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The Student Press Law Center's Executive Director Frank LoMonte interviews reporter Betsy Hammond of The Oregonian in Portland, about her series, "Empty Desks," on chronic absenteeism.
Photo by Michael Lloyd/The OregonianFrank LoMonte: Hi, this is Frank LoMonte, executive director of the Student Press Law Center, and thanks for joining us for another edition of the SPLC’s monthly podcast. The Student Press Law Center is an advocate for student first amendment rights and we provide research, information and training about the law of access to public records and meetings, a subject that we’re going to talk about today.The issue of education reform is much in the news these days, and there’s understandably an enormous amount of publicity being given to issues about tenure, about high-stakes testing and, of course, about education funding. Those are all valid and legitimate issues for journalists to write about, but there is a threshold issue about school performance and education quality that has gotten much less attention, and that is the simple issue of getting students into their desks and keeping then there.The subject of Truancy and absenteeism was the subject of an in-depth study by reporter Betsy Hammond of The Oregonian in Portland, and Betsy is with us today on the SPLC podcast to talk about her research, her findings and her tips for people who are interested in covering the issue of absenteeism and truancy in their own communities. Betsy has been with The Oregonian for 17 years, before that she covered education with the Atlanta Constitution, she has been an active member with the Education Writers Association and has been a data journalist doing numbers crunching for many years. There was quite a bit of heavy numbers crunching involved in this series Empty Desks, which I commend to your attention.You can find it on the OregonLive website, and so Betsy thanks so much for being with us, and I guess, just jump right in and, if you would, tell folks about the series Empty Desks. How did the idea come about, how did you conclude that this was a particular problem in Oregon and how did you go about telling that story.Betsy Hammond: Well, I wasn’t sure that it was a particular problem in Oregon but there had been one study that indicated that it was a huge problem, but that study was a statewide study, it didn’t name counties, it didn’t name schools, it didn’t name school districts, and so it didn’t get paid very much attention because the problem seemed, while it may be in Oregon, everyone assumed it was somewhere else. It wasn’t in their community.So that’s what led me to want to dig deep and be able to highlight this issue at a very specific level, which required me to get records that I had never been able to get before, which was records for every single student. Again, the one study looked at the whole state, my study was going to be able to isolate, I hoped, the problem to particular schools, even particular grade levels in particular schools, if I could get the records that I wanted. Frank: As many people who have done public records reporting with schools and educational institutions are already anticipating, oftentimes getting ahold of records, especially when it involves student information, is difficult and can involve some confidentiality issues — sometimes real, sometimes imaginary — and it can involve some diplomacy, and i’m sure you had to go through all of that. Betsy: Yes, I’ve never spent as much time trying to finally get records released, but I did succeed and the law is on the side of the journalists in this case, but it was a very protected battle and we had to make a lot of delicate compromises. But in the end we did get the records and were able to tell a really dynamite story and really open a lot of eyes in Oregon that has generated a tremendous amount of ongoing conversation about how folks in our state might fix this terrible problem of kids missing more than a tenth of the school year. Frank: Right, that was one of the takeaways from the series was, not just that people have occasional absenteeism, but that there is a large cohort of people that are missing 10 percent or more of the school year, which obviously sets them back in their progress, increases the odds that they are going to be left behind or become dropouts. And I guess talk a little bit about, you were able to conclude, and I’m interested in how you were able to reach that conclusion, that actually the problem was more acute in Oregon, statistically, than anywhere else. And also, you did some correlating trying to look at whether there could be some predictors like the income level of the school to see if there was a correlation between those two factors. I guess, dig a little deeper into the findings.Betsy: What we found was that almost 20 percent of students in Oregon missed 10 percent of the school year or more. What we were able to find, I believe it was nine other states, a pretty diverse group of states, had studied this issue as well. We weren’t able to look at all 50 states, but of the nine where it had been studied this way, Oregon’s problem was the most severe. Post script, our series came out I believe in February, a study was just released in the last week using data from the National Assessment of Educational Progress, which is given in every state, and that did show that Oregon is tied for number four among all states, by that measure, of having the worst chronic absenteeism problem. Again, what was key here was getting records on individual students, because the lens that schools have allowed us to use on this issue has traditionally been average daily attendance, and those rates don’t sound scary. On any given day, these schools have 92-93 percent average daily attendance. That wouldn’t scare you would it? But when you look at individual students, what you find out is that, within that, you have some students that have terrific attendance and then you have these other students who are just wildly endangering their chances of learning to read, of learning to be good at math, and of earning a high school diploma by being absent so often.Schools themselves, we found, were unaware of the degree of which that problem existed right under their own roof, right under their own classrooms. Frank: That’s a really great illustration of how statistics can deceive and mislead a little bit, because a person looking at a 92 or 93-percent attendance rate would think ‘well, of course you’re never going to have 100 percent. There’s going to be some people with a cold, there’s going to be some people with a doctors appointment,’ so as long as those were evenly spread out over the whole student body you might not think there is a problem, but if you’re saying that 8 precent is comprised largely of chronic absentees, who are missing over and over again to the point it is making them likely to become academic casualties. You mentioned, and I want to dig a little further into this because I think this is going to be a problem that other people encounter if they try to go and replicate this type of research elsewhere, that there was some sensitivity on the part of schools about not releasing data in such a way that it pointed to the identity of a particular student, revealed anything confidential about any particular individual, so how did that get raised and how did that get resolved?Betsy: I’d be delighted to tell you about that, and since I’ve done it I’ve had the pleasure of coaching a few other reporters through making their own data requests. Some of those were at a district level, some were at a state level and I want to tell you, they have succeeded. So this is something other people can do, but I suspect other journalists will run into the same things I did initially, which is my state agency told me ‘we don’t give out individual student data. That’s not our practice.’ I was like ‘wow, that’s pretty interesting. Oregon, like all states, has an open-records law, and the presumption is for openness, and generally states have to provide an exception to be able to fight the exemption in the law that says they can keep something confidential.’ In this case, and in probably the case of 90 percent of reporters who would try to get this, in fact what they were citing was FERPA, and FERPA, of course the federal privacy law, is not an open records law, it is a privacy law, and it’s very well intended to protect the privacy of students’ educational records so that I can’t call up and find out if Johnny Jones got an A on this test or if Susie Smith, how she scored on the state reading test. We all understand how that’s fully appropriate, so what became the issue here was, what is personally identifiable, because they can certainly release records about students as long as the common person can’t trace it to the identity of that particular student. You know more about this law than I do, Frank, so that was the back-and-forth that ensued for many, many months between my education agency and my newspaper about what they could legally keep private and what they would need to release.Oregon has a lot of small schools. We are a very big state with a lot of small, rural communities, and so that raise the possibility that, by releasing something that doesn’t have a name, it doesn’t have a date of birth, it doesn’t have an ID number, but that somebody could figure out who that student was and understand their rate of absenteeism from class. Now as you can imagine, the rate of absenteeism from class is not a highly personal or private matter. Every other kid in the class knows today, Frank, that you weren’t in class. And that’s partly why I chose this as my first battle for individual student records. Not a highly sensitive matter, these are the kinds of records that have been kept since the 1800s.So what we did is, the newspaper and I agreed that we weren’t going to ask for data from any schools with fewer than 50 students and then my state agency and I worked out a way to — The only information I was asking about about a student was what grade they were in, as well as the school district, what grade they were in and then their free lunch status. Did they qualify for subsidized federal meals, yes or no? we knew, from all of the research that has been done, that students in poverty are much more likely to miss a lot of school, and schools that work with those students have to make extra efforts to avoid the problem of chronic absenteeism. The magic number in my state is fewer than six, so if something happens to five students, whether that’s they passed the state reading test, my state keeps that secret because they feel like if something happens to that small of a number of students. So if in any school there were fewer than six students in a grade, which we agreed to a suppression of grade level, if there were fewer poor or non-poor students in a school, we suppressed the free lunch status, and we had some delicate work-arounds like that. But in the end, I did get records on 480,000 individual children in Oregon, and for every one of them I know what school they went to and what the number of days they were enrolled and the number of days that they attended, and for the vast, vast majority of them I also knew the grade level and the free lunch status.And from that I was able to tell a really powerful story that is going to, I believe, make a difference in my state and lead to better outcomes for kids, so that’s pretty exciting.Frank: And I just think that that’s such an important lesson in persistence for people to take away from your experience, that the answer for a records request often begins with a no, and over time there is some negotiating through some persistence through maybe making some minor concessions that don’t compromise the central point of the story. You can often get at all or most all of what you need to tell the story, as you were able to do here, but part of it too is just sort of working through the logic with the people on the other side. As you say, once you get a real tiny group of people it’s conceivable, although even there there’s some room to argue, that the statistic might point to one individual person and in fact the U.S. Department of Education has a rule about these very small data sets saying that they don’t want schools giving out traceable data that could point easily at one known individual person.But beyond that, really any type of data — statistics, numbers, patterns, trends — should always be obtainable. FERPA is rarely the right answer to that but it does take some persistence and some negotiating sometimes, and it’s great that you were able to get to a yes. Well talk about that a little if you would. The reporter’s, I guess, ultimate home run is that you disclose something as a result of your research and then it actually results in moving the needle and making a positive change because people react to it and are alerted to a problem and they do something about it. So what has been happening since February? What has been the reaction to the story and what types of proposals and reforms might we look for in response to the story?Betsy: Well, it was very well received by — including by the same state agency that had fought me over the release, our state schools chief testifying before the legislature commended the series, called it to their attention. Our chief education officer, who generally, who sends out a weekly notice to all kinds of people, that usually covers numerous topics, devoted it solely to the topic of chronic absenteeism and my series. The phrase chronic absenteeism and absenteeism, which had been almost never spoken in public meetings and in public policy platforms is not very common.Things move a little bit slowly here. Folks are still at the formation stage of strategies, at least at scale, that will really address this. But it made superintendents and principals, who were not aware of this topic or this issue or this metric, very aware. They’re looking at it, they know it’s going to be publicly reported by my newspaper and by some education agencies, and so that gives them some motivation to really address it, as does the findings that we called out that are very clear in research, which is that if they can get the kids to school, they’re going to have all kinds of better outcomes in terms of their test scores, graduation rates, other things that matter a lot to them.There are some work being done by the state, in particular communities, to try to focus there on helping them find successful strategies. Tribal communities in particular, all across this country, Native American students for reasons that probably make sense when we think about the way schools and boarding schools were foisted on them and didn’t respect their culture. But they have a huge chronic absenteeism problem that needs to be addressed in partnership with people who know that culture and those families well. That’s been launched. I just spoke yesterday with a gentleman from a foundation that’s interested in putting some major money, potentially, into helping Oregon communities battle this topic. So I think, bottom line, we’ve already started to see more efforts to get more kids in school and we’re going to see even more. And you’re right, that’s the reason a lot of journalists are in this business is to, on a very good day, make a difference, a positive difference. Frank: Sure, fantastic. I just, just kind of by way of wrap-up, so I’m a student journalists, I’m at a high school not in Oregon, because I’m never going to be able to outdo what you did. I’m in another state and I’d like to go about, on a smaller scale, doing this kind of research, tracking down numbers, comparing maybe how my school or my district fares against others. How would I go about getting started? Any tips or recommendations?Betsy: Well, as you said, I think you’ve got to prepare that your first answer might be a no and not be defeated by that. Prepare to make compromises, be friendly and respectful when you find the right person.Let’s say it’s a school district where we’re going to make the request, so we would need to have something, either start with a friendly conversation on the phone, that’s what I like to do before I launch into the formal written request, find out who keeps those records, a little bit what some of the terminology is. For example, here in Oregon, it’s days enrolled and days attended. Generally those two things are kept because they are tracked for state funding purposes, and to make a request. And think about what you would want to know about the students.For example, if you try to ask for everything: “I want to know about the special education, I want to know the race and the gender, that’s going to decrease the likelihood that you’re going to get it because, again, that makes it more personally identifiable. So what is the topic in your community that would be of interest? Do you think there is a problem? Would gender be important to the story? I think free lunch status makes a lot of sense, but if that’s quite uniform in one’s community that might not be the topic. And then go ahead and ask for those, at the student level, that would tell you how many days the student attended and how many days the student missed. And then once you get those it’s pretty easy, it’s basically division to calculate the rates and to count up how many students would meet that threshold of attending, missing 10 percent of days or more. Again, a lot of it is going to be the negotiation with folks who hold the records, but if they say ‘FERPA doesn’t allow us to put out individual student records,’ my series and my 480,000 records that came out without any problems, not a single complaint that privacy had been compromised, would be one place to point to that that’s not true, that FERPA doesn’t say that, and that I can see student journalists getting this information and finding out some neat things and bringing it to public attention.Frank: Well I just want to reinforce two points that you made. The first, and I loved this, you can’t say this enough, is very often, strategically, the first step in getting all the records is not the written request but the telephone conversation or the meeting. Many times I’ve seen journalists shorten their timeframe quite a bit in obtaining records by getting their arms around the data first: Who has it, how do they keep it, where do they keep it, how far back do they keep it, in what form do they keep it? I you can get all those questions answered, then you may save yourself a lot of back-and-forth and a lot of delay in the request process. You also may find out when you’re in those meetings or on those phone calls that you learn about other data that you wouldn’t have even thought to request before, so there’s nothing but good that can come out of that. It’s rare that you’re going to sneak up on somebody entirely with the request and so it’s really probably a better first step, particularly for an agency that you think you’re going to have ongoing dealings with and want to maintain good relations with, to start with the phone call and not start with the scary lawyer letter, so that’s number one.Also, you mentioned, which I think is a great resource that people should be aware of, the NAEP Report — National Assessment of Education Progress — that’s sometimes called the nation’s report card, and that comes out every summer and it’s really this gold mind of statistics, which can be localized by student journalists so they can kind of tell the public where their school stands in relation to comparable schools. That, and much much more, is available from the Department of Education’s National Center for Education Statistics. The National Center for Education Statistics is at nces.ed.gov, nces.ed.gov, and if you’re just looking for a story idea on a slow news day, that’s a great place to get started to do some browsing.Anything else by way of wrap-up or any ideas or suggestions, along those lines, that you’d like to share for resources that students should be aware of?Betsy: Well I’d just reinforce, again, what you said and what I said, is if you want the data, a friendly conversation where you contact your school, your school district, your state agency, to find out more about the data, just show a great, show a positive and curious attitude about ‘I want to learn about how you do store these records,’ what some of the terms are, what you have, getting on that friendly basis, learning their language, learning a little bit about how they store it is helpful for any data request that you’re going to make. As you said, you’re going to save time and heartache for both parties, and I think that’s always the best way to start. I would caution that those NAEP Scores exist only on a statewide level and then, for a select number of large urban districts, so it won’t actually give you information, quote, about your school, in most cases. But those statewide statistics you can get from those, the test scores and the questions that test-takers are asked can be just a goldmine. So ya, NCES is a really fun place to spend time looking at a whole host of statistics, I agree with you. And then your center is also a wonderful place to turn if you do run into problems after you’ve started that negotiation over records. You guys have helped a lot of student journalists and professional journalists make sure that the law is followed and the appropriate access to public records happens, so we really appreciate that. Thank you so much. Frank: Wonderful. Well thank you for doing such a wonderful job with this Empty Desks series. again, for those who have not read it, OregonLive.com, OregonLive.com is the website that has the series Empty Desks. And in addition to being a really great job of data reporting, they’ve also done a terrific job of visualizing this data on maps and of course that’s very important to capturing and engaging readers’ eyes these days, and people love to see clickable maps where they can look at their own community and compare it against others. And this is a very, very mappable issue and a mappable subject and people who like to build maps can enjoy working on this project as well.Well, Betsy Hammond of The Oregonian, I just want to thank you so much for sharing your expertise. And for those of you who are running into any issues with access to public records, we invite you to contact the Student Press Law Center. We’re online at splc.org with our brand new, newly designed website. The email is firstname.lastname@example.org and the number is (703) 807-1904. Thanks so much for joining us on the SPLC podcast. We’ll talk to you next month.
Rebecca Tallent and David Burns of the Society of Professional Journalists discuss their sequel to Jack Nelson's book Captive Voices.Frank LoMonte: The Student Press Law Center celebrated a very big birthday this fall, turning 40 years old since our founding in 1974. The origin of the Student Press Law Center dates back to a landmark book by author and Pulitzer Prize-winning journalist Jack Nelson, the book called Captive Voices We’ll talk a little bit about Captive Voices and a modern-day sequel that is set to be released under the auspices of our friends at the Society of Professional Journalists. I’m Frank LoMonte, the executive director of the Student Press Law Center, and the SPLC is a nonprofit advocate for the rights of student journalists and advisers everywhere. You can find out more about our work at www.splc.org, and we hope you’ll take advantage of all the free legal and educational services we offer. Today on the SPLC podcast we’re joined by two eminent journalism educators who are active in the Society of Professional Journalists’ Journalism Education Committee. That committee decided to undertake a reexamination of the research that Jack Nelson and his committee on the study of scholastic journalism undertook 40 years ago when, after a nationwide tour across the country looking at the state of scholastic journalism, they concluded that censorship was the primary cause of the irrelevance of scholastic journalism and the frustration that young people experience as participants. Professor Tallent is here with us from the University of Idaho School of Journalism and Mass Media. Professor Tallent has a Ph.D. from Oklahoma State University, her doctors in education, she has specialty in issues about media ethics, about the Native American Press, she’s been a widely-published writer on the subject of media ethics, and has 12 years of professional newspaper experience, including serving as a newspaper ombudsperson, and so we’re delighted to have Professor Tallent.Also with us on the podcast is Professor David Burns, who is here in the D.C. area at Salisbury University in Maryland. professor Burns has his Ph.D. from the University of Maryland, also has a degree from my favorite school, University of Georgia. Professor Burns is associate professor of communication arts at Salisbury University and his specialties include electronic journalism and new media production, as well as international reporting. So thank you, Professor Tallent, Professor Burns for being here with us, and for this really, really valuable new piece of research. And I guess Becky Tallent, let me throw it to you first, just to kind of explain the book that is coming out, it’s called Still Captive: History, Law and Teaching of High School Journalism. So, I guess sort of, how did the idea for this project get hatched, and how did you go about conducting the research?Rebecca Tallent: Well, this was interesting. This started off with a very simple question that came to me as chair of the committee back in 2011, and it was then-national SPJ president John Ensslin asked “Well, what’s going on with high school journalism? I keep hearing that schools are closing their journalism programs because people think journalism is dying.” I took it back to committee, we began discussing it, we began researching it a little bit because we’re all college professors, and we came back and we said “well, you know, there is Captive Voices. Twenty years later, in ’94, there was Death by Cheeseburger, and all of a sudden we started saying “well is anybody else going to be doing this every 20 years to see what is happening now?” You could hear the crickets, just resounding silence. So, we began looking, first, at the idea of “how do we figure out, is this notion that journalism is dying, really impacting high school journalism?” We went through a number of different things trying to figure out how to do it, and finally we said “you know, we need a survey of high school journalism teachers,” and we began working with our friends at the Journalism Educational Association and began bothering the SPLC and asking questions. And suddenly we found, not only were we doing this survey, but we began breaking up areas and saying “well, we need somebody writing about the law and how the law is changed, we need somebody to write about how to really teach an effective class and let’s bring in the ideas of how journalism teaches creative and critical thinking, collaboration, communication, all the things that are core elements that principals say they they want, and other things.” And all of a sudden we were doing a book. LoMonte: Right, and you went about actually surveying 200 and some odd journalism education members representing quite a divers array of teachers across the country, and I guess let me ask David Burns, you are one of the co-authors of one of the chapters in this book where you talk about some of the results of this survey research. What to you, I guess, were the more important or more eye-opening take-aways from the research? David Burns: We asked one open-ended question, and that was “do you have suggestions on how scholastic journalism can be improved,” we asked all the respondents that question, and we got some very, very interesting answers. But I think the thing that sort of came out of this was this idea of, they would use terms like they felt they were feverishly peddling but going nowhere in the process. It became quite evident as we looked at these responses versus what was polled 40 years ago and 20 years ago, and it seems like everything has changed and nothing has changed.Although the journalism industry itself and the education systems are very different than they were 20 years ago and 40 years ago, the way journalism is considered, the way it is treated, the way it is supported, has changed very little when we talk about high school journalism and high school education. LoMonte: One of the interesting statistics that I’ve seen in sort of a preview of the forthcoming book talked about mandatory administrator oversight and review pre-publication. Your statistic was actually remarkably consistent with what the SPLC and our partners at Kent State University have found when we’ve done some surveying on this of students and journalism advisers, which is about a two-thirds/one-third split, that about one-third of high school journalism programs are under mandatory prior administrative review and about two-thirds are not. So that was an interesting finding. I guess, either of you, starting with David, was there a takeaway from that, was that in any way noteworthy or surprising to you?Burns: That came up repeatedly in respondents. in their responses, what they talked about is, for example, more than one-forth of the people who answered the question said that comprehensive training needed to be done and they singled out administrators in that list, that we need to teach administrators about freedom of expression and First Amendment rights and this kind of thing, and the important role that it plays in high schools and what kind of information to be taught to students about free expression, about the First Amendment as they work in their media organizations, in their student student and school function media organizations.Absolutely, that was a huge response by the participants, that they are being stymied in a lot of ways by the administration, that they’re not understood by the administration, that they’re not supported by the administration and sometimes they’re punished financially by the administration, too.Tallent: And it’s not just in terms of the fact that the teachers feel like they’re in the right and they know what they’re doing and that they know that they have certain rights and responsibilities. One of the things that we found is that a lot of teachers were feeling overwhelmed because they didn’t understand a lot of the background, they didn’t understand the laws. In a couple of cases they had not even heard of Hazelwood, so what amazed us was that nearly one-fourth of all high school journalism teachers who we surveyed have had absolutely no journalism training. They’re English teachers, they’re librarians, they’re historians, and they were offered the chance to either earn more money or they were just simply asked by their school to run their student media, and they absolutely don’t know what distinguishes journalism, good journalism, bad journalism, they don’t understand that there are some laws that they need to be taking into consideration and thinking about when they’re working with their students. One of the things that really surprised me, probably more than anything else, was that, in addition to one-fourth of the teachers have had no training, only 30, about 38 percent, have had at least a class in college. But 98 percent of the teachers say that they only get additional training from attending journalism workshops in the summer when they can find them, and that to me was just astounding, especially since colleges and universities seem to be sort of getting rid of those programs because the attendance has been low.LoMonte: Very interesting. And one of the recommendations that the education committee makes as a result of this research talks about the involving colleges, universities and the journalism profession more actively in supporting journalism programs and journalism advisers in particular. How do you envision that working, I guess, and what are the sorts of support that would be most needed?Tallent: One of the things that we are talking about quite seriously, a lot of the SPJ chapters are already working at looking at their local programs, where can those professionals go into those classrooms and help out? I know specifically in places such as New Jersey and Florida, they are being very proactive with some of the chapters. One of the things that came out not very good for colleges and universities where in the question we asked, 50 percent of the teachers said they received no support from professionals. Fifty-six percent of them said they received no support from colleges and universities.Well, that puts the colleges and universities in a bad light, and now some are starting to look around and say “well, how can we cure this?” Although not as quickly as the professionals. And I think that if we could get the colleges and universities to start looking at bringing back courses in how to teach high school journalism, that would be a huge first step.Burns: I wanted to point out, by the way, that this issue of not having enough support outside the school was reiterated 40 years ago, it was mentioned 40 years ago and it was reiterated 20 years ago and we’re still seeing it today, that they would like more connections between public schools, people that are peers, local journalism colleges, absolutely, more connections, and these kinds of things.I think that some journalism professors are actually participating in high school training and so on, sometimes formally. The Maryland Scholastic Press Association, I would go and teach there in the summers, but just two weeks ago I was at a high school talking about media literacy and journalism courses and so on, so maybe informally they do some of this stuff, but I think it needs to be more institutionalized for sure.LoMonte: Well I guess one of the saddest single statistics that I saw in the summary of the forthcoming book was — and Becky I think you’ve actually been quoted addressing this — that more than half of all journalism advisers say that they go to work in fear of being disciplined by their supervisors for something that their students publish.Tallent: Yes, it’s really very sad, and lately some of the cases that we’re hearing don’t help that. The Pennsylvania case, I’m going to mispronounce the name of the district, Neshaminy. LoMonte: Neshaminy. This is the offensive nickname for the school mascot, right, and the students are embroiled in a still ongoing controversy in which both the student editor and the journalism adviser have suffered discipline simply for enforcing an editorial policy, voted on by the student editors, that says “we will not use this racially-offensive term in our pages.” Tallent: And the principals, I’m sure, around the country hear about that and say “well we have a right to promote our school the way we want through the student newspaper.” Unfortunately they’re seeing the student newspaper as a public relations tool. They’re not seeing it as a journalism learning tool, and teaching children how to think critically and strategically, how to think about the news and how it impacts people, so I think that that is really something. If I could change three things, if I ruled the world and could change three things of the things that we found in the study, that would be one of them — helping take the fear away from teachers so that they can go out and teach what needs to be taught without worrying about “well, am I going to get into trouble because I told the students ‘it’s OK that they want to do a story on X or Y?’” It’s just so important because the students feel that fear. I’ve taught high school, I know that students feel that fear and understand that I’m scared that I’m going to get my teacher in trouble. We shouldn’t live in that kind of society. We should be able to allow the students to go out and be reporters. Burns: This, too, is where I think the profession can help by, when they are aware of these cases, stepping up and going on the record in support of these young journalists and their supervisors. I think that is key, the more light we can shine on this kind of the thing the better off they are going to be.When I’m confronted by what administrators sometimes see as a factual errors or so on, I just tell them “you have a way of voicing those, of stating your facts as you see them and go ahead and exercise those. You see that makes a heck of a lot more sense and, public relations wise, it looks better for the institution when you address them in those ways instead of trying to put gags on reporters and gags on newspapers. That doesn’t serve any purpose whatsoever.LoMonte: Sure, but of course fixing factual errors is often cosmetically the reason administrators claim they need the authority to pre-approve content. In our experience, it is the very rare person who can resist temptation to do more than that and certainly when students call the SPLC hotline looking for help from an attorney, it’s not because a principal fixed a mistake in their copy. It is because, invariably, the excuse that students are given over and over again by schools, is that “you’re hurting the image of the school, you’re making the school look bad and you’re being bad citizen of the school by criticizing our policies or by portraying us in an unfavorable way,” which of course is unteaching good journalism. It is actually affirmatively teaching bad journalism. So the rationale given for the censorship authority often diverges from the way that it is actually used in practice. Let me ask, as we’re sort of wrapping up, David, and I think I should applaud the book by naming it, Still Captive: History, Law and the Teaching of High School Journalism, David, now that this research has been gathered and is about to be published, what are you hoping that will happen next? What are you hoping that people will do with the benefit of this information?Burns: Well I think I would like to see journalism become more of a part in high schools again and one of the things that sort of came up in our survey was that the best and the brightest were no longer gravitating toward journalism classes, they were gravitating toward AP classes, and because AP classes help give them college credits and so on and a journalism program does not fit in. So I guess if I were to hope and wish for something, it would be that journalism-type courses would be recognized as an English class or something like that as part of AP credits, and I think that would go a long way. It certainly promotes media literacy, it promotes critical thinking, and all the thing we would like our college students or graduating high school students to have in their toolboxes.I guess one takeaway I would like to see happen, one change I would like to see at an institution, that would be it. As far as, just within society, what I would like to see happen is people need to recognize that really in this day and age, today’s elementary school students and high school students have never really known a free press in action. It’s been hobbled by free press restrictions and so on, so we need to incubate this free press, free thinking type of person in our society in order for democracy to thrive and in order for democracy to survive. that, in and of itself, is a real worry for me, that I see these students without really a history, a personal history, in free press, and I worry about that.LoMonte: Well let me leave the last word to Becky Tallent. Same question, I guess what are you hoping to provoke or to prompt by publication of this book, and do please finish up by telling us where and when people can get their own copy of Still Captive. Tallent: What I’m hoping, and I think this is just the educator inside of me, I really hope that high school journalism teachers can get copies of this, read it, it will help their teaching, it will help give them a better understanding of journalism, how they can teach it effectively, give them some great, great things for the classroom, give them some hope that “yes, this stuff is worthy of AP or worthy of being able to shine in a school as opposed to being pushed back into a dark corner and being heavily regulated. Another think I hope this does is I hope that administrators can see that journalism is important. It teaches four core concepts and that they should support it, not just verbally, but they should support it by helping find ways to fund it better so that the students can have better equipment. Hopefully the pros will come in and colleges and universities will come in and help with that as well. It is just incredibly important that we foster our best and brightest youngsters who are currently in high school and junior high to come forward and learn what journalism can help them do, not only in high school, even if they don’t go into journalism, but in life as a lawyer, as a doctor, as a mechanic, whatever, as an engineer, whatever it is you go into being, journalism helps.And you can get Still Captive: History, Law and the Teaching of High School Journalism, starting in January. It will be available through New Forms Press, it will be also available on Amazon, and I believe the price is going to be somewhere between $25 and $50. It will be available as both a soft cover book and as an ebook. LoMonte: Great, well Professors David Burns and Rebecca Tallent, we are so grateful for you and all the researchers who’ve put your time and your talent into the study that is getting to be published in January, Still Captive, we hope that anyone who is experiencing a problem with freedom of expression in schools or colleges, especially student journalists and their journalism advisers, will contact the Student Press Law Center through our hotline (703) 807-1904, or by email email@example.com. We hope you’ll check out all the legal and educational reference materials that are free for your use at splc.org, and that you’ll join us each month for a new edition of this podcast.Thanks again to Professor Burns and Professor Tallent, and to all of our good friends at the Society of Professional Journalists, and thank you for listening.
