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LlBRARY
Michigan State
University

 

 

 

This is to certify that the

thesis entitled

COLLEGIATE PRESS RIGHTS: WHERE DO THEY FIT?

presented by

Jotham P. Tausig

has been accepted towards fulfillment
of the requirements for

 

 

 

M.A. degree in Journallsm
/ Major professor
Date 27 9'

0-7639 MS U is an Affirmative Action/Equal Opportunity Institution

 

PLACE IN REI'URN BOX to remove this checkout from your record.
TO AVOID FINES return on or before date due.
MAY BE RECALLED with earlier due date if requested.

 

DATE DUE DATE DUE DATE DUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11/00 clam-.9659.“

 

COLLEGIATE PRESS RIGHTS: WHERE DO THEY FIT?

BY

Jotham P. Tausig

A THESIS
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
MASTER OF ARTS
Department of Journalism

1999

Professor Susan Carter

ABSTRACT
COLLEGIATE PRESS RIGHTS: WHERE DO THEY FIT?
By

Jotham P. Tausig

Collegiate press rights have not been identified or
delineated compared to high school or professional members
of the press. Examination of current case law, law
reviews, media research, statutes and state constitutions
indicates that collegiate press rights range from more
restricted to less, but still not rising to the level of

members of the professional press.

Copyright by
JOTHAM PAUL TAUSIG
1999

DEDICATION

This work is dedicated to my parents
and Professor Susan Carter without
whom none of this would have been possible,
and to
all future journalists who strive
to ask the right question.

iv

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

INTRODUCTION 1
CASE LAW 5
LAW REVIEWS 25
MEDIA RESEARCH AND EXAMPLES 33
STATUTES AND STATE CONSTITUTIONS ....... 40
DISCUSSION 43
CONCLUSION 52
APPENDIX A 56
APPENDIX B 58
REFERENCES 60

 

 

 

 

II“

Pr.

C
ex

Introduction

With the rise of what has been termed the "Information
Age," freedom of the press and journalists' rights have
become an important issue. History is rife with examples of
professional reporters and newspapers printing contentious
ideas. Indeed, no one can deny that a founding premise of
this country is the freedom of the press.

But surprisingly, and in the face of the First
Amendment of the Constitution, not all journalists are
afforded the same freedoms. And it has to do with the age
of the journalist.

Laws guaranteeing the freedom of religion, assembly,
and the right to express oneself are explicit at birth in
this country due to the First Amendment, but what about the
freedom of the press? Media professionals and researchers
have been asking, debating and attempting to define this
right for years.

But what if the journalist is not a professional or a
high school student, but something in-between? Although
much has been written regarding high school reporters and
professionals, surprisingly little has been written
concerning the rights of collegiate journalists.

Several U.S.Supreme Court cases, such as Hazelwood for

 

example, address free speech and press rights of high

CL

 

 

school journalists. Hazelwood curtailed the protections

 

that lower courts had previously granted high school
reporters. High school reporters now exercise rights that
are far more limited than those enjoyed by professionals.

Professional reporters are the most fully protected
group under the U.S. Constitution. They can write
controversial, contentious stories on virtually any topic
and, for the most part, do so without fear of punishment.

Yet recent cases have allowed the Supreme Court to
begin to address the issue of press freedoms for collegiate
reporters.

This research will address the research gap regarding
the issue of First Amendment protections for collegiate
reporters by examining cases, state statutes and media
studies. These sources, along with current examples taken
from today's campuses, will be examined and synthesized to
furnish a more complete picture of this hitherto ignored
area of media research, all to answer the central question
of this thesis:

Do First Amendment protections of free speech and free
press extend to collegiate reporters?

For the purposes of this research paper, press rights
specifically include the freedom to print contentious ideas

and the extent of state- or school-sponsored prior

restraint. The term also includes the access to
information that reporters need to do their jobs, as well
as protections for what they write and report.

Also for the purposes of this paper, prior restraint
is defined as the prevention of publication before the
content of the publication actually reaches the audience.

Any discussion concerning the rights of collegiate
journalists must include an examination of relevant case
law.

Over the years, several states have begun to address
the issues surrounding student press rights and freedom of
speech. There has been no single state that has taken the
lead where collegiate reporters have been involved.

Several Supreme Court decisions, including Tinker (393
U.S. 503 (1969)), which sets a standard of when student

press may be curtailed, Hazelwood (484 U.S. 260 (1988))

 

which sets forth an argument for controlling high school
press that colleges try to adopt, and Lee (441 F.2d 1257
(1971)) which makes no differentiation between the
collegiate and professional press, have to some extent set
precedent, helping to define the rights of student
reporters. But none of these cases have painted a complete
picture of what rights are available and when they attach

to college-level student reporters.

State law has largely been mute on the subject of the
student reporter, indeed any reporter for that matter.

Only New York, to date, provides any clear statutory
definitions that address the issue. Although the statute
is clear in what constitutes a media professional, no
mention of collegiate reporters is made (NY Civ Rights Law,
Art 7, sec. 79-h 1998).

The only other state that provides some statutory
guidance is California. Its constitution sheds some light
on the topic, but it's not as specific.

Statutory definitions are necessary in order to try to
peg down what rights and freedoms are available to
professional and student reporters alike.

Various law review articles have touched on the issues
of student press rights, and provide some insight. These
articles will be drawn on to better clarify the free press
rights of student journalists.

Media studies have mentioned the rights of collegiate
reporters, but surprisingly few directly address the topic.
Some either make the assumption that all journalists have
the same rights or are therefore treated identically, or
they ignore the issue entirely.

It is the research gap, the hitherto ignored group of

the collegiate press, that this paper will fill by

(1.

(:1:

H’

 

 

reviewing case law, law review articles, media studies,
current examples and applicable statutes to provide a
picture of the rights and freedoms that collegiate
reporters operate under today.
Case Law

There are many cases that deal with the issue of press
freedoms, but only those directly discussing the issue of
collegiate press rights and freedoms will be examined in
detail.

As mentioned in the Introduction, Cathy Kuhlmeier v

 

Hazelwood School District(484 U.S. 260 (1988)) was the case

 

that defined the press rights of high school students.
Although the case specifically excludes collegiate
reporters in its holding, it is important to mention to
establish the existence of more restrictive student press
rights at one end of the scale of press freedoms (see
Appendix B). This case demonstrates how courts can
restrict and limit the rights of school reporters. Not all
reporters are granted identical rights and protections.

Hazelwood creates a separate class of reporters based

 

on age, education, and status that is unique in a field
that has not historically required any type of

certification. But classifying reporters according to the

S

 

a

’ x

C

.1

above criteria was given a big push forward by a Missouri
journalism class.

In 1983 Kathy Kuhlmeier, along with other plaintiffs,
was enrolled in the Journalism II class at Hazelwood East
High School in St. Louis. Part of the class curriculum
involved the production of the school's paper the Spectrum.
The paper covered a range of topics relevant to student
life: dating, race relations, teenage marriage, students'
use of alcohol and drugs, among others.

The students in the class controlled most of the
aspects of the production of the paper. Although the
teacher had authority over all aspects of publication, the
students made many of the preliminary decisions.

For the May 13 issue the teacher made a few revisions
to the issue but did not delete any of the stories.
However, the administration deemed some of the story
topics, such as the article on teenage pregnancy, had
information that was " inappropriate, personal, sensitive
and unsuitable for the paper (Hazelwood 269)."

