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Three-second glimpse of porn brings six-figure FCC fine for Virginia television station

(03/23/15 11:21pm)

After years of inaction on indecency complaints, the FCC lowered the boom on a Virginia TV station that unwittingly included a screen-capture of a sex act in a newscast video. The $325,000 fine is the maximum allowed by law and one of the few imposed since the FCC lost a 2012 U.S. Supreme Court case questioning the constitutionality of federal indecency enforcement standards.

June 2014 podcast: Several recent Supreme Court decisions could have impact on student journalists

(06/29/14 8:00pm)

Jonathan Peters, law professor and Columbia Journalism Review correspondent, joins Student Press Law Center Executive Director Frank LoMonte to discuss the impact of several recent Supreme Court decisions on students and student journalists.Frank LoMonte: Welcome to the Student Press Law Center podcast, a monthly rundown of developments of interest for the folks working in student media. I’m Frank LoMonte, the executive director of the Student Press Law Center. You can find out all the latest legal developments affecting your rights to gather and publish news on our website at We’re here with Jonathan Peters who is a law professor and legal commentator to talk about the concluding session of the U.S. Supreme Court. Just like journalists, the Supreme Court justices do their most productive work on deadline and we’re here no the dying days of June 2014, taking stock of the term that’s about to conclude with the end of June. The court typically tries to get all of its opinions of the term out the door before they leave for the summer at the end of June and some of the most watched cases are the ones that trickle out in the last few days. We’ve had a number of cases over the last few years that were First Amendment blockbusters. You can look back at cases like the Snyder v. Phelps case about the Westboro baptist church protesters and their right to engage in virulent hate speech outside of military funerals, the Brown case about legalizing the sale of violent video games to minors, the Alvarez case about legalizing false speech involving claiming military honors that a political candidate had not genuinely won. This term has not had the marquee First Amendment cases perhaps on par with those, but it’s an interesting one nonetheless and we want to discuss this with Jon Peters today. Jonathan is a media law professor actually just ending a term at the University of Dayton and about to start one at the University of Kansas. He is a Phd. in journalism from the University of Missouri in addition to being an attorney and he’s a widely published author and commentator with articles in the Atlantic, The Nation, and in many journalistic and scholarly publications. We’re really delighted to have him here. So, Jon, let me just throw it to you and we’ll talk, for starters, about a case in which the Student Press Law Center filed a friend of the court brief, one that involves an interesting procedural issue in who can and can’t sue to vindicate their First Amendment rights and that was the case of Susan B. Anthony List v. Driehaus. Can you kind of set us up a little bit what that case was about?Jonathan Peters: Sure, Frank, yeah, thanks. I think you’re right on point to characterize this term’s free speech cases as not the marquee blockbusters that we’ve seen in the last couple of years, at least in so far as they’re not as sexy—you know it’s cases like Synder. But, Susan B. Anthony is, I think, procedurally, a really important case and one that has particular importance for students whether you’re a student journalist or just and average student in high school, middle school, whatnot. The central issue in the case was whether the government may punish false political statements or whether such falsehoods are entitled to First Amendment protection. So, that’s kind of the central issue, but the issue that you have to reach before you get to that one is a more threshold one (sp?) and that is when a law forbidding that sort of thing, such as a false political statement during a campaign, when you can challenge that law, whether the challenge has to outweigh the outcome of a prosecution under that law, or whether you can instead proceed as long as the speaker feels that his free speech rights are chilled by the very existence of the law. So, legally speaking the question is just one of judicability. Is the issue right for the decision? And the facts in this case, they arose out of a dispute in 2010. It was a reelection campaign for a representative from Ohio. He complained to the Ohio Elections Commission. It was after a nonprofit, anti-abortion group, the Susan B. Anthony List, planned to run it was billboard advertising in this representative’s district saying that his vote for the Affordable Care Act was the functional equivalent of a vote for tax-payer funded abortions. The billboard company said it wouldn’t run the ad. They said they wouldn’t run the ad right after a lawyer for the representative contacted the billboard company and raised the possibility of legal action. But apparently because the ad was still a possibility, the rep went ahead with his complaint to the Ohio Elections Commission. There was a panel of the commission that issued a finding of probable cause that the proposed ad violated the law and then referred the matter to the full commission for a hearing. It’s at that point where the Susan B. Anthony List filed suit in federal district court to block both the commission hearing and the enforcement of the law. The district court declined to stay the commission’s actions. The parties agreed to put of the hearing until after the election. The rep ended up losing his reelection bid. The commission process ended, but the SBA List, it amended its federal court complaint to contend that its free speech had been chilled by the commission proceedings themselves. There was a factual situation unfolding at about the same time involving the coalition opposed to additional spending and taxes, which planned to disseminate virtually the same message about the same representative. So, that group filed suit in federal court too. The rep did not actually file a complaint against that group with the commission, but the group still said that it withheld its messages about the representative because it felt the chill from what the commission had already done with the SBA List. So, if you then kind of get out of the facts and begin to look at the arguments being made and what the court ultimately said, in addressing the question of: when can you sue for constitutional violation, here specifically arising under the first amendment, there was some existing confusion in the law about whether you needed to prove a substantial risk of harm or whether you needed to prove that there was certainly impending harm and if you could meet one of those tests it seemed to mote that, therefore, you could sue. What this case does is crystalize the standard or really the standards that you can use.So, in the opinion, it says that an allegation of future injury may suffice if the threatened injury is certainly impending or there is a substantial risk that the harm will occur. So you know, using that kind of disjunctive, the de facto burden would be to prove only substantial risk because there’s always a substantial risk if there is certainly impending harm. I think, to hit another point that you touched on in your intro, which is why do we care about this in relation to students? What’s the special impact there? I think that the SPLC amicus brief really persuasively and it’s the fact that as somebody who has been a college professor for a couple years now—and obviously we’ve all at one point been students, K-12 students—students are surrounded day to day by authority figures and they are affected, I think, more deeply and personally by rules and regulations and the resultant chills on speech that they can create than perhaps the average adult might be going day to day. So, that’s one, I think, dimension of this. Students are more susceptible to chilling effects than adults. The other is that without broad pre-enforcement standing rules, a lot of these student speech cases, they would be mooted before you could ever reach the merits of the case because students graduate. You graduate from middle school. You graduate from high school. So, I think yeah, this has really special importance to students. Frank LoMonte: Sure, and just to reinforce that point, that was sort of the importance that the impelled the Student Press Law Center to get involved was this had the opinion below from the Sixth Circuit become the prevailing legal standard, you virtually would have had to go ahead and actually incur the government punishment first, and then challenge it afterward because it’s so difficult to prove that it is certain or inevitable that you will be punished without actually following through and suffering the punishment. So, had the Sixth Circuit view of the law prevailed, you really would have almost been saying goodbye to the ability to bring a facial constitutional challenge to a statute before it is actually enforced against you. So, this certainly keeps alive the ability to do that for all plaintiffs, but most especially, as you point out, for students and other who might have any femoral claim to having standing and whose standing might evaporate overtime. So, in those cases in particular, it’s often essential to be able to challenge the statute on its face without waiting for it be enforced against you. I might point out, each of the cases we’re going to talk about here, was a real rarity because they were nine-to-nothing decisions of the court, which in and of itself is rare enough, but nine-to-nothing decisions in favor of individual liberties, and it’s often especially hard to get the court together around one of those. But, another one, which sort of pulled together a rather surprising consensus was the Lane v. Franks case and the SPLC and other groups like it often find themselves defending the rights of educators, public employees, to speak about matters that the learn about on the job and that’s what the Lane v. Franks case entailed. So I guess if you don’t mind, just explain a little bit about the factual setting for Lane and the issue of employee speech rights that the court ended up deciding. Jonathan Peters: Yeah, in Lane v. Franks, the plaintiff was a former employee of a community college in Alabama, and he filed a lawsuit alleging that he was fired in retaliation for testifying against a state legislator who had been charged with fraud. And what the community college employee had found, he was the director of a program within the college for at risk youth, when he was reviewing some of the books related to the program’s budget, he found that a state legislator was actually on the books as someone drawing a salary. So, he realized that this person doesn’t actually have an employment relationship with my program and wasn’t doing any work for this. So, then the legislator was charged with fraud. He ended up appearing in court to testify about what he had seen, what he was aware of and a federal district court granted summary judgement to the president of the college, who fired the employee who had testified and the district court was relying on qualified immunity to rule in favor of the college president, but also found that the employee who had testified had spoken in his capacity inso testifying as a public employee, which therefore deprived him of First Amendment protection, according to the district court. The Sixth Circuit, when it got kicked up there, agreed with the district court in that Lane’s speech was not protected. The appeals court applied the Supreme Court’s that the speech of public employees is protected only when the employee is speaking as a citizen and about a matter of public concern. The Sixth Circuit spent no time considering the qualified immunity issue and it was unclear initially whether the Supreme Court would reach qualified immunity questions at all in the case So in the opinion, which you said was unanimous, written by Sotomayor, the court concluded that the employee of the community college did have First Amendment protection for his testimony in the criminal prosecution resulting from fraud in the program that he directed, where the court I think a matter of equity and policy, I’m sure on some level said, “how inequitable would this be if we said to somebody, ‘if you testify truthfully, in a federal court proceeding about fraud, that yeah you know your employer can fire you for that.’” It just doesn’t sit well in the mind’s eye. But, legally, so the court basically held two things: it said the First Amendment, the free speech clause, will prohibit a supervisor in a state organization from firing an employee on the basis of that employee’s truthful testimony in a federal criminal proceeding when the employee was acting outside his ordinary job duties. Now, the second holding is that the supervisor was nonetheless entitled to qualified immunity because the first holding in about the scope of the First Amendment, had not been clearly established, according to the Supreme Court, by the law of the Supreme Court or the court of appeals.Frank LoMonte: And let me spot you there. The holding that you described exactly the way Justice Sotomayor in the opinion described the scope of the ruling, which was that an employee is going to be protected when giving testimony in a criminal proceeding, which clearly, as the justice explained, is not within anybody’s normal job description as a government employee. In fact, as she pointed out in the opinion, any one of us as a citizen, could be subpoenaed to give testimony in a criminal case, so you can hardly say that giving evidence against someone who has committed a crime is somehow a part of your job description. So, if that’s the way that the case is understood. Then it’s a really rather narrow ruling because, after all, how many people are going to lose their jobs after giving testimony in criminal cases. One hopes that that’s not a frequent occurrence, but it’s possible actually, I think, to read the opinion a little more broadly than that and to read it as sort of a narrowing gloss, if not on the Supreme Court’s Garcetti opinion—the case that it’s based upon, but maybe at least a narrowing gloss on the way some lower courts have been applying that Garcetti opinion, which is all about when speech is or is not a part of your official job duties. Right?Jonathan Peters: Absolutely, I think that one of the important distinctions made in the case is the distinction made between, you know, speech that is part in parcel of a job duty and speech that relates to information or knowledge that you gained at work, which are two fundamentally different things and I think in this case could apply with special importance to teachers, public school teachers and professors. So, Garcetti really was silent on that point, where Sotomayor even wrote in the opinion that Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. So, yeah, I think that is your broadening language because what you have when you look out over the circuits that have decided cases relying on Garcetti, is you can really put these cases—and I may be oversimplifying a bit here—in the two different camps. One camp is a really broad mandate that favors very liberal rules, well very liberal applications of Garcetti, and the other is the a quite narrow reading focusing on the distinction that before this case had not been acknowledged by the Supreme Court in part because Garcetti was the last major statement on the free speech rights of public employees. In the intervening years, the court punted on a number of cases, denying cert, where it could have crystalized this long ago, but did not. So, while this is late, it’s certainly is a welcomed case. Frank LoMonte: Well let’s just take a minute or two to just give a nod toward the third case that I wanted to mention, a constitutional case that’s not a First Amendment case at all, but a Fourth Amendment case involving under which circumstances the Supreme Court may and may not look inside of a smart phone in the course of making an arrest. Again, not at all a student case, not at all a school case, but one which may have reverberations in the school context where phones are very frequently being seized and searched by authorities, that’s the Riley v. California case. I’m just going to, in the interest of time, shortcut the facts of that case. This was sort of a classic traffic stop case that morphs into a criminal arrest. A person is pulled over for a traffic offense. The police find concealed weapons. That becomes the basis for the arrest. During the course of that arrest and subsequent search of the suspect, his smart phone is found. The contents are viewed by the police who see some photographs and some messages that they think connect him to a gang related shooting and he’s then implicated in that more serious crime. He tries to suppress the evidence saying that these were the fruits of an unlawful search in violation of his Fourth Amendment rights, and again, a unanimous Supreme Court comes back and tells us that he had a good constitutional claim, that the search went to far because the nature of a smartphone, being what it is, was just a more kind of qualitative search than asking to look inside somebody’s wallet or day planner or calendar. So, I guess, what do you see, Jon, as sort of the larger potential importance of a case where, for the first time really, the court was grappling with smartphone technology and with the capabilities of it in the Fourth Amendment context?Jonathan Peters: I think the most important point made in the opinion is that digital technology is different, where many of the analogies that the government had attempted to draw between physical items and digital items, the court rejected, you know, across the board. The basic issue is, as you said, whether law enforcement need a search warrant to examine the contents of a cell phone, which they seized during the arrest. So what a number of government attorneys had argued was that, “well, it’s like a bag search. I arrest you. I can search your bag.” But what I think that ignored, and the court gladly points this out, is the policy rationale for searching bags. Really, the purpose is two-fold: one is to allow the police to preserve evidence that might be used in court, and then the other is to protect the safety of the police officers. Neither of those things really applies in full force to a cell phone. The one that would would be preserving evidence. The court said there are more tailored means to do that rather than just rooting through the phone and searching and seizing at will. In a broad journalistic context, it’s stating the obvious to say that cellphones, smartphones, tablets, there are integral parts of news gathering today, where we use them not only to capture video and photos, but if, let’s say, I use dropbox to store story notes and drafts and source notes and things like that. If you grab my cell phone, open up my dropbox app, you viewed potentially unpublished work product that could implicate the Federal Privacy Protection Act of 1980 if I’m a journalist and that applies with equal force to student journalists. It applies as well to students, where you and I both know that students do not get the same level of Fourth Amendment protection. They do get it in schools, but not at the same level as an adult and no in a school setting. What I would hope this case would do would send the message to them, the broad one, that digital devices are different. This is not a backpack, this is not a locker search. This thing, as the court said—I forget the exact phrase the Roberts used for the proverbial martian who comes down—that that martian could view this as a very important part of human anatomy. So, I hope that that fundamental difference would chasten the willingness of school officials to rampantly search as they do in some places.Frank LoMonte: Well, Jon Peters, thanks so much for this informative rundown of the winding down term of the U.S. Supreme Court, some good favorable rulings, helpful rulings that may be a benefit to all students including student journalists as we see how these play out in the lower courts. As we thank you, I also want to invite folks to follow Jonathan Peters on Twitter. It’s @JonathanWPeters. Jon has recently taken on yet another role as the press freedom correspondent for Columbia Journalism Review and you can follow his legal analysis at CJR. We also of course hope you’ll follow the SPLC.

