Washington State Legislature Considers Student Press Bill

February 20, 2009

The Student Press Law Center reports that the Washington State Senate has begun hearings on Senate Bill 5946 (pdf), which would grant student journalists at Washington’s public high schools and colleges greater expressive rights while simultaneously curtailing administrative review of the content of student publications, including a prohibition on punishing student media advisers in response to student content. If passed into law, the bill would also free schools from liability for content published by students.

The bill’s provisions for colleges and college students read in relevant part:

All school-sponsored media produced primarily by students at a public institution of higher education are public forums for expression by the student journalists and student editors at the particular institution. Student media, whether school-sponsored or nonschool-sponsored, are not subject to mandatory prior review by school officials…. A student media adviser may not be terminated, transferred, removed, or otherwise disciplined for refusing to suppress the protected free expression rights of student journalists…. Expression made by students in school-sponsored media is not the expression of school policy. Neither a school official nor the governing board of any public institution of higher education may be held responsible in any civil or criminal action for any expression made or published by students in school-sponsored media unless school officials or the governing board have interfered with or altered the content of the student expression.

As SPLC attorney Mike Hiestand pointed out yesterday in his testimony, the bill would essentially roll back the Supreme Court’s holding in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988), in which the Court ruled that high school administrators could regulate the content of student publications "so long as their actions are reasonably related to legitimate pedagogical concerns." While Hazelwood dealt specifically with high school student publications, the United States Court of Appeals for the Seventh Circuit’s 2005 ruling in Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc) expanded the decision to cover college publications and journalists, as well. While not binding in jurisdictions outside of the Seventh Circuit, the fact that the Supreme Court subsequently declined to grant certiorari to hear an appeal of the Seventh Circuit’s ruling has left the rights of college journalists and media advisers across the country in doubt. (FIRE filed an amicus brief urging the Court to overturn the Seventh Circuit’s ruling.)

If Senate Bill 5946 becomes law, Washington would join Arkansas, California, Colorado, Iowa, Kansas, Massachusetts and Oregon in passing legislation to overturn Hazelwood and Hosty at the state level. While FIRE does not support, endorse, or lobby for legislation, we are very familiar with the administrative abuses this bill seeks to address at the collegiate level. As I wrote last June, when discussing similar California legislation that was recently passed into law:

FIRE has seen examples of this form of de facto administrative censorship across the nation. Perhaps the most high profile abuse occurred at Kansas State University (KSU), where a newspaper advisor to the award-winning KSU Collegian was removed by university administrators after complaints about the paper’s content. The advisor’s removal sparked litigation, as two student journalists took the school to court arguing that the removal violated their First Amendment rights. Unfortunately, the Tenth Circuit Court of Appeals decided the case (Lane v. Simon, Nos. 05-3266 & 05-3284 (10th Cir. 2007)) against the students on a technicality, ruling that the student journalists lacked standing to pursue the case because they had graduated while the case was under review. FIRE joined an amicus brief with the Student Press Law Center requesting the Tenth Circuit to rehear the case, but the Tenth Circuit denied the appeal.

FIRE will monitor the progress of Senate Bill 5946 and keep Torch readers posted.