Knight's Paradigm and Scholastic Press Freedom
Abstract
Prof. Robert Knight suggested that Hazelwood v. Kuhlmeier was permissive
and allowed a continuum of public school press freedom. The author
used the
paradigm to determine if scholastic journalism experts thought that prior
review and prior restraint are censorship in all contexts and whether
they
agreed on the role of the newspaper adviser. The author determined
that
most advisers and state Freedom of Expression laws fall within the
Hazelwood continuum rather than beyond it.
Knight's Paradigm and Scholastic Press Freedom
A paper presented to
the Scholastic Journalism Division
at the August 1995 AEJMC Convention,
Washington, D.C.
Tom Dickson, Associate Professor
Southwest Missouri State University
Knight's Paradigm and Scholastic Press Freedom
Let's be honest about this one. For almost 20 years, we would not say the
teacher
was acting as publisher or -- heaven forbid -- editor. We evaded the intriguing
question
in the public school setting: Who is publisher if the agents of the state
cannot
control
content? -- Robert P. Knight (Knight, 1988, p. 43)
What prompted Knight's question was the Hazelwood v. Kuhlmeier ruling released
earlier that year allowing censorship of the Hazelwood East Spectrum
because the
newspaper was not a public forum. Knight provided an answer to his
question about
who was publisher before Hazelwood when he wrote in the same article:
"We now
realize that the adviser shifted over to being de facto publisher,
although none
would have perceived it before Hazelwood" (Knight, 1988, p. 43).
The Court said in Hazelwood that a public forum exists in a public school if
"by
policy or by practice" the school opens the newspaper for
"indiscriminate use by
the general public, or by some segment of the public, such as student
organizations," something the Court did not think had been done in the case of
the Spectrum. Knight noted that "Hazelwood is permissive as regards
control"
because the ruling "permits schools to declare their newspapers as open
forums --
free to all expression -- if they wish or to restrict quite severely
what may be
published. Or do something in between" (p. 43).
"Knight's Paradigm for the Hazelwood Era" provides a post-Hazelwood continuum
of
control of the high school press from restrictive to permissive. At
the
restrictive end (from a First Amendment perspective) of Knight's Paradigm is
what
Justice Byron White in Hazelwood called the "nontraditional" (i.e.,
nonpublic)
forum. White's majority opinion stated that limits to freedom of the
press can be
put on student publications at schools that have not by policy or
practice opened
the publication to more than "limited discourse." At schools with
such
nontraditional public forum newspapers, the Court stated, an administrator
may
use "reasonable" measures to restrict student speech if the
restriction is
related to "legitimate pedagogical concerns" or for a "valid educational
pu
rpose."
At the opposite end of the continuum described by Knight is the "limited" or
"designated" (Buss, 1989, p. 510) public forum, which is open to a
particular
group or groups but not to everyone. Limits on publication content is
minimal for
those groups for whom the forum is designated. This end of the
continuum,
according to Knight, represents the position taken by Justice Brennan in
his
minority opinion in Hazelwood.
Brennan's standard is similar to the majority position in Tinker v. Des Moines
Independent Community School District (393 U.S. 503, 1969), in which
the Court
stated that restrictions can be put on student speech only if there is
a likely
danger of "substantial disruption of or material interference with
school
activities." Before Hazelwood, the Court had not determined that prior
restraint
for other types of material was permissible (SPLC, 1985, p. 23),
however. As
noted by Buss (1989), the designation as a limited public forum, as well
as a
traditional public forum, is dependent upon state action (p. 523).
Under Tinker, prior restraint could be used only if adequate procedures were in
place to protect students' First Amendment rights. Though it did not
discuss the
forum theory in its Tinker decision, Buss notes, the Court wrote as
if the school
buildings and grounds were open for student expression (p. 516).
Knight concluded that the principal is publisher anywhere along the Hazelwood
continuum, from Justice White's majority position to Justice Brennan's
more-relaxed minority position. Though Brennan's position would severely
limit
the school's control, he agreed with the Hazelwood majority that an
educator may,
under Tinker, constitutionally censor material that is
"ungrammatical, poorly
written, inadequately researched, biased or prejudiced" (Hazelwood at
576)
because to reward such expression would "`materially disrupt' the
newspaper's
curricular purpose."
Knight considered the two polar positions -- total press control and total
press
freedom (which
he called Hazelwood's Pariah and Brennan's Pariah) -- as being untenable
positions beyond his continuum. He concluded that "(w)e should assume that
both
Pariahs are impossible, that none among us could even conjure up the
kind of
material they would print" (p. 45). It is somewhat difficult, however,
to
reconcile that position with his statement quoted above that "Hazelwood
permits
schools to declare their newspapers as open forums -- free to all
expression"
(Knight, p. 43).
Arguably, a school could establish a closed-forum newspaper primarily without
student input (SPLC, 1985, p. 15; Buss, 1989, p. 524). It also could
establish a
closed-forum newspaper primarily with student input but provided
solely for
classroom distribution (SPLC, 1994, p. 238) or even for a broader
distribution or
for the purpose of presenting the school's own viewpoint (Buss, p.
