanged fire w i t h police before his capt u re. Daily Forly-Niner s t a ff photographers recorded t he chase and apprehension of t he suspect . After t he paper ran the p h otographs the following day, an officer from t h e cam p u s depart ment o f pu blic safe t y re­ quested a copy of the negat ive of one p u b l ished pri n t , saying he wanted to e n large the section co n t ai n i ng t he sus­ pect . Editor Sturman t old the o fficer i t i s not Forty-Niner pol i c y to release nega t i ves, but agreed to provide him with a copy of t he photograph . The o fficer accepted the o ffer and picked up t he prin t , but less than five hours later h i s su perior called Depart ­ ment o f J ou rnalism Chairman Ben C l lnningham to repeat t he request for t h e negati ve . After consu ltation , Stur­ man again refused . That d i d it for Department of P u blic Safety Director Jack Bric k . w h o repor­ tedly told C u n ningham . " We 'll h ave to go the su bpoena route. "

Says St urman : " 1 as ked Ben ( C u n n ­ ingham] a b o u t m y o p t io n s. I ncluded were com pl y , ignore t he t h rea t , let an o fficer s t a nd i n t h e dar k room w hile a print was being made, have the negs a n d prints removed from t h e news­ room without m y k nowing t h e i r loca ­ tion or destroy everyt h i n g . " I de stroye d everyt hing . " Now St u r ma n and the Daily Forty­ Niner may be i n trouble w i t h t he la w . O n May 8 , Porty-Niner photo editor C . W . Pinncik was served wi t h a sub­ poena req u iring him to show u p in court w i t h " one copy o f each photo­ graph (or negative thereot) taken April 30, 1 979, relating t o t he H er ndon inci­ den t , i ncluding, b u t not lim i ted to sh ooti n g , ch ase, arrest , and crowd pic-

Fal l 1 9 7 9

SPLC Repo rt

37

-

Government Action

t u res

and cred it s . " Phot ographers Anne Knudsen , Don Tormey and Fran Tarj a n y were also ordered to appear as w i t n esse s . W he n editor S t u rman told t h e prose­ cutor he had burned t h e subpoenaed mat eria l . he was t o ld he had v iolated a law against destroying evidence. But Sturman isn ' t so sure: " [T]hat is t he ent ire question involved here . When is a piece of i n formation gat hered by a news organization evidence? [Prose­ cutor] Bregman said that t he negative was evidence as soon as t he photo­ grapher, Fran Tarj a n y , t oo k t h e pic­ ture. Our at torney . . . said somet hing isn ' t evidence u n t il it i s cal led for in cou r t . . . U nder Cali fornia law , dest royi n g evide nce can b e prosecu t ed as e i t her a felony or m isdemeanor offense. Assis­ tam District Al lorney Bregm a n says t his case "does n ' t rise to fel o n y s t a t us and so we referred it to t he Lo n g Beach Ci t y Prosecutor, who resolved to t a ke no act ion at t hi s t ime. " Bregman warned , t ho u g h , t h a t " i f i t results t h a t t h e rights of [ t h e d e fen­ dan t ] are seriously hurt by not having t he photogra p h s , t hen the city attorney may decide to prosecu t e . " A spokes­ man from t h e c i t y a l l orney 's office says t he m isdemeanor o f fense carries a maximum pe n a l t y o f one year i n j a i l or a $ 1 , 000 fine. Beyond the q u es t i o n of t he act's le­ gali t y . I h ere i s also t he pers ist ant ques­ t io n of whet her b u r n i n g t he pict u res was an eth ical thing t o d o . M i ke S t u r ­ m a n doesn ' t see w h y nol : " I f, a n d t h is is a big if, we had the only piece o f in­ forma t ion t hat cou l d lead to t he arrest of a dangerous person , such as the H illside St rangler o r Cha rles M anso n , I m i g h t consider giving t he a u t horit ies t he i n format i o n . " Bu t t h i s event took place in fro n t o f hundreds o f eyewi t nesses . I t hap­ pened at t he Student U nion around noon where h u n dreds o f s t udents were eat i ng l u n c h . The officials do not need t he Forty- Niner photograph to place t he gun i n their suspec t ' s h a'nd . " Prosec u t or Bregman d isagrees w i t h t he editor; " A su bpoena doesn ' t re­ quire you to lurn o ver anyt h i n g . I t says to bring t he m a t erial with you t o cour t . I t i s the j udge's j o b to balance t h e i m ­ portance o f t h e evid ence against t he concerns of t he press. W hen t h e press t a kes m a t t ers i n t o its o w n hands, it is lawless . . . . They have an obligat ion t o preserve a l l evidence . " •

38

SPLC R e po rt

Fa l l 1 979

A r m o r fo r t h e J o u r n a l ist Congressman William Green (R . N . Y . ) h as i ntroduced legisl a t i o n to c reate a n a t i o n a l " s h ield l a w , " protecting newsmen from prosec u t ion for refusing t o divulge con fidential sources or i n formation before a judge or tribunal . The bill would not apply t o st udent journalists i n most cases. H . R . 368 seeks 10 provide that " no cou rt, grand j u ry , or a d m i n i s t ra t i ve body . . . shall require an y profes· sional j ournalist or newscaSler em­ ployed with any newspaper [orl maga­ zine . . . to disclose an y news, or t h e sou rce o f any news . . . " Professional

j ournalists are defi ned a s those who gather news " for gain or livelihood . " A second part of the bill see k s to limit newsroom searches by l a w en­ forcement agencies . It is one of 1 2 such bills i ntroduced i n the House and Senate t h is year, i ncl uding a bill . drafted by t h e Ad m i n ist ration [see S P LC Report, Vol . I T , No . 2] . Gree n ' s sh ield law bil l , i f enacted , would be similar to the existing New York Civil Rights Law (Sec. 79-h ) . Un­ paid student j ournalists are not pro­ tected by that l a w . •

Rep. Wil!iom Green, author of a shield la w pending in Congress

MARY lA N D

Dou ble J eo pa rdy Officials in Baltim ore have t h rown out c r i m i nal cha rges against a s l udent phol ographer and h i s journalism ad­

viser at Mervo H i g h School . BUI Prin­ c ipal Jack Phelan will be keeping an eye o n photographer Alan Da y , and i f h e has h i s way adviser V i n cenl Gugli­ uzza will soon be teaching e l sewhere . Day and Gugliuzza , bot h of t he Mervo Tech . had been arrested and charged , respect ively, w i t h disorderly conduct and i n te r fer i n g w i t h an arrest [see S P LC Report, Vol . I I , No. 21 . The incident began when Day at­ tempted to t a ke pict u res o f a police search o f student l oc k ers o n M arch 28 . A security o fficer ordered Day 10 p u t away h i s camera , a n d then handc u f fed t he student when he prepared t o take another picture. Adviser Gugl i u zza , who t h en dem an ded t o k n o w w h y Day was bei n g arres t ed , was put in c u ffs h i mself. Day , called "an ext reme d iscipli nary problem " by Pri n c i pal Phelan , ap­ peared M ay 28 i n juve nile co urt , w here

the cha rges against h i m were dropped. Gugl iuzza, whose first arraignment was post poned, appeared in court on Augusl 1 3 . The prosecutor t here de­ cided not 1 0 I ry his case. A t t orney W i ll iam Zi nman , who re­ presents Gugliuzza , had ea r l ier ex­ pressed con fidence in his client ' s case: " Logic and jusl ice are on our side. I f any t welve people hear t he case, i f t he y ' re reasonable people, I t h i n k t he y ' l l believe h i s version . W hat Gugli­ uzza did didn ' l const it u te int erference. If someone sees a seemingly i mproper arrest and makes inqui ries , it 's a normal t h i n g . . . The a l l orney had a lso predicted t h at " i f (the arrest i n g o fficer) t el ls t h e trut h , I t h ink we're going t o w i n . I n l er­ ference w i t h an officer i s an easy charge to m a ke a n arresl on, but h e ' l l need evidence . " Even clearing his name before t he l a w , however, d i d not end G ug l i uzza 'S worries. "There have been serious re­ percussions at schOOl , " says t he ad--_ . _ - _._._._......._ .. _ ----

Govern ment Action vi ser. "The princi pal has requesled my invol u n t a ry transfer . He says i t ' s be­ cause o f I he way I operate, meaning on the paper . " Principal Phelan denies t h e transfer request is a result o f Gugliuzza ' s han­ dling o f t he Tech . "Teachers do not have a right to assignment to a partic­ ular school . Any principal can request t h at a teacher be transferred . 1 don ' t really need an explanation . He doesn ' t fit i n l o the harmony o f Ihe group here , " Phelan says. Phelan also says Gugli u zza is a "dis­ ruptive influence in school , " but denies that he is una ble to get along with the adviser . "He doesn ' I get along wi t h me, " I he principal says. "1 get along with 1 60 ot her teachers . "

I

! !

Gugliuzza ' s attor ney disputes Phe­ lan ' s claim to an absolute right to transfer a teacher. " We oppose the transfer , " Zinman says, " because i t is based upon the exercise o f Gugliuzza ' s First Amendment rights a n d nothing more . What [Phelan) is really saying i s , ' J a m I ransferring y o u because you're a controversial figure and I like it quiet . ' . . Gugliuzza filed a grievance over Phelan ' s evaluation and transfer re­ quest with regional supe rintendent Boyce Mosley, and had a hearing in Augu s t . Mosley struck comments from the adviser 's record thai said he is " a negative asset to I he school" and de­ cided not to honor principal Phelan 's transfer request . "I d i d not see su ffi­ cient evidence to substantiate those characterizati on s , " Mosley says. The regional superi n tendenl also changed Gugliuzza 's rat i n g as a teacher from Phel a n ' s "needs improvement" to satisfactory. Gugl iuzza, who wants back last yea r ' s " good " rating, plans to bring his grievance to the next higher level .

