Page 1

Room 300 800 18th Street NW

ATTENTION: Student Publication

SPLC Washington. D.C. 20006

STUDENT PRESS LAW CENTER t

org

washington dc permt no 4702

us postage pad

non pro


Contents : WRITERS Tali Joan Segel Marl<. Goodmen George W IIlV' St n Pr • UI'MVef�V Lew 5. I"l00

Law Cen

W. Jeffrey Connor Svrecuse UnlV , College of Lew

Cover: Th is issue , the SPL C Report studies the possible problems that humor and satire publications can encounter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . 2 8

Courts •

COVER Jack Dickason

ART

Ben Burg raH Kerry :ta rk Aaron Cole J ames Fenwick Bruce You ng

execu tive director

Merk Good men

Corporste Board of Direotors .J. ,,",-C Abrams E aq

"" � ,...n' ..... . NWIN v

Ch'. 1A

ll a.

........"." .

Or Aooert KnIght "', La-ge ,� rv ol .,.,. . ...0

NV

.JOhn Bowen ...... �-�... • oI Q11jo � ,.",. L� OH Dr. Dorothv Bowl ..,. p: I_ #or � .. ..-..-.., .vI SeItOoI OI � � 01 � s

e.tne Engh� . E aq ,....,. a--� _ lt:1I , ,....,. en _ PrwN . ex; ... ...."...,ron . Dr. Tom Eveetaga Ar c.....,. � 01 � � tv /JI ,.,.,...� PA

CtvtMoPher Fager: E eq "" � '- � T..:� IncTX

M.-1l Good man. E eq. .,-.. c � OC Nancy Gr

n

Or

u.s. Supreme Court to

bear

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case . . . . .

Student art ist drops suit in Texas .. . .

Controversial Calif.

edit

or

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4

reinstated . . .... . . . . . . . . . . . . . . . . . . 4

Cal ifo m ia . .. . . .. . . . . . . . . ... . . . . 5 restraint case . . . . ... . . . . . . . . . . 6 First Amendment cases on both coasts ... . . . . . . . . . . ........ 6 Nebras ka ad policy challenged . . . . . . . .. . . . . . . ............. ..... 7 Hazelwood. case appealed .. . ... .. . . . . .. . . . . . . . . .. .. 8 Colorado ad viser waiting for decision .. .. . .. . . . 9 U nderground paper sues in ACLU involved in pri or

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Sa les taxes returned in Florida . .

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10

Open Meetings •

University of Kentucky opens meetings ............ ....... 1 1

Conn. FOI Com m issio n ends closed

meetings .... . . . . . ! I

Libel ca se

continues . . . . . . . . . . . . . . . .. . . . . . . . . . .... . . . . . . . . . . . . . . . 1 2

Mich igan

Chaplain a t Dartmouth seeks award

lJIinois complaint dismissed . . . . . . . . . ............................. 1 2

...

... . ...... . . . . . . . . . . .. 1 2

Cadaver ca se to go t o t ria l . . . . . . ..... ... ....................... .. 1 2

Student Gove rnment •

St ud en t court claims jurisdiction .. . . . . . .. . . . . . . .

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North Dakota's editors get sal aries ..... ....................... 1 4

S u i t by Cal ifornia paper dropped . . . .. .

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14

Censorship •

• •

Military ads refused in

Michigan . ... . . . . .

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..... . . . . . . . . . .. . . . . . 1 5

Humboldt State controversy contin ues .. . . . . . . ... . . . . . . . . . . 1 6

Califomia editor receives award .. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . 1 7

St uden ts in N.C. o bj ec t to quote ...

...

. . . . . . . . . .. . . . . . .. . . . . . ... 1 7

Tulsa publications policy under fire .. ........................ 1 8 H arvard guide censored . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 9

Peep hole s source o f co nt rovery ................ .... . . . . . . . . . ..... 1 9

Alcohol policy concerns Wise. editor .. . . .. . . . . . . . . . .. . . . . . . . 20

Temple h um or magazine loses fun d in g . . ...... ............. 2 1

Kansas te le vision show censored . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. 22

Co n t rol sought in

Montana

schools ............. . . . ........... 23

A dv i sers •

SPL C Report

. ... . . .... . . . 25 content. ............... .... ....... 26

New York teach er see ks advisership

Oldahoma adviser fired for

arg.n.ut

The

Colo. adv i ser sues for rehearing .. . . ... . . . . . . . . . . . . . . . . . . . . . . . . .. 24

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Wyoming teacher settJes . .. . . . . . . .. . .. .... . ... . . . .. . . . . . . . . . . . . . . . . . . 26

A rbitrator's findings q uestio ned .................... . . . . . . . . . ... 27

Lega l Analysis •

2 SPlC Repori

Special concerns of i nt ended

humor.. ........... ............. 2&

Printers and the st ud en t press .. . . .. . . .... . . .. . . . . . .... . . . . . . .. .. . 33

The development of the TInker standard . . . . . . . . . .. . . .. . .. 35

Win1er 1 Q85-86

{

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COURTS

IIIII Washington

Supreme Court agrees to hear high school free expression case For the first time since its landmark ruling in Tinkpr v. Des Moines Independent Community School District. 393

U.S. 503 (1969), the United States Supreme Court has agreed to hear a case directly involving the free expression rights of high school students. The nation's high court granted a writ of certiorari on October 7, 1985, thus agreeing to review the case Bethel School Dislriel v. Fraser. 755 F,2d 1356 (9th Cir. 1985). The case arose from incidents at a Tacoma, Wash .. high school that occurred in 1983. In April of that year Matthew N. Fraser, a senior honor student at Bethel High

'The school claimed that Fra­ ser's speech was disruptive of the educational process that Fraser used vulgar and indecent lan­ guage which the school had the right to control.' School, gave a nomination speech for a student govern­ ment candidate at a student-run assembly. The text of Fraser's speech was as follows: I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is finn-but most of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spuJ1s-he drives hard, pushing and pushing until finally-he succeeds. Jeff is a man who will go to the very end­ even the climax, for each and everyone of you. So vote for Jeff for ASB vice-preside nt-he'll never come between you and the best our high school can

be.

Testimony at trial indicated that some loud clapping .

Winter 1985·86

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and hooting accompanied Fraser's speech and that three students reacted with sexually suggestive movements. One teacher reported that students in her class the next day were "more interested in discussing Fraser's speech than attending to their class work," so she invited a ten-minute class discussion of the event. However, school administra­ tors had no problem maintaining order during the assem­ bly or afterwards, The day after the speech, Fraser was suspended from school and was denied permission to be considered as a speaker for graduation. The school claimed that Fraser's speech was disruptive of the educational process and that Fraser used vulgar and indecent language which the school had the right to control. The school cited its own regula­ tions, which prohibited conduct that "materially and substantially interferes with the education process... includ· ing the use of obscene. profane language or gestures." Fraser initiated a grievance with the school district, and when his grievance was denied. he initiated a lawsuit for violation of his First Amendment rights. The United States Distnct Court tor the Western District of Washington and the Court of Appeals for the Ninth Circuit both in turn found that Fraser's speech was protected by the First Amendment, that the school regula­ tions were unconstitutional, vague and overbroad and that Fraser had been punished in error. The school district sought the reevaluation of the case by the Supreme Court. Because the case questions the definition of student speech that creates a "material and substantial disruption of school activity," the authority of school officials to control "indecent" speech that is not obscene and the constitutionality of school policies regulating speech, it could have implications for the free expression rights of student journalists. The Student Press Law Center will be filing an amicus curiat' (friend of the court) brief support­ ing Fraser's position. Briefs from all panies are due by the end of 1985, and a hearing before the Supreme Court is expected sometime in 1986. • ..._..... _------_................. . .....

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SPlC Report :1


COURTS Texas

High school artist drops lawsuit, cites graduation and 'inquisition' Whitney Ayres, a former artist for the Stephen F. Austin (Texas) H igh School student newspaper, The Ma­ roon, has decided to drop his suit against the Austin Independent School District. Ayres was suspended from school fo r three days and not allowed to participate in graduation exercises in May 1 98 5 for producing a cartoon deemed obscene by the administra­ tion. The award-winning artist turned in his regularly appearing cartoon strip, " Lucky," nine days after his deadline for The Maroon 's fi nal issue. Because of the late sub­ mission the cartoon did not receive the usual editorial scrutiny of former adviser Thomas Prentice. Minutes after The Maroon 's distribution, stu­ dents approached Prentice and pointed out that some of the charac­ ters in " Lucky" appeared to be mas­ turbating. Prentice then requested that disciplinary action be taken against Ayres. Principal Jacquelyn M cGee sus­ pended Ayres and barred him from graduation ceremonies after a hear­ ing of the Campus Review Board. Ayres appealed to the associate su-

perintendent and superintendent, both of whom upheld McGee's deci­ sion. On the day of graduation Ayres filed a motion for a temporary re­ straining order in a Texas district court seeking permission to partici­ pate in graduation. This request was denied two hours before commence­ ment. Ayres contended that the pun­ ishment was unduly severe, especially considering that he had not been charged with a punishable offense under school district policy. The school district countered by say­ ing that because Ayres had submitted the cartoon late, it was a violation of classroom procedure and therefore punishable. Ayres' attorney, Owen Kinney, said that the su it had been dropped because graduation had rendered the case moot for Ayres. The larger First Amendment question was not worth the harassment of depositions and the trial "inquisition" that would face Ayres, Kinney said. He added that he had no doubts that they would have won on the merits of the case as he was sure that "Lucky" fell short of the Supreme Court's defi­ nition for obscenity as defined in

Miller v. California, 4 1 3 U.S. 1 5 ( 1 973). Kinney expressed concern over what he saw as the injunction j udge's "sliding scale of First Amendment protection in high schools." The case has not ended, however. Prentice gave Ayres an "F" in his j ournalism class because the student refused to take a final exam during his suspension, saying he felt that i t w a s a continuation of t h e punish­ ment. According to Ayres, the final exam gjven by Prentice was unneces­ saril y harsh and called for Ayres to make Incnm Inating statements. Ayres claims he had determined his grade and felt that he should pass even with the fai led exam. Kinney approached McGee with the ques­ tion, but she refused to change the grade saying that onl y the teacher could do so. Prentice will not consid­ er changing the grade without first sitting down with A y res and his parents, according to Kinney. He went on to say that Ayres' parents refused this condition because they felt they would only be berated . Kinney says negotiations on this matter are continuing.

California

A n opinion page editor at H a rbor College in California settled his law­ suit with the Los Angeles Commu­ nity College Board of Trustees and was permanently reinstated to his position until the fal l 1 98 5 semester. Details of the settlement are un­ k nown because of a confidentiality agreement between the student and the school district. The controversy surrounding Har­ bor Hawk opinion page editor Joe Fields began in 1 984 after he wrote an editorial series called the " m yth of the holocaust" that was con­ demned by the school district board of trustees. Although, Hawk editor Joe Granberg supported Fields' right to free expression in his column, his activities became more notorious and numerous complaints from the Jewish com munity were sent to both

school officials and the newspaper. fn 1 985 Granberg dismissed Fields from the Hawk staff for meet­ ing with a former Klu Klux Klan leader and distributing anti-semitic leaflets duri ng a Holocaust com­ memoration at Los Angeles Harbor College. A federal court temporaril y reinstated Fields pending the out­ come of his grievance procedure within the school . Gary Williams, American Civil Li berties U n ion lawyer, confirmed that the court decided Fields was fired im properly and his First Amendment rights were in jeopardy. According to Williams, the court also recommended that the Los Angeles Comm unity College school district revise its student press guidelines to accommodate quicker resolution of First Amendment disputes. •

Opinion editor settles and gets reinstated 4 SPLC Report

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Winter 1 985-86


COU RTS

California

Underground paper gets the

Two Fallbrook, Calif., High School students have brought suit against their school district for violations of the First Amendment and their right to due process. In September 1984 Daniel Glue senkam p and Philip Tiso, at that time juniors at Fallbrook, produced an underground newspaper, the Hatchet Job The school­ sponsored paper is named the Tomahawk. The paper was produced with private funds raised through solicited advertising. After it was distributed, Principal Henry Woessner confiscated all the copies of Hatchel Job he could find, claimi ng the paper was "libelous" and "obscene." The specific portion wh ich he labeled as libelous was an unaltered photograph of a school board membe r and a state congressman with a caption about a drug deal underneath. As a justification for the obscenity claim he pointed to what he called vulgar language in the Hatchet Job. The student's complaint says that Woessner discovered Gluesenkamp's identity and called him in to his office. The student was told to return the advertising money and to reveal the names of the other students who were involved. He complied with the former request but refused to reveal any other students involved. He was suspended for two days. The principal deduced that Tiso was involved and he was also suspended. The students appealed the punishment to the Board of Trustees in January 1985 but were turned down. Glue5en· kamp and Tiso then contacted the American Civil Liber­ ties Union (ACLU) who agreed to represent them. The school district, in an unusual move, immediately filed an action for declaratory relief, and the students filed a counter-suit. The students claim that their First Amend­ ment rights were violated by the confiscation of the Hatchet Job and their rights to due process taken away by the suspensions. .

.

Winter 1 Q85-86

ax

ACLU Chapter Direct or Greg Marshall said he is confident in the strengths of their casco He added that Hatchel Job's vulgarities were a "classic case of usc for shock value" and were in no way obscene. as they appeale d to no purient interests. Robert DeKovcn, the attorney who has represented the two students since the case began, said there is "no Question" that the Hatchel Job was not obscene. He also stated that the district had already conceded that the paper was not libelous. The California education code doe s not allow any form of prior restrain t ex.cept when material is "obscene," "libelous" or creates a substantial and material disruption. DeKoven said that these terms are defined specifically by each school district. Fallbrook s school district has defi­ nitions very similar to those the courts have established. according to DeKoven. "Apparently the administration doesn't understand its own policy," he smd. The hearing was scheduled for October 15, 1985. but the school district filed an amended complaint three days before that date. It added a count of a violation of the California Wire Tap Law. Apparently Gluesenkamp taped a meeting wit h the principal that concerned ·the Hatchet Job without Woessner's knowledge The state wire tap sta tu te says that it is illegal to record a confidential conversation without all parties' consent. DeKoven holds that the conversation was in no way confidential. The tape, the presence of which was not known by the district until after Woessner's d eposition had been taken upheld the student's allegation that they were threatened with expulsion. According to Marshall, the tape showed the principal's recollection to be faulty. DeKoven has little doubt that the judge will support Gluesenkamp and Tiso in their motion for summary judgement before the end of 1985. M eanwhile the students have continued to publish the Hatchel Job. • '

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SPLC Report 5


COURTS

California

Students sue over plior restraint Attorneys for a Southern Cal i for­ nia high school newspaper, La Voz Del Vaquero, are continuing to ap­ peal a 1 984 California court decision upholding the use of prior restrai n ts of student publications. Rancho Alamitas H igh School principal James DeLong stopped dis­ tribution of the 1 984 April Fools ed ition of La Voz Del Vaquero be cause of the possible inclusion of libelous statement s in an article enti­ tled " The Girls of Rancho," A Cali­ fornia sta tute al lows prior restraint of l i belous material in pu blic high schools. In 1 984 David Leeb, former ed i tor of La Voz Del Vaquero, filed suit against DeLong and the Garden Grove Uni fied School District. to allow distribution of the April fools ed i tion of La Voz Del l,laquero. The court rejected the request and the editor appealed. Gary Williams', the American Ci v il Liberties Union lawyer rep­ resenting Leeb, cites major prior restraint cases such New York Times v. Sullivan and Fujishima v. Board of Education i n his brief to the California Court of Appeals. Wil­ liams e m p hasizes the "presumed" unconstitu tionality of prior restrain t and its "potentiaIly de vastating im-

pact on free speech and freedom of the press. " More i mportantly, Williams' has shifted the main focus of his appeal to the Cal i fornia Constituti on. "The free speech provision of the California Constitution has consis­ tently been interpreted more broadly than the First Amendment, and sev­ era] cases stated that Article I, Sec­ tion 2 [of the C a l i forn i a Constitution] absolutely prohibits prior restraint," said Williams. The ACLU brief a lso attacks the argument made by Susan Borges, attorney for the school di strict, that minors do not have the same First Amendment righ ts. and cannot ex­ pect the same legal privileges, as ad ults. WilJiams' final argument po i nts out the lack of proper regulation and review over the use of prior re­ strai nts by school administrators: "neither the statute nor the regula­ tion [pennilting prior restrai nts] con­ tain any time li mits for action once a prior restraint has been im posed, not any procedure for administrative ap­ peaL" The case should go to court after the defendants have filed their reply • brief, Williams says.

California and Florida

Legal group supports two students in freedom of religious expression cases The Rutherford Institute, a na tional Christian defense group based in Manassass. Va. , has recently represented two students in separate freedom of expression sui ts. The first case involved a student at Montclair High School near San Bernadino, Calif. [n February 1 985 Heidi Webb distributed leaflets and brochures that dealt with anti-abortion issues to other stude n ts on school grounds. Principal Hoarce Jackson told Webb to stop distribution or she would face suspension from school. Webb contin­ ued to give the pamphlets out a t lu nch hour. J ackson subsequently suspended her for two days, stating that the pro-life material she d istributed was "inappropriate, offen­ sive and inflammatory." Webb returned to schoo! after the two days and began to give out the material again.

