The Student Press Law Center blog
At a time of unprecedented national alarm over the free-speech climate on college campuses, a new survey finds only 57 percent of Americans are convinced that students should be allowed to engage in speech that offends others, while 25 percent "strongly" believe otherwise.
Even fewer Americans -- 35 percent -- agree that high school students should have a protected right to speak when their speech offends others, while 43 percent "strongly" say they shouldn't.
That's the takeaway from the State of the First Amendment survey released Friday by the Newseum Institute to coincide with the upcoming Independence Day festivities. Each year, the Newseum surveys Americans about their knowledge of and belief in First Amendment principles -- and each year, the results provide a mixture of glass-half-full-or-half-empty insights.
The survey found an overall decline in awareness of what the First Amendment protects -- fully 39 percent of adults can't name any of the five constitutionally protected freedoms (speech, religious, press, assembly, petitioning the government) -- but, encouragingly, found that most Americans reject the notion that the First Amendment "goes too far" or that journalists have "too much" freedom.
The public's hesitance to protect offensive speech in colleges and schools sharply contrasted with opinions about speech in other contexts; only 10 percent of those surveyed said they support laws "protecting people from hearing things that offend them."
The Newseum survey comes amid widespread attention to the restrictive climate for speech on college campuses, where it has become commonplace for student activists to interrupt the speeches of guest lecturers or force their colleges to cancel the visits of controversial speakers, and where student media outlets are facing threats to their funding and obstructions to their access prompted at times by outrage from their peers over coverage decisions.
The entire survey is online here at the Newseum Institute's website.
Tagged: news, Newseum, recent-news, State of the First Amendment
A Florida District Court of Appeals on Monday denied a motion for rehearing submitted by the University of Central Florida in an open records case filed against the university.
In April, Florida’s 5th District Court of Appeal ruled UCF wrongly withheld names of student government officials accused or charged with misconduct. The appellate judges agreed the names of student government officials accused of misconduct are not protected under Family Educational Rights and Privacy Act as the university was claiming.
KnightNews.com, a student-run news organization, filed a lawsuit against UCF in 2013, claiming administrators incorrectly redacted public records and closed disciplinary hearings regarding hazing allegations against an on-campus fraternity.
The appellate judge ruled in April that the university properly withheld records that would have identified students accused of hazing, reasoning the records are classified as education records and are protected under FERPA. However, the Court deemed records relating to student government officials were not protected under the Act.
The university filed for rehearing at the end of April, claiming the court’s opinion creates an “implied waiver exemption” to FERPA and argues that Congress and the Secretary of Education have refused to allow the exemption.
Tagged: blog, Florida, open-records, recent-news, University of Central Florida
The City University of New York’s proposed freedom of expression policy has been stalled by the Board of Trustees after members of the community, professors and students raised censorship concerns.
Administrators have been through several drafts of the proposal, making constant changes as they heard concerns from student and faculty groups.
However, after the public meeting held on June 20, the board came to the conclusion the policy was not ready to be implemented and will hold it for further updates and discussion.
The policy was scheduled to be voted on at the June 27 meeting. However, the proposal was placed on the meeting agenda solely as an information item.
“It was clear from testimony at the public hearing on June 20, 2016, and other communications that there are questions and concerns about the proposed policy,” reads the explanation for why the proposal will not be voted on.
Many professors and students voiced concerns at the public hearing that the policy is overbroad, dangerous, unnecessary and that it could lead to justifications for censorship.
The board suggested no clear timeline for when the policy will be revisited, only that it will be reconsidered “at a later time.”
Tagged: blog, CUNY, freedom of speech, New York, recent-news
A copyright lawsuit filed in New York federal court last week underscores the risk online publications face when they use questionably sourced images. (If you've ever attributed a photo to "Twitter," you really, really need to read and understand this.)
Before I can explain the lawsuit, I should probably explain what happened.
In May, 19-year-old Columbia University sophomore Nayla Kidd went missing. She emerged safe and sound a few weeks later, after the police tracked her down in Brooklyn; feeling isolated and unhappy with her educational experience, she just "walked away" from her life and started over.
A professional photographer, John Curtis Rice, took Kidd's picture next to one of her missing persons photos on May 29th. He licensed the image to the New York Post's website, which ran the photo with a cutline credit.
The post then tweeted a link to the story with the photo.