As a result, the stories on teenage pregnancy, birth
control, abortion and relations with parents were deleted

from the paper prior to sale and distribution (Hazelwood

 

267). This was done without the knowledge of the students

by the administration, including the superintendent, the

principal, and the coordinator of school information and
sponsor of the school yearbook.

The students, plaintiffs in this case, contended that
the Spectrum was a free-speech forum protected from the
prior restraint exercised by the state that was represented
by the public school.

An "free-speech forum" in this case is an open area
provided to students for free expression (see Widmar v
Vincent 454 US 263, 267-268 (1981) where the state
university created forums through its policy of

accommodating student meetings). In Hazelwood the courts

 

mentioned that there is no obligation that a public high
school provide students with a public forum for free

expression. (See Bender v Williamsport Area School District

 

741 F.2d 538, 546 (3"d Cir. 1984) when school officials
create a limited public forum the First Amendment limits
the degree of content based restraints they can use to
curtail student speech.)

In its Hazelwood decision the U.S. Supreme Court

 

mentioned that there are two lines of cases that address
the issue for students.

"One line of cases deals with free speech issues
for activities outside official school programs.
In the other are cases where the speech or conduct
in question occurred within the context of school
sponsored programs. (Hazelwood 272)"

Although inapplicable on its face to the topic of the

press freedoms of collegiate reporters, Hazelwood

 

demonstrates the rationale the Supreme Court adopted to
some extent in making decisions in cases that directly
affect collegiate reporters. Furthermore, it provides an
atypical example of how school administrations, whether
high school or college, attempt to restrict the student
press.

The first line of cases that the Court referred to
above is beyond the scope of this paper as it deals with
extracurricular activities.

It is the second line of cases, those that focus on a
collegiate reporter working for the school newspaper, that
that specifically concerns us here. Citing the special
function of schools in society as their rationale, the

Court held in Hazelwood that student speech alone carries

 

less weight than the interests of high school officials

(Hazelwood 273).

 

The "special function" referred to is the school

acting as the arm of the state. (See Fraser v Bethel School

 

District 755 F.2d 1356, 1364-1365 (9th Cir. 1985) where
public schools are an arm of the state and the courts are
the prOper place to balance student speech and the needs of

the school.) And further the Supreme Court stated that

"min the high school setting, school officials
must be accorded a wide latitude over decisions
affecting the manner in which they educate
students (see Nicholson v Board of Education
682 F.2d 858 (gm Cir. 1982))."

 

But to help define educators' powers, the Court looked at
the nature of the school-sponsored program in question, as

the starting point of analysis in this case.

"Where the particular program or activity is an integral
part of the school's educational function, something less
than substantial disruption of the educational process may
justify prior restraints on student's speech and press
activities (Hazelwood 273)."

Therefore the Court held that Hazelwood School
District simply " exercised their discretion, in a proper
manner, with respect to a product of [school] curriculum

(Hazelwood 277)." The Supreme Court decided that the

 

rights of the students were not violated because the
administration had not prevented circulation of the paper

(Hazelwood 277). Nor had they punished the people

 

responsible for publication (Id. 277).

Hazelwood provides an insight into the curtailing of

 

rights where a school paper is considered part of the
educational process. This decision outlines the stiffest
and most restrictive interpretations that courts may hold
today. But it is important to reiterate the point that the
Court made no mention of college or university-sponsored

papers.

However, the Court had already looked some of the
issues surrounding college newspapers fourteen years before

Hazelwood.

 

In Jack K. Lee v Board of Regents of State Colleges

 

 

(441 F.2d 1257 (1971)) the Court considered whether the
administration could prevent certain types of
advertisements from appearing in the collegiate paper The
Royal Purple.

In Lee the plaintiff's advertisements, though
contentious in the eyes of the Board of Regents, did not
pose a threat to the routine functioning of the school.
Therefore, according to the Court, the Board had no
justifiable rationale to ban The Royal Purple, from
publishing the ads.

In 1971, an advertisement describing the University of
Washington's employee-safety meeting was submitted to the
campus paper. The University's Board of Regents rejected
the first ad from Jack Lee and fellow ministers on the
grounds that it dealt with the business of the meeting
itself and was not an invitation to attend.

But a more controversial ad later submitted by Lee
stated:

"You shall love your neighbor as yourself (Matthew 19:19)
This verse should mean something to all of us who are
concerned with race relations and the Vietnam War. (Lee
1259)"

10

Lee intended to sign this ad before it ran in the
paper, but the Board also rejected this advertisement,
stating that it was political and not a public service
announcement. In both instances, the Board held that the
advertisements were contrary to the guidelines of
acceptance for publication in The Royal Purple.

The guidelines outlined the types of ads that the
newspaper accepted. These included a commercial product or
service, invitations to meetings, a political candidate's
platform and public service announcements (Lee 1259).

i In defending its position, the Board contended that
the student newspaper was a campus facility and provided an
academic exercise. Furthermore, the Board contended that
the acceptance guidelines were designed to protect the
University from embarrassment and libel suits.

The defendants cited Tinker v Des Moines Independent

 

School District (393 U.S. 503 (1969)) where the Court had

 

balanced the right of free expression versus the

considerations of the school administration. Furthermore
they stated that " fear and apprehension of disturbance is
not enough to overcome the right to freedom of expression

(Tinker 509)." The chance that there might be a negative

11

reaction to a message does not grant powers to school
administrations. To this end the Court in Lee held that:

"In order for the State in the person of school officials
to justify prohibition of a particular expression of
opinion, it must show that its action was caused by
something more than mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular
vieWpoint. Certainly where there is no showing that
engaging in the forbidden conduct would 'materially and
substantially interfere with requirements of appropriate
discipline of the school,‘ the prohibition cannot be
sustained(L§§ v Board of Regents 441 F 2d. 1257, 1259-
1260)."

 

This statement supported Lee's contention that unpopular
content could in itself not be a reason for curtailing its
expression. Students have the right to express themselves
provided that the functions of the school were not
interrupted by their actions.

Here, the Court found that the facts had fallen far
short of the Tinker standard that states that there must be
a substantial threat to school discipline. And this was
the standard that the Supreme Court applied to the instant
case.

But, it is important to point out that the Board of
Regents was deemed the proper party to determine if student
expression rises to the level where it can be banned. As
we have explored, the Court found the facts in Lee to be
insufficient for the Board to take the action it did in

rejecting the ads.

12

Yet the Board still retained the ability to limit the
expression of student papers should a viable circumstance
appear. To date, the powers of the Board of Regents in
Lee, and other scholastic governing bodies have not been
challenged on this point, but a potential mechanism to ban
student expression is still in place, a mechanism that has
no parallel in the professional press.

In contrast to Lee, there have been instances where
groups have tried to use the courts to force collegiate
papers to publish their advertisements.

Mississippi Gay Alliance v Goudelock (430 U.S. 982

 

 

(1977)) was such a case where a group, the Gay Alliance,
brought suit against a paper for allegedly denying the
group's members their First Amendment rights.

In 1973 the chairwoman of the Mississippi Gay Alliance
proposed an advertisement for the Reflector, Mississippi
State University's paper.

The ad read verbatim:

"Gay Center open 6:00 to 9:00 Monday
Wednesday and Friday nights.
"We offer counselling, legal aid and a
library of homosexual literature
"Write to the Mississippi Gay Alliance
P.O. Box 1328
Mississippi State University
Ms. 39762 (Mississippi Gay Alliance v
Goudelock 536 F. 2d 1073, 1074(1977))

 

The editor of the paper refused the ad and payment as

well. Based on the refusal to publish, the Alliance filed

l3

suit arguing that it had been deprived of its First
Amendment rights, and that the Reflector be ordered to
print the material (Mississippi Gay Alliance 1074).

