Feb 3, 2007

HB 1307: one step forward

In the mad rush of events, I had almost forgotten about Brian Schraum's notes defending HB 1307, the bill that would make student journalists entirely responsible for their own content. Here are my thoughts in response, after reflection. I had originally argued that the First Amendment (at least, in my non-legal-scholarly estimation) doesn't protect your right to publish in someone else's medium.

After studying the issue in more depth, I've come to agree much more with Schraum's position than I initially had--that it is possible for students to "own" their work in a newspaper. I've looked over some of the cases where students have successfully received injunctive relief from "arbitrary and capricious" prohibitions or viewpoint discrimination. (The former language was used to allow a student to publish a yearbook photo of himself in chain mail. Nerd.) I hadn't really looked into the SPLC, and now I'm much more impressed with the constitutional protections of student speech.

However, I see Hazelwood as a reasonable position that has been unreasonably interpreted by overzealous--make that paranoid--administrators. The SPLC reports that calls to their hotlines have increased mightily in the years since Hazelwood, yet under that ruling, all a savvy newspaper teacher has to do is include express language in the publication to the effect that the newspaper is indeed a forum for the school, and not just an assignment or a function of a particular class. ("Underground," student-produced newspapers are fully protected, as are other routes of student expression.)

Schraum writes,
[In Hazelwood the] Court justified control of student newspapers simply because the public might falsely think the expression reflected that of the school. This is simply not the case; I don't think any reasonable person would look at a student newspaper and think that a principal was responsible for everything in it.
Maybe Schraum has never had to take angry parent phone calls--or maybe he automatically discounts such calls as "unreasonable"--but since administrators constantly have to justify school actions to the community, I'd like to see evidence that "reasonable people" don't (or shouldn't) confuse what's in the school newspaper with what the school condones or takes responsibility for--especially when the school is paying for it.

Schraum, though, also oversimplifies SCOTUS's claims in Hazelwood regarding the defining First Amendment case, Tinker vs. Des Moines.
We have nonetheless recognized that the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and must be "applied in light of the special characteristics of the school environment." Tinker, supra, at 506; cf. New Jersey v. T. L. O., 469 U.S. 325, 341-343 (1985). A school need not tolerate student speech that is inconsistent with its "basic educational mission," Fraser, supra, at 685, even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was "sexually explicit" but not legally obscene at an official school assembly, because the school was entitled to "disassociate itself" from the speech in a manner [484 U.S. 260, 267] that would demonstrate to others that such vulgarity is "wholly inconsistent with the 'fundamental values' of public school education." 478 U.S., at 685-686. We thus recognized that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," id., at 683, rather than with the federal courts
HB 1307 still allows administrators to intervene, as long as they have evidence of the potential for material disruption.

It all comes down to the ownership question. Journalism teachers and students who value free expression--and there aren't enough of either--should take the steps to declare their paper a public forum, ensuring full constitutional protection for writers. If these steps are taken, HB 1307 could be entirely superfluous.

Two uncertainties remain. If HB 1307 passes, will paranoid administrators eliminate journalism classes, using excuses like "we don't have the money" or "we need more classes for WASL prep?" Second, will students face an even greater "chilling effect" once they realize they are personally liable for their content?


Nuss said...

As a journalism educator, I appreciate your thoughtfulness in reconsidering your position.

One thing to consider is this: Six other states have similar laws (including California) and none have seen the negative "chilling effects" you speculate. In fact, they've seen that students have done BETTER journalism once administrators have been able to get past their fears.

Fern said...

wqfjfIf it were easy for student journalists and their advisers to declare their publications are forum, more would do it. Many principals will not allow it and some, such as Everett HS, want forum removed from the paper's policy. Everett students are suing over just such a case.
As far as liabillity goes, students are already liable for what they write. HB 1307 removes the district and school officials from liability if they don't interfere. No law suits against students or districts have been filed over what students wrote, only over them not being able to write it or their teachers being punished for permitting free speech.

Jim Anderson said...

fern, whether it has happened and whether it could happen are separate questions--but, if the nuss is right and, empirically, lawsuits aren't a problem, then I'm willing to "see the light."

I'd be a pretty poor teacher if I thought people couldn't change their minds--myself included.

Thanks for your comments, both.