A catalyst for reform: North Dakota's new anti-Hazelwood law has rebuilt a national movement





2009 had been a good year for journalism adviser Jeremy Murphy and his students. For the first time, West Fargo High School’s student newspaper was considered the best in North Dakota by a regional scholastic press group, and one student journalist was named the state’s best by the Journalism Education Association.

However, in June, Murphy received a tough phone call — while he could continue to teach at West Fargo, he would no longer serve as journalism adviser.

“I was slightly devastated,” Murphy said. “I didn’t see it coming, and I was shocked.”

Murphy said he thinks the demotion stemmed from his advising approach, which prioritized the interests of his students over controlling content to avoid negative depiction of the school. His students covered district policy changes including a transition to block scheduling and reported on how schools in the district responded to flooding, topics which Murphy didn’t see as controversial but timely.

While Murphy’s reassignment was legal, come fall, similar situations will more easily be avoided.

In April, Gov. Jack Dalrymple signed The John Wall New Voices Act, which ensures the free-speech rights of journalism students in North Dakota public schools and colleges. The law passed unanimously in the state legislature and will go into effect in August.

“If the law was in place in 2009, I wouldn’t have been able to be removed for supporting what my students were publishing,” Murphy said. “It provided a good focal point as we started talking about this law and moving forward that we don’t really want that to happen to anybody.”

Steve Listopad, an assistant journalism professor who helped write the law, said Murphy’s eventual reinstatement in 2011 gave proponents of the new legislation “all of the ammunition needed.”

“There’s no ambiguity,” he said. “They couldn’t have rehired him if there were legitimate reasons to fire him in the first place.”

In 1988, the Supreme Court held in Hazelwood School District v. Kuhlmeier that students engaging in school-sponsored speech didn’t have the same First Amendment protections as other citizens, therefore allowing school administrators to edit student media through actions “reasonably related to legitimate pedagogical concerns.”

To counteract this blow to student free speech, five states passed “anti-Hazelwood” legislation, joining California, which already had a student free expression law on the books. Since the turn of the century, legislative momentum has lulled. However, some say North Dakota’s law could spur a nationwide movement to secure student journalists’ free-speech rights.

“If journalism students at public high schools and public colleges and universities can receive the level of protection that North Dakota has given them unanimously, it’s wide open for any state to pass this bill,” Listopad said. “It’s not a question of ‘if’ it can be done anymore, it’s a question of ‘when’ they are going to do it.”

A student bill with classroom origins

The North Dakota bill originated in Listopad’s civic and citizen journalism class at the University of Jamestown in 2013. The class researched and wrote the bill and, at the end of the semester, sat down with Democratic Reps. Jessica Haak and Corey Mock, who eventually co-sponsored the legislation.

“I was able to have experience with what is now real legislation that I am very excited about,” Dan Arens, a student in Listopad’s class, said. “The First Amendment, freedom of speech and freedom of the press are some of the most fundamental rights that we have as Americans.”

Listopad said the class studied anti-Hazelwood legislation in other states, adopting facets of California’s legislation, the only student free expression law to encompass private schools. However, they also considered the policies of Arkansas and Iowa, states with “representative value systems” similar to North Dakota. The class intentionally drafted an ambitious bill, which would have leverage in committee.

“We wanted to write a bill in such a way that there was room to compromise,” Listopad said. “If you wrote a bill in such a way that only addressed one part, then you had nothing to give up if things got sticky, and so we wanted to write a bill that was comprehensive so that there was some wiggle room.”

Moving forward, each North Dakota public school district must draft a policy in compliance with the new law, which guarantees student expression the free-speech standard established in the Supreme Court’s 1969 decision of Tinker v. Des Moines Independent School District.

In that case, the nation’s highest court determined students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” preventing school officials from punishing students for their speech unless they can demonstrate it will cause a “substantial disruption” of normal school activities or invade the rights of others.

