The Student Press Law Center blog

The week in media

Here's (some of) what happened this past week in media news...


This week in New Voices:

Legislators in Missouri and Washington state are, once again, seeking to join the “I-Beat-Hazelwood” club by proposing New Voices legislation in their states. Missouri’s Cronkite New Voices Act, tweaked and revamped from an unsuccessful run in 2016, looks to rid the state of Hazelwood’s burden by incorporating elements from an unlikely source: one-time Civil War rival Kansas. In Washington State, proponents of the New Voices of Washington bill hope to take advantage of a longer session to get the legislation signed into law. Last year, a short session squeezed the Act out of contention.

Nieman Lab: When it comes to legal issues, journalism schools leave students unprepared, a new study argues

The Nieman Lab reports on a study conducted by Columbia fellow Jeff John Roberts, arguing that journalism schools’ media law courses are becoming obsolete in the face of high-profile lawsuits against digital outlets, like those against Gawker and Mother Jones. Roberts says topics like encryption, social media and the “right to be forgotten” should become a main component of media law curricula.


CJR: Trump berated a CNN reporter, and fellow journalists missed an opportunity

President-elect Donald Trump’s clash with CNN Washington correspondent Jim Acosta made big waves in the journalism community. The Columbia Journalism Review’s Pete Vernon argues that reporters covering the Presidency should put aside their competition for the story and prepare to act in solidarity when it comes to covering an administration that shows “a willingness to retaliate, bully, and ban journalists whose questions he doesn’t want to answer.”

Looking Ahead

The Washington Post: Cellphone carriers are bracing for massive data usage during the inauguration

Student journalists planning out a trip to the District for Trump’s inauguration need not worry about the availability of cell service, the Washington Post says. AT&T and Verizon have placed big, thick, ugly temporary cell towers around the National Mall. They’re designed to increase mobile capacity by more than 400 percent. This is in stark contrast to Barack Obama’s inauguration in 2009, when only a third of Americans had a smartphone. 

New York Daily News: Women’s March on Washington could well outdraw the inauguration of President-elect Trump

Anyone in town covering inauguration might want to stick around for the next day, with 200,000 indicating their intent to participate in the Women’s March on Washington. The New York Daily News reports 1,200 bus parking permits for the Women’s March as opposed to 200 for the Inauguration. While the numbers don’t necessarily guarantee a larger turnout, it’s a situation worth watching as out-of-town journalists make their travel plans.

Tagged: news, recent-news

In wanting to expel a student responsible for a shooting scare, Philadelphia school district misses an opportunity to foster conversation

When you’re 15, you probably like to make jokes. Sometimes (or most of the time, if you’re me), your jokes are bad. A Philadelphia high school student might be paying for a “joke” gone awry – with expulsion.

A 15 year-old student at the Upper Perkiomen school district in Philadelphia mashed up the Sandy Hook Promise’s viral “Evan” video and Foster the People’s 2011 hit “Pumped Up Kicks” (that jaunty pop song that’s actually about a mass shooting) on a private, “vigilante” Instagram account called” “@upperperkiscool” the night of Dec. 4, 2016.

The video came with a caption reading “See you next year, if you’re still alive.” The student says it was intended as a joke.

Two school district students, alarmed, commented on the post. One asked if it was a “legit school shooting threat.” A parent of a student emailed Robert Carpenter, the Upper Perkiomen High School principal, to inform them of the video. Another notified the Pennsylvania State Police, who called Carpenter.

Carpenter and Superintendent Alexis McGloin worked all night with law enforcement and came to the conclusion that school should be cancelled the next day, and that’s what happened. Pennsylvania State Police investigated and determined the student’s actions “did not satisfy the elements of the crime of terroristic threats.”

Now, the school has suspended, and wants to expel, the student who made the post, referred to in court documents as “A.N.”

A.N.’s parents responded to the expulsion with a lawsuit on Dec. 15, alleging the school was infringing upon A.N.’s First Amendment rights, on the basis that no direct threat was made, and that the video was created off-campus.

“The First Amendment must be read to protect the out-of-school speech of minors – even, and perhaps especially, on topics as important and fraught as mass school shootings,” the family’s lawyer, Michael Raffaele, said in an email.

On Tuesday, a judge in the United States District Court of Eastern Pennsylvania struck down a petition from the plaintiffs requesting that he be allowed to return to school. This decision could allow the school to expel A.N. The document says “denying the injunction will further the public interest in maintaining safety and preventing disruptions to the school environment.” In other words, in the opinion of the judge, the off-campus post fails the Tinker test.

The U.S. Supreme Court decided students had substantial First Amendment protection for lawful and non-disruptive speech in Tinker v. Des Moines Independent Community School District, a landmark decision that has informed student free expression cases ever since.

To be clear: mass murder isn’t a laughing matter. The “joke” was terrible, and the students and parents involved were right to be concerned over it. However, the decision to expel A.N. sets a worrying precedent for cases like this in the future.

Court documents show A.N. has never landed in trouble at the school before and deleted the post two hours after its creation. It was a dumb take on a meme (mocking the “Evan” video by mashing it up with footage of other things) that was viewed a total of 45 times and led to students and teachers missing a whole day of school.

