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In Eden Prairie, newspaper's 'lurking' remark draws 'no-trespass' threat from school lawyer

2:30 p.m. update: Sun publisher Jeff Coolman called back to note the "lurking" reference appeared in an early web version still on the Mnsun.com site; it never appeared in the paper.

Apparently, changing school boundaries isn’t the only ugliness in Eden Prairie these days.

The city’s newspaper, the Eden Prairie Sun-Current, published a front-page story Thursday blasting the district for threatening to bar reporters after alleged Open Meetings law violations were exposed. For its part, a school district lawyer issued the “no trespass” threat only after a Sun managing editor wrote that journalists would “be lurking around your campus."

A newspaper invoking the First Amendment versus a district alleging a journalist was "threatening in language and tone." Just how much power does a district have to shut out the press, and how expansive are journalists’ rights to cover public schools?

It's not easy to figure out whether a crusading paper may have overplayed its hand, or a district is protecting itself rather than protecting kids. The managing editor in question, Paul Wahl, isn’t talking beyond his writings, and his publisher, Jeff Coolman, did not respond to a phone message Thursday. Meanwhile, the school district and its lawyer, Maggie Wallner, did not return three calls for comment last week.

However, the Sun-Current’s lawyer, Mark Anfinson, is willing to talk. Although the paper edited out the word "lurking" from a web version of Wahl's column, Anfinson contends the district misconstrued Wahl’s “plainly facetious” quip to issue an over-broad and unconstitutional threat.

Of the Sun-Current, he says, “I think they’re doing their jobs as journalists, and have been stiff-armed more than the law justifies."

‘Are they trying to hide something?’
The Sun-district battle began last winter, when reporter Chris Olwell noticed public information not available at a board meeting about the district’s facilities plan — a potential Open Meeting Law violation.

He says the February board meeting “struck me as fishy. I felt like they were purposely keeping people in the dark about one of the biggest issues in Eden Prairie."

To Olwell, the facilities plan “was kind of rammed down people’s throats, passed after one public debate. There were subcommittee meetings where no one was allowed, including the press. It turns out there’s a loophole in the [Open Meetings] law that allows advisory boards to have closed meetings. I kind of hammered on them a bit.”

The Sun-Current requested board emails for January and February, receiving the January emails 176 days later. Anfinson says redacting private information takes time, and state law only requires compliance “promptly and reasonably.”

Once it received the documents, the Sun-Current concluded the emails did violate the Open Meeting law. However, the paper acknowledged the violations were “not as serious as some others” because no important decisions were made out of public view. February emails, requested later, have not yet been received.

Before he left for a paper in Florida, Olwell blasted “The culture of secrecy in Eden Prairie schools” in an Aug. 6 column. Pulling few punches, he wrote:

“Superintendent Melissa Krull is something of a recluse. She rarely grants interviews.... She never deviates from the script.”

“Requests for public information are rarely fulfilled without a struggle.”

“Indeed, it seems everything about Eden Prairie Public Schools is shrouded with secrecy.”

“The most obvious and important question: Are they trying to hide something?”

Lurking - without intent?
Olwell became a hero to dissenting Eden Prairie parents. After he left, his boss, Wahl, quickly picked up the cudgel.

In a Sept. 16 column that did not mention Eden Prairie specifically, Wahl noted “We usually spend at least some time explaining to someone that the schools cannot ban reporters and photographers from campuses.”

He contended schools were public buildings paid for by tax dollars "and, as such, are considered open territory for the press,” adding that “while districts may have policies regarding the use of the faces of children in their promotion and marketing schemes, they do not apply to the press.”

After noting most parents “can never get enough classroom coverage” and journalists often “find themselves friendly captives, plied with food and drink to stick around and cover more topics,” Wahl concluded:

So to all school officials, teachers, administrators, parents, volunteers, janitors or whoever, please be aware that we may be lurking around your campus at one point or another this coming year. Stop and introduce yourself. It’s always easier to work in a setting where we find familiar faces.

Joking or not, journalists generally do not want to use the word "lurking" in a column about schoolkids, especially if they're referencing themselves.

Belatedly, Wahl got a little editing: the “lurking” comment has since been scrubbed from the Sun website in favor of the phrase “visiting your campus.” [Update: The original version remains on the site, but requires an advanced search to find. Coolman says an editor swapped the references before the story hit the paper.]

What prompted the switch? Sun officials aren’t talking, but it may have been a Sept. 30 letter from Maggie Wallner, a private attorney working for the schools. She wrote:

No one (including reporters) has a constitutional right to enter school buildings or be on school property. ... The schools are “non-public-forum public property.” Moreover, it is criminal trespass for a person to enter a school building without compliance with the District’s visitor’s policy. ...

