Morro Bay law update, 2008
NEW DEVELOPMENTS IN MEDIA LAW,
This was prepared for the 2008
Journalism Association of Community Colleges Faculty Retreat by Wayne Overbeck,
professor of communications, emeritus at California State University, Fullerton
and a former communications attorney. His media law textbook, Major
Principles of Media Law (Wadsworth), is now in its 19th edition. The
20th edition is scheduled to be published in August, 2008. This is the
28th year he has presented a law update at the Morro Bay conference.
The student press and the First Amendment
More than at any time since the late 1960s
and early 1970s, appellate courts are now addressing the First Amendment
rights of student journalists. This trend began with a decisive victory
for students in the 2001 case of Kincaid v. Gibson (236 F.3d 342),
in which the sixth circuit U.S. Court of Appeals ruled en banc that
administrators at Kentucky State University violated students' rights by
impounding all copies of the KSU yearbook. (In an en banc
decision, a larger panel of judges than the usual three decides a case.
In most circuits, including the sixth, all judges sitting on the court
hear an en banc case. In the huge ninth circuit, which includes
California, en banc panels now consist of 15 judges.)
If Kincaid was a victory for the student
press, the next major appellate court decision had the opposite outcome.
In Hosty v. Carter (412 F.3d 731), a 2005 en banc decision of the
seventh circuit U.S. Court of Appeals, the majority ruled that administrative
prior review of the student newspaper at Governors State University near
Chicago did not violate the First Amendment.
The Hosty case alarmed journalism educators
and student journalists nationwide. It led to campaigns in state
legislatures from coast to coast for laws protecting the student media
from administrative censorship. As detailed in last year's Morro
Bay law update, California was the first state to enact such legislation
post-Hosty, banning administrative censorship of public college
and university student media in AB2581, which was signed into law by Gov.
Arnold Schwarzenegger in 2006. Several other states have since enacted
laws affording the student press at least limited protection from administrative
Perhaps the most noteworthy state law enacted
since California's is the one approved in Illinois in 2007. It restores
the freedom from prior restraint that Illinois student journalists lost
in Hosty v. Carter. Although it's not as sweeping in its ban
on prior restraint as AB2581, it represents a huge victory for the student
press there. In 2007 Oregon also enacted a student press law, but
several key provisions were eliminated before it was approved, including
protections for faculty advisers and a provision declaring student newspapers
to be public forums.
The Illinois law includes language saying
it doesn't prevent a college media adviser "from teaching professional
standards of grammar and journalism." That provision, reminiscent
of one in the 30-year-old California law governing freedom of the student
press at the K-12 level (Education Code section 48907), probably has little
real significance because the same section of the Illinois law also says,
"collegiate student editors of campus media are responsible for determining
the news, opinions, feature content, and advertising content of campus
media." The Illinois law also gives students and media advisers
the right to sue for monetary damages for violations of students' free
press rights. It bans administrative prior review. And it says
colleges and universities are NOT liable for the content of student media.
That undercuts an administration's best argument for content control.
Appendix A for the full text of the Illinois
statute and Appendix B for the original draft
version of a proposed California law that would protect "permanent" faculty
members from punishment for defending the free expression rights of students.
Student press law: mootness after Lane v. Simon
In 2007 the tenth circuit U.S. Court of Appeals dismissed
as moot an appeal by former student editors after their faculty adviser
was reassigned to other duties at Kansas State University.
In Lane v. Simon (495 F.3d 1182), the court
said the case had to be dismissed because the plaintiffs, former editors
of the KSU Collegian, had graduated. In a brief opinion that
focused on the mootness issue, the three-judge panel cited two earlier
cases in which a student's graduation was held to render her/his constitutional
rights claims moot.
