FAQ about HB 1307

1. If professional journalists in the “real world” have to submit their work to an editor before it is published, why should student journalists be any different? Who will oversee them?

•"Like commercial journalists, student reporters do submit their work to editors — sometimes multiple editors — prior to publication. Most student media staffs have an editorial hierarchy that includes section editors, editors in chief and managing editors, all of whom perform duties similar to their commercial counterparts. In addition, school-sponsored student media, such as those covered by HB 1307, also have faculty advisers who work closely with the student staff and help ensure that the students understand and meet standard journalism practices." -Mike Hiestand, legal consultant to Student Press Law Center

•“The most valuable part of a student publications program is a trained adviser. That’s true at any level – high school or college. Someone with background in law and ethics, the reporting process, journalistic writing skills and production is essential – and THIS is the person who should be overseeing student journalists.

"Journalists in the “real world” have editors and publishers, but these are also not arms of the government, as the public high school principal or college administrator is. Thus, comparing him or her to an editor is inaccurate. A better comparison would be to the town mayor or the state governor. And no professional journalist would want a government official deciding which stories should run!” –Candace Perkins Bowen, Kent State University

•“They do submit to an editor. It’s just a student editor. There’s also an adult adviser that the administration needs to trust to teach his students responsibility that goes along with any rights.” –H.L. Hall, THSPA Executive Director

•'“Professional” is not quite the right term. In the “real world of commercial journalism,” the state has no claim to be the editor or publisher of a privately-owned publication.

The editor or publisher in the commercial media is a private person, not an agent of the state. School officials are agents of the state. If the state establishes the medium as a forum, then it agrees to stay out of what the forum publishes. If the state, the school in this case, wishes to have a controlled, public relations medium, all it has to do is to call it that. Don’t call it journalism; don’t call it a student medium.

Giving the principal the power to edit and remove copy is like giving the mayor the right to remove what he or she does not like before it is published. No commercial journalist is going to stand for that. Nor should any community stand by while the state controls something called student journalism." -John Bowen, Kent State University

2. Who owns school-sponsored publications?  If not the public school administrators/ school board, who?  Is it the taxpayer?  Or is it the students on the newspaper staff who sell ad space to finance the production cost of the publication?

•“This is debatable. Obviously, it depends somewhat on whether the paper is part of the curriculum. I think it becomes more of a student-owned medium when the students have to raise the money to produce. I guess that’s why I was always against giving the paper away free or letting the school board totally finance a publication. At the same time, most school boards will authorize money for equipment and supplies, and they do pay the adviser’s salary. I’m not sure it’s a question of ownership. It’s more a question of finances.” -Hall

•"While the school technically owns school-sponsored publications, it does in the name of the community. Maybe “ownership” is not the right term.

Like any other school board decision, “establishment” must come under general legal guidelines. That means following Supreme Court and constitutional decisions and provisions. That means schools do not have to censor, prior review or control. It means schools can provide meaningful learning experiences for journalism just as they do — or don’t — for other curricular areas.

It means schools can, and should, hire qualified advisers to teach and work with students as they learn to make decisions. It means schools can choose what kind of student learning experiences they find most beneficial for their various communities." -J. Bowen

•"This is a question that people want a simple answer to. Unfortunately, one simple answer just doesn't exist.
Student publications come in all shapes and sizes and operate under many different governing and financial structures. A minority of school-sponsored publications are completely dependent on their schools for funding. At the other extreme are publications that take no school funding at all, and, with the exception of existing under the school's roof, are completely self-supporting through advertising and/or other fundraising efforts. These student publication staffs raise money for their own equipment (computers, software, cameras, etc.) and pay their own printer's bill. Most student media, however, fall somewhere in between and sorting out who "owns" what in terms of a student publication's tangible property is complicated at best, but fortunately, rarely necessary.

A couple of things, however, are clear. First, even where a publication is entirely dependent on public school support it is important to keep in mind where that money actually comes from. It does not come out of the principal’s, superintendent's or school board member's pocket. It comes from taxpayers. So clearly, just as school officials do not "own" the school buses for their private transportation, they do not own a student publication for the sole expression of their personal views. Second, unless students are paid as employees or fairly compensated as independent contractors for the work they produce, the students — not the school — retain all intellectual property rights. The content — news stories, columns, photos (which it is tough to produce a student publication without) — is legally owned by the students. Finally, public school administrators are government officials. Unlike the private publisher/owner of The New York Times, the First Amendment does limit the authority of government officials to restrict speech. 

While those looking for an easy answer are often quick to label the principal the "publisher" or "owner" of a student publication, the fit is imperfect at best and certainly misleading." -Hiestand

3. Under what circumstances are school newspapers a public forum, when are they not?

•Student newspapers can become a public forum by a mention in the masthead or by past practice. If the newspaper is not public forum, a principal can censor only under Hazelwood and must provide legitimate reason for doing so, according to Hiestand. Hiestand adds that a public forum exists if a publication is made available to people outside the classroom that the publication was generated in. By that definition, every school newspaper is a public forum despite what anyone says.

