Student Press Law Center Report
Fall 2007 – Legislation
Vol. XXVIII, No. 3 – Page 27
In Oregon, a new law protects students
© 2007 Student Press Law Center
By Judy Wang
When student journalists in Oregon return from vacation, they will be protected by a press-freedom law passed in July. Oregon joins six other states that have similar laws protecting student publications. The law is intended to guarantee that public high school and college student journalists can exercise free-press rights in school-sponsored media. When Gov. Ted Kulongoski (D) signed it July 13, it became the first state law that protects both high school and college student publications under a single statute and the first set of protections for high school students enacted since 1995.
Legal experts said support from educators and local news outlets might have eased the bill’s passage, but not everyone is satisfied. Some legal scholars say the bill was substantially weakened by amendments in committee. Provisions that would have ensured that college-sponsored publications have open-forum status and protected student media advisers from being fired were excised from the bill before it was sent to the governor. Nonetheless, many First Amendment advocates and students said they are pleased with the new protections and look forward to future progress.
Ironically, the successful Oregon bill was inspired by a bill that failed to pass through another state’s legislature. Rep. Larry Galizio (D-Tigard), who introduced House Bill 3279 in March, modeled it after a similar bill then working its way through the Washington State Legislature. Galizio, who teaches journalism and communications at Portland Community College, said he decided to take action after learning about Washington’s bill.
Galizio said he also was spurred into action upon hearing about movements to negate the impact of a 2005 decision in the 7th U.S. Circuit Court of Appeals, Hosty v. Carter, which gave colleges in that circuit more authority to regulate student publications. The Washington bill would have ensured that students “have the right to exercise freedom of speech and of the press in school-sponsored media” and affirmed that student editors are responsible for content. The bill also would have protected student media advisers from being punished for refusing to suppress student speech.
The Washington Senate Judiciary Committee removed the protections for high school student publications, the section that had prompted the most opposition. But the bill died in April when it was not brought to the Senate floor for a vote. Its sponsor, Rep. Dave Upthegrove (D-Des Moines), attributed the setback to a variety of factors, such as time constraints and a lack of support.
Others blamed the bill’s failure on vocal opponents. Warren Watson, the director of J-Ideas, a First Amendment institute at Ball State University, said critics of the Washington bill included groups such as the Association of Washington School Principals and Washington State School Administrators Association. In addition, The Seattle Times published an editorial criticizing the bill — a move that many have said played a significant role in the bill’s undoing.
Conversely, many local media outlets in Oregon supported that state’s bill. Although some school administration groups opposed it, Watson said, its reception was far warmer than it had been in its neighboring state.
“I think the state of Oregon has a deeper heritage of free expression,” Watson said. “It’s perhaps more conducive for a law like this.”Oregon offers one of the broadest free-speech guarantees in the country. The state constitution states: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Galizio said he was confident the bill would pass the House and Senate. “I knew we would get the bill,” he said. “What the final bill would look like was the real concern.”
An evolving bill
Debate over the bill in the state House of Representatives focused on claims that, although the bill allows students to exert sole responsibility over published content, it could leave colleges and high schools vulnerable to lawsuits. In fact, most courts have said schools that do not censor are not liable for the content of student publications. Galizio said critics of the bill assumed that any law for student expression would encourage high school students to publish outrageous and inflammatory material without guidance.
“Some people hear free expression and they get really nervous,” he said.
The bill passed the House Judiciary Committee on a 6-2 vote, but the representatives removed “advertising” from the list of protected student speech. However, the committee also inserted a clause allowing students who sue their schools under the new law to obtain $100 in damages and “injunctive and declaratory relief.” The bill passed the House on a 39-16 vote.
In the Senate, the Judiciary Committee removed a provision that would have protected high school and college student media advisers from being disciplined for refusing to censor lawful student expression. It also removed arguably one of the most significant protections for college-sponsored media — a clause that recognized these publications as “public forums” for student expression.
Sen. Ginny Burdick (D-Portland), who voted for the bill in committee, maintained that she and her colleagues made these changes to clarify the legislation, not to downgrade its potential impact on students. “Nothing was done to change the substance of the bill,” she said.
Neil Bryant, the lobbyist and attorney for the Oregon University system who proposed the amendments, said the bill would have failed in the Senate if some provisions had not been deleted. The final bill squeezed by the Senate on a 16-14 vote, which some legislators said reflected a clear partisan split in the legislative body.
High school journalism teacher Rob Melton, who testified for the bill in the House and Senate, said the bill was worth passing even in its amended form. The changes “didn’t completely cut out protections for college students, but it weakened them a little bit,” he said.
The final version of the law affirms that “student journalists have a right to exercise freedom of speech and press in school-sponsored media” and allows students and their parents to file suits against the school if this law is violated. But the law also provides limitations on these protections. It states that published material that causes a substantial disruption will not be protected. Nor is material that is libelous, an invasion of privacy, or a violation of school regulations, state or federal law permissible.
Galizio said he plans to reintroduce the deleted portions in new legislation this fall. But this time, he said, he will hold meetings with school administrators and other groups that opposed HB 3279 and try to broker a compromise.
Upon signing the law, Kulongoski said he hoped it will set an example for other states. “This legislation not only affects student journalists in Oregon, but also leads the way for students around the country,” the governor said. “This legislation ensures that all student journalists have rights to freedom of speech.”
A growing trend
Six states — Arkansas, California, Colorado, Iowa, Kansas and Massachusetts — already had laws in place that protect high school student publications from censorship. Pennsylvania and Washington have administrative codes that offer some protections for student journalists. California recently enacted a law that protects college journalists, and Illinois is on the verge of enacting a similar law.