The facts in the case pointed out that the Mississippi
Gay Alliance (MGA) was not a student organization, nor were
any of its members students at Mississippi State University
(MSU) (Mississippi Gay Alliance 1074). Also, the MSU
student body elected Bill Goudelock editor of the Reflector
and he did not receive any instructions from MSU officials
to refuse the material (Id. 1074).

The trial court reviewed the facts and determined that

there were four issues in the case. They were:

H

Whether the plaintiffs had standing to sue

2. whether the court would grant the plaintiff the
relief they sought

3. whether there was state action to support the
defendant and

4. whether the First Amendment protection that

covers a student newspaper meant that plaintiffs

had no cause of action against Goudelock

(Mississippi Gay Alliance v Goudelock (1977)
1074).

The Fifth Circuit Court of Appeals found that
university officials had nothing to do with the rejection
of the ad and that there was "ma complete lack of control
over the student newspaper on the part of the University
officials (Mississippi Gay Alliance 1074)."

The court found that the complaint did not allege that

University officials controlled what was published in the

14

paper. Citing Miami Herald Publishing Company v Tornillo

 

(418 U.S. 241 (1974)), the appellate court also reviewed

that even had it wanted to, the district court could not

have ordered the paper to publish the material in question.
Tornillo said in part:

"The choice of material to go into a newspapermconstitutes
the exercise of editorial control and judgement. It has
yet to be demonstrated how governmental regulation of this
crucial process can be exercised consistent with First
Amendment guarantees of a free press as they have evolved
to this time (Miami Herald Publishing Company v Tornillo
(418 U.S. 241 (1974))."

 

Citing 1848 state laws that forbid the promulgation of

any "mintercourse which is unnaturalm" (Mississippi Gay

 

Alliance 1075), the court held that the editor acted
properly regardless of potential First Amendment free
speech issues.

The U.S. Supreme Court refused to hear this case,
allowing the findings of the Court of Appeals to stand.

Although we have now seen that groups cannot force
collegiate papers to print their material, authorities
sometimes seemingly ignore other constitutional protections
extended to the collegiate and professional press.

In Zurcher v Stanford Daily (436 U.S. 547(1978)) the

 

student paper published articles and photographs about a
large group of demonstrators who had seized the
administrative offices and occupied them since the previous

afternoon. The materials included pictures of a violent

15

confrontation between police and demonstrators. One of the
bylines that ran in the paper indicated that the
photographer might have photographed an assault on nine
police officers that occurred during the confrontation with
the crowd.

Based on this information, the district attorney's
office sought and was granted a search warrant to allow
police access to the Standard Daily's offices. The warrant
made no allegation that members of the staff were involved
with the violence in any way. They were an innocent third
party.

The paper's offices and files were searched, but
yielded only the photographs that had run in the special
edition.

Deciding the instant case, the lower courts made an
issue of whether a suspect had been identified. In its
deliberations the District and Appeals Court both held that
third parties, as the Standard Daily, could only be

searched based on a subpoena, holding that:

1. Important materials will be destroyed or removed from
the jurisdiction, or

2. Where a restraining order would be futile (Zurcher
552).

But in its review, the Supreme Court reversed both
decisions finding instead that the search of the Standard
Daily was legal.

16

"Under existing law, valid warrants may be issued to search
any property, whether or not occupied by a third party, at
which there is a probable cause to believe that fruits,
instrumentalities, or evidence of a crime will be found
(Zurcher 554)." ‘

According to the Court, if the items are connected to

a crime and are located at a specific place, then that

place can be searched. This is directly contrary to the

reasoning that the District Court had used in its earlier

findings.

The District Court had reasoned that searches of

newspaper offices for crime evidence would seriously

threaten the press' ability do its job. These findings

were based on a number of assumptions:

1.

Searches are physically disruptive to such an extent

that timely publication will be disruptive.

.Confidential sources of information will dry up, and

the press will also lose opportunities to cover
various events because of fears that press files

will be readily available to authorities.

.Reporters will be deterred from recording and

preserving their recollections for future use if the
information is subject to seizure.

The processing of news and its dissemination will be
chilled by prospects of searches that will disclose

internal editorial deliberations.

17

5.The press will resort to self-censorship to conceal
its possession of information of possible interest
to police.

Refuting the points that the Stanford Daily made, the
Supreme Court held that there was no precedence for
" imposing the regime ordered by the District
Court (Zurcher 565)."

Explaining its position, the Supreme Court reasoned
that the framers of the Constitution did not forbid
warrants where the press was concerned. The Court also
stated that prior cases suggest that warrant requirements
only be applied with particular exactness in line with the
guidelines mentioned above.

The press then, cannot invoke special considerations
where searches of its premises are involved. Despite the
possible sensitive and confidential nature of information
that media outlets may possess, authorities need only have
probable cause to search and obtain it.

In this case no distinction was made concerning the
Stanford Daily as either a collegiate or professional
newspaper. Rather it was referred to as an example of the
press at large, instead of a special branch, or a less

viable version. Therefore this is an instance where the

18

Supreme Court found no distinction between the professional
and collegiate press.

Here the First Amendment protections of the press do
not extend to the premises of papers. As a result of the
Zurcher decision, should authorities believe they need the
information, newsrooms can be searched.

Where the authority in question is not law enforcement
but instead the university or college sponsoring the school
newspapers and the administration tries to exercise control
over the student paper or publication, it raises
interesting questions regarding press freedoms in a
scholastic setting.

Cullen v Gibson (118 S.Ct 1054 (1998)) is a case where
the coordinator of student publications, Laura Cullen,
brought suit against Kentucky State University for
purportedly punishing her for exercising her constitutional
rights of free speech and expression. Specifically she

alleged:

1. [That]she was demoted because of [teachers] union
activities, and because she spoke out in favor of
students,

2. Defendants unconstitutionally exercised prior restraint
over the content of student publications,

3. Defendants unconstitutionally prevented the distribution
of the yearbook (Cullen v Gibson 124 F.3d 197, 198).

Of concern to us here are the facts and arguments

stemming from the latter two allegations, although as we

19

will see, the Supreme Court included part of the first
charge as part of its rationale in reaching its decision.

At the core of the allegations was Cullen's refusal to
remove content critical of the administration from the
school's yearbook; specifically a letter to the editor
requesting that the school paper should publish more
positive news. As a result of her decision to publish the
material, Cullen argued that she was transferred from her
position as coordinator of student publications to the
housing division (Cullen 197).

As a remedy, Cullen then sought injunctions requiring
the University to cease any and all prior restraint of
student publications and to require the distribution of the
yearbook.

Six months after her transfer, Cullen resigned from
Kentucky State University, but not before filing this suit.

The district court found that she was asserting the
constitutional rights of the students, not her own, and
that the students' rights to publish any material were
being ignored. Therefore they held for the defendants
(Cullen 197).

But Cullen soon resigned on her own from Kentucky
State, eliminating, in the Court's eyes, any standing to

pursue the case. With no live controversy stemming from

20

her position as coordinator of student publications, the
Sixth Circuit Court of Appeals affirmed the lower court's
dismissal of the case.

Despite this outcome on procedural grounds, there are
a few important factors dealing with substantive points
that can be gleaned from this case.

