The Student Press Law Center blog

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

2015 World Press Freedom Index shows dwindling press freedom worldwide

Reporters Without Borders released its 2015 World Press Freedom Index on Wednesday, revealing a worldwide decline in freedom for journalists. The United States, which has consistently slipped in the rankings since 2009, came in at 49 of 180 countries.

The United States fell three places in the index after a tumultuous year for American journalists, according to the nonprofit organization, which works to promote freedom of information and freedom of the press.

Delphine Halgand, the director for Reporters Without Borders USA, lead a panel discussion on Wednesday at the National Press Club, discussing the trends leading to dwindling press freedom and noting countries who had dramatically risen or fallen on the index this year.

The need for a federal shield law to protect journalists from being compelled to name confidential sources became a national conversation as the seven-year legal battle between the Department of Justice and The New York Times investigative reporter James Risen came to a head. Risen was issued a subpoena to testify against former CIA agent Jeffrey Sterling, who was accused of leaking to Risen information that detailed a botched CIA mission. Although the Supreme Court would not hear Risen’s case, Attorney General Eric Holder eventually conceded and did not force Risen to testify.

These issues are not unique from the experiences of student journalists, who often clash with school and public officials during the course of their reporting.

In November 2014, police arrested more than a dozen journalists during demonstrations protesting the fatal shooting of black teenager Michael Brown by a white police officer in Ferguson, Mo., including an American University student and a Tufts University student.

In New York City, a City University of New York student journalist was arrested in December 2014 at a protest over a grand jury’s decision not to indict police officer Daniel Pantaleo in the choking death of Eric Garner.

In March 2014, a photojournalism student at Temple University filed a lawsuit after he was arrested for photographing a traffic stop as part of a class assignment.

Student journalists also struggle with transparency issues when it comes to obtaining records from their schools.

School administrators often overreach when claiming protection from the federal student privacy law, creating barriers for journalists seeking information about university presidential searches and even campus parking tickets.

In some states, colleges have pushed for legislation which would make documents even harder for journalists to obtain, mirroring the national drop in press freedom. In January, the New Mexico Council of University Presidents proposed legislation which would add exemptions to the state’s public records law. Suggested exemptions include certain campus law enforcement records, and documents detailing the hiring of public employees.

Reporters Without Borders uses seven factors to calculate each country’s overall score, which is then used to rank the country, according to the World Press Freedom Index methodology. Countries are assessed based on pluralism, media independence, environment and self-censorship, legislative framework, transparency, infrastructure and abuses.

The United States scored 24.41, placing on the lower end of the “satisfactory” category.

Tagged: American University, City University of New York, James Risen, New Mexico Council of University Presidents, press freedom, recent-news, Reporters Without Borders, Tufts University

Jack White responds to The Oklahoma Daily's public records request, revealing the performer's pay, demands for guacamole

The Secret’s out: Eight-time Grammy winner Jack White demands his guacamole chunky and he hates fluorescent lighting.

These are just a few of the revelations reporters at The Oklahoma Daily learned about the musician through a public records request with the University of Oklahoma. The request showed university officials agreed to pay for hotel accommodations, ground transportation from the airport and “artist hospitality as mutually agreed upon.”

But arguably the most important detail was his pay. His concert on the University of Oklahoma campus on Monday cost the institution $80,000.

Whether it was because the newspaper leaked the details about his pay or his “FRESH HOME-MADE GUACAMOLE” recipe (“Mix all ingredients in a large bowl, careful not to mush the avocados too much. We want it chunky.”), White isn’t happy. Now, the rocker may never return to the University of Oklahoma.

During the sold-out performance, White blasted the student newspaper, telling the audience that “just because you can type it on a computer doesn’t make it right.”

“We can’t confirm this, because we’re making a paper right now, but we heard that Jack White called out The Oklahoma Daily at his Feb. 2 concert at McCasland Field House,” the student newspaper reported on its website during the show.

According to a statement on White's website, the newspaper staff's reporting was "unfortunate, unprofessional and very unwelcoming."

On Thursday, the student newspaper reported the William Morris Endeavor Entertainment talent company blacklisted the university because of the stories. The company, which has represented performers 2 Chainz, Selena Gomez and Kid Cudi, among others, said it wouldn’t book future shows with the university until “this policy is modified not to disseminate private information.”

That policy, by the way, is the state’s public records law, which requires public entities to be transparent about how they handle public money.

Tagged: Jack White, news, Oklahoma, recent-news, The Oklahoma Daily, University of Oklahoma

Former Idaho State U. employee, alumni charged $1,235 for public records about university president’s home renovations

IDAHO — A family was charged $1,235 when they requested information about the upkeep and renovation costs of the Idaho State University president’s house. But after a three-week online fundraising campaign, the family raised enough money to cover the bill.

