Throughout their history, college newspapers have mostly enjoyed the same rights under the First Amendment as have other newspapers. A recent decision by a federal appellate court, however, jeopardizes their freedom.
Here are the facts.
In 2000, Margaret Hosty was the editor of The Innovator, the student newspaper of Governors State University (GSU), located just west of Chicago. Like many student newspapers, The Innovator was supported mainly by student fees. That fall, Patricia Carter, the university’s Dean of Student Affairs, told the company that printed the paper that in the future, school officials would review each issue before it could be printed. She took this action despite written GSU policy stating that the student staff of the paper would “determine content and format of their publications without censorship or advance approval.”
The reason why the GSU administration decided to trample upon both its own policies and the freedom of the student journalists was simple – it didn’t like the criticism it often received in the pages of The Innovator. But could the school legally engage in prior restraint of the paper? The laws of the United States have been strongly against prior restraint, no matter who is displeased with what’s being written.
Hosty sued Carter and the federal district court that heard the case sided with her on the two big issues in the case. It found that Carter did not have “qualified immunity,” which protects government officials from liability for civil damages where they could not reasonably know that their actions would violate the rights of others. Carter’s conduct was deemed so brazen that she was denied immunity. On the other issue, whether The Innovator and its staff were protected against censorship by the university, the court also agreed with Hosty.
GSU appealed to the Seventh Circuit Court of Appeals, but a three-judge panel upheld the district court’s decision. GSU then requested a rehearing in front of all the judges on the court – an en banc hearing – and hit the jackpot. The Seventh Circuit decided en banc that Carter should enjoy qualified immunity because it was unclear that she was doing something wrong. Why? Because the court said that under a 1988 Supreme Court ruling involving a high school newspaper, it was permissible for school officials to exercise such control. Then, to make matters much worse, the court decided that the Supreme Court’s ruling about high school newspapers should also apply to college papers.
Therefore, the result of the case was not only a victory for the officious Dean Carter, but also a precedent that can be used by other college and university administrations to silence unwanted criticism from student writers and editors. The best that free speech advocates can hope for now is that the Supreme Court will hear Hosty v. Carter and reverse the Seventh Circuit’s decision.
The Supreme Court decision that provided the grounds for the about-face in Hosty is Hazelwood v. Kuhlmeier. That case was about the degree of control it was permissible for a high school to take concerning a student paper published as part of a journalism class. The Court reasoned that because that high school paper was entirely subsidized by the school, officials had the right to determine its content lest people think that viewpoints expressed in the paper represented the viewpoints of the administration.
Whether or not that’s a sound reason for allowing officials to control the content of a high school paper, college newspapers should be treated differently. First, the student fees that in part support college newspapers are not the same as institutional funding in high school. While students usually don’t have a choice in paying activity fees and the funds are allocated by the university, that is different from direct university funding. The university is simply acting as a conduit for a portion of the money the paper needs to operate.
Second, no one would reasonably conclude that opinions expressed in a collegiate newspaper necessarily reflect the views of the administration – particularly since those opinions are often critical of the administration.
Decisions by appellate courts in the past have treated collegiate papers as being entitled to First Amendment protection. This case throws those protections into question and invites university officials like Carter to flex their muscles whenever they don’t like what they read.
Student newspapers can play an important role on campus and shouldn’t be subject to administration censorship.