But the post didn’t explicitly mention Upper Perkiomen, and the video was uploaded off of school grounds. It’s hard to justify expulsion over a joke that got out of hand, from a student with no history of violence and, as school authorities satisfied themselves, no actual plan to do harm.

In immediately switching to the nuclear option, Upper Perkiomen is delegitimizing actions it might want to take in the future. If A.N. gets the strongest disciplinary action available, then how would the school district punish someone who made a real threat? Someone who actually brings a Ruger to school?

Someone did bring a Ruger to Upper Perkiomen High School in 1993. A student paid for it with his life. The district is right to take anything that might be a semblance of a threat seriously by investigating it and determining whether a “true threat” exists (“true threats” being a recognized category of constitutionally unprotected speech).

However, bringing the expulsion hammer down on a student’s head misses the opportunity for a constructive, inclusive conversation about how students can handle these topics. Do videos like “Evan” do their intended job of starting these conversations? What perspective can current students – not administrators or experts – bring to this issue?

To begin solving the scourge of mass shootings requires first having the ability to talk about it, and that can’t happen if administrations are expelling anyone who chooses to open a dialogue, even if the attempt is clumsy and ill-informed.

Raffaele says the family is considering their options, but is confident an appeal would be thoroughly considered by the Third Circuit U.S. Court of Appeals. In his words:
“Punishing Plaintiff thus does not advance or protect students' safety. Nor, as a general matter, does punishing speech about difficult topics.”

Tagged: blog, Blogroll, lawsuit, Pennsylvania, recent-news, social media

Should students be warned when a classmate is facing criminal charges?

A Chicago college is facing criticism for failing to notify students that one of their classmates was awaiting trial on rape charges in another state. The college's response: We didn't know, either.

It may come as a surprise that there is no widely accepted protocol for whether K-12 schools or colleges must be notified that one of their students has been charged with a serious crime.

Police agencies commonly do inform college authorities if a case involves high-profile athletes, as recently occurred when University of Minnesota football players were accused of a gang-rape at an off-campus apartment. But that is a matter of police procedure, not a legal requirement.

Last spring, students at Kansas' Lawrence High School spotlighted this issue for their news publication, Budget Online, after the campus belatedly became aware that one student had a criminal conviction for lewd and lascivious behavior and that another transferred into the school while awaiting trial on rape charges. One of the students was subsequently charged with sexual misconduct with a minor, which brought the previous conviction to light.

As reporter Zia Kelly's story explained, Kansas is among the many states imposing no duty on law enforcement agencies to notify schools when students are arrested. And schools are under no obligation even to consult publicly available databases such as sex-offender registries -- and, at least in Lawrence, do not make a routine practice of doing so.

A handful of states do, in fact, obligate police or prosecutors to inform K-12 schools when one of their students is facing serious criminal charges. 

For example, Texas requires the head of every law enforcement agency to alert the school principal verbally within 24 hours when student is charged with a felony or a violent misdemeanor offense, and the principal must then notify all instructional personnel; the law also requires prosecutors to inform schools when criminal cases are resolved, and probation supervisors to provide notice when a probationer transfers into the school. Analogous laws are on the books in ConnecticutMaryland and North Carolina.

But no comparable laws exist for postsecondary institutions -- hence the current uproar at Loyola University-Chicago. 

Loyola authorities say they learned only through the news media that a third-year student had been arrested and charged with rape during his senior year of high school in Georgia, where he recently accepted a 10-year prison sentence under a guilty plea.

Loyola has not addressed whether the student, Benjamin Holm, violated any duty to self-disclose the arrest. At some colleges, students are required to report if they are charged with or convicted of a crime, under threat of disciplinary sanctions if they're caught failing to disclose. (Holm's case is a bit different, since he was accepted, but not yet enrolled, at the time of his arrest.) 

A federal statute, the Campus Sex Crimes Prevention Act, does require students who are placed on a sex-offender registry to notify their colleges, but that applies only after an adjudication of guilt and not while charges are pending.

Whether colleges should hold students' criminal records against them is an evolving issue with no universally accepted answer. 

If a college is found to have accepted, or retained, a student with a history of violent behavior and that person re-offends, the public will demand to know why the college exposed the campus to a known risk. (Of note, the U.S. Department of Education has advised that it is not a violation of federal privacy law to notify the campus community of publicly available information that a registered sex offender is attending the school.)

But a college education can redirect a wayward path and reduce the risk of resuming a life of crime -- which is why an increasing number of jurisdictions, including New York's public university system, no longer ask about criminal convictions as part of the application process.

This is a story worth exploring for student journalists everywhere: Do educational institutions take steps, such as consulting publicly available sex-offender registries, to learn whether their students have committed crimes? Should they? Are students obligated to acknowledge their arrests to campus authorities -- and what happens if they don't? And what about past offenses as opposed to current ones? Do students have a right to know if one of their classmates has a violent criminal history, and should institutions even be in the business of checking criminal backgrounds at all -- or, like the State University of New York system, should they "ban the box?" 