August 2013 podcast: Two veteran advisers discuss ways to build strong alumni networks

(08/12/13 8:00pm)

Bill Casey, publisher of The Daily Iowan, and Michael Serino, student media adviser to The Ithacan, talk with Student Press Law Center Executive Director Frank LoMonte about the importance of building strong alumni networks.Frank LoMonte: You are listening to another edition of the Student Press Law Center’s monthly podcast. The SPLC is a non-profit organization that supports the work of student media around the country. I’m Frank LoMonte, executive director of the Student Press Law Center, and each month we get together to talk about news and developments affecting the legal rights of people working in student journalism from middle school to graduate school.And this month we’re here to talk about building a base of alumni support for your college media program and why it’s important. At the Student Press Law Center we’ve seen students draw on the resources of alumni in many ways in recent years, but none more importantly than when a press freedom issue is at stake. The timely intervention of alumni have been a difference maker in places like the University of Memphis, where last year alumni brought the decisive pressure to bear, that turned around a long running and painful censorship controversy that threatened the well being of The Helmsman newspaper and it’s editors. Time and time again, we’ve seen that the voices of alumni can make a real and decisive difference in saving and preserving student publications in this especially dangerous time in our field. We’ve got two of the best with us today. Two veterans of the college media business, to talk about how they have cultivated a base of support among alumni and to maybe share some tricks and advice that you can use at your own student media outlet. Bill Casey is with us. He’s the publisher at The Daily Iowan at Iowa City at the University of Iowa, which he’s done for upwards of 37 years. And Michael Serino is with us. He’s the student media advisor, been doing that for 18 years at New York’s Ithaca College, home of The Ithacan newspaper. And gentleman, thanks so much, both of you, for sharing your expertise with us. Let me just toss it to Bill for starters. Tell people a little about The Iowan and maybe take them on a little of a verbal tour on that amazing newsroom that you have, which is a museum of the history of Iowa. Bill Casey: The Daily Iowan’s been around 145 years, so it’s been around a long time and Frank you were just saying we have a museum in our newsroom – what we did when we went into our new newsroom in 2005, we out 150 old front pages in the furniture and then all kinds of old photo of the place. But, right now, what we have is about 100 students working, publishing on five different platforms: newspaper, television, iPad, iPhone and on the internet. Our board is faculty, staff, students and alumni. Our board over the year has been a real advocate for our newsroom. We have been involved with our alumni since the early 90s. We had our 125th anniversary in 93, that’s kind of when we started fundraising and we have fundraised since 1993. We basically fundraise for two reasons: For school scholarships and equipment and we’ve given away about a million dollars of tuition scholarships to students since 1987 and for a long time we were able to pay for that out of proceeds, but luckily since 1993 we fundraised and didn’t really spend any of it until a couple years ago, and now we’re able to pay for about half of it out of funds from alumni. And so we have at any given time eight-16 kids who we’re paying their tuition. And we recruit around the country and that’s how our alumni basically got involved, trying to help get the best kids there and also help us with the equipment, which publishing that all the ways we do, you’ve seen our newsroom, it’s pretty spectacular and one of the things about having a spectacular newsroom is if you don’t buy computers for four years, the high school kids come in and think they’re antiques. So you’ve got to stay on top of it to recruit the best people. So that’s kind of what our fundraising is for. As far as First Amendment issues, we really haven’t had a lot of those issues at Iowa. We’ve been a force on the campus for a long time and we’re a nonprofit 501(c)(3), have been since 1924, reincorporated in ‘74, and so we’re legally separate from the university and we’re renters on campus, and over the years we’ve not had a relationship, we’re adversaries a lot of times, but, they haven’t ever tried to censor us. Frank LoMonte: Let’s let Michael jump in. Share with us, first of all tell us about the newspaper, about student media at Ithaca College and also about what you’ve been doing to cultivate and build ties with the newsroom alumni community. Michael Serino: Sure. Well we’re not quite on the scale of those operations there. We’re a much smaller school with a somewhat shorter history. But the paper was, the college was founded in 1892, and the newspaper, The Ithacan, was founded in 1931. And it was basically run by the college until 1969 when the paper went independent, as so many things did in 1969. They stayed independent until 1987 when they were incorporated into the School of Communications. So, the paper has been part of the School of Communications, what we call co-curricular as opposed to an extra curricular, working in conjunction with the journalism department. But the paper itself is independent of the journalism department. They have a separate advisor – me – whose job it is to advise them. We have separate operations for television and radio, which also have their own separate advisors. And so we’re able to give a lot of individualized mentoring and personal attention to the paper. So that’s basically an overview of our history. Because we’re part of the college now, we have an interesting budgeting system, where the college basically provides us with our operating budget at the front end of the year and then we have an income expectation of $100,000 which we’re expected to make back through the course of the year through advertising and subscription sales. So it’s a very, very amicable situation. I like to say we have the best of both worlds here. We’ve got the full support of the college, but they also really respect the independence of the newspaper. So there’s never any pressure to change stories or to censor stories or anything like that. No one in the administration has ever asked me to intervene, to try to stop or change the way a story went. Frank LoMonte: That’s very fortunate.Michael Serino: Things are pretty fortunate in that respect. We’re really very lucky here. We have a very good relationship with the journalism faculty as well. As far as alumni go, we’re a younger program, a smaller program, because 1987 was really – there’s been a lot of continuity from year to year as opposed to before that it was more of a club. Although, actually just five minutes ago, I got a call from a 1965 graduate who is a retired journalist who wants to get involved, helping to advise, to give advice to students if they’re ever interested on the paper. There are people reaching out like that all the time. As far as active alumni outreach goes, we started doing, around 10 years ago, there was a perception on the part of alumni here, some people that I talk to and you see this at other schools as well, where they said, “the only time we ever hear from the institution is when they’re asking us for money.” We all know that’s not true, but it’s a perception that people have because colleges need support from their alumni. So, the then-dean of the communications school, Thomas Bone, and I were talking about what we could do to alter this perception. So, the first real alumni outreach we did, was we started doing a couple dinners a year. One in New York every spring, in conjunction with the Spring National Student Media Convention, and then one in Washington in the summer, because we have large concentrations of alumni down there, in both those places. Basically, I’ll go to town and invite them all to dinner and we’ll just buy them dinner and get everybody together to talk. Usually, we have 25-30 people at these things, it’s not like a huge banquet, depends on who’s available and timing and all that. We just started doing this ten years ago and haven’t really asked for anything in return other than to see them and get them together with each other. It keeps them connected with the institution and with me and for a lot of them with each other. I mean, a lot of them are still close to each other and see each other all that time, but some only see each other at these events.Then in 2006, I launched an alumni blog to try and keep these people connected with each other. I’ll post things like weddings, job changings, just general news that people have. And that’s been useful in keeping people connected as well.Frank LoMonte: That’s pretty cool. What platform is that blog on? Is it a WordPress blog or where is it hosted?Michael Serino: It’s on Blogspot. Frank LoMonte: Okay.Michael Serino: So Blogger. That’s been going for awhile. But the interesting thing about that, is I started that in 2006, and then within the next two or three years I started discovering that people were sending me less and less information about what they were doing and I realized that the reason for that was because they were all posting on Facebook. And they assumed that everybody knew. So then I had to go on Facebook. So, I went on Facebook and I would say at this point 96 percent of the people that I’m friends with on Facebook are Ithaca College alumni, that’s why I’m on it. So that serves as a networking tool for me and then I get information from there and use that and also post it on the blog. So that’s another effective way to reach out to people. So, as far as scholarships go, because we don’t need to raise money for equipment for anything like that, we have one scholarship, we call the Ithacan Scholarship, that was actually started before I got here, that provides financial assistance for one of our staff members who has shown promise and has already demonstrated ability and shows promise for the future. But we have nothing on the scale of thing Bill was talking about.Frank LoMonte: Yeah. Bill, we heard Michael talk about, I think these are all great strategies for keeping in touch, both the personal touch – organizing the small ground dinners, which is terrific for networking purposes – and obviously having either a blog or a Facebook presence or some combination of that. How about yourself? I know you do a fair amount of one-on-one outreach to folks, what have you found is working for you in terms of building and maintaining that line of communication?Bill Casey: Well, we’re trying through Facebook, a Facebook page called the Daily Iowan Backstory, which is for alumni. We do basically the same thing Michael’s doing, putting up job changes, having people send in pictures of their kids. We had several alumni visitors this summer that came in for the journalism camps and I took a picture of all of them in the newsroom and put that on there. So, we’ve had newsletters for years, but we’re doing the same thing Michael’s talking about, using Facebook to get in touch with them now, because that’s how they all do it. But, we also have done receptions in Washington and Chicago and Los Angeles. And those are really nice events. You get a chance to meet a lot of different people. It tends to be a younger crowd that shows up for those. A place like Los Angeles is really tough because of the distances, but what we’ve been doing as far as really trying to raise money is talk to individuals. We do send out two mailings a year, which raise probably about $10-12,000. But, our long term goal is, we’re trying to raise $2 million right now in the next five years, we’re talking to individuals about that. And it’s long-term work, I’ve been doing this a long time and people are very generous, but you’ve got to convince that they’re interested and there’s a reason and also it takes a long time. We had one board member she worked with us for 30 years, and after 30 years gave us $100,000 – a wonderful gift. We also do a homecoming reception every year for football. We had two or three homecoming games in a row that were night games and that was really good because you could start at about three and end at about five, but lately we’ve been playing at 11 a.m. and basically you have to have breakfast and less people show up. So, we’re trying to do those kinds of things. The biggest issue involved, I think, is that we also have regular jobs and stuff going on, so that’s probably the hardest thing is to just stay on top of it. What I find sometimes is that I let it slide, I’ll go along for a while and we do pretty well, like in the Summer we’re pretty organized, and then Fall starts and we’ve got other issues to deal with. So, luckily I work with the University of Iowa Foundation and the person I work with tends to keep us focused on trying to move forward and continuing to be out there and do things and events. Our next event, we’re going to do an event in Washington D.C. in November, so maybe you can show up Frank.Frank LoMonte: Yeah. Bill Casey: You know a lot of the kids that will be coming.Frank LoMonte: Absolutely, yeah. Let me ask you, with the history that you have and the size of this program, how many people come through that door, are you able to leverage or take advantage at all – surely you’ve got some celebrities among the mix, some authors, some broadcasters – are you able to leverage any of the notoriety of your grads for organizational building and promotional purposes like that?Bill Casey: Yeah, I really think that’s what's helped us on the campus a lot. When they were building our new building, planning it in the ‘90s, we won like seven or eight Pacemakers in a row, and they really couldn’t ignore that. And the other thing we do with our celebrities, or so-called celebrities, is that we have them come as visiting professionals and we also will do a lot of FaceTime and Skype stuff with them in the staffs, which is actually a lot easier because they don’t have to leave wherever they’re at. But, the ads we run to recruit, basically we have all the logos of where people have gone to work in the last four-five years, and it’s pretty impressive. Both in television and in newspapers and new media. We try to parlay that and that’s one way we try to recruit. It’s getting harder to get kids interested in journalism because of this financial business involved and parents worry about, “my kids got to get a job,” and one of the things I like to tell parents is, these skills are highly transferable. To be quick on the uptake and run all these machines, you can pretty much do anything and it’s worthwhile participating because you learn how to work in an organization and get along with people and get something done everyday. Frank LoMonte: Absolutely. Let me return to you on a point here. It was interesting, you mentioned you don’t actually directly put the palm out and ask “please write a check,” this is more of an investment, I guess, in building a network of support for the organization, but not necessarily fundraising but not right now. So, what do you see, if this is not actually paying off in an avalanche of checks, what do you see as the benefit, why put in all of the investment that you are putting in to do this, and what do you see as the payoff or the benefit to having that network?Michael Serino: I think there’s a very tangible payoff, in terms of a network of mentoring and assistance with finding internships and jobs. It’s huge. I mean there’s active mentoring going on all the time. I think it’s a cliche, but we really think of The Ithacan as a sort of family, and we try to maintain personal connections with each other in a way. So for instance, when my incoming editor for this Fall was considering applying for a job in the Spring, she happened to be going to Washington for something else and I arranged for her to meet with three different former editor-in-chiefs for the paper. And they talked to her and discussed the ins and the outs of the job and gave her their advice. And we have a lot of that sort of thing so that when we look back and see years when our students have won awards, it’s not just we’re part of this newspaper that’s good, it’s we’re connecting with the people who made it good. It creates a feeling of responsibility to the past on the part of current students. Here are these people who made the paper what it is, we want to be part of that. But, aside from the mentoring aspect, internships and jobs that have been found through alumni have been significant. Just at these dinners alone, because when we do the Spring conference and we have the dinner in conjunction with it, I usually have seven or eight students with me. And part of those dinners is an opportunity for them to interact with the alumni. We had a couple of internships come out of that at last Spring’s conference for this summer. The same thing happens in Washington. As far as job referrals, very often I hear about jobs, that aren’t even listed, alumni will let me know are available in case I have anybody that is qualified for it. So, for instance, Newsday on Long Island, three years ago we had our first graduate get a job there as a video journalist and within two years we had two more there. Frank LoMonte: Of course, yeah.Michael Serino: So the person there would email me and say, “We’ve got another opening, who do you have?” There are quite a few people at quite a few publications around the country that regularly do that. For instance, this year we were quite lucky, I had an email from somebody over the summer that said, “Do you have any graphic designers? We need one.” I was happy to say that all of my graphic designer graduates had jobs.Frank LoMonte: Wow, there’s a luxury. More jobs than graduates at your program. That’s a story I like to hear.Michael Serino: We have a pretty good placement record, yeah.Frank LoMonte: In the few minutes that we have left, let me start with Bill and go to Michael, just by way of wrap-up, any points of advice or any words of caution at all for somebody, “I’m at a college media publication, I’m interested in trying to build my own alumni network,” what’s an “If I knew then what I know now,” for you?Bill Casey: Well, I would agree with Michael. You want to have relationships with people and we have raised money over the years but we’ve worked on having relationships with people too and again the same thing you said – jobs, internships, getting people back as visiting professionals, being around, telling them they’re in town, bringing them on tours, introducing them to the students – is a good thing because some people are really bothered by being asked for money and I remember the first time we did it, I got some amazingly notes back from people that didn’t like it, so you’ve got to be careful. But, at the same time, you don’t ask, you won’t get, and there’s a real need. To continue what we’re doing, we need to do it. As our advertising revenues have gone down, we need to do it more. So, we’ve got to try and do it in a way that’s comfortable. I had mentioned to you at one of them that I once paid a proposal to a person who had been asked by the journalism school three or four days earlier, so another thing you need to do is make sure you’re coordinating with other parts of the university so you know what’s going on. And we’re doing a lot better job doing that then we used to. From the people I’ve talked to over the years, there’s not a lot of people who have been able to work with their foundations, if you can that’s a good thing because they’re the ones that have the connections and know the people and are pretty good at setting up things in Washington D.C. for you and they have more connections. So, I would just say it’s very longterm work and I think you’ve got to take the attitude that this is long term work, we won’t you to help us continue to be good. The other thing you’ll find is that people want to give money to successful things. And so, you need to continue to be successful to attract people’s interests. Frank LoMonte: Absolutely. Well Michael, any closing thoughts from you on this? Either a piece of advice or a word of warning? Michael Serino: Well, as far as advice goes, I think it’s important to recognize that very often the experience that our graduates have in student media are the most meaningful experiences they have in their college. And those bonds – learning to work with other people as a team – is as much a part of their education as learning the skills and liberal arts background that they learn here. They learn to function as adult members of a team and I think that recognizing that helps to keep them together as well. I mean, again, the feeling of wanting to give back that so many of these alumni have is incredible. I have people that have been our six or seven years that will tell me, “If you have a student come into town for an internship interview and they have nowhere to stay, they can stay with me.” People that they’ve never met. So cultivate a – keep relationships active, it’s very important. And I think it has to be done very personally. I think that connecting them with each other and for advisors to stay connected with people personally is very important. I’m happy to say that next month I’m attending my 13th wedding of alumni for the paper. I’m grateful to be invited to these things.Frank LoMonte: Wow. So you’re breeding a second generation of donor prospects. That’s a great strategy. Bill Casey: Frank, I’ve been to about 20 weddings over the year and I now have kids that work for me that their parents worked for me. I’ll retire when I start having grandkids of the people who worked for me. Frank LoMonte: At least they’re not steering them away from you Bill, that’s a good recommendation. Well, I’m gonna wrap it up, and by wrap-up I’m going to share the websites of both of these phenomenally good newspapers, first of all Daily Iowan is just at and you should definitely check that out. Michael’s Ithaca College newspaper is at They’re both terrific publications with very storied history. I encourage you to check both of those out. And one more for you, the website. If you’re having any difficulty at all, or question about your legal rights, just a comment or a concern you want to share, we are reachable at or 703-807-1904. We encourage everybody to think about reaching out to your alumni, building that network of support, before you need it, and if we can help you with any question about your rights, your responsibilities, your work with alumni, do get in touch with Student Press Law Center. Take advantage of the free resources and let us know how we can help you. Thanks for listening, see you next month.

June 2013 podcast: Longtime journalist launches news site aimed at young readers

(06/26/13 8:00pm)

