CINCINNATI — New battle lines were drawn in the war over whether collegeadministrators can legally silence certain forms of student expression in asmall courtoom in Cincinnati Thursday.
The case, Kincaid vs. Gibson, which has been fought all the way tothe U.S. Court of Appeals for the 6th Circuit, was argued by the two sides’lawyers who each had 15 minutes to jockey their positions to the threejustices.
Media advocates dubbed it the “college Hazelwood case” after a lower courtjudge ruled that the 1988 Supreme Court decision, Hazelwood School District v. Kuhlmeier, which allows for much greater censorship of student publications in highschools, could be extended to colleges.
The case originated after two Kentucky State University studentsfiled a lawsuit against the school after an administrator, Betty Gibson, claimed that theyearbook displayed a “lack of quality,” and prohibited the publication frombeing distributed.
Arguing on behalf of the students, attorney Bruce Orwin argued that the KSU administrator violated the yearbook staff’s First Amendmentrights when she denied the yearbook’s release due to content reasons.
“The yearbook was titled ‘Destiny Unknown,'” he explained to thejustices. “There was nothing bad about it – it was just about students. Itwas a style decision by the editor who utilized her authority delegated toher.”
But Judge James Ryan appeared disinterested in theconstitutionality of the case, as he pressed both lawyers instead aboutthe differences between “content” and “viewpoint” discrimination.
“Your constitutional arguments are not persuasive,” Ryan told Orwin.
But Orwin, waving a copy of a KSU handbook, said the school’s own rules givecontrol over publishing the student newspaper and yearbook to the studenteditors, not to administrators.
Ryan seemed skeptical.
“I can’t believe that book says the university was going to hand over the yearbook to a studenteditor … saying ‘This is your baby, do with it whatever you want,'” Ryan said.
Meanwhile, J. Guthrie True, the attorney representing Kentucky State,stuck with the argument that the yearbook debate had nothing to do with the First Amendment. KSU only seized the book to prevent its poor quality fromembarrassing the school, he said. He claimed the yearbook was not a public forum, which he said put the the university-funded publication under the school’scontrol.
“This is a government sponsored publication by a governmentsponsored university,” he said. “The yearbook was withheld simply becausethey did a poor job which looks poorly on the university. It came in halfthe size (of previous yearbooks), with half the photos. The yearbook hadpoor photos and poor headlines. The university has the right to exercisereasonable control of the yearbook.”
Orwin used his remaining time to tell the judges that the fate ofnot only yearbooks, but college journalism everywhere, was hanging on theirdecision.
“If you affirm the decision of the lower court…it will destroythe student press,” he said.
Orwin added that a simple disclaimer stating the student newspaperand yearbook’s position as a public forum would solve the problem.
After the hearing, Orwin professed his and many other people’sbelief that this case goes way beyond Kentucky State.
“Any and all activities on campus can be affected,” he said.”Where’s the limit? Every student publication will be fighting this war.”
If the 1988 Hazelwood decision, which effectively legalizedcensorship of most school-sponsored high school publications, is incorporated into colleges,Orwin said student-run literary magazines, theater, English departmentswould be susepteble to censorship along with newspapers and yearbooks.
“Hazelwood is for high school students with limited maturity,” hetold the judges.
Laura Cullen, the former adviser of student publications atKentucky State who attended the hearing, acknowledged that a personaldispute between herself and Betty Gibson, the Kentucky State vice presidentwho ordered the yearbooks be locked up, may have been the catalyst thatresulted in the seizure.
“I think it started out that way,” Cullen said. “But now I thinkit’s blown up into something bigger.”
Cullen said she referred Gibson’s request to censor a controversialletter about to run in the student newspaper to the editor, who allowed itspublication. Immediately after the letter ran, Cullen was removed from heradvising position and was given the new job of distributing dorm room keys.Soon after, the publication of the yearbook was prohibited.
“It’s all politics,” Cullen said. “These administrators don’tunderstand how hard these students work for their publications. So what ifthere are no cutlines (under the yearbook photos)?”
Although Cullen admitted the yearbook wasn’t perfect, she stayedwith her belief that the First Amendment was violated.
“It wasn’t great and won’t win any awards, but it was a good effortand the students learned from it,” she said. “Once you create apublication, it is hands off from the university unless it is libelous oris an imminent disruption or obscene.”
Cullen added that “the word will get out” if the students losetheir appeal.
Other student media advocates in the 6th Circuit, which includesthe university-rich states of Ohio, Michigan, Kentucky and Tennessee areopenly siding with the students. Seventeen college journalism departmentssigned onto three friend-of-the court briefs.
Dale Harrison, a journalism professor and student newspaper adviserat Youngstown State University in Ohio, said he made the nearly five-hourdrive to attend the hearing out of a combination of fear and interest overthe case.
“I have been watching this case very closely and am very concernedat this point,” he said.
Harrison added that it was hard to tell how the justices will ruleafter watching the hearing.
“I’m scared,” he said.
A decision is expected to be issued by the court within about the next six months.