524). It also
could be argued that a school newspaper could operate as an open
public forum
under guidelines established by Fujishima v. Board of Education (460
F.2nd 1355,
7th Circuit, 1972), which stated that a student newspaper could have
no
restrictions on content other than what could be restricted in the nonschool
press. In fact, both positions are represented in "Version 2" of the
Student
Press Law Center's Model Legislation to Protect Student Free Expression
Rights,
which states:
All school-sponsored publications and news media produced primarily by
students
at a public school, except for those intended for distribution or transmission
only in
the classroom in which they are produced, shall be public forums for expression
by student reporters and editors at such school (SPLC, 1994, p.
238).
Research on the Effects of Hazelwood
All reported national studies following the Hazelwood ruling1 have found that
the ruling did not lead to a significant increase in prior restraint
of student
newspapers. The studies also have tended to confirm Knight's
conclusion that the
adviser was the de facto publisher at many schools even before the
Hazelwood
ruling.
Prepublication Review. In their last pre-Hazelwood national study of public
high
schools, Click and Kopenhaver (1988) reported that 97 percent of
principals and
89 percent of advisers agreed moderately or strongly2 that "student
newspaper
advisers should review all copy before it is printed" (p. 50).
Following the
Hazelwood ruling, Click and Kopenhaver (1990) found no change in
attitudes of
principals and little change in attitudes of advisers.3 As many
principals (96%)
and slightly fewer advisers (82%) agreed moderately or strongly that
advisers
should review all copy.4
Likewise, in a study of state scholastic press association directors, Lyle
Olson, Roger Van Ommeren and Marshel Rossow (1993) found that just over
three-fourths of the directors also thought that the adviser should review
all
copy before it is published.
Click and Kopenhaver (1988) also found that 56 percent of principals and 70
percent of advisers agreed moderately or strongly before Hazelwood that
it was a
form of censorship for school administrators to read student
newspaper copy
before publication. (They did not report responses to that question in
their 1990
study, however.) Click and Kopenhaver (1990) remarked that "(i)t is
possible, but
unlikely, to review copy without censoring" (p. 8).
Results by Dickson (1990) from a random sample of U.S. public high schools
after
Hazelwood were similar to those of Click and Kopenhaver. Ninety-five
percent of
both editors and advisers in his study reported that the adviser
fairly often,
quite often or always read the newspaper before it was published.
Advisers were
somewhat more likely than editors (89% vs. 82%) to state that they
always read
the newspaper before publication. On the other hand, Dickson found
that nearly
two-thirds of both advisers and editors stated that the principal
never read copy
before publication. Only 17% of editors and 14% of advisers said the
principal
read the newspaper before publication fairly often, quite often or
always.
Fixing Copy. Click and Kopenhaver (1988) found that four-fifths of principals
and two-thirds of advisers before Hazelwood agreed that the adviser
should
correct spelling errors even if the student couldn't be contacted. Click
and
Kopenhaver (1990) found following Hazelwood that slightly fewer
principals (74%)
and considerably fewer advisers (53%) agreed moderately or strongly
that the
adviser should correct student misspellings.
Click and Kopenhaver found that 66% of principals and 71% of advisers before
Hazelwood agreed that the adviser should fix factual errors before
publication
even if the students involved couldn't be consulted. After Hazelwood,
they found
that the same percent of principals (67%) but fewer advisers (57%)
agreed
moderately or strongly that the adviser should fix factual errors. Click
and
Kopenhaver also concluded, as did Knight, that advisers "see themselves
as
editors who must review copy and correct misspellings and inaccuracies but
not
necessarily remove entire stories that will hurt the school's
reputation" (1990,
p. 9). The two researchers noted about the two practices: "It
concerns us that
advisers believe they should correct misspelling and factual errors
in students'
work" (Click and Kopenhaver, 1993, p. 69).
The Adviser: School Official, Editor or Both?
As noted above, Knight answered his question of "Who is publisher if the agents
of the state cannot control content?" by stating that the principal
is publisher
all along the Hazelwood continuum. Knight also might have asked
another related
question, which can be called Knight's Conundrum. It can be stated as
follows:
"When advisers read and edit copy, are they acting as an agent of the
state or as
a member of the staff or both?"
The issue of whether the adviser is an agent of the state was addressed by
Dvorak and Dilts (1991), who wrote:
Teachers and publications advisers are clearly included in the Court's
understanding of the administrative role of a school relating to student rights
when
it said in Hazelwood that
... educators (emphasis added) do not offend the First Amendment by exercising
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.
But a substantial portion of advisers will probably take offense at this
clouded
reasoning
(pp. 7-8).
Dvorak and Dilts also noted, "In Hazelwood, the Court tacitly included the
publications adviser as an agent of the school board's authority when it
addressed the board's power to control Spectrum newspaper content" (p. 28).
If the adviser is a state employee, can the adviser also take the role of
editor
anywhere along the Hazelwood continuum? To answer that question, it
must be
determined whether a school newspaper can be an open forum (either a
traditional
or a designated public forum) when it is produced as a curricular
exercise.
Because the adviser is a state official, the adviser would be allowed
only
light-handed control of content if the newspaper were an open forum.
Dvorak and
Dilts (1991, p. 21) stated about that issue:
The Court in Hazelwood seemed to suggest that the school newspaper, as part of
the
curriculum, could not concurrently be a public forum. The Court said the school
had
not intended "to expand" the rights of student writers and editors on the
school
paper by "converting a curricular newspaper into a public forum."