Former KSU Collegian editors Katie
Lane and Sarah Rice alleged that the reassignment of their faculty adviser,
Ron Johnson, violated their First Amendment rights. Johnson was initially
a party to the lawsuit, but his case was dismissed by a district court
judge and he did not appeal. The district judge had ruled that Johnson's
First Amendment rights were not violated because he didn't engage in any
activities that were protected by the First Amendment, such as editing
the news. He exercised no control over the newspaper's content.
The two student editors appealed, but the
tenth circuit said the entire case should be dismissed because the students
had graduated by then. The appellate court said:
"Plaintiffs have not formally sued in a representative
capacity, and there has been no effort on anyone's part to substitute current
editors as parties. Student Publications, Inc., the non-profit corporate
publisher, was neither named initially as a party nor has it sought to
join this litigation. Amici urge us to confer third-party standing
to plaintiffs on behalf of current and future Collegian editors.
Given that Johnson did not appeal, and neither the publisher nor the present
editors have joined in this litigation, we cannot countenance this type
of end-run around the general requirement that parties raise their own
claims..." The Student Press Law Center filed an amicus curiae brief
in the case.
This case resulted from a decision of the
director of the KSU School of Journalism and Mass Communications to remove
Johnson as faculty adviser after a content analysis of the Collegian,
commissioned by the J-school director, that compared it to six other university
newspapers. The content analysis led the J-school director to conclude
that the "Collegian's news reporting and writing are demonstrably
weaker than news coverage in peer college newspapers." The content
analysis showed that the Collegian had fewer hard news stories,
fewer diversity stories and fewer sports news stories than the other newspapers
analyzed. The analysis also showed that the Collegian cited
fewer sources per article. Because the "sub par scope and quality
of news coverage" extended back to 2000, the J-school director concluded
that Johnson's advising, rather than the composition of the student staff,
was to blame.
The content analysis and reassignment of the
faculty adviser followed a campus controversy after the paper did not send
a reporter to cover a Big 12 Conference-wide Black Student Government gathering
that was held locally. Students held a protest rally and march calling
for Johnson's removal for the paper's alleged lack of coverage of diversity
issues. The J-school director acted to reassign Johnson after the
content analysis confirmed that charge as well as other alleged deficiencies
of the Collegian.
Editors Lane and Rice pointed out that the
Collegian had won many awards, including three Pacemaker Awards of
the Associated Collegiate Press, during Johnson's tenure.
Although this ruling makes it more difficult
for students to litigate cases like this one, at least in the tenth circuit,
the editors faced difficult legal hurdles to begin with. Courts haven't
often been sympathetic to the First Amendment claims of faculty advisers,
as opposed to student editors. In this appeal two editors were claiming
that the reassignment of their adviser violated their rights even
after they graduated. But they served out their terms as editors
without any incidents of administrative censorship, they faced no disciplinary
action, and they graduated as planned.
How would a court in California address a
similar mootness claim in a case involving students' First Amendment rights?
Although there has been no precedent-setting
appellate court decision quite like Lane v. Simon in California,
a Superior Court judge in Los Angeles ruled in 2008 that a student's First
Amendment claims were rendered moot because she had completed eighth
grade. In Rudi v. Page Private School, Judge James C.
Chalfant ruled against Mariella Rudi Lopez in a case where her mother had
withdrawn her from seventh grade at Page Private School's Hancock Park
campus to avoid an expulsion that would be reflected on the student's academic
transcript. Mariella's offense was posting comments on MySpace.com
that the school regarded as lewd and defamatory toward two of the school's
teachers. The postings were done after school hours on her home computer
and were not connected to any official school activity. Mariella,
through her mother, sued, alleging violations of the girl's First Amendment
rights. The judge dismissed the case, ruling that because Page operated
only a K-8 school, and Mariella had completed eighth grade by the time
he heard the case, her claims were moot. This sets no precedent,
but it indicates how a California judge might rule in a case where a school
argues that a student's graduation rendered moot a claim that his/her rights
"Bong Hits 4 Jesus"--the Supreme Court decision
Last year's law update discussed a case in
which a high school student was disciplined for displaying a banner with
the slogan, "Bong Hits 4 Jesus," across the street for the campus during
a newsworthy event. The Supreme Court has now ruled against the student
in a decision that generated extensive publicity.
