High Court shows interest in Hosty


More than 35 organizations file three briefs with U.S. Supreme Court in support of students





Bone chilling. That is how Charles Davis from the Missouri School of Journalism described the Hosty v. Carter decision out of the 7th U.S. Circuit Court of Appeals.

Davis' school along with 35 other college journalism programs, free expression advocacy groups and national media organizations were represented in three briefs filed in October asking the U.S. Supreme to hear the Hosty case.

It is a case that makes student journalism advocates like Davis cringe ' a case that is already being used as an excuse for administrators to censor student newspapers, regardless of whether or not the school is in the 7th Circuit.

And student media advocates are hoping the Supreme Court will hear the case and set the record straight on student free press rights.

So what has all of these organizations so worked up?

On June 20, the 7th Circuit held that college administrators can censor school-sponsored student publications using the standards set by the 1988 Supreme Court decision in Hazelwood School District v. Kuhlmeier. That case dealt with the rights of high school students.

The case arose in the fall of 2000 when Dean Patricia Carter at Governors State University in Illinois demanded that she or another GSU official be allowed to read and approve the student newspaper prior to publication.

Carter's directive was issued despite a university policy that said the student newspaper staff "will determine content and format of their respective publications without censorship or advance approval."

The newspaper's student editors, who had published stories and editorials critical of the administration, refused the administrator's demands and their newspaper stopped publishing.

Court shows some interest

In October the Supreme Court requested that Carter file a response to the students' petition, a move some say shows the Court is interested in case.

The deadline for Carter's response was scheduled for Dec. 28, 2005.

Lisa Madigan, the Illinois Attorney General, had previously waived her right to file a response to the petition filed by the students asking for Supreme Court review.

This action may force Madigan to make clear her position on college press freedom, an issue that prompted debate before she received a national freedom of information award from the Society of Professional Journalists.

Long-time Supreme Court reporter Lyle Denniston wrote on his blog in October that the letter shows "the Supreme Court is showing some interest in the case." Denniston has covered the Court for various newspapers such as The Baltimore Sun and The Boston Globe over the course of nearly 50 years.

"This does not assure review by the justices, but it does indicate an interest in the question at stake," Dennison wrote on his blog.

Four of the nine Supreme Court justices must vote to grant a writ of certiorari. A decision about whether or not the Court will hear the case is expected in early 2006.

What the petition says

The students' petition argues that several past court cases have upheld strong First Amendment protections at the university level.

Among them is the 1972 Healy v. James case in which the Supreme Court decided unanimously that universities could not refuse to recognize controversial campus groups or speakers. A year later, in the decision of Papish v. Board of Curators of University of Missouri, the Court extended the strong First Amendment protections recognized in Healy to a student newspaper.

"In more than three decades following Healy and Papish, this Court has never deviated from this view of the First Amendment's proper application in the college and university setting," the petition stated.

The students argue that because the cases mentioned above are not mentioned in the 7th Circuit ruling and because the federal appellate courts have conflicting decisions on the relevance of the Hazelwood decision to colleges, the Supreme Court should hear the case.

Furthermore, they point out that the Hazelwood ruling on which the court based much of its decision addressed only the rights of high school students. The students' petition argues that university students are rarely minors and university publications seldom part of a curriculum-based class. Therefore, because these circumstances differ from the circumstances of Hazelwood, the Supreme Court should make a separate ruling that applies directly to college students.

Organizations show support

Each of the three briefs filed in support of the students presented a unique argument representing the wide range of groups and interests named in the briefs.

One brief submitted by the Foundation for Individual Rights in Education argued that the effects of Hosty could extend well beyond student newspapers. FIRE filed the brief on behalf of 10 other organizations including several that have defended the rights of campus conservatives.

"Under the logic of Hosty, a state university would be responsible for ' and theoretically control ' the speech of all student fee recipients'. The entire student fee structure is thus transformed from an engine of free speech into a pretext for institutional control," according to the brief.

