By Mike Hiestand
Over the past fifteen years, I have worked with thousands of student journalists who have been censored or threatened with censorship by school officials. While we certainly talk about the law, much of our time is also spent discussing strategies for fighting censorship without the assistance of a lawyer. In truth, few student journalists ever see the inside of a courtroom. Most censorship battles come down not to what school officials can or must do under the law, but what they should do. And for that, student journalists – much more than media lawyers or judges – can be their own best advocates.
The following checklist is one that I share with students looking to fight and win the censorship battle. Of course, not all censorship fights are the same and it may be necessary to tweak things. But generally, the step-by-step plan that follows has served student media well.
While it’s normal practice to keep one’s legal strategy secret, there is really nothing to conceal – no smoke and mirrors or fancy legal tricks – in the following suggestions. (I have found that censors – not the censored – are the ones often seeking to distort the truth, play games and hide.) Rather, the focus is simply on effectively presenting your case and holding censors accountable for their actions.
• Practice sound journalism
If there is only one bit of advice you take away, make this it: Nothing – nothing – can help you more in your censorship fight than a well-researched, well-written, fair and accurate story. Conversely, nothing can sink you faster than a sloppy, mean-spirited article full of errors in fact, grammar or editorial judgment. Write something you’d be proud to stand and defend publicly – because that is likely what you are going to be called upon to do. Before publishing a story that you know might provoke a censor’s pen, take the time to make it “censor-resistant”: triple-check all facts, confirm quotes, make sure you have talked to all sides. Ask yourself, “Does it make sense? Is it fair?” Have at least two other sets of eyes review it for grammar, spelling, punctuation and editorial errors. In short, be a good journalist. Do not give censors an easy target.
• Pick your battles wisely
Fighting for a free student press is a worthy endeavor. But the truth is, some censorship fights are worthier than others. Do you really want to go to battle over the right to use a four-letter word? Or the right to publish a raunchy, rumor-filled gossip column? Is it worth pulling out all the First Amendment stops when the principal objects to an editorial’s description of a curriculum change as “idiotic,” but would agree to your calling it “unwise”? There are no hard rules for determining when a fight is worth the time and effort involved, but the question should always be asked.
• Do your homework
The law related to free expression in school can be complex – take the time to understand your rights. Every case has its strengths and weaknesses and it is important that you’re able to accurately assess where you stand. Sadly, few administrators know – or sometimes, even care about – the law related to student free speech rights. Too often they act without taking the time to figure out what they lawfully can and cannot do. You may need to help educate them. Be prepared to explain the relevant legal standards and to refute the erroneous – but commonly held – belief that public school officials have an unlimited license to censor. The Student Press Law Center website (www.splc.org) has plenty of information that can help.
• Meet with the censor – with a smile
As soon as the threat of censorship emerges, set up a meeting with the censor. The purpose of this meeting is to air all sides’ concerns and to resolve the situation before it heats up. Confront the threat, but avoid being confrontational. Immediately spouting off about the First Amendment and threatening legal action seldom encourages productive discussion. Rather, hear the administrator’s objections. Listen. Be open to small changes or creative compromises. At all times, be courteous and show the appropriate respect. Do not get into a shouting match. It is important that you give the administrator an opportunity to save face. Offer to answer his questions regarding factual statements made in the story or to provide him with information about the relevant law. If he has questions about the legality of piece you want to publish, for example, offer to consult with a media law attorney to address his concerns.
Take time to explain your role as a student journalist. Remind him that the press’s goal is not to publish good news or bad news – just the news. I often encourage students to read and share articles such as the “Voice of Freedom” (available on the SPLC website at: http://www.splc.org/mediaadvisers.asp), which offer an administrator’s perspective on the benefits of encouraging a strong and independent student press.
The student staff, preferably a small group of student editors, should initiate and run this meeting. The student media adviser, if he or she attends (and it’s often best if they don’t), should act merely as an observer. Remember – it is a student publication being censored and it is up to students – not the adviser – to take the lead in any censorship battle. Students have much more freedom – and in many ways, more credibility – to fight a censorship battle than their adviser, who is a school employee. It is essential that school officials immediately understand that if a censorship battle is to be fought, it will be waged with students, acting on their own.