1

I J

1

1

And he may have other problems. " You ' re not going to be teaching jour­ nalism next year, " Gugliu zza says Phelan told him. The adviser says h i s principal would n o t comment further, a nd so he senl him a written request for explanation . Phelan ment.

was

unavailable

for com ­

Gugliuzza says he will sue Phelan if t he principa1 removes him as jour­ nalism teacher. but fears t h e process will be time-consuming: " I I might be a whole year before I get to be news­ paper adviser again . " •

Open a Washi ngton bu reau for on ly $118 U ntil now, only commercial newspapers could aHord to s ubscribe to a news s e rvice. Bul a s more and more high sc hool newspapers report national news to their reade rs, there IS now a service that c a n help you r n ewspaper f i nd t h e news that deals w i t h yout h - t h e Stude n t Press Se rvice . Bob Woodward of t h e Washington Post c a l l s SPS

II

a service

t hat has been needed for yea r s and that wi l l provide st udents with information wh ich t hey can get f rom no other newspaper or magaz i ne."

A one-year s u bs c r i pt ion costs $ 1 8 . You receive the SPS News Report every t wo weeks d u r i ng t h e sc hool year, as we l l as special releases when the news can't wa it . The m a t e r i a l can be rep r i nted , but we encou rage you to loca l ize the stories for maximum benefit to you r readers. F i n a l ly, SPS is a Was h i ngton bu reau for you r paper, to help you with stories of you r own . Why not subsc r i be today?

Student Press Service 1033 30th Street NW Washington, DC 2000 7

(202) 965-4037

Fa l l 1 9 79

S P LC Report

39

Li bel

The Supreme Court 's t wo most recent libel rlliings will make it easier for plain/ijfs to win

O pe n Seaso n o n L i bel Defe ndenls W i t h t w o rece n t cases, the Su preme Court has paved the way for more l i bel suits aga i nst t he press by narrow i ng t he defi n i t ion of " public o fficials" and "public fi g u res" for l i bel p u rposes. In Wolston v . Reader 's Digest A sso­

ciation. t he h igh court held t hat an i n ­ dividual does n o t a u t om a t i ca l l y be­ come a public figure because he is i n ­

vol ved in a controversy o f p u blic i n ter­ est . The court m ust look to t he " n a t u re and exten," of t he part ic i pat i o n by t he pla i n t i ff to see i f he has voluntarily be­ come i n volved in order t o i n fluence t h e out come o f t he c o n t roversy. Tn Hutchinson v. Proxmire" t he (;Cu r t held t h a t an individual does n o t become a p u b l i c figure merely beca u se he a c t i vely see k s and receives gcwern ­ ment fu n d s . U n l i ke a private i ndividu a l , a public o fficial or public figure who s ues for li bel i s req u i red t o prove that a j o u rnal ­ ist publ ished false and damaging i n for­ mat ion w i t h actual k no w l edge t h a t i t was false or w i t h perso n a l doubls a s t o

40

SPLC Report

Fa l l 1 979

i t s t r u t h . Private i nd i v id u a ls need o n ly show t h a t t he j o u r n a l is t was neglige n t

i n a l l o w i n g a l i be l o u s fa lsehood t o be prin ted . P u b l ic o fficials i nelude v irtu ally all elected a n d m a n y appo i n t e d gove r n ­ ment o ffice r s . Con gressmen , c i t y cou n ­ ci lmen , superin tende n t s a n d pri n c i pa l s all q u a l i fy as public officia l s . P u b l i c figu res a r e ei t h e r persons o f great fame (e.g. , Jackie Onass i s ) or i n d i v i duals who volun tarily a ss oc i ate themselves w i t h a public cont roversy. Even t ho u gh t he pl a i n t i ff i n Wolston a l l rac t ed considerable med ia a t t e n t ion i n 1 958 when he was c i ted w i t h con­ tempt for fai l i ng t o a ppea r before a grand j u ry i nves t i gat i n g Soviet espi on­ age, t he court declared t h at he was not a public figure. N o t i n g that t he pla i n t i ff had been in­ vo l u n t ar i l y "dragged" i n t o t he espi o n ­ age con t roversy, t he c o u r t held t h a t l i be l defendants must s h o w m o re t han " mere newswort hi ness" to receive t he benefit o f t he public figure rule. --_.__ ...................

The plain t i ff i n Proxmire was a be­ havioral scienti st , R o n ald H u tchi nson, w h o solici t ed more t ha n $500,000 from t he federal government to cond u c t a stu d y of emot io n al beha vi o r . C i t i ng the scien t i st 's st udy of cert a i n behavioral c h aracteri st ics o f mon keys, suc h as a t e n dency to clench t heir jaws u n der s t ress . Se n a t or W i l l i a m P rox ­

m i re presented H u t c h i n s o n w i t h t h e " Golden Fleece" award for o u t rag­ eous and was t e fu l s pend i ng of tax dol l a rs . I n le t t ers and press releases. Pro x m i re charged that H u t c h i nson was m a k i ng a for t u ne at t he expe n se o f t h e American t a x payer . The co u r t fou n d t h at t h e scien t i S I had n o t assumed a n y r o l e o f pro m i ­ nence i n t h e broad issue o f governme n t spendi ng, a n d conseq u e n t ly had n o t i n vited t he degree of p u b l i c a l l e n t i o n necessa ry 1 0 become a public fi g u r e . T h e c o u r t st ressed t h a t P roxm ire co u ld n o t make t he sc ien t ist a p u b l ic figure by d i rec t i n g med i a a t t e n t i o n to t he re­ searc h , I he reby c rea t i n g h i s o w n defense. The cou r t t h us reiterated the cen t r a l p rereq uisite for p u b l i c figure s t a t u s -a volu n t ary associ at ion w i t h a public

cont roversy with t he purpose of i n­ fluenci n g t he resol u t ion of t he i ssues i nvolved . •

--_._._._.._ ..._ _.•.._...--

Libel I OWA

O-for-2 at Beleaguered 'Daily I owan' Newspapers, a s a rul e . do not rel ish bei n g sued . Especially when they l ose. So editors at the U nivers i t y of I o wa ' s Daily Io wan were n o t celebra t i ng J u l y 7 when t hey got word t hey had lost t heir second consecu t i ve J i bel s u i t in fou r mont hs-a dist i nc t i o n t hey might easily h ave l ived w i t hou t . Now $3 ,250 poorer and perhaps j u s t a l i l l ie b i t h umbled, t he Daily Iowan i s goi ng lO s i t back a n d t ry t o figure out w hat went wrong. The campus paper was fi rst sued by' u ni versity law s t udent Bil l M ichelson , w h o c h arged t hat a lel lers-page head­ l i ne la beled him " Bloody Racist . " The hea d l i ne appeared over a n angry let t e r f r o m a Pales t i ni a n Arab crit icizi n g Michelso n ' s pro-Zi o n ist v i e w s o n t he M iddle East (See SPLC R epo rl Vol . I I , N o . 2] . Michelson accused t h e Daily Iowan o f " t h rowi n g in ( i t s ] t w o cen t s " w i t h t he o ffensive epit het ; edi t o r Bill Co nroy says t he phrase wa s a q u ote from a port i o n of t he l e t ler t hat was edi t ed o u t at the last momen t . In January a co u r t held t h a t t he h eadl i ne was i ndeed l i belous, a n d awa rded t he l a w s t udent $ J O p l u � costs . The Daily Iowan d i d n ' t l i k e t h at and appealed . M ichelso n t he n " go t mad and cross appealed , " see k ing greater damages. J udge W i l l i am Eads o f t he J o h ns o n C o u n t y D i s t r i c t Court ruled April 1 0 i n M ichelso n ' s favor, and t h e law st ude n t won $250 plus cost s . A t t orney Da n iel Boyle, w h o repre­ sen ted t he c a m p u s paper, says t he Daily Iowan w i l l not appeal aga i n : "The fac t sit ua t i o n was pre t t y bad - i t was j u st a gross mi s t ake . M i c helson , who says he wanted 1 0 se t a precede n t t h a t cal l i n g a Zionist a racist is li belous per se, feels t here is a lesson in t h i s for t h e Daily Io wan: "The s t udent edi t o rs have just got t o learn 1 0 t one down t he i r style t o some­ t h i ng a l i t tle blande r , because if t hey let t heir personalities i n t o t heir writ ing too .

"

'

freely, t hey'll w i n d up in co urt repeac ­ edly by o ffen d i n g many people . " A seco n d l i bel su i t aga i nst t he !nwan, da t i ng bac k (0 la t e 1 97 5 , was not decided u n t i l J u l y . The paper p u b ­ lished a fe1:tt u re story o n December 1 2; 1 97 5 about a poetry readi n g at The Bou levard R oo m , a local bar . E n t i t led " Erot icism i n many t o n gues , " t h e

st ory said The Bou levard R oom is "-a gay bar" an«;l "best resembles some Tokyo dive. " After. dem a n d i n g and not recei v i ng. a ret ract io n , t he o w ners filed suit .