Mr. Wahl’s statements ... are not only legally incorrect, they are threatening in language and tone. ... In my opinion, Mr. Wahl’s statement of his intentions is reason to issue a 'no-trespass' notice to the newspaper. I am bringing this matter to your attention to try to avoid that notice.

Even though the Sun felt something was amiss enough to swap out Wahl’s words, Anfinson contends a full reading of the paragraph makes it clear the managing editor was anything but threatening. He believes the district found a convenient excuse to punish a meddling paper.

What rights to schools reporters have?
Paul Hannah is a media attorney whose clients include the Pioneer Press. Asked about Wahl’s contention that public schools are “open territory for the press,” Hannah quipped,“If Mr. Wahl is saying he or anyone else has a constitutional right to enter a school, he’s nuts.”

Hannah adds, “I agree that the schools are non-public-forum public property. If Mr. Wahl’s argument were true, you should be able to walk into Tim Pawlenty’s office at the Capitol and use the phone, but you can’t.”

Anfinson says that’s true — but only to an extent. “The reality is that school property is a mixture of public and non-forum property. What about a basketball game? Does the public have a right to attend? Most schools have a front door and a corridor down to the principal’s office; you don’t need prior permission to go down those."

On the other hand, "classrooms, restrooms, locker rooms not normally accessible to the public" can be made off limits.

The big problem with the school district’s threat is that it was overbroad, Anfinson says. The district can have policy restricting public access to classrooms and other spaces. However, “you cannot single out journalists — it violates the First Amendment every time,” he contends.

But what about if the journalist is threatening?

Anfinson says media organizations “can say ‘screw you’ all day long if the policy is illegal.” He reiterates that the district took Wahl’s lurking reference out of context, and doubts it would stand up in court.

What about taking photos of schoolkids from a public sidewalk — a boast that sounds a bit creepy, even if it’s legal?

Hannah says Wahl’s contention is “probably correct,” but the paper could incur liability if, say, a kid who is being shielded from an abusive parent winds up in the paper. Anfinson responds that if the photographer had no knowledge of that situation, the action would be lawful (even though no one can stop the filing of a potentially costly lawsuit).

Anfinson says a school district cannot give journalists student data without permission — which is why schools get parents to sign waivers. However, the media organization incurs no liability by merely taking a photo on school grounds.

The upshot of all this teeth-baring? For now, Sun-Current reporters have not been banned from the Eden Prairie schools, Anfinson says. “They’ve simply been threatened. I’m optimistic, after discussions last week, that the district will be quite cautious about attempting any kind of ban on Sun reporters. Wallner’s letter is a bunch of huffing and puffing.” 

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Comments (4)

A followup article on the legal issues here would be extremely valuable, as they are relevant to all manner of citizen involvement in public life.

For example, if I understand the law correctly, all of the rights mentioned in the article as accruing to the 'press' (e.g. picture from a sidewalk) are actually the rights of any citizen. The press enjoys these rights because they are citizens, not because they are members of the press, who as such have no special rights of access or privacy or whatever.

'Freedom of the press' has to do with publishing information, not gathering it.

Like many other local public school administrators, when the topic shifts to potential P.R. landmines like redistricting, tax levies, or labor disputes, the wagons circle in a hurry at the district office.

What is often overlooked by these same administrators is that those parents feeling shut out or alienated will become more likely to consider future votes for levies much more carefully. In my community, the arrogance of previous administrators has made it tougher to pass additional levies today.

Yes, as far as I know the press enjoys no special access rights. The freedom of the press is a reference to any attempt to control what is printed or broadcast. Bush and Cheney routinely restricted press access for instance and made almost all of their "public" appearances invitation only affairs.

The press doesn't enjoy special privileges, nothing any more than any other member of the public — but because it exercises its rights more openly, it is more likely to be singled out by public officials to be blocked, banned, silenced than a member of the general public. So when something like this occurs, it becomes more visible.

I agree that schools are those kind of non-public-forum public properties, but I really don't see any legal way a reporter/photographer from the Sun can be banned from a public event that is on school ground (such as a basketball game, board meeting, concert). Just because someone disagrees with the superintendent or board is not grounds to ban them. If they have committed a physical action/threat, the way an overzealous fan who rips into a coach or ref does and then is banned, that's different. But the Sun has not done that. The board and superintendent seem a little Nixonian here. It gets back to the media being just like any other member of the public: If the public can attend, so can the media.

On the flip side, the Sun could simply say OK. We won't go anymore. At all. We're not going to cover Eden Prairie's football or basketball games anymore. No more coming to school to take speech-kid photos or prom photos. Wouldn't take too long for the parents to get PO'd and the board to beg the Sun to come back. Stop running pictures and stories on high school sports, especially in a place like Eden Prairie, the world stops spinning pretty fast.