Vous êtes sur la page 1sur 11

Running head: STUDENT PRESS AND FREEDOM OF SPEECH

Student Press and Freedom of Speech


Tyler Sanders
Western Michigan University
EDLD 6590-Higher Education Law

STUDENT PRESS AND FREEDOM OF SPEECH

Student Press and Freedom of Speech


Since the creation of the United State Constitution, the specifications of rights been
debated and decided within the legal system. One right that is often debated in the nation and in
the court room is the first amendment right or freedom of speech. At colleges and universities,
this right becomes even more debated as administration and other external forces try to exert
their force upon those who are speaking up. A common debate falls within the area of student
press and media. At public institutions, the first amendment is protected as are the rights of those
individuals producing student publications on college campuses (Lake, 2011). It should be noted
that this analysis scope is narrowed to public institutions and will not analyze private institutions.
Throughout history, administration has tried to take away and regulate the voice of the
college student publication (Lake, 2011). This censorship has occurred in various ways and
different campuses and has been decided in multiple ways through the legal system. When it
comes down to the rights of the student publications, it is key to recognize that student
publications are student organizations and have the same right (Kaplan and Lee, 2014).
Therefore, it is important to recognize the right that the organization holds along with their right
to freedom of speech. The censorship can take away a policy right and a constitutional right for
the students involved with the organization and other stakeholders within student publications.
Case Example
During the creation of the January issue of the Logue, the campus newspaper and student
organization at Northwood University, editor-in-chief Jarron Lincoln had gained knowledge of
the decision to build a new fountain in the middle of campus. Upon completion of the fountain,
Lincoln had found that historical tree has been removed and that the institution had allocated
money from the student scholarship to build the fountain. After receiving this information

STUDENT PRESS AND FREEDOM OF SPEECH

Lincoln and the rest of the editorial staff had reached out to campus officials including President
Robin Bilinski, whom either did not communicate or would not answer questions at that time.
The January 13 issue of the newspapers front page had a picture of the fountain and the headline
reading "Fountains over funding" and a column outlining the information that the editorial board
had gathered. With this information reaching the student population, many students, parents, and
alumni started calling the Presidents office and university to receive clarification and to show
disappointment in the decision. The administrations reaction was to meet with the newspaper
staff to inform them that the organization would be disbanded as funding would be removed.
Lincoln, being tied to the email sent to administration, was asked to leave the university at the
end of the semester by President Bilinski.
Table 1. Federal Law & Court Cases Relevant to Student Press and Freedom of Speech
Federal Law / Court Case
Summary
Antonelli v. Hammond, 308 F. Supp. 1329
Classroom are marketplace of idea and
(D.Mass.1970)
thus administration does not have authority
over the student press due to academic
freedom
Bazaar v. Fortune, 476 F.2d 570, 573 (5th Cir.
Decision that speech cannot be silenced by
1973)
the mere fact that there may be a public
reaction to said speech
Bd. of Regents v. Southworth, 529 U.S. 217, 229 Institutions cannot discriminate against
30, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)
student organizations and must be neutral
in the funding of student organizations
Dixon v. Alabama State Board of Education, 294
Court decision stating that an institution
F.2d 150 (5th Cir. 1961)
cannot dismiss or expel a student without
due process
Hazelwood School District v. Kuhlmeier, 484 U.S. Decision that forum type must be taken
260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)
into consideration on deciding whether free
speech is guaranteed with the publication
Rosenberger v. Rector & Visitors of Univ. of Va.,
Stated that the establishment clause of
515 U.S. 819, 842, 115 S.Ct. 2510, 132 L.Ed.2d
specific religions be granted privilege
700 (1995)
could not be used to discriminate funding
for student organizations
Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983)
Established at universities could not cut
funding from student organizations without
a developed reasoning
Tinker v. Des Moines Independent Community
Court case that created the precedent for

STUDENT PRESS AND FREEDOM OF SPEECH


School District, 393 U.S. 503, 513, 89 S.Ct. 733,
21 L.Ed.2d 731 (1969)
U. S. Constitution, Amendment 1

4
freedom of speech based on whether or not
said speech interrupted the educational
process for other students
Federal amendment protecting freedom of
religion, speech, press, and to assemble

Student Publication Historical Context


Looking at the history behind this legal issue, it is important to recognize the points in
history the defined student publication rights were associated with the First Amendment.
According to Kramer (1973), the first amendment rights definition construction for college
students began with the Dixon v. Alabama State Board of Education (1961). This case decision
found that students deserved due process when being expelled from schools and could not be
removed without case hearings and explanations for their dismissal. This was the first time the
courts recognized the movement away from in loco parentis and towards equated rights in the
college environment. Eight years later Tinker v Des Moines (1969) helped to continue the
progress of rights and free speech for students. In this case, high school students wore armbands
to school and were dismissed for this expression in the hallways and classrooms. However, in
this historic case the court found that students have the right to express themselves as long as it
did not invoke on the rights of other students to learn. These cases represent the turning point in
student rights on college campuses including that of student press.
More cases would begin to be heard to help understand student publication rights in a
more defined way during the civil rights movement. In the Hazelwood school district, the high
school publication would be regulated by the principal as the individual decided to censor the
press by canceling its release. In this court case, the ruling stood with the school and the
principal (Hazelwood School District v. Kuhlmeier, 1988). This decision was based on the fact
that a journalism classroom within high school was not a public forum and therefore