At issue in this case is the alleged violation of
collegiate student press rights, specifically the prior
restraint exercised by the administration based on a letter
regarding the content of student papers.

In reviewing this case, the court ruled that press
rights need to be asserted by the students who have them
curtailed. An administration or faculty member of a
university cannot assert First Amendment rights on behalf
of the students.

Further, once a faculty member associated with student
publications is no longer working in that job, issues of
press freedoms are rendered moot. They no longer occupy
"m[a] jurisdictional nexusm (Cullen 199)" for legal action
to be brought.

Based on these findings, the Court found that Laura
Cullen " lacks standing to complain to this Court for

relief (Cullen p199)."

21

Although it offers little, Cullen v Gibson falls into
the range of case law that runs the gamut from the
decisions highly restrictive of student rights, as

demonstrated in Hazelwood, to instances where collegiate

 

presses have been treated identically to their professional
counterparts as in Zurcher. But there are important
distinctions to be made.

Although Hazelwood concerns a high-school press, it

 

demonstrates that a press deemed part of the educational
process could be subject to rigid control. This argument
is often used by school administrations to control the
student newspapers, as will be examined in following
sections.

In contrast, Zurcher treats collegiate papers
identically to the professional press, with no distinction
to make between the two. Distinguishing between some of
the other cases is not so clear.

In Lee the courts ordered a school to allow what they
deemed objectionable content to be published over the

administration's contentions. But as we see in Mississippi

 

Gay Alliance, there is no absolute right of publication to

 

all who seek such in a collegiate paper. Here the paper in

question can exercise editorial control as exemplified

22

earlier in Miami Herald Publishing Company v Tornillo (418

 

U.S. 241 (1974)).

This is can be analogized to the manner in which
professional papers and other media outlets function.
Objectionable content can be published in the face of
governmental and social objections. But at the same time
the Constitution does not guarantee an absolute right of
publication for anyone.

The courts also have indicated that a person cannot
defend the constitutional rights of another. In fact, we
find just the opposite.

Students must defend their own First Amendment rights,
as indicated in Cullen. Faculty or staff, no matter how
well intentioned, cannot assume this responsibility. Rather
it is the purview of the students to defend their own
rights of expression.

Sometimes this defense can run in the face of an
administration that believes it can enforce statutes on
campus.

Such was the case in Ko£n_v Elkins (317 F. Supp 138
(1970)) where the University of Maryland would not print,
or allow the printing of, a magazine cover because it
defiled the American flag. At the time it was illegal in

Maryland to do so. So the students instead ran a blank

23

cover with the word "Censored" on it, but the content in
the published issue was the same as the banned issue.
Regardless of the change, university officials prevented
publication.

The students fought the ban on publication, and the
district courts found in their favor; university officials
had unconstitutionally applied the state's statute against

desecrating the flag. Because

"mno state interpretation or construction of the
Maryland flag desecration statute can eliminate
the constitutional defect inherent in the
application of the statute attempted in this case
(Korn 144)."

In this instance, the paper behaved identically to any
member of the professional press. They defended their
right of freedom of expression in the face of a restrictive
interpretation of a state law, and won in court.

But not all disputes between the college
administration and the student press are as clear cut.

As we have seen, collegiate newspapers have more
freedoms than their high school equivalents, as implied in
Tinker. Tinker suggests that there are limitations that
student papers do not share with the professional press,
and that controversial content can be only be limited

should discipline be threatened.

24

At the other end of the spectrum, there is no absolute

freedom to publish, as explained in Mississippi Gay

 

Alliance. The cases examined above serve to outline the
boundaries within which the collegiate press must operate.
For future cases the question remains as to what
extent a university or college's paper is part of the
educational process and how that can impact student press
rights. To date, current case law has not addressed this
issue.
Law Reviews

Published by virtually every law school in the
country, law review articles examine specific social and
cultural issues in light of legal precedence and modern
interpretation of statutes. With the issues surrounding
the U.S. Constitution's First Amendment and the rights it
protects, freedom of the press is often a topic.

Although not covered directly, several law review
articles touch on the role of student journalists and the
rights of collegiate reporters.

In 1987, the American University Law Review published

 

an article titled "Silencing Student speech: Bethel School

 

District v. Fraser" by Sara Slaff.
In it, Slaff states that " courts consistently have

recognized students' first amendment rights (Slaff 1987,

25

p205)" citing several Supreme Court and federal district
court decisions, including Tinker (393 US at 506 - students
do not shed freedom of speech at the schoolhouse gate);
Barnette (319 US at 641 - freedom of thought strengthens
individuality and supports free public education) and
Burnside v Byars (363 F.2d 744 - allowing students to wear
freedom buttons as long as regular school activities are
not interfered with) to support her assertion (Id. 205).

However, the cited cases predominantly deal with high
school reporters and students for the most part, failing to
address the press rights of collegiate reporters.

Slaff does briefly examine the common law doctrine of
in loco parentis or "in the place of the parent." This
doctrine is cited and used by schools to justify decisions
they make concerning the student body.

In loco parentis assumes that parents empower school
officials to act in their stead. State officials become
the temporary parents of the child in question. But this
relationship has historically referred to the relationship
between a minor and the state (Barron's Law Dictionary
238).

In her discussion, Slaff does not mention whether this
doctrine extends to college students who are no longer

minors, or those who are on their own. Instead, she refers

26

to it to support school administrations' power and interest
in maintaining order and discipline (Slaff 1987 205).
Others argue that it is not the age of the student
that is a factor in matters or discipline, but rather what
responsibility the institution has to teach students their

role in society. In the 1993 Brigham Young University Law

 

Review, Bruce Hafen discusses precisely that in his article
"Schools as Intellectual and Moral Associations."
Hafen states that moral knowledge must be taught and

learned and that

" institutions of learning play a crucial role in a
democratic society because they teach not only the skills
that enable personal development, but also the skills that
enable democracy's own meaningful continuity (Hafen 1993
605)."

He also asserts that primary and secondary schools are the
bridge between the private world of the individual and the
public world of society (Hafen 606). Schools are there to
help students with their autonomous self, a sense of who
they are, while learning their place in society.
Therefore, Hafen suggests, schools play a mediating role
between each student and the larger community.

This is a unique position among social and state
agencies and requires, Hafen argues, that the rights of its
members (i.e. students) mandate protection to preserve the
school's role as mediator.

27

"The First Amendment must therefore protect not only
individual writers, but newspapers; not only religious
persons but churches; not only individual students and
teachers, but schools (Hafen 1993 p616)."

Without the protections of the First Amendment Hafen
suggests that schools could not fulfill their role. The
implication becomes that the schools, as institutions, come
before the students when it comes to First Amendment
protections.

Support for Hafen's argument can be found in the

September 1988 Duke Law Journal. In "End of an Era? The

 

Decline of Student Press Rights in the Wake of Kuhlmeier v

 

Hazelwood School District, J. Marc Abrams, 8. Mark Goodman

 

and William R. Murienko argue that collegiate student
newspapers are not affected by this decision.
Citing Zucker v Panitz (299 F. Supp. 102 (1969)) the

authors contend that

"man official school newspaper is a forum for student
expression entitled to first amendment protection, as long
as the newspaper is 'something more than a mere activity
time and a place sheet'" (Zucker 103)

They make this contention based on a series of cases

that define free speech for college students. Some cases,

like Papish v Board of Curators (410 U.S. 667 1973), the

 

authors suggest, deal with offensive content of collegiate
papers. While others discuss the prohibition of school

facilities for newspaper production.