Abo u t a week later she was suspended for a second time for fou r days. The suspension was revoked the day after it was ordered. and mention of both suspensions was re­ moved from Webb's record. According to the Ontario, Cal if.. newspaper The Daily Record. this was done on the advice of Dan Haueter, lawyer for the school d i strict. Webb's parents con tacted the Rutherford Institute. a nd with the help of In stitute a ttorney Larry Crain, filed sui t in federal dlstrict court for $200.000 saying that the student's First Amendment rights had been v i olated. The suit also sought an inj unction 10 ensure that the school di strict would take no fu rther disci pl inary action. T h e case was settled out of court in October. Webb received $ 7 . 500 in dam ages and the school district was

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6 SPLC Report

Wlf)ter 1 985·86


COURTS enjoined from 1aking such action against any students in the future. The school district also agreed to run an annual workshop or seminar on the constitutional rights of students relating to free speech and expression. The seminar is intended to clarify and explain the existing school district policy 10 administrators and teachers. Mike Dirksen. school district superintendent, said the seminar will consist of reviewing present policy with all the faculty. The same time that Webb's case was being settled the Rutherford Institute became involved in a student ex­ pression case in Florida. In May 1985 Rebecca Higgins, a sixth grader at Venice Area Middle School near Tampa. presented a book report on the Bible to her reading class. As part of the presentation Higgins offered the class copies of the New Testament. Crain says that Higgins only gave copies to those who asked for them and offered to take back any that were not wanted. Principal John Zablakas interrupted Higgins' next class and demanded that all copies of the New Testament be given to him. During the lunch hour Higgins continued to give out copies of the book to classmates who expressed a desire for one. Higgins' complaint goes on to say that later the same day Zablakas took Higgins aside and told her that what she had done was illegal and returned the Bibles to her. Higgins tried to return the copies to her classmates at the end of day. The next day in between classes Higgins returned the books to students who wanted them. Once again the

copies were confisca1ed and Higgins was taken to the principal's office, where according to her complaint she was questioned about her religious convictions and affilia­ tions. She claims she was told by Assistant Principa l Robert Hudson that she had broken the law. Finally the Bibles were returned to Higgins on the condition that she put them in her locker. Higgins and her paren1s sought the Rutherford Insti­ tute's help to file suit against the school district in federal district court claiming that they see Higgins' right to express herself through the distribution of New Testa­ ments as constitutionally protected by the First Amend­ ment. They contend that her actions did not materially or substan1ially disrupt the nonnal school activity, the only situation tha1 the Supreme Court has defined as allowing the prevention of student expression. (Tinker v. Des­ Moin es Independent School Distnct. 393 U.S. 503. 506 (1969).) Higgins also points to her interrogation as an invasion of privacy. She is requesting a preliminary injunction against the school district to ensure that she will be able to distribute the Bibles. The school district's answer (0 Higgins' suit claims that the school's actions were justified by the Establishment Clause of 1he First Amendment. which requires all arms of the state to maintain strict neutrality toward religion. Trial is not expected until the summer of 1986 at the earliest because the process of taking statements and other pre­ trial procedures will be lengthy. Crain said. •

Nebraska

Two students sue Publications Board over 'non-discriminatory' ad policy Two students at the University of Nebraska at Lincoln have filed suit in federal court claiming that the student newspaper's advertising poli­ cy violates the First Amendment. For the past four years the univer­ sity's student newspaper, the Daily Nebraskan. has been governed by an advertising policy written by the school's Publications Board. This policy is intended to ensure that the Nebraskfln is not a "vehicle of dis­ crimination," according to the Ne­ braskfln's Business Manager Dan Shattil. It said that the paper would not accept advertisements which made distinctions on the basis of race, religion, sex or national origin. However, it did allow for people seeking roommates to express a gen­ der preference. I n the fall of 1984 two students, Pam Pearn and Mi­ chael Finnetl, submitted ads request­ ing homosexual roommates. These were turned down by the decision of the editor, who had the discretion to Winter 1985-86

do so. A subsequent ad from one of the students was printed but the wording was changed by the editor from "lesbian seeks" to "liberal woman seeks," according to Shattil. They consequently complained to the Publications Board, consisting of five students, two faculty members and two professional journalists, which revised the policy to prohibit ex.pression of "sexual orientation in advertisements." However, specify­ ing a gender preference is still allow­ able in roommate advertisements. Pearn and Finnett filed suit in the United States District Court for Ne­ braska on September 25, 1985, with the help of the Nebraska Civil Liber­ ties Union. Named as defendants are the university's Board of Regents, the Publications Board and the Ne­ braskan's Business Manager Dan Shatlil. Peam and Finn claim that the advertising policy is a violation of the First Amendment in that they were denied access to the paper.

John Wiltse, the Nebraskan's at· torney, said the paper's position is that the Nebraskan is not a public forum and therefore it has the right lO establish its own editorial policy. He supported this argument by pointing out that n.o court has de­ fined student newspapers as open forums, which would mean that ev­ eryone is allowed equal access. The couns have said only that university administrators cannot c.ontrol the content of the student media. No court date bas been set in the case, according to Wiltse. The attor· neys involved are currently trying to agree on a stipulation of facts. This is an effort to speed up the actual trial process by decreasing the num­ ber of contested issues. Jerry Soucie, Pearn and Finn's attorney, is plan­ ning to file a motion for summary judgment., Wiltse said. It has not yet been decided if the Nebraskan will file a cross motion for summary • judgment. SPLC Report 7


COURTS

Missouri

Hazelwood editors file appeal United th e Eighth Circuit is expected to be set for sometime in January in the case of three form er students of Ha­ The

court

date

in

tbe

SUltes Court of Appeals

for

zelwood East (Mo.) High School. Catherine Kuhlrneier, Leslie Smart and Lee Ann Tippett�West are appealing the May 1 98 5 decision of the United States District Court for the Eastern District of Missouri

{KulIlmeier v. Hazelwood School Dis­

trict, 607 F. Supp. 1450 (E.D.Mo. 1 985», which held that Hazelwood Principal Robert Reynolds had t he right to dele te material from the student newspaper. The case began in May 1 983 when Reynolds ordered that a two-page spread in the student n ewspaper Spectrum be removed.. He felt that the articles, which dealt with problems facing tee nagers, were inappropriate for the student paper. ,

Specifically the principal objected

to

two of the stories: one that contained "personal" accounts of pregnant Ha­ zelwood students and another that 8 SPlC Report

di scussed the impact of divorce on child ren .

In the first story Reynolds felt that

the girls quoted, although they had given their perm i ssion and no names were used, were too easily identifia­ ble. He deemed the issue of teenage pregnancy "too sensitive" for the "immature audience" of Hazelwood East. Reynolds claimed that the sec­ o nd story was an in vasion of pri va cy, even though the students Quoted were unnamed, because t he parents were not contacted. The May decision said that the Spectrum was an integral part of the school's curriculum, not a publ ic forum, and therefore was not entitled to extensive First Amendment pro­ tection. Because the Hazelwood East publications policy required prior review, the judge decided that the principal an d adviser did h ave con­ trol over the content of the paper. Combining the determinations that the Spectrum was pan of the school 's curriculum and tbat the principal

­

had final control, the court declared that the principal did not have to pr o ve that a substantial disruption wo uld resul t from publication. The Student Press Law Center (SPLC) has filed an amicus curiae (friend of the court) brief in support of the students' appeal. The brief argues that the Spectrum was entitled to the Fir st Amendment protection of a public foru m because it satisfied all of the public forum criteria the courts have established. Anicles and let ters to the editor were submitted from people outside of the J ourna lism II class and controversial issues were covered. Leslie Edwards, attorney for the students, requested the court of ap­ peals to hear the Hazelwood case en bane, which would require all the circuit judges to hear the case rather th an the usual panel of three. This motion was denied in late Septem ber. Edwards said that aU briefs have bee n filed, and they are wa i ting for the court date to be set. • ­

­

WIf\ler 1 985-86


COURTS

Colorado

Decision awaited in adviser's suit A Colorado college newspaJXr adviser is awaiting the judge's decision in her case asserting thal the First Amendment rights of her students were violated. Judy Olsen, adviser at Pikes Peak Community CoHege in Colorado Springs, Colo., is claiming that displeasure with the content of the newspaper, the Pikes Peak News, was a substanti al and motivating factor" in the student government's funding cutoff. The funds were removed in early 1979 when student government members said they felt that the News was not representative of the student body. During the summer of 1979 the student senate offered the News $5,000 on the condition that the student government receive $1,000 of free advertising and that a constitution for the paper be drafted. This budget was less than half of what the News had previously received. The News was replaced by a low-budget magazine. the Pikes Peak Fuse, with Olsen as adviser. Because of the lack of funding the Fuse has had to depend on advenising to finance the magazine, and consequently has 90 percent less news content than the old paper, according to Olsen. "

Olsen and three students fLle(! suit in the Colorado District Court against the State Board of Community

Colleges and Occupational Education and the Pikes Peak Community College Council. Their complaint claimed that the funding cutoff violated their First Amendment rights because the cut was content-motivated. In March 1981 a district court judge granted a motion for summary judgment in favor of the Board. The judge felt that the students' case was rendered moot by graduation and that Olsen did not have standing. saying there was "no indication that a teacher has a constitutional right to use a newspaper as a teaching tool." The judge also denied that Olsen had any right to sue on behalf of her students, as she had suffered no injury. Olsen appealed the decision, but the students did not pursue the case. The appellate court reversed the lower court's decision, saying that Olsen did have the constitu­ tional right to use the paper as a teaching tool and thus did have standing . The question of whether or not Olsen had standing to pursue her students' First Amendment rights went to the Colorado Supreme Court. In the landmark decision of Olsen v. State Board for Community Colleges and Occupa­ tional Education. 687 P.2d 429 (Colo. 1984), the court said that "the administrative decision to terminate the funding of the News has a chilling effect on the free speech rights of the student." It set out three criteria which determined Olsen's standing to continue the suit on behalf of her students: I) her "substantial rela ti onsh ip with the students, 2) the obstacles that confront students in asserting their own rights, such as graduation, and 3) the strong possibility that the students' case would remain untried if Olsen were not granted standing. The court, however, reversed the appellate court's finding that Olsen's First Amendment rights were violated. "

The case has passed back down to the state trial court Winter 1985-86

to determine if the students' rights were in fact violated by the funding cutoff. Olsen seeks to have the News' funding returned. Because her standing is representative, she has no damages claim and is looking only for prospective relief. The case was heard by a trial judge in mid October 1985. Olsen's attorney, Bill Bethke, said that the trial judge asked both sides to file proposed findings of fact and conclusions of law. The judge will then either adopt one side's position or combine them in his own decision. Bethke expects this decision soon. •

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SPLC Report 9


COURTS

Florida

Sales tax returned to Flam bea u The Florida Department of Reve­ nue ( DOR) has agreed to ret urn three years of sales tax to Florida State U n i versity's independent pa­ per, The Flambeau. This agree ment fo ll owed the Fl or­ ida Su preme Cou n's J u ly 1 98 5 deci­ sion (Campus Com m Ull icat ions Inc. I'. Deparlmelll q{ Rel'el/lle. 473 SO.2d 1 290 (Fla. ( 985») that granted the Independent Florida Alligator of the Uni versity of Florida exemption from state sales tax. I n 1 980 the DOR audited. the Alligator's pub­ lishing company and informed the paper that i t owed the state $23,000 in back sales taxes. In Florida most 'newspapers are exem pt from paying the tax. T h e OOR, ho we ver said that the Alligat or failed. to m e et the crit eria for exemption on two counts. Fi rst, the paper does not have a paid circulation, and second, it does not have a second-class mailing permi t, which free papers c::an not receive. The paper's publ is her Campus Communications Inc., challenged the assessment and the trial judge grant­ ed the Alligator's motion for sum­ m a ry j udgm e n t . The DO R qu estio ned the ruling in the First District Court of Appeals, which overturned the lower court's deci­ sion. The paper then pursued the case in t he state supreme court. Tbe higher court established several crite,

,

) 0 SPLC Report

ria which distinguished the Alligator from "shoppers" that are gi ven away mainly for ad vertising purposes and are not sales tax-exempt. The court's opinion swi tched th e emphasis i n determining a " newspaper" from a paid circul a tion to whether news desemination is the publication's pri mary purpose. It also supported the decision by noting characteristics of the Alligator, such as its non-profit status, the tradition as a training tool for student j ournalists and a low advertising to news ratio. The supreme court o pini on how­ ev er did not specify wh eth er the decision would be retroactive, in which case the OOR could be open to many requests for the return of back taxes. The OCR a ppl ied to the supreme court for a clarification re­ questing the court to declare the Alligator decisi on prospective only. The court denied t h i s request i n October. Lee Joh nson, the Alligator's attorney, said that it appeared as if the DOR was going to have to go on a case-by-case basis, and the amount of editorial content wou l d pro bably be the detenning factor. Johnson said that the DOR was currently drafting a new rule more specifically ,

,

defining " newspapers." The Flambeau i s the only other

u n i versity or college pa per in the state t hat is i ndepe ndent according to R i ck Joh n son, The Fla m bea u gen­ eral manager. Joh nson said that the

A lligator and The Flambeau were "practically twi ns" bo t h ha ving gone i ndependenl near the same l i me and being orga n ized in basically th e same m a nne r Rick Joh nson said he wanted to stop paying the sales tax i n 1 974 beca use he fe lt that The Flambea u should have qua l i fied for exemption. The DOR threatened a lien that would have allowed the OCR to take Ihe paper's property in pay ment for the taxes. Accordi ng to Johnson t hey did not have the mon­ ey to light t h is t h reat at t h a t t i me. However. fol lowing the su preme co urt's dec ision in the Alligator case. The Fla mbea u reached an agreeme n t wi t h the DO R sa y i ng that t h e paper would receive t hree years' back taxes in return for The Flambeau not pursu ing the ma ller in court. The Florida statute of l i m i tations does nOt allow col lection for a period of more than three years. Rick Johnson said t hat all the documents are i n and the newspaper should get the money, which he est i mated at be­ tween $ 3 5,000 and $40,000. by the end of 1 985. The Flambeau met all the cri teria that the supreme court set out in the Alligator decision, so it is sti l l un­ clear what the req u i remen t s fo r tax­ exemption for free papers are. Rick Joh nson said that it was his u nder­ stand i ng that the OCR was worried that every free publication in Florida would apply for exemption. • .

Winter lQ85-86


OPE N M E ET I NGS

Kentuc'9!

SPJ

Presi dent proposes ope n meetings guidelines

Members o f the Society of Profes­ sional Journalists (SPJ) at the Uni­ versity of Kentucky are fighting to keep all student government meet­ ings open through revisions in the student codes. An SPJ proposal was rejected in 1 9 84 by the Student Affairs Board (SAB), which oversees student code revisions, because of a general con­ sensus in the student government that safeguarding open m eeti ngs was not important. SAB President Louis Straub said he felt such a broad revision of the student code might jeopardize students' privacy. "When you have a couple of peo­ ple in a hal lway and they discuss what's going on, that can be inter­ preted as a non-scheduled meeting or

i n fonnal gatheri ng," Straub said. "In actuality, it could just be two people expressing their opinion on an issue. A reporter eavesdropping on the conversation is i nfringing u po n someone's rights." The SP] p roposal also attempted to clarify the definition of a meeting: " A ny scheduled or nonscheduled gathering, formal or i n fonnal, of an organi zation, i ncluding gatherings of standing or adhoc committees, for the purpose of d i scussing or deciding upon any issue." Sacha DeVrooman, the Uni versity of Kentucky SP] President. along with fonner SPJ President Andrew Oppmann, considered the open meetings proposal an "insurance" policy to protect the University of

Kentucky studen t press and prevent the possi bility of needless lawsuits. Oppmann suggested the guideli nes after the student government held unna med contract negotiations in a private meeting i n 1 984. Although only certain m eetings at the U n i versity of Kentucky, such as academic perfonnance reviews, can be legally held in private the SP] wants to guarantee that student orga­ nizations using student or university funds keep meetings open and notilY the press. DeVroomen is working on new open meetings guidelines to be con­ sidered at the next student code co m m i ttee meeting. •

Connecticut

FOI Commission opens meetings The Connecticut Freedom o f Infonnation (FOI) Com­ mission, in an October 9, 1 9 85, decisi on . held that public college student go vernments must hold open meetings. The FOI Commission o verruled its 1 984 decision that colJege student governments do not constitute public agencies and can close meetings to reporters. Paul Parker, news editor of the University of Connecti­ cut at Storrs Daily Campus, ftled for a review of the 1 984 FOI Commission decision after a student government meeting in April 1 98 5 was closed. Parleer clai ms that prior to the new FOl ruling the student government could make i m portant financial decisions behind closed doors. Former student government president at Storrs, Jay Stofli, along with Paul Shapiro, attorney for the University of Connecticut, oppossed the new FOI commission deci­ sion. Stofli said the ruling will make student government "less efficient." Paul Thiel, editor of the University of Connecticut at Waterbury Daily Campus, said he has had no problems with his reporters being denied access to any school or student government meetings in 1 985. Truel credits this free access to a "very cooperative student government and administration. " Parker, who requested the review in May 1 98 5 . said he had been confident about the case. "Last year they (the Storrs' campus paper) presented a poor case and mine was better," Parker said. The FOI ru ling clarifies that student government meet­ ings in Connecticut cannot be closed and student govero­ ments must notilY the press about upcoming meetings. Parker says that the "student government was worried about getting bogged down with announcements:' but he reports " they are adj usting to it." Win1er 1 Q85-86

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According to Parker, no efforts by the school's attorney have been taken to appeal the case. Connecticut joins a growing iist of states that have applied state open meeting laws to college student governments. A 1 984 study by the Student Press Law Center found that the laws in Califor­ nia, Louisiana, Nevada. New York. Oklahoma, Virgi nia • and Washington had been applied in a similar fashion.