Some organizations joining FIRE's brief focused primarily on a student's right to free expression.

"At a time when robust debate on campus is too often threatened by campus thought police, this case risks undermining even further the right and ability of college students to express their viewpoints," said Anne Neal in a press release. Neal is the president of the American Council of Trustees and Alumni, one of the groups that signed on to FIRE's brief.

Sarah Dogan, national campus director of Students for Academic Freedom, said that while her organization is not directly involved with student journalists, it joined the brief to uphold the right to free speech and the right to free association.

"The civil exchange of ideas is important' it seems like a very, very dangerous decision," Dogan said.

Veronica Vera from Feminists for Free expression said her organization joined the brief because freedom of expression is important to the cause of feminism.

"The job of the newspaper is to check the administration, not to be checked by the administration," Vera said.

The Student Press Law Center's brief, on the other hand, focuses on how the Hazelwood decision has been misused by high school administrators.

Fourteen national student and professional news media organizations joined the SPLC's brief.

"Seventeen years of living with Hazelwood have shown that school officials and other state actors' [use] it to justify the regulation of virtually any form of teacher and student speech' there is no doubt university administrators are poised to take advantage of their new censorship powers," the brief stated.

Marsha Schuler from the National Federation of Press Women said that her organization joined the SPLC brief in part to show solidarity.

"We need to support those who are supporting the First Amendment on the front lines," Schuler said.

Tonda Rush, speaking for the National Newspaper Association, said the organization joined the SPLC brief because she said it is essential that aspiring journalists learn the importance of the First Amendment.

"We are finding a future where we may be turning out students who don't have an appreciation for the role of the press and are willing to accept authority almost without question'. [Professional newspapers] want to hire student journalists who know what the First Amendment is about," Rush said.

The third brief, filed by journalism educators, focused that argument.

"If university administrators can impose prior restraint on campus newspapers, college journalists will fail to learn the importance of autonomy and professional responsibility because they will be neither autonomous nor responsible," the brief said.

Journalism educators said there is no substitute for experience.

"We want students who can go out into the field and have the same experience as what they'll see as professional journalists," said Jennifer McGill, executive director of the Association of Schools of Journalism and Mass Communication, another group on the journalism educators' brief.

Despite the different focuses of the briefs, all three had some overlapping arguments. Each brief mentioned that college student journalists should not be treated the same as high school student journalists.

"We believe its wrong to extend what's going on in the high school level to the collegiate level' college journalists deserve the same First Amendment rights that professional journalists deserve," said Scott Bosley, executive director of the American Society of Newspaper Editors, which joined the SPLC brief.

Two successes in an ongoing campaign

When the 7th U.S. Circuit Court of Appeals made its decision that college newspapers could be subject to the same First Amendment restrictions as high school journalists, the court left the door open for student journalists to protect themselves. If the student newspaper is a designated public forum at the university level, then it cannot be subject to high school standards of control.

On Sept. 15, Illinois State University became the first school in the 7th Circuit to explicitly designate its student newspaper a public forum in response to the Hosty decision. By doing so, the Daily Vidette cannot be subject to prior review by administrators that isnow permissible in Illinois, Wisconsin and Indiana under the Hosty decision.

"It was a pretty simple process for us' [President Bowman] signed it no problem," said Vidette Editor in Chief Suzanne Bell.

She said that since the signing of the statement, she has gotten calls from other newspapers asking about the statement, and some calls come from newspapers in other states, even outside of the 7th Circuit.

Less than a month later, University of Southern Indiana President Ray Hoops signed a statement designating the student media and a student-run television show on his campus as public forums.

"The university administration have always been very supportive and hands off, but it just shows great support that they put it in writing," said Shyloh Karshner, editor of The Shield, the university's student newspaper.