Ruling in Morse v. Frederick (127 S.Ct. 2618),
a 5-4 decision with several concurring and dissenting opinions, the
court said because the message on the banner could be interpreted as advocating
illegal drug use, it was not protected by the First Amendment.
In an opinion by Chief Justice John G. Roberts,
the court declined to use an analysis based on the landmark case of Tinker
v. Community School District (393 U.S. 503), in which the high court
broadly affirmed students' First Amendment rights in 1969. Although
the Morse case involved no disruption of the educational process
and no evidence of a violation of the rights of others (the two circumstances
Tinker allowed student speech to be suppressed), the apparent
advocacy of drug use was enough to justify censorship, Roberts said.
Joseph Frederick, then a student at Juneau-Douglas
(Alaska) High School, was suspended for 10 days for displaying his "Bong
Hits 4 Jesus" banner across the street from the school as the Olympic Torch
Relay was passing by--in what he acknowledged was an attempt to get on
national television. The torch relay was an event leading up to the
Winter Olympics in Salt Lake City in 2002. Principal Deborah
Morse crossed the street, confronted Frederick, crumpled the banner and
suspended him. He sued, alleging a violation of his First Amendment
rights and seeking money damages from Morse. School officials did
not claim that displaying the banner disrupted the torch relay or school
activities, but they said it interfered with the school's goal of promoting
a drug-free environment.
Reversing a ruling of the ninth circuit U.S.
Court of Appeals, the Supreme Court said Frederick's "Bong Hits" banner
had no First Amendment protection. The court conceded that Frederick
or anyone else would have the right to display that banner off campus,
but the court said Frederick was surrounded by other students and faculty
at a school "social event or class trip" across the street from the school
during school hours.
Emphasizing the limited scope of this decision,
two of the five-member majority, Justices Samuel A. Alito and Anthony M.
Kennedy, filed a concurring opinion in which they said they voted with
Roberts only because the issue was drug use. They emphasized
that the decision would not allow any restriction on political or social
advocacy by students. Justice Stephen G. Breyer said he would have
ruled in favor of the principal only because he thought she shouldn't face
monetary damages for a decision she had to make on the spur of the moment.
Breyer favored avoiding the First Amendment issue altogether. In
dissent, three other justices argued strongly that Frederick's banner should
be protected by the First Amendment. "That the court believes
such a silly message can be proscribed as advocacy (of drug use) underscores
the novelty of its position, and suggests that the principle it articulates
has no stopping point," Justice John Paul Stevens wrote in dissent.
Justice Clarence Thomas filed a concurring
opinion that was astonishing in its sweeping dismissal of students' rights.
He summarized--some said he rewrote--the history of student rights, arguing
that Tinker and the cases following it were wrongly decided.
He took a decidedly sympathetic view toward the old, long-rejected doctrine
of in loco parentis, which held that school officials stood in the
place of the parents, with broad authority to regulate student conduct,
The Morse case probably will not have
any great impact on the substantive rights of the student press, although
it continues the recent trend for the courts to take a narrower view of
students' rights than they usually did in the 1960s and early 1970s.
As a high-profile Supreme Court decision, it underscores the difficulty
of holding administrators monetarily liable for violations of student press
rights under the federal civil rights law that is often used in such cases
(42 U.S.C. 1983).
Student press law: the Smith v. Novato case
In 2007--almost 40 years after Tinker and
20 years after the Supreme Court held in Hazelwood v. Kuhlmeier
(484 U.S. 260) that the First Amendment does not preclude administrative
censorship of K-12 student newspapers--a California appellate court held
that state law protects even a student journalist who publishes an
anti-immigrant column in a high school newspaper. Ruling in Smith
v. Novato Unified School District (150 C.A.4th 1439), the court broadly
interpreted Education Code section 48907 (which gives K-12 student journalists
some statutory protection from administrative censorship in spite of Hazelwood).
