The Student Press Law Center blog


5th Circuit hears case over student's suspension for posting a profane rap video online



NEW ORLEANS — Off-campus speech that students share on the Internet must have heightened protection from school disciplinary authority to keep whistle-blowers and rap artists safe from punishment, an attorney for a suspended Mississippi high school student told appellate judges Tuesday. 

"The question in this case is whether government is so powerful that it can reach into the parents' home, into a student's computer and punish the student as if it were the parent," attorney Scott Colom told the full en banc roster of the Fifth U.S. Circuit Court of Appeals.

Colom urged the judges to uphold a Fifth Circuit panel's  December 2014 ruling in favor of Taylor Bell, an aspiring rap artist suspended from school in 2011 for a profane YouTube video about misconduct by two coaches at his school. Bell accused the coaches of sexually harassing female students in a rap song replete with violent imagery, including a line predicting that a coach would "get a pistol down your mouth." 

In a rare move, the entire Fifth Circuit agreed to rehear the case and vacated the panel's  2-1 ruling that found the Itawamba County School Board overstepped the First Amendment in disciplining Bell as if the speech had been delivered on campus. There was no evidence that Bell played the rap song on campus, leaving the judges to decide how much authority schools have to punish student speech when it is created and distributed entirely off-campus but has the potential to cause a reaction at the school. 

Colom ran into sharp questioning from Judge Rhesa Hawkins Barksdale, the dissenting vote in the December panel opinion, who argued that technology removes any distinction between on-campus and off-campus speech and that schools should have equivalent punitive authority over both. 

When Colom said the issue was about the state's ability to regulate speech critical of government officials, Barksdale interjected: "It's not the state — it's a school." 

When Colom said giving schools punitive authority over off-campus student speech could even allow them to suspend a student who used sharp language criticizing an elected school superintendent at a political rally, Barksdale shot back. 

"That's not what we're dealing with," Barksdale said. "We're dealing with threats, harassment and intimidation." 

Several federal appeals courts have, in recent years, given schools comparable authority over speech on social media as they have over speech on school premises under the Supreme Court's 1969 Tinker v. Des Moines Independent Community School District case. The Tinker principle allows schools to punish speech reasonably forecast to substantially disrupt school operations. The December panel opinion, however, questioned whether schools can be trusted with so much control over speech students create on their personal time, noting that Bell was attempting to complain about misconduct by school employees.

The school district's attorney, Benjamin E. Griffith, argued that Bell's constitutional challenge could be invalidated either by extending Tinker to reach potentially disruptive speech that is "intended to reach the school" or by finding that Bell's speech constituted a "true threat," which the Supreme Court has deemed to be categorically outside the First Amendment even in the off-campus adult world. 

When challenged about how the speech "disrupted" the school, when the only evidence was that the coaches testified to changing their teaching styles around female students to be more careful, Griffith replied, "'Disrupt' means to break apart. They had to break away and break apart from their teaching style and method." 

Several judges visibly struggled to come up with a legal standard that protects student political commentary and whistle-blowing speech from school retaliation. "Everything you say these days has the potential of reaching the Internet, so where's the line?" asked Judge Jennifer Walker Elrod. 

Judge Leslie H. Southwick called it "troubling" that the school's position might expose students to punishment not just for disruptive off-campus speech, under the Tinker principle, but to all of the Supreme Court's legal precedent recognizing exceptions to the First Amendment for in-school speech. In addition to Tinker, the Court has allowed schools to punish in-school speech that is "lewd" or that promotes the use of illegal drugs, even if the speech is not disruptive. "Could a school now punish online pro-drug speech?" Southwick asked.

Griffith did not directly answer, instead focusing on the violent imagery of Bell's particular speech -- a position that invites the Court to create a narrower legal standard than Tinker, encompassing only violent speech but not other forms of potentially disruptive off-campus expression. Judges supportive of the school's position emphasized Bell's use of violent imagery and the need for schools to respond to perceived threats without judicial second-guessing. 

"This is a case about 'I'm gonna put a gun down your throat -- pow!'" Judge Edith H. Jones remarked. "We don't need to go into highfalutin philosophical metaphysical discussions beyond that."

