Seventh Circuit throws out pro college press decision, agrees to rehear Governors State case in front of full court

ILLINOIS — The U.S. Court of Appealsfor the Seventh Circuit agreed yesterday to rehear a case involving GovernorsState University in front of the entire court, thus nullifying an unanimousruling by a three-judge panel who affirmed that prior review of collegenewspapers is unconstitutional. The court granted the petition forrehearing filed by Illinois Attorney General Lisa Madigan, who argued that thethree-judge panel overlooked previous court cases that demonstrate that the lawgoverning free-speech rights for college students is not “clearlyestablished.” By granting the rehearing, at least six of the eleven activeappellate judges agreed there was a good reason to reconsider the case. If thefull court rules against the student press, it could mean that collegejournalists will be subject to a high school-based censorship standard, whichallows administrators to censor student expression simply by providing areasonable educational purpose. The case, Hosty v. Carter, wasbrought in 2000 by three college journalists at Governors State University afteran administrator ordered a publishing company to refrain from printing thestudent newspaper until she approved the content. Innovator Editor JeniPorche, managing editor Margaret Hosty and reporter Steven Barba filed alawsuit, claiming the order by Dean of Student Affairs Patricia Carter violatedtheir First Amendment rights. On April 10, a three-judge panel of theSeventh Circuit upheld the college journalists’ rights by ruling that publiccolleges and universities cannot demand that content in student-editedpublications be reviewed by college officials before publication.Specifically, the panel refused to dismiss the students’ lawsuitagainst Carter as she requested. In the rehearing, the full court, or at least a larger panel of the judges, will againdecide whether or not Carter can be protected from the lawsuit under qualifiedimmunity, which protects government officials from lawsuits when their conductdoes not violate clearly established statutory or constitutional rights of whicha reasonable person would have known. The Illinois Assistant AttorneyGeneral Mary Welsh, arguing on her behalf, claimed that Carter could not haveknown that she was violating the First Amendment when she instructed theprinters to hold the paper. In oral arguments and in its petition forrehearing, the Office of the Illinois Attorney General argued that the 1988Supreme Court decision in Hazelwood v. Kuhlmeier, which restricts highschool student expression, should apply to college publications. The attorneygeneral also cited other cases, including a 2002 decision in the Ninth Circuitand a 1999 Sixth Circuit panel decision (later overturned) to demonstrate thelaw governing free-speech rights for college students is muddled.Madigan once said she was a defender of the First Amendment rights ofcollege journalists. According to the Daily Egyptian at Southern IllinoisUniversity, Madigan said she did not support censorship of the college press ina pre-election debate last fall. In upholding a district court ruling,the three-judge panel said Hazelwood is not a “good fit” forcollege students who, it said, should continue to receive broad First Amendmentrights unless the Supreme Court rules otherwise. Courts have consistently upheldcollege students’ rights for more than 35 years. The decision willeffect the free-speech rights of students who attend public colleges anduniversities in Illinois, Indiana and Wisconsin, the three states under thecourt’s jurisdiction. A date for oral arguments has not been set.Student Press Law Center and other media organizations will file anamicus brief supporting the student journalists.

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The SPLC has an expanding Web page,, with up-to-date information on the Hosty v. Carter case. Be sure you check out the page for the latest news, including a link to the Seventh Circuit decision. The page features a history of the case, along with the Illinois Attorney General