Protecting Student Journalists in a New-Media Era

The controversial firing of a faculty member who advised Mount St. Mary’s University’s student newspaper has drawn attention to such publications’ vulnerability to censorship.

At the same time the Maryland private college is coming under fire from free-speech advocates, however, that state’s Senate is considering a bill intended to keep such events from taking place at public colleges and high schools, by guaranteeing the First Amendment rights of their student journalists.

Similar bills have been offered up in Nebraska and passed by legislative committees in Missouri and Washington State. North Dakota enacted such a measure into law last spring.

Nurturing such legislation is the Student Press Law Center’s New Voices campaign, which has enlisted journalism instructors and students in 20 states to lobby for similar bills. The Chronicle on Wednesday interviewed Frank D. LoMonte, the nonprofit center’s executive director, about that effort. Following is an edited and condensed version of that conversation.

Q. I suspect a lot of people already think student journalists are protected by the First Amendment. Why is that not the case?

A. The Supreme Court decided a case in 1988, called Hazelwood v. Kuhlmeier, which is the benchmark by which the rights of student journalists are measured. The normal presumption under the First Amendment is that the government cannot regulate the content of speech except for some very extreme exceptions along the lines of threats of violence. In Hazelwood, the Supreme Court lowered the bar significantly in the educational setting. What they said was that a school could censor student speech in a curricular publication that is affiliated with a school, and part of its educational mission, on just about any reasonable basis.

Over the years the courts have been highly deferential in how they have reviewed schools’ censorship decisions. The Hazelwood case is about K-12 schools — there is even a footnote explicitly disclaiming any effect on colleges — but, in the absence of any guidance from the Supreme Court on college journalism, a number of lower courts have applied Hazelwood to the speech of college students.

Q. Given that the Supreme Court handed down its Hazelwood decision way back in 1988, why launch a campaign to reverse its effects now?

A. Immediately after Hazelwood there was a burst of activity at the state level to try to blunt its impact, and a number of states in fact passed statutes reversing the effects of Hazelwood and providing a heightened degree of legal protection. But a number of other states refused to pass them, and there was a collective sense of battle fatigue in the journalism community after those defeats. It has taken a generation for people to recover from that initial round of defeats and be prepared to step in the ring again. What has revived the movement was the success of the North Dakota act, which passed unanimously and with bipartisan support in 2015.

Q. Can college journalists retain their First Amendment rights by operating newspapers that are self-financed and not sponsored by their institutions? How common is it for them to do so?

A. It’s certainly the case that Hazelwood would no longer apply to a fully independent publication. But there are really only a handful of large institutions where it is financially viable to obtain complete separation from your college. You are talking about the Ivy League schools and a handful of large state institutions of the size of a Florida, a Georgia, or a North Carolina.

Q. Have changes in the newspaper industry undermined the ability of student newspapers to operate independently, without institutional sponsorship?

A. No question that campus publications are being buffeted by all the same economic realities that apply to the professional media. National advertising has dried up, classified ads are almost nonexistent, so the ability to function as an independent, freestanding business entity is very limited. There have been a number of publications that have had to go back to their host institutions for financial assistance after finding themselves unable to sustain a fully independent business model. The greater the degree of entanglement with the institution, the greater the risk of being censored, both legally and just as a practical matter.

Q. How much are college newspapers being censored?

A. At the highest quality institutions, censorship is, thankfully, almost nonexistent. You would never see a Princeton or Columbia trying to lay a finger on its student journalists because they know that there would be an enormous reputational price to pay. Where we do see a fair degree of censorship is at those second- and third-tier institutions, the ones that are the most reputation-conscious because they are the most financially strapped. The climate has become more and more difficult for college journalism because institutions are so obsessed with their reputations. The competition for state funding is more intense than ever. The reliance on private donors is more pronounced than ever. And the ability of a news story to live beyond a single news cycle on Google is greater than ever. For all of those reasons colleges are much more motivated to crack down on unflattering journalism than they might have been during the paper-and-ink era.

Q. What do you see as your effort’s prospects for success? Are the obstacles that thwarted past measures still out there?

A. I think we are living in a very different world these days because of the Internet and social media. Censorship has always been a harmful educational practice, but now it’s also a futile and self-defeating practice. While schools are nervous about newspapers, they are utterly petrified by how people are talking about the school on social media, and journalism is an antidote. A newspaper is governed by legal and ethical standards, students sign their real names, they correct their mistakes, they work under the guidance of a trained adult supervisor.

Q. Given that the First Amendment only covers public institutions, will your campaign help student journalists at private colleges in any way?

A. We are a bottom-up, and not a top-down, organization, and New Voices is all about local flavor. We have prepared model legislation that can apply to private institutions if the proponents so choose.

California has statutory protections for the free-speech rights of all students at public and private institutions alike. That was proposed in North Dakota, and the Catholic colleges actually showed up to oppose it, and in the interest of maintaining unanimity, that provision was dropped from the bill. To be honest, the argument is much more compelling at a public institution because you are talking about government regulators. If the First Amendment protects anything, it absolutely has to be the ability to criticize the quality of government services you are receiving.

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.