The Student Press Law Center seeks to pro-actively improve the legal landscape for student journalists and their advisers. In addition to providing legal information through the legal hotline, the SPLC regularly files amicus or “friend-of-the-court” briefs to represent the concerns of student journalists.
*Note: This page will be updated soon with the briefs from 2014-2018.
- Know your rights when covering a protest (5/29/2020) - These legal reminders and tips will help you avoid and/or deal with confrontations while covering protests.
- Campus police records should be open for public inspection, open-government coalition tells state Supreme Court (7/1/2019) - Editor’s Note: The Student Press Law Center signed onto a friend-of-the-court brief from the Brechner Center for Freedom of Information at the University of Florida. This story was originally published by the Brechner Center. Police who exercise arrest powers at private universities should abide by the same transparency standards as all other law-enforcement agencies, a… Continue reading Campus police records should be open for public inspection, open-government coalition tells state Supreme Court
- Open-government advocates unite to support transparency in university foundation finances (4/25/2019) - Editor’s Note: The Student Press Law Center signed onto a friend-of-the-court brief from the Brechner Center for Freedom of Information at the University of Florida. This story was originally published by the Brechner Center. A string of mismanagement scandals at university foundations across the country demonstrates the urgency of opening foundations’ financial records to public… Continue reading Open-government advocates unite to support transparency in university foundation finances
- Supreme Court asked to hear case about criminalizing “disruptive” speech to school employees, SPLC signs onto brief siding with students (2/19/2019) - Editor’s Note: The Student Press Law Center signed onto a friend-of-the-court brief from the Brechner Center for Freedom of Information at the University of Florida. This story was originally published by the Brechner Center. Feb. 19, 2019 update: Supreme Court Declines Challenge to Kentucky Law on School Disruption. Coverage from Education Week. Read or download… Continue reading Supreme Court asked to hear case about criminalizing “disruptive” speech to school employees, SPLC signs onto brief siding with students
- SPLC signs onto brief appealing discipline for “disrespectful” political speech by medical student on Facebook (2/12/2019) - Editor’s Note: The Student Press Law Center signed on to a friend-of-the-court brief from the Brechner Center for Freedom of Information at the University of Florida. This story was originally published by the Brechner Center. Read or download the full brief. In the latest legal skirmish over the ability of public universities to regulate what… Continue reading SPLC signs onto brief appealing discipline for “disrespectful” political speech by medical student on Facebook
- Open-government advocates defend public’s right of access to campus disciplinary cases involving violent crimes (2/6/2019) - Editor’s Note: The Student Press Law Center signed onto a friend-of-the-court brief from the Brechner Center for Freedom of Information at the University of Florida. This story was originally published by the Brechner Center. Read or download the full brief. Public universities should release records showing how they punish students found liable for committing serious… Continue reading Open-government advocates defend public’s right of access to campus disciplinary cases involving violent crimes
January 2013: The State Journal-Register v. University of Illinois-Springfield
In September 2009, the University of Illinois paid $200,000 to settle a claim made by one or more women who said they were sexually assaulted by a coach at the school. Before the settlement, two coaches resigned. Reporter Bruce Rushton of The State Journal-Register requested records regarding the coach’s resignations as well as the settlement agreement. The university refused citing FERPA, the Family Educational Rights and Privacy Act. More than a year later, the university eventually provided a heavily redacted form of the settlement agreement. The newspaper sued seeking the unredacted agreement as well as the remaining records, arguing that an investigation into wrongdoing by a coach is not an educational record protected by FERPA. The Circuit Court of Sangamon County ruled in favor of the university, a decision the newspaper then appealed to a state appellate court.
SPLC filed an amicus brief in support of the newspaper and citied the need to curtail the misuse of FERPA when denying access to public records. FERPA was designed to protect students from being unable to access their own records while law enforcement and other agencies were routinely allowed to access their academic records without students’ consent, the brief argues. In practice, universities broadly define educational records and use FERPA as a blanket excuse to avoid disclosing records. The brief argues that in the investigation records relating to a coach’s misconduct are not education records merely because they may include the name of a student.
