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Hosty case may save public college press freedom

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

Those who worried about the freedom of the college press, it appears, worried for nothing.

Ever since the U.S. Supreme Court held 15 years ago in Hazelwood School District v. Kuhlmeier that high school administrators could censor school-sponsored newspapers, free-speech advocates have worried the ruling would be extended to the college press. In Hosty v. Carter, however, the first federal appellate court to consider the issue emphatically rejected a dean’s argument that Hazelwood allowed her to censor a university newspaper.

While the decision in Hosty is binding only in Illinois, Indiana and Wisconsin, the 7th U.S. Circuit Court of Appeals’ dismissive treatment of the dean’s claim likely will cause all college administrators to think twice before they attempt to control the content of their schools’ newspapers. Hosty therefore may be the beginning and the end of efforts to extend Hazelwood to college campuses.

Like almost all school censorship cases, Hosty began when a campus newspaper published material that a campus administration did not like. In this case, the Innovator, at Governors State University in University Park, Ill., started publishing articles critical of the university’s administration. Shortly thereafter, Patricia Carter, the school’s dean of Student Affairs and Services, informed the company that printed the newspaper that future printings were not authorized unless a school official first approved the paper’s content. Student editors, including Margaret Hosty, filed suit, claiming Carter’s actions violated the First Amendment.

Carter moved to dismiss the case, on the grounds her conduct was protected by qualified immunity. Under the qualified-immunity doctrine, government officials cannot be sued for their performance of discretionary functions unless their actions violate “clearly established” statutory or constitutional rights. The trial court denied Carter’s motion, and she appealed that decision to the 7th Circuit.

The appellate court affirmed the trial court's ruling, saying Carter’s refusal to allow printing of the paper defied “existing, well-established law.” First, the court recognized that college officials’ attempts “to censor or control constitutionally protected expression in student-edited media have consistently been viewed as suspect under the First Amendment.” Then the court rejected Carter’s argument that Hazelwood changed this legal landscape.

Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities,” the court said. “The differences between a college and a high school are far greater than the obvious differences in curriculum and extracurricular activities. The missions of each are distinct reflecting the unique needs of students of differing ages and maturity levels.”

The court also noted that only 1% of the students enrolled in college are younger than 18 and that 55% are 22 or older. “Treating these students like 15-year-old high school students and restricting their First Amendment rights by an unwise extension of Hazelwood,” the court said, “would be an extreme step for us to take absent more direction from the Supreme Court.

“While Hazelwood teaches that younger students in a high school setting must endure First Amendment restrictions,” the court concluded, “we see nothing in that case that should be interpreted to change the general view favoring broad First Amendment rights for students at the university level.”

There may be a down side to this ruling for advocates of high school press freedom. Though the 7th Circuit’s recognition of university students’ First Amendment rights is important, its bright line between college and high school media unfortunately furthers the notion that high school students are unworthy of full free-speech rights. The court’s opinion therefore may even further embolden high school administrators who are carefully eyeing their school newspapers.

At Governors State, however, the appellate court’s decision allows the students’ lawsuit against Carter to proceed, even though Carter left the school last year. (Carter could still appeal the 7th Circuit ruling.) Less clear is whether the ruling will persuade administrators and students at Governors State to resurrect the Innovator, which has not been published since Carter stopped the presses.

Let’s hope it will be. Hosty’s legacy, after all, should be that it saved the independent college press everywhere — including at Governors State University.


7th Circuit: College editors can sue dean in campus censorship case

'[T]reating these students like 15-year-old high-school students and restricting their First Amendment rights … would be an extreme step for us to take,' court rules. 04.11.03

Full 7th Circuit to hear college-press case

Court grants Governors State University's request to review three-judge panel's ruling allowing former student journalists to sue dean. 06.26.03

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

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