Legal Analysis: Getting the numbers on college censorship
In February 2016, editors at The Daily Kansan sued two University of Kansas administrators for First Amendment violations. Why? The editors alleged that administrators had signed off on a $45,000 cut to The Kansan’s budget designed by student government members to retaliate against the newspaper for publishing an editorial they didn’t like.
After the candidates for president and vice president that had won the majority vote were declared ineligible, the runners-up received the leadership positions. The Kansan published an editorial calling the campaign policies confusing and suggesting changes to the election system to prevent similar occurrences in future elections. In the wake of the editorial’s publication, the runners-up were temporarily removed from their offices and had to win a reelection in order to retain their positions (which they did). After the reelection, the student government cut The Kansan’s budget in the midst of a discussion of the editorial, even reading part of the editorial during the funding meeting. The university administration then approved the funding reduction.
The Kansan regained its full funding after filing the suit, but this case raises questions even when we aren’t in Kansas anymore. How often do student newspapers face retaliation that doesn’t result in a lawsuit? What other types of official pressures do campus newspapers face? The past few years have seen many cases of student media censorship make the headlines: There was the newspaper at Fairmont State University that lost its adviser after reporting on toxic mold in dorms, the publication at Louisiana State University Law Center that became subject to prior review by an official diversity taskforce, and the newspaper at the University of Memphis that faced funding cuts criticizing the university for its response to sexual assault. Even with these news reports, the question remains: Are these cases the exception or the rule when it comes to censorship and student media? With these questions in mind and the looming requirement of completing a thesis for my master’s degree, I designed this work-in-progress study to examine the prevalence of censoring practices experienced by newspaper editors at public, four-year colleges. To answer these questions, I sent a survey to the editor of every flagship newspaper at public, four-year colleges to find out how they experience censorship.
Legal Framework: When Can Colleges Censor Student Newspapers?
The Supreme Court first recognized the importance of free expression on college campuses in 1967 in a decision called Keyishian v. Board of Regents. In this seminal decision, the Court announced that “[t]he classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth.” The Court affirmed this ideal five years later in Healy v. James, “not[ing] that state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Thus, there’s no doubt that college students, including student journalists, enjoy First Amendment protections.
Probably the most famous student speech case, though, came in 1969 and didn’t deal with colleges at all: The oft-quoted Tinker v. Des Moines Independent Community School District case considered the rights of junior high students to peacefully protest at school. In that case, the Court held that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Thus, the Court said, public schools may only censor student expression that is likely to substantially disrupt the school environment or invade the rights of others. Many courts have applied this test to college student expression (including to college student newspapers), though some courts have noted that Tinker does not provide enough protection for the speech rights of adult college students.
The Supreme Court scaled back First Amendment protection for student journalists in Hazelwood School District v. Kuhlmeier (1988). In that case, the Court decided that when it comes to schoolsponsored, curricular, student publications at K-12 schools, administrators can “exercis[e] editorial control over the style and content of student speech . . . so long as their actions are reasonably related to legitimate pedagogical concerns.” This is the relevant standard, the Court said, unless the publication is designated “by policy or practice” as a forum for student expression. In other words, if we’re looking at non-curricular K-12 student speech, Tinker applies, and schools may only censor for substantial disruptions or invasion of others’ rights. Same if we’re looking at student speech in publications that have been set aside as forums. But when a student speaks in a curricular publication, schools may censor the student for any “legitimate pedagogical” reason.
When the Hazelwood decision first came down, a lot of scholars expected it to only apply to K-12 student journalists. After all, the case had been about a high school newspaper and the Court’s opinion had included a footnote cautioning that the Court did not decide whether Hazelwood would apply in the college context. However, courts soon followed with applications of Hazelwood to college student publications, including in the Seventh Circuit case Hosty v. Carter. Only the Sixth Circuit has explicitly rejected applying Hazelwood to college students. Meanwhile, some states have passed New Voices legislation – anti-Hazelwood laws designed to reestablish Tinker as the applicable test for censorship of student journalists’ expression.
To get back to our original question: When can colleges censor student newspapers? The answer is, it’s complicated. Because of the jurisdictional split on the application of Hazelwood and silence on the issue in other jurisdictions, it is hard to say for certain when public colleges can censor student media. What is certain, however, is that content-based and viewpoint-based restrictions that are not based on legitimate pedagogical concerns are barred whether analyzed under Hazelwood, Tinker, or a more liberal test. However, regardless of when college administrators can censor student newspapers, an important question remains: Should college administrators censor student newspapers? When the college campus is the “peculiar marketplace of ideas” in the United States, is it good policy for student newspapers – which often provide a launching point for wider campus discussions – to face official censorship? With these contours in mind, this study seeks not to examine whether administrators censor only when they legally are allowed to censor, but to examine whether they censor at all.