STUDENT PRESS AND FREEDOM OF SPEECH

administration had the power to regulate under reasonable restrictions. It is important to


recognize that this is not a transferable decision when it comes to the college environment
because of the academic freedom as outlined for students as the different between the K-12
system and universities (LaMonte, 2013). Student academic freedom allows students the right to
produce scholarship how they wish and gives a certain, but not specific, right to students to learn
a certain way within the classroom. This is directly related to student press because it allows the
students to produce a product that cannot necessarily be censored by the administration.
Antonelli v. Hammond (1970) brought this issue to college campuses in the decision saying that
college administration did not have authority to regulate student press because the college
environment is a marketplace of ideas.
In determining the right to freedom of speech, the courts have discussed and determined
the age of the majority rules. Therefore for a period of history, these rights were given to those
who had reached a certain age and currently is given rule when individuals are given the right to
vote they are of an age where they have this freedom expression and freedom of speech (Lisby,
2002). Another debate seen in the court room is that of where the speeches being created and
how it is being distributed. In many of the cases, the courts determine whether student
publications are related directly to the academic or social dynamic of the organization and who is
directly involved or are the stakeholders creating the document and also receiving the document.
Forum must be decided as it displays the right to distribute and also the connection to this
freedom of speech as portrayed by the courts.
In more recent history, the courts are found that reasonable regulation and authority can
be used if "failure to do so would materially and substantially interfere with the requirements of
the appropriate discipline in the operation of the school or college or would materially disrupt

STUDENT PRESS AND FREEDOM OF SPEECH


classes or classwork or would involve substantial this order chaos violence or an invasion of the
rights of other students (Kramer, 1973 p. 14).
Legal Issues
While this case can be observed to include a bevy of legal justifications, freedom of
speech is the first and foremost law that must be handled within this case. As a student
publication, the students have a right to publish and produce as they will. As seen in all forms of
media, journalists are required to report and find the stories that are not being told and they are
allowed support these ideas and publish this article. This directly relates to another freedom
associated with students which is their academic freedom which allows them to have rights
within their academic pursuits to create and think critically within instructor order and purpose.
In analyzing this hypothetical case, recognize the power of press is associated to
discrimination and other forms of bias and that of neutrality from the administration. As an
institution, is important to recognize that this is the student organization and therefore they are
given specific rights that cannot be limited based on bias. This precedent is reestablished in the
Board of Regents, University of Wisconsin v. Southworth (2000) decision where the courts ruled
in favor the student press organization saying that an institution must remain neutral and
consistent in cutting or adding to student organization budgets. There has to be some more
evidence and reasoning behind the removal of funding from a student organization. From
administrative perspective, closing down this organization would promote the idea of shutting
down the conversation, however, it would also show that the institution has something to hide.
From the student newspaper perspective, the students reached out and communicated that they
were going to try and figure out the facts of the story and report fairly. Administration would
want to look at legal precedents to delete the media and the information being released by

STUDENT PRESS AND FREEDOM OF SPEECH

students. Rosenberger v. Rector and Visitors of University of Virginia (1995) helped in


determining that freedom of speech could not be silenced using the establishment clause that was
creating to stop certain viewpoints to become more powerful. While not all opinions may be
heard, the court ruling said that this did not give right to regulate present viewpoints (Kaplan and
Lee, 2014). Just because the Logue is shut down, the institution must realize that some form of
freedom of speech will still be present and cannot always be regulated.
Finally, the contractual relationship between the institution and its publication must be
deciphered. As a student organization but also a voice for the campus, what is the contract that is
formed? Recognizing whether there is an implied contract between student organizations is
important in finding the relationship that is created as the standard in this case. In the eyes of the
editorial board, there may be a relationship that they owed to the student population which is
their constituency. However, the institution also has an obligation and a contract with students
that could be seen as something that could be a legal issue. As a general rule, the college is safe
if the institutions regulations do not affect the message, idea, or subject matter of the
publication and do not permit prior restraints on the publication (Kaplan and Lee, 2014, p.687)
Recommendations and Implications
Student affairs professionals must understand the basics of the law and be able to digest
the information to the best of their operation on campus. In the case of Lincoln v Northwood
University, professionals should understand the rights of the individual and student. Observing
the rights of student publications, it is found throughout creation, freedom of speech has been
routinely controlled by campuses with student media outlets. In reaction to this case,
administration should work with legal counsel in understanding what can and cannot be done in
solving the reputation problems that may occur from this publication.