28

One of the cases cited in the article is Trujillo v
Loye (322 F.Supp 1266 (1971)) which identified college
newspapers as a protected forum for student expression,
striking down the notion that student staff obtain faculty
pre-approval for controversial material. Trujillo defines
a protected forum as an outlet where students can freely
express themselves.

Based on these cases the authors support their
contention that a school newspaper is entitled to First
Amendment protection. To support their contentions, they

refer to footnote seven of Kuhlmeier v Hazelwood School

 

 

District (607 F. Supp. 1450 — see Case Law section for
detailed discussion), exempting colleges and universities
from having the powers granted to the secondary school in
the case. These powers allowed the high school to curtail
student speech after the Court found that the school's
paper was part of an educational exercise.

Abrams, Goodman and Murienko suggest rationales that
courts may apply to help students should university

administrators attempt to use Hazelwood as a basis to

 

censor publication.

"The courts' reasons will include the older age of college
newspaper reporters, the concomitantly higher age of these
newspapers' readers, the increased independence generally
granted to students in higher education, and the
acknowledgment that such students, are, in fact, young
adults with full legal rights in our system (save, in most

29

states, the right to drink)(Abrams, Goodman and Murienko
728)."

In their conclusion the authors state that the lessons
learned from individual college stories and newspaper
production are best learned in "man environment as free as
possible from censorship (Abrams, Goodman and Murienko 1988
p732)."

Censorship is still a concern on campuses across the
nation, as Greg C. Tenhoff indicates in an article in the

January 1991 Southern California Law Review. His article

 

titled "Note: Censoring the Public University Student
Press: a Constitutional Challenge" describes the current
trends that colleges and universities use to control
student papers.

There are several points that Tenhoff makes that
address the issue of collegiate reporters and their press
rights.

One of the methods universities have historically used
to censor and control student newspapers is to place the
student editor in jeopardy with the administration (Tenhoff
516). This includes refusal to renew the editor's
contract, firing the editor, even suspension from the
school itself (Id. 516).

Such was the case in 1967 when the editor of the Troy

State College paper in Alabama was suspended for publishing

3O

an article critical of the state's governor, despite the

objections of faculty and staff (Troy State University v

 

Dickey 402 F.2d 515 (1968)).

"He was subsequently suspended under a university
regulation that prohibited criticism of the governor or the
legislature because they were 'acting for the owner and
control the purse strings' (Troy State University 517)"

 

Tenhoff then explains that universities might use the
issue of funding to influence and control student
newspapers. Newspapers are funded from several sources,
and depending on the institution, the bulk of the money
comes either from advertisements or from student fees.

Still, Tenhoff explains

" some newspapers may also receive university assistance
through rent-free use of school facilities, and the editors
may be required to seek university approval for major
capital expenditures (Tenhoff 514)."

He then reiterates the Supreme Court's decision that

the Hazelwood standard is not appropriate at the university

 

level, and that universities must have a permissible motive
to suppress content as suggested in Stanley v Magrath (719
F.2d 279 1983) where the Rannesota Daily printed an issue
satirizing the Catholic Church.

In this case, however, the court did not precisely
define what was permissible. Rather it suggested that the
University's actions were impermissible. Further they

found that the university, or college, has the burden of

31

proof should the student reporters and paper staff members
show that the motive was constitutionally impermissible.

Although these are compelling arguments, Tenhoff only
briefly mentions that editorial decisions should not be
subject to administrative approval. He never returns to
the discussion of the stresses and pressures a university
might impose on student newspaper staff and student
reporters.

In toto, the arguments in these law review articles
shed little direct light on the issue of collegiate
reporters and their press rights. Rather, they suggest
that college students, as a whole, should have the same
rights as professional members of the press.

The various authors bemoan the fact that universities
are able to pressure editors, but are relieved that some of
these pressures may fail because they run contrary to the
Constitution. And this seems to be the trend as overall
universities and colleges have been unable to control
student papers.

Lastly, they indicate that cases that discuss high
school newspapers and their impact on the educational
environment may be difficult to extend to higher education,
although often administrations try to use them as a

rationale to control the student newspapers.

32

The most powerful argument to be gleaned from the law
reviews examined here is that college students should be
treated just like any other members of society. Further,
school newspapers are part of the mechanics to teach
students their roles as members in society. If this is the
case then the colleges and universities that attempt to
restrict and control collegiate reporters are flying in the
face of their educational missions.

Media Research and Examples of Collegiate Press Suppression

High school and university student press rights
generally have not received much attention in media
research journals. Often there are brief mentions in
articles that discuss other legal issues, such as libel,
but that is all.

High school student press rights have been examined
more often and in more detail than collegiate press
freedoms. The bulk of current research centers on
professional reporters and other media professionals.

But there are two studies that contribute more than a
superficial examination of student press issues, and
therefore deserve mention.

In examining a University's liability and privacy of
the student press, Ruth Walden concludes that

" state supported universities are constitutionally
prohibited from interfering with the editorial

33

content of the student press, they are immune from
such liability (Walden 702)."

Walden argues that establishing a student press is
often a policy decision and that reporters and editors act
as the agents of the university. Yet she never discusses
the boundaries of those roles.

However, Walden makes an important distinction between
state and private institutions.

Private institutions have less restraint in
controlling student press and setting boundaries because
they are not prohibited by the First Amendment from
censoring or regulating the content of student publications
(Walden 1988). This is, according to Walden, because a
private institution is the publisher of the student paper,
as opposed to a public institution where the paper is the
publishing body. As a private institution, the college or
university has more freedom to control what is published in
their name and under their auspices.

Citing Trujillo v Lgye (322 F.Supp. 1266 (1970),
Walden mentions in her conclusion that legal responsibility
for what gets printed in the student publication rests with
the students. Given that public universities have little
control over student publications, student reporters and

editors then become the responsible parties for content.

34

Although it may seem intuitive that increased student
control and responsibility at papers means greater freedom,
that link has only recently been examined.

More recent research has suggested that a critical
element in evaluating student media is the structure of the
outlet (Kleiman 5). Often the key component is the method
of funding for the paper. Universities have attempted to
stifle student news organizations typically by using three
different methods.

As indicated in the discussed cases and law review
articles, when prior restraint is attempted, it meets with
greater success at private institutions.

It is worthy to note, however, that colleges and
universities, when trying to control the press can withhold
funds, forbid publication after the story has been written,
or block dissemination of the paper. Sometimes in an
effort to control a student paper, administrations will
seek to limit other student publications. For example, in
1994 Kentucky State University administrators blocked
distribution of the yearbook in an attempt to control the
student newspaper, The Thorobred News (Kincaid v Gibson
(Civ. No. 95-98, E.D. Ky. Nov. 1997)).

What follows is an examination of recent examples

illustrating that the issue of student press rights

35

 

continues to be both a hot topic and yet largely ignored by
media researchers.

In 1993 the trustees of the State Colleges of Colorado
went to court to try to prevent access by the student
paper, The.Metropolitan, to applications submitted for a
new president.

The University argued that it would later reveal the
names of the applicants. Despite this offer the case went
to U.S. District Court (Editor & Publisher 1993).

This is only one example of how collegiate journalists
have their freedoms controlled or curtailed in some
fashion. It points out how some universities attempt to
limit the newsgathering process in an effort to control the
student paper itself.

