The Student Press Law Center blog

First Amendment ruling focuses the lens on photojournalists' rights -- again

Photojournalists have been on a hot winning streak before the federal courts lately, with two favorable rulings reinforcing the right to record police activity in public spaces. So there was a ripple of discontent when a regional appeals court in St. Louis handed down a constitutional clunker in the case of a citizen activist suing the City of Columbia, Missouri, for interfering with his photography. 

But legally, there is less to the case of Matthew Stephen Akins than initially feared, and the ruling does no harm to the unbroken consensus that journalists may freely photograph or videotape law enforcement officers conducting official business.

On July 25, the Eighth Circuit U.S. Court of Appeals summarily upheld, without discussion, an August 2016 ruling from the Western District of Missouri dismissing Akins' First Amendment claims.

Akins sued the City of Columbia, its police department and individual law enforcement officials in May 2015 for what he alleged was a pattern of retaliatory arrests, harassment and confiscation of property motivated by his police watchdog activism. U.S. District Judge Nanette K. Laughrey threw out his constitutional claims, ruling in part that a citizen "has no constitutional right to videotape any public proceedings he wishes to." 

The appeals court did not discuss the substance of the lower-court ruling, but simply found no legal basis to reverse it. 

The Akins ruling does nothing to disturb, or contradict, the unbroken string of federal appeals-court rulings vindicating the constitutional right of anyone -- citizens as well as journalists -- to capture video, images and audio of law enforcement officers when they conduct official business in places visible to the public.

Most recently, federal appeals courts in Philadelphia (Fields v. City of Philadelphia) and in New Orleans (Turner v. Driver) upheld the right to bring constitutional claims against police agencies that interfere with audio or video recording of their officers. That makes four out of 12 regional appellate courts to affirm that recording police activity is constitutionally protected; none has squarely ruled otherwise. 

Although Akins' lawyers were quoted describing his case as a deviation from this line of precedent (a position that would help their cause in obtaining U.S. Supreme Court review), there are decisive factual differences. 

According to the district court ruling, Akins was prevented from filming a member of the public, not a police officer, in the Police Department lobby (specifically, a citizen activist who was at the department to file a complaint). The First Amendment right to record law enforcement activity rests on the enormous power that police exercise and the need to monitor how they use it. There is a less compelling argument for the ability to film the complaint intake process inside of the police headquarters, and a greater concern in that space (unlike on a street corner) for both the police department's ability to function and the public's willingness to use the complaint process. (Imagine the potential for intimidation if the union defending police officers insisted on a right to film aggrieved citizens as they file complaints.)

For these reasons, the Eighth Circuit's perfunctory ruling does not represent a retreat from precedent elsewhere. Rather, it simply reiterates longstanding precedent that there is no generalized First Amendment right to be present where news is happening.

Nevertheless, the Akins ruling is discouraging because, once the courts began recognizing a First Amendment right to record police, it at least opened the door to establishing a broader right of access to record other official proceedings. The Eighth Circuit has pulled that door shut, though in a more sympathetic future case with a working journalist as the plaintiff, perhaps the judges might be persuaded to reopen it. The First Amendment should be understood to protect not just the right to distribute news but the right to gather it, without which the right to publish has diminished value.

Tagged: Akins v. City of Columbia, First Amendment, news, photojournalism, recent-news

From the SPLC Legal Network: New Virginia ruling reemphasizes that the safest policy for schools is "hands-off" of social media pages

Students planning to take gripes about their school to social media forums just received some reinforcement from a federal district court in Virginia. 

Judge James C. Cacheris ruled that blocking an individual from posting political criticism in an online social media forum violates the poster’s First Amendment rights.  

In the case, Phyllis J. Randall, a local politician holding the position of chairwoman for the Loudon County Board of Supervisors, blocked an individual from posting on a Facebook page because she disliked the content of his post. The “Chair Phyllis J. Randall” Facebook page stated that it was meant to be a forum for communication between Randall and her constituents. Randall became upset when Brian Davison questioned the transparency of public officials in Loudon County on the Facebook page, and in response she blocked him from posting to the page. 

Twelve hours later, Randall changed her mind and unblocked Davison. Even though the obstruction was fleeting, Davison claimed that Randall’s act of removing his access to the Facebook page was a violation of his First Amendment rights, because the Facebook page was a forum held open for the public to express opinions about the performance of the county board. Judge Cacheris agreed with Davison.