Tagged: ban the box, campus crime, Loyola University Chicago, news, recent-news

A (rare) faithful reading of FERPA: Court says federal privacy law doesn't penalize one-time release of records

A college student is threatened with expulsion after being told multiple witnesses heard him make disturbing remarks about "shooting up" the campus. 

Before the disciplinary hearing where he'll have the chance to defend himself, the student files a public-records request for the campus police department's closed investigative file.

The university responds that the file is confidential, because it contains the names of student witnesses -- and those names, the university claims, are protected against disclosure by federal privacy law.

Wrong, says a Connecticut judge, whose Nov. 16 ruling finds that the Family Educational Rights and Privacy Act should not have foreclosed Austin Haughwout's access to police records needed to prepare for his hearing.

Haughwout, 19, sued administrators of Central Connecticut State University alleging that the college wrongfully expelled him in October 2015. 

Initially, he and his counsel believed the expulsion was motivated by a professor's complaint, after Haughwart was featured in news articles as the inventor of a gun-equipped drone aircraft. As it turns out, the university didn't even mention that complaint as part of the disciplinary case. 

Instead, the case focused on statements by four students (related to the disciplinary board by a CCSU administrator who interviewed them) that Haughwout frequently talked about guns, at times making people so uncomfortable they avoided him. One witness was quoted as saying Haughwout identified a particular classmate as his "number one target" to be shot, and that he wondered aloud about how many bullets it would take to "shoot up" the campus. (More about that free-speech issue later...)

Campus police determined that Haughwout's remarks amounted to criminal threat speech and applied for an arrest warrant, but the state's attorney declined to authorize the arrest and closed the case without prosecution. Nevertheless, CCSU brought Haughwout up on student conduct charges and expelled him.

Haughwout alleged that the October 2015 disciplinary hearing was so unfair that it violated his right to due process, in part because he was denied advance access to the statements of witnesses incriminating him and thus unable to prepare a defense.

CCSU countered that Haughwout was not entitled to see campus police reports or the warrant application because of FERPA, a privacy statute that carries penalties for educational institutions that maintain a "policy or practice" of disclosing students' "education records."

Superior Court Judge Joseph M. Shortall was unconvinced by the privacy argument.  

In his ruling, the judge pointed out that FERPA expressly excludes records "maintained by a law enforcement unit of the educational institution that were created by the law enforcement unit for the purpose of law enforcement." So the records may never have been subject to FERPA at all.

Even if CCSU was correct that records can become FERPA-protected when they pass from law enforcement to campus disciplinary authorities -- a legal question that remains unsettled -- the judge said FERPA cannot be understood as an absolute proscription against disclosure when common sense necessitates it:

The court … does not read FERPA as prohibiting any such disclosure at any time for any purpose. What it punishes, by the withholding of federal funds, is a 'policy or practice' of permitting disclosure of educational records. Disclosure on isolated occasions as a means of providing an accused student with an extra measure of protection from unfounded charges would not seem to be prohibited by the plain language of the Act.

This is a crucial point for public-records requesters who habitually face "the FERPA excuse" whenever a public school or college is asked for records that would be inconvenient or embarrassing to produce. FERPA should be understood as it is written -- to penalize the habitual failure to maintain the security of records -- and not as college lawyers insist on rewriting it, into a prohibition against fulfilling one-time requests for records that state law makes public. 

Judge Shortall's interpretation is the only way FERPA's penalty structure can possibly make sense. 

The penalty for being declared a FERPA violator is total revocation of eligibility to receive federal education funding. CCSU receives $16.2 million a year, nearly 10 percent of its annual operating budget, from federal grants. If college lawyers are correct that disclosing one record on one occasion to one recipient constitutes a FERPA violation, then the penalty is more than $16 million. 

That is an exponentially higher punishment than any other violation of federal education standards. For instance, the fine for submitting falsified crime data to the Department of Education in violation of the Jeanne Clery Act is no more than $35,000. 

So if college lawyers are to be believed, the penalty for granting a journalist's request to inspect a public document in accordance with state law is 450 times greater than the penalty for lying about whether a rape occurred on campus.

Obviously, this can't be how FERPA works.

Nevertheless, college and school attorneys have at times convinced judges to read the words "policy and practice" out of the statute, rendering it nonsensically broad. This past fall, the Montana Supreme Court decided that FERPA precluded disclosure of files sought by author Jon Krakauer that would have shed light on why Montana's state education commissioner overturned a campus disciplinary board's finding that a prominent college athlete committed sexual assault. The ruling required indulging the hallucination that the U.S. Department of Education would de-fund a state's entire university system to punish the single release of a record that state law undeniably made public. 

The Haughwout ruling is just a state trial court's opinion and thus carries no binding weight on future courts, but every commonsense interpretation of FERPA is further evidence that the statute needs clarifying to reconcile conflicting interpretations that needlessly impede public access.

The judge's resolution of the FERPA issue did not, as it turns out, amount to any substantive relief for Haughwout. 

The court dismissed his due process claim, finding that there is no constitutional entitlement to be given the names of adverse witnesses in advance of a campus disciplinary hearing.

