How to cover free speech issues on university campuses





As the debate over free speech on college campuses continues across the country, it's important for student journalists to prepare themselves. Are you ready to cover this issue when it comes to your school?

Here's some practical, ethical and legal advice:

SONJA WEST — UNIVERSITY OF GEORGIA LAW SCHOOL

Sonja West is a First Amendment law professor at University of Georgia. Her main area of focus is press freedom. She teaches courses in constitutional law, media law and the relationship between the press and the constitution.

UNDERSTAND THE SITUATION:

Free speech laws are confused right now. Legal definitions involved with free speech and free expression have been changing and West says it's important for reporters to understand what is happening and why.

One term that's recently been debated in court is "public forums." The government has the ability to put time, place and manner regulations on public properties, which can restrict speech in some ways.

"What we have seen recently is that the courts have been narrowing what they consider to be a public forum and they have been broadening the types of time place and manner regulations that they are finding allowable," West said.

This change has led universities to develop free speech zones where they create a public forum for students to engage in their speech activities.

"I think there is some question about whether or not those are broad enough or open enough and to what extent students still have free speech rights outside of those designated areas," West said.

KNOW THE LIMITATIONS: 

It's important to understand what powers or lack thereof a university has over speakers on campus. West  said not everybody has the right to come speak on a college campus.

She said that if a student group invites a speaker and is involved in setting up their speech, then the university generally can't restrict the speaker. 

"They have to be fair and apply the same content neutral rules to all of the speakers," West said. "So they can't not let one student group invite a particular speaker simply because they don't like or don't approve of that particular speaker's viewpoint or message."

West said there's been some questions recently with some of the campus free speech cases about exactly how involved a student group really was in bringing the speaker. She said some have alleged that some speakers coming to campus have really done all the work but they just find some student group willing to let them speak. 

"But from the school's point of view, if a student group has invited them then they can't at that point start regulating which kind of speaker is allowed to come to the school or not," West said.

One type of speech which can be limited is a threat or speech that creates specific danger. Another limitation is on speech that will disrupt the work of the school.

"Those are generally considered content neutral approaches," West said. "They aren't limiting the speaker because of their viewpoint or what they wanted to say, but rather because of this other factor."

DISTINGUISH BETWEEN RIGHTS AND VALUES:

West believes that most people think that the First Amendment protects more than it actually does — that their speech rights go farther and affect more situations than they actually do. The recent NFL protests have been a great example of this, with President Trump getting upset about people choosing to kneel during the National Anthem.

"You're just hearing a lot of public cries of 'But they have a First Amendment right. They have a free speech right to protest,'" West said.

The problem there is that when players are kneeling, they are protesting as employees of  a private organization. She said the First Amendment only protects people from government intrusion into their speech, so because there's no government intervention, there's no First Amendment violation.

"I think there's a First Amendment value that people are responding to that we as Americans accept: a freedom to state your strongly held belief in something," West said. "But it's not technically something that's a First Amendment right that you can really take to court.'

She said that discrepancy between rights and values frequently results in people thinking there is a First Amendment issue where there isn't one. Reporters need to be able to distinguish between the two.

"I think the best way for reporters to do that is just to be careful in their language," West said. "At times, they may need to add a sentence explaining that or talk to somebody who can explain that we don't actually have a Constitutional issue in certain places."

DAXTON "CHIP" STEWART — TEXAS CHRISTIAN UNIVERSITY, FORT WORTH


Daxton “Chip” Stewart is an Associate Dean and Associate Professor of Journalism at Texas Christian University. His areas of expertise include media law and communication technology, the First Amendment, freedom of information and public records laws, and social media.

Stewart said right now is the best of times and worst of times for free speech.

"We're at a time where speech that is clearly protected by the First Amendment is being challenged and threatened more and more than I've ever seen before: that's the worst of times," Stewart said. "The best of times is that it's a chance for us to talk about it and to learn about it and to advocate. It's a chance for journalists to do a lot of education."

BE EDUCATORS:

Stewart said student reporters should stay out of deciding what speech is good or bad, but instead, talk to decision makers, ask hard questions and use the situation as an opportunity to educate the public about the First Amendment through their coverage. 

Part of the problem is students' widespread misunderstanding of the First Amendment. Stewart said student reporters can help fix the problem by including context and explanations of free speech rights when writing about campus protest issues. 