The key to the ruling was that, in the court's view,  Randall "engaged in viewpoint discrimination by banning Plaintiff from her Facebook Page. Viewpoint discrimination is prohibited in all forums.” 

Under the First Amendment, the government is forbidden from engaging in “viewpoint discrimination,” including using its control over access to government property to allow only speakers with a certain view to be heard. In the Virginia case, the court found that Randall, acting in her capacity as a government official, removed Davison’s post and blocked him from speaking further because he expressed the view that the Loudon County Board of Supervisors was doing a bad job. 

Even though the forum was Facebook, a social media account, rather than a traditional forum, Randall had engaged in action that fell squarely into the classic example of viewpoint discrimination. It did not matter to the court either that the "property" was virtual -- and indeed, that the government may not "own" a Facebook account in the same way it "owns" the lobby of City Hall or the steps of the courthouse -- or that Davison had plenty of alternative places to make his criticisms heard.

Many news organizations have focused on what this ruling might mean for a lawsuit brought in New York federal court by the Knight First Amendment Institute against President Donald Trump, claiming that Trump violates individuals' First Amendment rights when he blocks them from access to his Twitter account. But the case holds special meaning for students fighting against online censorship from school administration as well.

Schools and student organizations often maintain social media pages. Students sometimes use these social media pages as forums to criticize elements of the school or school administration that should be improved. Unsurprisingly, school administrators are not always thrilled with the criticism they face in these social media posts. In some situations, school administrators have taken down the critical posts or prevented students from posting to these sites.The Virginia Facebook ruling gives us perspective that such actions represent viewpoint discrimination and can open an offending school up to a constitutional claim.

The Virginia ruling reminds us that whether speech is printed on paper or posted to a Facebook page doesn’t matter; digital speech receives full constitutional protection. 

Gwenn Barney is an associate in White and Williams’s Corporate Law practice and a member of the SPLC's Attorney Referral Network. In law school, Gwenn researched issues related to student rights as an intern with the Student Press Law Center and studied cyber law while a visiting student at The University of Hong Kong. She was a student journalist at Taylor Allderdice High School's The Foreword and the University of Pittsburgh's The Pitt News

Tagged: news, recent-news

School bus videos are public records, Pennsylvania court rules

Security footage filmed on school buses is a public record, a Pennsylvania court ruled this week, reaffirming the state’s stance on the relationship between its open records laws and the Family Educational Rights and Privacy Act.

In February 2016, a reporter with the local Fox affiliate requested that the Central Dauphin School District provide her with a copy of security video captured by a school bus camera system. The footage showed an alleged altercation between a 17-year-old student and the wife of Central Dauphin East High School’s principal. At the time, the school denied the reporter’s request, saying that FERPA exempted the video from the state’s Right-to-Know Law.

The state’s Office of Open Records, however, ordered the district to release the video, noting that “just because a record involves a student does not automatically invoke the confidentiality provisions” of FERPA. “While this video purportedly depicts the individual student, there is no evidence that this video is part of the student's permanent academic file,” Charles Rees Brown, the office’s chief counsel, wrote in the opinion.

The school had also argued that the video was exempt because it was related to a noncriminal investigation. Brown dismissed this argument as well, writing that there was “no evidence that the video exists for reasons other than to document the behavior of students and others aboard school buses.”

This office’s 2016 ruling was a reversal of the state's earlier position, which held that school bus videos were indeed protected by FERPA. In 2011, the office sided with the Bangor Area School District in a similar case, blocking a man from obtaining videos related to bullying on his daughter’s bus. Erik Arneson, executive director of Pennsylvania’s Office of Open Records, told the Morning Call last year that the change was the result of the office taking “a deeper look” at the state’s Right-to-Know Law and FERPA.

The Central Dauphin School District disagreed with the ruling and appealed the decision in June 2016. On Tuesday, the Dauphin County Court ruled against the school, largely agreeing with the Office of Open Records’ interpretation.

In his opinion, Judge William Tully reiterated the office’s explanation, as well as clarifying that the school bus security footage is — if not routinely deleted — maintained by the state’s Department of Transportation, further differentiating the video from educational records, which would be typically maintained by an educational institution.

Student faces must be blurred or redacted, the court said, but the footage is otherwise not protected and can be released.

“This court finds that the district has failed to meet its burden in proving by a preponderance of evidence that school bus video is exempt from disclosure under FERPA,” Tully wrote. 

Tagged: FERPA, recent-news

Can Hugh redact personal phone numbers from a state record? It's a close call.