Buss (1989) noted that the court did not answer the question of whether a
curricular newspaper could be a designated (limited) forum, however. He
wrote:
Although the Court did not state flatly that a school newspaper that is part of
the
curriculum cannot be a designated public forum, the majority opinion strongly
suggested that the two are inherently incompatible. This suggestion, however,
is
clearly wrong. As a matter of educational policy a school could make
participation
in the publication of a school newspaper part of a course of study and, at the
same
time, give students the authority to decide what should be published. Giving
students
this authority would enable them to apply what they have learned in the course.
Under
such an educational policy, the newspaper would be both a part of the
curriculum
and
a designated public forum for student expression (p. 510).
If the newspaper were a designated forum, arguably, the adviser could not act as
editor except to the extent that any state official is allowed to
control such a
forum.
Defining Prior Review and Prior Restraint
If the adviser normally acts as editor, reading copy as well as sometimes
fixing
spelling and factual errors, where along the continuum envisioned by
Knight's
Paradigm are such activities constitutionally acceptable behavior? In
other
words, are such actions always "official" prior review and prior
restraint?
An answer to that question is made more difficult in that researchers have used
a variety of definitions of such terms as censorship (or prior
restraint) and
prior review in attempting to determine how much public high school
press freedom
exists, and other researchers have left such terms undefined.
One definition of censorship used by scholastic journalism researchers is "any
official (emphasis added) interference with student control of the
newspaper."
Another definition used is "any official (emphasis added) interference
by
intimidation or coercion with student control of the newspaper." Yet
another
definition used is "specific incidents of cutting controversial material
and any
policy or atmosphere of intimidation that causes students to refrain
from
printing certain materials in the student newspaper." Those definitions,
however,
do not answer the question of whether actions by the adviser are
"official" acts,
and they do not state whether prior review is censorship if prior
restraint or
coercion are not involved.
Whereas prepublication review by administrators normally is seen to be prior
review, prepublication review by advisers is not always seen as prior
review. For
example, neither the policy of the Student Press Law Center (SPLC)
nor the
Journalism Education Association (JEA) on prior review considers
prepublication
review by advisers to be "prior review."5
The SPLC's "Prior Restraint" policy in its "Guidelines for Student
Publications"
discusses both prior review and prior restraint by school
administrators. It
states: "No student publication, whether nonschool-sponsored or
official, will be
reviewed by school administrators (emphasis added) prior to
distribution or
withheld from distribution" (SPLC, 1994, p. 232). The SPLC's "Model
Legislation
to Protect Student Free Expression Rights" states: "No student
publication,
whether school-sponsored or non-school-sponsored, will be subject to
prior review
by school administrators (emphasis added)."
Neither of the two policy statements condemns prepublication review by advisers
or prior restraint by administrators that does not involve
withholding the
student publication from distribution.
The SPLC's model legislation notes that "(i)t shall be the responsibility of
the
journalism adviser or advisers of student publications within each
school to
supervise the production of the school-sponsored publication and
maintain the
provisions of this chapter" (SPLC, 1994, p. 237) without stating if
supervision
includes prepublication review.
The "Journalism Education Association's Policy on Prior Review," adopted in
1990, expresses agreement with the SPLC prior review policy. It also
states:
"Prior review is but a tool in the arsenal of censorship, and the
Journalism
Education Association opposes its use in America's schools" (SPLC, 1994,
p. 228).
The policy, however, allows prepublication review by advisers, but
not by other
teachers or by administrators. It states: "Prior review by
administrators or
other school officials, including teachers outside those who advise
publications
or activities staffs (emphasis added), is journalistically
inappropriate,
educationally unsound and practically illogical" (SPLC, p. 227). The
previous JEA
policy stated:
A journalism teacher working with students involves advising, counseling
and editing (emphasis added). Such internal discussions do not involve prior
review,
in our opinion, so long as protected speech is not tampered with and students
make
final decisions on content (SPLC, 1995, p. 227).
The revised JEA policy, approved March 31, 1990, changed "and editing" to "and
supervises the editing process" (JEA, 1990).
Both the revised and previous JEA policies, therefore, state that
prepublication
review by the adviser is not prior review as long as students have
the final say
on content. Unlike the earlier JEA policy, however, the present
policy states
that the adviser does not actually edit, but only supervises the
editing process.
The JEA's Student Press Rights Position, revised in 1988, seems to reject
prepublication review by the adviser as well as censorship, however, if
not
justified. It states:
Student media shall not be subjected to prior restraints, review (emphasis
added) or
censorship by faculty advisers (emphasis added), school administrators,
faculty,
school
boards or any other individual outside the student editorial board, except as,
and only
when these individuals can demonstrate legally defined justification (emphasis
added).
In addition, student journalists have the right to determine the content of
their media
(JEA, 1988).
Restrictions on Newspaper Content
Not only are definitions and guidelines concerning prior review and prior
restraint somewhat vague, but they also do not differentiate between
schools
based upon the amount of press freedom actually granted by the school.
They seem
to suggest that school newspapers are either public forums or they
are censored.
Knight's Paradigm, however, suggests that Hazelwood actually allows
light- or
heavy-handed treatment, depending upon the school's policy or practice.
