For student journalists, the beats are the same but the protections are different

Student journalists, plagued by questions of editorial independence and with varying degrees of First Amendment protections, nonetheless face the same press freedom challenges as their professional counterparts.

The U.S. Press Freedom Tracker, which documents First Amendment aggressions in the United States, has collected student journalism-based incidents at both the university and high school levels. Since its launch in 2017, the Tracker has documented five cases of high school newspapers being censored or placed under prior review for their coverage of controversial topics. At the university level, it has collected two arrests, two physical attacks and three border stop involving student journalists, as well as three cases of subpoenas or legal orders.

Fifty Years of Tinker

In recognition of the expansion of student journalism as a key source of accountability and record for their local communities, two of the Tracker’s partners—the Student Press Law Center and the Newseum—along with the Freedom Forum Institute, declared 2019 the “Year of the Student Journalist.” This year also marks the 50th anniversary of a key Supreme Court decision in favor of student First Amendment rights: Tinker v. Des Moines Independent School District.

While the Vietnam-era case of Tinker centered on students wearing armbands in protest, it has become the bellwether for free speech and journalism at both the high school and university levels. The 7-2 ruling iconically stated that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

While Tinker holds—for now—the state of journalism is rapidly changing. With legacy newsrooms shuttering and the number of working journalists contracting as freelancers increasing, the role of the student journalist has expanded to fill some of the void.

At the University of Missouri, the journalism school’s state government reporting program serves as a wire service for the entire state, with students filing copy, video and audio from the capitol in Jefferson City during legislative sessions.

As Youngstown, Ohio, saw the closing of its city paper of record, student journalists were likewise ready to step in when The Vindicator closed this summer.

“We’re trying to be a voice for not just the university, but also Youngstown,” said Youngstown State University journalism senior Alyssa Weston, who also serves as the executive producer of student-run Jambar TV.

University Journalists — Same Stories, Same Risks

As university reporters take on the same roles and stories as full-time journalists, the Tracker documents cases where these students assume many of the same risks, including legal challenges, subpoenas, arrests, assaults and secondary screenings when crossing the border.

William Coburn, a reporter for California State University’s student paper, The State Hornet, was arrested while covering a protest in Sacramento on March 4, along with full-time reporters from the Sacramento Bee and Capital Radio News. Coburn told the Tracker that he had a professional-grade camera and a lanyard with his school credentials and repeatedly told officers that he was a reporter. Despite these identifiers, he was arrested, zip-tied, loaded into a van and processed alongside the professional reporters and demonstrators. All three journalists were later released. The Tracker has documented at least 9 journalists arrested in the course of reporting this year.

A student at the International Center for Photography in New York, Bing Guan, was stopped along with photojournalist Go Nakamura while driving through the San Ysidro point of entry into California on Dec. 29, 2018. Guan was questioned by two plainclothes Customs and Border Protection officers who showed him page after page of mugshots and surveillance photos, and asked him to show them the photos he had taken while reporting in Mexico. Guan told the Tracker he did so, believing that the images would be too dark to identify anyone present. Guan and Nakamura were among the 10 journalists stopped at the border for secondary screening while covering the migrant caravan as documented by the Tracker.

Another student journalist, Davis Winborne, was hit with pepper spray balls, choked, handcuffed and loaded into a van by St. Louis Police while he was covering a protest in Missouri in September 2017. Winborne wrote in the Columbia Missourian that the group of zip-tied journalists and protesters were held for half an hour in the back of a police van before a freelance photographer convinced police to release them. Since 2017, the Tracker has identified at least 55 journalists assaulted while covering protests.

Beyond field reporting, journalists at the university level have been subjected to legal issues, some of which span their entire university careers and beyond.

Cady Vishniac, who graduated from the University of Massachusetts Boston four years ago, continues to face a defamation suit stemming from a 2013 news article published while she was the news editor for Mass Media, the student paper.

Three university publications in Puerto Rico discovered in September 2019 that Facebook had turned over data and personal information from their pages in compliance with a search warrant issued by the Puerto Rico Department of Justice in 2017. The DOJ was seeking information about students who had disrupted a governing board meeting to protest austerity cuts in April 2017. Neither the DOJ nor Facebook notified the student publications about the warrant. So far in 2019, the Tracker has documented 20 cases of subpoenas and legal orders against journalists.

Will Wright, a student editor at the University of Kentucky, found himself in the strange position of working for a newspaper under legal threat by its own university. In 2016, the Kentucky Kernel received a tip about a professor sexually abusing UK students. Wright told the Tracker that he filed an open records request with the university, expecting it to go smoothly.

Instead, to avoid releasing the requested documents, the university sued its own newspaper. Soon after, two other Kentucky universities—Kentucky State University and Western Kentucky University—would also initiate lawsuits against the Kernel to avoid releasing records to the student newspaper.

