&

student press law center

Shield Laws Leave Students Unprotected

-rhe SPLC First Amendment Award for Outstanding Coverage of Free Speech and Free Press Issues

THE WINNERS The two recipients of SPLC's First Amendment

Award for Outstanding Coverage of Free Speech and Free Press Issues are Scott Fletcher and Judith Galas. Both have been offered 51.500 sCholarships to intern with the Student Press Law Center.

Scott Fletcher is a senior at Benton High School in Benton, Ark. He IS editor of Benton High's Panther Tales and chief pholographer for the school yearbook.

Fletcher's prize-w inning story, "Censorship Spreads: Could it Start Here?" originally ran in Panther Tales on Feb. 27. 1981. It won a "superior" rating, the highest available in the Arkansas High School Press Association newspaper contest.

Fletcher IS undecided about his career plans, but expressed strong interests in journalism and the social sciences.

Judith Galas recently finished a term as editor of the UniverSity Daily Kansan. A graduate student at the University 01 Kansas' William Allen White School of Journalism. Galas is currently working on a masters thesis on the image of women in magazine fiction dUring the 1970s.

In addition to editing the UnIversity Daily Kansan,

1(1 which her article "Prior Restraint Trend Threatens Press" appeared on Feb. 20. 1981, Galas writes book reviews for The Kansas City Star on women's and children's books. ThiS fall she will teach a course in women's studies at the University of Kansas in Lawrence.

SPlC w ou la like to thank the follOWing organizations that sponsored the contest:

American ASSOCiation o( Schools and Departments of Journalism

Amencan Federation of Teachers American Library Assoclarion American Newspaper Publishers ASSOCIation

Foundation Amencan Society of Newspaper Editors ASSOCiated Colleg iate Press Associated Press Ma nag ing Editors Association for Educa�lOn I n Journalism Columbia Scholastic Press Assoclallon COlumbia ScholastiC Press AdVise rs ASSOCiation Community Col fege Journalism Assoclalion National Council of College Publications AdVisers Natlonat Council of Teacners 01 Englisn

2 FALL 1981 SPLC REPOAT

v Scott Fletcher

Benton High School Benton, Arkansas

"Censorship Spreads: Could It Start Here?"

Judith Galas University of Kansas Lawrence, Kansas

"Prior Restraint Trend /' Threatening Press"

SPLC would also like to congratulate honorable menti.on winner John Keller of Hillsborough, Calif. In addition we would like to recognize the six other finalists: Scott Davis of Macon. Ga., Debbie Hardin of San Diego, Scott Liben of Richmond, Va .. Tracy Lieu of Los Angeles. Nicholas Renton of Thousand Oaks, Calif., and Paul Starkey of Sacramento. Calif.

National Education ASSOCiation Nalionai Scholastic Press ASSOCiation National Street Law Institute The Newspaper Guild QUill and Scroll Reporters Comm Ittee for Freedom of the Press Society 01 Professional Journalists, Sigma Oelta Chi Speech Communication Associat ion Women In Commurllcations, Inc. Youth CommunicatIon

The SPLC First Amendment Contest was made possible by grants (rom the Scripps-Howard Foundation, the Harte­Hanks Media Development Foundation. and the Playboy Foundation.

SpeCIal thanks are extended to judges James J. Kilpatrick, Na t Hentoff, Scott Armstrong, and Phyf Garland.

student press law center t r�Q9r

F E A T U R E s Prior Relriew and the courts: Several courts have addressed me legality of prior review standards. but none has painted a clear picture of the requirements tor a valid set of gUldelines __________________________ 4 Prior Review Comes to RHAM High Scl1ool: A recently enacted policy at the high school in Hebron. Conn .. snares an article IMmen in an alternative publication by student John Lynch. _________________________ 6 Close Encounter: New Jersey's shield law offered no protection tor Millville High School adviser Jack Lee. who almost landed in jarJ wilen he refused to reveal the identity of a student inteNiewer. This issue's Story Behind the Story _____________________________ 12 Shield Laws leave Students Unguarded: The Millville controversy illustrates the faCT that shield laws in many states do not allow student journalists to maintain the confidentlality of their sources. _____________________ 15 A look at Two Imtestigations: In Atlantic City, a high school student went undercover to dramatize the ease ...vith which minors can gamble. lMlile two reporters at the University of Georgia risked disciplinary action to shed light on the flaws of a university procedure. ____________________ 17 Speaking Freely: Three recent court cases have overturned school regulations that previously prohibited outSide organizations fcorn distributing literature on school campuses. __________________________ 24 Princeton Access Case Puts Two Constitutions at Odds: Princeton University v. Schmid heads toward the U.S. Supreme Coun. and a Princeton student examines the legal issues at stake. _______________________ 25

o E p A R T M E N T s Repon Card ................. ......... - - . . . . . ............................................................ 8

Advertisements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10

Courts . .. . . . . . . . . .. . . . .. . . . . . . . . . . _ . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . " 20 Libel . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,................................... ........ 28

Advisers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 U pdate . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ]0

Book Banning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .... . . . . . . .. . . . . . . . . . . . . 34

Staff:

Editor: Jeff TruesdeU

Assistant Editor: Betsy Kolbert Graphics Designer: Lauren Asplen

Contnbuting Writers: Bill Adair. Carol Anne Been. Blake Brewer. David Danner.

Beth Dickey. Rob Eggert, Barton Gellman. Kelly Griffin. Ellen Hosmer. Peg lohus.

Darren S. Trigonoplos

Contributing Artists: John Darkow, Fran DelGuercio. Bob Staake

Contributing Photo!lraphers: lOrl Adams. Jenny Ladd. John Kleiner. Rick Tavlor .

The Student Press Uw Cen(e( 917 G Placp._ N W WaShingTon. 0 C 20001 120213.:77154

l "'� S(uoerw Press Law Ct!ntef [SPl.Cl,s a ,ar.onal ('lO('lOfottr organllartClt'l provtdmg �egal asslsrance and ,ntormauon '0 student �(nah.st:s and facull\' �rs e-.pet'lencing I

::'enSOt'SM10..::w- O!rl�( legal problems i SPI_C .:lubljSh�S I� Re£)()rt tnree limes vear"v ,1 IS ,esearched ""nnen d()(] PtOOUl:ed bV ,IOu,nahsm and law 'ituc:lefltS. r �y also l'Ianol.e reQueStS for ,r\tOl"m�HIOn "::0 pa/aleg..11 'IN()(" dt"d panM:loale In me C�n(et" S 'IJOOr3Is'ng .!Cllrvwles $opef1(JS are .!'Val'able. and ¥.adem-c credrt may be atr'!nged

Yeaov sutJscrtQ(lons 10 �he "'a9.l1In� are $5 f()( stUO@ntS S 10 tor t'\on SluQeo{S 'iCt"IOOIs and I/tvan".!S AJI o{�r c()('\(flburtOnS afe ra..- deaUOlbie

SPLC REPORT FALL 1961 3

Does prior review violate the First Amendment rig h ts of high school students? Since lawyers, and even judges, disagree, it is

understandable that student

journalists and advisers are confused.

PBIOR REVIEW AID THE COURTS By Betsy Kolbert

Prior restraint has long been considered one of the most nefarious weapons a government can use to stifle freedom of the press. Yet in countless high schools across the country, young journalists are reqUired to submit copy for reView before it is published. The constitutionality of this process remains shrouded in mystery. Although the courts have generally malntainec that pnor review at the high school level IS legal, none has yet approved a specific set of guidelines.

Under a system at prior review. students are reqUired to submit copy to school officials before publication. Teachers anC acminls:rators can then hold up or prevent publication of any material which IS libelous, obscene or Ii kely to cause substantial disruption, Four U.S. circuit courts have ruled on wherher prior review ot school publications is an unlawful abridgement ot students' nghts. Only one. the 7th CirCUIt. has said prior review is not permissible. The 2nd. 4th and 5th Circuits have ruled that prior review of student publications is constitutional. but have required pnor review systems to contain certain safeguards.

Until 1969 and the landmark Tinker v. Des Moines Independent Community School DIstrict dec ision. it was assumed that schools acted in place of parents and were thus empowered to control the actions and even the speech of students' In Tinker, the Supreme Court extended First Amendment protection to

4 FALL 1981 SPLC REPORT

students, stating: "First Amendment (lghts. applied in light ot the special characteristics of the school envi ronment, are available to teachers and students. It can hardly be argued that either st�dents or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse 9ate,"2 Subsequent lower court decISions. however, have declined to interpret Tinker as forbidding prior review.

Only the 7th Circuit, with jurisdiction over Illinois, Indiana and WisconSin, has held Tinker to mean that prior review requirements in schools are per se unconstitutional. In Fujishima v. Board of Education. the 7th Circuit said Tinker implicitly allows only post­publication reprimands for substantially disruptive expression, rather than pre-publication (estrainP However. a later 7th Circuit decision in Jacobs v.

Board of School CommisSioners raises questions about the court's commitment to the principles outlined In FUllshima' In Jacobs, the court struck down a set ot pnor review gUidelines on the basis of vagueness and overbreadth. If the court had used Fuiishlma as a precedent, It would have thrown out the prior review standards as fundamentally and incorrtglbly unconstitutional.

De c:slOns by the 2nd. 4th and 5th Circuits have upheld the concept of prtor review in general. but have ruled invalid every particular set of guidelines that has been challenged. These decisions are binding in Alabama, Connecticut. Florida. Georgia, LouIsiana, Maryland. MISSissippI. North Carolina. Texas, Vermont, Virginia and West Virginia. To date. no actual set of gUidelines has been declared val id , a

fact t h a t h a s led many co m m e n tators to speculate t h at t h e co urts h a ve set s t a n d a rds which t h ey h ave rende red esen t i a lly i m poss i b l e tQ meet. Neve r t h e l ess, a val i d set of p r i o r rev iew g u i de l i n es con t i n ues to exist i n t h e o ry. S t ude n ts and adv i s e rs s h o u ld be a w a re of the req u i re m e n t s that m ust be met by any leg i t i mate set of p r i o r review standa rds .

Pr i o r review g u ide l i nes m ay p ro h i b i t o n l y m a ter ia l that i s l i b e l o us, o b scene o r l i k e l y to ca use s u b s t a n t i a l d i s ru p t i o n i n t h e educat i o n a l p rocess. Defi n i t i o n s o f " l i be l ," "obscen i ty" a n d "s u b stan t i a l l y d i s r u ptive speec h" m u st b e p rovided in t e r m s unde rstanda b l e to a st udent o f o rd i n ary i n tel l i g e nce . They must be speci f i c en o u g h so that off ici a l s can n o t "under the g u ise of vag u e l a b e l s ch o k e off cr i t ic ism e i t h e r of t h e m s e l ves, or of sch o o l p o l i c i e s , which they f i nd d i s res pectfu l , taste less o r offe n s i ve."5

Fo r e x a m p l e , co urts have s t r uc k down sch o o l ru les t h a t s i m p l y p r o h i bited "l i b e l o u s" and "o b scene" m ate r i a l s on t h e g ro u nds t h a t t hese terms are "not s u ff ic i e n t l y p reci se ."6 S i nce a S u preme C o u r t j u s t ice has con fessed t h a t obsce n i ty m a y be undef i n a b l e , the co urts h ave set sta nda rds for p r i o r review g uide l i nes that a r e n o t eas i l y m e t .

N o t o n l y m u st p r i o r rev i e w g u ide l i n es offer a defi n i t i o n of m a te r i a l l y d i s r u p t ive speech, b u t they a l s o m u s t "de t a i l t h e c r i t e r i a b y w h i c h an adm i n i s t r a t o r m ig h t r e a s o n a b l y p redict the occu r rence o f such disru p t i o n . "? Th i s req u i r e ment e n s u r e s t h a t a d m i n i s t r a t o r s ca n n o t s u p r e s s p u bl i ca t i o n s w i t h o u t offe r i n g reaso n a b l y certa i n p roof t h a t t h e i r di st r i b u t i o n wou ld b r i n g a b o u t the feared d i s o rder.

T h e c o u r t s h a v e o v e r t u r n ed s e ve r a l r u l e s p roh i b i t i n g d i s ru pt ive speech b ecause t h e r u l es were vague. I n Peterson v. Board of Education, a school

reg u l a t i o n p r o h i b i t i n g l i t e rature that " i n c i tes stude n t s to d i s r upt t h e o rde r l y o p e ra t i on of t h e s c h o o l " was ter m ed ove rb road.e For the same reason , the court in Jacobs str uck down a school rule w hich said, " N o st ude n t s h a l l di st r i b u te i n any school any l i te ra t u re that i s . . . e i t h e r by i t s content or by t h e m a n n e r o f d i s t r i b u t i on i tsel f p roduc t i ve of o r l i k e l y to p roduce a s i g n i f i ca n t d i s r u p t i o n of the normal educat i on a l p rocesses, f u n ct i o n s, o r pu rposes . . . o r i nj u ry t o o t h e rs. "

I n add i t i o n to o ffe ri ng specif ic defi n i t i ons o f p ro h i b i ted m a t e r i a ls, va l id p r ior rev iew g u ide l i nes m u st o u t l i ne the exact p rocedure t h ro u g h w h ich the rev iew w i l l b e conducted. T h ey must speci fy to w h o m t h e p u b l i ca t i o n i s to b e s u b m itted for a p p rova l a n d esta b l i s h t i m e l i m i ts w i th i n which sch o o l off icia l s m u st m ake cen s o rs h i p decis ions9 Recog n i z i ng t h a t de lay m a y m a k e a story m e a n i n g less, t h e co u rts have de m a n ded that p r i o r re v i ew g u i delines p rov ide a con t i n g ency p l an to be used in the even t t h a t off i c i a l s fa i l to act w i th i n t h e des ig nated t i m e per i od. '0 A rev iew p rocedu re t h a t l asts "several wee k s " does n ot meet const i t u t i o n a l standards ."

The co urts h ave also i ns i sted that stude n t s be g i ve n a n o p p o r t u n i t y t o r e s p o n d t o a d m i n i s t r a t i v e ce n s o rsh i p. P r i o r rev i ew syste ms m u st offe r stude n t s t h e r i g h t to a p pear before t h e deci s i o n-maker t o p re s e n t a r g u ments in favor o f d i st r i b u t i o n a n d m u st a l s o p rov ide a mech a n i s m for appea l from t h e i n i t i al dec i s i on-m a k e r.'2

O n l y two cou rt dec i s i ons have addressed t h e i ss u e of p r i o r rev i e w of co l l ege p u b l ica t i o n s . I n b o t h Antonelli v. Hamm ond a n d Trujillo v. Love, t h e co urts ove r r u l ed the p r i o r rev i ew systems i n q u est io n . 'J

continued on next page

College Advisers Lean Toward Prior Review A substant i a l percen t a g e of co l lege j o u r n a l ism

advi sers bel ieve they s h o u l d review copy pr ior to i ts p u b l icat ion, according to t h e res u l ts of a 1980 survey conducted a mong the N a t i o n a l Council of Col lege Publ icat ions Advisers.

M o re than 45 percent of t h e NCCPA's 400 active mem bers i ndicated i n an o p i n ion profile that they thi n k an adviser s h o u ld a l ways or usu a l l y review copy. When these same i ndiv iduals were asked if they themselves reviewed co py or advert is ing p r i o r to publ icat i o n , 50.2 perce n t i n d icated they al ways or usu a l l y read the mate r i a l . Only 12.8 pe rcent res ponded they would n o t s u bject the mater ia l to pri o r rev iew.

" I t is obvious from these stat ist ics that the nat ion's s t u de n t p u b l i ca t i o n s a r e e x p e r i e n ci n g p r i o r restrai n t ," said L i l l ia n Lodge Kopenhaver, a past pres ident of N C C PA w h o adm i n istered the survey. Kopen h aver said th at, s ince 1967 and the landmark Dickey v. Alabama State Board of Education decis i on, the courts have esta b l i shed that co llege and u n i versity studen t p u b l icat ions "have the r i g h t to pri n t w i t h o u t fear of censorsh i p or threat of pr ior restra i n t . I t i s therefore the respon s i b i l i ty of the adviser to student pu bl ica t i ons to ensure the v igorous and free exercise of that r ig h t."

The N CC PA su rvey a l s o f o u nd that m o re than 31

percent of t h e advisers pol led fe l t they shou ld review copy if asked to do so by the co l l ege preS iden t or another adm i n istrat ive officer, whi le a l m ost 14 percent indicated that a school president had the power to f i re a p u b l ica t ion's editor.

When asked if advisers s h o u ld correct m isspel l in g s o r factual inaccu racies pr ior t o publ icat ion, 62 percent res ponded t h a t advisers shou ld al ways o r usua l ly make the changes in copy. Yet the res u l ts of the su rvey revealed that 62.1 percent of all advisers did not con sider chan g es in copy by the adviser to be ce nsors h i p .

"Th e att it ude i l l ustra ted i n these statist ics i s close l y a l igned t o censo rs h i p," Kopen haver said. " I f adviso rs work c losely with thei r staffs so that they . . . see copy w h i l e wo r k i n g with the students, they must resist the obvious urg e , because of their greater expe rience, to make correct ions, to rewr ite or change copy. They must i n stead clearly s u g g est to editors that accuracy needs to be ensu red, or facts checked further, but they themselves, as advisers, must rea l ize t h e close ness o f pr ior review t o pr ior restraint and censorsh i p ," she said.

"Student p u b l icat i ons a re precisely that, student p u b l icat ions. Dete r m i n a t i o n of the pol icies, content , o r g a n i z a t i o n and o p e r a t i on o f a n y st ude n t p u b l icat ion should be u n de r fu l l student contro l . "

SPLC REPORT FALL 1981 5

�.Aany lawyers believe prior review at the college level 'NIII never be held constitutional since most college student s are not minors.

The Supreme Court has not yet ruled on pnor re'/ieW 01 high SChool and college publicatIOns It has. nowever, stated many limes that any prior review system comes to the court with a heavy presumption against it s constitutional validity. Until the high court coes address the Issue directly, rulings made by the '/arIOUS CirCUit courts will stand, and high School s:udent s will have to rely upon the numerous ceClsions that have already been made In order to �etermlne what an acceptable set of gUidelines s,10uld contain.

By Jeff Truesdell

PRIOR REVIEW

lootnote5 '-r,nKer oJ Des Momes Independen( C�r-:mun,(y Sc�coi D,s,net. 393 US 503 (1969)

'10 at 506 'Ful'sn,ma" Boara 01 Education. �60 F 2d 1355 li:n elf 1972) 'Jacoos 'J Boara 01 School CommlSS C7"ers. 490 c: <:0::: 50 I (11h elf 1973)

'Baugnman " Frelenmuth. 478 F 20 "J�5 (4th e,r �9i3) "e at 1350 'NIIZberl,; 'J P:lfl<.s 525 F 2d 378. 383 .:.:., e,r ;9;::,

'P'!terson J Board ()f E�ucal,on. JJO c 2d 303 t2nc :;,r 1972) 'Baugnman

'"10 "L",oner v Sharoat.;gh. 429 FSupp i.:.: 'ED Va '377) "Ndzberg " An[one'I" J Hammond. 308 F Suop 132; ·5 D Mass 1970) ana

TfujllIO J Love. 322 F SUDP 12661D :.:>10 191'\

And John Lynch's' F ree­dam of Choice' gets

caught in the web.

COMES TO RHAM HIGH SCHOOL Over the past two years, John Lynch formed strong

o::>lnions on marijuana laws through reading newspaper and magazine articles and li stening to discussions among his elders. When he finally sat down last winter to put hiS views on paper, Lynch , then a sophomore at RHAM H igh School, knew exactly what he wanted to say.

"The law prohibiting the use of marijuana in this country IS just one of the innumerable governmental Inir lngements on the private affairs of its citizens," he wrote. "Perhaps it can be argued that the government is .iustlfied In protecting one Citizen from another, but if government starts trying to protect the citizen from him­seif. It obviously has gone too far."

Lynch had developed an outlet for his views earlier in :he school year when he began pub li shing the SCREAM. a "revolutionary anarchist newspaper" that was an alternative to the offic ial paper at the school In Hebron, Conn. He titled hiS article on marijuana laws "Freedom of Choice," and included it in the fifth Issue 01 nlS paper last February .

Each of the four previous Issues of the SCREAM that aopeared d Uring the school year had been distributed with no problems. Between the time Lynch published the lourth and fifth issues of hiS paper. however, school administrators adopted a set 01 guidelines to regulate �he distribution of alternative newspapers at the school.

Under the guidel ines . material lirst needed the appro­'1al 01 the building principal, who determined whether it would disrupt the educational process or Interiere with scnool operations and the rights 01 other students. If the prinCipal deemed that no steps could be taken to avoid any disruptions or interferences. the gUidelines autho-

6 FALL' 981 SPLC REPORT

nzed him :0 prohibit di stribution of the objectionable material.

Lynch disagreed with the guidelines. but submitted the fifth issue of the SCAEAM for approval ":0 avoid the penalties they mlgnt have in mind," He sai d he didn't expect any p r o b lems. Ne v e r t hele ss, a school oHlcial censored the entire isue With one brief explanation. Wrote acting prin­cipal James McKenna, " I think it will disrupt the educational

process because it advoc ates :he use of marijuana, which IS illegal, and it also advocates anar Chy."

Lynch's SCREAM was not the first alternarive publi­cation at RHAM to run into problems with the adminiS­tration . Another effort. titled Perspectives and co-edited by Colleen Keenan and Jacqueline Murphy, first appeared at the school in early Feoruary. Although their first Issue was distributed without problems, both Kee­nan and Murphy said they felt acministrators tried to discourage them from putting out their paper and ignored their requests for information regarding alterna­tive newspapers at the school. The pnor reView process that school officials adopted was :he eventual result of the two students' prOdding.

Oavld CattanaCh. super rntenc ent 01 the regional Hebron. Andover and Marlborougn school district, said the issue of alternative papers in the district sc,'..,ools had never come up before. Once It arose. however. the admin i stration adopted a hard-line stance. The guide-

l i n es that went into effect in Feb ruary aut h o ri zed the bui ld ing p r inc ipa l to review a l l material that was to be c i rculated in qua n ti t ies of 10 o r more. For the benefit of dissat i s f i ed i ndividuals, a n a p peal process that b rough t the matt e r before the supe r i ntendent was also included. The supe r i n te n de n t h ad t h e f i n a l word under t h e guide l i n es .

After McKe nn a's decision, Lynch fol lowed t h e p roce­dure ex pla i ned i n the guide l i nes and f i l ed a written ap peal w i th Cattanach. who sided with the act i n g p rinci­pa l . In a memo to Lynch, Cattanach said h e feared the f i fth issue of the SCREAM m i g h t negatively affect pub l i c percept ion of the school system, sett ing i n mot ion "a chai n of act ions wh ich inev i t a b l y lead to a lesse n i ng of support fo r pub l ic school educati on, and an i nterfer­ence w i t h sch oo l o perat i o n s and t h e educ a t io n al process."

At Catta nach's i nv i tat ion, Lynch further appealed to the school board, wh ich ove rturned the supe r i n tend­ent's decis ion to ban the ent i re issue but up held censor­sh i p of the "Freedom of C h o ice" a rt ic le .

With no further recourse following the boa rd's act ion, Lynch rel i nquis h ed his figh t to distr ibute t h e a rticle at RHAM and rea rranged t h e rem ai n i ng articles in t h e fifth issue of the paper so the SCREAM could be d istributed. "Freedom of C h o ice" even tua l l y was publ ished in two other pub l icat i ons, i nclud i n g a l ocal news paper. Both took i t upon themselves to p r i n t the a rt icle. The l ocal paper was ava i l a b l e in the sch oo l l i b rary, but Ly nch said he was warned that i f large quant i t ies of h is a rticle appeared at RHAM, he faced suspensi on.

