The Student Press Law Center blog


Sunshine Week Roundup: Government transparency dustups abound in the Sun Belt



This Sunshine Week, there are a number of bills out there affecting government transparency across the Sunbelt. With a storm brewing in Arkansas and an effort to further open records exemptions in New Mexico, more and more states are working to move government further into the shadows.

The news isn’t all bad. Texas has put forward an illuminating set of legislation aiming to open up government contracts with private businesses and nonprofits that act on behalf of the government with taxpayer funding.

Arkansas

The Arkansas Democrat-Gazette reports 10 anti-transparency bills are on their way through Arkansas’ legislative process, running the gamut from state Capitol police records, videos depicting a police officer’s death, emergency plan documents for the state corrections system, and more.

Democrat-Gazette projects editor Sonny Albarado said the passage of any of this legislation will make it harder for Arkansas journalists to do their jobs. Albarado emphasized several pieces of legislation as especially concerning.

Senate Bill 373 would allow state agencies such as schools and universities to shield documents from open records requests under attorney-client privilege if counsel had seen or commented upon the documents. Another bill would let universities waive the state’s three-day deadline for responses to open records requests deemed “unduly burdensome,” essentially allowing them to slow-roll journalists indefinitely.

Another bill would shield school security officers from open records requests about their hiring and equipment. Gov. Asa Hutchinson has said he supports open records in the past, but as governor he will keep an “open mind” to any legislation that comes his way.

Albarado said the chances of any of the bills passing are good, and don’t bode well for transparency in the state.

“It’ll make the public’s right to know what their government’s doing a lot weaker than it already is,” Albarado said.

One bill, HB1665, looks ready for passage to Hutchinson’s desk. The bill would allow businesses to sue whistleblowers who have uncovered wrongdoing on business property outside of employees performing their job. This would include anyone who “records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.”

As VICE reports, this would prohibit the kind of undercover investigative journalism that has spurred change in other states.

Texas

Meanwhile, Texas is looking to reclaim their mantle as one of the most transparent states in the country. Two sets of companion bills sponsored by Sen. Kirk Watson, an Austin Democrat, and Rep. Giovanni Capriglione, a Republican from Southlake, aim to patch up some holes that have opened up in Texas’ transparency laws over the years.

Senate Bill 407 and House Bill 792 aim to patch up a loophole opened up by the state’s Supreme Court in Boeing v. Paxton, a 2015 decision that “allows all sorts of contracts the government holds with private businesses to be sealed from public view,” according to Kelley Shannon, the president of the Freedom of Information Foundation of Texas.

In an incident that took transparency advocates’ breaths away, the city of McAllen refused to disclose how much it paid Enrique Iglesias to play a show at a holiday parade, which reportedly cost the city $583,000. Attorney General Ken Paxton’s office certified that positively loco decision as legal.

The other pair of bills from the Watson-Capriglione alliance, SB 407 and HB 792, look to address another 2015 ruling that Shannon writes “prevents the public from viewing the financial books of non-profits that are supported by taxpayer money and act in a government agency fashion.” That could have consequences for student journalists covering university foundations, which are technically private but do work for a public body.

New Mexico

The Albuquerque Journal reports a number of bills dealing with public transparency are moving around in the New Mexico legislature, with varying degrees of success.

House Bill 10, according to the Journal, would create a “public accountability board” responsible for investigating ethics complaints within the state government. Ironically, critics say it would operate largely behind closed doors.

Another piece of legislation, House Bill 267, would protect proprietary research conducted at universities from open records requests, which has been described as a defense against corporate espionage (but may also be motivated by politically charged requests made across the country in recent years for the records of climate-change researchers). A similar bill in North Dakota was endorsed by that state’s newspaper association.

One concerning bill was tabled this session, but open government advocates should keep an eye out for similar attempts in the future. Senate Bill 93 would have kept the names of government job applicants private. We don’t have to remind you that public university executives are government employees who often draw hefty salaries.

Previously

This Sunshine Week roundup is brought to you by the letter “T” and by the last time we had to do this. In case you missed it, Indiana’s House Bill 1523, which would implement an hourly search fee for records requests, has cleared the House and is now making its way through the state Senate.

Colorado’s Senate Bill 17-040, which would require agencies to release data in accessible digital formats, has made it through the State, Veterans, and Military Affairs Committee and referred to Appropriations..

