In the off-campus world, government authorities generally can’t interfere with citizens making recordings in public spaces. Whether a school building is a space where citizens have a right to record is uncertain.
Recently, a federal judge offered some helpful clarification in a favorable First Amendment ruling that student journalists may find useful in asserting their right to gather news during the school day.
The ruling, Pollack v. Region 1 School Unit, concludes that a Maine middle-school student had a constitutionally protected right to wear a recording device at school. The case has nothing to do with journalism – the child’s parents wanted to use the audio recorder to confirm their suspicions that their son, whose disability impairs his ability to communicate, was being mistreated – but its principles can be applied to newsgathering.
It is perhaps surprising that the First Amendment right to gather news remains poorly defined after centuries of legal precedent. It is clearly established that the Constitution protects the process of distributing information, but much less clear that it protects the ability to observe and record news.
At one extreme, the Supreme Court has said there is a constitutional right for public observers, and specifically journalists, to attend the key portions of criminal trials. At another extreme, the Court has found no constitutional right to obtain access to government documents (although agencies are free to create a statutory right of access). That leaves quite a lot of uncertain middle ground.
Into that unexplored space enters U.S. District Judge Nancy Torreson, chief judge for the district of Maine.
In the Pollack case, Torreson was asked to determine what level of constitutional protection, if any, applies when a student seeks to make audio recordings of events during the school day. The Pollack family asserted a right to equip their son, then enrolled in middle school under a special-education plan, with an audio recording device to help them understand why he was coming home emotionally distressed, which the child (referred to in court records by his initials, “B.P.”) was unable to describe himself.
While the judge did not find any guiding legal precedent in the context of a school building, she did find a growing consensus that the First Amendment protects the right to record audio and video as a necessary antecedent to expression. Specifically, the federal First Circuit U.S. Court of Appeals, which has jurisdiction over Maine, has found a constitutionally protected right to record the activity of police conducting official business in public places (Glik v. Cunniffe), a ruling that’s been followed by the federal Fifth and Seventh Circuits as well.
The case presented a potential choice between two extremes. If the Glik line of cases applies inside schools, then the First Amendment applies with full force and school authorities may not restrict recording absent the most compelling of justifications. If no First Amendment protections apply at all, then the school may regulate the use of the space in any reasonable manner.
The judge settled on a well-traveled middle ground, the Supreme Court’s Tinker standard, created in the landmark 1969 ruling Tinker v. Des Moines Independent Community School District. There, the justices held that First Amendment rights forcefully protect student expression, but with the caveat that school authorities may prohibit or punish speech if they determine it will imminently lead to a material and substantial disruption.
In her April 28 opinion, Torreson emphasized that the First Amendment would not permit the school to enforce even a purportedly “neutral” ban on electronic devices in a viewpoint-discriminatory way – in this case, because the parents wanted to gather evidence of suspected wrongdoing by school employees.
Torreson’s ruling is an encouraging one for student newsgatherers. It suggests that a categorical ban on recording on school grounds during school time would be difficult to justify. Rather, schools will have to point to specific facts indicating that recording is disruptive under particular circumstances – and the burden is on the school to present that justification.
Presumably, schools will be able to justify bans on recording where necessary to keep order during class or protect student privacy in sensitive situations. And the Maine school district could still prevail at trial under a Tinker analysis, if it’s shown that “B.P.” could not have recorded school employees’ behavior without interfering with classroom teaching or compromising classmates’ privacy.
The Pollack ruling has significant potential applications beyond journalism. Recall the alarming video that led to the firing of a school police officer in Richland County, S.C., after he injured a student by wrestling her out of her desk and slamming her to the floor. The student who shot that nationally publicized video was threatened with serious disciplinary charges – charges that, under the Pollack ruling, would be subject to challenge on First Amendment grounds.
The Pollack case is not yet ripe for appeal because it has not reached a final judgment. If and when it goes before the First Circuit, the ability of student journalists to gather news safely and without fear on school property will be hanging in the balance.