College Forgets How The First Amendment Works; Targets Its Own Student Newspaper With A Public Records Request

from the seems-like-it's-time-for-a-refresher-course dept

A California community college has discovered open records requests. It's not receiving them, which would be normal. Instead, it's filing them. And in doing so, it's attempting to bypass the state's journalist shield law by pretending the party it's FOIAing is a public entity.

In an apparent attempt to regain narrative control of an incident involving the college's administration and the student government, Southwestern College is seeking to obtain the recording of that event by the school's student newspaper. The recording is of a student government election that was abruptly cancelled by the school's president in May, apparently over a bogus Instagram post that suggested one group of students was going to engage in interracial violence.

The school was rebuffed when it swung by the newspaper to ask for a copy of this recording. So, it decided to go with plan B: a public records request.

As FIRE (Foundation for Individual Rights in Education) reports, the school is attempting to obtain something protected by the state's shield law. The school is aware of this because the student newspaper told it as much when it asked the first time. So, it made an official request and appended a lot of garbage to its request in an attempt to talk the newspaper into believing it was subject to public records requests.

Less than a week later, the administration hand-delivered a second letter to the permanent adviser, now back from medical leave, incorrectly alleging that the newspaper was a government actor and thus subject to the California Public Records Act. Further, the Title IX director claimed that not producing the records was “subversion of the public’s right to access” in violation of the Society of Professional Journalists’ Code of Ethics.

It’s not.

The school is so so so very wrong. It has now received a letter [PDF] of its own from FIRE -- crafted by Adam Steinbaugh -- that enumerates the many ways the college screwed up. To begin with, the college's interpretation of the state's public records law gets everything backwards.

The novel theory underlying the District’s request—that student organizations are subject to the California Public Records Act (CPRA) because they are entities that are “part of the larger Southwestern Community College District” and are engaged in activities “funded by the College District, and produced by students”—finds no support in the CPRA.

The CPRA does not confer a public right to access records of private entities, but instead allows public access to public agencies.

The school's belief the student newspaper is as "public" as the university where it resides is also wrong. As Steinbaugh notes, the paper is an auxiliary organization distinct from the college. If the school truly believed the paper was part of its public whole, it would have approached a separate office of the school's administration to submit its public records request.

Furthermore, even if the school was right and the paper was subject to the state's public record laws, the paper would still be well within its rights to withhold the recording. The paper's First Amendment rights, along with the state's shield law, would give it all the permission it needed to deny the request.

The deference afforded to journalists’ protection of confidential sources and unpublished information cannot be understated. There is a “paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters . . . .” Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 495 (C.D. Cal. 1981). Even leaving aside the considerable First Amendment right to resist government efforts to compel the release of unpublished information, as discussed below, California has elevated a journalist shield law in its state constitution. (Cal. Const., Art. I § 2 subd. (b).) 7 Similarly, California goes to great lengths to place barriers between student newspapers and their host institutions. (Ed. Code § 66301 subd. (a) & (f) (barring administrators from taking action to penalize students or faculty advisers for students’ protected expression).) Southwestern may not make an end-run around these barriers by resorting to an unorthodox application of the CPRA.

Steinbaugh also reminds the college to tread carefully now that it's been told multiple times to GTFO. Retaliation against protected speech is a helluva tort and public college administrators cannot expect qualified immunity to save them if this turns litigious.

Filed Under: california, free speech, journalism, public records, shield law
Companies: southwestern college


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  1. icon
    Stephen T. Stone (profile), 1 Jul 2019 @ 11:10am

    Huh. So there is a First Amendment crisis on a college campus!

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 1 Jul 2019 @ 12:23pm

    Re:

    There is sadly a 1st Amendment crisis across the nation right now with politicians and public entities everywhere trying to tear it down for their own ends. Government run amok.

    reply to this | link to this | view in thread ]

  3. This comment has been flagged by the community. Click here to show it
    identicon
    Nate P Cilver, 1 Jul 2019 @ 12:41pm

    Re: Re:

    Sorry Alt-right bigot. Hate speech is not free speech.

    reply to this | link to this | view in thread ]

  4. icon
    radix (profile), 1 Jul 2019 @ 12:56pm

    Next Month

    "Southwestern Community College is excited to announce that we have reorganized as a newspaper, though we 'regret' to inform you that all our records are now private. Don't bother asking how this is going to work, that's private, too."

    reply to this | link to this | view in thread ]

  5. icon
    ECA (profile), 1 Jul 2019 @ 1:15pm

    Interesting..

    Its so entertaining to see HOW a democracy works..
    And how our LAWS are supposed to work.
    To bad they dont give us a LIST of laws to live and abid by, AS WELL as ones the state/fed/everyone else has to work with..
    (it would fill your house)

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 1 Jul 2019 @ 1:30pm

    Re: Re: Re:

    Not how I read his comment. I read it as him referring to government calls for social media platforms to be "neutral" politically and generally try to tell people what they can and cannot say online, which is absolutely a slap in the face of the 1st Amendment.

    And usually it's the alt-righters calling for that "neutrality" and trying to tear down freedom of speech, not the other way around.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 1 Jul 2019 @ 1:45pm

    amateur skool bully

    ... sounds like just an amateurish bullying attempt by the school President, with no legal advice sought or used.
    That President is probably used to getting his way thru intimidation tactics within his little fiefdom.

    Not really any big legal rights issues in this obscure episode -- just a lone jerk with a fancy local job title.

    reply to this | link to this | view in thread ]

  8. identicon
    Dan, 1 Jul 2019 @ 1:56pm

    Re: Re: Re:

    "Hate speech" (whatever it actually is) is speech. It's protected by the First Amendment, like almost all other speech.

    reply to this | link to this | view in thread ]

  9. icon
    Stephen T. Stone (profile), 1 Jul 2019 @ 2:03pm

    Hate speech is not free speech.

    Except it is. The cops can’t arrest someone for yelling “White Power” at a Klan rally.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 1 Jul 2019 @ 3:01pm

    Am I the only one picturing the lawyer from Scrubs?

    The lawyer in charge of submitting this must be as unaware of the law as the lawyer in that comedy show. Well if we have to turn over records when people use this argument, they must have to do the same thing.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 1 Jul 2019 @ 3:36pm

    Re: amateur skool bully

    Not really any big legal rights issues in this obscure episode -- just a lone jerk with a fancy local job title.

    Not any big legal issue, as it only impacts criminals is how the DOJ has arrived at the place where they add charges until they get a plea bargain.

    Abuse of power by those in power spreads and expands unless it is opposed at all levels.

    reply to this | link to this | view in thread ]

  12. icon
    tom (profile), 1 Jul 2019 @ 3:52pm

    Very possible that the President and/or lawyers knew this was a bogus request and hoped the recipient either didn't know the laws or wasn't willing to put their career on the line in fighting it. Bluffing is a time honored legal strategy. Sounds like in this case the bluff was soundly called and raised.

    reply to this | link to this | view in thread ]

  13. icon
    That Anonymous Coward (profile), 2 Jul 2019 @ 4:11am

    Its scary in my head, I latch on to the damnest things...

    'the Title IX director claimed'

    Considering the number of Title IX directors who have been publicly shamed by courts, reporters, & anyone else who supports a fair process... perhaps you could have found someone slightly more competent to make claims... like a janitor.

    reply to this | link to this | view in thread ]

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