Holly Epstein Ojalvo, a journalism educator and founder of, talks with Student Press Law Center Executive Director Frank LoMonte about her news site aimed at under-30 readers. Frank LoMonte: If you’re a person of a certain age, you can almost recite from memory Billy Joel’s song that went to No. 1 on the charts back in 1989, “We Didn’t Start the Fire,” that runs through wars, famines, natural disasters, assassinations, 150 other life-changing historical events that happened during the 50s, 60s and 70s. Well that’s what the last couple of months have felt like in America’s news cycle. We’ve had a fertilizer plant explode in Texas, bombs going off in Boston, poison letters mailed to the Senate and the White House, killer tornadoes tearing through Oklahoma, frankly, it’s a little bit overwhelming. It’s putting a strain on the news media’s ability to separate rumors from truth and for a lot of people, it’s hard to wrap their heads around. It’s a little bit overwhelming for all of us, journalists and audience members, alike. This is the Student Press Law Center podcast and we’re here to talk about what it’s like to build your own online news operation from scratch and how to get young audience members to actually pay attention to the news that’s affecting their country and their world. My name’s Frank LoMonte, I’m the executive director at the Student Press Law Center, the SPLC is an advocate for free expression and transparency in schools and colleges. We train student journalists to use the law to gather and report great stories. If you’re interested in learning more, we hope you’ll check out all of the resources available on the website. Holly Epstein Ojalvo is with us, she’s the founder of the news website Kicker, which is at It’s a news and information source that is aimed at an under-30 audience. The goal is to engage young people in current events and in social action. So before taking on this role, Holly was deputy editor of The New York Times Learning Network, where she developed resources to facilitate the use of the Times in the classroom. For 10 years, Holly taught high school English, journalism and philosophy and she advised student newspapers in both public and private schools. As adviser at New York’s Stuyvesant High School, at the student newspaper The Spectator, she oversaw the development of a special magazine-style issue about the 9/11 terrorist attacks, which was circulated in The New York Times throughout the tri-state area in November of 2001. It is an eye-popper; it is some amazing student work. Well Holly has degrees from Lafayette College, from the University of Delaware and from NYU. She’s been recognized for teaching excellence by the Columbia Scholastic Press Association and with numerous other distinctions. So, Holly thanks for being with us and just take us back to the beginning of Kicker, take us back to the beginning of how this concept started, where the idea came from and what it is you’re hoping to accomplish.Holly Epstein Ojalvo: Sure, absolutely. Thank you so much for having me on today. Well, as you said, I was working for The New York Times Learning Network and I was thinking everyday about how to help teachers engage students in current events. And that started to feel to me like one step removed, that I was really excited about it and I love it, but I never really was quite sure, even though we had a lot of feedback from teachers, really positive feedback from teachers, I was never really quite sure of how many students we were ultimately reaching and how many students we were then not just reaching with one-off lesson plans, but how many we were reaching and engaging in the news sort of long term. And I started to imagine that there had to be really good ways of doing that, of engaging students in news. And then sort of to think that there should be a news source that appealed to young people directly and didn’t go through the filters of home or school. And I started to do a lot of research and I discovered that there are all of these studies that have been done that showed that young people are actually very interested in what’s going on in the world, contrary to popular belief. There actually are five main barriers that keep them from being engaged in news everyday, and they’re really simple and they actually apply, as you suggested earlier, they sort of apply to a lot of other people, as well. And these barriers are, they’re kind of obvious, but they’re interesting. So the one is overwhelm by bewilderment. There’s just so many stories, there’s so many news sources. If you go to or on any day, there’s just a constant refresh of hundreds and hundreds of clicks of links. What do you click on, what do you need to follow, what do you actually need to know is a big question. The second one is confusion. Students especially lack background knowledge. And you’d amount to 9/11, I just had coffee the other day with a young college student who’s really interested in changing the world and current events and he remarked that he was in fact in [unclear] when 9/11 happened. And that’s a good wake-up call for us. My daughter’s in fact in [unclear] and she looks at the newspaper a little bit because we do, but a lot of parents don’t even have news available to their kids anymore. So, even if something like a historical event like to you and me happened yesterday, it happened a long time ago to students. So the confusion, lack of background knowledge, lack of context. The third reason is boredom. I think a lot of young people say that news stories don’t feel compelling or interesting or fresh to them. Number four is relevance. Events often don’t feel relevant to their lives. When something happens in Turkey or Brazil or Australia, that can feel very far away and irrelevant. Even though you can connect the dots really easily. And number five is helplessness. You read about some terrible tragedy and you just feel helpless, especially if you can’t even vote. You might feel like, wow what can I possibly do to help these poor people? And it might just be tempting just to turn it out. So I started to wonder why isn’t there something that addresses all of these needs? And I went from why isn’t there something, I’m going to make something. So, I created the idea for Kicker based on all of this and I launched the sort of alpha version last September and I’m addressing all of these needs by offering a limited number of stories, providing background and context, breaking stories into digestible bits, infusing them with compelling multimedia and an interesting, fresh voice, demonstrating why they matter and providing ways to take action.Frank LoMonte: So I think that the experience that you went through in just the last year starting up a brand new news organization like this from scratch could be really instructive to so many people who are listening who are journalists are going to find themselves in that kind of entrepreneurial start-up mode sometime in their careers sometime sooner or later. Just throw out some of the experiences that you’ve had. What was the thought process that you have to go through? How do you ramp up something like that? What are some of the decision points? And I guess, what are some of the lessons and takeaways that you had from that experience?Holly Epstein Ojalvo: Yeah, that’s a great question and I think you’re absolutely right. Young journalists today have so many interesting options available to them and digital news is a burgeoning field. If you’re a young journalist today, unlike the kids who were students in my class 15 years ago, digital news start-ups can be a really viable career option for them. So yeah, that’s a great question. The idea development took a while, it took me months. I had the kernel of the idea for quite a long time and I was like I really want to do this, what do I do now? I actually was stuck there for a little while. Just questions of like what form should it take? What kind of tools should I use? What platform should I use? Should it be an app, should it be online, should it be this, should it be that? So many questions. Who can work on this with me? What do I really need? Who can help? How much will it cost? What’s the business model? What is the exact vision? What is the exact strategy? How are we going to get the word out? There’s so many questions. And for a while, to be honest, that definitely kept me busy. And when I finally made the decision to leave the Times and really, really focus on this, I was able to take all of those questions and make them much more concrete. And one of the key things is to really find people who have the skills to help and who also have the excitement and share that mission and that vision. Everyone I’ve hired so far has been, you know, I love that, I love this idea, I want to be part of this, how can I help? And that, I think has helped me more than anything else. People wanting to help who have different skill sets from mine. Complimentary skill sets, whether it’s development, design, writing, editing, business development, just all kinds of help. That to me is the key thing. Finding like-minded, talented, amazing people. That has helped propel me forward more than anything else. And yes, so I started on a platform that I was familiar with, which is WordPress. A lot of websites right now are powered by WordPress. All of The New York Times blogs are on WordPress. Mashable is on WordPress. Many sites actually are on WordPress. So, I decided to start there because I felt familiar with it and I knew a lot of other people knew it, too. And making big decisions like that help you move forward really well. You’ve now solved this problem and then you move on to the next problem. It’s sort of a big decision tree. But I’ve got to say that it’s so exciting, it’s so challenging and so exciting and it reminded me a lot of my first year in the classroom, where just everyday your brain’s just exploding and there’s so much to process and there’s so much excitement and it’s so hard and it’s so exciting and it’s so tiring.Frank LoMonte: Right!Holly Epstein Ojalvo: It feels just like teaching to me. [Laughs] So I’m definitely drawing on that experience, I have to say.Frank LoMonte: Right. Well just to be clear for folks who haven’t visited the GoKicker site yet, you don’t have a network of correspondents out there who are going to Capitol Hill and going to the White House and actually generating original content, your kind of product, your value added is the method in which things are packaged and delivered, that’s what makes this unique.Holly Epstein Ojalvo: Yes, that’s right. We’re aiming to make news accessible and engaging and actionable. We don’t have correspondents, that’s true. And we don’t, yet, do original interviewing, although we’re looking to changing that. But we do actually a lot of original reporting in so far as tons of research goes into any good reporting. And we do a ridiculous amount of research when we do a piece. So, that part of reporting we’re really working hard on and we’re looking at extending that. But you’re right, we don’t have correspondents and we don’t have boroughs in different parts of the world. But we’re trying to give people a frame and I think of Kicker a lot as sort of an on ramp to news. If you’re not ready to read the long form New York Times piece about something, you just need a sort of shorter version, a more simplified version, not dumbed down, but more accessible, before you’re ready to go dive in deeper, Kicker should be your first stop. Also, if you have time for just one story a day, say, that’s really what we’re doing. So every day we have a main story, a big story, and it breaks down the biggest story of the day, the most important thing we think you should know and its really accessible and in an engaging way. And then we give 10 other big stories of the day and they all have links so that you can go further once you’ve sort of gotten on this on ramp, then we give you ways to go further.Frank LoMonte: Yeah and explore that a little bit more because I do think that’s maybe what makes this a model that is unique from say, you know, another news aggregation type site, is that you have married the idea of getting informed with actually then acting upon that information in some way.Holly Epstein Ojalvo: That’s right, absolutely. I do think that’s a unique part of Kicker. One thing that people say over and over again when they see something like a famine or a tornado or a bombing is that it just makes them feel so upset and they feel disempowered. Nicholas Kristof, who does a lot of social action engagement with his journalism, I saw a really interesting interview with him where he said people have written into him to say he doesn’t tell them enough ways to get involved in the issue that he brings up and that he hears from people all the time saying I want more of that, more please, more please. And we do see that a bit, you know, something like the Moore, Oklahoma tornado, you’ll see some ways to help. But we do that every single day, not just on those big stories. And we do try to go past, here text to the Red Cross, because I feel like that is often the most accessible way to get involved. But we actually provide a range of ways to get involved, and sometimes we even break them down into sort of like small, medium and large. And the small ways can be anything like follow this Facebook page to stay up-to-date on the story. Medium way might be something like sign a petition. And a large way might be something like volunteer or donate money or start a fundraiser. But, yeah, we provide all kinds of ways to get involved. We might suggest writing to your congressman or congresswoman. We might suggest participating in a Twitter stream that’s going on right now. There’s so many ways to be involved these days and there’s no reason to feel disempowered. But news has not done a great job of this and this is something that we’re really involved in. When you go to Kicker,, and you’re reading a big story, on the top right hand side it says “Fired Up: How to Take Action.” It’s a clickable module and when you click on that, it pops you down to the list of ways to take action that we provided at the bottom of the story. So, you could click on that directly or you can just encounter it when you get to the bottom of the story.Frank LoMonte: Well, let me ask you the business model question. You mentioned that’s obviously something you contemplate at the onset. And this is the conundrum that everybody in journalism at big and small organizations is going to go through. Is this fundable? Is this scalable? Is this survivable? So, what are you thoughts about that? Where do you see your platform going and I guess, is there any bigger lesson to be gained from that? Are you sort of on the front edge of experimentation?Holly Epstein Ojalvo: Yeah, that’s exactly where I am. That’s a good way of putting it, I think. Absolutely, news has to be fundable and it has to be sustainable and it has to be scalable, or else we’re all in a lot of trouble. So, really, really smart people are thinking all the time about business models for journalism and I’m paying very close attention to that. My philosophy on the business model is sort of an all of the above approach. People ask me all the time. Subscriptions? Sponsorships? Advertising? Sponsored content? Conferences? Thinking engagements? And my answer to all of that is, yes, yes. And why shouldn’t be all of that? And other things, too. There’s e-commerce ideas. We have no shortages of ideas for how to monetize it. We just haven’t gotten there yet. We’re really so in alpha mode. [Unclear] But I’m really excited to start to turn this into a real operation, so to speak, from a business perspective. I think it’s exciting. I don’t think it’s scary.Frank LoMonte: And there’s an aspect to what you’re doing obviously that is not just like any other business, and you’re actually trying to do some good here, you’re trying to make some change. So I’m just going to lobby the big softball here, why does this matter? Why is this important? And why should people care? I mean, there’s plenty of people who sit on the couch and just watch Desperate Housewives or they can go through their lives happily disengaged. Why should we care if people under 30, your target audience, are not following the news like maybe their grandparents did? And why does it matter?Holly Epstein Ojalvo: I love that question because I don’t believe that there are people who don’t care about news. One of our mottos is, “It’s not so-called ‘news,’ it’s life.” I guess it just depends on what your definition of news is. But I think a lot of people say that they don’t pay attention to news but then you start a conversation with them and all of a sudden, look there’s all kinds of things that they’re paying attention to and they care about. It might be the environment, it might be same-sex marriage, it might be gun control. There’s just a host of things. I really never met anyone yet, and I’ve taught hundreds of students and met so many people, I’ve never found anyone once you start talking to them, literally all they do is watch something like the Jersey Shore and they really care about nothing. I don’t know anybody like that. And all of those issues, whatever issues they care about, is covered in news media. So, I personally would reframe the word news as information, stories, people, issues. Right? So it’s not about “news” per say. If people don’t care about politics, they care about some of the issues that politicians are involved in. Immigration, for example. They literally touch peoples’ lives. So they may not want to read Politico, right? And read about the minutia and the back-and-forth of who said what on Capitol Hill, but do they care about what’s going on in their communities? With their friends and co-workers and colleagues who might be affected by immigration? Sure they do. And that’s where I think Kicker is really reaching out. And why does it matter? It matters for so many reasons. I think number one is that news literacy is incredibly empowering. If you want to be a person who solves problems in the world, who makes a difference in the world or who even just wants to make a stand and make your voice heard in the world, you can’t do that if you don’t know what’s going on, if you’re not informed. You can’t be a force for change and you can’t be a voice for change if you don’t even know what the problems or issues are. And you could just start with things that affect you that really matter to you. Something like student loan rates doubling. That’s something that’s really concrete that a lot of students are affected by. You could start with whatever’s really emotionally close to you or really affects you and then that’s often where people start and they branch off from there. And then in a larger sense, as I’m sure you know, news is strongly correlated with all kinds of civic engagement and also educational attainment, even income levels. So knowing about what’s going on in the world and being engaged in current events is correlated positively with a lot of really important things. So, I think things like likely to voting, interest in politics, taking action related to something you’re concerned about, all kinds of things. So, I think there’s reasons for anyone to care about it, whether you’re a teacher, a journalism teacher or a civics teacher or what have you. If you’re a parent, if you’re in politics, if you are a young person, all of these people and more should be concerned about whether young people are reading news or not. It’s not just about the news is dying and we have to find new readers. There are millions of reasons why young people need to know what’s going on in the world.Frank LoMonte: Well, let me ask you to wrap up with a couple points, I guess. First of all, what are you seeing? You must track readership of the site, you must track the kinds of things that are getting responses, that are getting views. What are you seeing in terms of the kinds of things that are grabbing and successfully holding and engaging an audience? And then just finish up by telling us where do you see Kicker going? What is your next step? What’s your roll-out strategy?Holly Epstein Ojalvo: Ok, great. Those are great questions. In terms of what’s engaging our readers, I think it’s so interesting to see what really engages people. One of the things that gets a lot of attention is when we break something down that’s really big and hard to understand. We get a lot of traffic to things like what’s happening in Mali, what’s happening in Syria. It’s explained in plain English, that kind of thing. During the election, we translated what happened in the debates and in the big speeches in just sort of like plain English and non-politician speak. All of that got a lot of engagement, that’s one thing. Another thing we see a lot of traffic to is about breaking news events that are really difficult, like the Boston Marathon bombing. We say that we’re not sharing anything that’s too graphic or too gory or too disturbing. No really disturbing details about the Newtown shooting, that sort of thing. Where we just say, listen, everything you need to know but nothing too disturbing, tons of traffic to that. People really seem to want that. And another thing we get a lot of traffic to is stuff that’s maybe not like front-page New York Times, but young people really care about. Things like the Rehtaeh Parsons rape case, [unclear] which I would say that was Times front page. But things that involve young people and are maybe intersections of really difficult issues, like rape or something like that, off of social media, you know intersections that are their culture and some big issues. We get a lot of traffic to things like that, as well. So those are just three of the things we see a lot of engagement on. And we get a lot of correspondence lately from people saying this is the future of news, I’m so glad I’ve discovered this. This is the way my generation wants to engage with news. And so that’s very, very heartening to me. And that tells me that we’re on the right track and that the main thing we need to do is reach more people. And I know that our audience is out there, there continues to be study after study showing that young people ages 13 to 25 or 13 to 30 are interested and interestable and they care about the world and they just feel alienated from the way it is presented. So, I know we’re on the right track and I know our audience is there; it’s just a matter of meeting up with them. And to answer your other question, yes we are planning new features. I’m working right now sort of on an interesting game/quiz feature that I think will be really fun and also engage you in a topic that maybe you weren’t previously engaged in and hopefully peak your interest to go delve in more. And also, an interesting commentary voice feature that’s going to involve video. I really want to start hearing from our audience and what people think. Back to that point of why is it important to know what’s going on in the world? You can voice your views. I really want to start hearing from young people voicing their views. And I think a lot of young people are turned off by the whole pundit industrial complex and I think it would be great for all of us to hear from some new, fresh voices and I’m going to get that going on Kicker, too. So those are two of our plans.Frank LoMonte: Well, that’s really exciting. We will look forward to following what you do and watching how it evolves. I’m going to plug the site one more time, it’s Our guest Holly Epstein Ojalvo is the founder of Kicker, a former journalism adviser, formerly with The New York Times Learning Network. So, thanks so much for being with us and best of luck with wrapping up the site.Holly Epstein Ojalvo: Thank you.Frank LoMonte: If you are interested in learning more about law of online publishing, we have a wealth of resources on the website, that we hope you’ll take the time to explore. You can connect with the SPLC on Twitter, our handle is just @SPLC, on Facebook and on Tumblr. And if you’re a student journalist or a journalism educator with any question about the law, call our hotline any time, (703) 807-1904 or email us at Thanks so much for listening.