November 2012: Education Media Company at Virginia Tech v. J. Neal Insley
In 2006, the student newspapers at Virginia Tech University and the University of Virginia filed suit against the state’s Alcoholic Beverage Control board for its blanket ban on the advertising of alcoholic beverages in college newspapers. Under Virginia law, advertisements that mention alcohol are only allowed if they reference “a dining establishment.” The papers argue the ban has caused them to lose revenue and say the ban unfairly targets college newspapers by limiting the student editors’ right to print advertisements. The ABC board says the ban is justified to limit the sale of alcohol to minors and curb excessive college drinking.
In 2008, a federal magistrate ruled in favor of the student publications, saying that the regulations were not narrowly tailored enough so as to justify infringing on the papers and advertisers’ rights. On an appeal from the ABC board, the U.S. Fourth Circuit Court of Appeals reversed that decision in 2010, allowing the ban to stand. The Supreme Court declined to hear the student editors’ appeal, sending the case back to the district court for a ruling on the constitutionality of the ban as it specifically applies to the two papers. This time, the federal magistrate ruled in favor of the ABC board, saying that speech can be curtailed if the government has a “substantial” interest in the restriction.
The papers have again appealed to the U.S. Fourth Circuit Court of Appeals, which is where the SPLC filed its brief. The SPLC brief asks that the ban be declared unconstitutional because it puts an undue burden on specific type of media and is thus a violation of the First Amendment. By eliminating a particular source of revenue for college newspapers and only college newspapers, the ABC board has created an undue financial burden. This means that other news organizations have an unfair competitive advantage. The brief also argues that the state cannot show that the ban achieves any particular narrow aim, since many readers of college papers are of legal drinking age.
June 2012: Tatro v. University of Minnesota
Amanda Tatro was a student at the University of Minnesota mortuary science program. During the 2009 fall semester, Tatro made posts on her Facebook account where she made a series of comments about her cadaver that were deemed offensive. One of the posts involved her standing over a body saying, “I think I am going to stab him.” When the faculty discovered them, they expelled her from the program. Tatro sued claiming that her free speech rights were violated since she made the posts outside of school and thus was protected by the First Amendment. The school claimed that the threat of losing funding and the breach of mortuary ethics constituted a sizable disruption to school activities and thus they were justified under Tinker to censor her speech. The local district court ruled in favor of the university and it was appealed to the Minnesota Supreme Court.
The SPLC disagreed with the lower court’s ruling, arguing it would lead to unnecessary censorship of student speech. If universities can expel students for private Facebook posts that are only intended to be seen by friends and acquaintances, then they can potentially censor political speech or speech critical of government actions. In addition, this standard allows schools to punish students for comments that have nothing to do with school activity. Another problem is that the censorship does not meet the Tinker standard.
June 2012: Frudden v. Pilling
In October 2011, Kay Ann Pilling of the Parent Faculty Association pressed an non-secret ballot calling for school uniforms in a Reno Nevada School district. Despite voting irregularities, such as only seventy percent of ballots being counted, the measure went forward. Marry Frudden sued on several counts including the idea that it violated her students’ First Amendment right to free expression, particularly because the official uniforms included the school’s motto, “Tomorrow’s Leaders,” on the shirts. The United States District Court for the District of Nevada ruled in favor of Pilling, writing that the rule was viewpoint neutral.
In June 2012 the U.S. Court of Appeals for the Ninth Circuit heard the case on appeal. The SPLC took a unique interest in the case in order to maintain the right of students to use clothing for political speech and uphold the Tinker Doctrine. The SPLC contends that since dress is one of the few forums still left open for student free speech the court should uphold the right of students to use dress to express political concerns. The SPLC further asked that the Tinker ruling be upheld and that students should be able to wear material, at least on their uniform, to protest various activities. Finally, non-compliance with a statute such as this one would not constitute an undue burden on the school.
In 2014, a panel of the Ninth Circuit reversed the District Court, finding, among other things, that the mandatory display of the school motto was compelled speech.
