KSU yearbook confiscation violates First Amendment, appeals court rules

KENTUCKY – A federal appellate court ruled Jan. 5 that KentuckyState University violated the First Amendment when officials confiscatedalmost all copies of the student yearbook in 1994.

In the case, Kincaid v. Gibson, a panel of 10 judges of the U.S.Court of Appeals for the Sixth Circuit rejected a lower court’s rulingthat applied a high school-based censorship standard to college studentmedia.

Instead, the court said the yearbook constituted a limited public forum,and as such, officials at the public university had violated the studentsFirst Amendment rights when they withheld the publication.

The majority decision rejected KSU officials’ argument that they wereonly regulating the style and form of the books rather than their contentwhen they withheld them from distribution. Writing for the majority, JudgeR. Guy Cole called this argument “simply not credible.”

“Confiscation ranks with forced government speech as among the purestforms of content alteration,” Cole said. “There is little if any differencebetween hiding from public view the words and pictures students use toportray their college experience, and forcing students to publish a state-sponsoredscript. In either case, the government alters student expression by obliteratingit.”

Three judges dissented from the majority, and one judge concurred inthe majority’s reasoning but thought the case should be sent back to thedistrict court for a new trial to settle some of the facts of the case.The majority said the facts were clear and sent the case back to the districtcourt, ordering it to enter a judgment in favor of the students.

This decision comes more than a year after a split three-judge panelof the Sixth Circuit upheld a district court’s decision in favor of KentuckyState. The Sixth Circuit voted to vacate the panel’s decision in November1999 and rehear the case. One of the judges who ruled in favor of the universityin September 1999 stayed with his earlier conclusion in this case, whilethe other said his previous decision had been in error and ruled in favorof the students.

The case began in 1995 when two Kentucky State students sued the university.Capri Coffer, who edited the yearbook, and Charles Kincaid, who had paida mandatory student activity fee entitling him to a yearbook, argued thatadministrators violated their First Amendment rights when they confiscatedthe yearbooks. School officials said they objected to the color of thebook’s cover (purple), the title, “Destinations Unknown,” the inclusionof a current events section and a lack of captions for many of the photos.

Kentucky State University spokeswoman Jacqueline Bingham said the universityhas not yet decided whether to ask the U.S. Supreme Court to review thecase, although she said it was “certainly an option.” She declined to makea statement about the ruling.

Bruce Orwin, the attorney for the students, said the decision was goodfor college student journalists.

“I think they can breathe a little easier now,” he said.

The Sixth Circuit’s decision is available online at: http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0005p.06

The Student Press Law Center’s press release can be found at:http://www.splc.org/newsflashes/2001/010501kentucky.html

Additional information and background on the case is available at: http://www.splc.org/newsflashes/kincaidinfo.html