District allows student paper to publish controversial story
A San Joaquin Valley superintendent who threatened to fire a high school journalism adviser for refusing to let her preview a story about a student in the porn industry has reluctantly backed off.
But the superintendent asked for a disclaimer to run with the article noting the district’s disapproval and asserted her right to censor future articles.
The story about the 18-yearold senior — who sells nude videos, models for a porn agency and aspires to be a stripper — runs Friday in the Bruin Voice and will not include the disclaimer, said Kathi Duffel, an English teacher and award-winning newspaper adviser at Bear Creek High for more three decades. She and her students had planned to publish it this week no matter what the district demanded.
Now, though, it will no doubt be read by far more people than would have without the censorship controversy that made headlines across the country, from the San Francisco Chronicle to the Columbia Journalism Review in New York.
“Based on the totality of the circumstances in this
matter (the district) will not prevent the publication of this article,” lawyer Paul Gant of the Lodi Unified School District wrote Wednesday to lawyer Matthew Cate, who represents Duffel and the student who wrote the article.
However, in his five-page letter, Gant called the teacher “insubordinate” for refusing to submit the article for review, and said, “there is no question that the article could be lawfully reviewed or censored.”
Cate called those assertions a misunderstanding of the California law that gives freespeech protections to students. The law, Education Code Section 48907, also says it is up to journalism advisers to be the arbiters of professional standards, and prohibits “prior restraint” of school newspaper stories unless they are “obscene, libelous or slanderous” or incite students to break rules.
Therefore, Cate said, “any retaliation against the adviser breaks the law and will expose the district to liability.”
The dustup at the Stockton high school began on April 11, when Superintendent Cathy Nichols-Washer learned that the Bruin Voice planned to run a story about Caitlin Fink, whose activities in the porn industry had become the subject of scuttlebutt at school.
Nichols-Washer sent a letter to Duffel ordering her to “refrain from publishing the article prior to the district’s review and approval.” If she disobeyed, the superintendent wrote, she could be disciplined or fired.
In that letter and another on April 18, Nichols-Washer outlined concerns that the story might feature obscene material; fail to verify that Fink actually works in the porn industry or has been of legal age when she has; and that it might defame her parents, from whom she is estranged.
Duffel had fended off similar censorship attempts over the years but said this was the first time her job was in jeopardy. She contacted the Student Press Law Center in Washington D.C., which connected her with Cate, a San Francisco lawyer who does First Amendment work on the side.
Cate agreed to review the story and identify any conflicts with state law. On Tuesday, Cate provided an 11-page analysis of the story’s legality and wrote, “There can be no question that the school lacks any basis to prohibit the article’s publication or censor any part of it.”
“It is neither defamatory nor obscene,” he wrote. “Ms. Duffel approved it for publication. That ought to have been the end of the matter.”
He added that the article was written “as responsibly as possible” by Bruin Voice news editor Bailey Kirkeby.
Cate explained that California law prohibits prior review by district administrators to avoid the “chilling effect,” in which people who fear being censored will censor themselves. Teenagers are especially vulnerable because they are “still developing self confidence” and are “more likely to be intimidated by authority,” he said, quoting a federal court decision from 2005, Bennett v. Hendrix.
Gant wrote back that the district disagreed but will not enforce “its right, in this singular instance, to prohibit the publication without prior review.” The district also asserted its right to “review of any and all material” to be published in the school paper, he wrote.
In a public statement, the district said that because it “has been denied an opportunity to preview the article, the district does not endorse it. Because we are charged with the education and care of our community’s children, we will always be diligent in our efforts to provide a safe learning environment for all students, while complying with our obligations under the law.”
Kirkeby, the news editor, said, “I am very proud of the story and how it turned out.”
Duffel said she still fears for her job. And yet, she said, her students “are getting a front-row seat to our government in action. What better way to teach the value of the First Amendment than by teaching them firsthand not to have their voices silenced?”