Two days later, the image showed up on a bunch of radio station websites without the credit attached, and that's the basis of the lawsuit. The story is no longer live on the sites listed in the lawsuit, but if you look at the cached versions, they attribute the photo to "twitter.com/nypost."
So that's the underlying basis of the lawsuit. Photographer Rice is suing the parent company of the radio stations, Cox Media Group. CMG owns radio stations, newspapers, and television stations, and is the corporate sibling of cable provider Cox Communications.
One novel aspect to the lawsuit is that it alleges both a traditional copyright infringement claim and a "removal of rights management information" claim under Section 1202 (basically, taking the copyright notice off a protected work). The only U.S. case where this has been raised before (Murphy v. Millennium Radio Group LLC, 2015 U.S. Dist. LEXIS 10719 (D. N.J. Jan 30, 2015)) hasn't completely worked its way through the court system yet, and it's even stranger to raise it on these facts, where the image is sourced to a legitimate use where the attribution didn't even appear -- the tweet.
But what's not novel is this: Getting a photo from social media and attributing it to the social media feed is not an acceptable substitute for a copyright license (or a legitimate fair use).
The case is
Rice v. Cox Media Group, LLC, et al., Case No. 2:2016cv03353 (E.D.N.Y. filed June 21, 2016).
Questions about republishing images found online? Consult the SPLC's Guide to Fair Use.
Tagged: copyright infringement, Cox Media Group, fair use, news, recent-news, social media, Twitter
We are pleased to announce that that our very own executive director, Frank LoMonte, along with librarians Helen Adams and Nancy Kranich, was named a recipient of the 2016 Freedom to Read Foundation (FTRF) Roll of Honor Award.
FTRF is a non-profit legal organization, affiliated with the American Library Association, which fights to defend the First Amendment. The foundation was incorporated in 1969 and supports the right of libraries to collect information for public access.
The Roll of Honor was created to recognize individuals who have contributed to the FTRF through devotion to the foundation’s principles and/or extensive financial aid.
J. Douglas Archer, Honor Roll Committee Chair, said he was very pleased and honored to announce the three co-awardees.
“In his or her own distinctive way, each has been a life-long, stellar defender of free expression and the right to read, view, listen to or otherwise access whatever one chooses,” Archer said.
LoMonte has been the executive director of SPLC since 2008. SPLC provides free legal information and resources to student journalists and journalism teachers covering numerous topics in media law, censorship and free speech. The center has educated high school and college journalists about their First Amendment rights, and the importance of battling censorship, since 1974.
Since joining SPLC, LoMonte has created multiple campaigns to draw awareness to the organization's core concerns of government transparency and campus free speech, such as the Sack Secrecy campaign about closed-door college searches, the Active Voice initiative highlighting the impact of school censorship on young women and the New Voices campaign to build grassroots support for laws protecting student press rights.
“The ALA's vote of confidence in the work of the SPLC means so much at a critical time when our New Voices campaign is making such progress toward eradicating image-based censorship of journalism,” LoMonte said.
LoMonte says he is proud to be a part of a long list of people who fought for the same interests.
“I'm so amazed and fulfilled to be joining a list that includes Judy Platt, Chris Finan and so many other lifelong champions of free expression whose work I admire so much,” LoMonte said.
Before joining the center, LoMonte practiced law with Atlanta-based Sutherland Asbill & Brennan LLP and clerked for federal judges on the 11th Circuit U.S. Court of Appeals and the Northern District of Georgia. Before attending law school at the University of Georgia School of Law, where he has taught as an adjunct professor, he was an investigative journalist and political columnist for newspapers in Florida and Georgia.
Tagged: American Library Association, blog, freedom-to-read, recent-news
The 90-year-old student paper, The Siskiyou, can continue to provide Southern Oregon University students news for at least another year.
The student staff was able to secure funding in June from the Student Fees Committee under their new status as a student organization.
After the university eliminated the class that produced the publication due to low-enrollment in April, some expected the newspaper would likely have to end. However, the editor-in-chief and the rest of class, with the instructor’s support, worked to find ways to save the paper.
They saw two options: raise the funds needed to apply for an endowment from the SOU Foundation using online crowdfunding or establish a student group to produce the paper and seek funding from the Student Fees Committee. The students opted to try both routes in the hopes one would end in their favor. The GoFundMe campaign has only raised $1,000 of the $50,000 they needed to apply for the endowment.
Eli Stillman, the former editor-in-chief of the paper who has now graduated, presented to the Student Fees Committee on the importance of having a student paper on campus. The committee then unanimously approved $10,000 of funding, allowing the paper to pay an editor and writers for a year, according to an article by a local paper, Ashland Daily Tidings.