And the judge tossed out Haughwout's free-speech claim under the Connecticut state constitution, categorizing the gun statements as constitutionally unprotected "true threats."

Cases involving statements about violence often become a question of context. But not this time -- and that made the case more challenging to resolve.

CCSU administrators claimed two students said they were unsettled enough by Haughwout's repeated references to shooting up the campus that they'd avoid the student union building to steer clear of him. Haughwout didn't testify, "I made those remarks, but here's the context that proves they were understood to be jokes." He claimed he never said those words at all. So the disciplinary board was left with two irreconcilable extremes -- either Haughwout made multiple comments about wanting to shoot up the campus in a way that disturbed listeners, or he didn't make them at all.

That was enough for the judge to conclude that the disciplinary board could have credibly deferred to the accusers' accounts, so that the statements could be punishable as threats. 

This is a highly aggressive application of the "true threat" standard, which the Supreme Court has defined as "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." And it's interesting that the judge decided the case on that point. 

Colleges often argue that they need not afford students the "real-world" level of free-speech protection, and that they can sanction expression that would be beyond the government's punitive authority outside the campus gate. Judge Shortall implicitly found that the same constitutional protections apply on and off campus -- but that CCSU surmounted that burden by establishing that Haughwout made "true" threats. 

Courts are deferential to campus disciplinary authorities whenever a hint of violence is involved, so an appeal would face challenging odds. But the peculiarity of the disciplinary board's procedure bears close judicial scrutiny. Haughwout was expelled solely on the basis of double- and even triple-hearsay testimony of CCSU's director of student conduct, serving as both investigator and accuser, which would be inadmissible in a court of law. Where the decisive issue is whether listeners genuinely understood what they heard as threatening or did not, the first-hand testimony of those listeners -- and the ability to cross-examine them -- seems essential to the fundamentally fair hearing that due process requires.

The case is Haughwout v. Tordenti, 2016 Conn. Super. LEXIS 2886 (Conn. Super. Nov. 16, 2016).

Tagged: Central Connecticut State University, FERPA, Haughwout v. Tordenti, news, recent-news, student privacy

Unhappy trails for a once-feisty Wyoming watchdog that's been neutered

Farewell columns from departing editors are a staple of the semester's end. But the sign-off at Northwest College's newspaper came with a mournful ring of finality.

In a series of columns in the Northwest Trail's Dec. 14 edition, former editors describe the life-changing opportunities they received working on a feisty fortnightly paper that, regrettably, is expected to fold with the cancellation of Northwest's journalism course sequence.

Former managing editor Abbe Breeding wrote:

I am very disheartened to see the “Trail” go, and even more sad to think that the opportunity I experienced will never inspire another individuals in their lives. ... The absence of the “Trail” will put a large hole in the curriculum of Northwest College, one that they will not easily replicate.

Northwest College's president insists that the decision to pull the plug on journalism was a purely financial one motivated by declining enrollment. Without a budget to pay contributors, the newspaper was wholly dependent on students in laboratory classes generating content to fill the Trail's pages. With neither pay nor academic credit as incentive, there will be no critical mass of volunteers able to sustain the paper into 2017.

Although two journalism advisers over the last six years have reported experiencing administrative retribution -- and one of them, Ron Feemster, was fired under suspicious circumstances -- Trail columnist Jeff Victor chose the high road in his valedictory, declining to assign a retaliatory motive:

Of course, there is no conspiracy to target the newspaper and the school’s budgetary concerns certainly call for hard decisions. But how heartbroken was the administration to nix the journalism program and consequently its sister the Trail? I do not think it is too much to suggest that some offices in [the administration building] are gleeful about the prospect of never having to avoid a student journalist’s calls and emails and relieved they no longer have to weasel around the truth during an interview.

Like all student publications, particularly those at turnover-plagued junior colleges, the Trail went through cycles in quality and participation. Still, the Trail produced some superb journalism, including breaking a national news story about how Northwest's former president used college resources to advance a personal religious agenda. Some remarkably talented journalists learned their craft in its newsroom, including the winner of the SPLC's 2010 College Press Freedom Award, Mark Keierleber (who later came to work for the SPLC) and a gutsy staff that responded to their adviser's discharge by redoubling the aggressiveness of their reporting.

The Trail, its adviser Rob Breeding wrote, "died with dignity." It continued fulfilling the public-service duties of a community news source even after President Stefani Hicswa and her board signed the program's death warrant.  

While it's possible that journalism fell victim to nothing more than numbers, it's also true that Northwest made no special effort to salvage journalism in recognition of its unique role as a service provider to the entire campus community. When a college kills off a newspaper, it's not just depriving the participants of a training opportunity; it's disconnecting the information lifeline that enables citizens to participate effectively in campus decision-making.

If visits to the infirmary dipped, or if fewer people started taking meals in the dining halls, or if calls for assistance to the police department went down, it's doubtful that a college's response would be to declare the programs "too expensive" and discontinue health, food or police services. Because those services are recognized as foundational to the well-being of the community. News coverage belongs on that list. As stated in a recent report disseminated by the American Association of University Professors ("Threats to the Independence of Student Media"):

Candid journalism that discusses students’ dissatisfaction with the perceived shortcomings of their institutions can be uncomfortable for campus authorities. Nevertheless, this journalism fulfills a healthful civic function. 

