Press laws: For students, by students

Western Kentucky University sophomore Josh Moore enjoyed a rare degree offreedom as a high school journalist. He did not realize how rare until hestarted taking college journalism courses, learning how commonly high schooljournalists labor under censorship.

But Moore did not just study the situation — he is trying to fixit.

“My experience was actually amazing,” Moore said of his timewith the student newspaper at Muhlenberg South High School in Greenville, Ky.

“As editor, I had two different principals. They never looked at anythingbefore we published. We might go to them one or two times to ask their opinions,but we were making the editorial decisions.”

As he dove into journalism education classes in college and recognized thediscrepancy among state laws regarding student press, Moore realized theimportance of ensuring other students have the opportunity to learn and developtheir skills in the kind of environment his high school had fostered.

That was the “driving force,” Moore said, behind his recentefforts to introduce student free press legislation in Kentucky, his homestate.

Last summer, Moore got in touch with Rep. Brent Yonts, D-Greenville, to askhis help in proposing a bill. By November, Yonts had agreed, and the work beganto pile on for Moore.

“I told him that he has to carry the workload on this thing,”

Yonts said of House Bill 43, which was introduced in the Kentucky House ofRepresentatives Jan. 6 and referred to the Education Committee the followingday. “I have bigger fish to fry, but this is a good learning experiencefor Josh.”

Although the bill did not become law this year, it attracted significantfavorable publicity, and the efforts of Yonts and Moore may have built afoundation for a renewed push in 2010.

With steep expectations and an unfamiliar world of legislative processes tonavigate, Moore hit the ground running last summer. He created a Web site tokeep bill backers informed, and with the help of the Kentucky High SchoolJournalism Association, he also sent out e-mails and letters to journalisminstructors across the state enlisting support. After consulting the StudentPress Law Center for ideas on generating legislation language, Moore drew up adraft bill for Yonts to bring to the House.

The proposed bill gave high school student journalists the right to freespeech and press in student-produced media “whether or not the media aresupported financially by the school or by the use of school facilities or areproduced in conjunction with a high school class.” Whereas “openforum” student publications — where students have editorial control

— currently have more robust First Amendment protections than thoseproduced in conjunction with the school, HB 43 would have put all studentpublications on equal footing.

Although the bill would have permitted administrators to intervene inextreme cases — libelous expression, an unwarranted invasion of privacy,or the provocation of danger or disruption on campus — HB 43 otherwiseallowed students freedom in “determining the news, opinions, feature, andadvertising content” for their publications. Also included was a provisionprotecting advisers who refuse to suppress the “protected expression ofstudents” — a retaliation protection both California and Kansasinclude in their student press laws.

Moore took inspiration from the example of seven other states — Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon — that have all passed similar laws protecting high school and college media; aneighth, Illinois, has a college free press act on the books.

These laws came in response to the U.S. Supreme Court’s 1988 decisionin Hazelwood School District v. Kuhlmeier, which dictated that publichigh school newspapers not established as public forums are subject to lesserFirst Amendment protections.

In 2005, the Hosty v. Carter decision extended Hazelwood provisions to some college media as well. The federal 7th Circuit Court ofAppeals’ decision in Hosty ruled that Hazelwood is the”starting point” for college media censorship cases in the statesunder its jurisdiction — Illinois, Indiana and Wisconsin. Illinois hassince passed a law that essentially nullifies Hosty, and states acrossthe country are considering legislation that would override Hazelwood and avoid a precedent like Hosty within theirborders.

Washington, for the third year in a row, considered (but failed to enact)legislation that would limit the censorship authority of school administratorsover high school and college student media. The bill in Washington, likeMoore’s in Kentucky, was initiated by student activism.

Brian Schraum, now a graduate student in journalism at the University ofMissouri, turned to his state representative in 2006 to help draft legislationfor Washington.

“Even though [the Hosty] decision doesn’t apply toWashington, I was concerned,” Schraum said. “I wanted to preemptthat law in my state.”

Schraum and the ranks of supporters behind the Washington student presslegislation have become very familiar with the arguments of their detractorsover the past three years. They, like Moore in Kentucky, say they are typicallyup against school board administrators and principals’ associations thatsee too much financial risk and too few constructive learning opportunities inhanding editorial control completely over to students.

“Working professionally [as a journalist], you would still have aneditor,” said David Baird, director of governmental relations for theKentucky School Boards Association. “Our job is to teach kids about thereal world.”

Moore responds that a student-run newsroom is very much a “realworld” environment, and administrative control is a conflict ofinterest.

Still other student free press legislation opposition argues that, withboth schools and parents absolved from liability for students’ editorialdecisions, a victim of libel by student media would have no means of recourse.Students, they say, simply do not have the means to pay damages if they libel orotherwise harm someone.

Mike Hiestand, attorney for the SPLC, faced these doubts at a Senatehearing for the latest Washington student free press bill in February. The FirstAmendment, he said at the hearing, is intended to protect minority opinion, and”minorities often don’t have the kind of financial resources thatthe big boys have.”

Concern over liability issues marks just one of several sticking points forstudent press legislation. Bill detractors, for example, have been consistentlyadamant about limiting the law’s protections to college students,maintaining that high school students need more oversight and more protectionfrom hurtful speech.

At the Senate hearing in Washington earlier this year, Jerry Bender,director of governmental relations for the Association of Washington SchoolPrincipals, pointed to the student newspaper at Emerald Ridge High School inPuyallup, Wash., as an example. Last year, the paper came under fire for apackage it published about the prevalence of and attitudes toward oral sex atthe school, which included names of students who voluntarily participated ininterviews.

“If we’re going to be there as administrators when the planecrashes, we would certainly want to be there when the plane takes off,”Bender said at the February hearing, suggesting more editorial control andsupervision could help prevent controversies like that at Emerald Ridge, wherethe school administration and adviser voluntarily took a relative hands-offapproach toward the newspaper’s content. (The Puyallup district has sinceimposed mandatory school review over student editorial decisions.)

Despite past failed attempts at passing legislation in Washington, Schraumand other First Amendment advocates in the state remain steadfast in theirattempts.

With the close of this year’s General Assembly session in Kentucky inMarch, Moore also tallied one year down without his bill being passed. Seeminglyundaunted by what might be a long battle, Moore said he is proud to be doing thelegwork for what he sees as vital legislation for young, aspiring journalists inKentucky.

“We expected it might take more than one try to accomplish our goals,and we can’t take a break now,” he said.