U.S. Court of Appeals throws out its initial decision in censorship case

Majority of judges vote to rehear Kincaid v. Gibson

OHIO -- A federal appeals court in Cincinnati agreed to reconsider its September decision in the college censorship case Kincaid v. Gibson on Nov. 30. The court's initial decision had troubled many free-press advocates, who feared the ruling could silence the voice of the college student media by allowing administrators to censor school-sponsored speech.

A majority of the 22 judges who make up the U.S. Court of Appeals for the Sixth Circuit voted to vacate a September decision by a divided three-judge panel, which ruled that Kentucky State University officials had not violated the First Amendment rights of students when they confiscated 2,000 copies of the college's yearbook.

The court's decision to vacate the earlier verdict means that the panel's ruling has been thrown out, and the attorneys for both sides must argue their cases again before the court. In addition, briefs submitted in support of either side must be re-filed with the court for consideration during the rehearing.

The court will also reconsider the panel's decision to throw out the students' claim that Kentucky State officials had acted illegally when they transferred the student publications adviser to another job after she refused to censor the student newspaper.

Thirteen Sixth Circuit judges, including the three on the original panel, will hear arguments in the case sometime next year.

"This is a good sign, the fact that a majority of the court voted to rehear it en banc," said Richard Goehler, an attorney who filed a friend-of-the-court brief in the case on behalf of student media organizations and others. "These rehearings en banc don't happen all that often. I think it is a significant decision by the court, and we need to take every opportunity to make sure that the full court understands the significance of the case and the issues that we have to raise."

"I think the easy thing for courts to do is simply just to let [a decision] sit," he said. "The fact that they didn't, and the majority of the court voted to rehear it, I think you have to view that as positive."

The case began in 1995, when Kentucky State students Charles Kincaid and Capri Coffer sued the university. Coffer, who edited the yearbook, and Kincaid, who had paid a mandatory student activity fee entitling him to a yearbook, argued that Betty Gibson, the vice president of student affairs at Kentucky State, violated their First Amendment rights when she seized all 2,000 copies of the yearbook and refused to distribute them.

Gibson said she objected to the color of the yearbook's cover (purple), its title, "Destination: Unknown," the inclusion of a current events section and a lack of captions for many of the photos.

Kincaid and Coffer also accused Gibson of transferring the student media adviser to a secretarial position after she refused to censor a letter to the editor in the student newspaper critical of the university administration. The adviser was later reinstated after she filed a grievance with the university.

In its controversial 2-1 ruling, the Sixth Circuit's three-judge panel used a 1988 Supreme Court decision upholding a high school principal's censorship of a student newspaper to justify censorship of the college press. This is the first time a federal appeals court has applied the Supreme Court's decision in Hazelwood School District v. Kuhlmeier to the college student media.

"I was extremely disappointed that the panel of judges did not recognize that college students are mature enough to be able to exercise their free expression under the Constitution," said Lillian Lodge Kopenhaver, past president of the Association for Education in Journalism and Mass Communication. "There's a bigger threat with this decision to free expression on various levels at colleges and universities across the country. If something like this is allowed to stand, it's only the beginning of what we will see to be great repression."

In its decision, the panel relied upon a test created by the Hazelwood Court to determine whether the Kentucky State yearbook, The Thorobred, was entitled to the full First Amendment protection of a public forum or the more limited protection of a nonpublic forum.

Writing for the majority, Judge Alan E. Norris said that despite the fact that school officials had never exercised any "hands-on control" over the yearbooks until they confiscated them, the yearbook was not a public forum because Kentucky State had never formally established it as such. Therefore, he said, it did not enjoy the full protection of the First Amendment.

"We uphold the district court's conclusion that the defendants' confiscation of the 1992-94 Thorobred was reasonable in light of the yearbook's failure to accomplish its intended purpose," he said in the decision. "It is no doubt reasonable that KSU should seek to maintain its image to potential students, alumni, and the general public."

