Schools at all levels often allow distribution of student-run newspapers, literary magazines and yearbooks on their campus as part of the intellectual and social development of their students. Where students edit and produce the publications, they may run afoul of campus administrators if they publish controversial material.
Some administrators have exercised prior restraint against publications to block inflammatory items from appearing; others have punished student editorial staffers after the offending material has been published. Either way, the question arises: How much freedom do public college campus publications have?
The legal question hinges upon what sort of forum the school created in sponsoring its publications. Because no U.S. Supreme Court cases directly address the question of administrative control over student-run publications at public colleges, legal scholars trying to sort out this issue look first at the situation in high schools.
High schools generally have been considered non-public forums. A non-public forum allows for some individual expression, but the state reserves the right to monitor closely what is expressed, and to suppress it if it is deemed destructive of the narrow purpose of the forum.
Though stating unequivocally that students are not required to “check their First Amendment rights at the schoolhouse door,” the Supreme Court has determined that students’ freedom of speech and press must be balanced against the interests of the schools in maintaining institutional order and a good learning environment. In Hazelwood School District v. Kuhlmeier (1988), the Court found that high school administrators do not violate the First Amendment when they censor or punish students for the content of their school-sponsored expression, so long as the school’s reason for censoring the student expression is related to a legitimate educational interest. In a footnote, the Supreme Court noted that it was not deciding whether its ruling applied to student expression at public colleges and universities.
In light of this refusal, federal appeals courts have tended to find that the Kuhlmeier and Fraser rulings are generally inapplicable to college campuses.
A recent example of this sort of reasoning is the 6th U.S. Circuit Court of Appeals decision in Kincaid v. Gibson, a 2001 case in which a university refused to distribute the published copies of its student-produced yearbook. The administration, displeased with the editor’s choice of design and format, confiscated the yearbooks and kept them in a secret location rather than deliver them to students. The administrators relied upon Hazelwood in claiming that the yearbook was a non-public forum, and that therefore its publication and distribution was not protected by the First Amendment. The U.S. District Court, persuaded by this argument, held that Hazelwood applied to public institutions of higher education. But the full 6th Circuit, hearing the case for the purpose of deciding if Hazelwood applied to the facts of Kincaid, cited the 1st Circuit’s 1989 decision in Student Government Ass’n v. Board of Trustees of the University of Massachusetts in determining that the lower court was mistaken — that college journalists were not subject to the same limitations as high school journalists.
Several courts have ruled that although a public college may require pre-publication submission to an adviser for comments on form and style, what goes into the paper must remain at the sole discretion of the student editors, free from external censorship. It is presumed that although these student-run publications are not traditional public forums open to all, they are created to give students the opportunity to find their own voices through reporting and discussion of issues important to their campus and local community.
Universities are not required to support student papers, literary magazines or yearbooks, nor are they absolutely required to continue support of them once they have been created, but (as is the case with visiting campus speakers) where such publications have created a forum for groups or individuals, public colleges may not prevent funding or distribution because they dislike the messages transmitted in that forum.
However, the legal landscape became murkier in June 2005 when the full 7th Circuit ruled in Hosty v. Carter that “Hazelwood’s framework applies to subsidized student newspapers as well as elementary and secondary schools.” The en banc decision overruled an April 2003 ruling by a three-judge panel of the 7th Circuit, which had found that Hazelwood had no application to the college press.
The student journalists in Hosty petitioned for Supreme Court review, but the Court declined to hear their appeal on Feb. 21, 2006. The Supreme Court’s inaction means that the Hosty decision stands.
Student-press advocates warn that the decision could have far ramifications for all student expression on college campuses that is considered school-sponsored. The decision may embolden other administrators to censor other student expression, claiming it is not a public forum. Time will tell how damaging the precedent will be to campus press freedom.
In a 2000 case only indirectly affecting public college press freedom, Board of Regents of the University of Wisconsin v. Southworth, the Supreme Court held that a university was not required to refund student-activity fees to the extent that they were used to fund a newspaper whose editorial opinions grossly offended some students. This finding suggested that the university’s interest in affirming the freedoms of speech and press for its students outweighed the interests of students who might be offended by the exercise of those rights.
(Updated by David L. Hudson Jr., March 2006)
Full 7th Circuit to hear college-press case