The Student Press Law Center blog

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

George Washington University student paper could lose office

The GW Hatchet, an independent student newspaper at George Washington University, will have to pack up its office and move into a university facility by the end of the summer -- unless it can raise $100,000.

Currently operating out of an off-campus townhouse, the newspaper is in “grave danger of financial insolvency,” according to a letter penned by The GW Hatchet’s Board of Directors on June 19. After moving into the townhouse five years ago, the newspaper has experienced sharp cuts in revenue after its advertisers began to divest. It will need to raise $100,000 to be able to remain in the townhouse for the next year or $750,000 to buy it permanently. Unable to pay the bill for rent, the paper may now have to move in with the university.

As an independent paper, the Hatchet has covered sexual assault cases and the campus Title IX office, among other important issues. The newspaper, like many student publications in the country, has also faced financial challenges.

The Hatchet’s operating budget of $500,000 has fallen to one-fourth of that amount, and the newspaper can no longer afford a full-time business manager to raise sufficient funds. In 2013, it decided to reduce its print production from two editions per week to one and increase its online presence, but those efforts to scale back costs could not compete with advertisers pulling away.

“National advertisers began a precipitous pull from college media, [and] revenue loss meant the Hatchet could no longer afford a full-time business manager, and our nascent fundraising arm was unable to raise the sheer sums required to sustain a million-dollar newsroom,” Lillianna Byington, the newspaper's editor, said in a statement. “We have sustained ourselves to this point from the generosity of everyone who has donated their time, services and money to this effort.”

The paper hopes to spare the staff from vacating its office with what the board is calling “an eleventh-hour donation” call to the Hatchet’s alumni and supporters. While some former staff members worry that the loss of the paper’s office would also mean the loss of its independence, Byington insisted that the move “would in no way jeopardize the Hatchet’s independence or affect the work” the newspaper does.

Independent newspapers at other college campuses have been facing similar issues due to declining advertising revenues. This should come as no surprise, as even many professional newspapers have been unable to guard themselves from the financial effects of a changing media market. Ad revenues dropped 15 percent in 2008 and 27 percent the next year, according to the Pew Research Center. The decline in 2015 was far less than the drop during the Great Recession, but still indicative of diminishing returns.

Several independent newspapers have turned to student fees to help sustain themselves, finding a necessary lifeline but at the cost of true independence from the institutions they’re covering. The Daily Californian, an independent paper at the University of California, Berkeley, is one such paper. After reducing its print production to six days a week and $120,000 from its budget, the Daily Cal still faced a deficit. In April 2016, it turned to the student body for help.

The newspaper launched the Ink Initiative Student Fee campaign to pass a $2.50 per semester fee for five years, with one-third benefiting campus financial aid. The initiative was a success, and the new fee will keep the paper afloat for the next five years.

The New University at UC Irvine, however, did not experience the same success with passing a ballot measure and the newspaper may shut down next summer. The New U asked students to contribute $3 per quarter in May. The effort did not secure enough votes. At UC Irvine, the New U is the only daily campus paper, according to Megan Cole, its editor-in-chief. After 52 years of printing, it has one more shot at passing a measure in the 2017-18 academic year before funds run out.

Despite the tough financial spot the New U is in, Cole said she still understands the value of independence.

“I think it’s very important for papers to be independent and for our readers to be able to hold us accountable and to know that students are the ones writing the material that goes into paper,” she said. “It gives people more confidence in the paper than if they knew we were funded by administration or student government, the very people we’re reporting on.”

Tagged: recent-news

An SPLC Tip Sheet: 5 Takeaways for Student Journalists from Rolling Stone's Libel Settlement

News that Rolling Stone has agreed to pay $1.65 million to the University of Virginia of Phi Kappa Psi to settle a defamation lawsuit over the 2014 story “A Rape On Campus” brings legal closure to a troubling episode that reminds all journalists of the importance of rigorous fact-checking and editing. 

