Law & Ethics

Censorship

1. School officials cannot: a. Ban student expression solely because it is controversial, takes extreme, "fringe" or minority opinions, or is distasteful, unpopular or unpleasant; b. Ban the publication or distribution of material relating to sexual issues including, but not limited to, virginity, birth control and sexually-transmitted diseases (including AIDS); c. Censor or punish the occasional use of indecent, vulgar or so called "four-letter" words in student publications; d. Prohibit criticism of the policies, practices or performance of teachers, school officials, the school itself or of any public officials; e. Cut off funds to official student media because of disagreement over editorial policy; f. Ban student expression that merely advocates illegal conduct without proving that such speech is directed toward and will actually cause imminent unlawful action. g. Ban the publication or distribution by students of material written by non-students; h. Prohibit the endorsement of candidates for student office or for public office at any level.

Balanced Coverage

All sides of the story are given a fair voice and representation. Journalistic objectivity requires that a journalist not be on either side of an argument. The journalist must report only the facts and not a personal attitude toward the facts. It does not refer to the prevailing ideology of newsgathering and reporting that emphasizes eyewitness accounts of events, corroboration of facts with multiple sources and balance of viewpoints. It also implies an institutional role for journalists as a fourth estate, a body that exists apart from government and large interest groups. Journalists should try to present an issue accurately and from multiple viewpoints/sources.

Hazelwood Schol District v. Kuhlmeier

Closed forum schools fall under Hazelwood. The Hazelwood v. Kuhlmeier case concerned the censorship of two articles in The Spectrum, the student newspaper of Hazelwood East High School in St. Louis County, Missouri, in 1983. When the school principal removed an article concerning divorce and another concerning teen pregnancy, the student journalists sued, claiming their First Amendment rights were violated. The Supreme Court ruled, with a majority opinion, that school administrators could exercise prior restraint of school-sponsored expression, such as newspapers and assembly speeches, if the censorship is "reasonably related to legitimate pedagogical concerns". In this, school-sponsored newspapers are considered limited public forums of expression.

Unprotected speech: Copyright

Copyright provides protection to original works of authorship by allowing the owners of original, creative works to protect their work product against unauthorized use by others. Fair use is an exception to copyright's general rule that you need advance permission from the owner before you can use a copyrighted work. Fair use is often used as a defense to a claim of copyright infringement: if someone accuses you of violating their copyright, you may be able to argue that your use qualifies as a fair use to show that you did not break the law. Creative expressions are protected by the Copyright Act. Students may not use the work of someone else without getting their permission first, unless that use meets with the Fair Use laws. Students should either get permission directly from the owner of the image/song/artwork, create their own picture or illustration, or get a piece from a site that allows free use such as federal government (.gov) sites like the White House, FEMA, NASA and others. Content created by federal employees in the course of their work is unprotected by copyright and can be freely reused. Also look for materials carrying the Creative Commons (CC) license, a voluntary alternative to copyright. Typically, such materials can be used in a nonprofit publication as long as proper attribution is given.

Baises and slants

Ethical journalists want to be impartial. Even though we are all subjective human beings, we can refrain from deliberately putting biased information into our stories. (BTW ... "bias" is a noun. "Biased" is an adjective. Most of you are using the noun when you mean the adjective. Noun: The reporter showed his bias in covering the candidate. Adjective: The reporter was biased; he wrote a biased story.) Slants: To present so as to conform to a particular bias or appeal to a certain audience: The story was slanted in favor of the strikers. In a slanted story a journalist presents a story with a specific point of view. Information either is more heavily supporting one side over another OR one side is not presented OR given its fair due.

Unprotected speech: Disruption

If what you publish creates (or may create) a substantial disruption of school, you may be censored. For instance if an article asks students to walk out of all classes at 2:06pm, that would be a substantial disruption and can be censored legally.

Bethel School District v. Fraser

In Bethel School District v. Fraser, a 1986 case, the Supreme Court held that a high school student's sexual innuendo-laden speech during a student assembly was not constitutionally protected. Matthew Fraser was suspended from school for making a speech full of sexual double entendres at a school assembly. Though the Court distinguished its 1969 decision Tinker v. Des Moines, which upheld the right of students to express themselves where their words (or in that case, the wearing of a protest armband) are nondisruptive and could not be seen as connected with the school, Fraser limits the scope of that ruling, by prohibiting certain styles of expression that are sexually vulgar.

