The Student Press Law Center blog

Tennessee appellate court rules campus rape records are not open to public

TENNESSEE — A state appellate judge has ruled that records about an alleged rape involving four former Vanderbilt University football players are not open to the public because the investigation is ongoing.

The appellate court’s decision, which reversed a county court’s earlier decision, determined that none of the records are publicly available because of a law that exempts investigatory records from disclosure, the Courthouse News reported.

In June 2013, the players were charged with five counts of aggravated rape and two counts of aggravated sexual battery each, The Tennessean reported. They were removed from the team the next month.

After the Metropolitan Nashville Police Department denied The Tennessean’s public records request for information about the case, the Nashville-based newspaper filed suit against the police department in February. The lawsuit claimed that any records that were created by nongovernmental entities and obtained by the police are not exempt from the state’s open records law.

Joining in on the lawsuit was The Associated Press, Chattanooga Times Free Press, Knoxville News Sentinel, The Commercial Appeal in Memphis, WBIR-TV in Knoxville and Nashville stations WTVF-TV Channel 5, WSMV-TV Channel 4 and WZTV-TV Fox 17.

In March, a Davidson County Chancery Court judge partially ruled in favor with the media companies and agreed that some of the records were open because they did not interfere with the investigation. These records included text messages, as well as university access card information, campus video and emails written by witnesses and defendants as long as they did not address the police or district attorney’s office.

“What happened in that dormitory and any examination of the conduct of Vanderbilt students and employees regarding the incident in question are newsworthy,” Perkins wrote, “but the Court’s review of the records and of the text messages shed very little light on official government conduct.”

Deborah Fisher, the Tennessee Coalition for Open Government executive director, wrote a column Monday criticizing the appellate court’s ruling. The TCOG was also a plaintiff in the case.

“The Court of Appeals in Nashville last week kicked the can farther down the wrong road when it expanded police powers so they could keep just about anything and everything they want secret from citizens,” she wrote.

Tagged: recent-news

Covering Campus Crime: Reporting on the Clery Act

Join us Tuesday, Oct. 7 at 2 p.m. to discuss how student journalists can report on the Clery Act, a federal law designed to provide information about crimes on campuses. SPLC reporter Sara Gregory and Columbus Dispatch reporter Jill Riepenhoff will answer questions about their recent reporting on the Clery Act.

Live Blog Covering Campus Crime: Reporting on the Clery Act

Campus insecurity: Reports on college crime are deceptively inaccurate, shows SPLC/Columbus Dispatch joint investigation

At the University of Memphis, federally mandated crime reports would have the public believe that the college, with 22,000 students, averages fewer than two sexual assaults per year. At Jacksonville’s University of North Florida, home to 16,000 students, campus officials claim to have gone two straight years without a sex crime. Louisiana State (30,000 students) and Florida State (40,000) report a grand total of five sexual assaults each over the most recent two years.

This is, of course, nonsense. The college administrators who sign and file these patently false crime reports, year after year, are either indifferent to campus safety or are knowingly lying about it. And the federal crime reporting statute, the Clery Act, is so poorly enforced by a credulous U.S. Department of Education that the risk of getting caught and (minimally) fined – invariably, years too late to result in meaningfully improved reporting for the students who’ve been misled – effectively deters no one.

These are the takeaways from a devastating story published in today’s Columbus Dispatch as a joint project of the Student Press Law Center and the Dispatch’s investigative reporting team of Colin Binkley, Jill Riepenhoff and Mike Wagner. Reporter Sara Gregory, an SPLC journalism fellow, spent the past year analyzing 12 years of annual crime disclosures compiled by the Department of Education – analysis the Department has itself failed to attempt – and then wrestling with hidebound campuses over public documents that should have been readily disclosed.

Many anecdotal stories have emerged in recent months about individual colleges’ mishandling of violent crime, but today’s special report (“Campus Insecurity”) is the first to authoritatively quantify the magnitude of the undercounting. It’s enormous. Each year, one-half of major colleges claim to have experienced no violent crimes of any kind. Nearly 20 percent – one in five – claim there hasn’t been a single sexual assault in at least 12 years. 