March 2013 podcast: Huffington Post editor discusses heightened attention on colleges and sexual assault

(03/28/13 8:00pm)

Huffington Post College Editor Will McGuinness talks about the site's coverage of sexual assaults on college campuses and what college journalists can do to cover the issue.Frank LoMonte: Thanks for being with us for another edition of the Student Press Law Center’s monthly podcast. We’re here to talk about a topic that’s both incredibly important and, at times, also uncomfortable. The topic that’s drawing attention, scrutiny in college campuses across the country and that’s the problem of sexual assault. Specifically, how well colleges do or don’t respond when a student comes forward and reports an attack, and how journalists can more effectively report on what, at times, is a very secretive campus justice system. I’m Frank LoMonte, executive director of the Student Press Law Center. The SPLC is an advocate for free expression and transparency in schools and colleges and we train journalists to use the law to gather and reporter great stories like the news that we’re here to talk about today. If you’re interested in learning more, we hope you’ll visit the website and follow SPLC on Twitter – it’s just @SPLC. Well, the fact that colleges might be prone to sexual assaults doesn’t exactly qualify as a breaking news flash, if you put a lot of young people, late hours, alcohol, close living quarters, together in one place, unfortunately, sexual violence will, at times, be the result. What’s new, is that victims dissatisfied with their college’s responses increasingly are taking their case to the public and they’re finding an ally in the U.S. Department of Education, which is promising to get more aggressive at policing sexual assault as a matter of civil rights. The inadequacy of college’s response mechanisms was perhaps most dramatically brought home by the revelation last Fall that Oklahoma State University knew of a serial sex offender loose on campus and intentionally withheld that information from the police and the public and what they later acknowledged was a completely mistaken interpretation of federal student privacy laws. Well, William McGuinness is the senior editor of HuffPost College. He’s based in New York City, he’s a native of Fall River, Massachusetts. He’s been a reporter and editor for several media outlets including CBS and The Boston Globe. In 2010, he graduated from the University of Massachusetts Amherst where he was the editor-in-chief of The Daily Collegian, the largest daily college newspaper in New England. And Will, we’re really delighted to have you and The Huff Post here with us on the podcast. I guess first, talk to us about Huff Post’s new focus on this important area, this important topic. Describe the topic that you’re working on, how did you get started and how is gonna work? William McGuinness: Sure thing. I wouldn’t necessarily call it a very new focus. What’s important here is that this happens all the time. And basically the reason that we started this project, or I would call it a more concentrated focus, is because we kept seeing these stories of colleges not responding appropriately to students’ sexual assault allegations properly. We’d see one or two a week, I mean it was to the point where we thought we could just cover this incrementally and in such a granular way. So, we basically teamed up with the investigative journalism class at the University of Massachusetts and it was an easy partnership – that’s where I went – as a veteran of the investigative journalism program and Amherst at the moment was a hotbed for this kind of discussion. There’s Smith College which is right across the river, it’s an all-girls school, there’s Amherst College where they had their own instances where they acknowledged that they could have responded better to student’s allegations of sexual assault. There’s one student, her name’s Angie Epifano, she had an editorial in The Amherst Student there where she basically recounted how the college’s administration blatantly ignored her request and her situation. Months later we heard another story from Florida, where one student, also from Amherst, actually jumped off of a bridge because the administration didn’t believe his story and was not prepared to respond appropriately to it. So, I mean, what what we want to do at the project is, through the power of aggregation bring all of these stories together, point out where colleges went wrong, point out where colleges are doing the right thing and highlight what’s working across the nation, and offer that information for public consumption. We don’t know what’s going to happen to it, we don’t know which colleges listen – but the idea is to have it out there so that it’s there. Frank LoMonte: Yeah. Well, let me get you to expand a little bit more on, because Huffington is known as being a destination for aggregation a lot of times, but this also involves a fair amount of original reporting, using this team you have on the ground working with you at Amherst. Do they have a particular scope of a mission or a charge or a task, what exactly are they going to be pursuing and is this going to be New England focused or Massachusetts focused, or will they in fact be taking a more nationwide perspective? William McGuinness: Because it’s a partnership, I asked the students at Amherst to focus on exactly what’s going on in their community. To focus on victim’s stories, to focus on how their administration specifically deals with issues of assault allegations and how their university police departments interact with the larger town’s department, and then what happens in the student community after something like this happens. How do they respond? Do they question the rape culture on campus and what do they do to improve it? So the idea is that they would take a really local approach and here at HuffPost we’re going to take that story and pump it up to a much larger audience on the national level, combining their stories with stories coming out of Oklahoma, coming out of the University of North Carolina, coming from Minnesota – I mean all of the different areas where we’re seeing similar stories. Frank LoMonte: Yeah, you mentioned University of North Carolina – of course, that’s the one that’s been getting an enormous amount of attention, the U.S. Department of Education is now in there investigating the complaints of several victims and of one former employee at UNC, who has been saying that systematically the university has been both underreporting the number of sexual assaults that happen there on campus and also not responding with sufficient urgency and seriousness when people bring those cases to the attention of the authorities on campus. The U.S. Dept. of Ed. police Title IX, which is the federal antidiscrimination statute, and it it’s been established historically that they can pursue cases as sort of a hostile environment for students under the auspices of Title IX and are now starting to view a culture where sexual assault is not taken seriously as being part of a hostile environment, so that’s an interesting new development in the view of the federal anti discrimination law. You mentioned that the Amherst cases – and for those that have not read it, the letter published by the student victim in Amherst where she walks through exactly what happened to her when she brought a case to the attention of authorities – it’s an unbelievable, sad and dramatic tale of how somebody can be mistreated by the system, it’s really worth a read. Do you think the Amherst letter is what has touched off the increased focus on this or is there something else bigger going on that has suddenly caused – there’s certainly a lot more media attention, more regulatory attention, more attention by the authorities on this area. To what can we attribute that? William McGuinness: Well, I kind of see it just as a fundamental characteristic of virility. At Huffington Post we share everything we do on the social web and that we watch what happens to it and we watch how it takes hold with readers and how people share it. If it’s not a shocking story – which this certainly is – it’s also attached to a larger narrative, it’s attached to something that people experience but don’t necessarily talk about every day. And, in this case, it was both. We saw a shocking story that people could completely understand was happening over and over again on college campuses. So, what we saw was after Angie published that editorial, she got a flood of response from other sexual assault victims from around the country, from around the world really, and she just said she was almost crippled by the response and I don’t know if crippling could be a positive thing, I’m not sure I used the right word there, but it was hers, but the idea is it’s much bigger than anybody had previously thought, that sharing their stories can only be a positive thing in the end, in the grand scope. We’ve got a story out today about an underground network of college rape survivors who have actually banded together, are in touch with one another and are planning a coast-to-coast push to file ethics complaints with the Department of Education. You’re starting to see activism, you’re starting to see communities built around this that otherwise would not have been aware of one another. Frank LoMonte: It’s really interesting how social media enables that connection to be made and how networks can be built like that among people who would never ever have any reason to meet each other otherwise. William McGuinness: To students I would just say that, you don’t have to sensationalize their stories, you don’t need the Law and Order SVU account of the nitty gritty details of everything that’s happened. It’s just to let them tell their own story and just get out of the way really. Frank LoMonte: Yeah, that’s a great point. Sometimes less is more in stories like this and certainly, you don’t want to be melodramatic about it because the facts are dramatic in and of themselves without any embellishment. What are some of the challenges, Will, that you have seen that journalists are encountering when they’re trying to write about the subject of rape on campus? One of the things I’m thinking of specifically though is the confidentiality barriers when student disciplinary systems throw up privacy, the inability to obtain reliable records in the face of FERPA and privacy objections. William McGuinness: I mean, those are certainly major barriers, major things that we run into. What we try to do is to get as much information from the source as possible and that’s just basically how we go about it. We try to represent both sides of the story, of course, and we run editorials from students around the country on the rights of those accused as well. When telling victims’ stories you have to, of course, realize there’s a burden of proof and a lot of this stuff hasn’t gone through the criminal justice program and that’s another barrier we’ve run into too, that a lot of these are allegations made to campus disciplinary boards that have actually never been reported or dealt with in a legal circumstance. What are the ethics then of treating something like rape in a non-criminal matter? I would just suggest to the students to really think about that and tread carefully. Frank LoMonte: No, that’s a very good point because obviously you’re dealing with, in many instances, a story where you’re speaking to the victim who’s willing to tell her story but the accused person very often can’t be found or won’t be interviewed on the advice of legal council that wouldn’t be something an attorney would legally advise you to do is give an interview while you’re potentially exposed to criminal liability and civil liability, so that makes it especially hard to tell a story like that without an outcome from a judicial process where you can confidently say that it’s been established beyond a reasonable doubt that this crime occurred. WILLIAM MCGUINNESS: That’s exactly right. Just prior to actually launching the series, I mean very strangely I was attending a play here in New York called “Really Really” and it was loosely based on the Duke lacrosse scandal, but also mixed in with the University of Virginia lacrosse scandal, meaning that in one case the victim was found to be lying and in another case it was absolutely true and she actually ended up dead. The idea is when there’s no evidence and there’s alcohol involved, emotions are so high so it’s hard to know who to believe so you have to give equal time to each side of things. Our project doesn’t necessarily report on individual rapes or try to find blame, it doesn’t prosecute anybody. What it does is it creates an opportunity for the environment to improve around when these are reported and how college administrators actually react to it. We’re in the middle of something different that could affect the reporting process in a different way. Frank LoMonte: Well, one of the aspects of this story that does make the college campus setting unique as opposed to the community at large, is the existence of that disciplinary process and the existence of the confidentiality that goes with it that I wonder if in the reporting that your folks are doing and just in the material that you’ve been reviewing on this subject, are you drawing any lessons or conclusions about the appropriateness of campus disciplinary bodies – people who are generally not lawyers, generally not using the rules and evidences that you have in court, often with parties who are not represented by legal counsel. Is that whole process in any way just sort of systemically not amenable to the resolution of a rape, is this a business that colleges ought not be in at all? William McGuinness: I think that’s a tricky question to ask but it’s an incredible appropriate one. I think it’s important to remember that there’s over 5,000 different colleges and universities in the country and each of them, very likely, has a reporting process that varies greatly from one to another. The goal of this project is to basically highlight the ones that have really great processes and we’re also going to shine the light on those that don’t. And what we’ve seen through our reporting at Amherst college already is that college presidents are very quick to admit when there’s a problem and to acknowledge that maybe there’s an easy way to figure this out that we just haven’t thought about because we thought there wasn’t a problem. Speaking specifically to your question about representation and having no legal representation there and student boards etc., I think – and this is just kind of what I’ve stumbled upon in my research and some might disagree – but the idea was that it is all based on power dynamics at the university. Students at one time might have thought it inappropriate to report his or her rape to an administration that was primarily concerned with their public reputation, they didn’t want to necessarily put bad stories out there in the public realm. So they created these student boards to act to mitigate that effect to make it seem like students are reporting their abuses to an audience of their peers. In a lot of cases though we found that their peers are not the right people do be doing this – they don’t have the training and a lot of cases it creates almost two levels of discipline when there should only be one. I mean, if you're raped do you really care if your rapist is flunked or if he is prosecuted in the court of law? I think right now it's being treated as two separate things but maybe there's different models that do it better. Frank LoMonte: Well, just in the couple minutes that we have left, let's say I am a college journalist, I'm on a campus where I don't have an Angie Epifano, I don't have a whistleblower who comes forward and tells this compelling personal narrative, I don't have a victim who is cooperating with me to share her story about the system – any thoughts or tips about how, as a journalist, what should I be looking for? How do I get inside of this process and tell this story about whether my schools is one of the schools that's doing it right or doing it wrong? William McGuinness: I think aggregation is a powerful tool for that. I think based on the model of journalism we do here, we're not always dependent on having to make the phone call and having the connection there, so as long as the informations out there we're gonna use it, we're gonna source it and we're gonna drive traffic to it. But we’re going to basically rely on the part of the information that’s already out. As far as local resources, I would work with maybe nonprofit resources in the area, I know at UMass we had this center called the Every Woman Center which worked with victims. I don’t know if that’s available to everybody at every college but if not then you should just look for the local one. Even look at your city or town’s resources. It’s important to realize that not every issue at your college is simply a college issue. Anybody can really help out who knows more than you do. If you’re reporting and you don’t know anything, the first place to start is with somebody who knows more than you. Frank LoMonte: Yeah. Well, I think that’s a terrific tip too and maybe we’ll wrap it up there by saying that if you find on your own campus, especially if you go to a private college where you don’t have a right to demand access to public records, if you find that your own campus isn’t that forthcoming about how many assaults they have and how they handle them, do think about opening up your reporting and looking into the larger community. Is there at the county level or, as you say, at the nonprofit level, so sort of advocacy office where somebody may keep better track of these cases and may be less motivated to conceal than the college. Will McGuinness of HuffPost College, I want to thank you for giving us a look at some fascinating reporting that you and your partners are continuing to do – a topic of such urgency on all college campuses. And we will look forward to following your work. Will, do you want to give the url or website where people can look up HuffPost College? William McGuinness: Sure thing. You can just go to Frank LoMonte: Okay. Can’t be easier than that. Well, for any of you who are interested in checking up on your own college’s crime reporting there’s a wealth of resources that we have on the website including a copy of our “Covering Campus Crime Guide.” We hope you’ll take time to explore those resources. We hope you’ll connect with @SPLC on Twitter at SPLC on Facebook and also on Tumblr where we have a site that’s dedicated specifically to sharing links to interesting public records stories like those that Will’s team at Huffington are working on. If you’re a student journalist or journalism educator with any question about the law, please call our hotline at 703-807-1904 or email us at and thanks for listening.

May 2013 podcast: 'Tinker Tour' plans nationwide trip to discuss student rights

(05/09/13 8:00pm)

