School searches newsroom
Experts: Shield law should have protected Western Oregon Journal
It happened after hours, in the dark, when the reporters and editors had all gone home.
Western Oregon University computer technicians were let in to the newsroom of the student newspaper, the Western Oregon Journal, to look for a file containing students’ confidential information that had been accidentally released on the university’s public server. A day earlier, Journal staff member Blair Loving had inadvertently discovered it when using the public server. He made a copy and gave it to his editor, who decided to write a story about it.
Director of Computing Services Bill Kernan, who directed the search, said because the newsroom is university property, officials were not required to seek permission or inform the news staff of the search.
Kernan said in an e-mail interview that the search was initiated because “We asked for the illegally copied files to be returned to us immediately — they were not.”
The technicians did not find or confiscate anything. But in their wake they left a lot of anger and uncertainty as to whether college newsrooms could be protected from being searched by campus authorities.
“The fact that they did it in the middle of the night is very disconcerting,” said Loving.
In addition, Loving was nearly expelled from school for violating the university’s computer use policy, which prohibits “accessing clearly confidential files that may be inadvertently publicly readable.” Adviser Susan Wickstrom also was dismissed because the university said she mishandled confidential information and failed to inform the students about the university computer policy.
“It’s just shocking that this would happen in Oregon,” Wickstrom said.
Wickstrom’s dismissal is being investigated by College Media Advisers. Loving’s disciplinary sanctions were lifted after he appealed, but the infraction will remain on his record.
Oregon’s shield law
Oregon has the broadest state shield law in the United States, said Duane Bosworth, a Portland, Ore.-based attorney who specializes in media law. The law protects journalists from compelled disclosure of news sources and unpublished or unbroadcast material in almost all circumstances. It also protects newsrooms from being “subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise.”
Opinions differ on whether the law can be applied to college newsrooms, especially if the university or college is providing all or part of the newspaper’s funding or if the newspaper is operating on university premises with university equipment.
Judd Nelson, the adviser to Portland State University student paper the Daily Vanguard, said that because the newspaper he advises operates on campus property, he believes authorities can search it without permission.
“In our case, the university owns the property and we don’t pay rent, so it is their property,” he said.
Still, Nelson said that even though Western Oregon University authorities might be able to search a newsroom without permission, they should have at least told the staff of the Journal beforehand.
“My guess is that they probably can,” he said. “But I think it’s ridiculous that they did. … It’s downright sneaky and unnecessary.”
Kyu Ho Youm, a professor of journalism at the University of Oregon who specializes in communication law, said whether university authorities can search a newsroom might depend on the relationship between the newspaper and the university.
“It has a lot to do with what kind of arrangement is defined by tradition and by practice between the campus and the university authority,” he said.
But he also agreed with Nelson that a newsroom search can have a “chilling effect,” and that regardless of a university’s authority to search a newsroom, university officials should consider the grave consequences to students’ freedom of the press.
“The university administrators should give the students the benefit of the doubt instead of sending someone to search the newsroom without any sort of warning,” he said. “That is alarming.”
Who owns the newsroom?
The relationship between the university and the newspaper has been in dispute. The newspaper is funded with student funds and advertising revenue; the university pays for a faculty adviser. But when editor in chief Gerry Blakney changed the masthead in October to “Student owned and operated, reporting the unabashed truth,” it prompted Vice President for Student Affairs Gary Dukes to e-mail the current newspaper adviser and demand that the statement be removed.
“(The newspaper) isn’t actually student owned,” he said in the e-mail. “That part of the statement needs to be changed. Student fees go to the operation of the paper, which makes it university owned … They could say student funded or student supported … both of these would be true.”
Blakney said the newspaper has successfully resisted pressure the administration has put on the paper’s current adviser to censor stories, but that the paper’s editorial independence remains precarious.
“This university has … a serious history of taking over student rights and abusing student rights,” he said. “They’ve been very good at squelching any student response to it.”
Kernan said he believed he could search the newsroom without permission because the technicians searched university-owned computers and because the newsroom was on “university premises.”
But Bosworth, the media law attorney, challenged the notion that the university ownership of the newsroom exempted the newspaper from the shield law.
“I have no question that the shield law applies,” he said. “The statute does not itself allow for any exception that arises out of the fact that it’s the school or student publication that’s funded by the school.”
The only exception the statute provides is if a crime is actually being committed on the premises of a newsroom. But Bosworth said that violating a school policy does not constitute a crime.
“In this case, if I had to guess, the actions were taken without considering the media shield law,” he said. “Had there been a subpoena there would have been time to decide whether the statute applied. Instead, they just walked in.”
Mike Hiestand, an attorney and legal consultant to the Student Press Law Center agrees.
“There’s no doubt the law protects student media. Keep in mind that the federal newsroom search law and many of the state laws were passed as a direct result of a 1978 Supreme Court ruling that involved law enforcement officials searching Stanford University’s student newspaper offices,” Hiestand said. “These laws exist precisely to prevent officials at Western Oregon from doing what they did at Stanford nearly thirty years ago.”
Bosworth also said college newsrooms need to be guarded against such searches in order to maintain their editorial independence.
“The only way that a newsroom really functions properly is when there is confidence that what happens in the newsroom can stay in the newsroom,” he said. “There must be freedom within the newsroom to make decisions without someone looking over your shoulder.”
However, Loving said he believes the university will not repeat its mistake.
“I think they would make different choices now in this situation,” he said. “They understand now that they have the potential to create a giant issue.”
He added that he doesn’t believe the university’s attitude towards the newspaper has diminished its freedom of the press.
“We’re really not afraid of the administration,” he said.
reports, Winter 2007-08