Is MCPS violating a state law protecting student journalism?
Will they be sued if they change their policy–or sued if they don’t? Guest post by Ian Chen
MCPS student journalists – and their teacher advisors – are trying to understand new district policy guidance for reviewing student publications. They’ve written an open letter to MCPS about their concerns that it runs up against Maryland’s 2018 New Voices Act to protect student journalism from “prior restraint,” censoring content before it’s published. They have over 750 signatures on their change.org petition and have received plenty of media coverage including from the Washington Post. Student journalists are the wrong people to mess with!
Graphic courtesy of Wendi Ling.
On June 16, Dr. Taylor replied to their petition, nicely saying they wouldn’t be changing anything. At the Board of Education’s June 25 meeting, four student MCPS journalists testified publicly, as did an attorney from the Student Press Law Center and a program officer from the Foundation for Individual Rights and Expression. Dr. Taylor stood by the MCPS memo, saying it “is in relation to prior review, not prior restraint.” Prior review is examining content before it’s published; prior restraint is the subject of the New Voices Act.
I’m happy to introduce hopefully the first of many student journalist guest posters, Ian Chen. Ian is an editor at The Tide of Richard Montgomery and led the countywide coalition of students fighting the policy. He was the primary author of the open letter from MCPS student journalists to MCPS, a comprehensive explainer. For today’s post, I’ve asked him to describe what’s happened since they wrote that letter. I recommend reading the letter for the legal history and more details on prior review and prior restraint.
Given today’s topic, I’ll be clear on who did what in this post: I posed questions for Ian to address in his post, and reviewed his work before publishing to ensure readers could fact-check it themselves. I’m not a lawyer and did not consult legal counsel. Ian also wrote the pop quiz and extra credit. Welcome, Ian! Tell us what happened after the letter.
Four days after the open letter was published, MCPS superintendent Dr. Taylor responded (below) in the comments of the Change.org petition. The prior Friday, an MCPS spokesperson had sent the media brief comments, but did not directly respond to our request for revocation.
Dr. Taylor’s written response to our open letter
In his response (below), Dr. Taylor more or less echoed the spokesperson’s language and tone, but now made his position clear: MCPS would not be revoking the memo.
His primary argument was based on what he called the district’s “fiduciary responsibility to spare the taxpayers by insulating the school system from lawsuits.” According to the spokesperson in a comment sent to Bethesda Magazine, there had been instances “where inappropriate content was printed, but not reviewed first, in school yearbooks and other publications, resulting in substantial disruption to school operations and community hurt.”
The liability in a lawsuit argument was debunked at Thursday’s Board meeting by Jonathan Gaston-Falk, who is an attorney at the Student Press Law Center. “Across all eighteen states with similar scholastic press freedom laws, we are aware of no published court decision imposing liability on a school district for school-sponsored student journalism,” he said in video testimony.
In addition to avoiding “lawsuits and liability,” Dr. Taylor argued that according to the law, it was the district’s “responsibility to review for any [censorable] content.” But nothing in the law mandates a school district to engage in prior review. The New Voices Act limits what can be censored, and does not obligate that school districts preemptively review for such content.
It’s curious that Dr. Taylor agreed with us that the district should be only reviewing for content that falls into the four exceptions under the law—he says “MCPS remains committed to the legal protections under the Maryland New Voices Act, which is codified by MCPS in Regulation JFA-RA”—but he ignored our concerns that the memo allows censorship that strays beyond what is legal. Administrators are instructed to censor journalism that falls into vague categories, including “embarrassing or private moments,” “ridicule of individuals or groups,” and “sarcasm or teasing that could be interpreted as bullying.” This amounts to a blank check for administrators to kill any story that is controversial, even if it is necessary and legitimate journalism.
Dr. Taylor ends by saying: “I get the kids don’t like it and want free reign.” But, “as responsible adults and educational leaders,” it is MCPS’ responsibility to monitor student publications. This is belittling language that completely misses our ask and undermines the professionalism, rigor, and impact of our work. We are not asking for “free reign,”—we completely agree that libel and illegal content have no place in our newspapers—but for the district to follow the law.
What we testified on at the June 25 meeting
I testified first, introducing myself and the coalition. I made it clear that the experts in the broader journalism and press rights community are on our side, listing out our endorsements which include the Society of Professional Journalists, the Journalism Education Association, and the Foundation for Individual Rights and Expression (as well as all the candidates for the district three Board of Education seat).
I asked for two things. First, I reiterated the need for the revocation of the memo and a return to the existing MCPS framework. Second, understanding that the Board could not take a vote that very night, simply a date by which they would formally respond to our concerns.