Years of systematic underreporting cannot conceivably have gone unnoticed by the Department of Education, the agency charged with enforcing Clery Act compliance – and yet seemingly it has. The Department has either been ignorant of, or complicit in, an industry-wide epidemic of “rape blindness.” In either event – incompetence or purposeful concealment – a thorough congressional investigation is warranted. 

The systemic contempt for public accountability exemplified by colleges’ casual disregard of Clery Act disclosure obligations is symptomatic of a much larger cancer metastasizing within higher education – the cancer of image-obsessed concealment. It manifests itself most dangerously in falsified crime reports, but is being felt campus-wide in the obsessive secrecy enveloping college presidential searches, in unconscionably long delays and dubious “exemption” claims when the public seeks access to records, and in the explosive growth in P.R. functionaries who view their jobs as making sure no journalist ever gets access to an actual campus decision maker. 

Congress cannot cure colleges entirely of their addiction to secrecy, but it can provide meaningful sanctions for those who disregard their crime reporting obligations. A start would be requiring the general counsel of every college to certify, under penalty of perjury, that each year’s crime statistics were compiled in accordance with the Department of Education’s official Handbook for Campus Safety and Security Reporting. The de-licensure and prosecution of just a few college attorneys will awaken a conscience (or a self-preservation instinct) in the rest. 

This installment of “Campus Insecurity” is the first in a series of articles to be published in the Dispatch this fall examining where colleges are falling short in their duty to diligently investigate, punish and disclose campus crime. It’s required reading for anyone working at – or thinking of attending – any college or university, and it’s ripe for follow-up localization by college journalists across the country.

The SPLC/Dispatch team’s reporting was supported in part by a grant from the nonprofit Fund for Investigative Journalism , which helped underwrite the expense of voluminous requests for public records from colleges nationwide. Sara Gregory’s work for the SPLC is underwritten by a grant from the McCormick Foundation, which supports journalism of civic importance. Sara will discuss her reporting and take questions from college journalists as part of a keynote panel Oct. 31 at the College Media Association’s national convention in Philadelphia.

Tagged: recent-news

"Banned Websites Awareness Day" highlights how unnecessary internet filters impede on effective learning

For a student or teacher trying to view an educational video or search online for a news photo, the two most frustrating words in the English language are: “Access denied.”

Excessive school Internet filtering is an annoyance across all educational fields, but it’s especially problematic for teaching journalism. Learning how to gather and publish information online requires access to search engines, blogs and social-media sites – all of which are frequently, and unnecessarily, blocked by school filters.

It’s commonplace for a journalism student assigned to do research on effective blogging practices to encounter a total blockade of WordPress, the world’s most popular online publishing platform with more than 60 million user sites. Or for a student who needs a public-domain photo to accompany a slideshow to encounter the “this-site-blocked” screen of doom when attempting a Google Images search.

For a student with adequate Internet access at home, school filtering may be at worst an inconvenient delay. But for the estimated 30 percent of American households without access to a high-speed broadband Internet connection, it may make the difference in completing an assignment.

During “Banned Books Week,” the American Association of School Librarians has designated today – September 24 – as “Banned Websites Awareness Day,” in recognition of the growing impediment that unnecessary school filtering presents to effective learning.

Blocking access to Google, Wikipedia or Twitter in the name of protecting kids against seeking naked pictures is both futile (when most students are walking the hallways with faster computers in their shirt pockets than the ones in the school library) and legally unnecessary.

While schools are prone to blame Federal Communications Commission regulations when filtering practices are challenged, that’s rarely the right answer. The FCC does require, as a condition of receiving federal technology discounts, schools agree to block websites containing images “harmful to minors.” But

the Commission has unequivocally stated that the presence of some harmful content on some sub-pages does not justify blocking an entire domain – and specifically, that federal law does not require a wholesale ban on social media:

“Although it is possible that certain individual Facebook or MySpace pages could potentially contain material harmful to minors, we do not find that these Web sites are per se 'harmful to minors' or fall into one of the categories that schools and libraries must block.”

