Morro Bay law update, 1998
(This was prepared for the 1998 Journalism Association of Community
Colleges Faculty Retreat by Wayne Overbeck, a professor of communications
at California State University, Fullerton, and a former communications
WHAT YOUR ADMINISTRATORS ARE READING
As noted in last year's update, college administrators in many places are claiming the right to exercise more control over the student press. Some are saying that Hazelwood v. Kuhlmeier (484 U.S. 260, 1988), the case denying First Amendment protection to most high school newspapers, also applies at the college level. Hazelwood held that a class-produced student newspaper was only a limited forum, not a full-blown First Amendment forum. Citing the similarities between many community college newspapers and the high school paper involved in the Hazelwood case, some administrators are saying they have the right to control content--or to require a faculty adviser to do so.
Where are they getting these ideas?
One answer is their own professional journals. If you want to read what a lot of administrators are reading (and to shudder a little), see "Hazelwood v. Kuhlmeier: Supreme Court Decision Does Affect College and University First Amendment Rights," by Andrew Luna, in NASPA Journal, Vol. 33, No. 4 (Summer 1996), p. 307. NASPA (the National Association of Student Personnel Administrators) is an international association whose members in 1996-97 included the vice presidents for student affairs (or equivalent) at 1,123 two- and four-year colleges and universities as well as some 6,000 other persons. The NASPA Journal is a widely read (and refereed) publication: it is safe to say that someone at almost every California community college sees it.
Luna's article makes a persuasive argument for the proposition that administrators CAN control the college press, among other student activities. The article cites not only Hazelwood but also a series of later precedent-setting court decisions that gave administrators broad latitude to control student activities. Although none of the cases cited actually allowed administrative censorship of a student newspaper, several did find Hazelwood to be applicable at the college level. One federal appellate court decision (Alabama Student Party v. Student Government Association, 867 F.2d 1344, 1989) held a student newspaper and yearbook to be learning laboratories and only limited rather than true public fora.
It would be unwise for journalism educators to ignore this NASPA
Journal article or the post-Hazelwood court decisions. A newspaper
that is a "learning laboratory" and only a limited forum is fair game for
administrative censorship under the new cases. As a result of journal articles
such as this one, a growing number of administrators now believe they have
a legal right to control the student press. Many now understand that campus
newspapers do not automatically and inherently qualify for full public
forum status. Under the law, it is possible to write policies setting up
a purely instructional laboratory publication--one that is routinely controlled
by a faculty member (or another district employee, such as the college
president). Organizations such as the Student Press Law Center may not
often mention this, but many administrators are well aware of the recent
trend for the courts to grant them broad discretion in controlling student
activities, including the student press. Given this trend, it is more important
than ever for a college newspaper staff that wants to stay free of administrative
control to establish and document its public forum status. A First Amendment
newspaper actively solicits contributions from the entire campus community
and regularly publishes letters and columns contrary to the official views
expressed in its editorials. And the paper routinely operates without control
by any government employee, including the faculty adviser: its operating
policy clearly states that the student editorial board has the final say
over content, not the adviser. If the adviser can control content, so can
higher ranking campus officials.
INSURANCE AND ADMINISTRATIVE CENSORSHIP
There has been discussion in JACC recently about the advantages and disadvantages of carrying libel insurance, something that is required of all campus newspapers in the Los Angeles Community College District. The insurance question seems directly related to the issue of freedom from administrative control.
The LACCD's mandatory-insurance rule was adopted in the aftermath of the decision to give the student press broad freedom under a board rule forbidding content control by any district employee, including the faculty adviser. The insurance requirement was motivated at least in part by the settlement of a lawsuit resulting from material published in a student publication. If the case had gone to trial, the district probably would have won--but the cost of litigation would have far exceeded the amount of the settlement. The district's thinking in requiring insurance, apparently, was that if the student press is to be free of district control, at least the district ought to protect itself by requiring student newspapers to carry insurance.