Mary Beth Tinker and Mike Hiestand discuss their upcoming "Tinker Tour" with Student Press Law Center Executive Director Frank LoMonte.Frank LoMonte: Hi everybody, it’s Frank LoMonte, executive director of the Student Press Law Center, thanks for joining us for yet another monthly installment of the SPLC podcast, where we talk about legal issues and developments of impact to those working in the student media. So I have to confess, that this month is a little bit of a First Amendment fan-boy geek moment for me, it’s a chance to have a conversation with one of the true heroines of the First Amendment. Somebody I’ve gotten to know for my five years at this job. One of the very first phone calls that I got and still the most exciting one that I got when I took over as director of the Student Press Law Center and that was from Mary Beth Tinker. Mary Beth Tinker should not need any introduction to anyone who has passed a middle school civics course, but just in case, Mary Beth Tinker’s name should be familiar to everybody as the Tinker in Tinker vs. Des Moines Independent Community School District, the landmark U.S. Supreme Court case that firmly established the First Amendment rights of students in America’s public schools to express in the non-disruptive expression of their choice, even on school grounds and even during school time. We’re delighted to have Mary Beth with us this month to talk about an exciting project that she and our other guest, Mike Hiestand, are launching together. Mike, too, is someone who should be no introduction to folks who know the SPLC. For 20 years, Mike worked for us as a staff attorney, helping more than 10,000 students and teachers with individual phone calls on our legal hotline, covering the country DG workshops, being the primary author of the “Law of the Student Press” reference book that is in newsrooms and classrooms across the country. Mike is now living on the West Coast, works for the SPLC on a special assignment basis and a consulting basis and is still a very valued friend and ally of ours. And Mike Hiestand and Mary Beth Tinker, thanks for being with us today. And I guess let’s just go ahead and dive right in. And Mary Beth, for those who flunked middle school civics, take us back and just share for a minute the story of the Tinker vs. Des Moines case and why this should still resonate with people all these years later. Mary Beth Tinker: Thanks, Frank! It’s so good to be with you and Mike today and all the listeners as we talk about civics and the rights of youth and there’s so many things going on today with young people standing up and speaking up and I think young people need their rights, need to know their rights and use them more than ever. So, when I was a young girl growing up, it was in a time like this that actually when there were a lot of important issues to be decided in our country and in our world. Things having to do with the environment, I mean the environmental movement was really started at that time with “Silent Spring” by Rachel Carson, the book that really changed everyone’s thinking about the environment. And then we had, of course, the racial issues, the civil rights movement, also immigration issues, even gay issues. There was a big gay marriage case at our Supreme Court, too, back then. It was decided in 1967, the Loving case. So it was a very similar time, when so many issues and so many things that young people wanted also to take part in having a say about these things that were going on in our world. And so, I was raised pretty much in the Church. My dad was a Methodist preacher in Des Moines, Iowa, and so of course we learned these values of brotherhood and my parents decided, why wait for heaven for that, we should put this into action on Earth. And let’s jump in and work on brotherhood and those kinds of issues right here on Earth. So they got involved with some of the Civil Rights issues. When I was five years old, for example, there was a swimming pool in town in Atlantic, Iowa and they wouldn’t allow black kids to swim there. And so, my dad decided that wasn’t very Christianly and it wasn’t very democratic, so he and some other kids, young people, went up to the City Hall and worked on changing that. That’s kind of the way that I was raised, so by the mid-1960s, when people were speaking up and standing up—1963—we’re just passing the 50th anniversary of the Birmingham Children’s March, where thousands of kids in Birmingham, Alabama spoke up and got out in the streets and so many of them were arrested. And they even stuck the dogs on them and fire hoses and all of these black kids there with Martin Luther King and others, they were standing up for what was right, standing up for democracy. And so, I would see these kinds of things on TV and it made a big impression on me and then by 1965, when the Vietnam War was building up, there had been about 1,000 soldiers killed in the war by then and so us kids decided to do something about it because we have these examples of other kids that speak up and stand up, so we just decided to wear black armbands to school to support a truce that was being proposed by senator and also mourn the dead in Vietnam. And there was just a handful of us, by that time my dad was with the Quakers and so some of the kids in our Quaker meeting and also some of the kids at the other youth group that we were with, the Unitarian youth, they got involved, and just a few of us kids, a small group decided that we would do this. And we were just really emotionally moved by what was going on, on TV when we watched the war. We would see the soldiers on the ground in the body bags and the flaming, burning huts, and all of these things going on, it just looked like the world was on fire when we watched the news. And kids in our neighborhood were being called up to war, so we just wanted to say something about it and do something about it. So, the principals, they found out about it and decided that was too controversial and they made a ruling against us wearing the armbands. It was in 1965, I was in eighth grade, I was 13-years-old. My brother John and Chris Eckhardt and Chris Singer, Bruce Clark, Ross Peterson, just a few of us decided to do it and even though it was against the rules, it was a hard decision because it was against the rule. But, in the end, we had these examples of other people to stand up for what they believe in. Like Martin Luther King, even, and those kind of people. So we decided that we had our conscience and we wanted to use our First Amendment rights too. So a few of us were suspended and my parents, they kind of understood because they had at first, they didn’t want us to do it, but then they understood, because we said, look that’s how you raised us, you gave us these examples, like going to the swimming pool to speak up. So, we were suspended and then I guess it would’ve been the end of the whole thing. But then there’s a group called the American Civil Liberties Union and they came and offered a lawyer because they thought kids should have rights too. And they go to the Supreme Court a lot because their whole thing is the Bill of Rights and standing up for it. So that’s what happened and then my life went on and I was in junior high and high school and then by 1969, we finally won the case. We lost at first at the District Court and then at the Appeals Court, and of course I thought we’d lose the whole thing, because I thought kids wouldn’t have a chance against people like the teachers and the principals and things. But, some of the school board was in favor of us and there was mixed feelings about it. But in 1969, the Court ruled by 7-2 that neither students nor teachers lose their rights to express themselves in school. So it was a great victory not only for us, but for young people all over the country. Frank LoMonte: That’s a fantastic story and a fantastic precedent that still stands to this day and something that every school kid should learn about, and not just learn about, should be able to live in their life. Mike, let’s turn to you and tell us about this concept that we’re here to talk about today—the Tinker Tour. Tell us about this idea, how did it come about and what are you and Mary Beth aspiring to do? Mike Hiestand: Well, I joke with Mary Beth that I might have told her story more than she has, it’s probably not true. But for 20 years, like you’ve mentioned, I was an attorney with the Student Press Law Center and I continue to do some of that work. And the story of First Amendment rights for students starts with Mary Beth’s case. That’s how it is. So one of the things that I always did and I learned how powerful it was very early on, was I’d go into a classroom and maybe waiting to hear from an attorney and expecting all of these court cases and citations and things like that. But I’d lead with Mary Beth’s story and the mood in the room quickly changed. I mean there is a real power to her story. Mary Beth and I actually met, it was about 15 years into my job at the SPLC before I got to meet her in person. And like you Frank, there’s a star-struck sort of quality about meeting Mary Beth. And she’ll be the first to say that it’s not about her, it really is about the case. Mary Beth Tinker: That’s pretty funny, that’s pretty funny. Mike Hiestand: But you know, it’s true. You stand for something very, very important, very, very powerful. And so, she, when I was retiring from full-time work with the SPLC, the Society for Professional Journalists was kind enough to give me an award. And Mary Beth somehow saw that I was getting the award and she sent me a nice congratulatory email. And it was all part of feeling good and everything. I remember I was actually out in my hot tub, just kind of relaxing and just kind of from nowhere, this idea for the Tinker Tour came about. And I’d always dreamed about when I worked for the SPLC, kind of taking our show on the road and meeting students in their schools and kind of spreading our message that way instead of waiting for them to come to us and go to conventions and things like that. But when Mary Beth sent me the email, again, it just kind of all came together. I said, my goodness, it really is almost like being able to take someone like Rosa Parks on tour. She has an effect on students that is undeniable. So what we’re trying to do with the Tinker Tour is it’s really very simple. We are trying to raise money to get a bus or a reliable RV is what I’m telling people and go on tour. And go from school to school and college to college and throw some conventions in along the way and just simply talk to students about the importance of free speech and the importance of civics education generally. And Mary Beth and I are kind of coming from different, and talking about doing the tour here, one of the things that we talked about is are our experience with the Vietnam War, I guess. About a year after Mary Beth wore her black armband to school and was suspended, my uncle, actually he was a fighter pilot, he went to Vietnam and was shot down and killed and left behind my five cousins. And then two years later, my dad was also a fighter pilot. I remember very clearly watching him take off to Vietnam. It was a very different sort of experience and when Mary Beth talks about wanting kids to be able to stand up and express themselves on issues like that, it really hits home in a very personal way. So, we really hope by taking our message on the road that we’re able to reach students that we might not otherwise have the opportunity to talk to. Frank LoMonte:This is such a fun idea. I want to give everybody the website to look at, it’s called and we’ll give that again at the close of the discussion. But I want to ask Mary Beth Tinker, you have obviously a great sense of the climate of the First Amendment at schools, you travel around to lots of them. You’re interacting with students all of the time. Why do you think in the year 2013, why do you think this message is important, is timely, is resonant? What is the importance of telling this story to young people about the role of the First Amendment in their lives? Mary Beth Tinker: Frank, there are so many decisions that are being made about students right now that are going to affect them for years. Whether it has to do with the education system and what is it going to be like? What proportion of their results will be based on standardized testing? What public schools will be closed? I was just at a big event at the Department of Education where students had come form 30 cities and they wanted to speak to Arne Duncan about the issue of public school closings in their communities. From Detroit, Chicago, all over the place. There are issues having to do with, as I said, the environment. There’s a girl named Sarah Kavanagh, she just found out, she was living in Alabama, she found out that there was brominated vegetable oil in Gatorade. So she started an online petition and she got over 200,000 signatures on this and Gatorade has agreed to take out this flame retardant called brominated vegetable oil, which was in Gatorade. There are so many things going on in so many areas, whether it’s kids getting suspended and locked up. There’s the school-to-prison pipeline, which a lot of people have been talking about and concerned about. And just so many things that kids need to have some say about the issues and the decisions that are going to affect their lives. And they want to. Everywhere I go, because I travel a lot, now. I was just at four journalism conferences, Seattle, St. Louis, Ohio, D.C. Students are writing about these things in their papers and talking about them at their city councils and going to hearings in D.C. Some kids were just at a hearing talking about school closings issues. There are just so many things that students are speaking up and standing up about. And I think it’s great and I want to encourage them to know their rights and speak up about the issues that are going to affect them and that already are. Frank LoMonte: Mike, let me throw that question to you and ask it in a slightly different way. Again, you spend and have spent for many years, a lot of time around young people, in schools, talking to teachers, talking to students. What is your sense of the health of the First Amendment in schools around the country and the urgency of getting this message out into the school communities? Mary Beth Tinker: Well there’s a wonderful, sorry. You want to say something Mike? Frank LoMonte:Mike, you start. Mike Hiestand: Yeah, I was just going to say. It really, when you look back at Mary Beth’s case in 1969, it really was kind of the high mark of First Amendment protection for students in this country and ever since, for reasons that we all probably have different opinions about, the courts and schools and just society in general has tried to scale back those rights. And so, like Mary Beth said, there are a lot of students that are out there doing some very important work and some very exciting sort of work. But, certainly, in my time at the SPLC, it’s not easy to do sometimes in some places. Students are really having to fight to have their voices heard. There is a reason that big change happens with students and I think that that sometimes frightens the powers that be. Students don’t have mortgages to pay and families to support. When they actually are given the ability to have their voice heard, big things can happen. And I think that that’s been kind of scary. And so, we’ve seen the First Amendment rights for students significantly widdled away. And we’re just trying to, again, remind students that it’s not over yet. There are some really exciting things that are happening right now and simply because a principal or some other authority figures says you can’t, that doesn’t have to be the end of it. Frank LoMonte: Go ahead, Mary Beth, you were going to add something to that. Mary Beth Tinker: We are so lucky for our tour, the Tinker Tour, to have been endorsed by a number of leading civics education organizations. People like the Campaign for the Civic Mission of Schools, National History Day, the National Council for Social Studies teachers, the National Constitution Center in Philadelphia, which has invited us to kick off from their center, we’re so excited about that. And why are these groups endorsing? Because there is a lack of civics education in our country today and our democracy really depends on having an educated citizenry and one that uses the Constitution, uses the foundation of our democracy in practice. There have been some studies, there’s a group called iCivics, that Sandra Day O’Connor has been very involved with and she’s doing a great job of spreading civics education around. But these studies show that only one-third of Americans can name all three of the branches of government, for example. And one-third of Americans can’t name any. And these aren’t students; these are adults. Or that only half of Americans know that a decision by the Supreme Court, that is 5-4, it has the same weight as a decision that’s 9-0. Just things like that. How the Supreme Court works. What are the three branches of government? Basic civics education is not in a good place in our country right now and I think that’s why we’re getting the endorsement of so many organizations. The NAACP, the ACLU, the Close Up Foundation, the Newseum, we made a film there about our tour. And so many people are really behind us because they see that there’s a need more than ever in our country for basic civics education and to encourage. Young people take education home to their families, too, so we know that this will be a good thing not only for youth but for their families and the adults in their lives, as well. Frank LoMonte: One of the things I love about your campaign on is you’re trying to engage young people on platforms like Instagram to send in a copy of their favorite celebrity if they can ambush a celebrity and get them to flash a peace sign, which is sort of what you decided, which is great symbol, kind of the universal symbol of the Tinker Tour, that will be really cool and I will really look forward to seeing some of those results as kids get out there with their cameras and start shooting. That will be really cool. And I also know that you’ve been invited, in addition to the National Constitution Center, you’ll be at the Supreme Court in the fall during the Supreme Court’s fall term to talk about the Tinker case. You and your brother, right? Mary Beth Tinker: Yes, we’re really excited about just going around the country to all different kinds of places. At the Supreme Court, there’s going to be a talk about the case and the people involved in the case. And we’re just excited about all of the conferences that are coming up that we’ll be able to stop at and to talk to students, teachers and others about the First Amendment, the Constitution, journalism education and their rights and their responsibilities in our democracy. It’s really exciting. Mike Hiestand: You know one of the things that I’ve seen, just real quick here, is Mary Beth and I have done, we did kind of a quick, mini version of the Tinker Tour, just kind of to check and see how it would fly when Mary Beth was out visiting me here. And it is just, Frank you and I have been out talking to students for years and years. We have never got a tenth of the response, the enthusiasm that Mary Beth generates. And it’s just so rewarding, I guess, and just so exciting to see students jazzed up about these important topics. If we can make sure that we can allow as many students and teachers and journalists. I mean we see this from journalists, too. I mean, they’re big fans. So if we can kind of stir up that enthusiasm on kind of more of a national level, it’s going to be great fun. Mary Beth Tinker: And the fun is really mine. I just love being with all of the kids and hearing the things that they have to say. Mike Hiestand:You do! Mary Beth Tinker: A seventh grader in Ohio just told me recently, she thinks that we’re fresher! And I just love it because they really are fresher and they really want to take action. They’re naturally geared to take action and to stand up and to get involved. Most of the time, I work as a pediatric nurse, so I have a lot of fun with kids, I like kids a lot and I know that this tour is going to be really great and have a lot of great energy. Frank LoMonte: Well, Mike, just by way of wrap up, tell folks how they can get involved in various ways and be supporters of this initiative and help make the Tinker Tour happen this year. Mike Hiestand:Yeah, well, the first thing is we need a bus. Or a reliable RV. And so, we have launched a crowdsource campaign on You can just search for Tinker Tour there. And we’re looking to raise money for a bus and for the gas to put in the bus and for all the various logistical things that go into making this tour happen. So that would be the first thing. The campaign ends at the end of this month, so May 31. We’re trying to raise at least $50,000 there. That will get us two months on the road, maybe a little bit more; we’ll see how it goes. Ideally, we’re looking to be on the road for about five to six months, because we already have about 100 invitations. So fitting everybody in is going to be tough.Frank LoMonte: Wow. Mike Hiestand: So, ideally we’d like to raise about $100,000 to do that. But a lot more information is available on our Start Some Good campaign site page or you can also go to our website, as you mentioned, just Frank LoMonte: That’s great, well definitely wanted people to check out the site, to check the site and let me throw in one more just for good measure. Not necessarily a coincidence that this tour falls on top of the 25th anniversary of the Hazelwood School District vs. Kuhlmeier decision, if the Tinker case was the high water mark for student free expression, then Hazelwood was potentially the low water mark in 1988. This year has been a year of reflection and reassessment around the country as people are taking stock of the detrimental impact that Hazelwood has had on the climate of schools and the ability, especially of student journalists, to freely express themselves. And it would be great if folks would check out the site to get more information about the effects of Hazelwood, the symptoms of Hazelwood, how you can get checked out and how you can get cured. So I just want to say thanks again to two of my First Amendment heroes, Mike Hiestand and Mary Beth Tinker for being with us on the podcast today. We hope you’ll check out their website and we hope you’ll check out all the resources that are available to you on the SPLC’s site, If you’re a student journalist or a journalism educator and you’ve got any questions about the law, the First Amendment or about your legal rights to gather and share news, we hope you’ll send us an email,, call our hotline at (703) 807-1904 or send us a Tweet, we’re on Twitter @SPLC. Thanks for listening and we’ll talk to you next month.

October 2013 podcast: New study shows problems and possibilities of civic engagement in schools

(10/24/13 8:00pm)

