By Mike Hiestand
Ever since the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, which significantly increased administrative censorship authority over many student publications, public high school students have turned to state lawmakers for help in restoring some of the balance that had previously existed. After the federal Seventh Circuit Court of Appeal’s 2005 decision in Hosty v. Carter, which ruled that Hazelwood was the “starting point” for college press censorship cases in Illinois, Indiana and Wisconsin (the three states under its jurisdiction), college student media also began looking to their state lawmakers to ensure that Hazelwood’s reach didn’t cross their state’s border.
In January 2007, Washington became the first state to consider legislation that would provide such legal protection to both its college and high school student media. While the free press protections provided by the bill are consistent with those contained in other state laws – and recognized throughout the country for nearly 20 years prior to Hazelwood – HB 1307 would be the most comprehensive student free press law in the country and establish a good model for other states to work from.
The following questions and answers are adapted from oral and written testimony I provided to the Washington House Judiciary Committee on January 26, 2007, when it held hearings on HB 1307. Hopefully, they will help answer some of the more common questions and concerns raised by such legislation as it is considered in Washington and elsewhere.
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Good morning. Thank you Madam Chair and members of the Committee. My name is Mike Hiestand. I am an attorney and for nearly 20 years now I have worked on legal issues affecting America’s student press. From 1991-2003, I was the staff attorney for the Student Press Law Center in Washington, DC. The SPLC is a nonprofit organization that, since 1974, has provided free legal assistance and information to America’s high school and college student media. Over my career, I have personally provided such help to over 14,000 student journalists and advisers. I am also the co-author of the Center’s book Law of the Student Press. While I continue to work closely with the SPLC, today I’m fortunate to be appearing in front of you simply as a fellow Washingtonian, living and working in the Bellingham area.
I appear before you this morning to offer my support for House Bill 1307. I can tell you that there is a vital need for this legislation in Washington and around the nation if we have any hope of teaching our young people the importance we place on press freedom and free expression in our country.
I provided some assistance in drafting the bill and I would be pleased to try and answer any questions you might have about this legislation.
But I’d also like to clear up some information I’ve heard today and read recently about what this bill will and won’t do.
Why are these laws needed?
In order to understand what is at stake you have to understand a little about the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which changed the law for most high school-sponsored student media. And not just a little – but a lot. I know you’ve got quite a bit on your plate, but if you do nothing else, I urge you to at least take a look at what Hazelwood actually says. In my experience, most people are shocked when they hear just how much it altered the balance of administrative power. Under Hazelwood, school officials have the authority to censor many – though not all – high school student publications if they can show their actions are “reasonably related to legitimate pedagogical (educational) concerns.” While that sounds “reasonable” – and does not provide school officials with the unlimited license to censor many have claimed – the Court went on to give some examples – alarming in their vagueness and breadth – of what would meet that standard. Among other things, the Court said administrators could censor material they deemed “poorly written,” “biased,” “inappropriate” or “inconsistent with the shared values of a civilized social order.” Unfortunately, many school officials – like government officials historically – have taken full advantage of their censorship powers, with calls to the Student Press Law Center from student journalists seeking legal help rising five-fold from 1988 to the present. I don’t have to tell you that if all a principal or college president has to do to kill a story or editorial he or she doesn’t like is to label it “poorly written” or “inconsistent with the shared values of civilized social order,” students learn quickly that the lofty promises of the First Amendment can ring pretty hollow. And, unfortunately, as some of the studies regarding student attitudes about the First Amendment you have heard about this morning make clear, it’s a lesson that stays with them.
Does Hazelwood apply to public college student media in Washington?
No. At least not yet. Unfortunately, a 2005 federal court of appeals decision, Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005), which ruled that Hazelwood could be applied to college student media in three Midwestern states, has led some college and university officials elsewhere – including here in Washington – to argue that they now have more control over college student media. The thought that free speech on an American college or university campus could be curtailed simply by an administrator declaring it “inconsistent with the shared values of a civilized social order” (however they might define that) is something that should give all of us great pause. HB 1307 would put an end to that threat.
Does this legislation give students the right to publish whatever they’d like?
