Victory for college press
Seventh Circuit says Governors State dean had no legal backing to order prior review of student newspaper
ILLINOIS — College student journalists breathed a collective sigh of relief as a federal appellate court upheld their free-press rights — but the case is not over yet.
In April the U.S. Court of Appeals for the Seventh Circuit endorsed earlier court rulings that said public colleges and universities cannot demand that content in student-edited publications be reviewed before they are published. In doing so, the court rejected an attempt by the state of Illinois to impose a high school-based censorship standard on college student media.
The case was brought by three student journalists at Governors State University after a school administrator instructed a publishing company in 2000 to refrain from printing the student newspaper without first obtaining her approval of its content. Innovator Editor Jeni Porche, managing editor Margaret Hosty and reporter Steven Barba filed suit, claiming the order by Dean of Student Affairs Patricia Carter was a violation of their First Amendment rights. The Innovator has not published an issue since.
Specifically, the appellate court refused to dismiss the students’ lawsuit against Carter. And while allowing the students’ case to go forward, the court provided strong arguments against censorship of college media.
“Attempts by school officials, like Dean Carter here, to censor or control constitutionally protected expression in student-edited media have consistently been viewed as suspect under the First Amendment,” Judge Terence T. Evans wrote for the court.
In its unanimous ruling on April 10, the three-judge panel made clear that the constitutional rights of college student journalists are not limited by the 1988 U.S. Supreme Court decision in Hazelwood v. Kuhlmeier, which significantly restricted the First Amendment rights of many high school journalists. Under Hazelwood, school administrators can censor many high school-sponsored student publications simply by showing they have a reasonable educational purpose.
Illinois Assistant Attorney General Mary Welsh, who argued on behalf of Carter during oral arguments held Jan. 7, claimed that Hazelwood also should apply to the college student press.
But the Seventh Circuit said Hazelwood is not “a good fit” for college students, who it said should continue to receive “broad First Amendment rights” unless the Supreme Court rules otherwise.
“Treating these students like 15-year-old high school students and restricting their First Amendment rights by an unwise extension of Hazelwood would be an extreme step for us to take absent more direction from the Supreme Court,” the court said.
Attorney Richard Goehler, who argued the case on behalf of a group of 25 student and professional media organizations led by the Student Press Law Center, said the decision is significant because of how emphatically the Seventh Circuit rejected the calls to apply Hazelwood to colleges.
The decision follows a similar ruling by the U.S. Court of Appeals for the Sixth Circuit two years ago that said Kentucky State University unconstitutionally confiscated its student-run yearbook.
Carter was appealing a November 2001 decision by federal Judge Suzanne B. Conlon who dismissed Carter’s claim of qualified immunity, which would have protected her from being sued and effectively ended the students’ case against her.
The Seventh Circuit also denied Carter’s request for qualified immunity allowing the lower court to determine whether the students’ First Amendment rights were indeed violated.
Qualified immunity protects government officials from lawsuits when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Carter argued that the law was not clearly established for colleges. But the court said she should have been aware of the many cases over the last 30 years that support college students’ press rights.
“Dean Carter’s contention that she could not reasonably have know that it was illegal to order the Innovator’sprinter to halt further publication of the newspaper or to require prior approval of the newspaper’s content defies existing, well-established law,” the court said.
“These courts have held that school administrators can only censor student media if they show that the speech in question is legally unprotected or if they can demonstrate that some significant and imminent physical disruption of the campus will result from the publication’s content,” the court said.
On behalf of Dean Carter, Illinois Attorney General Lisa Madigan filed a petition on April 24 for the case to be reheard in front of the three-judge panel or the entire Seventh Circuit, which is currently composed of 15 judges.
The petition contends that the three-judge panel overlooked a 2002 decision in the Ninth Circuit (see HIGH COURT, page 14) and a 1999 Sixth Circuit panel decision involving Kentucky State (later reversed), which demonstrate that the law governing free-speech rights for college students is not “clearly established.”
“The panel also overlooks the lack of any evidence that Dean Carter intended the review for anything other than errors of punctuation, grammar, and the like, which are not speech on matters of public concern protected by the First Amendment,” Madigan said in the petition.
After taking the helm of the Innovator in May 2000, Porche and Hosty produced investigative pieces critical of the administration and faculty, which they say could have been the impetus behind Carter wanting to review content.
According to the court decision, Carter contended that she did not actually restrict the publication of the Innovator when she told Regional Publishing to discontinue printing the paper without first receiving her approval. But the court said a company representative indicated that the company would not print additional editions of the paper until the dispute was settled because it did not want to risk printing the Innovator and then not get paid for their effort.
The Innovator was supported by student activity fees, but according to the university’s media board policy the newspaperstaff had the right to “determine content ... without censorship or advance approval.” In its ruling, the Seventh Circuit provided the strongest language against prior review of content in a college newspaper since the 1970s.
Jim Killam, adviser for the Northern Star at Northern Illinois University, said the court decision confirms that prior review is not appropriate for college media.
“I know other advisers that do get that kind of pressure and where the school really does want some control over content. This is a good piece of law because it says that, ‘no you don’t have justification to censor your student newspaper if you are at a public institution,’” said Killam, who is the past president of the Illinois College Press Association.
Goehler said the decision preserves the marketplace of ideas and reinforces the right of student journalists and their classmates to know about academic issues that affect them.
“In the college community, you are dealing with adults who are able to handle information in an appropriate and mature manner if it is presented to them,” Goehler said. “But unless the student press there has the ability to gather the information, write about it and make it available for folks so they can reach their own conclusions, who else is going to be able to do that?”
The decision specifically addresses college press and speech rights in Illinois, Indiana and Wisconsin, the three states that the court oversees, but it could have an impact nationwide.
In a press statement, the student plaintiffs said free speech must be safeguarded.
“We must remain free to express concerns, raise questions, provide answers, protect our interests, defend our characters, clarify our positions, inform our peers, denounce our detractors and persuade our opposition,” they wrote.
In reaction to the Seventh Circuit decision, Hosty said “I’m still reeling with shock, joy and about a hundred other reactions.”
CASE: Hosty v. Carter, 2003 WL 1844809 (7th Cir. April 10, 2003)
Illinois, reports, Spring 2003