Stewart said lack of understanding can scare faculty and students away from having important conversations if they have concerns about being disciplined for speaking in a way that could be considered offensive.

He said there's a lot of movement at universities right now to protect people who may be offended. He said everyone is focused on telling people what they can't say, but no one is telling people what they can say.

"You never see the things that say, 'Here are the reasons we value a free exchange of ideas in higher education. Here's how we should celebrate our differences. Here's a way to engage one another in challenging dialogue,'" Stewart said. "That would be very valuable, but we don't get that same message."

Stewart said the misunderstanding of free speech starts before college, often in high school. Students self-censor when administrators discipline students for content displayed on their t-shirts or refuse to allow a student newspaper to print a story administrators dislike.

"Somewhere along the line our kids were coached very much against offending, to the point where they feel like offending is a crime in itself," Stewart said. "If you build a repressive culture about speech and expression in high schools then I think that those kids will go to college expecting a similar thing and they go into adulthood expecting a similar thing."

Stewart also advised student reporters to find free speech advocates on campus and use them as sources to help reporters figure out and understand the law. Many campuses have free speech advocates and students should check journalism, law and political science faculty to find them.

"I think that student media and student journalists have a great opportunity to be educators in these sorts of situations and not to take for granted that their audience understands things," Stewart said. 

KNOW THE LAW:

In order to educate audiences, student reporters themselves need to understand the basics of First Amendment law. 

People debate a lot about controversial speakers coming to campus, but the school is often legally bound to allow these speakers to come. Stewart said universities can only bar speakers from coming to campus if the speech is a threat or action of discrimination or if there's proof the speaker's presence will cause substantial disruption of legitimate academic activities. 

"The idea that a public university won't allow somebody to speak because of the content of their message: that's clearly a First Amendment violation," Stewart said.

He pointed out that this is especially complicated because hate speech hasn't been clearly defined by the courts, however, if someone crosses the line to where their speech becomes targeted harassment of a protected minority group, then they open themselves up to discipline by campus authorities or state and federal government officials. 

Stewart said under the second circumstance regarding disruption, the university has some rights to discipline individuals to protect its role as an educator, but it's a higher standard to prove. 

DAN MOGULOF — UNIVERSITY OF CALIFORNIA BERKELEY


Assistant Vice Chancellor of Public Affairs at the University of California Berkeley Dan Mogulof has dealt with the free speech debate up close and personal. During the past year, the campus has seen several protests against speakers like Milo Yiannopoulos and Ben Shapiro.

"All of these events together, stretching back to last February, have raised serious questions and controversies and concerns around free speech," Mogulof said.

GET INFORMED:

Like Stewart and West, Mogulof’s noticed, "a deep and widespread misunderstanding about exactly what the First Amendment of the Constitution of the United States protects and demands." He said to report accurately, reporters need to be better informed about free speech. 

"If you're a reporter who believes that somehow the university has the ability to bar speakers from campus because of what they say, then you're gonna report on the situation in a very different manner," Mogulof said. "It's a little difficult to give people, particularly reporters on deadline, a full education about the First Amendment and court precedent and related laws and test cases policy statements because it's extremely complicated and they're issues that many reporters aren't familiar with."

One common misconception he's seen: students believe hate speech is not protected by the Constitution.

"Therefore, they believe that the campus had some sort of legal right or ability to bar from the university speakers whose rhetoric they didn't like," Mogulof said.

Mogulof said the university definitely did not have that legal right or ability. He said that misunderstanding is why the university has found itself in the middle of the ongoing debate about free speech on campus. As long as a student group complies with the university event policy, which is content neutral, the university cannot prevent a particular speaker from coming to campus.

"If this university or any public university tried to do that we'd be sued and we would lose, Mogulof said. "We would need to pay legal fees of those who sued us. We would support a ... narrative that we were not a welcoming place for speakers we disagreed with and there would be the possibility that the courts would take over from the university our ability to manage and schedule events. All of those would be horrible outcomes." 

Mogulof said he had a meeting with the editorial board of the student newspaper to tell them they did a great job covering the issues. He said the student reporters were persistent, comprehensive, accurate, balanced and tireless. 

"We thought they performed an essential service for the campus community and beyond and took on one of the most difficult and complicated stories that we've seen in a long time and did a damn good job of it," Mogulof said. 

EVALUATE CREDIBILITY AND EMPHASIZE CONTEXT:

Mogulof said another issue with reporting about free speech on campus is it's often "he said/she said," where reporters will provide statements from different sides of the issue, but not provide further context. This becomes a significant problem when the statements don't have the same level of credibility.  

