U.S. Court of Appeals throws out its initial decision in censorship case

OHIO — A federal appeals court in Cincinnati agreed to reconsiderits September decision in the college censorship caseKincaid v. Gibson onNov. 30. The court’s initial decision had troubled many free-press advocates,who feared the ruling could silence the voice of the college student mediaby allowing administrators to censor school-sponsored speech.

A majority of the 22 judges who make up the U.S. Court of Appeals forthe Sixth Circuit voted to vacate a September decision by a divided three-judgepanel, which ruled that Kentucky State University officials had not violatedthe First Amendment rights of students when they confiscated 2,000 copiesof the college’s yearbook.

The court’s decision to vacate the earlier verdict means that the panel’sruling has been thrown out, and the attorneys for both sides must arguetheir cases again before the court. In addition, briefs submitted in supportof either side must be re-filed with the court for consideration duringthe rehearing.

The court will also reconsider the panel’s decision to throw out thestudents’ claim that Kentucky State officials had acted illegally whenthey transferred the student publications adviser to another job aftershe refused to censor the student newspaper.

Thirteen Sixth Circuit judges, including the three on the original panel,will hear arguments in the case sometime next year.

“This is a good sign, the fact that a majority of the court voted torehear it en banc,” said Richard Goehler, an attorney who fileda friend-of-the-court brief in the case on behalf of student media organizationsand others. “These rehearings en banc don’t happen all that often.I think it is a significant decision by the court, and we need to takeevery opportunity to make sure that the full court understands the significanceof the case and the issues that we have to raise.”

“I think the easy thing for courts to do is simply just to let [a decision]sit,” he said. “The fact that they didn’t, and the majority of the courtvoted to rehear it, I think you have to view that as positive.”

The case began in 1995, when Kentucky State students Charles Kincaidand Capri Coffer sued the university. Coffer, who edited the yearbook,and Kincaid, who had paid a mandatory student activity fee entitling himto a yearbook, argued that Betty Gibson, the vice president of studentaffairs at Kentucky State, violated their First Amendment rights when sheseized all 2,000 copies of the yearbook and refused to distribute them.

Gibson said she objected to the color of the yearbook’s cover (purple),its title, “Destination: Unknown,” the inclusion of a current events sectionand a lack of captions for many of the photos.

Kincaid and Coffer also accused Gibson of transferring the student mediaadviser to a secretarial position after she refused to censor a letterto the editor in the student newspaper critical of the university administration.The adviser was later reinstated after she filed a grievance with the university.

In its controversial 2-1 ruling, the Sixth Circuit’s three-judge panelused a 1988 Supreme Court decision upholding a high school principal’scensorship of a student newspaper to justify censorship of the collegepress. This is the first time a federal appeals court has applied the SupremeCourt’s decision in Hazelwood School District v. Kuhlmeier to thecollege student media.

“I was extremely disappointed that the panel of judges did not recognizethat college students are mature enough to be able to exercise their freeexpression under the Constitution,” said Lillian Lodge Kopenhaver, pastpresident of the Association for Education in Journalism and Mass Communication.”There’s a bigger threat with this decision to free expression on variouslevels at colleges and universities across the country. If something likethis is allowed to stand, it’s only the beginning of what we will see tobe great repression.”

In its decision, the panel relied upon a test created by theHazelwood Courtto determine whether the Kentucky State yearbook, The Thorobred,was entitled to the full First Amendment protection of a public forum orthe more limited protection of a nonpublic forum.

Writing for the majority, Judge Alan E. Norris said that despite thefact that school officials had never exercised any “hands-on control” overthe yearbooks until they confiscated them, the yearbook was not a publicforum because Kentucky State had never formally established it as such.Therefore, he said, it did not enjoy the full protection of the First Amendment.

“We uphold the district court’s conclusion that the defendants’ confiscationof the 1992-94 Thorobred was reasonable in light of the yearbook’sfailure to accomplish its intended purpose,” he said in the decision. “Itis no doubt reasonable that KSU should seek to maintain its image to potentialstudents, alumni, and the general public.”