After the insurance requirement went into effect, the district paid a much larger settlement in another lawsuit based on material published in a student publication. But the insurance was useless because it excluded lawsuits by district employees such as the plaintiff in that case. (It's not uncommon for those who sue the campus media to be district employees or at least independent contractors, as was the case in the first settlement mentioned above).
When the mandatory insurance requirement was implemented about 15 years ago, there were apparently several insurance carriers willing to cover the LACCD student media for a relatively modest premium. Now there is only one company offering the required coverage--and the premium isn't modest.
Does it make sense to "go bare" by dropping the insurance? As a practical matter, there may be no choice if the premiums continue to rise. Community college districts are large enough entities to be "self-insured" for a lot of other risks; why not go bare in this area as well?
The danger inherent in dropping the insurance is the natural human reaction of administrators in this kind of situation. Somebody near the top will surely think, "well, if we can't have insurance to protect ourselves from liability for what the student media may publish, then we've got to have more control over the content."
A lot could be at stake in this discussion of libel insurance and the campus media. LACCD is a huge and therefore influential community college district. If the insurance goes away and LACCD administrators react as they might, it could trigger a significant movement away from the kind of autonomy the campus press has enjoyed since the 1960s.
PART-TIME ADVISERS AND ADMINISTRATIVE CONTROL
Another troublesome issue that has implications for the independence of the campus press is the growing trend toward the use of part-time, non-tenured faculty advisers--people who have no job security and little leverage in dealing with administrative pressures to control content.
Much has been said, on the JACC-FAC discussion group and elsewhere, about the non-retention of several well-known part-time advisers in the last year. At Saddleback College, for example, Kathleen Dorantes was not rehired as the part-time adviser of the Lariat under controversial circumstances last spring. (Her replacement, a longtime English teacher at Saddleback, quickly implemented operating procedures that several Lariat staffers saw as an attempt to impose inappropriate content controls on the paper. As the controversy grew, the metropolitan press began covering the story, reporting that dissident staffers had created an online rival paper called the Lariette. To read the underground Lariette, go to http://members.aol.com/sclariette.)
At about the same time, Jay Berman learned that he would not be rehired as the part-time co-adviser of the Canyon Call at College of the Canyons. In some respects, the events that led to his departure were similar to those at Saddleback: the Canyon Call had been unpopular with the student government, the administration and apparently certain trustees. A bootleg insert was added to several hundred copies of the Canyon Call in the fall of 1996 when the paper questioned a proposed student fee increase for expanded student union facilities. Later much of the press run of an issue was stolen, apparently in response to the paper's continuing opposition to the fee increase.
Like Dorantes at Saddleback, Berman had good credentials as a teacher
and adviser, including a long track record as a professional journalist
and ten years experience as the faculty adviser to the Daily Titan at Cal
TABLOID JOURNALISM AND PRIVACY
Perhaps there has never been a time when aggressive photojournalism was more controversial than it is in the aftermath of the death of Princess Diana. The California Supreme Court is now considering five different media-related cases, including two involving tabloid television journalism. And Congress may consider legislation that would severely curtail aggressive photojournalism--at the expense of First Amendment freedoms.
In early 1998 the California Supreme Court is reviewing lower court decisions in two cases that raise serious questions about sensationalism and ethics in television journalism, Shulman v. Group W Productions (51 C.A.4th 850, 1996) and Sanders v. ABC (52 C.A.4th 543, 1997).
The Shulman case arose after a television program showed an accident victim receiving emergency medical assistance inside a rescue helicopter. A California appellate court ruled in 1996 that the television program may have violated the accident victim's right of privacy by showing video of her undergoing the emergency medical treatment. The court said that the producers of a show called "On Scene: Emergency Response" had a right to cover the workings of an emergency medical response unit. However, the court also said that by showing medical treatment of an accident victim inside a helicopter the video crew may have invaded the victim's privacy. The court said there was a difference between showing the accident scene, which was in plain view of the public, and showing medical procedures inside the helicopter. In so ruling, the appellate court reversed a trial court decision to dismiss the victim's lawsuit against Group W and said she had a right to take her case to trial. The California Supreme Court will have to decide whether this situation involves an actionable invasion of privacy.
