Law

A brief reminder that parody is protected speech and should stay that way

People sometimes need to be reminded that parody is protected speech. The thin-skinned police department in Parma, Ohio, arrested Anthony Novak for building a fake Facebook page meant to mock the agency’s efforts to combat crime. Novak spent four days in jail because of the page he created in 2016.

His criminal trial ended in a non-guilty verdict, as the jury found he did not use his computer to disrupt police functions. However, Novak planned a civil suit, arguing that his civil rights were violated, but lower courts dismissed his claims.

Now he’s going before the Supreme Court with some support from “America’s Finest News Source:”

One of Mr. Novak’s lawyers, Patrick Jaicomo, said in an interview Monday that last month he contacted Jordan LaFlure, the managing editor of The Onion, which is based in Chicago, to make him aware of the case and see if he would be interested in helping raise attention.

“They heard the story, and they were like, ‘Oh my god, this is something that could really put all of our people in the crosshairs if we rub someone the wrong way with one of our stories,’” Mr. Jaicomo said.

In a filing that read in places like one of its articles, The Onion laid out why it believes the authorities in Ohio had acted unconstitutionally, sprinkling in sincere arguments in defense of parody while riddling the rest of the text with moments of jest and hubris — claiming, for example, a readership of 4.3 trillion, and also boasting that it “owns and operates the majority of the world’s transoceanic shipping lanes.”

I’m having a hard time imagining the 5-4 stick-up-the-keester majority being persuaded by this brief, although I guess I could envision Justice Brett Kavanaugh paging through this while drinking a beer and taking a dump. (Sorry to my more “visual” readers…)

I’ve been surprised by court rulings before, including the Mahanoy v. B.L. 8-1 decision, however, the Court recently seems generally grumpy toward free expression these days. In ruling against the MyPillow Guy,  Gorsuch and Thomas grumbled again that the court should reconsider Times v. Sullivan, a case that makes it really hard for public figures to win libel suits. Also, I’m more than a little concerned that we’ve got about seven self-professed Christians on the bench, given that the key lawsuit protecting parody involves a porno mag and a joke about the Rev. Jerry Falwell banging his mother behind an outhouse.

(Of course, there’s also the Dobbs v. Jackson Women’s Health decision. I’m not getting into the weeds on that, but let’s just say the Court seems to be relying on this precedent in dealing with the whole concept of “stare decisis.”)

I have yet to meet anyone who enjoys being mocked, but most folks know to take it in stride and get over it. I have met plenty of people who enjoy mockery as a form of humor, which is why insult comics get some of the biggest laughs and any man over the age of 40 can probably tell you which copy of Mad Magazine was the first one they ever purchased. (June 1987, Star Trek IV cover for me…)

At the college level, as much as I broke out in hives every time a student said, “Hey, let’s do an April Fool’s Edition!” I would prefer them to operate under the blanket of protection afforded them by the decision in the Flynt case. (One year, the student newspaper here Photoshopped the chancellor’s head onto the famous Demi Moore Vanity Fair image. Something tells me that didn’t go over too well…) Of all the thin-skinned, hair-trigger-offended, self-important people I’ve met in my life, far too many of them reside in academia, so having no protection for parody would put the kids directly in the soup far too often.

One of the best explanations of why speech that people don’t like came through in yet another clip that focuses on the apparent patron saint of this blog:

If George Washington can handle the donkey cartoon, Reagan didn’t jail Trudeau and the highest court in the land could see value in mocking Jerry Falwell, the police in Parma, Ohio could have just let Anthony Novak be. The fact they didn’t should earn them some form of punishment.

And maybe a little more protected mockery…

 

John Oliver takes on crime reporting

Since it’s not always easy to broach a topic like “What if the police are lying to you as a journalist?” and because trying to keep students’ attention at around the six-week mark of class can be quite difficult, here’s a potential conversation starter for your reporting class. Comedian John Oliver took on the way in which crime reporting works on Sunday’s episode of “Last Week Tonight.” It has a lot of interesting jumping-off points as well as some important looks at how reporting shapes our worldview in terms of safety, race and the law, among other topics.

Before you consider showing this in class, a couple brief caveats:

  1. He swears an appreciable amount, something that might be problematic if you work somewhere that requires penance if you use the word “damn” in the classroom.
  2. He will often take a bit a little too far. He’s done far worse before, but there is at least one reference to Miss Piggy’s sex life, so don’t say I didn’t warn you.
  3. The piece picks at broadcast news A LOT, which seems a bit unfair, given that a lot of media outlets follow the same basic pattern of taking police press releases and running with them.
  4. He has a point of view. If you’ve never watched “Last Week Tonight” before, it’s worth mentioning, in that he fact checks the heck out of stuff but like most things with a point of view, he points to things that support his POV. Some people call that cherry-picking, but there appear to be a lot of cherries around this story.

From my own experience in working with the police and covering crime, let me add these thoughts:

  1. The reliance on press releases as a sole source is a bad practice across the board. Oliver points out that a lot of the problems in how narratives are cast comes from press releases from public-information officers. Journalists should essentially know that all press releases come with a point of view, not just those that come from the police. Relying on a press release from Dyson will probably lead to the story, “Study finds U.S. needs more, better vacuum cleaners.”
  2. A lot of the problems here are germane to all of journalism these days, in which the importance of filling the grist mill leads to grab-and-go journalism. A lot of our problems come from not being able to be at the scene or develop trustful relationships with sources or waiting to tell a story until it’s fully fleshed out. This is as true in political coverage, education coverage and other forms of coverage as it is in crime coverage.
  3. In some cases “police said” carries with it a special layer of protection, based on certain interpretations of qualified privilege, in which journalists can rely on official sources acting in an official capacity without fear. That’s why it’s there. Also, he mentions some places are using “police claim” as a substitute for being deferential to police.  Please don’t follow this path. “Said” is supposed to be neutral. The problem is that we lack other people on the other side of the issue to do some “saying” for us. Also, if you stick allegedly in there as another potential fix, please know that every time you use allegedly, God kills a kitten.
  4. He always ends giant segments like this with the “not all (fill in the group) are bad people who act this way” after spending 28 minutes telling you how crappy that group can be. I’ve had my share of crappy PIOs in various departments, but I’ve also worked with some really good police, deputies and other law-enforcement officials over the years. I follow the simple idea of extending them the level of trust I would like them to extend to me. When one of us violates that trust, now it’s game on.

With all of that in mind, here’s John…

 

THROWBACK THURSDAY: It’s all fun and games until Dominion Voting Systems sues you for a couple billion dollars

Today’s throwback post came to mind when I saw this bit of news regarding Infowars mogul Alex Jones and how he was back in court again this week:

Jones baselessly told his audience in the aftermath of the Sandy Hook Elementary School shooting that the incident was staged. He has since acknowledged the shooting occurred, but only after the lawsuits were filed. He said in a 2019 sworn deposition that a “form of psychosis” caused him to make his false comments.

In the Connecticut case, where Jones is being sued by eight more Sandy Hook families, Judge Barbara Bellis issued a default judgment against the Infowars founder in November 2021 after he failed to comply with court orders.

