University of Missouri's restrictive classroom recording policy raises constitutional flags



The University of Missouri, home to one of the nation's highest-rated journalism schools, is now also home to one scary disciplinary rule threatening the rights of student journalists.

In a December 20 memo -- funny how policies impacting students' rights always seem to be enacted while students are away on holiday -- Missouri's interim president, Stephen J. Owens, issued an "executive order" making it a punishable offense to share recordings of class discussion with anyone other than a fellow student in the course:

To foster a safe environment for learning ... the redistribution of audio or video recordings of statements or comments from the course to individuals who are not students in the course is prohibited without the express permission of the faculty member and of any students who are recorded.
"Unauthorized distribution" is a violation of university disciplinary rules, and may result in penalties against any culpable students, faculty members or staff.

According to an Associated Press article published in Inside Higher Ed, the university system revisited its policies after an April 2011 controversy that followed conservative blogger Andrew Breitbart's dissemination of classroom footage. The video portrayed two professors -- from the Kansas City and St. Louis campuses, respectively -- as pro-union extremists.

The executive order is being received with some healthy skepticism. Mizzou journalism professor and open-government expert Charles Davis told the student-staffed community newspaper, The Columbia Missourian: “From a First Amendment standpoint, I’m troubled by the policy that tell students who pay tuition to attend that university that they can’t capture video from the classroom that you’re in as students."

Missouri's policy is of special concern for student journalists -- of which MU has many -- because it provides no exemption for a student journalist who redistributes a newsworthy piece of audio or video that is recorded by a third party.

Disciplining a student journalist who took no part in the recording, but merely broadcast a leaked recording, would be constitutionally suspect.

The Supreme Court decided in 2001 that a radio host could not be held liable for airing the newsworthy contents of a cellphone call that was illegally intercepted by someone unaffiliated with the radio station. In that case, Bartnicki v. Vopper, the Court recognized a distinction between regulating the interception of a cell phone call and regulating the sharing of the recording. The latter is "pure speech," and restrictions on the content of speech rarely withstand constitutional challenge.

While 999 out of 1,000 class discussions will be non-newsworthy, that 1000th one might be very newsworthy. If a professor is using class time to engage in racist or anti-Semitic rants, there is no legitimate privacy interest outweighing the public's right to know.

More benignly, it is commonplace for big-name business, literary or political figures to address college classes. Their remarks -- including back-and-forth discussion with students -- can be legitimately newsworthy. If a public figure makes a gaffe during an exchange with students, is the public interest served by suppressing that recording if even one student in the class refuses to consent to its release?

(And please, don't get started on FERPA, the federal student privacy law. Pervasive FERPA hysteria aside, any suggestion that the statute precludes students from sharing what they see or hear in a college classroom is a non-starter. Since the only penalty for violating FERPA is withdrawal of federal education funding, FERPA regulates only the conduct of college officials, not students.)

Similarly, Missouri's policy appears insufficiently protective of student whistle-blowers. Because Owens' order did not define what it means to "distribute" a recording -- the policy bans all distribution to non-class members, not just dissemination to the general public -- a student could be found in violation of the ban if she plays a tape of her professor making racist remarks for a counselor, her parents, an attorney, or a reporter.

(Since Andrew Breitbart was not a student at the University of Missouri, he isn't subject to campus discipline. If Owens' order was meant to avert another Breitbart-type controversy, then it must mean that it is a punishable offense to share the video with even one outsider.)

While it seems inconceivable that a school would use the disciplinary process to punish or deter legitimate student complaints, experience sadly counsels otherwise. From Clark College in Oregon to Valdosta State University in Georgia to Catawba Valley Community College in North Carolina, college disciplinary sanctions have been regularly misapplied to students who simply opposed school policies or questioned school management practices.

While it is, of course, possible to manipulate classroom audio in harmful ways, students have had no difficulty accusing professors of making inappropriate remarks in class (real or exaggerated) without the aid of recordings. The existence of a recording should debunk more groundless harassment claims than it creates.

Beyond its constitutional infirmities, it is not clear that the executive order is necessary, since real-world civil remedies exist to redress the deceptive misuse of audio or video. Under Missouri law, a person who is injured by a false impression left by the selective editing of a classroom video would have a tort claim for "false light."

That is the more appropriate remedy if Missouri is concerned about protecting faculty members against manipulation of their recorded words, because it punishes the manipulator -- not the potentially innocent student who shares the footage unaware of how it will be edited.

The University of Missouri should haul in Executive Order #38 for reconsideration, and any new iteration of the rule should leave a safe space for journalists and whistleblowers to share classroom recordings without fear of reprisal.

Tagged: First Amendment, newsgathering, privacy