Such was the case with the Red & Black, the student
paper of the University of Georgia. The University had
denied the paper access to the records of the Organization
Court, which reprimands the fraternities and sororities on
campus. The paper sued for access, taking its case to the
State Supreme Court, which found for the paper. In its
rationale the court based its finding in part, on Georgia's
open meeting and records laws (Editor & Publisher 1993).

These attempts to control have become such a concern

that Mark Goodman, lawyer and then executive director of

36

the Student Press Law Center, outlined in 1994 ten
techniques that are used to intimidate and control the
collegiate press (Editor & Publisher 1994).
However, only those techniques that impact student
rights will be taken from the list and examined.
According to Goodman, police, defense attorneys and
prosecutors subpoena for interview notes or unpublished

photos, as evidenced earlier in Zurcher v Standard Daily

 

(436 U.S. 547(1978)) in the Case Law section. Few states
have shield laws, but those that do, such as New York, are
applied to collegiate reporters on a case by case basis.
Therefore this remains a muddy area for student reporters.

Another unclear area relates to the difficulties
associated with reporting on student government. Sunshine
laws that apply to traditional governmental meetings have
not been stretched to cover student government. Today,
reporters continue to be locked out of student government
meetings, making reporting more difficult if not impossible
to achieve.

Universities and colleges also attempt to restrict
access to campus crime reports and school disciplinary
proceedings despite congressional laws to the contrary.
But most schools violate these laws, according to Goodman

(Editor & Publisher 1994).

37

 

These excerpts from Mark Goodman's presentation at the
joint Associated Collegiate Press and College Media
Advisers 1994 convention illustrate how universities and
campus organizations attempt to restrict collegiate
reporters and information.

But as the next example indicates, the last five years
have not changed the situation. In March 1999, journalists
at the University of Maryland won a three-year battle for
access to College Park campus parking records (Trends in
College.Media 3/99 - Associated College Press 1). The
school had argued that the records were protected under the
law, but the Maryland Court of Appeals thought otherwise
(Id. 3).

The above example demonstrates how student reporters
and editorial staff can be treated differently from their
professional counterparts. It is unlikely that a
professional metropolitan paper would or could be denied
access to parking violation data.

This section has reviewed what little research there
is that mentions collegiate student press rights in more
than a cursory fashion. The fact there is a dearth of
information is further indication of the validity of this

review and research. A cursory mention of collegiate press

38

rights is not enough, though there are some key points that
bear examination.

Walden and Kleinman, for example, make several
important distinctions including the differences between
private and public institutions and the importance of how a
paper is structured and funded.

These analyses help identify and set the boundaries
under which student presses operate.

Editor & Publisher, with its ties to collegiate press
organizations, provides several up-to-date examples of
behavior within the aforementioned boundaries. It is the
only publication that routinely reports on collegiate press
issues, rather than high school or professional media
outlets.

State universities allow for the most freedom for
their collegiate press members; private institutions are
the most restrictive. But in either case, collegiate
reporters do not enjoy the full freedoms and protections of
the professional press, and as seen in the Case Law Section
earlier, they do have more freedoms than typical high
school presses.

As peer-reviewed research and current examples
suggest, student press rights fall between the high school

and professional press. But these freedoms depend on the

39

 

 

structure of the university, the media outlet, and the
students themselves. This makes it difficult to precisely
list the rights that collegiate reporters exercise.
Statutes and State Constitutions

No state in the union has any statute or
constitutional amendment that defines the collegiate
journalist. In fact there are only two states in America
that specifically mention and define professional
journalists by statute: New York and California. Of the
two statutes New York's is the most detailed and

comprehensive. The relevant section states:

(6) "'Professional Journalist' shall mean one who, for
gain or livelihood, is engaged in gathering,
preparing, collecting, writing, editing, filming,
taping or photographing of news intended for a
newspaper, magazine, news agency, press association
or wire service or other professional medium or
agency which has as one of its regular functions the
processing and researching of news intended for
dissemination to the public; such person shall be
someone performing said function either as a regular
employee or as one otherwise professionally
affiliated for gain or livelihood with such medium of
communication (NY Civ Rights Law, Art 7, sec. 79-h
(1998))."

The statute continues and defines news:

(8) "'News' shall mean written, oral, pictorial,
photographic, or electronically recorded information
or communication concerning, local, national or
worldwide events or other matters of public concern
or public interest or affecting the public welfare
(NY Civ Rights Law, Art 7, sec. 79-h (1998))."

California's constitutional amendment is not as clear.
Rather, it only implies what a journalist is and assumes

that the public shares a common understanding and

40

 

 

definition of a media professional's job. The

constitutional article states in part:

2(b) "A publisher, editor, reporter, or other person
connected with or employed upon a newspaper,
magazine, or other periodical publication, or by a
press association or wire service, or any person who
has been so connected or employed (Cal Const, Art I,
sec. 2)."

The California's constitution continues, outlining
protections afforded to reporters who choose not to reveal
their sources in a court of law. Although an intriguing
part of media studies, shield laws and related free-press
protections are beyond the scope of the instant research.
Instead, it is the definitions of professional journalists
that concern us here.

It is necessary to have a clear definition of what
constitutes a professional journalist so we can continue to
consider if collegiate reporters fall short, or if their
press freedoms rise, to the same level.

Using a strict definition of the outlined laws
mentioned above, specifically New York's, it can be seen
that collegiate journalists are not professionals; chiefly
they do not work for "mgain or livelihoodm(NY Civ Rights
Law, Art 7, sec. 79-h (1998))." Currently, research has
indicated that there have been no cases in New York that
refute the aforementioned statutory definition. In this

state, the law has held firm.

41

 

However, the California constitution mentions that
reporters need only be " connected with or employedm (Cal
Const, Art I, sec. 2)." On its face, the protections of
California's constitution could be expanded to cover
collegiate journalists as they are arguably connected to
their newspapers. But to date, research has not indicated
that this has been the case; in fact courts have been
largely mute on this topic.

Only twenty-two states even mention journalists in
their statutes in any sense, according to the Student Press
Law Center. Those that do, make the same assumption that
the California constitution does; that the public shares a
clear common definition of what constitutes a professional
journalist.

As mentioned earlier, New York and California provide
the clearest definitions of what, under the law, is
considered to be a professional reporter. With such a
general lack of clarity on the topic throughout the United
States, it becomes much more difficult for collegiate
reporters to understand what press freedoms they have
relative to their professional counterparts and therefore
what protections may therefore extend to them.

By examining what legally constitutes a professional

journalist, the upper end of a spectrum of press freedoms,

42

with the fewest impediments to publication, can be defined.
As the next section will discuss, collegiate journalists
fall below this upper limit of the exercise of press
freedoms.

Discussion

This paper attempts to address the research gap
regarding collegiate journalists who fall between the high
school and professional press. Specifically, this paper
presents facts and research and now discussion on the issue
of the press freedoms of collegiate reporters.

For the purposes of this discussion recall that press
rights are defined to specifically include the freedom to
print contentious ideas in the face of potential state or
school sponsored prior restraint. This also includes a
collegiate reporter's access to information during the
initial newsgathering process, as evidenced above by the
University of Maryland.

It may be disturbing that there are any restraints on
the American press and that the distinction between the
various types of press and their restraints is seemingly
based on age and maturity. However, that is precisely
where the distinction rests.

Picture a scale, one which ranges from a restricted

and tightly controlled press, typified by high school

43

 

 

newspapers, on one end, to a professional press, clearly
defined in an earlier section, that enjoys great freedom on
the other. On this scale of press freedom, the collegiate
press falls between these two extremes, and ranges itself
from more restrained to less.

