Court of appeals judges hear oral arguments in Kincaid v. Gibson college censorship case

OHIO -- A full panel of federal appellate court judges heard oral arguments May 30 in what may be the most important case heard to date regarding the First Amendment protections afforded America's college student media.

In September 1999, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled in Kincaid v. Gibson that Kentucky State University officials had not violated the First Amendment when they confiscated the 1993-94 student yearbook and transferred the student publications adviser to a secretarial position after she refused to censor material critical of the university from the student newspaper.

In the first such ruling of its kind, the court majority had said that the high school-based Hazelwood censorship standard should apply to college student media. The decision was in stark contrast to court decisions over the past 30 years that provided strong legal protection to college student media. Three months later, the court voted to vacate that ruling and rehear the case before a full panel of 13 judges.

During the May hearing, several of the judges expressed dismay that the case had reached the level it had. Chief Judge Boyce F. Martin was one of the judges who said the case should have been settled much earlier.

"This is an example of the saying bad cases make bad law," he said.

He dismissed KSU attorney J. Guthrie True's argument that school officials had not violated the First Amendment because they had not "altered" the content of the yearbook but merely refused to distribute it.

Several of the judges also seemed skeptical of the university's claim that the yearbook was a "nonpublic forum," which would allow school officials significant control over its content.

While most courtroom observers agreed that the arguments had gone well for the students, there was some concern that the judges spent so much time discussing the forum status of the yearbook.

"It seemed pretty clear to me that the judges felt KSU officials had crossed the line. But while we may win this case, the court could be unintentionally opening the door to allow schools to draft policies that more clearly establish their publications as nonpublic forums," said Mike Hiestand, staff attorney with the Student Press Law Center.

A decision in the case is expected sometime this fall.

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

Fall 2000, reports