Recommended roles and responsibilities when interacting with printers and publishing companies who refuse to publish legally protected speech

Because JEA members have reported instances of printing companies refusing to publish submitted materials or contacting administrators about questionable but not unlawful content without contacting advisers and students, JEA passed these recommendations at its San Francisco convention. We firmly believe, based on legal advice, that companies that simply print what they are given, without assuming editing responsibilities, are not legally liable for what they print. Because JEA also understands the complexity of the issues surrounding materials some may question as controversial, we strongly advise students and advisers with questions about content to contact the Student Press Law Center before publication.

For those involved with publishing companies of student media
Because of incidents concerning the role and responsibility of commercial printers, where questionable but not unlawful material is concerned, the JEA Scholastic Press Rights Commission offers these suggestions, based on legal advice and court decisions, to parties involved.

1. For students and advisers:
• Know the law and be sure the material in question is not unprotected speech (i.e. libel, obscenity, unwarranted invasion of privacy, copyright infringement or and/or speech that would dvocate substantive or material disruption of the school process) as defined in Law of the Student Press.
• Establish a relationship with the printer representative that includes contacting the adviser and student staff if the printing company has questions about publication content.
• Before you submit material you think others might consider controversial, take the time to assess the rationale and the importance for publishing this.
• Discuss and apply decision-making standards like those in the Society of Professional Journalists (SPJ) Code of Ethics.
• Conduct a staff discussion, involving the adviser, and anticipate objections or questions others might raise in the school, community or administration. Anticipate their fears and know how to respond professionally to them.
• Finally, make an informed decision for or against publication considering all factors.

Specifically, if a printing company raises concern with the principal about content, editors, with the adviser’s support, should:
• Contact the printing company and ask specifically what the company’s concerns are.
• Explain to the principal that a school administration with no history of getting involved in the publication’s content decisions should maintain its immunity by continuing to allow students to make decisions. By not doing so, school officials LOSE freedom from liability.
• Call the Student Press Law Center and explain the printer’s concerns. The SPLC can advise students about the legitimacy of the company’s concerns.
• Take the advice of all parties and again discuss what to do. Based on this advice, the student staff makes a decision to keep, modify or drop the questioned content.

2. For administrators:
• Before any content questions ever occur, hire the most qualified adviser, and encourage the adviser to work with the students in developing professional policies and guidelines.
• Support the adviser in developing professional standards taught in the classroom, and assist the adviser and student staff in attending workshops, conventions and conferences given by publishing companies and scholastic journalism organizations. These opportunities enhance and empower student staffs to make the proper decisions themselves. Doing so helps protect the administration from liability.
• Encourage student staffs to take responsibility for their decisions and actions.
• Students taking responsibility for content as forums for student expression lessens the school’s responsibility.
• Become informed about legal and ethical concerns your students face.
• Even though you may sign the printing contracts, encourage and allow student editors, with suggestions from the adviser and the company representative, to take full responsibility for the content of the student publication.
• If a printing company brings a question or complaint to you, refer it to the student staff to handle and answer so you preserve your protection from liability for information published.

Specifically, administrators should:
• Insist on language that says the printing company will not interfere with publication content without a reasonable belief that the content is unlawful (which would require, at the very least, vetting by an experienced media law lawyer). This removes the company from almost any legal responsibility.
• Under NO circumstances allow the printing company to interfere with content that is not unlawful but merely controversial, “improper,” “racy,” etc. In instances where this occurs, refer them to the students and adviser.
• Consider purchasing libel insurance for your student media if liability issues remain the biggest hurdle to student editorial autonomy.

3. For printing companies:
• Instead of going to the principals if you have questions or concerns about something students want to publish, go to the student editorial boards and the adviser.
• Understand that going to administrators often simply creates a situation where an administrator will illegally censor student work and thought without a reasonable discussion of the issues.
• Completing such action may intensify feelings of mistrust between advisers, their students and representatives that will lead to cancellation or non-renewal of contracts.
• Know that contacting administrators first creates situations where negative and perhaps incorrect publicity could have a negative impact on you, the students, the school system and the community.
• By going to the students, you show respect for the learning processes already in place and the fact most student staffs do take full responsibility for what they print, especially if the material in question is controversial, but not unprotected speech.

Specifically, a printer should:
• Establish a process for verifying that an employee’s concern about specific content is reasonable based on current law, which in many cases should include contacting a knowledgeable media law attorney.
• Write into your contract nothing that could be interpreted as control of content. The more control you exercise, the more liability you incur. You may want to consider adding a “Hold Harmless” clause that holds the primary author and editors responsible for content-related problems.
• Insist company representatives understand current media law and pass that knowledge on to their advisers and students. Educating them about how to handle controversy and how to avoid unprotected speech does not incur further financial liability for the company.
• Work with advisers, students and administrators to help ensure they understand and practice, before publication, the highest legal and ethical standards.
• Avoid contacting school officials, other than the adviser and the students, about alleged unprotected speech or other content-related issues. More often than not, this leads to unneeded prior review or worse, restraint. If that occurs, even more public focus is drawn to the incident, creating even more bad public relations and possible loss of contract with the school.

4. For the media reporting such conflicts:
• To ensure your various audiences most fully understand the whole picture, become educated about scholastic press law and how it affects decision-making involving publication content.
• Realize principals do not automatically have total control over what is published in the student media, as various cases, including the U. S. Supreme Court in Hazelwood v. Kuhlmeier indicate.
• Know administrators do have the power to hire qualified instructors and advisers who will educate students, community and administrations about such guidelines based on a professional curriculum.
• Understand that printing companies do not have financial liability unless they exercise control over the decision-making process of the student work they are publishing.
• Talk with a legal representative of the Student Press Law Center to more fully understand the legal implications of any decisions the principal, as well as the students, have made.

Specifically to the media reporting such issues:
• Know that most printers include a "Hold Harmless" clause in their contracts that says if they (the printers) are sued for something they print, the author (or whomever they are contracting with) will assume responsibility and reimburse them for any loss they suffer.
• Understand if the school/school district has no history of involvement in the publication’s content decisions, it should hang on to its immunity. If school officials act, the school board loses its freedom from liability.
• Interview those responsible for the content in question: the students. Talk to them about what they put together and why. Ask them if they understand the legal and ethical issues of what they did. Back