Eric Bosco and Steve Fox of the University of Massachusetts Amherst discuss a class project investigating police officers' use of college students as undercover drug informants, which sometimes ends with tragic consequences.Frank LoMonte: Hi everyone and welcome to another installment of the Student Press Law Center’s monthly podcast. I’m Frank LoMonte, executive director of the Student Press Law Center. The SPLC is a source of legal research, information and advocacy in support of student journalists and their advisers all around the country.We offer free legal and educational resources online at www.splc.org, and we encourage anyone with a legal question about their rights in gathering and publishing news to get ahold of us through our email hotline, firstname.lastname@example.org, or 703-807-1904. We’re here today to talk about the subject of police use of college students as undercover drug informants, a controversial practice that has come to light as a result of some really enterprising reporting on the part of college journalists around the country.Part of a team of journalists that uncovered a disturbing story in the Boston area is with here today on the podcast, Senior Lecturer Steve Fox at the University of Massachusetts Amherst, and one of his investigative reporting students, UMass Amherst senior Eric Bosco, are with us to talk about their investigative work on the practice of using college students as undercover drug informants and the sometimes tragic consequences that can result.Steve Fox is a 25-year experienced professional journalist, most of that time spent as an editor with The Washington Post and washingtonpost.com, he’s also worked with ESPN and in addition to his work with the investigative reporting program, he also directs the sports journalism program there, so we’re happy to have Steve Fox and Eric Bosco with us on the podcast, and I guess Steve, maybe start of, we hear a lot of talk about this concept of teaching hospital journalism, with students actually providing the baseline news coverage that their communities need instead of just writing term papers like in the old days.I guess, can you talk a little bit about this partnership that your lab has with The Boston Globe, which has published some of this really remarkable work that the students are producing — Front-page caliber, major metropolitan, daily work. Steve Fox: Sure, thanks for having us today, Frank. I’m a big advocate of the teaching hospital model. The investigative class that i teach, that produced this front page story for the Globe, it’s definitely the product of a classroom working as a newsroom, and the class usually turns out to be upper-level students, juniors and seniors, who have already been through a couple advanced writing classes and are really trying to take their skills to the next level.The partnership with the Globe has evolved over time. The class has done three projects now with the Globe. We’ve also partnered with two other news organizations, including the Huffington Post and MassLive, which is the website for one of the local papers in Springfield, Mass. So, definitely one of the attractions to the class is that the students are actually able to see their work published. It’s ale a pretty high-intensity class in that we’re under pretty hard deadlines to get things done by the end of the semester, but for the most part students seem to get into it and enjoy it. LoMonte: Well Eric, one of the things that has really put this program on the map is the reporting that your class has done about the death of a UMass. junior from a heroin overdose during a time that he was working as an undercover police informant. Tell us more about how that story came to light and how you pursued and what your ultimate findings were.Eric Bosco: Alright, well the topic for the investigative class last semester was heroin, so I had about a heroin overdose that happened off campus and I had also known that this kid was, prior to his death, used as a confidential informant by UMass police. I didn’t know that for sure, but I had heard it through the grapevine and it was, I was the same year as the kid, I was a junior at the time, so I had heard it around campus that he was a CI at one point. He wasn’t actively informing at the time of his death, but a year prior to his death he was a confidential informant. So I knew of him that way and I also knew he overdosed on heroin because I heard it from one of his neighbors. So I was bringing it up one day in our class, sort of working as a newsroom, just bouncing ideas around, possible leads, where to look, and Kayla Marchetti was sitting across from me and she said “well, I knew my old neighbor from last year, her boyfriend just died of a heroin overdose, so I asked the name, turned out that was the same name of the kid that I knew, who was the kid who OD’d and was a CI a year before his death, and from there we just went after the documents, went down to the Town of Amherst, got the death certificate, proved that he had OD’d on heroin and then documents from UMass Police proved that a year before his death he was a confidential informant in a drug case and everything just kind of went from there.Fox: what was interesting about this story, and often with the student work, is that the amount of stuff that students know on campus just by talking with one another can sometimes be stunning. So this kind of started off as a story that everybody had kind of heard about, and then it reached the next level when we were able to get the death certificate and then get our hands on police documents, but the story really reached another level when, after Eric and Kayla had this long conversation with the mother, a Skype conversation actually, and she had mentioned that she had texted the drug dealer who had been in contact with her son the night that he died, and she texted him a nasty message when she got ahold of his phone, and then told Eric and Kayla that there were all of these text messages on the phone, so we were trying to figure out how to sit down with her and go through the messages and we really couldn’t handle a trip to where she lived because of liability issues, so I said, “call her and see if she will send us the phone.”So she sent us this phone that we had over a year’s worth of text messages from the kid who died, and it really, it was like he was speaking from the grave. It was just stunning the level of insight that we got into him and his character and his struggles. LoMonte: That is remarkable. I have to take you back to what Eric said about obtaining documents about this student’s work as a confidential police informant. I’m sure there are people out there thinking they are lucky if they can even get ahold of a police incident report, let alone documents of that level of complexity and sensitivity. Can you talk a little about getting the police to turn loose those records. Was that an easy task or was it something that took a lot of back and forth?Bosco: Well, first I wanted to find out if he actually was a CI. I had heard that as a rumor, and the first confirmation came from his girlfriend, and that was the first interview that we did. Kayla put me in touch with her and we wend and did the interview and she kind of confirmed that he was a CI, so immediately that day I went down to the UMass. Police Department and filed a records request with his name and the date of when she thought that he was arrested, well excuse me not arrested but busted I guess and flipped as a CI. And then I waited a couple of days and got a phone call, went down to the police station, picked up the envelope and in it was I think 12 pages detailing his initial bust, undercover officers’ text messages to him and then the full incident report of the night that he served as a CI, so it was pretty easy. LoMonte: Well that’s a really remarkable level of cooperation from a police department and not one that I’m certain would happen in every state and with every department. I guess, would the outcome have been different had he still been alive and they had had a privacy interest to protect, but certainly the argument is less compelling that there is any privacy interest to protect when you’re dealing with a deceased person, so that may have facilitated your access in this case. Fox: And you’re absolutely right. Cooperation with university police and university officials in general is tenuous at best at most times. In this case they … they also gave all the supplementary parts which identified him as CI and gave us the details of the original incident where the police were about to arrest him in his dorm room the year before he died, and that was when they found the hypodermic needle, which ended up being a key part of the story.This is one of the real issues that the mother had with how the police and university officials handled the case was that the police really didn’t take into consideration that he — at least it didn’t appear so anyway — that he was a possible user and needed help rather than being turned into an informant. LoMonte: I should mention, too, this is maybe something people are scratching their heads and thinking about. We think of drug informants as being some sort of a product of east LA gang culture and not something you expect to find on the campus of a really high-end university, but this is not a practice that is in any way limited to UMass. Right around the time that your team was reporting on this story for The Boston Globe, a comparable story came to light and was published in Wisconsin by one of the non-profit investigative reporting outfits there, Wisconsin Watch, and I definitely commend their coverage, which is on wisconsinwatch.org. They also looked at the practice of the use of college student informants there and they found documentation that on at least four campuses that are part of the University of Wisconsin System, that there was evidence that the police had been using college students to make undercover drug buys and to facilitate drug busts, and the circumstances are all comparable to the ones that you reported on for the Globe. A student is caught with drugs and rather than accept a prosecution, the student makes a deal and the deal involves going out and selling, undercover, as to set up other people for arrest, and certain in your case this question really came to a head because of the overdose death of the young man. Can you talk a little bit about what has been the fallout and the reaction after this hits the front pages of The Boston Globe and the spotlight shines on this overdose death?Bosco: I would say there was a lot of shock, really, a lot of students didn’t know that there were informants employed by the police department here on campus. The department has a policy for confidential informants, but it’s not on the website, it’s not out there for people to look up and Google, so nobody really found out about it. It’s not listed in the police logs or anything like that, so prior to this story, I would say the majority of campus had no clue that students were being used as informants, so initially, aside from the fact that the kid had died from a heroin overdose and the tragedy of that, in the university response, suspending the program and calling for a revue, there was pretty much just kind of surprise, generally, about the fact the university was using informants at the time.Fox: I mean the university actually moved pretty quickly, the chancellor denounced the program, the university-wide president came out and registered concerns. It moved pretty quickly from “we’re going to revue it” to “we’re going to suspend it,” to now there is a university-wide committee looking at the use of confidential informants.There was the class, there was me, there was my colleagues, there was people I spoke with, and this whole notion of confidential informants on campus was something that you associate with the 1960s drug culture and civil rights and all the stuff that was going on then. You know, I spoke to a number of different people in law and law enforcement who are kind of stunned by this use. And it was in direct contrast to one person, we interviewed a chief in Greenfield, Mass., Greenfield has a pretty serious heroin problem, and his approach is trying to find ways to get people who are ODing, people who are using, to get them into programs. Him and his officers will find people who have OD’d, and in the past an arrest would have been made but now they are trying this different approach and you hear this in different places, where the approach to heroin use needs to be one of treatment and not one of law enforcement, which really seemed to be the issue that we ran into with this story.LoMonte: Well one of the other issues that’s been raised in other jurisdictions, and there’s quite a remarkable story that I command people’s attention about, the death of Rachel Hoffman in Tallahassee, Fla., that was published by The New Yorker magazine. It’s quite a disturbing story about how the Tallahassee police were using college students, and in her case recent college graduates, to go under cover under very dangerous circumstances and make drug buys and in fact this young woman, Rachel Hoffman, was murdered by people with whom she was attempting to set up an undercover drug deal. Her parents ended up suing and getting a large settlement in excess of $2.5 million from the City of Tallahassee for the police’s negligence in the way they were supervising this program and it resulted in the enactment of the state law in Florida that talks about the training that’s required for police to be working with informants. I think that’s another interesting question here when you have campus police doing this. People do not usually think of campus police as being especially well-trained or experienced in dealing with very serious crimes. They normally think of them as glorified security guards.Has any of this come up in discussion now in Boston in terms of just the safety considerations that come into play when you’re sending somebody undercover who is not a hardened criminal but might be some must up in the head anthropology student?Bosco: I think the one important thing there is that I had known, as a student, that this kid was an informant. So the confidentiality part of it didn’t really exist. He was busted one night for selling molly and LSD out of his dorm room, and that same night he was brought to a higher-level dealer’s room who he had known, it was actually a former roommate of his, and he was equipped with a wire, went in, made the controlled buy, left and immediately after the detectives went in and made the real bust and made the arrest. At that point it’s pretty obvious the people in the room, who were being busted, who had informed on them. So his name spread through campus like wildfire, through that drug community and the grapevine and whatnot, so his identity was not confidential. And around here the drug culture is not violent and it is not like east LA gangs or inner-city areas. Amherst, Mass., is a rural place and a pretty high level public university, so he wasn’t going to be tracked down and shot in a back alley, but he was ostracized because he was identified as the snitch because of the confidentiality part of it really didn’t seem to exist. Fox: And the training is definitely an issue, and this is one of the real points that the mother brought up was that there was a hypodermic needle found in his room the night that he was flipped as a CI, and you go through his text messages and he’s pretty much using, except for a short period of time, that entire year before he died.What we heard from police was “he’s an adult making his own choices,” and while that’s true, using a drug addict as a confidential informant raises a number of different issues, including credibility of what information you’re getting, and just the humanity side of it. Talking about a college student, sure they are an adult but there’s also this whole notion of in loco parentis, I’m trusting my child with you for four years, you’re going to take care of him, or her, and that really didn’t seem to be the case here.I think one of the things that has come up is, if they move forward with the confidential informant program, whether or not to have drug testing if someone is admitted to a CI. LoMonte: Sure, well we’ve gone through a lot of really useful tips, I think, for someone that was trying to replicate a story like this in their own community. You mention, which is a wonderful way to start off, using your state FOI law to get the police reports surrounding the bust of the informant and then any other supporting documents that you can get by the way of FOI request, and the police certainly, it sounds like, having both the cooperation of the family and the cooperation of the girlfriend, were key in your reporting.Any other thoughts from either of you about just, sort of lessons learned, takeaways from this investigation that might be of use to somebody else pursuing a comparable story?Fox: You know, if you’re trying to do it as a class, you know the biggest constraint you have is time. You’re looking at 13 weeks or so and in that period of time you’re covering a lot of grounds. You know, there’s a ramp-up period, it’s almost like the class developed into thirds in which the first third is kind of “OK, here are interviewing techniques, here are reporting techniques, let’s kick around some ideas. The second third of the class is going out and reporting and then the last section is writing and drafting and writing and drafting. You know, getting the support of your department head, your department chair is crucial, especially if you’re investigating something on campus. You’re going to hear about it from a variety of people about what you’re doing. If you’re investigating something serious that doesn’t reflect well on the university, you’re going to have administrators attacking you or trying to undercut you, and having to work around that, it’s a great learning experience and a great learning environment, but it’s difficult. There are a lot of obstacles, things are going to go wrong, stories are going to die, and being able to be nimble and be able to really kind of find that sweet spot and get those students moving at the right times is a high-intensity type of thing to do, but when it works, it’s pretty amazing when you see what students do in a rather short period of time. LoMonte: Eric, any takeaways from your experience with this? Anything you’ll take into a future project with you?Bosco: Ya, it was almost like not even being in school anymore. It was like not really even a class. It was like going in every day to work in a newsroom, so I kind of dropped all of my other responsibilities because at that point I could care less. I was working on a story I knew was going to be A1 material and I knew it was a meaningful story that I needed to tell. So the late night, five-hour-long Skype conversations that ran to 2, 3 a.m., with the mother just compounded that and I felt a personal connection to the story and I just ran with it. The only takeaway I have is that it was worth it to sort of drop everything that I was doing to not worry about classes and sort of make my educational experience what I wanted it to be, I guess, and that was being an investigative reporter on campus. LoMonte: Well I want to thank both of you for joining us, sharing your expertise, and also for this amazing investigative work that has really put this issue on the radar for discussion, and it looks like it’s bringing about a really positive and over-due discussion at your campus. Again, Eric Bosco and Steve Fox, thanks for joining us and thanks for your terrific work with the Globe. The Student Press Law Center has all sorts of resources online for those looking to request records from public agencies in their own community, including an automated fill in the blanks public records request form that can help shorten your time. We invite you to check out all the resources available on splc.org and send us a message at email@example.com, if you need any help with any aspect of your legal rights as a student journalist or journalism educator. thanks for listening and we’ll talk to you next month.
Deborah Caldwell-Stone of the American Library Association discusses the effects Internet filters in public schools and libraries have on learning.Frank LoMonte: Hi, and thanks for joining us on another episode of the Student Press Law Center’s monthly podcast. I’m Frank LoMonte, executive director of the Student Press Law Center. The Student Press Law Center is an advocate for the First Amendment Rights of student journalists and the educators who work with them. We’ve been doing this for 40 years, and you can find us on the web at www.splc.org, where you’ll find lots of educational resources about protecting and intelligently asserting your own legal rights to gather and share information.Librarians are some of the First Amendment’s best friends in schools and colleges, and like teachers and like student journalists, they often have that frustrating moment when they click on a needed website and come up with the response “Access Denied.” Many of you listening have had that frustrating moment when you need to see a video, access a social media site, look up a Google document and find out that school Internet filters prohibit that access.Much of this is an outgrowth of a 2000 federal statute, CIPA, the Children’s Internet Protection Act, and with us on the podcast to talk about CIPA and about the American Library Association’s recent study about the impact of Internet filtering on education is Deborah Caldwell-Stone of the American Library Association. Deborah is the deputy director of the ALA Office for Intellectual Freedom, based in Chicago. She’s held that position for 14 years. She is an attorney with a law degree from Chicago-Kent, and we appreciate everything that she and the ALA do for freedom of expression on campus, so thanks so much for being with us.I want to talk about your report called Fencing Out Knowledge, which is such a terrific document. It is required reading for anybody in this field, but I guess first just kind of start us off with, how did Internet filtering become a concern for the American Library Association, and why is it something with which school librarians should be concerned?Deborah Caldwell-Stone: Librarians are information specialists and their whole reason for existence is to connect people with the information they want and need, and so when you talk about a piece of software that prevents people from accessing information, of course it’s a concern for librarians. Our concern, particularly with the Children’s Internet Protection Act, is that it actually targets libraries because of their ability to deliver content to people through the Internet. There is a little bit of history to regulating access to some kinds of content on the Internet. There was a couple of attempts, by Congress, in the ’90s to directly regulate what is called harmful to minors material: sexually explicit content that’s actually protected by the Constitution but for various reasons we deem it inappropriate for minors to view, or obscene for minors, and they did it very badly. Both laws were overturned very quickly by the Supreme Court and what the Supreme Court counseled was that, you know, the Internet has full First Amendment protection. You can’t try to regulate it by trying to ban some kinds of content. You have to try to find another way. And so, what Congress came up with was the Children’s Internet Protection Act, and it doesn’t directly regulate content. What it does is it tells schools and libraries that accept certain kinds of federal funds for Internet connections, that they have to put filters on their computers in order to receive those funds.So they are really attaching a condition onto their funding rather than directly regulating content, and they put the schools and the libraries in the business of acquiring the software that blocks access to all kinds of information. The law was passed in 2000, it’s been implemented in schools and school libraries since 2000. The American Library Association actually challenged the law on First Amendment grounds and so, for a period of years, the law was enjoined as public libraries. But ultimately in 2003 the Supreme Court upheld the law on the grounds that there’s a provision in the Children’s Internet Protection Act that says that filters can be disabled or unblocked for adult users on request, and they said that takes care of the First Amendment issue and it’s perfectly legal for Congress to attach conditions on its funding, so as a result, we have this law that requires schools and libraries that accept these funds to put filters on. What happened after that was kind of an odd period of time when nobody really asked questions about filters. Filters had been represented by the venders that produced them as the silver bullets in preventing access to sexually explicit images on the Internet that we didn’t want young children to see and we just kind of accepted that. 2013 marked, like, the 10th anniversary for public libraries dealing with the Children’s Internet Protection Act. We just naturally had questions about what the impacts were: how it effective was CIPA as a policy solution to protect young people from the prescribed harmful to minors content? How did it affect library users’ ability to access controversial topics and unorthodox opinions? What was the broader impact of CIPA on efforts to education young people about digital skills that they needed to participate in a competitive economy in the 21st-century democracy? We also wanted to know if filtering had changed the practice of librarianship, and so, what we did, my office, the Office of Intellectual Freedom and the Office for Information Technology Policy, we joined together and we put together a symposium to bring together academics, school teachers, IT administrators, attorneys, policy experts, digital content experts, to talk about what CIPA had done in schools and libraries to Internet access, the actual experience, and the problems that had been seen by policy experts. The result of the symposium was synthesized into a report, along with a review of the literature that was out there, and what we found, after 10 years, was that mandated filtering under the Children’s Internet Protection Act, has resulted in a significant overreach in the implementation of filtering. That is, it goes far beyond what the law actually requires, which is to block visual images that is either deemed to be obscene, child pornography, or harmful to minors.Instead, the filters are being used to block all kinds of constitutionally protected, and mostly perfectly appropriate content in order to achieve the goals of the law. As a result it’s blocking all kinds of legitimate educational and information resources.LoMonte: Well one of the first ways in which this made itself felt, many schools, under the auspices of CIPA, but actually oftentimes going well beyond what it requires, began blocking social media and social networking sites, which has been a particular frustration for people working in journalism because, in the 21st century it’s really not possible to teach people the complete practice of journalism without showing them how to use social media, and I think your study actually found that the majority of schools do use filters to block access to social media.You mentioned that CIPA is a creature of Congress but it’s enforced by the FCC, the Federal Communications Commission, and the FCC actually has in so many words come out and declared that there is not a categorical requirement, either under the statute or under the FCC regulations, there is not a requirement to block social media and that in fact there are many legitimate and valid educational uses of social media, so I just wanted to make sure we shot down that myth because it’s a very persistent myth that because it’s possible to find a naked picture on social media that that means that all of social media is necessarily categorically harmful to minors and has to be banned. In fact, the FCC has said the exact opposite.Caldwell-Stone: Absolutely. And it’s not only the FCC, Frank, it’s also the Department of Education. They also weighed in in 2011 with a report of their own, noting that it was necessary and important to teach kids how to use social media, to have classes about digital literacy, news literacy, so that they became effective users of the Internet, and the filters are preventing that altogether. So we have two federal agencies in unilaterally declaring that social media is not a subject to filtering, and that’s one of the things that we really wanted to get across, and there is many reasons for this. The real thing that comes down to is that when the law was passed in 2000 it was primarily a bunch of static HTML pages, but the whole Internet has evolved and it’s becoming much more than a passive content delivery system. It’s interactive, it’s dynamic, it provides all kinds of tools for people to access and create content, as well as consume it.Filtering simply hasn’t kept up with all of this, and as a result, it blocks access to platforms, and it blocks access to social media, and it creates huge problems as you’ve noted. But we’ve also found in surveying school administrators is they treat filtering as a solution to all kinds of problems that were never intended to be death with by filtering, things like cyberbullying, hacking, copyright infringement, cheating as well, plagiarism, whateverLoMonte: So that people can’t get to Wikipedia or copy reference sources.Caldwell-Stone: So this is something else to note is that filtering has become socially accepted as the means for dealing with problems with the Internet. ‘Well, if we can’t deal with it, if we can’t change behavior around it, if we feel helpless around it, we’re just going to block it.’ And that’s one of the greatest harms we’ve seen come out of CIPA is this ethic of blocking rather than coming up with positive solutions, using education as a means of encouraging ethical use of the Internet, among both young people and adults, so that everybody has the opportunity to access information, access the platforms that they need in order to participate on the Internet, acquire information, and just use these tools that are so necessary for both education and work today. One of the things we found out is there are a number of libraries that have removed their filters, at least on their adult use computers, because they found that the high school students who came in couldn’t use the homework platforms that their high schools had adopted.There was another instance where public libraries were enormously frustrated because they were responsible for proctoring exams for nursing exams, online nursing exams, and they couldn’t access the online nursing exams because of the filters. And so we’ve seen this movement from some public libraries to remove their filters, but that doesn’t solve the problem of school libraries, which almost to a school feel very locked into this ethic of blocking access in order to keep out inappropriate content and prevent misbehavior. And so we are really urging school librarians in particular, but librarians as a whole, to start thinking about alternatives to filtering, or what we call First Amendment filtering, where the law does mandate blocking access to these images under these categories of content that have always been barred under law — obscenity, child pornography — and we acknowledge that, but that doesn’t mean you block access to Facebook in the same way, or Youtube, or block access to learning platforms like Moodle, for example, or Blackboard. So, learning how to dial back the filters, learning how the filters actually works. One thing that we encountered is that many people don’t understand how filters work. They are software that are designed by commercial companies and they are often marketed to a wide variety of audiences, and we even found that some filtering companies are part of a church or religious movement so that the filter is actually designed to reflect the moral choices of that particular religion or an organization’s moral beliefs. So you have to know how that filter works, what the mission of the vender is itself in order to choose the most appropriate filter.LoMonte: That’s actually a point in your report that I found so interesting. And again the title of the report is called Fencing out Knowledge and you can find it on the ala.org website. You mentioned in the report, which I thought was a very worthy observation that this is, in effect, privatizing the regulation of schools, that instead of having educators reach these decisions about what is and is not a usable Internet resource in a transparent and publicly accountable way, you’ve outsourced this to a company that may not have to make its decision process transparent and where members of the public may not be able to find out exactly what is being filtered and how the decision is made.Caldwell-Stone: Absolutely. We hire teachers, we hire librarians to exercise their professional judgment. They spend years in school learning how to educate, how to select materials, how to provide access to information, and we just farm that out to a vendor who may have no training at all in those things and trust their judgment. And I have to tell you there are sometimes school districts who have gotten caught up in this, and public libraries as well.I can offer the illustration of a lawsuit that was filed in Missouri. What happened is they had purchased a filter from a vendor who was opposed to civil rights for GLBT people and opposed to same-sex marriage, and the filter was designed to reflect his prejudices. The filter would block access to sites that would favor civil rights for gay and lesbian people or supported them, like PFLAG and the Lambda Legal Defense Fund, while allowing access to ex-gay ministries and to sites that opposed civil rights and same sex marriage rights for homosexuals.A student discovered this. She just wanted to get information. She was questioning her sexual identity and found out that she couldn’t access these innocuous sites that promoted gay civil rights and she raised the question and she was told that they were blocked as a matter of policy. They were seen as a kind of pornography. So in that particular school district, a public school district, you could only have access to one viewpoint. The ACLU quickly took up the student’s cause and the lawsuit was filed to require the school to change its policies. Ultimately the school was found to have violated students’ First Amendment rights by engaging in this viewpoint discrimination and ordered to change their filtering practices. But there is an example about not understanding how the filter works, choosing a vendor inappropriately can result in real harm to students’ First Amendment rights and their right to access information that they should be able to access, even in a school library situation. That’s why, when we talk about this report with school librarians and public librarians alike, we talk about how to get under the hood of filters and tinker with them and uncheck those boxes, but we also have to talk about policies and encouraging a new attitude that we’re not trying to keep people from bad stuff on the Internet or that there’s just all this bad stuff out there that we have to protect people from, but rather understanding that from time to time there is content out there that some people don’t want to encounter or that we’d prefer younger people not encounter, but that by engaging in education and teaching kids how to be their own filter, in a sense, that we’re providing them with the tools to be effective users of the Internet knowing how to judge the information value of a particular website, how to avoid content that they don’t want to encounter, what to do when they do encounter upsetting information so that they can manage their Internet access effectively and well and be able to become real participants in this economy of information that’s out there online. LoMonte: That makes so much sense. I love that phrase about teaching students to be their own facilities. We’ve used the analogy before about trying to teach driver’s ed without cars, and you could imagine how well that works if you teach people how to drive by showing them a video. You’ve actually go to get behind a wheel, at some point, and experience it for yourself, even if that occasionally means you’re going to get a scrape or a ding in the process, and there may be some scrapes and some dings if we let students have social media access and access to Youtube and online video platforms in school, but that is the only effective way for people to learn, and increasingly now we know there are incredibly valuable resources that are being delivered by way of platforms like Youtube that students have access to when they go home if they have a good Internet connection at home. And I think that’s maybe the last point I wanted to touch on, too, is that there really is a concern, societally, about there being a digital divide, that there are young people that don’t have broadband Internet access or don’t have home computers at all at home, so if we’re going to tell those young people that the two places where you could conceivably get online — inside of your school or inside of your public library — two-thirds of the Internet is going to be walled off to you, then we really are potentially disadvantaging those young people aren’t we?Caldwell-Stone: Absolutely, and what we’ve found is that low income people and students who are low income feel that, as you pointed out very correctly, students whose families have broadband access at home or can afford to provide data plans and a mobile device, are able to get around the filters or do away with the disadvantages that filters might impose in accessing information online. But we know there is a huge class of folks for whom the public library is the only way onto the Internet. Similarly there is a large number of students who don’t have broadband access in their private home. By having these filtering policies in place we force them to use a crippled version of the Internet and they simply aren’t able to acquire the same digital and media literacy skills as those who have the privilege of having broadband access at home, and we go back to this digital divide issue — the information haves and information have-nots — and we simply make it worse with this policy of requiring this flawed software as a tool to protect against imagined harms, from accessing information that upsets some people, but it’s really just functioning as a means of blocking access to large amounts of the Internet. In some ways we have to go back to how filters work and we have to remember that, not only do we have to deal with the issues of vendors, but filters themselves. If you think about what the software is, it’s just code. It’s just piles of ones and zeros, and it can’t look at a picture and decide if there’s too much nudity in the picture. They can’t really parse the meaning of text or anything like that, so unless a human is involved in the process they make dumb decisions. They over-block, and they also under-block. That’s one of the things we found out, that often these filters are failing to block access to the prescribed content under the law while blocking access to things like Youtube videos that teachers actually want to access in order to provide greater opportunities for learning or to provide tools for students to create online portfolios, for example.All of that is blocked in many schools and we are really crippling the ability of our students to learn what they need to learn, and to even create content, do outreach, have the full ability to use their freedom of speech.LoMonte: Well we need to wrap up our conversation there, but again I want to give the ala.org website and the full title of this document. It’s called Fencing out Knowledge: Impacts of the Children’s Internet Protection Act 10 Years Later andDeborah Caldwell-Stone of the ALA, I want to thank you for everything that you and the Office for Intellectual Freedom are doing to try to keep the Internet free for our students and for our educators. For any of you out there who are interested in learning more about the First Amendment in schools and colleges, we encourage you to visit the SPLC.org website. It’s also a really worthwhile public records exploration for those of you who are in public schools to ask, to see documents about the Internet filtering policies and the contracts with vendors at your school and at your district. It’s sometimes fascinating to see what you find there. Let us know.We’re online at SPLC.org, our email is firstname.lastname@example.org. We’ll see you next month for another installment of the SPLC podcast. Thanks for listening.
Attorney Scott Colom discusses his victory in Bell. v. Itawamba County School Board, which addressed students' ability to criticize school officials off campus. Frank LoMonte: Welcome to the Student Press Law Center podcast, a monthly update on legal developments affecting those working in student media. I’m Frank LoMonte, executive director of the Student Press Law Center.Today we’re here to talk about a subject that is increasingly tying our federal courts in knots across the country. It’s a scenario familiar to many working in the field of education and First Amendment law. A student posts something to a blog, a social media site, a video to a file-sharing site that a school considers to be offensive, inappropriate, bad taste, and maybe even worse. The school reaches out and punishes the student for this off-campus speech and the student challenges the discipline as violating his or her First Amendment rights. The Supreme Court has yet to tell us the extent of school jurisdiction of off-campus speech, and in the absence of guidance from the Supreme Court, the lower courts are struggling to decide how much the old-time standards created in the 1960s and ‘70s in the bricks-and-mortar, paper-and-ink world can still apply, or not, to speech on social media, especially in the smartphone era when speech is portable as it’s never been before.Well, recently the federal appeals court based in Louisiana, the 5th Circuit U.S. Court of Appeals, weighed in with a case called Bell v. Itawamba School Board, and the Bell case is about this very scenario: a student who publishes a video online, talking about his school but not using school property and not using school resources, and is disciplined for his speech.With us to talk about the Bell case is Taylor Bell’s lead attorney, Scott Colom.Scott is a graduate of the University of Wisconsin law school, he’s had a very illustrious but short career in his young life as an attorney. He’s already been a prosecutor, he’s been a municipal judge, he’s done a prestigious fellowship with the Skadden working for the Mississippi Center for Justice doing in public interest law and we’re very pleased to have in join us to talk about this important court ruling, which turned into a really strong validation of the first amendment rights of students to use their own time and their own property to speak about school events.So Scott, congratulations on a really terrific outcome in the 5th Circuit case, and I guess start off if you would please by just explaining, what is it that young Mr. Bell did that caused him to come to the attention of the school and how did it play out?Scott Colom: Thanks for that great introduction, Frank. I can tell you it’s a very interesting case. Taylor, it all started when Taylor heard from some female students at the school that two coaches were engaged in inappropriate communication and contact with them, and that school had had issue in the past with a teacher having an inappropriate relationship with a female student. And some of the students, at least in Taylor’s mind, felt like that situation had been swept under the rug.So Taylor didn’t feel comfortable or confident that going to a teacher or an administrator would have any impact on stopping the behavior, and he also is an aspiring musician, he still is an aspiring musician, and he spent a lot of his free time writing, producing, recording music. He decided, probably for two reasons, commercial reasons and probably for reasons to address what he thought was inappropriate, decided to write and record a rap song. The topic was about the inappropriate conduct of the two coaches and he used familiar violent rap language. He was aggressive in his criticism of the coaches and vulgar in his criticism of his coaches.I should add that he wrote the song away from the school, he recorded it in a studio away from the school, he never played it at the school, he never talked about the song at the school, he never did anything to bring the song to the school.The school computers have Facebook blocks, Youtube Blocks and students are not supposed to have cell phones on campus, so all he did was record this song and upload it on Youtube, but other than that he did nothing to bring the song to the campus. What happened, though, of course, is some students who heard it apparently brought it or somehow one of the coaches who was the subject of the criticism, his wife heard about the song, contacted him, he asked a student on campus to play the song on his cell phone, even though the student was not supposed to have a cell phone. And once he heard the song he brought it to the attention of the principal and some other people. Then they eventually decided to suspend Taylor and to put him into alternative school for several weeks. That’s the background of the case.LoMonte: Obviously this is following a familiar pattern that those who follow this area of the law will see in cases like the Doninger case out of the 2nd Circuit, which is a very well-known case, the Layshock case out of the 3rd Circuit. A number of federal courts have had these types of scenarios in recent years where a student uses social media to criticize school employees, to comment on school conditions, not using school computers or speaking in the context of a school event, and the question becomes ‘does the school have jurisdiction to punish this speech?’In Taylor Bell’s case it was a pretty harsh punishment, right? He was brought in and he was excluded from school, I believe it was for the balance of the school year, correct?Colom: Right, he was a senior so it was a very important part of his high school experience that he missed.LoMonte: An important fact to bring up, he was brought up in front of his school disciplinary committee that has hearings on these things. While the committee did find, as Scott describes that the speech was very harsh, it was very offensive, it used profanity, but it did not cross the line of actually threatening violence nor did either of the coaches come in and testify that they felt Taylor Bell was going to do violence, they just felt like they were affronted by this and it caused them to reassess their teaching styles was the testimony, that it caused them to revisit the way that they taught and in particular the way they behaved around young girls.At that point, Scott and his dad, law partner, got involved in the case. Take us from there. First you go to federal district court and ultimately up to the 5th Circuit District Court of Appeals.Colom: I was actually involved at that school board hearing, I represented Taylor at that first disciplinary hearing and I could tell you, being there, they actually didn’t call any witnesses. They just played the song, and I want to make this clear to the listeners, the only basis they really had for disciplining Taylor was because they disliked the music, they disliked what he was saying.There was no testimony, there was no comments about what impact it had on the school’s operations, how the teachers might feel threatened, how the students might be disrupted because of it. It was quite frankly, the school attorney played the song, the disciplinary committee members heard it, commented about how they did not like the language, they talked about whether the allegations were true, Taylor stood behind the allegations made in the song, and it was a lecture to him about using vulgarity. It wasn’t any discussion about how the song was disruptive.Even some of the people on the committee who heard the song understood that it was in the context of music and was not to be taken literally, which is why they said in their initial decision that that question of whether Taylor was threatening teachers was vague. I can say that as one of the few attorneys that was there from the very beginning.What happened after that, though, is once the school board upheld that decision, again they didn’t put any evidence, there was no teachers to testify before the school board, it was nothing but they heard the song, they didn’t like the song, they upheld the recommendation for the disciplinary committee to punish him.At that point we filed a lawsuit saying the punishment violated his First Amendment rights. We filed for our preliminary injunction to try to prevent him from having to continue in alternative school, and then there was a hearing. That hearing was the first time that the teachers actually came to testify any kind of effect the song had on them and their teaching. Before that, there really was no evidence before the committee members or the school board that there was any effect on their teaching. Before they made the decision to punish Taylor, there is almost no evidence that it was anything other than they disliked the song.LoMonte: You mentioned the magic word of disruption. For those who follow this area of the law, the signature Supreme Court case about the First Amendment rights of students is the Tinker case from 1969, and disruption is sort of the triggering point for schools to argue there, that unless the speech crosses a threshold of disrupting the operations of the school, then it’s not punishable by the school. But again, the Tinker case was about on-campus speech and indeed it was speech the students were engaging in on their apparel by wearing armbands throughout the school day, even during the class time.This is quite qualitatively different from that, just as you well explained, that not only did Taylor not bring the speech onto school grounds, he knew the social networks were blocked at the school and that it was actually quite unlikely to be viewed by anybody at the school and he was anticipating and hoping that it be read off campus, so it was actually, putting speech on social media was actually a uniquely ineffective way of getting it into the school and he knew that to be the case.So the lawsuit was filed in federal district court and the district judge actually decided it in a very differential manner in favor or the school upholding their exercise of authority. Then you got your opportunity in front of the 5th Circuit Court of Appeals, which handed down a decision just on Dec. 12 of 2014. It had been percolating for quite a long time there.Tell us about that process and that outcome.Colom: Well, I’ll tell you that the district court opinion did not analyze the law as carefully as I thought it should have been. It did not focus in on what you said, which you described that great because the Supreme Court has never said that school districts have the authority to regulate off-campus speech with the Tinker standard. So the district court judge misinterpreted the law and just basically gave school districts the same authority to regulate off-campus speech as they do for on-campus speech, which I thought was problematic.But also, I didn’t think the district court dealt with the repercussions of this decision and what that would have on all student speech away from school, and that’s what the 5th Circuit did in its opinion. We briefed it, and of course the school district briefed it, we argued it, it was a very active oral argument, the judges were very prepared, they asked a lot of great questions, and I think that the majority really focused in on the fact that one, probably most of adults who heard the song, and certainly I heard the song and thought it was vulgar, it was bad language, if Taylor had been my child I would have been upset with him for writing and recording music with those words. You know, I don’t condone the lyrics in the song, but once you get past the dislike of the song and realize that the First Amendment has to protect music and words that people dislike, that that’s not a basis to regulate it. Once you get past that, I thought the judges realized there was a lot of problems with just giving the school district blanket authority to classify the speech as threatening or violent without any basis and then saying that they can punish the student for it.One of the differences between Taylor’s song and a lot o f the other speeches where the courts upheld the districts’ ability to regulate it, Taylor’s song was certainly, unequivocally a matter of public concern. When you’re talking about teachers having inappropriate contact with female students, had he just said that on the public square, he talked about that as a problem and he did that every day for two weeks, well that probably would have been disruptive for the school but certainly we wouldn’t thing of that as speech that is disruptive.But for you to say we don’t like the fact that he cursed when he did that, so therefore the school can regulate it, that is problematic under the First Amendment. LoMonte: Absolutely, and I think you focused on really a key point, that the district court lost sight of but that the majority at the 5th Circuit court focused in on. The Supreme Court told us just a few years ago in the Snyder case about Westboro Baptist church that it doesn’t matter how offensively you present your ideas, if you’re addressing matters of public concern, you get heightened First Amendment protection. Certainly the way the Westboro Baptist Church people make themselves heard is every bit as offensive as Taylor Bell’s rap song, and yet that was found to be fully protected by the First Amendment, and so the majority two-to-one ruling by 5th Circuit correctly focused in on the nature and the intent of the speech, which is the kind of speech that is most in need of First Amendment protection. If the First Amendment doesn’t exist to allow people to blow the whistle on government wrongdoing, then it has no purpose at all.Colom: Exactly. So it took the 5th Circuit panel a long time to get the right decision, but I certainly thing they did at least get the right decision.LoMonte: One of the very important points in that case was, although other courts have sort of assumed that the Tinker standard is the right level of autho rity over school speech no matter where it occurs, especially in the social media age, the 5th Circuit was really quite skeptical of that. The majority was really doubtful that the Tinker standard is adequately protective of speech off campus, and that’s important because other courts, often on facts that were more sympathetic to the school such as a cyberbullying type of situation, have just gone along with the assumption that schools have the Tinker level of control, no matter where the speech is located. That seems like a questionable assumption given that when a student is speaking off-campus, he is not addressing a captive in school audience in the same way that he is when he is in class speaking during class time.Colom: That’s absolutely true, and I thin that when the Supreme Court does finally address the issue, that they are going to set up a height standard for off-campus speech for the reasons that you just identified. If you look at the Tinker case and the subsequent cases where the Supreme Court has upheld regulation of student speech, it’s been clear to me that the focus has been on the fact that public schools are basically required for students. Because of that, the Supreme Court recognizes that the school districts need to have a little more, a lot more authority on what is said at the schools by the students then controlling what is said by the students at home.I think that, for what it’s worth, my opinion is that the Supreme Court eventually will determine that school districts do have some authority to prevent cyberbullying or some other form of speech that is problematic toward other students, but I don’t think they are going to extend a blanket Tinker standard to off-campus speech because it would be a dramatic expansion of government authority over citizens’ First Amendment rights in a way that, I can’t think of a good enough justification to give the state that much power.LoMonte: One of the things that you and the Student Press Law Center, in our brief in the case, pointed out, is that this happens to be a case about social media. When you talk about off-campus speech you’re talking about all off-campus speech, which could include a kid marching in a parade, it could talk about a student speaking and addressing the school board, writing a letter to the newspaper, all manner of off-campus speech that’s directed at causing change at the school would conceivably be subject to school punitive authority, so it certainly seems like it undermines what schools say they are trying to accomplish by getting young people more civilly engaged in their communities to say ‘we want you to be civically engaged, but if we don’t like the level of politeness to the government, we can punish you for it.’ I think that’s quite important.Let me also ask you to address for just another minute, I think another important point about this case is, when you are dealing with adult decision makers, who may be in their 50s and 60s who did not grow up listening to rap music, I think there is a real risk of a cultural and generational divide here and that students who like to play rap and listen to rap and who are comfortable with that speech, are going to wind up disproportionately singled out for punishment, and so it’s quite important that the circuit saw through the facial offensiveness of the words and recognized that, I think the statement has been made before that just like Eric Clapton didn’t shoot the sheriff, Taylor Bell didn’t intend to shoot the coaches either.Colom: Ya, and that is a very important point. It really goes back to the judges remembering that the First Amendment does not allow us to judge the speech. We don’t get to say ‘we don’t like this speech. We don’t like these words.’ Unless it’s a true threat, and I thought the Watts case was very instructive and that’s why we focused in on it in our brief because when the gentleman was protesting Vietnam and said the threatening comments about Lyndon B. Johnson and was criminally convicted for that, the Supreme Court recognized that in that context, nobody would have taken that as a literal threat, not a reasonable person would have taken that as a literal threat.And I think in the context of Taylor Bell’s song, there was very little evidence, in fact there is no evidence, that the school took it as a threat. If you just looked at the lyrics they were not a threat from Taylor to the coaches. I though that point of the majority opinion was very strong and they talked about that Taylor didn’t give the speech directly to the coaches, he made it to a public forum, and how in that context you have to say he is obviously expressing dissatisfaction with these coaches, and he is allowed to do that if he’s not doing it at school.Like you said, the lyrics and the words in rap music are a lot more familiar with a younger generation of people and people in the younger generation are more accustomed to it, so just like music in the history of the world, music taste changes. It’s smart we’re not judging music based on our tastes.LoMonte: Sure. As we know, it’s very well documented now that students of color are disproportionately singled out for discipline, oftentimes just for what they say and not for behaving in any type of violent or threatening way, and we certainly don’t want to do anything to exacerbate that problem by making rap music a punishable disciplinary offense. In closing I should point out that there is an asterisk on this case in January of 2015. The school district has moved for what is called an en banc rehearing, meaning that if they were successful in persuading the judges to do so, the entire complement of judges sitting on the 5th Circuit could rehear and potentially reconsider and overturn the case. ‘It’s a 2-1 decision, so there is reason to believe one judge, possibly even more, who believe that the majority got it wrong, but on the other hand the rules of the 5th Circuit are very demanding for when a rehearing will be granted and it seems like, in the absence that this contradicted by existing 5th Circuit precedent, which the school is unable to say, that there really is no basis to rehear the case. It may very well be that the Supreme Court is the next word on this and it is certainly inevitable that they will take a case, sooner or later, that they will take a case about off-campus speech.If they do I would be proud to go to war alongside Scott Colom. You’ve done an excellent job so far and you’ve been a great champion of the First Amendment.Colom: I appreciate you saying that. Thank you and I look forward to being involved in any cases that are really protecting the First Amendment rights of anybody. It’s an important issue and I appreciate what you all do. Thank you for giving me the interview. LoMonte: Well certainly. Thank you again, Scott Colom, for all of your efforts in this case and for joining us on the podcast. For those of you who are more interested in this case, there is a link to the 5th Circuit’s opinion Bell v. Itawamba School District on the SPLC.org website, along with other resources of how to protect your First Amendment rights as a student or as a teacher. We hope you’ll follow the SPLC on Twitter @splc and call our hotline with any questions about your legal rights. The easiest way to get in touch with us is by email. That’s just email@example.com. Thanks so much for listening and we’ll talk to you next month.
