SACRAMENTO, Calif.—A high school newspaper in California was disbanded after it published a front-page photo of a student burning an American flag, triggering criticism that the administration was stifling free expression.
more stories like thisShasta High School Principal Milan Woollard said the school year’s final issue of the student-run Shasta High Volcano was embarrassing.
“The paper’s done,” Woollard told the Record Searchlight newspaper of Redding. “There is not going to be a school newspaper next year.”
The Legal Satyricon
Occasionally Irreverent Thoughts on Law, Tech, and Politics by Prof. Marc J. Randazza and the Satyriconistas
-
Subscribe / Terms of Use
Subscribe to the Legal Satyricon
By Email
By RSS Feed
You must read this prior to any use of this site whatsoever.
Terms & Conditions of Use and Legal Information -
Recommended Blogs
Sexual Intelligence
Underdog Blog
Meeting the Sin Laws
TTABlog
Seattle Trademark Lawyer
Trademark Blog
Media Law
Mass. Law Blog
Patry's Copyright Law Blog
The Liberal Blogger
Contiguglia's Entertainment Law Blog
Above the Law
Adams Drafting
Althouse
Las Vegas Trademark Attorney
WindyPundit
Nobody's Business
Simple Justice
Build a Solo Practice
New York Personal Injury Law Blog
Pope Hat
Tatiana Von Tauber
QuizLaw
-
My Course Blogs
First Amendment Seminar
Entertainment Law
Copyright Law
(Fall 2007)
Trademark Law
(Fall 2007)
Sports Law
(Last Taught Summer 2007)
-
June 11, 2008 at 6:34 pm
Asshattery at work.
If the students and their faculty advisor have any balls, next year they’ll just go to an online-only format and screw the printed page. In this era of blogging, a non-school server wouldn’t be hard to set up. Check that, they don’t even need balls, just a single iota of journalistic principle.
June 11, 2008 at 8:41 pm
Unfortunately, given Doninger v. Niehoff, I don’t think they can do that either - unless they are very careful to maintain their anonymity.
Of course, the right to anonymous speech is also under attack.
June 13, 2008 at 1:00 am
Hmm… there seems to be a world of difference between an online version of an erstwhile print newspaper vs. an angry girl’s personal blog screed. Since I’ve managed to stay sober all night, let’s take on the 1st Amendment analysis in Doninger.
Relying on Wisniewski v. BOE, the court held the school properly had jurisdiction to discipline Doninger because her post “can create a foreseeable risk of substantial disruption within a school and that, in such circumstances, its off-campus character does not necessarily insulate the student from school discipline.” Doninger at 14 (citing Wisniewski). Accepting all that and in the absence of a law clerk to do more research, we turn to the distinguishing points between Doninger and my suggestion for Shasta High.
1. “The language with which Avery chose to encourage others to contact the administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the ongoing controversy.” Id. at 15. A newspaper, print or virtual, following traditional standards of journalistic ethics, would not call a school administrator a “douchebag” as Doninger did. Id. Encouraging the burning of an American flag might be construed as potentially disruptive, but reporting on the fact that this was done is simply conveying objective information.
2. “Avery’s post used the ‘at best misleading and at wors[t] false’ information.” Id. The court basically says that rumormongering about a “burgeoning controversy,” Id. at 16, triggers Lowery v. Euverard and allows the school to impose discipline. (An idea to try against JuicyCampus?) Here again, we see the difference between a newspaper adhering to traditional fact-checking and objective reporting vs. a personal blog. Any worthy newspaper will report on a “burgeoning controversy,” but they will also surely refrain to the best of their ability from letting rumors, misinformation, and outright falsehoods slip by.
3. The final, “extracurricular activities” factor is a little harder to parse. Doninger was at the time running for student government office, and her campaign was disqualified. The court held that her conduct “risked not only disruption of efforts to settle the Jamfest dispute, but also frustration of the proper operation of LMHS’s student government and undermining of the values that student government, as an extracurricular activity, is designed to promote.” Id. at 17. The Doninger court then explores Lowery, where 6 football players were properly cut from the team after signing a petition against their coach on the basis that it was incongruous for them to be playing and seeking to undermine the coach’s authority at the same time. Coming back to the Shasta Volcano, did printing the flag burning photo frustrate the proper operation of the newspaper and undermine the values it was designed to promote? I don’t think so. Further, in Lowery, the court held that there was no 1st Amendment violation in part because while the players were cut, they were not prevented from furthering their petition. Even if Shasta properly shut down the newspaper, a revived online Shasta Volcano would follow the invitation implicitly given in Lowery that allows the students to continue publishing (eg, furthering their cause).