Because the judge already ruled that Jones is liable, the jury is determining the amount in damages to award the plaintiffs. While the families have not specified a dollar figure, an attorney for the families asked jurors last week to “send a message” to the public with its decision.

I have yet to run into a student yet who told me they want to be Alex Jones when they grow up, but a number of them have told me how they don’t understand why people who are on talk radio (like Jones) or write on the web (like Jones) are allowed to say whatever they want without consequences. After all, the students note, professors like me are crawling all over them about adverbs because they MIGHT lead to a sense of opinion. Why do we in journalism classes get so nutsy about accuracy?

Well, here’s a good look at what can happen when you play fast and loose with reality and reality decides to fight back:

 

It’s all fun and games until Dominion Voting Systems sues you for a couple billion dollars

During the 2020 presidential election, multiple people made claims that the voting systems had been rigged to favor Democrat candidate Joe Biden. Several of then-President Donald Trump’s allies and associates took to various media platforms to repeat these allegations, arguing that the voting systems had been compromised and that any outcome which did not place Trump back in the White House was a result of fraud.

Dominion Voting Systems, which produces many of the electronic voting machines used in the election, apparently isn’t too thrilled about this, as the folks there have filed several lawsuits regarding these claims. It’s gotten so bad that some media outlets are keeping track of who is being sued, for how much and for what reason, like ESPN tracking the movement of NFL free agents.

The most recent suit is one that is most likely of interest to the folks reading the blog, as Dominion filed a $1.6 billion suit Friday against Fox News, alleging the company knew it was allowing lies about the election to proliferate:

In the lawsuit, Dominion argued that Fox and several of its on-air personalities elevated baseless claims about the voting company rigging the 2020 election and allowed falsehoods by their guests to go unchecked, including a wild claim that the company’s machines were manufactured in “Venezuela to rig elections for the dictator Hugo Chávez” and that Dominion’s algorithm manipulated votes so that then-President Trump would lose.

“Fox engaged in this knowing and reckless propagation of these enormous falsehoods in order to profit off these lies,” reads the lawsuit. “Fox wanted to continue to protect its broadcast ratings, catering to an audience deeply loyal to President Trump.”

The lawsuit argues that there are actual damages to the company’s brand, but also to the workers who are just trying to make a living. The suit notes that Fox’s conduct not only will cost the company more than $600 million in the next eight years, but also that front-line workers have been threatened.

Fox has noted that it will defend itself, having already filed several motions to dismiss and that the company “is proud of our 2020 election coverage, which stands in the highest tradition of American journalism.”

Here are a few things to take away from this and several other lawsuits filed in regard to the voting systems:

A FREE PRESS IS NOT A CONSEQUENCE-FREE PRESS: A lot of folks misinterpret the First Amendment to mean you are protected against all sorts of things when you publish content. The truth is that all the amendment guarantees is that the government shall not prevent you from publishing material. That’s basically it.

It doesn’t mean that other people can’t stop you, like the owner of a website where you post content, the publisher of a newspaper or a producer at a broadcast station. It also doesn’t mean you can get away with whatever you want without paying the price.

When you say something that is false and harmful, you can be in a lot of trouble, which is why professors push so hard on students to make ABSOLUTELY SURE on every fact in a story. It’s also why editors pick and pick and pick at stories with reporters, as to avoid any potential landmines.

If I get up on Fox News and tell the world that I have information supporting the notion that the chancellor of my university is running a cocaine ring out of the student union in exchange for getting away with a murder he committed in 1987, I’m going to be in a HECK of a lot of trouble because it’s not true and it’s going to harm him.

It also leads to the second point…

UNLIKELY, UNREAL AND COMPLETELY UNBELIEVABLE ARE ALL DIFFERENT THINGS: One of the dumber defenses in a Dominion suit is that of former Trump lawyer Sidney Powell. The company is suing her for $1.3 billion, arguing she knowingly spread a baseless claim that Dominion and another voting system company were working with the late Hugo Chavez of Venezuela to rig the election.

Powell has argued in motions to dismiss that her claims were so outlandish that nobody in their right mind would believe them:

It was just conjecture. No reasonable person would conclude those allegations were true statements of fact. Besides, in heated political arguments, people tend to exaggerate. You should dismiss the lawsuit or at least move it to my home state.

That’s essentially the defense offered by Sidney Powell’s lawyers to the $1.3 billion defamation lawsuit brought by Denver-based voting Dominion Voting Systems, Inc. Dominion provides voting equipment to more than 1,300 jurisdictions in 28 states including Colorado.

We’ve talked about this kind of claim earlier this year when porn mogul Larry Flynt died. The “no reasonable person” defense was at the core of his Supreme Court appeal, when the Rev. Jerry Falwell sued Flynt for publishing a spoof advertisement involving him. Flynt won the appeal with a unanimous decision, but before Powell pops open the champagne, I’d consider these issues:

  • Flynt was publishing a porn mag, known for all sorts of really outlandish stuff, including a photo of a woman being stuffed into a meat grinder. Powell was on nightly news outlets and other media platforms purporting to deliver truthful information gathered from inside sources.
  • Flynt’s ad claimed that the highly religious Falwell lost his virginity by having sex with his mother and a goat in an outhouse, which is almost the textbook definition of outlandish. Powell was claiming election fraud, something other countries had experienced and something that people within the government were also stating as fact.
  • Flynt was a strip-club owner who published pictures of naked people in magazines that had been banned in multiple cities. Powell had been a counselor to the president of the United States.

When it comes to the idea of hyperbole and satire, or otherwise outlandish things, you have a pretty high bar to clear if you want to be on safe side of that argument. Had Flynt claimed that Falwell stole money from his congregation, he would have likely been on much shakier ground, given that other high-profile preachers had been accused or convicted of such things. The same thing could be said had he claimed Falwell had slept with prostitutes or committed adultery, given the climate of the time. However, nobody reading the Campari spoof thought, “Wow! Reverend Jerry is a really kinky guy! Guess you learn something new every day…”

Powell’s defense in this case is that nobody could have believed a legal expert who worked with the president in regard to voting irregularities when she said the company responsible for voting reliability failed in its task. I’m really interested to see how that plays out, but more out of morbid curiosity to see if the judge can keep a straight face throughout the trial, not because it’ll set a new precedent.

THE MUDDLING OF OPINION AND FACT IS ALWAYS A CONCERN: When I teach basic media writing to students, one of the hardest things for them to figure out is what is an opinion and what is a fact. It often comes down to me scrawling “SAYS WHO?” on their paper 183 times before they understand what they can say and what they shouldn’t say. Occasionally, we would have the discussion of “You are wearing a black shirt. That is a fact. You are wearing a NICE black shirt. That is my opinion.”

Cable news organizations have long muddied the waters of what is opinion and what is fact, almost to the point where people either don’t know the difference or don’t care as long as it matches up with what they believe. I often wonder if a lot of high-profile people end up buying their own BS to the point that they themselves think, “If I believe it, it must be true.”

