Officials at the University of California, Davis should release the names of all the campus police officers involved in the pepper-spraying of student protesters in 2011, the California Supreme Court affirmed this week.

The court’s ruling dismisses an effort by a university police union to overturn a June 2013 ruling by a state appellate court, which said the state’s public records law allows the public to obtain the names of the officers involved in the incident, the Los Angeles Times reported. In a report commissioned by the university that criticized how campus police and administrators handled the incident, the officers’ identities had been redacted.

In response, The Sacramento Bee and the Los Angeles Times filed a lawsuit in 2012 to receive access to the withheld names.

In 2011, about three dozen students took part in an Occupy protest where they remained on the lawn of the main quad of campus to display their displeasure with economic inequality in the area. When the protesters refused to move after police officers asked them to do so, officers pepper-sprayed the student protesters in the eyes.

When video footage of the interaction went viral, the information of the main police officer, Lt. John Pike, was released by activist hacker group Anonymous, according to the International Business Times.

While the Supreme Court did not hear the police union’s appeal, a full opinion issued Wednesday cites a similar case it ruled on earlier this year, where the court determined that police agencies must reveal the names of officers involved in on-duty shootings unless disclosure would pose a safety threat.

The news follows another incident of perceived police brutality in Ferguson, Missouri, where Ferguson police officer Darren Wilson shot and killed Michael Brown, an unarmed black 18-year-old. In that case, Wilson was named days after public outcry. Although some police departments do release officers’ names and details in use-of-force investigations, there is no consensus, the St. Louis Post-Dispatch reported.

The drop-and-drag availability of online material makes it oh-so-tempting to “borrow” a photo, video or article from the Web — even for professional media outlets that ought to be especially protective of copyright.

Idaho college journalist Farzan Faramarzi understandably felt violated when, without asking, a local FOX affiliate rebroadcast a clip from his YouTube-posted video. Faramarzi was the only journalist on the spot when a well-known campus preacher visiting Boise State took a swing at a student who’d approached him by surprise (the student claimed he just wanted a hug). The video doesn’t show contact being made, and police decided not to charge the preacher and declared him welcome to return to campus.

The event was newsworthy enough that KIVI-TV made an excerpt from Faramarzi’s video the centerpiece of a report on the evening news and on the station’s website.

Faramarzi protested. A representative of the station and its parent company — insisting that use of the clip didn’t infringe the student’s copyright — declined to pull the video but did give Faramarzi recognition on the web version.

Was KIVI-TV’s use of the clip defensible as a “fair use?”

The honest but unhelpful answer is, “It depends.” Fair use is always a judgment call that requires balancing multiple considerations.

That the station used a very small percentage of the original video isn’t decisive. Copyright law recognizes that you can infringe the owner’s rights if you re-use the “heart and soul” that gives the original creation its value. In this case, the altercation IS the heart and soul of Faramarzi’s work.

But copyright law also recognizes a “fair use” defense for republishing part (or at times, even all) of someone else’s work when commenting on that work — e.g., because the work has itself become newsworthy.

(For instance, when a graphic artist creates and sells a poster based on a valuable AP news photograph, that might be copyright infringement. But when a news organization writes about the photo and the poster, reproducing their images to accompany the story is a classic fair use.)

The station’s best argument for fair use is that the video actually became part of the story when, according to the KIVI report, Boise State police reviewed it in making their decision to readmit the preacher to campus. If the video itself is newsworthy for that reason, then the station has an arguable fair use defense.

One thing that doesn’t help the station at all is crediting the original source. Copyright law doesn’t concern itself with credit. Credit is a matter of ethics and professionalism (and in an academic setting, potentially one of plagiarism). But if the re-use of someone else’s property is illegal, federal law doesn’t care how — or whether — it’s credited.

What could KIVI-TV have done better?

While credit doesn’t neutralize copyright infringement, it’s the courteous thing to do, especially if it’s apparent that the creator of the original work isn’t just a hobbyist (Faramarzi maintains an active YouTube channel with more than 115 entries as a showcase for his career portfolio of videography). Asking for consent surprisingly often will result in a “yes.”

What can I do if I think my videos have been “pirated” by a competitor?

First, figure out what you want. Do you want to be paid for the work? Would a credit be sufficient? Or do you want the video taken down entirely?