Morse v. Frederick (Bong Hits)

In Morse v. Frederick, the so-called "Bong Hits For Jesus" case of 2007, the Court held that schools may, consistent with the First Amendment, restrict student speech at a school-sponsored event, even those events occurring off school grounds, when that speech is reasonably viewed as promoting illegal drug use. In 2002, high school principal Deborah Morse suspended Joseph Frederick after he displayed a banner reading "BONG HiTS [sic] 4 JESUS" across the street from the school during the 2002 Olympic Torch Relay. Frederick sued, claiming his constitutional rights to free speech were violated. Chief Justice Roberts, writing for the majority, concluded that the school officials did not violate the First Amendment. To do so, he made three legal determinations: first, that "school speech" doctrine should apply because Frederick's speech occurred "at a school event"; second, that the speech was "reasonably viewed as promoting illegal drug use"; and third, that a principal may legally restrict that speech—based on the three existing First Amendment school speech precedents, other Constitutional jurisprudence relating to schools, and a school's "important—indeed, perhaps compelling interest" in deterring drug use by students.

Unprotected speech: Invasion of Privacy

Journalists do not have the right to get information through an invasion of privacy. There are four separate kinds of privacy invasion: 1) Public disclosure of private and embarrassing facts: Courts have recognized that certain intimate details about people, even though true, may be "off limits" to the press and public. For example, publishing detailed information about a private person's sexual conduct, medical condition or educational records might result in legal trouble. In order to succeed in this kind of lawsuit, the person suing must show that the information was: a) sufficiently private or not already in the public domain, b) sufficiently intimate, and c)highly offensive to a reasonable person. THE "NEWSWORTHINESS" DEFENSE: A news organization will be protected from a private facts privacy claim if it can show that the material published was "newsworthy." Almost any information about a well-known public figure or a public official will be considered newsworthy. Furthermore, reports of recent involvement in criminal behavior will be considered newsworthy for anyone. 2) False light: A false light claim can arise anytime you unflatteringly portray -in words or pictures- a person as something that he or she is not. A typical "false light" problem can arise where a misleading caption is published with a photo (for example, a caption describes a bystander at an unlawful demonstration as a "participant"). The elements of false light, found in the Restatement (Second) of Torts, Sec. 652E are: a) the portrayal must be found to be "highly offensive to a reasonable person" and b)the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. 3) Intrusion: Intrusion is a claim often based on the act of news gathering. A reporter can be sued even when the information obtained is never published. It occurs when a reporter gathers information about a person in a place where that person has a reasonable right to expect privacy. However, newsworthiness can also be a defense to this kind of privacy invasion. As a general rule, reporters are allowed to enter privately owned public places, for example, private school campuses or malls. However, also as a general rule, they must leave when they are asked. Three most common types of intrusion a) Trespass: going onto private property without the owner's consent. b) Secret Surveillance: using bugging equipment or hidden cameras. The laws vary by state but as a general rule reporters can legally photograph or record anything from a public area, such as a sidewalk, but they cannot use technology to improve upon what an unaided person would be able to see or hear from that public place. c) Misrepresentation: invalid or exceeded consent. Undercover reporting is not necessarily an invasion of privacy as long as the disguise is not used as a means to trespass or engage in an activity that would not otherwise be allowed. For example, it would not be an intrusion for a minority student reporter to pose as a potential pledge to investigate a story about racial discrimination inside a fraternity. The reporter has a right to pledge whether he is serious about it or not. 4) Misappropriation: Misappropriation is the unauthorized use of a person's name, photograph, likeness, voice or endorsement to promote the sale of a commercial product or service. (For example, using a photo of your school's star athlete in an for a pizza restaurant without her permission.) To avoid problems, publications should routinely have subjects sign a model release form written in simple, straightforward language when using their name or likeness in a commercial ad. Regardless of whether or not a release form has been signed, however, courts have generally allowed the media to reuse editorial photos or clips in its own self-promotion provided there is no suggestion that the person actually endorsed the publication. For defense: With all four forms of invasion of privacy, consent is a valid defense. However, if you intend to rely on consent as your defense to a privacy claim you must make sure that you obtain the consent from someone with a legal right to give it and be candid with your subject about what information you want to use and how you intend to use it. While not necessary to be valid, consent is always easiest to prove when it is in writing.