---SPlC Report 1 1


LI BEL

Michigan State case drags

on

A libel suit pending agai n st Michigan S ta te U n iversity's State News is proceeding sl owly while the Sta te Ne ws ' atto rney s prepare to file a m o tio n for summary judgment

sometime before March. If summary judgment is de ni e d the case s h ould go to trial in mid 1 986. Robert H. Boling, President of Eco-Te ch , I nc . . is suing the paper because of a November 1 983 article. The article accused Boling of misallocating u nivers i ty contract funds and was accompanied by a picture of beer and potato chips to sym bolize the al leged misuse. The article was the result of a State News st udy of un i ve rsi t y documents. Boling res pond ed with a letter refuting the Sta te News ' claims and req uesti ng published cla rification. Th e Derrojl Free Press and Associa ted Press both reported the Stale News' original story but later printed retractions i n re­ sponse to demands by Bol ing The suit was filed in December 1 983, but as of yet nO action has been taken in

claimed that Roepken was damaged in his profession both as a med i a producer and a journalism instructor. Roepken's a tt o rney Charles Nixon, said that the Appel· .

late Court considered McCarthy'S colu mn to be "name cal l ing" r at he r than defamation. It also said in dismissing the case that the article di d not reflect on Roeplce n s profession. N ixon said that the co u rt also i ndicated that a teacher may be a l imit ed public figure, which means that with i n Harper College he may be SUbjected to more critical personal co m me n t. (Roepken v. Board oj Trustees. No. 2-84-0798 (Ill. App. Ct. Oct 1 7, 1 985).) Nixon expects to file an appeal with the Illinois Supreme Court. Jeanne Pankinin, Harper College's Director of Student Activities. said tha t there had been no move on behalf of the school to control the cont en t of the The Harbinger. H owever, she did express a personal co neem that .. the paper takes i ts l iberties and uses t he m to air petty gri e vance s . " • '

.

court. Attorneys for the newspaper say th at the Stale News d id not print a retraction because Boling's letter did no t poi n t t o a n y specific examples o f false o r defam atory m at eria l Although the letter points to statements from the art i c le the State News ' contends that no ne of them were in facf objectionable and therefore did not requi re a retraction. According to Stale News att orney Noah Yanich, Bol ing m ai n ly objected to the tone of the arti cl e specifically th e picture of beer and potato chips. Yanich said he bel ieves t h at Boling will ulti mately sett le for a foll owup article. The complaint currently demands $ 1 0,000 for i njury to Bol ing • and h i s co rporati on .

.

,

.

Dartmouth chaplain pursues suit The libel sui t brought agains t the Dartmouth Review by a unive rsit y chaplain will probably not go to trial until late 1 986, says the independent newspaper's attorney. Mot ions submitted by the Re veren d Richard Hyde's attorney to add two more defendents to the suit and to compel Hanover Review, Inc., the Review's publisher, to hand o ver their s ubs c ribe r mailing list are pending. The su it which was ftle d earlier this year. demands $ 3 million i n libel damages because of se v e ral articles that appeared between May 1 983 and April 1 9 84. Ci ted most often by Hyde's attorneys is a satirical col u m n published by th e Review in April 1 984, wh ic h said among other t hings that Hyde defended the North American Man-Boy • Love Associa tio n. ,

Illinois co u rt dismisses case

The Appellate Court of Ulinois has dismissed a libel

suit brought against Harper College's Board of Trustees and the student ne ws paper The Harbinger. In May 1 983 The Harbinger printed a guest column by student Michael McCarthy which con tained the line "Here's to Mr. Henry Roepken, the most disgusting, hardheaded, and stingy instructor I know." Roepken brought suit in January 1 984. In J u l y of that year the trial judge granted The Harbinger's motio n to d ismiss the complaint Roepken appealled in August 1 9 84 to the Second District Appellate Court of Illinois. The appeal ,

12 SPlC Report

Georgia defendants seek removal The Board of Regents of lhe Medical College of Georgia and B rian Stone, a student editor, have pursued two different legal chan nels to h a ve their names removed from a pending l ibel su it . The suit was brought by a nursi ng student at the Med ical College of Georgia against the school's satire magazi ne. the Cadaver. T he nursing student, Susan Brooks. wrote a let te r to t h e editor criticizing the style of humor whieh she labeled as fit to l i ne "the botto m of bird ca ges . The editors wrote a scathing reply which Brooks has labeled as l ibelous. Brooks lost her case at trial when a state court judge "

Winter 1 985-86


LIBEL

:

granted a summ ary j udgment �otion i n fa or o .the Cada ver. stati ng that the publicatIOn was , a sat l ncal articulation of opi n io n . " The j udge also con sidered the editors' reply as being provoked by Brooks' letter. The provoked libel doctrine slates that. t e on� at �ault can not recover c i v i l dam ages for retahatIOn In kind . Brooks a ppeaUed the finding of provoked libel to the Georgia Court of A ppeals a n d won. The Cadaver then appealled to the Georgia Supreme Court. which upheld the lower court's finding that Broo k s had not in fact provoked a harsh response by her letter (Slone v. Brooks, 322 S.E.2d 728 ( 1 984)). The case is now back at the trial level to determ ine if Brooks was in fact l i beled. Stone, one o f Cada l'er's stude n t editors, recently paid Broo k s a n u n d i sclosed a m ou n t for a " covenant not to sue." Th is agreemen t removes his name from the suit but does not wa i ve Brooks' right to continue her suit agai nst the other part ies.

In addition, a mOlion is pending to have the Medical College of Georgia Board of Regents dropped as a de­ fendant i n Brooks' suit. The senior assistant for the state attorne y general i n Atlan ta, Alfred Evans J r. , who is rep resenting the Board, said that he would be sUf1)rised if the Board was left i n the suit. "I don't see any connection between th e Board of Regents and the student newspa­ per," he said. Evans also felt that there had been a statute of l i m itations violation in t hat the Board had no t been named in the suit until over two years after the incident occurred while the Georgia sta tute sets a one year limit. Even if the Board remains in the suit, Evans said he feels that Brooks' chances of recovery against the Board Regents are " slim t o none." Brooks' lawyer, V i ctor Hawk, said that a j u ry trial determine i f Brooks was in fact libeled should be held January 1 986.

of to by •

STU DENT GOVE RN M E NT -------

Wisconsin

U . W . M . student court rejects libel suit

Three editors o f the University of W i sc o n si n- M i l wa u kee ' s s tu d e n t newspaper were notified i n June 1 985 that t he y were be ing sued for l i bel in a stude n t court. The claim was filed by the College Republicans after ao editorial written by Managing Editor Doug H i ssom appeared in the May 2 issue of the newspaper, the Post. The editorial concerned recent student govern­ meot elections that had been de­ clared i nvalid because two of the "Alternat i ve Party" candidates were not students at the time of the elec­ tion. The two students were allegedJy mem bers of the College Republicans. Hissom's editorial contained the sen­ tence referring to the two candidates: ·'Eleven years a fter Watergate ooe would have t hOUght t hese ' Nixon youth' would have l earned," The "law s uit" asked for lhe Posl to be fined $ 500 and for the three editors to be removed. The Post filed a mOlion for d i s m i ssal stating t h at the student CO Uit "clearly lacks e i ther the authority, j u ri sdiction, or exper­ tise to deal wi th the complex issue o f free speech in a democratic society." It also sai d that " the case is without basis and is a fri volous n uisance sui t." The court denied the motion saying that neither o f the Post 's claims were val id. In August the court accepted the Post 's motioo for sum mary j udgment saying th at legal precedeot held that pol itical parties Winter 1 985-86

can not sue for libel. The suit raised questions to how binding the student court's decision would have been if it had found against the POSI. Bot h Hissom and State Representative Barbara Notes­ tein have requested that the Wiscon­ sin Attorney General produce an information opinion on the matter. Hissom has n ot yet recei ved the o pinion but recently was informed that it was being worked on. _

SPlC Report 1 3


STU D E NT GOVE RN M E NT --------_ ..._.._.... ... ._.... --_. . . .

North

------

Dakota

NDSU editors' salaries returned

after student government review

After two semesters in a conti ngency fund, the salaries of th e edi torial staff of the Nonh Dakota State U ni vers it y (NDSU) Spectrum were released on October 9, 1 985. The editing staff mem be rs have only been paid one-third of thei r regular salaries since 1 9 84. The NDSU student senate placed newspa per salaries in a conti ngency fund in s pri ng 1 98 5 after Spectrum was accused by student govern ment officials of failing to serve its readers. Donald H. Ewert, Board of Student Publication Chair­

man claimed. "The goal of t h e Finance Commission [of the student senat e J was to interrupt the strangle-hold on Spectrum content and hopefully create an awareness by its stafT of true student body i n terests." Lori Lech tenberg, Spectrum editor, convinced the stu­ de n t government on Octo ber 9 to release the funds and to help im prove Spectrum rather than withhold staff m em­ bers salaries and decide the paper's content. The decision to release the funds occu rred on l y after Spectrum was placed under review by the student senate. Lechtenberg said tha t she and her s ta ff interpreted this review as a serious breach of t h eir First Amendment rights, and the n ewspaper printed a series of editor al s condemn ing the student senate's act i ons. One such edi toi

rial called the senate review a "Power Play." In a fro nt page article in Spectrum Lechtenbe rg ques­ tioned the formatio n of th e review committee. "It was seen by our staff as ce nsorshi p because any kind of th reat from a fi nancial supporter is censorship." In the win ter of 1 984 the paper came u n de r sharp criticism from s t udent government officials for inadequate coverage of s t udent senate and student government eJec­ tions. "The Spectrum edi torial staff was urged in the spring of 1 98 5 by n ot only members of t he student government but also a si gn i fica nt part of the student body to cooperate fully in promoting stude n t elections," wrote Ewart in a letter t o Spectrum. Professor Lou Rich ardson of the NDSU Depart m e nt of Commu nications disagreed with the student senate s deci­ sion to form special com m i ttee to revie w Spectrum. Richardson said that the review committee " is sayin g i n effect that because it di sapproved of last year's staff you bave the right to demand certain performances from this year's staff or else.-' With the release of staff salaries Lechtenberg says she can i m prove Spectrum without further student govern­ ment review. • '

California

Quarterly paper drops suit as result of resolution of election controversy A lawsuit brought b y a student newspaper i n Southern Cali fornia h as been dropped due to a satisfactory resolu­ tion of a n el ection con troversv In April 1 98 5 the Associated Students at the U n iversity of California-Irvine (AS UCI ) confiscated 5,000 c opies of the student newspaper the New University because it contained La Vox Mestiza. an ethnic Quanerly, as an i nsert. The Associated Students objected to the fact thaI La Vox Mestiza co ntained endorsements of candi da tes in stu dent elections. Altbough t h e Communications Board, consisting of college media editors. student body vice­ president and the administrative vice pres i d ent has set no gu idelines for content of the media, it has required that all vi ewpo i nts be represented. The New University always runs endorsements accord­ ing to editor Danny Su lli van, but the paper always gives equal time. Sullivan said that the Associated Stud ents did not like La Vox Mestiza 's endorsements because they were less mainstream " than the New University 's. When La Vox Mestiza Questioned why there had never been an attempt to stop tbe New University 's endorsements the re p l y was that no one had thOUght of i1. La Vox Mestiza i s funded en tirely b y the ASUCI while New University .

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"

1 4 SPLC Report

receives approximately eight percent of its b udget fro m the orga n ization. The events occurred in the m iddle of a student election controversy. According to Sullivan, one spri n g 1 98 5 election was thrown out because i t appeared t o be rigged . The La Vox Mestiza issue came out im media t el y proceed­ ing the second election and were confiscated. La Vox Mestiza filed suit, and a th ird election was run as part of an agreement of all parties involved in the suit. As long as the election ran s moothly the suit would not be pursued. No complaints concerning the thi rd election were raised. Si nce then revisions in the rela t io nship between the media, the Associated St udents and the campus at large have been proposed. Sulli van said that the proposals are attempts to break all links between ASUCI and the m edia so as to avoid conflict. He said t h a t the revisions had bee n planned for a while but t he con fiscation of La Vox Mestiza s howed how haph azard l y the current arrange­ m e nt had been put together. Sulliva n is very much in favor of th e proposal but said he did no t thi n k lhat the Chancellor would sign a n y revisions unless he felt that the _ rest of the school approved . "

"

Winter 1 985-86


CE NSO RS H I P . ....__. ----

Michigan

Military ads trigger editor's firing Controversy that resul led in the firi ng and reinsta te­ ment of an editor con ti n ues 10 brew aro u n d t h e advertis­ i ng policy of the student newspaper at a school in Detro i t. Mich. Pa tricia Maceroni. edi tor of the South End al Wayne State University, decided in September 1 985 that t he paper would DO longer take m i litary advertis i ng, Th e South End 's edi torial board supported this move as a protest against Presidenl Reagan ' s involvement in Cent ral A merica. The armed forces purchase approximately $4,000 o f the South End's $83,000 yearly advert ising i ncome. The new ad policy was an nou nced in an unsigned editorial and there was little doubt that Maceroni had the right to control advertisi ng, accord i ng to Managing Editor Christopher Green lee. The paper's charter gi ves the editor the right to hire a n d fire advertising staff. Several weeks later Wayne State's Publications Board met a n d fired Macero n i for her refusaJ to accept Ihe m ilitary ads, The Board is m ade up of six studen ts, appoin ted by the s l udent govern ment, one professional journalist. and two employees of the university, 'appoi n ted by the adm i nistration. Accord ing to Maceroni, t hi group's sole purpose is hiri ng the ed i tors. It has no finanCial power over t he paper. Greenlee said t hat the Publications Board reported l y was told b y t he administra tion that the universi t y's fu nding would be taken away fro m the South E"d i f Maceroni was not fi red. W a y n e Sta le gives approxim ately $ 1 00,000 to t he paper, contri buting over half of the South End's budget. Maceroni filed su i ts in federal a nd state courts against the i nd i vidual members o f the Publ ications Board and the school's p resident i m mediatel y following her firi ng. G reenlee said that the South End staff was divided about the ad vertising bu t su pportive of Maceroni. The editorial board saw the policy as a "blow agai nst hypocrisy," he said. Support for Maceroni by the student body was resoundi ng, he added. I n early October a rally attended by approxi matel y 1 00 people was held followed by a m arch 10 the President's O ffice. When t he group arrived it found the buildi ng surrounded by over a d ozen policemen. After chan ting outside for an hour the studen ts fou nd that the Presiden t had left by a back e n trance. On October 2 1 Macero n i was rei n stated after a federal court judge said that the Publica tions Board's meeting i n which s h e had been fi red violated Michigan's open meet­ i ng act, The act requires that a l l deli berations of publ i c bodies concerning employees be open u nless t h e em ployee wishes them closed. The Board's meeting was conducted i n pu blic for 35 m i n u tes and then closed for four hours, Maceron i and Ihe South End h a ve decided to accept the military's advertising because Maceroni felt that the Publications Board would ha ve no hesitation i n firing her aga i n , this t ime in an open meeting. However. accompa­ nying each armed forces ad is what Maceroni terms a "coun ter-ad ," These consist of commentary often wri tten by a Vietnam veteran on the South End's stafT. M aceroni has heard repons t ha t t he m i li tary recrui ters are very u nhappy with this, but she com men ted . "They don't ha ve Winter 1 985·86

/ / advertise." The busi ness office of the uni versity earlier received a letter from one branch of the anned forces complain ing thai t hey were being den ied access to the students. accordi ng to Maceroni. The editor is pleased with the effect of the cou nter-ads. "They have taken the emphasis away from t he ad policy and put it back on Reagan's actions in Central America," she said. Wayne Sta te's students have been q u i te supportive of Ihe Soulh End 's policy. Maceroni said, There have been rallies about Macero n i 's position as editor and the larger q uestion of Washington'S policies i n Cen t ral America. A lso the studen t government passed two resolu tions to completely reorgan i z(' t he Publica t ions Board . Maceroni noted that the stude n t me m bers of the Board were appoin ted by last year's government which was m uch m ore con serva t ive than the cu rrent body. • . . \0

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SPL C Repon I S


CE NSORSHIP -----,---- ------ ----, -------

C·a/�Iorn i{l

Election support yields controversy Both a lawsui t and l egi s l a tive bi ll concerning electoral e n d o rseme nts in the Cal i fornia State University (CSU) system's student newspapers are proceeding slowly. Title 5 of the Ca l i fornia Admini strative Code prohibits the funds of any organization in the CSU system to be us ed to su pport or oppose any poli tical candidate or issue. In 1 9 76 the edi tors of the H u m boldt State U niversity s tude n t newspaper. Lumberjack. we re informed by CSU administrators that they interpreted Title S to mean that a l l polit ical endorsements had to be signed by the authors so as not to imply that the statements were the official position of the paper, the students of Hu mboldt State, or the uni versi t y. In May 1 984 the Student Legi slative Council of Hum­ boldt State approved the Lumberjack 's budget for the 1 984-8 5 academic year. It incl uded "budget language" which required that all media should include a disclaimer saying t hat " opin ions expressed are those of the a u th or and not nece s sa ril y those of the A ssociated S t u dent s Hu m boldt State University, or anyone else." The budget also stipulated t hat Associated Students of H um boldt State Un i versity (ASHSU) fu nds should not be used to support any political candidate or issue. Lumberjack editor Adam Truia, along with the rest of the paper's editorial board, decided in October J 984 to endorse (Wo local Democratic candidates, Walter Mondale for P re s ide n t and to recommend " no" votes on four propositions all in t he name of the Lumberjack. After the election issue appeared the Lumberjack's advisor Howard L. Seeman on school order suspended Truitt i n definitely for " k nowing and wi l l ful violation of Title 5:' ASHSU notified Truitt that the paper's actions were in violation of the budget language. The ASHSU Treasurer Stephen York i m plied that t h e Lumberjack's funds might be frozen because of the editori a l . Trui tt pursued Hum bo ldt State's i nternal grievance system to get reinstated to his position but was unsuccess­ ful. In December Truill a n d the rest of t h e Lumberjack edi torial board filed suit in the H u m boldt Cou nty Superi­ or Court saying that the school's action was in violation of both sta te and federal constit utions. The suit names over 40 people as defendan ts. including Seeman, members of ASHSU and the Board of Trustees of CSU. The Lum­ berjack 's lawyer, Arn ie Braafladt, said that he is currently in t h e process of getting depositions. He added that they are trying to go foward as quickly as possible because the Lumberjack is p l a nni ng to run endorsements in its name duri ng l ocal elections in spring J 986. The process has slowed, however, due to the interven­ tion of the Humboldt Sta te College Republicans. Interven· tion is the adm ittance of parties on their own initiative not orgi nally named in a suit but who have an interest in the final outcome. William Barnun, the College Republi­ cans' attorney, said in a May 1 9 8 5 Lumberjack article that all in terests were not being represented. Concurren t l y . the California State Student Associ a ti o n (CSSA), which represents over 300.000 CSU students, '

,

i nitiated the introduction of Assembly Bill 1 720 (AB 1 720) to the California Legisla ture. AB 1 720 is designed t o clarify the ri gh t s a nd respon sibilities of t h e CSU campus newspapers and magazines. Chris Roeckl, Lumberjack editor and plaintiff i n t h e suit . said that, although he was told that Truitt's firing sparked t h e proposal of AB 1 720, as far as he knew no newspapers or magazines were consul ted du ring the drafting. Braadfladt and the Lumberjack repan that they are not happy with the language of AB 1 720. Braadtladt has written a letter to the authors of AB J 720 expressing his clients' objections. The bill currently calls for a statement i n each publication saying that the opinions within are those of the "editorial board of t he publication and n ot necessarily those of California State Universities or a ny other entity which gives financial support." The Lum­ berjack feels the disclaimer should say only that the opinions are not necessarily the opinions of any of those gro ups Roedel also objects to part of the bill that allows the trustees to make any regulation they "deem necessary to assure the protection of the rights of the student expression. " He sees this as giving t he Board of Trustees the latitude to fire editors at will. Roeclel is also concerned .

