Oregon's New Protection for Student Journalists
Justin Bathon on Wednesday, July 11, 2007 at 5:54PM Andrew Paulson over at Board Buzz, as well as USA Today, are reporting that Oregon is about to pass a law that would help protect high school and college students in their choice of content for school-sponsored publications.
Whether or not you think the law is a good idea (NSBA clearly does not), it does represent a new tact for legislatures which is probably in response (at least to some degree) to the general trend in the courts, including the Supreme Court, away from students rights, especially speech rights. Although the Morse v. Frederick Supreme Court decision came down after this legislation was already well-underway, it could not have hurt in coalescing the necessary votes to pass the legislation and in getting the governor's signature.
Personally, I don't think this law actually changes that much legally, except, perhaps for creating the private right of action. While it has a lot of language about what schools can still limit, in the eyes of the courts, it is probably not that much different from the existing Hazelwood standard. However, student's already had a right of action under the Constitution to sue their schools if they infringed on their First Amendment rights. In practicality, schools are probably just going to be somewhat more lenient when it comes to allowing material that they feel is not in line with the educational mission of the school. I do not think it will create the flood of new lawsuits that Paulson implies it will, and even if it does, I am not sure that is necessarily a bad thing. The line on student speech is extremely blurry at the moment a little more litigation to clear that up probably wouldn't hurt.
Anyway, judge for yourself: here is the text of the bill that supposedly will be signed by Gov. Ted Kulongoski on Friday. And here is the relevant section:
Except as provided in subsection (4) of this section,
student journalists have the right to exercise freedom of speech
and of the press in school-sponsored media, whether or not the
media are supported financially by the school or by use of school
facilities or are produced in conjunction with a high school
class.
(3) Student journalists are responsible for determining the
news, opinion and feature content of school-sponsored media
subject to the limitations of subsection (4) of this section.
This subsection does not prevent a student media adviser from
teaching professional standards of English and journalism to the
student journalists.
(4) Nothing in this section may be interpreted to authorize
expression by students that:
(a) Is libelous or slanderous;
(b) Constitutes an unwarranted invasion of privacy;
(c) Violates federal or state statutes, rules or regulations or
state common law; or
(d) So incites students as to create a clear and present danger
of:
(A) The commission of unlawful acts on or off school premises;
(B The violation of school policies; or
(C) The material and substantial disruption of the orderly
operation of the school. A school official must base a forecast
of material and substantial disruption on specific facts,
including past experience in the school and current events
influencing student behavior, and not on undifferentiated fear or
apprehension.
(5) Any student, individually or through the student's parent
or guardian, enrolled in a public high school may commence a
civil action to obtain damages under this subsection and
appropriate injunctive or declaratory relief as determined by a
court for a violation...
Just as background, the student press law center in the USA today article cites a Seventh Circuit case called Hosty v. Carter, which limited some rights of students in school-sponsered publications only to publications deemed open-forums. The seminal case on school-sponsered expression is Hazelwood v. Kuhlmeier, which gave school authorities broad discretion in limiting school-sponsered speech in alignment with the school's educational mission.
Finally, here are a couple of other posts and articles on the issue you might find interesting: Washington Journalism Education Association; Oregon Daily Emerald (U. Oregon's Student Newspaper); First Amendment Center.
Reader Comments (2)
By the way, those of you unfamiliar with Jim's work, cruise on over to: http://specialeducationlawblog.blogspot.com/
And while you are at it, be sure to vote for him for the blog awards. We education law bloggers need all the support and accolades we can get to keep devoting hours to this instead of spending time, you know, making money.