A g roup of students that i nc luded the edito rs of Pers­pectives rall ied beh i nd Lynch i n the wake of t h e school board's act ion and plan ned a demonstrat ion supporting free speech and express ion a t the school. Out of cour­tesy, g rou p mem bers said, they approached P r i nc i pal Diana Vecch ione with the i r p l a ns . Vecchi o n e th rea­tened them w i t h suspension. After an attorney with the Connecticut Civ i l Li berties U n ion f i led an appeal o n the students' behalf , Vecc h i o ne ag reed to the dem o nstra­tion. The a p peal took al most a month. F ina l l y, near the

'We do want a creative atmosphere where students can express what they want.'

-School board member Richard Harrison

end of Apr i l , the student de m o nstrators sile n t l y stood outside the school before c l ass and dur i ng lunch , wear­i ng banners e m b l azoned wi t h the word "censo red" a nd handi ng out leaflets expl a i n i n g t h e i r display.

"The goal of pub l ic educat i o n is to p roduce people who th ink i n tel l i ge n tly and act responsi bly," the l eaflets read. "How can t h i s goal be ful f i lled when everything we write must go th roug h the off i ce before it can be distri b­uted: when our ' ro le m odel s' censor an articl e because i t deals with a controversial subject?"

"Our i ntent ion is to be as l i bera l as we can be," Super­i n tende nt Cattanach said. " I t 's not the o l d business where if th ey're c r i t ical of the school, we're g o i ng to ban i t. There's been a lot of that and we've never tried to stop it But if somebody prese nts you with an article on drugs, i t jus t does n ' t m a k e s e n s e to h a v e t h a t distri buted."

The super intendent is uncomfortable with the idea of p r i o r rev iew, but sa id h e fee l s it 's the best way to avoid p roble ms. " I don't understand that 'post-rev iew' means anythi n g," he said. St il l, w i t h pr ior review co mes a diffi­cul t task for Cattanach: as superintendent, he must str i k e a balance between his responsib il ity to the co m­munity and fairness t o the students in dec idi n g what is perm iss i b l e. "Obv iously, the problem i s w h e re do you put that point on the l i ne? And damn it, that 's tough ."

"The bes t t h i n g as I see it would be if the sch ool board says 'anyt h i ng goes . ' I do n ' t t h i n k it's the r i g h t decis ion, but i t m a kes my job eas i er," he sa id.

Add i t i onal problems w i t h the alternative student press at R HAM arose short ly after the confl ict over Lynch's

'They teach us free press in the classroom, but that's garbage.'

-Student John Lynch

articl e . B o t h Perspectives and the S C R EAM were printed by the students using school faci l i t ies. At a faculty meet i n g in late March, Cattanach said no alter­nat ive pa pers would be p r i n ted on school equ i pment unt i l the school boa rd deve l o ped a formal p o l icy regu­lat ing such publ icat ions.

Catta nach'S act ion put Lynch out of bus i n ess for t h e remai nde r of the school yea r. Perspectives conti nued pub l i s h i ng, but the paper's print ing costs m o re than doub l ed, even thoug h its editors cut thei r output from 500 to 300 copies. The students successfu l l y l o bb ied to change Catta nach 's sta nd, but not before the p r i nt i n g fac i l i t ies were shut down f o r t h e school year. The Pers­pectives edi tors were fo rced to p r i n t t h e i r two f ina l issues p rofess ional ly, largely at the i r own ex pense with the he l p of m i nor advert i s i n g revenue.

A formal school board po l icy regul a t i n g a l l student pub l icat i o ns at the sch o o l has been drafted over the sum me r a nd should be i n p l ace this fal l , Catta nach said. Rich a rd H arr ison, cha i r m a n of the board co m m ittee that formed t h e policy, sa id the guidelines were devel o ped pr i m a r i l y to p rotect the students. ''We' re not trying to p romote censorsh i p i n i t se l f . We just want to draw up cert a i n guidel i nes to g o by," he said. "Th e idea was to m i n i m ize t he repercuss i o ns but g ive students the free­do m to do what they wa nt within the guide l i nes," which proh i b i t such th i n gs as l i be l ous and defamatory state­ments. M ater ia ls must st i l l be submitted to the pr inc i pa l fo r a p pr oval under the p ro posed plan , h e said.

"We do want a creat i ve atmosphere where studen ts can exp ress what they wa nt . We don 't wa n t to put a dam per on that sort of enthusiasm" that g ave r ise to Perspectives and the SCR EAM, Harrison said.

N evertheless, Lynch and the Perspectives edi tors have n o t warmed up to t h e idea of adm i n i strat ive review. Lynch said he w i l l not p r i n t the SCREAM t h i s fall , but he has plans to subm i t h is "Freedom of C h o ice" a rt icle to t h e Perspectives staff for publ ication, eve n though the p i ece was shot down once.

"I t h i n k t hey're just tryin g to keep t i g h te r tabs on what the stude nts a re cr i tic i z i n g ," Lynch said of the sch o ol off icials who devised t h e pr ior review regulat ion s. "I do n ' t t h i n k i t's conducive to a country with a sup posedly free p ress. They teach us f ree press i n the classroom , but that's garbage."

SPLC REPORT FALL 1981 7

The blue and whIte of Tamaqua High Schooi (Tamaqua. Pa.) ranks among the very best high school newspapers in the country, The paper is Irreverent, well-wntten. and covers substantive issues of impor­tance not only to students, but also to the general publiC, The Apnl 15 Issue. for example, had a story On the con­struction at a nearby nuctear plant, several stan es on the school's diSCiplinary code, an article on whether creationism should be taught in schools, and an interesting feature On the decflnmg reading and writing skills at young people. The lead editorial was entitled "Americans: Slaves of Violence?" and read in part "The 'Iand of the free, home of the brave' is rapidly becoming the land ot the enslaved. home of the fnghtened. Atlanta's unsolved child murders and the recent assassination attempt on the lite ot President Reagan pOint to a very serious problem In America," The editorial argued, "America is not sick, Instead. America must begin to deal realistically with its sick-those mental and criminal cases which do not belong free in society."

The cover story in the June 11 issue of the blue and white dealt with high school st udents who are parents, The lead read: "Many students teel they have it rough with all the homework they must do after getting home from school. They don't realize several students at Tamaqua have more to worry about than just schoolwork. They have a child to care for." What followed was a sensitive article on high school parents and the effect their Children have on their lives, The blue and white IS indeed an excellent paper, It deserves every award It receives.

A

The lead story in the May 2 issue of the Saxon Scope. the student news­paper at Langley High School in McLean. Va.. listed all langley students who had won awards at a recent academic achievement cere­mony, Readers who managed to finish this article stili awake could proceed to the bottom of the page, where the spring exam schedule was listed, For those who somehow did not fall asleep reading the tront page. the rest of the paper proved to be somewhat more interesting. On the

8 FALL 1981 SPLC REPORT

editorial page the paper strongly defended a "human life" program In which stucents could ask questions on subleCts such as abortion. Incest, rape and homosexuality There was a letter to [he eCllor signed by five students who complained about a recent viSit to Langley by the school superintendent The letter accused the supe{Jnter.dent of dodgIng questions and "talkmg down, not only to the students, but to the adults present as well" A paper needs improvement when Its most Interest­ing piece IS a lener to the editor

c

Improved, the T-Bolt deserves credit for attempting to be a substantial, senouS newspaper. A higher grade might have been awarded had not the T-Bolt devoted an unconscionable amount of space to senior wills.

8-

"Newspaper sta If excels," ThiS was the lead story in the June 2 Issue ot Ihe canary, the student newspaper at Wilham Allen High School In Allentown. Pa. The story descrtbed variOus awards won by

report ·------:1 card

" By Rob Eggert �AI

I

L-__ __ ____ --' ;lnOIO by Lon A<J�m$

The issue dommating the May 15 edition of T-Bolt. East High School's student newsp aper (Ch eyenne, Wyo,) was "Senior Ditch Day" Evidently students at East have a long history of simply taking a day off from school during the spring term at their senior year ThIS tradition has not pleased East administrators, who have threatened to punish students partiCipating In Ditch Day. As might be expected, the administration's opposition to Ditch Day was severely criticized in a T-80/1 editorial. The paper also contamed news briefs on recent U S, Supreme Court rulings affecting young people. a creallve writing page, a lengthy feature on student council candidates, and an opinion pIece oj.:posing a reduced minimum wage f or t eenage rs. Although the writing could be

members at the newspaper staH. There was a two-page photo feature entitled "Senior M ania!" which included a picture of the canary's editor sitting In a garbage can. Cynics mIght suggest that that is where the canary belongs. The paper was partially redeemed, however. by a story on student discipline entitled "Punishment: Does it work?" The story detailed the different methods of punishments-detention, suspen­SIon, expulsion-used by administra­tors and blamed a destructive minonty of students tor causing the imp o sition of harsh rules and surveIllance, ThiS story was the one highlight of an otherwise listless Issue,

c

Parents File Suit to Block Abortion Story By Peg Loftus

The newspaper adviser. the principal and the school board did not object when the staff of the Neapolitan Monthly at Naples (Fla.) High School decided to run a four­part series on sexuality. But Edward Ruff. a parent. did.

Ruff. whose daughter was a senior at the high school last spring, tiled SUIt to block publicallon of ,he final article in the series. He maintained the series violated both the school board's policy on sex education and rhe establishment clause of the Constitution, which calls for the separation of church and state. Ruff's efforts to ban the fourth article were unsuccessful, but he nevertheless continues to wage a legal fight agamst the paper,

RuN became incensed when he saw an issue of the Neapolitan Monthly containing a story on birth control methods, the third article in the series. When he learned that the paper planned to finish the series with a piece on abortion, he asked the Collier County School Board to stop publication of the article,

Appearing before the board in May, Ruff and other angry parents questioned the morality of both the journalism teacher and the student who had written the a r ticles. Unconvinced by their arguments, the board voted 4-1 to allow the abortion article to appear. School board attorney Jim Siesky told the outraged parents that the abortion article and the previous articles on sexuality did not Violate the school's journalism guidelines and were neither disruptive nor obscene.

Since the schOol board refused to censor the article, RuN filed suit in the Second District Court in Lakeland claiming that the series was "subterfuge" to violate school board policy on sex education. He further contended in the SUit that the articles violated the establishment clause of both the state and federal constitutions because "they did not present all religious values for comparison. but instead (were) confined to the liberal sexual morality," Ruff complained that the series provided "information about human sexual conduct In a manner that is not correctly understood by a child."

Circuit Court Judge Ted Brousseau

refused to prOhibit publication of the article, stating that the abortion story presented "both sides of the issue and therefore does not violate the Constitution." Brousseau also ruled, however, that he did not have jurisdiction over the portions of the suit alleging Violations of school board policy and allegations that printing the article would violate the rights of parents and students.

?AN\

Ruff and the other plaintiffs claim the school newspaper is a classroom tool. In their view, the series was thus a course in sex education and Violated the school board's policy.

"I reserve the right to teach my kids about V.D. and birth control," Ruff said. "I reserve the right to control what is taught to my kids in the public school system." Addition­ally. Ruff said that because money

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Following Brousseau's action, Ruff and his atiorney, Robert Brake, sought a stay in the second District Court of Appeals to halt publication of the article. The motion was denied.

Despite the fact that tt'le abortion article has been printed, Ruff continues to press the case. Although the appellate court denied the temporary restraining order Ruff sought to block the article. the court has not yet ruled on the merits of the case.

A group of sympathetic parents, the Community Action for Respon­sible Education, has jOined Ruff; his wife Blanche and Barbara O'Connell in the fight. and has raised more than $5,000 to cover legal fees. For the parents, the issue has become much larger than the censoring of one high school newspaper article, Ruff said he views the abortion arncle and the entire series as an attempt by journalism adViser Janet Friesen­bruch to "use the school newspaper ... to start the process of introduc­ing sex education into the school room."

for the newspaper comes out of tax dollars, "1 am, in effect, the publisher" of the paper.

Ruff's lawyer Robert Brake main­tains that even though the final article of the series has been printed, the issue is not moot Brake said the real issue surrounds religion rather than freedom of the press. "The teaChing of value s on sexual matters-that sort of thing IS a religious issue. The school news­paper was used and they didn't present both sides. It is the same thing as teaching religion in the classroom:' he said.

''The First Amendment doesn't apply," Brake said. "There are cases that say where you have a conflict of rights under the First Amendment, the establishment clause takes pre­cedence."

School attorney Siesky said he would be "shocked" if the board loses the appeal that is still before the court. He said he believes the arguments regarding religion "are tenuous at best.·' Oral arguments in the case are scheduled to be heard thiS fall.

SPLC REPORT FALL 1981 9

Adve rtisements

Plan ned Parenthood Ad Nixed by Principal By Betsy Kolbert

Charg i ng t h a t a Planned Parent­h OOd advert isement re fe r r i n g to Va lent l ne'S Day as " Love Careful ly Day" was Inappropriate. both the p nnc1 pal and the newspaper adviser al Central H i g h School in Omaha. Neb . . ref used to allow the ad to run �ncensored In the studen t pa per.

We got the proof sheet back from :r.e printer and showed I t to the aC'/lser a nd he h i t the wal l . " Sa m J ohnson. editor of the RegisTer, said. "I-'e said that the ad said i t was a l l r ight t o have sex o n Feb. 1 4 as l o ng as you're care f u l . "

T h e ad , as i t w a s o r i g i n al ly distri b u ted by Plan ned Paren th ood o f O m a h a - C ou n c i l B l u ffs. read . "When yo u remember your Valent ine. remem ber men and women who arerd ready to become parents s h a re a responsi b i l i ty to prevent preg­nancy. "

RegiSTer adv iser T.M. Ga herty said he had "no objec tions to the ad per se' -' but that he considered the l ine " Feb. 1 4 is Love Caref ul ly Oa y " to be in " questio nable taste." I n his role as newspaper adviser, Gaherty sa id . he reads a l l copy for "style, correc tness and propriety." Over the past 1 3 yea rs, h e has brought items t o the attent ion of the princ i pal "only five or S I X times."

Gaherty showed the ad to Pr inCI­pa l Gay lord Moller, who ag reed w i th the adv i ser's assessment . "I felt th at a

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number of distnct tax payers and patrons woul d be oHended and d is t u rbed W i t h a very possible Interpretat ion of the ad as condon i ng sexual ac tivi ty among h i g h school s t udents a nd act ual ly encouraging I t as long a s t he partici pants were ca refu l . " Mol ler said.

Whi le he said he made n o speci f ic cha nges i n the ad. Mol ler requ ested that the word ing be "cha nged into a more acceptable form . " T h e stud en ts said Moller also in Sisted that the locat ions of several blllh con trol c l i niCS in thE: area be deleted from the ad. The student ed itors cha nged "Love Ca refu l ly Day" to "Valent ine's Day "

In the next issue of the paper. Johnson and buslf "less manager Jay S turek wrote an edi tor ial c rit ical of the school adm i n istrati o n 's treatment of the ad. The studen ts wanted to run the two versions of the ad along With the ed itorial to i l l ustra te thei r point.

Ga herty and Mo l ler . however, believed the students were si mply tryi n g to get the uncenso red ad back in the paper and proh i bi t ed the " i ll ustrat ion . ' "I felt th i S was merely s u b t erf uge for ge t t i n g t h e a d printed," Moller said.

After the pr incipal prevented them from pri n ting the u ncut ad W i t h the editOrial , Johnson and S t u rek took their complaints to two Omaha news­papers. The Omaha World· Herald contacted two University of Nebraska p rofess o r s , who sa i d t h a t t h e

V ALE1VTINES DA Y

Re'7Mrt/.ber. men and women. who ann '/ ready to become parntl..3

share a resporuitrility to prevent pregnll7ICy .

For con/identtal information call

PLANNED PARENTHOOD ; of Omaha-CCnlncil Bluffs .

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The on glnal ad. left. In IfS fInal form 111 the RegIster

1 0 FA L L 1 98 1 S P LC R EP O R T

Reglstef Edito( Sam Johnson

pri ncipal may h ave viol ated the s tuden ts ' First Amendment rights. James Neal of the Un iversity of Nebraska-Lincol n t o ld a World­Herald reporter that courts have general ly ruled "once a student newspaper is given to students, it belongs to the students." I n censor­ing the ad . Neal said . Mo ller may have been gUi lty of unlawful pnor restraint.

P u b l i c school p u b l i c a t i o ns i n Omaha are governed by " G uidelines tor Sch ool Newspa pers," which state. In pa rt , that " i n all questions of taste. newspaper staHs shou ld be g uided by their adVisers and the pn nclpal of the schooL"

· ·The gUidel ines basi cal ly say tha t I f Ihere's a q uestion o f morality. the pn nClpa l and the adviser are the ones who make the decis io n . " editor Johnso n said. ··However, they (Moller and Gah erty) haven't been consistent at all dUring the year, They've al lowed ads to be pri nted trom punk rock sto res t h a t have cert a i n l y been offensive and more I m moral than the Pl a n n ed Parenthood a d s . " T h e Valentlne's Day ad ran un altered i n two other O maha p ublic h i g h school p a p e r s . a s w e l l a s t h e l o c a l newspa pers.

Moller tol d the World- Herald he was not upset by pu blica t ion ot the ad i n "com munity newspapers." but said that a high sch ool paper is a " se m i - re a l i s t i c journ a l i s t i C exper i­ence, rat the real th i ng . "

BUSiness mandger Sturek bel ieves Mol ler's act ions were prompted by a

desi re to avo i d the sort of controve rsy the paper was in vo lved in last year, when the Register ran an a rticle ab out a lco h o l , d rugs a n d b i rt h contro l .

"The princi pal backed us up then," Sturek sa id , " The superi ntende n t was pressu red by right-to- l ifers, whom we had contacted , to print addi t ional informatio n from them, wh ich we did i n a k ind of letter to the ed itor. I t appea rs the p ri ncipal was ins tructed to avo id another controversy l i k e this.

By Betsy Kolbert

The Gate wa y 's decisi on to run advertisem ents fo r legal sti m u lants d e s p i te t h e o b ject i o n s o f t h e Un ivers i ty o f Nebraska Board of Regen ts al m ost cost the student newspaper 40 perce nt of its fu nds. A ful l scale controversy was averted when the sponsor withd rew his ads from the last two issues of the semester.

The N e b raska Board of Regents asked journa l ism law profess o r Todd Si mon , chai rman of the U n ivers ity of Nebras ka-Omaha Publications Board, to appea r at its Apri l meet i n g to justify the pap er's posit ion o n the legal sti m u l a n t ads. "Several mem­bers of the board ap peared ready to disconti n u e fund ing the newspaper rather than to conti n ue ru n n i ng the ad s , " S i m o n s a i d . T h e b o a rd provides 40 percent of the news­paper's funds.

The ads in q u est ion oHered " P ro­Seekers," sti m u lants conta i n i n g an appetite s u p ressa nt, deco ng esta n t a n d caffe ine . None of the p i l ls ' i ngred ients are i l lega l , Pro-Seekers owner Robert Church as s u red the Gatewa y . T h e Omaha "vice sq uad" investigated the company and found its activ i ties to be legal .

Simon told the regents that u nder the p u b l i c f o r u m doct ri n e , the G a teway was ob li ged to accept the ads. The doctri ne, he sai d , ho lds that "when u n its of govern ment them­sel ves c reate a com m u n i c at ion medium, the u n i t of govern ment is p recluded from choosing among those a l l owed to use the m ed i u m or forum.

"We fe l t that the st ude n t news­paper, pa rt ia l ly supp orted by the state, p rec isely met the req u i remen ts of a pu b l i c foru m , " S imon c o n ti n ued .

He never gave any clear reason why we co uldn't run the ad . "

Mol ler told Omaha repo rters that while he did not consider the ad im moral or oHensive, he pro h i b ited its publ icatio n because "there wo uld be a considerabl e amount of pa rent comp la int . "

Although Joh nson and Sturek con­tacted the Nebraska Civil Liberties Union, they decided not to pursue the matter in court. Johnson said they were discou raged from court actio n by an N C L U attorney who descri bed

Nebraska Regen ts Irke d by D rug A d in Pap e r

Accord i n g to S i mon , a l a wyer, the regents had never heard of the p u b l i c forum doct rine and they bel ieved " the matter was wo rth test ing i n court . "

At the meeting, Regent J ames Moylan said that if the Gateway co nt in ued to run the ads, he m ight ask the board to d isco nt i n u e i ts funding of the paper. Moylan sa id parents had co mplained about the ads. S i m o n repo rted t h a t t h e p u b l i c a t i o n s board re ce ived n o compla ints, a lthough h e said "the guid e l ines for the student press that govern our committee specify that compla ints should be brought to or referred to the committee . "

Un iversi ty attorney Richard Wood disag reed with Simon that rejecting the ads could lead to a s u i t ag ainst the paper based on the pub lic forum doctri ne. He said that the p U b l ica­tions board could esta b l is h a pol icy that would lega l ly a l low the Gate way to bar the ads.

Before the publ ications boa rd met to decide formal ly its pos it ion on th e matter, the Gateway d i d p u l l one o f the legal stimu l an ts a d s . I n place o f

Advert isem ents an ea rl i er, similar case that was never sett led because the students gradu­ated a n d scattered to col leges across the co un try. "We weren ' t prepared to go to court," Sturek sa i d . " I t would have taken too much t ime."

According to Sturek , the faculty at Central High School was dism ayed b y t h e news p a p e r c o n trove rsy . "Seve ra l teachers real ly gave us a lot of f lak , " he said . "They felt that any spea k i n g out agai nst authority at Central was a slap i n the face. Sam and I got k ind of a bad name. '

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the ad, the edi tors wrote, "This space was designated for the Pro-Seekers ads. T h e Un iversity Board of Regents requested the ad be rem oved ."

I n the same issue, Gateway editors in c lu ded an ed i to ria l that stated , " I t has become a diff icult tas k defend­i n g an ad that we pe rson a l l y d isapp rove of, but t h e advertisers' (and o u r) First Amend ment rights should have al lowed L;S to conti nue ru n n i ng the ad . "

Two days later, the U N O publ ica­t ions board voted to al low the ads to ru n . Sho rtly thereafter, the i n it ia l adve rt i ser withd rew his ads to p r o t e c t the p a p e r . A seco n d advertiser then expressed i n terest in p laci ng ads for l egal st i m ulan ts i n the Gateway , but the paper's busi ness and adve rt is ing ma nagers rejected the ads on the groundS that they were m i sleading. No st i m u lant ads have appeared in the newspaper since late Apri l , S imon said.

The UNO publ icat ions board is p repa r i n g a report d e t a i l i n g i ts posi t ion for presentat ion to the regents in the f a l l . Accord ing to S i m o n , the report "wil l be s im i lar in sty l e to a legal br ief ."

S P L C R EP O R T FALL 1 98 1 1 1

By Betsy Kolbert

�atfltr t When he refused to tell a grand jury the name of a student interviewer. adviser Jack Lee. al most found . . , himseJf behind ba�" '�

MILLVILLE H IGH SCHOOL MAACH 1 981

THE CA ND Y MA N IS HERE! -" , . �

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There was a song Ihat came oul ot Los Angeles called the Caoav Man I t was. supposedly. 3 SIOry aooul a man WOO dealt In aope Because we do not Ir.�ow your name, we WIll. therefore. call you Ihe CANOY MAN.