The since-debunked article told the story of a student given the pseudonym “Jackie,” who alleged that several Phi Kappa Psi members had raped her, at the instigation of a member she trusted. The story was later retracted by Rolling Stone after many of its claims were discredited, but not before the story created a legal headache for the magazine. 

Earlier, both the magazine and author Sabrina Rubin Erdely were found liable for defaming a former UVA administrator whose conduct was a focus of the article, and paid a substantial but undisclosed settlement to avoid appeals over a $3 million jury verdict. 

An independent report by the Columbia Journalism School (the report's subtitle -- "A failure that was avoidable" -- is a giveaway) found Rolling Stone had missed many opportunities to get the story right and avoid liability. Here are five lessons, derived from the Columbia findings, that student journalists can learn from Rolling Stone’s mistakes:

(1) Give opportunity for comment. In some cases, Rolling Stone totally failed to give accused individuals and entities opportunity to comment on Jackie’s allegations. In other cases, it didn’t give individuals enough detail about Jackie’s allegations to properly comment. For example, when the magazine contacted the fraternity for comment, the reporter asked only generally about “allegations of gang rape.” The reporter did not explain that she had been in contact with Jackie, or what Jackie had specifically said about the incident. 

This opened the magazine up to legal trouble. Had the reporter asked more detailed questions of accused individuals and entities, she may have seen reason to investigate further and may have discovered that Jackie’s story was not completely true. The single best defense against a claim for defamation is to give any identifiable person accused of wrongdoing a complete opportunity to respond to the accusation, and a "complete" opportunity requires understanding the severity of the accusation.

Student journalists should always give accused subjects opportunity to comment, including opportunity to comment on specific allegations. This gives involved parties opportunity to set you straight if one source has given you incomplete or incorrect information, saving you from potential liability down the line.

(2) Be especially careful when stating or implying that a professional person is incompetent at her job or failed to do her job. When these statements prove to be false, it’s what lawyers refer to as “libel per se,” something so damaging to a person's reputation that it's assumed to be harmful without even needing to prove the harm. This is exactly the type of injury that libel laws exist to prevent. 

In one of the libel suits that came out of “A Rape on Campus,” Rolling Stone was accused of portraying then-UVA associate dean Nicole Eramo as the “chief villain.” The article had alleged that Eramo had encouraged Jackie not to report her rape, thereby making it appear that Eramo failed to do her job. Avoid similar mistakes by fact checking, giving opportunity to comment, and avoiding inflammatory language. When appropriate, focus on institutional versus individual professional failure. It’s much harder to libel an entire large institution like a university than an individual, and had the article more broadly asserted that “the university” failed to take the rape case seriously, it would have been more challenging for any individual plaintiff to establish a personal injury from the article. 

(3) Be judicious in using pseudonyms. Rolling Stone used many pseudonyms in its “A Rape on Campus” story, sometimes using them as a substitute for reaching out to individuals for comment. For example, the magazine assigned made-up names to three of Jackie’s friends after the reporter had trouble arranging contact with them through Jackie (a red flag that went ignored). The magazine also used a pseudonym for the main perpetrator of the alleged assault instead of seeking to identify the individual and reach out for comment -- or, at least, to verify details confirming that he was a real person. Had the magazine sought out these individuals, it may have uncovered inaccuracies in Jackie’s story and avoided liability. When considering using a pseudonym, think carefully about whether the situation warrants it, or if it’s being used as a bandage for lazy journalism.

(4) Don’t assume that attributing accusations gives you any protection. Rolling Stone almost exclusively relied on Jackie for its report. The reporter did not seek out additional sources because of pushback from Jackie and because she wanted to trust Jackie. This meant that Jackie’s untruths became Rolling Stone’s, setting it up for liability. It is a common rookie mistake to assume that it's legally "safe" to accuse people of wrongdoing if the accusation is attributed. It's not. Publishing an unfounded accusation without due care can be libel whether the accusation is made by the publication or by a source quoted in the publication.