Failing to reach a compromise, it is important that this initial meeting end with the administrator knowing – in no uncertain terms – that the student staff considers censorship a very serious matter. Make it clear that you hope to avoid a fight, but also leave no doubt that you are prepared to take a stand.
• Gather the troops
If it appears a censorship battle is unavoidable it is time to begin identifying your supporters. First, gather the student staff together. Make sure all staffers are briefed on the facts of the conflict. Take time – as a student staff – to discuss your strategy and your reasons for contesting the censorship. Reach a consensus about the main message that you wish to convey in any battle that ensues. Appoint a primary spokesperson to handle future media queries or so that you speak with one, consistent voice. Again, it is important that your adviser’s involvement be minimal or nil.
Now is also the time to notify other student leaders, parents, local journalists, press associations, community members and any others that you think would be supportive to seek their input and alert them that you may need their help. Now is also a good time to contact the Student Press Law Center to notify its legal staff of your possible censorship battle and to have any additional questions answered. At this stage, it is usually best to refrain from officially publicizing the censorship. This allows school officials to quietly change their minds or pursue an acceptable compromise.
• Meet with the censor – with a deadline
If, after a reasonable period, the censor has refused to back down, it is time to initiate a formal, administrative appeal. Even if you are sure such appeals will be denied, a judge hearing your case will generally insist that all internal appeals first be exhausted. Moreover, your willingness to work with school officials to resolve the matter will be viewed positively should it become necessary to publicize your case. Once again, when meeting with the censor, be courteous – but firm. Be very clear that you intend to contest the censorship both in and outside of school. Let them know, for example, that you are now working with lawyers at the Student Press Law Center in Washington, DC, and that you have already met with parents, local journalists and others regarding the censorship.
This is the time to start a paper trail, which will be crucial should the matter eventually result in legal action. All contact with administrators and others involved in the censorship fight should be carefully summarized and recorded and copies of all documents preserved. Student staff members should store copies of the censored material at a safe and secure location.
Present the censor with a letter formally objecting to the censorship and asking that she reconsider her decision. If the administrator has previously provided reasons for the censorship, state them in your letter and explain why you believe they do not justify the action taken. Ask that the censor provide her response in writing with a reasonable deadline stipulated. If the censor refuses to provide a written response, follow up with your own confirmation memo to the censor. State your understanding of the facts and request that the censor clear up any misunderstandings in writing. (For example, “As we have not heard from you by our requested deadline, we will assume that you have decided not to allow publication of the March 20 article, “Class Sizes at CHS Continue to Grow,” because, as you told us during our meeting on March 25, you believe the article “reflects negatively” on the school. If this is incorrect, please notify us in writing by April 5.”)
• Meet with the superintendent
Assuming that the original censor was your principal, your next step will be to appeal the decision to her boss, in most cases the district superintendent. If possible, set up another in-person meeting to present your case and to give the superintendent an opportunity to meet you and your staff and ask questions. Again, courtesy and “professionalism” pays. Explain why you are contesting the censorship and that – while you would like to see the matter resolved quietly – you are prepared to fight the censorship as long – and as publicly – as necessary. At this meeting you will once again want to present the superintendent with a formal, written letter of appeal outlining what has occurred thus far and explaining why you believe the censorship is wrong. Make sure that the superintendent has copies of the censored material and any previous correspondence. In advance of your meeting, it can help to have a few key outsiders make a call or send e-mail to the superintendent on your behalf.
• Go public
If the superintendent turns down your appeal, it is now time to kick your publicity campaign into high gear. Unlike the principal and superintendent, school board members are usually elected officials. Public pressure can be very effective.
