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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 551
October 23, 2023 - Introduced by Representatives MICHALSKI, MURPHY, BEHNKE,
BRANDTJEN, DITTRICH, GOEBEN, GUNDRUM, MAXEY, O'CONNOR, PENTERMAN,
RETTINGER, S. JOHNSON and J ACOBSON, cosponsored by Senators
CABRAL-GUEVARA, TOMCZYK and SPREITZER. Referred to Committee on Colleges
and Universities.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 36.35 (1); and to create 36.42, 38.43 and 118.129 of the
statutes; relating to: freedom of speech and of the press in school-sponsored
media.
Analysis by the Legislative Reference Bureau
This bill affords certain rights and protections to student journalists who are
public school pupils or students enrolled in a University of Wisconsin System
institution or technical college.
Public school pupils
Under the bill, a public school pupil journalist in grade 6 to 12 has the right to
exercise freedom of speech and of the press in school-sponsored media regardless of
whether the school-sponsored media is supported financially by a public school, uses
the facilities of the public school, or is produced in conjunction with a class in which
the pupil is enrolled. The bill further establishes that a pupil journalist is responsible
for determining the news, opinion, feature, and advertising content of
school-sponsored media and prohibits a school official from exercising prior
restraint of materials prepared for school-sponsored media. Under the bill, neither
a pupil journalist nor a media adviser may be disciplined for acting in accordance
with the bill. Finally, the bill requires each school board and operator of a charter
school to adopt a policy related to pupil journalists exercising their freedom of speech
and of the press in school-sponsored media and specifies that the policy must include
an appeal process for pupils. Under the bill, a pupil journalist and a media adviser
may bring an action in circuit court to enforce the rights established under the bill.
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UW System and technical college students
Under the bill, a student journalist enrolled in a UW System institution or
technical college (hereafter, “school”) has the right to exercise freedom of speech and
of the press in school-sponsored media regardless of whether the school-sponsored
media is supported financially by the school, uses the facilities of the school, or is
produced in conjunction with a course in which the student is enrolled. The bill
further establishes that a student journalist is responsible for determining the news,
opinion, feature, and advertising content of school-sponsored media and prohibits
the school from exercising prior restraint of materials prepared for school-sponsored
media. Under the bill, neither a student journalist nor a media adviser may be
disciplined for acting in accordance with the bill. Finally, the bill requires the Board
of Regents of the UW System and each technical college district board to adopt a
policy related to student journalists exercising their freedom of speech and the press
in school-sponsored media and specifies that the policy must include an appeal
process for students. Under the bill, a student journalist and a media adviser may
bring an action in circuit court to enforce the rights established under the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 36.35 (1) of the statutes is amended to read:
36.35 (1) POWER TO SUSPEND; RULES. The board may delegate the power to
suspend or expel students for misconduct or other cause prescribed by the board.
Subject to sub. (4) and s. 36.42 (5) (a), the board shall promulgate rules under ch. 227
governing student conduct and procedures for the administration of violations.
SECTION 2. 36.42 of the statutes is created to read:
36.42 Institution-sponsored media; freedom of speech and of the press.
(1) In this section:
(a) “Institution-sponsored media” means any material that is prepared,
substantially written, published, or broadcast, in any media, by a student journalist
at an institution, under the direction of a media adviser, and distributed or generally
made available to students enrolled in the institution. “Institution-sponsored
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media” does not include material intended solely for use in a course offered at the
institution.
(b) “Media adviser” means an individual employed, appointed, or designated
by an institution to supervise or provide instruction relating to
institution-sponsored media.
(c) “Student journalist” means a student enrolled in an institution who gathers,
compiles, writes, edits, photographs, records, or prepares information for inclusion
in institution-sponsored media.
(2) (a) Except as provided in sub. (3), a student journalist has the right to
exercise freedom of speech and of the press in institution-sponsored media
regardless of whether the institution-sponsored media is supported financially by
the institution, uses the facilities of the institution, or is produced in conjunction
with a course in which the student journalist is enrolled.
(b) Subject to sub. (3), a student journalist is responsible for determining the
news, opinion, feature, and advertising content of institution-sponsored media. A
media adviser may teach professional standards of English and journalism to
student journalists, consistent with this section.
(3) (a) Nothing in this section authorizes or protects expression that is any of
the following:
1. Libelous or slanderous.
2. Constitutes an unwarranted invasion of privacy.
3. Obscene.
4. Violates state or federal law.
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5. Incites students as to create a clear and present danger of the commission
of an unlawful act, the violation of a lawful board policy or institution policy, or the
material and substantial disruption of the orderly operation of the institution.
(b) For purposes of par. (a) 5., an institution administrator shall base a decision
on whether or not an expression will create a clear and present danger of material
and substantial disruption of the orderly operation of the institution on specific facts,
including past experience in the institution and current events influencing student
behavior, and may not base the decision on undifferentiated fear or apprehension.