Florida House Bill 351, which makes information on applicants to public university executive positions private and tacks on exemptions for university executive search committee meetings from public meetings laws, has advanced from Post-Secondary Education to the Oversight, Transparency, and Administration Subcommittee.

In North Carolina Senate Bill 77, imposing a fine for failure to comply with open records laws, remains in the Senate Rules Committee without action.

Finally, the Kansas bill seeking to limit the fees agencies can charge to search records, Senate Bill 86, also remains in committee with no scheduled calendar dates.

Tagged: blog, Blogroll, open-government, open-records, recent-news, sunshine laws, Sunshine Week

With open records, UC-Berkeley paper show how a little patience can yield big results



Correction: We corrected the quote relating Alex Yoon Hendricks interview with Professor Emeritus Eric Gans and subsequent loss of access. The managing editor mistakenly thought UC press relations had directed them not to contact Gans, but it was Gans who began directing requests to his attorney.

Last week, the Daily Californian at the University of California-Berkeley dropped a bombshell report: about one third of University of California system employees found to be in violation of sexual misconduct policy between 2013 and 2016 were still present on UC campuses.

It took almost a year to get to this point.

Last year, the University of California-Berkeley campus was rocked by the revelation that 19 campus employees had violated sexual misconduct policies since 2011, including the dean of the school of law, Sujit Choudhry.

The newspaper decided to take it a step further: in April, then-reporter Austin Weinstein submitted California Public Records Act requests for Title IX investigation documents from all ten UC institutions.

“We knew we could get them because they had released those type of documents before, so we expanded our request to the entire UC system,” Weinstein said.

That’s a big undertaking considering the sheer size of the system, one of the largest and most prestigious in the country. Perhaps unsurprisingly, it took a while for the university to compile and vet the documents.

“We kept receiving notice from the system-wide public record office saying that they would eventually release the documents to us but they kept deferring the date to which they would do that, so they would say ‘we intend to release these documents in November, then November came and they would say ‘we need until January,’” said managing editor Andrea Platten. “At a certain point, we’re just like, ‘we’re never going to get these.”

Eventually, the student journalists got the documents they asked for. On Feb. 28, UC released the records, totaling 113 sexual misconduct investigations of UC faculty and staff.

Different universities redacted varying amounts of material from the documents, ranging from fairly intact investigations to a nightmarish piece of paper that resembled a bar code:

However, Platten said she understood why the campuses might have taken so long to release the documents in bulk. She also said she was proud of how her staff, some of whom asked their professors for accommodations, tackled the project.

“We were able to pool our resources so efficiently because people were just so interested in covering this revelation of documents. Tons of people rose to the occasion, decided they wanted to help cover it. We just had tons of help and things just went by pretty quickly considering how many papers we had to go through,” Platten said.

The project is ongoing, including data reporting on how the UC campuses presented their investigations, details on how UC has changed its policies under President Janet Napolitano and a statement from the editorial board.

One outstanding piece of reporting to note is an interview with a University of California-Los Angeles professor emeritus who had violated the sexual misconduct policy, who blames faculty members “who are women, by the way” for his case. Platten credits the scoop to a Daily Cal reporter going directly to the source instead of through the university.

“Our reporter, Alex Yoon Hendricks just called him up … it just felt like forever that she was talking to him," Platten said. After that initial call and subsequent story, Gans began sending requests through his lawyer.

However, not all of the lessons learned in the project came easily. The Daily Cal erroneously attached photo of the wrong professor when the paper published the aforementioned interview. In a formal apology, editor-in-chief Ritchie Lee said “we will use this unfortunate accident as a teaching moment to ensure that our fact-checking processes prevent such grave errors in the future.”

After the documents came out, other newspapers in the UC system have been quick to contact the Daily Cal and own the story on their campuses. The Daily Bruin at UCLA contacted the Daily Cal and has begun localizing coverage of the document drop to their campus, for example.

Platten feels good about the Daily Cal’s place on point for this story.

“We’re the campus newspaper on the flagship UC campus, so we feel there’s a responsibility to report news like this when the implications are so wide reaching, it affects an entire system of which the Berkeley campus is a part of. And we feel that that is of public interest.”

Tagged: blog, Blogroll, California, open-records, recent-news, Title IX

California Supreme Court opens personal communications on public matters to open records requests



The California Supreme Court on Thursday ruled unanimously that employee writings conducted about public business on personal accounts are subject to the state Open Records Act, a ruling that can aid in reporting on public schools and colleges.