Whereas administrators at schools with newspapers at the least-restrictive end
of Knight's continuum (Brennan's minority position) can use prior
restraint only
when student expression would "`materially disrupt' the newspaper's
curricular
purpose," administrators at newspapers at the most-restrictive end
(White's
position) would be able to use prior restraint in response to "legitimate
pedagogical concerns."
Whether one accepts Knight's conclusion that the principal is publisher
everywhere along the Hazelwood continuum, prepublication review by the
adviser
arguably would be necessary if only to determine whether publication
would cause
disruption to occur. That seems to be the position taken by the prior
review
policies discussed above. That also is written into most state
legislation.
The Kansas law authorizes prior review by state officials and states that
suggesting that students change copy is not censorship. It states:
Review of material prepared by student publications and encouragement of the
expression of such material in a manner that is consistent with high standards
of English
and journalism shall not be deemed to be or construed as a restraint on
publication of the
material or an abridgment of the right to freedom of expression in student
publications
(SPLC, 1994, p. 235).
The Iowa law seems to authorize prepublication review, correcting copy and
outright prior restraint by advisers. It states:
Journalism advisers of student producing official student publications shall
supervise
the production of the student staff, to maintain professional standards of
English and
journalism, and to comply with this section [which states what material shall
not be
published] (SPLC, 1994, p. 235).
The Colorado law has similar restrictions. It states:
Student editors of school sponsored student publications shall be responsible
for determining the news, opinion, and advertising content of their
publications
subject
to the limitations of this section. It shall be the responsibility of the
publications
adviser to supervise the production of such publications and to teach and
encourage free
and responsible expression and professional standards for English and
journalism
(SPLC, p. 234).
Whereas the California law allows prior restraint, it does not give the adviser
a role in ensuring professional standards. Instead, it requires each
school
district and county board of education to establish publications codes.
The
Massachusetts law allows no restrictions except for disruption or
disorder and
does not give the adviser an oversight role.
The SPLC's "Model Guidelines for Student Publications" states that the "final
decision of whether the material is to be published will be left to
the student
editor or student editorial staff" (SPLC, 1994, p. 231), but the
guidelines
allow punishment for publication of constitutional unprotected speech.
They do
not allow prior review by administrators.
The SPLC's "Model Legislation to Protect Student Free Expression Rights" (SPLC,
p. 237) puts no restrictions on freedom of the press and states only
that the law
does not authorize students to publish material that is obscene,
libelous,
invades privacy or incites disruption. The adviser is given authority to
uphold
the law and, thus, promote instead of deny press freedom. Because no
restrictions
are allowed, the model legislation presumably is beyond Brennan's end
of the
Hazelwood continuum toward the area Knight called Brennan's Pariah.
Both the California and Iowa laws prohibit material that is obscene, libelous
and slanderous as well as material that may be disruptive or incite
students to
violate laws or school regulations, and the Kansas law notes merely
that such
material is not protected by the act. The Colorado act not only allows
prior
restraint for obscenity, defamation and material that may cause
disruption, but
also for material that violates the right to privacy and false
material
concerning a non-public figure. (SPLC, 1994, pp. 233-236).
The California, Colorado, Kansas and Iowa laws, then, appear to restrict
content
well beyond what would be allowed under SPLC's model legislation. All
four laws,
in fact, likely would be located well toward White's end of the
Hazelwood
continuum. However, the other state freedom of expression law, that of
Massachusetts, appears to be anchored at Brennan's and Tinker's end of the
continuum. It
allows prior restraint only for material that would cause "disruption or
disorder
within the school" (SPLC, 1994, p. 236). Thus, the state legislation
can be
placed along the Hazelwood continuum with the SPLC legislation lying
beyond
Brennan, Massachusetts' law resting at the Tinker position, and the other
state
laws lying somewhere close to White's restrictive position.
Liability
According to the "Responsibilities of Student Journalists" section of the
SPLC's
"Model Guidelines," "(s)tudents who work on official student
publications
determine the content of those publications and are responsible for that
content"
(SPLC, p. 229). Based upon the Student Press Law Center's definition
of
liability, however, the school likely does have liability if the adviser
reads
copy before publication as suggested by the policies and state laws
mentioned
above -- particularly if it is the adviser's policy to make changes.
The SPLC
notes about liability:
The general principle behind legal liability is that any person who could and
should have prevented (emphasis added) an injury from occurring can be held
responsible
for it. ... In the words of one court, "Everyone who takes a responsible part
in
the
publication is liable for the defamation" (SPLC, 1994, p. 159).
Though a school at the Tinker position on the continuum does not likely have
liability for publication of constitutionally unprotected speech under
the SPLC's
definition of liability if there is no prepublication review, some
liability
apparently exists according to that definition when the adviser reads
copy of a
designated-forum newspaper. If the school has created a
designated-forum
newspaper, an adviser who uses prepublication review still might be seen as
having liability under the SPLC definition.
Toward White's end of the Hazelwood continuum, where it is assumed that
restraint could be used for a variety of reasons,
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liability for content. The Colorado and Kansas laws specifically
exempt the
school district and all school employees from liability for student
expression.
The Iowa law limits the liability of school "employees and officials"
to the
extent that they have "interfered with or altered the content of the
student
speech or expression." A conflict seems to be present, however, in these
laws to
the extent to which the adviser is made responsible for ensuring that
non-protected speech is not published.