Attorney Bradley Shear discusses how his work could help make Maryland the 13th state with a law protecting the social media privacy rights of students in colleges and high schools. Frank LoMonte: The nightmare phone call for students used to be to come to the principal’s office and empty his pockets or dump out her purse or maybe unzip his backpack. But in the 21st century that nightmare phone call can now include ‘log into your social media accounts so that your private messages can be read.’ This is the Student Press Law Center’s monthly podcast, and we’re here to talk about the subject of state laws protecting the social media privacy of students in colleges and high schools. I’m Frank LoMonte, director of the Student Press Law Center. More information about the privacy and First Amendment rights of students is available on the SPLC’s website splc.org. Thanks for joining us for another monthly edition of the SPLC podcast, where we talk about legal developments affecting people working in the student media. As we’re talking here in February of 2015, Maryland is discussing becoming the 13th state in the country enacting a state statute protecting the privacy of students when they use social media. We’re joined by attorney Bradley Shear. Brad is based in Bethesda, Md., a suburb of Washington, D.C. He is an authority on sports law, entertainment law and privacy law, all of those things converging in his interest in social media law. He has become the go-to expert on state laws involving employee and student social media privacy. He blogs about those and other topics at shearsocialmedia.com. He is a graduate of George Washington University and of the University of Baltimore’s School of Law, and we’re really pleased to have his expertise with us today on the podcast.So Brad, thanks for joining us, and with that I’m just really interested in, first, you explaining how you got involved in this subject of social media privacy, where your interest comes from and what you’ve been doing to kind of help put it on the legislative map.Bradley Shear: Hey Frank, thanks for having me. I appreciate being on your program this morning. Well, it’s something that, I’ve been dealing with privacy and digital issues, I guess, since the late ’90s when I started the NFL Player’s Association. And as far as this specific issue is concerned about either students or employees being asked or required to turn over their usernames and passwords, or provide access by logging into an account, that really started, at least from what I’ve seen, 2008, 2009. Obviously a couple years before there was a bunch of different reports about different students and, specifically on athletic teams, that were punished because of their digital behavior. But it really wasn’t until about 2009 when I started getting some inquiries from, whether it was clients, or whether it was students or employees, that said ‘hey, I have a problem. I don’t know if you know about it,’ and I would go ‘hey, what’s going on?’ and it would be like ‘well, my employer or school wants access to my personal social media accounts.’ At first I thought it was a little insane and I thought it was absolutely crazy that this was happening. I wasn’t in a position that I thought ‘wait a minute, this is something that I would imagine happening,’ but it was something where I thought, ‘you know what, what can we do to stop it?’ Obviously there is a handful of legal cases across the country that discuss these issues, but at the beginning there was a couple of cases that really focused on more along the lines of email access. There wasn’t like some strong case law that said ‘you can’t do this,’ or ‘you shouldn’t do this,’ it was just a couple of cases and there really wasn’t much to go on.When I have clients say ‘hey, can we access this?’ and my response is ‘well, it’s not a really good idea for a whole bunch of reasons. There is liability issues, there is privacy issues,’ and the big problem with the schools was that, in the beginning, it was really just focused on the athletic departments. You had a handful of companies that were going after athletic departments and saying ‘hey, we have a great idea. We’re going to come in and you’re going to require all of your student athletes to register their social media usernames with this application or this monitoring service, and in some cases you’ll need to require them to turn over their passwords. In other cases they’ll just need to tell us the account name and we’ll do all the rest,’ and that’s a very big problem in so many regards.You have First Amendment issues, you have Fourth Amendment issues potentially for these issues, you have potential other federal and state law implications, and also there is potential FERPA issues involved, so there are so many potential issues there. And when I heard about this and I had some clients say ‘you know, this is something that we want to do,’ and my response would be ‘no.’ And then when I had some people say ‘I’m required to provide access,’ and I would say ‘well, what was the actual ask?’ And the ask was, it wasn’t an ask. It was a demand. ‘You turn this stuff over or you’re going to be kicked off the team.’ So then I started talking to other lawyers, very few lawyers really understood the issue at that time and just so happened speak with members of the media who I knew and lawmakers and there was a lawmaker out in Frederick, Md., not very far, probably about an hour from where my office is, and he said, ‘you know what, Brad, this is a problem. Let’s stop it.’ That was State Sen. Ronald Young of Frederick, and he was the first lawmaker in the country to introduce legislation to protect both students and employees.LoMonte: Right, and we should mention that the employee privacy bills have been a somewhat easier lift for legislatures and many, many states now have these bills. They typically work about the same way, that there is a prohibition on an employer requiring either to hand over your password or to log into your social media and show it to them so they can read the non-public portions of your social media, either as a job applicant, a job seeker, or as a condition for keeping your employment. We should also mention that in none of these legislative proposals, neither pertaining to employees nor pertaining to students, is there any prohibition at looking at the public portions of social media, so even the broadest social media privacy bill does nothing to prevent a school or college from disciplining a student who uses social media in an ill-advised way publicly and puts on something like, let’s say an athlete partying with sports agents or drinking underage or otherwise engaging in some kind of punishable behavior of which the social media is evidence. Shear: Exactly, so the legislation in general is very well balanced. What they do is they basically protect the personal privacy and safety of students and employees, and also they are very positive for employers and schools because it provides a legal liability shield for these entities to say hey, you know what, they don’t have the legal obligation or duty to monitor what their students or their employees are doing online because at the end of the day, obviously you have the privacy issues, but from a legal and compliance perspective, employers and schools don’t have the legal obligation to follow their employees and students on their own time when they are off the work site or they are off campus, so there is no reason why there should be a new legal duty to follow what their employees or students are doing in additional space. It’s just a crazy thought that just boggles my mind when I hear that people actually think that employers and schools should be actively monitoring every little thing their students or employees or applicants are doing off company or off school time.LoMonte: You mentioned, it’s really important for two reasons, that schools and colleges have this kind of protection agains, essentially, their own overreaching. The first is that, kind of like what Colin Powell is said to have told George Bush when they were invading Iraq, that when you break it you buy it. When you take on the responsibility to monitor someone’s social media, then you’re assuming responsibility for doing that carefully, and if you should fall short in that monitoring, if you should let something slip by negligently, you’ve now opened yourself up to liability that you never had to assume in the first place.But the second reason, and you alluded to this in the realm of employers, there are all sorts of things on peoples’ social media pages that a person in authority is probably better off not knowing. As a person of authority, I’m really not that interested in knowing what my employees’ religious beliefs are or what their political beliefs are, and if I find those things out I can’t unsee them, and it actually opens up schools to all sorts of potential for discrimination or bias or retaliation if they start becoming privy to these things that would be disclosed on a social media profile. Shear: Those are some great points, Frank, and that’s something that, I think the mantra with access comes responsibility is something all schools should really, I think, bone up on really understand that once you have access, you can’t disown the access and once you’ve been made aware of those things, you can’t basically unring the bell. I think a good example is what happened with Penn State with regards to the Sandusky matter. There were allegedly emails that said ‘hey look, there is some issues with Jerry Sandusky and we need to resolve it,’ and there were emails from over 10 years before. That’s what I think helped prosecutors and helped those who were investigating the matter say ‘you know what, the school knew or should have known, and we have the digital evidence.’ So that’s why I think that those schools that are monitoring everything that their students are doing fully understand the issue, and I think, that’s why I believe it’s my civic duty and the civic duty others that really understand this issue to try to educate those that don’t, because the last thing I’d want to see is there being all these lawsuits out there saying ‘you know what, you should have known. You should have actively monitored everything that your students and employees were doing.Well at the end of the day there is only so many resources that our schools and employers have, and I don’t think this is the best deployment of those resources, and when you combine that with the First and the Fourth Amendment issues and the different privacy issues combined, I think it leads to a sound public policy not to have people snooping into these very personal digital homes.LoMonte: Right, and you mentioned it was sort of athletes who put this on the public map. Many colleges, as well as professionals, now have standing policies in place where, either at the coach level, the team level or even at the league level, people are limited in what they’re allowed to do on social media. Or they have to friend a coach or friend a person in the athletic department hierarchy in order to give that person access to the non-public portions of social media, or sometimes even have to surrender the log-in information as a condition of remaining on the team. These really are constitutionally questionable policies that schools and colleges tend to justify them by claiming that they condition to receiving a privilege and they’ll always emphasize that term privilege on basically any condition at all because they don’t have to give you the privilege and you have no entitlement and you have no entitlement to privilege, but the Supreme Court has really rejected that distinction. The Supreme Court has really rejected the idea that a government agency can make a privilege, contingent on some broad waiver of your constitutional rights, and if schools are being advised that they are getting legal advice that is 40 or 50 years old. I’m really curious about your experience because you’ve worked closer on this than anybody in the country. It is normally very, very hard to get adult policymakers in state legislatures to focus on issues of student rights, and we can speak from experience with that at the SPLC. And yet, this is something that, in a period of literally no more than three years, a dozen states have enacted these laws with really no well-funded student rights lobby out there, really no massive grassroots organization of students pushing for this. How has this caught fire in the way that it has? How do you think this issue has registered in the way that it has on the radar of so many legislatures across the country?Shear: I think the thing was that, in the beginning, it was very tough to really get the message out there. I worked with states around the country, and also with Congress on the Social Networking Online Protection Act, which has been introduced several times. The issue is that, when you have policies that schools have put in place and then when you have the media that is very interested in this and the media finds out about some of these very egregious practices, and then they write articles about them, and then when there are organizations such as yours, the Student Press Law Center, it amplifies the message saying ‘hey look, this is not just a student athlete issue, this is also a journalism issue.’ Like, for example, I believe it was, if I’m not mistaken, was it, out in California, Lodi School District? I think that was a really good example of when a group of people, it wasn’t just the student athletes, and that was, I believe, a high school where they wanted to have this really restrictive policy that would focus not just on the student athletes but the journalism students and on anyone dealing with extracurricular activities. I forget the old saying, but it goes something like first they went for one group and nobody said anything, and then they went for another group and then all of a sudden you’re the last person standing. Here, I think the issue is that you want to stand up for privacy rights and free speech rights as soon as you see there being a problem. If you don’t, those rights will be taken away, and in this day and age, the so-called promise of social media was to amplify people’s messages and make everyone ‘oh, it’s all about sharing and caring’ and all the other cool little things that some people out in Silicon Valley like to say. Well they didn’t think about the problems that go along with that is that you’re going to have, once you start sharing and collaborating and putting your voice out there, there’s winds against that and will say ‘you know what, we need to quash those voices and what you say we’re going to utilize against you.’That’s something that certain people have tried to avoid. That very troubling conversation is that once you open your mouth, you might then have some other type of legal issues involved with that, so that is why I felt like, you know what, this is such a huge First Amendment issue and Fourth Amendment issue, that I literally said ‘I need to make some waves and go out there and try to educate the public on this.’It was very hard because, in general, the people this is happening to do no want to come forward. I’ll give you a perfect example. I had someone come forward to me and he told me what was going on and then they reached out to the media, and this was a Friday. Their case went all around the world and then come Monday, they had some problems with their employer because they spoke out. That’s the problem with this. Those who speak out, when you become a whistleblower, then your face is tied to this one issue and you really can’t get away from it, so that’s why it’s been very tough to get more people to come forward, because those who have, I’ve seen first hand what could potentially happen. So it’s something where, as a lawyer, I have the ability because I represent people who have had their privacy violated. I advise corporate clients on these issues and my goal is to try to educate them and say ‘hey look, this is not a good, sound policy both from an HR perspective to retain your employees and to attract student athletes to your schools, but also from a legal and compliance perspective. Once clients understand that, then they say ‘aha,’ and the lightbulb goes off, ‘maybe we should revisit this policy,’ or ‘maybe we should change this policy to not only better protect the personal privacy and safety of either our students or our employees, but also to protect against major potential legal liability on these matters.’ LoMonte: Well I’m so glad you mentioned that Lodi School District in California. That was one of the earliest examples brought to the attention of the SPLC, where students actually were, with some legal help, able to organize and overcome a really drastic and intrusive social media contract. That’s sort of a cautionary tale for everybody out there. When you’re given a contract, when you’re given an agreement and are told you must sign this as a condition of receiving some type of a benefit from your school or your public college or your university, you should always view that agreement with some degree of skepticism, and if you’re uncomfortable with what you’re being asked to sign away, then consult a lawyer. Call the Student Press Law Center or the ACLU or some other licensed attorney in your jurisdiction and see whether you’re being asked to give away too much. It sometimes turns out to be the case.At the University of Oklahoma this past year, another example, the members of the marching band were being told to sign a social media contract as a condition for participating in the band, and it was essentially an non disparagement agreement, saying that you could not complain about the band or make any derogatory or negative comments about the band or anyone associated with it on social media as a condition for being allowed to continue participating. David Boren, the president of the university, when he got wind of this contract, actually ordered the band director to rescind it so it is no longer in effect, but that just gives you a taste of the kinds of intrusive and overreaching policies that are out there among many schools and colleges, and it’s something that students and their families all have to be watchful and vigilant for.Let me just ask you, since the people listening to this podcast often are themselves students or the people that work with students, let’s say I am in a state that doesn’t have one of these social media privacy laws. I’m in Florida, I’m in Texas, I’m in Georgia, and I’m interested in getting one started in my state legislature. With your experience in going around the country to places like Maryland and New Jersey and working with legislatures there, what can you share about that experience, what have you found to the be tactics and the arguments that are successful? Shear: Well I think you first have to show that these egregious policies are occurring in your state, in your locality. You have to really, at least in my experience, you have to really demonstrate that something is happening to someone in your area, whether it’s a school policy, or whether it was a student, or whether it was an employee who was harmed in some manner or was told they need to provide access. You really need to show that this is happening in your area.Once you're able to do that, then maybe reach out to the media. Usually if you’re able to reach out to the media and they’re able to potentially either write a story or cover the issue, then you may be able to take that to a lawmaker. It’s not so simple to find a lawmaker. You have to find someone that is interested in privacy rights and understands technology and realizes that these types of practices must stop, because if they don’t stop then people are going to be afraid to utilize these really wonderful platforms. In my experience, I don’t think that it’s a really good idea to really just put your foot off the gas pedal, because once you find out that this is happening, you have to say ‘you know what, we need to figure out a way to stop it.’I’ll give you a perfect example in Maryland. Maryland was the first state to introduce legislation to protect both employees and students. The employer bill passed in 2012. The student bill still has not passed and it’s been several years that it’s been reintroduced, and my hope is that it gets passed this year and I’d like to thank Frank who came out to Annapolis to testify on behalf of it, but it’s something that if at first you don’t succeed, you have to keep trying and try again to make it happen. Legislation is not going to pass over night. You need to build coalitions. You need to reach out to the ACLU, reach out to the Student Press Law Center, reach out to other potential organizations or public interest groups that may be interested in these issues, and really reach out to them and say ‘look, this is a problem and this is something that needs to be resolved.’ The schools that are educated and understand this issue realize that, you know what, this is a good idea to put in place because it really relieves the school from a tremendous amount of potential legal liability. So those schools that truly understand this issue and those government affairs people that work for the schools that might lobby for or against these types of bills, you need to reach out to those people. You need to, literally, talk to all the different stakeholders and try to get a consensus about ‘OK, well this is a problem. This is going on. Let’s figure out a way to try to stop it and create some type of win-win legislation that both protects the privacy of students, but also provides a legal liability shield for the schools.Everyone needs to have something. Everyone needs to get something in return when you’re trying to get legislation enacted. You can’t just make something so one-sided that one side feels like they got everything that they wanted and the other side feels that ‘wait a minute, there’s nothing in it for me so therefore I’m going to lobby against the bill.’ So it really comes down to trying to get all the stakeholders involved to come up with something that is a win-win for everybody. Obviously you can’t always create a full win-win situation, but you want to try to get everyone involved and reach out to the stakeholders early in the process, because otherwise, the potential is, legislation could lag, and lag on for years and years. Like in Maryland, the reason why the legislation lagged on is because you had one lawmaker in the Maryland House of Delegates who refused to allow the bill out for a vote, and for whatever reason that was, I can’t speculate on the rationale publicly on what that reason was, but it just was not allowed out for a vote.It passed unanimously, I believe it was twice, or close to unanimously in the Maryland Senate. It just got no traction in the House in that it wasn’t even allowed out to be voted, so you might have challenges like that.My hope is that this is the year for it to pass and we’ll see. I think now student privacy has really exploded and the hope is that this is the year for it to pass in Maryland and hopefully it will be the year for it to pass in a lot of other states. LoMonte: Right, well we’ll have to leave it there and wrap it up. I want to thank Brad Shear, who has been sort of a one-man crusade, putting the issue of students’ social media rights on the agenda for legislatures nationwide. I want to encourage everybody to take a look at Brad Shear’s blog shearsocialmedia.com and to contact him through his website at shearlaw.com if you’ve got a question about your legal rights as a student or an employer involving privacy and social media.So Brad Shear, thanks so much for joining us on the podcast, and if you’re a student with any question at all about your First Amendment or your privacy rights, we encourage you to check out the resources on splc.org, to message us at firstname.lastname@example.org or to call our hotline, (202) 785-5450, with any question about your legal rights.Thanks for listening, and we’ll talk to you next month.
Jameson Rice, an attorney with Holland & Rice in Washington, D.C., discusses the Federal Aviation Administration's proposed rules for commercial drone use and how these regulations could affect the future of newsgathering.Frank LoMonte: Hi everyone, and welcome to another edition of the Student Press Law Center’s podcast, a monthly rundown of legal developments affecting people working in and around the student media. The Student Press Law Center is an advocate for the First Amendment rights of student journalists. We’ve gathered resources online for reference at www.splc.org. We hope you’ll take advantage of those free resources, follow the the SPLC on twitter @splc and send in any legal questions you might have to our free hotline, email@example.com.Well, if you go out to a park and you fly around a toy model airplane for enjoyment, you are a hobbyist. But if you install a camera in that same plane, you have suddenly become a drone operator and in the view of many government agencies subjected yourself to regulation. Journalists of all kinds, from the professional newsroom all the way down to high school, are watching with great interest how the federal government will decide to regulate — or not — the use of unmanned aircraft for photojournalism and videography. With us today to talk about the evolving landscape of regulation of drone photography is Jameson Rice, who is an attorney here in Washington, D.C., with the law firm of Holland & Knight. Mr. Rice is a graduate of Boston University law school, has his undergraduate degree from the University of Florida. By trade he is actually an authority in transportation law, which makes him the perfect person to address what is a transportation issue that is impacting on newsgathering.There are at least four federal agencies — the National Transportation Safety Board, the DOT, the FAA and a number of others — that are getting into the act when it comes to restricting or regulating the way in which people might use aircraft to take photographs or shoot video. Some journalists have used these to generate some truly eye-popping images of sporting events, of weather events, and yet these exist in somewhat of a legal gray area today. We’re hoping Mr. Rice can help us clear up some of that gray area and maybe forecast a little bit about the direction that the law is evolving. So, thank you so much for joining us. I should say, by the way, Holland & Knight is one of the most reliable go-to volunteer law firms the Student Press Law Center has depended on over the years. It’s got over a thousand lawyers nationwide and is known especially for its expertise in media and First Amendment law, so we appreciate all the work we’ve got from them over the years, and thanks Mr. Rice for being here.Jameson Rice: Absolutely, my pleasure. Happy to be here.LoMonte: So, back last May of 2014, Holland & Knight actually announced that they were starting a practice group with a specialization in drone law, which is remarkable that a law firm decided that that level of commitment and resources might be necessary for this, what seems like kind of a niche area of the law, so tell us about that practice group and what kinds of issues you work on. Rice: Ya, it really is an exciting time, it continues to be an exciting time for drone practice or UAS practice, I’ll use those words interchangeably, so a Unmanned Aircraft System, a UAS, or a drone. It’s an interesting cross-disciplinary group. We have a lot of media credentials and certainly that’s where we come at it from, but also we have expertise in transportation, NTSB practice, you mentioned the National Transportation Safety Board, aviation general litigation, and all these things kind of came together because there was an interest that really grew out of our media practice.So that’s kind of how Holland & Knight came to this kind of drone business as an outgrowth of our media practice, but certainly it touches on a lot of issues. I mean, Amazon is one with delivering packages that’s gotten a lot of press attention, but basically anywhere that you would like to put a small camera that would be either too expensive or dangerous for someone to fly a helicopter, or climb up high, or get down somewhere it would be difficult to put a camera, you’ve got a lot of potential use for drones. So that’s kind of what we were looking at is developing landscape in something that was really in an infancy and we were one of the first to jump in.LoMonte: In February of this year, the Federal Aviation Administration announced new proposed rules about the use of drones. Before we jump in and talk about these new rules, maybe you can give the lay of the land currently as we stand here today in March of 2015. In the view of the FAA, who is, and who is not, allowed to put a camera on an unmanned aircraft and operate it for journalistic purposes?Rice: That’s a great question. You mentioned hobby use a bit earlier, and that is one of the very few exceptions. I would start with the general proposition that almost all drone use is restricted. Almost none is allowed. Specifically, commercial use is not allowed, and that includes journalism in just about every context. The hobby use is one restriction, or recreational use. You can use it, as long as you are following the guidelines, you can use it just in your back yard for fun, as long as that’s far enough away from an airport and the list goes on and on. There is also a public use exemption that is very narrow. I mention public use because on university campuses, we’ve been involved in certain clients that are public universities, and unfortunately that has been interpreted very narrowly, and so police and fire use are the kind of uses that usually fall within that exemption. So for the most part, the general landscape is, you can’t use a drone. However, that has been slowly changing, so I can just walk though that timeline very quickly. Back in 2012, Congress passed the FAA Modernization and Reform Act, and relevant for us was Section 333, and that name has been carried forward because it’s the name of an exemption we’ll talk about in just a minute, but Section 333 of the FAA Modernization and Reform Act mandated that the FAA determined what types of UAS could be flown safely. So two years later, October of last year, October 2014, the FAA started granted what they’ve called Section 333 exemptions, because of the name of the law, started granting exemptions for who can use a UAS, specifically for commercial purposes. And basically we say commercial use as a shortcut, but it really means any use other than hobby use or the other very narrow exemptions that were already allowed.As part of these exemptions they started granting, that was great because this was really the first time that you are able to operate a drone beyond the very, very narrow restrictions. Unfortunately they put a lot of restrictions on it. Just to be clear, if you want to fly one beyond commercial use, you have to apply to the FAA for an exemption. Sixty-some odd exemptions have been issued so far and it’s been increasing a lot recently, but it’s been relatively slow going.So there’s really not a lot of permitted use just yet, but just briefly the restrictions on those are relatively onerous, the drone has to stay within the visual line of sight of the operator, so yo u can’t take a first-person camera and go fly it far away, you have to be able to see it. You can only do it during daylight hours, the operator has to have a private pilot’s license, and you also have to have a visual observer with that pilot. You have to stay at least 500 feet away from people, from vessles, from vehicles, from structures unless you get permission, you have to stay on private property, you have to have permission of the landowner, you can’t fly over densely populated areas. With that laundry list of restrictions, especially for media purposes and for a lot of purposes, it is incredibly restrictive, but hey it’s something. This is the first opportunity to be able to fly drones. Just fast-forwarding that timeline a little bit further, another big event came in February of this year when the FAA announced the notice of proposed rule-making, so basically that means that the FAA would like to have a rule regulating drone activity and they are proposing what their rule would look like and opening it up to the public for comment. And so there will be a public comment period, they will adjust the rule, potentially, based on all the comments that they receive, and eventually issue a final rule, which will become what the regulation is, what the law is. That whole process is likely to take some time and a rule is not expected until 2017, but we are right now in the middle of the comment period, so up until the middle of April, the public or any interested party can supply their comments to the FAA to try to help shape what the future regulation will be like. The rules are actually really exciting that they proposed, in that they were quite a bit less restrictive than people had feared. There was a lot of concern that the proposed rule would be very restrictive, much like the Section 333 exemptions. And it turns out that, in some important ways, they really did ease the restrictions. In the proposed rule, the operator still has to maintain line of sight with the drone, so it can’t go too far away and it can only be operated during daylight hours. But they did relax a lot of restrictions in ways that are important. They proposed not to require a pilot’s license. There still would need to be a certification, an FAA test, but it it much, much less restrictive than the same sort of pilot’s license you would need if you were to go out and fly a plane.They’re not going to require overhead use. Again this is a proposed rule, so it’s subject to change, but this is what the FAA is thinking now and asking for comment on. There wouldn’t allow overhead use, but there is no restriction for within 500 feet of a person like they have in the Section 333 exemptions and there’s no restrictions on operating near vessels or vehicles or structures or those sort of things.They also proposed a Micro-UAS category. That would be even less restrictive, and these would be drones that are less than two kilograms, less than 4.4 pounds. For these micro-drones, you wouldn’t be required to have any testing from the FAA, you would just need to sign a statement that says that you’ve made yourself aware of the regulations.There’s no overhead restriction of flight, so there would be a relatively lax for these so-called micro-drones, these less than 4.4-pound drones. So that’s kind of an overview in the ways in which they’ve proposed to relax the restrictions.I do want to mention, too though, on that exact same day that they released the notice of proposed rulemaking, the White House, President Obama issued an executive memo and this is about privacy concerns.So far we’ve been talking a lot about the safety concerns that the FAA is concerned about, but a lot of attention has been drawn to privacy, and I think for good reason, and so he called for the National Telecommunications and Information Administration, that’s the NTIA, to engage stakeholders and develop best practices for privacy and accountability.There is a lot of focus on how the government would use drones, but also private use and privacy. Right now you’ve got kind of a patchwork of state law, and a lot of states have been passing new legislation to deal with drones, and it is possible you could have a federal law in the future. Right now there hasn’t been a lot of information about that, so we suspect, at least for the time being, that there would be state laws. But then the state laws vary from state to state how it is that they plan on addressing privacy, and they can’t go so far as restrict the FAA’s regulation of aircraft, so you get into interesting issues over who has jurisdiction to even make these sort of determinations, so there is a lot yet to be determined. We’re really just at the start now, and it’s so exciting because we’re issuing the comments, we’re proposing the comments that will shape what the rule will be for years to come.So that’s kind of the lay of the land from the basic being you’re not supposed to use drones only under very limited exceptions such as hobby use and if you want to use one now and likely for the next few years, you have to apply for a Section 333 exemption and that’s a pretty high burden on operations, but at least it’s something that the FAA has permitted. LoMonte: Right, and we should mention that there have been individuals fined by the National Transportation Safety Board for violating the FAA’s safety restrictions on the use of these unmanned aircrafts, and so it is something that can actually carry federal penalties and be enforced by federal fines, so there is no fooling around here. Another thing I think is important to reinforce for those who are watching this area from their newsrooms, that even though all of the public’s attention has been focused on the FAA, there really is quite a lot of conversation going on at the state legislative level, and so far that has been focused on privacy concerns about flying over peoples’ homes and what one can and cannot do with the video that is gathered. So if your news organization is concerned about being able to effectively use drones to gather video, it is important to watch on what is going on at the state capitol as well.Let me just ask you, as someone who deals in this area of the law and is knowledgable about these agencies, first of all, looking at the February release, are there areas that you might identify personally as being ones needing some improvement, needing some tightening up, and also what would you predict or anticipate the course of that rule making will be from here?Rice: That’s a very interesting question and people have started to weigh in on it. I think the FAA in general did a very commendable job. Safety is their primary concern, and it really is a paramount concern for everybody interested in it, so certainly the FAA did a lot to protect the safety, possibly too much but their safety concerns are certainly justified and valid. The question is, how can you operate drones safely, but at the same time not restrict their use in ways that are going to prohibit really useful and innovative ways to use these drones?Unlike Amazon, for example, if they want to deliver private packages, the proposed rule says you’re not allowed to do that, you can’t be an air-carrier, you can’t do transportation for compensation. So for somebody like Amazon these rules are a non-starter. In the journalism context it’s not nearly as bad. I would say some of the major sticking points, for a lot of industries, is the visual line of sight restriction. There’s been a lot of advancements in technology, and this is continuing to develop and I certainly don’t hold myself out as an expert on all of these technologies, but between first-person cameras on the actual drone, night vision technology, thermal imaging, geo-fencing that you can program the certain area in which the drone must stay in that area and won’t operate beyond that area. It will come back to a home base if it operates beyond where you can control it. There is a lot of safety technologies that could offer an equivalent level of safety as being able to make eye contact with the drone, and right now the proposed rule wouldn’t allow those, you would have to stay within eyesight.It is questionable whether or not it is actually safer to keep it eyesight than it is to have other operation that would include some of these other technologies.So it’s nice that there would be an expansion in that way, and just a basic one too but related to that same point is daylight-only operation. The idea is you need to operate it in good weather, in daylight where you can see it, and it’s understandable because they operate from the framework in this see-and-avoid as a term they use because it is something that they use for manned aircraft, and it makes a lot of sense in the manned aircraft context.But there are potentially a lot of safe uses beyond that. For news coverage, for example, if it’s a civil twilight and now you can’t operate a drone, that’s unfortunate because there are a lot of potential opportunities that may arise at night and it would be a shame if you had a drone that was capable of operating safely in that environment and you didn’t have it.So I think those are some of the areas that would be nice to see an expansion, ideally now and if not now then in the very near future. But overall I think some of the other easing of restrictions really were helpful, and for the most part the FAA is to be commended.LoMonte: So I should mention we will put
a link to the regulations.gov section of the federal website where one can submit comments, and the Student Press Law Center is planning to formulate some comments to reinforce some of the points that Mr. Rice has been making about the importance of allowing for meaningful use of this technology for newsgathering. Just in the few minutes that we have left, I know that when the White House directed the FAA to start looking into liberalizing its restrictions, one of the responses was to create some regional pilots and tests of the technology to see how it could be used safely, and there are partnerships going on in different places around the country to try to expand the ways in which journalists can use these aircraft. ="#!documentdetail;d=faa-2015-0150-0017">Can you talk a little about those pilots?Rice: I’d be happy to. Thank you very much for bringing that up. Actually, we represent a large coalition, a media coalition of some of the largest newspapers, magazine publishers, broadcast and TV companies, media companies, wire services, website operations, non-profit journalists’ associations, it’s a large conglomerate of media companies that share a similar goal and we represent and help them with these sorts of issues, including comments in Section 333 exemptions, but also specifically with this aviation partnership.So the FAA set up these different test sites around the country to help them try to figure out how to shape future regulations so that they can figure out what sort of operations can be conducted safely, and so this media coalition that I mentioned has partnered with Virginia Tech, and it’s called the Mid-Atlantic Aviation Partnership, to test out all kinds of scenarios that might be useful for journalists’ purposes.Just some of the proposed ones: a hostage situation, a natural disaster, a riot, a building fire, accidents or some sort of typical pieces, a golf tournament, that sort of thing, not always necessarily breaking news. But what are the sort of uses that a journalist might find themselves wanting to operate a drone for? So they are going to set up these scenarios, test them, figure out how it is they can be covered safely, and then submit those findings to the FAA.And so our hope is that, this will be conducted this year, that this will help demonstrate to the FAA we’ll learn a lot out of it, how can we operate these safely? How can media companies operate drones safely? But also demonstrate to the FAA that they can be used safely and hopefully ease restrictions that will allow journalists to be able to use drones, maybe towards a broader group but possibly even just for them for specific journalism-based carve-out based on these safe sort of scenarios that we’ve already demonstrated. It’s really exciting to be part of not only current regulations but also helping shape future roles in a lot of ways and hopefully journalists everywhere can take advantage of the work that we’re doing with this large group. LoMonte: Terrific, well I want to thank Jameson Rice of Holland & Knight for joining us in sharing an update on the state of the law of federal drone regulation and invite everyone to check out the HKlaw.com website for updates and information about the work of the Holland & Knight drone practice.We also hope that you’ll check out the Student Press Law Center’s website at splc.org, that you’ll follow us on social media — Our Twitter handle is @splc — and that you’ll keep us in mind with any questions about your legal rights. The easiest way to reach us is by email at firstname.lastname@example.org, or by phone at (202) 785-5450.Please do note that number has changed since our recent move to Washington, D.C. (202) 785-5450, so thanks again to Mr. Rice for a really informative presentation, and thanks for your advocacy on behalf of the news media industry on this important issue. We’ll look forward to further updates in the future, and thanks to everyone out there for listening. We’ll talk to you next month.
