January 2014 podcast: Pennsylvania student editors fight back against administrative censorship

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Attorney Gayle Sproul of Levine Sullivan Koch & Schulz, LLP and Editor-in-Chief Gillian McGoldrick of The Playwickian at Neshaminy High School talk with SPLC Executive Director Frank LoMonte about the student newspaper’s decision to stop using the word ‘Redskins’ and the community’s response.

Frank LoMonte: Welcome everybody. Thanks for joining us for another edition of the Student Press Law Center’s monthly podcast. The SPLC is an advocate for the legal rights of student journalists around the country and we serve as a source of information and advice for folks facing legal challenges when they gather, publish and distribute news and information.

We’re talking today about the issue of censorship of student journalists at the high school level. And our guests are involved in a nationally publicized controversy which has sort of captured the imagination of the professional news media because it involves an issue the professional news media is struggling with as well. Namely, what happens when a professional sports team is using a mascot which becomes widely believed to be a racial slur, i.e. the Redskins. Here in Washington D.C., the professional sports journalism community is struggling with whether to use the name Washington Redskins for the NFL Football franchise, a very eminent sports journalist, including Christine Brennan of the post, Slate Magazine have all decided they will boycott the name because it’s believed to constitute a racial slur.

At the high school level, students at Neshaminy High School, northeast of Philadelphia, decided last Fall to join in this form of silent protest by banning the phrase Redskins from the pages of their newspaper. Gillian McGoldrick is the editor-in-chief of the Neshaminy High School Playwickian, the newspaper that came to this decision. She’s here with us to talk about how the students decided upon this move, why they did it and what the fallout has been from their school. Along with her is Gayle Sproul. Gayle is a partner with the law firm of Levine Sullivan, it is one of the most eminent media law firms anywhere in the country. Gayle has been a media lawyer for more than 25 years. In addition to her private practice in the Philadelphia office of Levine Sullivan, she’s also been an in-house counsel at NBC Broadcasting. She’s a graduate of Villanova law school and she took on this case, she and her law firm, decided to represent The Playwickian, entirely free of charge, pro bono, as part of the SPLC’s attorney referral network, for which we are very grateful. And so Gillian and Gayle, thank you for joining us. I welcome you and let’s go ahead and start with Gillian McGoldrick, the editor, can you sort of just set up for us how it was that the staff, The Playwickian, came to this decision, and how did you let the community know about it? How did you share that decision with your audience?

Gillian McGoldrick: So a Native American parent in our district filed a complaint against the mascot name, which is the Redskins, and then after we started sort of hearing it and really started to actually listen to what this woman was saying at these school board meetings and just pleading against this mascot name, that’s when we decided we should talk about it and then through many debates, with a lot of different changing minds, the editorial board at The Playwickian decided with a 14-7 majority to remove the word from the paper. And we wrote an editorial about this, in the October edition of The Playwickian, we said, with the majority view as to why we were taking the word out, we also published the dissenting view of the seven who believed it should stay in.

Frank LoMonte: So, you go ahead and you publish this editorial, you’ve now declared this position to the community, what is the reaction and response from your school administration?

Gillian McGoldrick: They were not happy. That would not be the word to describe them at all actually. A few days after we went to print and we distributed to our school, my advisor received an email with a directive saying that we, as the editorial board of the The Playwickian, cannot deny any advertisements or letters to the editor or any pieces of the writing that used the term that we deemed as a racial slur and that we must publish it and we cannot edit it out, as we could any other word that was a racial slur or whatever else..

Frank LoMonte: Right. So is other words, obviously if somebody turned in a column or a letter that has the N-word spelled out in it, it would have been the policy and the style of the staff not to publish that offensive word, you felt like you were being subjected to a double standard here by being told to publish a word that the majority of the staff had agreed was, in its own way, the equivalent of publishing something like the N-word. Right?

Gillian McGoldrick: Exactly, exactly.