But advocates for the student media argue that the Supreme Court nevermeant for Hazelwood to be applied to colleges, contending that theSixth Circuit’s decision is in direct conflict with over 30 years of existingfederal court decisions, including the Supreme Court’s decision in Rosenbergerv. University of Virginia, which held that school sponsorship doesnot allow officials to control the content of student-edited publications.

In the friend-of-the-court brief Goehler submitted on behalf of studentmedia organizations in support of the students’ appeal, he said, “The judicialdeference the Supreme Court found necessary in the high school setting– and in the factual context of Hazelwood — is antithetical tothe very essence of a university setting.

“A high school is different in kind, not degree, from a university.This difference was fully acknowledged by the Court in Hazelwood,”he said.

Every major national organization of college journalists, journalismstudents and journalism educators in the United States joined Goehler’sbrief, as well as the faculty or department heads from every public collegeaccredited by the Accrediting Counsel on Education in Journalism and MassCommunication in the Sixth Circuit, which covers Kentucky, Michigan, Ohioand Tennessee.

Student journalists at colleges and universities across the countryreacted to the Sixth Circuit’s decision by publishing editorials denouncingthe ruling in their campus papers. The student-run newspaper at Texas TechUniversity, The University Daily, left its Sept. 9 issue blank,printing only advertisements, an editorial about the court’s decision andthe words “THIS IS CENSORSHIP” in huge bold-print on the front page. Onthe inside pages, the word “censorship” was repeatedly printed.

But some journalism educators argue that many college students, especiallythose not involved in the student media, do not realize the effect theSixth Circuit’s decision could have on all kinds of student expressionif its ruling is similar to that of the panel.

Edward Pease, the head of the communications department at Utah StateUniversity, has written about the Sixth Circuit panel’s decision for TheChronicle of Higher Education. He said he fears that the language ofthe panel’s ruling in Kincaid could permit much broader oversighton college and university campuses.

“Under the ruling, a university administration could curb any campusexpression that reflects on the institution,” Pease said. “That could includeart shows, theater presentations, literary works, even rowdy campus rallies.What’s the difference, after all, from an institutional perspective, betweenstudent yearbooks and newspapers and other ideas that someone in powerthinks are not consistent with the institutional image?”

Kincaid implies that any expression on campuses could be subjectto censorship if leaders think it somehow reflects badly on the institution,”he said.

Kopenhaver, a journalism professor at Florida International University,concurred.

“[The panel’s decision] could threaten all kinds of free expression,whether it be drama or debate or anything where students are expressingthemselves,” she said.

Mike Agin, the University of Kentucky’s student media adviser for thepast 11 years, said he is particularly worried about the panel’s distinctionbetween public and nonpublic forums.

“Some people have asked me, ‘What do you think are the long-term effectshere?'” Agin said. “It’s difficult for me to predict. I can see an argumentwhere it would say, just establish your yearbook as a public forum, andyou’re protected again. I could see that argument, but I don’t know theanswer of how to do that.

“I’m worried that if this decision stands, the only option to us isto figure out how do you say that the yearbook is a public forum and thereforenot subject to the authority of the administration,” he said. “I’m a littleworried about that. I don’t know the answers to that.”

Pease said he is also concerned that if the full court comes to thesame decision as the panel, its ruling could have a disastrous impact onthe college student media.

“If allowed to stand, the Kincaid ruling means that censorshipvery well could happen on any campus where student speech irritates thepowers that be,” Pease said. “This isn’t about a purple yearbook with grammarerrors. It’s about a basic constitutional principle of unfettered freeexpression, and about the concept of the university as a safe haven formessy or unpopular ideas.”

The court has not yet issued a briefing schedule or set a date for oralarguments in the case. Once the 13 court of appeals judges make their decision,the only option left to either side is to appeal to the U.S. Supreme Court.

Bruce Orwin, the attorney for the student plaintiffs, has already decidedwhat he will do if the Sixth Circuit does not rule in his favor.

“If we’re not successful, we’re going to the Supreme Court,” he said.”It’s that important.”

View a timeline of the Kincaid v. Gibsoncourt battle or read past stories from our archives.