Public campus, private spaces

It was a routine story for the Western Kentucky University Herald.

The twice-weekly student newspaper was covering severalfootball players volunteering in one of the public university’s on-campusrestaurants as part of a community service project.

But The Herald’s photographerswere informed they could not shoot inside one of the facilities becauseAramark, the campus’ dining services company, insisted it was private property.

Herald Editor-in-Chief Josh Moore, a formerStudent Press Law Center intern, said this isn’t the first time they’ve hadproblems with Aramark.

“We’ve had a few different experiences this semester. A fewdifferent incidents with dining services where we’ve tried to take photos indining facilities on campus and dining service employees have told us that wecan’t do that,” Moore said.

According to Moore, each incident has spawned fromnon-aggressive stories.

“These are prettyharmless stories, stories like fair-trade products in the coffee shop,” Mooresaid. “So we were wanting to take photos, they said we couldn’t, claiming itwas private property because they leased the space from the university.”

The increased use of private contractors on college campusesis regularly provoking disagreement over the ability of privatized bookstores,coffee shops and copy centers to declare otherwise-public property off-limitsfor newsgathering. The issue has become a point of frustration for studentjournalists who are welcomed as customers in their student role but may beexcluded once their cameras come out.

At Western Kentucky, Moore said the community service storyled him to contact Deborah Wilkins, the university’s attorney, to try to settlethe issue and come up with a reasonable policy.

“Originally, following the football incident, we agreed togive it a day and to consult the university attorney and they talked to her andI briefly talked to her,” Moore said. “She basically agreed with them in thattypically when a private entity leases a space from government it is consideredprivate property for the course of the lease.”

Moore said after further discussion, Wilkins responded in ane-mail with details of the new planned policy media policy.

“[Wilkins] sent this e-mail to me saying the policy, in herwords, was that they requested the names of every media member, their contactinformation, the reason for their entrance, a list of questions, what they wantto take pictures of, their deadline and photographers would have to beaccompanied by dining staff at all times,” Moore said.

Charles Davis, associate professor at the University ofMissouri School of Journalism, said the important legal question is whether thespace is a public forum.

Davis said there are three types of fora: the traditionalpublic forum, which has the greatest level of First Amendment protection, thelimited purpose public forum, and the private forum.

“Things like student dining facilities, recreation centersand student unions, I think they clearly fall upon the traditional public forasetting,” Davis said. “They are places that are reserved—and not onlyoccasionally, but often—for expressive and communicative activities. They arepublic spaces in the broadest sense of the word.”

Wilkins, however, argues that property owned by a stateagency isn’t always public.

“I think there’s a disconnect among people of whatconstitutes public property and just because a state agency owns propertydoesn’t make its property public,” Wilkins said. “If there’s a public park andyou want to have a picnic, go for it, but if you want to have a picnic in thelobby of the president’s office suite, that’s not going to be allowed becauseit’s not going to be open to the public for any purpose.”

When asked if she could provide any case law on publicuniversity property being transformed into private property, Wilkins declinedto do so.

“I could, but I’m not going to. We don’t have a legaldispute here,” Wilkins said. “The newspaper met with the dining servicesdirector and representatives from Aramark and based on what I’ve understoodeverything is fine and they’ve come to an agreement and can proceed in thefuture.”

Moore said he immediately began researching and gatheringinformation to fight the policy Aramark planned to implement.

“I guess [Wilkins] thought that we would be OK with that aslong as we were allowed to take photos, but we still contend that this ispublic space and we shouldn’t have to get permission and have staff follow usaround while we take pictures,” Moore said.

Moore said he contacted an attorney with the Kentucky PressAssociation’s legal hotline and discussed the university’s contract withAramark. He then had a meeting with Wilkins to discuss the problem. Sittingdown with the Wilkins helped the university realize the seriousness of thesituation, Moore said.

“I can’t say we’ve been successful yet. But the point is todo as much research as you can and talk to as many people as you can and havethe best background of the law, and then present your argument,” Moore said.“We didn’t just go to them and say ‘We want to take pictures, and that’sthat.’ We developed an argument, talkedto some lawyers and saw what others schools were doing before we got too farinto it.”

According to Davis, a university contract shouldn’t changethe nature of a public location.

“Nothing about the fact that Starbucks is running the campuscoffee shop in the student union should make it any less public than it wasbefore,” he said.

Davis said when student journalists are prohibited fromphotographing in public areas, they should continue to appeal internally.

“First of all, if they’re working for the student newspaper,they should talk to their adviser. Their adviser should talk to campusofficials, working their way up the chain of command as far as they need to toresolve the situation,” Davis said. “Usually it’s a miscommunication, sometimesit’s an official policy, but it’s wrong-headed policy.”

Moore said he sat down with WKU’s Aramark representative anddiscussed the issues shortly after his meeting with Wilkins. He said the twoorganizations agreed to use professional courtesy and respond to requests in atimely manner.

Local and national Aramark officials did not respond torequests for comment for this story.

Moore said Aramark’s argument was that they were afraid thecompetition would see from the newspaper’s photos how they prepared food.

“[Their] main concern [was] protecting the way they conducttheir business,” Moore said. “In a place where they sell pizza, us takingphotos of the pizza endangered the way they conduct their business. That wastheir argument.”

But Moore said he’s far from agreeing with Aramark’sposition on the property being classified as private.

“They do still maintain that it is private property and westill strongly maintain that it is not,” Moore said. “We agreed to help eachother. I don’t know how well that will go but we’re trying to work together.”

SPLC Executive Director Frank LoMonte said he’s heard ofnumerous similar situations involving private dining vendors on campus. He saidif those companies are going to prohibit student media from photographinginside their facilities, then they must also prohibit recreational photos aswell.

“The First Amendment doesn’t guarantee you as journaliststhat you can walk onto someone’s premises to take photos or gather news, butwhat it does say is you can’t be singled out and treated differently justbecause you’re taking the pictures for journalistic use,” LoMonte said. “Iwould bet it’s extremely unlikely that any cafeteria operator is telling peoplethey can’t take smart phone pictures of their friends eating lunch and put themon Facebook.”

Unlike the university president’s office, as Wilkinssuggested, students have a valid reason to be at the dining hall, LoMonte said.

“As a student, you’ve got a valid business justification towalk around on that campus and patronize that dining hall,” he said. “Once youhave a valid reason to be in that space then they can’t single you out fornon-disruptive photographing or interviewing unless they’re prepared to applythat to all their customers.”

LoMonte said he still questions whether a university canwholesale pieces of campus to third-party companies on a long-term basis.

“It’s questionable whether a school can really transformpublic property into private property on a permanent 24-hour basis,” LoMontesaid. “It’s one thing for a concert hall to be leased out to a promoter for aday at a time, but the concert hall remains government owned. You can’t giveaway the public’s property to a private entity to treat it as their own on apermanent basis.”

By Nathan Hardin, SPLC staff writer