Journalism pushes harder on people to verify information, clarify where the information originated and remain rigorous in reporting only what we can prove. At least, that’s the goal we have in mind when it comes to separating opinion from fact.

To help us clarify the distinctions a bit better, the U.S. Court of Appeals offered a four-step examination as part of its ruling in Ollman v. Evans (1984) to help people see if a statement falls into the realm of fact or opinion:

Can the statement be proved true or false? Courts have held that factual statements can be proved true or false. A statement like “The New York Yankees have won 27 World Series championships” can be proved true or false by examining their records in the annals of baseball. The truth or falsity of a statement like “The New York Yankees are the best baseball team ever” cannot be determined, because it lacks several key elements for us to examine. In a defamation case, the plaintiff must prove that the material is false, and this can be the case only if the material of a factual, as opposed to an opinion-based, nature.

What is the common or ordinary meaning of the words? People often use euphemistic language in their daily discourse. If you referred to a sloppy person as a pig, that person might be upset, but they can’t win a libel suit by demonstrating that they are not “an omnivorous domesticated hoofed mammal with sparse bristly hair and a flat snout for rooting in the soil, kept for its meat.” The common meaning that the person has poor personal hygiene or fails to keep their home neat and clean is clearly the way in which most people would interpret that remark.

What is the journalistic context of the remark? Who is saying something and the way in which they are saying it matter greatly in determining if something is a fact or not. For example, if you’re telling a joke involving two men walking into a bar, people are clearly expecting something different than if you are testifying in front of Congress. Content published on the news pages of a legacy media outlet is contextually different from a series of blog posts on a goofball-based website that would make the staff at the National Enquirer roll their eyes. The statements made on air during a newscast are contextually different from those made on a “morning zoo” radio show.

What is the social context of the remark? Where we tend to see opinions and where we tend to see facts often help define which are which. For example, a lecture on the biology related to procreation is expected to be based in facts, while two groups of protesters confronting each other outside an abortion clinic will be a more heated and opinionated exchange.

 

 

The L.A. Unified School District rescinding the suspension of the Daniel Pearl Magnet High School student media adviser is good news (but 3 things are still concerning)

Adriana Chavira got the victory that the law, common sense and public sentiment demanded for her on Friday. After a short meeting, an official of the L.A. Unified School District rescinded the three-day unpaid suspension she received for refusing to censor her student media outlet, an action that would have violated both her ethical code and California law:

At the meeting, Chavira’s representative from United Teachers Los Angeles read a letter from union lawyers in her defense, much of which cited California Education Code 48907. The law protects public school students’ “right to exercise freedom of speech and of the press” and shields school employees from disciplinary action for protecting that right.

A district official considered the matter for a few minutes before rescinding the suspension without comment, Chavira said.

The situation has been covered multiple times here and here and here and here, so in case you missed it, feel free to wander through the nitty gritty of the stupidity the administration of Daniel Pearl Magnet High School employed in this situation. Given all of this, the conclusion brought Chavira the opportunity to exhale:

A big part of me is really happy for Chavira and her students because the right thing got done (eventually) and they’re now able to go about covering the news instead of being the news. That said, here are three things that remain of concern in this whole mess:

CHAVIRA IS STILL IN A DANGER ZONE: A number of people have asked me, “How the heck did this situation get THIS FAR, given the law, the bad press and common sense?” My answer is simple: “Have you ever MET a school administrator?” I’ve dealt with dozens of them over the years and I have been regaled with stories from my mother over her 50-year career in education. Some of them are quite good, but on the whole, I’ve found administrators to be power-drunk, self-centered dictatorial rulers. On the rare instance they get spanked for overstepping, they tend not to think, “Gee, maybe I should reexamine my entire approach to life right now…”

Administrators will often strike back in a case like this with vague concerns and trumped-up grievances about the “quality” of the publication or “constant errors” that aren’t really errors. It is damned easy to gin up a lot of complaints about student media if you really want to, and if it makes their lives easier, administrators want to.

As a smart, dedicated journalist and educator, Chavira knows this whole thing isn’t going to be a “let’s let bygones be bygones” situation:

Yeah, I wouldn’t trust this guy any farther than I can throw a cheese cake underwater, either.

SELF-CENSORSHIP IS A REAL THING: About a decade ago, I studied controversial topics and how student media outlets deal with them. The research is kind of dense, but the short version is that people have an inherent willingness to self-censor in certain situations. That means that even when they know they’re right or they know they should act, they sometimes shy away from addressing certain issues out of an internal struggle that aims to keep them silent.

A good analogy might be the baseball player who steps into the batter’s box and digs in deep, only to get drilled in the head by a runaway fastball. Even after that player has recovered physically, it’s a lot harder to get psyched up to dig back in and not flinch.

This is not to say Chavira would wilt in the face of another tough story (all evidence points to the contrary) or that her students might fold under pressure (she’s taught them well and walked the walk herself). However, the willingness to self-censor takes on a lot of subtleties that often go unnoticed unless someone is looking for them.

A person might ask not to be named and a reporter thinks, “Eh… It’s not worth arguing.” A story has the ability to really rock the hell out of an institution and an editor thinks, “I’m not sure we’ve got a bulletproof story yet…” A staff wants to protect an adviser, so they decide to stay away from anything that is really dangerous.

Even if the staff of the Pearl Post has the guts of a cat burglar, a few pangs of concern will likely scratch at the backs of staffers’ heads. That’s something they’re going to have to be aware of and deal with as they move forward.

THIS ISN’T A ONE-OFF: Even with those two previous concerns, I’m thrilled for Chavira and her kids in this case. She played the game right, and in the end she won. The problem here is that she’s not the only person getting a kick in the teeth these days in the student media realm.

If you take a look at the Student Press Law Center’s website, you’ll get a sense of how many advisers and editors are getting smacked around for simply exercising their Constitutional rights. Even worse, a lot of this is happening in states that don’t have laws like California’s, which was the bulletproof shield Chavira needed to finally end this debacle. Administrators are killing newspapers, attempting prior review and engaging in all sorts of other unsavory things. For every one case of the law getting it right and providing victory to student press, we have a half-dozen other cases of ham-handed chuckleheads who see the student press as kids “playing” journalists.

If there is one reassuring thing here and now, it’s that a lot of these cases end up on the radar of the SPLC, which has a track record of rallying the troops and fending off the stupidity. It’s also good in Chavira’s case that we’ll all be watching to see what happens with her kids and her review over the next year or so.

Diligent vigilance will need to be our resting pulse in the foreseeable future.

Journalist Daniel Pearl’s family is displeased with how the administration at Daniel Pearl Magnet High School is treating its student journalism adviser

It’s not always possible to know if you’re on the right side of history, but when the family of your school’s namesake comes out against you, it’s probably worth reconsidering your approach to a given situation.

The administration of Daniel Pearl Magnet High School suspended student media adviser Adriana Chavira for three days because she didn’t censor a student publication, and thus break the law. Tamara Pearl, vice president of the Daniel Pearl Foundation, was one of 22 individuals and organizations that signed a letter that condemned the actions of the administration. She also noted in an email to me the family and the foundation were aware of this situation, and she was happy I was poking around.