Owners Gene and Ethyl M adison a nd m anager Tom Fal l o n �o u g h t to re­ cover for damage t o ' t heir rep u t a t i o n a n d pers o n a l h u m i li a t io n s.u f fered a s a resu l t o f. t he fea t ure. A J o h n so n C o u n ­ ty d i s t rict j u d ge. decided J u l y 7 t h at t h e publica t i o n w a s l i belous per quod, o r by i n n uend o . " I n fac t , " said t he j u d ge , " i t was m o re gossip t han journalistic i nvest iga­ t io n . (The aut hor] d i d not state t ha t T h e Bouleva rd Room w a s a place where some ' gay' peo p l e were k n o w n

t o freq uent but couched t he reference in such a man ner as to i m pu t e t h a t t he o n ly i ndivid uals to be fou n d t here were of a ' gay' charac t e r . The d e fende n t s m u st a n swer for negligence . . . . "

But t he j udge said t h e i n n uendo did noc ext end t o m a nager Fal l o n , and awarded damages o f $ I , 500 each t o the t wo Mad isons o n l y . A t t or ney Boyle concedes t hat t he feature was l i bel o u s per Quod but says " I owa case law has always been that t h ere ca n be no award of damages o n a l i bel per q uod wit h o u t . . proo f o f special dam ages. " Boyle h a s fi led pos t ­ j u dgment mot i o n s for a n e w t r ial o n the i ssue. In bot h l i bel cases, t h e Daily Io wan conc�des it has been wro n g , but t he pa­ per does n o t i n tend to t a ke Mi cheJ son ' s advice o f " b lander" copy. A t t o rney Boyle says, t hough , he has " a d v i sed t hem t o c h ec k t h eir fac t s . " A nd w i t h j u s t a h i n t o r i r o n y i n h i s voice, Boyle s ays , "They have been a bit m o re care­ ful in t he past year . ,. Michelson v. The Duily Iowan; Falfvn I'. The Daily Io wan. • .

UTAH

M u c k ra k e r's L a m e n t Unl ike m ost journalists, And rew Welch wants to be brought to court. H e wants to face l ibel charges-and beat t h e m . But his paper's i n surance company, u nwi l l ing to risk a tri.al, has settled oul of cou r t . I n 1 97 6 , Welch , t hen edi t o r o f t h e Uni vers i t y o f U t a h Daily Chronicle and now i n vest igative producer for NBC-affi l iate K RON-TV i n San Fran­ cisco , wrot e a series of news s t o ries about al leged i m propriet ies i nvol v ing

one of U t a h ' s top gu bernatorial a i des. While most of I he state's pro fes­ sional media gave very l i t t l e play to the story, Welch provided lengthy docu­ mentation of t he a ide's alleged cor rup­ tion. The student editor reported t hat W i l ­ l i a m B r u h n h a d i n d i rectly p ro m oted worthless stock t o state em p l o yees, and also revealed t hat B r u h n had been a strong force behind Sl ate and fede ral l y funded mi nority assistance programs t hat were found to be corrupt . The series was o b v iously read-at least by Bru h n ' s employers. They fired t he gu bernatorial aide.

-- ---_ . _ _.

----

Clai m ing t hat his ouster was due solel y t o Welc h ' s m u c k ra k i ng , B r u h n sued the reporter for

$52 m i l l i o n i n

libel damages. Bruh n declared almost im mediately t h a t he would d ro p t he s u i t i f the universi t y ' s i nsurance com­ p an y would agree t o pay h i m an u ndis­ closed su m o f m o n ey . To Welch's s u r ­ prise a n d dismay, i t d i d . A Ch ro n ic le spokesman placed t he settlement figure near $4 ,000 . Why pay? Although Wel ch main­ tains he " t o ld the t ru t h " a n d an i n su r­ ance company a t t orney predicted the reporter would stand a " 7 5 1.0 80 per cent chance" of winning the case in c o u r t , the c o m pany said trying i t would cosl more than $ 1 4 .000 . Nonet heless, Welch denounces

t he

decision to settle and the secret legal m aneuvers that led up to i t : " A ppar­ ently, t ru t h word some

i t doesn ' t mai l e r i f you t ell the here at the u nivers i t y . Lel t he go fo rth t hat an yone who n eeds pocket money should sue the Chronicle-surely the i n surance com­ pany wi l l come up with somet h i ng . " •

Li bel IllI NOIS

Ganging up o n Em batt led 'Daily I l l i n i' The University of I l l i no i s Daily JIIini successfully challenged one l i bel suit last s pri ng onl y to find i t se l f em broiled in a n o t h e r t wo mon t hs l ater. On May 8, I llinois Circ u i t Court J udge C reed Tucker dismissed a suit against the JIIini b y t h e owners of a local dru g store . The newspa per had p u b l is h ed an article A p ri l 20, 1 97 8 , re­ vea l i ng that t h e Bloomington Discount Den , a Chicago-based c h ain w i t h stores in t h e Cham paign-Urbana a r ea , had failed to pass on t o i ts custo mers the m a n u facturer ' s d i scount o n severa l

items .

The article a l so mentioned t h a t anot her chai n drugstore, M c B ride's , ' had " i nconsist a n t pric i ng " on t he same articles in each o f i ts a rea s t ores . According to JIIi ni p u b l i s her R i cha rd Subletle, Ihe store owners "acce p t ed t h e art icle a ffir m ative l y , t h an k ed u s , " and co rrecte d t he i nconsistencies. The owners of t he Discou n t Den ,

e n t erpr i se t h a t pro mi s es to s a v e sub­

sc r i bers mo ney on n ame -brand pro­ ducts such a s television sets a nd au l o ­ m o bi les . Su bscript io n fees s ta r t at $59.95 for a I O- yea r m e m be r s h i p .

however, filed s u it i n Cook Cou n t y i l l i ­ nois Ci rcu i t Coun ask i n g in da m a g es . Paul Bart let l Dard ick com plai ned t h a t t ion h a d been harmed by

for $250,000 and Leonard t h e i r rep u t a ­ t h e al l e ged l y

libel ous a r t icle. Art h u r D. Nico l , a t torney for t h e /IIini, successfully obtai ned a ch a n ge o f venue from Cook Cou nty, w h ich e n ­ compasses t he Chicago area, t o Cham­ naign . There, J u dge Tucker r u led that " Dardick and Bart le l l are not s u ffi­ cien c l y ident i fied" by the art icle t h at their rep u t a t ions cou l d ha v e been harmed by it . " He al so ruled t h a t " I her e i s no l i bel per s e a n d . . . t here a re i nsu f f i ci e n t a l l egat io n s t o support the charge of m al ic e and fa lsi t y . " No soo ner had t h e JIIini c lea r ed its n a m e than it fo u n d i t sel f in a n ot her su i t . The Keyton Co rp o rat ion o f C ra n ­ b u r y , New J ersey, filed a si x-cou n t , $ 1 00,000 l i bel s u i t in I l l i nois C i rc u i t Cou rt after a M a rch 9 art i c l e b y L i n da Tu fano quest ioned ma n y of t he com­ pany's busi ness pract ices. The KeYlOn Corporation i s t he pa r ­ e n t company of t h e Bu y i n g Service, an

42

S P LC R epo rt

Fa l l 1 9 79

No sooner had the l I I i n i cleared its name than it fou n d itse lf in another suit this time for $1 00,000 i n libel damag es. But publisher Sublette stands by his story: " We won ' t prin t a retraction u nl ess we have the facts."

Tu fa no's artic le q u o t es a state i nvesti­ gator as saying the c o m p a n y is wal k i n g "a fi n e line bet ween what's i l legal and w h a t 's u n e t h i ca l , I I a n d asser t s t hat the company may be mi s r ep re s e n t in g itse l f in its ad v e rt is ing . T h e s t ory also says ( hat t he K eyton

Corporal ion once operated t he Mo­ der n Gu i de t o Buyi n g , a c o m p a n y con ­ victed i n Septem ber 1 97 8 o f m isrepre­ se n t i n g its sery ice s to c l i en t s . The co m p a n y has since left t he Champaign a rea . The J u l y 23 suit by Keyton and i t s C h a m p a i g n r e p re s e n t a t i v e , G reg Evans, ch a r g ed t hat t he !/Iini a n i cl e I I

was " false, l i belous , and d e fam at o r y . I t a l so c h arges t hat t he s t udent pa pe r

refused to p r i n t a ret raction " when c o n fro n ted wi t h i t s i n accuracies . " B u t S u blet t e res po n d s I h at " I s t a nd by t h e story. A lot of research w e nt i n ­ t o i t , a n d t here were n ' t v e r y many i n ac­ cu racies . " He �ays t hal h e rec h ec k ed t he fa cts in Tufano 's story a fl er t h e laws u i t was filed , a n d s ( i l l could fi n d not h i n g " false o r d e fa m a t ory. " S u b l e t t e con t e n d s t h a t ( h e onl y con­ tact Key l on m ad e wi t h h i m was in a let­ ter A pr i l 9 by W i l l i a m F. Sch w e r , a Bl ue Springs , M i ssou r i . l awyer . The let t e r . S u b let t e says , con t a i ned no i n ­ fo r m a t i o n oth e r I h a n ( h e allega t i o n t h a t Tufano's story was libelous. S u b let t e wrote Schwer soon a fler, a s k i n g him ( 0 sup p l y docu m e n t a t ion of his charges . " We w o n ' t pri n t a re t rac­ ( ion u n less we have t he fac t s , " he says. Schwer never responded to Sublet I e 's lel l e r . No h earing d a t es h a ve y e t been set . .. -----