Sarah Carr of the Hechinger Report discusses her reporting on school disciplinary issues. Frank LoMonte: Last year, amid a growing mountain of findings that school discipline falls disproportionately on the shoulders of minority students and those in special education, the U.S. attorney general and education secretary did something really, really extraordinary. They called on the nation’s schools to abandon their reliance on zero-tolerance discipline — that system in which students are punished without regard to the circumstances of the offense. Their call, while it made an impact in certain school systems, has not been unanimously well-accepted in the education community. There are still many who are believers in the power of school discipline to correct behavior and the need for schools to have flexibility to use suspensions and expulsions freely. Covering school discipline as a journalist is our subject today on the Student Press Law Center podcast. I’m Frank LoMonte, the executive director of the Student Press Law Center. The SPLC is an advocate for open government and for students’ First Amendment rights, and we encourage you to check out all of our resources, including reporting guides about using public records in your journalism, at splc.org. Recently I had the chance to go to the Education Writer’s Association’s annual convention in Chicago, and free plug here, the Education Writer’s Association is a wonderful organization that even student journalists can join free of charge just by visiting their website at ewa.org and submitting an email, it’s a great chance to interact with people in the profession knowledgable about this field, so get there and do it. The EWA every year recognizes the best in education journalism, and some of the most impressive impressive work I had a chance to see was done by our guest today, Sarah Carr of the Hechinger Report. The Hechinger Report is one of those specialty nonprofit journalism organizations that is thriving out there in the modern journalistic economy, it feeds out material not just to one outlet, but makes it available to many, and the work for which Sarah was recognized with the EWA’s annual award in feature writing, appeared in the Atlantic and The Nation, which she has written for a number of years. Sarah is a graduate of Williams College, has a graduate degree from the Columbia Journalism School, where she works on something called the Teacher Project, that I’m going to ask her to talk about in a minute. Her work focused on disciplinary practices in two deep south states, one of which, Louisiana, she has also written a book about, and we’ll ask her to mention and plug that in a minute as well, so Sarah, thanks for joining us on the podcast, and I guess by way of introduction, maybe you can explain what your work on the Teacher Project at the Columbia Graduate School of Journalism entails.Sarah Carr: Sure, well it’s a real pleasure to be on this with you Frank, and thanks for inviting me on. The Teacher Project is about a nine-month-old initiative at Columbia Graduate School of Journalism, and it’s, as the name implies, dedicated to covering teachers and teaching, and it’s, like Hechinger, it’s a nonprofit, foundation-funded, nonpartisan journalism organization, and we partner mostly with Slate Magazine, so we’ve had 20 or so stories that you can find at Slate, and we’ve also done work with NPR and with local public radio stations and local news outlets in Louisiana and Montana, which are two of the regions that we’ve been prioritizing.The reporting fellows are all really talented journalists who finished their degrees in the last couple of years at Columbia and stay on for an extra year or two to really do terrific reporting on teachers and teaching. I work with them, doing some of my own journalism, and also edit and mentor them. LoMonte: Great, well as I mentioned, after Hurricane Katrina and the devastation that was visited on New Orleans including effectively wiping the existing public school system off the map, you spent time down there, produced a book called Hope Against Hope, about the rebuilding of the New Orleans school system in its aftermath, and I imagine that’s what led you to focus on that area of your work for the The Atlantic, which was about what’s called ‘no excuses discipline’ in the charter schools, which have largely replaced the public schools in post-Katrina New Orleans. So I guess dive in and tell us about that, about what is no-excuses discipline, and what were your findings as a journalist as to how that system is or is not working?Carr: Well after Hurricane Katrina, as you mentioned they really turned most of the school system over to independent charter operators, and a lot of those new charter schools are led by educators who are on the young side and who are new to New Orleans. The prevailing model there is what I would describe as sort of the KIPP-inspired model, and KIPP is the largest network of charter schools in the country, and it is very focused on college, sending kids to and through college, very heavily structured, and very oriented on sort of cracking down on minor offenses, whether that be violations to school uniform codes or student slouching or falling asleep in class. I compared it in the piece almost to the broken windows approach to school policing, and the idea is that if there isn’t this crackdown on minor offenses, there is the likelihood that they could escalate into major ones that would much more disruptive to the school environment. As you can imagine it’s a very controversial approach, and I feel like there’s a lot of class and racial tensions that underly it, and a lot of diverse and legitimate viewpoints.I’ve met families, in my years reporting in New Orleans, who really love this approach to school discipline, and others who think it’s like sending their children to a prison, and so I set out to really try to capture the diversity of these viewpoints and to try to sort of be respectful in the piece to people who are coming at these issues from a variety of perspectives.LoMonte: The piece is titled “How strict is too strict?” It appeared in the December 2014 issue The Atlantic, which you can find online at TheAtlantic.com, definitely recommend that you check that out and share it. When we deal with journalists around the country trying to write about school discipline, they often run up against privacy objections of various kinds, they find it an especially difficult subject to cover, and one might add doubly so at charter schools, which often resist the type of disclosure and transparency that applies at ordinary public schools. I wonder what obstacles, if any, you might have encountered there, and what you did to surmount them. Carr: Well, I find one of the best approaches to writing about school discipline is to start off with families, and to really put that at the heart of your reporting, because a lot of the obstacles with privacy are eliminated or made a lot easier if you have the cooperation and support of families from the get-go, in that they are ultimately the ones who can talk about and release information about their children most easily.Instead of starting with the school and having the school sort of be the broker between myself and a family, I just usually approach the families directly, and I did actually receive some help in identifying some families from the Southern Poverty Law Center, and also just having been a reporter in New Orleans for several years beforehand, I was able to reach out to families on my own as well. But one of the obstacles with the charter schools piece that ran in The Atlantic was, I had difficulty getting access to the school that I focused on, which was a school in what’s known as the Collegiate Academy Charter Network there, and that actually is relatively unusual for me. I’ve found that in New Orleans and elsewhere, schools are usually pretty open and surprisingly transparent at times, and really have an interest in having good journalism that explores their strengths and challenges, but I think that particular school at that time felt kind of so under siege because of some of the pushback that they were experiencing around discipline in particular, that I couldn’t visit that school specifically for that story.In this case, I had spent a lot of time at one of those network schools in reporting my book, so I had a lot of contacts and first-hand experience with their approach, which helped. But I think the two most important things are to try and make direct contact with families and to be as open and honest about the kind of story that you want to tell to them and to try to get as much assess to schools as you can.LoMonte: One of the things that we’ve often encountered is, even when journalists ask for statistics, numbers, patterns and trends, they’re told all of that stuff is confidential under the Family Educational Rights and Privacy Act, that’s almost never the case, that’s almost always a misuse of FERPA privacy, and yet it persists and schools know very well that journalists are not motivated to sue them for that type of information, so often they are forced to do without. You were able to get some information about statistics and trends in the schools that you wrote about, about their suspension rates and about whether they were going up and they were going down. Did you find the schools to be relatively cooperative and forthcoming in providing that, or was that something that had to be extracted from them?Carr: I found that they were relatively cooperative in providing that. One of the challenges is that so much of the data is self-reported, and I mean, I think most school operators who you deal with really do want to report data honestly and accurately, so I think it’s people who are forthright are more the norm rather than the exception, but you do have to be skeptical about any data that is self-reported, and that when I think balancing out the quantitative information with qualitative experience in a school and with interviews with teachers and families really helps.I think in that piece, and certainly at other times in reporting on school discipline, there might be a disagreement between sort of what a school’s data suggests and what a family or a student’s impression is. Sometimes in those cases all you can really do is kind of a he said-she said type approach and say that the schools data, for instance, shows a relatively low suspension rate, but families and students say that’s out of touch with their reality. But I think it’s important in these kinds of stories not to rely on a single source of information and to try and balance the data that you’re given, if you’re given it, with first-hand observations and interviews with people who have real meaningful experience in the schools.LoMonte: You also relied on data from the state department of education, obtained through public records requests for another piece in this award-winning package of work. That’s the piece that appeared in The Nation magazine called “Why are black students facing corporal punishment in public schools?” That piece, which was published in April of 2014, is available on TheNation.com, if you just look up Sarah Carr’s work there, and Sarah, I guess let’s pivot a minute and talk about that project, which focused on Mississippi in particular.There are still 19 states in this country where corporal punishment is legal. They tend to cluster in the south, Mississippi being one of them. I guess, tell us Sarah, how that project came to be, where your interest came from, and what you found.Carr: Sure, and first as I would be remiss on the data side with both corporal punishment and suspensions if I didn’t point out that there is really good Office of Civil Rights federal data on school discipline, and good in the sense that they’ve really prioritized this as an issue and have gathered a lot of information on school discipline trends, and that data is sort of the source of a lot of the concerns and publicity that we’ve seen in recent years around racial disparities in school discipline rates, and I did get some good data for the corporal punishment piece from that site.It’s not so great data in the sense that it’s very unclean, partly as a result of the self-reporting aspect and just sort of the unwieldiness in the size and scope and I think limited staffing in terms of data collection and substantiation. It takes a lot of cleaning, and there were some errors that we found in it that we had to address when we were putting together these stories. LoMonte: Let me just stop you right there, because that’s a wonderful caution for people. When you find a piece of data that seems too good to be true, or that seems unbelievable to you, it is possible that you do have an unbelievable story, but it is also possible that you have buggy data, and so we always caution people not to run to the presses instantly with the too-good-to-be-true story, but rather to ask questions and to find out whether there is a logical explanation, which could be data entry error, it could be some very odd one-time occurrence that happened at the school, it could be falsification, it could be a combination of several things. So that’s a very good caution for people who are doing data and statistical reporting. Go ahead and talk about the substance of the findings when you looked at the use of corporal punishment in Mississippi.Carr: Sure, well that story idea really came about less from the data than some of my own sort of experience watching the issue play out in New Orleans. New Orleans was home to the last Catholic school in the county that openly used a paddle, and it was an all-male, almost all-black middle and high school in New Orleans known as St. Augustine. They were under pressure a few years ago from the archdiocese in New Orleans to end their use of corporal punishment, and even though the debate was sort of ostensibly about the use of the paddle, there was also a lot of tensions that emerged just about race and sort of a community’s right to determine how it disciplines its kids. There were a lot of black leaders who felt this was a white-led archdiocese saying ‘we’re going to tell you how to run your school and how to discipline your kids,’ and so I thought sort of there was a much more kind of nuanced, complicated story to be told about paddling, and that’s definitely what I found in Holmes County, Mississippi, which is the place that I focused on for that piece. There were similar tensions about just sort of the history of the paddle and this fear of sort of outsiders, and a lot of times they’re cast as elite outsiders, coming in and saying ‘this is how you need to discipline or control your kids.’ And then that one, the data was even kind of more difficult just because it is, I mean, it’s such a complicated thing, and I think in that case, the state’s data didn’t match the district’s data, it didn’t match the federal data, and so it was really one where it was important to do a lot of kind of quantitative analysis and qualitative reporting to make sure that I wasn’t sort of presenting trends in a way that was too simplistic or too reliant on one source of information. That story, in some ways, was more challenging than the school discipline piece in New Orleans just because I was an outsider to that community, and it’s a lot easier, I think, when you have lived in a place for at least a few years and you have a sense of who some of the players are and some of the context surrounding the debate, but in that case I was sort of doing a much more parachute-in approach and trying to win the trust of people to talk with me about a very sensitive and divisive issue.LoMonte: Well one of the things that’s common to both pieces that I think really is a good tip to student journalists, who I don’t think use this resource enough, is the reliance on parents as a source. Parents provided quite a lot of the information in both pieces and were a resource and a source of some of the best and most colorful comments and quotes in these pieces. I’m looking at the paddling piece on TheNation.com and there is quite a strong difference of opinion among parents, and interestingly even among students.There are some students that support relatively rigorous disciplinary practices, so that’s another tip for reporters working on these stories is that there is no such thing as a student perspective or an administrator perspective or a parent perspective. There are multiple perspectives, and it is important to capture those. Carr: Yea, exactly, and I think both of those stories kind of emerged out of this really polarized debate between school administrators who felt sort of one way, and kind of an activist community that felt another way, and that really, at the end of the day when I went out and talked to parents and students, they had much more nuanced views than either the sort of the quote unquote activists or the school administrators did, and so I think, not always, but sometimes they can really play an important role in kind of complicating some of the more simplified rhetoric around these issues.LoMonte: Well we’re going to wrap up in just a moment, but Sarah Carr, I wanted to give you a chance to just, by way of closing, just pass along any tips or advice. Let’s say I am a high school journalist, I’m interested in writing about discipline. I know it to be a sensitive subject with a lot of privacy concerns surrounding it. Perhaps something frankly that the school administration isn’t that proud of or that interested in talking about, and doubly so to a student as opposed to a professional journalist with many years invested in the field. Given all of those possible obstacles, how might you advise a student journalist to go about tackling this subject area?Carr: I would first sort of not be daunted by kind of what you don’t know. I’ve seen probably student journalists turn away from stories like that just because they’re fearful they wont ever get sort of the data that they need, and sometimes it takes time, but I’ve just found that nine times out of 10, if you’re tenacious and have the time, it does work out in the end. I would go back to something I said to just try and substantiate different things in as many different ways as you can through data, through first-hand observations, through interviews with people who contradict each other, and to not be overly reliant on either the sort of qualitative or the quantitative side of things. I think we saw with the Rolling Stone piece, just the dangers of being too reliant on a single source for reporting on a really sensitive subject. As good as one person’s story might be, to always try and talk to as many folks as you can to challenge their portrayal and to challenge maybe some of your own assumptions going into reporting these pieces.That’s another thing. I think we all have our own experience in the schools, and this is an issue where I think people in particular have kind of their own biases, and I sort of continually found my own assumptions being challenged when I was interviewing people who supported the paddle, when I was interviewing 16-year-olds who felt like no-excuses, very rigid discipline had been helpful to them, and so I just think you need to constantly remind yourself to have an open mind. LoMonte: That’s good advise for journalists of all levels of experience, but particularly for students. I want to thank Sarah Carr for being our guest on the SPLC podcast, and I want to commend her work to everyone’s attention. The easiest way to find it is just to go to the website of The Hechinger Report, I’m going to spell that so you can locate the website, it’s HechingerReport.org. Her excellent education reporting, and that of her colleagues, is archived there. You can just search her by Sarah Carr’s name, Sarah with an “h.” So thanks again for joining us and I want to encourage everyone listening to check out, not just The Hechinger Report and not just the Education Writer’s Association, although please do that, but to check out all of the resources that we have for you at www.splc.org. Our attorneys are always happy to help with any reporting obstacles that you’re encountering. You can contact us at 202-785-5450, or by writing to email@example.com. Thanks for listening and we’ll talk to you next month.
Historian Dawson Barrett discusses his new book Teenage Rebels: Successful High School Activists from the Little Rock 9 to the Class of Tomorrow.Frank LoMonte: Hi everybody, and welcome to another edition of the Student Press Law Center’s monthly podcast. I’m Frank LoMonte, Executive Director of the Student Press Law Center. The SPLC is a nonprofit advocate for student voices. We provide free legal research, assistance and training for young people and the educators who work for them, doing anything journalistic, anywhere around the country. You can find us online at www.splc.org, on Twitter @SPLC and you can connect with us most easily by emailing our attorney hotline, firstname.lastname@example.org. Young people get kind of a bad rap about being tuned-out slackers. This is probably not something unique to the current generation. Young people are often accused of being clicktavists: people who only participate in public issues and events by liking something on Facebook or perhaps retweeting it, but there are better stories to tell about the work of young people in helping to bring issues of public concern to widespread attention and to make social change, and our guest on the SPLC podcast, Dawson Barrett, is the storyteller to tell them.He is a 2013 graduate of the University of Wisconsin-Milwaukee, from which he holds a doctoral degree in history. He has taught history at Del Mar College in Texas, and he is about to release a new book called Teenage Rebels. And Teenage Rebels, which I’m going to let Dawson Barrett describe to you in more detail, encapsulates some of the stories over the generations of how young people have used their voice productively to make social change, often up against some of the obstacles that those of you who follow the SPLC are well familiar with.So I’m going to let Dawson Barrett take over and tell us first a little about himself and how it is that you came to be interested in this subject.Dawson Barrett: Sure, thanks for having me on Frank. It’s a pleasure to be here. Well I’m actually a historian of social movements in sort of a broad sense, so I’m really pretty new to the subject of youths in particular, so bear with me on that, though I do teach high school students in addition to college students.But I find the struggle of high school students to be especially fascinating, as I’m sure you know from your work, that on the one hand, teenagers find themselves in this bind where they have adult expectations and challenges that they face around sex and sexuality, sexual violence, depression and suicide, they can be recruited to the military, they drive cars, how they perform on tests impacts how they do in life. But at the same time, despite these adult responsibilities, their freedoms are really quite limited because they have no direct impact on the people that make the rules and the laws that they have to follow.For me, this project is in some ways a litmus test for how the powerless in society can kind of push back and fight for a better world. So Teenage Rebels is the book. In theory it is geared toward teenagers, that’s who I want to get it into the hands of, but I think it’s also for adults — for teachers and parents who would be their allies in some of these conflicts.LoMonte: We should mention that the book Teenage Rebels includes some vignettes and some stories about students who worked with the Student Press Law Center, including Tanvi Kumar and her classmates at Fond du Lac High School in Wisconsin, who pushed back against student censorship when they were being told not to write about date rape because the topic was too mature and too adult for their audience. They were able, after working with allies in the community, to actually get overturned a very punitive, draconian publications policy and to get a much better one installed in its place, and so that’s a mini success story about the work of student voices in contemporary America.But of course you book goes quite a bit back before then, talks about the voices of youth in the civil rights movement, in the environmental movement, I guess share, if you don’t mind, a couple of favorite stories or a couple of anecdotes out of your research.Barrett: Sure. Well I have many favorites. Again, the book is about 50 different stories, so I’m certainly partial to those that made big lasting change, those that led to Supreme Court cases, whether it be Brown v. Board, which incidentally is one of the cases that folded into Brown v. Board was from a student walkout, or Tinker v. Des Moines, which established some free-speech rights for students, and I also like the stories that are fun, like the true story behind Footloose, which was an actual event.But generally I’d say my favorites are the ones that make your jaw drop, they’re just sort of shocking, so I have two big ones in mind. I’ll give you one, and if we have time I’ll talk about the second one as well.So here’s my story:In 1950, 30,000 New York City high school students went on strike for a week, so each day more and more students walked out of class and marched on city hall. But instead of meeting with the students, the mayor ordered 100 police, including 25 on horseback, to surround and defend city hall. They even called in the FBI, so there’s this great headline from the newspapers nationwide where the FBI is bragging that they foiled a student plot to create a diversion that was going to draw the police away and expose poor, vulnerable city hall.So there is this big standoff every day between police and teenagers, and it is massive, but the punchline is the students only had one demand, and it was that they wanted raises for their teachers, and a year later he did so they won. But I think it sort of conflicts with many peoples’ understanding of the student/teacher relationship as their adversarial. LoMonte: That’s so interesting, and you mentioned that the demand was really very modest and very reasonable, and that’s been our experience in working with students as well. Very often, when students are censored in trying to use their voices, they’re actually advocating for really rather modest, common-sense reforms in their schools. I can recall several stories in the past year in which students have been trying to write about something of no greater controversy than smoking in restrooms, and they have been told not to publicize this school’s lax enforcement of the anti-smoking policy because schools are so image conscience about that, and here are students, in fact, trying to ensure that their classmates play by the rues and color inside the lines and ensure that rules get enforced, which would not be considered an especially radical proposition, and yet they are sometimes even swatted down when they try to accomplish that. Barrett: Right. Ya absolutely, it’s interesting you mentioned that great case from Fond du Lac, and there are a few more in the book that are sort of related to the student press and censorship from above. In almost every case, actually, that is what the principal or the school board says is that the student paper should be printing things that make the school look good.In a some ways, a lot of these conflicts are over the principal of the matter, but the principals matter.LoMonte: Ya, and certainly you mentioned the Tinker case, which was about the wearing of anti-war armbands to school, certainly not a life and death matter to the students involved, but a principal that mattered a great deal to them, and one that wound up in 1969 making an enduring legal precedent. We know, actually, from First Amendment case law in the adult world that it is often small gestures of symbolic expression that wind up making great law. I’m reminded of the Cohen case, the young man who wouldn’t change his “eff the draft” T-shirt when he was told to leave the courthouse or change his attire. I’m reminded of the Westboro Baptist Church people, more recently in Snyder v. Phelps, whose speech is of no great consequence or value at all and yet established a very important First Amendment precedent that for people who follow them, and so we certainly shouldn’t minimize the value of speech of students just because it may not seem like they are playing for especially high stakes.You mentioned the 1950s New York protest over teacher salaries. Was there a second story that you’d like to share along those lines as well?Barrett: Ya, another one that I think sort of packages up all the things that I’m working toward, and this one is from 1936 so it’s sort of in the deep belly of the Great Depression, and this was in Alameda, California. A recently elected mayor of Alameda started firing public officials and replacing them with all of his cronies. He fired the superintendent of schools, the high school students went on strike and demanded that he be rehired. Normally when students do things like skipping class, authorities try to frame them as childish and spoiled and it usually works. But in this case, the mayor had made so many political enemies that the students got support from all over, and so the newspaper printed a positive story about the walkout, which is sort of rare, a local hotel offered to host a benefit dance so the students could buy strike supplies. That’s the actual statement in the newspaper: ‘This is a benefit for strike supplies.’ Parents started a recall petition against the mayor, and the mayor freaked out. And again, you see these small things kind of ballooning. The mayor actually threatened to declare martial law, which is I think a pretty extreme response, but thankfully the district attorney warned him that if there was any bloodshed he would hold him personally accountable.So instead the superintendent had to cave, he rehired the superintendent and later had to resign facing corruption and bribery charges, and so the students won in this case and it became national news, and it led to a small student strike wave around the country, where students would go on strike and chant ‘Well the kids in Alameda won, why cant we?’ A fun fact about this story that I like is the district attorney, who sort of refused to cooperate, was actually Earl Warren, who decades later became the Chief Justice of the Supreme Court and actually wrote the Brown v. Board decision. LoMonte: Sure, and was the chief justice during the time of the Tinker v. Des Moines case as well. Wow, how fascinating. I wasn’t aware of that history, wow.Well, you can almost draw a line between those student protests in the 1930s and the 1950s into what we’re seeing today, where students are organizing more and more frequently around the issue of high-stake standardized testing. While we haven’t seen tens of thousands of students massing on city hall yet, we’ve certainly seen isolated instances of students walking out of school, staging demonstrations or just voting with their feet by opting-out of taking these tests, as is their legal right, and starting opt-out movements or participating in them around the country. I guess I’m wondering, do you see any sort of a renaissance of activism by young people, perhaps around issues of educational quality and standardized testing? Is that something we can anticipate seeing more of in the future?Barrett: Well, I think that’s an interesting question, and I think sort of the nature of mass media today, it moves so quickly it is hard to pin down what the big trends are. I can tell you in the last year the high schoolers have definitely been in the forefront, definitely in walkouts against testing in places like New Mexico and Illinois and some others, they are definitely at the forefront of Black Lives Matter protests.Just last week, actually, there was a big walkout, a citywide walking in Newark, New Jersey, where students have been fighting against an attempt to really take over the schools. The state is taking over the city’s schools and privatizing them and using voucher programs and closing down schools, and basically the same thing that has been happening all over the country including in Chicago. So I think you’re right. You see students pushing back because they know it is their future on the line, which I think might fly in the face of many people’s assumptions about students saving schools, but they actually realize they have a stake here, so I do think there’s something going on there.LoMonte: Well it’s interesting, I mentioned at the outset that there is a widespread sense that young people are tuned out from politics and disengaged from public life and the sum total of their involvement in any type of civics is clicking a thumbs-up button, and I’m wondering what you think about that. Do you think that social media has been a game changer for better or for worse in therms of both the level and the intensity in student engagement in making social change? Barrett: You know, on the one hand it’s never been easier to get the message out. You can’t reach worldwide audiences in seconds, but of course that means there is this massive volume of news and information that is basically impossible to digest let alone sustain a social movement.So I do see that problem and I want to turn to that critique in a moment, but on the upside, if you look at movements like Occupy Wall Street or the labor protests in Wisconsin in 2011, you know social media actually played a key role there because people were posting all of these pictures to Twitter and Facebook, and they basically said ‘Hey, if you can join us tomorrow, we’ll be at the same place at the same time,’ and those movements sort of built that way. So I do think there is a potential that is being tapped in there, but I definitely feel what you’re saying about the dead ends of the internet. I think hashtag movements are one of the worst culprits here because there is this common misconception here that if you raise awareness it will lead directly to change, and it just doesn’t. That’s an important step and that’s why I think what the Student Press Law Center does is so important, because we need critical investigative journalism, whether that’s The New York Times or your high school paper, but there also has to be another step, where we actually challenge the people in power to give us what we want — whether that’s at the ballot box or in the courts or with our wallets, or in the streets. So I think social media has the potential to be really important if it leads to that pressure so we can actually effect change.LoMonte: Well one of the other things that has changed over time, you mentioned student activism in the 1930s and the 1950s, what has changed in recent history is that student First Amendment rights and the ability to use your voice safely without fear of retaliation from your school has actually gone backward in recent years because of court rulings like the Hazelwood v. Kuhlmeier case, where in 1988 the Supreme Court actually diminished the First Amendment rights of students when they’re using student media or other school-provided forums to carry their voices, and we’re now seeing a generation of court rulings, many of which point in different and confusing directions, about the ability of students to freely speak on off-campus social media free from school authority.There are at least some judges who believe that school authority extends to off-campus social media because the speech has the ability to reach and have an impact on the campus and so, perhaps contrary to what one might have thought with the advent of social media, that this was an empowering change that was going to result in students having an uncensored forum in which to organize and exchange ideas, what it has actually done in some instances is expand the school’s jurisdictional authority, such that it actually winds up following you home on the weekend, conversely to popular wisdom. Barrett: Ya, absolutely. I think that’s sort of the sum total of the Internet is that it has great possibilities and great limitations and I think the jury is still out on how it is going to play out for people. LoMonte: Well in the few minutes we have remaining, I guess just talk about not only the book and where people can get a copy of Teenage Rebels, I definitely want people to pick that up, but also about where your research goes next. Are you interested in following up on this and studying it further, do you have any further plans to explore this field and this area?Barrett: Sure, well let me get the plug out of the way. So you can get the book now at microcosmpublishing.com, the name of the publisher, Microcosm. Or, by July 14 you should be able to get it anywhere, your local bookstore, etcetera, hopefully the teen section of your local library.So let me just say that, I think young people today are actually being dealt a tremendously unfair hand, I think the generations that are in charge right now, if we can think of the world in those terms, should really be fairly ashamed of the baton we’re handing off. I think the generation is left holding the bag on, you know, expanding and widespread social and economic inequality, mass incarceration, the catastrophic impacts of climate change, and I think a pretty clear, widespread assault on public education that is funneling money out of schools and into the pockets of corporations, and driving teachers out of the profession, and actually burdening college students with decades of student loans. So I think young people, in many ways, are getting a raw deal. But I still have hope because I think if anyone is up for it, I think the young people are. I think there are extremely promising youth movements in the U.S. right now. Again, I mentioned some are on police violence and standardized testing, school curriculum and education funding. Last fall there was a big wave of protests in Colorado because people wanted to change the curriculum of AP U.S. history to downplay inequality and instead promote patriotism and a respect for authority. And so instead students, and some of their teachers, went on strike and picketed for awhile. So this project for me, it really might be quite hopeful for the future. I think a bigger question might be ‘what is the role that adults are going to choose to play in these conflicts?’So I’m going to keep teaching, and I’ve got other research projects lined up, but what I’m really going to try to do now is to be as good of an ally as I can to the young people who are doing things now.LoMonte: Well I always like to end on an optimistic note, and that’s wonderfully optimistic, so we hope that other adults will get inspired to work with young people as well, to be allies, to help them find and to safely use their voices.I want to say thanks to Professor Dawson Barrett. The book, again, is called Teenage Rebels: Successful High School Activists from the Little Rock 9 to the Class of Tomorrow. It’s available both in print and ebook. I definitely encourage you to check that out and to follow all of the news about student rights that we offer on the splc.org website. If you’re interested in this subject, follow us on social media, we’re on Twitter @SPLC, you can sign up for weekly news alerts on the SPLC website, and if you have any questions at all about your legal rights as a student or an educator, we’re always available by email at email@example.com, or at (202) 785-5450.Thanks so much for listening, and we’ll talk to you next month.
Knight Fellow Beatrice Motamedi discusses her project Global Student Square, an international network of student journalists.Frank LoMonte: Hi everyone, and welcome to another edition of the Student Press Law Center’s monthly podcast, a rundown of issues affecting student media nationwide. The Student Press Law Center is an advocate for student voices. We work with student journalists and their advisers to help them gather information and share ideas. There is more information about our work and about the rights of young journalists at the www.SPLC.org website and we hope you’ll also follow us on Twitter, which is just @SPLC. At the Student Press Law Center, we take hundreds and hundreds of calls a year from young journalists in the United States who are facing adversity and obstacles when they try to publish journalism across all mediums. But — and this is not diminishing the adversity they face — these are quite literally first-world problems. Our guest on the SPLC podcast is dealing with problems in the developing world as well, and trying to provide some resources, encouragement and guidance for journalists in the developing world as they too work to gather information, share ideas, and inform their communities. Our guest Beatrice Motamedi is a veteran journalism educator with a distinguished background as a professional journalist as well. When you start reading Beatrice’s resume, you think you’re talking about three or four different people because she’s certainly accomplished and taken on enough work for three or four lifetimes. Just some of the highlights, in addition to the fellowship at Stanford University, which she’ll tell us about in a minute — Beatrice has been a founder and director of the Newsroom by the Bay program which is a very successful and immersive, intensive, training program for high school journalists, that is taught in the San Francisco area. She has worked on encouraging the development of high school journalism programs in Southern California in collaboration with the University of Southern California. She’s been a media literacy tutor for UNESCO. Gosh, and she’s worked in professional news media — this brings back memories — at places like UPI (United Press International) and also at WebMD, San Francisco Chronicle, Barclays, on and on and on.So Beatrice Motamedi, thank you so much for joining us. I really want to hear first about the Knight Fellowship program that you’re doing right now at Stanford University and how you became involved in that.Beatrice Motamedi: Sure, thank you so much, Frank, I’m honored to be here. And thank you for such a nice introduction. So yeah, the Knight Fellowship was sort of always on my radar. When people come up in journalism… the Knight Fellowship, it’s been around for 45 years. It was definitely something I always aspired to, and really thought about applying to, and when I became a journalism educator, I pretty much thought it would be out of reach. We talk a lot about the old Knight Fellowship and the new Knight Fellowship. About five years ago, the fellowship kind of changed from what it had been in the past, which is pretty much a fellowship you’d get if you won the Pulitzer Prize. You would come to Stanford for an open-ended sort of year to study, take courses. I’ve had friends who were Knight Fellows who literally spent the year sitting under a tree reading poetry, and it was a great reward and a great year off for awesome achievements and efforts in journalism. About five years ago, the Knight Fellowship found that many of the fellows, after their year, they were trying to go back to jobs that no longer existed. Literally managing editors, editors, reporters, were finding that they had either been laid off or given buyouts or their news operations were suffering and they were just not going to be able to go back to the jobs they had before. So the new Knight that started about five years ago seeks out people basically who are willing to be disruptive in their journalistic lives. People who are in someway restless, want to do something new, think that something ought to exist and they should build it. They call us digital innovators, media innovators — I think that’s something we all aspire to, none of us feel like we’ve really accomplished it completely yet. But the resources that we’re given now and the commitment and the mission that we’re given now is to really build things and to do something to save and protect and enhance journalism.So that’s our mission and I think that’s why they took me, as an educator, because that’s something that doesn’t usually happen. I’m very grateful for it. I’ve spent my year trying to bring what I consider our truth of scholastic journalism into the wider ecosystem as a whole. LoMonte: So the specific deliverable from your fellowship, the project on which you focused your attention is something called Global Student Square. this looks like an online gathering place for young journalists all around the world, and I’d like to hear more about how that idea came about and how you envision that it will work. Motamedi: So Global Student Square right now is an online platform. It’s a website with tools and with content that reflects student stories around the world and the collaborative efforts that we’ve been trying to pull together. We have a virtual newsroom thanks to Camayak, which is a content management system, online content management system, that’s working I know with JEA and other high school journalists across the country. We sort of have a backend to our backend. We have a virtual newsroom where students have been coming in and doing things together — for example, writing a story in South Korea, getting it edited in California, getting photos and videos attached from other places in the world, and finally published to our website. We’ve been playing with that deeply collaborative method of pulling story packages together. It does go on a website. I actually don’t think websites are all that innovative at this point. I think the point of the realm in digital media is really the shareable link, and so what I’m working hard on — and the students I’m working with are working hard on — is really using social media to push stories out into the world and to find new ways to get stories to be constructed together by students working together from different places in the world.Global Student Square I hope will develop into a series of story packages we’ll be doing beginning next fall called Engage, where we will actually take common themes like say, hunger or what it means to be a hijabi (someone who wears the hijab and is a Muslim teenager) anywhere in the world. What it means to be concerned about say, global warming — there’s a great big conference happening in Paris at the UN in October. I’d like to take some of these global stories and see if we can pull on the levers of the global student network to get the stories reported and written and produced and out there in a new and unusual way the rest of the news ecosystem has not seen yet. LoMonte: Well this seems so promising on so many levels, including bringing the talents of student journalists to a wider audience. One of the challenges student journalists face everywhere is the low expectations of adults, the doubts, the uncertainties — it’s so often said by adults that the students aren’t capable of doing journalism that is worthy of reading by an adult audience and of course those of us who work in the field sees exceptions all the time. And as you say, in the current news ecosystem, we really can’t afford to take any journalist for granted who’s willing to go do this work. If someone is willing to go out there and inform us and bring us images and information from places we wouldn’t otherwise get to see, why wouldn’t we do everything possible to support and encourage that? And that’s one of the exciting things about a project like Global Student Square. I guess since part of SPLC’s work is about trying to help break down barriers that students encounter — particularly censorship barriers but sometimes access barriers as well — can you talk a little bit about the students you’re working with around the world? What are the sorts of barriers that they encounter and what are the ceiling in which they are bumping when they are trying to do journalism in conditions different from our own?Motamedi: Right, well it’s been very interesting. I think I went into this project really feeling like I had so much to learn. When I went through my interview for the Knight Fellowship, they kind of looked at everything I was doing and they were like, ‘well, you seem very passionate and committed about student journalism — if you don’t get this fellowship, are you still going to do what you want to do? Are you still going to produce this international student network?’ And I said you know, possibly, but I have so much to learn about the legal and ethical restraints on young journalists abroad and what I really need to do is take classes in area studies. My year here in Stanford, I’ve taken a lot of classes on Islam and Iran and politics in Iran. I’m part Iranian and for me that was a life goal, to be able to study with people like Abbas Milani at Stanford and in doing that, I learned a lot about the different constraints that students face. Being a UNESCO tutor as well, it’s very interesting. I’ll read to you a couple of quotes — I’m a tutor right now, I have 40 students from around the world. We’re in a MOOC, it’s a massively open online course and we’re sort of piloting how that might work in the areas of media literacy. Some of the students are saying they can’t participate or their participation is kind of spotty because they don’t have access to the Internet. Other people, just for example: someone from Burundi says, “We have been passing through political crises here, and it was not easy to have access to the Internet. I’m writing to ask if it’s too late to learn.” Students from Nepal have of course been through an earthquake. Students in Iran — I’m working with a couple of Stanford students right now, we’re doing a project on an underground railroad that runs gay youth out of Iran and into the West. It’s a very interesting story and it’s unfortunately a story that cannot be reported from Iran. We actually have to go to Turkey and border towns in Istanbul to find these gay activists, these student activists for the most part, because from Iran, it wouldn’t be safe. There are 40 million people in Iran on the Internet, 5 million of them are on Facebook, but it’s not a country where free speech is honored or sanctioned or allowed. I’m finding more and more that it’s really not a matter of knowing what the law is. I mean often there isn’t a First Amendment, there aren’t laws that can protect student journalists. There have to be common-sense approaches and on the ground understandings. Part of what I’ve done here is to try to educate myself about just asking the right questions and also try to develop contacts in different countries around the world where I know I want to work first and sort of have pros where we go, on the ground people who can assist and help student reporters. We may have to do things we don’t like to do in this country, like offer anonymity, shield or hide where people are reporting from. I’ve been looking at things like Tor — different ways of constructing websites so people who contribute to them cannot be found.LoMonte: Sure. Tor is an encryption method that would enable people to avoid being traced in case there are hostile government forces that would be interested in exposing them or their sources.Motamedi: Thank you, that’s a good definition, that’s great. One of the fellows here — really, one of the incredible benefits of having been a fellow here at Stanford is just getting to know the people in my cohort, and one of them, Najia Ashar, she’s a very young woman, but she’s often called the Diane Sawyer of Pakistan. She lives in Karachi. I actually have a student that I’ve been working with who traveled to Karachi to do some podcast work for us. I was sharing with Najia and she was able to advise my student, Shahnoor (Jafri). Najia and Shahnoor were talking about how it would not be possible for Shahnoor — who wears the hijab, she’s hijabi, she’s Muslim — it would not be possible for her to use a cell phone on the street in Karachi. It would not be possible for a woman to be seen using a cell phone, even though everyone has one. So we had to kind of work around that, and how she would get maybe ambient noises of street sounds in Karachi and finally Shahnoor got that by having her brother go out and do it for her. There are constraints. Anybody who studies in Stanford gets to study a little bit at the design school, and I took some courses there and that’s one of the first things that you learn, that there are constraints everywhere. And if you’re creative, you just have to blow through them. You have to find a way to get to the story. In our case, try to keep people safe as much as you can. That’s a big factor for me. But get the story.LoMonte: Sure. Well in addition to the challenges that these students are facing on the ground, I have to imagine that just building and coordinating a network of this kind must be enormously challenging, especially for someone who’s based here in the United States without, I imagine, limitless travel funding. Talk a little bit about the challenge of doing that — identifying these contacts on the ground in various places, getting familiar with conditions on the ground, and I guess most importantly, recruiting and identifying and training these students. How do they find you, and how do you find them?Motamedi: Right, well I’ll deal with the first question first, about scaling. That is something I also wanted to try to figure out at Stanford. The good news is, I had a year to sort of ponder it and the bad news is that there’s no solution to the fact that you’re not going to get a lot of sleep sometimes. There are times when I’m Skyping someone at 6:00 in the morning and then Skyping someone at 10:00 at night. Just dealing with time zones is ridiculous and I sort of have to apologize for people for how I look on Skype or Google hangouts or how i sound. I think the solution to doing something globally really is to break it down. I came in really hoping to have an international student network, with literally people all over the world…sort of like Where’s Waldo. One person anywhere around the world you might choose.I sort of swiftly found that you need to focus and refine. Those are design school steps as well. I spent my first quarter sort of flaring, where in the world would I want to be in? And then increasingly, sort of focusing more and more and more on where must I be, and where should I be, and where should the collaborations happen first? And then the second wave and the third wave of collaborations can happen afterwards. I’ve been trying to focus on conflict zones, on places where views are not heard from in a consistent way. In this first iteration, just finding students around the globe, it’s proved easier just to use existing journalism networks. I’ve gone to American schools abroad and I’ve gone to advisers that I know here in the States and the advisers in Palo Alto have just been enormously supportive and helpful and I’m very grateful for how they’ve helped me take my early steps. I’m very interested in the international baccalaureate program and global studies and about the fact that here in the U.S. and also abroad, we have these global studies programs, but students are A. not practicing journalism and B. they’re not connecting with each other. So it’s possible for a student to be in an IB program in California — there’s a very good one just down the road from me in Sequoia High School in Redwood City — but you’re not necessarily connected and you’re not talking to students from around the world. That really surprised me. So I worked with the international baccalaureate program at Sequoia and we started doing some work — basically kids who are in English classes, not practicing journalism, seeing if we can start practicing journalism and align what they are studying to current events. So we did a project about Russia and we’re hoping to extend that next year to a school in Moscow so students are finally collaborating and connecting and creating stories together.I guess the short answer is for next year, especially with series of global stories that we’ll do, called Engage, I’m going to focus on just five or six schools. The idea will be to pull the levers of those schools so that every single time we do a package, those five or six schools are contributing, and that package comes from all over the world and provides unusual insights into how that story or how that theme is living in the world.LoMonte: We’ll just take the few minutes that we have left to talk about what you envision for the future of this project, given that you are on a limited time clock with this fellowship. You have about three or four different careers to go back to when this is over with, so how sustainable is a project like this and how do you envision it, perhaps, having a life after your fellow term is up?Motamedi: It’s a good question because our commencement is Friday (Editor’s Note: in mid-June) so my fellowship actually ends this week. But I think I’ll always be a Fellow. You know the Knight Fellowship has such a great, deep sort of structure of fellowship. There are Knight Fellows all over the world that I’ll be able to work with, and I know that they’ll help me build what I’m building as I go on. I do have funding to be able to push the program into next year. I may not be drawing a huge salary, but I do have the ability to keep Global Student Square and to take it into the next phase. So beginning in September and then through February, we’ll have stories once a month, these global story packages, and they’ll be going out, and we’ll see. I think what I want to do and what the investment that has been made in the project is geared towards, is really working out the workflow. How do these stories happen? What’s the editorial chain of command? What’s the structure? It’s very important for me to have student buy-in and student leadership, not only student involvement but students actually actively making story decisions and shaping the content as it comes out. So for example, we might do a story about climate change, you know, that might happen with the UN conference in Paris, but really have students plan how that story package appears. We might do some collaborative data collection so we might be trying to find one thing that we haven’t measured yet about global warming that you can uniquely measure and measure that around the world — try to do that consistently over the week, get that data in, analyze it, visualize it, see if we can offer something really uniquely new to the global conversation about this topic.So I think next year between September and February, it’s not going to be about me, or about us gathering hundreds of schools around the globe, it’s going to be about trying to perfect this little watch, this little machine, this little way of doing something and once we’ve done that, hopefully we’ll be able to scale. LoMonte: Terrific. Well, I could talk to you for hours about journalism interests. Beatrice Motamedi is one of those thoughtful people in scholastic journalism and a real force for good. I’m so happy that you’re there. We have to wrap up this podcast but please keep the conversation going. The website is www.globalstudentsquare.org and they have a feature that enables you to connect and comment through there. And I should also mention donate as well since it is a donor funded enterprise. So Beatrice Motamedi, thanks so much for being with us and thanks to you who are listening this month. If you’re interested in the work of the Student Press Law Center, the website is www.splc.org. We’re active on Facebook and Twitter, and of course you can always reach us with questions about your rights as a journalist or educator. The easiest way is by email, firstname.lastname@example.org or by phone, 202-785-5450. Thanks so much for listening, and we’ll talk to you next month.