June 2012: Nick Ochsner v. Elon University
On March 2010, Elon University student journalist Nick Ochsner requested records about an on-campus arrest by campus police. Elon police provided a bare-bones documentation but did not provide the narrative associated with the incident report. Ochsner then requested the records from the North Carolina attorney general, citing a state law that establishes the attorney general as the custodian of all campus police records. This request was also denied because the attorney general’s office said it did not have the records. Ochsner sued the private school alleging violations of the North Carolina Public Records Act that states that even police departments supervised by private institutions must disclose arrest information. A trial court granted the school’s motion to dismiss, which Ochsner appealed. In June 2012, the state’s court of appeals sided with the school, saying that private school police records were exempt from the state’s public records statute. Ochsner appealed the decision, and the state’s supreme court elected to hear the case.
The SPLC, along with other media organizations, filed an amicus brief with the N.C. Supreme Court requesting that the lower court’s decision be overturned. The brief argues that the appeals court’s decision directly conflicts with the state’s public records law. The act states that all public or private school police departments with power granted by the attorney general are required to disclose information upon request. The SPLC brief also argues that private college police forces perform the same function as state-operated police agencies and that without public disclosure, the media’s ability to serve as a government watchdog is weakened
June 2012: Taylor Bell v. Itawamba County School Board
In August 2011, Taylor Bell, then a high school senior at Itawamba Agricultural High school, recorded a rap song that accused two coaches at the school of engaging in sexual misconduct with female classmates and friends of Bell’s. Bell shared the video, which used vulgar language and contemplated that the coaches might face retaliatory violence, with his Facebook friends and posted it on YouTube. After learning of the video, the school’s principal and the district’s superintendent accused Bell of making up the allegations. Bell was suspended and later sent to an alternative school. He appealed the disciplinary ruling to the school board and lost, and filed a federal lawsuit alleging First Amendment violations in [month year]. A federal district court upheld the punishment, saying that off-campus student speech can be censored or punished if the speech causes a substantial disruption of school activity, essentially expanding the 1969 ruling in Tinker v. Des Moines Independent Community School District to apply to both on- and off-campus speech.
The SPLC filed an amicus brief in defense of Bell, writing that, while in poor taste, his speech — “an attempt to engage the public’s attention on a matter of grave concern, the sexual harassment of schoolchildren by educators” — did not cause a substantial disruption to the school. The SPLC’s brief, which was written with the help of attorney Scott Sternberg, warned that the district court’s “overbroad” decision could be used to punish well-meaning criticism of school officials purely for the sake of image control, including investigative or editorial journalistic work. In addition, the SPLC disagreed with the district court’s expansion of Tinker, writing that students need a safe space in which to criticize the actions of school officials. Finally, the SPLC brief argued that because the school has the job of educating students on issues such as free speech, it is against their mission to deny them the right to criticize public officials.
February 2012: Ward v. Wilbanks
Julea Ward was a graduate student at Eastern Michigan State University enrolled in the school counseling program. She joined a program where she would counsel undergraduate students and was assigned a student who was having issues with his homosexuality. Because of her religious objections to homosexuality, she requested that she be assigned another student. The administration expelled her from the program stating that she violated counseling ethics that say a counselor must be able to provide assistance to everyone regardless of moral beliefs. Ward sued stating that her First Amendment protections of religion and free speech were violated.
The SPLC, with the help of ARN attorneys Douglas R. Dennis, Monica L. Dias, and Susan Grogan Faller of Frost Brown Todd LLC, filed a brief in favor of Ward arguing that the trial court’s decision represented an unreasonable expansion of Hazelwood. The Hazelwood standard was designed for a very strict set of circumstances involving government property, impressionable speakers, and a risk of confusion with government-endorsed speech. Ward did not use school property but simply made a moral objection to what the faculty was asking her to do. If a student is unable to criticize a faculty member then the student has no avenue to voice legitimate concerns. Finally, she directly expressed her concerns to a board which is supposed to reasonably listen to students. If a student is expelled for these kind of actions then no student would voice any concerns.