T' mOTcateS Tattler Questions CM' ,ndlCates Canoy Man's answers B la nk spaces Indicate lan<�ua�e tha i could not be pnnted ,

T' Do you use drugs or have you eve' done them? eM: Yea . I do 'em, They gIve m6 a goo.:! lIme and I gel to es cape Irom [hIS -- world. T What t<tM do you do? CM. I do speed and downs.but also gel sloned, { p ot) T How otd were you when you f"51 staned dOJng drugs' eM' I first staned gettln' stonea

H'gh OUI I ' l l $ell 10 a nybOdY What toe -- , " they wal1l 10 part'l lney can party T, What ' S Ihe lowesl grade toar you know 0 1 , Ihat peop le sell 10 ? CM' That's hard 10 sa', I know kIdS In flflh anCl s,xln grade wno gel sioned, Some even lake pIlls, T' Are there many aatly users at SenIor High? eM: -- yea' People are always gettIng -- stoned our there or go,ng on a ;rop. T Do you sell your drugs moslIy belore, dUllng. or aMer scnool? eM: 1'1\ - - sell them anytime There '5 no bener time OUI hefe al the SenIo r H ign T. Can you get HerOin or CocaIne a/ound here?

nang arou�d? eM: Yea. a lot of my t"enos are my b est C�SlcmefS, r. Do yOU sell 10 a lot ot clIques, meanlf'S dlilerenl SOCIal groups a l senool ' CM' Yea. I sell to the -- sO'ca lled h,gh Class kIdS. the locks ana Ine "heMs ' I don't sell to -- They have me" own way I Just won t se l l 1 0 Ihose �eople. T' Do vou sell a lot 01 drugs a I pan'es? CM: Yean I sell a lot al panles. Oul mOSt O( :�e l Ime the people buy I � e -- aMao 01 l Ime so tney can nave them lor !ne panles T. Do yeu teel sale selling drugs arounc ;C�OOI ? CM: Yean, I don't real ly worry al)oU! ;Mt at all. Secuftty ,sn r tight T What 'NOUIO you dO " you were caught'

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wants, ThaI 'ncludes Co�e ano HerOIn aul Coke and Heroon WIll prObably ee so -- cut lnat you gel Dad - - ,

CM' I wou ld see "'hat they would do ro me anCl tnen go Dac k selhng, But I dOn'! pl an to get caugnt

tried? CM. I s[aned on pot. but from there I went 10 s pe e d a n d I U d e s {Quaalude s l . T W h y dlO you start ta�/ng drugs; CM' I! was the th, ng 10 dO, ana I neard (hey was lun r, Have the people you 've sale :0

ever had bad IUpS?

eM. Maybe they did. but I don I lIsten to It'lelr probtems. I'm dOlI' t h IS 10 malee mOlley. not to near atrler people 5 problem$ r How did you get your stan '1'1 seilIng drug!? eM' I wes getting stoned a lot when somebody told me I COUIO make a -- lot of money sell,ng

T' Whal d/ugs do you sell ,1'1 SChool? CM: I sell a lo! of dIfferent kIndS ! ," . ;'·····1 self po!. speed. ludes, black oeau-

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T' What was the you ngeSt �Id you ever sold to? eM' I sold to a linle -- fourtn gr80er once, He - - wan leC! to buy a ,o,nt and try , l out. so I sold ,t to hIm T O,e! y o u leel gUlfly eM' -- no' Money IS money T' Would you sell It to anyone ? CM' Helt yea, " they nad the money T' I t you h ao brothers ano s'sIers. wou ld you s e l l 10 them? CM; Yea. I f they watlt to party, welf tnen goOd lor Inem. Wl'Io glllSS a -

T: Have you ever eeen plcke-a up tor sei ling or uSI"g drugs? eM' By a M l lllllile COpl You'_e got 10 be -- �Id<llng, Those dumb -- clon 'l k n ow thel' --- Irom a hOle In It'le 9/0und. T' What IS [ne most popular d lug, bes , des pot? eM: I d u n n o, Out I sell a 101 01

T: If you we Ie cauQi"l1 would you Ulil youl �arenrs' CM' -- NO' T. Ooes It botner you tnat you COUIO be <lII,og people by sel hng your c, ugs? CM. -- no! I 'm not � lllmg them by se l lmg "'y drugs. Ihey 'le � " Itng [hemseIVes And who says they are go,ng ;0 - - dIe anyway r 00 YOu Mave any consc,ence , n selltng your drugs? CM: Sure I oon'l want anyone to -- croa". �ut money's money

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Tne TaWer s t a f f l"Ias been wO/�'n9 on Ih,s story lor rne past Iwe yeers Wlm the cOOper3t10n ot the aOrT',n,slrat,on. No memb<!r 01 the Talll" s[all �oows whO dla Ihe I n r e r v l e w T h e r e w e r e s eve ral Quest ,ons ab out Ihe aOlcle me Tarlisr Slat! would I ike 10 have aSked lite IMaers, but we're s u re Ihe anlcle speaks tor 'tseff. We only hope thai [h,S ralS� �om8 senous quesltons ,n the reaoe rs' mInds

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Both newspap e r adviser Jack Lee and P ri n c i pa l La rry M i l ler h o ped an a n o nymous i n te rview with a local d rug p us h e r wou l d s p a rk i n te rest in M i l lv i l l e ( N J ) H i g h Schoo l 's d ru g p ro b lems. T h e s to ry , enti tled " T h e Candy Man is Here , " d id i n deed attract the a t1ent ion of at least one g ro u p-the local pol ice-and Lee and M i l l e r a l mos t f o u n d themselves i n ja i l .

Two yea rs ago, Lee, ad v iser to the Tattler, came u p w i t h t h e idea o f p u b l i s h i n g a n i n terview with a p u s h e r i n o rder "to s h o w what s o rt of a person h e i s . " He a p p ro a c hed seve ra l stud ents about the idea, but found n o wi l l i n g i n te rv i e wers. Th is Se ptember, a stude n t who had fo u n d a dea ler ready to tal k came forwa rd.

Lee w a n ted to c o n d u c t a t l east part of the i n t e rv i e w h i m se l f , b u t t h e " C a n d y M a n " refused contact w i t h a n yo n e exce p t h i s i n te rv iewe r . " 1 wan ted t o g e t b eh i n d a scre e n o r o n t h e p h o n e , b u t h e wo u l d n ' t l e t m e . He wo u l d o n l y d o i t i f on ly t h e s t u d e n t k n ew h is i d e n t i ty , " L e e s a i d . L e e i n s i s ts that h e i s t h e sole p e rs o n w h o k n ow s w h o c o n d u c ted t h e i n t e rv iew. a n d t h a t o n l y t h e i n terv i ewer k n o ws t h e i d e n t i ty of the "Candy M a n . "

S i n c e t h e p u s h e r ref u sed t o meet with h i m d i rec t l y , L e e re l ayed t h e q u e s t i o n s h e had devised t h ro u g h t h e s t u d e n t i n terv i ewer , who taped h i s sess i o n s w i t h t h e " C a n d y M a n . " L e e h oped t h e i n terview wo u l d revea l th e persona l i ty o f t h e p u s h e r a n d devel o p e d h i s q u est i o n s w i t h t h i s a i m i n m i n d . " I wan ted t o f i n d o u t what t h e pers o n w a s l i ke , to develop characte r i z a t i o n , " h e sa i d .

A s u d d e n a ttac k o f c o l d feet a l most led the " Ca n d y M a n " t o c a n c e l t h e i n te rv i e w . I n o rder t o ca l m h i s fears, Lee o b t a i ned f ro m P ri n c i pa l M i l l er a lette r ass u ri n g t h e d e a l e r t h a t t h e a d m i n i st rat ion wo u l d n ot p u t p re s s u re on e i t h e r t h e a d v i s e r o r t h e i n terv iewer to revea l h i s i d en t i ty . T h e p u s h e r t h e n a g r eed t o proceed w i th t h e i n terv i e w .

I n t h e s t o ry t h a t a p peared i n t h e Tattler i n m i d ­M a rch , t h e " C a n dy M a n " t o l d h i s student i n te rv i e wer th a t h e k n ew of d r ug -users in t h e f i f th and sixth g ra d es , a n d c o m m e n te d t h a t he had o n ce sold ma rij u a n a to a f o u rt h g ra d e s t u d e n t. A d d i t i o n a l l y . he poked f u n at M i l l v i l l e p o l i c e for not bei n g a b l e to catch h i m se l l i n g d rugs .

O n M a rc h 2 3 , s h o rt l y a f t e r the paper ap pea red w i t h pages o n e a n d f o u r devoted to t h e " Ca n d y M a n " a rt ic le , C u m b e r l a n d C o u n t y P rosec u t o r K e n neth Pag l u i g h i s u b p o e n aed Lee a n d M i l ler , o rd e r i n g t h e m t o reve a l the n a m e o f t h e st u d e n t i n terviewe r . Pa g l u i g h i sa id t h a t bef o re h e s e rved t h e s u bpoenas, h e a s k ed M i l l e r i f h e w o u l d v o l u n t a r i l y c o o p e r a t e i n a p p reh e n d i n g t h e " C a n d y M a n . " M i l le r, w h o was u n awa re of the i n terv i ewe r 's i d ent i ty , as k ed Lee w h eth e r h e w o u l d be w i l l i n g to d i v u l g e the s t u d e n t re port e r ' s n a m e . D es pi t e t h e p rosecutor 's th reat t o b r i n g h i m befo re a g ra n d j u ry , Lee refused to g i v e Pag l u i g h i t h e i n f o r m a t i o n h e req ues ted.

Af te r he was s u b poenae d , Lee st i l l refused to test i fy . F e a ri n g t h a t the s t u d e n t i n terv iewer's safety wou l d be e n d a n g e red i f h is i d e n t i ty became known, Lee sa id h e wo u l d g o to j a i l rather t h a n re lease t h e i n forma t i o n . " T h e reason t h a t I d i d n o t reveal t h e n a m e of the i n terv i ewer w a s ve ry s i m p l e . " Lee said . " There i s a need of t ru s t between the s t u d e n t and teacher, and most of

a l l t h e re was concern for the safety of the s t u d e n t 's we l l - be i n g . " M i l l e r refused to o rd e r Lee to test i f y , a l t h o u g h t h e p rosec u t o r threatened to h o l d t h e p r i n c i p a l i n c o n t e m p t of court.

Afte r Lee ref used to tes t i fy before the g rand j u ry M a rch 2 4 . Pag l u i g h i asked N ew Je rsey S u p e r i o r C o u rt J u d g e P h i l i p G ruccio for a cou rt o rd e r c o m pe l l i ng t h e test i m o n y . A t a M a rc h 2 6 h ear ing , G ruccio ru led t h a t Lee wo u l d have t o g i ve the i n terviewer's n a m e to the g ra n d J U ry i f the p rosec u t o r had not by t h e e n d o f t h e week o b t a i ned t h e " C andy M a n 's" i d e n t i t y u s i n g " l es s i n t ru s i ve" met hods.

G ru c c i o d i s m issed argu ments that the New J e rsey s h i e l d l a w p rotected the Tattler f rom be i n g fo rced to revea l i ts s o u rces. As p rese n t l y writte n , the sh ie ld l a w p rotects o n l y papers w h i c h pub l ish at l e a s t week l y , have a p a i d c i rc u l at i o n , a n d possess a sec o nd -c l ass ma i l i n g perm i t . Th e Tattler f u l f i l led n o n e of th ese req u i re m e n ts , G ruccio ru l ed . C i t i n g the case of Branzburg v . Ha yes , G ruccio a lso d i s m issed c l a i m s that t h e Ta ttler h a d a Fi rst Amendment cons t i t u t i o n a l ri g h t t o p ro tec t its s o u rces.

At t h e a d v i ce of p rosec u t o r Pa g l u i g h i , t h e C u m b e r l a n d C o u n t y g ra n d j u ry d ro p p e d t h e su b po e n a s o n M a rch 3 1 , e i g h t days after t h ey had been i ss u e d . Pag l u i g h i told t h e g rand j u ry t h a t because of the p u b l i ci ty the case had received , p rosec u t i o n of the "Ca n d y M a n " would b e "extremely d i ff i c u lt " even i f h e we re i d e n t i f i e d . The g r a n d j u ry issued a s tateme n t exp l a i n i n g that i t was d ro p p i ng i ts s u b p o e n a s o f Lee and M i l l e r because the n a t i onwide atte n t i o n the matter had att rac ted had " i n a l l p ro ba b i l ity caused t h e ' C a n d y M a n ' to e i t h e r f l ee o r to d isco n t i n u e h i s i l l eg a l act i v i t i e s . " Pag l u i g h i a lso expla i ned to t h e g rand j u ry that t h e s t u d e n t i n terv i e wer , i f s u b poenaed , m i g h t s l m l l a r ! y ref use t o test i fy .

Th a n k G o d i t ' s ove r ," the 60-ye a r-old Lee to l d repo rters after h e learned o f the g rand j u ry's d ec i si o n . Nei t h e r h e n o r M i l l e r a n t ic i pated the " Ca n d y M a n " arti c l e w o u l d g e n e rate cont roversy i n M i l l v i l l e , a south e r n New J e rsey town of 22 ,000. " I n ever expected th i s s o rt of reac t i o n , " M i l ler sa id .

B y t h e t i m e the p ro sec u t o r d i s m i s s e d t h e s u b p o e n a s , Lee was n o t s u rpr ised t o f i n d h i msel f off the h o o k . "I have some f r i e n ds with po l i t i c a l p u l l . They we re m a k i n g p h o n e c a l l s . It was bad p u b l i c i t y for al l of us," h e sa i d .

M a rv i n Wod l i n ge r, Lee's lawyer, be l ieves t h a t a Ne w York Times e d i to ri a l on t h e case may have i n f l u e nced Pa g l i u g h i to d ro p the s u b poenas. Th e ed i t o ri a l , w h i c h ran M a rc h 2 8 , sta ted : " I f M r. Pag l u i g h i s h o ws u p em pty h a n d ed on T h u rsday, the grand j u ry sh o u l d i n d eed ta ke ac t i o n . I t s h o u l d i nq u i re why p o l i ce a n d p rosec u t o rs need a teenage journa l is t (0 t rack d o w n someone who s e l l s d rugs to schoo l c h i l d ren . "

Lee sa i d h e b e l i eves t h e p rosecutor was p ressu red b y the l o c a l p o l ice to p u r s u e the " Ca n dy M a n " bec a u s e o f t h e " d eroga tory referen ces to t h e p o l i ce" i n the art i c l e . A g reei n g wi th Lee , M i l ler sa i d t h e cr i t ic ism i n the a rt i c l e " i ncensed " the ch ief of p o l i ce a n d " p r o m pted h i m t o ca l l t h e p rosecuto r . " H e c o n t i n ue d : "We d i d n ' t wa n t them to ta ke it pe rso n a l l y . We wan ted

continued on next page SPLC R EPO R T FAL L 1 98 1 1 3

Tattler: 'Do you feel safe selling

drugs around sch ool?'

Candy Man: 'Yeah, I don't really worry about that at all. Security

isn't tight .. '

them to feel what th is c reep was sa ying . " Pag l u i g h i i n s i s t s t h a t h e was parti cul arly i n te rested

in th e "Candy Man" b ec a use of " h i s boast i n g " a n d beca u se " h e h a d been s e l l i n g f o r a subst a n t i a l a m o u n t of ti me t o g rades as low a s t h e fourth g ra d e , "

M o re impo rtantly. Pagl u lg h i suspected t h at the art i c l e was a fraud , " Ma i n ly, I d idn ' t bel ieve the art ic le," he said . " I st i l l d o n ' t. I ho pe ro be able one d a y t o p r o v e it was a co mplete fa ke. I t was not t h e p rod u ct of st u d e nt jou rnal ists , " The p rosecutor d ec l i ned to pi n p o i n t who h e thought had written the a rt i c l e , b u t said " i t c o u l d h ave been th e adviser . "

A l t h o u g h Lee, a t the d rug dealer's i ns istence, never heard the tapes, he i s c e rtain the i n te rview that appea red in t h e Ta ttler , which serves the M i l lv i l le H i g h Scho o l p o pu lation o f 2,300 , I S a n acc urate transc r i p t of conversat ions w ith a real p usher. '' I ' ve ta ught t wenty some years, a n d I 'm a fair ly good l udge of c h a racte r ," Lee sa i d , " I wou ldn't h ave ta k e n the chance i f I fe l t one p e rcent this was not t r u e . 1 ' 11'1 pos it ive this is o n e perso n , not a composite. A f te r s o many years, one has some d e g ree o f certai n t y . "

L aw e n forcement offi c i a l s were ange red t h a t school off icials had not come to them before pu b l i s h i n g the amcle. " I f it was I n fac t true, a better way to dea l w i t h t h e problem wo u ld h a v e been t o b r i ng i t to t h e attention o t a l a w e n fo rce ment agency T h i S way i t was concea l i n g a c ri me , " Pag l u ig h i said.

He said that i f h e sen t u n d ercove r agents I n to the school , h e c o u l d probab l y come up with " 1 00 students who have d i stri bu ted d rugs at some t ime. " But he hes i tates to use th ese tac t ics. " I won't send u nd ercover agents t o sc hool property u n less t h e school board requests I t . " he said.

Accord ing to t h e prosec u tor. no student h a s been ar rested ar M i l l v i l l e High School for sel l i ng d ru g s s in ce the " Candy M a n " art i c l e ap peared. Principal M i l l er d i sag reed Wi t h Pag l i ug hi , s t a ting that at least t h ree studen ts have been arrested on d rug c h a rges at the h i g h sch ool . M i l l v i l l e p o l ice report they h ave been

1 4 FALL 1 98 1 S PLC R E PORT

�nOfO oy Jonn 'i(letnef

instructed by the p rosecu tor not to d i vu lge th is i n form a t i o n .

Lee s a i d h e re ceived overwhel m i ng S u p p ort f o r hi s pOsi t ion f rom the commun i ty. " N inety- n l ne percent o f t h e pare n t s in t h e co m m u n i ry were bac k i n g m e . T h e school board backed m e , " he s a i d . M i l l v i l le H i g h S c h o o l fac u l t y m e m b e rs u n a n i m o u s l y S i g n e d a p e t i ti on i n Lee's favor.

Afte r Judge G r uccio r u l ed that Tattler repo rters were not cove red by New J e rsey's sh ie ld law, which IS one of the most prot ect ive i n the n a t i o n . Wo d l i nger said he plan ned to a r g u e tha t the l a w made a n " u n reaso n a b l e dis tinC t i o n " i n excl u d i n g p a pers l i ke the Ta ttler from p ro tec t ion . " Protec tion o f a f ree p ress o u g h t not to h i nge o n a second c l ass m a i l i n g pe rm i t . " Wod l l n g e r sa i d h e believes the fact that t h e New York Times was fo l l OWing the case I n c reased [he chances that his a rg u m e n t wou ld work. "Judges l ike to have good press, " he said.

Pag l i ughi sa id he i n t u rn would have arg ued that s ince the I n terviewer was n o t even a member of the Ta ttler sta f f . he co u l d not c la i m p rotec t i o n u nd e r the sh i e ld law. A t th e end of the I n terview a p p ea red a note stat i n g " N o mem ber of t h e Ta ttier sta ff k n ow s who the ' Ca n d y M a n ' IS . " Lee said the Ta ttler has no offiC ia l s taff . Henc e . a l l s t u d e n t s who s u b m i t art ic les a u tomatica l l y become sta ff mem bers a n d are e l ig ib le for p rotec tio n , he said .

W h i l e the " Candy M a n " Interview led to unant ic i pat ed con f l i c t be tween s chool o f f i C ia l s and pol ice i n M i l l v i l l e, both Sides seem to agree that the end res u l t of the c o n t rove rsy has been pOs i t ive. "The a r t i c l e made

eve ryone re a l i ze t h ere is a d r ug problem, perhaps more of a p rob lem than a n yone wou ld l ike to be l i eve. " Pagl l u g h l s a i d .

M i l l e r repo rted that a l t h o u g h the school has been aware of the d rug prO b l e m for q u i te some t i m e . com m u n i ty i n terest i n t h e s u bject until rece n tly had been n e g l i g i b le . One year ago, a fter a pol l i n d i c ated t h a t 90 percent of M i l l v i l l e H i gh Sc hool students had at le ast tr ied d ru g s . M i l l e r c a l led a meet ing to develop a co m m u n i ty awa ren ess p ro j e c t . Ei g h t e e n p e o p l e showed u p . " We h a d a com m u n ity meet i n g rec e n tly at which over 300 people s h owed up. I consider th i s a feal In I tse l f , " M il l er sai d .

Accord i n g to Pag l i u g h i . h is off ice I S worki n g c losely wi th t h e school board to develop a campa i g n a gamst d rug abuse i n the schools. · T h e school is develo p i ng a s t r ict p o l icy, " he said. " They're handl ing the matter the

way a l l h i g h schools shOU ld. Most high schools wa nt to Ig nore i t . "

Lee i s n o t convi nced t h e school 's n e w pol icy wi l l be effec t i ve. " I t 's easy to put out a ru l e . " he said . He bel ieves t h a t stu d ent s are " th i n k i ng more." but that " t hey 're st i l l g o i n g to have thel f pot on week ends."

To Lee, the poss i b i l i ty that the "Candy M a n " art icle wi l l br i ng about a chan g e in the shi e l d law is more I m po rta n t than the n ew d rug po l icy In t h e wake of the case . New Jersey Assem blyman Ja m es H u rley h as I ntrod uced a b i l l which would extend t h e state s h i e l d law's p rotection to s t u d e n t journal ists. " I w i l l certa i n ly ret i re n e x t year Wi th a fee l i n g that I have con t r i b u ted someth i n g of value. " Lee sa i d .

Shield Laws Leave Students {Inguarded The recent experience of the Mi l lville High School

Tattler i l l u strates two points wel l . First. reporters have no constitutional rig ht to protect the id entity of their sources before a grand jury i nvestigating cri mi nal actiVity. Second, shield laws are a poor substitute for constitutional pro te<:tion .

When Jack L ee was sub poen aed to test i fy before a grand j u ry , t h e Ta ttle r , and by extension Lee. faced two insurmo untable legal obstacles. The first obstacle was the case of 8ranzburg v. Hayes, 408 U.S. 665 ( 1 972).

On Nov. 15. 1 969. the LouiSVi l le Courier-

Journal p u b l ished a story describing a reporter's observations of two local residents who were in the business of synthesizing hashish from m arij uana. A ph otog raph accom panying the story p ictured a pair of hands work ing above a laboratory table on whi ch was a substance Iden tified as hash ish. The story said tha t the reporter h ad promised the two hashish producers that he would not reveal their ident ify.

Atter publ ication, the reporter was s u b poe n a e d to a p p e a r b e fo re a grand j u ry and asked to identify the two hash ish entrepreneurs. He refused . The case eventual ly wound its way to the Su preme Cou rt. as did three other confidential source cases. The fo ur cases were then con­sol i dated and decided in Branzburg . the semi n a l ruling on p rotecting con­fidential news sources.

I n Branzburg . lawyers for

In a 5-4 dec ision, the hrgh court ruled against the media . In a n opinion by Justice Byron White. the court said tha t noth ing in the Constitution g ives reporters a rig h t to refuse to d i sc lose con fid e n t i a l i n format ion before a g rand jury probing cnme. White said that grand jU ries have trad itional ly been enti tled to every person's ev id ence, no matter how important a person might be.

He also ex pressed doubt about whether the forced disclosure of sources WOU ld actual ly

h i nder the free flow of i nformation. Join ing White's opin ion were Chief Justice Warren Burger and

J ustices Harry 81ack mun and Wil l iam Rehnquist. The cruCial fif1h vote was suppl ied by Justice

Lewis Powell, who wrote a concu rring opi nion.

The Branzburg precedent covers only situations in which grand ju ries prObing

cri m inal actiVity are seek ing in formation. I n other contexts, SUC�' as at ciVil tnals or dUring pretrial discovery in a ciVi l case,

reporters, under numero us state and lower federal court ru li ngs, do have at least a

qual i fied constitutional ( lght to pro­tect confidential information. But in Sit ua tions i n VOlving c r i m i n a l g ra n d ju ries, 8ranzourg IS gen erally con-side red disposit ive

the medi a contended before the h igh court that i n gathering news. it is of1en necessary for reporters to keep

By Rob Eggert

Thus, when Lee received a subpo­ena to testify before a Cumberland County grand jury, Branzburg stood as con t rol l ing pre<:edent. Efforts by Lee and the Tattler to assert a consti­t u t ional right to protect sources were doomed to fai lure. Th iS lef1 the New Jersey Shi eld law as the only other possible source of -p rote�tlon for the Tattler , and the wording of the law

secret sou rces of informat ion. The media argued that if reporters were req ui red to identify their sou rces. sources would dry up. and th e free flow of in formation guara n teed by the F i rst A m endment wou ld be constri c ted. The med ia said that it had a consti tuti onal ri ght to protec t confidential i n formatio n , and argued that th is righ t could be d isreg arded only if au thOrities had a compel l i ng n eed for the i n fo rmation and had no way of obta i n i n g i t except from the reporter.

proved to be t hl� second major legal Obs tac le. A sh ie ld law is a state statute which creates a right or

p rivi lege for a reporter to refuse to answer ques tions about i n formation and sou rces obtained and uti l ized whi le covering a story. The Supreme Court said explici tly in Branzburg that while there was nothing in the Const itution which gave reporters a right to refuse to

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S P L C R E P ORT FALL 1 98 1 1 5

answer q u es t ions before a c r i m i nal gra n d j u ry , sta te leg is latures. i f they so wished, were free to enact laws afford i n g rep o rters such a ri g h t. New Jersey is o n e of the states hav ing a sh i e l d law, and the Tattler a n d Lee a ttem pted to c la i m protect ion u n der i t .

