The views expressed in this article do not constitute legal advice. For legal help with scholastic journalism, please reach out to the SPLC directly here.
After over 30 years with the Student Press Law Center, Senior Legal Counsel Mike Hiestand still calls it his “dream job.” He sees teaching about and defending the First Amendment as his calling and works tirelessly to educate student journalists in high school and college on their rights as the freedom of the press landscape changes.
The SPLC was first formed in 1974 as a response to growing reports of student censorship in the country. They soon held a national stage, defending a student reporter whose reporting on teenage sexual health had been censored by school administrators.
“The big issue, probably the only issue really, where high school journalists and professional journalists differ the most is censorship, which is unfortunate, and why we [SPLC] exist, to help them push back against that sort of notion,” Heistand said.
In 1988, the Hazelwood School District v. Kuhlmeier decision changed the landscape of student journalism protection in the U.S. School officials in Hazelwood had censored separate student articles on teen pregnancy and the effects of divorce. The same year, Hiestand interned at the SPLC and witnessed firsthand the need for work that teaches students to understand and leverage their rights.
“The Hazelwood case gave back significant authority to school officials to censor most high school newspapers and media, and so we were starting to see a pretty significant increase [of censorship,” Hiestand said. “When I graduated, there was a real need for the [SPLC] to have some more help.”
Before Hazelwood, the case Tinker v. Des Moines Independent Community School District served as the main protector of free speech for students. Best known for the characteristic black armbands at the heart of the case, the Court ruled largely in favor of the students, upholding their ability to openly voice their opinions within reason. Hiestand said this case struck a “balance” between students and their administrators.
“[Tinker] said that the students have the right to speak up to a point in which their speech significantly interferes with learning opportunities,” Hiestand said.
However, Hazelwood took much of this protection away, opening the door to censorship from school administrators on many topics.
“Hazelwood came in and threw that balance out. Basically, it said that school officials can censor anytime to have a reasonable educational justification, which was as wishy washy, as gray as it sounds,” said Hiestand. “It doesn’t give [school officials] an unlimited license to censor, but if they were smart, they usually could find a way to censor speech that they didn’t want.”
Two things happened after Hazelwood. The ruling both “decimated” student media programs but also gave way to an “explosion” in independent and underground student newspapers, Heistand said.
In 18 states now, Hiestand is able to offer good news to students when they call about censorship. Those states have adopted New Voices laws, which “make all the difference in the world” — Hiestand says these laws have reinstated the Tinker standard.
“If you’re calling from a New Voices state, [I’m] able to give you some good news,” Hiestand said. “If you’re not, it’s going to be much more complicated. The chances of my saying, ‘There’s probably not a whole lot legally that you can do to contest this,’ is much more likely.”
California, one of the first states to pass a New Voices law, Hiestand cites as a success story of the protections. He thinks the journalism students practice there can sometimes exceed that of local papers. However, states without New Voices may be unaware of the position they are in.
“Civic classes talk about how wonderful the First Amendment is, the importance of the free press,” Hiestand said. “But then, when they went down to the journalism programs classroom to exercise those rights, they were told that, ‘No, they don’t exist here.’”
In the era of disinformation and an active executive branch, civics education has taken on an outsized importance. The SPLC has been developing its relationships to other scholastic journalism associations to better guide students, and they have continued to build out instructional resources online for teachers.
“This crisis that we are seeing in civics education right now, everything we’re seeing, there are outcries, but maybe not more of an understanding of, what the what this current administration is doing with respect to the courts, to the legal system, with respect to Congress, not stepping up and operating the way we normally see it, Hiestand said. “The whole idea of checks and balances, the Hazelwood case certainly didn’t help when it came to civics education.”
At the high school level, censorship is the number one reason students contact SPLC for help, and it may not be for the reasons the public assumes, Hiestand says. Though the U.S. has “big hang-ups” around talking about sex, stories that shed a negative light on the administration or the school’s image are most likely to be censored.
“The story that I will predict will be censored much more than a story on sex, drugs, rock and roll is any story [where the writers have] done the homework, and they’ve got good, strong evidence of administrative mismanagement or anything that the school thinks is going to make it look bad,” said Hiestand. “A story about declining test scores, or a story about faculty not being paid as much in our district as they are in other districts, those are the sort of stories that are almost always going to receive administrative pushback.”
If you feel your organization is being censored or a staff member is taking “control, punish, or manipulate” content, Hiestand advises keeping a record of everything and reaching out to the SPLC or another organization that can provide assistance as soon as possible. Though public schools are best protected, private school publications also have legal protections or other routes, such as the court of public opinion, that can be used to fight back.
The topic receiving the most push back recently, according to Hiestand, has been protests in support of Gaza. He says censorship from outsiders to administrators has focused on student media, including “profound” news and opinion pieces that engaged on the topic.
“If you take a position, a pro-Palestinian position, or a position that in any way criticizes Israel, you’re going to be attacked,” Hiestand said.
But the impacts were not limited to initial protests. Hiestand cited the arrest of Mahmoud Khalil and Rumeysa Ozturk as “alarm bells,” coinciding with a surge in calls to the SPLC about take-down requests. He said Ozturk’s arrest in particular was “mind-blowing.”
“[Ozturk] actually wrote an op-ed piece, a completely 100% lawful op-ed piece, that was up on [The Tufts Daily] website for an entire year before it ever became a problem,” Hiestand said.
In response to the “very clear threats” that exist to student media, the SPLC released updated guidance on takedown requests and anonymity for sources, specifically for those whose immigration status was on the line. The team had to balance their “traditional” advice, which was more nuanced on these topics, with the more urgent current climate.
“If [sources] are not willing to talk to you unless you provide them with some degree of anonymity based on absolute threats that we know now exist, you’re probably not going to be doing your job as journalists,” Hiestand said.
This guidance will be important in the immediate future, as well. Hiestand cited Marco Rubio’s repeated support of the arrest of Ozturk and promise there was more to come as reason to reevaluate media policies continually. Though he realizes there is a trade-off between the credibility of journalists and the anonymity of sources, the targeting of international students, he says, cannot be ignored.
Despite the “troubling” attacks on international students’ free speech and chilling effects on speakers around the U.S., Hiestand believes the same courage of this generation that has brought them into the spotlight is also the biggest source of hope for the stories they will tell.
“I think we all need to have our lines that we are simply not willing to accept once they’re crossed, that we are going to stand up and push back against that. I’ve seen a lot of courage demonstrated on the part of students,” Hiestand said. “The same things I fear are the same things I need to give me hope that there are students out there [who] are ready to meet the moment.”