Eric D’Amico, an ISU alumnus, Rhonda D’Amico, a former ISU employee and alumna, and their son Sam D’Amico, a current ISU student, surpassed their fundraising goal on Tuesday and received $1,335, with much of the money coming from ISU alumni and staff.

The D’Amicos had requested a detailed breakdown on the $31,000 annual maintenance costs and the estimated $750,000 for improvements the university told the State Board of Education it would need in order the keep the Servel House as a residence for the university’s president, according to the Idaho State Journal.

In Idaho, the state’s public records law allows agencies to charge requestors a fee to cover the labor and copying costs needed to fulfill a request. The law allows agencies to charge the per-hour pay rate of their lowest-paid administrative staff employee to process requests.

Under a 2011 amendment to the state’s open records law, according to the Idaho Press Club, public agencies must provide for free the first two hours of labor and the first 100 pages of a records request. It also made clear public agencies are not required to charge a fee for records and may waive any of the costs associated with processing a request.

However, public agencies are not required to create new records to fulfill a request. The requested documents dated back 10 years, the State Journal reported, and university officials would have to compile new records about the house.

According to the Gofundme page, the university told the D’Amicos they would begin to locate the records once the family paid the bill. The family said they understood why they were being charged but thought the records would have been readily available because they should have been included in a proposal to the Board of Education to buy the president a new house.

The proposal was later withdrawn.

“We believe we are, in effect, being asked to fund that research and review,” the family wrote on their fundraising page.

Tagged: Idaho, Idaho State Journal, Idaho State University, public records

2 newspapers appeal court decision allowing Louisiana State U. to withhold names of some presidential search applicants

LOUISIANA — Attorneys for two Louisiana newspapers have appealed to the state Supreme Court a lower court’s decision that said the state’s largest public university could withhold the names of most applicants during presidential searches.

Attorneys for The Advocate and The Times-Picayune said in a letter to the Louisiana Supreme Court Thursday the appellate court was mistaken in its Dec. 30 decision that said Louisiana State University officials were required to release only the names of the four finalists for university president, according to The Advocate. The four finalists included F. King Alexander, who ultimately accepted the job.

The attorneys argued the names of all 35 semifinalists are a matter of public record. According to The Advocate, the attorneys said the appellate court’s ruling “frustrated” the purpose of Louisiana’s open records law, which is to ensure all information of importance to the public is open for inspection. They argued LSU violated the state’s open records or open meetings laws by conducting the search in private.

The appellate court’s decision rested on who is considered an applicant in a presidential search. The court ruled only those who expressed desire in the position were considered applicants.

In 2013, District Court Judge Janice Clark ruled LSU would have to release the names of all presidential semifinalists and pay a $500-a-day fine for every day the university didn’t disclose the information requested by the papers.

The newspapers are only urging the Supreme Court to compel the university to release the names of the 35 semifinalists, according to The Advocate. They are not asking for LSU to pay the contempt fines set by the district court.

Tagged: F. King Alexander, Louisiana, Louisiana State University, Louisiana Supreme Court, news, presidential search, recent-news, The Advocate, The Times-Picayune

Protect students' right to display the American flag despite "hecklers," free-speech icons urge Supreme Court

Two generations after the Supreme Court recognized students’ right of free expression in the Tinker case, today’s Court is being asked to reaffirm that the Tinker ruling really means what it says – by the Tinker family itself.

Brother-and-sister plaintiffs John and Mary Beth Tinker filed a friend-of-the-court brief urging the Court to take up the case of  Dariano v. Morgan Hill Unified School District, in which students lost their First Amendment challenge to a school ban on American flag apparel during a Latino heritage event.

In a February 2014 ruling, three judges on the Ninth Circuit U.S. Court of Appeals found no First Amendment violation in a California school’s decision to order students to remove American flag apparel during a Cinco de Mayo celebration in 2010. The school justified the ban by pointing to a near-altercation at the same event a year earlier, when a Latino student felt white students were goading and taunting him by waving an American flag and chanting “U-S-A!”

Applying the 1969 Tinker case, which permits schools to restrict speech if it portends a “material and substantial” disruption on campus, the Ninth Circuit decided that the school acted lawfully. The history of racial tension, and the prospect that tensions might escalate in reaction to students’ American flag shirts “made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real.”

But two people who know the Tinker case better than anyone – the Tinkers themselves – say the Ninth Circuit got it wrong.

In their amicus brief, the Tinkers say schools shouldn’t be allowed to ban provocative speech just because people who disagree might try to silence the speaker by lashing out – what the Supreme Court has termed a “heckler’s veto.”