T h e r u l i n g by J u d g e P h i l i p G r ucc i o that t h e Ta ttler and Lee were not cove red by New Jersey's shi eld law i l l ustrates why shield laws are i n adeq uate. T h e general p ro b l em with s h i e l d laws . many observers have n o ted . is that t h ey afford re p o r t e r s o n l y t h a t d e g r e e of p rotec t i o n w h i c h an in divi d u a l state legis lat u re, in i ts i n f i n ite wisd o m , 11as

dec i ded is appropnate. I n the case of the New J ersey law, the legis lature. in wri t i n g the statute, dec i ded that o n ly newspa pers w h i c h p u b l is h at least weekly, have a paid c i rc ulati o n , and are reg istered a t t h e post off ice as second -c lass matter a re entit led to protect ion . The Ta ttler and many student pa pers are thereby ex c l uded from t h e law's coverage.

The si tuation is not u n i q ue to New Jersey A 1 979 SPLC su rvey revea led that sh ie ld laws in at least n i ne of the 26 states having such laws appea red not to protect the stud e n t press.

Lee a n d the Tattler esca ped t h e c l u tc h es of C u m b e r l a n d C o u n ty Prosec utor Kenneth Pag l i u g h i be-

cause p u b l i c press u re forced Pa l i u­g h i to bac k down. Other school pa pers may not be so fortu nate i n the futu re. The best sol ut ion to the p r e s e n t p ro b l e m w o u l d be a S u p re m e C o u rt ru l i n g re versi n g B r a nz b urg a n d e s t a b l i s h i n g a co nst itut ional right on the part of reporters to protec t news so u rces before cr iminal grand j u r i es . The pros pects of suc h a ru l i n g are s l i m , t o say t h e least. A more real ist ic , though less satisfactory, sol ut ion is for students to lobby state legisla­tu res to enact shield l aws wh ich protect not on ly the private commer­c ia l med i a . but also the st udent press.

L e g a l Fees B u rd e n S t u d e n t N ewspa pe r U n t i l the University News was

sued for l i be l , t h e staff of the p a per at Bo ise State U n iversity in I d a h o was u n awa re that t h ei r p u b l i cat i o n was not cove red by the schoo l ' s l i a b i l ity i n sura n ce. Now the paper m u st rely on a $ 1 0 ,000 l eg a l f u n d esta b l ished by the stud e n t g overn ment to assist a l l s t u d e n t o rg a n i zat ions t h a t are i n e l i g i b l e fo r u n i versi ty coverage.

BSU student Mark Shepard f i l ed a S300,OOO l i b e l s u i t ag a i n s t the u n i vers i ty , the student g overn ment, the newspaper and former editor S a l l y T h o m a s a f t e r an a rt i c l e authored b y Th omas acc used h i m of extort i n g money from two c a m pus en terta i n ers w hose show h e was promo t i n g . After the s u i t was f i l ed , t h e pa per d i scove red that. because i t beca m e a sem i -a u to n omous o rgani­zation th ree years ago , i ts legal expenses were n o l o nger covered by u n iversity i n s u ra n ce.

Unde r the terms of t h e pa per's a g reeme n t w i t h the A s s o c i a ted Stude n ts o f B o i se State U n i versity. the News each year negot iates a co ntract with t h e student g overn­ment. w h i c h s u p pl ies 40 to 50 pe rcent of th e paper's budget . The money a l l ocated for the paper is then transferred to a se parate account which only t h e paper can use. "We used to be a d e partme nt of student g ove r n m e n t . N o w we're j u s t a stude n t o rga n iz a t i o n , " curre n t edito r Brad Mart i n sai d .

The pa per a p p l ied t o the Assoc ia­ted Students organ izat ion for h e l p i n pay i n g i ts est i m a ted S 1 0,000 i n legal fees. However, the organizatio n was relucta nt to become too c losely l i nked with the paper. fea r i n g the student g overn m e n t m ig ht t h en fi nd i ts assets a p pro priated if t h e paper lost the s u i t . Marti n said. He i n sisted

that th is fear was gro u n d less. F inal ly , the o rg a n i zation set up a $ 1 0,000 legal f u n d . but stressed that th e money is to be shared by al l studen t organizat ions s im i lar ly not covered by the u n i versity's l i a b i l i ty i ns u ran ce.

The paper's surviva l . h owever, i s s t i l l th reatened b y S h epard's l i be l suit. Th e News has s u b m i tted i ts b i l l s

to the legal fund, but " I have yet to hear whether the first b i l l has been paid , " Mart i n said. The Assoc i ated Students g roup is u nder n o o b l i ga­tion to cover the paper's legal fees fro m the fund.

Mart in said that in the future, the News w i l l be covered by a pol icy w h i c h costs the paper $300 a year.

Staff R ec a l l s H u m o r I ss u e Afte r Ed i to r I n s e rts S eve ra l J o kes

W h e n ed i tor B a r n a b as S o k o l fo und h e h a d a few extra i nches t o f i l l i n the a n n u al h u m o r s u p p lement to the Ne w University at t h e U n ivers i ty of Cal i fo rn i a- I rv i ne, he decided to i nsert a few jokes.

Sokol 'S l ast-m in ute i n sert i o n , how­ever, was cons idered to be in poor taste by other mem bers of t h e paper's edi torial b o a r d , who dis­covered what had been d one only after 1 0.000 copies of the supple­ment had been pr i n ted.

After a q u ick review of the wo rk, Sokol and other ed itors ag reed the jokes were unfit for d i s t ribut ion and dec ided the suppleme n t should be d est royed , sa i d E i l ee n S i m o n e , med ia busi ness m a n ager of the Associa ted Students of UC- I rvi ne.

Severa l staff members had contri­bu ted to the eight-page s u p p lement. t i t led " P LA YANT . . . Enterta i n ment for Aardvarks ," which fea tu red a n ude centerfold of S o k o l ly ing prone atop a newsroom desk with l i ttl e more than a wel l- p laced leg for cover. The staff fa i led to generate enoug h material to f i l l the issue, h owe v e r , a n d S o k o l d i scovered severa l inc hes of wh i te s pace just as the work was neari ng complet i o n .

" A t the last m i n u te there were a

few b l a n k col u m n i n c hes t h a t needed t o be fi l led , s o t h e editor f i l led them i n with a couple of jokes," S i mo n e sai d .

U n d e r t h e head i n g , " v u l g a r jokes," Sokol i n serted refe rences to Maze pr ison in Belfast, ten n i s star B i l l ie J e a n K i n g , Pres i d e n t i a l P re s s Sec reta ry James B rady a n d t h e series o f c h i l d murders i n At lanta.

" Basica l ly , the staff, u po n see i n g t h e j okes i n print. s a i d , 'Hey, wa i t a m i n ute, no way , '" S i mo n e sai d .

S i m o n e , who oversees the busi­ness as pects of a l l ca m pus p u b l i ca­t ions, said the s u p p lement was p r i n ted at a cost of $ 1 96.63 . S h e sai d t h e N e w University i s fu n d e d pri mar i ly through advert i s i ng reve­n ue, a l th ough it does receive a $9,000 s ubsidy each yeer from the Assoc ia ted Students o rgan izat i o n .

Despi te t h e precaut ions taken by the staff to prevent the s u pp l ement from bei ng distr ib uted , a h a n d f u l d isa ppea red from t h e l oad i ng d o c k after the publ ication w a s p r i n ted . N o n e r e a p p e a red o n c a m p u s , a l though "from the few that were ta k e n , we di d recei ve a few ca l ls . M ost were from people as k i n g where they c o u ld buy a copy , " S i mone said .

1 6 FA L L 1 98 1 S P L C R E P O R T

A Look At TWO INVESTIG ATIONS

I n At l a n t i c C i ty , a h i g h s c h o o l st u d e n t went u n d e rc ove r to d ra m at ize the exte n t of u n d e rag e g a m b l i n g i n th e c i ty.

By Kelly Griffin and Ellen Hosmer

After the At lant ic City ( N . J . ) H i gh School news paper po l led ha l f the school 's st uaent body and found that 56 percent of those u n der lega l ga m b l i ng age f req u e n ted l ocal casi nos, one staff member d ramatized the f i n d i ngs by sl i p pi n g past cas ino secu rity d ressed i n A rabic costu me.

Sport i n g a rather un offic ia l Arab head d ress, dark glasses and a trench coat , 1 6-year-old Marty R i m m , a n associ ate ed itor of the Viking , n o t only succeeded i n gett i n g past t h e d o o r sec u ri t y , b u t a l s o re c e i ved treatme nt befitt ing a shiek.

R i m m sa i d he felt it was necessary to go to such extrem es. "Cas i n o offic ia ls , parents and school offic ials either weren't aware of the p rob lem or if they we re , they d idn ' t s eem to wa n t to do a lot about it ," he s a i d .

Viking adviser Bertha Ford h a m f i rst suggested a n invest igat ion i nto stude nt g a m b l i n g last February after the staff real ized the extent of the problem. One casino, The G ol d en N ugget, is only two bl ocks f rom sc hool and attracts students d uri ng their l u nch hour and in the afternoon after school , Ford ham said.

"We wanted to see someth ing done before the k ids began to get too in volved , " she said.

The staff devised the pol l without any assista n ce from the ad m i nistratio n , except to use the sch ool 's com p uter to ta b ulate the resu lts, Ford h a m sa id . M ore than 1 ,000 s t u d e n t s , ro u g h l y h a l f o f t h e s c h o o l ' s s t u d e n t popul ati o n . were surveyed. Students were asked 1 7 q u esti o n s , ra n g i n g f rom w h i c h o f s ix A t l a n t i c C i ty casi n os was th e i r favo rite to whether their pare n ts were

c o n ti nued on next page

At t h e U n i v e r s i ty of G eo rg i a , two re p o rt e r s r i s k e d d i s c i p i i n a ry ac t i o n to s h e d l i g h t o n a f a u l ty u n i v e rs i ty syste m .

By Darren S. Trigonoptos

A newspaper repo rter at the U niversity of Georgia k n ew there were flaws in the schoo l 's p roced u re of issu ing rep lacement iden tification ca rd s , but had a d iffic u l t t ime convincing admin istrators of the system's i n here n t p rob lems.

Ad m i n istrato rs took i m mediate notice, however, when reporter David Nelson used his k n owl edge to obtain a false 1 0 . After Nelson's story a p pea red in the Red and Black, the st udent activities d i rector charged Nelson with vi olating u n iversity conduct reg u lations, a charge that could have resulted i n the student's expuls i o n . The reporter a n d hi s accom pl ice. another Red and Black staff member, were bro u g h t before the Student Judiciary, w h i c h found the pa i r g u i lty of the charges b ut refused to p u n i sh them for t he i r act ions.

In the wake of the story that ran last A p ri l , the Stude nt Activit ies Office ado pted t ighter safeg ua rds for the rep lacement of 1 0 cards and requested a comprehensive study of the un ivers i ty's 1 0-making p rocess, to be co m pl eted early this fa l l .

B i l l Bracewe l l , d i rector of the university's Office of J ud icj a l Programs, test i fied at the May 21 j ud icial hearing that Nelson a p p roached him l ast spring to exp ress his concern about the ease with which a false stude n t 1 0 could be obta i n ed . That con cern stemmed, in pa rt. from the fact that no action had been :aken on a t h re e-ye a r- o l d req u e s t f ro m the f o o d serv i c e department t o ti ghten t h e 1 0 replace m e n t process. A perso n who acq u i red an 1 0 u nder false p rete nses could ga i n access to the un ivers i ty's meal p lan a t a poss i b l e red uct ion o f $3 1 9 per q ua rter f o r 20 m e a l s a week.

B racewel l sa id he a d m i tted to Nelson that p roblems existed i n the p roced u re , b ut suggested the reporter cal l attent ion to those pro b l e m s by some means other than attempt ing to fake an 10 card .

Fol lowing that meet i n g , Nelson met with the news ed i to r of the Red and Black to discuss the story, and then ca l led fel l ow reporter Robert Keyes to borrow h is sc hed u l e , reg istration permit and Social Security card.

I n a copyrighted story in the Apri l 30 i ssue of the newsraper, Ne lson wrote: " I n under an hour , a Red and Black r � porter obtained a false 10 card us ing a piece of

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S P L C R E PORT FA L L 1 98 1 1 7

• aware of thei r gam b l i n g ac tivi t ies. The p o l l , cond ucted dur ing req u i red English cl asses,

a lso sou g h t to d e ter m i n e the methods used by stude n ts to get past casi no sec urity chec k s . The resu lts i n d i cated t h a t on l y 1 0 p e r c e n t of t h e s t u d e n t s used f a k e iden tif ic at ion , wh i le 8 0 percent s i mply were able to wa l k past sec u ri ty g u a rds.

Casi n o s that al low m i n o rs u n d e r 19 to gam ble a re i n v io lat ion of the New Jersey Diso rde rly Persons Act a n d m a y fac e cha rges b rought by the state Cas ino Con trol Com m i s s io n . Cas inos a re not res ponsible, howeve r, i f m i n o r s g a i n a c c e s s t o t h e i r p r em i s e s b y f a l s e identi f icat ion . Acco rd i n g to the Viking , the com mi ssion had not fi led c h a rges aga i n s t a s ingle cas i n o for vio lat ing the D isorderly Persons Ac t as of Feb ruary 1 98 1 . T h e state legi s la ture is p resently conside r ing a b i l l that wo u l d auth orize $ 1 0,000 f i n es for casi nos that a l low m i n ors to gam ble, but R i m m said he feels its passage is rather u n l ike ly .

R i m m 's fi rst-hand i n vest igat ion was not sa nct io ned by e i ther the sc hool a d m i nistra t ion or the newspaper; it was stri c t ly u noHicial and cond uc ted on his own ti me, a l though the paper adviser ag reed afte rward to pr int h is story . R imm said h e a ttempted to get perm ission for the secu rity ch eck from J oseph Lordi , chairman o f the Cas i n o C o n t ro l C o m m iss io n , b u t Lordi wou l d n o t auth orize i t .

R i m m said he p u rsu ed the i n vest igat ion a n yway , because he felt the pol l res u lts a lone would not have had enough i m pact.

easi l y obta i n a b le , non pho to-bea ring iden t i ficat ion and another s i m i l a r document , both of which are readi ly access ib le to anyone k nowing a particu lar studen t's name and S ocia l Security n u mber. " An acco mpanying story stated that private student record s, co m plete wi th

, Socia l Secu rity n umbers , were left unattended in a pub l ic sta i rwe l l of a u n i ve rsity bui lding. The records were l ater removed and destroyed .

Before pr int ing the 1 0 story , Nelson re turned to Bracewel l and presented h i m with the 1 0 ca rd and a letter as k i n g that problems w i th in the 10 re placement p rocess be brought to the attention of the a p propria te u n ivers i ty oHicia l . B racewel l told Nelson that he had broken a u n iversity co nd uct rule, but sa id that any pun i t ive ac t ion agai nst h i m would have to be i n i tiated elsewhere .

B i l l Powe l l . d i rector of student act ivit ies, d i d j ust that shortly afterward, reco m m e n d i ng to B racewe l l that both reporters be brought before the Studen t J udic iary . Upon bei ng confron ted by Nelson WIth the 10 card a nd h is intent ion to publ ish the story on how he obtai ned it , Powe l l tol d the reporter, " I q uestion yo u r journal ism ethics, and I am going to p ress charges. ,.

Said Powel l : "The q u est ion is, 'can a re porter go out and break the law to get a story?' The Red and Black apparent ly th i nks so . "

St i l l , after fi nding both Nelson a n d Keyes g u i l ty of violat i ng u n i ve rsity regUlat ions , the stud ent J udic iary dec l i ned to take any pun i t ive action. The c o u rt c ited the lack of mal ic ious i n tent o n the part of the re porters as

" I f no one bel ieved" the stud ents were ga mbl i n g , "no one was going to d o anyt h i n g about i t ." he sa i d .

t h e reason for withhold i n g a punishment that could I have ra nged from a rep r imand to expu l s io n .

A Question of Rights T h e sto ry o f C a r l Smig ie lsk i

and the I nde p e n d e n t P ress .

By Jeff Truesdell

Ca rl S m igielsk i approached the Chariho School Comm i ttee last March with a request to market h is ne ws p a p er , Th e Independe n t Press , at C h a r i h o Regional H i g h School . Th e committee turned h i m down. Mem bers o f t h e commit tee feared that i f they a l l owed the student to sel l h i s pa per on campus. they would o p e n the door for so l ic i tat ion by private ind ividu­als at t h e schoo l .

S m i g i e l s k i knew h i s r ights . ho wever, a n d f i led suit agai nst the comm i ttee. He k new the Fi rst Amendment guaranteed freedom of the p ress. He knew the comm it­tee decis ion was a v iolat ion o f that gua rantee. As he expec ted , the decision later was ruled unconst itut ional and S m i g ie lsk i was given the r i g h t to do as he wished . What S m i g ie lsk i d i d n ' t know, a n d what h e wasn' t cou nt­i n g on, was that the major i ty of students and fac u l ty at the high school i n Wood R ive r J u nct ion, R I . , d id n ' t ca re .

S m i g i e l s k i formed The Independent Press beca use he was d i ssatisf ied with Hoofbeats , a one-page. m i meo-

1 8 F A L L 1 98 1 S P L C R E P O R T

graphed p u bl ication that a p peared as the oHic ia l school paper i n the fa l l of 1 980. Pr inted irreg ular ly , Hoofbeats genera l ly was l im ited to p u b l i c iz ing school eve nts. " O n e o f the m o s t excit ing th ings about it was f igur ing o u t what co lor i n k they were goi n g t o use." S m i g i e lski sa id .

By February, Smigielski decided a new p u b l icat i o n was needed . He pul l ed together a hand ful o f students t o act a s a staff. a n d the g ro u p approached the pri ncipal with p lans to start another n ewspaper. Th e i r p roject was not des ig ned as an unde rg round paper bent o n c rit iciz­ing the sc hoo l ; from the beg i n n i ng . Smigielski sai d , The Independent Press would focus on school activi ties.

When the students asked permission to so l ic i t sub­scri pt ions on campus to su p port the paper, however. both the pr inc ipal a n d the school super intendent dec l i ned to take a sta n ce. Their indecis ion forced the students t o appeal to the school com mi ttee. T h at appeal was perhaps the students' major mis take, ac cording to Ronald D i Fabio , pres ident of the Char iho Teachers Assoc iat io n .

" M ost of the faculty felt that the school comm ittee should not be pos it io ned to i n h ibit the creative ventu res of the students, " Di Fabio sa i d . The st uden ts' appeal handed committee mem bers that power. After a d iscus­sion that often focused on the proposed news pape r's merits, t h e committee tabled the subscript ion request pend i n g a study of poss i b l e legal ramif icat i o n s .

T h e f i rs t issue o f The Independent Press a p peared o n sched u l e i n m id-March. Al tho ugh staH mem bers could not sel l s u bscri ptions i n class as they had req uested . an adve rt i sement on the back of the fo ur-page issue d i rected readers where to purchase t h e m , Staff mem bers themselves raised $76 needed to p ri n t 600 copies o f the fi rst ed i t ion , wh ich was dist ri buted free before schoo l , but Smig ie lski estimated that 5 1 0 sub­scr ipt ions at $1 each were needed to sup port the paper

and al low t h e st uden ts to b reak even on their venture. The students st ressed they were not a p rofi t-seek ing group: any money that was left at the end of the year wou ld be turned over to the American Cancer Society, they sai d . The g roup p l a n n ed to produce seven more Issues in t h e remai n i ng '4 weeks of the school year. Almost 80 s ubscri ptIOns w e re col lected the fi rst week.

"That one day the paper came ouL the sc hool was buzzi ng. E'Jeryo ne enjoyed the paper," studen t cou nci l preside n t M ark Al lsup told the school comm ittee three days later. Com m i t tee mem bers themselves praised the first issue, but d irected thei r attention to a letter from board attorney David Sweeney. "We are not concerned with a Fi rs t Am endmen t censorship questi on, " as Sm i ­g ielski had argued at the previous meeti ng, " b u t rather With the quest ion of per m i tt i n g use of the sc hool faci l i ­lies f o r the ben efit of a private commerCia l en terprise, " Sweeney wrote.

C i t ing other portions of the letter, some committee members s a id the board could be held lega l ly responsi­ble for the content of the pa per. Sacked by the lawye rs com ments, the com mittee ban ned both sol icitati on and d istr ibution of The Independent Press on school g rounds.

The students' efforts to esta b l ish the paper h ad pre­v iously gar nered smal l head l i nes, but the commi ttee's action tu rned t h eir p l ight i n to a media event. When Smi­g ie lsk i and his attorneys f i led for a tem pora ry restrain­I ng order to b lock the committee's decision, local lelev ision sta ( ions joined in the coverage. At that po int . i n i t ia l ly favorable stu den t reaction to the projec� reversed.

"Unfortunately. unbelievably. their response was 'you 're trying to get big and go on TV' . . " That's what some people thought and the faculty gave thiS same i mage to t h e k id s in class . " Smig ielski said. "The abuse g ot p retty bad there at some poi n ts."

"For some reason. they saw th is as fight i n g Chariho. F ighti n g t he sc hool co mm ittee was like f ight in g thei r school, and they could n' t accept that." he sai d. "A lot of people d idn ' t like that. ·'

After a h earing at which Smigielski testi fied stud ents had been asked to buy candy, cookies. pins, cal endars. beach towe ls . dance tickets. magazine su bscriptions and i n s u ra nce at the sc hool . U .S. Dist rict Court J udge FranCIS J. Boyle ru led the committee's decision was an u nconstitutional prior restra int on p u b l ication. He gran ted a pre l i m i nary i n j un c tion barring school oHicials from prohi bit ing sale of the newspaper. but added they were n o t proh ib i ted from placing reg ulations on the time. p l ace and manner of the paper's d istr ibution.

A louds peaker annou ncement by the pri nCipal at the start of school two days later told studen ts th e paper wo uld be on sa le i n the ca feteria during s tudy hal ls. With teleVision. radio and n ewspaper reporters staking out the school h a l lways. " i t was rea lly a ca rn iva l atmos­phere t h at day . " Sm igielski said. "I guess it was a pretty I m portant rul ing. No one in Cha riho cou ld real ly realize that. No one seemed to real ize the Importance of the First Amendment."

"We had a hard t ime sel l ing them that day . In front of the TV cameras, no one wou ld buy i t." he said .

The third issue several days later sold even more pOorl y. Relat ively few subsc riptions had been col lected after th e first week, and o n ly about 20 copies were sold after del ive ring 80 to the reg ula r subscnbers, " For so me reason, the paper was not s e i l ing. And that got me to the p o i n t where I didn't feel like com i n g out with any more papers ," Sm igielsk i sai d. Production beg a n on a

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fou rth issue, but was never completed.

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Comme nted SmigielskI : "A lot happened as far as harassment from teachers and students. people saying 'You hate Chariho, we hate you' and things of that sort. No one seemed to realize what was gOin g o n with free­dom of the press. Certain people wou ld say that ' Free­dom of the press is an old Idea tha t does n 't mean anyth i ng now .

.. ·

" I know that certain people In Chariho d id appreCiate the paper , " Sm ig i elsk i said, "Sut I also real ize that a lot of people d i d not l ike the newspaper .. They did not l i k e the fac t t h a t t h e paper stood. In a way , for a f i g h t . I t stOod to some people to mean revolution and rebel l ion and radi cal ism. It was the I mage that the paper had."

