Q: Do students at a public college or university have First Amendment
rights?
A: Emphatically, yes. As the United States Supreme Court said
back in 1969, "It can hardly be argued that either students or teachers
shed their constitutional right to freedom of speech or expression at the
schoolhouse gate." As agents of the government, public school officials
are prohibited by the First Amendment from censoring most student speech.
Students at a public school have the right to voice their opinions and
write about the issues that concern them just like every other American.
But because the First Amendment only prohibits government officials from
suppressing speech, it does not prevent censorship by private school officials.
Nevertheless, a state constitution or statute - or even a school policy
protecting free speech - may give private school students important free
press protections.
Q: But if school officials or student governments fund a student
publication, radio or television station, can't they censor it like any
other publisher or owner could?
A: Not at a public school. The courts have ruled that if a school
creates a student news or information medium and allows students to serve
as editors, the First Amendment drastically limits the school's ability
to censor. Among the censoring actions the courts have prohibited are confiscating
copies of publications, requiring prior review, removing objectionable material,
limiting circulation, suspending editors and withdrawing or reducing financial
support.
Q: But what about the Hazelwood decision?
A: The U.S. Supreme Court's 1988 Hazelwood decision, which gave
school officials significant power to censor some school-sponsored student
expression, only dealt with high school student publications. While a few
college officials have tried to extend Hazelwood's reach to their campus,
most courts have rejected such attempts.
Q: What about underground or independent student publications?
Are they protected from censorship, too?
A: Absolutely. Schools can establish reasonable restrictions
as to the time, place and manner of distribution, but non-school-sponsored
student publications are entitled to at least as much First Amendment protection
as school-sponsored student publications.
Q: Can a student publication be sued for libel, invasion of
privacy or copyright violations?
A: Yes, and on rare occasions they are. In such cases the individual
reporter who produced the story, the editor of the publication and the
publication itself if it is separately incorporated can always be held
liable if money damages are awarded. Court decisions suggest that a school
that does not exercise content control over the publication will not be
held liable for what students publish. In any event, most cases are dropped
or settled before they ever get to court.
Q: Can student reporters protect confidential news sources
or information when they receive a court subpoena asking that they turn
it over?
A: In most cases, yes. Some states have "shield laws" and others
have court-created reporters privileges that protect journalists from having
to reveal this kind of information. Most states have never explicitly applied
these laws to student journalists, and the language of a few of these might
not protect students. You should check your state law.
Q: How can I make use of freedom of information laws?
A: Freedom of information, or "sunshine" laws, require that
government agencies such as public schools and police departments open
to the public most of their official records and meetings. These laws,
which vary from state to state, are usually simple to use and often require
that a journalist simply make an informal request. Every newsroom should
have a copy of their state's open records and open meetings laws.
Q: Since freedom of information laws only apply to the records or
meetings of government agencies, are private school students out of luck
in getting information about their school?
A: Not necessarily. There are a number of state and federal
laws that now require private schools to reveal certain information. One
of the most important access tools for private school journalists is the
institution's federal informational tax return, the Form 990, which the
law says must be available at your school's business office for public
inspection. The form provides information about where your school gets
its money and where it spends it.
Q: One of our star student athletes has been accused of stealing
thousands of dollars of school computer equipment. Rather than going to
the local court system, the school has decided to try the case before the
University Judicial Board, or campus court. They have said the proceeding
is closed and they refuse to release any information about the case's outcome.
What can I do?
A: This is one of the hottest - and most important - issues
confronting the student press today. Many schools claim that these proceedings
are "educational" in nature, and that releasing information about them
will unfairly invade students' rights to privacy. Student journalists (and
many commercial journalists as well) believe that schools are simply using
campus courts to control or bury information that hurts the school's reputation.
They argue that when these proceedings involve charges of criminal rather
than academic activity, the public has a right to know what goes on behind
closed doors. College students, they argue, are adults. And they should
be treated as such. The public routinely has a right to attend criminal
proceedings in public courts. Public access insures fairness and accountability,
both to the accused and to the system and victims. Where schools take on
the responsibility of a public criminal court they must be held to the
same standards of openness and accountability. Invoke the power of your
state's open records and open meetings law. If you are still denied access,
appeal. Also, let your readers and other media know what the school is
doing.
Q: Where can I go for more information about my rights and
responsibilities as a student journalist?
A: The Student Press Law Center!