“This case is an ideal vehicle to clarify the holding of Tinker, to reaffirm the vitality of the ‘heckler’s veto’ doctrine, and to prevent students (both the potentially violent and the peaceful) from learning a message that is the very antithesis of the First Amendment: that speech can be effectively suppressed by threat of violence,” says the brief, which likens the Morgan Hill students’ flag apparel to the Tinkers’ own Vietnam war protest armbands, which also provoked harsh words from classmates yet were deemed constitutionally protected.

The brief was authored by a “dream team” of First Amendment litigators including Robert Corn-Revere of Davis Wright Tremaine LLP and Eugene Volokh of the UCLA School of Law.

The Court has hesitated to accept student-speech cases, rejecting several petitions in 2013 that asked for clarification of schools’ punitive authority over what students say on off-campus social media. Most recently, the Court  refused to consider a federal appeals court’s decision protecting the right to wear cancer-awareness wristbands bearing a word – “boobies” – that a Pennsylvania school tried to forbid as “lewd.”

But the Dariano case presents unusually tempting facts. It involves exactly the kind of speech – the American flag – that the Court’s Republican-appointed majority would be most inclined to regard as worthy of constitutional protection.

And there was substantial opposition to the Dariano outcome within the Ninth Circuit itself. When the court refused to accept the February 14 opinion for reconsideration by the full (“en banc”) lineup of Ninth Circuit judges, Judge Diarmuid O’Scannlian issued a resounding dissent joined by two colleagues.

Rebuking the court for refusing to rehear the case, O’Scannlian wrote that the Dariano ruling “permits the will of the mob to run our schools.” The entire dissenting opinion is well worth reading for its forceful defense of freedom of expression in schools, even when the expression is challenging and suppressing it would make life easier for school officials. But one passage in particular is the judicial equivalent of a mic-drop:

In this case, the disfavored speech was the display of an American flag. But let no one be fooled: by interpreting Tinker to permit the heckler's veto, the panel opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students. The next case might be a student wearing a shirt bearing the image of Che Guevara, or Martin Luther King, Jr., or Pope Francis. It might be a student wearing a President Obama "Hope" shirt, or a shirt exclaiming "Stand with Rand!" It might be a shirt proclaiming the shahada, or a shirt announcing "Christ is risen!" It might be any viewpoint imaginable, but whatever it is, it will be vulnerable to the rule of the mob. The demands of bullies will become school policy. That is not the law.

Tagged: dariano v. morgan hill, First Amendment, Mary Beth Tinker, recent-news, tinker v. des moines

New Ill. law would not require school districts to monitor students' social media, press association director says

ILLINOIS — A letter from the Triad School District sent a community into a frenzy last week when it notified parents of an Illinois law requiring students to hand over their social media passwords to school administrators.

Multiple news outlets and blogs jumped on the story, including St. Louis television station Fox2Now and HLN, reporting on parents’ concern over their children’s privacy.

However, these outlets cited a 2014 law and misinterpreted the year-old law and a recent amendment to the Illinois school code, said Josh Sharp, the director of government affairs for the Illinois Press Association.

“Essentially, there is no requirement in the law that was passed earlier or the new law that anybody has to hand over a password,” Sharp said. “The law requires a school district to ask that they inform a parent or guardian if they’re requesting a password. There’s no penalty for saying no.”

Last year’s law required school districts to notify parents if they ask for a social media password to investigate cyberbullying. This year, lawmakers amended the school code to include cyberbullying in the language.

Rep. Laura Fine, who proposed the bill to amend the school code, said media outlets misinterpreted the law’s intent.

“There’s nowhere in the legislation that it says everybody has to give over their social network password,” Fine said. “Your password isn’t even mentioned in the legislation.”

Sharp said he believes Triad School District misinterpreted the law as well. He said if a parent or student didn’t give school administrators access to their social media accounts, they would not violate the law.

The amendment to the school code requires school boards to establish policies about investigating cyberbullying claims “but in terms of getting someone’s password, the law only requires school districts to inform parents or guardians that they are inquiring about a password,” Sharp said.

Statutes in 12 states protect students against demands for access to their social media accounts, and in some cases email accounts and other forms of electronic communication. However, many of these laws protect only college students and leave high school students vulnerable to violations of privacy by school officials.

Policies allowing school officials to search students’ social media accounts are not uncommon.

In 2012, the American Civil Liberties Union filed suit against a Minnesota school after administrators searched a student’s Facebook account because a parent complained the student had talked about sex with her son on the social-media platform. A settlement was reached and the school agreed to change its social media policy.

In October 2014, the ACLU of Tennessee and the Electronic Frontier Foundation called on the Williamson County School District to change its technology and internet policy, which allows administrators to examine electronic devices students bring from home and monitor communications or data transmitted on the district’s network. According to the letter, the policy violates students’ right to free speech and protection against “suspicionless searches.”

Tagged: cyberbullying, Fox2Now, HLN, Illinois, Illinois Press Association, news, recent-news, social media, Triad School District