On any campus, but most especially on a geographically remote campus where people may be isolated from their families, the campus newsroom offers a haven where the displaced can build a home. One German student, reflecting on the newspaper's imminent closure, reminisced about the homemade pasta, pancakes and soup that his adviser served to sustain the crew during late nights on deadline.

The magnitude of the loss is already being felt the Northwest community. One supporter asked the question that could be posed at many campuses today: "What kind of college is it that silences its media under the guise of cutting costs?"

Unrestrained by the check of an independent journalistic voice, Northwest is about to show the people of Powell what kind of college it is. As Victor told a community that is soon to find itself without its most reliable watchdog: 

Free now from the oversight imposed on it by fledgling journalists, the administration can be as underhanded or deceitful as it pleases. It can also be as open and honest as it wants. But now there is nobody to check for you, so you will never know.

Tagged: college censorship, news, Northwest College, Northwest Trail, recent-news

Court punts Kansas social-media expulsion case, finds no consensus on college students' online rights

Where does a public university's authority to regulate what students say on social media during off-campus personal time begin and end?

Nobody is certain, says a U.S. district judge -- and that uncertainty is enough to spare campus disciplinarians from paying money damages for expelling a student for what he posted on Twitter, even if the decision was mistaken.

In a ruling handed down Thursday, U.S. District Judge Julie A. Robinson threw out constitutional claims brought by a University of Kansas student, Navid Yeasin, who was expelled in November 2013 because he posted insulting and profane remarks about an unnamed ex-girlfriend on his personal Twitter account.

The former girlfriend, a KU classmate, obtained a no-contact order after a frightening confrontation in which Yeasin took away her phone and refused to let her out of his moving car. After the university ordered Yeasin to stay away from the woman, he posted a series of comments on Twitter about dating a "psycho" and a "crazy bitch" that were perceived as being about her. When the classmate learned of the Twitter posts and reported them to KU, the university expelled Yeasin for violating the stay-away order.

Yeasin sued, alleging that the university overstepped the First Amendment by punishing speech that was not threatening or otherwise constitutionally unprotected. The university responded that -- even when speech takes place off campus -- students' constitutional rights are diminished in the educational setting, where institutions have a legal duty to maintain an environment free from harassment. 

In her Dec. 1 ruling, the judge refused to afford Yeasin the full benefit of "real world" First Amendment rights, which would have required the university to overcome a heavy presumption that any content-based punishment was unconstitutional. 

Rather, the judge found that colleges have authority over student speech comparable to that recognized in the K-12 school setting in the Supreme Court's benchmark Tinker case, which permits punishment for speech that substantially disrupts school or invades the rights of others.

But that is as deep into the constitutional analysis as Judge Robinson was prepared to wade. 

Regardless of whether Yeasin's remarks were constitutionally protected -- and whether the context of off-campus posts to a personal social media account made a decisive difference in the college's level of authority -- the judge said Yeasin could receive no remedy, because government officials have immunity for the consequences of their decisions if the constitutionality of the decision is unclear. (This legal doctrine, "qualified immunity," allows government employees to, in effect, guess wrong on the legality of their behavior if the behavior is not clearly unlawful at the time.)

The judge wrote:

The law in this area is constantly developing, and when Plaintiff was expelled in 2013, it was even more unclear what standards applied. This case can hardly be categorized as a clear case of a content-based restriction in violation of the First Amendment. Most importantly, circuit courts have come to conflicting conclusions on whether a school can regulate off-campus, online student speech where such speech could foreseeably cause a material disruption to the administration of the school.

Courts everywhere continue struggling to determine where educational institutions' authority over their students' social-media lives begins and ends. A depleted U.S. Supreme Court declined an opportunity to take up the issue earlier this year, and most lower-court rulings have involved K-12 students engaging in speech perceived as imminently threatening violence. 

Just last month, a federal appeals court in Minnesota -- in a ruling repeatedly cited in the Yeasin opinion -- decided that a community college did not violate the Constitution by kicking out a nursing student for angry remarks on his Facebook timeline that a classmate reported as insulting. 

This is the second time -- in two parallel lawsuits -- that a court has declined to address the core issue of whether the First Amendment permits a public university to discipline a college student for posts on off-campus social media that, outside of the college setting, would be constitutionally protected against government sanction.

In a September 2015 ruling, a Kansas appellate court overturned Yeasin's expulsion, finding that the university's disciplinary rules applied on their face only to misbehavior on campus property or at campus events. Because the rules did not give KU the authority to regulate students' personal behavior during their off-hours, making the expulsion unlawful, the court found it unnecessary to decide whether the expulsion was also unconstitutional. 

The state-court case was a direct challenge to the expulsion itself, while the federal case decided Thursday was about whether Yeasin can receive money damages from a KU vice provost, Tammara Durham, for the delay in his educational progress and other harms. 

