Midterm #1 - Model Answers

1. Scoop will probably succeed in her challenge on the merits, if she is able to persuade a judge to review the classification. As Pember notes (p. 285), federal judges have been reluctant to exercise the power given the federal judiciary in 1974.

The 1974 amendments to the Freedom of Information Act (FOIA) gave judges the power to examine classified documents to determine if they have been classified properly as outlined in the applicable executive order. President Clinton's E.O. 12958, effective April 17, 1995, substantially changed the classification system in place since the Reagan administration.

Section 1.5 of the E.O. 12958 clearly lists the criteria documents must meet be classified under the National Security exemption. It states that information may not be considered for classification unless it concerns:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources;
(e) scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or facilities; or
(g) vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.

Since documents relating to cheating on exams by midshipmen at Annapolis do not fall easily under any of these categories, the Navy's claim of national security is spurious in its face.

Sec. 1.8. of E.O. 12958, Classification Prohibitions and Limitations, also supports Scoop's claim. In asserting a national security interest in nondisclosure, the Navy said that release of the requested information would "embarrass the Navy." Section 1.8 states that " In no case shall information be classified in order to...prevent embarrassment to a person, organization, or agency.

While it is likely that the Navy would use FOIA's personal privacy exemption, the requirements of the Buckley amendment, and all other applicable federal privacy statutes to protect from disclosure any personal information in the requested documents, Scoop's appeal of the denial under the National Security exemption should be successful. The Navy will be required to turn over the requested material after reviewing it and redacting all personal information.

2. Larry Laugh will not get the last laugh in this case. The Oregon Supreme Court is the court of last resort regarding interpretation of the state's laws and the Oregon constitution. As Pember states, a state supreme court "is the final authority regarding construction of state laws and interpretation of the state constitution."

Had Laugh raised a federal question at trial, (e.g., argued that the state's harassment statute or the state court's interpretation of Article I, Sec. 8 of the state constitution violated the First Amendment of the federal constitution) he might have preserved the right to appeal the state supreme court's decision to the U.S. Supreme Court.

3. Randy Responsible and the other staff of the Square Peg incorrectly believe their First Amendment rights have been violated by the principal. The Supreme Court makes clear in Hazelwood v. Kuhlmeier that "...in light of the special characteristics of the school's environment" schools can review official student publications for style, content and standards.

In the Square Peg case, the paper is a "lab" newspaper. A lab or practicum newspaper falls strictly under the school's authority to review and edit prior to publication, since it is a teaching tool (see home page).

While Gary Guide, the faculty advisor to the Square Peg, could argue that the story is good journalism and follows professional standards and practices, a court would still side with the principal of several grounds. First, the content of the paper violates the privacy of several minors -- the seven identifiable students. Second, a school is not obligated to support student expression that it believes is "inconsistent with the school's basic educational mission." Given the breadth of this standard, much of the criticism of teachers, administrators and local law enforcement officials arguably would fall into this category. Finally, the article contains material the school could deem "vulgar and indecent" and inappropriate for a high school audience (See Pember, pp. 78-83).

So long as the school clearly states that it is not censoring the subject matter, (i.e., it is not censoring because of the ideas being expressed), but rather, is reviewing the style and content of the student publication so that it is appropriate for the school's student population (see, Desilets v. Clearview Bd. of Education), the students will not have a solid argument on First Amendment grounds.