The case originated in 2009 when California resident Ted Smith requested 32 categories – including private emails and text messages – of open records from the city of San Jose concerning a redevelopment effort. The city turned over communications made on government telephones and emails but none of the employees’ personal accounts, saying private communications are not open records since the city does not maintain or control the documentation.

Smith then sued, arguing that communications about government business are public regardless of how they are created or stored. A trial court ordered that the records be disclosed, but the California Court of Appeal overturned the order.

Justice Carol Corrigan in the Supreme Court decision described the issue of private communications between public employees as “narrow”.

“Are writings concerning the conduct of public business beyond [the California Public Records Act’s] reach merely because they were sent or received using a nongovernmental account? Considering the statute’s language and the important policy interests it serves, the answer is no,” she wrote.

Several states have seen similar disputes in recent years over communications made on non-governmental accounts. In 2011, Illinois Attorney General Lisa Madigan ruled that communications about government business on personal devices were subject to open records law. The ruling was appealed to the state appellate court, which partially agreed with Madigan, agreeing that emails and texts on personal devices sent during public meetings were subject to freedom of information laws.

More recently, Kansas lawmakers in July changed the state open records law to include “any recorded information, regardless of location, which is made, maintained or kept by or is in the possession of any public agency.”

The change was prompted by reporting in The Wichita Eagle that revealed the state budget director used a private email to send advance copies of Gov. Sam Brownback’s proposed budget to lobbyists prior to its public release. Brownback was also found to have used a private e-mail server to communicate with staff members.

For student media, the California ruling is another win for transparency and open government. In years past, the SPLC has reported on various court rulings that clarify when public officials’ emails are and are not subject to open records laws.

The ruling could also provide precedent for obtaining records in university presidential searches that are not open to the public. SPLC has previously reported on the quest for student journalists to obtain records in closed presidential searches, even detailing attorneys telling search committee members to avoid written communications that could be subjected to open records laws.

While the California ruling is not universal, it does provide yet another instance of a court declaring that public officials cannot hide behind private accounts to subvert freedom of information laws–a win for journalists everywhere.

Tagged: blog, Blogroll, California, open-records, recent-news

Nursing student removed from program over Facebook posts seeks Supreme Court review



A case that began with a series of Facebook posts and reached a court ruling that challenged First Amendment protections for students on social media is now making its way to the Supreme Court.

On Feb. 23, attorney Robert Corn-Revere entered a petition to the Supreme Court on behalf of Craig Keefe to appeal the decision of the Eighth Circuit U.S. Court of Appeals. In October 2016, the court ruled against Keefe, 2-1, in his lawsuit claiming that, in his expulsion from Central Lakes College, he was denied due process under the college’s disciplinary procedures.

In December 2012, Keefe was expelled from Central Lakes College’s nursing program for Facebook posts he made on his public personal account. Two fellow students showed some of the posts – that included describing a classmate as a “stupid bitch” – to an instructor, and the college determined that by posting these comments, Keefe had violated student handbook policy regarding professional behavior.

In February 2013, a month after his appeal against his expulsion was denied, Keefe filed a lawsuit against the dean of the college, Beth Adams, along with other college administrators.

The U.S. District Court of Minnesota dismissed his case in August 2014, so Keefe, with the support of advocacy groups including the SPLC, took the case to the Eighth Circuit. The author of the majority opinion, Judge James Loken, wrote that the court accepted the college’s argument that it had the legal authority to hold students to the standards of their intended profession.

In the opinion, Loken also wrote that this decision didn’t mean that unprofessional speech was prohibited, but that the university has a right to impose “adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject."

Keefe’s petition challenges this notion, arguing that it misrepresents the student-school relationship, particularly where it involves public universities such as Central Lakes.

The petition separates the appeal into two issues: Whether a public community college has the authority to expel a student for posting comments on a personal Facebook account unrelated to the school’s curriculum, and whether that college may carry out such expulsions with “less rigorous due process procedures” in such cases.

In Keefe’s petition, his legal counsel writes that the case has identified four areas which now demand clarification about the limits of First Amendment application when professional standards are used to restrict non-curricular speech. The petition argues that under the Eighth Circuit ruling, public colleges and universities have been given undue ability to hold students to professional standards for speech that has no relation to the professional context.