This month, Peter Levine, executive director of Circle, the Center for Information and Research on Civic Learning and Engagement, talks with Student Press Law Center Executive Director Frank LoMonte about a new study on the state of civic education.Frank LoMonte: Welcome to another edition of the Student Press Law Center’s monthly podcast. A show about the legal rights and responsibilities of student journalists. I’m Frank LoMonte, I’m the executive director of the Student Press Law Center. For more information about our work you can visit our website and if you’ve got a question about you’re legal rights and responsibilities we encourage you to get in touch with us, or 703-807-1904.Well, the Student Press Law Center was founded in 1974 as a vehicle to promote civic engagement of young people through the vehicle of journalism and in recent years there has been more and more attention and urgency being paid to the deficit of meaningful opportunities for civic participation in our schools.Our guest today, Peter Levine of Tufts University is working to change all that. He’s here to talk about a new report on the commission of youth voting and civic knowledge that was released by Tufts recently. It’s titled “All Together Now: Collaboration and Innovation for Youth Engagement” and it talks about the problems and the possibilities of civic engagement in schools, including the role that journalism can play in helping young people get better prepared for participation as voters and as citizens.So, Peter Levine, I’d like to welcome you to the show and this is a special pleasure. Peter is a really distinguished authority on the subject of youth civic engagement and has just come out with a terrific book, “We are the Ones We Have Been Waiting For: the Promise of Civic Renewal in America” that I hope to give you another change to plug at the end of our discussion. Peter has been an active participant in the Campaign for the Civic Mission of Schools and Street Law, you name it, any nonprofit organization that has to do with youth civic participation and Peter has had a leading role in.So, welcome and thanks for being here. Let me just get you to start off by discussing what you do at Tufts University with the Circle Project that you have been director of since, I believe, 2006 right?Peter Levine: Thanks, Frank. You’re way too kind, but I certainly appreciate the chance to talk about this stuff and your audience is very important to us. This is a great opportunity to kind of a great opportunity to promote discussion of the results of our study.Circle stands for the Center for Information and Research on Civic Learning and Engagement and we are a national research center. We study young people’s civic education and civic engagement pretty broadly, including young people up to age 29 and thinking about civic education to voting rights to AmeriCorps. We look at it kind of broadly.Frank LoMonte: So, we’ve got a link to this report, the All Together Now report, up on our SPLC’s blog, but maybe you can give us just a little setup for how this group came about. This is a very distinguished group of professors and scholars who work in the field of youth civic engagement and participation and they have come out with this report under the heading of the Commission on Youth Voting and Civic Knowledge. So what’s the commission and how did it come about?Peter Levine: It was a scholarly group, you’re right, and of course scholars don’t have a monopoly on wisdom, but we thought it would be interesting and valuable at this moment to pull together scholars from a whole range of fields to think about youth engagement.I guess in some ways the immediate reason was the 2012 election. We put it together before the election, but it’s already pretty clear that youth enthusiasm and engagement was down compared to 2008 and that turned out to be true and more generally, 2012 seemed like a moment to, with the presidential campaign and everything else that goes around that including all the media circus around a campaign, was a good moment to take stock.So, the commission had a pretty broad mandate to think about anything and everything that might encourage young people to be engaged with a focus on politics, you know, politics defined broadly as much more than just voting—but I guess we were not as interested in community service which is something else that is worth talking about but this was about young people’s engagement with politics, news, issues, voting, etc.Frank LoMonte: Right. Well, one of the things I really like about this report is it does not single out young people as being uniquely uninformed or ignorant. It’s not all about how dumb young people are, in fact, it points out that no age group has a monopoly on being misinformed about basic principals about how government works. So that being said, why are we focusing on young people?Peter Levine: Well, you know, the short answer to why we are focusing on young people is because we can actually do more to enhance their knowledge and their engagement and even their ethics than we can for older people. First of all, we’ve got young people. They’re in schools. They have to be there. We can engage them. Also, they’re more malleable. They’re more influenceable—in good ways and bad ways.So, I don’t start with the premise that there’s something wrong with kids today. That’s not really where we’re coming from. I mean, if that were true, that would be true, and we would say it. But, I don’t really see evidence of it. So many of the trends are actually remarkably flat over time. For example, voter turnout it really pretty flat since young people got the right to vote in 1972 and the best measure of young people’s civic and political knowledge, the federal measure the NAEP assessment is actually remarkably flat since the early 1970’sSo, I don’t really start with either the premise that what’s wrong with kids today or the premise that the kids today are wonderful, the millennials are going to come along and save us. Actually, my idea is more that, and I think my colleagues’ idea is more that we always have an issue with young people because we always have to be conscious and deliberate about engaging them and if we’re worried about the state of American democracy in general, we’ve got to put a lot of attention to young people because we can really influence them.Frank LoMonte: Sure, that makes good sense. The report has several observations about the value of discussing controversial issues as part of the school day. Why did you determine that that was valuable and what did the commission observe to be some of the obstacles that might inhibit that discussion.?Peter Levine: Well, we didn’t invent this. We did confirm it. We had additional data that sort of showed the connection, but there’s really a lot of evidence over many years that one of the best ways to be a good citizen is to talk about current events in class. In class because it’s good for the discussion to be moderated and for there to be some expectations that you need to have evidence for what you say, you need to do your homework, you need to be civil, and a teacher can create that environment. But there should also be—to your professional interests—there should also be freedom.Kids should be able to take the positions they want to take.So, not just us, but a lot of people over many years have shown that that’s just an excellent form of civic education and it is pretty rare. Most kids say they remember doing it sometimes, but I think they are thinking about that one time in tenth grade. Every study that looks at the prevalence of that kind of teaching, finds that it’s actually very rare and, unfortunately, very unequal. So it’s much more likely in an excellent, high performing, and affluent school system that you’ll have a lot of that kind of discussion. It’s very unlikely in a stressed school.Frank LoMonte: And the report talks about the perception that educators have as to whether they would or would not be well supported whether they introduced controversial political topics, which I thought was a very interesting observation.Peter Levine: Yeah. So, one of the obstacles is teachers don’t feel very supported and guess there’s a double problem. One is that they’re not supported by the assessments, tests, standards, everything that holds them accountable because discussing controversial issues just isn’t measured or required. If there’s any kind of test, it’s going to be about the nitty-gritty of government process, like how many votes does it take to get a bill through Congress, rather than the ability to discuss with peers.But then the other part of it is the political push back because quite a few parents and adults are ready to pounce when they see a discussion in school that they think is offensive to them. So, in our study, fully one quarter of teachers or American government, thought that the parents of their students would object if politics came into the class.Frank LoMonte: In an American government class.Peter Levine: We’re talking about an American government class. You know, that means most parents would not complain. So, I should say that. But, a quarter is enough for a chilling effect, as I think you would say in First Amendment law.Frank LoMonte: And I am showing my institutional bias here, but I was definitely struck by the connection that the commission drew between consuming and creating high-quality news and being a more effectively participating citizen. Can you talk about that connection and I guess, given that connection, what should our school policy makers be doing about it?Peter Levine: Right. So, here’s a place where we could be kind of more optimistic, because it’s been a little gloomy so far. I think kids have always learned from being news producer and you’ve been protecting their right to do so. The traditional vehicles are mainly the student newspaper and the school magazines and so on. They now have a much broader variety of media and means to be news producers and it’s not just the technology, the fact that they can now blog or do mashups of videos, but it’s also that there’s a kind of more open media environment where a kid could do a news story and really make a difference to an issue. You actually defend those people when they get in trouble, but sometimes they don’t even get in trouble they’re just helpful.In some ways, the news media environment is more open to creativity now and that’s great because kids are at the cutting edge of being creative with news media. They do need guidance. Not everything is equally valuable. They do need to be steered toward more important issues rather than trivialities and stuff, but I’m actually pretty excited at the potential of news media creation in the twenty-first century for kids.Frank LoMonte: Yeah, absolutely. And the report does, in what I think is very useful about this report that separates it from you know the academic chin stroking that just sits on shelf, is that you do have some really concrete recommendations for families, for schools, for state policy-makers. So I guess in the realm of encouraging the discussion of controversial issues in the classroom and in the realm of encouraging students to be consuming and creating good, quality media that is addressed to matters of public concern, what are some of the recommendations or takeaways? What could schools and the rest of us be doing better?Peter Levine: I’m glad to address that. There’s a lot of different things we could do. I think, for people outside of schools, who aren’t either educators or policy-makers, probably the most important thing is to be supportive of the discussion of controversial current events in schools.I mean, there’s so many cases where a particular discussion is sensitive to somebody and that becomes a lighting rod for criticism. But I hear no voices saying that they actually want to have discussions of current events in schools and I don’t think, you know, very many superintendents get a line of parents outside their door saying, “I want to make sure my kid is getting a chance to talk about controversial issues.” They get every other kind of pressure they don’t get that.So, I think if you’re just a citizen or a parent or a kid, you should be advocating for the discussion of current events. You don’t have to lead with controversy because that might just get us in trouble, but free discussion of current events is going to include some controversy.I don’t want to answer at too long length but there is a lot that educators and policy makers can do as well and perhaps the one thing I would emphasize is that our standards for civics, which after all are regulatory documents, they do say what must be taught in schools, they really do not emphasize the discussion of current events.They emphasize an immense number of facts that students are supposed to know. They result from excretion over the decades that people decided kids should know and nobody ever takes a fact out of the standard and there’s no time, and it’s very bad politics because the fact that something is in the standard is taken as the government cares about it so you can’t take it out without offending somebody. So, 9/11 happens, everybody has to have 9/11 in the standard and if it’s not there it’s because you don’t care about 9/11.So, we end up with 95 pages literally of facts in California that social studies teachers are supposed to cover and so we need to revise our standards so that they’re much simpler, shorter, and much more about the discussion of current events.Frank LoMonte: Right. Boy, that seems like a really good way to teach memorization, but not a really good way to teach critical thinking at all.Peter Levine: Right.Frank LoMonte: More generally, there’s definitely a sense that civics as a discipline is being squeezed out of the public school day and you’ve referred to one reason why, which is the difficulty in testing it and the fact that it doesn’t show up in standardized tests nearly with the frequency that math or science or English does. What else is out there, I guess, what are the other head winds into which civics education is sailing right now and is there anything that can be done about that?Peter Levine: Yeah, I think you hit the biggest one, but it’s true that the very idea of civic education is more and more controversial. So, that if I go around advocating civic education, and so do you, but I get more and more skepticism or cynicism about it “aren’t you just trying to teach the kids to be democrats or the ‘capital D democrats’” or “aren’t you just trying to make them like you” or whatever. So, there seems to be less trust and more cynicism about the very idea of civic education.Then parallel to that is just an obsession about preparing kids for the twenty-first century workforce and the idea that civics is an afterthought and we don’t really need that to have kids prepared for the workforce. We are trying to do some research to show that civics is good preparation for the workforce and that might help but, there’s a fundamental problem if people think that the purpose of schools is to produce workers and not also to produce citizens since, after all, we did create the public schools in the first place to produce citizens.Frank LoMonte: Sure, yeah. Interestingly, the employer surveys really do tend to emphasize a lot of the soft skills more than the hard skills when you see what employers want out young people. Critical thinking skills always rate very very high on the employer surveys, much more so than subject specific knowledge, much of which you can pick up on the job if you have good critical thinking skills.Peter Levine: Right. So, I think there is an agenda and opportunity and one of the reasons I’m actually pretty optimistic for us is that we can start showing that civic education is just good education and then we reduce the trade-off.Frank LoMonte: Well, just by way of summary, we’ve hit on some of the highlights out of the “All Together Now” report, and I do encourage everyone to read the entire report, which you can find on the CIRCLE website, but what are some of the other more revealing or more significant findings that you think came out of that youth voting commission, and with those findings, what happens next? What do we do with this report to make sure it doesn’t just sit on a shelf?Peter Levine: Well you know, I talked to people who haven’t thought that much about civic education before. They tend to say, “why don’t teach civics anymore? Why don’t we test civics? I had to take a civics class.” So what they want really as a response is a mandatory civics class and a test. The problem is that we’ve actually studied the effects of those two things and they’re very disappointing. Kids don’t really know more in states that require the civics test or the states that require the civics course.So then, you can get pessimistic about civics in general and say, “well, it doesn’t work.” Well, that’s not true because good civics classes are very beneficial. The problem is that the state mandates don’t generate good civics classes. I think that’s because everything depends upon quality.So you know, you have a civics test. It’s only helpful if it’s a good test. If it’s a very dumb test, it’s not helpful. Likewise, a civics course is good, but only if the teachers are prepared for it and the materials are good.So, I wish that it was easier because I wish I could say, “we’ve found the recipe, you need to have a 12th grade civics class, as some states do.” But, I can’t say that. So I think what I have to say is more challenging, which is that we need lots of people working on the question of quality over time, and that includes people like the journalism profession and the law profession, because those are two specialized professions, which have a great interest in the quality of our civic education, which needs to be there, not just once, but year in and year out helping schools to do a good job focusing on quality.Frank LoMonte: Well, we’ll just take a minute or two, if you don’t mind, we’ve got a little bit of time. I’d like to hear just a real high level summary of “We Are the Ones We’ve Been Waiting For,” which is just out from Oxford University Press. Tell us about the book and tell us where people can get it.Peter Levine: Frank, thanks for letting me plug my book. They can get it on Amazon and it’s from Oxford University Press, but you can get it on Amazon Kindle too. It’s a very general book, for better or for worse. It’s not narrow. The argument, I can summarize very easily, is that we can’t solve our really serious problems as a country, like violence and obesity and decay of our great cities without tapping the energy and enthusiasm and work of ordinary Americans.So, we need more civic engagement. I talk about what civic engagement is and why it’s important. Then I say, it’s actually not in good shape. I know it’s controversial because people think civic engagement is doing fine, but I argue that it is actually in decline and has been for 30 or 40 years, not because of anything wrong with people and their motives, but because the structures that allow us to engage have been eaten away.Then, I argue for movement to renew active citizenship in America, and I try to be realistic about it. I don’t imagine tens of thousands or people marching to renew active citizenship, but I talk about how we can build on the work that we have, which is serious and there’s a lot of it, to have a movement for civic renewal.Frank LoMonte: Well, I’m looking forward to some airplane time when I get to the book. I want to encourage everybody to check out an awesome URL that CIRCLE has,, really good work on snagging that one, excellent website where you can find the entirety of the “All Together Now: Collaboration for Innovation for Youth Engagement” report.Also, of course, please check out the website, where we’ve got lots of resources about the law, the First Amendment, the law of gathering and publishing news, we hope you’ll subscribe to our podcast, our blog and our news flashes and that you’ll use the SPLC legal hotline if you’ve got any questions about your legal rights. Best way to reach us is by email: Levine from Tufts and from CIRCLE, thanks so much for being our guest, much success to you and your mission to bring civics back into schools and thanks for being with us, everyone, we’ll talk to you next month.

November 2013 podcast: New head of National Scholastic Press Association discusses plan

(11/24/13 7:00pm)

Diana Mitsu Klos talks with Student Press Law Center Executive Director Frank LoMonte about her new role as the National Scholastic Press Association's executive director.Frank LoMonte: Hi and welcome to another monthly edition of the Student Press Law Center podcast. I’m Frank LoMonte, executive director of the Student Press Law Center, which for almost 40 years has been a non-profit advocate for the rights of student journalists. Every month, we get together to talk about developments affecting the rights and responsibilities of young journalists and in addition to this podcast, you can find out much more about our work and about the issues of concern to young journalists at Our guest today is Diana Mitsu Klos, she is as of the first of November, the new executive director at two terrific organizations, the NSPA, National Scholastic Press, and the ACP, Associated Collegiate Press. And, while, journalists are good at an awful lot of things, one thing that they’re not always so great at is recognizing themselves and patting themselves on the back. Many times they let their accomplishments go under appreciated by the public and that’s why organizations like ACP and NSPA are so very valuable because they do hold up the very best in student journalism for the public to see and to appreciate and to value. Since 1927, I believe, the NSPA has been offering the Pacemaker awards, which are known in the field as the Pulitzer Prizes of student journalism. And these organizations are just terribly, terribly fortunate to have something of the quality and the depth of experience of Diana Mitsu Klos, their director. I’ve known her through her work with the American Society of News Editors, where she ran their high school journalism program, which was so instrumental in getting hundreds and hundreds of newspapers launched online. Before that, before her work with ASNE, she worked in daily newsrooms as a reporter and an editor and she brings such a wealth of experience to this position and in fact was on the national board of the NSPA before stepping down to apply for the executive director position. So, we’re really delighted to have her join us for a conversation today and welcome Diana. And, just is there anything else that you would like to introduce about yourself or about the organizations?Diana Mitsu Klos: Well, I’ve been involved with student media since high school when a friend and I began the first student newspaper at City Honors School in Buffalo, New York. It was called The Orion; there was no prior review. We were able to run it off on a mimeograph machine and sell it for a nickel. And we were able to sell it out each and every time. And I look back on that as one of the most valuable, and for me, formative, experiences as a young person, as a student. It was an important part of my education. And, to this day, journalism informs all of us as a society, but I often think it’s underestimated as a teaching tool.Frank LoMonte: Oh, no doubt about that. And, that’s actually one of the things that I wanted to touch on. It is a really, really trying time for the profession of journalism and in some ways, those same forces that are buffeting the profession are being felt at the school level. Certainly, we’ve got college newspapers that are not making the revenue that they used to make, maybe not having the pickups and the reach that they used to have in an earlier day. Financial pressures undoubtedly are being felt at the high school level. At least anecdotally, there is some evidence of schools doing away with the print product or maybe doing away with journalism all together. But at the same time, you see some awfully good examples of student journalism out there. And you especially see them through the awards that the NSPA and the ACP administer. So, what’s the state of student journalism? How do you see the landscape? How do you see the field?Diana Mitsu Klos: My view is that while there are, as you mentioned, tremendous challenges in the operating model for commercial media, but there are also tremendous opportunities both for new journalists who are entering the field and for both collegiate and scholastic publications. As you mentioned, it’s been a very difficult transition, continues to be, for the commercial media as they look to what is becoming a variety of funding and economic and advertising models. The thing about the collegiate and scholastic press is, in many ways, the students can be more nimble. There is a greater opportunity to experiment with different forms and kind of look deeply at how your fellow students best consume news. Increasingly, it’s going to be on their phones, or it may be on an iPad or something along those lines. So, the hopeful thing is that I think the current generation of young journalists grew up as digital natives. And it just comes naturally, this instinct that well, we have to be able to deliver news and information, one that’s relevant to our fellow students, and two, that we have to have deliver models that make it easy for fellow students to consume media. The other thing that I express a great deal of hope about is that in many ways, there’s a movement nationally to look at issues such as media literacy, digital literacy, what most of us used to call “civics,” and you look at the teaching and hands-on work of journalism, that’s your greatest opportunity to really teach some of these 21st century media skills to ensure that young people can emerge from an educational experience in which they’re better readers, they’re better writers, they learn to communicate effectively, and most importantly, they begin to think critically and really think for themselves. And what this means in terms of both producing and consuming news, is the idea that, yes, there is plenty of truthiness out there, but there is always going to be a need for fact-based truth and good storytelling and conveying critical and important and sometimes unwelcome and unpopular information. But that the benefits of it, to both individuals and to strengthening this society, make it a real necessity. So I do understand. Most students who are going through programs now, and you know for example, if you’re say in junior high or moving into high school and you’re truly interested in journalism, your news organization can become a member of NSPA. And the great thing is, as you move onto college, if you’re still pursuing media, your collegiate news organization can become a member of ACP, which means that truly, between the two organizations, we can help young people and offer assistance to their advisers, to look at best practices, to look at ethics, to look at emerging tools and technology, and come out of this process either looking for their first internship or full-time job. Or, if they go on to any other work experience, they are going to have some of the skills that will give them an edge and help them be successful.Frank LoMonte: You’ve mentioned something really important, both about the skill building and also about the civic engagement value of journalism. And, I wonder, because you have this role at the ASNE helping newspapers to go online, what do you see there because undoubtedly you’re familiar with the findings when Mark Goodman and his team at Kent State did research last year, sort of a census of the lay of the land of high school journalism. What they found is that even though over 90 percent of high schools offer an opportunity to get practical journalism experience, less than half of those are offering online publishing even though we all know that teenagers have no difficulty with the skills of online publishing. We know they’re comfortable reading and getting information there. But there are obstacles to making that leap to publishing online. Can you talk a little bit about that? About what has maybe held back the development of online publishing at the scholastic level and what organizations like yours can be doing to help bridge that gap?Diana Mitsu Klos: Sure. I think as you said, students have, as digital natives, they have the instincts about how they’re going to seek out news and information. I think what often happens within the structure of schools is as there was once, sometimes, trepidation about ink on paper, and you could have outrageous attempts to censor. You know, for example, attempting to collect all the newspapers and put them in a closet or something. There are those who have the same trepidation, who realize that once something goes online or it goes digital, there is a footprint there that you can’t quite get rid of. Once kind of the news or information is out of the bottle, it’s going to kind of move on its own and be in that space. And I think in part, there is, that there may be some administrators, others in the education community who simply express a concern that it’s something that goes beyond their control.Frank LoMonte: Right.Diana Mitsu Klos: You know, understandably, the point-of-view may be, well we want to protect students’ privacy, we’re concerned about bullying issues, but the thing to realize is if these students are practicing journalism and seeking to adhere to the best practices in journalism, you’re not going to have those problems. If anything, you’re going to have these young people being leaders and taking on some of these difficult issues that may be brewing in the school community and helping form a sense of community to solve these problems. So I think this whole notion of, boy it was hard to control ink on paper, it’s even harder to exercise control in an online or digital atmosphere is one thing. I think the second is that many of these communities, these school communities, particularly those that are underserved are still struggling with the basics of technology. It’s one thing for all of us to kind of be on the front end of things. You can put on your computer and you can pull up your Smartphone and look at things. On the back end, though, you need to have someone who really understands systems and knows how to network these computers and install the proper type of software on them and have the accompanying hardware so that you can actually use this equipment consistently and productively. And I think what you see in many schools is at times there is a delivery of something like computers or other equipment. No one is quite sure of how to get it pieced together and make it useful and meaningful. So I think you have some of that in which you have school districts that unfortunately are way behind the curve in terms of updating technology, while both students and teachers really see the value of using these tools and are in some cases desperate for it. They’ll bring in their own laptop or pad or Smartphone just to give students this opportunity. And I think the third thing is, you can see this certainly in public education, that there is simply because of the funding base and the tax base for many of them, you have some schools that are reasonably well funded and you have others that are just terrible underserved. Many of them are in our country’s most rural and most racially, ethnically and economically diverse school districts. So that in and of itself becomes another challenge for all of us. So I think that groups like NSPA and ACP, Student Press Law Center and many others in this community of national journalism groups, I think we can see what the challenges are. What is means is we need to be far more effective at reaching into these communities, providing basic tools and best practices and also ensuring that, and this speaks to the survival of all of these groups, as you see the demographics of our nation change rapidly, we need to embrace all of these communities, because if we don’t, we’re simply missing far, far too many people and not providing those opportunities.Frank LoMonte: Well that’s such a great argument, too, for that allowing students to publish digitally because certainly there’s a well documented digital divide where students in underserved communities, and these are predominantly inner city minority communities, maybe don’t have access to broadband at home, maybe don’t have even a good quality home computer or tablet at home, and one way to potentially bridge some of that gap would be to give the digital publishing skill-set and opportunities when you are on campus during the school day because you’re not going to get that when you go home at night. That seems to be a very compelling argument.Diana Mitsu Klos: Oh, it absolutely is. And what goes with that is you see the momentum building in terms of technology getting better faster. So even a decade ago, you might be able to buy a piece of software or at that time a computer, and expect it to work, to function reasonably well for two, three, four years. What you’re having now is kind of a rapid recycling and disposal of this equipment as something new becomes available. And it’s the same with software, much of which is not free. So there becomes a challenge not only for districts, but certainly for families that are struggling economically or as families have not been able to adapt to a multimedia environment. These students are missing out and I think we have a real role and responsibility to help them become productive, to be able to pursue and meet some of their dreams. Because, again, like I said, many students who are involved in journalism are picking up a wonderful skill-set. They may not go on to be practitioners of journalism, but they will come out having a better understanding, especially in this digital age, of what it means to be responsible in what you post and take personal responsibility for what you post. That’s a very necessary skill right now; you just see far too many examples where, you know students may not be aware of what that footprint means.Frank LoMonte: Sure, sure.Diana Mitsu Klos: There was a story in The New York Times in that last two weeks about how now more than a third of college admissions officers say they have decided to put a student’s application on the rejection pile because they looked at the social media footprint and thought they saw things that they thought were just terribly irresponsible.Frank LoMonte: Right, sure, and…Diana Mitsu Klos: I think that some of those students, if they had some bearing and experience in journalism, they would kind of realize that some things are inappropriate or perhaps deeply personal, but there’s no need to kind of share that with the world.Frank LoMonte: Sure, undoubtedly. And all of that background in not just the law of publishing, the defamation law, the privacy law, but the ethics of publishing, too, are so effectively conveyed by a journalism education. It certainly seems like schools that are beset by cyber bullying, by online cruelty, would embrace journalism as an anecdote to that, and we certainly hope that they do. Let me ask you, just switching gears, because not only is this a time of tremendous change in the field of journalism, but it’s a time of change at your organization, as well.Diana Mitsu Klos: Yes.Frank LoMonte: We know because it was just announced recently by the CMA, College Media Association, that henceforth in future years after the current contract expires, that the ACP and the CMA won’t be co-presenting their typical fall convention together, which so many college journalists and advisers have become accustom to attending. And so, there’s a challenge here for ACP to figure out I guess where you’ll present your awards in the future, how you’ll deliver training, what your proper role in the media landscape is with other organizations like the CMA or at the high school level, like the Columbia Scholastic Press out there. I know this is all very new to you and I know that this is a development that just happened. Any thoughts about the direction that the ACP is going?Diana Mitsu Klos: Oh, sure. The circumstances and I think the outcome of the decision by CMA not to co-present with CMA after 2016, is really unfortunate. There’s a tremendous history between the two organizations, including that there are people in ACP who founded CMA. But, I look at these matters very practically. And while the situation, I think the outcome, are unfortunate, it gives us a really great opportunity to look at some of the things we offer, how we structure our own conferences and conventions, because you know that there are several through the year which ACP is the sole organizer, that includes our best of the Midwest, which comes up in February, it includes our national convention, that will take place in San Diego. And, I think this is a great opportunity to take some of the directions that our board has discussed in terms of looking at best practices, teaching the tools of technology, embracing diversity, ensuring that those who are practitioners of journalism are connecting with the young group of journalists who are entering the field. So, there’s an opportunity for us to look at new types of partnerships with different groups. We will have a convention in 2016 and the Pacemakers will be presented there. And I look to this as being an exciting opportunity. There are some things that we can refine, that we do that we can reshape. You know, like many non-profits and many journalism organizations, I think as you mentioned at the beginning, don’t necessarily do a great job at conveying their offerings and their messages to the larger student population, and I think that’s something that we can and will, you’ll see many more opportunities for student news organizations that make up our membership to both engage with what we have to offer, but to learn from one another, as well.Frank LoMonte: Well, just in a minute or two that we have left, just any thoughts, obviously you’ve had to go before the board and be interviewed and lay out sort of a vision and an agenda for what you’ll do as the head of NSPA and ACP, so can you share some of that with us? What are you hoping to accomplish in your time there?Diana Mitsu Klos: Some of the goals that I have as we move forward are to help ensure that we convey best practices, to embrace diversity in all its forms and do a much better job at reaching out to struggling news organizations in these underserved communities to help them become stable and to help them grow. Also, I think we can be effective at teaching and giving students the tools of new technology and how to use it in their reporting and conveying of news and information. And I think as well we can sort of teach the overall lesson that journalism provides the communication, the new media skills and basic technology skills that any young person needs to succeed in today’s labor force.Frank LoMonte: Well that’s a terrific agenda and I wish you all of the best of success with it. I know and I feel confident that the NSPA and the ACP could not be in better hands and it’s just delightful to see somebody so deserving, honored with that pair of positions. As we sign out, can you give the website for the two organizations so that people who want more information can find out about the Pacemakers and about all of the services that the ACP and the NSPA deliver?Diana Mitsu Klos: Sure. We are online at When you get to that page, you will have a choice of either going to the NSPA site or the ACP, then it’s easy to bookmark it, one or both sites. I also invite folks to follow us on Twitter and to like us on Facebook, because those are two of the fastest ways in which we can convey information.Frank LoMonte: Terrific, well Diana Mitsu Klos, congratulations and thanks so much for being with us. And for all of you out there, we hope you’ll also follow the Student Press Law Center on social media, we’re just @SPLC on Twitter, we do have a Facebook page that we hope you’ll like and of course, do take advantage of all the resources available on the website. If you’re a journalism adviser or a student journalist with any question about your legal rights, you can reach us by email at We’ll talk to you next month. Thanks so much listening.