No. This law includes some very clear restrictions. Students cannot publish unlawful speech. These are the same categories of speech that every journalist must avoid (libel, material that invades a person’s legal right to privacy, obscenity as to minors, etc.). The law also imposes an additional category of speech restriction specific to schools: high school students cannot publish speech that would significantly interfere with normal school activities. The standard adopted by HB 1307 comes directly from a Supreme Court standard (known as the Tinker standard) that was in place for student publications for nearly twenty years before the Supreme Court’s Hazelwood ruling. That standard created a meaningful balance between administrative authority to maintain a safe and effective learning environment and student free speech rights.
How many other states have enacted laws similar to HB 1307?
Six states – Arkansas, California, Colorado, Iowa, Kansas and Massachusetts – have passed student free press legislation that defines the rights and responsibilities of high school journalists. (Pennsylvania has enacted state regulations that provide similar protection.) These laws have been on the books for over a decade and there has been no indication of any negative affect on schools in those states. In fact, if anything, high school journalism is better and more professional in those states because students understand that rights and responsibilities go hand in hand. In Fall 2006, in response to the Hosty decision, Gov. Arnold Schwarzenegger signed a law making California the first state in the country to pass similar free speech protection for college student media.
Wouldn’t this law conflict with the Supreme Court’s Hazelwood ruling?
No. Hazelwood is a First Amendment case. It does not require administrative censorship. Moreover, the First Amendment establishes a “floor” of legal protection. While states cannot pass a law that provides less protection than the First Amendment, the Court has made clear that states can always choose to provide more protection for their citizens. That is what HB 1307 does.
Would this law limit some of the censorship authority of public school administrators?
Yes. And I understand why some of them wouldn’t like that. I’m sure it is much easier for school officials to manage what, under current law, are often little more than public relations newsletters for the school. Allowing a genuine student newspaper that provides students a meaningful voice on issues that truly matter to them can be a threatening idea to those used to controlling the message. However, we have a First Amendment because, as a nation, we decided that a free and independent press plays a vital role in our democracy – even it it’s sometimes messier than a state-controlled press.
Fortunately, a number of administrators don’t look upon their student newspapers as an adversary or threat, but view an independent student press as an important school asset. They see the value in providing students with a forum to express their concerns and recognize the educational opportunities provided by a strong, well-supported student journalism program. (See, for example, the following articles from publications produced by the National Association of Secondary School Principals and the American Association of School Administrators for some administrators’ thoughts about the value of a healthy student press.)
What impact does this bill have on the authority of private school officials?
None. The law would only apply to public institutions.
What do teachers think of this legislation?
Every major journalism education group in the country – which represent the teachers in the classrooms and newsrooms who work directly with the students – has said that the type of legislation proposed in HB 1307 is the best and most effective way to teach journalism. If providing the “best education” for our students is the goal, certainly we must give great weight to those who actually do the educating. In Washington State, for example, both the Washington Education Association and the Washington Journalism Education Association have endorsed HB 1307.
Does this law allow for administrative prior review?
Nothing in the law prohibits high school administrators or an adviser from requiring their students to submit a copy of their publication to them for review prior to printing. However, while the law permits review (reading), it does limit the authority of school officials to actually alter or censor content unless they can show that it falls into one of the unprotected speech categories specified under this law. Nothing, of course, prevents school officials or advisers from raising their concerns with students about content. Mandatory administrative prior review of college student media is prohibited.
Isn’t the school the publisher?
The use of the word “publisher” in the context of student media is misleading and unhelpful. Like all publishers, schools may provide financial support (though not all do). But even so, a public school principal – unlike the private publisher of The Seattle Times – is a government official. The First Amendment specifically exists to limit the authority of government officials to control the speech of its citizens. Those limitations don’t exist for the owner of The Seattle Times. Moreover, unlike the owner of the Times, who actually does foot the newspaper’s bills and owns the presses, a public school principal no more owns a student newspaper than he or she owns the district’s school buses or the cafeteria. All taxpayers – which in Washington State’s sales tax-based revenue system, includes students – support student media at public schools. In fact, in some cases, student media receive no – or minimal – direct financial support from their school. In such cases, printer’s bills, computers, cameras and other supplies are provided by student-raised private advertising or student/parent fundraisers. Finally, it is also worth noting that under current law, unless schools pay their students as they would any other school employee or compensate them reasonably for their work pursuant to an independent contractor agreement, the student writers and photographers – not the school – own the intellectual property rights to the content they create, which is clearly different from commercial news organizations where private publishers do own all work created by their employees.
