Spring 2006 Report
|
|
|
 |
 |
|
Spring 2006 - College Censorship
XXVII, No. 2 - Page 26
Hosty Q&A
© 2006 Student Press Law Center
In February, the
U.S. Supreme Court announced that it would not hear an appeal in Hosty v.
Carter, a case that questioned the authority
of administrators at an Illinois university to censor a student newspaper that
had published articles critical of the school. The Court’s refusal means
that an earlier decision by the 7th U.S. Circuit Court of Appeals stands as law
for some student journalists. The case changes the free press landscape for
America’s college student media. But just how much? And what should be
done? The SPLC answers some questions posed by college
journalists.
Why was this
case the focus of so much attention?
The case generated
national attention in part because of the controversial argument made by the
state in defending the school’s right to censor the student newspaper. The
Illinois attorney general attempted to justify the school official’s
actions based on the Supreme Court’s 1988
Hazelwood School District v. Kuhlmeier
decision, which upheld the authority of a principal to censor the student
newspaper at a Missouri high school. In a footnote, the
Hazelwood majority said, “We need
not now decide whether the same degree of deference [to school censorship] is
appropriate with respect to school-sponsored expressive activities at the
college and university level.” Up until the 7th Circuit’s decision
in Hosty, courts had consistently
rejected the application of Hazelwood
to college student media.
Does the
Supreme Court’s refusal to hear the case mean it agrees with the 7th
Circuit?
No. A refusal by the Court to hear a case
constitutes neither an endorsement nor rejection of a lower court decision and
creates no national precedent. The Court’s inaction simply means that the
important questions raised by Hosty
regarding the application of Hazelwood
to colleges remain to be answered by the Supreme
Court.
Is the case over?
Yes. All appeals have been exhausted. The
en banc decision of the 7th Circuit is
the law in Illinois, Indiana and Wisconsin, at least until another case comes
along.
What does the 7th
Circuit’s opinion say?
The court said that because of
uncertainty over the application of the
Hazelwood decision to colleges, Dean
Carter was entitled to “qualified immunity” and the students’
claims for money damages should be dismissed. But the court’s decision
did not end there. Even though the court said it would presume that the
Innovator at Governors State was a
“designated public forum,” the 7th Circuit majority said that the
Hazelwood ruling determines the First
Amendment protections afforded student editors at public colleges and
universities. The court extended both the analysis and the standard of
Hazelwood to the college
environment.
What exactly is the
analysis and standard of
Hazelwood?
As one commentator has described it,
Hazelwood creates a potential
“censorship tsunami.” The
Hazelwood standard allows school
officials to censor otherwise lawful student speech where they can show their
actions are “reasonably related to legitimate pedagogical [educational]
concerns.” For high school journalists, this incredibly vague standard,
which gives great deference to the decisions of school officials, has led to a
significant curtailment of First Amendment protection. The
Hazelwood standard, however, applies
only to school-sponsored student
publications deemed “non-public” or “closed forums.”
Publications categorized as public forums (what the 7th Circuit called
“designated public forums”) are not affected and retain strong First
Amendment protection from censorship. Therefore, before a court can rule whether
a specific act of censorship is permissible under
Hazelwood, it must first engage in what
is known as “public forum analysis” to determine the category into
which the student expression falls.
What is public forum analysis?
“Public forum analysis” is a legal theory courts
have developed to evaluate the legality of government censorship of expression
on government-owned or controlled property. It generally recognizes three kinds
of forums. A traditional public forum
is a place that by an established tradition has been devoted to free expression,
such as a town square. A “limited”
or “designated” public forum is one created by the government
for use by the general public or a certain category of speakers (such as student
editors of a student publication) or to the discussion of certain subjects. High
school student media organizations found to be public forums have fallen in this
category. Speech in a designated public forum is afforded the same extensive
protection given to speakers in a traditional public forum. Any regulation of
speech must be narrowly tailored to serve a significant government interest and
must leave open ample alternative channels of communication. Even a legitimate
government interest cannot justify a restriction if the restriction accomplishes
that goal at an inordinate cost to speech. The final category is the
“non-public” or
“closed” forum. Closed forums have not been established to
function as places for free expression. Many closed forums are fairly easily
identified because of the traditional and well-known restrictions placed on
speech in them; jails and military bases are obvious examples. In a non-public
forum, government officials can limit expression as long as their restrictions
are “reasonable” and not simply an effort to silence a particular
viewpoint.