(c) Nothing in this section requires an institution to publish an advertisement
in institution-sponsored media that promotes the purchase of a product or service
that is unlawful for purchase or use by a person who has not attained 21 years of age.
(4) An institution may not exercise prior restraint of material prepared for
institution-sponsored media unless the material violates sub. (3). An institution's
administrators have the burden of showing prior justification for their limitation of
a student journalist's expression under this section and affording students a timely
opportunity for appeal.
(5) (a) A student journalist may not be disciplined for acting in accordance with
sub. (2).
(b) Notwithstanding any contrary provision of a personnel system established
under s. 36.115, a media adviser may not be dismissed, suspended, disciplined,
reassigned, transferred, or otherwise retaliated against for any of the following:
1. Refusing to infringe on conduct that is protected by this section, the First
Amendment to the U.S. Constitution, or article I, section 3, of the Wisconsin
Constitution.
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2. Acting to protect a student journalist engaged in permissible conduct under
this section, the First Amendment to the U.S. Constitution, or article I, section 3, of
the Wisconsin Constitution.
(6) The board shall adopt a policy, applicable to each institution, for the exercise
of the right of student journalists to freedom of speech and of the press in
institution-sponsored media in accordance with this section. The policy shall
include at least all of the following:
(a) Reasonable provisions for the time, place, and manner of distribution of
institution-sponsored media.
(b) A process to timely appeal decisions made under this section.
(7) No expression made by student journalists in the exercise of free speech or
free press rights is considered to be an expression of an institution's policy, and no
institution or institution administrator may be held responsible in any civil or
criminal action for an expression made or published by student journalists.
(8) A student journalist or media adviser may bring an action for injunctive or
declaratory relief in circuit court to enforce the rights provided in this section.
Nothing in this section may be construed to create a private action on behalf of a
student journalist other than to seek injunctive relief allowing the publication of the
speech in question. A court may award reasonable attorney fees to a plaintiff who
substantially prevails in an action brought under this subsection.
SECTION 3. 38.43 of the statutes is created to read:
38.43 District board-sponsored media; freedom of speech and of the
press. (1) In this section:
(a) “District board-sponsored media” means any material that is prepared,
substantially written, published, or broadcast, in any media, by a student journalist
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at a technical college of the district, under the direction of a media adviser, and
distributed or generally made available to students enrolled in the technical college.
“District board-sponsored media” does not include material intended solely for use
in a course offered at the technical college.
(b) “Media adviser” means an individual employed, appointed, or designated
by a district board to supervise or provide instruction relating to district
board-sponsored media.
(c) “Student journalist” means a student enrolled in a technical college who
gathers, compiles, writes, edits, photographs, records, or prepares information for
inclusion in district board-sponsored media.
(2) (a) Except as provided in sub. (3), a student journalist has the right to
exercise freedom of speech and of the press in district board-sponsored media
regardless of whether the district board-sponsored media is supported financially
by the district board, uses the facilities of the district board, or is produced in
conjunction with a course in which the student journalist is enrolled.
(b) Subject to sub. (3), a student journalist is responsible for determining the
news, opinion, feature, and advertising content of district board-sponsored media.
A media adviser may teach professional standards of English and journalism to
student journalists, consistent with this section.
(3) (a) Nothing in this section authorizes or protects expression that is any of
the following:
1. Libelous or slanderous.
2. Constitutes an unwarranted invasion of privacy.
3. Obscene.
4. Violates state or federal law.
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5. Incites students as to create a clear and present danger of the commission
of an unlawful act, the violation of a lawful district board policy, or the material and
substantial disruption of the orderly operation of the technical college.
(b) For purposes of par. (a) 5., a district board administrator shall base a
decision on whether or not an expression will create a clear and present danger of
material and substantial disruption of the orderly operation of the technical college
on specific facts, including past experience in the technical college and current events
influencing student behavior, and may not base the decision on undifferentiated fear
or apprehension.
(c) Nothing in this section requires a district board to publish an advertisement
in district board-sponsored media that promotes the purchase of a product or service
that is unlawful for purchase or use by a person who has not attained 21 years of age.
(4) A district board may not exercise prior restraint of material prepared for
district board-sponsored media unless the material violates sub. (3). A district
board's administrators have the burden of showing prior justification for their
limitation of a student journalist's expression under this section and affording
students a timely opportunity for appeal.
(5) (a) A student journalist may not be disciplined for acting in accordance with
sub. (2).
(b) A media adviser may not be dismissed, suspended, disciplined, reassigned,
transferred, or otherwise retaliated against for any of the following:
1. Refusing to infringe on conduct that is protected by this section, the First
Amendment to the U.S. Constitution, or article I, section 3, of the Wisconsin
Constitution.
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2. Acting to protect a student journalist engaged in permissible conduct under
this section, the First Amendment to the U.S. Constitution, or article I, section 3, of
the Wisconsin Constitution.
