Public campus, private spaces

Photographers struggle for access to areas run by private businesses. But can a public college allow a media blackout?

It was a routine story for the Western Kentucky University Herald.

The twice-weekly student newspaper was covering several football players volunteering in one of the public university’s on-campus restaurants as part of a community service project.

But The Herald’s photographers were informed they could not shoot inside one of the facilities because Aramark, the campus’ dining services company, insisted it was private property.

Herald Editor-in-Chief Josh Moore, a former Student Press Law Center intern, said this isn’t the first time they’ve had problems with Aramark.

“We’ve had a few different experiences this semester. A few different incidents with dining services where we’ve tried to take photos in dining facilities on campus and dining service employees have told us that we can’t do that,” Moore said.

According to Moore, each incident has spawned from non-aggressive stories.

“These are pretty harmless stories, stories like fair-trade products in the coffee shop,” Moore said. “So we were wanting to take photos, they said we couldn’t, claiming it was private property because they leased the space from the university.”

The increased use of private contractors on college campuses is regularly provoking disagreement over the ability of privatized bookstores, coffee shops and copy centers to declare otherwise-public property off-limits for newsgathering. The issue has become a point of frustration for student journalists who are welcomed as customers in their student role but may be excluded once their cameras come out.

At Western Kentucky, Moore said the community service story led him to contact Deborah Wilkins, the university’s attorney, to try to settle the issue and come up with a reasonable policy.

“Originally, following the football incident, we agreed to give it a day and to consult the university attorney and they talked to her and I briefly talked to her,” Moore said. “She basically agreed with them in that typically when a private entity leases a space from government it is considered private property for the course of the lease.”

Moore said after further discussion, Wilkins responded in an e-mail with details of the new planned policy media policy.

“[Wilkins] sent this e-mail to me saying the policy, in her words, was that they requested the names of every media member, their contact information, the reason for their entrance, a list of questions, what they want to take pictures of, their deadline and photographers would have to be accompanied by dining staff at all times,” Moore said.

Charles Davis, associate professor at the University of Missouri School of Journalism, said the important legal question is whether the space is a public forum.

Davis said there are three types of fora: the traditional public forum, which has the greatest level of First Amendment protection, the limited purpose public forum, and the private forum.

“Things like student dining facilities, recreation centers and student unions, I think they clearly fall upon the traditional public fora setting,” Davis said. “They are places that are reserved—and not only occasionally, but often—for expressive and communicative activities. They are public spaces in the broadest sense of the word.”

Wilkins, however, argues that property owned by a state agency isn’t always public.

“I think there’s a disconnect among people of what constitutes public property and just because a state agency owns property doesn’t make its property public,” Wilkins said. “If there’s a public park and you want to have a picnic, go for it, but if you want to have a picnic in the lobby of the president’s office suite, that’s not going to be allowed because it’s not going to be open to the public for any purpose.”

When asked if she could provide any case law on public university property being transformed into private property, Wilkins declined to do so.

“I could, but I’m not going to. We don’t have a legal dispute here,” Wilkins said. “The newspaper met with the dining services director and representatives from Aramark and based on what I’ve understood everything is fine and they’ve come to an agreement and can proceed in the future.”

Moore said he immediately began researching and gathering information to fight the policy Aramark planned to implement.

“I guess [Wilkins] thought that we would be OK with that as long as we were allowed to take photos, but we still contend that this is public space and we shouldn’t have to get permission and have staff follow us around while we take pictures,” Moore said.

Moore said he contacted an attorney with the Kentucky Press Association’s legal hotline and discussed the university’s contract with Aramark. He then had a meeting with Wilkins to discuss the problem. Sitting down with the Wilkins helped the university realize the seriousness of the situation, Moore said.

“I can’t say we’ve been successful yet. But the point is to do as much research as you can and talk to as many people as you can and have the best background of the law, and then present your argument,” Moore said. “We didn’t just go to them and say ‘We want to take pictures, and that’s that.’ We developed an argument, talked to some lawyers and saw what others schools were doing before we got too far into it.”

According to Davis, a university contract shouldn’t change the nature of a public location.

“Nothing about the fact that Starbucks is running the campus coffee shop in the student union should make it any less public than it was before,” he said.

Davis said when student journalists are prohibited from photographing in public areas, they should continue to appeal internally.

“First of all, if they’re working for the student newspaper, they should talk to their adviser. Their adviser should talk to campus officials, working their way up the chain of command as far as they need to to resolve the situation,” Davis said. “Usually it’s a miscommunication, sometimes it’s an official policy, but it’s wrong-headed policy.”

Moore said he sat down with WKU’s Aramark representative and discussed the issues shortly after his meeting with Wilkins. He said the two organizations agreed to use professional courtesy and respond to requests in a timely manner.

Local and national Aramark officials did not respond to requests for comment for this story.

Moore said Aramark’s argument was that they were afraid the competition would see from the newspaper’s photos how they prepared food.

“[Their] main concern [was] protecting the way they conduct their business,” Moore said. “In a place where they sell pizza, us taking photos of the pizza endangered the way they conduct their business. That was their argument.”

But Moore said he’s far from agreeing with Aramark’s position on the property being classified as private.

“They do still maintain that it is private property and we still strongly maintain that it is not,” Moore said. “We agreed to help each other. I don’t know how well that will go but we’re trying to work together.”

SPLC Executive Director Frank LoMonte said he’s heard of numerous similar situations involving private dining vendors on campus. He said if those companies are going to prohibit student media from photographing inside their facilities, then they must also prohibit recreational photos as well.

“The First Amendment doesn’t guarantee you as journalists that you can walk onto someone’s premises to take photos or gather news, but what it does say is you can’t be singled out and treated differently just because you’re taking the pictures for journalistic use,” LoMonte said. “I would bet it’s extremely unlikely that any cafeteria operator is telling people they can’t take smart phone pictures of their friends eating lunch and put them on Facebook.”

Unlike the university president’s office, as Wilkins suggested, students have a valid reason to be at the dining hall, LoMonte said.

“As a student, you’ve got a valid business justification to walk around on that campus and patronize that dining hall,” he said. “Once you have a valid reason to be in that space then they can’t single you out for non-disruptive photographing or interviewing unless they’re prepared to apply that to all their customers.”

LoMonte said he still questions whether a university can wholesale pieces of campus to third-party companies on a long-term basis.

“It’s questionable whether a school can really transform public property into private property on a permanent 24-hour basis,” LoMonte said. “It’s one thing for a concert hall to be leased out to a promoter for a day at a time, but the concert hall remains government owned. You can’t give away the public’s property to a private entity to treat it as their own on a permanent basis.”

By Nathan Hardin, SPLC staff writer

reports, Spring 2011