While the Supreme Court has given courts license to resort to this easy-way-out approach to avoid difficult constitutional questions by skipping directly to the immunity decision, as Judge Robinson did, the Yeasin case exemplifies the detriments of taking that off-ramp.

Qualified immunity applies where the caselaw is unsettled. The only way to settle a legal issue is to, you know, actually decide it. Postponing a decision on the merits means that the next generation of Navid Yeasins will be stuck with the same "law-is-unclear" outcome a year -- or a decade -- from now. 

Moreover, assuming Yeasin takes the case to the Tenth Circuit U.S. Court of Appeals, it will travel without the benefit of the searching factual inquiry that can most effectively be done at the trial court. Even a favorable resolution for Yeasin could be no more than a remand with directions to decide the constitutional question on its merits, setting back resolution of the case by (at the current pace of appellate rulings) at least 18 months. In a citizen-versus-government civil-rights case, delay always favors the government -- and disadvantages not just Yeasin, but everyone else who would benefit from clear judicial guidance on a recurring free-speech issue.

Tagged: college student rights, First Amendment, First Amendment, first-amendment, news, recent-news, social media, Yeasin v. Durham

Michigan Supreme Court denies appeal in secret meetings lawsuit

The Michigan Supreme Court has declined to hear a case challenging the University of Michigan Board of Regents’ ability to hold closed-door “pre-meetings.”

The court’s denial leaves standing an appeals court ruling that gives the school’s governing body full discretion to determine what constitutes a formal meeting subject to open-meetings laws.

The Detroit Free Press sued the Board of Regents in 2014 hoping for a ruling that would require all meetings to take place in a legally mandated open forum, as opposed to the current system, which allows for decisions to be deliberated in closed door-sessions prior to the regents’ open-to-the-public gatherings.

Michigan is one of just three states with a constitution that confers nearly absolute autonomy to its public university systems. One 1999 ruling left a precedent for the appeals court to rely on.

That year’s decision in Federated Publications, Inc. v. Board and Trustees of Michigan State University held that the Michigan State University regents were permitted to hold informal meetings in the course of their search for a new university president.

The latest ruling extends that permission to all regents’ meetings, not just ones pertaining to presidential searches.

The appeals court decision on April 26 held: “Michigan’s Constitution insulates (the Board of Regents) from being required by the OMA to open its informal meetings to the public, and furthermore is empowered to define what constitutes a formal session.”

Public universities in Michigan, particularly UM, have long come under fire from newspapers and open-records advocates. The Michigan Daily, UM’s student-run newspaper, published a special report in 2011 detailing the school’s unusually high fees and long wait times for FOIA requests.

The Daily later reported that UM is out of compliance with state-mandated document retention laws, specifically pertaining to email. UM officials had previously reminded faculty and staff in a 2011 memo that internal emails pertaining to university business are indeed subject to open-record requests.

The latest ruling merely codifies what was a longstanding practice at UM. The school’s latest presidential search, which led to former Brown provost Mark Schlissel being named its 14th president, was conducted in nearly absolute secrecy. Many community members heard Schlissel’s name for the first time at the time of the official announcement.

Michigan’s seven-member supreme court was nearly united on the issue, voting 6-0 to decline hearing the case. Justice Richard Bernstein, the brother of current UM regent Mark Bernstein, did not participate.

The SPLC filed a brief in August asking the Michigan Supreme Court to hear the case.

Tagged: appeal, blog, Blogroll, lawsuit, open-meetings, recent-news, sack-secrecy, University of Michigan

Graduate student attacked by looters during Oakland protest of presidential election

In the aftermath of an unforeseen outcome in the presidential election, tens of thousands of Americans in cities and on college campuses across the country marched in protest. The New York Times reported on demonstrations in New York City, Los Angeles, Seattle, Dallas, Chicago and others.

Many protests were peaceful, some turned destructive and violent. The crowd in Oakland, California, swelled from 3,000 to an estimated 6,000 people, according to the Times.

Kyle Ludowitz, a graduate student in journalism at the University of California-Berkeley, was in downtown Oakland, on Broadway between 17th and 19th Streets, to cover the protests.

“The police had kind of cordoned off areas several blocks up and behind, but were not present on those streets when it was happening. I was photographing some of the bonfires that had been lit in the middle of the street when I heard a crash behind me, and then an alarm go off. And so I turned around and directly behind me there was a series of people taking anything they could find in the street -- rocks, bricks and such -- and they were smashing local shop windows. They were particularly attacking what I believe was a pawnshop at the time.”

Ludowitz described the individuals as wearing “black bloc” gear – all-black clothing, black backpacks, and black bandanas or ski masks to obscure their faces. Rioting, street-fighting, and destruction of private property, such as Ludowitz observed, are all black bloc tactics often employed by anarchist groups.

Ludowitz started taking photos.

“So, when I was taking a photograph, I was blindsided on my left-hand side by an individual. I fell down to one knee, kind of stunned. I had been in situations in the past where I had been punched while taking a photograph, so I'm familiar with the feeling of being attacked and I tried to get up instantly when I was mobbed. So, after the first attacker had struck me, I believe it was three other individuals joined in on him and I was attacked by four white men in their twenties that were masked anarchists.”