Tagged: Fifth U.S. Circuit Court of Appeals, Itawamba County School Board, Louisiana, New Orleans, news, recent-news, Taylor Bell, Tinker v. Des Moines Independent Community School District

Montana Supreme Court boots open-records appeal in Krakauer case on legal technicality



We may get clarification one day from the Montana Supreme Court on whether the public is entitled to know how colleges handle the appeals of sexual-assault cases -- but it won't be any day soon.

The Montana Supreme Court has dismissed an appeal from the state higher education commissioner challenging a September 2014 court order that directed the commissioner to turn over his files about a University of Montana sexual-assault case that involved a prominent college athlete. 

The commissioner, Clayton Christian, overturned a campus disciplinary board's recommendation to punish the former Montana football star, and author Jon Krakauer wanted to know why. He sued for access to Christian's files for use in research on a nonfiction book about campus sexual assault.

A district court rejected the state's contention that FERPA, the federal student privacy law, forbade disclosure of the commissioner's files, since Krakauer agreed to accept the records with student names removed. The state asked the Montana Supreme Court to block release of the records, with the support of the U.S. Department of Education, which enforces FERPA.

Open-government groups (including the Student Press Law Center) have supported Krakauer in hopes that the case can establish the legal principle that FERPA penalizes only a policy or practice of leaving students' records unsecured, not a decision to honor a single open-records request for newsworthy documents of public concern.  

In an April 28 order, the state Supreme Court found that the state's appeal was premature, because issues (namely, what the state should pay Krakauer for attorney fees as the prevailing party) remained to be resolved at the district court.

Krakauer's counsel filed a petition for reimbursement of attorney fees May 4 and is awaiting the state's response. There is no telling exactly when the case will be completely resolved at the district court so as to make an appeal timely, but when that happens, the parties will have to re-file their briefs with the Supreme Court, meaning an ultimate resolution almost certainly won't happen until 2016.

The delayed access to university records hasn't stopped Krakauer from publishing "Missoula: Rape and the Justice System in a College Town," his account of the way universities handle claims of sexual assault by students. The book focuses on the University of Montana and on one particular case in which, with the victim's cooperation, Krakauer traces the case of Beau Donaldson, a former Montana running back sentenced to prison in 2013 after pleading guilty to sexually assaulting a female friend.

Tagged: FERPA, Jon Krakauer, Montana Supreme Court, news, recent-news

Student newspaper board at Northern Michigan U. responds to criticism over adviser’s termination



MICHIGAN — Four student members of the student newspaper’s board of directors at Northern Michigan University released a statement on Tuesday refuting claims a university administrator influenced their vote to terminate the newspaper’s adviser.

“Each of us made up our own minds,” according to the statement. “We are independent thinkers. We take issue with how our fellow student board member and the North Wind have characterized us as easily influenced, poorly informed and impressionable.”

The statement followed a North Wind editor’s claims that the board — comprised of five students, a local journalist, an administrator, a faculty member and the newspaper’s adviser — violated the First Amendment on April 3 when they voted against reappointing Cheryl Reed as adviser. The board also voted against hiring Managing Editor Michael Williams as the next editor in chief, even though he was the only applicant for the job.

Since then, The North Wind has reported on the issue and three media organizations — Society of Professional Journalists, the Associated Collegiate Press and the College Media Association — have released statements calling for Reed’s reinstatement and Williams’ reconsideration.

“We are not looking for validation,” according to the statement, which student board members Aubrey Kall, Eric Laksonen, Troy Morris and Pearl Gaidelis co-signed. “We are comfortable with our votes and are exercising our rights and responsibilities as board members.”

Kall said a story in The North Wind “mischaracterized” January meetings between Vice President Steve Neiheisel, a member of the board, and student members. An April 9 story in the student newspaper alleged Neiheisel told the student board members the newspaper’s open records requests were “a waste of time and money” and he spoke critically of Reed. In January, the board of directors voted against paying for a $300 open records request for the emails of six administrators, including Neiheisel.

Emma Finkbeiner, the newspaper’s editor in chief, had requested the emails in December 2014 following “feelings of intimidation” from administrators.