What Do We Already Know About Censorship of College Publications?
Recent research shows us that editors and advisers overwhelmingly believe that editors have the main thrust of control over college student publications. However, one recent survey of college newspaper editors found that a substantial minority (42 percent) believe censorship is a problem for their publications. On the other hand, that same study found that advisers and administrators do not believe that censorship is a problem for student newspapers. While we know a bit about perceptions of control and censorship at college newspapers, recent social science doesn’t tell us much about how student newspaper staff members experience censorship, or the prevalence of specific practices. Getting back to the examples talked about in the above, recent studies don’t tell us how often student newspapers face funding cuts, removal of advisers, or staff discipline.
Some studies were done in the 1950s and 1960s to look at these numbers: In 1965, only 49 percent of public colleges had specific policies against prior restraint, for example. In 1969, a study found that 28 percent of newspapers at small colleges had experienced someone other than student staff members making content decisions for the publication. A few more studies were done to examine censorship of college newspapers in the 1980s and 1990s: For example, in 1993 a researcher conducted in-depth interviews with editors at public college newspapers in the Midwest and found that the editors reported trends of administrative oversight. A survey was done in 1992 to examine censorship at California community colleges, and it was revealed that many such newspapers faced prior review and prior restraint, as well as subtle pressures to “tone down” stories.
A lot has changed since the 1990s. Administrations have grown, federal regulation of higher education has increased, and student newspapers have begun publishing online. Thus, it would be a mistake to assume the censorship landscape at public college newspapers looks the same now as it did in the ‘90s, and it would certainly be a mistake to assume the landscape looks the same now as it did in the ‘60s. This study-in-progress seeks to look at this landscape now: How prevalently do student newspapers specifically experience censoring practices from college officials?
Exploring Censorship of College Newspapers: The Survey
To start to answer these questions, an electronic survey was sent to editors at every flagship newspaper at a public, four-year college in the U.S. The survey asked about things related to content control, but for the purposes of this sneak preview, we’ll focus on the questions about administrative censorship. The survey asked editors how often they experienced a number of administrative censoring practices, including prior review, funding cuts, scholarship cuts, and job dismissal. The survey was completed by 199 editors, or about 37 percent of all editors of flagship papers at public, four-year colleges.
The results: More than 60 percent of editors who took the survey reported experiencing at least one instance of administrative censorship in a oneyear period. This number breaks down like this: 51.9 percent reported a staff member being asked by administration not to publish something; 23.3 percent reported being threatened with funding cuts because of newspaper content; 7.4 percent reported a staff member’s job being threatened; and 7.2 percent reported a staff member facing disciplinary action. Still others faced administrative actions that have historically been used as subtle forms of censorship: 66.1 percent reported administration contacting the newspaper to discuss a story prior to publication (not including responses to interview requests) and 81.1 percent reported administration contacting the newspaper to discuss a story after publication.
Thankfully, most editors who report experiencing administrative censorship say it doesn’t happen often. The average for administrative requests not to publish something was 1.76, on a scale where 1=never and 5=very often. Thus, most editors are saying administrations either never or rarely ask them not to publish something, but 51.9 percent say they have experienced this at least once in the past year. In other words, a lot of editors are saying they experience censorship, but not very often. Even if 60.2 percent of student newspapers experience censorship only once per year, that’s still more than 320 instances of censorship at college newspapers across the country each year. So, administrative censorship of public college newspapers might be like the flu: Nearly everyone gets it once or twice a year, but only a fraction of the population gets it so bad that it sends them to the hospital, and an even smaller fraction gets it so bad that it’s potentially fatal.
What’s Next: Expanding the Survey & More Data Analysis
While these results begin to answer the question of how prevalent certain censoring practices are among college newspapers, they don’t tell the full story. This project is a work in progress, and will include a survey of college administrators to explore their attitudes toward student journalism and to discover how often they believe they are engaging in censoring practices. When complete, the project will examine whether student newspaper editors experience content pressures from sources other than college administrators, and will look at how often they comply with content pressures from various people and groups. Finally, the project will look at how editors’ personal characteristics, colleges’ institutional characteristics, and newspapers’ organizational characteristics might influence how often newspapers face censorship.
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