---- ----_._-

'1

.. Why

Administrators Are Not the ' Publisher

by Forrest Claypoo l When H ayfield H igh School editors La uren Boyd and Gina Gambino aUempted to pu bl i s h an article in (heir school newspa per entitled . "Sexually Act ive Students Fail To Use Birth Control , " school o fficials told them t he story violated a school policy proh ibiting distri b u t ion of birth control i n format ion . The s t udents were given the choice of pu blishing t h e ar足 t icle w i t h the "objectionable" passages censored-or not running t he story a t a U . They removed i t . But after a n unsuccessful appeal t o the Fai r fax County (V irgin ia) school board, the two edi tors fi led suil i n U . S . District Court. charging t h e board wi t h v i o lation o f t heir ------- ---_._---------

First Amendment rights. School o fficials defended on the ground that the student newspaper was an educational tool - a part of t h e cu rricul um-and there fore under the administration 's contro l . They argued that the school was like a private pu blisher, with full rights (0 con t rol con t ent . J u dge Albert V. Brya n , in a decision later upheld by the U.S. Court o f A ppeals for the Fou r t h C i rcui t , ruled in favor o f the students, holding t hat the school's censorship violated First Amendment guarantees. Why was the school's position rejected? Is not a school pu blication -created , sponsored and funded by school au足 t horities-subject to administrative control of conten t , just a s a commerci al newspaper i s subject t o the d ictates o f i ts publisher? I

Fal l 1 979

::-= -:--: =--= : :---

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SPLC Report

43

of freedom o f expression for studen ts . [ n Tinker v. Des Moines Independent Community School Distriel. ' t he

Forum Theory The a nswe r , accordi n g t o the clear weight of authority, i s Ito. U n l i ke private publishers, public schools are arms of the state and there fore bou nd by t he Constitutio n . Courts addressing the issue have u nanimously held that school ad­ minist rat ors may not control the content of student news­ papers merely because the pape rs are created and funded by the schoo l . This is so even t hough t hey are written by journalism students for academic credit and are produced on school property w i t h school fac i lities. The rationale for Judge Brya n ' s decisio n , as well as the ot her cases prohibi t i n g censorsh i p of the student press, i s a legal concept k nown as the " forum t heory . " The for u m t heory stands for t h e principle t h at once t h e government establishes a " forum " for pu b l i c expression of views, i t m a y not censor speech tak ing place w i t h i n t hat for u m .

landmark case that extended First Amendment rights to students attending public schools, the cou r t repeated that " t he vigilant protection of const i t u tional freed oms is no­ where more vital than in the com m u n i t y of American school s . " Since Tinker, courts have grad ually accepted t he idea t hat a student newspaper is a " pu b l ic foru m " en t i t led to fu l l First Amendment protect ion . Cou rts have recognized student papers as fo rums whenever t hey consist of some­ t hing more than "a mere activity t i me and place sheet . " 6 More spec i fica lly, a st uden t newspaper must b e : ( I ) open t o news, st udent ed itoria l s , or \etters to t he editor and (2) distributed among the student bod y or community. V i r ­ t ually a l l student news papers q uali f y a s foru m s .

Censorship Once a forum for studen t expression is established, schoo l authorit ies may not censor speech t hat i s protected u nder the Fi rst Ame ndmen t . In A nlonne'ti v. Hammond, ' for i nstance . t he cou r t held uncons t itu tional a u n i versity policy req u i r i ng t hat student articles be submi tt ed to school adm i nist rators before publica t ion . Declaring that " t he state i s not necessarily the u n restrained master o f everyt hing i t creates and fosters, " t h e cou rt e m ph asized t hat an educa t io n al institution ' s power to control curricu­ lum does not t ra n s late into a power to control the student press : We are well beyond t he belie f that any man ner of state

For exa mple , i f a c i t y a llows p l a y s , speeches a n d meet­ ings at a civic auditorium , t hen that auditor i u m is a pu b l i c foru m , and t he c i t y i s acting u nconsti t u t io n a l l y i f i t at­ tempts to prohibit a speaker on homosexual rig hts from addressing an aud ience t here. 2 The Supreme Court has consistently held t hat any state regulation o f an established forum must not discriminate against i ndi viduals because of t he v i ew s t h ey see k (0 ex­ press. [n stri k i ng down a city ord i n ance t h a t allowed only certa in types o f picket i ng near sc hools, the court held t hat : Once a for u m is opened up to assem bly or speaking b y some groups , government m a y not prohibit others from asse m b ling o r speaking on the basis o f what t h e y i mend to s a y . . ' , Government may not g r a n t t h e use of a forum to peo ple whose views it fi nds acceptable, but deny use to those wishing t o express less favored

or more controversial views . J [n

Southeastern Promo/ions

v.

Conrad. ' ( he co u r t ap­

plied the same ra t ionale i n reversing a cit y boa rd's decision t o prohibit staging of the rock-musical " Ha i r " at the m u ­ nicipal auditorium. The board h a d based i t s decis i o n on the provocative, a lleged ly lewd nat ure of t he show . Noting t he public nat ure o f t he audito rium , the Cou rt conchlded t h at " t he danger of censorsh i p a nd abridgement o f our precious First Amendment freedoms is too great where o f­ ficials have unbridled discretion over a forum ' s use . " The Su preme Court has also recognized t he importance ,-----,--::-....,. .-,

44

SPLC R e port

.. --,,-. -.-.

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Fal l 1 9 79

_

regulation is permi ssible simply because i t i nvolves an activity which is pan o f t he u n i versity st ructure and is financed wi t h fu n ds controlled by the adm i nistra t io n . . . . The creation o f t h e fo rum does not g i ve b i r t h also to t h e power to m o l d its substance . . . . Having fostered a ca m pus newspaper, t he state may not im­ pose arbitrary restrictions on the m atter to be comm u ­ nicate d . • A similar attempt by the Universit y o f Mississi ppi t o censor a student magazine was prohi bi t ed by t he cou r t i n Bazaar v . Fo r/ une . ' The pu blication contai ned profa n i ty and a discu ssi o n of i n terraci a l love . Rejecting t he u niversi­ ty's argument t h at it was the " pu blisher " of the magaz i n e , t he court sai d : There i s a more basic reason w h y the Universi l Y can­ not be accorded the omnipotent position i t seeks. The University here is clearly an arm of t he state and this si ngle fact will a l ways dist inguis h it from t h e purely private publisher as far as censorship rights are con­ cer n ed . It seems a wel l-esta blis hed rule t hat o nce a u ni versity recognizes a student act ivity wh ich has ele­ ments of free expression, i t can act to censor t h a t ex­ pression only if i t acts consisten t with First A mend­ ment constitut ional guara n tees. , 0 Other cases have u pheld t h e righ t s o f h igh school edit ors to publi s h ads condemning the V i e t nam War , " articles de­ tailing met h od s of birth co n t rol , ' 2 and s tories co n t ai ning pro fan i ty . " [ n add ition, cour t s have u pheld the rights o f col lege edi t o rs to p u b l i s h a four-letter reference t o the u n i ­ vers i t y presid ent , " a ph otograph o f a burn i n g American flag , " an edi t orial favori n g con t i n ued racial segrega t ion o f a u n i vers i l Y, ' · adver t isem e n t s about race rela t i ons, u n ioni­ za t ion and t h e V i e t n a m War , " and cri t icism o f t he gover · nor and st ate legislature . I I

. ...._.__._. _--------.._-_. _--- ----

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The forum t h eory does n o t provide a lice nse , however, for student journalists to print anything they wish . Al­ though censorship o f most student expression i s const i t u­ tiona l ly forbidden, t h e S u preme Court has defined a na r ­

row class of cases in which school officials may censor the student press. In Tinker, t h e same case in which t he high co urt recognized First Amendment protections for pub lic school st udents, the cou r t i n d icated t hat censorshi p would be permi tted if the student expression wou ld " materially dis rupt dasswork or involve substantial disorder or i n va­ sion of the rights o f others . " I llustrative is the case o f Speake v . Gran tham , " i n which students at Sou thern Mississippi Uni versity were sus­ pended for distributing leaflets falsely an nouncing that t wo days o f classes had been cancelled . I n u p h ol din g the suspensions , the court said " i t is obvious that where there is actual or po tentially disruptive conduct . . . reasonable action b y school authorit ies is consti tutionally permitted . " As t h e court was q uick t o point o u t , however , "mere fear and apprehension of possi b l e disturbance" is nol s u f­ ficient to perm i t censors h i p . In each case, t here must be a

Four courts, however, i nc lud i ng the U . S . Cou n o f Ap­ peals for the Se venth Ci rcuit, have held that prior review of student publica t ions is a violation o f t he First Amend· ment . )< Moreover, even the federal circuits that have i ndi­ cated support for prior r ev i ew h ave said i t is o n ly permis­ sible under narrow guidelines which spell out in speci fic and u nderstandable terms what constitutes l ibel and ob· sce ni t y . To date, nOl a s i n g le set of guidelines has passed co n s l i t u t i onal muster, and no court has ever upheld the prior restraint of a st uden t publication o n the grounds that it was libelous or obscene. O f course, the fact t hat a school publication is a for um does not preven t school o fficials from regulating the t ime place and m anner of dist ribution- provided such regula­ ,

tion is rea sonable and does not hinder e ffect ive expression of student view s . For example, distribut ing newspapers during class could be proh i b i ted beca use o f the comm otion i t w o u l d likely creale. But adminis trators could not stop distri bu tion at points away from classrooms. "

valid demonst ration that t he ex pression will likely produce a substantial d i s rup t io n . O t herwise, i t may not be pro­ hibited . The courts have also held t hat libelous o r obscene ex pre­ ssion is not protected by the First Amendme n t . Bu t does it necessarily follow that school ad m i ni s t rators may censor suc h ex pressi on prior to pu bli cation and prohibit distribu­ tion? Or may t hey only punish students after t h e li belous or obscene material is prin ted and dist ributed ? That remains u nclea r . d u e to a conflict among federal circuit courts But forum t heory analysis suggests that school a u t horities do not have t he power to prohi bi t publ i ­ cat ion and di str i but ion o f st udent expression because o f its libelous or obscene content. .