Unprotected speech: Libel

Libelous material. Libelous statements are provably false and unprivileged statements of fact that do demonstrated injury to an individual's or business's reputation in the community. If the allegedly libeled party is a "public figure" or "public official" as defined below, then school officials must show that the false statement was published "with actual malice," i.e., that the student journalists knew that the statement was false or that they published it with reckless disregard for the truth ? without trying to verify the truthfulness of the statement. Journalists are not protected for printing libelous information. Whether the statement comes from you or a third party, your publication is held responsible for printing it.

What's necessary to cover the topic

Merrill offers four characteristics of a "good" news story -- good both by professional and ethical criteria. He suggests that such stories follow a TUFF formula: They are as truthful, unbiased, full and fair as possible.: * The "T": Stories should be truthful. The truth contained in a report is always partial (remember the differences among potential, selected and reported truths). But seeking the truth and reporting it as thoroughly as possible is still an essential mandate for the ethical journalist. * The "U": Stories should be unbiased. Ethical journalists want to be impartial. Even though we are all subjective human beings, we can refrain from deliberately putting biased information into our stories. (BTW ... "bias" is a noun. "Biased" is an adjective. Most of you are using the noun when you mean the adjective. Noun: The reporter showed his bias in covering the candidate. Adjective: The reporter was biased; he wrote a biased story.) * The first "F": Stories should be full. This is the same idea that the Elements of Journalism authors emphasize this week. Even though you can never say everything there is to say about a topic, stories should be as complete as possible. Ethical journalists put as much relevant information into their stories as they can. * The second "F": Stories should be fair. This characteristic is more subjective than the first three -- in fact, it potentially conflicts with them. But ethical journalists should seek to be "fair-minded" in covering the news.

the need for transparency

Of course, transparency means that something can be seen through. When we talk about transparency in government, we mean that citizens must be able to "see through" its workings, to know exactly what goes on when public officials transact public business. Government that is not transparent is more prone to corruption and undue influence because there is no public oversight of decision making. Transparency is a way of protecting fairness and ensuring the common good. When citizens know what their government is up to, they have a better chance of ensuring that decisions treat everyone equally and protect the common conditions that are important to everyone's welfare. As the Carter Center puts it: "Democracy depends on a knowledgeable citizenry whose access to a range of information enables them to participate more fully in public life, help determine priorities for public spending, receive equal access to justice, and to hold their public officials accountable. Inadequate public access to information allows corruption to flourish, and back-room deals to determine spending in the interests of the few rather than many."

Prior Review

Prior review occurs when anyone not on the publication/media staff requires that he or she be allowed to read, view or approve student material before distribution, airing or publication. Prior restraint occurs when someone not on the publication/media staff requires pre-distribution changes to or removal of student media content. Prior review itself is a form of prior restraint. It inevitably leads the reviewer to censor and and student journalists to self-censor in an effort to assure approval. An officially designated adviser, when working with students and offering suggestions for improvement as part of the coaching and learning process, who reads or views student media before publication is not engaged in prior review. However, when an adviser requires pre-distribution changes over the objections of student editors, his/her actions then become prior restraint.

Tinker v. Des Moines Independent Community School District

Public Forum schools fall under Tinker v. Des Moines. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools. The Tinker test is still used by courts today to determine whether a school's disciplinary actions violate students' First Amendment rights. The three students were suspended for wearing armbands at school to protest the Vietnam War. The Supreme Court decided in their favor. The court's seven to two decision held that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. The court observed, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court held that in order for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.

Protecting sources

State reporter's privilege laws (a/k/a "reporter shield") allow journalists to withhold confidential newsgathering materials from the parties in a criminal investigation or a civil lawsuit. In most states, the shield applies to anyone who regularly gathers and distributes news to the public, even unpaid students. In a minority of states, the shield covers only paid professionals. In many states, the privilege covers not just confidential sources but any type of unpublished newsgathering material, such as notes and tapes of interviews. But that privilege normally is not absolute, and a court can override it if the evidence is urgently needed. Congress passed the Privacy Protection Act in 1980, making it illegal for law enforcement officers to search a newsroom (or anywhere else that newsgathering materials are kept, such as the trunk of a reporter's car). If police or prosecutors want to see unpublished materials, they must issue a subpoena and give the journalist a chance to oppose the subpoena in court. Shield laws and the PPA haven't been tested in the high-school setting, so there's no telling. The more common concern for a high-school journalist is not a demand by police, but by the principal. A promise of confidentiality is legally binding, and a person who gets harmed - i.e., kicked out of school - because you broke your promise might have a breach-of-contract claim against you. So if you are confronted with a demand to turn over notes or sources, don't comply without first consulting an attorney to protect yourself. And if you are a student using a confidential source, avoid disclosing the source's identity even to a trusted journalism teacher, who may be more easily threatened into giving up the information.