The California law doesn't mention liability specifically, but it does give all
responsibility for the newspaper to student editors and, thus,
apparently
eliminates the school's liability except as provided for by school district
policies. The Massachusetts law exempts all school officials from
liability. It
defines a school official as "any member or employee of the local
school
committee" (SPLC, 1994, p. 236).
Method for the Current Study
Research has shown that most advisers are reading copy and editing, both
correcting misspellings and factual errors in copy. Scholars also suggest
that
such action can be seen as official state action. Because of
Hazelwood, however,
those actions may be unconstitutional only outside the Hazelwood
continuum toward
Brennan's Pariah. But is such action acceptable conduct for an
adviser? The
current study is an attempt to find out if people who are most
knowledgeable
about scholastic journalism education agree on whether reading copy and
making
changes to newspaper content are prior review and prior restraint and
whether
they agree on a definition of prior review and prior restraint.
The first research question guiding the study was: "Do people knowledgeable
about scholastic journalism education define prior review and prior
restraint as
censorship in all contexts?" The second research question was: "Do
scholastic
journalism experts agree on what advisers should do when faced with
questions of
prepublication review and making changes in copy?
A questionnaire was sent in April 1994 to 263 people whose names were compiled
from a list of officers or directors of local, state, or national
scholastic
journalism organizations, including the membership list of the
Scholastic
Journalism Division of the Association for Education in Journalism and Mass
Communication. A total of 130 responses were received (49.4%). Of that
number 47
people stated that they were not then involved in scholastic
journalism or with a
scholastic journalism organization or were not knowledgeable enough
to respond. A
total of 83 people returned completed surveys.
Respondents were asked questions about their definition of prior review and
prior restraint and several questions that Click and Kopenhaver (1990)
had asked
advisers and principals about prior review and prior restraint.
Results of the Study
Defining Prior Review. About four-tenths of respondents (40%) stated that it
was
not prior review for an adviser to read newspaper copy before
publication, and
about the same number (41%) stated that it depended upon the reason
the adviser
was reading the copy. Nearly one-fifth of the respondents (19%)
stated that it is
prior review when the high school newspaper adviser reads newspaper
copy before
publication no matter what the reason.
The experts were in greater agreement over whether it is prior review when the
principal reads student copy. Three-fourths of respondents (75%) said
it is prior
review when the principal reads copy, and one-fifth (20%) said it
depends upon
the reason the principal was reading the copy. The remaining 5% said
it is not
prior review.
Defining Prior Restraint. About six of seven respondents (86%) said it is not
censorship if the adviser reads the newspaper before publication, and
one in
seven (13%) said it depended upon the reason the adviser was reading the
copy.
Only one respondent stated that such a practice is censorship.
Respondents were split over whether it is censorship if the principal reads
copy
before publication. Somewhat over one-third of respondents (37%) said
it is not
censorship. Nearly three in 10 respondents (29%) said it depends
upon whether
the adviser had asked the principal to read the copy, and slightly
over one-third
of respondents (34%) stated that it is censorship no matter what the
reason.
Nearly three-fourths of the respondents (73%) stated that it is not censorship
if the adviser suggests that the editor change the wording in a story
without
actually telling the editor to do it. Nearly one-fourth (24%) said it
depends
upon what the adviser wanted changed. Only 2% said that the practice
was
censorship.
Respondents were fairly well split over whether it is censorship if the adviser
edits a story for spelling and/or factual errors without telling the
editor or
writer. Whereas 47% said he is censorship, 52% said it is not (and 1%
wrote in
that it depends upon the situation).
A majority (56%) of respondents, however, said that it is censorship if the
adviser forbids publication of an article, and 38% said it depends upon
the
reason the adviser is forbidding publication. The remaining 6% said
that it is
not censorship.
Responsibilities of the Adviser. More than seven-tenths (71%) of respondents
with an opinion stated that the adviser should review all copy before
it is
printed. Nearly six-tenths (58%) stated that the adviser should correct
misspellings that students make in their copy, and just over half (53%)
stated
that the adviser should correct factual inaccuracies even if it is not
possible
to confer with the students involved.
When asked what the adviser should do if he/she determines before publication
that information in a story is inaccurate, a majority of the
scholastic
journalism experts (52%) stated that the adviser should tell the editor about
the
situation if the adviser found that information to be inaccurate, 23%
stated that
adviser should ask the reporter to fix it, and 22% suggested some
other option.
None of the respondents suggested the adviser should fix the error
without
necessarily notifying anyone, and three (4%) said the adviser shouldn't
have read
the story in the first place.
Somewhat under half (45%) of the experts said that the adviser should tell the
editor about misspelled words in copy before publication, and 28%
suggested
asking the reporter to fix them. A fifth (20%) proposed some other
solution.
Three (4%) suggesting the adviser fix the error without necessarily
notifying
anyone, and three said the adviser shouldn't have read the story.
Nearly all respondents (99%) stated that advisers who know that the newspaper
is
going to publish something that will put the school in a bad light
have no
professional obligation to see that the item is removed. Almost as many
respondents (95%) stated that high school administrators should not have the
right to prohibit publication of articles they think are harmful though
not
libelous, obscene or disruptive.