Another student hopes to revive The Independent Press at Chariho next fal l , but SmigielSki. who wi l l be a j u n i or. wi l l not be around to help. He has e lected to pursue h i S education elsewh ere. He is somewhat b i tter, but said he does not reg ret his actions.

" I t was a ma tter of pri nCi ple and ended a s a matter of pri nCiple' " he said. "but I t was a prinCiple that I do not have [0 be ash amed about"

S P LC R E PO RT F A L L 1 98 1 1 9

Cou rts Pi kes Pea k Fu ndi ng Cutoff U pheld

By Blake B rewer

Al most two years have passed Since the Pikes PeJk News . publ ished by studen t s a t Colorado's Pi kes Peak Community Col l ege. f i led SUi t against the stud e n t government an d the state for slash ing the papers budget and putti ng i t out of busi ness.

It was the fi rst t i me a newspaper had sued a student government for cutt ing I ts funds. A n important First A mendment q uestion was at stake i n the case: was t h e student governmen t act ing as a n ar'11 of the CO l l ege, and by extenSion the state, when i t cut the paper's budget? I f so. t he student governmen t would be subiect to the same First A mendment restraints as the state.

This leg a l issue was not decided. I n stead. when the case f inal ly came to tnal . Dist r ict Cou rt J udge G i l bert Al exa nder ru led in a rambling 1 6-page o p i nion that none of the pla l nt i Hs , th ree former staffers and the advi s e r , had "stand i n g . " I n Alexander's opi n ion, the plain tiHs l a c ked s u f f i C i e n t s t a ke in t h e con t roversy to obta i n a judi cial rUl i ng.

The th ree p la int iffs who were former News staH members. Vicky Eva ns, M arie Moon , and Ma rtha Dyer-A l l iso n . chose not to appeal the ru l i ng . None has given a specif ic rea so n for her decisi o n, but I t appears the former students have lost Interest in the case. " I suppose it was a selfish way of lOO ki ng at things," Evans commented. " bu t l ives do go on." She added tha t there had been a "fa l l ing out" between the th ree studen ts and former faculty adviser J udith O lson, and that Don K i ng, the staffers'

attorney. had not contacted them about the pOSSi b i l i ty of an appea l .

K i ng res ponded t h a t none of h i s c l i e n t s h a d c a l l e d h i m a b o u t cont inu ing the case. H e said h e did not feel i t wo u l d h a ve b e e n appropri a te t o pressure a n y of t hem into appea l i n g .

Olson. who sti l l teaches at the Col lege. has decided to ap pea l A lexander's ruling, but decl i ned to comment on the case unt i l it is resolved.

M a ny involved in the case express­ed su rprise that the adViser. rather than the studenTS, was a ppea l ing . Jo Ann Soker, the lawyer from the Colorado attorney gen eral's oHice w h o defended the college's action,

said she bel ieves the students would have had a better chance on appeal than O lson has

I n h is rul i n g , J udge Alexander sa id that since Dyer-Al l ison and Moon g raduated shortly after the fund ing cut-off and Evans was a b le to express her views in an a l ternative publ ica­tion, the Pike s Peak Fuse , the First Amendment rtg h ts of the students had not been Violated. Accordi ng to Alexander, O lson , as adviser to the News , had no " Iegal ly protected inte rest" which was infr i nged u pon when the paper was forced to cease pub l ication .

The controversial budget c u t took

place on J u ne 1 , 1 979, at a meeting of the P ikes Peak student senate. There was no p revIous men tion the issue would come up for consideration, and therefore no members of the paper were present . The senate claimed the paper was " not represen­tative of the students" and " p rojected neg a t i ve con ten t . " T h e cut was approved by the vice pres ident for STudent serv ices . coll ege presiden t D o n a l d M c Gi n ni s , t h e C o l l e g e Counci l . a n d the Sta te Board of Com m u n i t y Col leges. A l l we re named as defendants I n the suit .

Olson's a ppeal IS now i n its in it ial s ta g es . a n d no d a te for ora l arguments has been set.

I I l usrrallon by F'an DelGuerCIO

Alabama Supreme Court to Rule on A ccess Case

By Jeff Truesdell

The Alabama Supreme Cou rt soon Wi l l ru le on whether th ree top Jacksonvi l le S ta te University officials m ust disclose the fi nanCial records of a publ ic rela tions reserve fund they ma int ai n .

The cou rt. which IS ex pected to a n nounce I tS ru l ing early th is fa l l ,

cou ld u s e t h e case t o spel l o u t the legal defi n i t ion of "publ ic record" that agencies of state govem ment i n Alabama m ust make a va i l ab le fo r pu b I ic I ns pection ,

Arg u m ents were heard by the court last M a rch on the appeal of a deCISion i n a 1 979 suit fi led by The Anniston Star, The Star sued the u n iverSi ty after betng den ied access

20 FALL 1 98 1 S PLC R E P O R T

Courts to g e neral f inancial records ot the C t 0 d E P l ied Ed -tor Institu t ion, including those of a o u r r ers X e I private rese rve accoun t the school ���:f� �e�

ff��

s�a rry out u n ivers ity Readmitted Pend ing Decision

Duri n g rese a rch for a senes of artic les on the un iverS ity in the sprrng of 1 978, a reporter for the Star aSked to see records at how a u nivers i ty "reserve account" was spent . The request was denied, and one month later three top JSU offi c i a l s establ ished the R es e rve Publ ic R e l a t ions Co rporation which took over the assets of the reserve acco unt T h e offiCials have admitted dest roy ing records ot the fund. which the Star has reported was used t o promote the univerSity. lobby state legis lators and funnel an I l legal ca mpa i g n contri b u t ion to A l a bama Gov. Fob Ja mes' ca mpaign treasury.

The d i rectors of the co rpo ration and the ind i viduals na med in the Star suit a re JSU PreSident E rnest Stone. Vice P resident for Business Affairs Charles Rowe and D i rector of Publ ic R ela t ions Jack Hopper.

The u n ivers ity appealed to the state s u p reme co urt last December after a c i rcui t court J udge ruled the school and i ts officials must a l low the Star to rev i e w a n d c o p y t h e institut ion's f inancial records. includ­ing the records ot the reserve corpora t ion. The un iverS ity arg ued the corporation ' s funds were not publ ic because money in t h e reserve fund was derived fro m vend ing mach ine p rofits and private contribu­t ions rather than state appropriations.

B e fore t h e Alabama S u p reme Cou rt. the u ni verS i ty again mainta in­ed the corporation 's records were not p u bl ic a n d argued for a na rrow i n terpretation of the state " p ublic rec o rd " l a w . saying t h a t p u b l ic writ ings a re those records which a re " req u i red by law to be kept."

At10rneys for the Star, who have stated the corporation is " a n alter ego" of the un iverSity, were joi ned in their SU it by the Alabama Press Associ at ion. In its b rief to the court, the Star argued, "T he plain fact of the matter is that (JSU h as} at1empted to thwa rt the p u b l ic's ri ght to access to records d ea l i n g with f inances of JSU by creati ng a dumm y co rpora t ion to handle certain of ItS f ina nces on beha l f ot t h e un iverSity."

By Betsy Kolbert

Ed itor Tony O rtega b e l i eved the d eci sion of Savanna ( Ca l if ) High School Pnnclpal Mary Fra nks to lock up cop ies of the Dec. 5. ' 980 , issue of The Dispa tch was a move hiS fel low students sh ould k n ow about. The h i g h school adm i n i s t rat ion disagreed .

When Ortega refused (Q stop distri b u t i ng flyers descri b i n g the controversy, school officials suspen­ded him for f ive days and revoked the tran sier which a llowed h i m to a ttend Savanna.

In A p n l . a Cal ifornia a ppel/ate court ordered Ortega read m i tted to Savanna for the remainder of the spring semeS1er. pendi n g a final dec iS ion In the case. In court papers. O r t e g a o u t l i n ed t h e f o l l o w i n g scena no,

A front page a rt i c l e i n The Dispatch q uoting anonymous par­ents' cr i t iCism of footbal l coach Jim Eve re tt i n i t i a ted the c o n t roversy w h i c h c u l m i na t ed i n O r t e g a ' s suspe n Si o n .

Four days after t h e story was printed, Dispatch advis e r Cec i l ia Tate i nfo rmed Ortega that she had received ·' t lak" from faculty members about the article . As a resul t , she decided to lock up the re main ing issues in a cabinet ra ther than al low them to be distrib uted to other s c h oo l s as pa rt at S a v a n n a's n ewspape r exchange progra m . Tate told Ortega the ul t i mate' deCision on the matter rested with the principal.

The adviser added that , in the future, the Dispatch shou l d pri n t only "pos i t ive issues." At the begin ning o f the te rm. Tate had told Ortega the a d m i n is tration had asked her to have the paper " toned down. "

After learn ing o f the " lock u p , " Ortega typed a flyer pro test ing the seizu re of the issue. The flyer, entitled " D ispatch Held Hostage' -' also said the paper had been treated u nfairly by the ad m i n is trat ion i n several prevIous I ncidents.

Whde O rtega and Mitch Petras, a t e l l o w S a va n n a s t u d e n t , w e r e d istri buting the flyers d u n n g a l u nch pe riod , ASSistant Pr inCi pa l Donald Nielsen passed by and tr ied to pul l Ortega aSide. An arg u ment between

the two fol lowed . That afternoon, N ielsen Informed O rtega and Pet ras that t hey were su spe nded from school tor five and three days (espec: lvely .

When N i elsen met With O rtega's lather a nd stepfa ther a tew days afte r the InCldenl . he said Ortega h a d been sus pended for Insu bord i nation anc viola tion of the sc hool rea u la t ion req u i ri ng pnor submlss lon

-of a l l

pn nted ma teria ls. Nie lsen ack now-

l

.I .. ; ;r· ... _ ... ... Former Editor Tony Ortega

ledged there was no reason that O rtega should have kn own about the regulat ion , and added that even it the "e xtra ' edition had been subm itted to him I n advance, he would not have ap proved It for d i st ri b u t ion.

Later that da y. PnnClpal Franks told Onega and his fam i ly she was revo k i n g h iS interschool tra n sfer, The p revIous yea r, O rtega had movec i nto another school d istnct and ootai ned spec ial permission to re main at Savanna.

In addition to the reasons al ready stated by N ielsen fdr t h e student's suspenS ion, Franks said the revoca­tion was the result of c lashes she a nd, O rtega had had ove r the newspaper earl ier In the semester

The A n ahei m S c h o o l D i s t r i c t Boa«� o f Trustees u p held Franks' deCIS ion and O rtega was torced to

contin ued on next page

S P L C R EP O R T FALL 1 9 8 1 21

Cou rts California Student Denied Rights of an A dult

By Jeff Truesdell

A C a l i f o r n i a appel late c o u rt has ruled t h at a Larkspur h i g h school student does not have the r ig h t to wear a " F -- the D raft" b u tton on his SChool c a m p u s .

I n a 2 - 1 d e c i s i o n , t h e Court of A p pea l s , F i rst A p pel l a te D i s t r i c t . upheld t h e act ions o f Redwood H i g h Sch o o l ad m i n i st rators w h o s u s ­pende d student S p i ros H i nze for wea r i n g the b u tton in A p r i l 1980 . The appe l l a te c o u r t determ i n ed the suspe n s i o n did not v io late H i nze's F i rst A m e n d m e n t r i g h t of f ree express i o n .

Cit i n g a n earl i e r Ca l ifornia a ppeals court d e c is i o n , the court rejected H inze's c o ntent ion that the F i rst Ame n d m e n t protected h i s r i g h t to wear t h e badge, and that as a stude n t , he was ent it led to the same rights g ra n ted a n ad ult outside the schoo l envi ronment .

" I t i s . . . c lear that students do have r i g h ts which are p rotected by the fede ra l a n d Ca l iforn i a state cons t i t u t i o n s a n d that they do not

shed them at the school house gate, " the maj o r i ty o p i n io n sa i d . " However , i t m ust be recog n ized that a student may be s u bject to far m o re str ingent reg u lat ions than an ad u l t outside a

envi rons for h is u n l i m i ted expressive p u r pose . "

The case was heard on ap peal from the Super ior C o u rt of Mar in County , wh ich had ref used to issue

'A s t u d e n t m a y be s u bj ect to fa r m o re s t ri n g e n t re g u l a t i o n s t h a n a n a d u l t . . . d u e to h i s i m m a t u ri ty a n d sta t u s a s a s t u d e n t . . . '

sc h o o l e n v i ro n m e n t d u e to h i s i m matu r i ty a n d stat us a s a stu­dent . . . . "

I n add ressi ng the "cru c ia l " ques­tion of whether the m a n n e r of e x p ress i o n chosen by H i nze was com pat i b l e with the normal activity of the sc h o o l , the court stated that neither "students, teac h e rs ( n or) a n y o n e e l se has an a b so l u te cons t i t u t i o n a l r ight to use a l l pa rts of a school b u i l d i n g or its i m med iate

an i n j u nction a l l owi ng H i nze to wea r h i s b u tton dur ing the re mainder of the 1979-80 school yea r. With the hel p of the American C i v i l L i berties U n i o n , H i nze sued the school distr ict i n May 1980 after a d m i n istrators suspended him for wea r ing h i s badge. School offi c i a l s s a i d H i nze's action v iolated two sections of the C a l i f o r n i a State Ed ucat ion Code; one sect i o n authorized the suspen­sion of students who engaged in

Expel led E dito ..... r _________________ _

take h i s f i rst semester f i n a l s at Western H i g h Schoo l . H i s G PA p lumme ted from 3 . 8 to 2 . 7 5 .

I n J a n u a r y , O rtega f i l ed s u i t se e k i n g a te m po ra ry res t ra i n i n g order ena b l i ng h i m to ret u r n to Sava n n a for the rema i nder of the y e a r T h e l o w e r c o u r t d e n i e d O rtega 's req uest, a n d he p ro mptly fi led a n a p pea l . "We could have asked for a t r i a l on the meri ts of the case. but we deci ded the i m po rtant t h i n g was to get Tony back in sc h o o l , " A C L U atto r n e y G a ry W i l l i a m s sa i d .

Afte r e i g h t wee ks at Weste rn, Tony returned to Savanna in A p r i l under o rder of the Co u rt of Appea ls , Fo urth A p pe l l a t e D i st r i c t . Howeve r , the c o u rt d e n ie d O rtega's req uest to be rei nstated as Dispatch editor. O rtega g raduated from Savanna i n J u n e .

A t t h e same t i m e that O rteg a won h is batt le to ret u rn to Savan na, he a l s o w o n two o t h e r v i c t o r i e s . Col u m b i a U n i ve rS ity, where h e w i l l e n ro l l th i s fa l l , awa rded h i m a Joh n Jay fe l l O W S h i p . I n add i t i o n , the American Student P ress Assoc iat ion a warded i ts h ig hest rat i ng to the i ssue of the Dispatch which spa r ked the con troversy.

" I t i s i ro n i c that they throw me out of school for ye l low j o u r n a l i s m and here I am g o i n g to C o l u m b i a , ' O rtega to l d reporters.

O rtega s t i l l awa its a fu l l decis ion on his case by the co u rt of ap pea ls , w h i c h wi l l dete r m i ne whether t he Sava n na H ig h Sc hool ad m i n istration violated his r ight to free d o m of express i o n and d ue process.

W i l l i a m s a rg ued before the c o u rt that the set of reg u l at i o n s req u i r i ng p r i o r rev iew of student l i terat u re is unconst i tut ional because i t does not i nc l u d e "clear and prec i se sta n d a rds for rev iew. "

He a lso sa id the ru les we re appl ied u nconst i tut i o n a l l y beca use N ie l sen sa id he w o u l d not have a p p roved the flye r, a l t ho u g h i t cont a i n ed noth i ng l i belous, obscene or l i k e l y to cause substantial d isrupt ion of schoo l .

"There a re two q uest ions here, " W i l l i a m s sa i d . " Fi rst, is the p r ior subm iss i o n req u i rement legal at a l l ? Second, is i t legal a s a p p l i e d ? "

W i l l iams contended sc hool off ic i­a l s d isc i p l i ned O rtega i n " reta l iat ion for h is exerc ise of F i rst Amendment r i g h ts . " D u r i n g t h e d i sc i p l i n a ry p roceed i n g s , N ie lsen a n d Fra n ks mad e frequent references to past

22 F A L L 198 1 S P L C R EPO R T

confl i cts they had h a d with Ortega ove r the content of the Dispatcr.. Acco r d i n g to Ortega , N ie lsen told h i m that F ran ks had taken person a l l y h i s object i ons t o h e r act ions and i n d icated that i f O rtega a p o l og i zed to the p ri n c i p a l , she m ig h t reverse her dec i s i o n to revoke his t ranfer .

O r te g a req u e s t e d S 1 0 , 000 i n damages from the s c h o o l board to com pensate for the t i m e he had to spend at Western. The school board rej ected O rtega's req ue<;t, and now he a n d Wi l l i a m s m u s t d e c i d e whet her o r not to a m e n d the su i t pe n d i n g before the c o u rt to i nclude a req uest for damages ' ' I ' m not sure i t's worth i t , " W i l l ia m s sa i d .

Accord i n g to W i l l i a m s . t h e m a i n a i m s of the suit a re "to get the d i sc i p l i n a ry action off Tony's record a n d to get a favorable J u d i c i a l action with reg ard to sch ool c o n t rol of the pa pe r . "

Wi l l ia m s sa id h e bel ieves that al­though the school w i l l a rg u e that O rteg a's g raduat ion re n d e red the case moot, the su i t w i l l s u rv i ve even i f they d o n ' t ask for d a m a g es . " Facu l ty res p o n s i b i l i ty with rega r d to student p u b l i cations is an i ss u e that w i l l rec u r ," h e said.

" h a b i t u a l p rofa n i ty o r v u l ga r i ty , " wh i le another proh i b ited "o bscene, l i be lous or s landerous ' ex press i o n i n the p u b l i c schools ,

In i ts dec i s i o n , the a p peals court said H i nze's button was n ot "ob­scen e , b u t t h a t h i s c o n t i nued d i s p l a y of the badge const ituted "hab i t ual v u lgar i ty ' in v iolation of the ed ucation code.

I n a d issent ing o p i n ion , J udge PJ Raca n el l i said it " h as yet to be d e te r m i n e d " w h ether H i n z e ' s re­peated use of the express i o n invaded students ' and teac hers' p rivacy or t h reatened the n ormal operation of the schoo l . " U n less and u n t i l such a satisfactory showing is made, Spi ros should be ent i tled to wear h i s button without fea r of repr isal ." the j u d ge said ,

Ad d i t i o n a l l y , Racane l l i said free express i o n , w h ich is protected with in both academic and gen eral com­m u n ities by the Fi rst Amend ment. sh o u ld not be "measu red u nder a d ual sta n d a rd w i th res pect to the content of suc h exp ress i o n . "

"No m atter how distastefu l o r a n noying the offen sive expression may be, considerations of conven­t ional decency alone are not enough to s h u t off the d isse m i nat ion of i deas , " he said in his d issent.

Alth o u g h Racanel l i said there is "some merit " in e n fo rc i ng more str ingent reg u lat ions in t he school env i ron ment, "no other g roup has a g reate r stake i n the controversia l m i l ita ry draft than the h i g h school students o f today: ' . . s i nce it is th is grou p wh ich one d ay m i g h t be cal led u p o n to do batt le-and pe rhaps d i e- i n the defense of the ir co untry.

Cou rts th ey s h o u l d be cons idered mature eno ugh to express their personal vi ews i n the cont i n u i ng debate with the same degree of constitut ional protect ion as is acco rded ot hers,"

Attorneys represe n t i n g H inze have a p p e a l e d the d e c i s i o n to t h e Cal i forn ia Supreme Court. which w i l l a n noun ce early t h is fa l l whether i t w i l l hear the case.

Okl a homa Col l ege Hea r i ngs M ust Rema in Open by Law

Gove r n i ng bodies of state col leges a n d u n ivers i t ies i n O k l ahoma may not h o l d execu t i ve sessions to d is c u s s student d i s c i p l i n a ry mat­te rs , the state atto rne y general has r u l e d .

T h e r u l i n g , w h i c h was sought by E , T . D u n l a p , c h a n c e l l o r of th e O k l a h o m a State Regents f o r H i g h er Ed uc a t i o n , means that d i s c i p l i n ary hear i n g s held by the govern ing boards of O k l a h o m a state col le ges a n d u n i vers i t ies must be open to the p u b l i c u n d e r prov i s i o n s of the state O p en M eeti ng Law.

The o n l y exem p t i o n to the law, Atto r n e y Gene ral Jan Er ic Cart-

w r i g h t wrote last M ay, co ncerns student d i sc i p l i n a ry hear ings by local boards of educa t i o n .

" T h e c lear, u n a m b i g u ous state­ment of legis lat ive po l i cy , . . is that n o execut ive ses s i o n s of any k i n d , f o r any reaso n , s h a l l b e h e l d except a s e x p ressly pe r m i t ted by statute ," the ru l i n g said.

"We wo uld co n c l ude , from t h e ab sence o f exp ress aut horizati o n fo r exec ut ive ses s i o n s b y gove r n i n g b o a rds of i nst i tut io n s of h i g h e r ed ucat ion i n matters o f st u d e n t d i sc i p l i n e , that n o suc h author ity exists . "

Stude n t Press Law Cen ter Con tributors

Journalism Association Contrib utors:

American Assoc i a t i o n of Sch ools and Departme nts of

The fol lowing is a l ist of the foundat ions, co rporations, and jou rnal ism organiza t ions which have contri buted to SPLC. Without their su pport SPLC wo uld n o t exist

Foundation and Corporate Contributors

A m e r i c a n B roadcasti ng Com pany Avis R e n t - A - C a r , Inc . F i e l d F o u n d a t i o n F u n d for Tom o r row G a n n e t Newspaper Fo u n d a t i o n H a rte H a n k s M e d i a Deve l o p m ent Fou n d a t i o n L i l l i a n Boeh m Founda t i o n Los A ng e l e s T i m es M c D o n a l d ' s Corporation The N ewspa per G ui l d T h e New Y o r k T i m e s C o . Foundat ion, I n c . N o r t o n S i m o n I n c . Soc i a l R espons i b i l i ty F u n d O n i o n Creek Free P ress S ynd icate Ph i l i p L. G ra h a m F u n d The P l a y b o y Foundat ion R e p o rte rs C o m m i ttee f o r Freedom of the Press R o b e r t F , Kennedy M e m o r i a l S c r i p p s - H ow a rd Fou n d a t i o n The Tennes sean

J o u rnal ism Amer ican Society of J o u rn a l i s m School Ad m i n istra to rs Arka nsas High School P ress Associat ion Associat ion for E d u c a t i o n i n J o u rnal ism C o l u m bia Scholastic P ress Advisers Associ a t i o n Col umbia Scholast ic P ress Association Com m u n i ty College J o u r n a l i s m Associat ion F l o r i d a Scholastic Press Association I l l i n o i s Com m u n i ty C o l lege J o u rnal ism Assoc iat ion Io wa High School Press Associat ion J o u rnal ism Associat ion of Ohio Schools J o u rn a l i s m Educat ion Ass o c i a t ion K e n t u c k y High School Press Associat ion M a ryland Sc holastic P ress Advisers Associat ion M i n nesota High School P ress Associat ion Nat ional Co u n c i l of Col lege P u b l ications Advise rs N a t i o n a l Scholasti c Press Assoc iation O kl a h o ma I n te rscholast ic Press Associ a t i o n O reg on Scholastic P ress Assoc iat ion Q u i l l a nd S c ro l l Fou nd a ti o n Society f o r Col legiate J o u r n a l i sts Society of Profession a l Jo urnal ists, Sig ma Del ta C h i South Dakota H i g h S c h o o l P ress Assoc iat ion S o u t h e rn In te rsc holast ic P ress Assoc i a t i o n W i sconsin Jou rn a l i s m Teac her-Adviser Counc i l W o m e n - i n -Co m m u n i c a t i o n s . I n c ,

S P L C R E P ORT FA L L 1 98 1 23

Speaki ng Freely Students are n ot t h e o n I y o n es who can

s peak or d istri b ute i n fo rmat ion o n a

sc h oo l cam p us. Eve n teac hers and

n o n -stu dents have t h e r ig ht

of f ree exp res s i o n .