The Su preme Court has held that t h e First Amendmen t ' s primary purpose is t h e prevention o f prior restraints o n speech and press . I n Nea r v . Minnesola, l O t he court st ruck dow n a statute allowing su ppression of l i belous newspa­ pers before publicat i o n . The high court ruled that prio r re­ strai n t could only be j u s t i fied u nder extraordinary circum­ stances, citing as an ex am pl e the wartime restraint u pon publica tion o f t roop movemen t s . The possibility o f l i bel was not considered su fficiently extraordinary to j usti fy pr io r restra i n t .

A recent court decision i nust rates t h e co urts' con t i nued appl ication of the Near rat ional e . In Decker v. Lost Mini Fleet Group, : ' a New York court h eld t h a t , although an i n ­ d i v idual m a y b e sued for money dam ages afler publication of libel, he may n ot be p rohi b i ted from disse m i nating the libelous remarks . I n fact , t he court held that a prior re­ straint on publica tion would be un co n s t i tut io nal even if a publisher admit ted t h e falsity of h i s statements and his in­ tent to libe l . I n declaring i llegal every case o f prior rest rai nt that has come be fore i t , t h e Su preme Court has r epeat ed l y held th at " p rior restraints o n speech and publications are t h e most serious and least tolerable i n fringement o n First Amend­ ment rights . " " Despite this strong language by t h e nation ' s highest cou rt , at least two federal courts o f appeals have suggested that schools may exercise " prior review" of st udent publi­ ca tions and delete copy t h at i s l i belous or obscene. 1j Prior review-a form o f prior restra i n t-al lows adm i ni s t rators to review st udent copy be fore its pu blicatio n .

WithdJ'3wal of Financial Support O n ce a stude nt publication is established as a fo rum , school o f fi cia l s may not cut o ff funds merely because t hey find the content of the paper objectio nable . l• In Joyner v. Whiting, 1 7 t he president of a p redominant ly black universi· ty revo k ed fu n d i n g for the college newspaper because of the publication ' s advocacy o f racial segregat i o n . Holding t he action u nlaw ful, the court said : Censorship of co n sti tu tionally protected ex pression cannot be i mposed at a college or u n ive rsit y by sus­ pendi ng edi tors of studen t newspapers, suppressing circulation, requ iring imprimatur of controvers i a l ar­ ticles , excising repugnant material , withdrawin g fi­ nancial support, or asserting any other form of cen­ sors h i p based on an institu tion ' s power of t he purse . "

Dismissal o f Editors lind Staffers If t h e student publication is a foru m , t hen school o ffi­ c ials may not remove editors or reporters because of the editorial content of their articles. " I n Dickey v. A la­ bama, JO a fed e ra l cou rt ordered the readmi ssion of a co l ­ lege editor a fter he was suspended for i n for m i ng his read­ ers of the college's censorship of an editori al . Rejecti ng the admi nistratio n ' s order t o run a st ory about North Carolina hunting dogs i n p l ace of co mmentary critical of t he gover-

Fal 1 1 979

SPLC Report

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Forum Theory nor and legisla l u re, Dickey published a blank column wilh the work " Censore d " em b lazoned across the top . The coun d ismissed I he uni versity's argument that Dickey ' s readmission would jeopardize school disci p line and said: A stale cannot force a college student 10 for feit his constitut ionally protected rig ht o f freedom of expres­ sion as a condition to h is attending a state-supported i nsti t ut io n . . . . The defendants i n t h is case cannot punish Gary Clinto n Dickey for his exercise of t h is constitutional l y guaranteed right by cloakin g his ex­ pulsion or suspension in Ihe robe of " i nsubordina­ ti on. " J Courts have also reinstated s t u dent editors suspended fo r ignoring ad ministrative orders to submit copy for prior approval, " for publishing a lett er to the editor conlaining a profane reference to the univers ity preside nt , JI and for publishing a newspaper conlaining faulty grammar and spelling. , .

No theory o f l a w suggests that any duty sh ould arise when an indi vidual is legally not permitted to prevent libel . Th is is even more realistic in light of I he realiza­ tion t h at the school s u bj ec l s itse l f to liabilit y [under ( he Civil Righls Act) to st udents when il u nconstitu­ tionally acts to restrain publical ion . . . . It is also a fu ndameOlal element of lorl law that one who owes a duty and a Sla ndard of care must also have a right 1 0 mai nlain t hat standard . I f one is neil her i n a legal nor practical posit ion to fu l fi l l I he d u t y . no s u ch d u t y can reasona b l y be i m posed . 1 6

Right

o r Access

A necessary corollary to the forum theory is a ri gh t of access 10 the student p re ss by individuals other than t h e newspaper's editors and sla ffers. The same legal principles that prevenl adm i nislrative censo rs h i p of student articles would seem 10 mandate equal access to the student news­ paper by i n d ividuals with compeling ideas, at least in t h e form of paid advertisements o r perhaps an nouncemen ts and let ters 10 the ed itor. Al though COUrlS have clearly held that school adm inis­ I rators may not prevent equal access to the stud ent press, i t rem ai ns unsettled whether sludent edi tors h a v e an affirm a­ l ive dUly to accept advertisements or letters. S l udent news­ papers should logica l ly be conduits for competing view­ points . Co nseq uently , some restrictions on the power o f st udent edi l o rs to refuse ed itorial advertising and let ters t o the editor would seem to be i m posed b y I he free speech doctri n e . As expressed by t he Fourth Circuil Coun of Ap­ peals : A college newspaper's freedom from censors h i p does not necessarily imply that its faci lities are the edil or's private domain. When a college paper receives s u bsidy from t he state, there are strong arguments for insisting that its colu m n s be open to expression o f contrary views a n d that its pu b lication enhance, nOI i n hibi t , free speech . "

Liabilily Since schools are not publishers, and under I he for u m theory may n o t censor non-disru p l i ve sl ude nl ex pres s ion , who is responsi b le in t h e event a student article is libelous or obscene? One theory , o f course. ho lds I h a l the school is publisher and hence responsible for any l i be l . This view has some support , including a legal opi n ion issued by the auorney general of Oregon . " However, not a single reported case has been handed down in su p po r t of such a view . More­ over, in ligh t of I he fo r u m I heory and I h e l i n e of cases cor­ rec l l y applying its rat ionale. it would seem I h at no liabili t y could be im posed. si nce schools are not empowered 1 0 ce n ­ sor student pub licat ions. Nonetheless. in those circu i t s where courts have held prior review of student publications permissi ble u nder nar­ row guideli nes , school systems and a d v isors might be sub­ ject to libel suits, since t hey would t h eoretical ly maintain the power 1 0 control libelous con t ent . However, liabi lity wou ld more reasonably seem to rest solely with the student aUl hors and editors. Based on sound First Amendmenl and IOTt law principles. educa­ l ional institutions should not be s u bjeci to liabi lilY for de fa ­ mation. As summarized by one stu dent press l a w scholar:

46

SPLC Report

Fa ll 1 9 7 9

Of course, some discretion musl b e vested in school editors because of t he li mi l e d space available for news and commentary. But forum theory analysis suggests thai rea­ sonable access 10 sl udent newspapers i s a const i t utional re­ qu iremen t . I t should b e noted that t he right o f access to stude nt newspapers i s i n applicable to the commercial press. Be­ cause commercial newspapers are privately owned and operated . their rejection of outside com menl ary does nOI violate the First AmendmeOl -which proh ibi ts o n ly the government from stifling the free dissem i n ation of ide as . Jt However, in both the educat ional and commercial set­ ting, responsible journalism would seem to r equi re a liber­ al pol icy of accepting alternate views I hro ugh guest editor­ ials. lel l ers to the edi tor or paid adverti sing. I t is particu­ larly important for students . as cit izens and fu tu re leaders , 1 0 have access to a free forum for the exchange of ideas and o p i n ions. The Supreme Court recogn ized as early as 1 943 the signi­ ficance o f t h i s free flow of st udenl expression I hat the for­ u m t heory makes possi ble. Referring to t h e role of schools i n a free society. the court emphasized: "That t hey are educat ing I h e young for citizenship is reason for scrupu­ lous prolection o f Consl i t u tional freedoms of the individ­ ual , i f we are not 10 st rangle the free mind al ils source and teac h you t h (0 d iscount i m portanl principles o f o u r gov­ • ernment as mere plati tudes. , , , .

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Footnotes

Read All About It !