In 1998 the California state Supreme Court is also considering the Sanders case, in which ABC's Prime Time Live allegedly violated a telepsychic's privacy by using a hidden camera inside his workplace while he was giving advice to clients by telephone. The telepsychic, Mark Sanders, was photographed inside his partitioned cubicle by an ABC reporter who went under cover, taking a job as a telepsychic so she could obtain video for a story about the telepsychic business. A jury awarded Sanders $1.2 million in damages in 1994, but an appellate court overturned the verdict, ruling that Sanders had no reasonable expectation of privacy in his cubicle, which was not fully enclosed.
On the other hand, in 1997 a federal appellate court interpreted California privacy law to allow a television network to secretly tape a conversation between a producer and a reluctant news source on her front porch, and then use a small portion on the air. In Deteresa v. ABC (121 F.3d 460, 1997), the Ninth Circuit Court of Appeals dismissed a lawsuit against ABC by Beverly Deteresa, a flight attendant who worked the flight that carried O.J. Simpson to Chicago the night of the murders of Nicole Brown Simpson and Ron Goldman.
A week after the murders, an ABC producer went to Deteresa's condo in Irvine to ask her to appear on an ABC program and discuss the flight. She declined, but she also volunteered that she was "frustrated" to hear news reports about the flight that she knew were false. Among other things, she challenged news accounts that Simpson kept his hand in a bag of ice during the flight. After further conversation, she said she would "think about" appearing on ABC.
The producer called Deteresa the next day and again asked her to appear. When she declined, the producer told her he had recorded their conversation the previous day on her porch, and that an ABC cameraperson had videotaped them talking from a public street nearby. She hung up on the producer; later her husband called the producer and demanded that the tape not be aired.
ABC did air a five-second clip on "Day One," along with a summary of her recollections of Simpson's behavior during the flight.
The appellate court held that Deteresa had no reasonable expectation of privacy when she talked to a TV producer on her front porch, in plain view of a nearby street. The court said ABC did not violate a California law forbidding surreptitious taping of "confidential communications" because that law applies only when someone reasonably expects a conversation to be confidential. Deteresa knew she was talking to a media representative and that others could see and hear the conversation, the court pointed out. And she continued to talk to him about what she saw on the flight. Based on these facts, there was no violation of the taping law. Nor was there an actionable invasion of privacy by intrusion, the federal appellate court concluded.
To summarize, while it is clear that journalists may photograph and tape newsworthy activities that can be seen and heard in a public place, that is not necessarily true when the activity is only visible or audible in a private place where there is a reasonable expectation of privacy.
Congress, meanwhile, may consider legislation that is billed as a narrowly
tailored attempt to curb the abuses of paparazzi photographers in the aftermath
of Princess Diana's death during a high-speed attempt to evade photographers.
Sponsored by Sen. Dianne Feinstein (D-Calif.), a bill is reportedly ready
to be introduced that would make it a federal crime to persistently chase
or follow someone to obtain a picture. The sentence would be up to a year
in prison, increasing to five years if bodily harm results and 20 years
if a death occurs. The bill would also redefine trespassing to include
the use of a telephoto lens or other enhancement devices to obtain photographs
of such places as bedrooms or backyards without physically trespassing
if the photograph could not otherwise be obtained without trespassing.
This would open the way for civil lawsuits by the famous in many cases
that were never before actionable. If passed, this legislation would surely
face constitutional challenges in court.
OTHER PENDING SUPREME COURT CASES
In addition to the two tabloid television cases, the California Supreme Court is also considering three other media cases in early 1998. At no time in recent memory has the state Supreme Court had five media cases pending at the same time.
In a case called Khalid Khawar v. Globe International (51 C.A.4th 14, 1996), the state Supreme Court is expected to decide whether the neutral reportage libel defense exists in California. This defense, long recognized in some other states, sometimes protects a news organization that covers both sides of a controversial public debate.