According to the statement, Neiheisel only met with the student board members to distribute a copy of the board’s bylaws and to discuss the board’s role in the January meetings.

“We were not told how to vote on the FOIA request,” according to the statement, “nor were we told to support or not to support the journalistic advisor.”

Contact SPLC staff writer Mariana Viera by email or at (202) 478-1926.

Tagged: Michigan, news, Northern Michigan University, recent-news, The North Wind

ACP, CMA stand behind terminated Northern Michigan U. student newspaper adviser



MICHIGAN — A week after the student newspaper adviser at Northern Michigan University was terminated, the Associated Collegiate Press and the College Media Association have joined the list of organizations calling for her reinstatement.

“Colleges and universities need to foster an open environment where student media outlets are free from interference, even from publication boards,” CMA President Rachele Kanigel said in a statement on Friday. “There are many ways to bully student media and removing an adviser is simply that: bullying.”

On April 3, The North Wind Board of Directors voted 5-3 not to renew Adviser Cheryl Reed’s annual contract, ending her one-year stint as the newspaper’s adviser. The board also voted 5-4 against hiring Managing Editor Michael Williams as the paper’s next editor in chief, even though he was the only applicant.

In a statement on Thursday, ACP Executive Director Diana Mitsu Klos said the university community “has been ill-served by the embarrassing actions of the board.” The Society of Professional Journalists released a similar statement on Thursday, arguing the newspaper’s board of directors violated Reed’s First Amendment rights.

Reed, an English professor at the university, said she suspects her termination was retaliation for her support of student reporters’ investigative stories, many of which were critical of the administration.

On Thursday, The North Wind reported that Vice President Steve Neiheisel, a member of the board, met with student members of the board in January and told them the newspaper’s open records requests were “a waste of time and money” and spoke critically of Reed.

Along with the story, the newspaper ran a front-page photo illustration with the words “First Amendment, Dead.”

Tagged: Associated Collegiate Press, College Media Association, Michigan, news, Northern Michigan University, recent-news, Society of Professional Journalists, The North Wind

Supreme Court declines to hear First Amendment challenge over school’s American flag clothing ban



The U.S. Supreme Court will not hear a First Amendment suit arguing administrators at a California high school violated students’ free speech rights when they banned clothes that featured the American flag on Cinco de Mayo.

A petition to the nation’s highest court followed a February 2014 ruling from three judges on the Ninth Circuit U.S. Court of Appeals in California, who found Live Oak High School officials did not violate the First Amendment when they ordered students to remove American flag T-shirts during a Cinco de Mayo celebration in 2010.

School officials cited safety concerns when they asked five students to remove the shirts or turn them inside out, pointing to a verbal spat after students waved an American flag and chanted “U-S-A” during the school’s Cinco de Mayo festivities in 2009.

“This is a tremendous blow to the free speech of students everywhere,” Erin Mersino, a Thomas More Law Center attorney, said in a news release on Monday. “The Court, by not taking the case, has enabled the voice of bullies to trump the voice of students who simply wish to express passive, peaceful speech.”

The Thomas More Law Center represented three Live Oak High School students who argued the ban violated their First Amendment rights.

In its ruling, the Ninth Circuit cited the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, which permits schools to restrict students’ speech if it could cause a “material and substantial” disruption at school. Previous incidents of racial tension at the school, the judges ruled, “made it reasonable for schools to proceed as though the threat of a potentially violent disturbance was real.”

In a friend-of-the-court brief to the Supreme Court, however, John and Mary Beth Tinker, plaintiffs in the landmark student speech case, said the Ninth Circuit judges got it wrong, arguing that schools shouldn’t be allowed to ban provocative speech because people who disagree might try to silence the speaker with violence.

“There is nothing unusual about speech leading to a risk of hostility or even violence,” according to the brief. “Speech on the most important matters facing America routinely involves some risk of such a reaction.”

The Supreme Court’s refusal to hear the case does not necessarily mean it agrees with the outcome, but it leaves the Ninth Circuit ruling, Dariano v. Morgan Hill Unified School District, as binding precedent for the nine states covered by the California-based circuit.