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CE NSORS HIP because he feels tha t AB 1 7 20 is as restrictive as the current code. Furth erm ore, i f AB 1 7 20 passes, a v i olation would constitute breaki ng the law instead of just a student code. Paul Knepparath, legislative di rector of CSSA, said th a t they have resisted amend ments from the Lumberjack because the su i t per se is not the issue i n which the CSSA is c o n cern ed AB 1 720 has passed both houses of the Cali fornia legislature and is now back in conference committee to work out amendments agreeable to both h ouses. After agreement the bill wil l go to the Governor in early 1986. Knepparth said that the vote in the Senate was very cl ose beca use some of the members still bel ieve that student .

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papers are an ann of t he S ta te. But he noted that th ey needed "some education . " Braadfladt said that the bill has become quite p ol i tica l because the Republican party in the legislature is "trying to overregulate the student press." Roecld is skeptical conce rn i ng AB 1 7 20's cha nces of being slgned by California's Repu blican governor. He says both houses voted party li nes on the bill, and Republicans are a slight minority i n the state legislature . Roeckl dou bts that if the bill gets se nt back to the le gi slat u re it wi ll receive the two-thirds majority that i t needs to overturn the Gover­ nor's veto. ReeckJ also comme nted, "I wo nder if we'd endorsed a couple Republicans if the bi l l would have gotten a better s howing. • "

Truitt awarded Scholastic Press Freedom A ward Adam Tru i tt former editor of the Lumberjack at H u m bol dt State ,

U n i versity in Arcata. Cal i f. , has been named the recipient of the 1 985 Scholastic Press Freedo m Award. The award. sponsored by the Student Press Law Cen ter (S PLC) and the National Scholastic Press Collegiate Association/Associated Press, was prese n t d by SPLC exec­ utive director Mark Goodman on N o vember 2, 1 985, at the Asso­ Press/College Collegaiate cia ted Medi a Ad visers national conven­ tion in Dallas, Texas. In prese n tin g the a ward to Tr­ ui11, Goodman c i ted the responsi bi­ lity the former edi tor displayed by advising school administrators o f his intended action before t h e fact a nd the courage he demonstrated i n laki ng an action that resulted i n the loss of his position on the newspa­ per. Goodman also noted th e com­ mi tment Truitt co n t i n u es to s h ow to the Fi rst Amendment rights of

by h i s pursuance of th e matter long after h i s graduation from H u m bold t State. The Sc holastic Press Freedom A ward is give n each year to the h igh school or college student or st udent medium that has demon­ strated outsta nding support for the First Amen dment righ ts of stu­ dents. N o m i nations for the award are accepted u n t i l August 1 of each year and should clearly e x pla i n why the nom inee deserves t he Scholastic Press Freedom A ward. A nominee sh ould demonsta te a responsi ble representation of press freedom t h rough wr i t i ng or actions a n d the a b i l i ty to ra ise difficult and nec­ essary issues in news coverage. students

Send nominat ions to: Sch olastic Press Freedom Awa rd Student Press Law Ce nter 800 1 8 th Street. N W Su i te 300 Was hi ngt o n DC 20006 .

North Carolina Petition to reorganize Daily Tarh eel fu nding fails A gro up o f students a t the U niversity of Nonh Caroli­ na-Chapel H i l l recently circula ted a petition to have the st udent new spa pe r s fu nding reorganized. Each issue of the university's pa pe r the Daily Tarheel. carries a q uote from a public. political or literary figure on the fro nt page. The September 4, 1 985, issue carried the words of the Gennan philosopher Friedrich N ietzsche "God is dead . " Some students objected to the q u ote and fonned a group cal led God is Al jve Now Today (GIANT). Sixteen percent of the Dally Tarheef's funding comes from mandatory student fee s contribu ti ng approx i mately $ 7 8 ,000 to the paper's $ 500,000 budget, according to Arne Rickert. Daily Tarheel co-edit or . The paper is given free to the school and comm u n i t y GIANT i n i tiated a petition a d v ocat i n g that the u n iversi ty's consti tution be changed so '

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Winler 1 986-86

that the stude n t fees for the Daily Tarheel would no longer

be mandatory. G IANT spokesperson Kevip Graham Ford said that the group feels that students should have the ch oice whether to pay for the paper. He said t hat GI ANT's objection to the N ietzsche quote was based on the fact that it was taken out of the larger context of the philos­ pher's work. The petition was dropped due to lack of i nterest within the student body. Ford said. G IANT had collected be­ tween 800 and 900 signat ures before the decision not to pursue the issue was made. Rickert said t hat a peti tion to change the stude nt constit ution has to be signed by 1 0 percent o f the u n i versity's full-lime students, which would amount to approxi ately 2, 1 00 signatures. •

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C E NSORSH IP

Oklahoma

Teachers and district conflict over policy The publications policy of the Tulsa, Okla., public schools has come under scrutiny after a h igh school newspaper was w i t h held by the admi nistration i n the fall of

1 984.

The

Homeco m i ng

issue

of the

Hornet Voice. the student newspaper

of Booker T. Washington High School, was wi th held due to a quote from the Homeco m i ng Queen . Kim Hill was qu oted as saying that Wash­ ington High <'was not ready for a white Miss Hornet." All the recen t queens had been black wi t h the ex­ ception of a Vietnamese girl at the

school, which is 50 perce n t white and 50 percent blaCK. H i l l later said that she was m i squoted. The Tulsa policy requires that all publications be submitted to the principa l three days before publica­ tion. It goes on to state t h at if the material is thought by the principal to be li belous, obscene or advocating i llegal or d i sruptive action it can not be d istributed on the campus. The Stude n t Press Law Center (S PLC) was a pproached by Eileen Sim mons, then adviser to the Hornet "··oice. with questions concern ing the constitutionality of the Tulsa policy . The SPLC responded wi th a letter expressing tbe legal opinion that the policy was too vague and lacked necessary due process l i m ita tions to be considered constitutionally suffi­ cient. Tbe SPLC's letter was pre­ sented 1O the scbool district's attorney, David Fist, and prompted a twelve page reply. Fist contended that the studen t newspaper was not an open fo rum but i nstead a class­ room activity and therefo re was sub­ ject to more con trol by the administration. Tulsa j ourna lism teachers ha ve attem pted to have the questions of the policy addressed with the help of the Society of Professional Journal­ ists. Thus far they have avoided proceeding through legal channels and i n s tead ha ve tried to get revi­ sions through meeti ngs with the d i s­ trict's a d m i nistration. The teachers have rece i ved support from Mark Pratter, a writer for the Tulsa World. Pralter said that so far the teachers have met with little success. I n his opinion the school board's position is a combi:1ation of not wanting to go back on its policy a nd wanti ng to have control of the newspapers. The latter desire is pursued., accord­ i ng to Pratter, by relegati ng journa­ lism to a secondary status using methods such as having unquali fied advisers or placing i t i n very undesi­ rable positions i n the class schedule. The jou rnalism teachers and the Society for Professional Journalists have conducted two semi nars on the subject, one i n early 1 985 and the other in October. The first involved the school board's attorney, other

local attorneys and the writer of the Hornet Voice 's censored article. Prat­ ter said that th is was considered a success, as it a ired all the sides in volved. The second sem inar was attended by approximately 20 people and covered by a local radio station. However, the school board did not send a representative, so it was not a very useful meeting, Prat ter said. He noted, "This is goi ng to take a lot of

work."

The teachers are now considering a variety of options but have not yet decided what course they will fo llow, S i m m ons said. •

UNCON�munONAL-

POLJe t(

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WInter l Q8S·86


CENSORSH IP

Massachusetts

Harvard censors course guide Editors of the student-produced course guide at Harvard U niversity claim that university officials threat­ ened to stop publica tion unless re­ ports on certain professors were changed. The university-financed guide, the Cue, consists of reviews of courses and professors based on a nonymous numerical and descriptive question­ aires co"pleted by students and compiled t.y student editors. Univer­ sity officials objected 10 what it viewed as harsh criticis ms o f some of the professors. The editors complied with the administration's demands but included notice in Cue 's preface that the censorship had occurred. Barbara Okun, Cue 's editor-in-chief, said in a September 22 New York Times article that only l 7 of 250 courses evaluated were affected by the cbanges. In recent years, accord i ng 10 the New York Times article, the Cue has been relied upon by sen ior faculty to evaluate professors in the tenure process. In the spring of 1 98 5 com­ plaints of the guide be i ng too subjec­ tive prompted the faculty to vote that the completed q uestionaires be turned over to the teachers. Cue

Florida

Bathroom picture causes stir

Winter 1 985·86

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adviser Stephen Ozment worked with the editors during the su mmer to try 10 en hance the guide's objec­ tivity by standardizing the prose. The Cue's preface said, " While the university's actions affected only a minority of the write-ups. censorshi p o f thi s sort un dermines the in tegri ty

a n d objectivity of Cue 's gui de . As H arvard is a private i nstitution, ac­ lions of the admini strators can not be considered to be those of the state and therefore are not prohibited by the First A mendment. Both Ozment and Okun refused to • com ment on the i n cident.

Holes in the walls of men's bath­ room staBs at Miami- Dade (Fla . ) Com mun ity College-North were the subject of a recen t controversy in­ volving the school's student newspa­

On October 1 . Dean of Student Services Raymond Dunn sent a memo 10 Times adviser David Mervis stating that he was "very di sappoi nted" in" the paper's choice of " Watchi ng" as a lead story, saying that it un necessarily hurt the image of the col lege i n the community. Accordi ng to Mervis, the administra­ tion took special exception to the picture that figured prominently on the front page. Dunn, in a conversa tion with Mervis. reportedly said that he felt that a picture of the Miami -Dade President congratulat­ i ng the faculty on its good work. which appeared on page two, would have been more appropriate. The President called for meetings be­ tween the editors and advi sers of Miami-Dade's three campus pape" along with lawyers to defi ne the roles

per,

Falcon Times.

The September 25. 1 9 85, issue of the Times carried a story by Editor Melinda Chait entitled "Watching me, watching you." The anicJe quoted several students who noticed the holes and related i n sta nces i n which they had been observed through them. The article also said two bathrooms in particular were purported to be sites of homosexual activity. Administrators quoted in the article were unaware of the prob­ lent Acco m panying Chait's front page story was a picture of a stall in one of the bathrooms with superim­ posed arrows poin ting to t hree holes in the walls between the stalls.

"

contin ued on p. 20 SPLC Report 1 9


CE NSO RSH I P Herpes and H epititis. The report also st a ted that circumstances i ndicated the man may have been engaged i n sexual activity in the ba throom at the time of his death. Chait, who said she had been under pressu re from the adm i nistration because they were "constantly bringing [the first s tory] up," p u blished a story on the death in the October 5 i ssue " I would have been remiss if I hadn't reported i t," she said, but, " I was worried about the pressure." Howev­ er, Chait said the re a c ti on of the adm inistra t ion to the second story was more subdued, and the general

of the editors and advisers. Mervis said th a t the Times has ofte n carried stories of a controversial nature n one of which were ever objected to by the administration. The newsworthiness of Chait's article was seen when on the night before the September 2 5 issue of the Times was released, a man was found dead in one of the bathrooms mentioned in Chait's story. The p0.­ lice report revealed that the man, who had died of a heart attack. had been exposed to the Acquired 1m­ mume-Deficiency Syndrome (AI DS) virus and had been treated for

.

feeling was that the death was news­ wort h y. The Times sends out "accu­ racy reports" for a l l its stories to on-­ camp u s sources and other people with an in te rest asking if the facts an d tone of the story were ap p ropri a te. There were no co m p laints con­ cerning the second story . As of November 1 no date had bee n set for the meet i ng between the newspapers and the admi n i stration. The i ncident was covered by the Miami Herald. which supported the Tunes in an October 1 1 edi torial. ,

­

Wisconsin

Editor worried about alcohol ad policy The University of Wisconsin's recent attempt to pro­ mote alcohol education has at least one of the system's student editor's worried about advertising regulations which might result. Jennie Tunkieicz, editor of the Parkside cam pus' stu­ dent newspaper, the Ranger, is a member of the Parkside Union Advisory Board, which makes policy reco m me n da­ tions concerning the student union. In the fall of 1 984 the body was presented with a set of Alcohol Vendor Po licies A portion of the policies dealt with ad vertising and la id down specific standards governing alcohol promotion in an effort to de-emphasize drinki n g. One part gave the university the right to approve all promotio nal m ateri a l s Another portion said that ads in the institutional media were not to "portray drinking as a so l u tion to personal or academic problems or as necessary to socia l sexual or academic success." The Advisory Board did not pass the policies because of what it perce ived as constitutional problems with the school placing restric tions on the student media A subcommittee was formed which revised the policies to remove all reference to the media but the administration did not approve this revision. The following semester Tunkieicz received the reco m mendations of a committee on alcohol education commis­ sioned by the Board of Regents of the Uni vers ity of Wisconsin system. These contained the same suggested policy concerning in sti tutional media as the one originally submitted at Parkside. The Board of Regents' guidelines, however, are not binding, Tunkiecz says. Currently the only adopted policy which relates to advertising at Parkside is a Posti ng Policy. This policy prohibits posters from having a representation of alcohol, such as a logo or beer bottles, that comprises over 1 5 percent of the total poster Tunkieicz says she is worried that the admisistration will attempt to expand these regulations by trying to con trol the Ranger 's adver­ tising. Thus far the only problem the paper has encoun­ tered bas been when the adviser of a student group called and ordered a "more appropriate ad" be substitu ted for the original, whi ch had two beer bottles in t h e comer, th a t had been submitted by this st udent group Tunkieicz said it was unclear in wh a t capacity the

5TUDENT FREE PRESS

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AL L lHE: �E.WS " \ �YBf - . . s. s. adviser gave the order as he was also a d ea n at the univers i ty The ad was run as it h ad been origi nal ly s u bm itted. Tunkieicz expressed her CO nce rn to the Dean of Student Li fe, but she said she was uncertain what t he Dean's attitudes were. The university sent Tunkieicz to an alcohol education co nfe rence to see how other schools were im plementi n g the Board of Regents p olic i es After this Tunkieicz noted that it did not appear as if the other campuses were very worrie d . .

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COIIlIIl Ili'd

Winter 1 985·86


CENSORSH I P -_._._.......__._. _-- -----

With many notable brewries, Wisconsin is a state that

is very supportive of the alcohol i ndustry, Tunkieicz said.