January 2012: Rocky Disabato v. South Carolina Association of School Administrators
In December 2009, radio talk-show host Rocky Disabato requested records from the South Carolina Association of School Administrators about federal stimulus funding. Disabato argued that the association is a public entity since it receives government funds and is thus subject to the state’s freedom of information laws. SCASA contended that it is a private entity and thus not required to comply with the state’s public records law. In March 2011, a trial court held that since SCASA is technically a private nonprofit it is thus not subject to FOIA requests. The court also said that requiring the group to comply with the public records law would violate the organization’s First Amendment right to not speak. The trial court’s decision was appealed to the South Carolina Supreme Court, where the SPLC filed its amicus brief.
The SPLC brief argued against the association’s assertion that it is not a public entity. While SCASA is technically classified as a private nonprofit, it receives public funds and lobbies for government agencies, the school boards and administrators that it represents. Its staff are covered under state dental and health plans and the group performs other governmental tasks. Because of this, the SPLC argued the group is subject to FOIA requests. In the brief, the SPLC argued that the trial court’s decision would imperil the ability of the press to serve as a government watchdog and cites a long history of cases where public officials have been found to be subject to increased oversight because of their position overseeing work for the public good.
December 2011: MRB et al v. Puyallup School District
In February 2008, after learning about a report that said more than half of teens aged 15 to 19 had engaged in oral sex, students reporters at Emerald Ridge High School decided to run a series of articles on the subject in their paper, the JagWire. One of the articles included a series of interviews with students about their experiences with oral sex. When the article was published, the students quoted and their parents complained, saying they had not given consent for their names to be used. JagWire staff said the reporter clearly identified herself as a reporter and gave the students several opportunities to request anonymity, but they declined.
The families of the students quoted sued, alleging that the paper published “private details” about the students without their consent. A district court jury ruled in favor of the student journalists, saying that they acted appropriately and that the students quoted had given their consent. The families appealed the ruling to the state’s Court of Appeals, arguing that the school district’s policy of allowing the newspaper to operate as an “open forum” for student expression was negligent.
The SPLC brief emphasized that student editorial autonomy is considered to be an educational “best practice” among journalism educators — and not a form of negligence, as the families contended. The brief asks the court to uphold the jury’s findings.
October 2011: Chicago Tribune Co. v. University of Illinois
In 2009, the Chicago Tribune was conducting an investigation into allegations that the University of Illinois had a special recruitment track for well connected families. In order to gain information about the scope of this program, the Tribune used freedom of information requests to seeking records related to the program. The university said that it would violate the Family Educational Rights and Privacy Act (FERPA), a federal law that prohibits disclosure of student academic records, to release information about the scholarship offers. The Tribune sued, and the U.S. District Court for the Northern District of Illinois agreed that FERPA did not prohibit the disclosure of the records in question. The University of Illinois appealed to the U.S. Court of Appeals for the Seventh Circuit.
In 2011, the SPLC and a coalition of media and First Amendment groups filed a brief in support of the Tribune. Universities repeatedly use FERPA to cover up abuses of the public trust and to undermine the clear purpose of state open records laws. The records at issue in this case involved nothing more personal than the name of the student.
In 2012, the Seventh Circuit vacated and remanded the decision with orders to dismiss for lack of subject matter jurisdiction, finding that the entire case was a question of state law and that there was no federal question for the federal courts to answer.
October 2011: FCC v. Fox Television Stations
In 2004 Fox was fined for the use of fleeting expletives during its broadcast of the Billboard Music Awards in 2002 and 2003. The FCC claimed that it had a pressing need to protect young children from obscenity in the easily accessible medium of broadcasting—a position the FCC has maintained, although not one it has enforced in a standard way, since the 1974 decision in FCC v. Pacifica. Fox claimed that they were not given fair notice of the FCC’s new regulations and that the current framework is too vague and arbitrary.
With ARN attorney Gregory Stuart Smith, the SPLC filed a brief in support of Fox in 2011. The SPLC has an interest in this case because of its unique effect on student broadcasting. Student broadcasting networks are chronically short of funds and are thus unable to pay an excessive fine. In addition, since they are made up of students learning the broadcasting trade, they could be more prone to mistakes.. The SPLC points out many cases in which the FCC will fine one group but not another. This makes it difficult for student broadcasters to cover issues that are important to their constituents.
