The legal landscape for frontline student journalists

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Student journalists have been profiles in honest and courageous reporting since the pandemic started.

They have exposed campus outbreaks and questioned reopening plans. They have documented social-distancing violations at fraternity and sorority houses. They have tracked and explained fast-breaking changes to instructional modes and commencement events. They have demanded transparency from school administrators. And through it all they have boldly told the story of the human experience. 

Famously, at the University of North Carolina, the Daily Tar Heel published a biting editorial under the headline “UNC has a clusterfuck on its hands,” after virus clusters were identified in campus housing. And the day that Notre Dame announced it would move only temporarily to virtual learning, its student newspaper, The Observer, ran this front-page plea: “Don’t make us write obituaries.”

Student journalists at the University of Georgia, where I teach, have reported relentlessly on the institution’s dubious covid-19 testing capacities and data-reporting practices. The Baron News, the student outlet at Fountain Valley High School in California, unraveled a safety-plan dispute involving district leaders and the teachers’ union. The Charger Online, at Carroll High School in Indiana, captured the unique challenges of navigating the pandemic as an exchange student. And so on.

Student journalists have worked around one obstacle after the other, too. They have been denied access to public records and meetings, and they have clashed with school PR officials, who are consistently zealous in their efforts to control the narrative and would qualify for the Olympics if there were a sport in obfuscation. 

What makes such reporting even more significant is that students have produced it against the background of uneven legal protection—and the obscurity of where the schoolhouse gate is located in a networked world.

 

At the K–12 and college levels, it’s not clear exactly where the schoolhouse gate is—and, therefore, exactly the extent to which schools can regulate off-campus student speech, online and offline.

 

Let’s begin to unpack things at the K–12 level. In the 1943 case West Virginia State Board of Education v. Barnette, the US Supreme Court held that schools perform “important, delicate, and highly discretionary functions” but must comply with the Constitution in performing them. The court observed that the expressive rights of minors are subject to “scrupulous protection,” to ensure we don’t “strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

Then, in 1969, the court decided Tinker v. Des Moines Independent Community School District, ruling that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The majority opinion noted that such rights extend to all aspects of “the process of attending school,” whether in the classroom or “the cafeteria, or on the playing field, or on the campus during authorized hours.” However, to those rights, Tinker added an exception “in light of the special characteristics of the school environment.” The majority held that schools may regulate speech that “would materially and substantially interfere with the requirements of appropriate discipline” in their operation. But to use that power, schools must demonstrate “more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”—and more than “undifferentiated fear or apprehension of disturbance.” So Tinker effectively affirmed broad student speech rights while recognizing a narrow exception for speech that schools may regulate without offending the First Amendment.

The justices later carved out other types of student speech that schools could regulate without meeting the Tinker standard. First, in the 1986 case Bethel School District No. 403 v. Fraser, the court held that schools may “prohibit the use of vulgar and offensive terms” to “inculcate the habits and manners of civility.” Second, in the 1988 case Hazelwood School District v. Kuhlmeier, which involved a student newspaper, the court held that schools may exercise “editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” And where a school is acting as a publisher, the court added, it may dissociate itself from student speech that would “substantially interfere with [its work]…or impinge upon the rights of other students,” as well as from speech that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” Third, in Morse v. Frederick, the court held that schools may regulate student speech that officials “reasonably regard as promoting illegal drug use.”

All of which is to say: a student’s First Amendment rights are subject to limitations when she’s speaking inside the schoolhouse gate (more on this below), and a student journalist, depending on the work she does and the outlet for which she does it, is generally covered by Tinker or Hazelwood, the latter of which is less speech-protective. Usually, for example, Hazelwood would apply to a school-sponsored, curricular newspaper, while Tinker would apply to an independent newspaper or one deemed by policy or practice to be a public forum.

(All of this assumes, of course, that the student journalist attends a public school. If not, she has no First Amendment rights against the school, because the Bill of Rights applies only to government action.)

That said, notably, some states have enacted laws to protect student journalists by granting them rights beyond those guaranteed (or not) by the First Amendment. Fourteen states have one, and the Student Press Law Center is pushing for such legislation in at least another dozen. The laws and bills vary from place to place, but mostly they repudiate Hazelwood and replace it with the Tinker standard—and some extend their protections to students at private schools.

Now, what about the college level? Courts have applied Tinker and/or Hazelwood there, too, even though they both involved high school student speech. Four federal appeals courts, with jurisdictions across sixteen states, have taken Hazelwood to college. For its part, the Supreme Court hasn’t clarified whether it’s proper to do so.

The problem here is that student journalists are making increasingly important contributions, through their reporting during the pandemic and beyond. (In a number of states, there are more students than full-timers covering the legislature.) Hazelwood is especially irreconcilable with accountability reporting, which is likely to upset school administrators.

Moreover, at the K–12 and college levels, it’s not clear exactly where the schoolhouse gate is—and, therefore, exactly the extent to which schools can regulate off-campus student speech, online and offline. This has major implications for our current moment, in which more and more students—including student journalists—are engaging in remote learning and even using school equipment or networks to do so. State and federal courts have variously defined the schoolhouse boundaries; the latest was the US Court of Appeals for the Third Circuit.

It decided in June the case Levy v. Mahanoy Area School District, which involved a student who didn’t make her high school’s varsity cheerleading team and later, over a weekend away from school, shared on Snapchat a photo of herself with the caption “fuck cheer.” She was suspended from the junior varsity team. The appeals court, ruling in her favor, found that Tinker does not apply to “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.” So such speech is fully protected by the First Amendment and is not, as the court put it, regulable “simply because it involves the school, mentions teachers or administrators, is shared with or accessible to students, or reaches the school environment.”

Although that rule is highly protective of student speech, other courts have drawn that line more favorably for schools seeking to flex their power.

All told, student journalists are playing a critical role in meeting their communities’ news needs during an extraordinary time. They occupy a zone of frontline coverage that other journalists simply cannot. And without their revelatory work, which enjoys only patchwork protection, public understanding of the pandemic would suffer significantly; we would not know the full story of its impact on schools and their human DNA, the students, faculty, and staff. That’s a price far too high to pay, and it’s a testament to the student journalists—to their determination and professional responsibility—that they’ve worked around so many obstacles to keep us all from paying it. 

ICYMI: ‘Eventually something works and then you just keep doing that.’

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.