Unprotected speech: Obscenity

Students do not have the right to publish obscenity in journalism. In order to determine whether or not it fits the obscenity test it must have literary, artistic, political or scientific value to be publishable. 1. Material that is "obscene as to minors." "Obscene as to minors is defined as material that meets all three of the following requirements: (a) the average person, applying contemporary community standards, would find that the publication, taken as a whole, appeals to a minor's prurient interest in sex; and (b) the publication depicts or describes, in a patently offensive way, sexual conduct such as ultimate sexual acts (normal or perverted), masturbation and lewd exhibition of the genitals; and; (c) the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Indecent or vulgar language is not obscene.

Ethical Issues: Law asks, "Could we?" Ethics asks, "should we?"

TUFF formula: They are as truthful, unbiased, full and fair as possible.

First Amendment

The 1st Amendment protects the rights of students, as it does any American citizen. Students have the Freedom of Religion, Assembly, Petition, Press and Speech assuming these things do not create a substantial disruption to school. Student journalists are protected under Open Forum rules (Tinker) or Closed Forum rules (Hazelwood), but either way, have rights to avoid censorship.

Access: FOIA

The Freedom of Information Act (FOIA) is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government. All records created, possessed or controlled by a federal agency or maintained for such an agency by an entity under government contract, unless those records fall within one of nine categories of exempt information that agencies are permitted (but not required) to withhold. The exemptions are: (1) national security, (2) internal agency rules, (3) information specifically exempted by other federal laws already on the books -- the so-called "catch-all" exemption, (4) trade secrets, (5) internal agency memoranda, (6) personal privacy, (7) law enforcement records, (8) bank reports, (9) oil and gas well data.

Cybermedia legal issues

The Supreme Court has been clear that online publishing enjoys the same level of First Amendment protection as print. A couple of states - New Jersey, Maine - do prohibit K-12 schools from publishing the names or faces of minors on district websites without parental consent, and some school districts may also have such policies. This is one reason it's advisable to have a news site hosted on a third-party server, not the school's. Schools/staffs cannot be held responsible for comments posted by someone outside of the staff. If the comments are placed by outsiders - not your own staffers - then the federal Communications Decency Act should shield you and your website (though the authors of such comments can and do get sued). You can retain CDA immunity even if you voluntarily screen profane or libelous comments - but if you start rewriting comments to "improve" them, then you may become responsible as a co-creator. Similarly, you cannot be held responsible if someone places copyrighted info via a comment on your site. The federal Digital Millennium Copyright Act (DMCA) has a limited safe harbor allowing publishers to escape liability for copyright infringement if they promptly pull down infringing material posted by outside parties (not staffers) after getting notice of the infringement. To qualify for protection, the website operator must register with the federal copyright office and pay a fee.

Dean v. Utica Community Schools

The decision, Dean v. Utica Community Schools, is the single most important legal victory for America's high school student media since the Supreme Court issued its devastating 1988 decision in Hazelwood School District v. Kuhlmeier and could represent a significant turning point for student journalists trying to combat the ever-growing incidence of administrative censorship. In early 2002 when Katy Dean, then a junior and sports editor for the Arrow, Utica High School's award-winning student newspaper, and fellow staff member Dan Butts learned that their school district in Utica, Mich., was being sued by a husband and wife who alleged that school bus exhaust fumes had contributed to the husband's lung cancer and other illnesses. They researched the story, using a variety of sources. At the time of publication, the administration demanded that the article be pulled as they were in the middle of a litigation. The students did, running an article on censorship instead. They continued to get the admin to change their mind and let them run the story, but were refused. The federal court ruled in favor of Dean, finding that the school operated as a limited public forum, so Hazelwood did not apply. In Dean, the judge said that even if he had decided the Arrow was a non-public forum, Utica high school officials still violated the First Amendment because their censorhip would not have met Hazelwood's "reasonable educational justification" standard. Katy Dean's article, the judge found, was so well-researched and so well-written and the administration's reasons for censoring were so weak that the actions of Utica school officials simply did not pass constitutional muster. Good student journalism, the judge decided, prevails. Moreover, the court found that based on all of the evidence "there is no reasonable dispute that the defendant's speech regulation in this case was not viewpoint neutral," as required by the First Amendment.

