If Trump were elected, what could he do to change US media law and/or restrict journalism practice? That was the question I sought to answer in an October CJR piece. I recounted the former reality TV star’s numerous threats to sue the press: The Washington Post, The Daily Beast, The New York Times, The Associated Press, and so on. I noted his promises to “[bring] more libel suits” and “open up our libel laws,” and I nodded to the Committee to Protect Journalists, which had called Trump an “unprecedented threat” to press freedom.
All that was before the election. On his first full day in office, Trump said he’s in a “running war with the media,” calling journalists “the most dishonest human beings on Earth,” and his press secretary said later that day, in a briefing that featured more bad lies than one of my Sunday golf outings, that the administration would “hold the press accountable.” In recent weeks, too, Trump’s aides have said press briefings may be moved out of the White House, and Trump called BuzzFeed a “failing pile of garbage” during a press conference, in which he also called CNN “fake news.” He told 60 Minutes he’d use Twitter to “[fight] back” whenever a news outlet published “a bad story” about him. He accused the press of inciting protests and tweeted (untruthfully) that The New York Times was losing subscribers because of its “very poor and highly inaccurate coverage.” And he rejected requests to allow a press pool to accompany him to meet with Obama and congressional leaders, all before ditching his pool days later for dinner at the 21 Club. In short, Trump has the same regard for the press that my dog has for my backyard flower garden.
Journalists, scholars, lawyers, and others have all taken up these issues, and a reader recently emailed CJR about a variation on them: What about student journalists? How will they likely fare during a Trump presidency?
In some ways, student journalists will face the same challenges as professionals. First, through executive orders and the Department of Justice, Trump will be able to shape the Freedom of Information Act’s implementation and the substantive arguments the government makes in FOIA litigation. Professionals may be heavier FOIA users than students, but the burdens of any FOIA changes will fall on both groups.
Second, Trump could crack down on public affairs reporting, most likely in the national security area—if the DOJ, for example, prosecuted leakers under the Espionage Act and subpoenaed journalists to supply information. This would disparately impact professional journalists, easily the primary source of US national security reporting. But these efforts, along with Trump’s ceaseless condemnation of the press as the enemy, could create or feed an environment in which press and speech restrictions are seen as acceptable or even desirable, eroding the legal and cultural independence the press needs to play its democratic role.
The student press is especially vulnerable to that kind of erosion. In public schools at the K-12 level, it’s settled law that student journalists have lesser First Amendment protection than, say, adults in non-school settings. The 1988 case Hazelwood v. Kuhlmeier is the main reason. The Supreme Court ruled in Hazelwood that a school newspaper produced as part of a class may be regulated by administrators if three conditions are met: the regulation is neutral with regard to viewpoint, there is a reasonable educational justification for it, and there’s no policy/practice establishing the paper as a public forum for student expression, which effectively means that administrators have allowed students to make unrestricted use of the paper for journalistic and expressive purposes.
Since Hazelwood was handed down, schools have used it to legitimize all manner of press restrictions, and it’s not hard at all to imagine an administrator finding inspiration in Trump’s anti-press rhetoric—and lo, here’s a case readymade to restrict student press coverage of controversial issues.
That’s a big problem because student journalists have filled in gaps created by the traditional media’s decline, playing a vital role in meeting their communities’ news needs. Just last week, Michigan high schoolers pressed Gov. Rick Snyder about his endorsement of Betsy DeVos for education secretary. And looking back, to note a few other examples, New Jersey high schoolers once revealed serious misconduct complaints against a superintendent, and national outlets at first relied on coverage by student journalists during the Mizzou protests.
At the college level, the headache here is that as student journalists are making increasingly important contributions through their reporting (in at least four states, there are more students covering state legislatures than professionals), the federal courts are curtailing their speech and press rights. And, once again, Hazelwood is the main reason. Although it involved high school student speech, recently it has been applied to college student speech as well. Four federal appeals courts, covering 16 states, have extended Hazelwood to college campuses.
Meanwhile, the Supreme Court hasn’t clarified whether it’s proper to apply Hazelwood to college journalists, and it’s unclear how Trump’s yet-to-be-named nominee, expected to be highly conservative, will affect the vote in student-speech cases generally. On the one hand, the nominee will replace Scalia, who supported school authority in such cases, and the rest of the conservative bloc is unchanged from the court’s last student-speech case, in 2007, in which the bloc voted together. On the other hand, that case involved speech at a school-supervised event that allegedly promoted the use of illegal drugs. In a case involving speech of a higher order, there’s a chance of winning over certain justices, perhaps Roberts, whose free speech record is otherwise strong, or Alito, who wrote a concurring opinion in the 2007 case stressing that it didn’t apply to broader social or political speech. The same thinking would apply to the court’s new member, who might be reachable in the right case.
At any rate, fulfilling a community’s news needs means covering a range of public issues that might upset university administrators, and Hazelwood is a complicating factor. The case says that administrators may censor articles that “associate the school with any position other than neutrality on matters of political controversy.” That’s clearly irreconcilable with much of public affairs reporting and commentary.
But the problems don’t stop with Hazelwood. There’s another reason the student press is especially vulnerable to erosions of independence: the reporter’s privilege. A recent study I conducted with my University of Kansas colleagues Genelle Belmas and Peter Bobkowski found that most states do allow journalists to shield confidential sources and unpublished information in some circumstances, but those protections usually do not apply to student journalists—either because students don’t qualify for them, or because the qualifying criteria are unclear enough that student journalists couldn’t claim protection with any confidence.
All told, we have a student press being asked to do more with less—to produce stories that inform their communities, while hamstrung by Hazelwood and lacking privilege protections—at a time when the president talks about journalists as if they’re incarnations of Kylo Ren. That’s untenable, but what can be done?
If student journalists are to continue making significant contributions, federal courts must stop curtailing their First Amendment rights, and state legislatures need to repair damage already done by the courts. They should follow the lead of states that have enacted laws, some of them long ago, to protect student journalists by granting them rights beyond those guaranteed in Hazelwood. Right now, in fact, the Student Press Law Center campaign New Voices USA is lobbying nationwide for such legislation, and four state bills have been filed just since the start of 2017. (Disclosure: I occasionally represent student journalists through the SPLC, but I’m not involved in the New Voices campaign.)
The bills vary from state to state, but they mostly track the SPLC’s model legislation, which repudiates Hazelwood and replaces it with the standard articulated in the 1969 case Tinker v. Des Moines. It protects student expression unless it creates liability for defamation or privacy, or a “clear and present danger” of a “material and substantial disruption” of school activities. The model legislation and bills also protect public college and university students from court decisions applying Hazelwood in the higher-education context and extend speech and press rights to student journalists at private colleges and universities.
Those protections would be significant for student journalists, who don’t have it easy. They face a steep learning curve and typically don’t have the resources of their professional counterparts, either to produce news or defend themselves from legal threats. Add the reality of inferior legal protections and a president who regularly disparages the press, and you have an environment in which it’s difficult for student journalists to do their jobs—and less likely for their communities to be informed.Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.