WASHINGTON — “This case is not about whether youdidn’t like this article or thought the topic was not appropriate [for ahigh school student newspaper]….This case is about the evidence and about thelaw,” said Seattle attorney Mike Patterson, representing Puyallup SchoolDistrict.
After nearly two weeks of testimony, lawyers in the dispute involvingEmerald Ridge High School’s student newspaper, The Jagwire,presented their closing arguments Tuesday to the six men and seven women(including one alternate) being asked to decide whether students named in anarticle that discussed the students’ sexual histories were unlawfullyharmed by the story and whether the school district was at fault in allowing itspublication.
Close to a dozen attorneys and legal assistants representing the partiesshuffled papers, PowerPoint presentations and court exhibits in the Tacoma,Wash., courtroom, which had to be closed to some observers in the morning afterstudents, parents, journalism teachers and others who had come to watch thetrial’s final day exceeded the room’s fire capacity.
The four Emerald Ridge High School students and their parents, many of whomwere present in the courtroom for closing arguments, are suing the PuyallupSchool District on multiple claims including invasion of privacy,negligence and intentional infliction of emotional distress. In the past, theplaintiffs had collectively sought between $16 million and $32 million indamages, though Tuesday their attorney suggested that the jury award all parties afigure closer to about $5 million.
The issue began after a series of articles on the topics of sexualintercourse and oral sex among students was published in the February 2008 issueof Emerald Ridge High School’s newspaper, The JagWire.
The suit claims the four students quoted in the articles did not givepermission to The JagWire to publish their names and “private details” oftheir “sexual lives.”
“This is a cultural case,” said John Connelly, of Tacoma,Wash., who is representing the students and their parents. During his closingstatement, which lasted about 90 minutes, he told the jury that society was notready for a student newspaper that published the names of students who hadadmitted to engaging in oral sex.
It defies “common sense,” he said.
He also criticized school district officials and the paper’s adviserfor going out of their way to distance themselves from the student paper andallowing student editors to determine its content.
“There has been a tremendous effort in this case to avoidaccountability,” Connelly said.
The issue of student control was mentioned frequently in closing arguments.The student plaintiffs and their parents contend that allowing students to makecontent decisions without first being approved by school officials wasnegligent.
When it was his turn, Patterson denied the district was negligent andpointed to a Washington State curriculum guideline for journalism thatrecognized the First Amendment rights of students and discouraged schoolofficials from interfering with lawful content published in a student newspaper.The Appendix to the guidelines includes the Student Press Law Center’sModel Guidelines.
Patterson said Puyallup School District had not only followed thestate’s guidelines but also the recommendation of journalism educationgroups, such as the Washington Journalism Education Association, that encouragestudent control over the content of student papers as the most effective way toteach young journalists.
Depending on the outcome of the case, it is likely that the issue ofstudent vs. administrative control will come up again. On Monday, Superior CourtJudge Susan Serko issued a confusing ruling in which she determined that TheJagwire was a “limited public forum,” but said that it wasnevertheless subject to the U.S. Supreme Court’s 1988 Hazelwood
ruling, which allows school officials to censor student speech when they candemonstrate a reasonable educational justification.
Generally, courts have ruled that student media should be categorized asdesignated, or limited, public forums when “by policy or practice”they have been opened for expressive activity for certain topics or certaingroups, such as student journalists. Under existing law, a student newspaper determined to be a limited public forumshould be subject to the Supreme Court’s more protective Tinker standard,which allows school officials to censor only unprotected speech, such as libelor obscenity, or speech that would seriously disrupt normal school activities.
Serko’s ruling could be key if the jury were to find the districtnegligent for failing to exercise greater control over The Jagwire.
Patterson also urged the jury to exercise its “common sense”when weighing the issue of the student plaintiffs’ credibility regardingtheir claims that they never gave the student newspaper consent to use theirnames. He spent much of his 90 minutes pointing out alleged inconsistencies inthe students’ claims that they did not know of or agree to the use oftheir names.
Although the reporter did not receive permission in writing from thestudents, Patterson told the jury it was clear she had the students’ consent toquote them. He said that the student reporter testified that she not onlyplainly identified herself as reporter, but also wore a press badge, wasrecording notes on a reporter’s notebook and had a tape recorderrunning.
Patterson told the jury that while some of them may be uncomfortable withthe topic, the award-winning article had performed an important function. Henoted that a Jagwire survey had found that many Emerald High Schoolstudents treated oral sex like nothing more than “making out.” Thepaper, he said, sought to dispel such thinking by pointing out the health andemotional risks that accompanied oral sex.
“This was an article that was needed and that the students feltaddressed a topic the school wasn’t adequately addressing,”Patterson said.
The jury was dismissed late in the afternoon and is scheduled to begindeliberations today. A decision is expected by the end of the week.