“We wanted to make sure that high schools in our state have to write their own code for handling student journalists and student speech, so that the baseline is now the Tinker standard but they have to create explicit policy within their school district,” Listopad said. “As far as collegiate expression, our goal was to codify the existing values that are already in North Dakota university system policy.”

A safeguard against intangible censorship

North Dakota Newspaper Association Executive Director Steve Andrist gave a pervasive opinion about the law — that while blatant censorship is not a common problem in North Dakota schools, the new rules will establish protections against subtle offenses and send a message of empowerment to student journalists and media professors.

“All the way through the testimony on this particular bill, there were not egregious examples of school administrators stamping out the rights of student journalists,” he said. “But the law sets a tone and tells student journalists and the general public that free speech is important in this state. It’s a principle that we really want to live by, and we want to teach our future journalists how important it is by giving them those rights.”

Bismarck State College sophomore Katie Winbauer, who testified at a committee hearings, said her high school’s administration inhibited her from reporting on controversial topics including underage drinking and a scandal about the school’s football coach.

“I definitely wish this legislation would have been passed when I was in high school because I would have fought harder for my stories,” she said. “Since I knew there wasn’t really anything I could do because this legislation wasn’t in place, I just kinda gave up.”

Emily Chadwick, a senior at West Fargo High School who also testified in committee hearings, depicted a different high school environment — one which has supported her reporting, no matter how controversial.

“We flourish as student journalists because we aren’t subject to prior review, we don’t have our stories taken from us and we can write about sensitive topics,” she said. “I think we should all have the same rights as professionals. We do have freedom of speech and we should be able to write what we feel comfortable writing.”

Arens, who never faced censorship as an opinion columnist at the University of Jamestown, said the value of the experience gained by reporting on sensitive issues outweighs the harm of potential missteps.

“You have to start getting that experience somewhere to make you a better journalist, and what better place than in school where you can tie your journalism experiences with what you’re learning in classes,” he said. “I think it’ll provide for better journalists in the future if we provide for more press freedom at the student level.”

The exclusion of private schools

The bill initially sought to protect the free press rights of student journalists in both public and private schools; however, opposition quickly contested the private component. Arens himself had qualms about including private schools while while the bill, believing that “the government should not be forcing private schools to set specific standards for student press protections.”

The North Dakota Catholic Conference submitted a formal opposition to the bill’s first draft, writing that “government should not unduly interfere with the policies and practices of private institutions.”

“The provision impermissibly invites courts to review the ‘religious tenets’ of a religious organization — something that is outside a secular court’s competence, in addition to being unconstitutional,” according to the statement.

Christopher Dodson, the Executive Director and General Counsel for the North Dakota Catholic Conference, said the provision violated the free-speech and expression rights of private institutions.

“These are private schools for a reason,” he said. “Other institutions are run by the state, and the state has a right to set the policies of what they can and cannot do, but it would set a very dangerous precedent to allow the government to tell private schools what they can and cannot do.”

Rep. Alex Looysen, the bill’s lead sponsor, said the bill was ultimately amended to exclude private schools in order to guarantee the passage of the other sections.

“Personally I don’t believe you check your First Amendment rights at the door when you go to a private school, but we thought from a strategy standpoint that it would be better to pass two-thirds of the bill than lose the whole thing,” said Looysen, a Republican.

However, both Looysen and Listopad said they hope future legislation will grant private school students in North Dakota the same free-speech rights now granted to public school students in the state.

“We’ll be back again in two years,” Listopad said, noting that the bill originated at one of only two private universities in the state with student media. “I think we’ll be successful.”

A change of heart?

On its journey to becoming law, another concern with the legislation dissipated in committee, Listopad said.

“The North Dakota Council for Educational Leaders came to the House education committee meeting to oppose the bill, but then during our testimony, they flipped and stood up in support of the bill,” he said, noting that the committee amended the bill to include “relatively minor” edits proposed by the NDCEL.

