If you want to pursue a misconduct claim against campus police, be prepared to do it in public, a federal district judge ruled last week.

U.S. District Judge Matthew W. Brann of the Western District of Pennsylvania refused to entertain a “John Doe” lawsuit by six present and former Bucknell University students who say a university-approved drug raid violated their constitutional rights.

The February 2012 search turned up drugs, drug paraphernalia and weapons, and although no criminal charges were brought, the students were brought before a campus judicial board and given minor disciplinary sanctions (community service, fines). Their names were not made public.

The students sued Bucknell’s president, general counsel, police chief and a variety of other campus and county officials they claim were responsible for planning, approving or directing the raid. The suit claims campus security officers entered the Kappa Sigma Alpha Phi fraternity house and a nearby private home along with two county sheriff’s deputies and unlawfully searched the premises without reasonable suspicion that a crime had been committed, in violation of the Fourth Amendment and Bucknell’s own student handbook. (The suit claims the students were purposefully lured outside by false fire alarms so they couldn’t refuse consent for the search.)

The suit was filed using just the students’ initials, to avoid disclosing what the closed-door disciplinary process had managed to keep secret. But Judge Brann ruled that the students could not litigate the case anonymously.

The mere fear of embarrassment or harm to reputation, Brann wrote, does not overcome the strong presumption of openness in the federal courts. Only in “exceptional circumstances” have courts allowed parties to pursue cases without identifying themselves, the judge wrote. (For example, in suits brought by rape victims, where anonymity may be necessary to encourage reporting the crime, or in suits where a plaintiff would be disclosing embarrassing medical information or exposing himself to legal jeopardy by publicly admitting wrongdoing.)

The students now have the choice of proceeding in their own names or dropping the matter. The case is K.W. v. Holtzapple, No. 4:13-cv-3051.

In a 9-0 ruling that will reverberate in the nation’s schoolhouses, the Supreme Court decided Wednesday that police can’t automatically search the contents of a motorist’s cellphone just because they arrest him.

Instead, the Court decided in Riley v. California, the search must be justified by probable cause to believe that the portions of the phone being searched contain evidence of a crime — the same justification the Fourth Amendment requires for any warrantless search.

Normally, when police make a traffic stop, they can conduct a search “incident to arrest” that includes the motorist’s pockets and personal effects. That intrusion is legitimized by officer safety — to make sure the detainee isn’t carrying weapons — and by the need to preserve evidence that the detainee might destroy.

But in David Riley’s case, the search went further. After California police lawfully stopped Riley for a traffic offense, then arrested him after discovering two illegally concealed firearms under the car’s hood, they went through his cellphone messages and photos, where they discovered evidence linking him to a gang-related shooting. Riley sought to throw out the cellphone evidence on the grounds that the search violated his Fourth Amendment rights. On Wednesday, a unanimous Supreme Court (in an opinion written by Chief Justice John Roberts) agreed that police went too far.

In a 1973 case, United States v. Robinson, the Court said that once police have lawfully arrested a suspect, a search of that person’s belongings requires neither a warrant nor a showing of probable cause. In Riley’s case, the Court declined to extend that rule to searches of cellphones. Rather, a cellphone search — even during an arrest — will be legal only if police show probable cause overcoming the owner’s Fourth Amendment privacy interests. And that applies even if the police search only the log of incoming and outgoing calls, the Court ruled.

Although nothing in the Riley case or the Court’s ruling directly addresses schools, the justices’ expansive view of cellphone privacy is certain to have an impact on all phone searches.

The Fourth Amendment does protect students even while they are in school, though school authorities need less justification to legitimize a search than police do. The Court set the Fourth Amendment standard for in-school searches in a 1975 case, New Jersey v. T.L.O., involving a school administrator’s demand to look inside a student’s purse for cigarettes (he found them, plus a pot pipe and a list of marijuana customers). In T.L.O., the Court decided that “probable cause” was too high a burden for the unique school setting, and that a search of a student’s belongings would be legal as long as it was supported by “reasonable suspicion” that the belongings contained evidence of a crime or a rule violation.