Students o ften see themselves a s eng aged i n a lonely f ignt against administrators atte m pt i ng to curta i l their First Amendment rig h ts. They a re not alone, however. In three recent deC IS ions, the U . S . D istrict Court overturned school reg ulations t h t prohibited outside g roups from d issemi nating I nformation on sch ool campuses. Administrators shou ld take note of the decis ions before enforCing any rules that might restrict the rights o f such g roups to distribute m aterials on school g rounds.

A Student U n ion is a P u b l ic Foru m

A U .S . D i strict C o u rt i n C h icago has ru led t h a t a state u n iversi ty's student u n i o n is a p u b l i c foru m , a n d t h e ref ore has " a spec ia l c o n s t i t u t i o n a l s t a t u s p roh i b i t i n g t h e state f ro m regu l a ti ng speech-re lated conduct."

I n so r u l ing, t h e court stru c k d own re g u l a t io n s at t h e U n i v e r S i t y of I l l i n o i s - C i r c l e C a m p u s t h a t p ro h i b i ted non-s t u d e n t m e m b ers of the Spart i c u s Youth L eag u e , a s tudent o r g a n i za t ion reg i s tered a t the sch ool . f rom sel l ing i t s newspaper and o t h e r p u b l ica tio n s from i ts booth in the campus' Ci rc l e Center .

Because t h e center IS a p u b l i c forum, the c o u rt sa id , the fac t t h a t a p e rson IS not a s t u d e n t . teac h e r or s ta f f m e m b e r d o e s n o t e l i m i n a te h i s o r h e r F i r s t A mendment r ights to ut i l ize t h e faC i l i ty . "Once the state has dete rm i n ed that ce rta i n F i rst Ame nd m e n t act iv i t ies a r e a p p ro p riate at a p a rt ic u l a r loca ti o n . i t may n o t a rbi t rar i ly d e C i d e tha t certa i n i n d i v i d ua ls m a y use I t S faci l i t i es wh i l e others m a y n o t . " t h e court s a i d .

T h e u n i verS i ty pol i ce arrested S Y L membe r Sa n d e r J o h n , a non -student, o n N o v . 2 2 , 1 977 . after h e refused t o stop se l l i ng the g ro u p's l i te ra t u re at Ci rc l e Center. H e wa s charged W i t h cri m i n a l trespass o n state-s u p p orted l a n d .

In A u g u s t 1 978, s t a t e cou rt J u d g e J o h n McDo n n e l l d ismi ssed t h e tres pass c h a rge. hold ing t h a t the school reg u l a t ion p ro h i b i t ing d i st r i b u tion of l i teratu re by pe rso ns w h o were not st u d e nts, teachers or stat.­members was uncons t i t u t i o n a l . He further found that the sc hoo l 's stud e n t union was a publ ic forum fo r F i rst Amend m e n t pu rposes.

By the t i m e of M c Donne l l ' s ru l i ng , the S Y L had f i l e d s u i t i n U . S . D is t r ict Court i n C h icago cha l l e n g i n g t h e reg u l a t i ons as u n co n s t i t u t i o n a l . T h e u n i ve rs i t y subseq u e n t ly a m ended i ts reg u l a t i ons to a l low non ­students to d i s tri b u t e l i tera t u r e , b u t only If they d id so

24 FALL 1 98 1 S P L C R E PORT

B y Carol A n n e B een and David Danner

on be h a l f of regi stere d s t u d e n t organizat i o n s . The u n iverSity t he n u rg ed the c o u rt to d i s m iss t h e SYL compl a i n t as moot.

J o h n a n d o t h e rs a rg u e d , howeve r . t h a t the amended reg u l ations w e re s t i l l disc r i m i n a tory. A p u b l ic fo r u m . they sa id . s h o u l d be open to a l l persons. whether or not those pe rso n s have affi l i a t i o n s With s t ude n t o rg a n iza t ions.

O n A p r i l 2. 1 980, the D i s t i c t Court ag ree d . sayi n g , " T h e i n a b i l i ty t o reach s t u d e n ts i n a b u i l d i n g which i s a t t h e cen ter of campus l i fe is a n obvious i n h i b it i on o n p rotected s peec h . "

T h e cou rt st ressed t h a t t h e u n i vers i ty may i m pose restric t i o n s on t ime , p l a c e a n d manner of s p eech in ord e r to p rotect i ts prope rty , avoid class d i sru pt ions a nd mai n ta i n order, but found that the u n i ve rs i ty 's reg u l a t i o n s went beyo n d such protec t ion a n d were therefore u n consti t u ti on a l . (Spar(Jcus Youth L ea gue v. Board o f Trus tees o f Illin ois . 502 F S u p p . 789 ( 1 980 ) ) .

Provi s i o n s Too Vag ue t o Enforce

A fede ra l d i strict court h a s ruled that t h e a rb i t ra ry appl ica tion of regulati ons w h i c h l i mi t the d i s tr i bution of info r m a t ion and the p re s e n ce of VIS i tors on school ca m p u s e s V io la tes the F i rs t Amendme n t .

T h e A u g u st 1 980 ru l i n g e ffect ive ly e l i m i na tes c erta i n p o l i c i es enforced b y the Mob i l e County , A la . . scho ol d i s tr ict , which a l l o w ed school board m e mb ers to d istri b u t e i nformation o n a p roposed pol icy chang e but d e n i ed rep resentat i ves of a teachers a SS O C i a t ion the s a m e o p portu n i ty .

Th e school d i stnct's p osi t ion was cha l l e n ged by t h e M o b i l e C o u n t y E d u c a t i o n A S S O C i a t i o n . Represe n t a t ives of the aSSOC i a tion soug h t to meet w i th t ea c h e rs at school a n d distri b u t e l ite r a t u re on school g rounds ex p l a i n i n g their OPPO S i t i o n to a p ro p o s e d d i s t r i c t p l a n . S c h oo l a d m i n i s t ra to rs. however. re fused to a ra n t the associat ion a c c ess to distnct s c h o o l s . Desp i te t h e i r s tand a g a i nst the teachers' g ro u p . ad m i n i s t r a to rs al lowed two school boa rd m e m bers to d istri b u t e l e t te rs to the fa c u l ty that exp la i ned the board's p os i t i o n on the pro posed plan.

T h e c o u rt l ate r u p h e l d the right of a school ad m i n i s t ra t i o n to esta b l i s h p r ior submission rul es that

req u i red l i teratu re a n d/or v is i tors to rece ive a p p roval befo re b e i n g a l l o wed o n s c h o o l g ro u n d s . The p ro b l e m i n M o b i le County, as the cou rt saw i t , was that t h e r u l es set u p by t h e sc ho ol d ist rict were va gue and i n c o n s i s te n t l y a p p l i e d . U nder the M o b i le C o u nty reg u l a t i o n s , mater ia l was s u bject to pr ior review if i t f i t u nd e r cate g o ries o f " po l it i c a l or sectar ia n " or "specia l i n terest" m a tte r . Addi t ion a l l y , visi tors who " i n te r pret , sel l , a n d/ o r p ro m ote prod ucts or services" were a/so req u i red to g a i n ad m i n i strat ive approval be fore ente r i n g school g rou n d s . I n i ts fi n d i n g of fact , the c o u rt w rote that i n d iv i d ua l sc hoo l pri n c i pa l s had not inte r p reted the ca tego r i e s i n the same m a n n e r , with the res u l t that the treatm e n t o f various org a n izat i o n s d i ffered f ro m s c h ool t o s c h oo l wit h i n t h e d i str ict .

T h e c o u r t a c k n o w l e d g e d t h a t s u b s t a n t i a l i n te rf erence with the ed ucat io n a l process is i n d eed a bas i s for restr ict ing F i rst A m endment freed o m s , but said t h a t th ese goals may be acc ompl i s hed by means less i n tru sive o n F i rst A m e n d me n t r ig hts t h a n the M o b i l e C o u n t y p o l i c i e s . The c o u rt p a r t i c u l a r l y objected t o t h e cou nty d istr ict 's vag ue a n d ove r b road ru les and the l a c k of standards to g u i de the exerc ise of d i s c ret i o n by adm i n istrators .

Upon f i n d i n g t h e d i str ict reg u lat ions in v i o l a t i o n of the F i rst a n d Fou rtee n t h A m e n d m ents , t h e c o u rt p ro h i b i ted t h e i r f u rther a p p l icat ion o r enforcement . (Hall v . B oard of School Commissioners, 496 F. S u p p. 697 ( 1 9 80) ) .

Tinker Appl ies to Tea chers, Too

I t is n o t u n u s u a l for stu d e n t s to run i n to tro u b le for d ist r i b u t i n g u n a u tho rized l i tera t u re o n c a m p u s . B u t i n Chicago i t was a teachers ' organ izat i o n that ran afo u l of t h e l o c a l boa rd of ed ucat ion f o r d i s p e n s i n g in format i o n .

S u b s t i t u t es U n i te d f o r Better S c h o o l s i s a n orga n iz a t i o n o f C h icago p u b l i c school te achers that pub l ishes a n e wspaper c a l l e d Su bstanc e . When the g rou p atte m pt ed to se l l its newspaper o n school cam p uses , h o wever, i t wa s con fronted with a B o a rd of Ed uca t i o n ru le that state d : "No c i rc u l a r . , . s h a l l be c i rcu l ated a m o n g the teac hers u n less the same relates to the Teac hers ' Pens ion Fu n d , or to a n a ti on a l , state or local o r g a n izat ion of p u b l i c school teachers , u n l e ss the same has been a p p roved by the general s u pe r i n te n d e n t of sch o o l s . "

T h e s u pe r i nte n d e n t o r ig i n a l l y interpreted t h e ru le to prec l u d e the o rgan iza t i o n 's news paper . B u t after S U B S f i l e d s u i t in U S . D i s t r ict Co u rt cha l le n g i n g the reg u la t i o n s , t h e school b o a rd con ced ed the g ro u p could d i s t r i b u t e its paper , a l though t h e board said S U B S c o u l d n ot c h arge for i t .

The D i s t r i c t Court did n o t a g ree. C i t i n g the 1 969 case o f T i n k e r v. D e s M o in e s I n d e p e n d e n t Community Sch ool Dis tric t , wh ich he ld that " [ n ei th er ] stud e n t s ( n or ] teac he rs shed their c o n s t i t u t i o n a l r ights t o free d o m of s p e e c h or express io n at the schoo l h o u s e gate , " the c o u rt said the teach e rs h ave every r i g h t to se l l the i r paper in a n o n - d i s r u p t ive manner .

Bec a u s e sel l i n g the pape r is no m o re d i s r u pt ive than g i v i n g it away, the c o u rt said the school board could not le ga l l y pro h i b i t s u c h activity. (Substitu tes v. Roeder, 496 F. S u p p . 1 0 1 7 ( 1 90 1 ) )

, I P�j nceton .Ac�ess Ca�e

I PitS Constitution Aga i n st I N ew Jersey Counterpart I r j

I

!

EDI TOR'S NO TE: Follo wing an appeal from the New Jersey Supreme Court, the U. S. Supreme Court has agreed to hear the case of Princeton University v. Schmid (see SPL C Report, Spring 1 98 1 ). A t issue in the case is the extent to which a private university may limit freedom of expression on its campus. Below, Barton G ellman, a former editor of SPLC Report and presently a senior at Princeton and editor of the Daily Princetonian, otters his thoughts on the case.

By Barton Gellman

Tang le-ha i red and sl ight ly w ild-loo k i ng , C h ris Schmid arrived at the Pri nceton U niversity campus i n April 1 978 and began distr ibuting leaflets. Few paid much attention to h is earnest Labor Party l i terature, and fewer were there to see it when Princeton Borough Pol ice-at the u n iversity's request-arrested Sch mid and charged h i m with trespassing. Practical ly nobody a t a l l watched i n m u n icipal court as Sch mid was convicted a n d fi ned 5 1 5 , plus $ 1 0 co u rt costs.

But Schmid's once-routine case of trespass has long s i n c e become more t h a n that. T h i s fa l l , with Constitution-watchers payi ng very cl ose attention , Prin ceton University v. Schmid will be argued before the hig hest co u rt in the land.

The case comes to the U.S. Su preme Court via New Jersey's highest court, which held last fall that Princeton-though it is a private u n i versity-may not ban stran gers from leafleting on ca mpus. That ru l ing was based on the state constitut ion, not its federal counterpart. Sc h m id 's lawyers were p robably a bit surprised at th is , s ince they had spent most of their efforts arguing on federal F irst Amendment grounds. But Pri nceton has First A mendment arg u ments of its own , and n ow the u n iversity is saying that if the New Jersey Constitution real ly says what the state Su preme Court says it says, then the New Jersey Constitution i s itsel f, wel l , unconstitut ional .

A li of which tends to make my head spi n . S ustained tho ught on this legal and phi loso phical brouhaha only con fuses me, and I usua l ly wind up d istracted by some irrel evancy. As i n : Chr is Schmid is a cran k . He is that, u ndou btedly. The leaflets he was se l l ing o n the day of h is ar rest, if I remem ber co rrectly, accused R ichard Fal k ( a prom inent leftist professor) and Bert rand Russel l (who is long since dead) with co mpl ic ity i n a C I A­sponsored plot to rule the world. Someth i n g l i ke that.

Of course , free expression is for cra n ks as we l l as main stream pol i tical p h i l oso phers-and, i n fact, cranks have done altogether more for the co nstruc tive evolut ion of constitut ional law than the ma i ns treamers. For exa m ple, it was J.M. Near, the chur l ish p u b l isher of a M i n nesota sca ndal sheet, who in Near v. Minnesota got the S u preme Cou rt to rid the nation of pr ior restraint on pub licat ion .

Problem is , for me at least, the Pri nceto n case isn't q u i te so s imp le.

I ' l l begin at the beg i n n i ng: the First Amend ment. As

continued on next page

S P L C R EP O R T FA L L 1 98 1 25

• eve ry civICS student knows, It beg ins with "Congress shall pass no law abridging . . . . ·, The reference to " Congress" applies also to other govern menta l bodies. but It does not ord i n a ri ly apply to private Citizens or prtvate orga n i zati ons . So if Chns Schmid wa nts to sell leaf lets in my l iving room or my backgammon club, and I throw him o ut , the S upreme Cou rt IS not gO i n g to concem itself,

But. There's always a but In certa i n cases, a private organ izat io n can g row so large anc exe" so m uch Influence on an in divi dual that the courts Wil l treat the organization l i k e a government. ThiS doctri ne dates bac k to the "co m pa ny towns" of the g re a t m i n i n g conglomera tes. These were towns owned-lock, stock a nd street s ig n- by an Individual co mpany , and popu lated e n tirely by em ploy­ees of that company The S up re m e C o u r t h e l d t h a t reS idents o f company towns could make sp eec hes or hand ou t leaflets free ly, even thoug h a l l the land was company property.

Sch m id 's lawyers th ou g h t their best c h a nce was to arg u e that Pri nceton Un iversi ty IS l i ke a c o m p a n y t o w n , i n t h a t students l ive, wo rk, e a t and sleep l a rgely on c amp us . The N ew J ersey S u preme Court d isagreed , pOin ting out that the campus a buts publ ic parks and sho ps and i s cut by publ ic streets.

This is where the N ew Jersey Constitut ion comes In. Its free expression provi sions (Article I ) , un l i ke the federa l F i rst Amend m e n t , g ran ts an affirma­five rig h t to free expressi on. The First Amend ment is more expl ic i t ly a nega tive prohibi t ion. That is , New Je rsey grants the rig ht whi le t h e fed era l Constitut ion just says t h e government can't take I t away.

Th iS f ine d is ti nct ion was the baSIS for the N ew Jersey high cou rt's ru l ing . S i nce th e state constit ut ion lets Schm id " freely speak, write and publ ish h is sen tim ents on a l l subjec ts , " the state S u preme Co u rt held (ha t a property owner l ike Pri nceton can be forced I n some circumstances to obl ige tha t rig h t .

Princeto n d isagrees. So the main q u estion to be deCided by the U . S ,

Su preme C o u rt is whether t h e N e w Jersey Const i tut ion can grant Chri s Schmid more fights than the U.S, Constitutio n , More precisely, since the New J e rsey court is the highest authority on what the New Jersey Const i tutio n means. the U.S. Supreme Court has to decide whet her the state constitution IS in confl ict with the federal Constitution.

There are two main precedents In the case. and they point In two d i fferent d i rect ions .

The fi rst. Prune Yard Shoppmg Center v. Robms . 15 on Schmi d 's Side. In that case. the Cal i fornia Supreme Court had ruled that the Ca l i fo rnia Const itution g ra n ts more free express ion rig h ts to Ind ividuals than does the federal Co n st i tution , and that those rig h ts in clude leafleting i n a pr ivate ly owned shopping center. The U.S. Sup re me Co u rt said there was nothi ng in the U.S.

26 FA LL 1 98 1 SPLC R E P O R T

Consti tut ion t o stop California from req u i ring that sort at p u b l i C a c c es s t o p f l va te pro perty. u n d e r the Circumstances,

The second precedent is more to Princeton 'S l ik ing. There had been a FlOrida law gran ting cand idates for publ ic office the righ t to reply to Criticism in the same publ ication that printed It . app lyi ng only to th e 30 days Immediately preceding an election. I n Miami Herald Publishing Co. v. Tornillo , the Su preme Co u rt struck down that law, stating that be i ng forced to print anythi ng IS a burde n on the right to free ex pressio n .

80th prece d e n t s I nvolved state d oc tn n es that expanded the free ex pression rights of i nd ividuals at the expense of large private organizations. So. is Princeton more l i k e a shoppi ng center or a newspaper?

We l l , I t 'S a l i t t l e b I t l i ke both. It is l i k e a S h o p p i n g center. j u s t as S c h m i d ' S lawye rs argue. because it is an "open " cam p u s , That is . P r inceton wa n t s to perm i t publ ic a ccess for some pu rposes-strol l i n g, a t t end i ng lect u res- bu t not a l ways for others, l i k e lea flet­I ng . I t IS a lso l i k e a news paper. beca use the p r i m a ry use of t h e u n iversi ty's priva te p ro per ty is preci sely the sort of free ex pression a n d associat ion t h a t t he First A m e n d m ent protec ts.

I am SUSPIC I O U S of advo­cates w h O InSist t h a t a ru l ing one way or a n o t h e r wi l l be a blow for or against the First A m e n dment. Th is is one of those cases i n which- para­dox ically-the F i rst Amend­ment a p pea rs to b e d ivided against i tself . The d i l e m ma is s i m p l e : plaus i b le arg u m ents can be con struc ted for th ree

very di fferen t co nc lusions. One. the U . S . Const itution requires Princeton to gra nt access to Schmid (as In the " company town" argument) . Two, the Constitution forbIds N ew Jersey from gra n ting him tha t access (as in Tornilld) . Three , the Constit ut ion has vert l i ttle to say about t h i S issue (as in Prune Yard) .

I ' m not a t al l ce"aln whom to root for. I admit i t is strange that in attempting to stifle expression, P rinceton asserts Fi rst Amendment g rounds. But I ca n ' t hel p bel ieVi ng that reqUiring Schm id's access to a private campus is a burden on Princeton's righ t to free aSSOCiation as a university.

Don't g et me wro ng , As a matter of po licy, I will be the first one to shout i f Princeton ever ag ain tries to stop even a crank l ike Schmid from leafleting. The u niversity has changed it access rules since this case was fi led .and outside speakers now need only to obey l im its on t ime. p lace and manner.

As a matte r of constitu t iona l law, though, my feel ings remain fixed. My only clear thought is that I wish the case had never come to thiS. Even If the high co urt finds some neat way to get out of i t without breezing past eIther Pri nceton 's or Schmid 's free expression concerns, Pri nceton U n iversity wil l go down In the textbooks as the school that tried to cla mp down on a viewpOi nt it d idn't l ike. That 's a shame, because Princeton isn't l i k e that at a l l .

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North Carolina Student Fined for Paper Heist By Betsy Kolbert

Be l ieving that the student news­paper at North Carol ina State Un i­vers ity had too much Influence over the o u tcome of student gove rnmen t elect ions. st ud en t G reg Dority de­c ided to take matters i nto his own hands.

Do rity and another s tudent wa lked oH with approxi mately 8 ,000 copies of the Technician contai ning the newspaper"s ed i tOr ial endorsements and tossed them In to the trash. Donty insisted that Since the pape rs were d i s t r i b uted free. no crime was co m m i t t ed. T h e N C S U J u d i C i a l Board d isagreed . however. and f i ned h im $1 81 .

On M o n d a y, M a rc h 23 , the Technician d istr i bu ted 1 5 ,000 copies of its election is sue, which i nc l uded cand id ates' platforms and edi torial endorsements, to distribution box es th roug hou t the campus. An anony­mous ti P led a universi ty public safety officer to apprehend Dority after he returned from depositing more than hal f the papers In a du mpster behind a local grocery.

D o r i t y s a i d t h e pa p e rs were replaced in distribution boxes by 2:30

p.m. atter he was asked to return them by pol ice. But by that t ime . then-edi tor Andrea Co le had ord e red 7 ,500 co p ies of the issue repnnted at a cost of over S700.

The rep ri nted edition. according to current ed i tor Tucker Joh nson , was identical to the onginal except for a few minor changes and was distr ibu­te d the next morning.

In the regular Wedn esday issue of the paper, which is p n n ted every other day d ur ing the sc hool year. a fro n t page story described the theft and charged that the heist was motivated by an 'al leged bet on the student govern ment campai gn." An ed ito r ia l on the I nciden t en titled " I t Ta kes a Thief'" a ppeared I n t h e same issue. Two days later, the Technician sa id in a " Note to Readers" t hat i t had done Dority a "great d i sservice" by label ing h i m a th ief before he had been tried.

DOf/ty sa id he was "shocked and stu nned" by the charge that his action was mO Hvated by gambl ing in teres ts . He termed the a l lega tions "yel low jou rna li sm " and said he I S investigat ing t h e possib i l i ty of sUing the paper {or IiceL

The reason he took the papers,

Dority said, was to express his "gen eral outrage at the se l f-perpetu­ation" of the re latio nship between the paper and the st udent government. "A gOOd many peo pJe thinl< the paper, wh ich is funded by stud ents , shouldn't editorialize abo ut elections l i k e that." he said. Although Dority maintains the Technician cont rols school election outcomes . e d i tor Johnson said. " This was the fi rst year in man y that a l l three of the cand idates endorsed by the Tech­nician were elec ted to office."

Despite beIng found g u i lty of theft and f ined by the judiCial board. Dority said he did nothing i l legal . "'There are no restrictions on tak ing papers, that's why I took them. They are d is t ri buted freely." Many peop l e take mo re than one copy of an iss ue, he sai d . "Wh en students are short of cash they sometimes ta ke a thousand copi es and sell them to a reclamation center."

The Techmcian asked the jud icial boa rd to award the paper $700 to cover the cost of reprin t i ng the issue. Ex plained editor Johnson: "Wh i le the n ewspaper was d istri bu ted free. it

S P L C R EPORT FA L L 1 98 1 27

" L i be l

Courl Rules State Not Liable •

In Suit By Betsy Kolbert

The New York State C o u rt of Claims d i s m issed in J u ly a l i b e l case b rought a g a i nst the state in 1 978 by two former State Un ivers ity of New York stu de nts. J udge Jerome H a n i f i n ru led t h a t a lt h o u g h the pai r h a d bee n l i be led b y the Pipe Dream, the s t u d e n t n e w s p a p e r a t S U N Y ­B i n g h a m t o n , the state of New York cou ld not be held responsi b l e fo r d a mages .

the pa per wa s not an agent of the state. Because the state u n ivers i ty was not in a posit ion to exercise prio r restra i n t of the Pipe Dream , it cou ld not have preve nted pub l icat ion of the letter, Hanif in said in his opin ion.