But advocates for the student media argue that the Supreme Court never meant for Hazelwood to be applied to colleges, contending that the Sixth Circuit's decision is in direct conflict with over 30 years of existing federal court decisions, including the Supreme Court's decision in Rosenberger v. University of Virginia, which held that school sponsorship does not allow officials to control the content of student-edited publications.

In the friend-of-the-court brief Goehler submitted on behalf of student media organizations in support of the students' appeal, he said, "The judicial deference the Supreme Court found necessary in the high school setting -- and in the factual context of Hazelwood -- is antithetical to the very essence of a university setting.

"A high school is different in kind, not degree, from a university. This difference was fully acknowledged by the Court in Hazelwood," he said.

Every major national organization of college journalists, journalism students and journalism educators in the United States joined Goehler's brief, as well as the faculty or department heads from every public college accredited by the Accrediting Counsel on Education in Journalism and Mass Communication in the Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee.

Student journalists at colleges and universities across the country reacted to the Sixth Circuit's decision by publishing editorials denouncing the ruling in their campus papers. The student-run newspaper at Texas Tech University, The University Daily, left its Sept. 9 issue blank, printing only advertisements, an editorial about the court's decision and the words "THIS IS CENSORSHIP" in huge bold-print on the front page. On the inside pages, the word "censorship" was repeatedly printed.

But some journalism educators argue that many college students, especially those not involved in the student media, do not realize the effect the Sixth Circuit's decision could have on all kinds of student expression if its ruling is similar to that of the panel.

Edward Pease, the head of the communications department at Utah State University, has written about the Sixth Circuit panel's decision for The Chronicle of Higher Education. He said he fears that the language of the panel's ruling in Kincaid could permit much broader oversight on college and university campuses.

"Under the ruling, a university administration could curb any campus expression that reflects on the institution," Pease said. "That could include art shows, theater presentations, literary works, even rowdy campus rallies. What's the difference, after all, from an institutional perspective, between student yearbooks and newspapers and other ideas that someone in power thinks are not consistent with the institutional image?"

"Kincaid implies that any expression on campuses could be subject to censorship if leaders think it somehow reflects badly on the institution," he said.

Kopenhaver, a journalism professor at Florida International University, concurred.

"[The panel's decision] could threaten all kinds of free expression, whether it be drama or debate or anything where students are expressing themselves," she said.

Mike Agin, the University of Kentucky's student media adviser for the past 11 years, said he is particularly worried about the panel's distinction between public and nonpublic forums.

"Some people have asked me, 'What do you think are the long-term effects here?'" Agin said. "It's difficult for me to predict. I can see an argument where it would say, just establish your yearbook as a public forum, and you're protected again. I could see that argument, but I don't know the answer of how to do that.

"I'm worried that if this decision stands, the only option to us is to figure out how do you say that the yearbook is a public forum and therefore not subject to the authority of the administration," he said. "I'm a little worried about that. I don't know the answers to that."

Pease said he is also concerned that if the full court comes to the same decision as the panel, its ruling could have a disastrous impact on the college student media.

"If allowed to stand, the Kincaid ruling means that censorship very well could happen on any campus where student speech irritates the powers that be," Pease said. "This isn't about a purple yearbook with grammar errors. It's about a basic constitutional principle of unfettered free expression, and about the concept of the university as a safe haven for messy or unpopular ideas."

The court has not yet issued a briefing schedule or set a date for oral arguments in the case. Once the 13 court of appeals judges make their decision, the only option left to either side is to appeal to the U.S. Supreme Court.

Bruce Orwin, the attorney for the student plaintiffs, has already decided what he will do if the Sixth Circuit does not rule in his favor.

"If we're not successful, we're going to the Supreme Court," he said. "It's that important."

View a timeline of the Kincaid v. Gibson court battle or read past stories from our archives.

reports, Winter 1999-2000