The committee that granted the paper funding is the same committee that defunded it in 2014, the original reason the Siskiyou was produced by a class. The committee defunded the paper after it failed to produce advertising revenue. The funding the paper received in June will only sustain it for one year, so they will have to reapply for funding, leaving the paper’s future undetermined.
Students will have to show their support for the paper to ensure its success, Stillman wrote in an editorial after he helped secure the funding.
“We can’t be a paper that fights each year for survival. We need students to care, and to care so much that they get involved and help build The Siskiyou into something that doesn’t just limp along but grows and thrives,” Stillman wrote.
However, the paper now has higher readership, according to a previous article by SPLC, and Julie Akins, the instructor for the class that previously produced the paper, is optimistic for its success. In February 2011, 1,507 people read the online newspaper, but this February, the number increased to 14,970.
Tagged: blog, recent-news, Siskiyou, southern oregon university, student newspaper
Note from the director: We are overjoyed to welcome Roxann Elliott to the SPLC family for a year-long fellowship as our "content creator in chief," a position made possible by a grant from a longtime SPLC benefactor, the McCormick Foundation. From among many standout applicants, Roxann distinguished herself by a demonstrated passion for advancing young people's First Amendment rights, which informs every frame of her masterful documentary film, "Taking the Lede." She's the storyteller, so we'll let her tell you the rest (and you can reach her with news tips by email).
Two years ago, I didn’t know the Student Press Law Center existed. I didn’t know there was a need.
Growing up in a small, rural town in Montana (perhaps the most redundant statement ever made), my high school didn’t have a newspaper. The yearbook highlighted the goings-on of our scant 200-some-odd students without incident. Mostly. One year, they misspelled my name three times in three different ways.
I grew up, moved away, and moved on. I attended the University of Alaska Anchorage for aviation before switching majors and graduating with my bachelor’s in criminal justice. Because reasons.
I worked in a law office for seven years before deciding law wasn’t the career for me and taking the leap to pursue what I wanted all along. I moved to Colorado and entered the journalism Master’s program at the University of Colorado Boulder.
I could go on about how that program changed my life, but the salient point for this blog is how it introduced me to the SPLC. During my second semester, I worked on a documentary, Taking the Lede, which highlighted the extraordinary work done by student journalists under Colorado’s Student Free Expression Law.
I learned about Tinker. I learned about Hazelwood. I spent the semester interviewing students who broke news about curriculum changes in their school, investigated abuse of military recruitment practices, and fought administrative and community to pressure to change, censor, or remove their reporting.
I also had the privilege to travel to D.C. to interview Frank and Adam and hear countless tales of student censorship across the country. I got a taste for the scope of the problem and the patterns of control and restriction employed by administrators and school boards.
I bristled at the blatant abuse of authority calculated to turn student news outlets into school district PR firms.
When the semester ended, I spent my summer and fall helping promote the documentary at high school journalism conferences and university events. When CU celebrated the start of their new College of Media, Commutation and Information, in which the J-school now falls, I stewed in the irony of holding the kickoff party in the Byron R. White Club box at Folsom Field.
He may have been an athletic hero at CU, but he also authored the majority opinion in Hazelwood v. Kuhlmeier. A decision Colorado saw fit to override with their own legislation.
At my graduation, I painted #CUREHAZELWOOD on my cap.
Working on that documentary, I understood that free speech and freedom of the press is more than a lofty ideal. I saw what tangible, impactful change good reporting can bring. I saw how crucial it is to train young journalists well and provide them the freedom and responsibility to report fully on issues that impact their schools and communities.
In a climate where trust in the news media is at a historic low and “newspaper reporter” ranks as the worst job in the country, quality journalism education is critical. We can’t expect to produce great journalists, and enjoy the caliber of news coverage we want, without allowing journalism students to make mistakes and handle the consequences like young professionals.
Journalism plays a critical role in society, and student journalism provides an invaluable education in civic life and engagement. I applied to the SPLC because, cynic though I may sometimes be, I want to make a lasting difference. I recognize how a free and effective press can help overcome our individual apathy and collective inertia to make real changes.
That starts with quality, hands-on journalism education and real experience.
Publications Fellow Roxann Elliott is a recent graduate of the University of Colorado Boulder's journalism Master's program. You can reach her by email or at (202) 833-4614.