Hanif in d id ag ree with the p la int iffs t h at the lette r was defamatory , had been pr inted with m a l ice and had ca used the p la int i ffs the damages they al leged . H aley had arg ued that because refe re nce to members h i p in

the "gay com m un ity" I S not an accusat i o n of an ac t u a l cr ime or i mputat ion of " moral t u r p i t ude," the letter was not l ibelous. Add i tiona l ly, the state had argued tha t the two stud ents c o u ld not prove d amage to their trade, professio n or busin ess.

B ased on Hanif in 's o p i n ion, i t seems l i k ely that the s t u d e n ts would have been abie to c o l lect damages for l i bel had they sued the Pipe Dream i n s tead of the state.

The ru l i n g marks the f irst t i me ;

P a p e r R eac h es S ett l e m e n t C l ass i f i e d A d D i s p u te

court has add ressed the q uest ion 0 whet h e r a state can be s u e ( s uccessfu l ly f o r l ibel appeari n g i n i ,' n state u n ive rsity paper.

By Betsy Kolbert I n Dece m ber 1 977, the Pipe Dream

p r i n ted a l e t t e r t o the e d i t o r , attr ibuted to G ary Mazart and S e l mer Br ingsj o r d , w h i c h crit ic ized st udents who has used a f i re ex t i n g u i s h e r to C l a i m i n g t h at th ree c l ass i f i ed

s p ra y " T h i s f l o o r is g a y " o n advertise me nts in a cam p u s news­

dorm ito ry wal ls . "As mem bers of the pape r associated her with sexual

g ay com m u n i ty, we hope that the acts of "g ross i m mo ra l i t y" and

evident s t u p id i ty o f these pe o p l e wi l l s parked a barrage o f " h a rassing

speak fo r the gay cause , " the lette r telephone cal ls," soph omore Karen

read. Crawley sued the Un iversity of

A week after the appeara nce of the M isso u r i - C o l u m bia maneater for

letter, the Pipe Dream ac k n o w led ged l i bel and invasion of privacy .

in a ret rac t i o n that the letter was a "We blew i t , " was how man eater forgery . Despite the retrac t ion , the advise r Ph i l B ledsoe expla ined the

two s t u d e n ts f i led s u i t in J a n u ary appearance of the co mments , which

1 978. By l a be l i ng them gay, Mazart appeared in the persona l s sect ion of

and B r i n g sj ord a l leged, the letter the paper's classi fied adve rt is ing last

cau sed t h e m i r re parable d a m age. Jan uary.

Dan G o r m a n , the stud ents' attor- In the s u it , brought in late Apr i l ,

ney, sai d he ch ose to sue the state Crawley req ue sted S20,000 in actual

rather than the Pipe Dream " beca use damages and $ 1 00.000 in p u n it ive

the state of New York would be m o re damages. C rawley and the maneater l i kely to have the m oney to pay any set tled out of court for $7 ,800 in mid-

u l t i mate damages ." May

The state contended it was not a It is not yet clear who w i l l pay the

proper party in the action beca use it sett l e m e n t . W h i l e the maneater d id not d i rect or partici pate in receives no f i nancial su pport from

p u b l icat ion of the Pi pe Dre a m . I n a the un iversity, the paper is gi ven

memora n d u m of law as k i n g for university office space free of ch arge

d is m issal of the case , New York and is recog nized as the offic ial

Ass ista n t Attorney General Kath leen school paper. A l t hough the u n iver­

Haley argued that a long l i ne of cou rt s i ty was not n a med as a defendant i n

cases had fo u n d that sta t e u n iversity the sui t , the paper's legal fees were

newspape rs are fo rums p ro tected cove red by u n i v e r s i t y l i a b i l i ty

from g ove r n m e n t i n terference by the i n s u ran ce. The suit was f i led against

F A only the maneater, Crawley's lawyer irst m e n d men t. C II CI 'd b " I ' J u dge H a n if i n agreed w i t h H aley u en Ine sal , ecause can t

that the state u n iversity's rel a t i o n s h i p . be l ieve the un iversity wou,l,d be

to the paper did not make the state : I nvolved I n. anyt h i ng l i k e th i S . .

respo n s i b l e for cha rges l ev e l ed ' D I S C U S S i o n s a b o u t w h o W I."

against the paper. He ru led t h a t even ' actua l ly p i ck u p the tab are st i l l

t h o u g h t h e s tate , t h ro u g h t h e underway, B l edsoe sai d . Because of

u n ivers ity, suppl ied the pa per with the del icacy of negot i at i o n s , Bledsoe

off ice space and jan itor ial services, dec l i ned to g ive deta i l s of the arran gements u n der consid erati o n ,

2 8 FA L L 1 98 1 S PL C R E P O R T

b u t s a i d t h e maneater w i l l be res ponsib le for at least part of the S7.800 . The un iversity w i l l bear a portion of the sett lemen t.

R u les g overn ing maneater per­sonals , which general l y announce parties, poke fun at f riends or convey cryptic mes sages of affect ion, should have preve n ted the con troversial ads from appearing in the J a n . 1 2 issue. Bledsoe said. The paper's pol icy on personals h as always pro h i b ited the appea ran ce of both fi rst and last names and private phone n u m bers, he said . The paper also reserves the ri ght to reject offensive or l ibelous ads.

Accord i n g to Bledsoe, the paper ro u t i n e l y rejects t h ree or fo u r perso n a l s eac h issue. So mehow the refere nces to C rawley, which con­tained her ful l name a l o n g with insul t i n g suggestions of p romiscuity, escaped the notice of t h ose who m i ght have prevented t h e i r publ ica­tion, B l e dsoe said. The issue was the fi rst p r i n ted under the lead ersh ip of editor B ryan Burrough.

In order to prevent a re cu rrence of the incident . the maneater has added an add i t ional staff member to look over c lassi fieds and "has posted its po l icy i n the paper, not j u st i n the office.

The paper decided to sett le out of court ra ther than risk losi n g the case, Bl edsoe said. He specu lated that Crawley was wi l l ing to sett le out of c o u r t becau se "she w a s n ' t t h a t i n terested i n making $ 1 00,000. I t h i n k s h e was i n terested in tak i n g steps to ma ke s u re t h i s does n ' t h a p p e n aga i n . "

Advisers Student S u es Over Photo I n H u mor Issue

D i s m i ssed Texas Adv ise r S ett les

: Out of C o u rt with S c h oo l D i st rict U n ivers i ty of M issour i-Co l u m bia :

j ourna l i s m student L isa K u h n d i d not ' By Betsy Kolbert t h i n k the p hotog raph of her bust that I appeared i n a sati re issue of the ; When Ca lv in Baker left M i d land Campus Digest was very f u n ny. ! (Texas) H i gh School last year afte r Charg i ng that the paper's acti o n was ' 17 years as adviser to the Bulldog, it a v io lat ion of her r ight to pr ivacy, � a p peare d t h a t the h i g h school Kuhn is s u i n g the Digest's p u b l isher : ad m i n is t ra t i o n , angered by B aker's for $30 .000 i refusal to censor the school paper,

On May 1, the Digest, a privately had won the batt le to remove h i m . owned paper d istr ib uted twice a : Refus i n g t o admit defeat . h owever, week to students on three Columbia : Baker f i l ed s u it aga i nst the school col lege campuses, pu bl is hed a jok e : d i s t r i c t . r e q u e s t i n g $ 90 0 . 000 i n I s s u e c a l l e d C a m p us D is g u s t. : damages. This March, Baker and the I nstead of t he reg u l arly featu red i school d i str ict settled the case out of " Faces , " a col lect ion of c a n d i d ! court for a n und isclosed amount . snaps h ots , the Diges t ran a co l lage : Baker sa id he sett led out of co u rt of ph otos ent it led " T its and Asses . " : re l ucta nt ly , but that pe rson a l con-

A l t h o u g h K u h n 's face was crop ped i siderati ons n ecess itated the move. out of the ph oto , leavi ng o n l y her : H i s p resent j o b with an o i l company u pper to rso, she ins ists that others : takes him out of tow n ofte n , and it recog n i zed her and as a res u lt she ; wou l d have been d iH icu l t to work h is suffered "emot iona l d istress, mortif i- ! b us iness schedule around hearing catio n , h u m i l iat ion , emba rrassment . ' dates , he sa id . shame, a n d mental shock ." More i m portant ly, " Th e case has

A cco rd i n g to her l awyer, Barbara bee n awf u l l y hard on my fami ly ," Pape, K u h n was wearing a hand- Baker said . " My wife s t i l l has to teach made s h i rt when the p icture was i n that schoo l . " snapped. " I presume that's how "There w a s no do u bt w e cou l d win peo ple recogn ized her ," Pape said . our case , but they probably have

Pape said the charge of i n vasion of I t a k e n i n to acco u n t my c u rrent p nvac y consists of two parts. First , i employment . " he sa id . Baker now the D igest a p p rop riated K u h n 's � makes su bstant ia l ly more than he l i keness without her consent. Even i f : earned as a teacher. " We could have s h e c a n n o t prove t h a t o t h e r s ! won and gotten $ 1 , " he sa id . ident i f ied K u h n . Pape bel ieves her I Baker's f i rs t confl ict with the h igh c l ient c a n col lect damages becau se I school a d m i n istrat ion occu rred i n t h e Digest pr inted the controvers ia l : 1979, w h e n Bulldog editor M i ke p icture w i thout perm issio n . Seco n d , : Pearce n amed new pr in,c ipal J ac k the p i cture of h e r b u s t h e l d K u h n u p Stone " P ro fessional M isconception i n a fa l se l ight , a l leges Pape. "The ! of the Yea r" (see S p r i n g 1980 SPLC suggest ion i s ' here is someo ne who Report) . Stone d i d not t h i n k the IS not h i ng but a pai r of tits, ' ' ' she sa i d . a w a rd . a 1 5 - ye a r - o l d M i d l a n d

" At t he i n s i stence o f our l awyer, I trad i t ion , was fu n ny and removed ca n ' t ta lk about the case , " Diges t Pearce from the staff. I n res po nse to pub l isher JeH G l uc k said. Stone's mo ve , the Bulldog pr inted an

As a j o u rna l ism student, K u h n was ed itor ia l and cartoon cr i t ical of the particu larly offen ded by the photo, princi pal . Pape sa id . " I t had no news val ue and Dur ing the 1979-80 school year, was extremely sex ist . " Baker was d i smissed as Bulldog

Pape specu lated that the other adviser and barred f ro m teaching women wh ose photographs a p pear- journal ism at the schoo l . Stone ed i n " Tits and A sses" did not sue the expla ined that Baker was being Digest because the pa rody issue confi ned to teach i n g only E ng l is h i n came o u t near t h e end o f the an effo rt t o help h i m " u pg rade h is semester. M a ny students left sc hool s k i l ls . ' Baker said the ad m i n istra­short ly after the issue appeared . t ion 's cr i t ic ism of h is c lassroo m s k i l l s

The Digest m a d e o n e tentat ive was "tru m ped up . " He sa id h e oHer to sett le o ut of court, but K u h n bel ieves Stone was reta l iat ing for h is rejected the offer, accord i ng to Pape u n wi l l i n g ness to censo r the paper. "There w i l l be no out of court Baker, who holds a masters deg ree sett lemen t . " she said i n jou rna l i s m from the U n iversity of

M issou ri , refused to accept the ad m i n i s t rat ion's act ions. He f i led a co m p l a i n t With the Texas Educat ion Agency i n M arch 1980, and was awa i t i n g a decis ion when he was i nformed h i s contract fo r the 1 980-81 school year wou ld not be renewed .

Baker o nce aga i n f i led an appeal with the agency, but t h i s t i me he and attorney M i ke Mc Leaisch did not stop at the srate level , where the school board was f inal ly upheld i n both i n stances. Baker f i led su i t aga i n s t the Mid land ad m i n istrat ion i n U . S . D i str ict Court charg i ng that the school 's deciS ion to d is m iss h im was a d e n i a l of h is " ri ghts to free speech under the U nited States Constitution ."

In his or ig inal co m p la int, Baker req ues ted S500.000 in actual dam­ages a n d S400 ,000 in p u n i t i ve damages . Accord i n g to terms of the recent settlement , Baker was not al lowed to d isclose the amount he recei ved . " The offer was attractive enoug h to make us sett � out of court , " M c Lealsch said.

" Q ui te f rank ly, i t was a loss to the p u b l ic , " M cLeaisch sa i d . "Baker got a job as a l a nd man for an oi l com pany. Monetar i ly , it was the best thing that eve r ha ppened to h i m . " Baker said he learned the l i mits of h is powers as an adviser whi le getti ng h i s masters degree. " I t is i ro n i c that my gett i n g m y masters i n d i rectly led t o my term i n a t i o n as Journa l ism adviser. I learned what the law is . "

Accord ing to McLeaisc h , a n ACLU vo l u n te e r , t he B ulldog 's cu rre n t adviser is censoring the paper. "She test i f ied at heari ngs that she had the 'same ph i losophy' as the school ad m i n i strat ion , tho ugh she never me nt io ned censors h i p . But in my o p i n i o n , i t 's being ce n sored. "

B ecause of t h e " g a g ru le" on t h e case i m posed b y t h e sc hool board, Baker hes itated to ta l k about the Bulldog. "Let's j ust say I agree with M i ke ( M c Leaisch ) on the subject," he said .

M c L e a i s c h s a i d h e b e l i e v e s M id l a n d H igh students cou ld take t h e s c h o o l to c o u rt over t h e cen s o rs h i p issue i f they felt so i n c l i n e d . "The st udents just aren't i n terested enoug h o r enl ig htened enoug h to chal lenge it ," he sa id . " I wish t h ey wo u ld . I 'd love t o sue them aga i n . "

S P L C R EPO R T F A L L 1981 29

U pd ate

G a ry D i c key recou n ts '67 Fi rst Amend ment Fig ht

By Beth D ickey

Fou rteen years ago . Gary Di ckey fi led su i t agai nst the Alaba ma State Board of Education. At t h e time. a l l he rea l l y wanted was to be read mi tted to Troy State College. where he had been an editor of the student news­paper. The Tropolifan , Tod ay. more than a decade l ater , the case of Dickey v. Alabama Slate Board of Educa tion stands as a m ajor land­mark in the fight to extend First Amendment protection to col l ege pu bjjcat ions.

Co ntacte d recent ly by S PLC. Dickey said h e re mains as strong an advocate of the First A m endment today as he was when the suit f irst made head l i nes in 1 96i after h e was suspended for publishing the word "censored" in place of an ed ito ria l in the student paper. A fed era l district cou rt rul i ng reversed hiS suspension. Di ckey fears. however. that constant cries of censo rship Indicate that the student press rights he fought for are being di smantled.

" Yo u 've got to be vigi lant 10 ma in­tain your ri gh ts." he said. ''Th ey're always under attack. The pend u l u m seems t o b e swinging back t o Ihe right req uiring a more careful watch ."

Dick ey's f ight was triggered on April i, 1 967, when a blank s pace appeared on the editOrial page of The Tropolitan u n der the heading. "A L a m e n t for D r. Rose . " P r i n t ed d iagona l l y across the space was the word "Censored, "

Earlier that month. a controversy over academi c freedom had a r isen between certain members of the A labama Leg islat u re and Frank Rose. p r es i d e n t of t h e Un i v e r S i t y of A labama. The controversy pro m p ted an ed i toria l by Dickey. a member of the Troy Slate paper's editoria l board. that sympath iZed with the stand Rose had take n.

Wal lace Wai tes. student publ ica­tions adviser at Troy sta le, re fu sed to publish D ickey's editOria l , He sa id I t "might nOt meet With the approval of rhe presi dent of the colleg e. '" Dickey then presented the edi tOrial 10 the chairman of the En gl ish department, who a p proved I t and sent it back to Wa ites for publ icatio n , When Waites decli ned a second time, Dickey

appealed to col lege preSide nt Ralph Adams, who also refused Its publ ica­tion. This refusal . Adams sta ted. was made on the assumpt ion that a newspaper edi tor could not Criticize the owner of the newspaper. The term "owner. " as defined by Adams. incl uded "the governor, acting In the capacity of owner for t h e state, the state leg i Slature. and th e College Board of Tru stees. " ThIS became known In t h e case as " Adams' Ru le."

Waites I nst ructed D ickey to fi l l the vacant space on th e edi tOrial page wi t h ma t e r i a l re leased by t h e Associated Colleg ia te Press. consist­ing of re print matter from another college n ewspaper.

"On the way to the printer the news editor handed me a cl ipping. 'Raislng Dogs in North Ca rol ina.' and said Waites insisted It be used to f i l l t h e space wh ere my edi tor ia l was to have been," Dic key said. "I read the edi torial taken from a newspaper i n North Ca rolina ex plaining a program on that cam pus having to do with tra in ing dogs, I threw the edI torial out of the window as we drove along.

"When we reached the prin ters office. I Instructed the Iypesetter to set the head ing, 'A Lament for Dr. Rose'," Dickey said. "Then I told h im to l eave the rest of the space bla nk except for t h e word 'Censored' set d iagonal ly ac ross the space. I agreed to accept fu ll responsib i l i ty for any consequ ences that might ' anse. To

Dickey v. Alabama is a

iandmark in the battle to extend First Amendment rights to college publications.

my way of thinkIng, thIS was a n entirely n e w editorial, o n e that would be ample comment concerning the censorSh ip practices at Troy State as we l l as a m pl e comment concern ing the Rose dis pute."

Following Dickey's action. several g roups end orsed hiS stand with resolutions, Inc luding the Troy State chapter of the American Assoc iation of Un iverSity Professors. the student senate, a M ontg omery television station and S Igma D el ta Chi. "People I d id n 't even know began pu tting out

30 FALL 1 98 1 SPLC R E P O R T

Gary Dickey

pa mphlets for or aga inst the issue, " Dickey sai d .

" When The iropolitan sta H found its freedom th reatened last year, the newspaper moved ott campus and publ ished Independently (see SPLC Report, Winter 1981 ) . Th e University then added more students to the Board of Slucent Publications and The Tropolitan moved back. In 1 967. nobody thought about becoming an I ndependent newspaper. Our only al ternative was to mimeograph hand­outs." DiC key said.

That su mmer, D ickey received a routine admiSSions statement from the col lege stating he had been read mitted for the fall quarter, On Aug. 1 1 . however, he received a registered letter stating that the Student Affai rs Committee had met and deCided that he should not be readm itted on the grounds of "wil lfu l and del iberate insubordina tion,"

Six days after D ickey received the lerter. a U.S. District Co urt Judge reSCinded the committee's decision and ordered Ihe committee to give Dickey a hearing before ta k ing any disc i p l i nary action. The order was complied with. and Dickey received a h eari ng before the StUdent Affairs Com m i ttee on the Troy cam pus Aug. 25, The committee voted to bar D ickey from attending Troy S tate for one year,

"We rea l ized we wou ldn't get a fair hea ring si nce the chairman at the Studen t A ffai rs Committee was also chairman of the publ ica tions board," Dickey said. " Th ls meant that the judge, jury and prosecutor were one and the same The deck was stacked

against me. We wenl before the Stude n t A Halrs Comm i t tee to build a record to use in the federa l court heanng. "

W h e n a fede r a l d i s t r i c t cou rt hea ring was held In Se ptember. Judge Fra n k M. Joh nson found that the action taken by Troy State i n d e n y i n g D i c k e y ad m i s s i o n w a s unconstitu tional .

"I remember (col lege preside n t) Adams on the stand trying to explain the pL;bl icarion pol icy . " Dic key said. " In effect I t had been wh atever he wanted i t to be at any particu lar l ime. and it c h anged at his wh i m. When Questio ned by JUdge Johnson as to what the policy was. Ada ms said. We . . . Judge. we . . . the pol icy is . . . IS very . . . I t IS nol . . . it IS nor too clea r-c u t . '"

The State a p pealed the deCISion 10 the U.S. Cou rt of Ap pea ls for Ihe 5th Circu i t in New O rlea ns. where a hean ng was hel d before a three­Judge panel headed by Chief J udge Minor Wisdom . " J udge Wisdom had a handlebar mustache and wh ite hair and looked l i ke everybody's grand­father," Dickey sa id.

"Ouring Ihe hearing, Judge Wisdom l istened i ntently as the attorney general for Alabama pounded away at the pod ium- 'Students w i l l take over and bearded hi ppies . . . '- He stopped, hiS face turned red.

" T here was tota l si lence In the counroom as Judge Wisdom looked him in the eye and said. 'Go on.'"

The Cou rt of Appeals fou n d the case to be moot Since Dickey had deCided not to re turn 10 Troy S tate. haVi ng instead en rol led at Au b urn U n i ve rs i t y . M e a n w h i l e , h e h a d received a job offer from t h e News and Courrer in Cha rleston , S.C . . and had beg u n working as a reporter. After beco ming state news ed i t o r and assista n t city ed i tor , he opted to at tend t h e U n iversity o f South Carolina COl leg e of Journal ism to complete hiS degree.

For the past ei ght years Dickey has been a free-la nce wri ter wo rk ing out of hiS home in LeXington, S.C. He recently completed a book, "Jim Hamson: His World Remem bered . " a biogra phy of a South Carol ina artist who s peCi al izes in ru ral Americana. which Wi l l be publ i shed by Amencan Masters Found a t i o n of Ho uston, Texas.

, - - _ ... - _ ._---------

' Ga ry C D'CKey . "A Case S tu(ly 01 Pot o llcal C � nso's h l p o( a Siudent Press." ( unpubl lsh­ec C on tem pora ry Un iverS i ty repo r t . Colleg e 1)1 Journa l ism. U n IverSity 01 Sou l h Carolina. 1 97 1 )

U pdate

N ew B U R ules Threaten Paper By Betsy Kolbert

Recent moves by the 80S ton UniverSity admin istration once again t h reaten publ icat IOn of the bu exposure . wh ich has ma naged to pnnt regularly despite a fund ing cut­oH lour years ago. A new university pol icy governing advertising by BU student groups may su bstantially red uce Ihe exposure 's advertising reven ues.

Ouring the last year, the university form ulated a new policy regarding advertising by student organ izations that receive u n iverSity fu nd s. The revised pol icy makes it more d ifficu l t for student gro ups to place a d s in local papers by req u iri ng that ad copy be subm i tted in advance to the Student Activities OHice for review. I t a lso restricrs ads to annou ncements of specific events.

Adam Glenn. a member of the bu exposure col lective, ex p ressed little doubt the new policy is ai med at undermining the exposure s already t i g h t fiscal S i tua t i o n . " T h e main source of our funding for the last two years has been u n ive rSity student g r o u p s , " he sa i d A t f i r s t the u n iversity l ried Simply to d iscourage student grou ps from advertising, but when this tactic fa i led. the admi nis­t ra tion re sorted to m o re d i rect methods, G lenn said.

I n March. Associate Di rector of S t u d e n t A c t i v i t i e s S teve S i ng e r refused t o release f u n d s lor a n ad placed in the exposure by a student grou p voicing support for recently arrested d raft (eg lstration res iste rs. He said he believed the ad advocated r l legal act ion . Accord i ng to the exposure. Si nger pnvately ack now­ledged that the ad did nOI rea lly urge people to resist the d raft. but said he wo uld nevertheless withhold payment

The exposure 's t roub les began in the wi nter of 1 977 , when the BU administrat ion Wi thheld 55 .572 that

had been alloca ted to t he paper. The f irst Issues of the exposure that school year conta ined several articles cntical of the BU administ ratIOn and u n i v e r S ity p resld e n l John Si lber. Dema nding that the exposure either remove any reference to BU in I tS title or submit copy in advance for admin­istrative reView, the admin isrrat ion impounded Ihe paper's funds

The newspaper's staff refused to compl y With the universlty's demands, and the bu exposure col lective f i led suit against au in SuHolk Cou nty Superior Court on Jan. 30, 1978 . Charging that the admin istration's wi t h h o l d i n g of f u n d s was " i n reta liation for the expression o f certai n views" and c onstituted a Violation of both Ihe Massachusetts and federal constitutions. the e>. ­

posure demanded the $5,572 i n unpaid a l /oca tlons.