STUDENT PRESS AND FREEDOM OF SPEECH

Being able to understand the scope in which university has regulation over student
publications can help in understanding the reach administration can make in these types of
situations. While previously mentioned, there are numerous cases that provide precedent on what
actions the university can take. Taking recommendations, Bazaar v. Fortune (1973) speech
cannot be stifled by the state merely because it would perhaps draw an adverse reaction from the
majority of people, be they politicians or ordinary citizens, and newspapers (Kaplan and Lee,
2014, p.689). Administrators should be able to support the freedom of speech that the students
have, but also to be transparent when working with the student publications. In this case, the
administration has taken aggressive action against the student editors because of the press drawn
to the story. President Bilinski and administration should release a statement being transparent
about where the funding was created to not only support the student engagement but also alumni
involved. Student affairs professionals should recognize the power of freedom of speech and
press when working with students, remaining respective and keeping censorship to a minimum.
While it is directly stated in this case, professionals should understand how censorship
can be seen from a classroom perspective. If it is simply a student organization the advisor takes
the role of acting as a liaison to the administration and must be prepared to have conversations
with students about common practices seen in the journalism field. An example of this is the
New York Times standard of actual malice or the law of defamation. These standards are used
within a classroom setting help to create an expectation for students about what should be
considered news. If this were a classroom-based organization, it should be recognized that the
classwork is academic centered but also supported by the professor. This continues to be an issue
of academic freedom for the students and faculty. The use of proactive actions must also take
note of journalism standards to not create an opportunity for freedom of speech to be taken

STUDENT PRESS AND FREEDOM OF SPEECH

advantage of. If the administration seeks to have more of a voice within the student press, they
should communicate directly with the advisor, professor, or even the students who have reached
out to them. It is not enough for the institution to expect information to not be distributed to the
student population if they remain silent on certain issues. It is recommended that some form of
expectations is created for the student organization and that a relationship is built between the
organization and the institution to help negotiate media coverage. In creating this relationship
there maybe aggravation from the students that could be seen as a con in the short-term but in the
long term this relationship will help to alleviate future conflicts.
When it comes to President Bilinski, disbanding the organization and removing funding it
is important to recognize that this cannot be an official action of the university without some
form of due process. Understanding that each organization must receive similar treatment, the
administration could look at student organization conduct codes to follow up with some kind of
disciplinary action for these individuals and the organization. However, in understanding cases
similar to this one, Stanley v. Magrath (1983) the courts ruled in favor of the organizations
stating that an institution cannot remove funding without being able to show and support a
reasoning behind this action. As university officials, it is important to follow up with this
organization, to discuss what conduct will occur according to student code of conduct and not
simply the actions requested of the President. While there may be some negative press based on
this decision, there is no legal threshold and the administration cannot take an action against the
organization legally without providing some reasoning and due process. This once again could
lead to administrative relationships with student organization and the reconstruction of student
organization code of conduct for the institution.

STUDENT PRESS AND FREEDOM OF SPEECH

10

Additionally, student affairs professionals must take into consideration what will be
discussed by the court system in this case which is to understand the motives, purpose, and
structure of the media outlet to help to define the forum of those outlets. As an institution or a
student activities office, this is going to help to establish guidelines for student organizations that
may put out newsletters or bulletins about the goings on at the university not only to its current
members but also to alumni. In establishing policies, the institution should is able to regulate its
reputation versus regulating that of the student speech. While freedom of speech or the first
amendment has been debated over the years, there are now clearer guidelines on what
administration can do to help create relationships with the students when it comes to student
publications, demonstrations, or other forms of free speech. By being proactive an institution can
create policies and guidelines to help create dialogue between the administration and the students
to promote healthy progress as an institution. Silencing the students is not an option and
therefore is important to form ways to have conversations with students and create outlets in
which information sharing can be respectable and also help create change at an institution.

STUDENT PRESS AND FREEDOM OF SPEECH

11

References
Antonelli v. Hammond, 308 F. Supp. 1329 (D.Mass.1970)
Bazaar v. Fortune, 476 F.2d 570, 573 (5th Cir. 1973)
Bd. of Regents v. Southworth, 529 U.S. 217, 22930, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)
Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961)
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)
Kaplan, W. A. and Lee, B. A. (2014). The law of higher education (5th ed.): Student version. San
Francisco, CA: Jossey-Bass
Kramer, D. T. Validity, under federal constitution, of public school or state college regulation of
student newspapers, magazines, or other publicationsfederal cases, 16 A.L.R. Fed 182
(1973).
Lake, P. F. (2011). Foundations of higher education law and policy: Basic legal rules, concepts,
and principles for student affairs. Washington, D.C.: NASPA.
Lisby, G. C. (2002). Resolving the Hazelwood conundrum: The first amendment rights of college
students in Kincaid v. Gibson and beyond. 7 Communication Law and Policy 129.
LoMonte, F. D. (2013). The key word is student: Hazelwood censorship crashes the ivy-covered
gates. 11 First Amendment Law Review 305.
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 842, 115 S.Ct. 2510, 132 L.Ed.2d
700 (1995)
Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983)
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 513, 89 S.Ct. 733,
21 L.Ed.2d 731 (1969)
U. S. Constitution, Amendment 1