Tagged: blog, Cure-Hazelwood, hazelwood, recent-news, Student Press
In the grips of a nationwide panic that followed lurid media coverage of teen suicides linked to online bullying, legislators around the country stampeded to outlaw -- and at times even criminalize -- a vast range of "annoying" or "unwelcome" online speech.
North Carolina was in the lead of this lock-'em-up panic attack, and now its anti-bullying statute has been struck down as unconstitutionally overbroad.
In a unanimous opinion issued Friday, the North Carolina Supreme Court invalidated the state's 2009 cyberbullying statute, which made it a misdemeanor punishable by up to 120 days in jail to publish any "personal, private or sexual information" about a minor online with the intent to "intimidate or torment" the minor or the minor's family.
The case arose from the 2012 arrest and prosecution of a high school sophomore from Alamance County, who admitted to posting insults on a Facebook post about a classmate, including crude remarks speculating about the classmate's sexual habits.
The student, Robert Bishop, was convicted of violating the statute and sentenced to four years' probation. His attorneys challenged the conviction on the grounds that the statute violated the First Amendment.
Friday's opinion by Justice Robin E. Hudson reversed a 2015 ruling by the North Carolina Court of Appeals, which characterized the statute as a regulation only on "conduct" (that is, the act of posting) rather than on the content of speech.
The justices had no difficulty seeing through the Court of Appeals' strained attempt to salvage the statute:
Posting information on the Internet—whatever the subject matter—can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby—activities long protected by the First Amendment. ... Such communication does not lose protection merely because it involves the “act” of posting information online, for much speech requires an “act” of some variety— whether putting ink to paper or paint to canvas, or hoisting a picket sign, or donning a message-bearing jacket.
Although the justices deemed the state's interest in protecting the safety of children to be a "compelling" one, the law flunked First Amendment scrutiny because it was not the "least restrictive means" of accomplishing that objective.
The statute's fatal flaw was its use of undefined terms ("intimidate," "torment," "personal," "private") that invited prosecution of teasing, jokes and gossip, even without proof that the targeted person was harmed by -- or even aware of -- the speech.
The protection of minors’ mental well-being may be a compelling governmental interest, but it is hardly clear that teenagers require protection via the criminal law from online annoyance.
The North Carolina opinion is the second in two years striking down an anti-bullying statute for criminalizing speech that is merely aggravating or irritating. In 2014, New York's highest court reached the same conclusion in granting the appeal of a 17-year-old prosecuted for posting sexual gossip about his schoolmates on Facebook.
Although the Bishop case challenged only North Carolina's 2009 bullying law, the ruling points to the certain unconstitutionality of a companion statute, enacted in 2012, making it a crime to post embarrassing information about school employees online. If the goal of protecting vulnerable children against online humiliation is not sufficiently compelling to justify wholesale prohibitions on speech, then protecting the reputations of government employees plainly cannot be.
Justice Hudson's assessment of the student-bullying statute applies even more forcefully to the state's attempt to protect school officials against criticism:
Civility, whose definition is constantly changing, is a laudable goal but one not readily attained or enforced through criminal laws.
Tagged: cyberbullying, news, North Carolina Supreme Court, recent-news, social media
Student media outlets stripped of financial support because of unflattering content have some additional legal ammunition, thanks to a federal appeals court decision.
The Ninth Circuit U.S. Court of Appeals has overturned a district court's ruling dismissing the claims of an Arizona student organization that was penalized with the loss of an automatic $1-per-student fee subsidy after opposing the governor's position on a statewide referendum.
The court's ruling reinstates the First Amendment claims brought on behalf of Arizona Students Association, which advocates for the interests of students at the state's three public universities.
In a 3-0 ruling issued Wednesday, the California-based court held that the ASA's complaint adequately set forth the essential ingredients of a First Amendment claim by alleging that the state Board of Regents adversely altered the association's funding formula as punishment for political speech -- specifically, campaigning for an education-funding ballot initiative that the governor opposed.
A U.S. district court dismissed ASA's claims in 2013, finding that the loss of student activity fees wasn't actionable under the First Amendment. Essentially, Judge John D. Sedwick accepted the state's argument that allocating student fees is a purely discretionary, year-to-year decision and that the receipt of fees in a prior year in no way creates an entitlement or expectation of continued funding.
Even worse, the district judge declined even to consider evidence of retaliatory bias expressed by Regents members: "The allegedly illicit motivation of some members of [the board] is not relevant to the First Amendment analysis in the circumstances here."
