NEFAC Testimony in Support of Vermont Legislation Protecting Student Journalists

Michael Donoghue, first vice president of the New England First Amendment Coalition and a former reporter for the Burlington Free Press, testified April 4 on behalf of NEFAC and the Vermont Press Association in favor of legislation protecting student journalists in the state. The legislation can be read here. Below are his planned remarks.

Thank you Chairman (David) Sharpe and members of the House Education Committee for the invitation to speak here today about S.18 — an act to ensure Vermont students have the same freedom of expression as other Vermonters.

My name is Mike Donoghue of South Burlington. I was a longtime news and sports writer with the Burlington Free Press. I also have been associated with St. Michael’s College Journalism Department for over 30 years, including as a teacher of Media Law and Ethics. I also co-advised the award-winning student newspaper, The Defender, for several years. I serve as the elected vice president of the New England First Amendment Coalition. And in my spare time I help run the Vermont Press Association (VPA), which consists of the 11 daily and four dozen non-daily printed newspapers circulating in Vermont.

The VPA and NEFAC are among the groups that have been asked to help support the passage of this important legislation in Vermont. There are other groups, including the Student Press Law Center, that stand ready to provide expert legal testimony in a larger context at some point if you are interested.

We understand time is short today, but there are some Vermont students and/or advisers from high schools interested in providing testimony when there is more time. We do have one Burlington High School student here today to talk first-hand about censorship. The others are willing to come from their high schools, including those in Bristol, St. Albans and Woodstock.

The Vermont legislation would  protect student journalists against retaliation for writing articles that address controversial political issues. The bill also protects retaliation against teachers for articles written by students. The law would not be a blank check. Rather, Vermont would bring the legal protection of journalistic speech in line with all other student speech in the school, meaning that anything that a school could prevent from being displayed on a T-shirt or a baseball cap could still be prohibited on an editorial page. 

There is more and more interest on a national level to seek passage of this legislation in many states, especially in light of certain current events. We want our students to be curious. To ask tough questions. Not to accept everything as truth without some confirmation. 

This legislation was sparked in part by a U.S. Supreme Court decision that by all accounts went against common sense. But let me back up because it is one of two main Supreme Court decisions that center on freedom of expression by students.

The 1969 Tinker decision centered on the Des Moines Independent Community School District suspending three teenagers because they wore black armbands to high school as a silent protest against the Vietnam War. The principals had heard about the pending protest and hurriedly adopted a rule against wearing armbands at all schools. The three students were suspended from their high school. The U.S. Supreme Court ruled overwhelmingly in favor of the Tinkers (a brother and sister and a third student) and said in part:   

“It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”

The court noted the three students did nothing to disrupt the educational process. It was a pretty clear decision — a 7-2 ruling — and it became the law of the land.

However the Hazelwood decision in 1988 turned student expression on its head. It was more than 25 years ago and people have laughed through the years at what the school principal tried to censor in this case. The Spectrum newspaper had covered serious topics in earlier editions at Hazelwood East (a suburb of St. Louis). But the high school principal objected to two pages in the student newspaper featuring news stories about common concerns of teens. In one story, three unnamed high school girls described their unwanted pregnancies and the impacts on their lives.  The other story focused on the impact divorce had on children when their parents split up. Again no names were used.

Those two topics are major social issues that high school students have long talked about in the school cafeteria, in pizza shops and elsewhere — whenever and wherever kids get together. Students even discuss social issues in high school classes.

The justices ruled that the content censored in the Spectrum stories was less important than whether the principal’s actions were reasonable. The principal said he thought the stories might offend some readers and invade some privacy even though the students agreed to be interviewed. The principal also was concerned students might learn the identities of those girls who got pregnant.

Hazelwood was a 5-3 decision and reversed a ruling by the federal circuit court of appeals that sided with the student-journalists. Associate Justice William Brennan, on behalf of the dissenting justices, made it clear the majority was sending a terrible message. He wrote:

“The young men and women of Hazelwood East expected a civics lesson, but not the one the court teaches them today . . . Such unthinking contempt for individual rights is intolerable from any state official.”

Everybody was flabbergasted by the ruling and figured the Supreme Court would make it right with another decision. The high court has not acted, so now there is a move afoot to give students the right of expression again in Vermont and other states.

As legislative counsel explained, this bill was well-vetted in the Vermont Senate and, personally, I think has been made a little stronger for schools after some good questions and comments, including from education groups.

We have provided some information about this “New Voices” legislation. As you see in the handout 10 states have protections and more state legislatures are considering similar bills. Other states we expect will be introducing legislation.

There is often a sense among school officials that censorship is needed to stop school bullying. The reality is that school newspapers won’t tolerate bullying and are also in a position to spotlight the issue and encourage proper conduct by students, faculty and staff.

Fortunately there are no known cases of bullying caused by any Vermont high school newspapers. Nobody has displayed any newspapers — or even yearbooks, literary magazines or other publications — that have displayed bullying in recent years. The school bullying that does go on is in the classroom, lunchroom and hallway, and on social media, including Facebook and Twitter. Schools need to put protections in place in those locations — not in high school newsrooms.

The question of possible bullying in a student newspaper did come up in the Vermont Senate and was properly addressed. Two things to remember: (1) there are plenty of safety nets that remain undisturbed for schools to remove anything dangerous or legally actionable, and (2) the bill actually contains affirmative protection against legal liability. In some states the doomsday people think the sky will fall and the world will end if bills like this pass. The Student Press Law Center, which has monitored the various legislations, said there is an easy answer for those questions: just read the bill.

Also, part of the solution really falls on the individual schools to make good hires for journalism teachers or advisers. There are both professional associations and plenty of professional training opportunities available for newspaper advisers, if a school district is concerned about having quality publications.

My sister-in-law, for example, when hired as a high school teacher, was told she had her choice of advising the high school newspaper or monitoring cafeteria at lunchtime. As an English teacher she chose the monthly newspaper, but was soon regretting not picking food fights. She wasn’t prepared or trained for the newspaper role. Editors and reporters for Vermont Press Association members have always been available to speak at classes and provide assistance to schools.

This bill reserves ample authority for a school to make those judgment calls and in no way touches on off-campus social-media speech. This speech is not governed by Hazelwood anyway since that case applies only to speech using a “curricular” conduit provided by the school as part of its educational programming, which obviously Snapchat is not.

In closing, we often like to say “the children are our future.” These days  — when it’s tough to get a lot of kids interested in public policy — advocates for students think it would be smart to encourage them to write about public issues. This is one way to educate the citizens, and voters of tomorrow. We need students that can do strong research, can ask tough questions — even when it is a school official — and to present information and to properly follow up.

In this era of fake news and of turmoil in the news business, reliable sources of information are more crucial than ever. Students need to learn how to find reliable sources. We just came through a presidential campaign where it appeared that facts didn’t matter. In a democracy, that’s a death sentence. The whole principle of our democracy is that an informed citizen will make a good decision. We have to make it easier for citizens — including students — to be informed, or we may reach a tipping point where we simply don’t have informed citizens and the public’s decisions will get worse and worse. I think we’re at a dangerous point in the survival of our democracy.

We hope this has helped to set the table about what is needed to ensure our future leaders have the right of freedom of expression now. This freedom is critical so they can be better prepared to sit in town halls — and even in your seats here — in future decades and ask all the tough and right questions.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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