A heanng date has not yet been set for the case. Ihough all briefs were fi led over two years ago. Glenn said the delays have been caused in part by the exposure 's second lawyer, Joh n Ma rshal/. who took over the case In 1 979 . A recent statement by the exposure reported Ihat Marsha l l is " Iess devoted" than the lawyer who o ri g i na l l y represen ted t he paper. Marshal l decl ined to com ment on the exposure 's Cri tiCism.

Addit ional ly. the un iversity's cou n­sel recent ly resigned as a result of problems with the admin istration . F urther delays. according to Glenn, are bound to ensue because a new attorney wi l l have to become fam i l iar Wi th the case. "The case could be broug h t before the court with in SIX to eigh t month s If pushed," Glenn said.

The exposure 's SUit could have far­reach i n g ramifications s ince il i s among the f irst i n which students a t a pnvate un iverSi ty have raised cha rges of censo rshi p against t h e admin istra­tion . T rad itionally, the cou rts have up­held censorShip at private inst i t u ­tions.

S P L C R EP O R T F A L L 1 98 1 3 1

•

U pdate

Arizona

Student Counci l

Allowed to Ban

X- rated Fi lms A u n IVerSi ty student government

has the power to ban X -rated movies from a student fi l m senes. a federal court h a s ru led.

U.S. D i str ic t Court Judge Carl A. M uecke said the Execu tive Co mmit­tee of the Associated Students of Arizo n a State Un ivers i ty made a " c onte n t - n e u t ra l" decIS ion when I t passed a pol icy i n January ba n n i ng X - rated f i lms. 11 s tudents want to see those f i l ms. Mu ecke's op in ion said, they s h o u l d elect otticers who a re wi l l ing to show them .

Muecke's decision came In re­sponse to a l aWSU i t by AS U law student Mark Ba rnes, who said the action s of the student government­as wef! as an ex isting u n iversity policy against the film s-viol ated the F i rst A m e ndment.

In u p hold i n g the ban on X-ra ted m OV ies, M u ecke said the c o u r t "sho u l d not be a f i lm program d i rector" and that "part of the ed ucati o n a l p rocess consists 01 the resol u t i o n of conflicts Wi t h i n the Univers i ty commUnity , "

Barnes said h e wi l l a p peal the decision to the 9th Circ uit Court o f Appeals t h i s summer.

Pennsylvania

Adviser Found

for Town Crier A n E ng j jsh teac her at Philadel­

ph ia's G eorge Wash i ng t o n H i g h School has ass umed t h e post o f newspaper adViser, thereby ena bl i ng the Town Crier to publ ish reg u l a rly th iS fa l l . The paper has appeared o n ly twice since publ icat ion was suspended in October 1 977 , when Pnncipal Carol Wacker i m pou nded an issue co n t a i n i n g articles on b i rt h control and teenage p reg nancy,

Accord i ng t o the terms of a 1 9 79 compromise ag reed upon by s tu­dents and a d m i n i s trators at George Washing to n , t h e Town Crier was s u pposed to re s u m e p u b l i cation

under stnct adVISOry su pervis ion. Publ icat ion was sta l led, however, because no one came fo rward to act as adviser u n t i l this past spring, when Eng l i s h t e a c h e r K e n G o l d m a n accepted the posit ion.

Faculty member S teven Tepl i tl . who has been teach i n g J o u rnalism at George Washington 10r the last th ree yea rs, sa i d one of the major prob lems in f inding an adv iser for the p a per was that teachers were afra id the prinCipal " mlght look over thei r shou lders ." Teplitz said he did not take the post because he IS kept busy by h is d uties as debate coach,

Goldman, who recal ls w i th fo nd­ness his Ow n h ig h sc hool paper, said he appl ied for the pOSi t ion of adviser a t the behest of several s(ud ents. The Town Crier put out one issue under his supervision at the end of the rece nt school year.

A ltho u g h the 1 979 . agreement req u i res t he Journalism adviser to submit to the admin istrat ion only copy "which he or she has reason to bel ieve may v iolate a standard of p u b l icati on," Goldman seems to be ta k ing no chances. The adm i n istra­t ion "sc reened" the recent issue. he said. " O ne smal l cartoon regarding bUSing-It was really lIery Innocuous­was vetoed," he sa Id.

Goldman said he has not sensed any pressu re from the admin istra­tion, b ut he is clea rly try i n g to avoid the k i nd of controversy that led to the in it ia l suspen sion of the paper fou r yea rs ago. After Pn ncipal Wacker confiscated al l 5 .000 copies of the Oct 21 , 1 977 Issue, the Town Coer's ed itors fi led SUit aga inst the school i n a case t hat at tracted nat ionWide p ress coverage. Twen ty months later the parties reached a court-ordered compromise thar called for the

32 FALL 1 98 1 SPL C R E P O R T

prompt a p poi ntment of an adviser and la id down regula t ions for rev iew of copy, l imit ing the rev iew process to 72 h o u rs . The court awarded the stu d e n ts halt of t he $1 ,000 incurred In leg a l expenses.

"I j u s t don't want to jeopard ize the kids' pa per, Goldman said. " I t' s enough that we Just g o t it started. I've lea rned to play the ga me. I don't want o u r paper to be whi te b read, but I think we can f ind a happy medi u m . "

Pennsylvania

Cou rt R u les

Pu n ishment of

'Five' I nval id Afte r a 1ive yea r legal battle. the

M u h le n berg Five have been vind ica­ted. I n J ul y , the Pennsylva n ia S u p r e m e Cou rt ove rtu rned ! tI e conVIction o f the Five. who were a rres ted in 1 976 1 0 r handing out l e a f l e t s a t M u h l e n b e r g C o l l eg e p rotestIng a "ISlt t o the school by then F81 d i rector Clarence Kel ley.

In a 6-1 deCision, the court ru led that the lowe r cou rt's conViction of the F ive Violated !he Pen nsylvania Constitu tion. Justi ce Samuel ROberts stated In the majori ty opinion that because the private col lege had assem bled a publ i c a udience fo r K e l l e y ' s v iS I t. i t " c o u l d n o t . . . exercise i ts nght of p roperty td Invoke a standard less permit req u i re­ment and the state's trespass law to prevent ( the Five) from peacefu l l y prese n ti ng their poi n t of view."

The Five, members 01 a social act iv i s t g roup. were charged with

•

t res passing when t hey refused a req uest by the Al lentown pol ice to l ea v e t h e M u h l e n be r g C o l l eg e ca m p us . Afte r being fou nd g U i l ty , the F ive a ppea led the i r convic tions a l l the way to the s tate's hig hest court.

expulsion was erased from Harris' record in exchange for his Withd rawal from Co l u mbia.

Hams' refusal to back down i n the face of au thon ty b rought h im later notoriety when, as a member of the U.S. Stare Department, he s tood up to attacks leveled against him by Sen. J oseph Mc CarthY. Wh i le McCarthy's Cri ticism forced Harris to resign his post. Ha rris' responses to the senator became part oj the " See It Now" b roadcast of Edward R. M u rrow that hel ped turn the t ide against the se nator .

Donald M i les, a ttorney for the Five. told reporte rs hiS cl ients were contemplat ing f i l i ng a federa l C ivil r ights SUit aga ins t those responsible for the i r u n lawful arrest f ive yea rs ago. He added that the expense ot such a s u i t m l g h r make i t i m p ractical to bri ng the case.

New York

After 50 Years Ex-editor M ay Receive Deg ree

Reed Harns has bee n wait ing for a degree from Col umbia U niverSity s i nce 1 932, when he was forced to Withdra w a fter writing a story in the school paper c n t lca l of the u n i ver­sity's cafeteria system. Now friends of Harris are t rying to secure for h i m the degree for which he has wa i ted nearly 50 years.

In the story which prom p red the controversy. Harris ra ised q uestions of possible p rofi teeri ng within the sc hool's food service. Harris' expul­sion c a me one day after the article's appearance and res ul ted i n studen t demo nstrations and a boycott o f c l a sses u nti l H a m s a n d school officials arrived at a com promise. The

.. ,' -',7 •

. :�1�:. Ch r is H e rrl ing

I n a rec e n t l e t t e r t o S P l C . Col u m bia U n i versi ty PreS ident Mich­ael Sovern sa id an i nq U i ry In to the Harris matter Ind icated he "was many pOi nts away from his degree when he left Col u m bi a . " The Co l lege, he conti nued , " has not found a Sing le p rece d e nt for the a ward of a Col u m bia Col lege deg ree to some­one who has not completed his academ IC req U i rements. "

Fred Friendly. who IS spearhead ing the effort to obta i n a bela ted deg ree for Harris , is not ready to g i ve up, accord ing to Friendly's secretary. Friendly plans to put the matter before the C o l u m b i a U n iverS ity faculty again next year.

While the two men are not c lose friends, Friendly i s interested in Ha rris' case because F riendly, l ike Hams. was crit icized by and stood u p t o M cCa rthy. Friendly, a former CBS News president and cu rrently a member of Col u mbia's jou rnal ism fac u lty . tol d C olumbIa Spectator reporters. "Reed Ha rri s deserves his

H e rrl i n g Arrives

to Head S P L C W i t h th iS issue of the SPLC

Report, the staff b i d s farewel l to Rob Eggert and welcomes new execu tive d i rect o r C h ristopher J. H errl ing.

R o b Egge rt is leaV i n g SPLC to j o i n the staff o f t h e J effe rson Oistnct P u b l i c D e f e n d e r S e rv i c e s i n L o u isvi l l e , Kentucky. We wish h i m t h e best o f l u ck i n h i s new pos i t io n .

C h n s Herding comes t o SPLC after one year i n a private law off ice. A g raduate of the U n i vers ity of Rochester and Cathol ic U n iversity L a w School, H e rr l lng IS a m e m be r o f the New York State a n d Oistr ict o f C o l u m b i a b a rs .

U pdate degree while h e IS s t i l l acle t o a p prec i ate it . '

H a r ( l s is now c o n fi ned to a Wash t ng ton. D .C. nurStng home. Last sprt n g . he expressed h iS eagern ess to receive his degree after a five cecade delay when he told reporters. " It wo uld be absolutely wonderll.;i,"

Caltfornia

Abortion Story Gets Resu lts

When Tom Wal lace left H u r.1 ooldt State U n iverSity In Arca ta. Cal i i . for the s u m mer. he left With a fee � ,ng ot sat is fact ion.

A story he had invest igatec :or the s t u d e n t n e w s p a p e r a d d r e S S i n g secu r i ty problems at a n off-campus manne l abortory resulted i n : ight­ened secu rity at the faC i l i ty. which Wa l lace reported had been t he s i te of two I l legal abortions.

Wa l l a ce ' s report last J a n u a ry ca used an u proa r In the c:>ilege co m m u n i ty , leaving the stu d e n t reporte r standi ng a l o n e i n the center of the controversy. Wa l lace said u n i v e r s i ty p o l i c e h o u n d ea h i m througho ut the term for information th ey were u nable to u ncover in the i r own i nvestigation, a n d Wallace and one of his sources rece ived threaten­i ng notes and telephone cal ls. The press ure eve ntual ly beg a n affecting his orher actiVit ies and stratnec h i S relat ions h i ps w i t h his fr iends.

But for Wal lace, the end rest,; l t was worth the hardships. ·'Yes. thiS ,� as a l l been a hassle for me. but security has been i m proved immensely at the lab and no woman will u n necessanly (lsk h e r l i te there aga i n , " he said. " I feel I d i d my moral a n d journalistic d uty I just wanted to expese a dang erous Situation and prevent someone from dY i n g befere her tim e."

T h e work earned Wal lace a $50 awa rd from a loc a l news oape r recog niz ing h is com m u n ity reporting. He said he plans to rejoin the staH of Th e L umberJack in the fa l l when he ret u rn s to H u m b o l d t S t a te to com p l e te work on journal ism and resource planning deg rees.

T h e u n iverSIty po l ice I nvestl t;;ation into t h e a l l eged a b ort ions was d r o p p e d In A p n l a ft e r p o l i c e u n covered "no spec if ic eVl cence" that abortions had been perfo rmed at the lab. a University news release said.

S P LC R EPORT FALL 1 98 1 33

•

, Book Ban n i ng

Alabama Couple 's Efforts End in Textbook Ban By Betsy K olbert

An Alabama couple who have been a ttempting to remove severa l books trom t h e sta te school board's l ist of acce oted texts ac hieved partial s uccess after b ringing the matter to the atten tion of Gov. Fob James and U.S. Se n Jere m iah Denton.

Last October. Leo and B etty Y a m b re k a p pea r e d be fo r e the Lauderd ale Cou n ty Board of Educa­tion i n northern Alabama and sa id that the "Just ice i n Amer ica" t ext­book was "un-American ." Atte r the l ocal school boa rd decli ned to ta ke a c t i o n ag a i n s t the boo k s , the Yambreks took t h e i r com plaints to the state school board. S t a n d ing be fore the board, Leo Yambrek said a poem by activist Dick Gregory that appears In the senes consti t u ted an exa m p l e of teaching hatred. "G regory IS a racial agi tator, " Yam brek said. "Why aren't my c h i l d ren studying G eorg e Wa s h i n g t on Carve r a n d Booker T. Wa Shington?"

T he Yam breks also maintained that the "J ust ice In America" series overemphasized poverty by using the word 1 68 t imes i n the f i rst 83 pa ges .

S tate school su perintendent Wayne Teag u e asked that the series be removed from Alabama sc hool s, but i nSisted h is objections to the books were d i ffe rent from those ra i sed by the Yambrek s. Teag u e c ited as his reason "very wea k matenal" In the senes .

The Yambreks' ca m paign did not end W i th the rem oval of the " J ustice In A m erica" t ex ts. The cou ple also presented th e state board Wi th a l ist of 1 1 a ddi tional books they hoped to ba r from Alabama schools. The books had been recom mended tor p u rch ase tor the nex t school yea r by the state text book comm ittee.

Forrowmg a meeting W i th the Yambreks and members of the state school board a n d textbook co m mit­tee, A la bama Gov . Fob James cal led on the school board to rev iew once again the 1 1 obj ectionable books, ' I ' m angry," James told re porte rs. "I

don't th i n k W ithout t h e perseverance of these laymen I wou ld have re­V iewed t h ese textbooks. but my eyes have been opened."

Ja mes labeled one of the recom­mended texts, " U nfi n i Shed Jou rney," a " d amnable d is to rt ion." The boo k

Sen. Jeremiah Denton

states that by 1 970, t he Soviet Union could look back on " t remen dous acc o m p l i S h me nts" i n t ec h n ology and eco nomi cs. "Their system has fa i led m i serabl y ," Ja mes said. " I t's d i storted history and It'S a l ie ." Ja mes said anyone who reco mmended the textbook to ei g h t h - g rad ers was " ei t h e r n u ts , out Of order, or i ncredi bly stu pid."

The Yam b reks brought the ma tter to the attention not only of Gov. James. b u t also of Sen. Jerem iah De nton. Den ton met with the couple

Gov. Fob James

In Bi rmingham, a n d an aide to Denton said last spri ng t ha t the sen­ator planned ;::ersonal l y to study the couple's obJections.

In a 7-1 vote. the Al abama school board in Ma rch rej ected fou r of the 1 1 recom mended books the Yam­bre ks had dee med i nappropria te, in­c l udi ng " U n fin iShed Jou rney" a n d two books from the " Living Law" se ries. The board offic ial ly dropped the "Ju stice In America" senes from I t S roster of 2cc�pted texts.

Author Offers Free Copi es of Book Ba n ned i n Wisconsi n

By Betsy Kol bert

Author Sol Stein refused to take matters l Yi ng down when the Con­ce rned Cit izens of Mon tello atte mp­ted to ban h iS book, "The Mag ic ian , "

from thei r school d istrict i n southern WisconS i n .

I n co njunct ion w l l h D e l l Pu bliSh­Ing , Stein offe red free co pies of hiS 52.50 book to every household in the d is t rict. "The offer of free co pies of 'The Magi cian to every fam ily is intended to help t he peop le of Mo ntel lo make up thelf own m i nds, not only a bout : he boo k . but abo u t book ban ners ." S t e i n t o l d the Ma rquette County Trib une, the paper which serves Montello.

Gene Conrad, m a n ag i ng editor of the Tflbune. dec ided to place Stei n 's offer In a box on the front page of the

pa per's March 19 issu e. Expla in ing his move, Conrad sai d , " When you have an au thor and a pu blisher ma k i ng an oHer l ike that. I t 's a unique s i tuat i o n . " Conrad's personal views may a lso have had something to do with the posi t ion ing of the ad. " F ran k ly, I was publicly opposed to what was gOing on and stated th is be fore edi torial ly. I am qU ite con­ce rned about censorsh i p , espec ially over moral issues as defi ned by the Concerned Citizens," he said.

Con rad said the controversi a l book was i n sh ort supply m the area. "The book was being ju dged by a lot of people whO hadn't read i t. There was a sho nage of the book in WisconSin." According to Conrad, Stein was "not only giVing people the op portu ni ty to read h i S book , but also mak ing a sta tement about

34 F A L L 1 98 1 SPLC R EPO RT

II

censorsh i p . He had some strong opin i o n s a bout a few dec l c l ng these th i ng s for the ma ny "

By the t i me Stein's offer a p peared . ' 'The MagIcian " had a l ready been approved by a 6-1 vote of the Monte l l o School Board . B oard mem­ber Be a t r rce Weiss, whO cast the lone c lsse n t l n g vote , said t h e book " s t l m u l a tes you ngsters sex ua l l y . tel ls ,hem profa n i ty I S commo n p lace, and ,el ls th em h ow easy i t is to d o w rong and n ot be punished." Stein told the T(J b u n e t h a t t h e b o o k ' s o n l y message I S ' · the Just ice system IS more responsive to a sk i l l ed lawyer �han a g oad case. '

Del l ed itor Li nda G rey sa id the publ is h i n g com pany received over 300 responses to Ste i n 's oHer. " 1 wou l d conSider 300 respon ses out of a tota l school d istrict pop u l a t ion of five to s i x thou sa nd pretty g ood," Conrad sa id .

Attem pts to ban "The Mag ician " from sc h ool l ibra ry s helves w ere part of a larger book banning campaign waged by the Concerned C iti zens .

The school board formed a book review c o m m i t t e e l a s t y e a r i n res ponse to efforts by the Concerned C i t i z e n s to b a r t h e A m e r i c a n Heritage Dict ionary frOm d istrict sc hoo ls because of certa i n words it conta ins , This yea r, mem be rs of Concerned Citizens with d rew from the sc hool l ibrary 33 boo k s , i nc l ud ­Ing " Ca tcher in the Rye, " "The Great Gatsby" and "The Diary of Anne

Student Press Law Center executive director Rob Eggert secretary Diana Sr1aw executive commil1&e Carol Ann Hall

JDurnIlJ/�T11 ...\1S" Of OhiO SC.'')OOll

Robert K mgt\! MI,s.sOLJIr C:JJlill]� /'thlWSDiHJer A ssn

Richard JOhns Culll &- SGro11

Lil l ian Lodqe Kopenhaller N�lJonJI COU(JCII IJI COlftl99 PtJ01lcallOr.s Al1vl$e'r

legal advisory committee

CMnSlopher Pager. Esq leon Lelwl n , Esq . Alan Leliine. ESQ Michael D Sim pson. Esc Robert Trager

.. _ .. __ . __ ._------------=-------

Book Ban n i n g Frank," to assess the i r l i te rary value and check for " o b sce n i ty . " The members d id n e t re tu rn 1 1 books. among them worl(s by J udy B l ume

-:�ji , ).

, '

Author Sol S tein and " Manch i ld In the Promised Land," b u t instead gave them to the b o o k c o m m i t te e f o r re v i e w , a p rocess which has not yet been completed. Some books h ave been banned by the reView com m ittee ,

advisory board

Abraham Sass

.'Ot.Jf"JI1!m ": ;5 -Lillian S. Bell

No"ruun lIf,r: ) .;��ss .... ss" Dr. RegIS L Bell �

COJumbJ,J So.: A ,. H' ( "'ess .J CVIj.�(S Ass"

John Butler Iowa HJ9n 5.: - '.' : ' .j�E':JS A. s�r;

Ron Clemons journalism � : . : J' .Jll ..l.!S1"

James Crook r�nn�n6a "' '; A )r.: �OI)I P'�.u ..I.ssn

Kenneth DeVOl AMerican A He;.' J,'on JI $c"'OO,.s .U10 Deail"m"M� ": ' " Cui (l3usm

Wi lham D Downs. J r A(tr�(l,a� �r,;" ;''; ''COI �f"'5S ..-155";1

Tom Eveslage William O. F ,sne '

AJsn It:Jr �t:I��--i · .J.., " _'OLJU1ej'sm L .. ... DI'<II$II)"

Nancy Green Nat/oral C,jw"':; .�. C()JlllgB PU'j .�s· ':"'! .10vl!JBr�

DaVid Hackel! Aooer, F J\ � '" - � ;; ., '.fe-noT'JI

Mary Hariman 0199"" Sene � ) " : ...:: ·��s

Ray Henry P1w.s �uO"C.J·,,· - .

Co n ra d sa l e . i n c l u d i n g " H a r d Fee l i n g s" by Don Bledes, which t h e co mm it tee deemed " i nappropr i a te , "

T h e Concerned Cit izens extracted excerpts from the books they fou n d oblec tronable and ci rculated th ese excerpts throughout the comm un i ty.

"ObV iously thiS is not a good way to j udge a book," Conrad said. To show "how si l ly the whole th ing is ." Con rad chal lenged the Bib le usi ng the same tac t i cs . " I t wasn't done out of a n y disrespecr." he sai d . " I d ropped i t after the poi nt was made."

The book ban n i n g controversy ca used qU i te a st ir In Montel lo. a small dairy farming communi ty , b u t t h e sub lect n o longe r makes t h e front page. "Things were getting p re tty tense . " Con rad said . " Now the w ho le t hi ng has cooled down. We used to have deput ies a t school boa rd mee t i ngs. "

Recent school b.)a rd elect ion re s u l t s i n d i c a t e t h a t the boo k b a n n ers do not have Widespread com m u n i ty suppon . Both Bea trice Weiss , who voted against "The Magic ian, " and Conce rned C i t izen s PreSident Charles Sol te rman lost by Wide margins i n the spring school board elect ion . " It was a p redic table th ing , " Con rad sa id , " G iven t h e c h a l l e n ges agai nst Mr. S te in and the whole controversy, a lot of pe ople reacted very negative ly. I m mediately a fter t h e elections, the whole thing fel l a pa n. "

Barbara Hines Ml/Y(�"tJ Sene rtUlle P'US AC"-'S,fS As:sl'l

lOUIS Ingelhal1 Alma KadraglC

Wom�tl I n LommUI?JCaJ/(m1. IIlC Jack L.anaau

A&Dorr.,s Ce".r,"um,e I('){ f{fflfr:lOtM ot fl':t p(lJ.JJ.

Kay Lockrodge $oc;aly 01 :PICJ(fI!''''O''ili Jou'n�/I$IS Sloma D""a c .... /

C. Marsnall MatlOCk. E'mDI1, SIaM ,J'.n ASln

Kent M iddleton A . uocra'uon 10( £d,,�.'fO" ) (1 JO/JlnaJJjm

Jack Nelson Lv� .J.nq,'U T,m.,S

CharleS O'Malley CCJJuml:J/� $C"OI.t$trc P'.51 ASS"

Tom AolnlCkl Nlwon�J S�I)()/�3r,C Press A.un ASSOCI" N COJ/�Ja/' p,..,s

Morron 0 Schaap I=Jo'lrja SC"O'�.s.ljC Prus A Un

Albert ScrogginS SOllll1.rn Inta'ICftOI611lC P'/US. ,A 'un

Stan Soffin Mlc"'gan Mf.'�ChOldltlC PI!':U ,oI,:un

Bob S raake Roben fonlngham C raIg Trygsrao

Youil"l CommV(llcaflon

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