Rachel Gunther, associate director of Youth on Board, discusses her organization’s new smartphone app for student rights.Frank LoMonte: It’s the end of July, and stores are starting to put backpacks and binders on a back-to-school special, so it’s that time of year when people are starting to take stock of their teachers and their schedules and everything else that they need to get prepared for a new semester. Relatively few of them, however, are going to take the time to take the stock of their constitutional rights, and the statutes and the policies that might have an impact on their ability to exercise those rights in schools. We’re going to talk about awareness of student rights and how to harness technology to make students more aware of and able to assert, protect, and improve the state of their rights with Rachel Gunther of Youth on Board in Boston, an organization that’s developed an innovative student rights app to help with that awareness and outreach. This is Frank LoMonte, executive director of the Student Press Law Center, and thanks for joining us for another edition of the SPLC’s monthly podcast. The SPLC brings you this podcast to keep you updated on developments in the law affecting the rights of students and the educators who work with them, and you can find out much more about those laws by visiting the SPLC.org website or subscribing to our Twitter feed @SPLC. Rachel Gunther is with us — for the last 13 years, she’s been the associate director of an organization Youth on Board, a nonprofit based in Massachusetts that works with youth organizing and youth development. This has been her career ever since graduating from Boston University, where she holds a Master’s in Social Work.Youth on Board came across our radar because of some publicity about a new app, Boston Student Rights, that they’re launching for Android phones and also on the web. You can check them out at BostonStudentRights.org. As that project takes flight, we wanted to talk to Rachel about the state of student rights in the Boston schools, what their organization is doing to help young people become more aware of and more involved in the asserting, protecting, and improving their rights. So Rachel, thanks so much for being with us here, and please take a moment to introduce the work of Youth on Board and what you do.Rachel Gunther: Sure, Frank, thanks for having me. A little over 20 years ago, Youth on Board started primarily looking at getting youth involved in governance of organizations, of schools, of churches, whatever it may be. And we provided trainings across the country and across the world actually — looking at how to improve youth-adult partnerships, how to have adults sort of understand how to communicate, understand young people better, and young people how to work with adults, and really digging in very deeply and looking at what we call adultism, and how adults can treat young people with little respect and sort of putting off their ideas and how this really gets in the way of young people really taking the lead and making decisions that affect their lives and their communities. So we did this for about 10 years and then we started to get involved in public education, and about 15 years ago, we got called in by the Boston Public Schools to help them revamp their Student Advisory Council. Since then, we’ve been having a partnership with the Boston Public Schools co-running their Boston Student Advisory Council, so we have this sort of unique partnership where we are an outside organization working with an in-district project that is mandated. This is a state mandate that some districts do more or less than others. Boston fortunately really has taken on the Student Advisory Council as a real meaningful project, and that’s shown by putting time and resources and having us bring in this partnership.LoMonte: That’s a terrific statute that I hope more young people will become aware of. We should post a link to it in connection with this podcast. If people become aware that state laws like that mandating student involvement do exist, then that would be an amazing civics project for young people in other states to work on, to try to bring their states up to the standard that Massachusetts has already achieved.Gunther: Right, and I don’t know, that would be an interesting project to look at also — I’m not sure how many districts in Massachusetts are actually doing this, and I’m not sure how many states across the country have a similar kind of statute. I think you’re right — many, many places in Massachusetts, students have no idea this is even something they should be doing, and if they did, right, the possibilities are tremendous what could happen. So, fortunately there was a school committee member about 15 years ago who said, ‘I’m going to own this thing.’ That’s oftentimes what it takes — someone has to, you know, really get behind this and understand what it needs to happen, that there needs to be resources and adult support to make this kind of thing really, really worth it. You can’t just do it saying, ‘oh yeah, we should go do that and it’s gonna happen in a way that’s really meaningful and worthwhile, that’s really going to have real change for the young people in the community.’ So we were again really fortunate that sort of the stars aligned, and the right people were there to make this happen. And it takes sort of pushing and reminding people how important this is to make it keep happening, because it’s an easy thing to let go. It often is, unfortunately.LoMonte: That’s so right, especially when you’re dealing with students who have a self-imposed time frame within which there’s going to be a 100 percent memory dump and a 100 percent turnover, and so student rights are something that require constant reminding and constant enforcement. I wonder, something that you have managed to do successfully that relatively few student rights organizations have is to work collaboratively and in partnership with a school system. Clearly, having a state statutory mandate can’t hurt, but I wonder if you could talk a little bit about that diplomacy. It is oftentimes quite hard to help school leaders and people in authority understand student rights as an asset and not as an impediment to getting their work done, and I wonder what Youth on Board has been able to do successfully there.Gunther: Definitely, it is a balancing act, I guess you could say — sort of the push and pull that we are always trying to figure out. How much do you push before we’re going to get pushed back? But I’d say for all of our work for Youth on Board, and this clearly goes into BSAC, is that we always talk about all of our work as based on relationship building and building positive relationships, whether it’s between peers or between adults or between, you know, both adults and young people. So a lot of the work and our staff work, as well as how we work with our young people and give them support and training about how to build supportive and positive relationships — we talk about sort of relationship building and communication and appreciations as a skill. We are very, very specific about, how do you build positive relationships? So, to do just that, even if someone feels like they’re on the opposite end of a policy or a belief system, you have to find common ground, you have to be respectful, you have to use language that's going to be effective, you have to be supportive. There’s just a way that we do our work that clearly is working. It works well to bridge potential divides and to build relationships that could be adversarial and to understand how to get people to understand your perspective, and a lot of that, with young people that we always talk about is when young people speak from the heart and from their experiences, they know better than anybody what’s happening in their schools, and if they can speak persuasively and build these relationships, that’s how real change is going to happen, because it’s a personal experience. They have built these relationships before they even are asking the tough questions or making the requests. And we've built — at this point, we have 15 years of background to say that people know in the community that BSAC knows what we're doing, that we’re respectful, that we are ready to take on real work, and that we are well-informed about policies. So when we come to the table now, we have all of this history behind us that allows us to really keep pushing, pushing for what students want, what change they want to have happen.LoMonte: Well, I gave the website a moment ago for the Student Rights App, I should also give out the website for youthonboard.org. You can read more about Rachel's work there. And I want to focus in on this project — Boston Student Rights’ website and smartphone app, which seems like such a savvy idea to harness the technology that young people are already using everyday, to try to get them involved in and excited about their rights. So can you talk a little bit about where that idea came from and where you see it going?Gunther: Absolutely, so over these past 15 years, we started passing out — well, I should say, students came to BSAC and said, ‘I have a concern about when our school begins in the morning,’ ‘I have a concern about the quality of our food,’ ‘I have a concern about being locked out of our school if I’m five minutes late and they send me — they say I can’t come to school anymore.’ So year after year, and month after month, there were more and more policies that students had concerns about. We then went to the school committee or the superintendent depending on what the policy was, and for the most part, we were incredibly successful in changing policy after policy after policy that students believed were inappropriate. Students worked with the administration to develop and devise and then get the school committee to pass a policy that was more appropriate and what the students thought was what they wanted to be. So over the years we were building this list of policies that were student-led, student-directed and had been successful, and we started having these yearly student-rights campaigns and wrote up little cards and made posters that we brought around to schools. That was very successful and it was a very good organizing tool, and then about a year ago, there was an idea to, as you were saying, to harness technology and sort of — students are on their phones, for better or worse, all the time. What would be another way to get students to have immediate access to the most current policies that have been passed to support their rights, but also at the same time, tell them what are their responsibilities as a student? There’s also a balance there that BSAC understands is really important, that it can’t always just be about ‘what are our rights?’ but it’s also what’s students’ end in all of this? And what is expected of them under the law, and what is expected of the administration to be following as well, based on these policies. Then in addition to that, we wanted to have resources for students whose rights have been violated, if they have not been followed appropriately. This primarily came out of the school pushout and school-to-prison pipeline work we were doing, and that students were being suspended, expelled and pushed out of school for inappropriate reasons. We had been working on, for many years, developing a new code of conduct for the district, and we’d also been involved with a new policy across the state that was implementing restorative justice and that uses suspension as a last resort, and so these policies that we had been working on in a working group. Again, this is another way that we work collaboratively with the district, that we had alumni in BSAC members on this advisory council to help develop this code of conduct, so students were there as it was being written, working with lawyers and administrators. But the issue then became, now we have this new policy, but is it actually being implemented correctly? Do teachers and administrators in all the public schools understand and know how to implement them? Do they know it exists? So we took that on as another challenge within BSAC. It’s not just passing the policy, but it’s making sure that it’s actually being implemented well. And that’s another piece that BSAC, in all of our policies we passed, we want to make sure that the implementation was really going well. And we go out there, sort of as watchdogs almost, to make sure that things are going well and people can come to us to say, you know, whether they are or aren’t, and we can help work on behalf of those places that aren’t doing a good job. So, back to the app, so the idea came as okay, let’s pull together an app that provides a place, a succinct place where people can get information about their rights, their responsibilities, as well as how the process should be and in case their rights were violated, what exactly should happen, and what resources are available to help them through that process — legal resources, social resources, parental resources. This is something that can be used at any time to help them guide this sort of very tricky, actually, process in case they need it. One of the other pieces that we’re hoping to implement in the future is a place where students can track, where we could track those grievances and violations of the code implementation, and we’re hoping that to be in the phase two of our app. Right now, the app is being used as [an] information resource, but we hope to have it as a way for students to be able to give us information to what’s happening out in the schools themselves.LoMonte: Yeah, well just to reinforce two points here. Point number one, you have to be in the one of the handful of states with an excellent student free expression statute already, and states do have the ability to pass their own statutes that give students more rights than the bare minimum afforded to them by U.S. Constitution. A handful of states have done so, and Massachusetts was one of the very first to do so after the 1988 U.S. Supreme Court Hazelwood ruling, so that Massachusetts has essentially always been an anti-Hazelwood state, one where students have the ability to speak freely, including in student publications, so long as they do not substantially disrupt the operations of the school. So that’s a terrific right for young people in Massachusetts to be aware of. The other point is once you pass a statute like that, once you obtain excellent policies on the books as Boston Student Advisory Council, with your help, has been successful in doing, it’s still a constant battle to remind people that those rights exist and to make sure that they’re enforced. So often when rights are first implemented, there’s quite a lot of publicity and excitement around them, but those things fade with time, students turn over, teachers turn over, administrators turn over, so we’re so fortunate to have an organization like Youth on Board that does provide some continuity and some institutional memory there. Talk a little bit more about how you envision and hope that this app might help improve conditions. I am a student, I am going through the Boston Public Schools, I feel like perhaps I’ve been unfairly disciplined, I’ve been suspended from school or I’m facing a possible suspension from school because of something I said that I think I have a right to say — how would I take advantage of this app, and how do you envision it perhaps taking off and growing in the future?Gunther: So, the app we just finally — it took, as all these things do, much longer to finally get off the ground than we expected — so it just actually became live in May, so this coming September will really be a time where we’re going to really see what students do with this and how much use it has, so we’re very excited about that. We had a launch that happened in June that the new superintendent got behind. We’ve had tweets, the local NPR station wrote a story about this, it got amazing coverage, so we are very excited about the amount of excitement that is within the district as well as nationally, that is more than we ever thought it would happen. And how we envision this working is, if something happens with a student, they can take their phone, at an appropriate time. One of the rights that we passed, interestingly, was a cell phone policy, which gives students the rights to use their phones at particular times during the day, because one of the things that was happening is that students, teachers were taking students’ phones, they were reading text messages and emails in the middle of class, and that was totally inappropriate. That’s one of the things we got changed — so they could take their phone out at the appropriate time, and what we did is, we took the very formal, legalese code of conduct and simplified it into very much like a how-to, step-by-step process, so if you click on, there’s a section on the app that says, ‘What is the step-by-step process of suspension?’ You click on that link, and it brings you every single thing that should happen and why it should happen and why it shouldn’t happen. So it’s very user-friendly, and it says, ‘if this doesn’t happen, this is what you need to do.’ And it says, ‘I’ve been expelled, what do I need to do, which I think unfairly,’ and why should you be expelled, why shouldn’t you be expelled? And again, it’s very, very user-friendly. And then if these things happen, and you need support, you click on the resources guide, and then there’s a whole list of different kinds of resources you have access to. So we’re hoping that this is going to be sort of taking the mystery out of this process and putting it in everyone’s hands. We also imagine that this is not just for students, that teachers and administrators can use it because the code of conduct is a huge — I can’t remember how many pages, hundreds of pages long — that most people are not going to take the time to look at. So this is really a resource for everybody, it’s not just students, and we want to make sure that other people understand that they can use this so they are implementing things well and can help support students through this process as well if they find themselves there.LoMonte: Just by way of wrap-up in a minute or two, you come to this work with a very interesting background in public health and community health and that was really where you started out. I wonder if you could just sort of address why you feel like student rights are an important component of a complete education, and what their value is — not just to the student, obviously, but to the whole school community.Gunther: What we’ve heard — I mean, it’s human nature and we’ve heard over and over again from students — if students don’t feel invested in their school, or people don’t feel invested in their community, or feel they are respected in their community or school or home, then you’re not going to have a successful, supportive, collaborative place to live or to be in school. And so, having a school community and environment where students feel respected and heard and appreciated and understood is going to create better learning environments for them. So it’s sort of a no-brainer in some way, that of course students should be engaged in making these rules and of course they should be respected and of course they need to be knowledgeable about what the rules and regulations are in their school, and again, teachers and administrators need to be aware of this process as well and respect their students and their experiences. All of this in combination works towards creating an environment where students can be more successful in their lives, in their academics, in their social-emotional well-being, and in their relationships with their teachers. All of this kind of works together to create, hopefully, and we believe should be so, a better community and school to be in for everybody.LoMonte: Well, Rachel Gunther with Youth on Board, thank you so much for joining us, and I want to encourage everybody to visit YouthOnBoard.org, check out the interesting work that the Boston Student Advisory Council is doing, and especially the Boston Student Rights App. We’ll be fascinated to see the progress and to see whether it’s something that might get some legs and be expanded even beyond your community. Thanks again for joining us and for the interesting and important work you’re doing in Boston. I want to encourage everybody also who has an interest in improving the state of student rights to check out the www.splc.org website, if you have a question about your legal rights as a student or an educator, you can reach us through the SPLC hotline, that’s 202-785-5450, or by email, email@example.com. Thank you so much for listening, and we’ll talk to you next time.
Jack Greiner, a media lawyer from Cincinnati, discusses his successful case where the Ohio Supreme Court determined that private universities had to disclose police reports. Frank LoMonte: Hi everyone and welcome to another monthly edition of the Student Press Law Center’s podcast, an update on legal developments affecting the rights of those working in and around student media. The Student Press Law Center is an advocate for the First Amendment rights of those working in student journalism, and there’s much more information about what we do, and you can get legal help, on our website splc.org. We hope you also follow us on social media, Twitter is @splc, and connect with us by using the firstname.lastname@example.org email line if you’ve got a question about your own legal rights.We’re here talking with Jack Greiner, a media lawyer from Cincinnati, who has represented student journalists in a groundbreaking open government case that may prove to be a harbinger for other states. Dozens and dozens of college campuses across the country maintain police forces that look indistinguishable from city or county police exercising the same level of government authority, including the power to arrest and even to use deadly force but with one important distinction — when the campus is private, many of these institutions maintain that they need not obey the same public disclosure laws that would apply to a city or county police force or even a police force at a public college or university. That’s because state open records laws typically don’t apply to the activities of private organizations. But there is change in the wind. Just since 2012, the law has evolved in three states to require greater disclosure on the part of police at private colleges — North Carolina, Texas, and as our guest Jack Greiner will explain to us, Ohio as well, thanks to a case that he brought on behalf of a college student editor at Otterbein University, who, I might add, Anna Schiffbauer was also an intern with us at the Student Press Law Center. Jack Greiner is a partner with the Graydon Head law firm, he’s based in Cincinnati. He’s a graduate of Notre Dame law school, he’s very eminent in the field of media law and has represented clients that include the Cincinnati Inquirer, ESPN, and many others in his career. He’s been an advocate for open government and speaks and writes frequently on that subject, and we’re really delighted to have him here joining us. So, Jack, thanks for joining us and thanks for your work on Anna Schiffbauer’s case, which I would love for you to explain to the folks who are listening. If you don’t mind, just give us a set up on how that case came about.Jack Greiner: Sure. You know, I’m sitting trying to here remember exactly, but I recall talking to Hillary Warren, the faculty adviser (for the student newspaper, the Tan & Cardinal) at Otterbein generally about the topic. I had a little bit of experience here in Cincinnati at Xavier University that maintained a police force and we were attempting to get some records. As I recall from that, we did not pursue litigation with Xavier but I was generally familiar that private campuses had the ability to maintain police forces and that they had the same kind of powers as public police forces, so we were talking about it and Hillary mentioned that some of her student journalists were running into a little bit of a brick wall with Otterbein on incident reports that had to do with sexual assaults. And there was some concern — and I’ve seen this on other campuses — there was some concern that sexual assault complaints were being sort of shuffled off to the student disciplinary court and not really treated as crimes. That was the concern of the Otterbein student newspaper, and they were just trying to get various incident reports from the Otterbein police force.So we started talking about it and when Hillary was explaining to me the issue, it just seemed to me that this was ridiculous and it would be a good time to challenge it, so we did. The way you proceed in a public records dispute in Ohio is that you file what’s called a petition for a writ of mandamus, and it gets the name really if you just think about it, essentially from the concept that you are mandating or the court is mandating that another court do something that they’re obligated to, i.e. follow the law. Mandamus is just sort of a fancy name for that. You ask a higher court here to mandate that another public official follow the law. And in Ohio, you can initiate a mandamus suit as an original action if you choose to do so in the Ohio Supreme Court. You can start it off at any of the levels of the courts, which would mean you could start the trial section, the common pleas section or you could start at the immediate appellate level, or you can just go ahead and start it in the Ohio Supreme Court. The effect of starting it in the Ohio Supreme Court is that you cut off any appeals, it is kind of a one-shot deal at this point. In my view, when I think a case is going to end up in the Ohio Supreme Court, I start in the Ohio Supreme Court, and make the process go a little quicker. That is what we did, we filed against the university and we named a vice president of discipline and we named the Otterbein police chief. Initially, the case was aside the Ohio Supreme Court and I don’t honestly know why they do this, but they have a habit or a practice that they’ve developed over the past few years of sending mandamus cases, public records cases, to their in house mediation service. I don’t have a problem generally with the concept of mediation and certainly if something can be worked out, that’s great. What I find though is that these types of cases are very difficult if not impossible to work out, because there’s just not a lot of room for common ground. I think I’m entitled to it, you think I’m not, how do we resolve that?LoMonte: What would be the halfway point between yes and no?Greiner: Right. It wasn’t like I was satisfied with getting every other incident report or something. So this ultimately went as most cases do — however Otterbein, i think in an effort to just delay things, expressed much interest and optimism in the prospect of settling the case. I never shared that optimism and I remained a little wary of their enthusiasm. But we did engage for several sessions in an effort to settle and we were unable to do so. The mediator finally agreed that we weren’t going to get this case settled so she returned the case to the regular docket, meaning the Court could now rule on the case. I sensed some discovery and in fact asked — I wanted to take the depositions of the police chief because I wanted to get an understanding of how they operated, how they handled their documents, their incident reports, etc, and I got some resistance to that proposal. We wound up not ever really resolving that issue, because the Supreme Court — much to my surprise to be perfectly honest with you, and it was a pleasant surprise — but it granted before we even got to the point of doing any discovery, it granted a peremptory writ of mandamus in our favor. I meant to add that once the case was returned to the regular docket, we got in my estimation a somewhat pleasant surprise in that the Ohio Attorney General asked to intervene in the case in our side. So I was pleasantly surprised by that development, I wasn’t really counting on that. I had some previous cases recently with the attorney general on the other side and I did not get the impression that he was a real big public access advocate, but for whatever reason they came in and filed on our behalf an amicus brief. I think that helped quite a lot and so then as I said, before we got to the point of really even needing a discovery, the Supreme Court issued a peremptory writ. And that’s kind of a significant word, peremptory. The peremptory writ under Ohio law means that — I just pulled it up, so I’d have it — “When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court may allow a peremptory mandamus.” What the Supreme Court really said is that Otterbein had no excuse for not providing these records, that it was absolutely clear that they were required to provide these records. Which was to me a pretty significant ruling and validated our position I think in a very real way.LoMonte: Just to get into the rationale for it, right, one rationale that people typically urge in these types of cases where you have a private agency on the other side, an agency that doesn’t directly receive its funding from the government, wasn’t created by the government, but is doing a governmental function — typically the argument goes that these folks are operating as an arm or an extension of the government, were doing so under such close government supervision that they’ve essentially been deputized as agents or an extension of the government and that’s sort of the route that you’ve elected to take, right? Greiner: Somewhat. There’s some bad law in Ohio on that — the Ohio Supreme Court in 2009 adopted something that they call the functional-equivalency test and it’s a test that is applied when a private entity takes on the duties of a public entity. It’s a four factor test, and the problem with it is that it almost guarantees in my mind that the records will be deemed private rather than public. And I say that for this reason — the four factors are: does the government primarily fund the operation? And typically it does. The case in which the Supreme Court came up with the functional-equivalency test was a case where a private operator ran a county prison. A county prison was obviously a public function. That part of the test was easily satisfied. The first question is: is it a public function? Again, a county prison is clearly a public function. The next question is, how is it funded? Frequently it is indeed funded by tax dollars. Then the third question is, does the public entity retain day-to-day control over the operation and the answer to that typically is no. That’s kind of why the public entity outsources it. Then the last question is, was this done simply to avoid the public records act? Again the answer usually is no, that is not the primary purpose. Typically, it’s typically to save a little money, etc. So the court says the requesting party for some reason has to prove, has to satisfy the functional-equivalency test with clear and convincing evidence and the problem is it usually winds up being a two-to-two tie. You’ve usually established it as a public function and the public paying for it, but more often than not, the public doesn’t retain day-to-day control and it's not set up solely to evade the public records act. It’s almost like playing tic tac toe — it winds up in a tie most of the time.Since the Supreme Court decided that since the requesting party had the clear and convincing duty, the requesting party ends up losing. So I had to face that and Otterbein, you know, pushed that position pretty hard, the functional-equivalency test, but my counter argument was that this was a case where that didn’t apply because the functional-equivalency test occurs when a public entity delegates to a private entity. My argument was here that in fact the private entity was delegating to the public entity, so it was a different situation and one in which the functional equivalency test had no bearing. And the Supreme Court, you know, essentially agreed with my argument there. And you know what I think the Supreme Court really decided and what motivated the Supreme Court to rule the way they did: just the fact that you know this is the ultimate state power that these people are exercising. When you can deprive someone of their life and or their liberty, you are exercising state power and you can’t do that behind closed doors. You have to be transparent about that. The records of how that power is used have to be available for public inspection, and I think it really just came down to somewhat of a common-sense type of ruling but I think it was justified by the statute. Because if Otterbein wanted to keep these records private, they could have done that. They simply could have maintained a private security force. They opted to set up a police force that had police powers. they just weren't — they couldn’t have it both ways. And I think they were trying to have it both ways. They wanted the power of the state with the privacy of a private institution. I just don’t think the Ohio Supreme Court was willing to let them get away with that. LoMonte: Well, two points. First of all, we should mention that in addition to Ohio, Texas has now joined the club of requiring private institutions to disclose the reports of police activity by virtue of a state legislative act — one that was motivated by a particular episode at Rice University in the district of an influential state senator who found the police’s refusal to turn over records of an arrest to be particularly outrageous and decided to fix that legislatively. Also in 2012, North Carolina joined the club after a lawsuit that was initiated by a college journalist in that state who was frustrated with his inability to get police reports from Elon University. I should also mention that we are talking in each of these incidents about really core documents about the performance of police business — that is, the incident report, the arrest report, the narrative write-up the officer generates when called to the scene of a crime that would explain the who, what, where and when of what happened. And those really are the bread and butter of effective police reporting.Without access to that incident report, the journalist would have no idea whether the person who was stopped for drunk driving on campus might be the quarterback of the football team or the president of student government or somebody else whose arrest was newsworthy. They would have very little way of knowing for what reason police are arresting people and if they’re using that arrest power responsibly or not. Greiner: Right, and I think also the other point that is important here is that there’s a lot of competition for students among colleges, and I think that incoming students, prospective students and their parents, want to know what kind of safety situation they’re getting themselves into. What is the environment like? And I think if those records can be maintained in secret, than the college, the university is better able to obscure the facts, hide the facts of what the real situation is and I think that is really untenable. And frankly, just from a fairness perspective, if state universities can’t because they’re public entities, I think there’s just sort of a fairness kind of thing here in terms of putting the private universities and state universities on equal footing in terms of reporting and disclosing police activity on campus.LoMonte: Well I should mention the name of the case for those who are interested in looking it up and doing future research, it’s Schiffbauer vs. Banaszak. It is a decision issued by the Supreme Court of Ohio on May 21, 2015. Jack, just with the couple minutes that we have left, even though the journalists of Otterbein are now armed with this excellent ruling from the Ohio Supreme Court, that hasn’t necessarily been the end of the story. It’s not necessarily the case that even when a court directs an institution to comply with state disclosure laws that journalists get immediate and complete compliance. Greiner: Yeah, Otterbein, for whatever reason, they drag their feet a little bit in terms of providing the records. They said they were studying the application of FERPA, which FERPA does not apply — i mean very clearly FERPA says it does not apply to law enforcement records and defines law enforcement records in a way that I think unquestionably covers these records. And now they’re starting to express concern over the Violence Against Women Act which is a federal statute that I’ve looked at, and again I don’t see any duty or obligation that arises under that statute that would require Otterbein or permit Otterbein to withhold these records. And yet even when they finally turned them over, they went ahead and redacted a lot of material on them, so we’re going to go ahead and, yeah, the case remains. We’re also still in front of the Supreme Court on my request for attorney fees. In a mandamus case, if public office is required to turn over the records then the statute provides for an attorney fee recovery to the requesting party, so we do have that going on, we may have to get in front of the court again on this issue on the redactions, but we’re just still looking at that and trying to make a decision on the proper way to go. LoMonte: Well I’m hopeful that others will take inspiration from your success in Ohio. There was a failed legislative attempt to add Illinois to the list of states requiring disclosure of private universities and there’s some talk of trying to bring that bill back again next year. It certainly seems like your case provides in some respect a road map for litigators to follow in certain states, understanding that every state's’ law and the tests applied by their courts might be a little bit different. Just in the minute or so left, any closing thoughts on this issue or where you see this going, if you think we can look forward to more progress and that other states will fall into line?Greiner: Well I hope so. There was a set back a little bit in Indiana where ESPN filed suit to get similar records from Notre Dame and so far Notre Dame has prevailed. But again it illustrates the point that not every state is exactly the same and as I read that opinion, in the Notre Dame case, the initial opinion, it seemed to focus on the very strict reading of the statute. So every state’s going to be different and it may take legislation in some states, it may take court action in others, but I think it’s important. I think that, you know, again, I think that students, parents, members of the community have a right to know what police are doing when police have the power to deprive someone of their life or liberty. That needs to be done in as transparent a fashion as possible. I think that just makes sense to people. Hopefully as we go forward, we’ll see more and more states fall in line here. LoMonte: Well, that ESPN case in Indiana is in fact on appeal right now, it’s in front of Indiana’s Court of Appeals and we have some optimism that we may see a reversal there. If you’re interesting in following that case or any developments about the law of public access, we hope that you’ll subscribe to our news alerts at SPLC.org, follow us on social media and give us a call if you have any question about your legal rights. I want to thank Jack Greiner of the Graydon Head law firm in Cincinnati for his work on behalf of college journalists and in particular for his work on the Schiffbauer case and for joining us today. So thanks Jack and we’ll look forward to what we hope is a successful resolution on the attorney fee issue and the redaction issue there as well. Thanks for joining us on the Student Press Law Center podcast, please join us next month for another update on legal developments affecting the rights of student journalists and the advisers who work with them. Thanks for listening.