At times, website blocking can actually violate the law. The ACLU has successfully sued school districts for discriminatorily blocking access only to websites with information supportive of gay and lesbian students, while permitting access to sites that denounce homosexuality. (Because the First Amendment implies a right to receive information as well as the right to speak, a school restriction on access to information that is arbitrary or viewpoint-discriminatory can be challenged on constitutional grounds.)

What can students frustrated by excessive Internet filtering do? At a public school, use state open-records requests to obtain, and write about:

(1) Copies of any school policies, memos and internal emails between the principal’s office and the school district’s Information Technology department about the topic of Internet filtering.

(2) Any contracts or agreements with companies providing Internet filtering or monitoring services to the school or the district (as a bonus, you sometimes learn that the school is paying big bucks for a company to read students’ off-campus social media posts).

(3) Lists of “blacklisted” websites or words that trigger the school’s Internet filter (remembering that federal standards require screening only images and not words).

(The SPLC’s open-records letter generator provides a shortcut to create a request letter that can be emailed, faxed or hand-delivered to the school district headquarters and/or the principal.)

Is your school Internet filter getting in the way of teaching and research – or selectively blocking only one side of an issue? Have you written a story about filtering that’s worth sharing? Let the SPLC know.

Tagged: blog

Welcome to the new

Welcome to the new online home of the Student Press Law Center. We hope you’ll stay awhile and come back often.

The pages you’re visiting are the work of an incredibly talented (and patient!) team of volunteers with Michigan-based SNWorks, a website design and hosting company that graciously donated its pro-bono services in support of the SPLC’s mission. We’re endlessly indebted to Travis Ricks, Lauren Corbeill, Anna Myers, Mike Joseph and the entire SNWorks team for creating a visually engaging, easy-to-navigate site built on their unique Gryphon Content Management System. (As with any new home, we’re still decorating the place and moving in the furniture, so if something’s not quite perfect, send us an email and we’ll get it fixed.)

New features you’ll see for the first time on the site include:

  • Pages highlighting each of the issues – press freedom, school transparency, civic participation and online citizenship — on which the SPLC’s advocacy work focuses, with opportunities for you to get involved in helping improve the state of young people’s rights to obtain government information, to share ideas free from threats and intimidation, and to have a meaningful voice in the policies affecting their lives.
  • Regularly updated practical tips – “From the hotline” – that address the real-life legal issues students and teachers are encountering, based on the 2,000 calls and emails SPLC’s legal staff handles every year. (If you’d like to see your own question answered online, send it in.)
  • Transcripts of the SPLC’s monthly podcasts, featuring interviews with leading journalists and legal newsmakers about contemporary issues in the law of student media.
  • A direct link to SPLC’s YouTube page, where you’ll find an expanded collection of educational videos covering the most-asked subjects from our attorney hotline.

And we’re adding much more in the coming weeks, including a greatly expanded Law Library that will provide legal researchers with a one-stop-shopping center for the court cases affecting student journalists’ rights.

All of the familiar useful features you’ve enjoyed on are still here, including our quizzes, our model student-media policies, and our fill-in-the-blanks open-records request letter, used 43,000 times a year to help journalists (and inquisitive citizens) get the government records they need.

And one last thing hasn’t changed: Our work depends on your generosity. If you like the expanded services the SPLC is offering, consider making a tax-deductible secure online donation in honor of the Center’s 40th anniversary.

Let us know what you think – are you finding what you need to get educated about your legal rights? What could we be doing better? What should we add next?

Canned “Spamalot”: School censors pull the curtain on “offensive” productions

The Tony Award-winning Monty Python musical, “Spamalot,” is two hours of goofy, over-the-top fun with an ending that, for a few fleeting seconds, includes the wedding of two men — the show’s theme song, “Find Your Grail,” momentarily becomes instead, “Find Your Male.”