Next to Houston Nutt, whose lawsuit helped topple Ole Miss football coach Hugh Freeze, the next-happiest person to see Freeze fall must be Kwame Kilpatrick, who's now only the second-most-famous person to be dethroned by public records. 

Just as Kilpatrick lost the Detroit mayor's office, and ended up in prison, after an open-records lawsuit disclosed embarrassing text messages about personal indiscretions, so too was Freeze sidelined from the sidelines. The Rebels' head coach was forced from his job Thursday after the University of Mississippi discovered a "pattern of personal misconduct" documented by records of his state-issued cellphone calls.

But is the public entitled to more disclosure than the university has offered? There's a good chance the answer is "yes."

Hugh Freeze (by jeremymnabors, used under CC license)

Nutt, who preceded Freeze as head coach, obtained the billing records for Freeze's cellphone as part of research for a defamation suit he's pursuing. The university allowed Freeze to review the records and redact calls he deemed personal, which (though an obvious invitation for people to make self-serving redaction decisions that are almost impossible to challenge) is routine practice when individuals' records are requested under state freedom-of-information laws. 

What may not be routine practice is withholding portions of public records on the grounds that their contents are, quote, "personal."

Interestingly, Mississippi law contemplates the reverse of Freeze's situation, where the entire document qualifies as exempt but some of its content can be harmlessly produced:

If any public record which is held to be exempt from disclosure pursuant to this chapter contains material which is not exempt pursuant to this chapter, the public body shall separate the exempt material and make the nonexempt material available for examination or copying, or both, as provided for in this chapter.

The billing records for a university-owned cellphone are not "exempt from disclosure" -- they are classic public records that any requester is entitled to inspect and copy. 

Nothing in the law explicitly authorizes what the university did -- selectively removing material categorized as exempt from otherwise-public records. But it's widely understood that open-records laws are not "all-or-nothing," and that the presence of a small amount of nonpublic material in a document does not entitle an agency to withhold the entire document. So even where the authority to make selective redactions doesn't appear in the statute, the courts have created that mechanism to avoid the absurd result that one confidential sentence in a 25-page document could render the entire document inaccessible. 

The Mississippi attorney general's office has interpreted the Public Records Act to allow agencies to excise exempt information from otherwise-public records before producing them. In a 2009 opinion letter, Attorney General Jim Hood advised that home addresses and phone numbers can be withheld from police reports if they fit within a statutory exemption, such as the exemption for identities of confidential police informants. 

So the question is whether the Public Records Act exempts "personal" information. If not, then Freeze's redactions went beyond what the law allows, and the redacted entries should be produced.

There is no statutory exemption for "personal information" in Mississippi law. The statute contains some narrowly targeted exclusions that allow for withholding especially sensitive information, such as Social Security numbers, but nothing that categorically places "personal" information off-limits.

The university's best (indeed, only) argument for categorizing personal calls as exempt from disclosure will be to argue that, by definition, a record of a non-business phone call does not meet the statutory definition of "public record" in the first place.

Mississippi law defines a public record as any document that is "used, being in use, or prepared, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body."

By that broad definition, it is difficult to argue that records of personal phone calls on state devices are not public records. Although the phone call itself was not an official business call, that's not what the law says. The law says any record that the state (1) keeps as part of its official functions or (2) is required to maintain is open to public inspection. The records reflecting a state employee's cellphone use -- for any purpose -- very likely qualify as records that an agency retains, or is required to retain, for official use. 

So there is a strong basis to argue for access to the redacted call entries, which might more fully enlighten the public about why Freeze is no longer drawing his $4.7 million salary.

In 2010, the U.S. Supreme Court considered, but did not squarely decide, whether a public employee has a constitutionally recognized expectation of privacy in text messages sent on a government-issued device. In that case, City of Ontario v. Quon, the Court found that a police department acted reasonably in examining messages sent by a police officer on a city-owned pager to see why he was exceeding the monthly usage cap and incurring overage fees.   

The university would be on uncertain legal footing in insisting that Mississippi law allows for withholding documentation of personal usage of a state cellphone. We may yet see the full picture of what "personal misconduct" impelled the university to cut ties with its fifth-year coach.

Photo of Hugh Freeze by jeremymnabors, used under Creative Commons Attribution-Share Alike 3.0 Unported license.