A good first step is to draft a press release about the censorship. A press release briefly and accurately summarizes the facts surrounding the censorship, includes a quote about the censorship from your staff spokesperson and perhaps from an expert on censorship or journalism (such as someone from the Student Press Law Center or your state scholastic press association), provides information regarding any upcoming developments (for example, a student protest, a school board meeting, etc.) and includes contact information for those wanting additional information. Send the press release to your local news media (including local high school and college student media) and follow up with a phone call to the editor or news director. Also send your release to civil rights groups, to your state press associations and to alumni, parent and civic groups. The Student Press Law Center can help you reach a national audience so be sure to send its reporters a copy. You may also want to peacefully distribute the press release among fellow students outside of class and to others in your community. Consider creating an off-campus, private website where people can go for current news and information about the controversy. Consider posting a copy of the censored material to the website so that people can judge the censorship for themselves – or so that other media can publish it, as often happens.
In some cases, students have found that creative, peaceful protests (for instance, wearing black armbands, symbolically covering their mouths with tape during lunchtime, passing out copies of the First Amendment after school, circulating a student petition, etc.) have generated favorable attention. Letters to the editor or guest columns in local newspapers can also be effective.
Remember, despite your best efforts to resolve the matter quietly, school officials have chosen to censor. Sometimes, rather than a gentle nudge to do the right thing, they need a shove. It is, therefore, crucial that you now do whatever you reasonably can to make sure they are held publicly accountable as censors.
• Meet with the school board
If the superintendent turns down your appeal, your next and final stop in most administrative chains of command is the school board. Once again, you will need to file a formal written appeal. You will also need to find out what is required to put your appeal on the board’s public agenda. School boards often have specific rules for how their public hearings are conducted (notice provisions, filing requirements, time limits, speaker limits, etc.). Read them carefully.
Hopefully, your publicity campaign is now in full swing. Now is the time to encourage supporters to make calls or send e-mail or letters of protest to the school board and local news media. Support from parents and community members can be key. Also make sure the word gets out regarding the school board’s meeting time and place and encourage the news media and your supporters to attend.
Plan your school board presentation carefully. Your goal is to show that your staff capably performed its job as journalists and has acted reasonably throughout the controversy. Explain the editorial process for story selection and reporting. The board may have little familiarity with student journalism and the hard work and long hours involved in producing a student publication. Give them a quick primer. If possible, point out what others (the SPLC, a state press association, the local editor of the newspaper) have said about your coverage and the controversy. Better yet, where feasible, invite outside supporters to present their statements in person. Be sure to mention any awards that your publication has received. Explain what has happened since the censorship occurred and your early efforts to quietly and reasonably work with school officials to resolve the matter. Finally, tell them – in your own words – why you believe a free press is important, why you believe censorship is wrong and why you are taking the stand that you have.
• Consider alternative media
Unfortunately, some school administrators choose not to listen. If they consistently censor your school-sponsored student media and refuse to even consider allowing more editorial freedom, you may – in addition to fighting the censorship – want to consider an alternative means of getting your message out. Underground, or independently published, student publications or off-campus websites are entitled to significant First Amendment protection. In fact, as long as an independent publication contains no disruptive or otherwise unlawful speech, public school officials must allow for its reasonable, in-school distribution. Most courts have found public school officials have even less authority to regulate (or punish) students’ private websites that are created and viewed outside of school. For more information on publishing an independent student publication or website, see the SPLC’s “Surviving Underground” Guide, available on the SPLC website.
• Consider your legal options
If, after appealing the censorship within the school system and making your case in the court of public opinion, school officials still refuse to budge, your next step may be a court of law. Unfortunately, cases that are worth challenging in an administrative and public opinion forum are sometimes not always appropriate for a legal challenge. The facts of a case, the quality of evidence, the availability of witnesses and the history of court cases in a particular jurisdiction are among the factors that must be considered. An experienced media law or civil rights attorney can help you weigh the pros and cons of filing a lawsuit. Fortunately, where it is determined that their legal case is solid, student media have a number of allies. Groups such as the American Civil Liberties Union, the Foundation for Individual Rights in Education and the Student Press Law Center are among those that operate referral services that can put student journalists in touch with local, volunteer lawyers that have offered to provide legal help free of charge.
In the end, however, a positive court ruling is not the only measure of victory. In fact, many successful censorship battles have ended with the censored material never published. The victory in such cases is achieved in the battle itself – in having the courage to stand up for what is right. While a completely free and independent student press may not always be achievable, the very act of reminding others why it is important and worth defending – fighting the good fight – is always an honorable accomplishment.