Battle for college free speech continues

ILLINOIS — Celebrations over a ruling that upheld college journalists’ rights came to a halt in June when the U.S. Court of Appeals for the Seventh Circuit threw out its earlier pro-college press decision regarding the Governors State University newspaper and decided to rehear the case. 

The court granted the petition for rehearing filed by Illinois Attorney General Lisa Madigan, who argued that the April 10 decision by a three-judge panel overlooked previous court cases that demonstrate that the law governing free-speech rights for college students was not “clearly established.” 

At least six of the eleven active appellate judges agreed there was a good reason to reconsider the case. If the full court rules against the student press, it could mean the college journalists will be subject to a high school-based censorship standard, which allows administrators to censor student expression simply by providing a reasonable educational purpose. 

The case, Hosty v. Carter, was brought in 2000 by three college journalists after a Governors State administrator ordered a publishing company to refrain from printing the student newspaper until she approved the content. Innovator Editor Jeni Porche, Managing Editor Margaret Hosty and reporter Steven Barba filed a lawsuit, claiming the order by Patricia Carter, dean of student affairs, violated their First Amendment rights. The Innovator has not published since. 

The Seventh Circuit panel unanimously upheld college journalists’ rights by affirming that public colleges and universities cannot demand review of content in student-edited publications. 

“The decision was such a good one, that you hate to see it vacated now,” said attorney Richard Goehler, who represented the students during oral arguments in January. “But it happened and now we just need to pick up and go on and hope we can get the entire Seventh Circuit to endorse that strong position. And if we do get a strong opinion out of the entire court it will set a very strong precedent.”

In its decision, the panel refused to dismiss the students’ lawsuit against Carter as she requested. In the rehearing, the full court, or at least a larger panel of the judges, will again decide whether or not Carter can claim qualified immunity, which protects government officials from being sued. In order to guarantee immunity, Carter must demonstrate that her conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 

In oral arguments and in its petition for rehearing, the Office of the Illinois Attorney General argued that the 1988 U.S. Supreme Court decision in Hazelwood School District v. Kuhlmeier, which restricts high school student expression, could apply to college publications. The attorney general also cited a 2002 decision in the Ninth Circuit and a 1999 Sixth Circuit panel decision, which was later overturned, to demonstrate the law governing free-speech rights for college students is muddled. 

 “You cannot say that the right here was clearly established in October of 2000,” Solicitor General Gary Feinerman said. “Because the right was not established, you can’t hold Dean Carter liable in money damages for violating what the students’ claimed were their rights.” 

When asked if the law regarding college journalists’ free press rights was clearly established now, Feinerman refused to comment, saying that it is not relevant to the case. 

“[The case] only has an effect on the college students ability to sue a state employee for damages,” he said. “By choosing to bring money into the picture, the plaintiffs ensured that we would be engaged in this historical analysis [of qualified immunity] rather than getting to the underlying constitutional issue.”

Goehler said there is no question that this case is about the rights of student journalists. 

“The student First Amendment issue is vitally important because it is the underlying claim,” he said. “To say that you can separate that out and look at this case only as an immunity issue would be a huge mistake.”

Courts have consistently upheld college students’ free-speech rights for the last 35 years. In its decision, the appeals court panel said Hazelwood was not a “good fit” for college students who, it ruled, should continue to receive broad First Amendment rights unless the U.S. Supreme Court rules otherwise.

The decision will affect the free-speech rights of students who attend public colleges and universities in Illinois, Indiana and Wisconsin, the three states under the court’s jurisdiction. 

Todd Merchant, editor of the Daily Egyptian at Southern Illinois University, said his administration has never tried to censor content.

“I would be afraid to picture what that would be like if they were allowed to. It could be detrimental”

A date for oral arguments is not set. The Student Press Law Center and other media organizations will file an amicus brief supporting the student journalists.