I . Gambino v. Fa i r fax CounlY School Board, 4 29 F . Supp. 7 3 1 , a/I'd 564 F.2d 1 57 (4(h Cir. 1 977). 2. Alaska Gay Coalilion v. Sullivan, :I MEl). L. REP. 2297. :I . Police Depart menl of Ihe Cily o f Chicago v. Mosley. 408 U .S . 92, 95 ( 1 975). 4 . 420 U . S . 546 ( 1 975). 5 . 393 U.S. 503 ( 1 969) . 6. Zucker v . P a n i l z , 299 F. Supp. 1 02 (S . D . N . V . 1 969). 7 . 308 F . Supp. 1 329 ( 0_ Mass. 1 970). 8. !d. al 1 3 37 . 9 . 476 F.2d 570 ( 5 1 h Cir . 1 97 3 ) , modified 4 89 F.2d 225 ( 1 97 3 ) . 10. {d. a t 574 . 1 I . Zucker v. Panilz, supra , n . 6 . 1 2 . Bayer v . K inzler, 383 F . Supp. 1 1 64 (E.D.N. Y . 1 974), a/I'd S I S F.2d 504 (2nd Ci r . 1 975) ; Ga m b i no v . Fai r fax Cou n t y Sc h oo l Board , supra n . l . 1 3 . K o ppe l l v. Levine, 347 F. Supp. 456 (E. D . N . V . 1 972). 14. Thonen v . Jenkins, 49 1 F.2d 722 (4t h Cir. 1 97 3) . 1 5 . Korn v . Elkins, 3 1 7 F . Supp. 1 38 ( D . M d . 1 970). 1 6 . Joyner v. W h i l i ng , 477 F . 2 d 456 (41 h Cir. 1 97 3 ) . 1 7 . Lee v . Board o f Rege n t s , 306 F. S u p p . 1 097 ( W . D . Wis. 1 969), l(fj'd 44 I F . 2d 1 2 57 (7 t h C i L I 97 1 ) . 1 8 . D i ck e y v. A la ba m a , 273 F. Supp. 6 1 3 ( M . D . Al a . 1 967 ), dismissed (IS moOi sub nom. Troy S t al e U n i ver�ity v . Dickey, 402 F . 2d 5 1 5 ( 5 1 h Ci r . 1 968). 1 9 . 3 1 7 F. Supp. 1 25 3 (S. D. M i s s . ( 970). a/I'd 440 F.2d 1 35 1 ( 5 1 h C i r . 1 97 I ) (per curiam). 20. 283 U .S . 697 ( 1 93 1 ) . 2 1 . 4 M E D . L. R E P . 1 828 ( N . V . Su p. CI . 1 97 8 ) . 22. Nebraska Press Association v. S r ua rt . 427 U . S . 539, 5 5 9 ( 1 976). 2:1 . Sha nley v. NOr! heast I ndependen I School Disl rict . 462 F . ld 960 (5t h Cir. 1 972); N i t zberg v . P a r k s , 525 F . 2d 378 (4 1 h e i r. 1 97 5 ) . 24 . Fujishima v . Board of Educa t i o n , 460 F . 2d 1 3 55 ( 7 l h Cir. 1 97 2 ) ; Ant o ne l l i v . Ham m o nd , supra , n . 7 ; Po xo n v . Board of Education, 341 F. S u pp. 256 (E. D. Cal . 1 97 1 ); Bright v . Los Angeles School D i s t r ie l , 1 8 Cal . 3d 450 ( 1 976). 25. Trager, Roben and Dickerson, Do nna , College Student Press Law. Urba n a . I I I . : E R I C Cleari nghouse o n Reading and Communication S k i l ls ( 1 976), 7 . 26. J oyner v . W h i t i n g , supra n . 1 6; Korn v . Elkins, !iUpra n . 1 5 ; Antonelli v. H ammond. supra n . 7 . 2 7 . Sl/pra. n . 1 6 . 28. {d. at 460. 29. Dickey v . Alaba m a , supra n . 1 8 ; Truj i l l o v . Love. 322 F . S u p p . 1 266 ( 1 97 1 ) ; Sch i ff v . Wil liams . 5 1 9 F . 2d 257 ( 5 1 h C i r . 1 97 5). 30. Supra, n . 1 8 . 3 1 . Supra al 6 1 8 . 32 . Tr uji l l o v . Love, slIpra . n . 29 . 3 3 . T h o n en v . Jenkins. supra. n . 1 4. 34 . Sch i ff v. W i l liams. supra , n . 2 9 . 3 5 . Opinion n O . 7630. 36. Fager, Chris. Ow nership ilnd Con l rol o f the St uden l Press: A Firsl Amendment A nalysis, ( u n pu blished t real i�e). 38-39. 3 7 . Joyner v . Whi t ing , Slipra. n . 1 6 , at 462. 38. M i a m i H erald v. Tor n i l lo . 4 1 8 U . S. 24 I ( 1 974 ) . 3 9 . West V i rgi nia S t a l e Boa rd o f Education v . Barnel le, 3 1 9 U . S . 624, 637 ( 1 94 3 ) .

Publ ished on ce each win l e r. sp ring and fa l l . SPLC Report i s an i nval uable resource for s l udent jou rnal ists and faculty advisers_ Detai led summa ries of con f l icts over student press rights. Clea r-headed l egal analyses of major issues. H ig h l i g h t s of courl and legislat ive action. And i n t eres l i ng fea t u res a nd commentaries. You r subsc r i p l ion p r i c e of $5.00 for student s . $ 1 0 .00 fo r non·s t udents . w i l l help us cont inue to serve as the nat ional F i rst Amendment advocate for stude n t s . Ot h e r cont ribu t ions are tax· deductable.

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(please pl1nl) _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ ____ _. _ _ .

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_

.

.

.

. _ _

_ _ _ _ ..

_

.

o I wish

10 suppo r l I h e wor k of t h e SPLC wi t h a con t r i bution i n I h e fol lowi ng amou n t :

SPLC is i nte rested i n the l i t l es o r posit ions of its i nd ividual subsc ribers:

Fa l l 1979

S P LC

Relport

41

Noteworthy MINN ESOTA

J u dgme n t Day fo r 'M i n n. Dai ly'

DAILY - --.. ." .... . -

SPEAKS !

At first glance you 'd ( h i n k t h e U ni ­ v e r s i t y o f Mi nnesota ' s Minnesota Daily h ad p u lled o f f t he bi ggest scoop in t he h istory of j ournalism . B u t an i n terview with Jesus Christ is hard to come by, so t h e Daily went wi t h the nex t - best t h i ng-a fict icious conversa­ t i o n wi t h t h e Lord in i t s a n n u al lam­ poon edi t i o n . N o w it seems a s i f t he ent ire state of Min nesota is steaming mad . Religious leaders , s t u dents, admin istrators, fa­ c u l t y mem bers , regents a n d even Gov· ernor Al Quie are d et ermi ned to p u nish t he Daily for what Quie calls its " v u l­ gar a n d i ns u l t i ng ' h umor issue . ' , . The q u es t i on -and-answer sess i o n wi t h t he A lmighty-billed u nder a ban ­ ner headli ne procl a i m i n g , " CH R IST SPEAKS ! " -was nOI t h e only j o ke t hat t u r ned sour i n t h e m o u t hs o f m an y Daily readers.

p.19

Nuclear t rash dis posal just a swallow awa y ..

" fall on as

m any

*

p. 5

*

1

' I Got N ailed ' : a t rue-life crucifixion (next week) *

*

..

Di sco sca ndal exposed! p_ 1 2

Loosely modeled on National En ­ quirer , t he 4Q-page ed i t i on also i n ­

cl uded ed i t orials urging t hat

- .. - .. ..... ...�

...

Skylab

*

*

Keith Richard finds rock-a nd­ rol l altern a t ive :

people as possible­

preferably on the poor and ignora n t " and ad voca t i n g a reins t a t ement o f t h e

G od

d ra ft "to keep Old G l ory flying . " In a dd i t i o n , t he joke issue fea t u red

p.20

insulting col u m n s about student gov­ ernment leaders, comic st rips

wilh pro­

fa nit y , and a p h o t o essay depic t i ng a coed ' s

sed uction

of

p r o fessor. Why? A

her

psyc h ol ogy

Daily spokesman

sa id t he lampoon was i n tended to help

H orror o n t h e

t he cam pus " b l o w o ff stea m " d u ri ng fi nals week .

M all l

o u t . Governor t i sed

Q u ie

All this and

p.8

That 's not exac t l y t he way i t tu rned personally chas­

MORE

I!!

Daily editor Kate Stan ley for t h e

pran k . sayi ng i t was " n o t regarded a s

o f t heir tax money goes 1 0 su pport the

amusing b y m a n y M i n neso t a n s who

Daily. Eight y perc e n t o f t he paper's

s h a red t he i r t h ough t s wi t h m e . " T h e

revenues come from a d vertisem e nl s .

h u m o r issue,

Qu i e

sai d , wen t " we l l be­

set t han governor Q u i e . Abo u t

70 de­

m onstrators from the M i nneapolis-SI . Pau l with

The governor also sugge s t ed t h a t t h e

Cat h o l ic placards

com m u n i t y saying

" Si c k

marched H u mor

yond Ihe l i m i t s of sat ire . "

u n i versity fi n d so m e o t he r veh icle for

Should Be Pi t ied . N ot Tolera ted " and

To console o f fended M i n neso t a n s , t h e governor sent t h e m a p ri n ted le t t e r

i t s o fficial not ices and t h a t s t udent sub­ scri p t ions be made voluntary. A t pre­

deplored

sen t i ment . . .

is

labeling t he issue " disgust i ng , " "de­

sen t , t h e a n n u a l s u bscri p t i o n price

grad i ng , " "o ffensive , " and a " regre t ­

deducted from each studen t 's activi ty

t a ble display o f poor t as t e . "

fee .