Administrators tried to justify censoring
the paper by predicting that those who disagreed with the column might
cause a disturbance. But the court said, "A school may not prohibit
student speech simply because it presents controversial ideas and opponents
of the speech are likely to cause a disruption. Schools may only
prohibit speech that incites disruption, either because it specifically
calls for a disturbance or because the manner of expression (as opposed
to the content of the ideas) is so inflammatory that the speech itself
provokes the disturbance."
This case appears to be a major victory for
freedom of the press at California high schools. It is the first
precedent-setting appellate court decision in many years that specifically
involved censorship of the content of an officially sponsored high school
newspaper in California.
The Smith case took a narrow view of
section 48907's exception allowing censorship of material that might lead
to a disruption. The court said the fact that a student's expression
is controversial and that those who disagree might cause a disturbance
isn't enough to justify censorship. (Censoring speech to prevent
a hostile reaction by listeners is called a "heckler's veto" and is rarely
allowed by the courts. That is basic First Amendment theory--but
here it was applied to the content of a high school paper.
The case involved Andrew Smith, who was opinion
editor of The Buzz at Novato High School in 2001. He wrote
a column attacking illegal immigration. The principal, who read all
copy prior to publication, initially allowed the column to be printed.
But after Hispanic parents and students protested, the superintendent ordered
the principal to have all remaining copies of the paper confiscated without
even reading the article. That, the court said, was a violation of
Smith's rights under section 48907.
How does this affect the student press at
the college level? It certainly couldn't hurt, although AB2581, the
new state law protecting public college/university students from administrative
censorship, has none of the specific provisions for prior restraint that
weaken section 48907. At the very least, Smith v. Novato undercuts
any effort by administrators to justify censorship of a college newspaper
by citing the danger of a hostile reaction to the paper's content.
The California Supreme Court refused to hear
an appeal of the appellate court's ruling, giving Smith v. Novato
greater statewide impact.
Student election case not moot, but ex-student loses anyway
The ninth circuit U.S. Court of Appeals curtailed
First Amendment rights in campus elections in a 2007 case involving campaign
spending limits, Flint v. Dennison (488 F.3d 816). The court
upheld a $100 spending limit in elections at the University of Montana
and allowed the university to deny a student senate seat to Aaron Flint,
a student who overspent the limit by $114. The previous year, he
also apparently overspent the limit when he won the student body presidency,
but he was allowed to serve out his term then.
In off-campus elections, such limits on direct
spending by candidates are unconstitutional (Buckley v. Valeo, 424
U.S. 1, 1976). However, the court said student elections are only
a limited public forum, so the First Amendment doesn't fully apply.
If there is any consolation for the campus
media in a case that took a very limited view of the First Amendment rights
of college students, it is that the appellate court said the case was not
moot even though the student had left the campus by the time the case reached
the ninth circuit. When a disciplinary board ruled that Flint broke
the election spending rules, a record of the disciplinary action against
him was placed in his permanent record--creating an ongoing injury that
the court could have remedied by ordering the university to expunge the
disciplinary record if it had ruled in his favor. In short, Flint
had a right to pursue his case even though he lost.
In its headnotes summarizing the legal principles
of the Flint case, the Lexis-Nexis database offered an explanation
of mootness in headnote #8. Although headnotes are not a part of
the official opinion, this one is relevant to First Amendment cases involving
Generally, once a student graduates, he
no longer has a live case or controversy justifying declaratory and injunctive
relief against a school's action or policy, and his case is therefore moot.
When a student's record contains negative information derived from allegedly
unconstitutional school regulations, however, that information may jeopardize
the student's future employment or college career. So long as a former
student's record contains evidence of disciplinary sanctions, and the former
student seeks an order requiring school officials to expunge from school
records all mention of the disciplinary action, the action is not moot.