Mogulof said student reporters should investigate allegations made against universities with the same thoroughness used for statements from the university. 

"We need to be pressed to substantiate the claims we make and if we say 'X' then journalists have the right and responsibility to say, 'Well, prove that,' and they always do," Mogulof said.

"Rarely do I see a similar approach toward those who make allegations about the university's conduct."

He said student reporters should talk directly with the administration, regardless of the situation — if a student newspaper feels its relationship with the administration is preventing it from doing its job, reporters need to bring that up to administrators.

JESUS RODRIGUEZ — GEORGETOWN UNIVERSITY, WASHINGTON, D.C.


Managing Editor for Georgetown University's student newspaper The Hoya, Jesus Rodriguez covered a free speech protest at Georgetown Law School where faculty members and students took a knee on the steps of the building where Attorney General Jeff Sessions was speaking about free speech.

Sessions was invited by the Georgetown Center for the Constitution to speak on Sept. 26. More than 130 students registered online only to have their invitations withdrawn later. Only students affiliated with the Center were allowed to attend.  Other controversies surrounded the event: its timing in relation to President Donald Trump's criticism of NFL players kneeling during the national anthem and opposition to Sessions and his policies. 

REPRESENT ALL VOICES:

One of the difficulties Rodriguez had while covering the event was representing all sides accurately. He said when you're under time constraints as a reporter and you're trying to be in two places at once, it's difficult to find and have time to talk to all the sources you want to interview.

"The challenge then, for me as a reporter, was to talk to enough people both inside and outside the auditorium," Rodriguez said. "Both those who were invited or hosting the event and students who were protesting."

He said if student reporters are having difficulties finding sources or having time to talk to them, one way to supplement the story is to use written communication: statements, press releases, emails, and social media posts. 

In Rodriguez's case, when he had trouble getting ahold of information from the university, he contacted students who had been disinvited from the event to get copies of their emails with the university about the event. He also included a statement released by faculty at Georgetown Law. 

"All written communication from an event like this is going to be crucial," Rodriguez said. "In a topic like this, you wouldn't want to misquote or misconstrue the stance of the university and also the stance of the student protesters." 

TALK TO THE UNIVERSITY:

Rodriguez said student reporters writing stories about free speech issues should use the opportunity to communicate with the university. He said there's often not a lot of direct communication in these situations between students and the university, so reporters have to act as the middleman.

"What I would emphasize is it's not so much about being against what the administration is saying," Rodriguez said. "It's more about voicing those concerns that the students have and bringing them up to the administration."

Rodriguez said student reporters should always reach out to those who are in charge, who are hosting the event. It's important to have a good relationship with the media contact at the university you're covering.

"When you're covering a speaker on campus and there's a protest, usually it goes beyond the protest," Rodriguez said. "There's another angle. It's not just the fact that the speaker spoke and there were protests."

SHOW THE AUDIENCE WHAT’S GOING ON:

When covering sensitive topics like free speech, it is important to give the audience a clear and detailed picture. Rodriguez said using numbers and photographs when reporting can help people understand what happened.

He said in this situation, with a speaking event and a protest, where people have questions, it's important to answer them. Reporters need to know how many students were invited (and disinvited), how many students were protesting, how many students attended the event and how many people the auditorium could hold. 

In this case, Rodriguez was able to use the numbers to fuel part of the story. Disinvited students had been told the event was full and could not hold any more students. He found the auditorium was able to hold more people than were allowed in for the event.  

And words only get you so far, Rodriguez said taking pictures is often the best way for reporters to show what happened at an event

"It's important for your readers to see for themselves what is happening inside," Rodriguez said. "Especially at an event that a lot of students were restricted from." 

*Correction: A previous version of this story ran with the headline "How to cover free speech issues on public university campuses." We corrected it to "How to cover free speech issues on university campuses" since Georgetown, one of the schools mentioned, is a private university. 

If you’re a student journalist requiring legal assistance or have legal questions about a story you’re covering, schedule a call with our lawyer or put in a legal request.

SPLC staff writer Emily Goodell can be reached by email or (202) 478-1926.

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Georgetownprotest

Student protesters sit on the steps of Georgetown University Law Center as Attorney General Jeff Sessions lectures on free speech inside the center on Sept. 26, 2017.