In addition, Judea Pearl, the patriarch of the Pearl family, issued a joint release with the Los Angeles Press Club, further noting the family’s concerns:

“I admire Adriana and all she’s done to inspire her students,” said Judea Pearl, father of Daniel Pearl and President of the Daniel Pearl Foundation. “She’s a wonderful teacher and journalism advisor, as demonstrated by the award-winning reporting done under her mentorship. She has been instrumental in these achievements. I don’t want her to face any disciplinary action for allowing her students to tell the truth. I only want what’s best for the students and the school, which is why I hope they will reconsider this decision.”

At a certain point, I would imagine the school district has to come to the conclusion that they’re playing chicken with a group of people who are not going to swerve. The law, public sentiment and common sense are on Chavira’s side while the school district is relying on bad advice and an 82-page document that has taken a “shotgun approach” to this situation, to quote SPLC.

Please keep reaching out to Chavira via Twitter to offer your support, and to the school principal Armen Petrossian to persuade him to start acting right in this situation.

 

Student Press Law Center drops the hammer of legal knowledge on the administration of Daniel Pearl Magnet High School in defense of student media

(For the folks who need visual cues…)

In a formal letter that leaves no legal doubt, the Student Press Law Center took the administration at Daniel Pearl Magnet High School to the woodshed for its actions against student media adviser Adriana Chavira. The school hit Chavira with a three-day, unpaid suspension for refusing to censor a story her students published, something she is not legally allowed to do in California and ethically wan to do based on the concepts of free expression.

(FULL DISCLOSURE: I signed on to the letter as a private citizen.)

As SPLC notes:

The article, which reported on a highly newsworthy topic at the time, was not obscene, defamatory or unlawfully invasive of anyone’s privacy rights; further, it did not serve to incite pupils “as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school,” all of which would be prohibited by the statute (Ca. Educ. Code Sec. 48907(a)). The article was protected speech. Indeed, had Ms. Chavira agreed to censor the story, as DPMHS administration demanded, she would likely have found herself a co-defendant with those same administrators in a lawsuit brought by the students.

It is, quite frankly, astounding that in the 82-page Notice of Suspension provided to Ms. Chavira, which consists mostly of copies of various district policies regarding school computer use, ethical behavior, an inapplicable HIPAA policy, student conduct, etc., the district fails to even mention Sec. 48907. While this shotgun approach makes a lot of noise, it fails to address the key issue: DPMHS officials ordered Ms. Chavira to break the law and she refused.

This isn’t a case of an organization asking politely for an institution to think better of a bad decision, for the good of humankind. This is basically breaking off a legal foot in a school district’s hindparts:

In 2009, in response to a series of retaliatory attacks on California’s student media advisers by administrators unable to censor student journalists directly, Section 48907 was amended to include specific protection for student media advisers. Indeed, it is almost as if the lawmakers who enacted Sec. 48907 had a crystal ball forecasting what is taking place at DPMHS now.

In particular, the statute includes the following:

“An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution” [Ca. Educ. Code Sec. 48907(g), emphasis added].

A three-day suspension without pay certainly constitutes the action proscribed by the statute.

[/mic drop]

The full letter is linked at the top of the page, and it contains contacts and email addresses for DPMHS administrators. Please feel free to reach out and tell them what you think.

An update on the Daniel Pearl Magnet High School situation and a throwback to explain why censoring student media is dumb in the first place

The recent post on how the administration at Daniel Pearl Magnet High School suspended a student media adviser for not censoring the students needs a couple updates.

(Just as a quick recap: veteran educator, adviser and former journalist Adriana Chavira was told she had to remove the name of a librarian from a story the students ran last semester about COVID. When she declined, based on how California Law, the First Amendment and common sense work, she was hit with a three-day suspension.)

The folks at the Daniel Pearl Foundation are aware of the situation and working to craft a response. Tamara Pearl was nice enough to get back to me to let me know that her family is working with the L.A. Press Club to craft a statement that will be released soon. (We’ll post it here when she sends it our way.) She also noted that the SPLC is planning a press release later today on the situation. (We’ll update with that, too.)

In addition, I wrote a calm, reasoned email to the principal, Armen Petrossian, which asked him to reexamine this situation.

In truth, I desperately just wanted to do this:

(If you care to share your displeasure over this situation with Petrossian, here’s the staff page where you can find his info. Just click and it’ll take you to a form.)

It’s important to note this isn’t the only case of adults stomping all over the rights of students happening these days. Northwest High School in Nebraska recently killed its student newspaper after the administrators realized they couldn’t control the content.

The crime these students committed? Running content that supported their LGBTQ classmates in a factual and fair manner.

If you want the quote of the day from someone who just doesn’t get how the media is supposed to work, here’s the school board’s VP:

Northwest Public Schools board Vice President Zach Mader said that in the past, “I do think there have been talks of doing away with our news if we were not going to be able to control content that we saw (as) inappropriate.”

He cautiously explained the apparent reason for the Saga’s demise.

“The very last issue that came out this year, there was… a little bit of hostility amongst some,” the school board member said. “There were editorials that were essentially, I guess what I would say, LGBTQ.”

In any cases, here’s the Throwback Thursday post with a look back at another time administrative overreach proved futile. It also contains some hints and tips for the administration at DPMHS and all the other places that are acting poorly in this regard:

3 reasons why censoring student media is the dumbest thing you can do as an administrator

The students at Har-Ber High School in Springdale, Arkansas, just got a top-notch education in the area of journalism, censorship and the power of shame this week. The school newspaper, The Herald, published an in-depth, investigative story that details the questionable transfer of several football players to another high school. The story also highlighted some questionable behavior on the part of administrators and athletic officials in regard to this situation.

Naturally, the school district was shocked by this, so district officials decided to kill the messenger:

An Arkansas school district suspended its high school newspaper and threatened to fire the teacher who advises it after student journalists wrote a story criticizing the transfer of five football players to a rival high school.

“They are like, ‘Well, you raised an uproar, we’re going to try and silence you,’” Halle Roberts, 17, the editor-in-chief of the Har-Ber Herald, told BuzzFeed News.

Censorship of any newspaper flies in the face of freedom of the press, however, administrators often feel they have the right to do so for a couple erroneous reasons:

  1. They are the adults. The students are kids. They believe that in the power dynamic, adult trumps kid.
  2. The Hazelwood decision, which administrators have come to misinterpret as carte blanche to censor.
  3. The principle of “ostrich syndrome,” in which people believe if they stick their head in the sand, nothing bad can happen. Thus, if we can just shut people up and nobody can see the problem, it doesn’t exist.

What followed was pure outrage from pretty much the rest of the media world. Buzzfeed News, the Associated Press and Teen Vogue covered the story as did the local publications in Arkansas. The Student Press Law Center got involved and agreed to repost the stories as a public service so anyone could read them.