Had Rolling Stone checked with additional sources, such as Jackie’s friends or the fraternity calendar (which showed, contrary to Jackie’s report, that no party had been held on the night in question), the magazine may have been able to responsibly report the truth. Especially when dealing with controversial subjects or issues that might damage individuals’ reputations, take care to find at least two sources to corroborate important details in the story -- even if you’re doing the fact-checking as an internal “gut check” with no plans to publish all of the details. (In the case of reporter Erdely, that moment of remorse struck when -- much too late -- she asked Jackie to confidentially share the name of the accused ringleader of the assault. As soon as Erdely had the name, it became evident that the story did not check out.)

(5) Discuss approaches to sensitive stories with other members of your staff. You'd assume a large national magazine like Rolling Stone would catch mistakes through multiple layers of review. That's what they assumed, too -- and that assumption led to a disastrous result. Instead of independently verifying claims, the fact-checker trusted that the editor and reporter had already done this. The editors trusted the reporter. The reporter trusted the editors. Like the fly ball that drops between the outfielders, "A Rape on Campus" became a story for which everyone was liable but no one was responsible. 

A rigorous editing process isn’t a guaranteed defense against error -- no process can make any news publication 100 percent error-free, and even seemingly trustworthy people sometimes furnish false information -- but it is a defense against losing a libel suit. The law doesn’t expect perfection, but it does demand that publishers take reasonable precautions against falsehoods. Every precaution that could’ve been followed and wasn’t puts another weight on the scale of liability. Had the Rolling Stone newsroom culture fostered healthy debate over best practices in pursuing this story, the editors may have pushed the reporter to check with more sources, and the fact-checker may have independently researched aspects of Jackie’s story and uncovered inconsistencies. Plus, having these conversations can make you a better journalist by giving you ideas and perspectives you may not have considered.

Tagged: Columbia Journalism School, libel verdicts, news, news-recent, recent-news, Rolling Stone, tip-sheet, tipsheet

New Jersey high school removes student artwork from annual show

The First Amendment continues to prove confounding for those running public high schools in New Jersey – from Wall High School to Princeton High School, and now Morristown High School, where the administration removed an art piece depicting President Trump as a pig holding an angry cat.

The satirical artwork was created by Morristown High School junior Liam Shea for the annual MHS Art & Design Show. Shea’s other art piece – depicting Trump on a missile, taking a selfie – was also removed. The theme of the show was “America Takes a Selfie.”

Shea told that MHS Principal Mark Manning “was very respectful. First he said, ‘I appreciate the risk you took, and it’s very well done … but other people weren’t too happy with this.'”

Though his artwork was removed, Shea, an aspiring video game designer, welcomes the publicity the controversy has caused.

“Me, I think it’s great,” Shea told “If it wasn’t taken down, I wouldn’t be talking to you!”

On the other hand, Shea’s mother, Kelly Shea, is disappointed the school caved to complaints.

“Whatever happened to freedom of expression? Isn't this what art is about?” she wrote in a Facebook post.

She later posted, “[Liam] holds no ill will over the decision and has the utmost respect for the principal and all his teachers at MHS. He has no intention of demanding it be returned to the display or causing any trouble for the school.”

Liam’s artwork will still be seen in the Tricorn, MHS’s award-winning literary magazine.

The support for Liam’s artwork was evident as strangers filled Kelly’s Facebook posts with requests for prints and T-shirts. Due to the demand, the print is now available on Redbubble, where people can order it on a T-shirt, phone case and other items.

Federal courts have given schools significant, but not unlimited, authority to govern the display of student expression in hallways. The walls of a school building are not regarded as a “public forums” for unrestricted expressive use, but any school regulation must pass the test of educational reasonableness and, importantly, must not discriminate based on viewpoint. Pulling down artwork because it provokes complaints from others – particularly where the artwork involves political speech, an especially protected category of expression – is on uncertain constitutional ground.

Tagged: blog, Blogroll, censored-art, New Jersey, recent-news, school censorship