Frank LoMonte: So how does this — you receive this instruction from your school administration that says “you are to accept this word if anybody submits it in an ad or a column or a letter or any type of an article,” how did that go over with your staff? Even with the seven people who were in the dissenting view who would have gone ahead and kept it in?

Gillian McGoldrick: We were unanimous. After that point, after they said that we were compelled to publish to anything with the word in it, that that wasn’t right. A few days after, maybe it was even two days after, we received a full page advertisement that, this is not a direct quote, but it was something that “Redskins is family, Redskins has so many years of tradition.” And we were to be publishing that and we were unanimous that that was not what we wanted to do and the SPLC and the Journalism Education Association and the Pennsylvania School Press Association all went in and got an awesome advertisement that we put in to go along with that, with our 12.9 rights.

Frank LoMonte: Yeah, awesome. And so that’s actually a good segway to bring in Gayle Sproul to talk about, you referred to section 12.9 of the Pennsylvania Code, which is a protective measure that Pennsylvania has, along with a handful of other states, that gives students enhanced legal protection above and beyond the bare minimum that is recognized under the First Amendment to the United States Constitution. So, Gayle, you and your firm actually prepared and sent a letter to the school administration spelling out for them why a directive compelling these young people at a public institution, to publish the editorial content of the administration’s choosing, why that runs afoul of state and federal law. So, can you sort of lay out for us the law 101 here about what laws are implicated by that directive.

Gayle Sproul: In a nutshell, and I should say that I think formally the way it stands with the school district now is that the editorial policy is supposed to be on hold, that’s the language of the administration, that sort of directive we believe violates the U.S. Constitution, the Pennsylvania Constitution and the state law of Pennsylvania. The Supreme Court has said, very famously in the Tinker case, which came out of the Vietnam War and the protests that ensued from the various things that happened in that war, that students don’t shed their constitutional rights at the schoolhouse gate and that is the law of the land.

However, there are instances, in which in a set of very limited circumstances, schools can limit speech. And what the court said in the Tinker case, is that some form of speech, or in that case passive silence, causes substantial disruption or material interference with school activities or to the rights of others, school officials can limit it. What we’ve said here, and I should say that’s the burden of the school district to prove, what we’ve said here is there is no material disruption and there is no interference with the rights of others or impact on the rights of others. And we have pointed out that the school, experienced people in the school, including the football coach who is the coach of the Redskins team, has said there’s been no problem in the school and in fact there’s a very positive atmosphere in the school. So there’s no interference.

There’s another branch of limitation, which came under the Hazelwood case, in which the court said where school sponsored speech is an issue, the school district can censor or limit that speech if they can relate that to a legitimate pedagogical interest. What we’re saying here is that doesn’t even apply in our case because our students are not trying to say something, they’re trying not to say something. They are, like the students in Tinker and recently in a third-circuit case that involved the wearing of armbands, this a silent, passive expression of opinions. And rather than what would normally be the case, there’s some sort of raunchy article or headline or something that the school administrators are trying to put a lid on, that’s the opposite of what is happening here and these students are actually trying to prevent the use of offensive speech and in our view should be applauded for it rather than disciplined or in any way limited.

And there’s yet another issue, which is forcing students to use speech that they do not wish to use is something called compelled speech. As Gillian was talking about, which is prohibited, school administrators cannot force students to espouse the view of the school and to the extent that they would require the student — they had not yet done this — but if they were to require the students to use the term Redskins, when they have chosen not to, in our view that is compelled speech. And I should say that the ad that Gillian was talking about was pulled.

And then finally, the Pennsylvania Constitution mirrors the federal Constitution, some states have even more protective constitutions, but what we have in Pennsylvania is what you were talking about, which is a state code, which essentially gives the student editors, the quote is “they are as free as editors of other newspapers to report the news and to editorialize.” And the school district is specifically limited by the code in their review and their restrictions. They can only remove obscene or libelous material and edit other material that would cause substantial disruption or school activities. In other words they have incorporated the Tinker standard into the state code. So, all of these things, all of these sources of authority in our view and these laws and these rights that are assured by these laws, would be violated if the school district went through with its potential decision. And again, at this point they haven’t done this, but they’ve suggested the students must use the word and the students have decided that they don’t want to and that they won’t. So that’s where we are.

