Wisconsin Assembly lawmakers held a hearing Oct. 26 to discuss Republican-led legislation which would guarantee certain rights and protections for K-12 and higher education student journalists.
The legislation, introduced on Oct. 23, would codify speech rights and protections for student journalists as well as create an appeals and review process for students to challenge editorial decisions from school-sponsored media at public K-12 schools, University of Wisconsin System schools and technical colleges.
The bill classifies school-sponsored media as “any material that is prepared, substantially written, published or broadcast” by student journalists “at a school, under the direction of a media adviser and distributed or generally made available to students enrolled in the school,” with the exception of material intended to be used solely for a course offered by the school.
“As young journalists gain their first real experience in reporting and editorializing, it's critical that the strong arm of the government does not stifle their speech even before they find their voice,” Michael Moscicke, a staff member representing Sen. Rachel Cabral-Guevara, R-Appleton, said during the hearing.
The bill would not protect speech deemed libelous, obscene, an unwarranted invasion of privacy in violation of state or federal law or inciting a violation of the law or lawful school policy.
Simon Mehring, the associate editor-in-chief of the Norse Star student newspaper at Stoughton High School, helped advance this bill by modeling it after the “New Voices” legislation passed in 17 states to provide student journalists freedom of speech protections.
Rep. Jodi Emerson, D-Eau Claire, told The Daily Cardinal she supports the legislation, calling it a strong proactive measure to protect student journalists.
“I'm pretty happy with it,” Emerson said. “I think there's a few places we will probably work to tighten it up a little bit.”
Experts debate press protections for K-12 students
While lawmakers from both parties endorsed expanding freedom of speech rights for student journalists, legal experts flagged concerns over removing the power of K-12 schools to exercise prior restraint — suppressing or censoring speech before it’s published — on younger student journalists.
Howard Schweber, a former UW-Madison political science professor, told the Cardinal the bill’s language does not clearly define the freedoms student newspapers hold but “appears to require that schools allow students to make [First Amendment] judgements themselves.”
Schweber raised concern about the bill’s extension of freedom of speech protections to grades six through 12, which would allow young students to publish pieces without prior restraint.
“I'm deeply concerned that the result would actually be that these student newspapers would close because schools and school districts and children's parents and children's parents’ insurers might not be willing to take the risks the legislators are willing to take in saying to a 12 year old, ‘Do whatever you want and if you make a mistake in judgment, there could be a lawsuit,’” Schweber said.
In 1988, the Supreme Court ruled in Hazelwood v. Kuhlmeier that school-sponsored high school student newspapers have fewer First Amendment protections than independent publications and allowed school administrators to exercise prior restraint over school-sponsored media if the censorship is “reasonably related” to legitimate educational concerns.
A 2005 decision from the U.S. Court of Appeals for the Seventh Circuit extended Hazelwood’s restrictions to higher education in Wisconsin, Illinois and Indiana.
Wisconsin is one of two states under which Hazelwood’s restrictions on school-sponsored media applies to universities and technical colleges, according to Joseph Cohn, legislative and policy director for nonprofit civil liberties group Foundation for Individual Rights and Expression (FIRE).
Though the UW System has the right to restrict school-sponsored speech, current UW policy places students in full control of what gets published in school-sponsored student newspapers and college radio stations, according to UW System Vice President for University Relations Jeff Buhrandt.
“I am all in favor of university student journalists having the full freedom of the journalists for the Wisconsin State Journal so long as they’re accompanied by requirement to have some training,” Schweber said.
Buhrandt testified that the creation of an appeals process would more extensively involve the Board of Regents than current university policy. He said the bill should instead be “more focused on empowering students rather than creating a clumsy appeal process.”
The bill does not specify what the appeals process must look like. This allows the Board of Regents discretion to create its own policy as long as it complies with the bill, Emerson said, while also ensuring student journalists have recourse if they believe their freedom of speech rights were violated.
Lawmakers consider expanding protections to private schools
Rep. Alex Joers, D-Middleton, expressed uncertainty that the freedom of speech protections would not apply to private schools under this bill, even if those schools receive public funding.
“If they’re going to receive public dollars, they should be held to the same standard,” Joers said during the hearing.
Schweber said that private schools are not required to comply with the First Amendment. But the Legislature is “perfectly free to create protections for freedom of expression that go beyond what the First Amendment requires.”
“The First Amendment is a minimum,” Schweber said. “The Constitution is concerned with securing rights and establishes minimums, [but] states and localities are free to go further.”
But expanding speech protections to private schools would stand on uncertain legal ground, Cohn said during the hearing, since it could create a conflict between the student journalist’s right to speech and private schools’ First Amendment rights as private entities.
“I would say tread extremely carefully if you choose to do that because this is a direct tension between two different actors’ free speech rights when you're talking about private entities,” Cohn said. “There isn't a case law wealth of resources there for you to say that will be upheld, so it is certainly riskier for you to do.”
During the hearing, Republican lawmakers remained opposed to expanding freedom of speech protections to private schools that receive state funding.
“That's a bridge too far, to extend our reach into the private schools,” Michalski said.
Schweber voiced caution over attempts by both liberals and conservatives to frame free speech along the lines of their own ideological division.
“I fear for these to become partisan issues and for people to assume that something that sounds pretty good, like freedom of the press, must support their side in whatever the issue is,” Schweber said. “Actually, freedom means freedom. It precisely means the press can do things you don't like or do like or refrain from doing things that you want them to do.”
Francesca Pica is the city news editor for The Daily Cardinal. She has covered multiple municipal elections and is a leading reporter on Madison labor issues. Additionally, she will serve as a news intern for The Capital Times throughout the summer of 2023.
Ava Menkes is the state news editor at The Daily Cardinal. She has covered multiple stories about Wisconsin politics and written in-depth about nurses unions and youth voter turnout. Follow her on Twitter at @AvaMenkes.