The key passage from the T.L.O. case is that a search is constitutionally allowable if the scope of the search is “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

This is where today’s Supreme Court ruling becomes relevant to schools — it explains that the search of a smartphone is, by its nature, more “intrusive” than the search of a backpack, purse or other physical space:

Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones.

In other words, the burden to justify searching a cellphone will be higher than the burden to search other possessions, because the phone contains limitless amounts of personal information beyond what a person could physically carry.

As in the police/motorist context, courts have been struggling to find the right balance between school authority and student privacy:

  • Last year, a federal appeals court decided that a Kentucky school overreached in reading a student’s text messages after confiscating his phone on the grounds that he was caught texting. The search was unjustified, the Sixth Circuit U.S. Court of Appeals ruled, because the search was unnecessary to gather evidence of the texting infraction; the school was merely fishing for evidence of other possible misdeeds, which it had no reasonable grounds to suspect. In language that anticipated the Supreme Court’s Riley ruling, the Sixth Circuit said that “using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction.”
  • In 2010, a federal judge in Mississippi threw out the Fourth Amendment claims of a student whose phone was searched after he was caught reading a text-message during class in violation of school rules. (However, the judge allowed the student to proceed on claims that the district violated his constitutional rights by expelling him for photos found on the phone, which showed him dancing in front of his parents’ bathroom mirror and flashing what the school described as “gang signs.”)
  • A federal district court ruled in 2006 that a Pennsylvania school acted not just unlawfully but clearly so, in using a student’s confiscated cellphone to dial other students in the phone’s address book, to see whether their phones could be triggered to ring, exposing them as violators of the school’s cellphone restrictions.

The Riley opinion may not cause schools to rewrite their phone-search policies, but it should certainly cause them to reexamine how those policies are applied.

Searches that were dubiously constitutional in the past — such as a 2011 drug sweep at Illinois’ Stevenson High School, where students were pulled into the principal’s office and ordered to “unlock” their cellphones based on nothing more than sharing a first name with someone identified as a drug buyer — are more clearly unconstitutional today.

As a final P.S., students who use their cellphones to gather news may have additional recourse under the federal Privacy Protection Act. The 1990 statute forbids government officials from searching for journalists’ unpublished work, whether in a newsroom, a car, an apartment — or a smartphone. The statute won’t work if the student is being searched for reasons unrelated to journalism, but if the phone contains unpublished news photos, interview recordings or messages exchanged with sources, it’s always wise to mention the PPA at the first sign of a search and contact a lawyer as quickly as possible.

For more information on protecting your rights, consult the SPLC’s Tip Sheet, “Responding to School Seizures and Searches of Cell Phones.”

One story we’ve been following very closely here is the controversy surrounding the fate of Georgia State University’s student-run radio station. After negotiating for years in secret, Georgia State University entered into an agreement (let’s not use the word contract, just yet) with Georgia Public Broadcasting to give the latter organization 14 hours of daytime analog signal, depriving WRAS students of an educational opportunity and the community of a 42-year tradition of original music.

For more on the background, see my Huffington Post blog on the topic.

Since I wrote last, a group of WRAS alumni have come together to form the Album 88 Alumni. The group put together a counter-proposal and sent it to GSU President Mark P. Becker and are waiting for a response. But one thing that could be a stumbling block is that it sounds like some Georgia State administrators are under the impression they’re bound to their agreement with Georgia Public Broadcasting.

If that would so, it would represent an astonishing development in the law. I made a little chart to explain precisely why Georgia State should be able to walk away from the GPB partnership and accept the Alumni offer, if it chooses to do so. (Click to open it in a new window.)

Why GPB can't sue GSU to enforce the WRAS contract.

So, GSU Administrators, if you’re being motivated by a fear of the big bad public boogeyman, rest assured that principles of judicial economy and basic sanity prevent the State of Georgia from suing itself.