Aditi Iyer, one of two editor-in-chiefs of The Tide, testified right after me. She continued where I had left off, explaining the legal reasoning behind our ask, and also gave an example of the danger of having such vague censorship standards.
Third was Juveria Asad, a staff writer for The Tide. She gave examples of the important journalism the new memo would now be suppressing. For example, an annual school-sponsored event at Walt Whitman High School was exposed by the school newspaper as having a toxic culture of alcohol abuse and sexual harassment. The event was cancelled after the story broke. An article that would embarrass administrators like that could certainly be censored under the “embarrassing or private moments” standard. Perhaps, it wouldn’t even have been attempted because of the fear that arises when you know your work is completely subject to an administrator who has the power to censor anything controversial that you write.
In a pre-recorded video testimony, Jason Makstein, a local journalist and publisher of Moderately MOCO, testified on the mastery and professionalism of the many high school journalists he has worked with.
Dominic Coletti of the Foundation for Individual Rights and Expression, a national nonprofit dedicated to defending First Amendment rights, offered his perspective as an expert in student press law.
Attorney Jonathon Gaston-Falk of the Student Press Law Center debunked Dr. Taylor’s argument that prior review is necessary to minimize liability. Across all eighteen states with similar scholastic press freedom laws, the SPLC is aware of no published court decision imposing liability on a school district for school-sponsored student journalism. In fact, he said, the memo creates new risk. MCPS is requiring administrators to become participants in the publication process, which makes them responsible for speech that “Maryland law deliberately places in student hands.” Lastly, he raised the possibility of a lawsuit brought to enforce the Maryland New Voices law. He stated that if we the students choose to do so, the “Student Press Law Center and the broader scholastic journalism community will stand ready to support them.”
What MCPS and the Board said at the June 25 meeting
Dr. Taylor did not revoke the March memo, and the Board ignored our request for a date by which they would formally respond to our concerns.
Dr. Taylor repeated the arguments he laid out in his written response, and once again publicly ignored our concerns that the censorship standards of the memo exceed what is legal. He repeated the argument that “We also do have a responsibility [to engage in prior review]. And that responsibility we are going to follow as adults, and in compliance with the Maryland New Voices Act.” As I’ve previously said, nowhere in the law is prior review mandated as the school district’s “responsibility.”
At the meeting, the Board president Grace Rivera-Oven publicly mentioned that she already had a conversation with Dr. Taylor after the open letter, so it seems that the Board is sided with Dr. Taylor.
Dr. Taylor added that, “Our intent is not to censor your work, not one bit. And I hope that we make that abundantly clear to you over and over again.” Obviously, intent doesn’t matter if censorship is the practical reality. As Juveria noted in her testimony, beyond the censorship inherent to the memo, systematic prior review can chill and suppress the topics we are willing to cover.
Next steps
School is out, but we will not stop fighting this dangerous censorship memo. Press freedom in America has already been in decline, and we cannot afford to lose more ground. For the freedom of the press enshrined in the First Amendment to remain sacred, it must be sacred, respected, and upheld in every single jurisdiction.
Pop quiz
Which of the following best describes the relationship between the New Voices Act and school district policy?
a. Under the law, prior review is mandated to ensure schools are not liable for student speech.
b. The law mandates that all student journalism must be reviewed by an administrator to protect against illegal content.
c. Prior review is not inherently required by law and using it to censor legitimate journalism based on vague standards like “sarcasm” creates legal risk rather than reducing it.
d. Student journalists have “free reign” to publish anything without administrator interference, including libelous or illegal content, but will be held responsible for it under the law.
Answer key
c. The New Voices Act was designed to limit censorship, not mandate a review process. The SPLC is not aware of schools in other states with similar student press freedom laws being held liable for student journalism. Also, by inserting themselves into the review process, administrators may inadvertently assume responsibility for content that the law intended to remain in student hands.
Extra credit (still by Ian)
Sign our petition and share it with your friends and family, and neighbors.
Email the school Board expressing your concern, and feel free to use this template (which includes all the relevant email addresses)
Read the letter from the lawyers at FIRE, which thoroughly explains the legal and technical side of our arguments.
Listen to our feature on the I Hate Politics podcast
Exit ticket (back to Nora)
Share your frequent, low-stakes feedback with me, either by replying to this email or submitting anonymously. I always welcome your story ideas, questions, suggestions, and corrections. And if you enjoyed this post, I’d be grateful if you share it (social media, listserv, group chat, etc.).