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How much will Hosty ruling affect campus expression?

By David L. Hudson Jr.
First Amendment Center research attorney

College press freedoms took a serious blow recently when a federal appeals court ruled that a U.S. Supreme Court decision dealing with high school journalists applied to the college media. In Hosty v. Carter, the full panel of the 7th U.S. Circuit Court of Appeals ruled that “Hazelwood’s framework applies to subsidized student newspapers as well as elementary and secondary schools.”

The ruling upset many student-press and First Amendment advocates because many assumed, and several courts had determined, that Hazelwood v. Kuhlmeier had little, if any, application in the university setting. In the 1988 Hazelwood decision, the U.S. Supreme Court ruled that public school officials could censor school-sponsored student expression at a high school if they had a reasonable educational reason for their actions.

In its 1994 book Law of the Student Press, the Student Press Law Center wrote:

“If some day a college or university journalism department does go to court to argue that the Hazelwood decision should be extended to the college press, it will find itself in a politically awkward position. For a court to do what the school requests, it would have to ignore or overrule over 20 years of established First Amendment decisions that emphasize the importance of freedom of the press.

Sadly to student-press advocates, Governors State University and the 7th U.S. Circuit Court of Appeals took those steps and applied Hazelwood to the college media.

“The devastating part of this decision is the part about applying Hazelwood to the college press,” said Mark Goodman, the executive director of the SPLC. “The court seemed to go to some pains to say that it was applying the framework of Hazelwood and didn’t mention the standard of Hazelwood (a reasonableness standard), but the clear implication is that the standard of Hazelwood would apply. That is very troubling.”

Margaret Hosty, a former student reporter for the student newspaper at issue and one of the three plaintiffs in the case, is even blunter in her assessment: “Hazelwood should have zero application to the college press.”

The closely watched case involved the actions of Patricia Carter, dean of student affairs and services, in reaction to articles published in the student newspaper, the Innovator, that were critical of school administrators. Carter called the Innovator’s printer and told it not to print any more articles until she had reviewed them. Because of Carter’s actions, publication of the newspaper stopped in November 2000.

Hosty and two other journalists on the newspaper, Jeni Porche and Steven Barba, sued Carter and other school officials in federal court. A federal district court judge dismissed many of the defendants but held that Carter could be held liable. This decision was affirmed by a three-judge panel of the 7th Circuit in 2003. However, Carter appealed and prevailed 7-4 before the full panel of the appeals court.

Judge Frank Easterbrook, writing for the majority, not only ruled that the Hazelwood framework applied but also wrote that “there is no sharp difference between high school and college papers” with respect to education officials’ “goal of dissociating the school from ‘any position other than neutrality on matters of political controversy.’”

To Goodman, this view is anathema to the First Amendment and freedom of the press. “One can only wonder what they were thinking,” he said of the court majority. “The risk of community members perceiving statements of students as statements of the school is virtually nonexistent, but this court says we think that is a legitimate concern.”

In an e-mail interview, Hosty agreed: “There is no way in hell anyone other than a considerable idiot would have mistaken the speech of the students as being the speech of the school.”

“Moreover, as regards student speech which the school disapproves, equating measures available to administrators at the disparate levels of education is positively absurd,” she said. “Legal minors may still be sent to the principal’s office, have their parents called, be given detention, have school privileges suspended (such as prom attendance), or face expulsion. Does the majority speculate for even a moment that any of these measures could be executed against tuition-paying adults?”

Judge Terence Evans dissented, along with three colleagues, in Hosty. He wrote that “these restrictions on free[-]speech rights have no place in the world of college and graduate school.”

Evans added that if the plaintiffs’ allegations were true — that Carter tried to censor the Innovator — then they were punished for engaging in political speech critical of the school administration. “Few restrictions on speech seem to run more afoul of basic First Amendment values,” he wrote. “The court now gives the green light to school administrators to restrict student speech in a manner inconsistent with the First Amendment.”

Qualified immunity and public forums
How much will the Hosty ruling harm the college press or student speech on campus in general? Will it lead to a suppression of the First Amendment on college campuses? The answer is complicated by the court’s opinion being less than clear in discussing Hazelwood, qualified immunity and the public-forum doctrine.

“The negative far outweighs the positive in this opinion,” Goodman said. “The confusion it creates is hard to overestimate.”

