Student Media Roundup: Student Press Tested by Subpoenas, Prior Review, Self-Censorship

Members of the student press faced challenges from state prosecutors in Illinois, a Supreme Court justice's staff in New York, and a school superintendent in Missouri in the fall of 2009. Meanwhile, student newspapers in Wisconsin and Pennsylvania refused to run certain advertisements, citing a desire to avoid controversy and fear of libel charges.

Illinois Investigators Subpoena Records of Northwestern Journalism Students

Prosecutors in Cook County, Ill., issued a subpoena for the grades, grading criteria, class syllabi, expense reports and correspondence of several journalism students at Northwestern University's Medill School for their work investigating a decades-old murder charge as part of the Medill Innocence Project.

An October 24 New York Times story reported that prosecutors working on the case of Anthony McKinney, an Illinois man convicted of murder 31 years ago and sentenced to life in prison, issued a subpoena on May 20 requesting the students' documents, saying they needed every pertinent piece of information about the three-year investigation into McKinney, whose conviction is under review.

Medill Professor David Protess' students began looking at McKinney's case in October 2003 after McKinney's brother brought it to the attention of the Medill Innocence Project. The investigation into McKinney's case involved three years and nine teams of student reporters, all of whom have since graduated. The teams eventually concluded that McKinney had been wrongly convicted, The Times reported.

The claims are being considered by Cook County Circuit Court Judge Diane Cannon, and the next hearing in the case is scheduled for Jan. 11, 2010. Although the students provided their videotaped interviews of critical witnesses and affidavits to the prosecutors, the subpoena is seeking a much broader range of documents. Prosecutors said they want to discover whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate McKinney, the October 24 Times story reported.

Sally Daly, a spokeswoman for Anita Alvarez, the Cook County state's attorney, said the prosecutors were simply trying to get to the bottom of the McKinney case. "At the end of the day, all we're seeking is the same thing these students are: justice and truth," Daly said in the October 24 Times story. "We're not trying to delve into areas of privacy or grades. ... Our position is that they've engaged in an investigative process, and without any hostility, we're seeking to get all of the information they've developed, just as detectives and investigators turn over."

In a November 10 supplemental brief filed with the court, the prosecution accused the Medill students of paying Anthony Drakes, a witness who told students in a 2004 video interview that he was at the murder scene and McKinney was not, but later recanted. According to the filing, Drakes, who the Medill investigation named as an alternative suspect in McKinney's case, said that "he let the team know he wanted money," and that the students gave a cab driver $60 to drive him a short distance. Drakes said the cab driver gave him $40 in change, and that he said he used the money to buy crack cocaine. A cab driver's handwritten log attached to the filing supported Drakes' account.

"This evidence shows that Tony Drakes gave his video statement upon the understanding that he would receive cash if he gave the answers that inculpated himself," the brief stated.

According to a November 10 New York Times story, Evan Benn, one of the students who interviewed Drakes, said he had given the cab driver $60 because the driver had estimated it would cost at least $50 to take Drakes where he wanted to go, but there was not supposed to be a payment to Drakes.

Protess also denied that students had paid witnesses. "It is so filled with factual errors that if my students had done this kind of reporting and investigating, I would give them an F," Protess said of the supplemental brief in a November 11 Associated Press (AP) story.

Prosecutors also suggest that the Medill students should be viewed as an "investigative agency," and not as reporters, whose unpublished materials might be protected under the Illinois journalist shield law, 735 Ill. Comp. Stat. 5/8-901 to 909.

Protess argued that his students should be considered journalists, and said that they did not wish to become "an arm of the government" by providing their notes and private exchanges. "It would destroy our autonomy," Protess said in the October 24 Times story. "We function with journalism standards and practices to guide our work."

Protess also said his students would not have been rewarded with better grades for witnesses that gave testimony favorable to McKinney. "My students are told to uncover the truth, wherever that leads them," he said in the October 24 Times story. In the last four years, he said, students had twice concluded that the convicts whose cases they were studying were indeed guilty.

In a November 18 interview in The Daily Northwestern, Protess said there was certain information that he would not turn over. "There are no circumstances under which I will reveal my students grades or e-mails -- to do so would violate federal privacy law," Protess said. "I will also refuse to comply with any demand to turn over unpublished information, because that would set a terrible precedent for other student journalists. We are picking up the slack because of the lack of resources nowadays to do investigative reporting."

In an August 13 motion to quash the subpoena, attorneys for Protess and the Medill School said that, in addition to the Illinois shield law, the student records were protected under the Family Educational Rights and Privacy Act, 20 U.S.C. section 1232g(b), which restricts the disclosure of student records. "[W]here courts have permitted student records to be produced, either the particular student was party to the lawsuit or there was allegations that the school had engaged in a pattern or practice of wrongdoing," the motion stated. "That is not the situation here."