April 2012 podcast: New film tells story of young journalist imprisoned for protecting a source

(04/24/12 8:00pm)

Filmmaker Donna Lee and attorney David Greene discuss the new film "Activist Blogger," about a young journalist who spent 226 days in prison for contempt of court.Frank LoMonte: Hi, thanks again for joining us on the Student Press Law Center’s monthly podcast. I’m Frank LoMonte, the executive director of the SPLC and on the podcast we talk to people who are making news in the courts, on campus and in the media about things student journalists need to know. In a minute we are going to talk about what it’s like to spend almost eight months in prison defending your rights as a journalist with the maker of a new documentary film, “Activist Blogger.” Remember that if you need legal information, chances are the Student Press Law Center has it as and remember that the SPLC is a nonprofit powered by the support of donors like you. Josh Wolf who graduated from San Francisco State University in 2006 and went onto graduate school at Berkeley, is the answer to a trivia question that he would rather not be and that trivia question is: Who is the American journalist who has spent the longest time sitting in prison for defying an order to testify before a grand jury. Josh got sucked into the legal system because he was on the scene shooting video for a documentary film when a protest against the G8 global economic powers turned violent and resulted in clashes with police. Josh spent 226 days at a federal correctional institution while his lawyers fought to convince the court that Josh had a First Amendment right as a journalist not to give up the video he shot or to give testimony in a federal investigation. Josh got legal representation with help through the National Lawyers Guild and one of his former attorneys David Greene is here to help flesh out the back story. David is the long time executive director of the First Amendment Project and is now the senior council in the San Francisco office of ___ an outstanding law firm in specialties that include media law. Also with us to talk about the Josh Wolf case is filmmaker Donna Lee, whose film about the case “Activist Blogger: The Josh Wolf Story” is just out on DVD and is being marketed especially for use in college and high school journalism classes as a way of teaching about the importance the reporters privilege. Donna began making this film as a project for a college video class and she has worked as a producer, director and writer on several other documentaries as well. WWell Donna and David, welcome to the podcast. David let’s start with you, please give us a little set up about who is Josh Wolf and why might this story have come out very very differently had Josh been dealing with a state court in California rather than a U.S. district court.David Greene: Yeah thanks Frank. I’m happy to be on the podcast. Josh at the time, when this happened, was working at a community college television station on the technical side. But he actually shot this video to distribute through his own website. He had a video blog and the video was—his intent was to self distribute through his video blog and he was ask affiliated through ND media as well. So, he covered the G8 protest and during the course of the G8 protest, two things happened. One is that—and the main protesters were identified with a, small a, anarchist group. Two things happened over the course of this protest: one is that a San Francisco police officer was assaulted and the second thing is that a San Francisco police car drove—there was a large piece of, I believe it was a piece of foam, and was being used as a sign. It was dropped to the ground and it was lit on fire, we’re not quite clear. It was on fire and the car sort of drove on top of it, sort of got stuck on it. There was a possibility the car was going to catch on fire, which it did not do that. Anyway, Josh recorded a video of it, he posted it. He posted an edited version of the video on his website and also to indie bay (??) and then it was picked up by at least two local news programs, rebroadcast the video on their news programs. This brought it to the attention to the FBI, which was investigating this incident and the FBI found him and when to his house and told him they wanted to see all of the video he had shot. He declined. He got himself some lawyers and ended up in a process where he went before a judge and tell the judge the FBI was issuing him a subpoena to appear in front of a grand jury and to produce his video and answer questions in front of a grand jury. He declined and was ultimately held in contempt of court, which sent him to jail. He appealed that contempt order to the U.S. Court of Appeals for the Ninth Circuit and the Ninth Circuit denied that appeal and he was sent back to jail. He’d actually been let out while the appeal was pending and then he stayed in jail. Again it was a total of 226 days. His lawyers tried to get him out. There were certain procedural devices to try and get him out and ultimately we were able to negotiate his release and I can talk more about that.Frank LoMonte: Well, California has an excellent reporters privilege for cases that are brought in state court and in fact there is a precedent for unpaid college journalists being able to invoke the protection of the shield, but obviously that was no help in this case. Why not?David Greene: That’s true, right. The investigation was being conducted by the FBI, by the federal law enforcement and the subpoena that they issued was a federal court subpoena. So, something that a federal judge would enforce and there is no federal shield law and the federal constitutional protections, the constitutional protections that federal courts recognize that do exist offer very weak if any protection against grand jury subpoenas. So, had he been subpoenaed either in state court, California has a very strong shield law, which would have protected him or would likely would have protected him, or if he’d been subpoenaed in a different kind of federal court proceeding, he would have much stronger legal protection.Frank LoMonte: So, ultimately you were able to negotiate a resolution to get him out of jail after 226 days. How did that come about? What was the conclusion?David Greene: Well what we did was we had—I should say I joined his legal team after he’d been release from jail the first time and was appealing this to the Ninth Circuit. My First Amendment Project was brought on to the legal team just to assist his existing lawyers primary because his lawyers had vacations scheduled, which they had kept on putting off and couldn’t do that anymore. That coincided with some of the briefings scheduled. So, that’s the point that I became involved in. One of the things we did was once his appeal was denied and he was in jail, there’s a procedural device called a grumbles motion, which essentially places limits on how long someone can be in jail for contempt. And you have to convince the judge that, first of all, when you’re in jail for civil contempt, the idea is that you’re not being punished. The idea behind being in jail is not to punish you, it’s to coerce you to comply the subpoena. So these things called grumbles motions, which are named after a case involving the Grumbles family, you have to convince the judge that the person in jail is not being coerced and will not be coerced and that they have a strong moral principle upon which they are resting their beliefs. So we brought two of those motions. We brought one and it was rejected and then we waited a while and brought another one. When we brought the second one, the judge said ‘I’m going to reject this motion, but I’m going to send you to a federal magistrate to see if you can negotiate a release.’ And that started a several week process, meeting with magistrate where ultimately we were able to find a way of getting him out of jail. Frank LoMonte: On a human level, you’re talking to Josh Wolf during this ordeal while he’s incarcerated. Was this something that he was at all prepared for and how did he deal with that?David Greene: Yeah, you know it’s a good question for Josh. We did visit him at least once a week. There were three of us in First Amendment Project working on this case and we made sure at least one of us went to see him at least once a week and often among the three of us we would be there more than once a week. It’s difficult being in jail. It’s tough being in jail and frankly it’s hard to visit in jail and you’re the one who gets to leave. It’s hard being in jail and it was very difficult, but I do say, we filed our grumbles motion saying that he was very firm in his convictions and that although he was not enjoying this time at all—he desperately wanted to be out—that the confinement was not coercing him and he was prepared to stay there as long as he needed to.Frank LoMonte: As I understand, he went ahead and did post the unedited video on his own website, but never did give the testimony. So, it’s something of a compromise.David Greene: What had happened was that way before I was on the case, Josh—through his attorneys—had offered, he was never that concerned with that video, what he was concerned about doing was having to sit for testimony and they were going to show the tape and go through and ask him questions frame by frame. That’s what he considered highly intrusive on his news gathering process. And I think we can all agree. Frank LoMonte: Absolutely.David Greene: That proposal, ‘I’ll show you the tape, if you promise not to ask me questions’ had been on the table for a very long time and one of the things we went to mediation that was the starting point and ultimately what was agreed was that Josh, instead of just giving them the tape, was that Josh would publish the tape generally. Then once it was public, he would have no ability—then the FBI was as entitled to it as everybody. In exchange for them agreeing not to ask him questions and what we ended up doing though, the FBI submitted I think it was three or four questions they wanted the answers to, in which the answers were: Josh has no idea. He just doesn’t have the information your’e seeking. So, what we said was “we’re willing to answer those four questions in exchange for you not asking anymore.” And that was essentially what got him released.Frank LoMonte: Let’s switch to Donna Lee. Donna, why was this story of such interest to you and what did you think was worthy of treatment in a documentary film?Donna Lee: Well when I first met Josh, he was actually running for mayor of San Francisco. And I was not familiar with his case or his story. I was working, traveling and living outside of California quite a bit during much of his imprisonment. So when I met him, it was actually at a meeting of people that were interested in working with media or working in media. What I found was that he was running for mayor of San Francisco, which I though was very interesting because it was a very young man. He was a bout 24, 25. And then when I learned about the rest of his story, the fact that he had just been released from prison a few months prior, that intrigued me. I wanted to know what had led him to prison and why was he running for mayor of San Francisco. When I had the chance to do this documentary as you mentioned during the intro, after I left my previous position, I ended up taking a film class and Josh’s story came to mind as something I would love to do as a documentary because I wanted to know what the issues were and what led this young guy to spend more than six and a half months in prison. I thought that the fact that this guy was a willing to spend all of this time in prison for his principles was fascinating and worthy of storytelling, worthy of a film.Frank LoMonte: Yeah, I wonder since this is ultimately a matter of journalistic principle, do you think that this is the kind of story that a journalist viewer and a non-journalist viewers going to a respond to in very different ways? If I’m a non-journalist and I’m watching this video, aren’t I just going to be throwing things at the TV and saying ‘just go testify get out of prison already!’ maybe without appreciating the larger journalistic principle at stake here?Donna Lee: So this film has obviously been shown to both journalists and non-journalists and the feedback that I’ve gotten has been very positive on both ends. The non-journalists have said to me “you know this was really though-provoking.” I myself was not aware of shield laws. i was not aware that there are state shield laws in about, I believe, 39 states. Is that right David? Frank LoMonte: I think 40 now.Donna Lee: So, 40 states. But there was no federal shield law. I was not aware of these kinds of issues so for me personally it was a fascinating topic for me to understand and investigate and research as I was researching the story and interviewing all these people that are in the film. The non-journalists who have seen the film, they were also really interested in the fact that this young man had stood up for his principles had, had stood up for the First Amendment, and yet there are these questions of what’s happening in the journalism community right now—the fact that bloggers and what people are terming “citizen journalists” are going out and filming footage of incidents that are happening and putting it directly onto the the web instead of going through the traditional channels that newspaper journalist would do. And so I think that the feedback that I’ve gotten from non-journalists is that they were very interested and that they learned quite a lot. Frank LoMonte: Do you think that this is one of the things that is perhaps going to force people to confront and think about is this whole idea of who is a journalist now and make people ask themselves and answer whether they think Josh Wolf, as you say is an activist who is somebody who is not Walter Cronkite, is a journalist who should be entitled to the same legal protection as journalists?Donna Lee: Well, I think that’s a question that I myself was asking as I was making the film. It’s quite an interesting one and as the film presents the history of journalism in the United States started off with people like Benjamin Franklin who were creating these little newspapers, and they were activists themselves—Thomas Paine. Josh talks about Thomas Paine a lot and sees him as a role model for the stance that he took. I think that it makes us really think about the history of this country and what the Constitution and the First Amendment stand for. The shift—the history of journalism in the last several hundred years—and then the shit now toward the new media, these bloggers and citizen journalists who are gathering information and, you know, sharing it directly with American citizens and the world actually, you know, now globally. So, I think that it’s an interesting question that is being debated as a we speak probably. Frank LoMonte: Yeah.Donna Lee: Although, probably, you know maybe it’s coming to more of a moot point because these journalists are out there disseminating information. Frank LoMonte: Sure, that’s a great point. I mean the profession and the technology are really evolving in a way that is in a lot of ways faster than the law can evolve and can catch up. Let me ask each of you, starting with Donna, what lessons do you think there are for young journalists who are watching the “Activist Blogger” film, what lessons are there to learn and how are maybe hoping people will use “Activist Blogger” in the classroom?Donna Lee: Well there was recently, the Pacific Media Workers’ Guild, which is a local journalists association here in Northern California, hosted a screening of this film for their freelance unit in San Francisco. I was very pleased to see that it got a very appreciative and welcome reception. A lot of the journalists that were in the audience, I think they learned quite a bit about the fact that what their rights might be. We had Jim Wheaton worked also at the First Amendment Project and he was there answering questions and getting information about the legal rights that journalists have and things to avoid, you know, when you go out and are covering an incident. I think there are issues that some journalists, especially young journalists, may not be aware of that they may be subject to getting their cell phones taken away and searched. So, there are absolutely legal issues that are covered in the documentary but also the history of journalism in the United States and the shift that we’re now taking toward journalism becoming much more of a widespread, you know, field. I think that’s much more of a complex issue now with the internet and with people being able to videotape and archive things on their cell phones and put it directly on the web. So, these are issues that I think young journalists need to be aware of and what their legal rights are.Frank LoMonte: Yeah, David, just a minute or two from you: thoughts about that any cautionary words or lessons perhaps for students to take away after seeing Josh Wolf’s story?David Greene: Well, I think the best things students can get out of it is realize how easy it is for them to become embroiled in a similar situation and how important it is to know your rights when you are that situation. It’s not just knowing your rights because you decide you want to take the stand, it’s knowing your rights just so you can make the decision about what you want to do. For a lot of the students, sometimes they feel like these instances are so far away from them. That’s something that if it’s going to happen, it’s going to happen way later in their career, and that’s just not true. Josh was certainly in a position much closer to where they are now than he was to a sort of established professional journalist.Frank LoMonte: Absolutely, and we’re sort of seeing that in instances such as Occupy, that student journalists are getting into harms way and are going to jail right alongside the professionals and I’m sure we’ll see that more and more. Donna just close us out by explaining to people if they’re interested in seeing the activist blogger film, where can they order copies of the DVD?Donna Lee: Well, currently I just have an educational DVD out because as we’ve just been discussing, I believe this would be a wonderful, very informative teaching tool for classrooms and colleges throughout the United States as well as journalism schools and law schools. My website to purchase the educational DVD is I am planning to make it available to the general audience as well, but I have not yet done that. But, I also welcome feedback and suggestions to how people would like to see the film.Frank LoMonte: That’s great. I’m going to say that one more time: and we definitely hope that people will check that out and will benefit from using it. We hope that this will help call attention to the need for a federal reporter’s privilege law that is as good as the one in California and in 39 other states. Well, I want to close out by thanking Donna Lee and David Greene for helping bring attention to this very interesting and instructive case and for being with us today on the SPLC podcast. If you, in the audience are a photojournalist or a videographer and you’ve got questions about your legal rights we hope that you’ll checkout all the resources available on the website. We hope you’ll join the Student Press Law Center’s group on Facebook and follow @SPLC on Twitter. And before you become famous for spending eight months of your life prison, remember that our attorney hotline is a just a call away at 703-807-1904 or you can email questions to Thank you for listening.

