ILLINOIS — The threat of having no greater press freedomthan that of high school students has college editors, advisersand professors on edge in the Midwest.
The U.S. Court of Appeals for the Seventh Circuit will soonhear a case involving the student newspaper at Governors StateUniversity that could have broad First Amendment implicationsfor students in Illinois, Indiana and Wisconsin. A brief in thecase filed in May by Illinois Attorney General Jim Ryan, on behalfof an administrator at Governors State, argues the U.S. SupremeCourt’s decision in the high school censorship case HazelwoodSchool District v. Kuhlmeier should apply to college journalists.
Ryan’s brief claims the 1988 Hazelwood decision shouldapply because the paper can be called a "nonpublic forum."Ryan is running for governor in Illinois this fall.
Three student journalists — editor Jeni Porche, managing editorMargaret Hosty and writer Steven Barba — allege school officialsat Governors State University, located in Illinois, exercisedprior restraint in violation of the First Amendment when a deanfrom the school demanded The Innovator‘s printer withholdfrom publishing any issue without administrative approval.
In November a federal trial court judge ruled three of thefour administrators named in the suit, and all other defendants,qualified for immunity as government actors. The fourth, PatriciaCarter, dean of student affairs, filed an appeal in December.
The idea of Hazelwood restrictions at the college levelhas sparked concern and disbelief among editors and advisers.Some say if the court sides with the university, it could havelasting effects on college publications and other student expressionon campus.
"I guess there would be the potential for any public university,assuming that this case goes the wrong way for college students,that some university could say ‘Well, see here’s precedent thatwe can require your adviser to review the paper, or we can requiresomeone from our administration to review the paper, before it’sprinted,’" said Jim Killam, adviser to the Northern Star,the student newspaper at Northern Illinois University. "Andthere are just enough administrators out there who salivate atthe thought of that, that I don’t think it’s a stretch to saythat somebody would try that based on this case."
Not only student publications are threatened by this case;all student speech could come under fire.
"It’s important that people realize that the outcome ofthis case could affect any school-supported expression at publiccolleges," said Mark Goodman, executive director of the StudentPress Law Center. "Under the Governors State argument, aschool could require prior review and censorship of speakers andfilms that student groups bring to campus or limit student governmentdebate on certain topics. The implications are mind-boggling."
Editors are concerned not only for their right to make decisions,but for what such a ruling could mean to their educational opportunities.
"I think it’s a case that would really affect us majorly,"said Matt Nestor, summer editor at the Western Courier,the student paper at Western Illinois University. "And, Iheard somebody talking the other day about how ‘Well, you know,it’s not gonna be that big of a deal, because when you get toa regular newspaper you’re still gonna have to answer to all theseeditors.’ But right now we’re learning to be those editors. We’relearning their jobs too, as well as the writing aspect, and itreally does take things out of our hands, and it really does hamperthe learning experience."
The issue of whether a college newspaper is a publicforum is one that many schools will have to address if this caseis decided in favor of Carter. The case comes before the SeventhCircuit less than two years after the U.S. Court of Appeals forthe Sixth Circuit rejected the application of Hazelwoodto a college yearbook in the case Kincaid v. Gibson.
The Innovator is called a "nonpublic forum"in Ryan’s brief because of what the university claims was the"common practice" of having an adviser sign off on issuesbefore they were printed. The students say the adviser never approvedthe content of the paper.
James Tidwell, an attorney and professor of journalism at EasternIllinois University, said the key to being immune to prior restraintis being able to prove a newspaper is a public forum. Regardlessof what the court may decide in this case, he said, student newspaperscan be proactive by providing proof that their publication isa public forum.
Few of the dozens of courts that have dealt with college pressfreedom cases over the last 30 years have ever addressed the forumstatus question. And no court has found a student-edited collegepublication to be a nonpublic or closed forum. But those courtsthat have raised the forum question have said a student publicationis a public forum when school officials have given student editorsthe authority to make their own content decisions. A school cando that either through an official policy or by allowing a publicationto operate with editorial independence.
"I think the best thing is to make it clear in their policiesthat the paper is a public forum," Tidwell said. "Thatwas the issue in [Kincaid v. Gibson], that will be oneof the issues here, and that seems to me to be the way, from alegal standpoint, to keep as much freedom as possible, by makingit very clear that the publication is a public forum, and haveit written down."
The fact that the attorney general has gotten involved doesnot seem to be upsetting people as much as what Ryan’s officehad to say. Some found his point about Hazelwood surprising,while others said it was to be expected.
"At least we know how Jim Ryan feels about universitypublications, and Hazelwood, with respect to this issue,with respect to this one paper," said Terry Lawhorn, adviserto the Western Courier. "That’s something that advisersand editors would want to pay attention to, especially if he winsthe election."
The overall feeling is not one of complete despair, just concern,as the case comes closer to trial. Briefs in the case are duein July, and a hearing could occur in the fall.
"I don’t think that if this case gets lost it’s necessarilythe end of the world for college media. I just think it’s goingto waste a lot of time in having to fight it off, because overand over precedent has shown that courts rule in favor of collegestudents having First Amendment rights, the same as the commercialpress, and I hope we’re not coming to a climate where that’s changing,"Killam said. "I don’t think we are. I think this case mightend up being an aberration and it’s just going to take some timeto fight it off if we have to, but that’s a good fight too."
Porche and Hosty will be acting without an attorney when thecase is presented before the U.S. Court of Appeals for the SeventhCircuit. The Student Press Law Center and other media organizationswill be filing a friend-of-the-court brief countering the university’sargument.
Read our previous coverage.
- Immunity given to 3 in Governors State case Report, Spring 2002
- Editors file lawsuit against state university for actions designed to paralyze publication Report, Spring 2001
- Editors sue university for First Amendment violations News Flash, 3/30/2001