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In retrospect, a Miami student’s interview with a reporter — in which he described his threat to kill the president as “pretty funny” — was ill-advised, considering he’d expressed remorse to a judge only a month earlier at a probation hearing.

The resulting newspaper article in The Reporter, the Miami Dade College’s student newspaper, prompted a judge to toughen Joaquin Serrapio’s probation because “the original conditions were not sufficient to accomplish the purposes of probation.” The modifications included eight more months in home confinement and 45 days in a halfway house.

Serrapio appealed the increased sanctions because he believed “that these modifications violated his rights under the Double Jeopardy Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment and the First Amendment.” In a ruling handed down last week though, the 11th Circuit U.S. Court of Appeals upheld the district court’s modified probation as constitutional.

When he was originally sentenced in 2012, Serrapio was placed on probation for three years and ordered to complete 250 hours of community service. At his sentencing hearing, the judge suggested that he speak to students and peers about the lessons he’d learned and the “consequences of the cyber world.”

Later, The Reporter approached Serrapio and asked him to write a column about his experiences. After he submitted the guest column, another Reporter journalist called him to talk with him about the trial. In that interview, Serrapio told reporter Karla Barrios, “A lot of good has come out of this, even for my music.” Serrapio said that a lot of people came to his band’s show the Saturday after he was released from jail “to see the kid who threatened to kill the president.”

Serrapio’s guest column, titled “The Biggest Mistake of My Life,” cautioned that “posts are available for the world to see and your words and/or pictures will follow you for the rest of your life.” It was published alongside Barrios’ news story, which pointed out a contrast in what Serrapio wrote and what he told the reporter. After the story was published, the judge revised the terms of his probation.

The appeals court held that double jeopardy was not violated because the modifications did not change Serrapio’s “legitimate expectations” and because the court did not lengthen his three-year term of probation. The court also said the probation modification did not violate due process because Serrapio and his attorney did not express their concerns to the district court prior to proceeding with the modification hearing.

Serrapio’s First Amendment rights were not violated, according to the court, because his interview in the college paper had direct bearing on the issue being tried. According to the court opinion, “A sentencing court has always been free to consider a wide range of relevant material.”

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The Supreme Court has taken a step — whether it’s a giant step or a baby step is yet to be seen — toward restoring sensible First Amendment protection for teachers, professors and other government employees who blow the whistle on wrongdoing they learn about on the job.

Thursday’s 9-0 ruling in Lane v. Franks protects government workers against firing, demotion or other retaliatory action for speech addressing matters of public concern, even if those matters relate to the speakers’ work responsibilities.

Edward Lane brought the case after he was fired from Central Alabama Community College in 2009, a decision that suspiciously followed his testimony that helped convict an Alabama state legislator of defrauding the taxpayers for holding down a no-show “job” in Lane’s department at CACC.

Lower courts threw out Lane’s case on the grounds that he was speaking in his employee capacity and not as a citizen. In a 2006 ruling, Garcetti v. Ceballos, the Supreme Court said speech “pursuant to official duties” — like writing a memo assigned by a supervisor — is the speech of the employer, not the individual. And if the agency disapproves of the way the employee writes the memo, he can be fired with no First Amendment recourse.

But the Supreme Court, in a June 19 opinion by Justice Sonia Sotomayor, found Lane’s testimony to be constitutionally protected speech that the college was forbidden from punishing. The Garcetti rule did not apply, Sotomayor explained, because Lane was speaking as a citizen — any citizen, not just a government employee, can be subpoenaed to testify at a trial — and his speech addressed matters of public concern.

Lawyers for government employers will interpret the decision narrowly in light of its unusually sympathetic facts; a contrary ruling would have resulted in “open season” on witnesses who give testify honestly. In Thursday’s opinion, Sotomayor phrased the issue as “whether public employees may be fired … for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities.” If that is how the Lane precedent is understood, then it will protect only a minimal range of speech.

But the Lane case means quite a bit more than that.