“There is no suggestion that the Petitioner was unprofessional in his coursework or behavior in the clinical setting even if his Facebook etiquette left something to be desired. CLC violated the First Amendment when it expelled him for personal social media postings unconnected to any course requirement under conduct codes based on amorphous professional standards,” the petition states.

The petition also cites the Tinker v. Des Moines case, arguing that it remains unclear how the “Tinker test” applies to speech that was both originated and disseminated off-campus.

“In this case, the Eighth Circuit went in exactly the opposite direction, extending Tinker to college settings and interpreting static Facebook posts as being ‘directed to’ other students simply because they referred to them, and inflating oblique, disrespectful comments into ‘threats,’” the petition state.

The case is particularly pressing for student journalists, since the ruling cites the Supreme Court’s Hazelwood v. Kuhlmeier standard in concluding that colleges can penalize unprofessional speech created off-campus on personal time. In his majority opinion, Loken wrote that the “concept” of Hazelwood – that a school can regulate speech if it contravenes the school’s pedagogical concerns – “has broader relevance to student speech.”

This argument misapplies Hazelwood, which was not a disciplinary case, and which was concerned with a student spreading speech through a school conduit, risking conflating their views with the school’s own. These principles do not apply in Keefe’s situation, where there was no way to mistake his posts on his own Facebook account as representative of the school’s views, in a setting where (unlike in a K-12 newsroom setting) there are significant questions whether the institution has any authority at all.

The petition lists several complaints with the court’s use of Hazelwood, including that it “flies in the face of multiple circuit decisions that college students cannot be relegated to the First Amendment protections appropriate for younger children” and that it “only adds to the confusion by suggesting there is even more of an interest in applying Hazelwood to CLC’s professional degree program than to a high school newspaper.”

Corn-Revere cited the 2007 case of Morse v. Frederick, where the Supreme Court ruled that the First Amendment does not prevent educators from suppressing student speech that is viewed as promoting illegal drug use, but also said that additional First Amendment exceptions beyond promoting drug use would not be recognized. Judge Jane Kelly had cited the case in her dissenting opinion in the Eighth Court.

“This is certainly significant for student journalists,” Corn-Revere said. “Given the Morse v. Frederick case in 2007, it is important to ask the court to clarify if that applies.”

Corn-Revere explained that it is now up to the court to decide whether to direct the college’s legal counsel to file an opposition. He anticipates that the court will determine this during the current term.

Tagged: blog, Blogroll, discipline for social-media posts, Keefe v. Adams et al, off-campus social-media use, recent-news, Supreme Court, Supreme Court

Several state legislatures considering updates to open records laws



A mixture of positive and negative changes to state open records laws have slowly been making their way through state legislatures in the past few weeks.

In January, the SPLC reported on a bill in North Dakota that would exempt applicants for top positions at state universities from the state open records act. Since then, several states have filed legislation to change the operation of their respective open records laws.

Ranging from making violations of state open records law a misdemeanor offense, to allowing agencies the right to charge a maximum hourly search fee, here’s the latest on proposed changes in North Carolina, Colorado, Kansas, Indiana and Florida.

North Carolina

North Carolina legislators are considering a bill that would make violations of the state open meetings law and public records law a Class 3 misdemeanor, which can carry fines up to $200. Currently there are no penalties for agencies in the state that are found to have violated government transparency laws.

Senate Bill S77, sponsored by Sen. Bill Cook, R-Beaufort, is currently sitting in the Rules and Operations of the Senate Committee without a hearing date scheduled.

Colorado

Senate Bill 17-40, sponsored by Sen. John Kefalas, D-Fort Collins and Rep. Dan Pabon, D-Denver, would require government agencies in the state to make data more accessible to requesters by ensuring easier manipulation. In other words, if someone were to request a list of employee salaries, the agency would be expected to maintain that data in an Excel spreadsheet, which could be given to the requester in a searchable Public Domain File.

The bill would also eliminate a provision of the current open records law that allows public records custodians to charge fees for requesters to make supervised copies or inspections of records.

However, in a reversal from North Carolina’s line of thinking, the bill would eliminate any tangible punishment for agencies who knowingly violate the current law. Any person who knowingly violates the Colorado Open Records Act is currently guilty of a misdemeanor.

The bill was scheduled to be heard on Feb. 15 in the Senate State, Veterans and Military Affairs Committee, but the chairman delayed a hearing for a second time due to a need for further amendments with stakeholders.