Tagged: Hugh Freeze, news, Ole Miss, public records, recent-news, University of Mississippi

Iowa State can not censor marijuana legalization shirts, Eight Circuit reaffirms

Students at Iowa State University can produce and wear T-shirts with the university logo and a pot leaf, the U.S. Court of Appeals for the Eighth Circuit ruled.

In a decision issued by a three-judge panel last month, Iowa State was found to have violated its students’ First Amendment rights when it denied the campus chapter of the National Organization for the Reform of Marijuana Laws permission to use the university’s trademarked name and logos. The ruling reaffirms an earlier opinion handed down by the Eight Circuit.

“We are gratified the Eighth Circuit reaffirmed its earlier holding that the First Amendment does not permit state university officials to condition benefits based on the viewpoint of student groups,” attorney Robert Corn-Revere, who represents the students, said in a statement. “We look forward to bringing this case to a close, or, if ISU chooses to appeal, litigating the matter to a final conclusion.”

The controversy began when the NORML chapter at Iowa State printed T-shirts that included the phrase “NORML ISU” along with the university’s mascot. On the shirt's back, the design read “Freedom is NORML at ISU” and featured an image of a pot leaf. Though the university initially approved the design, it later blocked the students from printing more T-shirts, claiming the design violated the school’s trademark policy.

The students sued in 2014, and the lawsuit became part of the Foundation of Individual Rights in Education's Stand Up For Speech Litigation Project. In early 2016, a U.S. district judge ruled in favor of the students, stating that administrators violated the students’ free speech rights. The university appealed, and the Student Press Law Center wrote a friend-of-the-court brief urging the appeals court to affirm the district judge’s ruling.

In February 2017, the appeals court ruled unanimously, agreeing with the district judge.

The university administrators asked the appeals court to rehear the case, and when it did, the panel reaffirmed their earlier decision. This time, however, it was a 2-1 vote, with the one judge ruling that the university officials should be protected by immunity.

“It was a really decisive opinion,” said Marieke Tuthill Beck-Coon, director of litigation at FIRE. “It made very, very clear that when a university offers a benefit for all of its students to use -- as it did here with its trademark policy -- they can’t take that benefit away because a group’s message isn’t politically expedient or is controversial or political or whatnot.”

Now, the university has submitted a motion for rehearing en banc, meaning all of the Eighth Circuit court judges would hear the case, not just the standard three. The motion is currently pending. If the Eighth Circuit decides not to rehear the case, the university then has the option to go to the Supreme Court.

This recent ruling may affect another T-shirt controversy at University of Missouri-Columbia, which is also in the Eighth Circuit. A similar situation, the NORML chapter at MU wanted to print T-shirts with MU’s logo along with a pot leaf, but the request was denied. Though the university allowed its name to be used as part of the organization name (NORML at MU), it refused the chapter’s request because MU’s licensing policy does not allow the use of drug- or alcohol-related images.

“I can’t say with any certainty how [the ruling] will affect the Mizzou case because the facts are, of course, different between Mizzou and the ISU case,” Beck-Coon said. However, she said if there are facts in the Mizzou case that show the university was discriminating against NORML over the basis of the group’s message, then the ISU ruling would be helpful in resolving that lawsuit.

Tagged: recent-news, school censorship, student organization

UCF suspends, then reinstates, student who graded breakup letter on Twitter

The University of Central Florida’s decision to suspend a student over a social media post -- and to later reverse the punishment -- has raised questions about the university’s approach to the First Amendment and social media.

Six months ago, Nick Lutz, a UCF student, received an apology letter from his ex-girlfriend in response to their recent breakup. Lutz posted the letter on Twitter, grading it as though it were an assignment. He took off points for grammatical mistakes, spelling errors and missing details, and gave the letter an overall D minus grade. The post was retweeted 121,000 times.

Earlier this month, UCF suspended him for posting the letter. Then, on Wednesday, the suspension was reversed. While the university ultimately revoked the sanctions, Lutz’s attorney, Jacob Stuart, said the case could set a troubling precedent.

“How do we regulate within a public university who decides what is morally right?” Stuart asked. “I don’t think the state has any purpose in doing that.”

After seeing the tweet, Lutz’s ex-girlfriend, who is not a UCF student, went to the Volusia County Sheriff’s Office with a cyberbullying claim. While prosecutors did not pursue the case, Lutz received a letter from the university on July 6 saying he may have violated local, state, and/or federal law with his post, according to Stuart.