Public forum status is determined by examining two
things: policy and practice. The key question is whether the government agency
in question (a school, for example) intended to allow speakers to make their own
content decisions. Official statements of the government’s intent are
probably most important, but if such policies do not exist or are unclear, the
practice or tradition of how the venue operates will be significant.
Are college student media
considered designated public forums?
That is probably the
biggest — and most troubling — question raised by the
Hosty decision. In
Hazelwood, the Supreme Court said that
forum analysis was appropriate in analyzing whether a high school
principal’s censorship of a school-sponsored newspaper was lawful.
Hosty was the first court to conclude
that forum analysis was necessary for determining the level of First Amendment
protection afforded a public college
student newspaper. Prior to Hosty, most
courts seemed to suggest that student-edited publications were by their very
nature public forums where student editors had the authority to make their own
content decisions. Indeed, to date, no
court (including the 7th Circuit in
Hosty) has ever found a student-edited,
college newspaper to be a non-public or
closed forum. The danger of Hosty,
however, is that it opens the door to that possibility. Moreover, it is a door
over which school officials — by slyly enacting new policies and practices
that alter a student publication’s forum status — may have
significant control.
The SPLC believes that public forum analysis
simply does not fit in the context of student-edited publications at public
colleges and universities. Many public college or university student newspapers
were founded by students and are completely or largely financially independent
of their school; almost all exist apart from the school’s curriculum and
are editorially independent.
Who is
affected by
Hosty?
For
students attending a public college or university in Illinois, Indiana and
Wisconsin (states covered by the 7th
U.S. Circuit Court of Appeals), Hosty
is now the law. As a practical matter, most college student newspapers will
still be considered designated public forums and entitled to the strongest First
Amendment protection because that is the way they have been operating for
decades. Consequently, the decision’s short-term impact may be limited.
The concern is that Hosty gives college
administrators a road map for closing the public forum that would permit greater
censorship in the future.
However, the
Hosty decision has
no legal impact outside the boundaries
of the 7th Circuit. For student media outside Illinois, Indiana, Wisconsin, the
law prohibiting virtually all forms of administrative censorship remains
unchanged. In fact, the Hosty decision
is in direct conflict with court rulings dating back nearly four decades
(including a ruling by the 6th Circuit in 2001). Unfortunately, it is likely
that some misguided or opportunistic college officials outside the 7th Circuit
will point to Hosty to justify more
administrative control over student media. Student media must challenge such
interpretations immediately.
What
authority do college officials have to censor if my publication is operating as
a designated public forum?
According to the 7th Circuit, none.
The Hosty decision explicitly says that
“no censorship [is] allowed” in a public forum publication. Thus
the significance of public forum status in determining a student journalists
rights can be dramatic.
What impact
does the case have on private college student media?
None
directly. The case addressed the First Amendment protections provided to
students attending public colleges and universities. Private school students
have never been able to claim First Amendment protection from censorship by
school administrators. Still, private schools do not exist in a vacuum and the
court’s ruling could chill the free speech climate for all college student
speech.
If my publication has
always been student-controlled and has never been subject to administrative
censorship, why should I worry about this case?
Because even
though your publication might be considered a public forum today does not mean
it will be in the future. Situations (and college administrators) change.
Hosty creates a door to censorship that
college officials can — if they take certain steps -— manufacture
the keys to unlock.
Under what
circumstances can an open forum be closed?
Unfortunately, that
is a question that remains largely unanswered. A couple of things can be said,
however. On the plus side for student media, the law almost certainly prohibits
school officials from closing down a forum where it is clear they are doing so
because they are unhappy with the publication’s otherwise protected
content.
On the down side, however, courts have placed much weight on
the “intent” of government officials in creating a public forum.