Does this bill make student more liable?
No. Student journalists have always been liable for what they publish. This bill changes nothing. My experience has shown that making students aware of their liability is a good and necessary part of teaching young journalists. As almost every journalism adviser will tell you, students that feel a sense of ownership for their publications are typically more careful and conscientious about what they publish.
How often are student media organizations sued?
Libel and other content-based lawsuits against student newspapers generally – and high school newspapers specifically – are extremely rare. In fact, to date, there is not a single, reported court decision where a school district has ever been held liable for material published by its high school student media. (If a school district were worried about liability, they would be much better served by ending their football program than worrying about their student media programs.) Still, because school officials frequently cite concern for liability as a primary reason for wanting to retain censorship authority, HB 1307 contains specific provisions that limit a school or college’s liability for student media.
But who will a reader sue if the student newspaper libels them?
It is true that students – who tend to be asset poor – are not generally the most attractive targets for a lawsuit. But limiting their free speech protection because of their limited net worth raises an important question: Should the First Amendment come with an income-eligibility test? The First Amendment has always been a harbor for the minority views of those with less power (and presumably wealth), which, over our country’s history, have included such “unpopular” views as abolition, women’s suffrage and civil rights. Young adults have arguably the most important long-term stake in our country of any demographic group and need to have their voices heard whether or not they currently have the money to make them an attractive defendant in a lawsuit. Also, this law would not prohibit an individual from seeking injunctive relief against student media or student journalists who violate its provisions.
What about all the horror stories you hear regarding what student newspapers or yearbooks have published?
Such incidents have occurred, but they are certainly the exception rather than the rule. Moreover, such incidents tend to occur at schools that lack a qualified or committed journalism adviser. Too often, school officials appoint individuals to advise student media who have no experience or no desire to do so (often brand new hires lacking seniority to object). As the saying goes, you reap what you sow. I only wish some schools put half as much effort into hiring and supporting qualified journalism teachers as they did hiring their sports team coaches. The vast majority of student publications go about their business in a responsible manner. I wish all of you had the opportunity to attend one of the big, national student media conventions. Not only would your “horror” concerns disappear, but you would be truly inspired by some of the best and brightest kids in the country and be amazed by what is possible where a student journalism program is given the tools and support to flourish.
And, frankly, if any school administrator would like to have a head-to-head contest of their student media horror stories against my administrative censorship horror stories, I’ll take that matchup any day.
Isn’t this a liberal (or conservative) issue?
Absolutely not. Free expression protections – and censorship – cut across all political and ideological boundaries. As multiple examples on the SPLC website (www.splc.org) will show, the restrictions placed on student media have been used to censor students who have attempted to include positive material about religion, conservatism and the pro-life movement in their student publications. If conservatives or liberals are not willing to support free speech protections for students for partisan reasons, they should be prepared to face the fact that the views they espouse will, sooner or later, be the ones that are censored.
Why is this legislation so important now?
I have a quote from the noted 19th century educator Horace Mann that I’ve kept posted near my desk for years. It reads:
“The great moral attribute of self-government cannot be born and matured in a day; and if school children are not trained to it, we only prepare ourselves for disappointment if we expect it from grown men.”
It’s frequently said these days that we live in a “new world” that requires a “new balance” between governmental authority and individual rights. If that’s correct, it’s also accurate that now – probably more than ever before – we need our next generation to fully understand and appreciate the liberties at stake in order to participate and help formulate the careful, reasoned and workable balance that they will be required to live under. We currently have in place a system of civics education whose central message is far too often: “look but don’t touch.” House Bill 1307 reminds our youngest citizens that the freedoms they talk about in class or on campus are not just questions to study for an exam, but principles to live by and stand up for. Thank you for the opportunity to appear before you today.