However, the school did not provide evidence or specification on how Lutz’s tweet violated the law, Stuart said. Moreover, when the attorney appealed the school’s decision, Lutz received a response Tuesday stating that he violated school conduct codes constituting disruption and cyberbullying -- different grounds for his punishments from what was first alleged.

Lutz was facing five sanctions administered from the UCF Office of Student Conduct: suspension from the upcoming summer and fall semesters; requirements to give a presentation and write a paper reflecting on this experience and its impact on others; mandatory mentorship with a university staff or faculty member; and disciplinary probation

That the university would scan their students’ social media accounts and punish them for their posts concerned Stuart. He believes Lutz’s post did not provide any “identifying markers” of his ex-girlfriend to qualify as cyberbullying and certainly did not violate any law.

The larger issue at hand, Stuart said he believes, is a violation of Lutz’s First Amendment right to freedom of speech. The school’s second letter to Lutz alleging violations of conduct codes for disruption and cyberbullying was a “moral decision” from the administrators, Stuart said, which sets a slippery precedent for school officials in the future.

Given UCF’s standing as the largest public university in the country with over 60,000 students, Stuart said the administration’s punishment of Lutz could have set a dangerous standard for other public schools to “troll” their students online.

On Wednesday, the university’s dean of students, Adrienne Otto Frame, sent Lutz a letter dropping the sanctions, stating that the original charges of disruptive behavior and bullying were “improvidently levied.” The ex-girlfriend -- who the letter identified as a high student who plans on attending UCF -- experienced “substantial emotional distress,” Frame wrote, but officials were unable to determine if that distress was due to Lutz’s original posting or the unexpected attention the tweet received.

“I can only say that their actions lead me to believe that they have some type of internal mechanism where they’re deciding internally what a student can or cannot say on social media platforms,” Stuart said. “I can’t speak to directly why they’re doing this, but it’s certainly alarming.”

Tagged: recent-news, social-media use, student First Amendment rights

From the SPLC Legal Network: An analysis of the Supreme Court's latest First Amendment ruling, Matal v. Tam

The Lanham Act has prohibited federal registration of “disparaging” trademarks for more than 70 years. But last month, the Supreme Court’s Matal v. Tam decision upended decades of practice, finding instead that the limitation was an unconstitutional restriction on speech. 

The Band Who Must Not Be Named 

In 2006, an Asian-American dance-rock band was just getting started in Portland, Oregon.  They called themselves The Slants, a carefully selected yet provocative title intended to reclaim a racial slur against people of Asian descent. To the band, this name was symbol of cultural pride, a way to use their musical talents to engage in political discussions about race and society. 

As many entities do—musical and otherwise—The Slants sought federal trademark protection pursuant to the Lanham Act. And here’s where the problem lies: Section 2 of the Lanham Act limits what marks are eligible for federal registration, including a bar on the registration of marks that contain “matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  

When The Slants applied for a trademark on their name, the U.S. Patent and Trademark Office (USPTO) examiner denied the application as disparaging toward Asian-Americans, a decision that was affirmed by the Trademark Trial and Appeal Board (TTAB). The band’s leader, Simon Shao Tam, appealed this ruling to the U.S. Court of Appeals for the Federal Circuit, which held that the disparagement infringement was unconstitutional under the First Amendment. The Slants' battle was not over just yet, however: Several months later, the Supreme Court granted the U.S. government’s petition for certiorari. 

The Supreme Court Weighs In

After a nearly eight-year legal fight, the Supreme Court unanimously affirmed the Federal Circuit’s judgment that the Lanham Act’s disparagement clause unconstitutionally infringes upon First Amendment rights.  

Here, the government attempted to cast trademarks as “government speech,” and therefore outside of the scope of First Amendment protections. While the government may impose 

content-based restrictions on government speech, the Supreme Court rejected the government’s attempt to lump trademarks in this category, calling the suggestion “far-fetched.” It emphasized the contradictory views expressed in issued marks, and compared the trademark regime to copyright registration. As the Supreme Court’s objective is to safeguard “a diversity of views from private speakers,” its “reliance must be on the substantial safeguards of free and open discussion in a democratic society.” 

The government also argued that it was not required to subsidize activities that it did not wish to promote. But because trademark registration is not a cash subsidy (and, in fact, the applicant for registration actually pays the government a filing fee), the Supreme Court also rejected this argument. 