Specifically, courts have said that a forum is not irrevocably established
simply because the government has ignored it or failed to restrict it in the
past. That would suggest that a publication previously operated as a public
forum might be prospectively closed provided school officials clearly expressed
their intent to operate it as a closed forum (probably in the form of a written
policy) and did so for “lawful,” non-content-based
reasons.
Does the case affect
independent/incorporated student media?
If a publication is
truly independent of the school and receives no school sponsorship (no use of
school facilities, no financial support, no faculty adviser ) the answer is
probably no. But only a handful of college publications actually meet the test
of true independence.
Does the
decision affect only student media?
No. The Supreme
Court’s decision in Hazelwood
— now extended to some colleges and universities by
Hosty — explicitly applies to any
school-sponsored, non-forum student activity that involves student expression.
The Hazelwood Court specifically
mentioned that theatrical productions and other student activities such as art
shows could be affected. The decision could also potentially be used to restrict
the type of speakers brought to campus or films shown by activity fee-funded
student groups.
Does this decision
impact the speech of college faculty?
Potentially. The
Hazelwood decision has been cited by a
number of lower courts to significantly restrict and punish the classroom speech
of high school teachers.
What
should college student media organizations do to protect
themselves?
For those in Illinois, Indiana and Wisconsin (the
states of the 7th Circuit), establishing themselves as designated public forums
is crucial. The Student Press Law Center is joining with others to demand that
all public colleges and universities in Illinois, Indiana and Wisconsin go on
record regarding their support for student press freedom. See the box
“Public forum newspapers” on page 24 for suggested language. A
policy statement should be signed or otherwise endorsed by a school
administrator or a body delegated authority by the administration. Verbal
statements will not necessarily indicate a clear intent, nor will existing
policies whose language significantly differs from what is suggested above.
For schools outside the 7th Circuit, if you do not already have a
policy on the books clearly stating that student editors have the authority to
make all content decisions, now is the time to push school officials to sign off
on one. The policy language for schools outside the 7th Circuit can be a bit
more flexible, but should include something like the
following:
[Name of school] recognizes and affirms the editorial
independence and press freedom of all student-edited campus media. Student
editors have the authority to make all content decisions free from censorship
and advance approval and consequently they bear the responsibility for the
decisions that they make.
Is there
anything a student newspaper staff can do if university officials refuse to sign
a statement supporting student press freedom?
The first
question that should be very publicly asked of such school officials is,
“Why?” Do they support a free student press or do they not? A
refusal to take a stand can only mean they want to protect their right to censor
in the future. Furthermore, a growing and consistent body of law indicates that
where school officials have no control over what student editors publish, the
college will not be liable for the publication’s content.
A
school’s position on student press freedom is news and you should make
certain that your readers, potential students, alumni and others are made aware
of it. Consider putting out a press release to local media, other campus news
organizations and state and national press groups. (See:
www.splc.org/publicforumcolleges for the SPLC efforts to publicize schools that
are doing the right thing and those that are not.) Campus media organizations in
California are supporting legislation that specifically limits administrative
censorship. A stat legislator — at the behest of the California Newspaper
Publishers Association — has introduced a bill that would insulate college
student journalists in that state from the effects of Hosty (See brief on page
33). Finally, some college student media organizations may want to examine
establishing complete financial and legal independence from their schools.
Unfortunately, such a separation is not a realistic option for many college
student publications.
What next?
These could be trying times for America’s college
student media, particularly those publications now subject to the 7th
Circuit’s decision in Hosty.
However, student journalists outside the 7th Circuit retain the same, strong
protection from censorship that courts have recognized for decades. The SPLC is
committed to assisting students pursue college censorship cases more vigorously
now than ever before. Student journalists must not back down or change their
commitment to good journalism in fear of administrative
censorship.
Case:
Hosty v. Carter, 412 F.3d 731 (7th Cir.
2005) (en banc), cert. denied, 126
S.Ct. 1330, 74 USLW 3471 (U.S. Feb 21, 2006) (NO.
05-377).
< Return to Previous Page
|
|
|