In an October 22 story in Time magazine, John Lavine, the dean of the Medill School, said that the school supports Protess and will only turn over on-the-record documents and statements -- not background information or any private grades or grading criteria.

Tim McGuire, a journalism professor at Arizona State University, wrote in an October 27 post on the McGuire on Media blog that the long-term consequences of the Medill case could be significant. "The major voices and organizations in the industry need to speak out, write briefs and raise holy hell about this witch hunt by Cook County prosecutors. Every advocate for good journalism needs to see this case really matters," McGuire wrote. "Increasingly,the industry and scholarsare recognizing the crucial role these university efforts might play in the future of journalism. ... The bullies who want to hamstring great student journalism need to be stopped."

Justice Kennedy's Office Insists on Prior Review of Student Newspaper Report

When United States Supreme Court Justice Anthony Kennedy spoke at a private school in Manhattan on October 28, members of his office insisted that they be given the right to review any story before it was published in the student newspaper, The Daltonian, a November 10 story in The New York Times reported.

Kathleen Arberg, the Court's public information officer, said in The Times story that the request had been made to ensure the quotations attributed to him were accurate.

The justice's office received a draft of the proposed Daltonian article on November 9 and returned it to the newspaper the same day with "a couple of minor tweaks," and quotations were "tidied up" to better reflect the meaning the justice had intended to convey, Arberg said in the November 10 Times story.

Ellen Stein, Dalton's head of school, defended the review in the Times. "This allows student publications to be correct," she said. "I think fact checking is a good thing."

Many media sources were quick to criticize Kennedy after The Times story was published. "We're disappointed, too, withJustice Kennedy, who on bench has been a champion of the First Amendment. Why in this case heseems not to have known better than to have made such an ill-conceived request is a mystery," a November 12 editorial in The Baltimore Sun said. "It would have been better to have suffered a minor factual slip - and later written a letter to the editor to correct it - than to have trashed the nation's centuries-old tradition of a free press."

In a November 18 interview in The Wall Street Journal, Kennedy said the situation was a misunderstanding that had spiraled out of control in the media. Kennedy said he never asked to clear the copy before publication, and that the request came from a new employee in his office who misunderstood Kennedy's longtime rule for classroom visits: outside media are prohibited, but campus reporters are welcome.

"What a stupid story," said Justice Kennedy in the November 18 Journal interview, although he did not dispute the technical accuracy of The Times report. "The press loves to point out that people have double standards."

Missouri Superintendent Exerts Extra Control over Student Newspaper

The superintendent of Boonville High School in Boonville, Mo., ordered copies of the school year's first edition of The Pirate Press, Boonville High's student newspaper, pulled from distribution on October 2 because the school's principal had not reviewed the publication. A few hours later, the superintendent allowed the paper to be distributed to students, but not, as was normally done, as a monthly insert in the local paper.

Boonville Superintendent Mark Ficken requested that distribution of the papers be stopped after the school's principal, Jay Webster, called him on October 2 and said that he had not reviewed the paper before it went to press, the Boonville Daily News reported on October 2. Ficken said that under current district protocol, the principal reviews The Pirate Press before it goes to print.

On October 8, the Student Press Law Center (SPLC) reported that Ficken reversed his decision to stop delivery of the paper to the student body, but still refused to allow its distribution to the rest of the community because of controversial language and topics. Ficken told theDaily News on October 5 that the issue included what he characterized as inappropriate quotes from students about school personnel and facilities, citing three stories in particular.

Ficken specifically mentioned a story on school lunches that quoted a student as saying, "School lunch sucks!"

"I think that there's better verbiage to use," Ficken told theDaily News. He also said the story insulted employees who "work so hard and do a really, really good job."

Another story included student comments about buses. "It's ridiculous how over crammed we are. We're like pack sardines in here, sweaty sardines," a student said. Ficken said the comments were untrue and could worry parents. "Buses are not overloaded, they are safe," Ficken told theDaily News.

A third story, titled "Far From Straight," described students' attitudes toward homosexuals, and included a student quote calling gay people "freaks." Ficken said such comments "can be disruptive to the educational process," and that the stories could cause fighting or gossiping.

Ficken told the Daily News that the school would continue to publish the student newspaper, but that the publication would not be allowed to include inappropriate language or belittling of staff. "I'm not going to stand for that," Ficken said.

In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme Court of the United States ruled that "educators do not offend theFirst Amendmentby exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

Frank LoMonte, the executive director of the SPLC, told theDaily News on October 5 that under the Kuhlmeier standard, Ficken is constitutionally permitted to remove some material from the school paper. "What's worrisome is the idea that material that's simply critical of the school could be cited as grounds for withholding the paper," LoMonte said.