Finally, in rejecting the government’s proposal for a new doctrine applicable to government programs, the Supreme Court engaged in a public forum analysis, which has also been applied in the context of school-sponsored publications. But the disparaging clause, which denies registration to any mark that is offensive to members of any group, impermissibly discriminates on the basis of viewpoint. The Supreme Court also declined to address whether trademarks are commercial speech subject to decreased constitutional protection, as the provision was not permissible even under lesser scrutiny. 

What’s Next 

Following the Supreme Court opinion, The Slants issued a statement concerning their journey from Portland to the country’s highest court:

For too long, people of color and the LGBTQ community have been prime targets under Section 2(a) of the Lanham Act, simply because we believe in the deliberate disarmament of toxic language and symbols. We’ve had to endure the Trademark Office working in isolation of our groups to navigate the troubled waters of identity politics and shifting language and culture, without any sense of cultural competency, consistency in enforcement of rules, and only giving the benefit of doubt to the most privileged members of society. Now, Americans can decide who should prevail in the marketplace of ideas rather than a lone examining attorney. Oppressed groups will no longer have their identities shaped the sensibilities of dominant ones.

When I started this band, it was about creating a bold portrayal of Asian American culture. The establishment of an Asian American band was a political act in of itself, even though we never considered ourselves as a political group. However, as we continued writing music about our experiences, we realized that activism would be integrated into our art as well. I’m proud our band members have helped raise over $1 million for issues affecting Asian Americans, that we’ve worked with dozens of social justice organizations, and that we could humanize important issues around identity and speech in new and nuanced ways. So we became part art and part activism.

The Slants have undeniably made a lasting impact on intellectual property law. Based on the Supreme Court’s reasoning, it unlikely that the Lanham Act’s comparable prohibitions on “immoral… or scandalous matter” will pass constitutional muster. As a result, the USPTO may see an influx in controversial trademark applications, including, for example, the Washington Redskins, whose trademark was previously canceled

While the Supreme Court’s decision may not have any substantial effect on the daily practices of student journalists, it can certainly be considered a First Amendment win. 

Had the case come out differently, the doctrine of "government speech" -- that speech loses its protection against government regulation when its message is attributable to the government -- might have invited danger for people who use government property to convey their messages. And importantly for student journalists, the decision may signal a Court that is willing to go beyond established statutory regimes and government practices to protect First Amendment rights.

Lindsay Church is an associate in Alston & Bird’s Intellectual Property practice and a member of the SPLC's Attorney Referral Network. She is the author of “Government Subsidies and Intellectual Property Rights: Confining the Applicability of the Subsidies Doctrine to Cash Benefits,” published by the Harvard Journal of Law & Technology.  In law school, Lindsay was a Human Rights Fellow at the Medial Legal Defence Initiative in London, and conducted research on the freedom of expression while a visiting student at the University of Oxford’s Programme in Comparative Media Law & Policy. 

Tagged: attorneysnotes, First Amendment, First Amendment, first-amendment, intellectual property law, Lanham Act, news, recent-news

Advocacy group sues Department of Education for Title IX records

There are a number of factors that make reporting on sexual assault and harassment on campus a difficult feat for student journalists.

Administrators refuse to release important records to the public, hiding behind the veil of the Family Educational Rights and Privacy Act, even though open-records laws permit redactions for privacy.

Many students express discontent with the ways their schools handled their cases, resulting in Title IX complaints to the U.S. Department of Education, which is both secretive and slow-moving, so that tracking the progress of an investigation is near-impossible for an outsider.

Campus climate surveys show that issues such as sexual assault, gender discrimination and intolerance are of widespread concern among college students.

Without access to the records produced by universities, schools and the Department of Education, there is little journalists, much less the public, can do to make sure that these public institutions are doing everything they should to make campuses safe.

The National Women’s Law Center cited such concerns in a Freedom of Information Act complaint against the Department of Education on June 12. The lawsuit was filed in response to DOE’s failure to provide records requested in January.

In the complaint, the center said DOE neglected to respond appropriately to their request for documents pertaining to all pending sexual harassment cases before the Office of Civil Rights.

This included any documents recording the results of investigations into Title IX violations, compliance reviews and findings of fact made in a span of a few months before the request was made.

While many student journalists take the approach of requesting information about individual universities and cases before being stonewalled by administrators, the NWLC is pursuing more general records that still paint a picture of each campuses’ compliance.

Alexandra Brodsky, a Skadden Fellow at the center, said any concerns about individual privacy would not pertain to their request because the documents NWLC is seeking – a list of schools with violations, and the resolution agreements or findings of fact in those investigations – generally would exclude descriptions of the complainants or identifiable details about their cases.