A phone call to the infringing site, especially if it is an established media outlet that’s easily reachable, is the polite first step and at times results in a complete resolution. But what if the infringer won’t play nicely?

If you’d be satisfied with a freelancer fee for your “involuntary contribution,” consider simply submitting an invoice for a reasonable market rate along with a cover letter to this effect: “I’m glad you like my videos. I charge a ____ licensing fee per clip, with a 25 percent add-on for customers who don’t get consent in advance. Please remit _____ within 30 days.”

If you’re convinced that the republication is an unlawful infringement (this would be a good time to consult legal counsel licensed in your state), federal law recognizes a right to demand that the infringing content be pulled down. The Digital Millennium Copyright Act (“DMCA”) sets forth a specific process for notifying the website’s host that a page contains infringing material.  This article explains the process, but in short, it requires a sworn statement signed by the copyright-holder identifying the infringing content and where it can be found online.

As a cautionary note, DMCA notices should never be sent without careful research and consideration. Knowingly misstating that a Web page contains infringing material can result in sanctions including paying the website operator’s legal fees for defending against an unfounded takedown demand.

Staff members of the Pennsylvania Department of Education “delete and cleanse” their emails each night, a policy which the state’s Office of Open Records and the Pennsylvania Newspaper Association have condemned.

Acting state Education Secretary Carolyn Dumaresq told ABC27 WHTM in Harrisburg about the policy in a story about former Education Secretary Ronald Tomalis, according to Pittsburgh’s Tomalis is still earning six figures although many are questioning how actively he’s working. Public records show that Tomalis only sent five emails and one phone call a day since July 2013, which Dumaresq defended, in turn revealing the policy.

“I check mine at the end of each evening. I clear my emails out, as does Ron, and we only save those emails into files to remember a decision that was made,” Dumaresq said in the interview. “So there is no email trail for a lot of folks.”

Under the state’s Right to Know Law, government employees must treat emails the same way they’d treat paper records. The time an agency must keep their records varies by state, agency and individual record.

Terry Mutchler, the director of the Office of Open Records, told the policy didn’t pass a “gut check” for proper email retention policy. (For an example, see this chart from the federal Environmental Protection Agency).

In Pennsylvania, the Historical and Museum Commission is in charge of retention schedules. According to its policies (click on “Administrative Records” for a more detailed guide), “routine correspondence concerning day-to-day office administration and activities” should be kept for three years. Executive level correspondence should be kept for two years, then transferred to the state archives.

Finding a straight answer on how long to keep email records can be difficult. Even at the federal EPA, which provides among the clearest directives for how to treat email records, the retention schedules for emails range from 30 days to permanently.


In the latest issue of The Report, the SPLC explored the uncertainty facing student journalists following the implementation of the the Affordable Care Act. The Act would require any employer with more than 50 full-time workers or equivalents to offer health insurance to employees who average 30 hours per week, or pay a fine, beginning in 2016. News, however, doesn’t always understand time restrictions, and neither do student journalists.

“It’s hard to tell students to stop reporting on what they’re reporting, to stop editing a story if there’s news happening,’ said Rachele Kanigel, president of the College Media Association, in The Report. “Students want to cover it, and they’re not looking at the clock.”

The Student Worker Exemption Act, introduced by Rep. Mark Meadows, R-North Carolina, could help clear some of that uncertainty. As part of an effort to save universities’ money while still letting students work to help pay for rising tuition costs, Meadows is asking Congress to exempt student workers from the Affordable Care Act, The Asheville Citizen-Times reported.

Western Carolina University Chancellor David Belcher approached Meadows with the idea and University of North Carolina System President Tom Ross supports it, according to the Citizen-Times.

“This provision in the ACA will be extremely costly to colleges and universities, forcing many to cut student workers,” Meadows said in a written statement. “At a time when tuition costs are constantly rising and student loan debt has hit a record high at $1.08 trillion, on-campus employment opportunities are relied on by students across the country to help pay the cost of their tuition.”

WCU has 1,500 student workers, including 75 who meet the 30 hours-a-week average, which would cost the university more than $300,000 a year to insure, the Citizen-Times reported. The university already requires the students to have health insurance.

Many universities are considering or have already started limiting student hours or cutting student jobs. University of Kansas cut hours to 20 a week this summer, according to The University Daily Kansan. Clemson University began limiting students to 28 hours of work per week last fall, according to Report.

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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.