OHIO – A full panel of federal appellate court judgesheard oral arguments this afternoon in what may be the most importantcase heard to date regarding the First Amendment protections affordedAmerica’s college student media.
In September 1999, a divided three-judge panel of the Courtof Appeals for the Sixth Circuit ruled in Kincaid v. GibsonthatKentucky State University officials had not violated the FirstAmendment when they confiscated the 1993-94 student yearbook andtransferred the student publications adviser to a secretarialposition after she refused to censor material critical of theuniversity from the student newspaper. The yearbooks, which schoolofficials objected to in part because their covers were purpleand not the official school colors, remain locked in a KSU storageroom.
In the first such ruling of its kind, the court majority hadsaid that a high school-based censorship standard adopted by theU.S. Supreme Court in its 1988 Hazelwood School District v.Kuhlmeierdecision should also guide judges when determiningthe amount of legal protection for expression on the country’spublic college and university campuses. The decision was in starkcontrast to court decisions over the past 30 years that providedstrong legal protection to college student media. Three monthslater, the full court voted to vacate that ruling and rehear thecase before a full panel of judges.
In today’s hearing, 12 black-robed judges — and one participatingby telephone — sitting in a crowded, wood-paneled federal courtroomin Cincinnati questioned both sides for about an hour.
Several of the judges expressed dismay that the case had reachedthe level it had. Chief Judge Boyce F. Martin was one of the judgeswho said the case should have been settled much earlier.
"This is an example of the saying bad cases make bad law,"he said.
He dismissed KSU attorney J. Guthrie True’s argument that schoolofficials had not violated the First Amendment because they hadnot "altered" the content of the yearbook but merelyrefused to distribute it.
"How is this not an alteration of content? As Thomas Painesaid, ‘What’s the ultimate thing you can do to a newspaper? Seizeand destroy it,’" Martin said.
Several of the judges also seemed skeptical of the university’sclaim that the yearbook was a "nonpublic forum," whichwould allow school officials significant control over its content.The university has argued that the yearbook was an official schoolpublication — not a student-controlled publication — over whichschool officials retained control.
"Doesn’t the record show that school officials had nothingto do with the yearbook up until the point they confiscated it?"Judge Ronald Gilman asked True.
True admitted that was correct, but argued that the yearbookwas still not a public forum because it was not open to all universitystudents.
"Under the best of circumstances this yearbook is theproduct of a very small editorial staff," he said.
Judge Gilbert S. Merritt asked the students’ attorney, WinterHuff, whether a court should take into account the location andtype of school when setting a First Amendment standard for collegestudents.
"Should there be any distinction between small, ruraluniversities — which may be more like high schools — and a schoollike Ohio State University?" he asked.
Huff responded that such a distinction would unfairly punishstudents at smaller schools and that all college students deservedstrong First Amendment protection.
Merritt then asked whether the court should create a standardthat says students have the same First Amendment rights as adults.
"I don’t see any reason to create a separate standardfor adults’ First Amendment rights and anybody else’s First Amendmentrights," Huff responded.
A decision in the case is expected sometime this fall.