Eventually, the school district caved, and the students were allowed to put the story back online. Communications director Rick Schaeffer explained the district’s rationale in a particularly bloodless way:

“After continued consideration of the legal landscape, the Springdale School District has concluded that the Har-Ber Herald articles may be reposted,” he wrote. “This matter is complex, challenging and has merited thorough review. The social and emotional well-being of all students has been and continues to be a priority of the district.

In other words, this only “merited thorough review” after you played a game of chicken with the students and not only did they fail to swerve, but they were driving a tank and you were on a bicycle.

Nice save.

Look, the larger problem here is not that the students had to go through all of this, but that this could have been easily avoided if the administration understood the law, realized how media works or just Googled “censoring HS paper goes to hell.” To inspire future administrators to avoid these problems (and also to help you find ways to push back against censorship), here are a few thoughts that should help keep the important stories front and center, despite the ways in which they embarrass school folks:

 

Stop Fighting Fire With Gasoline

The whole reason that administrators attempt to censor student media is because whatever the students published is drawing embarrassing attention to the school. Administrators surmise that if they can kill the message (or the messenger), the attention will stop coming and things will go back to normal.

Simply put, that’s as stupid as trying to put out a fire with a bucket of gasoline.

The first thing that a group of media students will do when you attack them is to make a bigger issue out of it. If they’re good enough to pull together an investigation like this one, they’re not going down without a fight and they clearly have no fear. The more you try to crack them in half, the stronger their resolve will be. That means… Wait for it… more negative attention on your school.

Now, not only does your school look like garbage for whatever the students uncovered, now EVERYBODY is looking at what they uncovered. Furthermore, additional stories are now emerging about the attempt to censor the publication and how lousy the administration is in attempting to beat up on these kids.

People who never even HEARD of your city or your school now know it for all the wrong reasons. Truth be told, even though Springdale, Arkansas is “The Poultry Capital of the World,” I never knew it existed until this censorship debacle hit my Facebook feed.

If you want to avoid problems like this, don’t let stupid things happen in your school in the first place. If you want to avoid making them worse, don’t compound the original stupidity with more of your own.

 

Student Media Kids Have Bodyguards

Administrators are the kings of the castle when it comes to the school itself. Who gets a hall pass, who gets early release, what the dress code needs to be and more are all at the behest of the principal or other similar administration officials. That sense of power can lead to all sorts of things, not the least of which is the assumption that might makes right.

OK, but what happens when you aren’t the strongest person there anymore? What happens when the kids realize this and figure, “Hey, we just need a bodyguard…”

The bad news for you is that they already HAVE those kinds of folks and they aren’t remotely afraid of you. You lack power over them and they have no problem saying, “OK, you wanna play? Let’s play.” These “bodyguards” are folks like the Student Press Law Center, which has a mission and purpose to stand up for students getting messed around by overreaching administrators. These “bodyguards” are journalists at the local and national media outlets, who value the kids’ efforts and disdain censorship of all kinds. (Plus, they probably remember getting messed over by an administrator during their time as students and didn’t like feeling helpless.)

If you decide to step into the ring with the students and do something dumb like this, the students will have plenty of people at the ready who will do everything in their power to make you really regret it.

 

This Is Not Your Father’s Censorship

A few years back, I spoke to a school board in Fond du Lac, Wisconsin, where the student publication had been censored and the last line I left them with is one that should ring in your ears forever: “Control is an illusion.”

In the days of Hazelwood (1980s), when an administrator dropped the hammer on a student publication, that was pretty much the end of it. If the paper wasn’t allowed to print something, the students had virtually no other way to get that story out to the public. You were the gatekeeper and you slammed the gate.

That’s not how anything works anymore.

The minute you decide to censor the paper, pull the piece off of the paper’s website or whatever else you think will stop the story from gaining traction, the kids have 12,148 other ways to get this thing out there.

Case in point: The Herald’s story was reposted to the SPLC website so everyone on Earth could read it. People in the student media community were tweeting links to the story everywhere. Someone took a photo of the print edition and it was making the rounds on Facebook, Twitter and other social media. I’m sure you could get a T-shirt made with the whole story on it at CustomInk, if you put your mind to it…

The point is, control has always been an illusion, but now more than ever, you have no control over content. The more suppression you attempt to impose, the harder people will work to share the information you want to suppress.

In summary, you need to realize that trying to censor student media these days is like trying to grab a fist full of Jell-O: The harder you squeeze, the less successful you are. If you really want this thing to go away, do the smart thing: Applaud the work of the students, tell whoever asks that you’re looking into it and fix the problem if you can.

It’s the adult thing to do.

Daniel Pearl Magnet High School acts contrary to Daniel Pearl’s legacy by suspending a student media adviser for not censoring a student publication

A California high school has suspended a veteran student media adviser with significant journalism chops for allowing her students to report facts accurately:

The Student Press Law Center highlighted Adriana Chavira’s situation on its website, explaining the school’s “rationale” behind the suspension:

Ms. Chavira was informed on Sept. 1, that she was being suspended for three days without pay and a disciplinary notice was being put in her personnel file due to her refusal to remove information from a story published in the Pearl Post, the independent newspaper at Daniel Pearl Magnet High School (DPMHS) in Lake Balboa, California, where Ms. Chavira is the long-time adviser.

The story reported on the impact of the COVID-19 vaccine mandate on school staff and noted that after the vaccine mandate was put in place, the school librarian did not show up for school. The former librarian demanded that any reference to her be removed from the story.

When Chavira declined to step all over her students’ free press rights, as they are allowed to make the final decisions related to content, the school hit her with the suspension.

Under normal circumstances, an administrator overreaching for no good reason and attempting to censor student media would be considered ham-handed and dumb. In this case, it’s pathologically stupid for the following reasons:

THE LOCATION: The school is located in California, which has some of the country’s most expansive laws that protect student media from this kind of censorship. The law was put into place back when “Star Wars” was a new concept, and demands that students of all public schools, including charter schools, be given the editorial discretion over content.

Furthermore, the law states: “An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.”

This is a long-held, unambiguous legal declaration that school administrators should keep their grubby paws off of student media. The school has a steep climb to demonstrate how and why it expects to get away with what it’s doing here.

THE ADVISER: Adriana Chavira has almost 20 years of teaching experience, extensive advising experience and about 10 years of professional journalism experience. She knows the ropes, so it’s not like they’re trying to boss around some newbie who got stuck advising the paper because they once wrote a letter to the editor. She also knows what can get kids into trouble, so it’s clear she would advise them not to publish content that might be libelous. How the school thought it was a good idea to go after her is beyond me.

THE TOPIC: As I’ve noted before, my friend Allison and I used to defuse each other when we got all riled up about something by asking, “Is this really the hill you want to die on?” In other words, is this really worth it? In this case, clearly not.

First, it’s not like not naming the librarian would somehow shield her from being known in the audience.

Second, there would be almost no legal reason she couldn’t be named (I can’t think of one, but that’s why I’m only holding down the fort in media law this year instead of teaching it full time.)

Third, why is THIS STORY so vitally important that you’d risk a massive lawsuit and tons of negative publicity by suspending Chavira? SPLC, NAHJ, JEA and other alphabet soup groups are already banging the drum on this, and the law is so clearly on her side that it’s ridiculous. In addition, now EVERYONE is paying attention to the story across the country and beyond.