Tagged: American flag, California, Dariano v. Morgan Hill Unified School District, Live Oak High School, news, recent-news, Thomas More Law Center, Tinker v. Des Moines Independent Community School District, U.S. Supreme Court

Illinois AG: FERPA does not excuse colleges from turning over email directories



Colleges can't hide behind the federal FERPA privacy law to withhold access to the campus email directory, says the state attorney general's office in Illinois.

That's good. How the AG's office got to that conclusion is even better.

A reporter with a suburban Chicago news outlet, Edgar County Watchdogs, asked a local two-year college, the College of DuPage, to turn over a database of all college email accounts. 

The college produced the records but withheld the email addresses belonging to students, applying a rather tangled interpretation of student privacy law that requires a little explaining.

The Family Educational Rights and Privacy Act (FERPA) allows colleges to designate certain student records as "directory information," meaning that they can be revealed without needing the student's advance permission. Email addresses are among the items that, under FERPA, can be disclosed as directory information.

But the College of DuPage has chosen not to include emails as part of its bundle of directory information. So, the college argues, because COD chose not to take advantage of the opt-out from FERPA, that means the records are still protected by FERPA and can't be disclosed.

But in a March 20 determination letter, the public access counselor for Attorney General Lisa Madigan disagreed and told the college to comply fully with Kraft's request.

Illinois' Freedom of Information Act allows an agency to withhold or redact public records if the information is "specifically prohibited from disclosure" by federal law. But as Assistant Attorney General Josh Jones noted, FERPA does allow colleges to disclose email addresses -- the College of DuPage simply chose not to. And that's not a federal prohibition.

This is significant. College attorneys often take the position that, when FERPA makes it permissible to disclose a piece of information, that means the college is free to choose not to disclose it. That's not how it works.

Once Congress and the U.S. Department of Education say "we won't stop you from disclosing," then there is no longer any federal prohibition against disclosure. And that means the college can no longer rely on the "federal prohibition" exemption in public-records law.

It gets better. The determination letter casts doubt on whether FERPA can ever be interpreted as a federal prohibition against disclosure, because it doesn't actually say "don't disclose." It says, if your college has a policy or practice of disclosing, then you might be financially penalized (although no college ever has been). Jones' letter concluded: "[E]ducational institutions like the College may opt not to abide by the requirements of FERPA."

Attorneys for colleges have argued for years that FERPA precludes honoring even one request for public records, although that's hardly the "policy" or "practice" that Congress could have been intended to outlaw. Madigan's office has it right -- and that common-sense interpretation of FERPA ought to be part of any appeal of a privacy-based FOIA denial in Illinois from now on.

Tagged: Attorney General Lisa Madigan, campus directory, College of DuPage, FERPA, news, open-records, public records, recent-news

How much free-speech protection does a college applicant have? This federal court says: Zero.



In a troubling ruling, a federal district court says college admission decisions are essentially impervious to free-speech challenges -- even if the college admits that it rejected an applicant based on the religious views expressed in his interview.

Brandon Jenkins sued the Community College of Baltimore County for refusing to admit him to a radiation therapist degree program because he made a remark during his admissions interview indicating that he is religious. 

But on March 20, U.S. District Judge Ellen Lipton Hollander threw out Jenkins' free-speech claim, finding that the college could lawfully discriminate based on the applicants' viewpoints -- even though the First Amendment normally disfavors viewpoint-based preferences. 

The case began in April 2013, when five college employees interviewed Jenkins to assess his application. During the interview, Jenkins was asked "what is the most important thing to you," and he answered: "My God." According to Jenkins' lawsuit, that was the only time religion came up.

Although the college had non-speech-based reasons for rejecting Jenkins -- he had a criminal record that, the evaluators believed, would limit his chances of finding employment in the field -- a college administrator sent Jenkins a smoking-gun email acknowledging that his mention of religion was held against him:

I understand that religion is a major part of your life and that was evident in your recommendation letters, however, this field is not the place for religion. We have many patients who come to us for treatment from many different religions and some who believe in nothing at all. If you interview in the future, you may want to leave your thoughts and beliefs out of the interview process.

While that remark alone should have gotten Jenkins in front of a jury -- to decide whether, even in the absence of the unlawful speech-motivated reason, the college would have rejected him anyway -- Judge Hollander pulled the plug and granted the college's motion to dismiss the free-speech claim.