•"The key question to ask in determining public forum status is who — either by policy or practice (or both) — is responsible for determining the publication's content? If students have been permitted to exercise such control, either pursuant to a written student media policy or statute — or simply because they have just "always done it that way" — a court would likely find them to be limited public forums. On the other hand, if school officials have final say — again either by policy or practice — a court would likely categorize the publication a nonpublic forum." -Hiestand

•“If they have been operating as a public forum, they are a public forum. If the editorial policy says they are a public forum, they are a public forum. As long as students are making the content decisions, and as long as they accept viewpoints from outsiders, they are a public forum.” -Hall

•"Hazelwood speaks of two types of forum opportunities: by policy and by practice. “By policy” means the school has officially recognized student media, using board-level policy, and established that media as open forums or forums for student expression.  Student media would also have their own policies restating and explaining the board policies.

“By practice” means there is no official board-level policy, but the board has not interfered with a publication-level policy calling the publication a forum. Or perhaps there is no policy at all, but the publication permits letters to the editor or has guest columnists or encourages anyone to join the staff. At any rate, there is no official school interference or review of the publication.

The Tinker decision, while not speaking directly to the forum, states students do not lose their constitutional freedoms at the schoolhouse gate. Student media are not forums if the school clearly states they are not. In my mind, prior review negates open forum or forum for student expression status because school officials pre-view, opening the specter of pre-determining, student material. In the classic forum, the government has no oversight, and thus no control, of what is said there.

Two strong examples of forum discussion and language exist in the Dean v. Utica (http://splc.org/pdf/deanvutica.pdf) and Draudt v. Wooster (http://splc.org/law_library.asp?id=35)  decisions. The full texts are available by searching the Internet. Another decision, the First Circuit’s Yeo (http://www.splc.org/report_detail.asp?id=268&edition=11) case, showed how forum status can protect a school against lawsuits."-J. Bowen

4. If universities and school systems are not accountable for libelous material in a lawsuit- who is?  The student?  The adviser?  Both?

•Under HB 1307, all legal responsibility remains with the students, as Hiestand explains:  “Student journalists have always been liable for what they publish. This bill changes nothing. My experience has shown that making students aware of their liability is a good and necessary part of teaching young journalists. As almost every journalism adviser will tell you, students that feel a sense of ownership for their publications are typically more careful and conscientious about what they publish.”

•"Students would be accountable. However, this is the wrong question. The question is who is responsible for providing student journalists with adequate and professional training. Such training comes from qualified advisers who have had adequate experience or instruction so they may advise students how to make legal and ethical decisions and responsible choices about what they publish. The school board should ensure this happens.

Responsibility exists at all levels. The bottom line is any question about accountability should lead to how do school provide their students, and the students’ audiences, with the most complete, thorough, accurate and responsible (hence professional) information. Students and their audiences learn and grow and become more effective citizens where unhindered flow of information exists." -J. Bowen

5. According to HB 1307 students or their guardians can sue any time they feel that their rights have been infringed upon.  Won’t we just end up with an endless parade of litigation, clogging up the courts and distracting schools from their intended mission – educating students?

•Since the number of libel lawsuits brought against high school publications has been a bare minimum over the years, I don’t see that this will happen. I also don’t see this happening as long as advisers teach their students to be responsible and to know the consequences of illegal and unethical acts. -Hall

•"If prior review and restraint is allowed to continue, we, more than likely, will just end up with a different parade of litigation, clogging up the courts and distracting society from its mission – performing as enlightened citizenry.

In short, though, few if any court cases should exist where schools have fulfilled their responsibilities under the forum concept. Schools now make an effort to hire the best coaches, the best counselors. No less should be expected in the hiring of those who teach and advise student media." -J. Bowen

6. Who oversees student journalists to ensure that they are engaging in responsible journalism?

•“The adviser. That’s why it’s so important to have trained advisers in the classroom” -Hall

•"Ideally, it is like building blocks. Students make professional and ethical decisions based on professional and ethical teaching and advising. Teacher/advisers provide professional learning experiences based on school officials upholding professional and ethical standards of journalism. School officials uphold professional and ethical journalism standards by providing professional curriculum and facilities and hiring qualified teacher/advisers. Such teacher/advisers and schools officials provide professional curriculum and facilities and hiring qualified teacher/advisers because they have an enlightened and informed community." -J. Bowen

7. Will HB 1307 end some of the confusion surrounding conflicting court decisions Hazelwood and Tinker?

•Yes—because the Hazelwood statute does not apply in states with free-expression protection.  Hazelwood will not apply under this bill. Hiestand explains, “Hazelwood is a First Amendment case. It certainly does not require administrative censorship. Moreover, the First Amendment establishes a "floor" of legal protection. While states cannot pass a law that provides less protection than the First Amendment, the Court has made clear that states can always choose to provide more protection for their citizens. That is what HB 1307 does.

•However, Hall warns, “Since it hasn’t ended the confusion in states that have already passed similar laws, I doubt that it will end the confusion in Washington. Advisers will have to continue to educate administrators about the rights granted to students in the bill.”