Frank LoMonte: Yeah, so let me ask, there’s an argument that is sort of a novel one that we haven’t seen come up a whole lot in these situations and one that the school seems to be hanging a lot of reliance on, which is this idea that there are offsetting First Amendment interests here, that the students who might want to write a column or want to submit a letter or want to purchase an ad using the R-word, are going to be stopped from doing so by the editors’ chosen editorial policy and that somehow that’s a violation of their legal rights and that the school needs to protect their rights. Can you sort of help us understand why that’s different, why a decision made by the student editors is not analogous to a decision made by the principal?

Gayle Sproul: I can try. First of all there’s something in the law called state action, which basically has to happen for something to be unconstitutional. So, a principal and an administrator of a school district is a state actor, a student editor is not. So the actions of an editor are not state action and therefore the students are not able to deprive anyone of their constitutional rights. But, putting that aside for a second, I would like to say that there are a couple of flaws in this argument. And one is, one interesting aspect to the argument, is that I think what the school district is arguing when they say that, is that the newspaper is a public forum, because if it weren’t a public forum there could be no constitutional rights that could be deprived. If it were in a limited purpose public forum or a public forum. So that to me is a very interesting approach and I wonder if they’re willing to go out and say that it’s a public forum. I think that would be tremendously helpful to our students.

Frank LoMonte: Sure, right, with all of the protections that adhere to public forum status for a publication, absolutely.

Gayle Sproul: It is the most protected, potential thing. A public forum is the thing that the First Amendment was essentially designed to protect. But in addition to that, even if it’s just a limited purpose public forum, under the Hazelwood case, the school would have the right to change or to prevent the use of an offensive word, if it could relate that to a legitimate pedagogical purpose. So, what they’re saying is that the students, if you want to take their argument to its logical conclusion and say that there are people who need to be able to write things, say things, and the students are precluding them from doing that, they’re actually doing only the thing that the school itself would do if it were actually adhering to its own policies which prevent the use of offensive words. There’s a Neshaminy School District policy that is very clear that students can be punished for using offensive, vulgar language. These students are trying to do just that. They’re adhering to that. And all they’re trying to do, they’re certainly not changing the content, the material content of any communication that would come to them, either an advertisement or an article or a letter, because all they would be doing, maybe essentially the equivalent of bleeping out the word, maybe an R… or instead of saying Redskins saying the football team, or the girl’s soccer time, they’re not changing the content of the communication. So our view is for all those reasons, that argument doesn’t hold a lot of water.

Frank LoMonte: Two things to emphasize there. Point one, you’re quite right, if a student were to confront another student in the hallway and say, “you Redskin,” that would be a violation of the school disciplinary code, so the very same word that is being forced on these students is a word that in many other contexts inside of the school would constitute a disciplinary offense. The other is if you take the school’s argument at face value that the editors are prohibited from changing any wording that is submitted by anyone who submits an article, then they would cease. A student would have a First Amendment right to have an article published as is, unchanged, and with no editing alterations, which certainly, can’t possibly be the case, it would be a dramatic seat change in the way that newspapers have been running since the invention of newspapers. It doesn’t sound like it could practically be right.

So, Gillian, I guess bring us up to date. As we’re talking it’s right at the end of January, so where do things stand right now? You have an issue that even has gone to press or is about to and where do things stand?