The university market i s hotly contested by the beer distributors. Tunkieicz also n oted that Kenosha, where the Parksi de cam pus is located, has the most bars per square foot in the country. Tunki eicz has met agai n with the Dean of Student Life and d i scussed the necessity of having guidelines while safe� uard i n g Ihe Ranger 's Rights. All policies of this type

go to the union's AdvIsory Board, consisting of eight students and two faculty, which then makes reco m m en da­ tions to the Dean of Student Life and the Chancellor. Tunkieicz said that she i s in no way opposed to alcohol education, but is worried about a possible extens ion of the policy. "If some type of ad policy were i m plemented , i t could be extended to the other con tent o f the paper:' she said. "I am worried about what m ight happen when an editor comes in who doesn 't know her rights.". •

Pennsylvania

Funds removed from h um o r mag azine because of 'stereotypical' comic strip Administrators at Tem ple U n i ver­ sity removed Ihe fu n d i ng from the school's satire magazine because of content they labeled "libelous. i n cite­ ful and obscene." In May J 985 Temple President Peter J. Liacou ras sen t a memo 10 administrators and professors saying that editors of the h u mor and sati re magazine ,)pice were to be evicted and all copies of the magaz i ne de­ stroyed. Th is memo also i nd icated that Spice s fu nding would not be conti nued. Liacouras objected to a section in the spring 1 98 5 i ssue of Ihe bi-a n nual magazine en t i tled " Cannibal Com i x.,'· which consi sted of a n u m ber of one-fra me cartoons dep i ct i n g ca nnibals. Managing Editor of Temple's student newspaper, t he Temple Uni versity News, Ge orge S t rawley sai d that Liacouras objected 10 what he ca l led sex ua l and racial stereotypes. Liacouras sai d in a News article that com m u nity members and s tudents prepari ng for fi nal exams were upse t . The News article also reported that Spice 's ed i tor had been told by the d i rector of the U n iversity Publica t i ons Board after the fal l 1 984 issue thaI t he magazine was '"de-

voted to vilifica tion," The director was also said to have hinted that there would be serious consequences if the same type of material appeared again, Steve DiMeo, Spice editor, was Quoted by the News as saying, " I t's a humor magazine, meant for satire, ... not meant to harm anyone. There wasn't any occurence of violence, threats, upheaval or unrest on . campus at .all.'" Strawley co ntacted the Student Press Law Center about this matter in September 1 985. He expressed the News ' fear that the paper might be subjected to the same treatment as Spice. Mark Goodman, SPLC exec­ utive director, said that the removal of Spice 's funding was "very clearly an unconstitutional act on behalf of the ad m i n istration; ... the administra­ tors are not allOWed to control stu­ dent expression that isn't l ibelous, obscene or materiall y and substan­ tially disrupti ve." Between Septem ber to and Sep­ tember 1 2, the News ran articles and editorials about Spice's situati on a n d criticized the administration's action. On September 19 Liacouras an-

nounced he was retummg the fu nd­ i ng, saying that the cutoff was an attempt to defuse a sticky si tua"-n . But because of the fun d i ng cut in I he spring, no staff had been chosen for 1 985-86. Accord i ng to Strawley. Spice 's staff is chosen by a nine­ member Publications Board. which consists of administrators, faculty a nd students. The Publ ications Board has not met s i n ce Se ptember 20 and is only requ i red to meet once a semester. Straw ley sa i d that sup­ posedly the Board has not been able to get all its mem bers together, and apparently it is p lan n i ng to fo rm a comm ittee to study Spice. Strawley sees it as a "classic case of foot dragging." While Strawley feels that i n terest in producing Spice ex ists, the matter has been com plicated by the fact that the President's offi ce has recei ved requests for Spice's funding to be used for other p u blicati o n s. As far as Strawley knows this i s the first time that the Board has been asked to take funding from an existi ng publi­ cation to begin anoioher. _

Spring.

1 985

Temple University s Humor Magazine "Sex, SPOrts, Connabilism, and the American W oy" Winter 1 985-86

SPLC Repon 21


C E NSORSH IP Kansas

Student news program censored A s tudent prod uced television news program that airs twice mon thly on a local cable channel in suburban Kansas City, Mo., was partially cen so r e d by a school district administrator in September. The Shawnee Mis足 si on Kans., school district admi nistrator deleted po rtion s of tbe student news program that reported on a co n tro ver sial teacher contract dispute at Sh awnee Mission South High School in September 1 98 5 . Kathy McNamara, KSMS-TV broadcasting sponsor and a teacher at Shawnee Mission South, expressed deep concern over the removal of portions of t he teaching contract story. "I honestly thin k the ki ds did a good job on t he story. They were very conscientious," McNamara said Wayne Hickox, directo r of the educational media pro足 gram, autho rized the removal of portions of the story. Hickox stated that the high-school news program was i n tended to be a public relations tool for the distric t. "Why should the district pay for something that makes us look bad?" said Hickox. McNamara disagreed with H icko x s decision because the teacher contract dispute was an important story affecting the whole school system. "The st u den ts co uld not ignore it; teachers were demonstrating in fro m of the school," said McNamara. McNamara ad m its her students were disturbed after the news story was drastically edited. The student reporters . went to the local newspapers to protest the school district deci sion on the con tract story. "Several of the reporters are students who have four years of high sch ool reporting and broadcasting ex perience and are m ore confident in reporting on more controversial and important issues," said McNamara. Because of the problems su rro u n ding the teaching contract story Hickox recommended that the fonnat of the news program be change d to a m aga zine show. ,

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McNamara and her staff oppose this plan because their studio is set-up for a news show, and staff reporters like the challenge of the present format. Furthermore, if the news report does become a magazine program, McNamara believes the opportunity for imaginative and investiptive reporting will be diminished. Prese ntl y the educational media office of the sch ool district has not decided w hether it will requ ire KSMS-TV to change i ts format to a public re lati o ns program high足 li gh ti ng school act ivi tie s Undoubtedly, their decision will ha ve con siderable i m pact on the future of K.SMS- TV programming " Student broadcasting is at a po int where student newspapers were fifteen years ago; reporters are unsure what their legal status is or w h at rights student journalists have," says McNamara. ,

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CENSORSH I P

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Montana

Worries about tinanciaJ liability rece n t l y prompted the Boa rd of Trustees of Montana's publ ic u ni ve rs i t y system to c onsi d er wa ys to ga i n more control over college newspapers a n d radio station s. A n October 2 5 , 1 9 8 5 . Associated P re s s story said that I rving Dayton, presiden t o f Monta n a Tech, pro posed that the u n i versity pres i d en t s be given the power to pick the members of the publications boards, which oversee the student med ia on each c a m pu s . The publ icat ions boards in fum wou ld have the power to appoint all the senior

Administrators attempt to control universities' publications boards

editors a n d t o make all policy. Dean of the U niversity of Mon tana j o urn ali s m depart­ me n t Charles Hood and j ournalism professor and adviser to the U n i v er s ity of M ontana's paper, th e Kaimin. Carol V an Valkenburg proposed an al te rn a t i ve that was later accepted by the Board of Trustees. This pol i cy calls for the individ ual colle�s to amend t hei r constitutions to

provi d e for a pUblications board and to specify the me m bership of the board. The purpose of the boards would be to o versee the ope rat io n of the media without infrin gi ng upon their First Amend m e n t rights. Adm i n istrators were wo rried because studies showed that student media o lTered the gre a test risk of liability to the schools of all studenl organizations, the Associated Press story said. However, Hood and Van Val ken burg warned that i ncreased c on t ro l by the u n i versity would only i n cre ase i t s risk of l iability. Mike Mortier. chairman of the M o n tana Associated St udents, said that all stude n t body presidents at the six campuses of Mon tana's sy s te m were in support of the al ternative policy approved by the Board of Regen ts. •

Th� First Amendment: Congress shalf ma ke no law

Keeping Fre Presses Free

Freedom from State Reli gion respecting a n esta blishment of rellgfon, Freedom of Religion

or prohlbttlng the free Exercise th ereof; Freedom of Speech or abridging the freedom of speech, Freedom of Press or

of the press;

Freedom to Assemble or the right of the people pea ceably to assemble, Freedom to Petition a nd to petition the government for 8 redress of grieva nces The Flfst Amendment guarantees to newspaper e d it or s . students. and everybOdy

else freedom Irom any form 01 censorship by any member of any branch Of the

go..,ernment at any le..,el ThaI bulwark of a free society will be the focus of the nalional

s

celebration of Freedom ol lhe College Student Pre s Day on January

Coll e ge Media AdVisers urges

cottege student

media across

t 9 . 1 986 the country 10 con duel

that celebrahon Ihroughout the month of January by spreading . explaining, diSCUSSing. sowing.

culatlng ,

dlstnbulmg,

dlssemmatlng.

shouting.

laving about, s"1glng. Signing,

clr·

trumpeting . prese nting. publiCIZing. promulgabng. proclaiming. advertiSing.

announCing. repOrhng .

writmg.

editOrialiZing about. and otherwise pubiishlng a n d

broadc asting the c rU C i al message 01 the First Amendment

CMA Co mmi t t ee o n Freedom o f the If 'Iou can't walt. wfl l e to the commillee at Student Publications. Eastern IllinOIS Unillersity. Charleston. III 6 1 920 (or call 21 7 · 58 1 ·6003) Watch yOUr mailbox for further details from the

College

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Colorado

Adviser seeks court decision concerning dismissal hearing \

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Charlotte Norton, form er Bear Cree k (Colo.) High School newspaper adviser, is appealing the findings of a hearing officer in the Colorado Court of Appeals. From the fa l l of 1 9 82 10 N ovember 1 984 Norton was the adviser of Bear Creek's student news p a pe r Bear Faces. Ma ra n Doggett became p ri ncipal of Bear Creek i n August 1 983. In Doggett's spri ng 1 9 84 evaluation of Norton the following la nguage appeared: " Prior to ne x t year we need to develop a pla n that will enable you to make final decisions about what is pri nted i n Bear Facts, Norton objec ted to what she felt was a blata nt call for censorship a n d the sen tence was ch anged but s til l she fel t that she was being asked to censor her students. I n mid October 1 984 the Bear Creek adm inistration began an investigation of Norton's conduct based upon a s t udent s allegations that Norton had bought bee r fo r students a n d that sh e had st u dents perform personal erra nds Charges agai n st Norton were filed u n der the Colorado Tenure Act. The dist ri ct listed fifteen counts justi fyi ng dismissal including i m mo ral ity incompetence and insubordination. At the April 1 98 5 hearings Norton claimed that Doggett pursued th e i n vestigation because h e wanted to dismiss her due to her refusal to control the cont ent of the paper. J n a n October 1 985 i nterv i ew Norton said that Doggett objected to ed itorials in t he paper which criticized his policies. "

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\f YOU IX)NT LIKE

RESIGN !Y'I

ITI

The hearing officer, j udith Sch ul man. fou n d t hat "the First Amendment issues raised by Norton were not a substantial moti vati ng factor" in Dogge tt s the school boa rd s or the s upe rint en dent s actions, Sh e stated that since students had initially approached Doggett and t h e i r claims were sufficiently serio us the principal's i nvest iga足 tion had bee n reasonable. Schulma n fou nd that Norton had in fact bought bee r for students (Norton admitted to doing so twice) and had students running personal errands duri ng school hours. Th e hearing officer saw these as "serious and substantial lapses in j Udgment." In her conclusion Schulman stated that if possible she would recommend probation but as she was bou nd by the Colorado Ten ure Act to suggest retention or dismi ssal she had no choice but to recom足 mend the latter. On June 1 2, 1 98 5 , the J e ffe rson County Board of Education consider ed Schulman's fi n di ng s and then 1'oted to dismiss Norto n fou r to on e. Norton is c u rrently appealling the school board's deci足 sion to the Colo rado Co urt of Appeals with the help (,f the Colorado Education Association (CEA). H aro l d Hagen, Director of Rights at the CEA. said that the appeal is bas ed on t he assertion that there were proced ural errors in the sch ool boa rd heari ng. Among those i s t he fact t h a t witnesses against Norton wer e allowed to testify but not to be cross--examined by Norton's attorney. Also Norton was '

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ADVISERS not l old that witnesses would be permi tted and therefore did not have any prese nt i n her defense. Hagen sees this as ev i dence ou tside the hearing and an infringement of the due process provided for i n the Colorado Tenure Act. Bill Bet h k.e, an attorney for the CEA, is representing Norton in he r appeal. He said that the suit does not incl ude claims of First Amendment violations because the heari ng officer had decided in facI that there had been no such occurrence. At the appeal level only questions of law can be addressed: the facts can not be disputed. In Colorado the remedy in tenure proceedings on a ppeal has changed a great deal in recent years and is still developing, Bethke sa id. He stated that he was hoping to

get \.he recommenda tion of probation taken. He bases his argument on a reading of the Colorado Tenure Act which differs from Schulman's. The Act in one place says t here are three results from a hearing: retention, dismissal or probation. Elsewhere the Act reads that the hearing officer can only reco m men d dismi ssal or re tention. Bethke argues that probation is a form of retention and the re fo re Schulman could have suggested probation whereas she said that this was not an option. Bethke is currently waiting for the briefing schedule. He expects the briefs to be due in February 1 986 and the lrial between three and nine months later. •

New York

Adviser claims principal's censorship in suit which seeks her reinstatement The former a d viser of the st ude n t newspaper a t Carle Place High School on Long Island, NY, is awaiting the trial in her case against adm i n i strators of lhe Carle Place Un ion Free School District. Carle Place English teacher Joa n Lyons Sulsky is seeking reinstatement to her position as adviser of the st udent newspaper, The Crossroads, a job she claims she lost because she refused to censor the paper's content. Su lsky says that the con tlicl began a month after Edward Lei s t m a n became pri nci pal of Carie Place i n September t 978. Leislman informed Sulsky that he ob­ jected to an article on a teachers' strike and demanded that in t he future all copy be s ubm itted to him for appro val before publica.tion. Sulsky says thaI Leistman used this prior review policy at various times to order anicles removed, rewritten and qualified. Sulsky often re fused to comply with Leistman ' s demands and pub­ l i shed anicles about wo men a n d the draft, conscientious objectors and an editorial on Carie Place's diminiShing curricu l u m a l l against the princi pal's wishes. ' In August 1 9 8 1 . without explanation . Leistman remov­ ed Sul sky as adviser of The Crossroads, a position which she ha d held for twenty years. Sulsky filed suit in federal court i n Apr i l 1 982 claim ing that her First Amendment righ ts were v iolated because her di smissal was in retalia­ t ion for her refusal to censor her students. The school district filed a motion for su mmary judgment earlier this year. It argued that the constitutional rights Sul sky cla i m s were viola ted belonged to her stu­ dents a n d not the adv iser a n d that the adviser does not have standing to sue on behalf of her students. The j udge denied the motion i n J u ne 1 984 ci ting the recent Colorado Supreme Court c ase Olsen �'. Slate Board for Community Colleges and Occupalional EducaTion, 687 P.2d 429 (Colo. 1 984). which established in that state an adviser's standing to sue on beh a l f of his or her students for aJteged First Amendment violations. The court also said that there was sufficient dispute about the facts to warra nt a trial by jury. Ciro Matarazzo, Sulsky"s attorney, said t hat the court date wa s ex pected to be set for sometime before the end of

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Oklahom a

Hi gh school newspape r adviser fired

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A former newspaper and yearbook adviser at Putnam West High School in Oklahoma City, Okla., has filed suit against the Putnam City School District after be i ng d ismissed by the school in 1 984. Pa tricia Miller has filed suit claiming she was fi red from her job for allowing a six -part series of arti­ cles on abortion, birth control, teen­ age pregnancy a nd adoption to be published in the Putna m West H igh School newspaper, the Town Cryer. The anicles, written by seven st uden t reporters, appeared in the To wn Cry­ er on April 4, 1 98 5 . Miller's attorney, Judy Onken. says tbe school district's biggest com­ plaint about the series centers around a chan describing various con traceptives, th ei r reliability and effect on sexual activities. Onken adds, "the articles dealt with the issue of teenage pregnancy

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i n a ba l a nced and responsible way." The P u t na m City School District1s Studrn t Publications Guidelines re­ q u i re the newspaper to reflect "sch ool and com m unity philosophy in publ ication content . " Onken . howev er. i nsists the series of articles d i d not justify M i ller's dism i ssal . Onken h a s con fidence i n her clent's case. " When Miller was news­ paper adv iser for (he Putnam West H igh School Towne Cryer the paper won 65 journal ism awards," she says. In addi t i o n , M i ller was the 1 98 5 rec i pient of the Beachy M ussel­ man award for j ournalistic excellence presented by the Okla homa Press Associal i o n . Mil ler's case, although sti l l in the d iscovery stage, is an ex.am ple of the growing n u mber of legal disputes i n volv i n g high school newspaper ad­ vi�ers. Onkcn ex pects the case to go to tnal i n December or Ja nuary.

Wyom ing

Recent settlement gives $ 5 1 , 000 award to former adviser for her dismissal A former newspaper a d v i ser's s u i t i n G i llet te, Wyo., has en ded with the rev ision o f the school d i strict's p ubl ica ti o n po l icy. J udy Wort h filed s u i t in federal d i s trict court in August 1 984 sayi ng t ha t the Ca mpbel l Cou n t y School D i st rict's publ ica t IOns po licy was u nconst i t u t ional. S c i fi ca l l y t h e s u i t po i n ted to the fact that broad prior res tra i n t was a l l owed w i t h o u t sel li ng out cri teria as to what could be cen sored . Worth also cl a i med t hat her M a y 1 984 re m o va l as a d V i ser of G i l le tt e High School ' S yearbook and newspa­ per. the Ca llie! Tracks. was a result of her a t tempt to exerCIse her co nstitut ional righ 1s. I n t he fa ll o f 1 98 3 a con t roversy in G i l let te arose surro u n d i n g attempts to rem ove Stephen K i ng's The Sh ill ing fro m t he school l i brary because of its v u lgar language and sex ual and viol ent co nten t . In response, student e d i tors of Camel Tracks decided to repri nt a n a t i onal l y synd icated cartoon satirizing the Moral M aj o r i ­ ty i n t he Decem ber 20. 1 984, issue. I n i t i a l l y Princi pal Jay Cason approved t he cartoon but later refused to a l low it to be publi shed. Cason said i t "ri d i cu l ed the conservat i ve v ie w po i n l , " thus he i n voked the part of the d istri ct's po l icy t h at prohibits distribu t ion of a n y m aterial which "subjects a n y person to h atre d . rid icule-. contem pt or i nj u ry of re putation." Subsequen tly the student s con tacted the St udent Press Law Cen ter ( S P lC ) a nd the A m erica n Ci v i l Li berties U ni o n . Worth and her s t u d e n t s presented t he d i strict with legal preceden t as to why the cu rrent pol i cy was consid ered to be u ncon ­ st i tu t io n a l . They a lso subm i t ted proposed re visions which wo u l d put the pol icy w i t h i n consti t u t i o n a l bou nd s.