While the Tracker doesn’t collect incidents before 2017, so far only one of the lawsuits against the Kernel has been resolved, and no journalist has been forced to testify or turn over source material. Then-Kentucky Attorney General Andy Beshear ruled in November 2018 that KSU had violated the state’s Open Records Act, and ordered it to release the requested documents to the Kernel. Tom Miller, the attorney who has been representing the student newspaper since 2016, told the Tracker that the university complied.

Miller said that while they are still awaiting a ruling on their motion for summary judgement in the WKU case, the UK case has been appealed multiple times and is now up for possible discretionary review by the state Supreme Court. If the court declines to review the case, the Kentucky Court of Appeals ruling in favor of the Kernel will stand, and the university will be compelled to release the records.

Wright, who graduated in 2016, told the Tracker that he valued the experience for what it taught him and the reporter it helped him become.

“I think the lawsuit against the Kernel is a prime example of that, that student journalists, if they’re asking the right questions and writing the right things the people they’re writing about will notice and they can have a big impact,” Wright said. He is now a Report for America fellow at the Lexington-Herald Leader.

Under Review at the High School Level

At the high school level, cases documented in the Tracker show that journalists and advisers have come under the most fire when working to expand news coverage to include broader community issues and potentially controversial topics. As part of the public school system, they face direct censorship and discipline that sometimes leaves them without a means of publishing at all. More than half of the cases documented by the Tracker, collected in the “Other Incidents” category, have centered around issues of prior review.

The Har-Ber Herald in Springdale, Arkansas, published a 2018 investigation into the transfer of football players between high schools, a violation of district rules. The school district requested that the article be pulled from the website and the principal suspended the paper, threatening to fire their adviser if they continued publishing.

This year, administrators with the Lodi Unified School District in California intervened when they learned that a May edition of The Bruin Voice was set to include a profile of an 18-year-old peer at Bear Creek High School active in the porn industry. The school board demanded that the student newspaper’s adviser, Kathi Duffel, submit the article for prior review under threat of dismissal. After review from Duffel’s personal attorney, the district ceased in its attempts to prevent the article’s publication. Duffel told The Washington Post that in her decades as a student newspaper adviser, “I have never buckled and provided the administration with a copy of a story in advance.”

Faculty advisers often act as a bulwark defending students’ rights against administrative control. Katie Moreno, the journalism adviser at a high school in Katy, Texas, resigned in May following months of conflict with the school administration around how LGBTQ content and images could be used by the student journalists. When her teaching contract was called into question during a meeting in April she opted to resign; a new policy mandating prior review for future issues of the yearbook went into effect this fall.

Efforts to Improve Legal Protections

At 50 years old, the legacy of Tinker survives, though a series of decisions in the 1980s undermined its original broad protections.

Hazelwood School District v. Kuhlmeier allowed high school administrators to censure speech so long as restrictions were “reasonably related to legitimate pedagogical concerns.” Similarly, Bethel School District No. 403 v. Fraser declared that high school publications were not necessarily public forums protected under the First Amendment.

More favorable decisions were reached in Kincaid v. Gibson in 2001 and Dean v. Utica in 2004. Kincaid set the groundwork for student publications to be considered “limited public forums,” and the opinion in Dean stated that while the “freedoms of student journalists are by no means un-fettered by legitimate concerns for school administration and education,” student journalists should be afforded the same First Amendment protections as their professional counterparts.

As recently as 2007, however, the senior-most associate justice of the Supreme Court stated he would “dispense with Tinker altogether, [if] given the opportunity.”

Justice Clarence Thomas wrote, “In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”

To prevent further erosion of student journalists’ rights at the federal level, Mike Hiestand, senior legal counsel at the Student Press Law Center, told the Tracker that efforts have refocused on passing state legislation.

“In many ways, Tinker was the high water mark,” Hiestand said. “We’re focusing now on the state level to establish laws that will protect student journalists if there are any further rollbacks on the federal level.”

SPLC is working with student journalists across the country to advocate for legislation to protect reporters and advisers in high schools and colleges. Such laws, dubbed New Voices legislation, take their name from the John Wall New Voices Act of North Dakota, which passed unanimously with bipartisan support and became law in 2015.

The laws are tailored to fill whatever holes exist in each state’s legislation governing student publications and First Amendment rights. New Voices legislation has been enacted in 14 states, and 11 state bills were introduced in 2019 alone.

With clear legal protections lacking or pending, however, Hiestand says the surest way to protect student journalists’ rights is to treat them as independent journalists.

“If you have a policy or practice where student journalists are given the authority to make their own editorial decisions, they are able to claim more rights under existing law,” Hiestand said.