Appellate Court hears oral arguments in college censorship case

ILLINOIS — During the oral arguments yesterday in acase that could garner college administrators the right to censor studentnewspapers, the three-judge panel of the U.S. Court of Appeals for the SeventhCircuit took an unexpected turn in its questioning — making it a case ofcrossing the T’s, dotting the I’s and using “spell check.”The casebefore the federal court, Hosty v. Carter, involves administrativecensorship of the student newspaper at Governors State University in Illinois.In 2000, Dean of Student Affairs Patricia Carter ordered Regional Publishing torefrain from printing The Innovator without first obtaining a schoolofficial’s approval of its content.The Innovator has notpublished an issue since.The Innovator editor Jeni Porche, 31,managing editor Margaret Hosty, 35, and reporter Steven Barba, 24, sued theuniversity, alleging the school official’s actions constituted a prior restraintin violation of their First Amendment rights. In November 2001, the students’claims against Dean Carter were allowed to go forward by federal Judge SuzanneB. Conlon. During the appeals court hearing on Jan. 7, judges John L.Coffey, Ilana Diamond Rovner and Terence T. Evans asked attorney Dick Goehler,arguing on behalf of the students, The Student Press Law Center and other groupsinvolved in the case, as to whether it would really offend the First Amendmentfor a school to require prior review of the newspaper only for grammatical orspelling errors.Goehler said that prior review of grammar and spelling— or “structure” as one judge referred to it — could not beseparated from “substance.” He also said there was no evidence in the recordthat the Governors State student newspaper was any more error-prone than othernewspapers.Judge Rovner also directed pointed questions to IllinoisAssistant Attorney General Mary Welsh, who argued on behalf of Carter, duringher allotted ten minutes of the oral arguments. Rovner asked whether there wasnot evidence in the record that the school had in fact agreed to give control tostudent editors, a reference to the publications board’s policy for TheInnovator that says just that.Welsh responded that because theadviser had “signed off” on the paper before it went to the printer, there wasstill school control being exercised. Rovner questioned whether the adviser wasapproving content or merely approving the printing process.Welshrepeatedly referred to the “uncertainty” of the law regarding the FirstAmendment rights of college students. She noted both the 1988 U.S. Supreme Courtdecision in Hazelwood v. Kulhmeier that granted high schools greaterright to control student publications and the Sixth Circuit panel decision inKincaid v. Gibson, which was later reversed by the full court in favor ofcollege students free speech. Welsh neglected to note the other 30 yearsof case law on the issue, which supports student speech, and the judges did notask her about it. Ultimately, Welsh asked the court to provide”guidance” on the issue that would clarify the application of the FirstAmendment on college campuses because, she said, the law was so”unsettled.”The three-judge panel could change the landscape ofcollegiate press and speech in Illinois, Indiana and Wisconsin, the three statesthat the court oversees. In its decision, expected in the next six month, thejudges will determine whether free-expression rights of college students are infact greater than those of students in high school — or whetheradministrators can hold newspapers accountable for grammatical and spellingerrors.

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