Court victories worth celebrating, but fight goes on
College, high school cases give hope, raise questions about future press freedom
The U.S. Court of Appeals for the Seventh Circuit gave the college press an important victory in April by reaffirming what courts across the country have been saying for decades: public college and university officials can rarely if ever censor student media.
The Court’s decision in Hosty v. Carter was a welcome relief, coming only two years after the U.S. Court of Appeals for the Sixth Circuit handed down a similar ruling. These two courts, by endorsing a string of decisions from the 1970s and 1980s, seem to leave no doubt that college journalists’ First Amendment protections are extremely difficult to overcome.
Not everyone is persuaded. Illinois Attorney General Lisa Madigan filed a petition in late April asking the Seventh Circuit to rehear Hosty and reverse itself. Madigan claims that the Supreme Court’s 1988 Hazelwood decision overruled the major college press freedom court decisions of the last century.
Ironically, Madigan once said she was a defender of the First Amendment rights of college journalists. According to the Daily Egyptian at Southern Illinois University, Madigan said she did not support censorship of the college press in a pre-election debate last fall.
It appears she has changed her mind. Thus, at significant expense to the student journalists fighting for their freedom, as well as the taxpayers of Illinois that pay her staff’s salaries, Madigan has prolonged this battle. It’s unlikely that the Seventh Circuit will agree to reconsider the case given its unanimous and thoughtful decision in the case. But for now, the long censorship saga at Governors State University will continue until the Illinois Attorney General can decide where she stands or until all her appeal options are exhausted.
High school press faces its own fight
Most everyone agrees that the Hazelwood decision was a major blow to the school-sponsored high school press. But the SPLC has taken great pains to point out that the Supreme Court did not do away with all First Amendment protection for official student publications. One commonly accepted limitation on what school officials can censor, even under Hazelwood, is the prohibition on what the courts call “viewpoint discrimination.” This is censorship intended to silence a controversial or unpopular viewpoint. Now a federal appeals court in Colorado (and perhaps others) has called that basic legal principle into question. Although other courts disagree, the confusion leaves little doubt that Hazelwood continues to have devastating effects on high school journalism.
As bleak as the legal landscape my be for the high school press, at least two court cases may demonstrate that an avenue to strong First Amendment protection remains for school-sponsored student publications. A federal court in Ohio ruled in February that if a high school student newspaper has operated as a forum for student expression, or a “public forum,” where student editors make their own content decisions, the paper will be entitled to stronger First Amendment protections than those described in Hazelwood. A court case involving a student newspaper in Michigan could reach the same conclusion.
These cases may provide little comfort to those student publications that do not operate as public forums. But for the student media that do, recognition of their forum status is a ray of hope for defending their integrity as independent channels for expressing student views.
reports, Spring 2003