Qu i e

also

assured t h e l e t t e r ' s recipients t h at none

48

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SPLC Report

._

... ..._-_.

-....". .,-..,

Fal l 1 9 79

" Fi l t h I s N o t News . " t he

The p rotest ers

Daily 's " a n t i-Christ ian

The Catholic Bulle/in . o fficial n ews­

letter o f t he t w i n c i t ies ' Roman Cat h ­ o l i c A rchdiocese, wrote J u n e I I t h at

Rel igious leaders are even more up.

--_

. . .......

.. .......

-----

Noteworthy t he paper was " t h e l a t est and worst ex­

j ou r nali s t i c

ample

of

belch

forth "

from

excrement t he

to

Minnesota

Daily . Then t he Board o f Regents got i n t o t h e ac t . " W e fee l t h a t i t is i n e x t re m ely

poor tas t e and is i nco n s iste n t wi t h t he h i g h pri nciples . . . establ ished for t h e

u n i vers i t y , "

reso lved .

t hey

" In

the

n a m e o f common sense a n d dece n cy , we have t he res po nsi bi l i t y as c i t izens and members of t h is Board to assert ou rsel ves that t h is i s not righ t . " Beyo nd making resolut ions,

how­

ever, t h e board has no plans to act on t h e Daily 's co n t roversial ed i t io n . board

subco m m i t t ee

A ugus t 6 that no

A

rec o m m ended

ch anges be made in

t h e Daily 's st udent fu nding mec h a n ­ is m . T h e fu ll bo ar d voted 9-3 t o accep t the reco m mendation on A u gu s t 9 .

NORTH CAROLINA

T w o more antagonists su rfaced t o a t tac k t h e Daily 's

j oke

T ry, Try

i s s u e . So m e

ou t raged studen t s formed an ad hoc A n t i - De fa m a t i o n

C o m m i t t ee ,

and

Aga i n

s t a t e senator J erome Hughes proposed

a re-eva l u at i on of t he paper's rel a t i o n ­

s h i p w i l h t h e u n ivers i t y. But Hug hes, who is chairman of t h e

Ed ucal io n

Se nate

Comm i t tee,

soon

A l lorney H ugh Beard J r . o f h ario( ( c , North Carol i n a , . ee m �

came u nder si m i lar scr u t i n y h i m sel f . A

J u n e 1 9 m e mo ra nd u m from t he M i n­ Civil

n es ota

Li berties

Union

cal l s

Hughes ' r h eto r i c " a n effo rt t o ce nsor

t h e content of fu t ure

i ssu es of t h e

Daily. " M C LU representat ives said the sen­ ate " h as no busi ness exam i ni ng t he co n t e n t o f a st udent newspaper . " add­ ing that "censors hip by an y branch of government . . . is i n s u l t i n g t o t he First Amend m e n t o f t he U . S. Co n s t i t u t i on and t o t he basic rig h t s o f the c i t i zens o f t his stat e , " A few others defended t h e Minne­ sota Daily over the loud O bjections o f m uch

of the

u n iversi t y

c o m m u n i ty .

The M i n n esota Press C l ub and t h e u n i­ versi t y ' s Sc hool of J ou rnalism bo t h is­ s ued s t rong stateme n t s o f su pport for t h e embatt led pa pe r . And Guild "You

t he

i s s u ed

k now

Twin a

C i l ies

Newspaper

n ot -so - s ubt le

t hrea t :

h o w fast we' d ru n to t h e

courthouse i f any go v e r n m e n ta l agency

t r ied to res t rict the Minnesota Daily , " As

it

looks

now,

wi t h

the

crisis

begi n n i ng t o recede, both t he court­ house and t he Daily 's ene m i es w i l l spared .

be •

10 be

a

I rong n r po nen!

al - fir�t -you-don ' 1 -. uccced

f [ h e i r­ philo­

sophy. H t i s represen t i n g a :>maU gro up o f t uden t -aga i n - i n a 'las!i-aC l i o n u i l challengi n g I he r i g.h t of t h e U n i ver i l y of North aro l i na ' . Daily Tar Heel t o usc fu nd a k en from mand a t o r y t u ­ d en t act i i l Y fce . The o u n g al l or ney broug h l an un lIcee. fu l . U i l agai n s t I he Tar

1-1 l over l he ame i ue in 1 97 2 , nne year a fler grad uat i n g from t he u n i cr i l Y law school . " I have a per. anal . l a k e in l hl.: C �c-in l he �eme l h al I was orpo. ed LO c o m ­ p u l sory ri n tl nc i ng o f t he paper when I w� al I l h e u n i versit y } . " a

s

Beard .

H i !> c l i e n t . J a ' a n d R i c h a r d K a n i a n d M i ch ael Morri , a r e a l l c u rren t s t udcn l � a( t he u nivcr i l Y . They a re c h al l engi n g t h e Tar Heel 's u. e of m a n daI ry fec. ns il r t h e F i r � 1 and Fo u r ­ i o l a l ion teen L h A m end m e n l : . aming Iht u niversi t y ' . govern i n o ffidal� 3 !> defc-n dan!. r he [ Inee . t udcnt � \cck

_. .._.. .... _. . ._ ._..__. .. . . . --- --.-. - . ---..---..------..-.- .•. .-.. -

an

end I t he rracl ice, l h e ret u rn f p reviously collccled l uden t fees , and ourl co. r The Daily Tar He I received m o rc l h a n $50, 000 from � uch fee� d u r i ng I he •

1 97 -79 chool year . A t t orney Beard c o n l e n ds thaI L he Tar Heel i an agency o f the � [ a t c and say i L i ' i l legal fo r a . t a l e 1 0 com pel a n y i nd i v i d u a l t o 11 nant�c viewpo i n t · w i l h w h i ch h e di agrees . Co n ced i n g t hai he lost L he 1 972 'ase \ i t h I h e arne a rgu ­ men t � . Bea r \ a 1 977 u p rcmc 'OU r l opinion h e l p_ rei n force h i s po ilion. Norl h Caro l i n a Dep u t y A l I or ­ nco General d peas . w h o i. de­ fendi ng I he u n i ver i t y in I h e l a \. . !.ui t , di , grc('s: " I I i. our po5i l ion l h a l ( he i,!>uc. are I he arne � ill 1 972. The l aw has n t changed . " pe' . hal. ri led a Illol ion 10 di m i s .. t he su i t on I he g ro u n d t h a i I he i • .

u e hru: alread been I i i i galcd co n ­ ' I u s i v e l y in t he arne j u r i s d icl ion . A hearing on ( he mOl i o n ( d is ­ mi�. w. s hcdulcd ro r A u gu s l 2 1 al t he i m c ' P L Reporf wcnt I prc!-os. Kania \'. Toy/or. •

Fal 1 1 979

SPLC R e po rt

49

either Foley d id not u nderstand the case Or he int en t ionally di s r egard ed precedent because he did not wish to sanct ion a magazine {hat o ffended him.

Judging )KIges by Ba rto n G e llman Let m e con fess from t he start thaI t his will nOI be an exercise i n objec ti vi ­ t y . I am not the ideal editorialist-de­ tached , ou t of the l imel igh t , u n i n­ vo lved . Q ui te t h e c on tra ry , I have -or more co rrect l y , once had-a directly vested inlerest i n w h at I am abo u t to w ri te . But at the risk of being d ecl ared u n duly partisan, I ' m going to devote t his space to a d i s cussi on o f j u d icial i mpro priet y . There. Now I ' m doubly suspect . Not only am I w rit i ng about a vested i nter­ es t, but I'm going to crit icize j udges. A n d odd l y enough in t h is freesl of soci­ eties , the subject is j us t a l i l l ie bi t taboo. Judges seem to float somehow i n a nether regi on within and aro u nd and even above t h e law. They decide the fate o f every c i t i ze n , exercise vast pol it ical and economic contro l . They are , well , judges . You don ' t go around badm out hi n g them . But I t h in k t h at is in i tsel f part of the problem . J udges wie ld t he broadest powers in g ove r n men t w i t h li t t le of t he inconvenience of acco u n l abil i l y . Rare­ l y are I hey scr u t i nized by t he press and t he pub lic . Even more ra rely are I h ey rebuk ed by t hei r superior s . Federal j ud ges need n ' t even worry about occa­ sional bou t s wi th a ballol box - t hey are a ppoi n t ed for l i fe. W h at S l OpS them , I h en, you m ighl as k , from abusing thei r consi d e rable po w ers . from h a ndi n g down oUlr ag­ eous or arbit rary dec ision s ? A few min­ u tes ' peru s al of SPLC files m igh t sug­ gesl I hal t h ere is very I i U le . A si de from impeachmen t . in fact , there is no way to regu l at e judicial conduct-a n d o n t w o h ands you could probably count the /lumber o f i m peac h m ents in U . S . h isl ory . Judicial abu ses a n d j u s l pl ai n OU(­ rageous dec isions, of course , are nOI nearly so ra re . I n t h i s issue of SPLC Report, at leas t I wo cases come t o m i n d . The fi rst , i n N e w York s t ate fsee