An umbrella organization of all educational leadership associations in North Dakota, the NDCEL represents all schools and students in the state. Executive Director Aimee Copas said the organization’s support for the bill was contingent on the acceptance of their proposed amendment, which ensured that libelous and lewd speech in schools would not be protected.

“Regardless of how many freedoms that we want to give, the district is still the publisher of content,” she said.

Copas said that ever since her amendment was “adopted immediately,” she has had high hopes for the new law.

“I think that this is groundbreaking legislation, and more than anything, I don’t think that it suddenly allows the students to do inappropriate activities,” she said. “Rather, I think it better defines how we interact with each other as educational leaders and with our students.”

A bipartisan decision

After the House Education Committee made 11 amendments to the bill, most far less substantial than those proposed by the North Dakota Catholic Conference and the NDCEL, the legislation had widespread support and was passed unanimously in both the House and the Senate.

“The unanimous vote shows that it was a great bipartisan effort and that our legislature recognized how important this bill was,” Sen. John Grabinger, a sponsor of the bill, said. “I think the best thing is that it’s not necessarily political, it’s just the right thing to do.”

Listopad said he was surprised by the bill’s bipartisan support — a good sign for other conservative states.

“There’s a measure of disbelief that it passed at all in the first round, but it’s harder to wrap my head around how successful it was,” he said. “We know that these aren’t easy in any state, especially in a super-majority Republican state. We thought that this would be much more challenging and would take several attempts.”

The only concern with the final bill regarded its implementation in rural communities, Listopad said.

“The entire time, from the House Education Committee to the House floor to the Senate Education Committee to the Senate floor, there were only two votes against the bill,” he said “They were by House representatives in very small school districts that didn’t have journalism programs and didn’t have journalism advisers. They were concerned about teaching kids in these schools proper journalism ethics and practices.”

The future of student free speech

Listopad said he hopes the effect of the new law will expand beyond North Dakota. Since his initial involvement with The John Wall New Voices Act, Listopad has been contacted by community leaders interested in enacting new anti-Hazelwood legislation in at least seven more states.

“There’s a strategic roadmap and assurance that anyone, any Democrat, any Republican can go up against potential opposition in any state,” he said. “I think the field’s open and every state should try to get on board and try to do something.”

However, eventually, Listopad said he hopes the student free-speech movement will reach a national stage and attract the attention of federal lawmaker.

“Why should we go after this state-by-state with varying results?” he said. “Let’s take care of this once and for all.” 

Testimonials

The Student Press Law Center talked to educators and college media advocates across the country and found that North Dakota's successful passage of the law has inspired others to consider launching similar efforts in their own states. For more information, check out SPLC's Cure Hazelwood page.

"I need to do a little groundwork here, but based on my experience in Iowa over 20 years ago and North Dakota's recent success, the time may be ripe for such legislation here in South Dakota." 

- Mary Arnold, head of the Department of Journalism and Mass Communication at South Dakota State University

"I'm hoping to work it into a course in the next few years ... I'm just thinking about it at this point — inspired, of course, by the good work being done in North Dakota."

- K.C. Wolfe, adviser of The Current in Eckerd College in Florida

"We were inspired by North Dakota's success and all the support they've been giving us, and we've been following a blueprint for what worked for them. We're working toward gaining support and hopefully getting a legislator to propose a bill in the fall."

- Tom McHale, board member of The Garden State Scholastic Press Association in New Jersey

"We had the legislation pass [in 1997], but it was vetoed by then-Gov. Jim Edgar. I was motivated to rekindle this in Illinois by what they accomplished in North Dakota."

-Stan Zoller, adjunct professor of journalism at Lake Forest College in Illinois

"Steve Listopad's efforts in North Dakota inspired the Nebraska Collegiate Media Association to begin to take a look at the possibility of this type of legislation in Nebraska. We're in the first stage, finding out exactly what North Dakota's law says and determining what strategy we might use to push legislation through the Nebraska Unicameral." 

-David Swartzlander, adviser of The Doane Owl at Doane College in Nebraska


recent-news, reports, spring 2015