September 2011: B.H & K.M., et al., v. Easton Area School District
In November 2010, Jennifer Hawk and Amy McDonald Martinez filed a lawsuit against Easton School District, in Pennsylvania, in response to what they felt was the unlawful suspension of their daughters. Their daughters were punished for wearing “I (Heart) Boobies” bracelets in order to promote breast cancer awareness. In February 2011, the U.S. District Court for the Eastern District of Pennsylvania agreed with the students that the bracelets are not lewd or vulgar and are protected speech. The school appealed the decision to the U.S. Court of Appeals for the Third Circuit.
In 2011, the SPLC filed a brief (along with ARN attorney and former SPLC legal fellow Wayne I. Pollock of Dechert LLP) on behalf of the students arguing that the trial court’s decision gives school administrators excessive power to censor independent student speech. The brief cite studies that show schools are often too quick to suspend over minor issues and that a suspension can have irreversible consequences on a student’s life. The brief also rejects the district court’s view cite precedent for a narrow interpretation of Frasier and that this case does not fall into it. This case does not fall under the Bethel School District v. Fraser rule because most people would not consider the word “Boobies” lewd or offensive. But even if we assumed that was not the case, surely fighting breast cancer is an activity with redeeming value?
In August of 2013, the Third Circuit agreed with the students and upheld the trial court decision. The Supreme Court declined to hear the school’s appeal in 2014.
April 2011: Thomas Barnes v. Ronald Zaccari
Thomas Barnes was a student at Valdosta State University who was expelled in 2007 by the school’s president without any warning or a chance to contest the decision. Barnes had written a letter to the editor in the school’s student newspaper protesting a new parking garage that he believed to be environmentally unsound. He also posted about the parking garage, which Zaccari championed, on Facebook. Zaccari decided to “administratively withdraw” Barnes, a decision that functioned as an expulsion.
Barnes appealed the expulsion and was ultimately reinstated, but not before he missed a semester’s worth of class. He sued Zaccari in January 2008, arguing that his First Amendment and Due Process rights were violated. The District Court agreed, and the school appealed to the U.S. Court of Appeals for the Eleventh Circuit.
In 2011, the SPLC filed a brief in support of Barnes. Barnes was engaged in a constitutionally protected activity. Before he can be dismissed for having engaged in that activity, he has a right to a full and fair hearing.
January 2011: Heenan v. Rhodes
In 2004, Judith Heenan was an Auburn University nursing graduate student who was expelled for Facebook postings that included statements critical of the university’s grading and discipline policies. The university complained that the postings were potentially disruptive and that under the Hazelwood standard they were justified in imposing discipline. Heenan claimed that since they were comments made off campus and were made in direct criticism of the university she was protected by the First Amendment. The case went to the U.S District Court for The Middle District of Alabama.
The SPLC was concerned that this cause could potentially lead to a dangerous expansion of Hazelwood power. Accepting the university’s position would permit schools to censor and punish whistleblowers. The essence of Heenan’s posting was to criticize university policies, not to create any disruption. Finally, the university is more than capable of teaching with students critical of their policies.
October 2010: OSU Student Alliance v. Ed Ray
At some point during the winter term of the 2008-09 school year, students at Oregon State University who ran a conservative alternative newspaper, The Liberty, noticed that their distribution bins had been removed. After searching they found that the boxes had been thrown away in a garbage pile. They complained to the campus authorities who said garbage personnel threw them away because they were blocking traffic. Liberty staff then asked for an alternative place to put the newspapers and were told they could put boxes in only two locations on campus. This was in contrast to the treatment of the official student newspaper, which was allowed to distribute throughout campus.