The designation of these two schools is part of an effort by the SPLC to declare the student media at all universities and colleges in the 7th Circuit public forums, but there are still many to go. More than 80 universities and colleges in the 7th Circuit have not taken a stand either way.

Officials from the journalism department of Vincennes University in Indiana are working to have The Trailblazer, the student newspaper, declared a public forum.

"We're very nervous," said Mark Stalcup, the journalism department chair at Vincennes University. On Nov. 29 he met with the president of the university and hoped to have a statement signed soon after that meeting.

The Trailblazer has had a history of problems with administrative intervention with the newspaper. A former adviser is currently suing the school because he claims he was dismissed after the paper ran articles criticizing the administration. Campus Editor Lindsey Owens is skeptical that a court case or policy change would help the paper because she said if the administration wants to censor the paper, they will just do it.

"I don't really think on our campus it'll have much effect," Owens said.

Some student newspaper editors in the Hosty states said they aren't worried about the decision because it doesn't apply to them.

James Monteleone, editor in chief of the Chicago Flame, said he has never heard of the Hosty decision. But he said since the newspaper is entirely independent from the University of Illinois in Chicago, he did not think it affected him.

Pressure felt outside the 7th Circuit

While the Hosty decision only applies in three Midwest states, student editors have felt the effects of it from coast to coast in the six months since the decision was handed down.

The University of North Carolina at Chapel Hill's Chancellor signed a statement affirming the editorial independence of its student media Sept. 27.

Ryan Tuck, editor of The Daily Tar Heel, UNC's student newspaper, said staff members drafted the statement after they heard the student plaintiffs in Hosty had petitioned for the case to be heard by the Supreme Court.

"As student journalists and First Amendment advocates, we were outraged," Tuck said of the Hosty decision.

The 7th Circuit decision has also been felt on the other side of the country in California.

Ten days after the ruling, a memo was sent to presidents of the California State University system that included a discussion of the case's possible impact on the Golden State.

"[T]he case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers, provided that there is an established practice of regularized content review and approval for pedagogical purposes," wrote CSU general counsel Christine Helwick.

Helwick's memo has prompted an effort to declare student publications in California public forums.

On the statewide level, the California Newspaper Publishers Association is currently drafting a bill that would designate all student media at public schools in California as public forums.

Jim Ewert, a lawyer with the organization, said that the CNPA originally was not too concerned about the Hosty decision because it did not apply in California. However, when Helwick's memo became public, "That kind of sent up a red flag, maybe they'll use Hosty as an argument [in California]."

Ewert said that the bill is still in the drafting stage, and a final proposal of the bill will not come out before the California legislature reconvenes in January.

This fall, administrators delayed a plan to revise Riverside Community College District's campus speech policy and eventually adopted an amended revision to address concerns that the new policy could lead to censorship of the district's student newspapers.

The speech policy revision provoked concern because it declared that Riverside Community College was not a public forum.

The revision to the speech code was a move to comply with recent court rulings in California, said Linda Lacy, vice chancellor of student services. Lacy also said that the policy only applied to protesting and distributing flyers on campus and that the newspaper has a different policy.

Still, student editors and advisers in the district said they were already worried about the possible effects of Hosty.

"Right after we heard about [Hosty] and were nervous about it, then we find out that they want to designate Riverside a non-public forum," said Matt Hendrickson, editor in chief of the Norco Voice, one of the three student-run newspapers in the Riverside Community College District.

So far, administrators have put a footnote in the speech policy specifying that it does not apply to the student media. In addition, administrators have agreed to review the school's student publication policy, said Sharyn Obsatz, adviser to the Norco Voice.

What you can do to respond to Hosty

Free press advocates say the best way for student newspapers to protect themselves from censorship is to be proactive.

Rather than waiting for the Supreme Court to hear the case or for the effect of the 7th Circuit's decision to be felt on other campuses, the Student Press Law Center is calling for college and university presidents and chancellors to declare their student media as public forums with complete editorial independence.