The 7th Circuit majority ruled that Carter was entitled to qualified immunity because the legal landscape was not clear enough that a reasonable public official would know that her conduct might be unlawful in this situation. (Qualified immunity is a doctrine that protects government officials from liability in civil rights actions when they do not violate clearly established principles of law.)

The majority noted that a couple of circuits had applied Hazelwood to First Amendment issues on college campuses, though those were not college-press cases. The opinion also focused heavily on the public-forum question. Even in Hazelwood, the Supreme Court determined that if high school officials by policy or practice had opened up a school newspaper as a public forum, then heightened First Amendment protection would apply.

The 7th Circuit majority seemed to understand that the Innovator was a designated public forum, writing: “On that understanding, the Board established the Innovator in a designated public forum where the editors were empowered to make their own decisions, wise or foolish, without fear that the administration would stop the presses.” However, the majority said that Carter was still entitled to qualified immunity in part because “post-Hazelwood decisions … had not ‘clearly established’ that college administrators must keep hands off all student newspapers.”

A designated public forum is one designated by a government body for expressive purposes. For example, the Student Communications Media Board at Governors State had a policy stating that each funded publication “will determine content and format ... without censorship or advance approval.” That means that the policy and practice at the university was that generally students, not school administrators, made content decisions for the newspaper.

The key question appears to be whether student newspapers will be considered public forums or designated public forums such that they receive greater First Amendment protection. “The decision will open a can of worms on every single college campus as to whether student media are designated public forums,” said Goodman. “I feel confident that when a censorship conflict arises, the first thing the school will say is this is not a designated public forum,” he said.

The most damaging part of the ruling, Goodman said, may be that it will affect a range of school-sponsored student expression. Hazelwood applies to more than just the student press; it established a standard for all school-sponsored student expression.

“My belief is that student newspapers are low on the list on campuses in terms of what will be impacted negatively by this ruling,” Goodman said. “It will be other student organizations that have less established history as public forums that will find themselves being censored.” He identified situations such as when a student group brings a controversial speaker to campus or wants to show controversial films.

“The one good thing is that I do believe that we can make the argument on many campuses that student media are designated public forums,” Goodman said.

The future
The plaintiffs say they will appeal to the U.S. Supreme Court. “My co-plaintiffs and I had decided going into this litigation nightmare that we would go as far and for as long as the law would permit us to do so,” said Hosty, who is still enrolled in graduate courses at GSU.

Whether the high court will take the case is anybody’s guess. “I think there is a chance the supreme court will take this case,” Goodman said. “We do have a clear division among the circuits on the application of Hazelwood in the college environment.”

Hosty said the case had taught her much about First Amendment freedoms or the lack thereof.

“It has taught me that most people don’t seem to understand why they are so precious, why they need to be vigorously protected and preserved, and why they assume a position of supremacy in our national Constitution,” she said. “The freedoms enumerated in the First Amendment are those from which all other liberties derive.”


Full 7th Circuit upholds college against newspaper

Majority reverses earlier ruling that had found college press not subject to same limits as high school newspapers. 06.21.05

Supreme Court asked to take up college-press case
By David L. Hudson Jr. Press advocates say Hosty could give justices chance to resolve whether Hazelwood's restrictions apply at university level. 09.20.05

Press advocates urge high court to hear student journalists' appeal
Justices will decide early next year whether to review 7th Circuit decision allowing Governors State University to regulate content of campus newspaper. 11.29.05

High court won't hear campus newspaper appeal
Without comment, justices decline to take Hosty v. Carter, in which 7th Circuit held that public college could regulate campus newspaper's contents. 02.21.06

Calif. bill would protect state college press
Measure offered in response to 7th Circuit student-press ruling in Hosty giving college administrators leeway to censor campus media. 05.12.06

Calif. Senate votes to protect rights of college journalists
If Gov. Arnold Schwarzenegger signs bill, state would be first to prohibit university administrators from censoring student newspapers. 08.11.06

U. of Texas regents remove prior review of campus newspaper
Now Daily Texan student staffers won't have to get adviser's approval before publication. 02.14.07

Wash. state student-press bill dies
By Melanie Bengtson Other student press-freedom bills await action in Oregon, Illinois, Michigan. 05.11.07

Hosty ruling on college press leaves heads scratching
By Douglas Lee Full 7th Circuit's confusing approach to campus-newspaper case leaves uncertain legacy. 06.29.05

Free speech on public college campuses

Student newspapers & yearbooks

Free speech on public college campuses horizon

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