In cases where censorship is not clear, the question becomes, "Was content a motivating factor?"
Confiscating newspapers. Requiring prior review. Removing objectionable material. These are all actions courts have prohibited public college administrators from taking against student newspapers.
But when school officials attempt to censor by cutting funds, firing editors or some other indirect means, student journalists can have a more difficult time demonstrating they have a First Amendment case.
"If you're dealing with overt censorship you know what the rules are and what you're dealing with. When it's covert censorship it's harder," said Kathy Lawrence, president of College Media Advisers, an organization of advisers designed to help student media leaders improve their media operations. "At least with overt censorship you know what's going on."
And in these "covert" censorship cases, it all comes down to the motivation behind administrators' actions ' which is very difficult to prove in some cases, student press law experts say. In many cases, content motivation is easily identified. There are a number of cases, however, where administrators or student government leaders insist that their decisions regarding student newspapers were not based on content, while the student editors involved suspect that content was a factor.
"It's a tough call to make. You see those kind of subtle attempts to curb student opinion. And we get a little suspicious about what's behind it," said Tom Rolnicki, executive director of the Associated Collegiate Press, a nonprofit educational membership association that provides professional services to student members.
A court ruled in a recent case out of the State University of New York at Albany that a student government's attempt to cut funding for a conservative student newspaper was content motivated and therefore violated the student editor's First Amendment rights.
In a recent incident at Catholic University of America in Washington, D.C., student editors and administrators disagreed on the reasoning behind a decision to cut scholarship money for the newspaper's editors.
Mark Goodman, executive director of the Student Press Law Center, said the two most important elements of making a successful First Amendment claim are that the action taken is detrimental to the student publication and is a result of the publication's content.
"Sometimes courts describe it as: was the content a motivating factor?" Goodman said.
But even when content cannot be proven as a motivating factor for administrators' decisions regarding a student newspaper, those decisions can still adversely affect the student publication.
The case at Catholic
Starting in fall 2004, Catholic University of America's President David O'Connell and the university spokesman refused to speak to or meet with The Tower, the university's student paper.
On Feb. 4, The Tower ran a story about O'Connell and spokesman Victor Nakas' refusal to comment.
Editors said shortly after the article ran, Vice President of Enrollment W. Michael Hendricks announced that $80,000 in scholarships given to the student newspaper, yearbook and student government would be reallocated as merit and need-based scholarships, ending a 40-year tradition at Catholic.
Nakas said that the change was a "business decision" to increase merit and need-based scholarships.
While Nakas said that the tensions between the administrators and the change in scholarship funding were completely separate incidents, the students involved viewed the situation differently.
"For me, it seems very coincidental that the administration takes an action'after a contentious year between the two of us'. This is very much a free speech issue," said Phil Essington, former editor in chief of The Tower in an interview with the SPLC last year.
Because Catholic University is private, it does not have the same constitutional limitations in censoring students that apply to public institutions. But even if Catholic University was public, students would have had to have proven that content was a motivating factor in Hendricks' decision to cut scholarship money to have a First Amendment claim against the school.
The case at SUNY Albany
When funding cuts are based on content, the law is on the side of the student publications. A student's lawsuit against the State University of New York at Albany illustrates this point.
A New York District judge ruled in August that the student government had wrongly denied Jeff Barea's conservative newspaper funding in what Barea considers a victory for student funded press.
Barea said he believes the council refused to fund the paper because of its conservative content, a contention the court agreed with.
"This sets the standard for New York State that freedom of the press exists," Barea said.
Nicholas Chiuchiolo, chairman of the senate, said in response to the lawsuit the school has been working to fund school groups without bias. He said the senate has done so by requiring student government members to attend workshops about how to make funding decisions that are viewpoint neutral. But Chiuchiolo said the student government plans to appeal the decision.
The case at Essex County College
At Essex County College in Newark, N.J., student editors have said administrators have made it very difficult for the student newspaper to publish.
After their adviser quit last spring, Observer staff published its May issue without one. Shortly after, Dean of Students Susan Mulligan informed the staff that they could not publish their paper without an adviser.
Student editors Joel Shofar and Melinda Hernandez found an adviser, but Mulligan rejected him as unfit for the job.
Despite Mulligan's rejection, Observer staff moved forward with their graduation issue anyway. When Mulligan found out the students still planned to publish the issue, she told the newspaper's printer that the school would not authorize payment.
The students published the issue without school authorization or funds.
Hernandez said student editors and administrators agreed on a new adviser in late October, but the paper would not put out its first issue until January.
"They have made things very difficult in working with us," Hernandez said.
Mulligan admits that the paper has had a problem publishing, but insists that the problem has nothing to do with censorship.
"I have no content-related issues," Mulligan said.
Preventing covert censorship
It is easy to prove the negative affects an administrator's or a student government leader's actions can have on a student publication, but proving motivation can be much more difficult.
The clearer the First Amendment protections for the college media have become, the more clever school officials have been in their effort to censor, Goodman said. In these covert censorship cases, student editors are often at odds with administrators on why a decision was made. This conflict can result from a misunderstanding or bad communication between students and administrators.
"When there is a misunderstanding, that in itself is a sign of a problem, that the administration is not being clear with the students," Goodman said.
And mending lines of communication could be a first step in preventing covert censorship.
Hernandez said she's noticed that Essex's problems with the student newspaper come and go.
"We had a similar issue in the late 90s. It isn't new that the college has a problem with the paper' but as of right now they [the administrators] seem to be getting better," she said.
Kate McGovern, current editor of The Tower at Catholic University, is working to improve relations between the student newspaper and administrators, and she said it seems to be working because the president gave his first statement to the newspaper in nearly a year for an October issue.
"I tried to rebuild some bridges this year and I think things are definitely getting better," she said.
Lawrence pointed out, however, that there should be some tension between administrators and the student editors.
"If they [the student media] do have a very harmonious relationship, they may not be doing their jobs," Lawrence said. "But there does need to be mutual respect on both sides."
Gregory Roberts, executive director of College Student Educators International, said student media leaders and administrators need to build a relationship to communicate effectively and minimize misunderstandings. Roberts' organization works with college administrators to foster student learning.
"I think it should be a very open one," Roberts said of an ideal relationship. "You have an opportunity to build a relationship. Just communicate what is the expectation."
Goodman said clear expectations are the best way for student media to avoid covert forms of censorship.
"The key in most cases is to create an attitude among officials on campus that a free press is important," he said.
reports, Winter 2005-06