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26 SPlC Report

In May 1 984 Worth w a s rem oved from her ad v i se rs h i ps and for thc fi r'\! t i me rece i ved nega t i ve eva u l a t i o ns. The d i s t r i c t rr v istd i t s publ ica l i on po l icy, but in Wort h's v i ew i t wac; � t d l u n c o ns t i t u tional. -\mong the parts Wort h contested w(,re d e fi n i t i ons o r "obscene" a n d " l ibelous," und e li n('d t e r m s \\lcil a s " d l �rupls the ed uca­ ti onal process" and a n.'q Ul relll r n t that e 'v " ry i tem be attributed to l i S a ut hor. On Apri l 26, 1 98 5 . t ill' li:d(' r(l l d is t r t ct ("OUI1 j udge den i ed bot h pa r1 ies' m O l i o n s ro r s u m mary j udgme n t . However. before ( he case w e n t t o t rt J I . Worth reJched a se ttlem e n t w i t h the d i st ri c t . - \ s part of the set t le m e n t l he d i strict adopted a new p u b l i cat i o n s pol i c y . I n the new policy, d e fi n i t i o ns o r "obsct' ne", " l i belous" a nd " s ubsta n ­ t i a l d i sru p tion " a rc m u ch cl oser t o I hose set o u t b y t h e courts t h a n I n t he p re v i o u s pol ICY. Also m a n datory pnor review was replaced with a provision that allows a principal to ask to see the paper I I' he h a � reason to be l i eve (hat t h e po l i cy i s about t o be V i o lated. Wort h ' s a l lo rney. Patrick Hacker, noted that the n e w po l ic� is n o t pe rfect, espec i a l l � i n regards to con t i n �ed pri(lr r(,vin\' or n o n-sc hool SPOIl­ sored p u b l i ca t ions. "( WJe c V l' n t u :1 l I y sel l 1 cd on w h a t we thought was ach ievable pn rt ieu l a rly a s to the I ikely k i n d s of changes t he federa l d i strict J u dge wo uld order:' he said. In addition to the policy cha nges, Worth received $5 1 ,000 in the set tlement. She did not seek to be re­ instated as ad vi ser. according to H acker. because another person had been appoi nted. "She fel t an obligation to the kids not to disrupt t h i ngs by con tinually i njecting the issue," Hacker said . • W I () t e r 1 085-86


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Adviser seeks to clarify finding

A California teachers aSSociatiOn has filed an appeal wit h t he state court seeking the reinstatement of Gary Da loya n as advi se r of the stu­ dent newspaper The Lincolnian and jou rnalis m teacher. Daloyan was hired by the Lincoln U nified School District in 1 9 7 1 to teach j ournalism and be ad vi ser fo r The Lincoln ian at Lincol n High Sc hoo l in Stockton, Calif. During the 1 979-80 sc hool year problem s devel­ oped between Da loyan and Dean Welin, principal, c o n cer ni n g the use of space and facili ties for student publications. In March J 9 8 2 Welin i n form ed Daloyan that he was no t please.d wi th an editori al that had appeared in The Lincolnian and stated that he felt there was a considerable a m o u n t of inaccuracies in the paper. In a memo Welin sta ted that reassi gn ment of the position of adviser was being considered. At the beginning of th e 1 9 8 2 - 8 3 school year Daloyan noted that no bu dget money had been allotted to the newspaper. The funds were re stored to 60 percen t of their previous levels after Daloyan complained. The same year Daloyan was adv ised that be would be observed in the classroom fou r times a year rather than twice as was usual procedure. Daloyan responded in writing saying that he felt he was being unduly harassed. He then fi led grievances under the teachers' collec tive barga i n i ng agreement. The su peri n tendent den­

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ied Daloyan's grievance in May 1 9 83, which Daloyan appealed to arbitration; at the same t i me he was informed that he would be reas­ signed to Lincoln Senior Elementary School to teach Engli sh, typing and one period of j ou rna lism . The teach­ er who replaced Da l oyan as The Lincolnian adviser had no prior ex­ perience in s u ch a position. Daloyan filed a writ of mandate in the California superior coun on the b asi s that the reassignment was in violation of his First Amendment rights, the California Education Code the collecti ve bargaini n g and agreement . This writ was den ied on the bas is that he had ot h er avenues of com plaint outside the j u d i ci a l system. The ar bitra t or determined i n J u ne 1 984 that the school district had v io l ate d the c oll ecti ve bargai n ing agreement by Daloyan's transfer and decJared tha1 Daloyan should be reassigned to "his position" at Lin­ coln H igh. After the period of time specifled 10 request a clarification of t h e deci­ sion had passed, the school district assigned D al oy a n to teach remedial

English at the high school. In Octo­ ber 1 984 the Lincoln U nj fied T each­ ers Associat ion filed a pet ition 10 co nfirm and/or correct the arbitra­ tor's award. The tri a l court found that the arbitrator had exceeded his authority by ordering Daloyan re­ i nstated in his prev i o u s posi tion. The Teachers Assoc i a ti on has appealed this decision. staling i n their briefs that among other motivations. " t he School District transfe rr ed ML Da­ loya n . . . because of the part icular assignment he he l d a t the high school as j o u rn al ism instructor. and newspa­ per adviser." No trial date has been sc t yet but it is expected to be somet i m e in January 1 986. Daloya n is also goi ng to liIe a damages suit i n federal d istrict court for an as yet u ndecided amount. He says it has cost over $30.000 to ge t the case to the Califor­ nia Court of Appea ls. Ernest Tu ttle . Daloyan's attorney in both cases. said the d a m ages sui t will be fi led by the end of the year. •

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LEGAL ANALYSIS

Humor can pose tricky problems Everyone needs a l i t t le h umor in their J ives. St udent journa l ists often recognize this need by attem pting to produce hu morous publications. Someti mes such a publi­ cati on is produced at regu lar intervals solely for sa t i rical purposes. suc h as a monthly lampoon. At other times, a magazine or newspaper that regularly publishes straight news and feature al1 icles produces a special lampoon edition. such as an April Fools issue . A high school or colle ge newspaper can be an appropriate forum for such a parody . if it is handled with responsibility. While publications that cater to satire serve a purpose, the stude n t jou rnal ist should be aware that publ i shing hu mor i nvol ves a risk. An article that the writer intends to be h u morou s may not be received as such by i ts readers. It thus m ay be attacked on a number of theories, most notably l ibel . Add it i onall y, a person may allege that his copyrights or trademarks have been infringed upon, or that his business' product has been disparaged. The article. as wel l as accompanying pictures or graphics, may be attacked as obscene. A student journalist also should be aware of accusa tions that might accompany these claims, such as one of in l1 icting emotional distress.

I- LEgAL AIALYSIS Libel Law

as

it A pplies

to

Satire

Libel is one of the major categories of speech which is not protected by our Constitution's First Amendment. Libel is any pri nted or broadcast com m unication which tends to expose one to pu bl ic disgrace, or that damages one's reputation in the com m unity, or that injures one's livelihood . Generally. a plaintiff may recover for libel if he can show that the j ournalist was negligent in preparing his defa matory story. If the plaintitT is a " pu blic official" (a person who has, or appears to have, substantial influence over govern men tal affairs ) or a " p ublic figure" (a person who vo l u ntarily has th rust himself into the pu blic lime­ light) he m u st prove that the false and damaging state ment was pu bl ished with "actual malice." Actual malice i s the actual knowledge that the statement was false or the rec kless disregard as to whether it was false. The general ru le is that humor is l ibelous if the audie nce that reads an allegedly humorous statement perceives it as a da maging fact. I The writer's intent i s irreleva nt. A student journalist thus m ust be careful to take the audience's perception i nto consideration before publi shing an al1ic le intended for fu n . The audience's perception, however, is not t h e defini­ tive determ ination i n these situations. Even if the audi­ ence did perceive a statement as a damaging fact, th i s perception must ha ve been a reasonable one. One court, for example. held that a television audience could not reasonably i l l terpret a variety show h ost's introduction o f

a professional si nger as an " iron-clad singing member of the Mafia" as libelous. } A court in a similar situation ruled that a n audience watching a video-tape or listening to an audio-tape of a com e dy pe rformance would u nder­ stand the h u morous i ntent of a comedian's word s . ) Some publicati ons have pl aced labels on their parody attem pts as mean s of i n fo rmi ng readers that the articles or advel1i sements were wri tten in jest. Courts. whi le c iting these attem pts. a pparently have n ot taken them into consideration when an n oun c i ng their decisions. Wh ile attachi ng such a "warning" to a publication is a safeguard. it is not one that a l ways will save a publ ication accused of libel from l ia bi lity _ As noted abo ve . a statement made by a famous comedi­ an as part of a co med y pe rformance is more likely to withstand a libel attack than would the same statement made by a nother person on a street corner. Li kewi se . a statement made to a con trolled gro up t hat would under­ stand the satire also is likely to w it hstand attack. For example, one court has held that a lampoon magazine which identified a notorious Duke U n iversity professor as a "sex deviate [ J . communi st[ J ( and an ) advocate[ ) of narcotics" was not libel.4 A wel l- kno wn Duke U n iversity alu m n us had published the m agazine. The recipients of the lampoon were part o f a small. controlled group wh ich was aware of the pro fessor's and the alum nus' notoriety and which i m plicitly wo uld u ndersta n d the hum or. A dd itionally, an a l leged l y h u m orous statement : "1 a monthly sa ti re m agazi ne is m ore li kely to with stand attack than is a sta t ement in an Apri l Fools issue. Another con sideration is whethe r the al legedly h u morous story is obviously pure fantasy; i f it i s, a court is more l i kely to find that it is not l ibelous. Thus, where the audience will u nde rstand the humorous _

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intent of a wri ter' s words by virtue of the conte"t in which they are made, the words are likely to wi thsta nd an attack of libel. If a satirical remark, however, i s made in a situation where the audience would not realize the h umor足 ous intent, the remark m ight not wit h s ta nd a libel attack. One court , for instance. held a radio station and a broadcaster liable for a satirical remark m a de on the air as part of daily comedy routine, as persons tuning in to the station may have heard only that remark without being aware of the humorous co n te x t of the program.s LiJcewise, another court has held that the problem with arguing that a satirical a rti cle appeared in a maga2ine section that was known to it s readers as a h u mor parody a nd satire section is that persons not familiar with the m agazi ne and with the h u mor section may see t he pubtication.6 While t he commission of all h u mor m ay i nvolve a risk, at lea s t one court has held that if the parody is "obviously a co m pl e te fantasy," it will withstand a libel attack.? The court so held in rel a t ion to an a rticle p u bl ished in Penthouse m agaz i n e about the Miss America co ntes t . The article described "Charlene, " a Mi ss Wyo m i ng, perfonn足 ing vari ous se x ual a cts i nc l u di ng levitating a person by perform ing o ra l sex on him befo re a na tion a l television audience. The court fo und that t h is story did not libel the pl a i nt iff, a Miss Wyo m i n g as it w as im possible that such a s i tu at io n would occu r. The court stated t ha t " [ t)he test is not wheth er the st ory is or is n ot characterized as 'ficti on: ' h umor,' or an yth i ng else in the publication, b u t whether the charged portions, in co n tex t could be reasonably understood as describing actual facts a bo ut the p l a i n ti ff or ac tua l events in which she participated."! Satire and the Student Publication: Libel These standards fo r libel, as i t applies to parod y have been applied in ca ses involving s t u de n t publications. In a rece n t case arising out of a s t u de nt press' pu bl ica t io n of a satirical article, a st iJ d ent sued the editors of the Medical College of Georgia's lam poon newspaper, the Cadaver, for libel after they wrote a beavily sarcastic response to a let te r she had written critic izing the p u b li ca tio n fOf its "sick" hum of.9 The editors wrote: Our m others we re German Shepherds; our fathers were Camels, so n at u ra l ly we love to h u mp bitches i n heal. Say, Ms. Brooks.. when do you come in season? 1 0 The t ri al court in this case held in favo r of t he editors. The Court of Appeals, h o weve r reversed. The court distinguished th e case be fo re it from situations w he re labels s uch as " mad dog" a n d "beast" had bee n all owe d and protected as flights of oratory: there was te s tim on y from readers o f the Cadaver that i ndicated that they u nd e rstood the editorial reply as q u es t i oni n g the plaintiff's character and chastity. Al though t he editorial response in the Cadaver was acknowl ed ged to be sa t i ri ca l . the court stated that in an a ct io n for defamation, it is i rrel e v a n t what 'TTleaning the speaker intended to con vey if the s tate ment con tains a serious i m putation: [The speaker] m ay have spoken without any intention of i nj u ring another's re puta t ion, bu t if he has done so he m u s t compensate the party . . .. I f a m a n in j es t conveys a serious im pu ta t io n he jests at h is periL .. What was passing in his

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own mind is im material save in so fa r as his hearers could perceive at the time. I I The Co urt of Appeals in the case involving t h e Cadaver also discussed th e provoked libel do c tri n e , u pon which one o f the appell ate j udges based h is d issent. This d octri ne applies if ( l ) the plaintiff originally was " a t fault" and (2) the libel defendant m erely retaliated "in kind." Although the CO\lI1 detennined t h a t the doctrine was not adopted law in Georgia, it applied the doctrine to the case at bar, d ecidi ng that the two-- p art test would not be met even if the doctrine were pertin e n t. According to the court: In this case, I do not believe th e plaintiff can be considered " at fault." De s p ite her somewhat disparaging d e scriPtio n of t h e Cadaver, two things m u s t be remembered: ( I ) A l e tt ers- to足 the-ed.itor feat u re custo marily serves as a fo ru m for reader opin i o n including c ritici sm of the newspaper itself; a n d (2) the plaintiff obviously was criticizing the nature an4 quality of the newspaper, and did not launch a perso n al i nvective upon the editors . 1 2

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Th e court concluded that the plaintiff's lim i te d criticism of the editorial staff was not libelous. As the plaintiff was n o t at fau lt, the defendants' response was Dot retaliation i n kind. Thus, even i f the provoked libel doctrine were applicable, the plaintiff's cause of action would not be defeated by it. The Supreme Court of Georgia affirm ed the appellate court's decision, noting, however, that the Court of Appeals mistakenly had observed that the provoked libel doctrine previously had not bee n adopted in the state. The court Quoted the language of an earlier Georgia case dealing with provo ked libel: It is no t necessary that the complainant know the exact nature of the l ibel ou s m atter i n o rde r for there to be an invitation of the publication

continued on p. JO SPlC Report 29


LEGAL AN ALYSIS of a li be l . . . . It i s enoug h that the co m pla i nan t requests or consents to the presence of a third party and solicits the publication of matter which he knows or has reasonable cause t o suspect will be unfavo rable t o h i m . ' } While this 1 984 case i nvol v ing the Cada ver dealt w i th an edi to ri al, a res ta u ran t review in a college newspaper was the subject of a 1 98 1 West V irgi n i a court case. In the West Virginia case, a u n i versi ty-paid student newswriter on a university-sponsored newspaper wrote a tongue- in­ cheek, h umorous review of res ta u ra nts in the town where her school was located. 1 4 Th e West V irginia U n i versity reporter reviewed more than 20 food es ta bli shments i n o n e article i n the same humorous manner. One of the ea t ing establ ishments the writer visited as part of the review was a restaurant called "" Havalunch." It was her first time there. She ordered a ba con . lettuce and to m ato sandwich, which she did not like. She also ob­ served a roac h , which caused her to leave one-half of her sa nd wi c h u n eat e n. The newspaper excerpt at i ssue read : HA V ALU N CH-Bring a can of Raid i f you plan to eat here. And paint you r neck red; looks like a truck stop. Y ou ' II regret everything you eat here, especiall y the SLT's. \ 64 Pleasant Street. I S The article reviewing the restaurant was i ntended t o be humorous: Havalunch, however, d i d not rece ive it as such. Haval unch sued the wri ter for libel. The trial court, holding the writer to the actual mal ice standard of review, found for the restaurant. The Supreme Court of Appeals, however, reve rsed . The Supreme Court of Appeals, unli ke the trial coun , held the restaurant to be a pri vate person. Although other jurisdictions had held that res taurants which cater to the public and soli ci t published reviews are public figures fo r purposes of proving defamation, the court decid ing the Hava/unch case distingui shed H a v alu nch from these situa­ tions: Havalunch was a small resta urant among many restaurants, both state-supported. uni versity -run cafeterias and private establishments l i ke itsel f. Havalunch neither solicited reviews nor held itself out as a place of particular interest or culinary Quality. Thus the c ou n held the writer only to a negligenc e standard of ca re . The court held that there Wa!; no negligence in this case, as the facts were sufficient for the writer to fo rm ulate her opinion. The court a greed with the writer's argument that o pinion does n o t suddenly become defa mato ry simply because it is expressed with either humor or a touch of style. The West Virginia court noted that the entire weight of modem auth ori ty is that reasonable latitude in hum or and style is accorded n ewspaper reporters in writing restaura nt reviews. The court stated that Ha valunch was not sin gled out for special treatment, as "the total tune of the story was one of humor and overstatement which would be obvious to any reasonable rea der . " 1 6 The court added that " i f a l l the com m unication does i s t o express a harsh j udgment upon known or assumed facts. there is no more than an e x pressi on of opinion of the pure type, and an action of defamati o n cannot be m ainta ined. For m ai n taini ng the action i t is req ui red that the expression of ridicule i m ply the assertion of a factual charge that would be defa m ato ry if made expressly:" 7 30 SPLC Report

Another student newspaper libel suit which has yet to go to t rial is Hyde v. Th e Hanover Review, Inc, 1 1 Hyde in v ol ves a professor's suit aga inst the DartmolJlh Review. Richard Hyde, associate chaplain a n d professor of religion at Dartmouth, filed a libel suit in New Hampshire Superior Court agai nst the conservati ve weekly, which is published by students i ndependently of t he college. An article in the Review referred to an April 1 983 lecture Hyde deli vered ent i tled , "A Christian U nderstanding of Love and Se x uality . " The article appeared in a satire column entitled, "The Dartmouth Liberation Front." It stated , i n part, that Hyde "sometimes has a good word for the North American Man -Boy Love Association, which may be his i dea of perfected Christianity. Last fall he married a girl he had met only six weeks earlier. " 1 9 The plainti ff in Hyde currently is i n the process o f adding additional defendants to his suit. The cas e is not expected to go to trial u ntil the fall of 1 986. Undoubtedly, the perception of the column by the Review's readers will be an issue in that trial .

