Today is Student Press Freedom Day, a day to recognize the important First Amendment rights and vital Fourth Estate function of journalists in schools, colleges, and universities.
Speech on college campuses, if more in a protest vein than a journalistic vein, has seen lately a wave of efforts at criminalization. Charges might not be on the scale of the federal Espionage Act. But the deployment of criminal law in the suppression of speech is bad news at any level.
Student journalism came face to face with the criminalization of protest speech recently at Northwestern University.
The Intercept reported on February 5 that students at Northwestern University had embodied their pro-Palestinian protest in a parody of The Daily Northwestern newspaper. The parody was regarded by other students and members of the community as offensive and antisemitic.
The newspaper publisher—a nonprofit comprising alumni, faculty, staff, and students, and distinct by design from the student editorial board—complained to police. And when the perpetrators were identified, prosecutors charged them with "theft of advertising."
"The little-known statute appears to only exist in Illinois and California, where it was originally passed to prevent the Ku Klux Klan from distributing recruitment materials in newspapers, The Intercept reported. "The statute makes it illegal to insert an 'unauthorized advertisement in a newspaper or periodical.' The students, both of whom are Black, now face up to a year in jail and a $2,500 fine."
The Daily Northwestern published an editorial demanding that charges be dropped. The publishing entity and prosecutors capitulated, Seth Stern recounted for the Freedom of the Press Foundation.
Stern lauded the student editors, and I agree. They didn't like their nameplate being appropriated by an offensive partisan protest. But that wasn't the point. Stern explained:
After all, newspapers are often the victims of the same kind of overreach the students are facing. Police in Marion, Kansas, raided the Marion County Record last August, purportedly to investigate whether reporters somehow committed identity theft by confirming a news tip on a government website. In October, authorities charged a reporter and publisher in Alabama with violating a grand jury secrecy law—plainly inapplicable to journalists—by reporting on a criminal investigation of a local school board. Six months before that, an Arizona state senator got a restraining order against a reporter for knocking on her door.
There’s more. A citizen journalist in Texas is hoping to go to the Supreme Court with her lawsuit over an arrest for violating an archaic law against soliciting “nonpublic information.” The City of Los Angeles last week sued a journalist for publishing information that the city itself gave him. And the mayor of Calumet City, Illinois, had citations issued to a journalist in October for asking public employees too many questions. The list, unfortunately, goes on and on.
There are cases in which I will go to bat for criminal law enforcement against protest activity. Protestors don't have a right to trespass on private property after being asked to leave peaceably, which seems to have happened at Brown University. And they don't have a right to cause damage or to put other people in harm's way.
First Amendment doctrine is not perfect, but it has plenty of experience drawing this line. What's worrisome about the latest incidents of speech criminalization is that we seem to have to be re-litigating some easy questions.
When I was an intern at the Student Press Law Center many moons ago, there were five statutes in the United States protecting student media freedom. Today there are 17. Read more about the steady but sure advance of student media freedom at the SPLC and how you can recognize student media freedom at Student Press Freedom Day.