University of Wisconsin-Oshkosh and Stevens Point Newspapers Reject Abortion Opponent's Ad

University of Wisconsin student newspapers at campuses in Oshkosh and Stevens Point both rejected an anti-abortion advertisement in September 2009, the University of Wisconsin Badger Herald reported on September 24.

TheUW-Oshkosh Advance-Titanand The Pointer of UW-Stevens Point rejected a 12-page insert created by theHuman Life Alliance. According to an October 5 AP story, the insert contains information about abortion, its side effects, contraception, prenatal development, and adoption.

"(The decision) actually had nothing to do with the content that was in there; I sat down with my advisor and advertising manager and we discussed it," Andrew Munger, editor in chief of theAdvance-Titan,said, according to The Badger Herald.

According to The Badger Herald, Jacob Mathias, the editor in chief of The Pointer, also said they refused to run the advertisement to avoid controversy.

The decision to refuse the insert was not taken lightly, said Vince Filak, the Advance-Titan's faculty advisor, in an October 4 story in The Oshkosh Northwestern. "[The Advance-Titan staff] knew full well if they didn't accept the ad that something like this could happen," Filak said, referring to the protests by anti-abortion groups. "They also knew if they had accepted the ad, people on the other side of the argument would be upset. It was the perfect Catch-22, there wasn't anything they could have done to completely avoid a problem entirely."

The Human Life Alliance issued a press release on October 7 saying that The Pointer had told the organization that they had "a policy against advertising topics which have a tendency to cause conflict, shame or controversy among the student body." The press release also said the Advance-Titan told the group that, "While we don't necessarily disagree with the message that you wish to promote, some of our readers might, and we don't want to alienate our readership by appearing to choose sides in such a controversial argument."

"I guess these two editors have decided for their entire university what other students need to know - so much for free speech and academic freedom," said Jo Tolck, the executive director of the Human Life Alliance, in the October 7 statement.

The group said in its October 7 statement that the advertisement had previously been accepted by college papers at Marquette University, and University of Wisconsin student papers at campuses in Eau Claire, La Crosse, Whitewater, Milwaukee, and Madison.

"Either they are ideologically opposed to the pro-life message or too scared to run anything controversial. Whichever, it is insulting to the intelligence of college students." said Virginia Zignego, the communications director of Pro-Life Wisconsin in the October 7 statement.

According to the SPLC's Student Media Guide to Advertising Law, available online at, the right of students at a public school to reject advertising is protected as long as the students, and not public school officials, make the advertising decisions. The SPLC guide cites cases such as Leeds v. Meltz, 85 F.3d 51 (2d Cir. 1996), which determined that student editors at public schools are not "state actors" and therefore have the right to reject advertisements.

Bucknell University Student Newspaper Refuses Ad Criticizing School

A September 23 story from the SPLC reported that The Bucknellian, the student newspaper at Bucknell University in Lewisburg, Pa., rejected an advertisement in early September from The Foundation for Individual Rights in Education (FIRE) that criticized the university, citing libel concerns.

Adam Kissel, director of FIRE's Individual Rights Defense Program, dismissed the paper's claim that the ad was potentially libelous, saying its claims were clearly opinion. "If third parties cannot even criticize the university in an ad in the student newspaper, free speech is in dire straits at Bucknell," Kissel said, according to the SPLC.

BucknellianEditor-in-Chief Lenore Flower said she thought the advertisement was inappropriate and would reflect poorly on the newspaper, according to the SPLC. She said she advised FIRE to change the wording of their advertisement or to write a letter to the editor, a format that Flower said was more appropriate for opinionated content.

According to the SPLC, the rejected ad criticized the school's decision to shut down demonstrations by the Bucknell University Conservatives Club and specifically named Associate Dean of Students Gerald Commerford as one of the administrators responsible for shutting down the demonstrations.

"First, Dean Commerford silenced the conservative club's expression. Now, even the student newspaper is afraid to print a perfectly lawful third-party ad about it," Kissel said in a September 21 press release.

The SPLC reported that The Bucknellianran an article on the event in the spring that presented arguments from both Commerford and students. "I think if FIRE had read the article themselves, they would have been pleasantly surprised," Flower said, adding that the article showsBucknellianreporters are not afraid of their administration.

According to the SPLC's Student Media Guide to Advertising Law, the right of a private school, such as Bucknell, to reject advertising is "virtually absolute." The SPLC's guide cites cases such as Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), in stating that the "First Amendment does not require the commercial print media to carry any advertisement they do not wish to publish," a concept that applies to both editorial advertising and commercial advertising.

- Jacob Parsley

Silha Fellow and Bulletin Editor



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