Kansas

Kansas lawmakers are considering a bill that would drastically reduce the costs agencies can charge requesters for public records.

Senate Bill 86, sponsored by the Committee on Federal and State Affairs, would continue to allow agencies to charge $0.25 per page for hard copies of records, but would prohibit agencies from charging excessive search fees.

Under the proposed legislation, agencies could only charge for staff time required to produce records at the lowest hourly rate of a qualified staff member. Agencies can currently charge any fees they deem “reasonable” to requesters -- for instance, they can charge not just for the time it takes to search for documents but also the time a supervisor spends overseeing the search -- and the law does not include any fee waivers.

The Committee on Federal and State Affairs recommended on Feb. 15 that the bill be passed as amended. It is now up to the Speaker of the House to put the bill on the legislative docket for a full debate.

Indiana

House Bill 1523 passed the Indiana House of Representatives on Feb. 16 by a count of 62-25. Introduced by Rep. Kathy Richardson, R-Noblesville, the legislation would grant state agencies the ability to charge a maximum hourly fee of $20 for any records search that takes over two hours.

Agencies in the state are currently not allowed to charge requesters for time spent retrieving records. According to the Indianapolis Star, similar legislation passed both houses of the Indiana Legislature in 2015, but then-Governor Mike Pence vetoed the bill.

“The cost of public records should never be a barrier to the public’s right to know,” he said at the time.

The bill does prohibit agencies from charging a separate fee for providing records via electronic communication.

The bill was referred to the Indiana Senate on Feb. 17 for further consideration.

Florida

Representatives in Florida introduced legislation that would retrench on the state’s historic commitment to open searches for top university leaders.

Rep. Bob Rommel, R-Collier, introduced House Bill 351, which would exempt records from applicants for presidential searches at Florida universities from state open records laws.

According to Florida’s local NPR affiliate, WGCU, Rommel’s bill is not the first time such legislation has been introduced – both Democrat and Republican representatives have unsuccessfully introduced similar bills in recent legislative cycles.

The current round of legislation has been in the House Post-Secondary Education Committee since Feb. 6. The committee is scheduled to meet again Thursday, but the bill is not currently on the docket for discussion.

Tagged: blog, Blogroll, Colorado, Florida, Indiana, Kansas, legislation, North Carolina, open-records, recent-news

New Voices press freedom bills advance in Vermont, Indiana, Washington



Bills protecting student journalists against censorship took giant steps forward in Vermont, Indiana and Washington this week. 

Though the bills are all slightly different, their common purpose is to limit the grounds on which a public college or high school can censor the content of school-sponsored media, and to protect faculty advisers against retaliatory personnel actions for their students' journalistic work. The bills also insulate schools and colleges against liability for what their students publish. Such statutes are already on the books in 10 states, three of them newly enacted since 2015.

Senate Bill 18 by Sen. Jeanette White passed the Vermont Senate Wednesday without opposition, and was sent to the House Education Committee. The bill has been relatively uncontroversial, and student journalists took a leading role in testifying before the Senate Education Committee in support of the measure. Newspapers across the state, including the Caledonian Record, have urged lawmakers to enact the bill, which also picked up an endorsement from the national board of the Journalism Education Association.

In Indiana, the House Education Committee voted 13-0 Thursday for HB 1130 by Reps. Ed Clere and Ed DeLaney, which largely tracks the New Voices of North Dakota Act that inspired the nationwide New Voices reform movement. 

The vote followed supportive testimony from the Hoosier State Press Association, the state high-school and college press associations, and a string of college and high-school editors and advisers, including teacher Amy Sorrell, who recounted how a student's opinion column calling for greater tolerance for LGBT students led to her firing: "I lost my job defending my student. I printed that article 10 years ago. I would print it today."

Amendments were added in the Education Committee enabling K-12 schools to remove material from student media that is "gratuitously profane," and making clear that press freedom applies only at the middle- and high-school levels and not in elementary schools. With those changes, the bill passed the committee without objection and is headed to the House floor, although it faces continued opposition from the Indiana School Boards Association. 

Meanwhile in Washington, Senate Bill 5064 by Sen. Joe Fain cleared the Senate Early Learning & K-12 Education Committee Thursday, just ahead of a drop-dead deadline that could have killed it for the year.