"We are urging student journalists to ask their school administrator to immediately adopt a statement that recognizes campus student news organizations are designated public forums," said SPLC Executive Director Mark Goodman. The SPLC suggests language similar to one of the following:

[Name of student news media organization] is a designated public forum. Student editors have the authority to make all content decisions without censorship or advance approval.

If using this version, a separate statement will be needed to protect each student news organizations on campus.

Or protect all media with a single statement:

All student-edited campus media are recognized as designated public forums. Student editors have the authority to make all content decisions without censorship or advance approval.

The SPLC recommends that a school administrator signs such a policy statement. Verbal statements will not necessarily indicate a clear intent, nor will existing policies whose language significantly differs from what is suggested above.

For more information, visit www.splc.org/publicforumcolleges


Hosty v. Carter, reports, Winter 2005-06

More Information

Timeline

  • Nov. 1, 2000: Patricia Carter, Governors State University dean of students, tells the company that prints The Innovator to stop printing the student newspaper without prior administrative reivew.
  • Jan. 19, 2001: Margaret Hosty and Jeni Porche, editors of The Innovator, file a lawsuit against Governors State University in U.S. District Court seeking more than $1 million in damages.
  • Nov. 18, 2001:A federal trial court judge drops three administrators from the lawsuit, saying they qualify for immunity as government actors. The judge allows the case to go forward against Carter, however, saying she does not qualify for immunity. She later appeals this decision.
  • May 3, 2002: James Ryan, then attorney general of Illinois, files a brief claiming that the 1988 U.S. Supreme Court case, Hazelwood v. Kuhlmeier, does apply to university and college publications. The Hazelwood decision gave high school administrators greater control over school-sponsored publications.
  • April 10, 2003: A three-judge panel of the 7th U.S. Circuit Court of Appeals, after hearing Carter's appeal, rules that the Hazelwood standard cannot be applied to colleges and universities.
  • June 25, 2003: The 7th Circuit throws out the three-judge panel decision and agrees to rehear the case before a full panel of judges after Illinois Attorney General Lisa Madigan files a petition asking the 7th Circuit to rehear the case.
  • June 20, 2005: An 11-judge panel of the 7th Circuit rules that Hazelwood can be applied to colleges and universities if the student media are not designated public forums. This decision marked the first time Hazelwood was applied to college student publications.
  • Sept. 16, 2005: The students file a petition for writ of certiorari asking the U.S. Supreme Court to hear their case. In October three briefs were filed in support of the students' petition.

Quoted

  • "Universities are using the Hosty case as an excuse to censor," said Dan Watson, editor in chief of the Mustang Daily, California Polytechnic State University's student newspaper, in an editor's column on Nov. 8.
  • "Hosty v. Carter. Add those to the growing list of names you need to remember to track the government's restrictions of the First Amendment," said Andy Guess in an opinion piece in The Cornell Daily Sun, Cornell University's student newspaper, on Oct. 24.
  • "Students who want more free press protection than they get inside the school should strike out on their own. Set up a Web site or blog about school issues from home," said Jeffrey McCall in a column in The Indianapolis Star, a community newspaper, on Sept. 24.
  • "A college population is one of legal adults without need of censoring parents or administrators...Prior review would allow university administrators around the country to check over news content, thereby castrating the media and its role as a watchdog," said an unsigned editorial in The Daily Texan, the University of Texas at Austin's student newspaper, on June 22.
  • "Even if we had an editorial group that I didn't trust, that I thought were actually poor journalists and making bad judgments, and (in) the most extreme case, abusing their privilege of putting ink on paper, I still think that's not grounds for our stepping in to censor a newspaper," said the University of North Carolina at Chapel Hill's Chancellor James Moeser as quoted in an unsigned editorial in The Daily Tar Heel on Sept. 29. In light of the Hosty decision and at the request of student journalists, Moeser signed a statement Sept. 27 affirming the independence of all student media on campus.