After negotiations with the school failed, the students editors sued alleging that their First Amendment rights had been violated by the seizure of their boxes and the limits placed on their newspaper distribution. In addition, the editors alleged the university was deliberately favoring its preferred paper since there were no limits placed on the student paper’s distribution. In February 2010, a federal district judge ruled that since there was no written policy to discriminate against the newspaper then there was no violation of the students’ First Amendment rights. The charges were dismissed, a ruling the editors appealed to the U.S. Ninth Circuit Court of Appeals.
The SPLC’s brief, filed before the appeals court, took issue with the idea that since there was no written record of a school policy then there was no proof of a First Amendment violation. Under this approach, colleges would be able to suppress unpopular views by simply not committing their policies to writing and instead giving verbal orders that do not create a paper trail. The brief also argued that failing limiting the paper’s distribution was violation of their rights. If colleges can give students with unpopular viewpoints inadequate places to promote their ideas then the views are essentially suppressed since they will not be able to reach a large audience, as compared to the more acceptable viewpoints, the brief argued.
August 2010: R.O v. Ithaca
The student newspaper at Ithaca High School, The Tattler, wrote an editorial questioning whether their sex education classes needed to go into such explicit detail. To accompany this editorial, they drew a cartoon of stick figures entangled in various positions drawn on a chalkboard in a classroom. Although The Tattler had always operated as a forum for student expression, the school censored the cartoon, arguing that it was “obscene.” In March 2009, the students and parents of the newspaper filed suit saying that their First Amendment rights were violated. A federal district court in New York found in favor of the school district using the Frasier and Morse standards of censorship and obscenity. The case went to U.S. Court of Appeals for the Second Circuit where the SPLC filed its amicus brief.
In 2010, the SPLC (represented by ARN attorneys Joseph P. Esposito, Thomas C. Goodhue, Ian Conner, and Dennis Gucciardo of Hunton & Williams) filed an amicus brief in support of the student editors. If explicit sexual information is being given to students in the context of a health class, how are students supposed to criticize that practice without referencing the content? Frasier and Morse were regulations applicable to speech in physical spaces, not publications.
In 2011, the Second Circuit ruled in favor of the school. Calling the cartoon “unquestionably lewd,” the court didn’t resolve what it thought the forum status of The Tattler actually was or what the implications of caselaw to that forum status should be.
February 2010: J.S v. Blue Mountain
In 2007, J.S. was a minor at Blue Mountain Middle School in Pennsylvania. She made a parody MySpace profile for her principal, portraying him as a sex addict who hit on students and parents. In response, the principal suspended J.S. for ten days. J.S. and her family sued, arguing that the school could not discipline her for her off-campus speech.
In 2008, the trial court found for the school district, and in 2009, a panel of the U.S. Court of Appeals for the Third Circuit agreed with the trial court.
In 2010, the SPLC —joined by the Pennsylvania Center for the First Amendment and the Marion B. Brecher First Amendment Project —filed an amicus brief urging the en banc Third Circuit to reconsider the panel decision in J.S. We pointed out that the panel decision lowered the constitutional threshold for off-campus speech that the panel’s decision could not be reconciled with other decisions from the same court. In 2011, the en banc Third Circuit reversed the panel decision, finding that J.S.’ rights were violated when she was disciplined.
January 2010: The People of Illinois v. Anthony McKinney
In 1978, Anthony McKinney was convicted and imprisoned for the murder of a security guard in Harvey, Illinois. In 2003, the Medill Innocence project started to investigate his case for potential irregularities that could exonerate him. Through their reporting, student journalists uncovered irregularities that led to state witnesses recanting testimonies and the confession of an alternative suspect.
The Cook County prosecutor’s office subpoenaed the course syllabus, student grades, and personal emails of students at the Medill School of Journalism. The students complained that this violated the Illinois Reporters’ Privilege Act. The Cook County prosecutors argued that student journalists had coerced witnesses to give incorrect information.
With the help of ARN attorney Erin Bolan Hines of Baker & Hostetler LLP, the SPLC filed an amicus brief in support of the student journalists in the Circuit Court of Cook County, Criminal Division in 2010. The Illinois Reporters’ Privilege Act is designed to protect reporters from government officials from intimidating investigative journalists who seek to uncover the truth. In addition, the act clearly states a very broad definition of journalists that covers students. The District Attorneys’ claim that they are participating in a criminal investigation is contrary to the law. Finally journalists investigating criminal matters need greater protections since they are often dealing with people who are danger of retaliation.