California Supreme Court upholds mall picketing rights
Ruling on Christmas Eve, 2007, the California
Supreme Court gave a major victory to labor unions and others who want
to picket at private shopping malls, reaffirming their right to do so even
if they urge shoppers to boycott a store in the mall.
In a closely contested 4-3 decision, the court
declined to abandon its 1979 precedent allowing picketing at private malls,
Shopping Center v. Robins (447 U.S. 74). In the new case, Fashion
Valley Mall v. National Labor Relations Board (S144753), the court
majority said the free-expression rights of protesters still outweigh the
property rights of the mall's proprietors.
The Fashion Valley case was especially
important to free-speech advocates because the U.S. Supreme Court has held
that there is no similar right under the First Amendment, and only a few
other state courts have recognized such a right under their state constitutions
as the California court did in Pruneyard. In fact, even a
number of California courts have interpreted Pruneyard narrowly
in recent years, refusing to recognize similar free expression rights at
stand-alone stores and in other private venues (as opposed to shopping
malls). Shortly before the Fashion Valley decision, a California
appeals court even ruled against those who wanted to collect voters' signatures
outside major stores that were grouped around a large parking lot--but
without the central courtyard feature of a mall (Van v. Home Depot).
Writing for the majority, Justice Carlos R.
Moreno said, "The mall's purpose to maximize the profits of its merchants
is not compelling compared to the union's right to free expression."
That produced a surprisingly strong
dissenting opinion by Justice Ming W. Chin, in which he attacked "the bankruptcy
the majority's position," noting how few other states' courts have followed
the Pruneyard precedent since it was decided nearly 30 years ago.
The new case involved picketing by unionists
outside a Robinson-May store, urging customers not to shop there because
the department store was a major advertiser in the San Diego Union-Tribune,
which was involved in a labor dispute with the union.
Washington Supreme Court rejects law banning false political speech
The Washington State Supreme Court has overturned
as unconstitutional a state law that allowed a government agency to punish
political candidates for making what the agency deemed to be false statements
in political campaign materials. The court, in a 5-4 decision, said
the law, which allowed political speech to be suppressed without any showing
that it was defamatory and was made with actual malice, as required by
the landmark New York Times v. Sullivan decision of the U.S. Supreme
Court, violated both the First Amendment and the state constitution.
In Rickert v. Public Disclosure Commission
(168 P.3d 826, 2007), Justice James Johnson wrote for the majority, 'The
notion that the government, rather than the people, may be the final arbiter
of truth in political debate is fundamentally at odds with the First Amendment."
The four dissenting justices said the court's decision was an "invitation
to lie with impunity."
Marilyn Rickert, a Green Party candidate for
the state legislature, was fined $1,000 for making two statements that
the Public Disclosure Commission determined to be false about State Sen.
Tim Sheldon, who was easily re-elected despite Rickert's allegedly false
campaign flier. She challenged the fine, and eventually the
Washington Supreme Court overturned the law under which she was punished.
Webcasters and SoundExchange agree on music royalties
In August, 2007, a group representing online
audio broadcasters reached a royalty agreement with SoundExchange Inc.,
which represents performers and record companies. The deal allowed
many Internet broadcasters to continue their programming. Under royalty
rates set earlier by the U.S. Copyright Royalty Board, a government agency,
the fees were so high that many webcasters said they would be forced to
shut down because they could not afford to pay them. Separate royalty
negotiations have been under way between webcasters and music licensing
agencies that represent owners of the copyrights to the underlying music
and lyrics, as opposed to the performance copyrights.
Jury fines Minnesota woman $222,000 for sharing music
In the largest award of its kind, a federal
jury in October, 2007 ordered a Minnesota woman to pay a fine of $9,250
to record labels for each of 24 copyrighted songs she allegedly shared
via the Internet. Jammie Thomas, a 30-year-old single mother of two
who earns $36,000 a year as an employee of an Indian reservation, was found
by the jury to have shared songs via the Kazaa file-sharing site, although
she denied it. The jury could have awarded the record labels as much
as $150,000 for each instance of file-sharing.