50

p. 25 ] , in vol ves t h e pub l ication of a rat her racy magazine called Hard Times. The second , in Phi ladelp hi a (see p . 28] , i nvolves a r a t h er i n nocuous newspaper called t he To wn Crier. Hard Times i n c l uded such feat u res as a story on " w res l l i n g cheerleaders" and an editorial on m ast urba t ion . Not the zenit h o f construct ive jo urna lism . perhaps-bul cer t a i nly not l i belous or o bscene by leg a l sta ndards. N or . in t h is cas e , did dist ribu t io n disrupt t h e nor­ mal functioning o f the school . That did not stop school o fficia ls fro m sus pend i ng the st ude n t writers and confiscatin g t he m aster copy six days a fter dist r i b u tion . It wasn 't t h at the magazi ne had done any demo n ­ strable harm, mind you -j us t thaI the school board presi den t thou gh l it was " t he worst t h i ng she had ever seen . " I f the school bo a rd ' s decision w a s la­ mentably ignorant, the j u dge ' s was un­ accept ably so . The Honora ble James T. Foley ruled t h at the school o ffi cials' actions had been nOl hi n g more t han t he pro per d iscipl i ne of " i nsubord i n ate sl uden ts . " The sligh t l y puzzled jurist wen t so far as 10 say he did not bel ieve I h i s "h igh school ad venture" even belo n ged i n a fede ral court . In the wake o f Tinker an d the dozens o f other c a ses exp a ndi n g the rights of st u dent jou rnalists in I he pasl decade . Fo[ ey ' s o pini on is roughly par i n a n­ achronistic value w i t h a criminal sen­ tence o f h orse - wh i ppi ng . It is i nco n ­ ceivable I hat t h e Second C i rcuil Co urt o f A ppeals will fai l t o reve r s e h i m . But I hat is not rea lly the poi n l . F oley ' s decision is not merely contr o­ versial or questionable. II does not deal w i t h a I rou blesome area of t he l aw . It is j ust dead wro ng , vi rtually un­ founded either i n precede n l or th eory . Judge Foley should k now this, as I he sl udenl s ' attorney was good e nough t o provide him wil h t h e relevant case law . So wh a t are w e 10 make o f his rul­ ing? There a re o n l y two possi b il it ies ;

I tend t o believe t he latter. I t i s a phen om enon t hat is sad l y common i n t oday' s resul t -orien t ed j u d iciary . I f a j udge d oes not l i k e t he probable conse­ quences of a pa rti cu l ar ruling, he may nOI m a ke i t- even if t heory a nd prac ­

tice poi nt hea vi l y l owa r d th a t side .

That k i nd of beha vior goes d irec t l y again st t h e grain o f o u r traditions o f justice. Tru e , a j udge mig h t be ex­ pected to inject h is gut feeli ngs a n d com mon sense i n to a case involving vague or sk et ch y precedenl . But he has no b u si ness allowing any private opin­ ion 1 0 inter fere with his i n l ended func­ tion as an arbiter oj the low . [f I he cl ear weight of l egal a u t hority rests with one side, he is d u t y-bo und to re­ spect th e rule of law. Judge Foley may or may not have fai led in Iha t dUlY, as il is not at all clear he u nderSlOod t h e legal issues. I n I he Phil adel phia case , however , I d o not believe I here is a n y quest ion that the j udge acted in bad fai t h . Perhaps it's natural for me t o t h i n k so. I w as one of t he plai n t i ffs in the Town Crier con flict. My co - ed i t ors and I at George Wash­ i n gton H i gh School decided to pri n t a Sl ory on bi rth cont rol , de spite our pri n ­ cipal 's w a rni n g t h a t I he piece was " i llegal " and that we would h ave 1 0 " face t he consequences" of pub lis h i ng il . Just hou rs after the paper rol l ed off t he pri n ter's press, the p ri nc ipa l seized t he issues and d r agged them off to t he school vau l l . Then she shu I down t he paper i n defi n itely. ThaI was lale Octo­ ber of 1 977. We sued t he princ i pa l and school board , and had an expedi ted , fo ur-day hear ing in N ov e m ber before U . S . Dis­ t r ict J ud ge John B . H an n u m . T hen we

began t o wai l . We assu med that since t he l i mel i n ess of a ne wspape r is of such i n t rinsic i m portance, o u r case w'o uld meril H an n u m ' s prompt at t ent ion . We were w rong . I t grad ually became clear that Han­ n u m , a former school board mem ber h i msel f, d i d not t h i n k "children" should be printing an art icle aboul co n ­ t racepl ion . He seemed v e r y concerned it might promote poor m oral values. I n h i s privat e cham bers, h e told o u r attor­ neys he t hought we were " i rrespon­ sibl e" and " i mma t u re . " I am certain

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Afterword that if he felt he could h ave got ten away with ruling agai nst us, he would have done so . But he didn ' t . He j u s t did nothi n g . W i n ter passed , t hen spring. The To wn Crier o ffice sat em pt y , unused . Come J u ne, I graduated . Abo u t t h is tim e , H a n n u m a n ­ nounced - un o fficial l y . i n c h a m bers­ t hat he fel t the To wn Crier 's sup­ pression had been a " t ec h n ical con­ s t i t utio nal violatio n , " and suggested we negotiate a com promise. A It!ch­ nical conslilurionol violation. That ' s t h e semantic eq uivalent o f " technical l y pregn an t " or " tech n ically dead . " Like a scotch-t ape-and -string repair job, Hannum's language d id l i t t le to hide and noth i n g t o correct a sorry st ate of affairs. We d i d n ' t want to negotiate a com­ promise. We didn ' t feel we should have to compromise our First Amendment rights . We told t he j udge t hat . Not h i n g happened . Another w i n ter passed . A no ther spring. Now t he grad u a t ion date for the last of the p lain t i ffs was approach­ i n g . J u dge Hannum appl ied more and more pressure on both sides to com­ promise , hint i ng t o us he would declare the i ssue moot once my former co­ editors gradu a ted . We gave i n . We settled with the Phil­ adelphia school board , winning a frac­ t ion of what we deserved . In the pro­ ces s , we agreed to accept a set o f publi­ cat ion guidelines that no judge i n the U nited States-inclu d i n g , o f course, Han n u m - would be li kely t o a ffirm as const i t u t ional . W h y d i d we do i t ? W h y not let Han­ num declare the case moot , t hen ap­ peal? Because he would h ave been righ t . It wou ld h ave been an outra­ geously circular argumen t , but he would have been right . He h a d sat o n t h e case so l o n g he was no longer re­ quired to rule on it at a l l . B y thus ignoring t h e issue for 20 mon t h s , H a n n um forced us t o give away a port i o n o f our co n s t i t u t ional guarantees with no pracrical means of appeal. This when he clearly , demon­ st rably understood that our righ t s h a d been violated . Thai is w h y I consider H a n n um ' s conduct far more abhorrent than J u dge Foley's. Foley, a t leas t , made n o a t ­ tem pt t o con found t h e a ppellate pro­ cess, and I have n o doubt he w i l l be over t u rned . Hard Times will be vindi­ cated . The To wn Crier will never be . •

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SPLC Internship Opportunities SPlC Report IS wr itten, edIted and d esigned entIrely b y student i n t er ns worki ng OUI 01 ofhces In Washing on , D C. A team of four inlern produced the lall Repon . Forrelt Claypool, 2 2 . is a second-yea r law s tudent at t h e Univer Sity of i l l inoIs. where he has been named to Ihe law review sta ff . A U Mlerslly High Honors graduate 0' Southern III r nols UniversIty. where he majored In l our nalism , C l a ypoo l has served as a reporler and aSSlslsnt advertiSIng manager for The Dally Egyptian. Claypoo l ' s Internship was funded b y the Gannett Newspaper Foundation.

David Danner, 23. is a g rad u a t e 01 Columbia University. where he was a staff member of t he Daily Spectator and contr ibUlIng editor of the Columbian yearbook . D ann e r has wor k ed for the sports department of the Por tland Oregonian a nd was house organ edilor at Scholastic Magazme in En g l ewood Cliffs, New Jersey. A nalive 01 Portland, Oregon. he has recently been hired as managing edi t o r 01 News Media and the Law. D a n ne r s internship was funded by Ihe Robert F . Kennedy Memorial. '

Barton Gellman, 1 8, is a sophmore at Princeton University, where he in lhe Woodrow Wilson School for Public and International Affairs. An assislan' news editor and beat leader al The Dally Prinoetonian, Gellman was editor of his high school paper and helped found Kaleidoscope Magazine, a cily-wide high school publication in Philadelphia. Gellma n ' s internship was funded by the Gannett Newspaper Foundation.

hopes to enroll

Bob Stuk., 2 1 , IS a freshman al ,he University of Southern cali forni a , where he is majoring in jo u r n a l is m and internat ional relations. A po l it i c a l cartoonisl who has won count less awa r ds in stale and nallonal competitions. Staake has turned down syndicat ion offers f rom K ing Features. The Los Angeles Times and others. The california nat ive now draws fIve cartoons each week fo r the USC Daily Trojan and appears f reque n t l y in the Los Angeles Herald-Examiner, South Bay Daily Breeze. an d San PedlO New·Pilot . The Siuden' Press Law Center offers internships d u r i ng each school

sem e st er and t he summer for high school , college. and law students interested in j o u r n a l i sm or law . Interns research and produce S P LC Repon, handle req u es t s for

infor matIon on s t ude n t press f ights. as s ist Ihe

director in liugarlon w i t h par alegal support and partlcipale in I h e Center ' s rundraiSing acl lvilles . The Center provides its t nt e rn s wi lh stipends . and academic credit IS somel lmes available. I n l erested sludents a r e encouraged 1 0 apply 1 0 . The Studenl Press Law Cen le' . 1 033 30lh Sl reel NW. Wa hlnglon. DC 2000 7. ( 202) 965 · 40 1 7

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A TTEN TION: Student Publication


Fall 1979