Judge Hollander said colleges must be free to consider applicants' viewpoints -- otherwise, CCBC could not have rejected Jenkins even if he said something reflecting obvious unfitness for the profession (for instance, that he would treat only children and not adults). But the analogy does not hold. 

In the context of employment discrimination, it's legal to discriminate if the viewpoint or the religious belief is itself an essential job qualification. Churches don't have to hire clergy who don't believe in God. Democratic officeholders can reject even the best-credentialed Republican aides. That is, at the very least, the burden that the college should have been required to satisfy here: To show that enthusiastically religious people are disqualified from being radiation therapists.

Judge Hollander purported to be relying on a 2009 ruling from a California district court, Association of Christian Schools International v. Stearns, that found no First Amendment violation when a public university refused to afford applicants credit for religion classes they took at private Christian high schools.

But that case doesn't support the Jenkins result. In the Stearns case, the court did find that a viewpoint-discriminatory college admission decision can violate the First Amendment, but concluded that the college had justified the decision with a legitimate, educationally based reason having nothing to do with hostility to religion. Judge Hollander's ruling indicates that no justification is necessary, and that even an unreasonable and viewpoint-discriminatory rejection is immune from a free-speech challenge.

The judge explicitly left undecided the more important question of whether the Constitution forbids viewpoint-based admission decisions when the speech addresses a political issue. It was unnecessary to decide that larger issue, because Jenkins' speech addressed purely private, personal matters. But the court's conclusion -- "the Free Speech Clause does not prohibit content-based or viewpoint-based decisionmaking in competitive admissions processes" -- opens the door for mischief. Now that viewpoints are more transparent and more easily detected by admissions committees than ever before -- thanks, Mark Zuckerberg -- colleges predictably will take the court's invitation to "ding" applicants who seem like potential boat-rockers.

As worrisome as Judge Hollander's conclusions are, an appeal may be years off -- or, more probably, will never occur. That's because the judge refused to dismiss Jenkins' alternative claim that the rejection violated the Establishment Clause of the First Amendment by establishing a preference for non-religion over religion.

The judge was persuaded to allow Jenkins to proceed because his evidence showed that the college changed its story on the importance of his criminal record -- first reassuring him it was no problem and encouraging him to apply, then citing the arrests as a disqualifier only after Jenkins sued. That was enough, the judge found, for a jury to disbelieve the college and infer religious discrimination.

Because Jenkins still has a case, he cannot appeal the free-speech ruling now. And because Jenkins still has a case, the college will be motivated to settle. If that happens, the district court's errant ruling will remain on the books unchallenged. 

Tagged: college applicant, First Amendment, First Amendment, first-amendment, Maryland, news, recent-news, religious speech

Three-second glimpse of porn brings six-figure FCC fine for Virginia television station



So this is what they mean by "the money shot."

The Federal Communications Commission served notice Monday that it intends to fine a Roanoke, Va., television station $325,000 -- the maximum allowed by law -- for a July 2012 news broadcast that, for three seconds, included a screen-capture of a sex act from a video-porn website. The Commission called the fine the highest ever assessed against a single broadcast station for an indecency violation.

The station, WDBJ-TV, intended to broadcast a non-explicit video clip of a former adult-film actress as part of a newsfeature about the woman's new (clothed) role, as a member of the local volunteer rescue squad. But a corner of the video clip included a couple performing a sex act that is probably best left undescribed here, except to note that the station's explanation -- that the image was too small to be noticed -- doesn't say much for the male actor's future in the porn business.

WDBJ President and General Manager Jeffrey A. Marks, in a statement posted to the station's website, called the fine "an extraordinary burden on protected speech," noting that the amount is exponentially higher than the $7,000 statutory baseline for an indecency violation. Marks said the station plans to contest the FCC order.

The FCC's indecency enforcers have been largely dormant since the Supreme Court's 2012 ruling in FCC v. Fox Television, Inc. In that case, the Court unanimously decided that the FCC violated due process in changing its enforcement standards to make "fleeting" curse-words and glimpses of nudity punishable without giving broadcasters fair warning of the change.