Montana state Rep. Daniel Zolnikov discusses his legislation protecting journalists' privacy against demands for their electronic communication records.Frank LoMonte: Hi everyone and welcome to another edition of the Student Press Law Center’s monthly podcast, a rundown on legal developments of interest to those working in student media. I’m Frank LoMonte, executive director of the Student Press Law Center. The SPLC is an advocate for the independence of student journalists and provides legal assistance and research in support of those working in student media across the country. You can connect with us through our website, splc.org, and send us questions you might have through email at email@example.com. Well, shockwaves went through the national news media when in 2013, it was disclosed that the federal Justice Department had clandestinely used subpoenas to get access to the telephone records of journalists working for Fox News and for the Associated Press who were believed to have received leaked information from federal sources. The Justice Department, after this disclosure came to light, agreed to revise and revisit its guidelines and has in fact tightened up some of its standards for when it will seek access to the phone records or email records of journalists in conducting investigations. But those policies affect only federal law enforcement, and not state prosecutors working at the state level. Fortunately there are privacy advocates who are working at the state level to try to tighten up the standards for prosecutors and police going after the records of journalists that might give away the identity of confidential sources.We have one of those advocates here today — Rep. Daniel Zolnikov of Billings, Montana is a Republican who represents Montana’s 45th House District. He’s been a very outspoken advocate for digital privacy on a lot of causes and we’re so happy to have him join us today on the SPLC podcast to talk about his recently-enacted House Bill 207 in Montana that affords an extra measure of privacy protection for journalists and their sources. Rep. Zolnikov, thanks for joining us.Zolnikov: Yeah, thank you for having me. LoMonte: Well, I guess if you don’t mind, just first start off a little bit by introducing yourself and how it was that you came to be interested in this issue.Zolnikov: Okay. So there’s a little bit going backwards — I got elected November 2012 at the age of 25 into Montana’s legislature so I was definitely one of the younger ones. I have an information system and marketing background so I kind of understand how social networks work how a lot of our digital communications work. It’s more second nature to me than a lot of the typical legislators who are usually a little older than in their 20s.LoMonte: Sure.Zolnikov: I was lucky enough to have a friend who worked in the world of hacking. He was what they consider a good hacker. He informed me about privacy legislation and how there’s really no policy in place, and I could work on some legislation so I did so in my first session. Most of it failed. It got me into some controversial positions but in the end, I passed one little bill. This was early 2013 when it passed. I passed the bill, it required a search warrant for cell phone location information. No one cared, no signing ceremony, nothing happened until June 5 and 6. I started getting phone calls — people were like, Uh, you passed this bill before anyone else. I said, I guess so. I don’t know, we passed this bill in Montana! It was a shocker to me, and it was all because of Edward Snowden’s revelations on the NSA that it was realized that this was apparently a very important bill. The bill would have protected or did protect people from these things called stingrays which we learned existed a few months and years later, where your information and location was being collected. So we were a little proactive on what could possibly happen, even though it was already happening. The interesting thing of all this is in the next year, this legislation got so much attention in the news, media, everywhere, that it started passing in other states. Then there was a Supreme Court case in California that — I can’t remember the name of it, it evades me right now, but it basically made that law — the same concept of the law through the Supreme Court case — the law of the land. Everybody’s location information was protected until a warrant was obtained. Very interesting. With that happening, I was thinking. I came back to my next session in early 2015 and instead of having a few bills, I had a lot of legislation that I worked on with national groups to better protect privacy. The one on the press though, that I’m here to talk about, was more my creation because in my two years prior, I got to deal with the press quite a bit. I learned about Snowden and how Glenn Greenwald almost didn’t hear about Snowden because Snowden, when he was first talking to Glenn, was like, I need you to encrypt all this stuff, I need you to run these programs, and then I’ll start sending stuff over. And Glenn just ignored it because Snowden was so concerned. So taking that realization into play, the lack of protection for the journalists meant that anybody connecting to them could be found out through their digital communications.You go back 30 years ago, I walk up to you and tell you what’s going on and give you some big information. Well, now if any agency of the government wants to find that out, they have to walk up and ask you, the journalist, and the journalist can say no. In the digital world, if I email you or call you or text you, they can say well the journalist isn’t giving up the information of the source, we’re just going to look up who the journalist has been talking to and find out who that source is. Now you have a disincentive for whistleblowers to talk to the press.LoMonte: We should add that Montana, like just about every state in the country, has a reporter’s privilege. Their privilege is memorialized and statued in Montana law. Their privilege, even though it’s phrased as reporter’s privilege, is really more to protect the safety of sources than it is to protect journalists, because journalists are not the people who would lose their jobs over leaks. It’s the source that is at risk of losing his or her job or even potentially being prosecuted for blowing the whistle, so these really are more properly thought of as being source protection or whistle blower protection bills. Your legislation House Bill 207 builds upon the existing reporter's privilege that was already in Montana law.Zolnikov: Exactly. A lot of states have these laws but I don’t think many, I’m not sure if any actually, have it covering digital communications, which is the next level, especially since we now know all our phone calls, emails, texts, Snapchats are all being saved. That means there’s a record and there better be some laws defining certain protections, especially for the communications of journalists, because I don’t want to end up in a state that’s more similar to North Korea than the United States.LoMonte: Well and the reporter’s privilege typically, as these bills date back to the 60s and 70s, has protected journalists from direct intrusions on their privacy. It protects journalists against being searched or questioned by law enforcement to give up their confidential information but of course at the time these bills were initially written, nobody thought of the possibility of an electronic intermediary like a Gmail or an AOL or some other custodian of your electronic data might in fact be subpoenaed, potentially without your knowledge. That’s what became so frightening when it came to light that the Justice Department was using these third party intermediaries in lieu of confronting the journalist directly, knowing there would be a reporter's privilege objection.Zolnikov: Exactly. And to add one thing about using third party communication such as Gmail is that the third party doctrine states indirectly that you have no expectation of privacy. So me emailing you means that I have lost all expectation of privacy, so those shield laws may not even be protecting the journalist because there’s no longer any expectation of privacy in that communication. LoMonte: What House Bill 207 does is simply add to the existing reporter's privilege the term “electronic communication service,” and it says that neither a judicial body or a legislative body or any other government authority can go to a provider of electronic communication service to try to get at the information from a journalist that would otherwise be privileged if it was demanded directly from journalists. So in effect, it patches a digitial hole that technology has poked into the reporter's privilege.Zolnikov: Yeah, exactly. So the next question is, what is the big deal of just Montana passing this, since we know a lot of the abuses have been and continue to be at the federal level. The thing I learned my first session with my one little privacy bill is that if people know about it, it will be replicated. If you build it, they will come kind of concept. I focus on a lot of precedents that aren’t passing Congress that if we can prove work in my state — that some people still think is part of Canada, we’re all the way up in the Northwest here — if we can focus on passing this legislation here, we can prove it works, and then maybe other states will start passing it. And you know what? Congress doesn’t, hasn’t really been moving too fast lately and these aren’t their most exciting issues so if we bring it up at the ground level, hopefully they’ll be more incentivized to act. The interesting thing is with the bill protecting the sources of the press, it was not really — I thought it would be a more interesting topic than it was picked up as. We have set the precedent but I guess it’s like, we started a little grass fire but it hasn’t taken ablaze yet. And if it doesn’t, that’s okay, we still have the precedent, but it won’t really incentivize any other legislatures to ask. So that’s kind of the funny point I’m at right now. LoMonte: Well for those listening to us today with access to an editorial page, this is a valuable potential tool to help protect journalists’ confidences and something that college journalists might want to think about using to use their editorial page to advocate in their own state. It certainly is a concern that as state prosecutors are getting more and more technologically sophisticated as the Justice Department already is today, that they may begin trying to use these digital inroads to obtain confidential information that they would otherwise be prohibited from using under the reporter's privilege. Let me ask you this. We certainly think of Montana as being a state that is fairly characterized as being a law and order state. Often when you enact reporter's privilege statutes or try to broaden the scope of reporter's privilege, you get pushback from law enforcement. You hear from police and prosecutors that you’re going to take away a weapon from their arsenal and you’re going to make it harder to arrest criminals and tougher to put them away. Did you hear that in Montana? Was that an objection you had to confront and overcome? Zolnikov: I had to confront that on almost every single piece of legislation I brought forth. I had a really, really big one that would have required notification if your digital communications is read. Because if someone is reading your email, you may never know it so what we want is once you’re done with the case, they’ll let you know. Since they then know they have to contact you, they might be more careful with what they read and for what reasons they read them. That was a big one. I sounded like I would have basically let every criminal be free if that bill would have passed. I had probably five or six similar types of legislation — this one, since I think affected the press, was not spoken about like that. Because if it affects the press, I don’t think the opposition really wants to be on the record with the press watching what’s going to happen with this piece of legislation. I think that’s what happened with this bill. This one was more lock-and-loaded. And it was pretty easy to pass because it was common sense. LoMonte: Have you actually experienced a case in Montana that alarmed you, or was this more a precautionary measure? Zolnikov: No this was more of a national level. But I’m not a national politician so I figured that the idea of setting precedents is all I can do to hopefully set a bigger stage on some of these issues. That’s where I was coming from. The other thing is that I don’t believe, and you can correct me on this, is I don’t think there’s a national law passed. I know that they’ve tried and I know that there are people working on it but it’s basically been considered dead every time they try to pass it. It just doesn’t move forward. LoMonte: Right. The reporter’s privilege has been stuck in Congress for decades now. It has gotten close a number of times but it has never made it through and partially because objections from law enforcement agencies — actually, largely because federal law enforcement contends that to take journalists’ confidences off the record potentially ties their hands in sensitive national security and terrorist investigations. There have been many attempts over the years at fashioning compromise language but one of the many hangups nationally has been to define who is a journalist, who is entitled to invoke the protection of reporters privilege.And by the way, I should say that in Montana, the reporter's privilege is defined (as) any newspaper, magazine, news agency, news service, radio or television service and so on. So Montana is certainly one of those where a student journalist ought to be able to claim the protection of the privilege just as a professional could. There are a few states, Texas is one, Florida is one, where the entitlement to the privilege is based on earning a salary to that privilege but Montana is not one of those states. So certainly a person working at the student newspaper at Montana or Montana State or one of the universities would be entitled to claim this privilege, just as would a person working for a professional salary. That’s a distinction that students should be aware of and should know that in most states, they do have the benefit of the full reporter's privilege if they are asked to give over confidential information. Let me just ask, this is sort of the ultimate softball question. The people who are listening to us are largely going to be people working in journalism who don’t need any convincing at all. But certainly most of the people who you were dealing with as colleagues in the legislature are not journalists. And they’re not people who perhaps have a great deal of familiarity with or affection for journalism. So how do you make the case to those people that this issue should matter to them and journalists’ ability to protect their confidences is important to the rest of us?Zolnikov: So one of the most interesting things about this bill was as a Republican, it seems like the Republicans tend to be less excited sometimes — there’s always the concept of media bias or we think the media’s against us or we think the media’s on that, and so there’s not always the most excitement to take action. So that was one of the first things I ran against — well why? Look at any other country and tell us how bad our situation is, and tell me this isn’t worth protecting. Usually then once I busted out that this is a very basic First Amendment freedom, then everybody was on board. It wasn’t the fear of criminals or anything like that, it was just like, why? Why is this important?If you don’t have a free press, you don’t get a story that needs to be broken. As politicians, we always have stories that come out against us or for us or with us, however you want to put it. We had to put those biases aside and say, this isn’t about the story that you got last week because you said something wrong and you think the media is out to get you. This is a basic, fundamental Bill of Rights protection.LoMonte: Well, I want to thank you for joining us today. This is Rep. Daniel Zolnikov of Montana’s 45th House District in Billings. Go ahead and give everybody — I know that you’re active on social media. How can people connect with you on Twitter if they want to participate in this conversation or maybe share some ideas about legislation?Zolnikov: So my twitter is @DanielZolnikov my facebook is Facebook.com/DanielZolnikov, my email is Daniel.Zolnikov@gmail.com, my website is DanielZolnikov.com. I made it as easy as possible to basically find me if you need me. Most bill ideas aren’t mine, I think this one was a more unique one. I’m always open to hear about it. If anybody wants to ask questions or hear about it, contact me at anytime. I’m literally probably one of the easiest people to get in touch with.LoMonte: Well, thanks so much for making yourself available to talk to us today, and we look forward to following what you’ll propose next in Montana in the way of privacy legislation. If you as a student or an editor have a question about your own privacy rights, you can contact the SPLC with our hotline, that’s area code (202) 785-5450. You can email us through firstname.lastname@example.org. We hope you’ll follow us on social media, that’s just @SPLC on twitter and of course, tune in every month to the SPLC podcast on changes in the law that might affect your rights. Thanks for listening.
A conversation with University of Oregon journalism professor Ed Madison about his new book, "Newsworthy: Cultivating Critical Thinkers, Readers and Writers in Language Arts Classrooms."Frank LoMonte: Hi everyone, and welcome again to another monthly edition of the Student Press Law Center podcast. The Student Press Law Center is a nonprofit advocate for the rights of student journalists, and we provide free legal research, help and information to students and educators working in journalism from K-12 all the way to graduate school. SPLC can be reached on the web at www.splc.org, through email at email@example.com or on Twitter @SPLC. We hope you’ll connect with us, use the SPLC’s educational resources and let us know how we can help your journalism. Well, it’s getting more and more discouraging to try to make the case for scholastic journalism in the 21st century, as a number of factors conspire against it. It’s more difficult to say with a straight face that newsroom employment provides stable and gainful career prospects for young people given the hemorrhaging of some 3,000 jobs a year from the profession. STEM education and standardized testing is distracting schools away from what they sometimes perceive as nonessential electives. And young people themselves are growing up in households where a newspaper may never have been read and where there’s often not an especially high quality of news being consumed.All those factors conspiring together may make it an uphill battle to defend or to create journalism in the public schools, but our guest is not bearish on the prospects for journalism. Our guest is Ed Madison, an assistant professor at the University of Oregon School of Journalism and Communications.Ed has just released a book that’s available through Columbia University’s Teacher College Press that tells a much more optimistic story about the educational value of journalism and how journalism can advance the objectives of teaching English language skills, even outside of a traditional newsroom setting. Ed Madison has a Ph.D. from the University of Oregon, he’s a distinguished broadcast veteran who was one of the very first producers hired by CNN, he has been a successful producer in the film and television arena for just about three decades and he’s also a very innovative and creative educator who works with high schools across the country and who is going to start us off by talking about an experience that he had more or less embedding himself in a very high achieving high school journalism program in California as part of his doctoral research. Ed Madison, I should add, is also a member of the Student Press Law Center faculty steering committee, somebody whose advice we count on quite a lot and we’re especially delighted to have him join us on the podcast. So thanks for doing that, Ed, and I guess let’s start us off by, if you don’t mind, talk about the research that you did that was part of your doctoral dissertation that led to the current project.Ed Madison: Sure, and thanks, Frank, for having me. I should say when people say that I’ve been doing things for three decades, I always have to add that I was in high school, so I’m not that ancient. I know firsthand the value of working on my high school newspaper and just the benefits that it allowed me, especially since I was growing up in Washington, D.C. during the height of the Watergate scandal. There was just so much going on, it was just an incredible time.But after about 23 years in Los Angeles, which included working for CNN and CBS and other networks and studios, I moved to the Eugene area and decided to go back to school in about 2009 and was kind of in search with a dissertation topic. You’ve got to come up with something that’s going to add to the body of knowledge in the discipline, mine being communications and journalism, and I stumbled upon Esther Wojcicki, who is really best described as the matriarch of Palo Alto High School.We were both on a panel at Stanford on journalism innovations and she brought about four of her students with her. I’m sitting with her and listening and talking to these students and just, you know, was pretty much aware to be that there was something unique about the level of engagement that they have and they had. The thing about Palo Alto when you bring it up, everyone knows, it’s one of the wealthiest zip codes in the nation. LoMonte: Right. Madison: So it should be expected that affluence will bring about students who are pretty sharp. But these kids were more than sharp. They just had a level of inquisitiveness that really was obvious. The more time I spent with her, the more I learned that they actually have what many consider to be the largest scholastic journalism program in the country. There's some 500 students out of 1,800 in their student body who are participating on about nine different publications that are generally student-led and it’s a wonder to see. You’ve got not only a newspaper that’s been on that campus for about 100 years, but you’ve got an online news service, three or four lifestyle publications, their own sports magazine, their iteration of Sports Illustrated — it’s amazing. What they’ve done there is, I think the best way to describe it, is they’ve created a culture where journalism is the cool thing to do. Students are engaged, and they understand the sense of respect and power that it gives them in terms of just covering the events that are important to the community there. One of the things I think sometimes journalists take for granted and what was immediately obvious to me as I studied and spent two-and-a-half years just looking at this program was the publishing component that defines journalism as being journalism. Rather than to have an assignment that you turn into one teacher to be graded, you are publishing content that is being consumed and read by your peers and by the community, and that in and of itself has kids bring a higher level of commitment to the work and a higher level of engagement to the work. They also are being asked to write about topics that are relevant to their daily lives. We often in education hear about reluctant readers, reluctant writers. The question I always ask is what are we asking them to read or write about? Not to discount the value of the classics or just other types of writing, but often if you start with looking at where kids are in terms of their own intrinsic interests, it gives you a way to not necessarily coax them, they’re actually motivated to write about the things that interest them.LoMonte: Right. Well one of the things I thought was really interesting when you did your doctoral dissertation, you did sort of a comparison looking at Palo Alto’s AP English program, the standard traditional AP English that many of us took in school and put that up against the experience of journalism students and surveyed participants in both of those. There were some interesting takeaways — to bottom line, it seemed like students got very comparable educational benefit and value out of both experiences, but there was an extra sense of empowerment or individualized and self-motivated learning that came out of the newsroom experience that was not matched by the standard AP English experience. Madison: That is true, that’s exactly what I found. First of all, students — AP courses are also an elective, although there’s a motivation to take an AP course because theoretically it’s going to offer you credits that will cut your cost of college down once you’re on a college campus. But you know, it also looks good on your transcript and I think when students look at journalism as an elective, it’s also something that can show leadership skills, communication skills. It’s the kind of thing that can also look good on a college application.But what I found through that study was the kind of students who are choosing journalism were choosing it for intrinsic value — in other words, it was something that they really wanted to do rather than something they thought they needed to do in order to sort of check off and mark for sort of external rewards. This goes back to the work of some researchers, RM Ryan, who talk about intrinsic versus extrinsic motivation. Intrinsic motivation is those things we inherently like to do whether we’re paid or compensated, it's not something we’re doing for a grade or to please our parents, it's that we really feel a sense of internal value about it. Whereas extrinsic motivations are those things that are related to some kind of reward. So when you look at that — as well as also, I looked at learning styles too and various measures around critical thinking and the types of skills that basically help someone be more adept as a student. Those also show a significant difference between the students who were journalism students and the students who were not. LoMonte: Well, the book that you just published is called Newsworthy. And the subhed to that is ‘Cultivating Critical Thinkers, Readers and Writers in Language Arts Classrooms.’ You’re emphasizing in this book the critical thinking value and benefit that journalism conveys and the message of the book is that the people who are English language learners even outside the traditional newsroom setting could use journalistic principles in order to more effectively teach the language arts. Talk a little about that, about the message of the book and how you envision people using it.Madison: Well you know, I mean it’s kind of a broken record to state that we are over-testing and perhaps we’re testing for things that don’t really give us a sense of how students think. The high-stake tests are pretty much limited to testing reading comprehension, some degree of writing ability and mathematics, but social studies and science are largely not tested and therefore they’re starting to take a back seat in terms of curricular status within our schools and it’s unfortunate — and also the arts. It’s very interesting when you consider our standing against other countries, we’ll often look at the PISA test or we’ll look at where we stand but … a really accomplished scholar in this area makes note of the fact that a lot of the things we’re starting to abandon are really the things that made our country — when you look at the Silicon Valley and all the innovation and creativity that is really probably the largest source of economic growth for our country in the last decade or so — it’s certainly not based on a curriculum that’s focused on memorization or just anything other than collaborative work and having students work in a way that is going to have a sense of discovery. When I talk about journalistic learning, I talk about four areas that I think distinguishes it from perhaps what we see in many high schools in America.So I talk about relevance, which is making assignments meaningful so having students engage with contemporary themes so this work becomes less conceptional, and having students look at where in their life — why should I care? Why should I care about what’s going on in class today? So that’s the first thing. The second thing I talk about is discovery. We’re naturally inquisitive. Often school sort of becomes about checking off boxes or circling the right multichoice answer. The third thing I talk about is sharing, so really this sense of personal stories. You know we have a lot of kids who are coming to school from just really challenging domestic issues at home, issues around, you know, having three solid meals. For kids who may come from a culture where therapy is not an option financially or is not something that’s looked upon positively, the act of actually writing about what’s going on in your life can have a therapeutic effect which is valuable and allows kids to really come to school and be there, be present, not be dealing with a lot of stuff they might be worried about that’s happening at home. And then the fourth point I talk about is just collaboration and that’s the sharing of curricular power so that it’s not about necessarily the teacher being in front of the room with all the answers, but really acknowledging and valuing the knowledge students bring with them from their own culture and background, whatever that might be. So those are the four areas that I look at. LoMonte: And I think it’s important that in your research and in your book, you’re tying journalistic skills back to the core curriculum because there is so much emphasis on many of our states on Common Core and on teaching to those federally-enumerated goals that every teacher is expected to fulfill. You explain that journalism actually can advance the fulfillment of those goals, it's not a distraction from the Common Core. It can actually be a vehicle that helps you complete the Common Core objectives. Madison: Actually, Frank, in chapter after chapter, I take lines from the Common Core and show how journalism completely complements if not takes in a whole other level what the Common Core is asking for. And you know I have to say, honestly, there was some discussion about putting Common Core in the title and i’m glad we didn’t because Common Core has become sort of a polarizing term but there’s always going to be standards, you know, and hopefully standards — I think that what’s good about the Common Core is that these are standards that are asking us to really delve deeper than just making sure that kids are being able to memorize and regurgitate information but really asking how did you arrive at that answer? What was your thinking process? And I think this is a good thing. So yes this is very much aligned with standards-based education, not necessarily just the Common Core standards.LoMonte: Well if you don’t mind, tell people where they can get a copy of the book Newsworthy. I know it’s being published by Teacher College Press in Columbia, how can people get a hold of the copy? And in what form is it available?Madison: Yeah, so probably the easiest thing to do is if you go to newsworthybook.com, you’ll see their information about the book and a link to where you can purchase it. You can purchase it directly from Teacher College Press or you can also find it on Amazon but if you go to newsworthybook.com, you’ll see information as well as — I’m very proud of the number of endorsements I’ve received for the book. Linda Darling Hammond at Stanford University who was on President Obama’s education transition team had nice things to say about the book, Eric Newton who was formerly with the Knight Foundation who is now innovation chief at the Cronkite School endorsed it, as well as a number of other scholars that people respect. I’m pleased, it’s my first book, it’s an interesting feeling. It’s even more meaningful to me because it's been an opportunity to write about something I think is really important in education, particularly as we talk about closing the achievement gap and issues with students from underserved communities because you can hear us talk about this, especially how it relates to Palo Alto High School. And you can think, well did this require a bunch of shiny equipment and expensive things that is prohibitive to schools that are in communities that are more challenged? And the interesting thing about what Esther Wojcicki did with this program is when she came on some 27 years ago, she just brought in old newspapers. And when you go there today, they’re still sitting around with old newspapers. Yes, they have shiny equipment and they actually remodeled and built an incredible facility there of late but that’s not a prerequisite to take a lot of these pedagogical tools and the philosophy of what they do and make it work. And I think the real takeaway here is to really speak about a shift of thinking about education from the standpoint of looking at — how do we empower kids to take ownership in their education? So it’s not about arriving sitting down and passively be receptors to whatever's going on in front of the room but really more about them being active partners in their learning and that means. The program in Palo Alto, you’ll see a lot of kids in the front of the room and a lot of the instructors in the back of the room sitting — guiding,coaching but allowing students’ own leadership skills to really be expressed.LoMonte: Well, I think that’s a great wrap-up point, that there may be people who see this work and may be skeptical that with the resources available to Palo Alto — not only an affluent school system but one with highly-educated parents, literally around the corner from Stanford University — there may be skepticism about the ability to replicate the success of Palo Alto. But certainly some of the lessons and principles and takeaways from your observations in Palo Alto could work in a less-resourced school.Madison: Yes. I want to mention a project — so having experienced and spending two years after those two years in studying Palo Alto, we did a project at Roosevelt High School in Portland, Oregon and if anyone listening to this would go to digitalskillsworkshop.com, they would see the results of that project. Roosevelt is a high school that is often listed on the list of Oregon’s poorest and most-challenged schools. But we did an immersive bootcamp there, a digital storytelling bootcamp, where we worked with students for a week and documented the entire experience and then created learning modules that teachers anywhere can access along with a study guide and everything else.I think one thing that I want to leave people with is, you know, you might not necessarily be trained, you might think journalism is something above or beyond what you are able to take on or teach, but with working on partnerships with journalism schools which is how we did this program at Roosevelt High School. We took some of our sharp undergraduate students and had them come in and mentor these students, which created an incredible opportunity. Some of these students who may not have had a family member who had gone to college now had a mentoring relationship where they could actually discuss that and learn about it. But also it bridged the generational gap where instead of having grey-haired professors like myself in the front of the room.So there’s all kinds of ways to get this kind of curriculum into the schools and partnerships with journalism schools is a very strong way to look at how to accomplish it. LoMonte: Terrific. Ed Madison, assistant professor at the School of Journalism and Communications at the University of Oregon. I want to thank you for what you’re doing to showcase the educational benefits of journalism in K-12 schools.The book is Newsworthy: Cultivating Critical Thinkers, Readers and Writers in Language Arts Classrooms. The website is just newsworthybook.com. I want to leave you with one other one — that’s the splc.org website. If you want to connect with one of our attorneys, with a question about your own legal rights, please get in touch with us. The easiest way is by email, firstname.lastname@example.org, or you can submit a legal query through our website or connect with us by phone — that number is 202-785-5450. Thanks so much for listening and we’ll look forward to talking with you next month.
Peter Bobkowski, assistant professor of journalism at the University of Kansas, discusses his research on the impact of scholastic journalism experience on students' readiness for civic participation.Frank LoMonte: Hi everyone, and welcome to another installment of the Student Press Law Center’s monthly podcast, a run down of developments of importance to the rights of student journalists. On the Student Press Law Center podcast, we interview newsmakers about developments in the field of journalism that might impact the ability of young people to gather and report news on issues of public concern. The Student Press Law Center is an advocate for student voices, and we maintain a law library of legal materials of interest to teachers and students at www.splc.org. The Student Press Law Center was founded back in 1974 as a vehicle for involving young people in the civic life of their community through journalism. The SPLC has always appreciated and understood the linkage between civic awareness, civic participation and journalism, but until recently, we didn’t have much in the way of documentation of that link until now. A new study published by our guest Peter Bobkowski from the University of Kansas actually used survey data from interviews with students to establish that linkage — that students who are in a supportive environment as student journalists feel a greater sense of civic efficacy. To explain that, I’d like to welcome Peter Bobkowski. Peter is an assistant professor in the school of Journalism and Mass Communications at the University of Kansas where he’s been since 2011. Peter has a doctorate from the University of North Carolina Chapel Hill. He’s an authority on the field of scholastic journalism, has taught high school himself. He actually was a participant in one of the leading censuses of scholastic journalism that was done under the auspices of Kent State University back in 2011. He’s on the board of directors of the National Scholastic Press Association, as many of you recognize as the organization that gives out the Pacemaker awards each year. Peter was just recently recognized by the NSPA with its prestigious Pioneer Award for his long-time support of scholastic journalism. So Peter, thanks so much for joining us and I’m going to give a shout out to your website where this research is posted, and I want you to remind people as well, but its civicsandjournalists.org. Peter, please take it away and tell us about your study and your findings. Peter Bobkowski: Thanks, Frank, that was a wonderful introduction. I’m going to start by acknowledging that this research couldn’t be done without the support of the Spencer Foundation from Chicago which sponsors a lot of educational research, and one of the initiatives that the Spencer Foundation was interested in was the connection between education and civic engagement — how do young people develop civic skills, civic dispositions? And so I proposed to the Spencer Foundation that I would like to do a study that looks at journalism specifically and civics because just like you said Frank, we have the sense that young people who are in journalism are engaged in their communities, have a better sense of their communities perhaps than those who aren’t as engaged in journalism, but we haven’t really had data to support that notion. And so I spent a little bit of time trying to figure out, as I was writing this proposal, looking at what other people have written on this topic, trying to figure out what could, what would be really, journalism’s contribution to this? What is it about journalism that could make people better citizens down the road? And what I came up with is the idea that it’s really about — what’s unique about journalism is that it helps young people understand their communities better and maybe understand issues a little bit better, but they can do that outside of journalism.LoMonte: Right.Bobkowski: But journalism is really about the communication of issues and using the tools of journalism and tools of media to effectively address those issues. So the idea that a journalism student develops a self-confidence about — if there’s a concern or if there’s an issue that they care about, through their journalistic work, they learn the tools of how to address that issue with whatever public they’re trying to address. I call this concept media civic efficacy. There’s writing about civic efficacy out there, but I really wanted to focus on the media part of this and ask the question, do journalists really see their media, their student media, as tools through which they can address their issues?LoMonte: Well, first tell us the methodology by which you went about the study. How did you select the group that was surveyed? And as you carried out the survey, what were the takeaways and findings?Bobkowski: Sure. I am, like you said Frank, at the University of Kansas, which is about 45 minutes west of Kansas City. And Kansas City has the unique characteristic — well there are two Kansas Cities first of all, there’s a Kansas side of Kansas City and there’s the Missouri side of Kansas City. I thought that was a really interesting place to do a study about that, specifically focusing on high school students, because as you probably know, Kansas has a law protecting high school journalists’ speech and Missouri doesn’t. And I thought that in itself is a really interesting variable to include in the study. So I focused on high school journalists in the Kansas City area both on the Missouri and Kansas side. I selected 10 counties around the Kansas City area so we weren’t just looking inside the city but also suburb and more rural areas around the city. Eventually I also included private schools in that. So it was public, private schools and as the study progressed, I was also invited by teachers in the Wichita area to include their schools in the study. So Wichita Public Schools are also part of the study.So in the end, there are about 42 schools, I believe. And that represented 20-some districts and then a handful of private schools. All in all, there were about 900 high school students who took the survey last spring, between February and April. And 40 high school journalism teachers. All of the students who were in the study, their teachers took a separate study just for teachers.LoMonte: And you really focused on two different but related questions here. There was a line of questioning about students’ own support for First Amendment values and there was a second line of questioning about the climate in which they were doing their journalism, whether it was a climate that was supportive, positive and a relatively hands-off level of supervision. Explain both of those lines of questioning and what the responses told you. Bobkowski: Sure. So going back to the Future of First Amendment studies, we know from that work that high school newspaper journalists have a better sense, a better understanding of First Amendment rights, speech rights, than student who aren’t in newspaper. So I wanted to follow up on that and see if there were differences within journalism programs and with respect to the understanding and support of the First Amendment, and asking whether or not that translated to support for addressing issues of importance in the student media. And so the key question I ask, the first question students answer, is identify an issue in your school that should be addressed somehow — some issue that needs changing. Students identified — and these are classic things that we’ve seen for many, many years, even going back to Death by Cheeseburger — some students said ‘our lunches are not very good.’LoMonte: Dress codes, I’m guessing, were high on the list. Bobkowski: (Laughs.) Yes, students talked about things like bullying and discipline, and dress codes and certain policies on grading and so on. The key thing here is that these are perennial issues but they’re not trivial. These are the issues that students learn how to be citizens on. These are the issues that help students figure out how to make change, how to do citizenship. I asked students to identify the issue and then I asked them several questions about how likely or how confident they felt they could address the issue in their newspaper or online publication.So students who supported more First Amendment rights, so these would be things like — and these are questions from the Future of First Amendment studies — students should be allowed to express unpopular opinions, musicians should be allowed to sing songs with lyrics that others might find offensive, newspapers should be allowed to publish freely without government approval on a story. The more students endorsed those First Amendment rights, the more likely they were also likely to say I feel confidence I can address issues of importance in my student media. I think this underlines the importance and really sort of the conduit that First Amendment literacy has to feeling like you can make a difference, feeling like you can step out of line and say there’s an issue here that I need to address and I have a right to do that because the First Amendment protects that kind of speech. So that’s the First Amendment element of the study. The climate and the teacher support is also really interesting. I asked students a number of questions about the climate in their schools. Do they feel supported by their teachers? Do teachers step in when students are being disrespectful? Do teachers believe in their students? Students in schools that had a higher score on the climate — and I averaged the scores based on all the students who answered the questions from that school, so this is a school wide number — so schools that scored higher had students in them who felt more confident that they could address issues in their student media which tells me that this is not necessarily about the journalism program and the journalism teacher. It is about that but it’s a broader environment that we’re dealing with. If we want to make sure our students feel empowered, this has to be a school-wide effort by the whole faculty by saying to students, you know, your voice is important, your voice matters, we respect your voice. It’s not just the journalism teachers whose job it is to cultivate that.I did ask journalism teachers in their survey about how comfortable they were with controversial issues in their students’ media. I asked them things like, how frequently do you rewrite newspaper articles other than for style and grammar? How frequently do you emphasize to the staff that controversial subjects should not be covered in the student newspaper? How much do you worry that your students will publish controversial things in the paper? And so actually it was interesting to see that very few teachers said that they were heavy-handed about controversial topics. But overall those who were lower on this sort of heavy-handedness, their students scored higher on media civic efficacy — this sense that I can address issues in my student media. Those students scored higher than the students of teachers who are more heavy-handed, who are more worried about controversial issues in student media. LoMonte: Right and those two findings together just seem huge in terms of pointing us toward a roadmap for producing more civically-inclined and participatory students. Your findings suggest both that if the overall school climate is supportive and if the journalism teacher is him or herself supportive, then the students will have a higher feeling of efficacy in their ability to use media to advocate for social and political change. Bobkowski: Right and I think it directly supports the efforts that you do, working with administrators and working with advisers. It’s a multi prong kind of an approach and they sort of need slightly different types of information, slightly different kinds of support, but they have to work in concert for this to really happen.LoMonte: So I don’t know if you were able to discern this, I don’t see this as part of the public portion of the published findings but were you able to draw any conclusions based on comparing the Kansas and the Missouri findings to determine if there was a discernible difference between the practices of a state like Kansas with a student press rights statute and a state like Missouri that lacks one?Bobkowski: I have not fully analyzed that question, so I’m going to not speak to it right now. I think there’s more to sort of tease out there, so I don’t have that information. I do want to say that there were several questions that I asked students about their future citizenship and their future civic activities because I think this is really the — if this has no implications for later in life, then it doesn’t really matter, right? I mean it would be sort of an exercise in citizenship in high school, but those students who feel stronger about addressing their issues in the student media, they’re the ones who say, I’ll be more vocal in the future, I will be talking about political and civic issues on social media, I’m going to be following candidates and issues online and in person, I’m going to be volunteering, I’m going to be voting — more than students who feel less engaged and less empowered.LoMonte: That’s remarkable and I should say also that your study indicates that you found a positive correlation between the duration of participating in journalism and your sense of civic efficacy. That those who participated for a longer period of time also saw a corresponding increase in their feeling of effectively being able to participate as citizens.Bobkowski: That’s right. So the more experience you have, the more practice you have using these media tools, the more confident you feel that you will be able to make a difference. Which intuitively makes sense but it’s nice that it worked out the way we predicted. LoMonte: Well this is an incredibly timely publication because there’s a movement taking shape around the country right now toward enacting statutes like the one in Kansas and like the one recently enacted in North Dakota — the New Voices Act which conferred upon students a measure of legally-protected freedom greater than the bare minimum recognized by the Supreme Court in its 1988 Hazelwood ruling enabling students to talk about issues of social and political concern without undue concern that they’ll be either censored or retaliated against or that their teachers will be punished simply because the topic caused some dispute or difference of opinion. I can certainly see these findings going into a presentation to state legislators about why a law like that has a civic payoff to it, has an educational payoff to it beyond the newsroom. When we were presenting the New Voices legislation to legislators in North Dakota, one of the points that seemed especially resonant with them was not journalism for journalism’s sake, but journalism as a vehicle for civic participation. Many states, North Dakota included, has been wrestling with this and has been enacting measures such as mandatory civics exams as a prerequisite for graduation, and so it seems like we’re hitting the states at an opportune time when civic education and civic preparedness is front and center on the minds of a lot of policy makers. And I guess that’s a very long way of asking you, Peter, how do you see that these findings might in fact be used in application and do you see a second act to this? What would be the follow-on?Bobkowski: I think it’s important to emphasize that this, this is not just about civics — sort of textbook civics, it’s not: journalism helps you know who your representative is or where to go vote and things like that. It might do that but more than that, journalism is about civics in action. It’s about, how do you make things happen? How do you take issues and address them in your communities? How do you make people care about issues? How do you make them see that these are issues they should care about? I think it’s so much richer than something like an exam where you say, who are the founders of the Republic, and so on. I think that’s a really exciting part of this, of the study, and if that element can be used for the benefit of journalist, high school and college journalists in states around the country, I think that would be really terrific. In terms of a follow-up, you can always do a larger study and I think people might say well this is a very special case of Kansas and Missouri, and those are Midwestern states that often have very strong journalism programs and so on, so maybe those don’t translate to the rest of the country. So I would love to engage other parts of the country in this and see how it works elsewhere. One of the things I’ve done is we have a set of lessons on our website, which again is civicsandjournalists.org, a set of lessons that a social studies teacher, a journalism teacher and an english teacher put together about how to apply this, this idea of media civic ethicacy in your classroom, how to inspire that in your students and how to translate that into editorial writing. But also on that website is the survey itself, the survey that students took if you’re in Kansas and Missouri, so I would love for students around the country to be taking this so their teachers could see whether or not this holds in other parts of the country.I also think that there’s a need for understanding what happens at the adviser-student level. I think that’s where so much of this efficacy gets transferred. When a student says to an adviser, I think this is an issue, I want to address it, how does the adviser deal with that? What types of questions does the adviser ask, what advice does the adviser give? I think understanding that and giving advisers resources for how to deal with issues like this would be really helpful, especially for those advisers who don’t have as much experience or education in this as others, so I’d love to go in and observe what actually happens to high school journalism classrooms when those conversations are brought up.LoMonte: Absolutely, that would be a fascinating follow-up piece research. As we sign off, I want to give a shout out to the three students who worked with you on this research — Kayla Schwartz, Alec Voss and Becky Miller were the student researchers assisting our guest Peter Bobkowski from the University of Kansas. And again that website is civicsandjournalists.org. We certainly commend the study and the attached lessons to your attention and encourage people to share it widely. Peter Bobkowski, thanks so much for joining us on the Student Press Law Center podcast and thanks to all of you for joining us as well. There’s much more information about the rights of student journalists available online at www.splc.org. We hope you’ll follow us on twitter @SPLC and use our email address with any questions about your own legal rights, that’s email@example.com. Thanks for listening and we’ll talk to you next month.