Altogether, the record industry had filed
about 30,000 lawsuits against those it accused of sharing music online
by the end of 2007. About 10,000 of those cases have been settled
by payments by individuals to the industry of $5,000 or less. This
case was noteworthy because Thomas chose to fight instead of settling and
because the jury nailed her with such a large verdict.
Her attorney later asked the judge to set
aside the verdict and order a new trial, arguing that the 24 songs could
have been purchased online for about $24, and that at the very most the
recording industry suffered losses of $151 because of Thomas' file sharing.
House passes federal shield law
In October, 2007, the House of Representatives
overwhelmingly approved a federal shield law. The vote was 398-21,
far more than sufficient to override a threatened presidential veto.
At about the same time, a similar proposal was approved by the Senate Judiciary
Committee. If ultimately enacted, the bill would cover professional
journalists but not bloggers or others who do not earn substantial money
by their journalistic work. It would protect journalists from being
required to reveal confidential information or the names of their sources
under many circumstances. Courts would be able to set aside the shield
and force journalists to provide certain information that might assist
in solving crimes, prevent an act of terrorism or track down leaks of information
that would endanger national security.
Congress enacts new FoI law
Acting just before their holiday recess, both
houses of Congress overwhelmingly approved the OPEN Government Act of 2007
and President Bush signed it into law at year-end.
The bill reversed many of the Bush administration's
efforts to increase government secrecy since the 2001 terrorist attacks.
It also restricted the scope of an order by then-Attorney General John
Ashcroft directing federal agencies to resist requests for information
under the Freedom of Information Act whenever there was a legal basis for
Among other things, the 2007 law brought nonproprietary
information held by government contractors within the scope of the FoI
Act. The new measure required agencies to meet a 20-day deadline
for responding to FoI requests or else refund search and duplication fees
paid by noncommercial requesters. Also, agencies now have to explain
instances where part of a document is blacked out before it is released
to a requester. In addition, the 2007 legislation set up a system
for requesters to track the status of their queries and created an ombudsman
in each agency to deal with disputes over information requests without
California Supreme Court upholds access to police and public employee
The California Supreme Court in August, 2007
affirmed the right of journalists to inspect police hiring records and
to learn the names and salaries of government employees in two separate
Ruling in International Federation of Professional
and Technical Engineers v. Superior Court (Contra Costa Newspapers)
(42 Cal.4th 319), the court held that the salaries of specific government
workers are covered by the California Public Records Act, despite the argument
of public employee unions that the disclosure of salary information would
violate the privacy rights of government workers. This decision resolves
a lawsuit filed by the Contra Costa Times to obtain the salaries
of Oakland city employees who earned more than $100,000 in 2003-04.
Some Oakland police officers were reportedly earning more than $200,000
a year, including overtime pay.
The court ruled that the decision applies
to police officers as well as other public employees, rejecting objections
of police unions.
In the other case decided the same day, Commission
on Peace Officer Standards and Training v. Superior Court (Los Angeles
Times) (42 Cal.4th 278), the court held that records of police hiring
and termination are public records. The Times pursued the
case after learning from sources that "problem" officers were simply moving
to a different department after being terminated by one law enforcement
The court's majority said these decisions
should not affect the anonymity of undercover officers because those using
their real names, if any, would be allowed to have their names removed
from the publicly accessible database of police employment records.