Questions will be raised about the FCC's decision in the WDBJ case because the scene, lasting only three seconds, could easily be described as "fleeting." Nevertheless, because the case involves the performance of a sex act and the exposure of genitals, and not (as in other "fleeting" nudity cases brought by the FCC) merely a flash of breasts or buttocks, the Commission will insist that any duration is too much during 6 p.m. family viewing hours.

Critics also will argue that the FCC has (again) muddied the enforcement waters by taking action against a news broadcast. Commission guidelines indicate that news programming about matters of public concern deserves extra latitude that might not be afforded to pure entertainment programming. But the Commission has resisted exempting news categorically from its indecency standards, and today's ruling makes clear that there is no free pass for newscasts -- even when the exposure is brief and unintended.

Tagged: Broadcasting, FCC, indecency, news, recent-news

Ohio Supreme Court denies motion to dismiss private university police records suit



OHIO — The Ohio Supreme Court announced Wednesday a former Otterbein University student’s suit against the institution to determine whether private university police departments are subject to the state’s public records law can proceed.

The state’s highest court denied the private university’s motion to dismiss the case, which was filed in February 2014 after the university police department denied Anna Schiffbauer’s public records request for 47 individuals’ criminal reports.

A recent Otterbein University graduate, Schiffbauer was the news editor of Otterbein360, a student-run online news organization, when she filed the lawsuit. Schiffbauer has also completed an internship with the Student Press Law Center.

In its motion to dismiss the case, filed in July, the police department argued it is not required to disclose arrest reports because they are not records of a “public office.”

“Otterbein believes we are not subject to Public Records and therefore do not make our records public,” Robert Gatti, vice president and dean for student affairs, said in his denial of Schiffbauer’s public records request.

Otterbein student journalists have struggled to gain access to police records since the campus security transitioned to a full-fledged, commissioned police force in 2011. Before that, the Westerville city police handled crimes on campus, and arrest information and other public records were available through that department.

In August, Ohio Attorney General Mike DeWine filed a friend-of-the-court brief arguing that records maintained by a private university’s police department should be held to the same standards as other law enforcement agencies in Ohio.

Tagged: news, Ohio, Ohio Supreme Court, Otterbein University, Otterbein360, recent-news

Md. senate education committee hears testimony for student social media privacy bill



ANNAPOLIS, Md — Taking steps to protect students’ privacy rights online, Maryland lawmakers heard on Wednesday a bill that could prohibit school officials from digging through students’ personal social media accounts for incriminating information.

The bill, which Sen. Ronald Young introduced on Feb. 2 to prohibit school and college administrators from asking students to disclose the passwords to their personal social media accounts, met no opposition at a Senate education committee hearing.

Young’s bill expressly prohibits college athletic departments from requiring athletes to sign contracts forfeiting their social-media privacy as a condition of playing sports. University system officials attended Wednesday’s hearing of the Senate Education, Health and Environment Committee, but told the student newspaper, The Diamondback, that they were taking no position other than offering an amendment that would ensure the bill does not prevent professors and students from using social media for academic purposes.

During his testimony, Young said it’s an invasion of privacy to comb through anyone’s personal social media accounts, adding that fishing through the accounts is like listening to someone’s phone calls or reading their mail. Young said the bill would not stop school officials from monitoring students’ activity on school networks or computers.

Young’s bill protects high school and college students in both public and private institutions. Twelve states have laws protecting students’ online privacy, but most state laws only protect college students.

Bradley Shear, a privacy attorney who testified at the hearing, said he would not be comfortable if school officials asked for his children’s social media passwords, adding that the bill not only protects students’ privacy, but also the privacy of the friends and family they interact with online.

In his testimony, Student Press Law Center Executive Director Frank LoMonte said the bill could protect whistleblowers who use social media to interact with student journalists. Student journalism could be adversely affected, he said, if school officials could look through journalists’ messages and contacts to identify their sources

Young has proposed similar legislation in two previous legislative sessions. The Senate approved the proposals both times but they stalled in a House committee.

In 2011, Maryland became the first state to prohibit employers from requiring their employees to hand over social-media account information and passwords.

Tagged: Maryland, news, recent-news, Ronald Young, social media privacy