Disparagement

Libel is not the only con cern that the student j ou rnalist should h a ve when atte m pting humor. A student j ou rnalist also might take care not to disparage a commercial product in a satirical statem ent . Disparage m ent , like libel, is a form of unprotected speech. Libel inj ures the reputation of an i ndi v idu al or a corporation. Disparagement, however, i nj u res the reputa­ tion of a corporation ' s product. In libel, fa l s ity is pre­ sumed, and the indi vidual being sued must assert truth as an a ffi rm ative defense. In disparage ment, however, truth is p re s umed and the individual suing must prove the falisty of the state m ent. Additionally, the in d ivid ua l suing in a dispara ge m e n t actio n m ust clai m and prove specific damages by a p re ponderance of the evidence.20 I n 1 9 84 the L. L Bean com pany fLIed a trade disparage­ ment suit against High Society magazine. 2 ' Tb e magazine bills i tself as " A m e ri c a ' s Hottest Sex Magazine." L.L. Bean is suing o v er a po rn ogr aphic parody High Society publ i shed i n its October 1 984 issue. High Society's bogus ca talogue featured nude and semiWinter 1 Q85·86


LEGAL ANALYSIS

------

nude models using sports equipment as sexual props. The two-page parody was entitled. "L.LBeam's Back-to-School Sex Catalog." LL Bean publishes a mail-order catalogue of outdoor clothing an d sporting equipment. The parody catalog closely simulated the genuine catalogue in layout, print style and color sche me The simulated catalogue, however, did identify i tself on the contents page as a parody. Nevertheless, LL Bean claims that its products were disparaged by the High Society take-off. Last fall, a United States district court refused to order a recall of the October 1984 issue. A full-blown trial is scheduled for late 1985. .

Copyrights and Trademarks The st udent journalist, along with being aware of libel and disparagement problems, should take care to insure that his articles are not attacked under other areas of unfair trade, such as copyright and trademark infringe­

ment. For instance, the copying of copyrighted material should not be more exact than is necessary for the parodists' purposes. An example of where copying was infriging is Walt Disney Productions v. Air Pirates.22 The plaintiffs in Air Pirates were publishers of a "counter­ culture" comic book. They had copied a number of the plaintiffs cartoon characters in their comic books. Although the names of the plaintiff's and defendants' characters were the same and there was a marked similari­ ty in the characters' appearances, the themes used by each party were quite different from one another: the de­ fendants had a rat her bawdy depiction of the Disney characters as active members of a free thinking, promiscu­ ous, drug�ingesting counterculture. The court determined that they had infringed on Disney's copyrights. If the student journalist does not copy more than is necessary for his satire article, he may be able to withstand an attack of copyright or trademark infringement. For insta nce lyrics printed in Mad Magazine, which had the same meter as the plaintitrs lyrics, but which were in parody form, did n01 constitute co py right infringement.H Likewise, the use of the "I Love New York" advertising jingle theme by a par od i st in a "Saturday Night Live" television comedy sketch portraying an "I Love Sodom" campaign was not copyright infringement.14

careful not 10 o ve rlap with humor. For example, a cartoon depicting a judge sitting in a chair masturbating h a s been attacked as obscene.2s The court in that case he l d that the cartoon was not obscene, as it was part of a newspaper's textural material describing the judge's alleged conflicts of interest and trial errors. Material must meet all three of the following criteria in order to qualify as legally obscene: (l) Whether the average person, applying contemporary community stan­ dards, would find that the work, taken as a whole, appeals to prurient interest ; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct as defined by state law; (3) whether the work, taken as a wh ol e lacks serious literary, anisti c political or scientific value.16 ,

,

Emotional Distress

The student jo urn al i st must be aware that he may be held accountable for any emotional distress that his allegedly humorous article caused. T h is is so even if the court does not find the article libelous. For instance, in Falwell v. Flync21 the court hel d Hustler magazjne, which had been accused of making libelous statements, liable for emotjonal distress. While the jury returned a verdict against Hustler on the emotional distress claim, the v erdict was for the magazine on the libel claim. Falwell involved a parody of a Campari liquor adver­ tisement. The ad featured a picture of Jerry FalweU, the fundamentalist mini ste r The ad was entitled, "Jerry .

continued on p.J3

,

Obscenity

Obscenity is another form of unprotected speech. Thus, it is anothe r area which the student journalist should be

Winler 198�86

SPLC Report 31 -

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LEGAL A NALYSIS Falwel l talks about his first time"; it parodied real a ds in wh ich other celebrities talk about their "first time" with Campari. Hustler magazine published this parody ad in its November 1 983 issue. In Hustler's version of the ad, FalweU's "ftrst time" involved not only Campari but also a sexual escapade with his mother. A purported disclaimer appeared in very small print at the bottom of the page: "AD PARODY-Not to be taken seriously. " The court held that the parody co uld not reasonably be

' . . . humor is libelous if the au­ dience t hat reads an allegedly humorou s statement perceives it as a d amaging fact. ' understood as describing actual facts abou t Falwell or actual events i nvolving him. The audience of the parody pu blication co uld only have reasonably received the statement at iss ue as a joice.

Censorship

The threat of censorship is another reason to to cau­ tious when utilizing tasteless h umor or satire in an article. In Stan ley v. lvlagralh,28 fo r instance. a college newspaper fo und itself fighting for a censorship battle that originated out of a special finals-week h u mor edition. The special issue of the Minnesota Daily contai ned articles. advertise­ m ents. and cartoons sa ti rizing Christ, the Roman Catholic Church, evangelical religion. public figures, n u merous social, political and ethnic groups, social customs. popular trends and liberal ideas. While the Stanley coun spoke about the contents of the satirical issue, it did not role substantively on this matter. The case actually involved a suit by the newspaper, its editors and the Board of Student Publications asainst the president of the university and the Board of Rege nts. As a

direct ra mification of th is satirical edition, the president and the Board changed the method by which the newspa­ per received its fundi ng. The student j ournalists aUeged that this acti on to change the fun di ng method violated the First Amendmen t, as it was motivated at least in part by the offensive issue. The court held that the fu nding change was a First Amendmen t violation. • • •

The student j ournalist th us must be objective when writing an anicle tha t i s i ntended to be h umorous, keeping in mind how a reasonable audience would perceive the article which he i s writing. Most importantly, the student journalist sh ould be com passionate enough to insure that h is attempt at humor does to result in ruining the reputation of a person or business. Students writing for their newspapers must be aware of the risks i n v olved in attem pting to write humorous ani cles. Labeling an article or a pu blication as satire may be a safeguard when undertak.i ng such attempts; however, no court has ru led whether such warnings are sufficient to ward off libel attacks. Various elements factor into the decision of whether an attempt at humor should be published. The subject of the article m ust be considered. as well as the context in which the article is written. A public figure or otftcial more easily is ridiculed than someone who does not fall into those categories. Additionally. an editorial or restaurant review which is based upon opinion is more likely to withstand attack. The same is t rue for an article which is based upon a com plete fantasy. The stude nt j ou rnalis t must take care not to copy too much of an item for wh ich another person owns the copyrights or trademarks. Additionally, a commercial product must not be disparaged . Obscenity also must be avoided. Attempts at h umor th us may be undertaken by student journalists. The j ourna li sts, however. must be diligent i n assessing the risks i n vol ved i n publishing these articles. 1 6Id.

NOTES

I Embrey v. Holly, 48 Md. App. 5 7 1 , -. 429 A.2d 2 5 1 , 259 ( 1 98 1 ), modified 293 Md. 1 28, 442 A.2d 966 ( 1 982). 2Arno v. Stewart, 245 Cal. App. 2d 9 5 5, 54 Cal. Rptr. 392 ( 1 966). lPolygram Records v. Superior Court, Cal. App. 3�, 2 1 6 Cal. Rptr. 252 ( 1 985). 4 Werber v. Klopf er, 260 Md. 486. 272 A.2d 6 3 1 ( 1 9 7 1 ). SEmbrey v. Holly. supra. 6Martin v. Municipal Pubs. , 5 1 0 F. Supp. 250 ( 1 98 1 ). 7Pring v. Penthouse Int 'l, Ltd. 695 F.2d 438, 443 ( l Oth Cir. 1 982), cert. den ied 462 U.S. L 1 32 ( 1 98 3). �/d. at 442. 9 Slone v. Brooks, 253 Ga. 565, 322 S.E.2d. 728, affg 1 70 Ga. App. 4 5 7 , 3 1 7 S.E.2d 277 ( 1 984). 1°1 70 Ga. App. at -., 3 1 7 S.E.2d at 278. I I I 70 Ga. App. at -., 3 1 7 S.E.2d a1 279, quoting Southeastern Newspapers v. Walker. 76 Ga. App. 5 7 , 6 1 , 44, S. E.2d 697 ( 1 947). 1 1Id. (emphasis original). I JId. , quoting Georgia Power Co. v. Busbin, 249 Ga. 1 80, 1 82 , 2 8 9 S.E.2d 5 14 . _ ( 1 982). ' 4Havalunch. Inc. v. Mazza, 294 S.E.2d 70 (W.Va. 1 98 1 ). I sId. at 72. __

1 7/d. I suProfessor drops $2.4 million suit," Student Press Law Center Report, Fall 1 985. at 27. (The title of this article refers to a suit by another professor on a different issue.) 19Dartmouth Review, A p r. 1 6 . 1 9 84, at -., col. 3. lOSee generally Bose Corp. v. Consumers Union, 508 F. Supp. 1 249 ( D. Mass. 1 98 1 ). 2 1 L.L. Bean, Inc. v. Drake Pub .. Inc., 8�305-P, cited in Nat 'l Law J., Aug. 1 2, 1 9 85, at I , 30, col. 3. 22 5 8 1 F.2d 75 1 , 758, (9th Cir. 1 9 78), cerr. den ied 439 U.S. 1 1 3 2 ( 1 979). BBerlin v. E. C. Pubs. , Inc. , 329 F.2d (2d Cir.). cert. den ied 379 U.S. 822 ( 1 964). lAElsmere Music, Inc. v. Nat 'l Broadcast ing Co. , 482 F. Supp. 74 1 (S. D.N.Y. 1 9 80). affd 623 F.2d 252 (2d Cir. 1 980). lSDillingham v. State. 9 Md. App. 669, 267 A.2d. 777 ( 1 980). 26Miller v. California, 4 1 3 U.S. 1 5 ( 1 973). 27(No. 830 1 5 5-4. D. Va. Dec. 8, 1 984) (jury verdict), appeal docketed No. 83-0 1 55 (4th Cir. Ap ri l 22. 1 985). as referred to in Hustler Mag., Inc. , v. Mo ral Majority. Inc. . 606 F. Su pp . 1 526 (CD.CaI. [ 98 5). 28 7 1 9 F.2d 279 (8 th Cir. 1 9 83).

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Winier 1 985-86


lEGAL ANALYSIS Printers and censorship

What rights do student

journalists

have?

There may come a day when a student newspaper, yearbook or magazine delivers its material to a printer and the printer refuses to print what he is given. For example, a printer may find a story con ce rning teenage pregnancy too controversial or may disagree with an editorial in favor of a certain political candida te and, as a result, refuse to print them. Does the student have any recourse? Can a printer legally censor material students submit to him for publication? The School Printer Many high schools and college have their own printing plants that print the student publications. What h�ppens if a printing office at either a publi c high school or a public college tries to censor before actual printing? This form of censorship is known as prior restraint." Prior restraint is a state agent's order that certain material not be printed. The act i ons of a printing office that is part of a public school constitute those of an agent of the state; th us the law regarding prior restraint would apply To understand the legality of prior restraint by a "

,

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I--LBUAL IIILYSIS school printer one first must exa mine the court rulings on prior restraint by other school officials. Courts generally refrain from ordering the prior re­ straint of most publications. They are more apt to apply it to a limi ted degree in the school setting l The United States Supreme Court has held that speech in public high schools m ay be fo rbidden if school authori­ ties reasonably forecast substantial disruption of or material interference with school activities as a result of that speech.2 Most fe deral courts that have faced the issue have upheld some exercise of prior restraint by high school offici als. J Prior restraint, however can chill the desire of student journalists to delve into controversial areas; thus, these courts have held that the high school offic ials have the burden of showing the risk of substantial harm that would be avoided through prior restraint.· Furtherm ore the conditions under which prior restraint may be invoked are limited. At least one court has detailed these limits: «[S]chool authorities may by appro priate regulation exercise prior restraint upon publications distri b uted on school premises during school hours in those special circumstances where they can reasonably forecast substantial disruption on account of such printed material."5 That same court has held that high school officials also may censor material that is li be lous or obscene." Although American courts generally have allowed school officials wide discretion in runni ng the schools, they take great care in insuring that prior restraint orders be issued only for good cause. Although the majority of courts allow limited high school prior restraint. one court disagrees with the majori­ ty about the appropriateness of it. 7 This minority view is .

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Winjer lQ85-86

that high school prior restraint policies are unconstituti o n

­

al on their face. This ruling applies to high schools in Illinois Indiana and Wisconsin. Thus. no system of prior restraint is pennitted at high schools in those states. Only two cases have add ressed the issue of prior restraint by college officials. Both of these cases have held against prior restraint at public colleges.8 Because a public school printer is a state employee, as are other school officials, he no more is entitled to exercise prior restraint than they are. Thus. whether a pri nte r can resort to p rior restraint depen ds in pal) on where the school is located, and whether it is a high school or college. For a printer in a public high school outside of Wisc�:msin. Illinois or Indiana to invoke prior restraint, certain facts must be present. First, the schoo1.must have established in written regulations that the printer has the authority to review student work and reject materi als he finds objectionable. As previously stated the only material subject to prior restraint is that which is libelous, obscene or leads the printer to reasonably forecast a substantial disruption of school activities on its account. Additionally, the school must delineate precisely what types of m aterial the printer may restrain. The school also must create adequate procedures for review of the printer's decisions. Finally, the school must provide reasonable time limits within which the pri nter s decision must be made.9 But even if a public high school printer were to satisfy the ,

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(oJl/IIJUl'd on p.34 SPlC r?epor! 33


LE GAL A NALYSIS may be held responsible for material he prints which later

is found l ibelous when he actually knew or h ad reason to believe that the ma terial was l i belous. One state court bas

stated. however, that printers which do not exercise e d i t orial control over the materials given to th e m cannot actua l l y know when something is l ibelous. I I Furthermore, t h i s co u rt held that pri nters which have no editorial control have no duty to l ook fo r l ibelous statements. Thus, they have no rea son to believe material is libelous. Therefore. no rev iew equals no responsi bili ty, The law th us protects a printer when he does not exercise control over material he prints. He therefore does not have to censor work given to him , In fact, if he does review st udent work and a libelous state men t makes it i n to pri n t. the printer wi ll be charged with actual knowl­ edge of it because of h i s active role in the editorial process. In sh o rt , the printer has good reason not to review student materia l .

The Printer's Contract

requirements for exercising prior restraint, h e sti l l logi ca l l y should n o t be the one to censor student work. Practical l y . a school printer seldom if ever explicitly will be given this kind o f authori ty. School printers for h igh schools in I l l i nois, I ndiana and Wisconsi n , as well as for public col leges, have no constitu­ tional power to censor. In the high schools where prior re view is all owed. the traditional custodians of school a ffa irs, such as deans and principals, should be the peo ple with t he power 10 exercise prior review. Placing censorship power in the printing office confuses 1 he issue of who should be overseeing student activities. If. however, the pli n tcr is gi ven the po wer 10 issue a prior restraint, he must fol l ow 1he previously mentioned rules regarding it.