It can be argued that collegiate reporters get their
first taste of reporting in high school. In fact there are
many high school newspapers throughout the country that
successfully prepare students for the college papers that
they may eventually work for. But just because a student
becomes a reporter, there is no guarantee that his or her
material will be published.

As we have seen in Kuhlmeier v Hazelwood School

 

 

District, stories can be, and were, struck from the
school's publication by the administration. In upholding
this decision, the Supreme Court mentioned that high
schools have a special function when they act as an arm of
the state. To this end the Court mentioned that when a
newspaper is integral to the school, then the
administration has the power to justify prior restraint,
even without school disruption. It is precisely this
argument that private colleges and universities apply to

their own school newspapers.

44

 

 

At this juncture it is important to point out that
private institutions are essentially exempt from many state
regulations, as they are not dependent on state funding and
do not function as an arm of the state. As will be
discussed later, the administrations at private colleges
and universities have historically had more leeway
throughout their administrative and educational structures
than their state affiliated counterparts, differences that
continue to hold true today.

Notwithstanding the concerns mentioned above, one

finds in Lee v Board of Regents the University of

 

Washington's administration making the same argument as

seen in Hazelwood. where the campus paper, The Royal

 

Purple, is a school-sponsored campus facility providing an
academic exercise. However, here the Supreme Court
rejected the argument. Already there is a difference
between the high school and collegiate presses. The
collegiate press has the freedom to print potentially
libelous material. In Lee it was advertisements, that in
all likelihood would have been blocked by a high school's
administration in similar situation.

The above example illustrates how the Court has moved
the collegiate press farther up the press freedom scale,

toward the full freedoms enjoyed by the professional press.

45

Yet university papers exercise fewer freedoms than the
professional press. This last point is better understood
in light of the Supreme Court mentioning, as part of its
holding in Lee, that content based publishing concerns
should be brought before the Board of Regents. This
implicitly reserves the power of review, if not censure, of
the college newspaper to the University of Washington's
governing body, thus setting the stage for the potential of
prior restraint that would be unacceptable in the
professional media.

In contrast, there also have been instances where the
collegiate press has been treated identically to the

professional media, as demonstrated in Mississippi Gay

 

Alliance v Goudelock. Recall that the Supreme Court

 

refused to hear the case, letting the findings of the Fifth
Circuit Court of Appeals stand. Also, the Court of Appeals
discovered that University of Mississippi officials had no
control over the student newspaper. Further, the decision
not to run the ad was proper, despite the freedom of speech
issues that the Alliance raised.

However, it is interesting to note that the Court of
Appeals mentioned that the Alliance had not alleged that
University officials had control over what was published in

the paper. Thus the court partially sidestepped the issue

46

of whether a lack of an administration's control over a
collegiate paper was a cause of legal action. To date
there is no indication of this issue being addressed by any
court.

In this case, a collegiate editor behaves just as any
professional newspaper staff would under similar
circumstances. The editor refused to run the ad and
returned the money, just like any paper can. Therefore,
based on this case the collegiate and university press
seems to have identical freedoms to those enjoyed by the
professional press. By treating collegiate and
professional presses identically, or by not drawing a
distinction between the two, courts imply that there are no
fundamental differences between the two.

Bear in mind that some cases, however, don't expand
rights, but rather allow for some type of intrusion, as

demonstrated in Zurcher v Standard Daily.

 

 

In this case, the Supreme Court upheld law
enforcement's right to search the premises of the Stanford
Daily. In doing so the Court made no distinction between
the collegiate paper and its professional counterparts,
potentially reserving the right of law enforcement to

search any type of paper, collegiate or professional.

47

But as Cullen v Gibson indicates, press rights need to
be asserted by the students themselves and not by a faculty
member acting on their behalf. When students do assert
their press rights, the outcome can be surprising, as
demonstrated in Kern v Elkins where the district court
found that University of Maryland officials had improperly
prevented publication by attempting to enforce a state law.

For the most part, relevant case law indicates that
the collegiate press is treated nearly the same as
professional papers, with regard to press rights. However,
note that cases such as Cullen and Kgrn confront issues
that simply don't have any analog in the professional
press. Rather, they illustrate the differences that the
collegiate press routinely operates under. This is
especially true where university and collegiate newspapers
perform an educational function. But to date neither case
law nor statutory has addressed the issue of the extent or
impact of how collegiate newspapers educate students.

Law reviews attempt to shed some light on these
issues, but only a few touch on the roles of the press
freedoms of collegiate reporters.

In her article "Silencing Student Speech: Bethel

School District v. Fraser" published in the American

 

University Law Review 1987, Sara Slaff states that students

 

48

often have their press rights supported by the courts.
However, this is less useful in examining collegiate press
rights as Slaff focuses on high school. She does examine
the doctrine of in loco parentis or "in the place of the
parent", a doctrine where the school assumes the parenting
role. But as discussed in an earlier section, this refers
to the relationship between the state and a child who is a
minor. It doesn't seem to fit the fact that collegiate
students are for the most part, no longer minors.

Instead, the age difference suggests that colleges and
universities have a lesser legal obligation to control
student activities and behavior, thus concomitantly making
students more responsible for their own actions and
decisions.

Other law review articles suggest that the role of
schools and universities is not to regulate behavior, but
rather to prepare students to become members in society.
Recall that both Bruce Hafen in "Schools as Intellectual

and Moral Associations" (Brigham Young University Law

 

Review (1993)) and J. Marc Abrams, S. Mark Goodman and
William R. Murienko, authors of "End of an Era? The Decline

of Student Press Rights in the Wake of Kuhlmeier v

 

Hazelwood School District," supports this idea.

 

49

The authors all speak about how colleges and
universities generally grant greater independence to
students than high schools. They also suggest that to
better prepare students for working in the professional
media, college stories and newspaper production should be
as free as possible. However, this may imply that the
collegiate press exercises fewer freedoms than professional
newspapers to report and publish contentious stories.

Considering the differences under which university and
college newspapers operate versus the professional media,
the above implication may prove true. This was what Greg

C. Tenhoff discusses in his 1991 Southern California Law

 

Review article "Note: Censoring the Public University
Student Press: a Constitutional Challenge."

As discussed earlier, Tenhoff examines the methods
that a university of college might use to control the
school's paper. Among the different methods is either the
threat of, or actual suspension of the editor from the
school. Tenhoff also suggests that sometimes just the
threat of being in jeopardy with the university or college
administration can be a method of controlling the student
paper. Furthermore, Tenhoff warns, that a university or
college might use the leverage provided by owning the

facilities and providing supplies to control the paper's

50

content. It is inconceivable that methods like this last,
for example, would impact a professional newspaper in any
significant way.

However, administrations continue to try to limit and
control their school's newspaper. But state—supported
universities have even fewer options to do so, according to
Ruth Walden.

Walden in her 1988 study of university and collegiate
liability argues that state universities are
constitutionally prohibited from interfering with a student
paper's content in any way. And as Kleiman's 1996 study
indicates, it is often the structure of the media outlet,
the paper in this instance, that delineates the differences
between private and state affiliated higher educational
institutions.

Kleiman refers to the funding structure of that paper
in his article, and how the organization of the governing
body that oversees publication affects the paper. More
research is needed to determine precisely how different
methods of organization and structure affect the press
freedoms of each collegiate newspaper. The evidence
presented in this paper suggests that there is variation

between specific institutions. However, only the

51

differences in press freedoms for the collegiate press as a
whole concern us here.