Thursday’s ruling draws a clear distinction between speech made as part of a work assignment (the Garcetti scenario) versus speech about information learned at work (which was Lane’s situation). Many lower courts — including the Eleventh Circuit panel that Thursday’s decision overrules — have misread the Garcetti ruling as a license to punish speech about work. That was never a logical understanding of the Garcetti case, and now the Supreme Court has said so, unequivocally. As Sotomayor wrote:

Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. … In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.

The practical takeaway from the Lane ruling is, counter-intuitively, that the employee who obediently follows the internal chain of command to resolve her concerns will benefit from less protection than the employee who takes her complaint to law enforcement or the news media.

The Lane ruling is especially noteworthy because of the eagerness among college and university employers to exert more punitive authority over their employees’ off-campus social-media lives. Last month, the Kansas Board of Regents was roundly criticized for a Garcetti-based policy that exposes employees to sanctions including termination for speech “contrary to the best interests of the university.”

It’s now crystal-clear that the set of social-media speech to which Kansas can lawfully apply that fire-at-will policy is essentially an empty set. Only where an employee is actually posting on social media as part of a job assignment, such as the person who manages the Facebook page for the campus P.R. department, can the speech be treated as constitutionally unprotected.

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Multiple cases of yearbook pranks are in the news this month as students around the country receive their books:

  • Students at Marysville High School in northern California opened their yearbooks earlier this month to see nearly 200 sexual innuendos and errors.
  • In Cupertino, California, Monta Vista High School students opened their books June 5 and found an anti-semitic prank in the latest edition of their yearbook. A student changed the name of a Jewish student in a team sports photo by inserting the word “Jew.”
  • A student hacker at an Oregon middle school inserted “inappropriate material into yearbook page designs before the book was sent to print. School officials only discovered the hacking after the pages were already the printer and it was too late to fix. Stickers were placed over the inappropriate content, but students were able to peel them off, prompting administrators to ask for students to return the books.

As the SPLC’s fall 2013 edition of the Report noted, a handful of yearbook vandalism incidents occur every year around May and June, as many school sessions come to a close, and can sometimes cost schools thousands of dollars in for reprinting.

Some advisers and yearbook companies take steps to try and prevent vandalism. Most rely on systems that limit page access to specific students or the adviser, thus limiting the student pranksters’ ability to make changes after they’ve already been proofed by editors.

“When I hear of other yearbook’s situations it’s always a ‘There but for the grace of God go I’ kind of moment,” Soboroff told the Report.

For the pranksters, there are varying consequences. Punishments for the offenders usually range in school disciplinary actions or civil lawsuits, but one case in Columbia, Missouri, last year resulted in criminal charges (they were later dismissed).

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Justice Clarence Thomas, who famously insists that young people have no more rights than houseplants, just rescued students from a potentially devastating ruling making it nearly impossible to challenge an unconstitutional restraint on speech.

In a 9-0 opinion authored by Thomas, the Supreme Court decided Monday that a would-be speaker can bring a First Amendment claim against a statute penalizing speech without having to wait to suffer the punishment.

The Court’s unanimous opinion overturns an errant decision from the Cincinnati-based Sixth Circuit U.S. Court of Appeal, which departed from First Amendment precedent in ruling that a speaker could challenge a restraint on speech only by incurring the punishment or proving that punishment was imminent.

It’s enough, the Supreme Court decided, that a speaker can show he plans to engage in “arguably” protected speech but faces a  “credible threat of enforcement.”

The case arose from an anti-abortion political group’s attempt to disseminate an attack ad against a Democratic Ohio congressman. The congressman, Steve Driehaus, filed a complaint with the Ohio Elections Commission under an unusual state law criminalizing false statements in a campaign ad. The complaint never went anywhere because Driehaus lost his race, but the Susan B. Anthony Fund sought to continue challenging the Ohio law on the grounds that fear of criminal punishment would inhibit its advertising in future races.

The Supreme Court ruling reinstates the SBA Fund’s First Amendment challenge, meaning that the (questionable) merits of the Ohio statute will be back before the federal courts before long.