The rioters quickly got Ludowitz down on the ground, grabbing and ripping at his camera gear. Three protesters noticed the attack and attempted to intervene, but the men in black bloc continued to punch Ludowitz, snatching one of his two cameras and breaking the lens away from the body of his other camera, which was hanging around his neck, sheering away parts of the internal components.

“I mean they didn't really say much to me, the only thing they were saying at that point was ‘Just let it go, just let it go,’ and they said that two or three times and that was referring to my camera. So, that's how I specifically know they weren't just randomly attacking me for no reason. They weren't trying to get the camera to resell it or anything like that. They specifically were attacking me because I was a photojournalist and just wanted my gear destroyed because I had taken photographs.”

Once the cameras were gone, Ludowitz’s attackers relented, and the protesters who’d been trying to help got him up and walked with him to the end of the block until it was clear the rioters weren’t pursuing him. Ludowitz found a street medic who advised him to visit the ER in light of the injuries to his head.

After running into a colleague, Ludowitz heeded the medic’s advice and made his way to a hospital before filing a police report. When asked if he would press charges in the event his attackers were arrested, he said he wouldn’t – the masks precluded him from making a positive identification.

Ludowitz said this is the first time he’s been attacked in the United States, and the first time he’s been confronted by anyone other than a state entity. He’s been a professional photojournalist since 2009, covering conflicts in Israel and Palestine as will as Egypt, Turkey, and Jordan.

He’s photographed landmine victims near the Myanmar border and was in Syria most recently, photographing in Aleppo during several barrel-bombing campaigns in 2014. That was when he decided he was out of his depth and returned to pursue his master’s degree.

Ludowitz is still passionate about covering conflict and human rights abuses, and he recognizes what’s at stake for journalists and for the public. He said, “This is such a critical time in our history, and particularly within journalism.”

“This is a point where tensions are high, people are really angry, a lot can happen, but we as journalists really need to double down and dig our feet in and we need to continue to report stories, so even if it's scary, and there's a little bit of danger to be had, I think it's our duty as journalists to go out there and still just do the hard stories and tell what needs to be told.”

This story, along with the widespread instances of protests and reports of violence we’ve seen covered by high school and college journalists since the election, has given us pause. Normally, the SPLC concentrates on the legal rights of students, and we do have legal guides for students covering a variety of situations, including protests.

These guides, however, focus on the reporter’s rights when questioned or detained by law enforcement. Our concern has long been with state-exercised censorship, but arrest isn’t the only challenge student reporters face. With this in mind, we put together a short list of tips, an addendum to our legal guide.

The starting point is always to be mindful of minimizing personal risk and to appreciate that any large-crowd event -- whether it is a political protest or the celebration after a basketball championship -- has the potential of turning dangerous. It’s important for every journalist to weigh the importance of photographing or filming a specific incident with their personal safety. Sometimes, the shot isn’t worth it.

Even Ludowitz said, “Next time I ever see someone smashing windows I'm just not going to bother photographing it.”

That said, these events are happening, and students are covering them. Most, thankfully, are peaceful. So, here are some thoughts on protecting yourself and your colleagues during mass demonstrations, protests, or riots.

  • Work together: Ludowitz’s primary advice for any journalists covering protests, rallies, or any other crowd events that could potentially turn antagonistic is to report in pairs or teams. He also recognizes the irony of this, given that many newsrooms have cut staff and require reporters to be one-person writer/photographer/videographer machines.
  • Memorize key phone numbers: This tip is also addressed in our legal guide to covering protests. There, we intended the advice the event you’re arrested and need to make a call from jail. However, this, and the advice to carry quarters, holds just as true in the event that you lose your phone. Also know that any and all phones in the United States (including payphones and mobiles not on a service plan) will connect you with 911 emergency services.
  • Avoid relying solely on your phone: Because rioters may focus on a journalist’s camera, using your phone as your only camera can put you in the doubly vulnerable position of losing both your footage and your lifeline to call for help. Where possible, treat your phone as an emergency backup recording system rather than your primary image-gathering device, and invest in an internet-enabled camera that can upload photos to “cloud” storage for safekeeping.
  • Institute a check-in system: If you’re working as part of a newsroom, and have multiple reporters in the field, schedule regular texts or phone calls with editors and map out a location in advance for reporters to meet up. Editors should also monitor the social media streams of their reporters. Sudden silence might mean trouble, and their Snaps and Tweets can give you an idea where to look.
  • Don’t get cornered: When reporting, stay on the periphery of the crowd. Try not to get pinned between opposing factions, be it protesters, counter-protesters, or police. Non-lethal crowd control weapons and improvised projectiles are most likely to be fired or thrown from one group into another.
  • Insure your gear: This is the last item because, obviously, your personal safety comes first. That said, gear is expensive. It’s bad enough to endure an attack; it’s worse to also be unable to work and report afterward because you can’t afford to replace your equipment. If you have insurance, make sure the policy covers theft as well as damage.