FCC appeals Fox TV decision on indecency
In late 2007 the Federal Communications Commission
appealed the second circuit U.S. Court of Appeals decision in the Fox
Television Stations v. FCC case (489 F.3d 444), in which the court
overturned a number of recent FCC fines against broadcasters for the airing
of fleeting or spontaneous indecent language. The U.S. Solicitor
General, acting on the FCC's behalf, asked the U.S. Supreme Court to hear
The Fox decision not only overturned
several recent FCC actions against broadcasters but also ordered the FCC
to better justify future actions against allegedly indecent programming
FCC again relaxes cross-ownership rules
Acting on an accelerated timetable in December,
2007, the FCC approved a new plan to deregulate the long-controversial
newspaper-TV cross-ownership rules. On a partisan 3-2 majority, the
FCC modified the rules to allow one company to acquire both a newspaper
and a TV station in the nation's 20 largest markets, provided the station
is not one of the top four in the market in terms of revenue and also provided
there are still eight different media "voices" (TV stations or newspapers)
after the merger.
The new rules, written and pushed through
the commission by FCC Chairman Kevin Martin, would allow newspaper-broadcast
combinations in smaller markets if the merger involves a failing newspaper
or would result in at least seven hours per week of local news programming
on a station that was not previously airing local news.
Martin justified the liberalized rules by
pointing to the widespread financial woes of the newspaper industry, which
has experienced declining advertising revenue and readership in the Internet
era. Many local TV stations have also seen viewership decline in
recent years, a reality that led the FCC to liberalize its duopoly rule
to allow one company to own more than one TV station in larger metropolitan
areas. That rule was relaxed in several stages starting in the 1990s.
The new rules were widely assailed by critics
of corporate media ownership who said the rules would inevitably reduce
the number of independent media voices. They said they would appeal,
as they did after the FCC's 2003 ownership deregulation. Broadcast
industry representatives also attacked the new rules, contending that they
do not go nearly far enough, allowing cross ownerships in only a relatively
few media markets.
Martin put the new rules on a fast track for
approval apparently in part because of the pending change of ownership
of a major media company--Tribune Corporation. Real estate investor
Sam Zell's, who negotiated an $8.2 billion plan to take Tribune private
under a complex arrangement involving employee ownership, said the
deal had to close by the end of 2007. Without approval of new rules
or waivers in New York, Chicago, Los Angeles and other markets where the
company already owns both a newspaper and a TV station, Zell was quoted
as saying the financing of the deal would collapse. In essence, he
was saying that, even though Tribune previously received waivers,
investors would need assurances that future spinoffs of Tribune stations
and newspapers could be negotiated free of the old cross-ownership rules.
Sales of co-located media properties could trigger new cross-ownership
problems, he feared. Zell closed the deal to take Tribune private
the day after the FCC adopted the new cross-ownership rules.
Tribune had been grandfathered in Chicago
because the company owned both WGN-TV and the Chicago Tribune long
before cross-ownership was banned in 1975. It had acquired both newspapers
and TV stations in a number of other markets under previous waivers or
loopholes in the ownership restrictions.
On the same day the FCC voted to relax the
cross-ownership rules, the FCC also voted 3-2 to establish a new cap on
the percentage of all U.S. cable TV households that may be served by any
one company. The new maximum was set at 30 percent. Only Comcast
is close to that limit, serving about 27 percent of all cable households.
Comcast vowed to challenge the new cable cap
in court, charging that it unfairly discriminates against cable in its
competition with telephone companies that are rapidly moving into the subscription
Also on the same day as its vote on the cross-ownership
rules, the FCC launched a proceeding to consider new requirements for broadcast
license renewals, including a reinstatement of many of the local community
service rules of the 1970s that have since been abandoned.
Microsoft agrees to European antitrust regulators' demands
Ending a decade-long battle with the
European Union, Microsoft Corporation agreed in October, 2007 to comply
with the EU's antitrust demands. Facing fines that had soared past
the billion-dollar level, Microsoft agreed to settle the dispute by offering
much more information about how the Windows operating system works to competitors
at a low cost. This will allow competitors to develop products that
work better with Windows. Microsoft also agreed to drop its appeal
of an adverse ruling by the EU's second highest court.
Appendix A - Illinois student press law,
SB0729 Enrolled LRB095 10231 NHT 30445 b
AN ACT concerning education.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as
College Campus Press Act.
