Court says confiscation of records by Ore. university police did not break law

A federal appellate court ruled Dec. 9 that PortlandState University administrators did not violate the First Amendment rights of astudent journalist when security officers forced him to turn over a box ofconfidential records he had found.

Dimitris Desyllas claimed that theuniversity violated his First and Fourth Amendment rights when campusofficials locked the office of the Rearguard, an alternative newspaper heedited, and forced him to turn over files he had been using to research astory.

In addition, Desyllas claimed that the university violated hisFirst Amendment rights by preventing students from posting fliers and hand-billsin specific areas of campus.

A three-judge panel of the U.S. CircuitCourt of Appeals for the Ninth Circuit rejected Desyllas’s claims, saying that the university did notviolate Desyllas’s right to publish because it did not prevent him frompublishing and only regained ownership of documents to which it had a legalright.

Desyllas “does not contend that the [university] engaged in priorrestraint of publication by censoring him or the Rearguard,” JudgeRuggero J. Aldisert wrote in his ruling for the court. “Desyllas remained freeto write about the university’s handling or mishandling of confidential studentrecords. Possession of the box, which Desyllas had for nearly three monthswithout publishing a story, had no bearing on Desyllas’s ability to publish anews story.”

In addition, it held that, because PSU did not open upcertain areas of campus to posting, it did not violate Desyllas’ First Amendmentrights by denying all students the ability to post information. The court foundthat school officials did not selectively remove Desyllas’postings.

“Unlike the approved bulletin boards, the unapproved areas arenot a public forum,” Aldisert said. “Desyllas has not produced facts that allegethe [university] removed only his fliers while allowing others toremain.”

SPLC View: This is a unique case whose negativeimplications for college student media should be fairly limited. It’s importantto point out what the court said school officials did not do. First, the courtfound that campus officials did not enter the newsroom and take the fileswithout the editor’s consent. Rather, the court found that the editorvoluntarily turned over the records, albeit after significant pressure by campusofficials to do so. Had campus security officers broken into the office toretrieve the records without consent, they would likely have been in violationof the federal Privacy Protection Act, which prohibits unauthorized searches andseizure of material from newsrooms and journalists. Second, the court noted thatat no time did university officials attempt to prohibit the newspaper frompublishing a story about the records – or any other story for that matter.Again, had they done so, the case would almost certainly have come outdifferently. That said, there are a couple of lessons to be learned from thiscase. Number one: As long as nobody on your newspaper staff has done anythingunlawful to obtain newsgathering materials, you generally do nothing wrong insimply possessing them. Number two: If you believe police are acting unlawfullyin attempting to obtain your newsgathering material, do not consent – or doanything that might be interpreted as consent – to their demands. While youshould not directly impede their efforts, you should make it clear that anysearch or confiscation has not been authorized by you. If possible, take a videoor photograph of the search being conducted and contact legal counselimmediately.