Tagged: attack, blog, Blogroll, California, election-2016, journalist-attacked, Oakland, protest, protestors, recent-news, Trump-protests, University of California Berkeley

Indiana Supreme Court rules Notre Dame police not subject to open records law

The Notre Dame Security Police is, according to its website, “fully authorized as a police agency by the State of Indiana.”

Moreover, “Notre Dame police officers complete state mandated training requirements established for law enforcement officers and have the same legal authority as any other police officer in Indiana.”

The Indiana Supreme Court sees things differently.

This week, in an opinion written by Justice Mark S. Massa, the court affirmed a trial court’s prior ruling (and overturned an intermediate ruling by an appeals court) that NDSP is “not a law enforcement agency” and is therefore not required to comply with requests for public records like the one ESPN submitted in 2014 concerning incident reports potentially involving any of the 725 student-athletes at the university.

“We are extremely disappointed by the ruling and what it represents for public transparency,” said David R. Scott, an ESPN spokesman, in a statement.

Lawyers for ESPN and the University of Notre Dame did not immediately respond to requests for comment

The Indiana Supreme Court held that it is obligated to make a plain-text reading of Indiana’s Access to Public Records Act, which identifies departments at any “level of government” as those subject to records requests. As a private university is not a part of government, the ruling said, NDSP cannot be treated as a law enforcement agency.

Only six states explicitly provide the public access to the records of police at private institutions: Ohio, Connecticut, Georgia, North Carolina, Virginia and Texas.

ESPN asked the state supreme court to consider precedent set in Ohio, where the public-records law expressly covers agencies that exercise any function of government.

But Massa relied on Indiana law in the majority opinion, specifying that the law subjects only agencies acting as an arm of the state to the same transparency standards that might apply to a city police department.

“The (Notre Dame Security Police) Department is not exercising the power of the State; rather, the trustees are exercising power granted to it by the State to appoint police officers to protect and oversee their campus,” Massa wrote, later adding: “For the Department to be a ‘public agency,’ it must be exercising its functions pursuant to government control; mere interconnections between a public and private entity are insufficient.”

ESPN and proponents of private-university police transparency, at least, have a powerful ally: Outgoing Indiana governor and Vice President-elect Mike Pence, who in March vetoed a bill passed by the Indiana Legislature that would have codified a distinction between the transparency requirements for public police departments and ones at private universities.

Pence’s office issued the following statement then:

“Throughout my public career, I have long believed in the public’s right to know and a free and independent press. Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency. While House Enrolled Act 1022 provides for limited disclosure of records from private university police departments, it would limit the application of the Access to Public Records Act following the Court of Appeals decision and result in less disclosure, therefore I have decided to veto the bill.”

That release cited the March 15, 2016 ruling by the Court of Appeals of Indiana that identified the NDSP is a public agency subject to ARPA requirements. The state supreme court ruling effectively negated Pence’s veto.

Tagged: blog, Blogroll, ESPN, FOIA, lawsuit, Notre Dame, Notre Dame Security Police Department, recent-news

Georgia law against insulting public school officials in front of students ruled unconstitutional

In 2015, a Georgia man boarded his children’s school bus to complain that they were being bullied — by the bus driver’s grandchildren. Michael Antonio West didn’t swear or become violent, but according to a report in the Florida Times-Union, he still found himself facing criminal charges months after the fact.

The statute West was accused of violating, however, has now been ruled unconstitutional in a unanimous decision by the Georgia Supreme Court. Previously, it was illegal to “upbraid, insult or abuse a public school teacher, administrator or bus driver in the presence of a student at a school or on a bus.”

A video camera aboard the bus taped the entire encounter, which resulted in West facing charges that could have resulted in a fine of up to $500.

West’s lawyer, Jason Clark, was given permission by the trial court to appeal to the state supreme court immediately. The court ruled that while the law may have a legitimate purpose, it is overly broad in violation of the First Amendment.

Overbreadth, more than just an accurate adjective, is a legal doctrine that provides that a law is overbroad if it effectively penalizes constitutionally protected speech or actions along with the unprotected conduct it seeks to regulate.

In its decision, the Georgia Supreme Court stated:

“Further, though ostensibly seeking to prevent disruptions to education or school activities, the statute neither ties the prohibited expression to the disruption of normal school activities nor limits the prohibitions to specific, fixed times, such as when school is in session. McCall, 354 S2d at 872. Also concerning, the statute does not proscribe all speech that might be boisterous or disruptive; instead, OCGA § 20-2-1182 prohibits only that speech directed at public school officials which may be perceived as negative or unfavorable.”

The court cited Broadrick v. Oklahoma, a law upholding states’ ability to prevent employees from engaging in partisan political activities, in its decision:

“Such restrictions are only valid if they are ‘narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society,’”

It’s an important decision for free expression advocates, and the judges took great care to outline the reasons for their finding, emphasizing that they are bound to interpret the law as it was written and not only through the perceived intent of the legislators who passed it. As the Times-Union put it: “The high court unanimously found the statute overly broad because it did not forbid speech that “might be boisterous or disruptive” but instead prohibited only speech directed at public school officials that could be perceived as negative or unfavorable.”

Tagged: blog, Blogroll, court ruling, free speech, freespeech, Georgia, recent-news