That scene in an otherwise silly-but-inoffensive script was enough for the principal of a Central Pennsylvania high school to declare the production unsuitable for family audiences and ban it from the stage at South Williamsport Junior/Senior High.

The Educational Theatre Association keeps track of school censorship incidents, and reports that no theatrical work — not even Arthur Miller’s classic, “The Crucible” — is immune from the decency police.

As Casey McDermott explains in the cover story from the current SPLC Report magazine, student theatrical productions are a perennial source of conflict between artistically inclined students — for whom artistry means at times pushing the boundaries of audience comfort — and school authorities imposing a personal morality agenda or enforcing their perception of community standards.

Authors have adapted by buffing the roughest edges off plays such as “Rent,“ creating “school editions” of the oft-censored work, which in unedited form contains strong profanity and sexual themes. But in one Trumbull, Conn., high school, even the watered-down version proved too strong for a delicate-eared principal, whose veto of the musical’s scholastic edition was reversed after national condemnation.

The authority to override students’ choice of artistic, musical or theatrical work derives from the Supreme Court’s 1988 pronouncement in Hazelwood School District v. Kuhlmeier that schools could more freely control student speech when it’s uttered in a “curricular” context using a school-provided conduit. While Hazelwood involved a student newspaper, its impact has been felt far beyond the newsroom, from graduation speeches to art exhibits.

In one of the few First Amendment lawsuits involving student theatrical performances, a federal appeals court ruled in 1998 that the choice of a play is a “curricular” decision over which school administrators, not individual teachers, have sole authority. Thus, a North Carolina teacher disciplined over her selection of a play that included themes of homosexuality and unwed pregnancy could not challenge the school board’s decision as a violation of the First Amendment.

The case, Boring v. Buncombe County Board of Education, deeply split the Fourth Circuit U.S. Court of Appeals (7-6), provoking a strong dissenting opinion by Judge Diana Gribbon Motz, who wrote:

By holding that public school administrators can constitutionally discipline a teacher for in-class speech without demonstrating, or even articulating, some legitimate pedagogical concern related to that discipline, the majority extinguishes First Amendment rights in an arena where the Supreme Court has directed they should be brought ‘vividly into operation.’

As pointed out by Judge Motz, it does not appear that the slender seven-judge majority found the teacher, Margaret Boring, to be entitled even to the rather minimal level of free-speech protection left standing after Hazelwood. Since her choice of curriculum was regarded as an official act in her employee capacity, the decision received no First Amendment protection at all. Consequently, if a school’s decision to censor a theatrical performance is to be challenged, the challenge must come from the students whose speech is silenced, not from their faculty adviser.

The SPLC’s “Cure Hazelwood“ page gathers examples of the aggressive use of Hazelwood censorship authority to stifle discussion of sensitive subjects that have a legitimate place in the educational day. If your voice is silenced on the scholastic stage, make it heard as part of the Hazelwood reform campaign. As the students who triumphed over censorship in Trumbull can attest, speaking out and raising public awareness is a force as unstoppable as the Holy Hand Grenade of Antioch.

Tagged: South Williamsport Junior/Senior High

University police should release the names of officers involved in controversial pepper-spraying, California Supreme Court says

Officials at the University of California, Davis should release the names of all the campus police officers involved in the pepper-spraying of student protesters in 2011, the California Supreme Court affirmed this week.

The court’s ruling dismisses an effort by a university police union to overturn a June 2013 ruling by a state appellate court, which said the state’s public records law allows the public to obtain the names of the officers involved in the incident, the Los Angeles Times reported. In a report commissioned by the university that criticized how campus police and administrators handled the incident, the officers’ identities had been redacted.

In response, The Sacramento Bee and the Los Angeles Times filed a lawsuit in 2012 to receive access to the withheld names.

In 2011, about three dozen students took part in an Occupy protest where they remained on the lawn of the main quad of campus to display their displeasure with economic inequality in the area. When the protesters refused to move after police officers asked them to do so, officers pepper-sprayed the student protesters in the eyes.

