Court of appeals judges hear oral arguments in Kincaid v. Gibson college censorship case

OHIO — A full panel of federal appellate court judges heard oralarguments May 30 in what may be the most important case heard to date regardingthe First Amendment protections afforded America’s college student media.

In September 1999, a divided three-judge panel of the U.S. Court ofAppeals for the Sixth Circuit ruled in Kincaid v. Gibson that KentuckyState University officials had not violated the First Amendment when theyconfiscated the 1993-94 student yearbook and transferred the student publicationsadviser to a secretarial position after she refused to censor materialcritical of the university from the student newspaper.

In the first such ruling of its kind, the court majority had said thatthe high school-based Hazelwood censorship standard should applyto college student media. The decision was in stark contrast to court decisionsover the past 30 years that provided strong legal protection to collegestudent media. Three months later, the court voted to vacate that rulingand rehear the case before a full panel of 13 judges.

During the May hearing, several of the judges expressed dismay thatthe case had reached the level it had. Chief Judge Boyce F. Martin wasone of the judges who 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 school officialshad not violated the First Amendment because they had not “altered” thecontent of the yearbook but merely refused to distribute it.

Several of the judges also seemed skeptical of the university’s claimthat the yearbook was a “nonpublic forum,” which would allow school officialssignificant control over its content.

While most courtroom observers agreed that the arguments had gone wellfor the students, there was some concern that the judges spent so muchtime discussing the forum status of the yearbook.

“It seemed pretty clear to me that the judges felt KSU officials hadcrossed the line. But while we may win this case, the court could be unintentionallyopening the door to allow schools to draft policies that more clearly establishtheir publications as nonpublic forums,” said Mike Hiestand, staff attorneywith the Student Press Law Center.

A decision in the case is expected sometime this fall.

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