Lobbyists for the Washington State School Directors Association sought to amend the bill to allow school districts to essentially opt themselves out of press-freedom protection by local policy, a change opposed by the Washington Journalism Education Association. Instead, the committee settled on a more modest set of amendments clarifying the limits of students' rights, including specifying that student broadcasters must abide by FCC content regulations. The amendments also respond to a concern that editorial endorsements by student media might place school districts in violation of a state prohibition on using taxpayer money to support political causes, stating that "political expression by students in school sponsored media may not be deemed the use of public funds for political purposes."

The bill has picked up numerous endorsements from the professional media, including the Seattle Times, whose editors wrote: "Now more than ever the nation needs a vigorous press and smart, civically engaged young citizens." It now heads to the Senate Rules Committee, which determines the schedule for Senate floor votes.

A comparable bill died in committee in Washington last session.

New Voices bills also are advancing in Arizona and Missouri, and pending in Michigan and New Jersey, with new filings in Minnesota and Nevada expected shortly. The measures have been boosted by endorsements from the American Society of News Editors, the Society of Professional Journalists and other civic and educational organizations around the country. 

To get involved in the New Voices movement, visit www.newvoicesus.com, with resources and contact information for each active state campaign.

Tagged: new voices, news, press freedom, recent-news

It’s not all doom and gloom: Supreme Court nominee Neil Gorsuch could be an ally to student journalists



President Donald Trump has made it clear that he doesn’t really like the news media. He’s called the reporter pen out at campaign rallies and said CNN White House correspondent Jim Acosta was “fake news” at a press conference. Senior adviser Steve Bannon has called the media the “opposition,” and Sean Spicer opened up his tenure with a barrage of falsehoods aimed at the White House press corps.

So, it’s hard to blame anyone who sees the existence of journalists under threat, especially ones already having a tough go of it in high schools and universities. Where can reporters-in-training find hope in what Washington Post columnist Margaret Sullivan called a “hellscape of lies and distorted reality?”

Neil Gorsuch, the president’s Supreme Court nominee, might be your friend in a high place.

While the 49-year-old Gorsuch doesn’t have the largest body of work to draw from, he has given opinions on content creators’ side multiple times in libel cases. A report from the Reporters Committee for Freedom of the Press characterized his judgeship as a consistent force for application of the First Amendment.

As a student at Columbia in New York, Gorsuch found himself a conservative in a deeply liberal urban campus. He remained active in student life on campus, running for student government, co-founding the The Federalist satirical newspaper and writing columns for the Columbia Daily Spectator.

The Spectator recently published a rundown of his experiences at Columbia, helpfully documented in the newspaper’s archives. One notable incident reported: Gorsuch threatened to sue a group of students who had put up a poster calling for a boycott of The Federalist for libel, saying the poster made an untrue allegation that The Fed was funded by The Heritage Foundation, and also that the poster’s creators hadn’t put their names on it, breaking university rules.

The judge’s most prominent experience with a student press law case comes in Mink v. Knox, a case of extreme student censorship at the University of Northern Colorado.

In 2003, Thomas Mink, then the producer of a satirical newsletter called The Howling Pig, introduced a KISS makeup-wearing character named “Junius Puke,” based on finance professor Junius Peake, to his publication.

Peake didn’t think it was very funny.

He called the police, who then searched Mink’s home and confiscated his computer in the course of an investigation into whether Mink had breached Colorado’s criminal libel statutes. That’s when Mink sued. The case made it all the way up to the 10th Circuit U.S. Court of Appeals, where Gorsuch has sat since his 2006 appointment.

Gorsuch concurred with the panel of judges that Mink’s parody didn’t constitute criminal libel. However, he noted a bit of caution, saying “reasonable minds can and do differ about the soundness of a rule that precludes private persons from recovering for reputational or emotional damage caused by parody about issues of private concern.” The case (eventually) ended with a $425k settlement between Mink and Susan Knox, the prosecutor he sued. In 2012, Colorado repealed criminal libel.

In another school-based case, Gorsuch took the extreme and unprecedented opinion that a 13-year-old student shouldn’t be arrested for burping in class.

A middle school student in Albuquerque had been making fake burps in P.E. class, as a middle schooler does. The student’s teacher decided to get on the radio and call in school police, who then arrested the teen for disrupting classroom proceedings.

The student’s parents sued the teacher, school and police officer, and the district court in New Mexico ruled the school was within its authority to arrest the student. In 2016, the case reached the 10th Circuit, based in Denver, and the appellate court confirmed the lower court’s decision.