When video footage of the interaction went viral, the information of the main police officer, Lt. John Pike, was released by activist hacker group Anonymous, according to the International Business Times.

While the Supreme Court did not hear the police union’s appeal, a full opinion issued Wednesday cites a similar case it ruled on earlier this year, where the court determined that police agencies must reveal the names of officers involved in on-duty shootings unless disclosure would pose a safety threat.

The news follows another incident of perceived police brutality in Ferguson, Missouri, where Ferguson police officer Darren Wilson shot and killed Michael Brown, an unarmed black 18-year-old. In that case, Wilson was named days after public outcry. Although some police departments do release officers’ names and details in use-of-force investigations, there is no consensus, the St. Louis Post-Dispatch reported.

Tagged: University of California Davis

Want civically aware adults? Start with civically active young readers

What does a well-rounded civic education look like? One California group has an answer that looks remarkably like the curriculum for high school journalism.

The California Task Force for K-12 Civic Learning, in a report issued Aug. 6 at the conclusion of a year-long study, declared a "crisis" in civic knowledge and participation, as measured by indicators that include declining interest in news and current events.

The 20-member task force of educators and community leaders traced the deficit to the devaluation of civics as an educational "afterthought" and to uninteresting curriculum that puts memorization of dry historical trivia ahead of mastering the skills of active participation.

What can be done? One recommendation -- getting students involved in school governance and decisionmaking to create a culture that "embodies democratic values and principles" -- is what journalism educators have preached for decades in urging schools to be more receptive to student criticism on the editorial page. Students will participate eagerly if their input is respected and valued. If their opinions are suppressed -- and California has outstanding protections on paper that are honored unevenly in practice -- the "lesson" is more enduring than any classroom lecture: Engaging with government is a waste of time because people in power don't listen.

While students learn "how a bill becomes a law" abstractions in a traditional civics course -- and those are important abstractions, to be sure -- they actually engage with state and local government only once during the school day: In the newsroom. It's there that students apply textbook concepts by researching -- and then explaining to others -- how a school board reaches a decision or a court adjudicates a lawsuit.

"Mock" and "model" civic programs are terrific, just like driver's ed is terrific preparation for driving. But nothing replaces actually getting behind the wheel, and journalism is where students test-drive their democracy -- if adult authority figures will relax and lend them the keys.

Read the California civics task force's report and recommendations here.

Tagged: civic education

Defending your digital turf: What to do if a media outlet broadcasts your video without permission

The drop-and-drag availability of online material makes it oh-so-tempting to "borrow" a photo, video or article from the Web -- even for professional media outlets that ought to be especially protective of copyright.

Idaho college journalist Farzan Faramarzi understandably felt violated when, without asking, a local FOX affiliate rebroadcast a clip from his YouTube-posted video. Faramarzi was the only journalist on the spot when a well-known campus preacher visiting Boise State took a swing at a student who'd approached him by surprise (the student claimed he just wanted a hug). The video doesn't show contact being made, and police decided not to charge the preacher and declared him welcome to return to campus.

The event was newsworthy enough that KIVI-TV made an excerpt from Faramarzi's video the centerpiece of a report on the evening news and on the station's website.

Faramarzi protested. A representative of the station and its parent company -- insisting that use of the clip didn't infringe the student's copyright -- declined to pull the video but did give Faramarzi recognition on the web version.

Was KIVI-TV's use of the clip defensible as a "fair use?"

The honest but unhelpful answer is, "It depends." Fair use is always a judgment call that requires balancing multiple considerations.

That the station used a very small percentage of the original video isn't decisive. Copyright law recognizes that you can infringe the owner's rights if you re-use the "heart and soul" that gives the original creation its value. In this case, the altercation IS the heart and soul of Faramarzi's work.

But copyright law also recognizes a "fair use" defense for republishing part (or at times, even all) of someone else's work when commenting on that work -- e.g., because the work has itself become newsworthy.

