A new college Hazelwood case; Illinois attorney general argues that high school censorship standard applies to college press

Illinois Attorney General Jim Ryan suggests, in a court brief filed by his office, that student journalists at the college level should face the same First Amendment restrictions as high school students.

Ryan filed the brief in early May, on behalf of an administrator at Governors State University in a lawsuit brought by student editors of the campus newspaper. Ryan’s brief claims the precedent set in the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier should apply in this case because the paper can be called a “nonpublic forum.”

Three student journalists — editor Jeni Porche, managing editor Margaret Hosty and writer Steven Barba — allege school officials exercised prior restraint in violation of the First Amendment when a dean from the school demanded The Innovator‘s printer not print any issues that had not been approved by a university administrator.

In November a federal trial court judge ruled three of the four administrators named in the suit, and all other defendants, qualified for immunity as government officials. The court ruled that a claim against a fourth administrator, Patricia Carter, dean of student affairs, could go forward. Carter filed an appeal in December with the U.S. Court of Appeals for the Seventh Circuit.

The brief claims Carter should also be granted immunity and argues Porche and Hosty failed to show that Carter had stopped the newspaper from being printed, or that they had a First Amendment claim to begin with. The Innovator is called a “nonpublic forum” in the brief because of what the university claims was the “common practice” of having an adviser sign off on issues before they were printed. The students say that the adviser never approved the content of the paper.

“This is a simple case of failure of proof: Plaintiffs failed to provide either enough evidence to justify a jury verdict on their First Amendment claim, or enough authority to justify finding that it was ‘clearly established’ that the First Amendment prohibited Dean Carter from requesting review and approval of the paper prior to printing,” the brief states.

Porche and Hosty will be representing themselves when the case goes before the U.S. Court of Appeals for the Seventh Circuit.

The Governors’ State case comes less than two years after the U.S. Court of Appeals for the Sixth Circuit rejected the application of Hazelwood to a college yearbook in the case Kincaid v. Gibson. The court’s ruling in this case will affect college media in Illinois, Indiana and Wisconsin.

The Student Press Law Center and other media organizations will be filing a friend-of-the-court brief countering the university’s argument.

SPLC View: Yes, our sentiments exactly: here we go again. We are very disappointed to report that another case is about to go before a federal appeals court that it is fair to describe as Kincaid v. Gibson revisited (and potentially worse). Frankly, this is not the case nor the circumstances in which we would choose to raise these issues before the Seventh Circuit for the first time. (This is a court that does not have a track record on college press freedom issues.)

We urge all you to contact Governors’ State University officials and ask that they reconsider their appeal. For those of you in Illinois, please alert your readers and other state news media of the situation. In addition, we urge you to call your state lawmakers to express your concerns about the stance taken by the Illinois attorney general and the potential damage it could do to college student media not just in Illinois — but nationwide.

Currently, briefs in the case are due in July. As we understand it, hearings before the appeals court will probably not be held until early fall.

Case: Hosty v. Governors’ State University, 2001 WL 1465621 (N.D.Ill. Nov. 15, 2001)