Gillian McGoldrick: Right now we are sort of just like in a limbo. We’re waiting for us to received something with the R-word in it and then have to say that we will not be publishing it just as our letter of advocacy from Gayle and Katherine (Bolger) from Levine Sullivan stated all of those points that she has just spoken about and given it to the district to see that what they’re doing is unconstitutional and goes against a lot of our rights. So right now we’re really just waiting for them to tell us that we have to publish it and they’re already aware that we will not be doing that. And also, we have a great issue that will be coming out on Valentine’s Day, that I’m very excited about, so that’s pretty much where we are for now.

Frank LoMonte: Good, good. And I should have asked too, this is that very unusual case involving high school journalism that did sort of catch fire among the general public and the professional news media and it was featured on Keith Olbermann’s show even, it has gone both across the news and the sports media nationally. How is that going over, I guess with the students on The Playwickian staff? How do they feel about being the center of attention that way?

Gillian McGoldrick: Everybody just thinks it’s so cool but at the same time it’s really, it’s awesome to see that just kids from high school can be recognized and how much support we’ve received nationally from so many people, just giving us that pat on the back that we are doing the right thing here and that’s really what all of the student editors want to hear because it was sort of scary in the beginning when people were just ripping up the newspaper that we just spent so many hours putting together, just because they thought we were trying to change the mascot and so getting all of the support and all of this love back to us is just so great for all of the editors.

Frank LoMonte: And I will say too, this is not something that we always invariably see when there is a censorship controversy in a school, although there are unfortunately times when people in the professional news media will, for reasons that seem quite mystifying for me, identify with the authority figures doing the censoring rather than identifying with the journalists, so it has been quite gratifying to see the outpouring of support from the professional news media, to include, am I right here that your community newspaper, your local community newspaper, following the lead of the students has decided that it will no longer use the taboo R-word to refer to the sports teams either, correct?

Gillian McGoldrick: Yes. Exactly. And they actually in their editorial — it’s the Bucks County Courier Times — and their editors saying, and all their sister newspapers, in their editorial they stood up for us actually, saying that they were going to take out the word just as we are and the administration should back down and that we do have the right to do this.

Frank LoMonte: Well it’s wonderful that you were able to inspire that much change, even to show leadership that has professionals following your lead. Gayle, let me sort of let you wrap this up. We heard from Gillian about where the newspaper stands, where does this stand as a legal matter? We have a little bit of an unjoined or maybe unresolved issue here, right?

Gayle Sproul: We stand at our respective ridges looking at each other. We wrote the letter, we have not had a response to the letter yet. I hope we will soon. I expect we will. It really depends on the administration and really the ball is truly in its court and so I don’t know where we are at this moment, but I know we’re not doing anything yet, we’re waiting. But I just wanted to add, I don’t know if you’re aware, but just this month the U.S. Trademark Office decided that it wouldn’t register anything with the Redskins trademark and found it to be derogatory. So, I mean, it seems to be spreading and it’s gratifying. I do want to say that these kids, from our looking through what they’ve done here and analyzing it, have displayed remarkable maturity and dedication to doing something that they really, truly believe in and doing it correctly. And even the principal has nominated Gillian for a journalism award here, it’s a very interesting situation in which I think what really stands out to me is the conduct of the students and they should be admired for it.

Frank LoMonte: Our congratulations to Gillian and everybody at The Playwickian for their fortitude with a deserved recognition that they are getting. And we’ll be following this case and our thanks too to everyone at Levine Sullivan, especially Gayle Sproul, for jumping in on a volunteer basis and giving countless numbers of hours on a hurry-up basis, without hesitation, to come to the rescue when the students needed somebody to come to their defense. So, I want to thank you both. Gillian McGoldrick and Gayle Sproul of Levine Sullivan for being with us on the SPLC podcast.

And for those who are interested in this story and want to learn more, please follow the news items on the SPLC website, that’s www.splc.org, you can follow us on Twitter, it’s just @SPLC, join our group on Facebook and if you have any question at all about your legal rights as journalists, get in touch with us at 703-807-1904 or splc@splc.org. Thanks for listening and we’ll talk to you next month.