THE SCHOOL: The Daniel Pearl Magnet High School is named for journalist Daniel Pearl, who was murdered by a terrorist group while reporting in Pakistan. Pearl was an incredible reporter who worked for the Wall Street Journal, focusing on international affairs. His work uncovered that allegations of genocide in Kosovo were untrue and that a U.S. missile attack destroyed a pharmaceutical building, not a military target, in Khartoum.

After Pearl’s death,  multiple organizations developed awards and scholarships in his honor. In 2010, President Obama signed the “Daniel Pearl Freedom of the Press Act,” which increased scrutiny of organizations and governments that sought to silence the free press. According to its website, the Daniel Pearl Foundation “continues to promote tolerance, dialogue, and the highest standards of the free press.”

The administration of the Daniel Pearl Magnet High School enacting this kind of blatant and overreaching censorship has the same internal logic as deciding Jackie Robinson High School should have segregated bathrooms.  If there were a better way to illustrate irony and draw terrible media coverage at the same time, I can’t think of what it would be.

At the moment, Chavira continues to fight the suspension and she appears to have a good amount of support, as well as a pretty strong leg to stand on from a legal standpoint.

In the mean time, you can send her a supportive message through her Twitter account here.

You can also email school principal Armen Petrossian, who has declined comment through the school district’s PR arm, through this form, letting him know what you think of his decision to suspend someone for supporting the free-press standards of his school’s namesake.

(I’ve got an email into the foundation for a comment and a message in to Chavira for an interview on all this. More to follow if it comes through…)

 

Helpful tips for student media outlets that want to cover the Supreme Court Roe v. Wade situation

A draft of a Supreme Court majority opinion regarding the case of Dobbs v. Jackson Women’s Health Organization leaked late Monday night on the Politico website. The 98-page document, written by Justice Samuel Alito, would reverse the nearly 50-year-old precedent of Roe v. Wade and eliminate the constitutionally protected right to abortions in the United States, if it remains unchanged when the court formally renders its opinion.

I have a hard time imagining that many student media outlets wouldn’t have a vested interest in covering this situation as it unfolds. With that in mind, this post does not aim to direct the opinion of those students, nor to take a stand on the issue itself. The point of this post is to provide student journalists with some help in navigating some truly risky waters when choosing what, when and how to present information to their readers on this topic.

First, let’s start off with a few key things you need to be aware of before you even start thinking about publishing something here:

  1. You will not change most readers’ minds about anything on this topic. Most of what people think and believe about this issue will have been codified in their minds, hearts and souls long before you showed up. A good friend, who was perhaps prescient, posted this explanation from The Oatmeal of why it’s hard to change minds or get people to listen on certain issues the other day and it bears a look. Trying to move the needle on this issue among readers is going to be as successful as bailing out a sinking boat with a pasta strainer.
  2. There aren’t two sides to this. There are many facets. Certain topics tend to bring out the extremes when it comes to public opinion. Yes, there are probably people out there who believe that life begins when a man unhooks a woman’s bra. Conversely, there are probably people out there who believe there should be free abortion punch cards available at Starbucks. Those people do not represent the majority of people who have an interest in this issue. If you want to dig into this issue, you need to look beyond the loudest voices screaming threadbare talking points. It’ll take work.
  3. This is not law yet. This is a leaked first draft of a document that the public wasn’t supposed to see, at least not based on tradition and protocol. The information, including how many justices voted to make this a majority opinion, who they are, how tied to this they are, how much they support the language and more, is not codified through official channels or publicly declared by the court itself. A lot can happen in multiple aspects of this case, including what the final opinion looks like, if Congress will make moves to solidify abortion rights and other things nobody has thought about yet. When covering this issue, it’s crucial to keep that in mind when making declarative statements, asking questions of sources and writing content (particularly headlines where space limits can lead to fact errors).
  4. You are running out of semester. TV shows can be great when they use the “cliffhanger” approach at the end of a season. News doesn’t benefit from that kind of situation, so be aware of how much time you have left to cover this topic, how many issues you have yet to publish and how those things should factor into your approach here. A half-baked “get-er-done” story that runs in your last issue can likely lead to more harm than good when you lack the ability to correct any errors, follow up on any developments or otherwise continue telling the story. You might have one shot at this, so make sure it does what it needs to do.

With those things in mind, here are some tips and hints on how to approach this topic:

KNOW YOUR AUDIENCE: If it sounds like I harp on this every time I write something, it’s only because that’s exactly what I’m doing. This isn’t the time or the issue where you should assume everyone is “exactly like me” or guess about how much of your readership feels a certain way about the topic. Even within the newsroom itself, people probably hold differing views on if this is the best thing or the worst thing ever to happen in this country. It’s also likely that many of those views will come as a surprise to folks once they are vocalized.

One key thing to do is to really assess who reads your paper and what matters most to them. In a case like this, it’s a little too late to do a readers survey, but you can look for some breadcrumbs that might be out there for the finding. Some private, religious schools might clearly lean more pro-life, but look around for pockets of dissent. Some liberal, public schools might lean more pro-choice, but look around for pockets of dissent.

Look for groups on campus that have voiced their opinions on topics before and see how large, engaged, involved and representative they are of the larger whole. Look for previous coverage in your publication of this issue to see who is out there and what they had to say. Talk to people in the newsroom and the classroom about this with the idea of finding out not just what they think, but also what their roommates, friends, teammates and peers think.

Get a handle on what kind of room you will be playing to when you publish your work.

RESEARCH LIKE HELL: You are looking at the possible reversal of a court decision that likely is older than some of your professors. In the nearly five decades since the court handed down its ruling in this case, a lot of stuff has happened. Your going to want to be the smartest person in the room on this topic before you start interviewing people and writing stories.

Learn as much as you can about the original case, the ruling and what changed because of it. Look at the other challenges to it over the years, including the Planned Parenthood v. Casey case of 1992, to see what has transpired over the past 50 years or so. Look into the history of abortions within the United States to figure out what happened during times when the procedure was legal and illegal. You’ll likely need to spend some serious time digging into this, but the last thing you want to do interview someone without having a full view of the facts. This is one topic in which the stakes are too high to risk getting snowed by a source with a bias.

Here are some tips and hints for potential stories:

LOCAL IMPACT: The court ruling, if it becomes final in its current form, would essentially kick the decision of whether abortions should be legal back to the states. States have had widely varying laws regarding this procedure, as you can see from the series of maps from the Washington Post. Figuring out what will happen to your readers will matter a great deal in how you approach this topic. Some states have laws that go into effect the minute the Court reverses Roe. Others have laws that remain on the books from decades ago that simply stop getting overridden by the Feds. Others are looking for laws that will remove or improve access to abortions once all of this gets sorted out.

Everyone else will be talking at the federal/macro level on this. You should explain it at the local/micro level. This could entail everything from what your student health center is allowed to provide to if any private businesses in the area provide this service and will no longer be allowed to do so.