Catherine Ross, law professor at George Washington University, discusses her new book "Lessons in Censorship: How Schools and Courts Subvert Students' First Amendment Rights." Frank LoMonte: Welcome to another edition of the Student Press Law Center monthly podcast. I’m Frank LoMonte, executive director of the Student Press Law Center. The SPLC is an advocate for the rights of student journalists in K-12 schools and colleges, and we maintain a library of resources of use to those working in student media online at www.splc.org. This is an unusually active time for student free speech rights. As we’re recording this podcast, John and Mary Beth Tinker of the famous Supreme Court Tinker case are winding down a week of commemorative activities in Des Moines, Iowa marking the 50th anniversary of their anti-war protest which led to the landmark Tinker Supreme Court case decision. Even as that is going on, petitions are being filed with the Supreme Court to review a case called Taylor Bell vs. Itawamba School Board. In that case, the Court is being asked for the first time to determine what the extent school’s discipline authority might be over student speech that is posted off-campus on their personal time. And finally up against all of that, a movement called New Voices is taking shape all across the country, partly under the sponsorship and guidance of the Student Press Law Center to enact state laws that reverse the impact of the Supreme Court Hazelwood v. Kuhlmeier decision and that restores some balance to the governance of student media. More information about that campaign is available at newvoicesus.com.Our guest today, Professor Catherine Ross, has a very timely new book out titled “Lessons in Censorship.” Professor Ross is with the George Washington University School of Law where she specializes in constitutional rights. She has three degrees from Yale University including her law degree. She was employed there as a professor prior to law school, she is a very widely quoted and published expert on the constitutional rights of young people which has been an area of speciality for her. We are so thankful to her for joining us and for publishing this really valuable new work which sheds light on the state of student First Amendment rights and how they might be deficient and how they might be improved.So Professor Ross, with that, thanks so much for joining us and please start us off by describing the premise of your book, “Lessons in Censorship,” and where your interest in this subject in student free expression rights comes from.Catherine Ross: Thanks Frank, it’s really a pleasure to be here with your audience and with you. The book is really at the intersection of my two long-standing scholarly passions — the First Amendment and the rights of minors. And at an emotional level, my father came here with his family as a teenager fleeing the Nazis, and he often talked about the day he became a U.S. citizen and how moving it was. He really took the promise of America very seriously and of the freedoms we get here that he had not had before, and I really absorbed that at a young age, at a very primal level.But the First Amendment is really the key to liberty and democracy because if we don’t have free expression, we don't know our rights, we don’t know when they’re being violated, we can’t dissent and we can’t demand change. Just as Brandeis said, the founders believed that liberty was the secret of happiness, and courage is the secret of liberty. To be happy as a human being is to have fully developed sense of who you are in the world — you need information and you need the right to make choices and to be different from other people, to not be a conformist. And it takes some courage to stand up and use your First Amendment rights as high school students and younger are doing every day when they fight for their First Amendment rights. So the premise of my book is that schools have abandoned one of the functions that we as a democracy have long counted on them to perform, which is to train students on the meaning of democracy — including the meaning of the rights guaranteed by the Constitution to learn why those rights matter and how to exercise them responsibly. And one of the ways you learn to do that is by experiencing them and living them in schools. We have to remember that schools are the government institution that has the most contact with average citizens, next perhaps to traffic courts. Between 85 and 90 percent of our children go to public school and this is our opportunity as a society to inculcate them in the values of democracy including the First Amendment. So I think that besides the precise focus of my book on speech rights in schools, my book is also about the peril of democracy if we don’t raise citizens who understand rights and what’s at stake.Unfortunately the opening vignette of my book involves a girl who was handing out leaflets in front of the school and one of the ironies was that she was handing out leaflets to protest that her friend had been suspended for making a video that she was opposed to bullying. I’m going to repeat that, opposed to bullying. [laughs] But she was suspended because a parent complained, which is often what happens. The friend who was leafleting was stopped by a school official who said, and I quote, “You lose all constitutional rights when you enter a school building.”LoMonte: [Laughs]Ross: That couldn’t be further from the truth. We have more than half a century of Supreme Court decisions saying that you absolutely have rights when you enter a school building, whether you’re a student or a teacher and our focus, of course, is on children. That quote also suggests to me — and I can say this in an informal setting like this conversation, though I don’t say it in the book where I’m a little more lawyerly — the idea that you lose all constitutional rights when you enter a school building to me is quite reminiscent of the sign at Dante’s entrance to hell. Lose all hope ye who enter here! And unfortunately that’s how a lot of kids these days feel about school and many of its aspects.Part of my book is to show the rampant violations of student speech rights and why they matter, but I try not be just in the posture of a critic or a finger pointer because I’m also very sensitive to the fact that educators need to be sure that students learn in schools, they need a certain degree of discipline and decorum, they need to protect students from what Justice Breyer once said is a potentially dangerous environment. Kids have no choice, they have to be in school. So I’m sensitive to some of the reasons for the violation of speech rights. One is the [area of law] is a very complex, very fragmented, and often hard to understand and apply. And one of the problems is that trial court judges often throw up their hands and even appellate court judges, and they say oh this is such a complicated area of law, how am I supposed to know? Well if judges are saying that, we can’t really expect a principal who’s not a lawyer to be fully on top of all the nuances. Some educators are justifiably confused.LoMonte: With regards to your observation about the way that lower courts interprets the First Amendment in schools, we’ve always been told that in the law of the First Amendment that if the law is unclear and if there is a close judgement call to be made, then the benefit of that lack of clarity must always go to the speaker — that if the speaker could not figure out in an exercise of reasonable judgment whether their speech was or wasn’t protected by the Constitution, then that’s the answer. The answer is that it is protected because there is a lack of clarity. But yet when the regulator is a school and when the speaker is a student, it seems quite commonplace now for all of the benefit of the doubt now to go to the government regulator which is quite different than First Amendment doctrine anywhere else outside of a school.Ross: That is a terrific point, Frank. In the school, that idea is turned on its head and the benefit goes to the administrator even if the court says this was a violation of students’ rights and we’re going to grant the student some relief like expunging disciplinary sanctions from the student’s permanent record, which is one of the major reasons students go to court, but we’re not going to really hold the school principal accountable because there was never a set of facts that looked exactly like this. So we’re not going to expect them to be able to extrapolate from the general doctrine and the principles of the law. And I take the view that we should be able to understand what the meaning of the law is and what it is trying to accomplish in terms of speech rights even in schools. Even when the law is clear though, we find that sometimes administrators just overlook it. So let me just say a few things about the current state of the law for listeners who may not be following your podcast every single month, although I know that many people follow them religiously. Where the law is clear — here is sort of the quick and dirty. If it's personal or what I call pure student speech governed by the famous case Tinker v. Des Moines, the school cannot censor it unless the school reasonably anticipates that the speech will cause material disruption of the educational function of the school. And then the Court subsequently carved out a few exceptions — the first doesn’t really come up that commonly because the school just about always wins: the school has the right to discipline and censor lewd speech, but it has to have sexual overtones. And there the point is the school can teach civilized manners of speech but it can’t censor the ideas. The biggest exception is Hazelwood v Kuhlmeier, which involves a student newspaper that was done as part of a class for credit, but the Court went far beyond what happens under close supervision and said that if speech is school sponsored, in other words, it appears to have schools’ incriminatory …. or as Justice Alito once put it very clearly, it appears to be the school’s own speech. Then the school can censor it at its discretion for any legitimate pedagogical reason. But schools almost always win and this is the legal standard, but there are two important arguments that can be made and perhaps aren’t made often enough.It must appear to be the school's own expression and they have to have a reason besides the fact that they don’t like the idea, except in a couple parts of the country where the appellate courts have said that schools can discriminate based on viewpoint when applying this type of censorship. And finally in the most recent case, the Court said the schools can censor speech that appears to promote the use of illegal substances like drugs unless the speech is political. One of the things my books does is first explain the law where it’s clearer, where the Supreme Court has not resolved an issue on which the lower courts are divided and I try to identify those questions and issues and then I try to pose a solution that's in keeping with the First Amendment goals of Tinker and the cases subsequent to Tinker that would bring some coherence to this area of law, so that principals will no longer be able to say, I have no idea.LoMonte: Well probably the single biggest issue making its way through the federal courts right now, one I touched on in the opening in reference to the Taylor Bell case, is the extent of schools’ or colleges’ punitive authority over off-campus internet speech on social media. That is speech not created using school devices or school time and I’m wondering from your perspective, where is the proper line? Where should schools’ punitive authority begin and end? Ross: This should be a really simple question but like so many other things in this area, it turns out not to be. Let me here divide very clearly the K-12 students from the university students. University students are adults and their off-campus activity should be fully protected unless there’s some kind of contractual arrangement or notice — I don't know, if its a contractual matter, a school might be able to say if you get this kind of scholarship, we expect a certain level of behavior from you no matter where you are because a scholarship is a privilege — but being kicked out of college for speech that’s protected on the internet seems really out of bounds.It’s a bit more complicated and intellectually very interesting when we get to the K-12 students. You’re right, schools have increasingly been asserting authority to discipline students for what they say off campus and often that takes place online. And sometimes they do that in response to directives from the state legislature where the statutes say the schools have to take care of people who bully each other even if the bullying occurs off-campus. Well that’s a violation of the First Amendment, but it's also statuted so the educators feel a little bit stuck between a rock and a hard place, and those statutes should be challenged in court.If we go back to the rationale of the Tinker case which first said there’s a lower or easier-to-satisfy standard for inhibitions of student speech. We have to think about the basic premise for having a special set of rules in K-12. And the court’s reasoning was there is something unique about schools that isn’t true in the rest of the world. One of the things is that students have to be there, as I said before, because of compulsory schooling laws. But also the court talked about the special environment of the school and the special mission that was entrusted to public schools. The special environment is in order for the activity that’s going on there, which is serving an important government function successfully, there has to be a certain level of order. And unlike other environments, people can’t just walk away. They have to stay there, they have to do the work of the school. Equally important the court said is the role of the school for training students for the life in a democracy and that requires open discussion. People have to get used to the marketplace of ideas but there has to be a line that won’t be crossed because of the school’s special environment. And that line has nothing to do with the ideas being expressed, that they might upset another student — it’s only when the words of the speaker are such that the school has evidence or a reasonable basis to say we’re afraid this will prove materially disruptive so we can’t perform our educational function. If that’s the reason for giving students less speech rights in school than outside of it, it clearly doesn’t apply to the speech students were using outside of school. And we have another concern with minors which is that parents also have authority over students. There’s a part of the day when students are in school and they’re subject to the authority of the state and there’s a part of the day when they’re at home or not in school, wherever they are, and subject to the parent’s authority unless they violate the law, in which case they can be taken to court as juvenile delinquents or status offenders. That was always a very clear division. And the Supreme Court has not weighed in on this and the lower courts are a bit divided, but none of them take the viewpoint that student speech off-campus is subject to school discipline as if it occurred on campus.The most the courts are prepared to say is if the speech appears to be aimed at the school, if there’s a close link between the speech and the school, and there’s going to be a likelihood of material disruption under a very strong level of evidence that’s perhaps even higher in some circuits than apply in school, then perhaps the school can discipline and the test would be Tinker, which is the test that’s most supportive of student speech and that would have to be resolved.You mention the Bell case which is very interesting because in Bell, which some people have said stands for the principle that schools can regulate off-campus speech, I think it’s a little more complicated because the appellate court sitting en banc and reversing the two decisions before it say that they thought Bell’s speech amounted to a true threat and true threats are not protected by the Constitution, by the First Amendment. They are a very special and very small small group of cases that lose their First Amendment protection because the harm is so identifiable.LoMonte: That would be certainly the most glass half-full way to read that case from a students’ rights perspective, that it came out of a finding that the school could discipline the student rapper for his off-campus video because it contains such explicit references to violence involving particular targeted individuals [at school]. One might hope that’s what the lower courts will take away from that case, rather than police all social media speech as if it was taking place on campus. Well our guest is Professor Catherine Ross, the author of “Lessons in Censorship.” Just with the couple of minutes we have remaining, Professor, I just want you to take a crack at what is going on with college campuses these days. We’ve just been through a series of protests on college campuses, chiefly at the University of Missouri, where we saw actual students getting involved and trying to restrain student media coverage, aided in Missouri’s case by some very vocal faculty members. There have been a number of colleges around the country where there has been pressure brought by students to defund student media publications they deem offensive to them. There seems to be kind of a moment here in history where free speech is not especially popular on college campuses. This pressure is coming from all ideological viewpoints, there’s no more operating on the left or the right. What is going on in college campuses and do you see a way clear of it?Ross: Well there are two points to that question. The first is I think a big part of that question is they didn’t learn about freedom of speech and the fact that we all take the risk to being exposed to views we don’t like, that’s part of the marketplace of ideas. Schools have been far too aggressive in trying to protect the most sensitive and to say if it's controversial or unpleasant or it's not tolerant, than you can’t do it at school and part of the problem with being a pluralist democracy is even the intolerant have rights. They are making a political statement, it might not be the one you and I like but they have the right to make it. So students have been protected from that. They haven’t learned the reasons why we need to allow controversy and they have been too accustomed to both administrators and parents coming into school and complaining. And saying that t-shirt offends me, the slogan on it is horrible, tell that kid to take it off, and the principal, taking a very short-sighted view of the immediate problem, says take that t-shirt off, instead of saying I’m sorry but that kid has a right to wear it. And maybe then having an assembly and explaining to everyone why people get to wear slogans that we may not like. So they come to college and they don’t really know enough about this, and I think that’s a huge problem.And then college administrators also have some blame to bear and instead of saying here are the demands that we can discuss with you without the risk of violating the First Amendment…. LoMonte: We’re going to have to end our conversation there and thank Professor Ross and encourage everyone to look up her book “Lessons in Censorship,” just published by Harvard University Press. And for those with more questions about the Bell case or any issue involving the First Amendment rights of students, please join us next month on the SPLC podcast and do visit the splc.org website if you have a legal question or concern or need help protecting your own First Amendment rights. Thanks so much for listening and we’ll talk to you next month.
Chris Carroll, director of student media at Vanderbilt, and Will Drabold, college journalist at Ohio University, speak about the future of college media and the challenges the field is facing. Frank LoMonte: Hi everybody, welcome to another installment of the Student Press Law Center’s monthly podcast, a run down of developments affecting the rights of those working in student media. I’m Frank LoMonte, director of the Student Press Law Center. The SPLC is an advocate for student voices at the high school and college level. We have educational and legal resources available free of charge on the web at www.splc.org, and we encourage you to contact us with any question on your legal rights. The easiest way to get in touch with us is by email, firstname.lastname@example.org.As we were recording this in the early part of the start of 2016, we’re looking back on closing the books on a rather forgettable year for those working in college media. Many highly qualified journalism advisers lost their jobs under circumstances indicative of retaliation, including Michael Kelly at Fairmont State University and others like him around the country. It was a year of continued economic turmoil for many college publications, many of which began reassessing the viability of publishing on a five-day-a-week basis, all of the same economic factors that have buffeted the professional media for many years are now coming home to roost for the student media as well. And our guests today on the SPLC podcast, Chris Carroll and Will Drabold, have convened on their respective college campuses in Tennessee and Ohio, upcoming summits looking at the future of student media, assessing the threats to the independence and continued viability of student media and the possible solutions. Chris Carroll is probably the most decorated man in the history of college journalism — if there is a position to be held or an award to be won, you can bet that Chris has it. He is a former both executive director and president of the CMA, College Media Association; he’s sat on the board of the Student Press Law Center, which awarded him a distinguished service award; he’s a member of the college advisers’ hall of fame; and he serves as director of student media at Vanderbilt Student Communications, where he also runs an initiative at the College Media Institute, which is involved in providing training opportunities and professional development for people at student media. The College Media Institute is the umbrella organization for a february event at the John Seigenthaler First Amendment Center that Chris will tell us more about.Will Drabold is with us, a very impressive college journalist, working at the Ohio University Post. Will is a senior journalism major at Ohio University in Athens, he’s the director of editorial initiatives at the Post, he has served as both a staff writer and also the campus editor at the Post, he’s had five different internships, including working on the investigative reporting team at the Seattle Times this past year. He’s also an active and avid digger for public records which we always appreciate. And like any good 21st century digital-first journalist, Will’s bio also includes his Twitter handle, which is @WillDrabold.Will and Chris, thanks for being with us, and I’m just going to throw this to the both of you but starting with Chris, talk about what it was that led to the idea of convening at the John Seigenthaler First Amendment Center in Vanderbilt this February for the Future of Student Media Summit — what were the issues, the problems, the concerns, that led you to believe that it was time to call people in the field together? Chris Carroll: Well, I should begin by giving credit to Will, it was his initiative, he contacted me, and had been confronting issues that he’ll draw attention to in Ohio that are true across the country. But he had the idea to have a summit to get folks together to try and come up with solutions and I was immediately in. That’s something I believe in as well, and what we thought what might really draw more attention to this is to tether it to an introductory one here so we can tackle as many topics in different regions of the country. So really, Will gets credit for this, at least in this iteration. It’s something that we tried in 2005 and we’ve tried off and on as we have dodged and weaved with the media industry to try to determine what our identity will be. And really that kind of centers on what the challenges are. You said in your introduction that college media is no longer insulated from the market forces and real world technological changes that have impacted commercial media and it’s hitting us with full force. And in many cases, sadly, I think there are peers of ours who haven’t really prepared well. These summits are really aimed at trying to find some common ground about what the problems are, and really walk out of the room with some starting points for solutions. Super quickly because there are really a range of issues that are confronting us and the things that are absolutely troubling that are in your wheelhouse, Frank, are the challenges to free expression and to actually having access to do reporting on campuses — specifically talking in reference to Missouri and Yale and Brown and a cascade of other places. That is something that’s frightening. The attitude toward press in general but student press specifically and how that has, I hate to say it this way, but has been devalued almost in society and on campuses as well — that has probably had a peripheral effect on people who have lost their jobs and fewer people who are there as advocates for the people who do what we do. That’s been a challenge but one of the ones I struggle with the most that you also talked about is trying to find our place in order to maintain relevance and the economic model that’s necessary to do that so that we can find both our community and find our practitioners and find the means to sustain this in a way that actually has positive impact. I’m convinced that the sort of heritage-legacy model of media and certainly college media is waning. So that’s a quick round up. LoMonte: Yeah. No highlight reel of 2015 would be complete without mentioning the demonstrations on the quad of the University of Missouri where very memorably, a communications professor called out and confronted a student journalist who was just doing his job in a very lawful manner, recording a historic event, actually, a protest by African American students that led to the ouster of the chancellor and the president of the university. It came quite close to violence against the student photojournalist for standing his ground and insisting on his First Amendment right to keep on filming. And Will, as a jumping off point, was what happened in Mizzou part and parcel of your impetus for wanting to pull together the Future of Student Media summit, which I should go ahead and plug, is April 8 and 9 at Ohio University.Will Drabold: Yeah, it’s definitely part of it and again I think it is a good jumping off point and it’s more related to what Chris is doing. I think the best way to think about this, like Chris was kind of saying, you have what’s happening in Vanderbilt in February, and that sets the stage, that talks about these First Amendment issues, that talks about these core reasons why we need student media. These are questions and topics that we need to address and we need to talk about, and I give many kudos to Chris for putting that on and wanting to have that conversation. What we’re holding at Ohio University in April, which Chris has also been supportive of, is basically looking at two areas: How can student media adapt on the business model front? How can we make money? As you said, we’re cutting days of print, many places are no longer five days in print, some are once a week, if at all, some are online only. So looking at that and also looking at, how can we engage with our audience? Our audience is college students, they’re on their iPhones, they’re on their mobile devices, they’re on their tablets, and interestingly even though we’re college students and we’re on those things too, many of us face challenges in terms of figuring out how to produce content for those platforms that can engage our peers. Really, this is the future of student media by looking at why student media is necessary, why we need it, why it serves such an important role and what role it does fulfill, and also looking at how can we keep it around and how can we keep it relevant by engaging with the different audiences on these different campuses.LoMonte: Well, we mentioned the economic issues and we’ve mentioned some of the legal issues including the unfortunate string of retaliatory removals of journalism advisers that plagued us in particular in 2015, but the issue that seems maybe the most difficult to solve because it’s not one solely within the power of those working in journalism is the audience issue. We saw that play out in this year quite memorably at a number of campuses where the audience actually rebelled against student media — Missouri might be regarded as one example of that, where people on the campus began to see the student media as an adversary and as an antagonist. So I wonder if you could both, maybe starting with Chris, address that, the issue of the relationship with the audience and creating a greater sense of the student media as an asset on campus rather than an adversary.Carroll: Yeah, I think what we’re seeing is just this evolution of generations of folks who have a different consumption and different approach to media when they arrive on these campuses. It’s reflective in the larger culture where media is demonized for political gain, we’re seeing that in this political campaign a great bit. I think that it’s a misunderstanding of the role and it’s hard to break through when you have a generation — the Pew report came out just a couple of days ago that talked about how from 2005 to 2010, millennials, the percentage of those who valued the impact of news media on society fell from like 40 percent to 27 percent over the past 5 years. So there’s fewer people who I think view the press, the student media, as an institution of good. I think we’re fighting that, and part of the answer to that may be a recognition that some of the brand orientation is dismantling where the individual stories, the work itself, I think is still powerful and it’s finding its audience, but the institutions are viewed with skepticism. It’s kind of cooked into the culture for some of these students I think. There are certainly other overtones here that relate more to some other societal issues, but I think with media specifically there are some automatically built-in antagonism almost with some of these students.LoMonte: Will, you have a ground level on this. You’re a student and you’re surrounded by people of this generation. What are your thoughts about the attitude of the campus audience toward the student media, whether they still value student media as a public good and what you see being done out there to build a stronger audience relationship?Drabold: Yeah, I think what Chris said is excellent and just to piggyback off that, I’m no stranger to the issues with the student government, we’ve had that at Ohio University, with the administration, with some of the faculty. But I think you make a good point. You have an interesting relationship with your peers, your fellow students, that isn’t necessarily as positive as you would hope. And it seems really difficult sometimes to get them to take an interest in what’s happening on student media. And I think what Chris said is absolutely true and obviously backed up by facts on the issues of millennials and college students no longer having the kind of trust that their parents did in the media, but I believe, as a 21-year-old consumer of media on the campus and in general, that a big part of the problem and something we want to address at the summit in Ohio University is how are we engaging with this audience of college students and are we doing it well? Is print the best delivery model? I’m not saying it’s not, there are people who argue it is, but you need to rethink it. What can outlets be doing on mobile, what can outlets be doing in general, digitally? Chris hit on a really powerful point, there is still really good story-telling going on in college campuses, how do you get those stories in front of students? How do you show those students, hey your peers wrote this. This isn’t biased, this isn’t aggressive, this is just good, honest journalism that is reporting on an important campus issue. I still believe that if you get those stories in front of people, they create buzz, we see them explode on social media all the time on our campus and elsewhere, but it’s a matter of getting those stories in front of the students and then like Chris said, building the brand and having students recognize that wow, this is a place I can come back to for compelling journalism that’s relevant to me. I think that the need is just as great as ever for journalism that matters and journalism that connects with an audience. We have to think about how to get that journalism to connect with the audience in ways we’re not used to thinking about it, and that’s something I think we really want to address at both Vanderbilt and Ohio University this spring. LoMonte: Well starting with Chris, just walk through the mechanics of how you envision this. I know that you said that there are spaces for 100 participants to come, who are you hoping will come and what are you hoping will come out of this two days? Carroll: Right, well the event that we’re having in February is limited to 100 because of space and we’re asking that no more than three folks per school come. We’re inviting speakers to our iteration of this that are non-traditional, [non] heritage-legacy newspaper media people on purpose because we’re really looking more to some of the innovative, progressive fringes, some folks — well, some not so fringey I guess, but with some fringe ideas that are being adopted — like Will Federman [Audience Engagement Editor at Fortune Magazine] and folks from the Awl, John Herman, who if you read Content Wars at the Awl, is pretty fantastic. The hope is that it’s a collaborative discussion, if you can work through some of these problems and apply some new-age thinking and see if at the end, there are some suggestions that might have some action items that we can test. So we’re hoping for students certainly and some advisers and anyone who’s eager to open their mind to some experimentation and take some risks.LoMonte: Well, I should mention that Will already has a partial agenda up at futureofstudentmedia.com which has information about attending, and you’ve got folks who are both presently and in the recent past involved in college media, including some of the programs like the University of North Carolina and the University of Oregon who have been known as some of the leaders in innovation and experimentation. So, Will, same question to you, what are you hoping to get out of these two days, April 8 and 9 at Ohio University?Drabold: Thanks for that, I would just say again that the futureofstudentmedia.com is a really good place to go for information on this. Very similar to what Chris was saying — we want people who are the editor of their college newspaper, magazine or website, people who are faculty advisers or professional advisers to student media. Business managers too is a key, if you’re a business or sales or advertising manager for a student outlet, we want you to come. And again what Chris was saying, we really have gone after people who have a track record of innovation within college media. There are some people who have done work mostly in the professional world. We have someone coming to talk about targeted social media advertising and managing the ad spend of local businesses. For example, how can college publications tap into some of that money? He doesn’t have a college background per se, but some of the other people, like Ryan Frank who was the publisher for a couple years at the Daily Emerald at the University of Oregon when they basically blew up their model and went a completely different direction, what did he learn and what can you learn from that? Rachel Bowers, who was the editor of the Red and Black at the University of Georgia when they were doing the same kind of thing, what did she learn and what can you learn from her? That’s the kind of flavor that we want to bring and it will be a combination of panels and sessions of these people, all the documents that they bring and all the things that they discuss will be on the website, you’ll be able to download them and look at them with them and then take it with you. The goal is really to come and attend and take something away from it that you can apply.I should also note that the university is paying for some cutting-edge research both on audience engagement and on advertising. Anyone who attends the summit at Ohio University will get a free copy of this report, I can tell you that this a deal because it will have information about how current college students at campuses all over the country will actually read student media, do they read it, do they not, and many other questions and interesting data points, combined with research conducted by a national advertising firm on where are the advertising and college media markets spending their money and are they spending on college media? If so, why? If not, why not? And these are going to have detailed takeaways in this report for people who attend the summit to walk away with. So we’re really trying to do everything we can to get people to attend — like Chris said, about 100 people is what we would like to bring. Again we want students and professionals and faculty and we want a good mix of people who are interested and interactive and create a really aggressive, forward-thinking discussion of these topics.LoMonte: Well, I’m curious about Chris’s perspective from someone who has been in this field for a couple decades now and has watched the evolution of this industry to where we stand today. I’m hoping you’ll say something optimistic. [Laughter] Do you have anything optimistic from your vantage point in looking at where college media as an industry is positioned? Will we be looking back in 20 and 30 and 40 years and saying, thank goodness we survived the worst of times and we’re much better off now? Or will we be looking back and saying we only thought it was bad in 2016?Carroll: Gosh, it’s such a definition of what is bad. I just think it will be very different. I think unquestionably, we saw this coming — many of us thought we did 10 years ago, and much of what we thought was going to happen did, and we were surprised by a lot of other things, and some of it accelerated. I feel as though we passed the tipping point in some respects with the things we’re all comfortable with, like print newspapers.I just cannot, forgive me people who love print, fathom a campus that has folks 2 years, 3 years, 5 years from now walking around picking up print newspapers. So it’s just going to have to be a rethinking. But I’m incredibly optimistic about it because there’s just such an abundance of journalism now, there's such an easy access to storytelling. Some things are going to have to wash out, there’s unquestionably going to have to be a leveling, it’s not going to raise all boats. But I think there’s a lot of smart people on these campuses who will find a way to still have incredible impact, it’s just going to look very different than it does right now. I don’t know if that’s the optimism you’re after, but i certainly hope to still be working with really bright students, doing some innovative things, well, not 20 years from now, but several years from now. I think some of it has yet to be imagined, I really do, how it will be delivered, how it will be consumed. But I am optimistic. LoMonte: Well, we gave the website for the April event at Ohio University. Chris, how can somebody get involved in the Feb. 26-27 event if they want to be one of your 100 attendees. Carroll: Sure, just visit collegemediainstitute.org. That is the umbrella site for the College Media Institute which is really just an outreach training arm from Vanderbilt Student Media. That event is there, you can sign up and there are also some workshops that will be happening simultaneously that weekend if you have more students than can fit in our summit who can learn some other things as well. We have a couple of exciting ones, I hope, if we can confirm them in the next couple of days — folks we will bring that have a unique perspective to share.LoMonte: Well, I want to thank Chris Carroll and Will Drabold for organizing these important events and starting an overdue conversation. I’m personally looking forward to attending and I’m going to throw out one more website as well, for those who are concerned about the welfare of college media. The New Voices campaign to provide enhanced legal protection in states that lack it currently is off and running in 2016, bills have been filed already in New Jersey and Missouri and are in the works in a half a dozen states at least. NewVoicesUS.com is the gathering place for the advocates in the student media community working on this iniative and we encourage those of you concerned about the rights of student journalists to visit newvoicesus.com and if there’s not a movement going on in your state, contact the SPLC about starting one. So thanks again to Chris Carroll from Vanderbilt and Will Drabold from Ohio University. I encourage you to follow the work of their respective future of student media summits and to contact us at the Student Press Law Center with any question about your rights as a journalist or journalism educator. That website is www.splc.org, email is email@example.com and you can connect with us on Twitter @SPLC. Thanks so much for listening and we’ll talk to you next month.
Chip Stewart, a professor and associate dean at the Schieffer School of Journalism at Texas Christian, discusses his research on live streaming apps like Periscope and MeerKat and how they affect the right to privacy and the right to record. Frank LoMonte: The intersection between public’s right to know and public’s right to privacy has never been a hotter issue in state legislatures across the country. Lawmakers are considering a variety of bills directed at things like access to police body cams, or access to footage from drone cams flying over people’s private property. These legislative proposals bring into collision two values that we hold dear: the public’s right to know and the ability to keep one’s private life private. I’m Frank LoMonte, executive director of the Student Press Law Center, thanks for joining us for another edition of the SPLC’s monthly podcast.We’re here to talk about the collusion of privacy rights and newsgathering rights, specifically as it involves recently introduced technology that enables people to live stream events. Our guest is Daxton “Chip” Stewart, Chip Stewart is a professor and associate dean at the Schieffer School of Journalism at Texas Christian University, TCU. We’re so delighted to have him here, Professor Stewart is an attorney and a longtime journalist who has been the head of the AEJMC’s law and policy division, he tweets prolifically about media law issues, his handle is @medialawprof and you can follow him there. We also encourage you to follow the SPLC which is just @SPLC on Twitter, and with questions about your rights as journalists to gather news in public spaces, you can visit the splc.org website and find a variety of resources for your own guidance and self study. Chip Stewart is the co-author of a recently-published paper along with Professor Jeremy Littau of Lehigh University, the title is Up Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record. This paper was recently published in the Journalism and Mass Communications Quarterly, a scholarly journal that is followed by people in the media law field, so we are delighted to have Professor Chip Stewart to address the rights of journalists when they are using technologies like Periscope to bring the public live news from the scene of a news event. Thanks so much for being here for this discussion, Chip.Chip Stewart: Thanks for having me, Frank.LoMonte: For those people who haven’t yet used one of these technologies — although it feels like we’ve been talking about Periscope for a long time, it was really just introduced and rolled out to the public in March 2015, so not even a year ago. Give a quick explanation of what are called MSVT technologies for folks who have not used them. Stewart: Right, and this is a term that Dr. Littau and I put together to try to think about not just those tools in particular, but what may be to come: so mobile streaming video technologies. And these are technologies that allow us by a smartphone to record and livestream from that device to a worldwide audience so anybody can — and it will be even better when integrated with twitter so your followers get a link saying you’re live streaming now — [use] technologies that allow you to take your phone and basically become a live broadcaster. And you see it with Facebook Live and other options now — options that have come up since we originally did the paper and we anticipated would be coming ahead. We wanted to be thinking about what that may mean for citizen journalists, anyone who may be committing acts of journalism.LoMonte: Whenever there is a new innovation of newsgathering technology, policy makers look to laws governing the last innovation in technology and often were guided by that body of legal precedent that has built up around last year’s technology. So I’m wondering if you think that the courts are going to be guided by the law that involves things like television and radio broadcasting because out of all the things that are out there, I suppose you could most closely analogize this to something like a live shot from the scene of a news event that’s carried on television — something like the ubiquitous police chases that we see every time we turn on a television in Southern California. Stewart: Right, yes. Well it’s interesting how courts handle this because there actually is not a whole lot of jurisprudence out there or lawmaking even about live broadcasting as a separate thing. Usually it seems like the courts come at this and legislatures come at this from kind of a body of law area so this is one that usually winds up in the privacy context. They say oh the potential harm here is a privacy thing. It’s not a FCC thing. It’s an actual broadcasting issue and indecency, that’s an FCC thing, that’s a regulatory thing. When you actually talk about invading people’s privacy or potential harm to people, courts have, in the past, when it comes to live broadcasting, said oh this is like other privacy issues. The challenge with that is that the body of privacy law is really kind of a mess and it has been for certainly the last 15 years, but even the last 50-100 years.What gets interesting on this, and what Dr. Littau and I did, is we went into what the technology is and then we started to say, well what currently existing buckets of law does this fall into? And we saw these two main areas, the tension you mentioned — this is potentially a privacy invasion for people walking down the street who did not expect they were going to be live broadcast around the world and we didn’t have the technological capability to do that easily before. So it’s about privacy in public — what we would think of as being in public. It’s also about the right to record in public. And because we didn’t have the technology before to do this very easily — it’s not like people walked around with live remote access broadcast satellites in the 1960s or even 1990s, this is a new issue because this technology has not presented these capabilities before.LoMonte: Well, talk about the privacy issue a little more — normally we assume that when someone is walking down a street or enjoying an amusement park or a stroll on the beach or otherwise exposing themselves to be seen by other pedestrians, total strangers, then that person has waived any claim of privacy and the ability of someone to photograph or video-record their activities has not … depended on the size of the audience. If I happen to be unlucky enough that my sunbathing takes place in front of an ABC TV news camera, I could wind up on the evening news seen by millions of people, or I could wind up being in a family photograph that’s seen by five people. And in the eyes of privacy law, it hasn’t really mattered that much. Do we think it's going to matter? Is this technology sufficiently game changing so that courts might be tempted to craft new and different privacy standards?Stewart: Yes, I think it is. And to explain that a little bit, the difference we’re talking about here is just what you talked about, it’s about scope. That if in the past — and these damages were rare that people would have a really unfortunate photo of them taken in public. There’s a case in Alabama in the 1960s where a woman was at the county fair and her skirt blew up and a photographer snapped a photo of it and then they ran it in the newspaper the next day. And the Supreme Court of Alabama said that is a privacy violation. That is an intrusion upon her expectation of privacy, she should be able to collect damages for it. Even though she was in a public place and had no expectation of privacy there, they thought this was so damaging to her notions of privacy. But that’s an outlier. those cases are really rare. You get the somebody would have …. like a television camera would be there at the scene of an accident and they’d be overhearing conversations between the emergency personnel and the victim, the person who’d been injured. And a court said yes, that would be intrusive, it would probably be going too far to broadcast that sort of thing. But the technology wasn’t really there to allow these to spread at a mass level. And also I think you had more time to think. You had time to stop and think, are we really going to publish that photograph? Are we really going to allow that conversation between the EMT and the victim to go on air? I think ethics took care of a lot of that, it just didn’t happen. We don’t have that pause anymore. That right now, the communication technology is so instant, you could live stream and everyone could see it right now, and there’s no pause, there’s no 5 second delay. You don’t know what’s going to happen until you already captured the horrible thing and it’s already had the chance to spread and then be picked up and then be archived. I noticed this when i was playing around with Periscope for the first time. I was broadcasting my kid’s soccer game, my teenage daughter. I was saying, I’m playing around with technology, what could happen? Well, of course the internet’s a horrible place, and a girl gets kicked in the stomach with a ball and a bunch of hearts float up and people are giving all sorts of attention to it, and then they come back and give more hearts to it, and I thought this is awful. This is a horrible outcome to this! But I sent it out live, what was I going to do?LoMonte: That is the distinction between the case you alluded to from an earlier generation involving the unfortunate woman whose skirt blows up at the county fair — that there are really two decision points there, there’s the decision point whether to snap your shutter and then there's the decision that comes a half day later when the newsroom decides whether to publish that. But a live streaming point really removes that second decision point: the decision to photograph is the decision to publish and there is no ability to interpose any editorial judgement there. Stewart: Exactly, and what’s interesting is that legal scholars in the 1990s saw this coming. They said the intrusion tort is too weak, the publication of private facts is really too weak so they’re saying everything that’s public is really public, there’s no expectation of privacy. And they anticipated that we’d be getting into constant photography, constant recording of the public space, that we’re not going to have a remedy that people behave badly here if we don’t do something. Nobody did anything. The law stayed the same, the courts reviewed it the same way, and now that’s coming home to roost. The courts are going to have to address these where people say, I have been harmed by somebody’s bad action, in a way that everybody should see that nobody should see my worst day get broadcast around the world. And it’s going to be hard to dig out a remedy because the courts have been so resistant, so reluctant to grant any rights of privacy in public places.LoMonte: Right. Well, one can also see — and this is a good point there for the practitioners who are listening to us today — that a good bit of the potential exposure could be how these videos are packaged and presented as much as in the content themselves. You think about a tort like false light where a person can be accurately filmed or accurately photographed in a truthful fashion but is framed in a deceptive or misleading fashion to suggest unflattering facts that are untrue. Stewart: I think it’s going to take some rethinking of the doctrine to privacy. Which really, the internet and other tools in the smartphone are making us do that anyway. Sometime the best remedy here might not be — and this is where we get into the conclusion of the paper that’s coming out — is that the remedy might be more giving people some more ability to take things down in the terms and conditions of MeerKat and Periscope rather than going to court over those things. It doesn’t do you a whole lot of good to keep something private or obscure so the whole world can’t see it if by bringing a lawsuit about it, you just bring more attention to it. A remedy of going to stronger terms and conditions and really take the market pushing MeerKat and Periscope to say, we need to listen to the people who may be harmed by this. And say you know if someone calls and says please take this down, it’s really hurtful and offensive to me, we will respond to that on a user’s rights thing, rather than a legal thing. That might be a better remedy here. The privacy law is such a clunky way to handle this kind of problem that I’m not sure it’s a great one. And what we haven’t talked about is that it already pushes up against something we already have, which is this right to record and photograph in public places. How could somebody claim privacy when I’m out there asserting a First Amendment right in public places that courts are gradually identifying more closely to the First Amendment. LoMonte: Right, and we should mention, this is an especially timely conversation because of a very recent ruling that just came out in February 2016 from a U.S. district court in Pennsylvania. This is the Richard Fields case, and in the Richard Fields case, a federal judge deviated from what has been the growing consensus of the federal courts and found that the First Amendment did not protect the right to photograph police officers in a public space absent any indication that the person doing the photography was engaging in criticism or commentary in conjunction with the photography. In other words, the photography and the video-taking was not itself regarded as expressive conduct protected by the First Amendment. This is a deviation from what we have seen in other courts, there have been federal court rulings in Boston and Illinois appeals courts in recent years telling us that the federal courts recognize a heightened public interest in especially how police officers use their authority in public places. So this case undoubtedly will be appealed to the federal court circuit and we’ll see whether the Third Circuit falls in line with the Seventh and First Circuit precedents that have come in recent years. One of the things that was unique about the Richard Fields case was that Fields was not a journalist or even necessarily indicating an intent to broadcast the video that he was taking, it was actually not especially clear how he was going to use it, he’s an activist against police misconduct. I suspect that a journalist who went out into the field with the express purpose of gathering news as an adjunct of sharing it with a widespread public audience would be standing on much better First Amendment ground. Stewart: Yes, I would like to think so, but these cases are worrisome. That I guess in the Second Circuit and the Seventh Circuit where we look at some other decisions that have come down, Glik v. Cunniffe, I don’t think that was a journalist per se either, that was someone who wanted to record police, but even then the courts said: this is constitutionally-protected activity, at the least, recording police activity in public places is a First Amendment activity. We’ve seen courts go even further. This does get a bit messy because we start talking about what’s the difference between recording video, recording audio, or just photographing and I haven’t seen it very clearly whether some courts make that distinction too much or now. There’s some discussion about the ACLU case in the Seventh Circuit about the wiretapping law. A case I like to point to that hasn’t gotten a lot of attention is ex parte Thompson out of the Court of Criminal Appeals in Texas, that went beyond all of that and said taking photos in public places is a constitutionally-protected First Amendment right. It didn’t have anything to do with police officers, they said going in public places and taking photographs is a creative activity protected by the First Amendment. I don’t know if that logic would hold up on appeal, but if you haven’t read that decision, it’s a very strong one that comes out and establishes this creative activity. You see that in the background of ACLU v. Alvarez Seventh Circuit and Glick v. Cunniffe in the Second Circuit.I think that’s how courts are going to move on this, that they’re going to say: the people have a right to do this because it’s creative activity. Criminalizing it is borderline absurd. If you’re in private places, I get that a bit more. You think of the Mitt Romney 47 percent speech which was recorded in a private gathering — I could see more liability, maybe criminal liability in that, where there is more of an expectation of privacy, even if it’s of extreme public importance and interest. But doing this in public places, it seems like we open up everyone with a smartphone to potential criminal liability for just doing normal smartphone things. It’s absurd, if we allow that, then we’re allowing selective prosecution for police enemies, which is a bad outcome for democracy.LoMonte: We should certainly caution journalists that it is both a legal and potentially ethical issue to engage in this surreptitious recording or livestreaming certainly of events that are private in nature without disclosing that the video is taking place. One could be, depending on the state, charged with wiretapping or eavesdropping, which potentially carry criminal penalties, and there are real ethical considerations about not disclosing to those you are dealing with as a journalist that their activities are being taped, to say nothing of live streamed. One would certainly caution against doing that in a place where there is a genuine expectation of privacy. Not the street corner, not the sidewalk, but a controlled access event that would not be accessed by foot traffic.Stewart: Yeah, and that’s where the livestreaming again creates an area of concern is that the few second or few minute space between when you record something and when you distribute it is gone.There are no ethical questions to be made, the technology forces the ethical decision upon you — when you’re doing it, it is live and going to be broadcast. And I worry that that may lead to some reactive legislation — people saying well, not only can you not photograph or record, you can’t livestream from here and they make the case on the ground of live streaming that this is why people can’t be trusted with technological devices so they can’t even record things. They can’t even get out the smartphone, that’s a crime.LoMonte: Talk a little bit about the copyright issues that might arise as well. We’ve just seen a few hints of this in things like people using these live streaming applications to rebroadcast pay per view boxing matches or other paid subscription events. Talk about what you might envision as the copyright liability of somebody live streaming a ticketed or access controlled event.Stewart: Yeah, I do think there is real liability issues there. No, I think you probably face more DMCA takedown than actual copyright infringement lawsuits on this sort of thing unless you’re a big purveyor. I’ll admit, my first widespread use of Periscope as a consumer was during the big boxing match last year, the Mayweather vs. Pacquiao fight. We were out camping out in the middle of nowhere, me and a bunch of other guys. We didn’t have any way to broadcast it so we were scrolling through a round here, a round there of the fight, because people were livestreaming it, and it was whackamole. A stream would come up, it would get shut down, a stream would come up, it would get shut down, because Periscope was trying to prevent that from happening, they don’t want to be caught up in copyright liability. For journalists and for citizens, I think the caution should be there, if you’re recording something that’s going to have a copyright in it. You think of live music at a concert, think of recording definitely something with a television or a movie screen, if you go to the Force Awakens and livestream that, that’s going to create some problems. Even if you’re there in a journalistic capacity, you don’t want to get Disney lawyers involved. Sometimes those lawyers don’t mess around — they don’t mess around the DMCA takedowns, they go ahead and file the lawsuit because the takedown isn’t going to be enough to discourage that type of behavior. I’d be cautious anytime there’s a performance of something, even if it’s live, because there’s going to be a copyright in the underlying music and the event itself and that sort of things. I wouldn’t worry so much about sports events if you’re out there live-recording because you can’t copyright the live event itself, however, I would be concerned if you got a ticket that said no live recording, no live broadcast, because they might throw you out of the stadium. We’ve seen different leagues like Major League Baseball saying, please do this and the NHL saying, please don’t do this or it may have been vice versa. Some encourage live streaming and some don’t want it at all. NCAA, I’m guessing, doesn’t want it at all. So it’s being cautious about using that as a substitute of showing what’s happening in the actual game. If you’re on the sidelines doing some sideline-reporting and broadcasting and catching the crowd that’s probably fine, but not as a substitute for play-by-play of the actual official broadcast.LoMonte: Sure, that’s probably an important distinction. The more that it looks like your livestreaming is actually providing the event itself to people rather than providing the event as incidental to your own journalistic commentary, then the less likely it is to be protected and the more likely it is to be copyright infringement. There’s certainly a difference between attending a Bruce Springsteen concert where you’re standing outside the event and the sound happens to be audible in the background as you’re interviewing passersby, as opposed to holding up a camera and telecasting an entire Bruce Springsteen song from inside the event. The latter is certainly going to get you both ejected from the facility and potentially lead to copyright infringement liability.Stewart: Exactly. And in some cases, the artists don’t care and in fact they encourage people to record and broadcast and distribute on their YouTube channel. I took my teenage daughter to see Pentatonix, which is an a capella group, and they’re very big on engagement with their audience. They were encouraging people to take photos now, record this, share it on our YouTube channel. So some artists might be fine with it. But you probably want to wait for them to say, ‘it's okay to record this and we encourage you to share this’ before you do that.LoMonte: Sure. In the spirit of sharing, we will post a link of Chip Stewart’s and Jeremy Littau’s excellent paper, Up Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record. I’d like to say thank you to Professor Chip Stewart, associate dean and professor at the Schieffer School at TCU, really appreciate your continuing contributions to the evolution of this legal field and encourage you both to follow Chip Stewart @medialawprof and also follow the Student Press Law Center, we’re at @SPLC, we have presences on Facebook, Instagram and now Snapchat (studentpresslaw). Our website is www.splc.org, you’ll find guides, tutorials, lessons and other information about your rights as student journalists. Thanks so much for listening, and we’ll talk to you next month.