Nearly two-thirds of the experts (65%) said the adviser should talk with the
editor if the editor wanted to print something that was
constitutionally
protected speech but was not fair and balanced or attacked someone but that
the
adviser should not change the wording. About one-sixth (16%)
suggested changing
the wording or removing the article if the editor doesn't fix the
problem, 2%
suggested asking the principal what to do, and 15% suggested other
options. Two
percent said the adviser shouldn't have read the story.
Nearly three-fourths of the experts (72%) said the adviser should talk with the
editor if he/she wanted to print something that was constitutionally
protected
speech but was controversial at the school but should not change the
wording or
remove the article from the paper. Only one respondent would have
changed the
wording or removed the story. The others gave a variety of different
responses.
Nearly six in 10 respondents (58%), however, stated that the adviser should
remove an article that is libelous or obscene or otherwise not
constitutionally
protected if the editor doesn't fix it. One in
six (17%) said the adviser should talk with the editor but not change the
wording
or remove it, and the remaining 24% gave other suggestions.
Six-tenths (61%) of respondents, however, stated that the adviser was not
ultimately responsible for the content of the student newspaper, and
two-thirds
(66%) stated that advisers who do not read copy before publication
should not be
held personally responsible for complaints about the newspaper.
Eight percent of respondents agreed with the Hazelwood ruling, 11% disagreed
with it somewhat, and 81 disagreed with it strongly.
Comparisons with Advisers and Principals.
Scholastic journalism experts in this study were somewhat but not significantly
less likely than advisers in Click and Kopenhaver's 1990 study to
think the
adviser was ultimately responsible for the newspaper's content (51% vs.
39%, chi
square = 3.48, p>.05, V=.091). Advisers in Click and Kopenhaver's
1990 study were
significantly less likely than principal to think that the adviser
was ultimately
responsible for the content of the student newspaper rather than
student editors
(81% vs. 51%, chi square = 51.0, p<.001, V=.303),
Scholastic journalism experts also were significantly less likely than advisers
in Click in Kopenhaver's study to hold the opinion that advisers who
do not read
copy before publication should be held personally responsible for
complaints
about the newspaper (72% vs. 34%, chi square = 41.3, p<.001, V=.314).
Advisers
were significantly less likely than principals in Click and
Kopenhaver's study to
think that such advisers should be held responsible for complaints
(92% vs. 72%,
chi square = 32.75, p<.001, V=.243).
Advisers also were significantly more likely that the experts to think that the
adviser has a professional obligation to see that the newspaper
doesn't publish
something that will put the school in a bad light (13% vs. 1%, chi
square = 9.71,
<.01, V=.153). Principals were significantly more likely than
advisers to state
that position, however (38% vs. 13%, chi square = 45.03, p<.001,
V=.290).
The experts were significantly more likely than advisers to think that the
school administrators should not have the right to prohibit publication
of
articles they thought were harmful, but not necessarily libelous, obscene
or
disruptive (95% vs. 86%, chi square = 5.29, V=.111). Advisers, on the
other hand,
were significantly more likely than principals to think school
administrators
should not have the right to prohibit publication of such articles (86%
vs. 29%,
chi square = 181.62, p<.001, V=.574).
The answer to the first part of the first research question (namely, do people
knowledgeable about scholastic journalism education define prior
review as
censorship in all contexts?) is that most scholastic journalism education
experts
think that it is or might be prior review in some cases for the
adviser to read
newspaper copy before publication but that it is always prior review
for the
principal to read copy before publication.
The answer to the second part of the research question (namely, is prior
restraint censorship in all contexts?) is that most of the experts think
that it
is not censorship for the adviser to read the newspaper before
publication but
that it either is censorship or might be censorship if the principal
reads
newspaper copy before publication. It is not censorship, according to most
respondents, when the adviser makes suggestions to the editor about
changing
content, but it is censorship in all cases when the adviser forbids
publication.
Discussion
A consensus definition of prior review based upon responses to this survey
would
be as follows: Reading of newspaper copy before publication by a
school employee
-- whether it be the adviser, the principal or other employee. Prior
restraint
would be defined this way: Any prohibition against publication made by
the
adviser, the principal or other school employee. Respondents were split
over
whether it was censorship for the adviser to fix spelling or factual
errors, but
they agreed that a suggestion that material be changed is not
censorship.
The second research question was: "Do scholastic journalism experts agree on
what advisers
should do when faced with questions of prepublication review and making changes
in copy? The answer is "yes, to a large extent." Most experts agree
that the
adviser should correct misspellings and factual errors in copy but that
they
should not stop negative stories about the school or stories that may be
harmful
but not libelous, obscene or disruptive. Most experts also agree that
students
should be responsible for fixing mistakes in copy and that students
should be
responsible for making changes to stories that are not fair and
balanced. They
also agreed that advisers should not change the wording of
controversial articles
or remove them from the paper. On the other hand, most experts agreed
that the
adviser should remove articles that are libelous or not
constitutionally
protected if the editor does not want to do anything about them.
In spite of the degree of oversight of newspaper content that respondents
thought the adviser should have, most experts stated that the adviser was
not
ultimately responsible for the content of the newspaper, whether he/she
read the
newspaper before publication or not, and most disagreed with the
Hazelwood
ruling.
Rather than taking a strict First Amendment position on the issues of prior
review and prior restrain, most experts in this study seemed to be
taking the
position on the Hazelwood continuum somewhere between the two extremes.