Your job is not to tell people the sky is falling or the world is finally going to be right. Your job is to factually outline what it is that has happened, will happen and could happen if this draft becomes final.

UNPACKING “UNPRECEDENTED” AGAIN: If COVID taught me anything, it was to hate the word “unprecedented.” However, this situation has rolled out more cases in which that word will likely apply. Start looking at them:

  • Talk to local legal scholars about the leak. Folks are initially saying this “has never happened in modern history.” That’s a dodge within a couch of an argument, given “modern history” could be anywhere from post-Civil War era to since last Tuesday. Find out from people who study this stuff how rare this actually is, what the value/problem with such a leak can be and the likely impact the leak will have on the final draft.
  • Talk to local experts in history and law regarding an overturn of this nature. How often does the court fail to apply precedent in a situation like this? What issues have seen this kind of shift before? What results usually occur in a situation when the Court zigs like this, both in terms of the decision at hand as well as other cases that could follow?
  • Talk to local political experts to see what kinds of steps the executive and/or legislative branches might take in response to this judicial decision. There is already a rumbling about getting rid of the filibuster and trying to crank through something in the House and Senate that would counterbalance the court decision. Pro-choice advocates have noted President Joe Biden’s relative silence on the issue, as well as his history voting on the topic. Will he look to define his presidency with a move on this topic? I don’t know, but I’d surely ask someone smarter than me about it.

HISTORY TRIP: Generations of people have existed in a world in which this topic was hotly debated, but also clearly codified into law. Generations of people also lived through a time before Roe v. Wade, so it would be valuable to find out what things were like back then.

Most of what I have heard falls into oft-repeated phrases like “back-alley procedures,” “under-cover-of-night travel,” “unscrupulous and dangerous” and more. What that actually means in terms of true history is beyond me in many cases, so finding people who can better provide context, truth and history will be helpful. (The 19th did a piece on this topic not too long ago that followed women’s memories through their experiences in the pre-Roe era, if you are interested.) Professors at your school who study history, women’s studies and other scholastic areas that traverse this topic could be helpful, as could sources who were involved in either side of the struggle back then.

It would also be interesting to look at both current and historical data regarding the number of overall procedures that occurred in your coverage area, if that is available. The thing most people forget in talking about overturning Roe v. Wade is that it won’t eliminate abortions. It will just make them illegal and harder to come by. The numbers might tell a story both “back when” and “right now.”

PERSONAL STORIES: This is one of those that really has a strong risk/reward element to it. It is highly probable that you have students at your school who, in some way, connect strongly to this topic. How they connect, what they are willing to share and to what degree the reporter can work with these sources will determine the overall value of something like this. If you are unsure as to how to proceed with this, I strongly recommend you talk to your adviser, smart professors who have experience in the field and other journalism folk who can help guide you.

FINAL NOTE: The one last important thing to keep in mind on something like this is that the duty to report is not the same as the duty to publish. You might do an inordinate amount of work, only to find a weak or wobbly story that might not do the job you had hoped it would. There is no rule in journalism that dictates you publish it and take your chances. In many cases, caution is the better part of valor. This is probably one of those cases if you feel the story isn’t where it needs to be.

That said, don’t let fear of public reaction dissuade you from running a quality story. This is one of those topics where you will inevitably upset someone, so disabuse yourself of the notion that a well-reported, well-researched, factually based story will garner universal applause. If it’s good, run it.

In God We Trust. Everybody Else Gets Recorded

House Minority Leader Kevin McCarthy has found himself playing a lot of defense this week, as recordings of his calls in and around Jan. 6 hit the media. The recordings appear to directly contradict McCarthy’s frequent statements that he did not and would not tell President Trump to resign in the wake of the Capitol Riots:

WASHINGTON, April 22 (Reuters) – Congressman Kevin McCarthy, the top Republican in the U.S. House of Representatives, came under fire from some of his fellow party members, after an audio recording showed him saying that then-President Donald Trump should resign over the Jan. 6, 2021, U.S. Capitol riot.

The comments, which McCarthy had denied hours before the recording emerged, could undermine his widely known ambition to become House speaker next year if Republicans take control of the chamber in November’s midterm elections, as expected.

We could spend an entire post with clips of politicians of every stripe saying they never said something, followed by audio or video evidence that shows they said that EXACT THING. It’s why this joke rings so true:

Q: How can you tell when politicians are lying?
A: Their lips are moving.

Instead, let’s talk about the importance of recording everything you can shake a stick at when you interview sources. Here are a few things to keep in mind while doing that:

Rules for recordings

The Reporters Committee for Freedom of the Press notes that federal law allows you to record calls and other similar communication with just one party to the call knowing that the recording is happening.  In addition, 38 states have adopted similar “one-party consent” rules, which allows you to record someone without their consent. The other 12 states require that all parties involved in a phone call or other similar discussion consent to the recording. In almost no circumstance can you record a call to which you are not a party, a concept often referred to as wiretapping.

You can find a full listing of the states and their laws on recording on here on the committee’s website.

What you “can” do doesn’t include what you “should” do, in that trust and credibility play a pretty big role in what we do. Thus, ethically, it’s better to just ask people right up front if you can record the call or record them in person when you’re conducting the interview in most cases. If you’re trying to catch someone in a lie, that might not work, but if you’re interviewing the Queen of Corn Elise Jones about her exciting duties that go with the title, I doubt you’ll need to be surreptitious.

Also, for all the grumping journalism traditionalists do over email interviews (and I include myself among the grumps), the use of email does provide you with a written transcript of what the person said, so it’s a lot harder for them to cry foul when the stuff hits the fan over their comments.

What if a source says no?

One of the risks of behaving ethically is that someone might tell you not to record the interview. In that case, you have a few options.

Explain why you want to record them (to provide the most complete record, to back up your notes in case you misunderstand something, to allow you to be more conversational because you aren’t burying your head in your notes), in hopes that this will soften their stance.

If that doesn’t work, make the case that this is good for both of you because it protects both of you from having mistakes get into the public sphere. It’s also good to have that record for future examination, in case something needs to be looked back upon.

If none of that works, you’re kind of stuck between doing the interview without the recorder or not doing the interview. It’s a choice, but be ready to make that choice either way.

How best to record

Before you do any recording, you should have tested out your recorder in a few different environments. See what kind of range you get, the overall sound quality the device provides and if anything you would normally encounter in an interview would limit the device’s effectiveness. (If the source is playing with a pencil on the desk where your recorder sits, will you hear nothing but a series of TAP TAP TAP TAP TAP sounds?)

People can get jittery when they’re being recorded. Interviews themselves can freak people out, so the idea that every word they say is being preserved for all time can make things a little more anxiety-provoking. (A broadcast student of mine referred to interviews that go to hell because of a recorder fear as the source having “red light syndrome.”)

That little red light on a recorder can be a powerful tool, so it’s best to keep it away from them. If you have a recorder that can pick up sound from a bit of a distance, you can keep the recorder in your hand and flip over a piece of your reporter’s notebook to cover the thing. Eventually the source will forget it’s there and relax, I would hope.