September 2013 podcast: How well do high school administrators know the First Amendment?

(09/08/13 8:00pm)

Audrey Cunningham of Hiram College talks with Student Press Law Center Executive Director Frank LoMonte about her survey of high school administrators' knowledge of the First Amendment.Frank LoMonte: It is back to school time for the 2013-2014 school year and along with teaching Media Law 101 to their own students, a number of journalism educators are going to find themselves teaching Media Law 101 to their principals as well, often breaking in new administrators because of the high turnover among principals and assistant principals and superintendents. And that’s what we’re here to talk about on the Student Press Law Center monthly podcast. Thanks for being here with us. I’m Frank LoMonte, executive director of the Student Press Law Center and we’re here with professor Audrey Cunningham to talk about her research on the First Amendment and media law knowledge of high school principals and how that comports with the actual law.Before we talk about that, just a little bit of background, professor Cunningham presented her research at the recently concluded AEJMC National Convention here in Washington. The AEJMC is the umbrella organization over college journalism educators and it’s really important to point out a resolution that passed unanimously by the AEJMC in this, the 25th anniversary year of the Supreme Court’s Hazelwood v. Kuhlmeier decision – that landmark ruling that rolled back the First Amendment right of students working in curricular settings like a class-produced student newspaper. Well, the board of the AEJMC unanimously decided to recognize this anniversary with a resolution that declares that it is the belief of those who teach journalism at the college level, that there is no legitimate educational purpose served by censoring student journalism just because it reflects unflatteringly on school policies, because it discusses sensitive issues or because it voices challenging opinions. And that’s an enormously powerful sentiment because the Supreme Court in Hazelwood said that schools could permissibly censor for legitimate pedagogical reasons, well we now have the people who know best, the teaching and practice of student journalism, unanimously coming together and saying that there is, in fact, no legitimate pedagogical basis for the bulk of the justifications that schools regularly give when they censor student journalism. Definitely expect to see that resolution cited in court again and again, the next time a Hazelwood case is litigated.So, with that, I want to throw it to Audrey Cunningham to talk about her research and the paper that she delivered at the AEJMC titled, “What High School Administrators Know and Think They Know About the Fourth Estate.” Audrey Cunningham is an assistant professor of communication at Hiram College in Ohio. She’s a graduate of Hiram, this is a homecoming for her. She has a master’s and a Ph.D. from Kent State University, as well as holding an MJE – a journalism educator certificate issued by the Journalism Education Association – so she’s very well versed in the teaching and practice of scholastic journalism, and we’re really happy to have Audrey with us. Thanks for joining us, and I guess maybe start off by introducing what it was that drew you to this subject, where the roots of your interest in scholastic journalism and the law of journalism. Audrey Cunningham: Sure. I began being interested as a little, nerdy, high school journalism student, and I say nerdy because I was always sort of interested in scholastic journalism, and you couldn’t get me out of the newspaper room in high school. So, I was really interested in that, and I remember our journalism teacher kept telling me, “We’re really lucky that we haven’t had to deal with any censorship, and here comes another administrator and we’ll have to come across paths with that person and determine whether this is the year.” In high school, we had three different head principals in my four years of high school. So, I kept thinking every year, “Oh gosh, this is the year.” So, we became very well versed in Tinker, very well versed in Hazelwood and luckily because we had very good advising, I think, and because we had such a great product, we never encountered censorship from any of the administrators. And, I’m from Southwest Ohio originally, which is – if you go on the Student Press Law Center’s website and look at some of the news flashes, you can see that there’s been, I wouldn’t say a hotbed of activity of administrative censorship, but there certainly has been a decent amount of administrative censorship of student media there. So, it was prevalent. I felt very fortunate.And fast forward into college and then into graduate school, I continued to be interested in trying to find my research path and I thought, “This is something that really, I’d like to know more about.” And I really wanted to know, why? Why do administrators censor? We speculate, we think maybe they just don’t like the content, they think it’s inappropriate, but I kept thinking maybe they just don’t understand Hazelwood as they’re taught in graduate school or as they’re told about it. And I had a really interesting experience in graduate school – I’ll try not to give away too much – but, I was in a school law class and it was mostly people training to become high school and middle school administrators, and the professor started talking about Hazelwood and censorship and actually handed out a document essentially explaining to us – I was part of that audience – how we would go about censoring a controversial story in our school newspaper. And I thought, “Okay, maybe there’s something there. Maybe it’s the training, that they’re just not understanding the law.” So that’s where I kinda started digging a little bit deeper, y’know, what is it that’s going on? And I’ve done some other research too, what exactly are they censoring, but this study really focused on why they are censoring. Frank LoMonte: Just to go into the methodology a little bit, you actually took a quiz that lives on the website, where we asked some foundational questions testing people’s knowledge about the first ammendement, about privacy law, about some of the kind of commonplace legal topics that would come up in the publication on a newspaper or in the broadcast of over-the-air student media. And, you sort of applied this to administrators. I guess, talk a little about the methodology and what your takeaway was.Audrey Cunningham: I looked at how administrators perceived what they thought, essentially what they thought they knew about the First Amendment. So, how much do you think you know compared to another educator or another administrator. And, more than likely, they thought they knew more than the average person and more than the average educator, but not necessarily more than the average administrator. And I also give them a knowledge test, sort of an abbreviated version of the Student Press Law Center’s quiz – thank you again for letting me use that – just to see how much they thought they knew about the First Amendment, and specifically how much they knew about free press rights. I gave them this little ten question quiz. In addition, I also gave them an idea of a story that could possibly come across their desk, or that they maybe heard about being printed in the school newspaper, so sort of a hypothetical, and I asked them, “How much, or how likely do you think you would be, to censor this?” Other questions that might be relevant than an SPLC audience would be, I wondered how much they supported the First Amendment specifically for students or for people who weren’t 18 years old. So, I asked them questions like, “How much do you agree with this statement: free speech rights should not be the same for students under the age of 18?” So those are kind of the variables I looked at and how they compared and also how they would predict this tendency or this propensity to censor this story, this hypothetical story.Frank LoMonte: There are a lot of really fascinating takeaways from your findings, but one that I wanted to zero in because it was so pronounced was, you found that there was a significant gap between perception and reality when it came to protecting the privacy interests of minors, and that came out both in your hypothetical story about teen pregnancy, and also very much so in a question you asked about covering a juvenile court proceeding in which it turns out that a minor was involved in felony-level behavior, but in juvenile court, and the minor’s identity were to come to the attention not of a student media organization, but for a professional media organization. Of course, the right answer to this is that it is constitutionally protected to publish lawfully obtained information, even about juveniles, that’s been litigated through the Supreme Court. We know that the First Amendment protects the right of a professional newspaper to comment on a juvenile crime, even if it means giving away the identity of a juvenile and then it comes down to a policy decision whether they do so or not. But it was really fascinating that the principals had just a much more protective attitude on that point and then the point about teen pregnancy that didn’t exactly square with the law.Audrey Cunningham: Right, yes. And those were kind of the two questions that the majority missed. So, if I were to explain the percentage of people who answered the questions correctly. So, 17 percent of administrators answered the question about a teenage girl – a minor – engaging in some pretty significant illegal activity, they actually got that one correct – that’s a very small percentage of my sample. And roughly 44 percent answered the question about a principal being able to censor a story about teen pregnancy correct. So, they thought a colleague in a nearby school who’d censored an article about teen pregnancy was correct in doing so. Which again is really interesting...Frank LoMonte: Yeah there’s some really interesting, because they’re both rooted in this idea that it’s the job of administrator to protect the student in the story and the audience against even truthful and accurate information, and I think that that’s a very interesting caution for people who are teaching and advising in this field, that they may be up against in four out of five cases anyway. They may be up against a principal who is more disposed to be protected than even the law might allow.Audrey Cunningham: Yes, absolutely. And there was another question that I thought was kind of interesting that we sort of touched on. And that was, whether or not it would be acceptable for students to run an editorial about, kind of criticizing a decision about the changes to the school’s curriculum. And roughly half the administrators got that one correct and if you look in comparison to some of the questions where 90 plus percent answered that correct, there seems to be a disconnect there between exactly what you’re saying, sort of this tendency, this desire to protect minors in the school and to protect the school’s reputation.Frank LoMonte: Right, yeah and the latter justification, the school’s reputation, is sort of perennially the justification when people call the SPLC hotline and report that they’re being censored, we can almost complete the sentence for them because it is typically some variation of, “You’re making the school look bad.” And it’s that image-driven censorship that we think, and I think going back to the AEJMC resolution, I think the journalism education community thinks, is the most illegitimate of all, that is to protect against the disclosure of the existence of dissent or the existence of dissatisfaction with some school policies or programs.Let me ask you to skip ahead a bit because you referenced a point in your research that I think is really key, which is about what the level of support was in general among principals for the proposition that people under the age of 18 should have the full benefit of the First Amendment and what that might tell us about the administrator community and the kinds of people who are in that field.Audrey Cunningham: Sure, and I could read a couple of statements from the survey. If we look at a scale of one to five, I’m asking the administrators “how much do you agree?”, one being not at all and five being strongly agree. And they fell right in the middle, which means they don’t really agree but they don’t really disagree, which is kind of troubling. And some of those statements include, “Free speech ought to be allowed for all members of society, even if people have a different opinion or an insulting or threatening opinion,” “free speech should not be the same for students under 18” – a lot of administrators tended to agree with that, and also that the free press rights guaranteed by the First Amendment, they tended to think that those should apply to mainstream media, but not necessarily to student-produced media. Which again – very interesting. However, I asked them a question about “is a free press essential to a functional democracy?” – absolutely. Very high marks there in terms of how much they agreed, but that same free press when you’re talking about a student-produced press, mmmh, they were so sure about that.Frank LoMonte: Very interesting. Y’know, one of the things I remember going back to the demographic composition of your research, there were actually quite a lot of people in the administrator community who had come up through the ranks as teachers of English, which made it particularly noteworthy because you would think that people who I guess made their living in writing and literature as being people who might be disposed to be especially forgiving of or supportive of freedom of expression, and yet maybe not universally. And so, I guess drawing Audrey both on the research that you’ve done and also on your own experience in sitting in one of those training sessions we saw administrators essentially being given a how-to manual on how to censor, what are some of your thoughts or takeaways in terms of what this is telling us, if we conclude that there’s a gap between administrators beliefs and realities when it comes to the law of the First Amendment and the law of privacy? What is this telling us we need to do?Audrey Cunningham: Well I would say that one other finding I found that’s notable, is that administrators who scored higher on all of the First Amendment knowledge questions, also reported a lower propensity to censor this hypothetical story. So, what the kind of suggests to me kind of in concert with some of the other findings, is that those who know more about it and actually legitimately do know more because I tested their knowledge, tend to understand that censorship is not necessarily the correct avenue, if you will. I think there is a knowledge gap. The source of the knowledge gap – I’m not entirely sure. I certainly believe that administrators, at least in the state of Ohio and I’m pretty sure in other states, have to have a Master’s degree to go on to become a principal, so they may be taking a course where they’ve been misled. Or, perhaps they’re just getting kind of a nutshell, for example, “Hazelwood says you can censor,” “oh, okay.” So they’re not getting the whole story and seeing some of the other things we must consider when one of these stories maybe comes across your desk. I think the knowledge gap is quite significant and I think that’s quite troubling. I think there’s other cases that administrators are just hearing a soundbite or a nutshell statement such as Bethel v. Fraser, Morse v. Frederick, and I think there’s some real kind of misinterpretation going on somewhere, either at the education level where they’re being education or just in their own sort of problem solving or trying to get their head around what to do, they’re not necessarily considering everything. It’s sort of understandable, administrators certainly have a lot of hats to wear and a lot of responsibilities so when they’re just taking bits and pieces of legal precedent and not applying them correctly, that seems to be the issue.Frank LoMonte: And, I would say by the way I think you’re quite right on on that observation, that after all you do have to be a generalist. You’ve got personnel issues, you’ve got special ed issues, you’ve got transportation issues, all those things within the bundle of concerns, so the amount that you’re about to focus on press freedom and the First Amendment is a pretty small minority of your attention. We observed that as well among school attorneys who by their nature have to be generalists and who don’t necessarily have a detailed and sophisticated understanding of – you mentioned the Morse case, which was the case about being able to censor a student who engages in pro-drug advocacy speech, but which as you point out some people have shorthanded in a broad brush fashion, or the Bethel v. Fraser case, which was about using strong sexual terms in front of a captive audience in an auditorium setting. And again, people have at times in broad brush ways overstated the whole thing of that case. But, I guess, just by way of wrapup here to the journalism educator community and to the student editor community, so knowing that there are some gaps in the knowledge of school administrators generally and particularly when it comes to the tendency to be overprotective about privacy – above and beyond what the law might provide – any thoughts about how someone should approach trying to build a relationship with an administrator, or maybe I’ve got a new one that that I’m trying to start a relationship with, knowing, having this baseline of research to work from?Audrey Cunningham: I think that one of the most important things is that, a new administration coming into a school is going to be a little insecure about how he or she is fitting in and a little bit insecure about his or her knowledge, so I think it’s important not to be a know-it-all in that meeting, but to also have done your research. So as a student journalist or as a journalism advisor, make sure you understand the legal precedent and you can fall back on that legal precedent and on some of the really important language from some of these decisions. That’s really important. I also think that it’s a necessity to ear that principal’s trust. As much as I’ve sort of disdained for prior review, I don’t think you have to go there, but just saying to your principal, “Hey, we’re working on a big story about teen pregnancy or about teen drug use in the area and we just want you to know that’s what we’re doing. That’s what we’re working on.” So that when the paper goes to press and it comes across that principal’s desk, he or she is not completely surprised that, “Oh! This is what the students are working on.” I think it’s good to kind of give him a heads up. And also make sure certainly that those stories are very well researched so that you’re not accused of promoting illegal drug use in a story about the ill effects of marijuana, and certainly there are administrators out there who are going to look at that and go, “Well, I don’t care. It’s about marijuana so you must be promoting it.” The story isn’t about promoting drugs, it’s about the negative effects of using drugs. It’s making that very clear to an administrator, so that he or she is not surprised and maybe actually is happy with the piece because it’s true, it’s real, it’s been well researched, the sources are legitimate. So, teaching your students to really follow up with good, reliable sources. And if students being motivated to go out and make those difficult phone calls, I can remember being a high school journalist nervous as all can be to call a local physician, but as soon as you get on the phone and you say, “I’m a high school journalist and I’m trying to do research on concussions or on plastic surgery addiction,” it’s amazing how much they want to help you too.Frank LoMonte: No, you’re totally right. Well, let’s wrap it up there and again tell folks the name of the paper is “Administrators and the First Amendment: What High School Administrtators Know and Think They Know about the Fourth Estate.” I really want to thank Audrey Cunningham, assistant professor of communication at Hiram College for joining us and for this really important research. If you are an advisor with any question about the law of the First Amendment, about privacy law, about the legal rights of the student journalist, we hope that you will help yourself to the resources available online at, that you’ll follow @SPLC on Twitter, like us on Facebook and take advantage of the SPLC legal hotline. The best way to reach us is just by email – Look forward to talking to you next month. Thanks so much for listening.