The
tended to disagree with the position of the Journalism Education
Association and
Student Press Law Center that adviser prepublication review is not
prior review,
but they tended to be toward the Hazelwood end of the continuum
concerning making
changes in copy for some constitutionally protected speech. The
majority appear
to be somewhere close the positions taken by the California,
Colorado, Iowa and
Kansas freedom of expression laws -- which allow prior restraint for
libel as
well as obscenity and potential disruption, but not for material that
is
controversial or not up to journalistic standards of fairness and balance --
rather than the more-permissive Massachusetts law.
The educators seem to support the Supreme Court's goal for high standards, but
they indicate that the Court went too far in Hazelwood in the type of
restrictions that would be allowed on a variety of constitutionally protected
speech. They would allow students to print controversial and even
unfair
material, but they saw the adviser's role to tell editors what journalistic
standards would be in those situations.
Conclusions
In answer to Knight's question of who is publisher if the agents of the state
cannot control content, Hazelwood provided the Supreme Court's answer
when the
newspaper is a nontraditional forum: The school is publisher until
school
officials by policy or by practice give up that responsibility to the
students.
As noted above, Knight argued that the school is publisher not only
when the
newspaper is a nontraditional forum, but also anywhere along the
Hazelwood
continuum. School officials, however, do not have all the powers of a
nonschool
publisher at any position along the continuum. Hazelwood is
permissive, but it
also is limiting: Prior restraint must be based on pedagogical
concerns. Any
definition of school official as publisher even at White's restrictive
end of the
continuum must take the protection that Hazelwood gives the student
press into
account.
In answer to Knight's Conundrum ("When advisers read and edit copy, are they
acting as an agent of the state or as a member of the staff or both?"),
the
scholastic journalism educators in this study seem to be suggesting that
the
adviser must make decisions both as an agent of the state and as a
member of the
staff -- much as a managing editor represents the publisher but also
is part of
the editorial staff. The adviser also is a teacher of journalistic
principles,
however, and that role might conflict with either or both of the other
two.
Conflict is built into such a scenario. As a teacher, the adviser has a
responsibility to see that journalistic lessons are learned, but as an agent
of
the state it is prior review for the adviser to read copy. As a
teacher, the
adviser also would feel an obligation to see that libelous and obscene
or
otherwise not constitutionally protected material not be printed or that
misspellings and factual errors in students' copy are corrected. If the
adviser
acts as editor and takes some control over content, the adviser may
be ultimately
responsible for newspaper content. But as an agent of the state, it
is prior
restraint for the adviser to change copy.
The traditional definition of an adviser is one who gives advice -- not one who
edits. Research has shown, however, that advisers were editors even
before the
Hazelwood decision -- with the approval of some journalism educators.
The
Hazelwood decision now gives the imprimatur of the Supreme Court on a wide
range
of content controls if the newspaper is not an open forum, and nearly
all state
Freedom of Expression laws seem to require the adviser to see that
certain
material is not published.
Responses to the survey suggest that another continuum besides Knight's
Hazelwood continuum exists. The experts seem to see advisers using light- to
heavy-handed control of the publication at various times. Sometimes the
experts
prefer that the adviser suggests that changes be made. At other
times, the
experts suggest that the editor use a heavy-handed touch by removing
obscene or
libelous material or fixing errors.
The results of this study suggest that educators who train future advisers
should look at what they are teaching about the role of the adviser. If
the
adviser is school official, managing editor and teacher, the job of
adviser is a
complex one. Perhaps journalism educators should attempt to think of
the role of
adviser as something that transcends the three roles.
Such a job is made more difficult because of the nature of the Hazelwood
ruling.
It is permissive from the school's viewpoint because it allows a
considerable
range of options for the newspaper -- according to Knight's Paradigm,
from
nontraditional forum to designated public forum. Yet to be determined is
whether
it allows the Hazelwood Pariah (a closed forum) or Brennan's Pariah
(a
traditional public forum).
Journalism educators might consider promoting a new Freedom of Expression
Paradigm that would allow something that may seem shocking -- an adviser
who is
basically just an adviser and not
surrogate publisher and editor. An adviser who just advises would not use prior
review unless asked by the student and would not fix errors in copy
or use prior
restraint for constitutionally protected material. Such an adviser
also would not
have liability for content.
The new paradigm suggests a post-Hazelwood continuum in which school policy or
state law states that student-produced newspapers that are
distributed outside
the classroom are by definition open forums -- either designated
forums or
traditional forums. In such a scenario, a publications board rather than
an agent
of the state would be publisher. Such a paradigm seems necessary not
only if
Hazelwood did change the preexisting situation, but also if, as Buss
concluded,
the Hazelwood ruling left "the preexisting balance between the
state's power to
control messages received by students in public schools and the
student's right
to communicate rival messages largely where it was" (p. 542).
A continuum based upon such a paradigm could be anchored at one end at Tinker
(restrictions are allowed only for material that would cause
"disruption or
disorder within the school"), Brennan's more-restrictive interpretation
of Tinker
in his minority opinion in Hazelwood (that disruption to the
educational process
includes material that is "ungrammatical, poorly written,
inadequately
researched, biased or prejudiced"), or at a point even more restrictive, such
as
the Colorado Freedom of Expression Law (that restrictions are allowed
not only
for possible disruption but for obscenity, defamation, invasion of
privacy and
false material concerning a non-public figure). The other end of the
Freedom of
Expression continuum would be well into Brennan's Pariah. It would be
anchored by
the position taken in the Fujushima ruling, that no restrictions are
allowed
beyond those allowed for the nonstudent press.