Section 5. Definitions. For purposes of this Act:
"Campus media" means any matter that is prepared,
substantially written, published, or broadcast by students at
State-sponsored institutions of higher learning, that is
distributed or generally made available, either free of charge
or for a fee, to members of the student body, and that is
prepared under the direction of a student media adviser.
"Campus media" does not include media that is intended for
distribution or transmission solely in the classrooms in which
it is produced.
"Campus policy" means the views and positions of
State-sponsored institutions of higher learning promulgated by
administrators, officials, or other agents of these
"Collegiate media adviser" means a person who is employed,
appointed, or designated by the State-sponsored institution of
higher learning to supervise or provide instruction relating to
"Collegiate student editor" means a student at a
State-sponsored institution of higher learning who edits
information prepared by collegiate student journalists for
dissemination in campus media.
"Collegiate student journalist" means a student
State-sponsored institution of higher learning who gathers,
compiles, writes, photographs, records, or prepares
information for dissemination in campus media.
"Prevailing party" includes any party who obtains
his or her requested relief through judicial judgment in his or
her favor, who obtains some of his or her requested relief
through a settlement agreement approved by the court, or whose
pursuit of a non-frivolous claim was a catalyst for a
unilateral change in position by the opposing party relative to
the relief sought.
"State-sponsored institution of higher learning"
University of Illinois, Southern Illinois University, Chicago
State University, Eastern Illinois University, Governors State
University, Illinois State University, Northeastern Illinois
University, Northern Illinois University, Western Illinois
University, and public community colleges subject to the Public
Community College Act.
Section 10. Public forum. All campus media
primarily by students at a State-sponsored institution of
higher learning is a public forum for expression by the student
journalists and editors at the particular institution. Campus
media, whether campus-sponsored or noncampus-sponsored, is not
subject to prior review by public officials of a
State-sponsored institution of higher learning.
Section 15. Grammar and journalism standards. Collegiate
student editors of campus media are responsible for determining
the news, opinions, feature content, and advertising content of
campus media. This Section does not prevent a collegiate media
adviser from teaching professional standards of grammar and
journalism to collegiate student journalists. A collegiate
media adviser must not be terminated, transferred, removed,
otherwise disciplined, or retaliated against for refusing to
suppress protected free expression rights of collegiate
student journalists and of collegiate student editors.
Section 20. Injunction and declaratory relief. A
collegiate student enrolled in a State-sponsored institution
of higher learning or a collegiate media advisor of a
State-sponsored institution of higher learning may commence a
civil action to obtain appropriate injunctive and declaratory
relief as determined by a court for violation of Section 10 of
this Act by such State-sponsored institution of higher
learning. Upon motion, a court may award attorney's fees to a
prevailing party in a civil action brought under this Section.
Section 25. Campus policy and speech distinguished.
Expression made by a collegiate student journalist, collegiate
student editor, or other contributor in campus media is neither
an expression of campus policy nor speech attributable to a
State-sponsored institution of higher learning.
Section 30. Discipline; unprotected speech. Nothing
this Act prohibits the imposition of discipline for harassment,
threats, or intimidation, unless constitutionally protected,
or for speech that is not constitutionally protected, including
obscenity or incitement.
Section 35. Immunity. A State-sponsored institution
higher learning shall be immune from any lawsuit arising from
expression actually made in campus media, with the exception of
the institution's own expression.
Section 97. Severability. The provisions of this
severable under Section 1.31 of the Statute on Statutes.
Appendix B - Draft version of proposed California
legislation to protect journalism advisers.
A permanent employee shall not be dismissed, suspended, disciplined,
reassigned, transferred or otherwise retaliated against for acting to protect
a student engaged in conduct authorized under this section, or conduct
that is protected by the First Amendment to the United States Constitution
or Section 2 of Article I of the California Constitution. (This
language would appear in Education Code section 48907, which applies to
K-12 schools, and Education Code section 66301, which applies at the college
* * *
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