(For instance, when a graphic artist creates and sells a poster based on a valuable AP news photograph, that might be copyright infringement. But when a news organization writes about the photo and the poster, reproducing their images to accompany the story is a classic fair use.)

The station's best argument for fair use is that the video actually became part of the story when, according to the KIVI report, Boise State police reviewed it in making their decision to readmit the preacher to campus. If the video itself is newsworthy for that reason, then the station has an arguable fair use defense.

One thing that doesn't help the station at all is crediting the original source. Copyright law doesn't concern itself with credit. Credit is a matter of ethics and professionalism (and in an academic setting, potentially one of plagiarism). But if the re-use of someone else's property is illegal, federal law doesn't care how -- or whether -- it's credited.

What could KIVI-TV have done better?

While credit doesn't neutralize copyright infringement, it's the courteous thing to do, especially if it's apparent that the creator of the original work isn't just a hobbyist (Faramarzi maintains an active YouTube channel with more than 115 entries as a showcase for his career portfolio of videography). Asking for consent surprisingly often will result in a "yes."

What can I do if I think my videos have been "pirated" by a competitor?

First, figure out what you want. Do you want to be paid for the work? Would a credit be sufficient? Or do you want the video taken down entirely?

A phone call to the infringing site, especially if it is an established media outlet that's easily reachable, is the polite first step and at times results in a complete resolution. But what if the infringer won't play nicely?

If you'd be satisfied with a freelancer fee for your "involuntary contribution," consider simply submitting an invoice for a reasonable market rate along with a cover letter to this effect: "I'm glad you like my videos. I charge a ____ licensing fee per clip, with a 25 percent add-on for customers who don't get consent in advance. Please remit _____ within 30 days."

If you're convinced that the republication is an unlawful infringement (this would be a good time to consult legal counsel licensed in your state), federal law recognizes a right to demand that the infringing content be pulled down. The Digital Millennium Copyright Act ("DMCA") sets forth a specific process for notifying the website's host that a page contains infringing material.  This article explains the process, but in short, it requires a sworn statement signed by the copyright-holder identifying the infringing content and where it can be found online.

As a cautionary note, DMCA notices should never be sent without careful research and consideration. Knowingly misstating that a Web page contains infringing material can result in sanctions including paying the website operator's legal fees for defending against an unfounded takedown demand.

Tagged: copyright

Nightly purge of Pennsylvania Department of Education emails condemned

Staff members of the Pennsylvania Department of Education "delete and cleanse" their emails each night, a policy which the state's Office of Open Records and the Pennsylvania Newspaper Association have condemned.

Acting state Education Secretary Carolyn Dumaresq told ABC27 WHTM in Harrisburg about the policy in a story about former Education Secretary Ronald Tomalis, according to Pittsburgh's Tomalis is still earning six figures although many are questioning how actively he's working. Public records show that Tomalis only sent five emails and one phone call a day since July 2013, which Dumaresq defended, in turn revealing the policy.

“I check mine at the end of each evening. I clear my emails out, as does Ron, and we only save those emails into files to remember a decision that was made,” Dumaresq said in the interview. “So there is no email trail for a lot of folks."

Under the state's Right to Know Law, government employees must treat emails the same way they'd treat paper records. The time an agency must keep their records varies by state, agency and individual record.

Terry Mutchler, the director of the Office of Open Records, told the policy didn't pass a "gut check" for proper email retention policy. (For an example, see this chart from the federal Environmental Protection Agency).

In Pennsylvania, the Historical and Museum Commission is in charge of retention schedules. According to its policies (click on "Administrative Records" for a more detailed guide), "routine correspondence concerning day-to-day office administration and activities" should be kept for three years. Executive level correspondence should be kept for two years, then transferred to the state archives.

Finding a straight answer on how long to keep email records can be difficult. Even at the federal EPA, which provides among the clearest directives for how to treat email records, the retention schedules for emails range from 30 days to permanently.

Tagged: access to public records, newsgathering