Access: Sunshine and open meeting laws

To protect transparency in government, every state in the United States has some variety of law mandating that all government business be conducted in open meetings to which the public has access. These are sometimes referred to as "sunshine laws," open government laws, or, in California, the Brown Act. The Oklahoma Court's decision in Oklahoma Ass'n of Municipal Attorneys v. State (1978) gives a clear statement of why open meetings are important: "If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed." In addition, most states have laws ensuring public access to government documents and records. These are often versions of the federal Freedom of Information Act. In terms of student journalism, this means that students have the right to see public records, attend meetings, such as the school board, and report on them. State laws generally say that, if a majority of any government body - decision-making or even advisory - meets to discuss public business, the meeting is open to the public with limited exceptions, such as discussion of legal strategy in a pending lawsuit. This includes "retreats" and other off-site meetings. And as long as you are not disruptive, the right to attend also means that the meeting may be photographed and recorded. Generally, there is no legal right to attend if the group is not a board or committee, such as three deans of a college meeting in the president's office.

Anonymous sources

USING ANONYMOUS SOURCES WITH CARE By H. L. Hall To use or not to use? That is the question. Because of controversies surrounding the writing of some professional journalists, including Jayson Blair (New York Times), Stephen Glass (New Republic) and Jack Kelly (USA Today), it has become even more important for writers to evaluate whether or not to use anonymous sources. Readers tend to be skeptical and the use of anonymous sources often makes them question whether or not the information they are reading is accurate. One reason readers have grown skeptical is because in the past few years at least 10 papers from The Chicago Tribune to the Sedalia (Missouri) Democrat have confirmed instances of plagiarism and fabrication. To avoid questions about plagiarism and/or fabrication, it is best to avoid using anonymous sources. Writing gains credibility when all sources are on the record. Some professional journalists say promises of anonymity should be given only for the following reasons: 1) There is no other way to get the information. If there is no other way, then verify the information with a second source. Don't rely on one person's word. Be sure both sources are reliable ones. 2) The information is important enough to the reader to warrant anonymity. 3)The source's privacy and/or reputation requires protection. 4)The source needs to be protected from academic, psychological or physical harm. It's possible a student's grade might be in jeopardy, if he/she goes on the record. It's also possible a teacher's job might be in jeopardy, if he/she doesn't remain anonymous. 5) The source's relatives require protection. If the writer promises anonymity, then the writer must keep his/her promise. If a writer wants to use an anonymous source, the writer should discuss the possibility with his/her editor. If the editor agrees the writer may use an anonymous source, the writer should tell the editor who the source is. Several professional papers, including The Washington Post, require this. The Post also requires its writers to explain to the readers why a source merits confidentiality. It is also a wise idea to have the source sign a consent form to use the information anonymously or by using a pseudonym.

Yeo v. Town of Lexington (ads)

Upholds that in public forum schools, a school district neither controls the content of a school publication OR can be held responsible for a publications content decisions. A parent submitted a senior ad to the yearbook that included the line "We know you can do it! Abstinence: The Healthy Choice." The staff refused to publish the ad on the grounds that their policy was not to run ads of a political nature. Yeo sued the yearbook for continuing to refuse to run his ad. After a 5 year legal battle, the courts ruled in favor of the students. There are a couple of important precedents that this decision set in scholastic journalism. The first is that when a school publication is, either in policy or in practice, a public forum for free expression, the government or its agent, ie. a school official, cannot suppress the right to freedom of editorial decision making by the students. What this means is that when a publication has been run as a public forum, the students alone are responsible for the editorial content of the publication. Whether that means to include all advertising or exclude all advertising or to set standards which include some and exclude some, the decision is entirely up to the student editorial board. In the case of both the yearbook and the Musket, the students on the publication staff had historically made all of those decisions. The court found that they could continue to do so as they had in the decision on Yeo's ad. The second important outcome of this case is that it affirmed that when school officials stayed out of the content decision-making process, they could not be held liable for the content of the publication. If publication of material - or for that matter, non-publication of material - results in litigation, the students alone can be held responsible for that litigation as long as the administration stays out of it. Student journalists should realize the incredible responsibility they shoulder in sound editorial practices and administrators everywhere should rejoice in the freedom from litigation this decision allows them.