If the Shasta students can properly distinguish Doninger, and I think they can do that in their sleep, I don’t see a reason to need to publish anonymously.
June 13, 2008 at 1:01 am
Hmm… there seems to be a world of difference between an online version of an erstwhile print newspaper vs. an angry girl’s personal blog screed. Since I’ve managed to stay sober all night, let’s take on the 1st Amendment analysis in Doninger.
Relying on Wisniewski v. BOE, the court held the school properly had jurisdiction to discipline Doninger because her post “can create a foreseeable risk of substantial disruption within a school and that, in such circumstances, its off-campus character does not necessarily insulate the student from school discipline.” Doninger at 14 (citing Wisniewski). Accepting all that and in the absence of a law clerk to do more research, we turn to the distinguishing points between Doninger and my suggestion for Shasta High.
1. “The language with which Avery chose to encourage others to contact the administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the ongoing controversy.” Id. at 15. A newspaper, print or virtual, following traditional standards of journalistic ethics, would not call a school administrator a “douchebag” as Doninger did. Id. Encouraging the burning of an American flag might be construed as potentially disruptive, but reporting on the fact that this was done is simply conveying objective information.
2. “Avery’s post used the ‘at best misleading and at wors[t] false’ information.” Id. The court basically says that rumormongering about a “burgeoning controversy,” Id. at 16, triggers Lowery v. Euverard and allows the school to impose discipline. (An idea to try against JuicyCampus?) Here again, we see the difference between a newspaper adhering to traditional fact-checking and objective reporting vs. a personal blog. Any worthy newspaper will report on a “burgeoning controversy,” but they will also surely refrain to the best of their ability from letting rumors, misinformation, and outright falsehoods slip by.
3. The final, “extracurricular activities” factor is a little harder to parse. Doninger was at the time running for student government office, and her campaign was disqualified. The court held that her conduct “risked not only disruption of efforts to settle the Jamfest dispute, but also frustration of the proper operation of LMHS’s student government and undermining of the values that student government, as an extracurricular activity, is designed to promote.” Id. at 17. The Doninger court then explores Lowery, where 6 football players were properly cut from the team after signing a petition against their coach on the basis that it was incongruous for them to be playing and seeking to undermine the coach’s authority at the same time. Coming back to the Shasta Volcano, did printing the flag burning photo frustrate the proper operation of the newspaper and undermine the values it was designed to promote? I don’t think so. Further, in Lowery, the court held that there was no 1st Amendment violation in part because while the players were cut, they were not prevented from furthering their petition. Even if Shasta properly shut down the newspaper, a revived online Shasta Volcano would follow the invitation implicitly given in Lowery that allows the students to continue publishing (eg, furthering their cause).
If the Shasta students can properly distinguish Doninger, and I think they can do that in their sleep, I don’t see a reason to need to publish anonymously.
June 13, 2008 at 1:04 am
I think your analysis is dead on.
I guess I’m just such a pessimist that I think that the Doninger standard essentially means that anything is justification for censorship now.
I believe in your position, and I love it! Lets hope that you are right.
June 13, 2008 at 1:13 am
D’oh. Might I also add that the (admittedly loose) standard in Doninger is “potentially disruptive.” Shasta’s Principal Woollard appears to have pulled the plug on the paper because the photo was “embarrassing.” Even if we accept that the photo might be embarrassing to the school (and not to any individual person, let’s not get into MySpace bullying here), are we so far gone as to conflate some fuzzy sense of embarrassment (ie, a call from the school board to the principal asking what the frak his kids are up to) with “potentially disruptive” conduct??? If so, the Fark.com headline should probably read “High school newspaper shut down because principal felt embarrassed. China surrenders.”
June 13, 2008 at 2:35 pm
The decision to shut downt the paper was foolhardy, and the school lost an incredibily valuable opportunity to seize a “teachable moment” for the students. Nonetheless there remains a problem that the school paper is NOT a public forum. See Hazelwood School Dist. v Kulmeier. The right to “free speech” in a school paper doesn’t seem to be guaranteed by the first amendment and does remain subject to the administrative decisions of the school.
The really sad part about this is not the legal positions of the parties but the message that the administration creates concerning unpopular ideas. Just my two-cents.