(6) Each district board shall adopt a policy for the exercise of the right of
student journalists to freedom of speech and of the press in district board-sponsored
media in accordance with this section. The policy shall include at least all of the
following:
(a) Reasonable provisions for the time, place, and manner of distribution of
district board-sponsored media.
(b) A process to timely appeal decisions made under this section.
(7) No expression made by student journalists in the exercise of free speech or
free press rights is considered to be an expression of a district board's policy, and no
district board or district board administrator may be held responsible in any civil or
criminal action for an expression made or published by student journalists.
(8) A student journalist or media adviser may bring an action for injunctive or
declaratory relief in circuit court to enforce the rights provided in this section.
Nothing in this section may be construed to create a private action on behalf of a
student journalist other than to seek injunctive relief allowing the publication of the
speech in question. A court may award reasonable attorney fees to a plaintiff who
substantially prevails in an action brought under this subsection.
SECTION 4. 118.129 of the statutes is created to read:
118.129 School-sponsored media; freedom of speech and of the press.
(1) In this section:
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(a) “Media adviser” means an individual employed, appointed, or designated
by a school board or charter school to supervise or provide instruction relating to
school-sponsored media.
(b) “Pupil journalist” means a pupil in grade 6 to 12 who gathers, compiles,
writes, edits, photographs, records, or prepares information for inclusion in
school-sponsored media.
(c) “School” means a public middle, junior high, or high school, including a
charter school.
(d) “School-sponsored media” means any material that is prepared,
substantially written, published, or broadcast, in any media, by a pupil journalist at
a school, under the direction of a media adviser, and distributed or generally made
available to pupils attending the school. “School-sponsored media” does not include
material intended solely for classroom purposes.
(2) (a) Except as provided in sub. (3), a pupil journalist has the right to exercise
freedom of speech and of the press in school-sponsored media regardless of whether
the school-sponsored media is supported financially by the school, uses the facilities
of the school, or is produced in conjunction with a class in which the pupil journalist
is enrolled.
(b) Subject to sub. (3), a pupil journalist is responsible for determining the
news, opinion, feature, and advertising content of school-sponsored media. A media
adviser may teach professional standards of English and journalism to pupil
journalists, consistent with this section.
(3) (a) Nothing in this section authorizes or protects expression that is any of
the following:
1. Libelous or slanderous.
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2. Constitutes an unwarranted invasion of privacy.
3. Obscene.
4. Violates state or federal law.
5. Incites pupils as to create a clear and present danger of the commission of
an unlawful act, the violation of a lawful school district or charter school policy, or
the material and substantial disruption of the orderly operation of the school.
(b) For purposes of par. (a) 5., a school administrator shall base a decision on
whether or not an expression will create a clear and present danger of material and
substantial disruption of the orderly operation of the school on specific facts,
including past experience in the school and current events influencing pupil
behavior, and may not base the decision on undifferentiated fear or apprehension.
(c) Nothing in this section authorizes the publication of an advertisement in
school-sponsored media that promotes the purchase of a product or service that is
unlawful for purchase or use by minors.
(4) A school official may not exercise prior restraint of material prepared for
school-sponsored media unless the material violates sub. (3). A school official has
the burden of showing prior justification for his or her limitation of a pupil
journalist's expression under this section and affording pupils a timely opportunity
for appeal.
(5) (a) A pupil journalist may not be disciplined for acting in accordance with
sub. (2).
(b) A media adviser may not be dismissed, suspended, disciplined, reassigned,
transferred, or otherwise retaliated against for any of the following:
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1. Refusing to infringe on conduct that is protected by this section, the First
Amendment to the U.S. Constitution, or article I, section 3, of the Wisconsin
Constitution.
2. Acting to protect a pupil journalist engaged in permissible conduct under
this section, the First Amendment to the U.S. Constitution, or article I, section 3, of
the Wisconsin Constitution.
(6) Each school board and operator of a charter school shall adopt a policy for
the exercise of the right of pupil journalists to freedom of speech and of the press in
school-sponsored media in accordance with this section. The policy shall include at
least all of the following:
(a) Reasonable provisions for the time, place, and manner of distribution of
school-sponsored media.
(b) A process to timely appeal decisions made under this section.
(7) No expression made by pupil journalists in the exercise of free speech or free
press rights is considered to be an expression of school policy, and no school official,
school district, or charter school may be held responsible in any civil or criminal
action for an expression made or published by pupil journalists.
(8) A pupil journalist, individually or through a parent or guardian, or media
adviser may bring an action for injunctive or declaratory relief in circuit court to
enforce the rights provided in this section. Nothing in this section may be construed
to create a private action on behalf of a pupil journalist other than to seek injunctive
relief allowing the publication of the speech in question. A court may award
reasonable attorney fees to a plaintiff who substantially prevails in an action
brought under this subsection.
(END)
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