“FOIA also allows for them to redact any information that would pose a threat to individual’s safety and privacy,” Brodsky said. “They have not said that they are withholding documents because of those concerns.”

Brodsky said the NWLC wants to use these documents to hold schools accountable and to better inform their clients about their legal prospects.

Schools are required to publish an annual Clery Act statistical report, which is supposed to be a minimally detailed account of all of the crime that is reported on campus.

However, issues with reporting on campus, including cases of administrators ignoring students complaints, can sometimes make this report an inaccurate depiction of the campus’ safety. And those reports involve only behavior that could equate to a crime, meaning that acts of sexual harassment (such as a professor pressuring a student for sex) are not counted.

The FOIA’d documents detailing the efficacy of a school’s investigation and response process can paint a more complete picture of what discrimination and threats many female, LGBTQ and minority students face on campus.

The day after the NWLC’s complaint was filed in U.S. district court in the District of Columbia, the Department of Education began sending records. And while the center waits to see the full scope of the way the current administration has been holding schools accountable, Brodsky encouraged students to reach out if they need help effecting change at their schools.

“We think that student organizing is one of the most effective ways to push schools to appropriately handle and report the sexual harassment,” Brodsky said. “Regardless of whether the Department of Education is doing its job, we are.”

Tagged: blog, Blogroll, Department of Education, Doe, lawsuit, NWLC, open-records, recent-news, Title IX

"Campus free expression" bills may benefit protestors, but offer little new hope for college journalists

The North Carolina General Assembly passed the state’s Campus Free Speech Act Thursday, joining Tennessee, Colorado, Utah, and Virginia, which have each enacted similar statutes. 

All across the country, states are considering what are called "campus free expression" bills; Louisiana's governor just vetoed his state's version, but the veto may face a legislative override. But what, if anything, do these laws do to protect student media?

The answer, unfortunately, is probably not much. Most of the statutes are aimed at clarifying the right to distribute literature or hold demonstrations on the public portions of campuses, or to penalize students who disrupt politically controversial speakers. Little in these proposals seems likely to offer any heightened protection against censorship or retaliation for student journalists.

Most of the laws, both enacted and proposed, are at least loosely modeled after a bill proposed by the conservative Goldwater Institute. The model explicitly declares outdoor or public areas of state college campuses to be public forums. This means that the First Amendment is in full force in these areas of campuses in the same way that it would apply on an off-campus sidewalk or park. 

Many also direct colleges to commit to “strive to ensure the fullest degree of intellectual freedom and free expression,” and to dispose of policies not in line with such a commitment. That is a possible opening for student media to argue against campus policies that inadequately protect journalists -- but the language lacks specificity. It's not clear how a journalist would prove that a particular student media policy fails to "strive" to protect free expression. So until these laws are put to the test judicially, it would be unwise to assume that a state with a "campus free expression" law modeled on the Goldwater template gives journalists any enforceable right to publish without interference. That's why the parallel legislative campaign to pass "New Voices" press-freedom statutes remains relevant. 

The bills have attracted opposition in some states -- one critic called Wisconsin's proposal a "campus gag rule" -- because of concerns that students protesting divisive speakers may find themselves suspended or expelled for momentary acts of defiance, such as standing up and walking of a lecture. Still, the bills have been gaining traction in many states following headline-grabbing episodes at campuses including Vermont's Middlebury College, where protests against author Charles Murray's visit turned violent.

Here is a little more information about what these laws actually do:

Define Public Forums

The laws in Utah and Tennessee include a declaration that outdoor areas on campus are public forums. Eight bills currently under consideration, and Louisiana’s vetoed bill, include similar language declaring “outdoor areas,” “public areas” or “park areas, sidewalks, plazas, and similar spaces” to be public forums. Colorado’s statute sets aside outdoor areas and “nonacademic and publicly open portion[s] of a facility that the institution . . . has traditionally made available to students for expressive purposes” to be not fully public forums, but “student forums.”

Government agencies, including state colleges, may enforce only viewpoint-neutral time, place and manner restrictions on expression conducted in public forums. Thus, these provisions make great strides in preventing colleges from restricting student expression to specific “speech zones,” and they may provide some limited protections for student media’s news-gathering and distribution efforts. However, because these statutes do not contain similar provisions declaring student media to be student forums, and because they only apply to the specified areas of campus, they do not prevent student media from being subject to the censorship of student media that the Supreme Court legalized in Hazelwood School District v. Kuhlmeier.   