Gorsuch was the lone dissenter.

“Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands – and in that I see the best of our profession and much to admire,” Gorsuch said in his written dissent.

The Republican Party retains a majority in the Senate, and Gorsuch has thus far proven popular with conservatives regardless of the man who nominated him. It’s safe to assume he will be confirmed to take the late Antonin Scalia’s place on the Supreme Court. There’s reason to be hopeful that he’ll stand up for student press freedoms if the issue comes up.

Tagged: 10th-Circuit-Court-of-Appeals, blog, Blogroll, Gorsuch, recent-news, Supreme Court, Supreme Court

SPLC joins AEJMC, two others, in releasing statement to the Trump administration



The boards of directors of four journalism education organizations today released a statement to President Donald J. Trump advocating for continued First Amendment freedoms and news literacy education.

The Association for Education in Journalism and Mass Communication, in conjunction with the Student Press Law Center, the National Scholastic Press Association/Associated Collegiate Press, and the Journalism Education Association, authored the two-page letter, which urges the newly-sworn-in president to uphold the values of the First Amendment.

Outlining principles of freedom of speech, the news media as a government “watchdog”, as well as the importance of verification in journalism, the letter implores the Trump administration to defend the freedoms “threatened by the rhetoric of [the] administration.”

“We urge you and your administration vigorously to protect and preserve the First Amendment rights of journalists and all citizens – rights that are basic to democracy and an informed society. We will also continue vigorously to defend these principles,” the letter read in part.

“Ever since the election, given the heated rhetoric directed at journalists, we’ve had an explosion of calls from folks around the country concerned about the boundaries of government authority over newsgathering. All journalists, most especially students, would benefit from a clear declaration by the White House that reaffirms support for a free and independent press as an indispensable part of a functioning democracy,” said Frank LoMonte, executive director of the SPLC.

“Although student journalists don’t deal routinely with the federal government, the president can set a tone for state and local agencies to follow, and a tone of hostility will only embolden those agencies to escalate their aggression toward journalists, with students too often on the receiving end.”

Tagged: ACP, AEJMC, blog, blogrool, JEA, NSPA, recent-news

Survey reveals support for First Amendment freedoms at 10-year high, with a few caveats



A new survey commissioned by the John S. and James L. Knight Foundation has found that support for First Amendment freedoms is at a 10-year high among high school students.

Despite continuing debate throughout the country on a multitude of free speech issues, the Future of the First Amendment Survey released Tuesday revealed that 91 percent of the 11,998 high school students questioned agreed that people should be able to openly express unpopular opinions – up from 83 percent since the survey was initially conducted in 2004.

“The report reveals how student perspectives are changing in a new media environment and

opens opportunities for educators, journalists and defenders of the First Amendment to

anticipate and address the challenges that may affect our most fundamental rights,”

Jennifer Preston, Knight Foundation vice president for journalism, said in a press release.

While 91 percent of students support the open expression of unpopular opinions, their thoughts became more muddled when the type of unpopular opinion changed. Only 45 percent of students agreed that people should be able to express unpopular opinions if they offended others, and 43 percent agreed that people should be able to express unpopular opinions on social media even if the speech could offend others.

Among the other notable findings in the survey include a correlation between the amount of news a student consumes and the chance they support First Amendment freedoms. Sixty-two percent of students who consumed news on mobile devices supported the right to express unpopular opinions, while only 52 percent of students who did not consume news on a mobile device supported the right to express unpopular opinions.

As New Voices press-freedom legislation continues to make its way through various state legislatures, the survey revealed a majority of high school teachers still do not support freedom of expression for students creating content about their schools – a somewhat concerning trend for the future autonomy of student journalism.

Sixty-one percent of teachers believe that students should not be allowed to report on controversial issues in student newspapers without the approval of school authorities, while 66 percent believe students should be punished for expressing their opinions about teachers and school administrators on social media.

Conversely, 63 percent of students felt they should be allowed to publish controversial stories without prior approval from school authorities.

Despite a few discrepancies, Kenneth Dautrich, who authored the study, said the results were a victory for First Amendment freedoms.

“This year’s study paints a very favorable picture of the future of the First Amendment. Today’s

high school students are more supportive of free expression rights than any we’ve surveyed in

the past,” he said in a press release. The most supportive students are also heavy news and digital media consumers, those that regularly see First Amendment freedoms play out as producers or consumers of information.”