Those differences can be best portrayed by plotting
them on a linear scale, a scale of press freedoms as
defined in this research.

Limited press rights that are heavily restricted as
suggested by relevant case law and controlled by school
administrations indicate one end of the scale as
exemplified by high school newspapers.

On the other end of the scale is the professional
press that enjoys the greatest freedoms and has the most
protection for its activities.

In the middle, ranging from fewer press freedoms (i.e.
closer to high schools) to less are the private non-state
colleges and universities, then farther along the scale
(towards the professional press end) are the state-
affiliated colleges and universities. They have greatest
press freedom of all, but still fall short of professional
media outlets.

Conclusion

For the student entering a college or university there

are differences regarding the extent of press freedoms that

they might enjoy.

52

The potential journalism student would discover that
there is greater freedom to publish at state-supported
schools than at private institutions. They would also
enjoy freedoms more in line with the professional press.

But this does not mean that student reporters would or
do enjoy the same press freedoms as their professional
counterparts, as several examples discussed above
demonstrate. Rather the press freedoms rise close to that
level, they are closer to the professional end of the press
freedom scale, but still not quite equal to the
professional journalists.

However, the scale is not static. There may be
several smaller factors that affect the collegiate
reporter's freedom to report on and publish contentious
stories. Furthermore, case law and statutory law are both
evolutionary areas. There will likely be more cases that
will touch on, if not further define the rights and
privileges available to the collegiate press. Although
less fluid than case law, statutes also change to reflect
the social and political mores of society. Which two areas
can at best provide a framework for press rights, but not a
rigid set of definitive rules.

There are other factors to bear in mind as well.

53

The degree that a newspaper is an educational tool has
not been examined to date by any media study, law review or
court. Therefore it is largely unknown as to how this may
impact student newspapers.

As suggested by the law review another factor to
consider is the overall educational mission of colleges and
universities. Every institution has different goals for
its students. Even should those goals prove to be the
same, there will be differences in how the student
newspaper is structured to achieve those goals. These
differences need further research in order to determine
what, if any, the effects may be, on the students and on
the collegiate newspaper.

But before these questions can be answered, there is a
more fundamental question that must be answered. Do First
Amendment protections of free speech and free press extend
to collegiate reporters?

Based on this research, the answer is a qualified yes,
they do. The answer is qualified because we have seen that
although collegiate reporters enjoy more press freedoms
than their high school equivalents, they still work under
limitations and restrictions that do not apply and have no

analog to members of the professional press.

54

Collegiate reporters occupy a unique position among
journalists. On the one hand they may be restrained from
having contentious stories and material published by a
school administration. On the other they may be treated
identically to professional reporters by the courts and
allowed to make editorial decisions and print, or not,
controversial material. Regardless, collegiate reporters
operate in a unique environment defined by case law and
whether institutional affiliation is either private or
state.

More research is needed to identify and fully examine
this group or class of journalists. Although this thesis
has taken a first step, there is much more that remains to

be understood about this area of the American media.

55

Appendix A

56

COMPARATIVE PRESS RIGHTS BY REPORTER'S.AFFILIATION

 

 

 

 

 

 

 

 

 

High School College Professional
Press
Prior Yes Yes* No
Restraint
Issues
People (libel)
Prior Review Yes Yes No
Post- Yes No No
Publication
Punishment
Denied Yes Yes No
Publication

 

*These answers are qualified, for a full explanation see
text

57

Appendix B

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59

IUEFTHKESKHES

Abrams, J. Marc and Goodman, S. Mark and Murienko, William
R.. "End of an Era? The Decline of Student Press
Rights in the Wake of Hazelwood School District v.
Kuhlmeier." 1988 Duke L.J. 706. Duke Law Journal
(September 1988): 706-732.

 

Bender v. Williamsport Area School District. 741 F.2d 538.
PA Third Cir. Ct. App. 1984.

 

Cal Const. Art. 1, sec. 2. 1999.

Cullen v. Gibson. 118 S.Ct. 1054. United States Supreme
Ct. 1998, Cert. Denied. 124 F.3d 197. KY Sixth
Cir. Ct. App. 1997.

Fraser v. Bethel School District. 755 F.2d 1356.
Washington DC Ninth Cir. Ct. App. 1985.

 

Garneau, George. "Top 10 threats to campus press." Editor
& Publisher (December 1994): 31,43.

 

Gersh, Debra. "Student Newspaper wins access to campus
court records." Editor & Publisher (March 1993):
24-25.

 

Hafen, Bruce. "Schools as Intellectual and Moral
Associations." 1993 B.Y.U.L. Rev. 605. Brigham
Young University Law Review (1993): 605-621.

 

"In loco parentis." Barron's Law Dictionary. 3rd ed. 1991.

 

Kincaid v Gibson. Civ. No. 95—98. Eastern District. KY.
Nov. 1997.

Kleiman, Howard M. "Student Electronic Media and the First
Amendment." Journalism & Mass Communication
Educator (Summer 1996): 4-14.

 

Korn v. Elkins. 317 F. Supp. 138. MD Dist. Ct. 1970.

Kuhlmeier v. Hazelwood School District. 480 U.S. 260.
United States Supreme Ct. 1988.

 

 

6O

Lee v. Board of Regents. 441 F.2d 1257. WA Eighth Cir.
Ct. App. 1971.

 

"Maryland paper wins three-year battle to release parking
records." Trendsin.college.media. Associated
Collegiate Press 78 No. 3 (March 1999).

 

Miami Herald Publishing Company v. Tornillo. 418 U.S. 241.
United States Supreme Ct. 1974.

 

Mississippi Gay Alliance v. Goudelock. 430 U.S. 982.
United States Supreme Ct. 1977, Cert. Denied. 536
F.2d 1073. MS Fifth Cir. Ct. App. 1976.

 

 

Nicholson v. Board of Education. 682 F.2d 858. CA Ninth
Cir. Ct. App. 1982.

 

 

NY Civil Rights Law. Art. 7, sec. 79-h. 1998.
NY Const. Art. 1, sec 8. 1998.

Papish v. Board of Curators. 410 U.S. 667. United States
Supreme Ct. 1973.

 

Slaff, Sara. "Silencing Student Speech: Bethel School
District No. 403 v. Fraser." 37 Am. U.L. Rev. 203.
American University Law Review (Fall 1987): 203-223.

 

Stanley v. Magrath. 719 F.2d 279. MN Eighth Cir. Ct. App.
1983.

Stein, M.L. "Campus newspaper battles for records."
Editor & Publisher (October 1993): 24.

 

Tenhoff, Greg C. "Censoring the Public University Student
Press: A Constitutional Challenge." 64 8. Cal. L.
Rev. 511. Southern California Law Review (1991):
511-547.

 

Tinker v. Des Moines Independent School District. 393 U.S.
503. United States Supreme Ct. 1969.

 

Troy State University v. Dickey. 402 F.2d 515. AL Fifth
Cir. Ct. App. 1968.

 

Trujillo v. Love. 322 F.Supp. 1266. CO Dist. Ct. 1971.

61

Walden, Ruth. "The University's Liability for Libel And

Privacy Invasion by Student Press." Journalism Quarterly
(Fall 1988): 702—708.

 

Widmar v. Vincent. 454 U.S. 263. United States Supreme
Ct. 1981.

Zurcher v. Stanford Daily. 436 U.S. 547. United States
Supreme Ct. 1978.

62

         
    

   

     

 

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