In 2011, a judge ruled that the students were acting as “investigators in a criminal proceeding,” not as journalists.
September 2009: Doninger v. Niehoff
In the Spring 2007 semester, 17-year-old Avery Doninger referred to some of her high school administrators as douchebags in a blog post complaining about the cancellation of a battle of the bands. When the Superintendent became aware of the post, Doninger was punished by being prevented from running from student government. In fact, when she won as a write-in candidate, the school prevented her from taking office.
Doninger sued, arguing that imposing discipline for a blog post made outside of school violated her First Amendment rights. The Federal District Court of Connecticut ruled in favor of the school on the theory that the post was “disruptive” because it called on members of the public to complain to the district about the cancellation of the battle of the bands. Doninger appealed to the U.S. Court of Appeals for the Second Circuit, where the SPLC filed its brief.
Whether this speech should be punishable by a school at all is highly questionable—it was made off campus in the personal time of a student, and if a school can reach this speech, then query what speech will ever be beyond their reach—but the SPLC’s brief argues further that the Tinker standard, if correctly and coherently applied, could never permit the imposition of discipline for asking the public to contact public officials to express an objection to the performance of public duties.
In 2011, the appeals court upheld the District court ruling, dealing a blow to the state of student free expression rights in the Second Circuit.
June 2008: Layshock v. Hermitage School District
In December 2005, high school senior Justin Layshock created a MySpace page parodying his principal, Eric Trosch. Layshock used a photograph of Trosch and answered a series of survey questions to fill out the profile that mocked the principal. School administrators learned questioned Layshock about the profile, and he admitted to creating it and apologized to Trosch. Later, Layshock learned he was being suspended and placed in an alternative education program for the remainder of the year.
Layshock’s parents sued the school district, arguing that punishing their son for off-campus speech was a violation of his First Amendment rights. The school countered that while his speech was made off-campus, it still made its way into the school and disrupted operations. A district court ruled in favor of Layshock.
The SPLC brief argued that Supreme Court precedent prohibits a school from punishing students for off-campus speech. Both Tinker v. Des Moines Independent School District and Hazelwood v. Kuhlmeier concern speech that occurs within a school, while Morse v. Frederick and Bethel School District v. Fraser concern speech at school-sponsored events. Secondly, the brief argued that while Layshock’s speech was lewd and offensive, it did not create a sizable disruption to the school.
August 2006: Smith v. Novato Unified School District
In the 2001-2002 school year Andrew Smith published two articles in the Novato High School newspaper that offended some members of the community. One was about illegal immigration and the other was about affirmative action. After students staged a walkout to protest the first article, the principal issued a statement apologizing for it and stating that it should not have been published. A day later, the school held a conference for parents where they said the same thing. At the same time, Smith was receiving threats of violence in addition to being stalked. A few days later, he was attacked and received a broken tooth. In light of the adverse reaction to the first article, the principal held the second article until a “counterpoint” could be written; ultimately, when nobody wrote a counterpoint, the article ran late.
Smith sued the school for violating California’s student free expression law, arguing that by stating that the illegal immigration commentary should not have been published, the school was taking action designed to punish his speech. Additionally, Smith sued for the censorship involved in the delay of the affirmative action commentary. The Marion County Superior Court ruled in favor of the school district using the fighting words concept which gives officials the ability to censor speech that might cause immediate breach of the peace. The case was then appealed to the California Court of Appeal, First District, where the SPLC filed a brief with the ACLU.
The right to espouse unpopular viewpoints comes with protection against government retaliation; the protection against retaliation is not limited in its scope or efficacy. It would not matter if Smith’s school retaliated by censoring him, delaying his next submissions, sending letters home, or playing loud music outside his classroom–all of these actions, when motivated by a dislike of the material he wrote, would be violations of California’s student free expression law.
