The Student Press Law Center blog


Supreme Court declines to hear First Amendment challenge over school’s American flag clothing ban



The U.S. Supreme Court will not hear a First Amendment suit arguing administrators at a California high school violated students’ free speech rights when they banned clothes that featured the American flag on Cinco de Mayo.

A petition to the nation’s highest court followed a February 2014 ruling from three judges on the Ninth Circuit U.S. Court of Appeals in California, who found Live Oak High School officials did not violate the First Amendment when they ordered students to remove American flag T-shirts during a Cinco de Mayo celebration in 2010.

School officials cited safety concerns when they asked five students to remove the shirts or turn them inside out, pointing to a verbal spat after students waved an American flag and chanted “U-S-A” during the school’s Cinco de Mayo festivities in 2009.

“This is a tremendous blow to the free speech of students everywhere,” Erin Mersino, a Thomas More Law Center attorney, said in a news release on Monday. “The Court, by not taking the case, has enabled the voice of bullies to trump the voice of students who simply wish to express passive, peaceful speech.”

The Thomas More Law Center represented three Live Oak High School students who argued the ban violated their First Amendment rights.

In its ruling, the Ninth Circuit cited the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, which permits schools to restrict students’ speech if it could cause a “material and substantial” disruption at school. Previous incidents of racial tension at the school, the judges ruled, “made it reasonable for schools to proceed as though the threat of a potentially violent disturbance was real.”

In a friend-of-the-court brief to the Supreme Court, however, John and Mary Beth Tinker, plaintiffs in the landmark student speech case, said the Ninth Circuit judges got it wrong, arguing that schools shouldn’t be allowed to ban provocative speech because people who disagree might try to silence the speaker with violence.

“There is nothing unusual about speech leading to a risk of hostility or even violence,” according to the brief. “Speech on the most important matters facing America routinely involves some risk of such a reaction.”

The Supreme Court’s refusal to hear the case does not necessarily mean it agrees with the outcome, but it leaves the Ninth Circuit ruling, Dariano v. Morgan Hill Unified School District, as binding precedent for the nine states covered by the California-based circuit.

Tagged: American flag, California, Dariano v. Morgan Hill Unified School District, Live Oak High School, news, recent-news, Thomas More Law Center, Tinker v. Des Moines Independent Community School District, U.S. Supreme Court

Illinois AG: FERPA does not excuse colleges from turning over email directories



Colleges can't hide behind the federal FERPA privacy law to withhold access to the campus email directory, says the state attorney general's office in Illinois.

That's good. How the AG's office got to that conclusion is even better.

A reporter with a suburban Chicago news outlet, Edgar County Watchdogs, asked a local two-year college, the College of DuPage, to turn over a database of all college email accounts. 

The college produced the records but withheld the email addresses belonging to students, applying a rather tangled interpretation of student privacy law that requires a little explaining.

The Family Educational Rights and Privacy Act (FERPA) allows colleges to designate certain student records as "directory information," meaning that they can be revealed without needing the student's advance permission. Email addresses are among the items that, under FERPA, can be disclosed as directory information.

But the College of DuPage has chosen not to include emails as part of its bundle of directory information. So, the college argues, because COD chose not to take advantage of the opt-out from FERPA, that means the records are still protected by FERPA and can't be disclosed.

But in a March 20 determination letter, the public access counselor for Attorney General Lisa Madigan disagreed and told the college to comply fully with Kraft's request.

Illinois' Freedom of Information Act allows an agency to withhold or redact public records if the information is "specifically prohibited from disclosure" by federal law. But as Assistant Attorney General Josh Jones noted, FERPA does allow colleges to disclose email addresses -- the College of DuPage simply chose not to. And that's not a federal prohibition.

This is significant. College attorneys often take the position that, when FERPA makes it permissible to disclose a piece of information, that means the college is free to choose not to disclose it. That's not how it works.

Once Congress and the U.S. Department of Education say "we won't stop you from disclosing," then there is no longer any federal prohibition against disclosure. And that means the college can no longer rely on the "federal prohibition" exemption in public-records law.

It gets better. The determination letter casts doubt on whether FERPA can ever be interpreted as a federal prohibition against disclosure, because it doesn't actually say "don't disclose." It says, if your college has a policy or practice of disclosing, then you might be financially penalized (although no college ever has been). Jones' letter concluded: "[E]ducational institutions like the College may opt not to abide by the requirements of FERPA."

Attorneys for colleges have argued for years that FERPA precludes honoring even one request for public records, although that's hardly the "policy" or "practice" that Congress could have been intended to outlaw. Madigan's office has it right -- and that common-sense interpretation of FERPA ought to be part of any appeal of a privacy-based FOIA denial in Illinois from now on.

Tagged: Attorney General Lisa Madigan, campus directory, College of DuPage, FERPA, news, open-records, public records, recent-news

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