If that won’t work, I try to at least obscure the red light or place it in an unobtrusive space. The goal is for it to blend into the background. If your recorder is so weak that you almost have to lodge the thing into the source’s nasal cavity to get a decent recording, buy something better.

 

Best Practices for Recording

It makes a lot of sense to purchase a separate recording device if you have the ability and funds to do so. Depending on if you need broadcast quality audio or just something you can hear and understand, costs can range between $20 or so to upwards of a couple hundred.

It is possible to use your phone to record in a pinch, but a lot can go wrong, including an app that only records a few minutes because it’s a “free” edition (and they never told you that) or an app that gets knocked off any time you get a text or alert. Also, battery issues are pretty prominent when it comes to most of my students’ phones, as they’re usually on their hands and knees in the classroom before class, searching for a power outlet.

For recording phone conversations, that mini-recorder plus your phone on speaker works well for low-grade audio. If you have a landline, which most of you probably don’t unless you work in an office that has these dinosaurs, you can get a phone coupler for a couple bucks online that allows you to jack your recorder right into the phone itself. (In days before this technology, reporters would drill holes in their phones and wire in recording devices. It looked cool, but the tech was risky.)

In any case, here are some basic tips to help you out:

  1. Make sure your recorder is functional and ready for recording. Do a test recording, check the batteries, bring extra batteries and generally make sure this thing will do the job.
  2. Test the recorder in the environment you’ll be recording, when possible. If you have some annoying background noise, see if you can move the interview elsewhere or tell your roommate to turn down the Cardi B. for 20 minutes.
  3. Start the recorder before the interview and ask the person if they would allow you to interview. This seems counterintuitive, but the goal is to capture the person’s answer on the recording. If they say yes, the thing is already going and they didn’t see you turn it on or place it somewhere so they aren’t freaking out as much. Plus you have the confirmation on “tape.” (or whatever term we’re using for digital stick recorders)
  4. If the source says no and won’t change their mind, pick up the device and shut it off in front of them to clearly show you’re abiding by their wishes. It’ll help with trust and credibility. Then, be prepared for hand cramps.
  5. Keep the recorder going all the way until you are out of the presence of the interview subject. Even after you agree you’re “done,” things can come up or other questions can happen. You want those recorded.
  6. Immediately check your recorder after  you are outside of the interview to make sure it worked. If it didn’t, you can pour some additional work into fleshing out your notes while it’s still fresh in your mind. If you figure out what went wrong and now the recorder works, you might be able to run back in for a quick follow up question or two before the source is involved in something else.

Hope this helps. Any other suggestions or thoughts on this are always appreciated.

Vince

(a.k.a. The Doctor of Paper)

Another lesson in how the First Amendment does and doesn’t work: The story of Oberlin College and a bakery accused of racism

(or a few other things, as Oberlin College discovered…)

As we have noted here numerous times, the First Amendment provides U.S. citizens with the right to free speech, not consequence-free speech. A recent appeals court decision in Ohio made that clear when it upheld a multi-million-dollar verdict against Oberlin College:

A private college in northern Ohio has lost its appeal after a lengthy court battle with the owners of a local bakery who accused the administration of perpetuating false allegations of racism against their business.

Now the college could be on the hook for $31 million.

A three-judge panel in Ohio’s 9th District Court of Appeals rejected Oberlin College’s arguments in a 50-page opinion published on Thursday, March 31. In doing so, the appeals court upheld a lower court decision that awarded Gibson’s Bakery $25 million in damages and $6 million in legal fees, the Associated Press reported.

This decision dates back to a 2016 incident in which a bakery employee accused three Black students from Oberlin of attempting to shoplift and use a fake ID. The students later pleaded guilty to various charges related to the incident, but before that, members of the college community protested what they felt to be racist and unfair treatment of the students.

During the protest, the school’s dean of students handed out a flyer that stated, in part: “This is a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.” In addition, the student government at Oberlin passed a resolution stating:

A Black student was chased and assaulted at Gibson’s after being accused of stealing. Several other students, attempting to prevent the assaulted student from receiving further injury, were arrested and held by the Oberlin Police Department. In the midst of all this, Gibson’s employees were never detained and were given preferential treatment by police officers.
Gibson’s has a history of racial profiling and discriminatory treatment of students and residents alike.

Oberlin argued that the protest and statements made at it were part of a free-speech exercise and thus protected by the First Amendment. The courts ruled that the students could protest all they wanted, but that’s not the point of the suit. This is where it might be helpful to break down what the First Amendment does and doesn’t do:

It does:

  • Prevent government interference that limits speech. In other words, had the protest been shut down by the cops or the city council, or prohibited from occurring in the first place, the First Amendment rights of the students would have been violated.
  • Allow people to express opinions without fear of governmental retaliation. Simply put, if I want to tell people I dislike the president, or that the food at a restaurant doesn’t thrill me, I have that right.

It does NOT:

  • Protect all forms of speech, including false, defamatory content. The courts have to decide, as they did in this case, to what degree something is stated as a fact or an opinion. “This weather sucks,” is a statement opinion. “The weather forecaster on Channel 3 is a pedophile,” is meant as a statement of fact, and carries with it potentially defamatory content, if untrue.
  • Protect people from consequences from their free-speech activities. If you engage in free speech, you can say whatever you want, but you are held to account for that speech. This is where defamation suits come into play. It’s also why I’m a raving psychotic about fact-checking and attributions in stories.

Oberlin argued the protest, flyer and resolution were opinions, thus protected by the First Amendment. What the court in this case found was that the flyer and the student government resolution were presented in a way that a reasonable person could construe them as being factual. That includes the allegations that an employee assaulted a kid, that the situation was racially motivated and that the bakery had a history of racial profiling/racism. If the school wants to win the case, it has to demonstrate fact-based proof that this stuff has happened.

Although the court didn’t cite the Ollman Test in this case, it still serves as a benchmark for how to determine if something is fact or opinion. Two of the four standards are pretty important here:

Can the statement be proven true or false?

In order for a libel suit to be successful, the plaintiff must demonstrate the material in question is false. If the material is pure opinion, it cannot be proven true or false and thus cannot be libelous. In this case, claims of assault, racism and a history of racial profiling all could be proven or disproved at some level. Oberlin didn’t make any real effort to try to make the case the content was true, the courts found.

What is the common meaning of the words?

Assault, racism and racial profiling all have definitions that could be determined and applied. We do have degrees of assault, but what do people think of when they hear someone was “assaulted?” Probably physical violence that leaves injuries. What about “racism?” That is clearly more wide-ranging and based on a variety of factors, but in holding to the “reasonable person” standard, the court has to make a call. Is failing to say “hello” to an unknown person of another race a reasonable standard? Probably not. Is burning a cross at the home of a person of color going to fit the bill? Heck yeah and then some. Thus, somewhere in the middle of that range is where reasonability is going to come to play and that’s where the court gets to say if the accusations fit the meaning.

In short, the school put itself in jeopardy by failing to fact-check a situation and not considering the ramifications of failing to do so.  The school says it might appeal, but I’d probably put my money on this case being upheld.

That’s just my opinion, based on the facts.