Private Printers

Private printers are not slate agents. They are hired out by student pUblications. Thus, when student journali sts use t hese prin ters, t he restrictions of the First Amendmen t agai nst prior restraint do not apply. Some private pri n ters may censor merely to avoid con troversy. Many, however, censor because they fear legal responsibi l i ty for the material 1hey pri nt. Even so, the law i ndicates t hat fear of legal responsibitity is a good reason nOl to censor. Courts have distinguished between the legal responsibi. l i ties of printers that review material before publication and 1 hose t h a t d o not.IO The general rule is that a printer

Nitzberg

NOTES

Parks.. 5 2 5 F.2d 378 (4th eir. 1 97 5 ) ; Shanley v. Nonheasl Independen t School District 462 F. 2d 960 (5th Cir. 1 972); Williams v. Spencer, 622 F. ::>.-l. 1 200 (4th Cif. 1 980). 1 Tinker v. Des Moin es IndependeJJl Comm unity School Dislricl. 3 9 3 U.S. 503 ( 1 969). J Nitzberg: Shanley; Baughman v. Freienmuth, 478 F.2d 1 345 (4 th Cir. 1 980); Eisner v. Stamford Board of Educa­ tion, 440 F.2d 803 (2d Cir. 1 97 1 ), �Baughman. ' ld. at 1 3 50. 1

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Notwi1 hsta nding this absolvement from liability. some private printers sti l l may want to edit work given to them to be prin1ed. A l l printers, h owever, are bou nd by the terms of the i r contracts with the student publications. A printer that censors may be breaching the prin ti ng contract to which he has agreed. Some prin ters include a standard provision in their c ontracts wi t h student publications which gives them the right 10 refuse to prim any material to which they object As long as there is such a provision in the contract and the student publication agrees to it by signing the contract, a court probably wil l uphold censorshi p by t he printer. Othe r prin ters gi ve up any right to edit and instead i nc l ude in the contract a provision requ iring the student to indemn i fy them should a court hold them responsible for libel. A pri nter can include any censorship provisi o n he wants as long as both he and the student j ournalists with whom he contracts agree 10 incJude it in their contract. If 1 here is no such provision and the printer censors, the student publication could sue h i m for breach of contract. I n concl usion, printers have no i m plied right to edit or censor student work. In order to censor, private printers m ust include a censors hip provision in their contracts with student pub lications. Public printers face com plex legal requirements in order to censor. The l aw, however, holds printers free from blame if the y print libelous statements of which they have no knowledge. This alone should induce many pri n ters not to censor. Censorsh i p by a printer is a situation m ost student journalists never wili face. Bm for those who are con­ fronted with the situation, it is wise to be prepared and to know your rights. •

�Jd. 7 Fujishima

v. Bo a rd of Educa tion, 460 F.2d 1 355 (7th Cir. 1 97 2). � Trijillo v. Lo ve, 322 F. S upp . 1 266 (D. Colo. 1 97 1 ); A n toneJli \'. Hammond, 308 F. Supp. 1 329 (D. Mass.

1 970). 9 Leibner

v . Sharbaugh, 429 F. Supp. 744 (ED. Va. ( 97 7). 'OMacaluso v . Mondadori Pu blishing Company, 52 7 F. Supp. 1 0 1 7 (E. D. N . Y. 1 98 1 ). l l Maynard v. Port Publicatiolls, Inc. , 297 N.W.2d 500, 98 Wis. 2d 5 5 5 ( 1 980). --- -_

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Winjer 1 985·86


LEGAL ANALYSIS

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Courts uphold, expand Tinker standard In 1969 when the Supreme Court issued its deci sion in Tinker �'. Des Moines Independent Community Scbool Disrrict, 1 schools around the country were in an accelerat­ i.ng state of unrest. The growing disillusionment with United States involvement in Vietnam had found a forum for angry debate on high school and college campuses. In a matter of months this debate would reach the flashpoint at Kent State University leaving four students dead.

I�LEOIL IIILYSIS . So when a group of Des Moines. Iowa. high school students wore protest armbands to school in violation of

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regulations. the Supreme Court took what some thought was an unwise and unnecessary step by upholding their action. In 1969 for the first time, the nation's high court held that stude nt s as well as adults were protected by the First Amendment. No longer were public school authori­ ties to be given unquestioned control over their students when the fundamental constitutional right of free speech was at issue. As big a step as this was. the Court in Tinker also recognized the "special circumstances of the school envi­ ronment" and the duty and interest of school officials to protect the public school system. The key was to be in balancing the interests of the school officials with those of the students and teachers. Thus was developed the Tinker (·substantial disrup­ tion" standard. rn the words of the Court. speech that "materially disrupts classwork or involves substantial

con! inued 011 p.36

-------------�SPLC Report 35


LEGAL ANALYSIS d i sorder or i n vasion of the rights of ot hers is . . . not i m m u­ n ized by the const i t ut i o n a l guarantee of freedom of speec h , "z Si nce t hat decisi o n i n 1 969 t h e b u rden h as been on t h e schools to reaso nably forecast a substa n t i al d i sru p t i on or material i n terference with school act i v it ies before a court would u phold their acts o f censor� h i p. Substa n t ial d i srup­ tion must have seemed an e ver-present t h reat I n t h ose restless years a fter 1 969. B u l even today as st udents have mellowed their way i nto the 1 980s, h igh schools and colleges are clai m i ng they have met the sta n dard and are

justi fied i n suppressing st ude n t speech . The courts si nce Tinker have agreed that a sc hool need not sh ow that an actual d i srupt ion has occ u rred . Nei t her does the Tinker stan dard requ i re com plete certa i n l y o n the part of sc hool officials t h a t a d i sru ption wi l l occur, A l l that i s needed is a reason a b le fo recast I ha t the d i sruptIOn i s i m m i nent. The d i ffi c u l ty arises in t h e schools' attem pts to j ustify their reaso nable forecasts, The i r action can � o t be based on " u nd i fferent i ated fear" or "a mere deslfe to avoid the d i scomfort and u n pleasan tness thaI always accompa nies an u n popular viewpoin t."J An a d m i n istra­ tor's " i n t u i tion" wi l l n ot su ffice,4 nor w i l l h is opin ion t h at a disruptio n " could" or " m ight" result.� Alth ough the Tinker standard is applied to t h e i nd i v i d­ ual facts of each case, it is hel pfu l to note some exam ples of where the court s sa id t he standard was met a nd where they said i t was nol . I n one Arizona high sch ool students plan ned a wal k-o ut i n support of a teacher whose contract h ad n ot been renewed. An awards assembly had alread y been cancel led because of a threatened confron tation among st udents over a n earlier walko u t plan. When telev ision cam eras arrived and students began wal k i ng out of the i r classes. some atte m pt i ng to set off fi re alarms, one student was stopped from d i st ri b u t i ng signs in the teacher's su pport. I n the studen t's su i t for den ial of his free speech righ l s. the court agreed that the school o ffi cials had reasonably forecast a material disruption of the schoo! . !> Tn New York a high school newspaper sought to pri n t both a letter t o the editor signed a s from t he school's lacrosse team criticizing the paper's sports coverage a nd an editorial response referring to the letter-writers as " hot headed. egoti stica l , ' Pissed Off jocks." A l t h ough the paper was to be distributed on the last day of sch ool, the court agreed that the school officials had met the Tinker standard. Substantial di sruption is not req u i red to con t i n ­ u e for a n y particular length o f t i me, t h e court held. T he fi nal day of the school year was e nough .? On the other hand, the use of "strong" language wil l n o t usually satisfy Tinker. In a c a se involving a student newspaper that con tained the headli ne " Motherfucker Acquitted, " the Supreme Court said that no disruption i n the University'S functions occurred i n connection wi th the distribu tion of the paper,s Profanity in a student newspa­ per is HDot the type of occurrence apt to be significantly disruptive of an orderly and disciplined educational pro­ cesS."9 Neither can school officials punish a student for out-of-school distribution of material "simply because they reasonably foresee that in-school d istribution wi l l result."'o Distribution during school hours in a n d of i tself does not i ndicate substantial disruption. What the cases a pplying the Tinker standard a l l scem to indicate is that c i rcumstances m u st be care fu l l y e va l u ated before the standard ca n be met. "[In Tinkerj the Supreme 36 SPLC Report

Court has declared a consti l u t ional righ t which school authorities must n ut u re and protect. not extingui sh, u nless they find the c i rcu mstances allow them no practical alte rna t i ve. As to the exi stence of such ci rc u mstances, the schools are t h e j udges, and if with i n the range where reasonable minds may di ffer, their decision will govern. But there m ust be some inquiry, and establishment o f substantial fact, to buttress t h e determinati on."" Perhaps the clearest exa m ple of how differing circ u m stances can affect the su bstantial d i sruption standard is seen i n two cases decided by a federal circui t court of appeals three years before Tinker. Both cases i nvolved regulations at Mississippi schools prohibiting students from wearing "freedom butlons" that advocated l;qUaJ rights for blacks. In one school the buttons were pcaCfu l l y worn and only caused "mild curiosity" and orne dis-­ cussion all in a calm a tmosphere. The court found that the regulation a t this school violated the students' First Amendment rightS. 1 1 B ut the similar regulation at another school was held to be reasonable. There Ihe b u t tons were fo rced on students and thrown through windows, a si tua­ tion t he court sa w as a substantial d isrupt i on of the school environ ment. 1 3 It was from these two cases that the Supreme Court adopted the Tinker standard. One c i rcum stance t h at w i l l be consi dered by a court i n exa m i n i ng a sc h ool's censorsh i p actions i s t he p rc� n c c o f wri t ten gU ide l i nes. " A bsen t such g u i d e l i nes. s u p press ion o r p u b l ica t i on b y sch oo l officials m u st , o f course, be sc ruti­ n i zed more carefu lly t h a n i f the issue were pn:sen tC'd to t h e court a fter gu ide l i n e procedures had bee n p u rsued : ' I � G u idel i nes are onc i nd i ca t i on to a cou rt t h a t t h e sc h oo l has a t tem pted to m a ke a reasonable d e ter m i n a t i o n I t is i m port ant, however, t hat the gu ideli nes d e fine s u bs lantial d i sru p t i o n a n d nor just leave l he words to l he s u bject i ve i n terpretation of school officia ls. T he S P LC m odel gu i de l i ne s suggest the followi ng: " d i srupt i on i s defined as stude n t rioting, u n lawful seizu res of prope rt y , destruction of property, widespread shout i ng or bo i sterous conduct, or substa n tial student pa rt i c i pa ti o n 1 0 a sch o ol boycott. si t-i n , sta nd-i n. walk-out o r o t h e r re la ted form o f ­

.

act ivi ty, Ma teria] thal slim uJa les heated disclJssion or debate doe.'; not constitute the type of disruption prohib·

ited. ..

A q uestion exists as to how m uc h a u t hO r i t y the sch ool has to p u n i sh or prevent speech when the d i sruption occ urs as a result of eve n ts prior o r s u bseq u e n t to the speech i n q uestion . Several cou rt s h a ve dealt wi t h t h i s i n regard s t o teachers' speec h . t o w h H: h t h e Tin ker standard a l so applies. I n one case a co m m u n i t y was a l ready e m broiled in con troversy over deroga tory re m a r k s m ade by a college president concernIng h i S fac u l t y. W h e n o n (' faculty mem ber created a disruption by wa l k l n g o u t of a n acade m ic senate meeti ng w h e re t h e rem a rks were <l Is­ cussed, the court suggested t hat e v en if the d i sruption were severe enough to be c o n s l dacd m a t eri a l a n d s u bs t a n ­ tia l , t h e fact that the facul t y m em be r d i d not I n tend to d i srupt t h e meeting by his a c t i o n cou ld pro h i b i t the sc h ool from refu si ng to reappoi n t h i m . I ' I n a n ot her case a t eacher ex pressed h i s personal � I i e f i n com m u n i s m i n the classroom . I t caused l i t t le concern u n ti l the media publicized the m a l lcr. The c o u rt h e l d t h at the "su bseq uent public reac t i o n is nOl t he k i nd of d i sr u p­ l ion t ha t can be balan ced aga i n s t a teacher's righ l 10 free e x pressi on. " 1 6 So how m uch d i fference d oes it make where t h e Winter 1 985-86


LEGAL ANALYSIS su bstantial d i sruption co mes from? I n situations l i ke those where studen ts force buttons on students and throw them th rough wi ndows. the d isruption i s clearly a result of the student's speec h . But in student publication cases, any disrupt i o n w i l l more l i kely be a resu l t of reaction to the speec h . not the speech itself. Is the student speech thus protected? The courts d isagree. In a rece nt case i n vo l v i ng student leaflets protesting school smok i ng and attendance regulations, one federal court in I n diana sa id that "in addition to the action of the [students] themselves. consideration m u st also be given to all other circumstances confronting the school authorities which m i ght rea sona bly prompt a forecast of disruption. Thus the fact that the ev idence reveals that no serious or su bsta n t i a l d isrupti on ste m med directly from plaintiffs' d istribution of the leaflets does not, of itself, inva lidate the [censorsh ip] actions of the [school authorities]." ! 7 I n contrast, a federal c o u rt i n Rhode I sland has sug­ gested that especially in these situations the school m ust prove no pract i cal a lte rnative to su ppression of speec h . In that case a male h igh school student wanted to bri ng another male as h i s date to the pro m . The principal, fearing a v iolent reaction because of one fight that had already occu rred over the matter, dec l i ned to approve the studen t's date. But the court said "even a legitimate i n terest i n sc hool d isci p l i ne does not outweigh a student's right to peacefu l l y ex press h is v i ews in an appropriate time. place and man ner. To rule otherwise wou ld com­ p letely subvert free speech i n the schools by granting other stude nts a ' h ec k ler's veto: a l lowing them to decide­ th rough proh ibited and v i olent methods-what speech w i l l be heard. The First Amendment does not tolerate mob rule by u n ru ly sch oo l chi ldren. " ! 8

T h e court noted that a d i st urbance a t t h e prom would not i nterfere w i t h the educational fu nction of the school, alt hough it would a ffect the school env ironment. " I n such a context," the court held, "the school does have an obl igation to take reasonable measures to protect and fo ster free speech. not to stand hel pless before unautho­ rized stude nt violence . " ' 9 U n t i l 1 97 7 su bstantial disruption was general l y thought of as some physica l di sturbance. H owever, in that year a federal court of appeals extended the Tinker standard to disturbances that do not go beyond a student's own m i nd. That cou rt held that school offic ials were justified in prohi biti ng the d istri b u t i on of a survey which asked qu esti ons about h igh school students' sex l i ves. The survey i ncluded i nq u iries about masturbation, homosex­ uality a n d other se x ual experiences. After four psycholo­ gists and psych ia trists sa id that tak ing the su rvey could FOOTNOTES 393 U . S. 503 ( J 969). 2 [d. at 5 1 3. ) [d. at 508-09. 4 Shanley v. Northeast Independent School District, 462 F. 2d 960, 974 ( 5 th Cir. 1 9 72). � Vail v. Board of Education, 3 5 4 F. Supp. 592, 599 ( D. N . H . 1 9 73 ). 6 Karp v. Becken, 477 F.2d (9th C i r. 1 97 3). 7 Frasca v. A ndrews. 463 F. Su pp. 1 04 3 , 1 05 1 ( E.D. N .Y. 1 9 79). 8 Papish v. Board of Cura tors of University of Missoun', 4 1 0 U . S. 6 6 7 , 6 7 0 n.6 ( 1 97 3). 9 A ntonelli v. Hammond, 308 F. Su pp. 1 3 29, 1 3 36 ( D. M ass. J 970). 1

Winter 1 985-86

" [ think [ see a disruption!" cause significant e m otional harm to some students. the court determ i ned that the substantial d i sruption standard had been met. " W h i l e the passing out of several question­ naires m ight not provoke a breach of the peace, a b l ow to the psyche may d o more perm a nent damage than a blow to the ch in. " 20 No other court has been able to apply this hol d i ng to a si m i lar set of circ u mstances. Thus fa r it i s the only case where a purely emotional or psychological d isruption was found to meet the Tinker standard. But in future cases, at least where four experts can attest to it, censorsh i p m ight be allowed even though n o observa ble disruption ever occurs. The general consensus today see ms to be that h i gh schools and col leges are no longer the hotbed of controver­ sy they once were. But school officials suggest that such is not always the case. They say there are sti ll ti mes when student speech m u st be contro l led. Li ke it did first in 1 969, the Tinker standard is prov idini the balance be­ tween the schools' i nterests in creating a proper educat ion­ al environment and the students' First Amendment right to ex press their v iews. • 10 Thomas v. Board of Educa tion, 607 F. 2d 1 04 3 , 1 05 3 n. 1 8 ( 2 d Cir. 1 979). II Butts v. Dallas Independent School District, 436 F. 2d 728, 732 (5th Cir. 1 97 1 ). 2 Burnside v. Byars, 363 F. 2d 744 (5th Cir. J 966). 1 1 3 Blackwell v . Issaquena County Board of Education. 363 F 2d 749 (5th Cir. 1 966). 1 4 Frasca, 463 F. Supp. at 1 050. 1 5 Mabey v . Reaga n, 537 F.2d 1 036 (9th Cir. 1 9 76). 1 6 Cooper v. Ross, 462 F. S u pp. 802 (E. D. Ark. 1 979). 1 7 Dodd v. Ram bis, 5 3 5 F. Supp. 23 (S. D. I nd. 1 98 1 ) . 8 1 Fricke y. Lynch, 49 1 F. Supp. 38 J . 3 8 7 ( D. R . 1 . 1 980). 1 9 Id. .

20

Trachtman

v.

A nker, 563 F.2d 5 1 2 ( 2 d C i r. 1 9 7 7 ) . SPLC Report 3 7


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the Student Press, a four-year project of

t h e S i u d e n t Press Law C en l er , is the (Irst book ever to ot f e r an e x a minat ion of legal issues c o n f ronting A merican 's student journalists, advisers a nd educa­ t ion a dmin istrators on both the high school a n d college level s , T he book i s u n d e rsta ndable and readable with­ out giving u p the essential m aterial n eeded for a n in-depth unde rsta ndin g o f I h e legal relation ships involved in the pro d u c t ion of student newsp a pers, y earbooks a n d e lectronic m edia , Topics covere d inc l ude I tbel , obsc e n it y , copyright, prior review, c ensorship a n d model publication s g u idelines, Low o f the S tudent Press is avail able now/ Cop­ ies are on l y S 5 each , T o o r d e r , send a c h e c k for that amount, pa yable to "Quill and S c rol l , " t o ,

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SPLC g ra tefully a c knowledges the generous support ot the following institut ions and peo p l e , wit hou t whom there might not be an SPl C , and wit h out whose support defending the F irst Amendment rights ot the st udent press would be a far more d i f ficult task ,

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Vol. 7, No. 1

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