Press laws: For students, by students

Western Kentucky University sophomore Josh Moore enjoyed a rare degree of freedom as a high school journalist. He did not realize how rare until he started taking college journalism courses, learning how commonly high school journalists labor under censorship.

But Moore did not just study the situation — he is trying to fix it.

"My experience was actually amazing," Moore said of his time with the student newspaper at Muhlenberg South High School in Greenville, Ky.

"As editor, I had two different principals. They never looked at anything before we published. We might go to them one or two times to ask their opinions, but we were making the editorial decisions."

As he dove into journalism education classes in college and recognized the discrepancy among state laws regarding student press, Moore realized the importance of ensuring other students have the opportunity to learn and develop their skills in the kind of environment his high school had fostered.

That was the "driving force," Moore said, behind his recent efforts to introduce student free press legislation in Kentucky, his home state.

Last summer, Moore got in touch with Rep. Brent Yonts, D-Greenville, to ask his help in proposing a bill. By November, Yonts had agreed, and the work began to pile on for Moore.

"I told him that he has to carry the workload on this thing,"

Yonts said of House Bill 43, which was introduced in the Kentucky House of Representatives Jan. 6 and referred to the Education Committee the following day. "I have bigger fish to fry, but this is a good learning experience for Josh."

Although the bill did not become law this year, it attracted significant favorable publicity, and the efforts of Yonts and Moore may have built a foundation for a renewed push in 2010.

With steep expectations and an unfamiliar world of legislative processes to navigate, Moore hit the ground running last summer. He created a Web site to keep bill backers informed, and with the help of the Kentucky High School Journalism Association, he also sent out e-mails and letters to journalism instructors across the state enlisting support. After consulting the Student Press Law Center for ideas on generating legislation language, Moore drew up a draft bill for Yonts to bring to the House.

The proposed bill gave high school student journalists the right to free speech and press in student-produced media "whether or not the media are supported financially by the school or by the use of school facilities or are produced in conjunction with a high school class." Whereas "open forum" student publications — where students have editorial control

— currently have more robust First Amendment protections than those produced in conjunction with the school, HB 43 would have put all student publications on equal footing.

Although the bill would have permitted administrators to intervene in extreme cases — libelous expression, an unwarranted invasion of privacy, or the provocation of danger or disruption on campus — HB 43 otherwise allowed students freedom in "determining the news, opinions, feature, and advertising content" for their publications. Also included was a provision protecting advisers who refuse to suppress the "protected expression of students" — a retaliation protection both California and Kansas include in their student press laws.

Moore took inspiration from the example of seven other states — Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon — that have all passed similar laws protecting high school and college media; an eighth, Illinois, has a college free press act on the books.

These laws came in response to the U.S. Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier, which dictated that public high school newspapers not established as public forums are subject to lesser First Amendment protections.

In 2005, the Hosty v. Carter decision extended Hazelwood provisions to some college media as well. The federal 7th Circuit Court of Appeals' decision in Hosty ruled that Hazelwood is the "starting point" for college media censorship cases in the states under its jurisdiction — Illinois, Indiana and Wisconsin. Illinois has since passed a law that essentially nullifies Hosty, and states across the country are considering legislation that would override Hazelwood and avoid a precedent like Hosty within their borders.

Washington, for the third year in a row, considered (but failed to enact) legislation that would limit the censorship authority of school administrators over high school and college student media. The bill in Washington, like Moore's in Kentucky, was initiated by student activism.

Brian Schraum, now a graduate student in journalism at the University of Missouri, turned to his state representative in 2006 to help draft legislation for Washington.

"Even though [the Hosty] decision doesn't apply to Washington, I was concerned," Schraum said. "I wanted to preempt that law in my state."

Schraum and the ranks of supporters behind the Washington student press legislation have become very familiar with the arguments of their detractors over the past three years. They, like Moore in Kentucky, say they are typically up against school board administrators and principals' associations that see too much financial risk and too few constructive learning opportunities in handing editorial control completely over to students.

"Working professionally [as a journalist], you would still have an editor," said David Baird, director of governmental relations for the Kentucky School Boards Association. "Our job is to teach kids about the real world."

Moore responds that a student-run newsroom is very much a "real world" environment, and administrative control is a conflict of interest.

Still other student free press legislation opposition argues that, with both schools and parents absolved from liability for students' editorial decisions, a victim of libel by student media would have no means of recourse. Students, they say, simply do not have the means to pay damages if they libel or otherwise harm someone.

Mike Hiestand, attorney for the SPLC, faced these doubts at a Senate hearing for the latest Washington student free press bill in February. The First Amendment, he said at the hearing, is intended to protect minority opinion, and "minorities often don't have the kind of financial resources that the big boys have."

Concern over liability issues marks just one of several sticking points for student press legislation. Bill detractors, for example, have been consistently adamant about limiting the law's protections to college students, maintaining that high school students need more oversight and more protection from hurtful speech.

At the Senate hearing in Washington earlier this year, Jerry Bender, director of governmental relations for the Association of Washington School Principals, pointed to the student newspaper at Emerald Ridge High School in Puyallup, Wash., as an example. Last year, the paper came under fire for a package it published about the prevalence of and attitudes toward oral sex at the school, which included names of students who voluntarily participated in interviews.

"If we're going to be there as administrators when the plane crashes, we would certainly want to be there when the plane takes off," Bender said at the February hearing, suggesting more editorial control and supervision could help prevent controversies like that at Emerald Ridge, where the school administration and adviser voluntarily took a relative hands-off approach toward the newspaper's content. (The Puyallup district has since imposed mandatory school review over student editorial decisions.)

Despite past failed attempts at passing legislation in Washington, Schraum and other First Amendment advocates in the state remain steadfast in their attempts.

With the close of this year's General Assembly session in Kentucky in March, Moore also tallied one year down without his bill being passed. Seemingly undaunted by what might be a long battle, Moore said he is proud to be doing the legwork for what he sees as vital legislation for young, aspiring journalists in Kentucky.

"We expected it might take more than one try to accomplish our goals, and we can't take a break now," he said.

reports, Spring 2009