Nullify Speech-Restrictive Policies and Regulation

Many of these statutes and bills include provisions nullifying previously held college policies that restrict free speech. For example, Illinois’ legislation declares that prior policies “that restrict speech on campus” are “inconsistent with this policy on free expression” and must be removed or revised. The primary target of these provisions is "speech codes" that purport to penalize offensive or uncivil speech. These provisions might be the most promising aspect of these laws for student journalists, who can argue that university policies that restrict student media are inconsistent with promises of intellectual freedom found in these bills. For example, a college policy that requires non-student employees to pre-approve journalistic publications ("prior review") before distribution could be challenged as a policy inconsistent with freedom of expression. 

Codify Tinker and Hazelwood for the College Context

Five pieces of legislation in four states, and Louisiana’s recently vetoed bill, include the “material and substantial disruption” test for regulating student speech that the Supreme Court coined in its landmark 1969 Tinker case in the K-12 context. It has not been clear whether the Tinker level of First Amendment protection was the applicable standard for colleges, as the Supreme Court has never squarely addressed that question. Tennessee's law goes one step further by codifying Hazelwood, explicitly allowing “[c]ontent restrictions on speech that are reasonably related to a legitimate pedagogical purpose.” Tennessee is governed by the legal precedent of the federal Sixth Circuit, and Sixth Circuit precedent provides that student media publications are highly protected as designated public forums. So the most likely application of this provision is that classroom discussions or assignments will be subject to the Hazelwood level of near-total institutional control, while student media will retain their strong constitutional protection.

Protect Faculty

Tennessee’s statute goes beyond the protections of other state’s laws and bills to explicitly protect faculty members’ classroom speech. The statute provides that “no faculty will face adverse employment action for classroom speech, unless it is not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.” Faculty are also included along with students in most of the other clauses of the law. These protections in Tennessee’s law may offer faculty media advisers some protection against termination and other discipline in retaliation for content of student media (especially laboratory-produced student work). Notably, Tennessee is the only Campus Free Speech bill that provides specific faculty protections thus far.

Limit Interpretation to the First Amendment

The usefulness of Campus Free Speech legislation is severely limited by language that limits application only to that speech already protected by the First Amendment, found in three bills and three enacted statutes. For example, Colorado's law includes the following language: “Nothing in this section shall be interpreted as presenting an institution of higher education from prohibiting, limiting, or restricting expression that is not protected under the First Amendment.” One could fairly read this provision to mean that unfavorable precedent -- including the troubling Hazelwood case, which may or may not apply in the college setting -- is still in full force in states with Campus Free Speech laws. Thus, while these statutes do a good job of setting aside outdoor areas as forums subject only to content-neutral restrictions, the longstanding issues with seeking First Amendment sanctuary for censored student journalists still may persist under these statutes.

Tagged: campus free expression bills, campus free speech laws, news, recent-news, state legislation

North Carolina passes bill clarifying communication between NCAA, UNC as public record

A bill that classifies communication between University of North Carolina system schools and their athletic conferences as public record passed (61-54) in the North Carolina House Tuesday and will head back to the state's Senate to approve an amendment.

Senate Bill 323 clarifies that public records include “all documents, papers, letters, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics” in the possession of UNC system schools related to membership or communication with the National Collegiate Athletic Association or any other collegiate sports associations or organizations.

Though these documents are already public record according to the North Carolina Open Records Act, Sen. Michael Lee (R-New Hanover) said the new bill is designed to prevent confusion and clarify that materials held by public universities about these affiliations are accessible.

The bill was introduced March 21, with Senators Michael Lee, Ralph Hise and Warren Daniel as its primary sponsors. After passing the Senate in April, the bill was recently amended June 22 by the House to state the act would become effective Oct. 1. An attempt to rewrite Section 1 of the bill did not pass. In order for the bill to head to the governor, the Senate will need to approve the new amendment.

According to the News & Record, the bill is a response to House Bill 2, the controversial "bathroom bill" that many criticized as discriminating against transgender people. The bill was repealed March 30. When the ACC and NCAA pulled their 2016-17 championship games from North Carolina because of HB2, there was some confusion over whether documents related to the pulled championships were considered public record. The new bill aims to clarify this.

The legislation specifically mentions the ACC, of which UNC's flagship campus is a member, and the NCAA, but the law would apply to all UNC schools, regardless of athletic conference affiliation.

Tagged: recent-news, state's public-records laws