• August 28, 2014

Stop the Courts From Weakening Student Journalism

A consensus is growing that to adequately train young journalists and meet communities' needs for news and information, college journalism programs must transform themselves into "teaching hospitals" that produce a steady output of news distributed to a broad public audience. At the same time, federal courts are increasingly inclined to diminish First Amendment freedoms for college students at public institutions.

Those two trends are on trajectories for a dangerous collision.

Twenty-five years ago, the U.S. Supreme Court greatly reduced the First Amendment protection of students' speech in "curricular" settings such as class-produced student newspapers. Although that case, Hazelwood School District v. Kuhlmeier, involved a Missouri high school, the legal standard it created increasingly is being applied to students in college and even graduate school.

This is a profoundly dangerous development. Hazelwood has devastated high-school journalism programs—one First Amendment law professor has described it as a "censorship tsunami"—and driven many of the best educators from the field.

Society cannot afford a repeat of Hazelwood's 25 years of destruction at the college level. Not when college journalists are increasingly being asked to serve as providers of information for their communities, taking the place of laid-off professionals at shrinking media outlets.

Until recently, legal scholars took for granted that students at public colleges enjoyed, at a minimum, the ample free-speech protection recognized by the Supreme Court in its 1969 ruling Tinker v. Des Moines Independent Community School District. In that landmark case, the court concluded that nothing less than "showing that the students' activities would materially and substantially disrupt the work and discipline of the school" could justify restraining speech or punishing students for what they say.

While Tinker involved attempts to stifle a political protest by students wearing homemade antiwar armbands, Hazelwood involved the removal of articles from a school-financed newspaper. That distinction, in the view of the court, justified creating a new, lesser category of First Amendment protection.

When that 1988 ruling came down and in the years immediately following, no one seriously thought that colleges could fall under Hazelwood's thrall. The decision plainly spoke in terms of protecting the delicate ears of young children. In Justice Byron White's words, its purpose was "to assure that ... readers or listeners are not exposed to material that may be inappropriate for their level of maturity."

That colleges might claim the authority of Hazelwood—which permits censorship because speech is deemed to be "biased or prejudiced, vulgar or profane, or unsuitable for immature audiences"—was inconceivable.

But in January of 2012, the U.S. Court of Appeals for the Sixth Circuit, which sets precedent for Kentucky, Michigan, Ohio, and Tennessee, became the fourth judicial circuit to apply Hazelwood to a First Amendment case brought by a college student.

In that case, Ward v. Polite, the appeals court determined that Hazelwood governed the claims of an Eastern Michigan University graduate student who alleged that the university had kicked her out of a degree program for school counselors because she expressed religion-based opposition to homosexuality.

Courts in the Sixth, Seventh, 10th, and 11th federal circuits, covering 16 states, have now said colleges may censor their students for any reason that is educationally defensible. Only the First Circuit (and then only in a footnote) has rejected Hazelwood at the college level, and the Supreme Court has evaded the question.

Whatever the debatable merits of Hazelwood when the speakers and listeners are children, it is unconscionable to withhold the full benefit of the Constitution from adult citizens by virtue of their enrollment in college. Nearly one-third of America's college students are 25 or older, and 15 percent of them are over 35. More than 270,000 are veterans attending college on the GI Bill—veterans trusted with bombers and aircraft carriers, who come home to learn they cannot be trusted with the freedoms they fought to defend.

Hazelwood's impact is broad, but it will be most destructively felt in campus newsrooms if it becomes accepted as the default standard governing the speech of college students.

A growing number of communities are no longer served by well-staffed daily newspapers, and college journalists are being asked to fill the void.

In an October 2011 report, "Shaping 21st Century Journalism," the New America Foundation challenged the nation's journalism schools to reimagine themselves as what Nicholas Lemann, dean of the Graduate School of Journalism at Columbia University, termed "teaching hospitals," putting students to work meeting their communities' information needs.

The "teaching hospital" motif was picked up in an August 2012 letter to university presidents signed by six of the nation's largest philanthropic financers of journalism education, including the Knight Foundation and the McCormick Foundation.

"We believe," they declared, "journalism and communications schools must be willing to recreate themselves if they are to succeed in playing their vital roles as news creators and innovators."

Journalism schools have never been better prepared to assume that responsibility. Hundreds of the best-qualified downsizing victims have found new careers as journalism instructors.

But those well-credentialed journalism professionals are often operating without the benefit of tenure, and thus are susceptible to censorship pressure from image-protective administrators. In many communities, the local college is the largest employer and newsmaker. Fulfilling the community's need for reliable news coverage means candidly covering the college like any other powerful government agency.

Unlike news gathered by an independently financed campus newspaper, news created in a lab-class setting is vulnerable to Hazelwood censorship. And Hazelwood says, in so many words, that schools may censor news articles that "associate the school with any position other than neutrality on matters of political controversy." It is flatly irreconcilable with watchdog journalism—and every journalism dean and department chair in America should say so.

If the newsroom of the near future is a classroom, then, for the good of the reading public and for all who benefit from robust accountability journalism, those who report the news for a grade need the same First Amendment independence as those who report the news for a paycheck.

California, Illinois, and Oregon have exemplary state statutes protecting college journalists and the educators who advise them against institutional censorship and retaliation. In none of those states have student journalists run amok with their freedom.

Twenty-five years of failed experimentation on young people is one generation too many. It's time for the courts—or, in the absence of judicial courage, state legislatures—to restore the sensible balance that a misguided Supreme Court threw asunder.

Frank D. LoMonte is executive director of the Student Press Law Center.

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