Judge Thomas Jacobs, an expert on juvenile law, discusses his new book, "Every Vote Matters," and why it is so important to inform young people on the legal system and get them engaged in our democracy.Frank LoMonte: Hi everyone and welcome to another monthly edition of the Student Press Law Center’s podcast. I’m Frank LoMonte, executive director of the SPLC. The Student Press Law Center is a nonprofit advocate for the rights of student journalists everywhere. We’re online at www.splc.org, on Twitter @SPLC, and we’re reachable by email at firstname.lastname@example.org if you have any questions at all about your legal rights to gather and publish news.Well, it could hardly be a more timely subject to talk about youth civic engagement as we’re sitting here in March 2016 in the throes of an unprecedented, in many ways, presidential campaign. One that is being regarded as the most vitriolic in modern history. Young people are participating in high numbers in support of certain candidates, but there are persistent questions about whether our education system is doing enough to prepare young people to take ownership of their democracy. Our guest today, Judge Thomas Jacobs of Arizona is an author of a series of books published by Free Spirit Publishing that highlights the legal system for young readers. They are targeted for young readers age 13 to adults, and his most recent book is just out: Every Vote Matters, written in partnership with his daughter Natalie Jacobs, who is also an attorney. Tom Jacobs served as assistant attorney general in the state of Arizona for 13 years. After that, he was appointed to the trial court in Arizona where among his assignments was serving as a juvenile court and family court judge until he retired from the bench in 2008. He also taught juvenile law at Arizona State University. We're so happy to welcome Judge Jacobs to the podcast to talk about the book Every Vote Matters and especially about how educators can be using it to get young people more excited about their own legal rights. So thanks for joining us, Judge.Thomas Jacobs: You’re welcome Frank, and thank you for this opportunity.LoMonte: Well, start us off a bit by talking about how your experience — in particular your service as a family and juvenile court judge — got you interested in this current line of work, which is demystifying the legal system for young people.Jacobs: I did start when I was appointed to the court — my first 13 years of practice, I spent as an assistant attorney general in Arizona representing a number of state clients, state agencies. I worked for the Department of Corrections for a year or so and then did criminal work for an additional three, prosecuting cases in different counties around the state and also doing a fair amount of appellate work. Then there was an opening in the child welfare position in that same office and that interested me and I was fortunate enough to make the transfer to that position so that led to my next nine years of representing Child Protective Services as my sole client and handling cases statewide for Child Protective Services. And that opened my eyes to the whole area of students’ rights, children’s rights, and I noticed, this was in the late ‘70s and ‘80s, a lack of information in the written word for people coming to court, for anyone curious to — do these people even have rights? What is the judicial system about? And one thing led to another and I was fortunate to find Free Spirit Publishing in the mid-90s, an education publisher out of Minnesota, and I wrote my first book, which was just basically an answer to many of the questions I was asked every day in my courtroom, by not only the juveniles who were appearing before me but by their parents, by law enforcement, by educators — what exactly, what rights exist? What are the rights and responsibilities of juveniles in America? And I did some research, didn’t find anything really on the very specific subject on their rights and responsibilities. So Free Spirit put the book out and I’ve written a number — Every Vote Matters, the most recent one, is the fifth book I’ve written for Free Spirit in their teen law series. So one thing leads to another. LoMonte: There’s a theme that runs through the book. It starts with the title, Every Vote Matters, and you highlight throughout the book how votes, particularly on the U.S. Supreme Court have proven to be throughout history, at times decided by a single vote which dramatizes to young people the value of that vote. And one of the things — by the way, I love this book, I couldn’t recommend it more highly — one of the things I really liked about it was it doesn’t talk down to young people, and it doesn’t sugar coat the seriousness of issues. There are some very adult topics in here, things like the death penalty for juveniles, strip searching kids for drugs that are not sugar coated, that are dealt with in a very serious and forthright way, even though the book is written for ages 13 and up. But it’s very respectful of your audience, which I really like and think is somewhat unusual, frankly, in the way that we message to young people. But please do talk about the concept of Every Vote Matters and how that is presented throughout the book.Jacobs: Sure. Thank you. What sparked the idea was I’ve got a number of other books out that I write for a legal publisher and my responsibility over the years has been to provide annual updates to law books i’ve written for judges and practicing attorneys. And in the course of doing that, I’ve noticed that from 2005 on, a number of 5-4 decisions that are being issued by the Supreme Court. And with a little research, I found out that there are well over 1,000 decisions from the U.S. Supreme Court decided by one vote — in matters important to all Americans in their daily lives. And putting that together with research on the other books and watching the election cycle in this country and reading the statistic in 2008 that about 40 million Americans are not voting in that presidential election just opened my eyes as to why? What are the reasons for this? When by one vote, nine people out of now 320 million Americans make these decisions, and many of their votes come down to 5 to 4. Then I noticed in 2012, the number increased. Approximately 90 million americans did not vote in that election. Eligible voters! About 20 million were registered voters who didn’t get to the polls. The other 70 were people who didn’t bother to register or vote. So that prompted my daughter and I to take a close look at this. And Natalie and I worked on this book for the past five years. As you mentioned, it did just come out last month, and the timing is just certainly not planned. It was planned for this election year, but not with what’s going on in our presidential election this year with the primaries. The purpose of the book and the title is really our response to everyone — not necessarily teenagers, because it’s only the older teenagers, 18 and 19 that can vote, with very few exceptions to that in some states or areas where if you’re 17, or some states where you can register at 16, vote at 17. But for most of the country, you turn 18 and then you register and hopefully vote. But this is our answer to all those people who say, why bother to register? My vote doesn’t matter, it doesn’t count.That’s the line that we kept in mind, that statement that we kept in mind throughout our research. We need to point out and show people, educate them as to why and how every single vote matters. Not just in a presidential year, every four years, in all matters throughout your life. You’re exposed actually, to voting possibilities and opportunities to elementary on up. If you think about it. Even in elementary school, they might elect a class officer or somebody similar to in high school the student body president. There might be clubs or organizations at school — whether it’s elementary, middle or high school — that you will join voluntarily. They might elect club officers. And that requires a vote whether it’s raising your hand or a voice vote or actually a ballot. Whatever process is used to elect that person to that particular office.You’re exposed to the concept of voting from a very early age. We want to impress upon everybody of not only the responsibility because you do have the opportunity in this country to express your views by voting and it’s so simple to do. We would like that to — once it’s built in the child and in the teenager that they can express their opinion by casting their vote — continue that into their adult lives. This year in particular, if you consider the fact that 90 million people can vote, that’s a strong voting bloc that can bring about major change in our country, as far as selecting a particular candidate and voting on issues, propositions, whether it's an initiative or referendum, votes matter. In the first part of the book, we talk about the voting process, we present a timeline in the book to show the history over the last 200 years to show what’s going on with voting. We bring it up to date and we present a little section about barriers to voting, we have questions that are being discussed across the country, about mandatory voting. Should it be mandatory? And about the barriers — there are barriers that exist today and a lot of them are under litigation now in the courts, as far as being able to vote and voter ID. All of these issues come into play. We do point out why every single vote matters. For example, there has been one president, the 20th president of this country, Rutherford B. Hayes, who was elected by one vote in 1876 — one electoral vote. There have been other instances where Supreme Court justices have been confirmed or denied by one vote. So one vote at all different levels of society can and is making a difference. If you think about the 2000 Bush v. Gore case that the Supreme Court accepted and ruled on, Bush only won the presidency by five electoral votes. And it was a consequence of two votes — one in the Florida Supreme Court and one by the U.S. Supreme Court, by one vote in each: 4-3 in the Florida Supreme Court and 5-4 in the U.S. Supreme Court. It’s bringing it up to date from the late 1970s to the present, every single vote matters in many, many situations. LoMonte: Yeah, although voting is an overarching theme of the book, it’s really an in-depth survey of the workings of the legal system, but done as you explain, not from a historical perspective but a contemporary perspective. It has references to court cases that have been ongoing as recently as a month or two ago, so you clearly were editing right up until press time. It’s a very readable, current events type of book, rather than being a dry historical treatment, which I think is wonderful and makes these issues much more relatable to that core teenage audience. Talk a little bit about how schools today do or don’t present the issue of student rights and that broader issue of understanding the legal system. It seems like schools do a fairly good job in the civics and history classes explaining that chart we all studied about how a bill becomes a law and you get quite a good survey about the legislative process and who has held the White House, but maybe quite a bit less about the workings of the judiciary and the legal system and that seems like a need that you’re addressing here.Jacobs: Right, and I’m sure someone at first glance would look at the book or a review of it and come away with it that this a rather abstract approach of actually registering to vote and getting to the polls and voting. And that was our intent. We want to show the reader. Our approach to the subject is not presented to the schools at all, that I’m aware of, in all the schools I’ve been in touch with over the years with my juvenile writing. This is just too much for them to handle. It doesn’t fit the guidelines that they need to teach as far as testing at the end of the year and all of that, so we thought we would show that we’d bring it up-to-date and make it very relevant, very current to what’s going on in America today. Our approach to the subject is really simple — it boils down to this. That when we go to the polls every four years and vote for the president, and our president can win by one popular or one electoral vote. The president has the constitutional responsibility and we’re living this right now with the recent passing of Justice Scalia. The president has the constitutional duty to nominate a replacement for that particular vacancy, for Justice Scalia’s seat on the Supreme Court. And then once the president nominates someone to fill that vacancy, the job then passes to the Senate, again by the Constitution, to set a hearing, review the candidate, make sure he or she is vetted thoroughly before they set a hearing and then vote. An up or down vote — either rejecting that nominee or confirming that nominee to serve on the Supreme Court. And as we know, that position, there’s no limitation, term limits on a Supreme Court justice. That person sits for life. They can sit down at any point, that’s their decision, but the appointment is for life. Recently, one of the justices stepped down in 2010 after serving 35 years on the court: John Paul Stevens. They make a tremendous difference in our lives because of the issues that are brought before them. What we did, we presented 15 chapters in the book about 15 particular cases and issues that the Court had — they heard oral arguments, they took it under advisement, and they ruled, usually at the end of the Supreme Court’s term at the end of June. And we presented 15 cases that were decided by 1 vote. These were all cases that were 5-4 decisions. These are all issues that were discussed across the country, whether in newspapers or on radio shows, or in courts where there’s litigation going on about all of these different issues. That includes some things that don’t affect most people like campaign finance, search and seizure when it affects what the police can do, what law enforcement can do, as far as searching your person or your car. Many, many issues that come before the Court that are ruled on 5-4: LGBT rights, the First Amendment, of course, with freedom of religion in public places, freedom of association, the case before the Court this term in regards to affirmative action, which is going to affect our youth when they’re applying for college or university in the future. A lot of issues they decide are issues that are in the news, that are being discussed. Some of them hopefully are being discussed in classrooms, but we want students and adults to understand that these nine people are making decisions for everyone in the country. Our point is by presenting different cases that are the results of 5-4 decisions by the Supreme Court, that we ask the reader at the end of each chapter to consider and discuss with their family and classmates what would their lives be like today in this country had the court decided by one vote the other way? If they had not decided in favor of let's say, gay marriage last year in 2015? We would still have some states that allowed it and other states that didn’t. And with the effect that you go from state to state and you move and if the marriage doesn’t last and it leads to divorce action, can that even happen in a state you move to that doesn’t recognize gay marriage? But that’s been resolved now by the Court last year.LoMonte: What do you think is the level of knowledge and appreciation of the workings and importance of this judicial system? Jacobs: I don’t think it’s broad. I think many professionals understand … they keep up with the news and study up on the subject or even if they just follow the newspaper, the daily newspaper, you’re going to get a cursory education on the subject. But I think most people today are just too busy getting by, making ends meet, taking care of their families and other responsibilities. First you have to have the interest and once you realize — and that’s one of the points we’re trying to make to our readers, once they realize just how important the Supreme Court is and the work that it does, I think they’ll gain an appreciation of the work that they do by reading this and seeing the responsibilities they have in making and coming to these decisions. It has an effect in their lives. Especially … maybe one silver lining of what’s going on in the country now with this election cycle is that people are paying attention and listening to what the issues are. If we can get past the preliminaries and talk substance, they are learning about the process and the role government plays. We have a really interesting situation facing us right now with the three branches of government — we have the executive with the president having to nominate a replacement in Justice Scalia’s vacancy for the Supreme Court. And that passes to the legislative branch where the Senate has to take action. And what they’re taking action on is the appointment of someone in the judicial branch. So we have all three branches of government and the interplay between the three … it’s so important the decision that’s made. Especially in this situation with the Supreme Court, because it is a lifetime appointment. So we have a lot going on and I think people need to study up and not just accept and pass on soundbites without going a little bit deeper on the issues and questioning any substance or lack of substance that they’re hearing or reading about. It’s all of our responsibility, participating in our democracy — and that’s what we want students to do. We want students to get engaged. We want them to understand. Even if they’re not of voting age, they may not be 18, they may be in middle school and be 12 or 13, they still have opinions and there are ways they can express those opinions.LoMonte: Well I want to give a shout out to two different websites here. Judge Tom Jacobson’s website is called askthejudge.info. You can find links as well to his speaking engagements and other works. Also the freespirit.com website carries a catalog of Judge Jacobs’ publications there. Just in the couple minutes we have left, this new book Every Vote Matters also comes with what’s called a leader’s guide, which I guess is a teacher’s edition of the book, so maybe you can talk in a couple of minutes how you envision that schools might be able to incorporate Every Vote Matters book into the school day — Where would these lessons live? Where would they belong? How could they be made to fit into the Common Core demands of our schools?Jacobs: Right. We prepared, at the request of our publisher actually, a leader’s guide, a teacher’s guide to accompany the book. And they provide it free upon purchase of the book. And it’s for educators to browse through so they can keep up — to start the conversation about any of the 15 subject matters in the book. What we do is we present questions and answers that the teacher can use with his or her students in the classroom. To get the conversation going. Not only the conversation, but answering questions like, I’m only 13 years old. What can I do? I know there’s a city council election going on, for example, and one of the propositions on the ballot is banning the plastic bags or there’s an issue on our state ballot this year about the recreational use of marijuana or maybe lowering the voting age. There’s all kinds of issues that affect everybody and it doesn’t have to be on the national or federal front, it can be something right in your hometown that affects you. Maybe you heard your teacher or parents discuss it at home. So we provide the teacher's prompts to discuss these various issues and we suggest to them activities that they can raise with their students — here’s what you can do. If you feel strongly on a subject, you don’t have to keep it to yourself, you have the right to express your opinion, your views on whatever the subject might be. You can write a letter to the editor to your local paper. If you want to change, for example, a rule at school, maybe there’s a part of your dress code that you disagree with — what can you do about it, other than complain and gripe about it with your friends at school? You can take action. You can take a look at what the policies are in the school and the school district, maybe by taking a look at the student handbook. Circulate a petition for signatures. Attend local council meetings or board of education meetings. Many, many things you can do to bring about change and get engaged in social activism. That’s what we would like our students and youth to do. And this all applies of course to adults, they can do much the same thing. The guide really just gives information to the teachers and discussion points and suggestions they can make to their students who are interested in a particular issue and want to actually take action and affect change on an issue they’re interested in. LoMonte: Terrific. Well we’ll leave it there but thanks so much to Judge Tom Jacobs for being our guest and for this valuable contribution that is eminently readable and will have a place on my bookshelf and I hope on yours too. Every Vote Matters is available by Free Spirit Publishing. Thanks Judge Jacobs for joining us and thanks to all of you for listening to the Student Press Law Center podcast. We’ll be back next month with another installment about the legal issues impacting student journalists and their advisers. In the meantime, you can find us online at www.splc.org, on twitter @SPLC, or through email email@example.com. Thanks for listening.
Marcelo Rochabrun, reporting fellow with ProPublica and former editor-in-chief of the Daily Princetonian, discusses his investigation into the 990 forms of Princeton's eating clubs. Frank LoMonte: We are reading a lot these days about the concept of grit and about how educational institutions can best prepare their young people for the workplace and for the real world by exposing them to the kinds of adversity they’ll face in their adult lives. Well, if that’s the case, then the journalists at private colleges and universities have got to be some of the grittiest adults out there. They’re the people who are responsible for bringing the public information about the news of a campus community, that is not, with a few exceptions, subject to the same government transparency laws that would apply at a public institution. They have all the same responsibilities to bring the public the news but with many fewer tools at their disposal to compel their institutions to open their meetings or provide access to their records.We’re here today to talk about doing investigative journalism on the campus of a private institution. I’m Frank LoMonte, executive director of the Student Press Law Center and the SPLC provides tools, tips and tutorials for young journalists about their legal right of access to information and their right to publish that information free from administrative censorship. Student Press Law Center is online at splc.org, we’re on Twitter @SPLC and we welcome any questions about your legal rights on our email hotline firstname.lastname@example.org. We are here with Marcelo Rochabrun. Marcelo is the former editor-in-chief of the Daily Princetonian at Princeton University, now working in New York as a reporting fellow for the nonprofit investigative online news service, ProPublica. Marcelo is the award-winning recipient of the IRE’s annual recognition for investigative reporting for college journalists for his work at the Princetonian, where he used records available to all journalists to investigate the operations of secretive private dining clubs which exert a powerful influence over the culture of Ivy League campuses. Marcelo, thanks so much for joining us and sharing some of your reporting expertise. Get us started if you will, talking about how the idea for this project came about — how did you get started looking in the operations of private dining clubs, and what are these things?Marcelo Rochabrun: Sure, hi Frank and thanks so much for the invitation. When I started doing this story, I think I was a sophomore at Princeton. I had joined the school paper, the Daily Princetonian, and I was also taking an investigative journalism class, an actual course, and at the time the professor was Jo Becker, an investigative reporter at the New York Times, and she literally said we had to come up with an investigative story to do for the semester. So I started looking into a bunch of records and one of them was the 990 forms for the eating clubs. The eating clubs are institutions that only exist at Princeton — they are similar to frats and sororities, except people don’t actually sleep there, they use them for eating, they use them for partying, they use them for studying, occasionally. There’s a street at Princeton called Prospect Avenue that is your usual frat row or Greek row at any other campus. They have their houses and those eating clubs have classrooms, dining rooms, lounging and even have a library in there. I started looking at the 990s, which are forms nonprofits have to file, including nonprofits like ProPublica — nonprofits like any college have to file these forms with some of their financial statements. What I found was very, very interesting. These legally speaking are the same as frats. There’s something called a 501c7 and there are different types of nonprofit organizations and c7s are basically social clubs — any club you can imagine: a private New York club or a frat or sorority, is a c7 under the IRS guideline. What that means is the organization doesn’t pay taxes like any other nonprofit, however, if you want to donate to a c7, you don’t get a tax deduction. However, what the eating clubs were doing — and I realized this the first time I looked at the forms, which was quite eye opening — they had created foundations that went with the clubs and those were separate IRS institutions: 501c3s, which is an educational nonprofit like any college would be. The reason they had done that was because c7s couldn’t offer a tax deduction, so the club itself could not offer a tax deduction. But if they created an educational foundation, the foundation could offer a tax deduction and then the foundation would transfer the funds to the eating club. What I found was an astounding amount of money — close to $20 million in the past six or seven years had been funnelled to specific foundations in the names of those clubs and then transferred to the underlying eating club.LoMonte: Talk a little about — this is an institution and there are different types of institutions like this on Ivy League campuses. Harvard and Yale have these different residence halls that people live in that have traditions grown up around them, where your social life revolves around the life of this hall that you live in. Compare the difference in an eating club. What’s the influence that these clubs have on the culture of the campus and on how people kind of build their networks for their future lives?Rochabrun: They’re huge — to start with, only upperclassmen can join eating clubs. Essentially about 70 to 75 percent of upperclassmen join an eating club in the first place. They’re really a significant part of campus experience. Really before you’re an upperclassmen, when you’re a freshmen or sophomore, the only place to really go out in the suburb of Princeton is the eating club. It helps that their parties are, for some of the clubs, they’re usually open to anyone, whether you’re a member of the club or not. They’re very important, their network is very powerful, very secretive.LoMonte: You mentioned these IRS 990 forms, and those really have, for the coverage of private institutions in general and private universities and colleges in particular, been the keys to the kingdom to get out the financial information that would otherwise never become a part of the public record. Can you talk about, first of all, how you go about obtaining these IRS tax forms and how you went about delving into them and understanding them?Rochabrun: Sure. 990s are usually available online on a number of websites. One of the most powerful ones is guidestar.org. You can have a free subscription there, there’s also a paid service. Technically you can also go to the institution itself and ask for the 990 forms and if you go personally, they have to give them to you right there. If you send them a letter, I think they have up to a month to give it to you. But at this point, I think most people get their 990s online and I did that too and I used Guidestar, and I also used another service called citizenaudit.org which has scanned the text and made it searchable from millions and millions of 990 forms.LoMonte: So obviously, lots of people got into journalism because they were assured there wouldn’t be any math involved. And when you look at one of these 990 reports, it’s like a nightmare version of the tax return that you and I as an individual put together — much more lengthy and complex than an individual tax return. You can imagine how that would be a little off putting to a journalist who’s not a financial or accounting expert. How did you go about delving into these and making sense of them?Rochabrun: Right, yeah, it’s almost like having to make your own accounting course as you go through them. There are numbers after numbers after numbers but at the end of the day, what I was looking at was very simple. The first page of the 990 is very valuable. It will tell you what the institution does, what its mission is, how many employees does it have, what its board members is, and then it will give you the basics of its financials — how much money is coming in from donations, how much money they’re making from whatever it is that they do, it will tell you how much money they’re spending, if it’s a profit, if it’s a loss, and it will tell you those numbers for the previous years. In this case, what was really impressive was how much money is coming in from donations. That is what really triggered my interest because they bring about a fair amount of money in fees every year, in membership fees. We talk about institutions that have about 200 members and overall they’re paying about $1 million a year between all the members for the eating club to sustain themselves. And then there were clubs that were bringing on top of that, $6 million in donations in one year or so. And that was really off putting — why was that happening and where were those donations coming from?LoMonte: Sure. And were you able to trace that through the 990s or were you able to get any of that information through your subsequent follow up reporting?Rochabrun: Right, so usually you’re not entitled to know who the donors of a nonprofit organization are and that gets very interesting because in political reporting, they call that dark money. Karl Rove, the conservative strategist, has dark money organizations … or at least they’re called that way because they’re a nonprofit that engages in politics, but because they’re a nonprofit they can shield their donors from disclosure. What was so interesting about this case was that there’s a way to figure out what nonprofits are contributing to other nonprofits. In this case, it was that the 990s of the foundations showed board members of the eating clubs — under the IRS guidelines, they were considered something called related organizations. Something on like page 25 of the 990 form, if you scroll all the way down, you would see any interaction between the eating club and the related organizations that it had board members in common with. And you would see right there, there was something called the Princeton Prospect Foundation or the Ivy 1876 Foundation that was giving them millions of dollars in what was self-described as educational grants. And what was interesting was that the eating clubs don’t engage primarily in educational activities, certainly not for $6 million, but there were these foundations that were giving the clubs that money for educational purposes.LoMonte: This is a pretty big deal, you’ve disclosed essentially that people were taking advantage of a tax break that by all rights they should not have been entitled to since their donations were not going towards what the IRS would recognize as a bona fide educational purpose. What was the fallout or reaction from that reporting?Rochabrun: I think the reaction was mixed. On the one hand, I think students were more receptive to it because those who were accused of wrongdoing were not students themselves. The student government of an eating club has no authority over how donations were handled or anything like that. But then again, others were very unhappy about any kind of legal question was being brought about the eating clubs. Others decided to interpret IRS regulations in a different way because the eating clubs had Princeton students in them, by all means, they should be educational, which is not what the law says in the first place. I think there was some confusion over that. The reaction was basically mixed and there was even a short piece in the alumni magazine about it where the president of one of the associations called my story legally flawed and offered absolutely no evidence of how flawed it was or not. LoMonte: So in addition to your own analysis of these IRS tax documents, were there other resources you found useful in your reporting or outside experts to whom you turned for guidance on the legal or accounting points? Rochabrun: Yes, what was great about doing this story was that I was able to rely on multiple lawyers who were very, very generous with their time. One of them sat with me for what felt like six hours in his office, just going form after form after form. There are about 12 different eating clubs at Princeton, we were looking in each case at about five years of 990 forms, and at about 20 to 30 pages per form, we’re talking about hundreds and hundreds and hundreds of pages. It was dizzying but the fact that there was somebody there guiding me step by step and who believed as I did that the story should be told was very helpful. Once I felt confident with my findings, I was able to go to other lawyers — one of them, Marcus Owens who’s a very renowned tax lawyer. He himself at one point was the person in charge at the IRS of all nonprofit organizations. He gave me exactly the quotes I needed which was these foundations seem to be going exactly against IRS regulations. LoMonte: Well I just want to reemphasize a couple of the points that Marcelo made which might be useful to other folks interested in pursuing investigations like this in their campuses. First, there is a resource, Guidestar.org, that stockpiles IRS 990 forms in a searchable database online. Not only are these useful for private colleges and universities but really any nonprofit organization with the possible exception of some church-owned organization — they have to file an IRS 990 form which is a public document. Although you can get them online from Guidestar.org, it’s not always the case that Guidestar will have the most recent years available, understanding that there will be a one year lag because you paid last year’s taxes this year, but Guidestar will not always have received from the private organization the most up-to-date tax forms. For that, at times, you might have to go directly to the organization but it is your legal right to demand access to that. That is a public document that federal law requires be made accessible upon request. That’s point number one.Point number two is to reemphasize that if you find this area to be confusing or requires some expert interpretation, there really are people in your community, whether it is faculty in the law school or faculty in the business school or private practitioners, who will make themselves available, particularly to students because people in authority often like to be generous with their time when it comes to educating students, to walk you through some of the finer points with the law and accounting if you find that some of these points are unclear or a little mystifying. There’s nothing wrong with that because frankly some of these tax laws are written purposefully to be confusing and if you’re confused, then you’re right. Having said that, Marcelo, any thoughts — if you were advising the next generation of young reporters on college campuses, particularly on private colleges, about how to do this kind of watchdog journalism, understanding the limitations they are under, what would be your advice to them?Rochabrun: I think I would start by selecting my college’s 990 form and getting several years of them and starting with page one and putting them side by side and just looking at what numbers have changed the most. For example, the 990 would tell you what the college’s budget is. If you see any spikes in it, that’s something worth looking into. The other thing i would do is get similar colleges’ forms and see what they are saying. Simply by comparing, you will start to familiarize yourself with the information and with the money numbers that make sense for your particular college. That’s for colleges, and the other thing is that for the most part, Greek organizations have to file these 990 forms. They have to file them at both the national level and the chapter level — at the chapter level, unless they’re very, very small, I think they have to manage a budget of over $50,000 which for any Greek organization that manages a house in the first place, that’s definitely a threshold that they will cross.LoMonte: Sure and we should add too that booster clubs of various kinds may need to file as well, teaching hospitals, there are all sorts of nonprofit organizations affiliated with colleges and universities that may have a separate corporate entity requiring them to disclose, so even if you are at a public institution, the chances are excellent that there are one or more private nonprofit related organizations that have to file this tax return. And the tax return really is a snapshot into the finances of the organization, including how its investigations are performing, how much it pays the top executives, whether they’re doing business with people who serve on their governing board, and whether they have interlocking relationships with related organizations as Marcelo found to be the case with these dining clubs. Any last words of advice or inspiration to college journalists who might be following in your footsteps?Rochabrun: Yeah, well before that, one last thing to add — most of those related organizations, you can be surprised what they are. I cannot remember any specific examples but Princeton for example in its 990 was related to hundreds of other nonprofit organizations. And it was always interesting to see what those organizations were in the first place and what kind of relationship was being had between one or the other. So the starting point is simply to look at what related organization are disclosed in your colleges’ 990. About inspiration, I think I’ve realized more and more by working at ProPublica too that sometimes people will write down in their 990 forms the things that are not great. They will not try to shield what they’re doing but they will put it out there — if you are able to figure it out and have enough sources to back up what you have found in these 990s, it is a goldmine of documents to start pouring through. LoMonte: Absolutely and by way of wrap up, I should mention we’ve experienced this ourselves. I remember going through a 990 of a particular university with students in a reporting class and finding out that the university was required to disclose that it had suffered a financial loss due to insider fraud — due to one of its own executives diverting money for personal use, which it then pursued through the courts in order to get reimbursed. That was a story that would never have come to light if not for the 990s because at a private institution, as you can imagine, these transactions often take place quite secretly and the university doesn’t do anything to call attention to these facts. But the 990s really truly can be a goldmine that is a key to unlocking the finances of these otherwise very secret and elusive organizations.Well Marcelo Rochabrun, I want to thank you for joining us and also congratulate you on your first place IRE award which will be presented this summer at IRE’s annual convention in New Orleans and congratulations on your success with ProPublica and we wish you much more. Thank you for being our guest. And thank you for being our listener on the Student Press Law Center’s monthly podcast. We invite you to look at the SPLC’s resources on splc.org for tips and resources to get at the secrets colleges try to conceal. If you have any questions about your legal rights as a journalist, we’re always reachable at 202-785-5450 or online at email@example.com. Thanks for listening and we’ll talk to you next month.