In addition to Knight's original question of "Who is publisher if agents of the
state cannot control content?," journalism educators have evaded
another
intriguing questions since the Hazelwood ruling: Who is publisher in the
college
setting if the agents of the state cannot control content? Phrased
another way:
Does the Hazelwood continuum apply to the college press? The question
of whether
a public college can
create a press that is not designated a public forum presents another conundrum:
"Are paid editors as well as college journalism faculty and advisers
acting as
agents of the state or as members of the staff or both if they use
prior review
and prior restraint?"
The Court evaded answering the issue of the college press. Educators have
assumed (or hoped) that Hazelwood does not apply because college students
are of
the age of maturity. Age and maturity was a question in Hazelwood,
but it was not
a key issue. The key point, instead, was "to what extent can state
officials put
restrictions on the student press if they have not been made open
forums?"
The issue of the extension of Hazelwood aside, the question that journalism
educators should try to answer now is: Can the appropriate balance
between a
responsible press and a free press be found on the existing Hazelwood
continuum,
or is it beyond that continuum toward Brennan's Pariah. Moreover, if
the
newspaper is a designated forum, to whom would access be limited? Educators
also
might ask whether the student press is adequately protected by
existing state
Freedom of Expression laws.
Whether, as Buss suggested, Hazelwood did not shift the balance between the
state's power and student rights or whether it indeed did shift that
balance,
arguably it achieved some positive things from a First Amendment
perspective. It
caused journalism educators to rethink the role of the adviser. It
also caused
enough alarm that some states put restrictions upon their agents'
control of the
student press. It also could lead to a new paradigm of student press
freedom that
expands Knight's Paradigm to include more protection for student
expression.
References
Buss, W.G. (1989). School newspapers, public forum, and the First Amendment.
Iowa
Law Review, 74, 505-543.
Click, W., and Kopenhaver, L. (1988). Principles favor discipline more than a
free press. Journalism
Educator, 43:2, 48-51.
Click, W., and Kopenhaver, L. (1990, August). Opinions of principals and
newspaper advisors toward student press freedom and adviser
responsibilities
following Hazelwood v. Kuhlmeier. A paper presented to the Association
for
Education in Journalism and Mass Communication Convention, Minneapolis,
MN.
Click and Kopenhaver (1993). Attitudes of principals and teachers toward student
press freedom. Journalism Educator, 48:1, 59-70.
Dickson, T. (1990, January). How advisers view changes in the high school press
in the post-Hazelwood
Era. A study presented at the mid-winter meeting of the Secondary Education
Division of the
Association for Education in Journalism and Mass Communication. New Orleans,
LA.
Dickson, T. (1994). Self-censorship and freedom of the high school press.
Journalism Educator, 49:3, 56-63.
Dvorak, J. (1992). Secondary school journalism in the United States. Indiana
High School Journalism Institute Insight Research Report. Indiana
University:
Bloomington, IN.
Dvorak, J., and Dilts, J.P. (1991, January). Post-Hazelwood considerations for
high school publications. Paper presented at the mid-winter meeting
of the
Secondary Education Division of the Association for Education in
Journalism and
Mass Communication, Miami, FL.
Dvorak, J., Lain, L., and Dickson, T. (1994). Journalism kids do better: What
research tells
us about high school journalism. ERIC-Edinfo Press, Bloomington, IN.
Journalism Education Association (JEA) (1988). Student press rights position.
(Available from JEA,
Kedzie Hall 103, Kansas State University, Manhattan, KS 66506-1501.)
Journalism Education Association (JEA) (199). Prior review statement. (Available
from JEA,
Kedzie Hall 103, Kansas State University, Manhattan, KS 66506-1501.)
Knight, R. (1988). High school journalism in the post-Hazelwood era. Journalism
Educator, 43:2, 42-47.
Lain, L. (1992). A national study of high school newspaper programs:
Environmental and adviser characteristics. A paper presented at the
convention
of the Association for Education in Journalism and Mass
Communication, Montreal,
Canada.
Student Press Law Center (SPLC) (1985). Law of the student press. Washington,
D.C.: SPLC.
Student Press Law Center (SPLC) (1994). Law of the student press (rev. ed.).
Washington, D.C.: SPLC.
Footnotes
1For example, Click and Kopenhaver, 1993; Dickson, 1990; Dickson, 1994; Dvorak,
1992;
Dvorak, Lain and Dickson, 1994; and Lain, 1992.
2Click and Kopenhaver omitted neutral, slightly agree and slightly disagree
responses. Specific percents were not noted for some answers for the
1988 study.
3The two samples were not identical, however. The earlier study had been based
upon a random sample of all schools. The later study was of members
of the
Columbia Scholastic Press Association.
4Click and Kopenhaver omitted neutral, slightly agree and slightly disagree
responses.
5The SPLC "Model Guidelines" are printed on pp. 229-232 of the Student Press
Law
Center's "Law of the Student Press," 1994. The JEA pre-Hazelwood
"Policy on Prior
Review" is listed on pp. 227-228 (though it is called the
post-Hazelwood policy).
The current policy is available from JEA.
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