In 1988, a California appellate court recognized neutral reportage in Stockton Newspapers v. San Joaquin Superior Court (206 C.A.3d 966, 1988). But in 1996 another California appellate court declined to follow that line of reasoning in the Khawar case. In this case, the Globe (a tabloid newspaper) republished charges made in a book on the assassination of Sen. Robert F. Kennedy, "The Senator Must Die" by Robert Morrow. Morrow claimed in his little-known book that Sirhan Sirhan, who was convicted of Kennedy's murder, did not commit the crime. Instead, Morrow claimed that Kennedy was killed by an Iranian secret agent working with the Mafia. The Globe republished a photograph from the book showing Khalid Khawar, a Bakersfield farmer in the 1990s but a Pakistani journalist at the time of the murder, standing near Kennedy shortly before the killing. The Globe identified him as the Iranian agent but did not use his name. Khawar sued for libel and won a jury verdict of $1.175 million. In upholding the verdict, the appellate court refused to accept the Globe's argument that it was merely reporting the contents of a newsworthy book about a controversial issue.
The appellate court declined to apply the neutral reportage defense, noting that Khawar was a private person while the source for the article was a book that made undocumented charges--charges that were never verified by authorities who investigated the crime. The court also noted that the Globe made no attempt to balance the story or to contact Khawar for a rebuttal.
Perhaps because the Khawar decision and the earlier Stockton decision took contradictory positions on the neutral reportage defense, the California Supreme Court has agreed to review the Khawar case.
The state Supreme Court is also considering NBC Subsidiary v. Superior
Court (49 C.A.4th 487, 1996), a case that has major implications for
public access to the courts. In this case, an appellate court held that
the press and public have a limited right to attend civil trials as well
as criminal trials, overturning a number of restrictions that had been
imposed on the press and public during a trial pitting actor Clint Eastwood
against his former lover, actress Sondra Locke. Among other restrictions
overturned by the appellate court was one requiring the courtroom to be
cleared of everyone except trial participants during every break when the
jury was not present. The California Supreme Court has set aside this appellate
court decision and agreed to issue its own ruling on the scope of the public's
right of access to civil court proceedings. Finally, the state Supreme
Court will rule on the scope of the right of publicity in California in
Polydoros v. 20th Century Fox Film (57 C.A.4th 795, 1997). In that
case, an appellate court earlier ruled that the film, "The Sandlot," did
not misappropriate the name and likeness of an old schoolmate of the film's
writer and director. Plaintiff Michael Polydoros alleged that a movie character
named Michael Polledorous was virtually identical to him, right down to
the thick eyeglasses and his style of dress. As proof, he offered a 1960s
photo of himself that was very similar to the movie character in appearance.
The state Supreme Court is expected to decide to what extent a fictitious
movie can include a character resembling a real person without liability
USEFUL BROWN ACT AMENDMENTS
The Ralph M. Brown Act, California's local government open meeting law, and the Bagley-Keene Act, the open meeting law covering state agencies, were both amended by the state legislature in 1997. Although most of the amendments were quite technical in nature, some may have significant value for community college journalists.
The Brown Act has long applied to advisory bodies created by "official acts" of governing boards, as well as to certain other advisory bodies on which a quorum (i.e., a majority) of the governing board members serve. Under 1994 Brown Act amendments, an advisory body of less than a quorum must also hold open meetings if it is a "standing committee" with "continuing subject matter jurisdiction" or a fixed meeting schedule. Under a 1997 amendment, the Brown Act also applies to bodies that are predominantly funded by a local government agency (including a community college district) to carry out a delegated function. This provision could be used to force various campus committees to hold open meetings even if they were not created by an official act of the board of trustees.
Also, the 1997 Brown Act amendments now require local government agencies to send all materials in the agenda packet, not just the agenda itself, to those who request the full packet and are willing to pay a reasonable fee for this service. The staff reports and similar items have long been public records, but local governments were not previously required to send them out routinely to members of the public.
In 1997 the Brown Act was also amended to permit government bodies to
meet by means of a telephone conference call, provided the meeting is duly
announced in advance and is conducted in a fashion that permits members
of the public to listen in. Any vote taken during such a conference call
must be a roll call vote.