Tagged: blog, Blogroll, First Amendment, First Amendment, first-amendment, Knight Foundation, recent-news, survey

It's no gag: Major-college athletes gain legally protected right to speak with media



Federal regulators have served notice on the nation's largest private universities that football players have legally protected rights comparable to other college employees, including the right to speak freely on social media and give interviews to journalists without needed institutional permission.

A Jan. 31 report from the National Labor Relations Board answers the question left hanging in an inconclusive September 2016 NLRB decision involving the Northwestern University football team: Are college athletes "employees" for purposes of federal labor law?

The answer from the NLRB's chief legal counsel: Yes, if they work and receive compensation comparable to that of traditional college employees. 

The opinion letter from General Counsel Richard F. Griffin Jr. extends only to the 17 private colleges playing football at the NCAA's highest level of competition, the Division I Football Bowl Subdivision. They include:

Baylor, Boston College, Brigham Young, Duke, Miami, Northwestern, Notre Dame, Rice, Southern Cal, SMU, Stanford, Syracuse, TCU, Tulane, Tulsa, Vanderbilt and Wake Forest.

For those 17 institutions, blanket restrictions on athletes' ability to communicate with the public, including through media interviews or on social networking sites, are now presumptively unlawful and subject to challenge under the National Labor Relations Act (NLRA). That's welcome news for journalists, who should now have greatly improved access to players at USC, Notre Dame and some other traditional football powers.

Griffin's interpretation is a narrow one, and offers no relief at the vast majority of other athletic programs. State institutions aren't subject to the NLRA, and Griffin didn't analyze whether the workload and compensation is comparable in sports beyond football or in colleges below Division 1 (though it's a fair supposition that his logic would extend to basketball at a school like Georgetown or Duke, where the season is even longer than football with greater travel demands). 

Griffin left that door open to further investigation, writing that "we cannot conclusively determine the employee status of other kinds of student athletes in cases that may arise in the future."

To understand how we got here, it's helpful first to understand that the NLRA exists largely to protect the rights of private-sector workers to "organize" to improve working conditions, and that the NLRB has broadly interpreted "organize" to include any type of complaint, including a public one, that appears to be a step toward collectively agitating for better pay or benefits. 

In a Sept. 22, 2016, opinion letter, the NLRB stated that the following workplace practices would violate the NLRA if applied to employees:

  • Prohibiting interviews with the news media without advance approval of a public-relations officer.
  • Direct employees to say only "positive" things to the news media and to avoid "negative" comments.
  • Telling employees that their speech on social media will be "regularly monitored" by supervisors.
  • Ordering employees to refrain from "inappropriate" or "embarrassing" posts on social media that injure the "image and reputation" of the employer.
  • Telling employees that all aspects of their work are confidential and must "stay within the family."

Now, it is the agency's position that all of these restrictions can't lawfully be enforced against football players at the 17 major private institutions. 

As Griffin wrote in last week's memo: "[S]cholarship football players at Northwestern and other Division I FBS private colleges and universities are employees under the NLRA because they perform services for their colleges and the NCAA, subject to their control, in return for compensation."

While the new NLRB guidance applies to a relative few of the 128 teams in the FBS, the pressure will now be on the NCAA to come up with consistent rules that extend comparable protections to athletes at public institutions. Since private colleges play most of their games against public colleges, it would be anomalous to have athletes governed by two greatly different sets of standards while playing each other (e.g., one team's players fully accessible for pregame media interviews and the other team's players off-limits), particularly in the bowl season where media interest is at its highest and where the NCAA takes over primary responsibility from the regional athletic conferences. 

(It's already deeply questionable whether state colleges can, constitutionally, gag their athletes without running afoul of the First Amendment, which at a minimum gives all students at public institutions the right to speak freely up to the point where their speech substantially disrupts school activities. Blanket restrictions on media interviews – or on the use of social media platforms – may already be unconstitutional at state institutions, just waiting for a sufficiently motivated player to bring a challenge.) 

Now, it's up to journalists at those 17 colleges to get hold of the handbooks and manuals that govern football players' interactions with the public. Each one of those institutions should be asked how it plans to adapt to the NLRB's interpretation and how it is letting players know that their tongues have been untied. 

Tagged: College athletics, news, NLRB, recent-news