Upthegrove, who introduced the Washington bill that inspired the Oregon law, has said he plans to reintroduce student press-freedom legislation in the upcoming months.”There’s no reason to think that this movement won’t grow,” said Watson, the J-Ideas director.
In Michigan, a recently reintroduced student press rights bill is awaiting a hearing in the Senate Education Committee. Although the bill has been sitting in committee for five months, its sponsor, Sen. Michael Switalski (D-Roseville), said the situation might change when he and the bill’s co-sponsors cite the Oregon law as support. The Michigan bill would prohibit prior review by school officials and give students the final say in the content of student publications.
Watson said other states, including New Jersey and Indiana, are rumored to be considering similar bills, though there have been few visible movements in the state legislatures.
“There does seem to be a growing appreciation for the fact that we cannot prepare citizens for life in a democratic society if we don’t teach them those values in school,” said SPLC Executive Director Mark Goodman. “I think we’re going to see wider support for this kind of legislation in the years to come.”
But skeptics said the enactment of more student press rights bills, however significant, will not stop school administrators from censoring publications as they see fit. Some have raised concerns that such bills can be rendered ineffective if administrators and student media advisers do not acknowledge the protections they offer.
Erica Salkin, a high school student media law researcher while a graduate student at the University of Wisconsin, conducted a survey in four states with similar legislation and found that few advisers were aware of the law and few districts fully complied with it. She said she hopes someone in Oregon takes the initiative to conduct an educational outreach campaign to ensure that schools know what the new statute means and how to use it.
“Ignorance of the law only ends up hurting the students in the end,” she said.
Melton said he is aware of this concern and has taken steps to work with the Oregon Department of Education and the superintendent of public schools to cultivate “that kind of understanding.”
“No one ever said free speech is easy,” he said. “But if you want to pursue democracy, it is essential.”
For more Information:
Understanding student free-expression laws
Student journalists’ right to expression expanded
The Oregon law makes student journalists responsible for determining the content of school-sponsored media, and gives them the right to sue schools if they feel free-press rights have been violated.
It is the country’s first law in more than a decade to protect high school journalists, and the first ever to cover both high school and college journalists under one statute, said Warren Watson, director of J-Ideas, a First Amendment institute at Ball State University in Muncie, Ind.
“This is really a landmark for student journalism,” Watson said.
Six other states — Arkansas, California, Colorado, Iowa, Kansas and Massachusetts — have laws that protect high school journalists from censorship. All were passed before 1996.
State Rep. Larry Galizio, a Democrat, introduced Oregon’s bill. Galizio, who also teaches college journalism, said he read about a similar attempt being made in Washington state and modeled Oregon’s bill on that effort. The Washington bill died in the Senate in April.
Journalism and education associations across Oregon coordinated support for the bill, said Frank Ragulsky, executive director of the Northwest Scholastic Press association and student media director at Oregon State University. “I think it was a grass-roots effort by a lot of the constituents in Oregon that made it happen,” Ragulsky said.
Lauren Dillard, editor of Oregon State University’s Daily Barometer, told lawmakers that students can’t learn how to hold governments accountable if they can’t question their own governing body.
“It’s difficult to serve as that Fourth Estate if you don’t have independence from your organization,” Dillard said.
Dillard graduated from Canby High School in Canby, Ore. In 2005, Canby High’s principal objected to a story about students talking frankly about race.
Instead of changing the story or running a different one, student journalists ran white space with the words “censored by the administration.”
Opponents of the bill, such as the Oregon School Boards Association, said that students aren’t capable of responsibly editing a newspaper. They said even professional journalists are subject to the editorial control of publishers and owners.
Attorney Mike Hiestand, a legal consultant for the Student Press Law Center in Arlington, Va., said the free-speech rights of college journalists had not been seriously challenged until 2005.
That year, the 7th U.S. Circuit Court of Appeals ruled in an Illinois case, Hosty v. Carter, that college administrators could impose prior review and restraint on student papers if the publication is not a designated public forum for student expression.
Hiestand said school administrators have since cited the ruling in instituting tighter control over college and high school student publications.
Free-speech advocates say the Oregon bill’s passage was a victory.
“At a time when so much student expression is being diminished, it is heartening to know that Oregon, consistent with its rich free-speech tradition, is at least doing something to stem the tide of censorship of student expression,” said Ronald Collins, a scholar for the Nashville-based First Amendment Center.
Loew reports for the Statesman Journal in Salem, Ore.
Text of Oregon secondary school law: http://nwscholasticpress.org/2013/06/07/oregon-student-free-expression-law-public-secondary-schools/
Know The Oregon Law: http://nwscholasticpress.org/state-law/
Text of public college and university law: http://nwscholasticpress.org/2013/06/07/oregon-student-free-expression-law-public-college-and-universities/
Oregon case study: http://nwscholasticpress.org/2012/10/25/the-splc-news-story-oregon-high-school-students-ask-school-to-return-confiscated-papers/
NWSP’s advice in a letter to the Bronco Blaze staff: http://nwscholasticpress.org/2012/11/10/nov-10-2012-letter-to-bronco-blaze-staff/
J.D. McIntire testimony: http://nwscholasticpress.org/2012/03/23/sandy-hs-adviser-named-oregon-journalism-teacher-of-the-year-2012-2/
National Coverage stories: http://nwscholasticpress.org/national-coverage/
Oregon coverage stories: http://nwscholasticpress.org/oregon-coverage/
SPLC story: http://www.splc.org/article/2007/04/oregon-committee-debates-merits-of-student-press-freedom-bill?id=1490