As the SPLC pointed out in a friend-of-the-court brief prepared with volunteer counsel from Kilpatrick Stockton LLP, young people have been singled out in recent years for harshly punitive laws criminalizing speech, including North Carolina’s “torment your principal and go to jail” statute, enacted in 2012.

Students would have been uniquely disadvantaged by the stingy legal standard adopted by the Sixth Circuit.

Statutes punishing student speakers are especially difficult to challenge. Graduation can moot students’ constitutional claims, and students are especially unlikely to offer themselves up as “sacrificial plaintiffs” willing to incur punishment to prove a point, because punishment can deprive them of once-in-a-lifetime experiences. A person who is unlawfully fined for speech can get his money back, but a student who is expelled from school and denied admission to the college of his choice cannot be “made whole” just by writing a check.

For would-be student plaintiffs, the most significant part of the Court’s favorable ruling is this: “Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.”

That’s potentially decisive in a case like the inevitable legal challenge to North Carolina’s terrifying SB 707, which exposes students (but only students) to a year in jail for conduct as insignificant as a fake Twitter account mocking a school official. A student would be hard-pressed to get a case into court if forced to prove that she planned to illegally “intimidate” or “torment” a school employee. Under today’s ruling, it should be enough to sustain a challenge for the student to show a “substantial threat” that her intended speech will be deemed unlawful.

The case is Susan B. Anthony List v. Driehaus, No. 13-193.

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The last few months for the students of Neshaminy High School’s The Playwickian haven’t been easy. As the student staff has fought administrators for editorial control, their adviser Tara Huber has stood behind them at every step. Tuesday night, Huber found out she was being named Journalism Teacher of the Year by the Pennsylvania High School Press Association.

“It makes it worth continuing to fight the good fight,” Huber said.

In October, the staff announced they wouldn’t use the word Redskin – the school’s mascot – because they say it’s a racial slur. Administrators pushed back and demanded students print it.

PSPA received two nominations for Huber, one from Jane Blystone, a professor at Mercyhurst College, and the other from Dennis Howie, an English teacher at Neshaminy. PSPA President Robert Hankes said it was clear the she deserved the recognition.

“Tara’s a real hero on this end of the continent,” Hankes said. “She’s not the one who’s bearing the brunt of the blows — [student Editor-in-Chief] Gillian [McGoldrick] is – but she’s doing everything she needs to do as an adviser to help the group do what they’re supposed to do, which is bring out a paper.”

The recognition has helped inspire her students as they were putting out their final issue of the year, Huber said.

“When I told them this morning they were so excited,” she said. “They clapped and high fived and they were very excited. It was some positive motivation for them, some inspiration to keep fighting for what they believe in.”

Huber has served as The Playwickian’s adviser for 14 years and also teaches English at Neshaminy. According to a PSPA news release, she works on numerous committees, teaches summer school and teaches English at Today, Inc., a substance abuse program.

She will be formally recognized at the PSPA Student Journalism Competition in October.

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Amid recent discussions of media credentialing processes, student journalists have largely been left out of the conversation. A survey released Thursday titled “Who Gets a Press Pass? Media Credentialing Practices in the United States” shed light on patterns in journalists’ experiences acquiring press passes from 2008 to 2013.

One in five journalists has had a credential request denied, according to the survey released by the Berkman Center for Internet & Society and the Shorenstein Center on Media, Politics and Public Policy.

The survey freelance journalists were twice as likely to be denied credentials than journalists employed full-time by a new organization. However, finding out where exactly student journalists fall within these patterns isn’t entirely clear.

A portion of the total 1,339 respondents did identify themselves as students, but not enough to result in statistically significant numbers, said Jeff Hermes, lead author of the survey and director of the Digital Media Law Project. Instead, they fell into the categories of contributors or unpaid independent journalists, two categories which many times were less likely to receive credentials than full-time employees, he said.

In many cases, organizations giving out press credentials use the status of full-time employment as an way to determine who is or isn’t a journalist, Hermes said.