Had that ruling held up, student media organizations facing the removal of university financial support would have had an essentially impossible burden to challenge even the most blatant cause-and-effect cases of retaliation.
But it didn't. In an opinion by Judge Richard A. Paez, the court overruled Sedwick and sent the case back with instructions to allow the student association to re-plead its First Amendment claims:
A state, division of the state, or state official may not retaliate against a person by depriving him of a valuable government benefit that that person previously enjoyed, conditioning receipt of a government benefit on a promise to limit speech, or refusing to grant a benefit on the basis of speech. Those limitations apply even if the aggrieved party has no independent or affirmative right to that government benefit.
That's an enormously important point that, while logical, hasn't always been obvious to college lawyers or judges. There's a tendency to argue that, when something is a "privilege" rather than an "entitlement," taking it away cannot be actionable under the First Amendment, because there's "no right to receive student activity fees."
But, as Judge Paez understood and explained, that's the wrong way to think about a First Amendment retaliation claim. The ASA wasn't claiming a "right to receive money" -- they were claiming a right to be free from punishment for speech.
This principle would be well-understood outside of the campus setting. Everyone knows that the governor cannot send the highway patrol door-to-door to confiscate the driver licenses of people who give speeches opposing the governor just because "driving is a privilege, not a right." Government can't take rights or privileges away as a means of punishing or deterring constitutionally protected speech -- and advocating for the passage of a referendum is at the pinnacle of protected political speech.
The Ninth Circuit stated it unequivocally: "the collection and remittance of funds is a valuable government benefit, and a change in policy undertaken for retaliatory purposes that results in the deprivation of those funds implicates the First Amendment."
The court's ruling is resonating at least as far away as Kansas, where right now the University Daily Kansan newspaper is (just as the ASA was) defending against a motion to dismiss its First Amendment lawsuit challenging the retaliatory withdrawal of student activity fees. And just as in the Arizona Students Assocation case, the university is defending itself by insisting that a vote to allocate or not allocate fees is a matter of legislative discretion, its motivation beyond the authority of courts to review.
That didn't carry the day in Arizona, and it's unlikely to fly in other jurisdictions, either.
Tagged: Arizona Students' Association, First
Amendment, First Amendment, first-amendment, news, Ninth Circuit U.S. Court of Appeals, recent-news
People don’t attend university board meetings expecting a Six Flags thrill ride. But in Michigan, journalists began noticing that the meetings weren’t just dull. They seemed… staged. Scripted, even.
It turns out that there’s an unwritten but powerfully honored tradition for the governing boards of Michigan universities to hold secret “pre-meeting meetings” at which all the real decisions get made. What the public gets to see is every bit as suspenseful and spontaneous as professional wrestling, only without the flying dropkicks.
Nothing of substance gets discussed. Every vote is unanimous.
The Detroit newspapers finally had enough, and took Michigan’s famously secretive university system to court. But last month, the Michigan Court of Appeals ruled that state universities have essentially limitless discretion to decide which meetings qualify as "formal" meetings that constitutionally must be open to the public.
The court’s April 26 opinion relies entirely on a prior Michigan Supreme Court ruling in the context of university presidential searches.
In that case, Federated Publications, Inc. v. Board and Trustees of Michigan State University, the court held that Michigan’s (mercifully) unique constitutional structure gives the university system near-total autonomy from the legislature, so that the Open Meetings Act is more of a suggestion than a requirement.
The new case, Detroit Free Press v. University of Michigan Regents, extends the court’s 1999 ruling to all meetings of university regents, not just those involving presidential searches:
The Constitution permits defendant to hold informal meetings in private; defendant is only required to hold its formal meetings in public. We are simply not empowered to evaluate whether that is good policy or, for that matter, take any action on the basis of whether we might believe it to be.
Attorneys for the Detroit newspapers are petitioning Michigan’s Supreme Court to review the decision. It should – but regardless of the outcome of the case, Michigan needs to reexamine the privileged constitutional status afforded to universities, which has made them (even by university standards, which is saying something) assertively hostile to public accountability. Legislators have made several failed tries to reform the constitutional infirmity that allows Michigan universities to run amok, most recently in 2015, but lobbyists for the universities have, unsurprisingly, managed to bottle up each attempt.
Tagged: Detroit Free Press, Michigan Court of Appeals, Michigan Open Meetings Act, Michigan State University, open-meetings, recent-news