The appellate court agreed, and ruled in favor of Smith, reversing the trial court.
December 2005: Lane v. Simon
In spring 2004, Kansas State Collegian adviser Ron Johnson was fired after the school’s journalism director reviewed the paper and said he found the overall quality to be poor. Johnson’s firing followed complaints on campus that the paper failed to adequately cover minority issues. Editor Katie Lane and Sarah Rice and Johnson sued the university claiming that the firing had a chilling effect on the newsroom and thus the actions violated the First Amendment.
The university contended that it had not removed Johnson because of the newspaper’s content, but instead because of its overall poor quality. A district court ruled in favor of the university, finding that content analysis that led to Johnson’s firing was not related to the paper’s content, only its quality. The students and Johnson appealed to the 10th Circuit, which is when the SPLC filed its brief.
The SPLC brief described Kansas State’s actions as “a case of censorship by proxy” and expressed grave concern about the chilling effect on student journalists that this decision could have throughout the country. If a journalism adviser can be fired over the student newspaper’s content, reporters could shy away from covering controversial issues.
April 2005: Thomas Mink v. Kenneth Buck
In December 2003, Thomas Mink published articles on his website that criticized Junius Peake, finance professor at his school, the University of Northern Colorado. The posts included photographs that were modified to look like KISS guitarist Gene Simmons and included the caption “Mr. Junius Puke.” When the professor heard of the posts, he contacted the Greeley Police Department seeking to press charges under the state’s criminal libel statute. Shortly after, police searched his home and confiscated his computer. Mink spent a week in jail, but ultimately no charges were filed. With the help of the American Civil Liberties Union of Colorado, Mink sued, alleging the state’s criminal libel statute violated the First Amendment and that the police search violated his Fourth Amendment right against unreasonable searches and seizures. A federal district court dismissed Mink’s case, saying the district attorneys responsible for signing off on the search were protected by absolute immunity and that Mink lacked the standing to challenge the criminal libel statute because he was never charged under it. Mink appealed the ruling to the 10th Circuit Court of Appeals, which is when the SPLC filed its amicus brief.
The SPLC argued that that Mink had standing to challenge the criminal libel statute and that the lower court’s ruling upholding the statute would have a chilling effect on student speech. Mink had standing because his rights were violated and he still incurred a significant financial burden even though no charges were ultimately filed. Under these circumstances the complainant incurred enough burden to file charges. The brief argues that criminal libel statutes are inconsistent with the First Amendment and have a chilling effect on speech. Students are particularly affected because they often lack the financial means to challenge threats of criminal libel prosecution. Students who lack financial backing will have trouble fighting charges and most will tailor their speech to avoid controversy.
August 2002: Hosty v. Carter
In November 2000, Dean Patricia Carter ordered the printer of Governor’s State University’s student newspaper, The Innovator, to cease printing unless an administrator read and approved the issue. This came shortly after the editors wrote about their adviser’s dismissal, which administrators said was unethical. Rather than comply with the new policy of prior review, which was against long-standing university policy, editors stopped publication after the paper’s Oct. 31, 2000 edition.
Editors Jeni Porche and Margaret Hosty filed a complaint in March 2001 seeking compensatory and punitive damages. A federal district court dismissed the university’s request to dismiss the case under Hazelwood v. Kuhlmier, which Governor’s State appealed. In 2003, the 7th Circuit Court of Appeals sided with the students, saying that Hazelwood was not the appropriate standard for censorship of college student media. The school asked for a rehearing en banc, which the court granted and where the SPLC filed its amicus brief.
The SPLC expressed grave concerns with the concept of applying the Hazelwood ruling to college students. Hazelwood, which concerned a high school administrator’s censorship of the student newspaper’s articles about teen pregnancy, was structured under the idea that not all topics are appropriate for a younger audience. The SPLC brief argued that this should not apply to the university level where the audience is more mature and comprised of adults. The also brief argued that colleges are intended to be facilitators of intellectual talent and a free press is integral to enhancing a free intellectual community. Applying the Hazelwood standard would allow the administration to be above scrutiny and thus undermine intellectual freedom.