“Now that doesn’t mean that those standards are the best possible standards,” Hermes said. “To the contrary, a standard which relies on employment tends to disregard the important news gathering functions of other people in the journalism community.”

Student journalists, who almost never work as full-time employees, can be left out in the cold, journalism professor Dan Reimold said, who teaches at Philadelphia’s Saint Joseph’s University and writes the College Media Matters blog.

In October 2004, the Massachusetts State Police denied press credentials for student journalists at Boston College because they didn’t fit a full-time employee standard since their newspaper didn’t publish daily. The state police statue stated that credentials were only granted to “regularly employed full time as a Reporter devoting a significant portion of employment time to police news for Daily Newspapers, Television Stations or Networks, Radio Stations, News Magazines, or News Gathering Agency.”

Organizations’ reluctance to give student journalists the same accessibility as mainstream journalists stems from an underlying ignorance of what student journalists are capable of and also a distrust that younger reporters can properly handle hard issues, Reimold said.

“It’s four words in question form: ‘Who are these kids?’” Reimold said. “Then, typically there’s the follow up: ‘Who do they think they are?’”

Trying to work around the obstacles can be difficult because many of credential granting decisions are largely unregulated, and there is no overarching standard, Hermes said.

The only legal challenge would be on constitutional grounds, where a journalist could claim unlawful discrimination, which. But even in those cases, there needs to be specific evidence that there was discrimination based on a viewpoint, Hermes said.

“Legal challenges based on these decisions are very difficult,” Hermes said. “Usually there’s a great deal of discretion entrusted to government decision makers who are issuing credentials.”

But more often than not, student journalists are covering news just as well if not better than their counterparts, Reimold said. As daily newspapers across the countries have downsized their staffs, collegiate student newspapers have become increasingly more important in covering local news, he said.

“With the absence of professional press outlets and the amount of time and staffers that they are able to devote to stories about education or even covering some of the local communities, students are stepping up and filling that gap to a greater degree,” Reimold said. “Students are increasingly expand beyond the confines of their campus.”

In order for student journalists to gain greater respect from credentialing organizations, it will take a greater recognition of student journalists in the conversation of media credentialing as a whole. But, as of right now, it’s not something that’s being talked about, Reimold said.

“It’s probably on a level even below afterthought at this point,” Reimold said. “It’s simply not something, as someone who follows this stuff pretty closely, that’s being talked about in any sustained or formal way shape or form.”

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The trend of broadcast companies receiving exclusive broadcasting rights to high school sporting events could continue to expand now that one of the one of the largest producers and aggregators of high school sports coverage is growing its team.

PlayOn! Sports has contracts with 28 state scholastic athletic associations, many of them giving PlayOn! exclusive rights to broadcast many postseason high school events. The company just acquired Digital Scout, an Ohio company that tracks athletic statistics for roughly 60 percent of high schools, according to its website.

Advisers and student journalists have raised concerns about the impact of such companies, which contract to receive exclusive rights to broadcast sports events. In some cases student reporters have said they weren’t able to receive credentials or have faced restrictions on live-broadcasting and play-by-play reporting. An article in the winter 2014 edition of SPLC’s Report covered the issue of the restrictions places on student journalists as a result of these contracts.

Students in at at Regis Jesuit High School in Aurora, Colo., faced regulations because PlayOn! has exclusive rights from the Colorado High School Athletic Association to show postseason games, Joe Quigley said in the article. Quigley is a sports reporter for RJ Live, Regis Jesuit’s broadcast journalism club.

“It’s (CHSAA) supposed to be promoting sports and activities and things like that among our other schools so kids can succeed,” Quigley said. “By putting limits on broadcasting, it’s limiting our ability to flourish in a high-pressure playoff situation, since it’s not live anymore.”

The company could continue to grow, as this year PlayOn! broadcasted nearly 40,000 games, while the estimated total market share is 2 million games a year, David Randolph, the company’s CEO told Columbus Business First in February.

PlayOn! will fully integrate Digital Scout’s content sometime this fall, according to a PlayOn! news release.