Appeals court rehears Governors State University censorship case


Afull panel of federal appellate court judges heard oral arguments Jan. 8 in acase that could have a profound impact on the First Amendment protectionsafforded America’s college student media.

The case before the U.S. Courtof Appeals for the Seventh Circuit, Hosty v. Carter , involvesadministrative censorship of the student newspaper at Governors State Universityin Illinois. In the fall of 2000, GSU Dean of Student Affairs Patricia Carterordered Regional Publishing to refrain from printing The Innovatorwithout first obtaining a school official’s approval of its content. The paperhad published several articles critical of the administration.

TheInnovator has not published an issue since.

The Illinois attorneygeneral, representing the university, has argued that the law protecting thecollege student media is unclear. She claims that a high school-based censorshipstandard adopted by the U.S. Supreme Court in its 1988 Hazelwood SchoolDistrict v. Kuhlmeier decision should also guide judges when determining theamount of legal protection for expression on the country’s public college anduniversity campuses.

Last April, a three-judge panel of the SeventhCircuit flatly rejected the university’s argument, pointing to more than threedecades of court decisions that protect the college student media. In June, thefull appeals court voted to vacate that ruling and rehear the case before itsentire panel of judges.

At the Jan. 8 hearing in Chicago, IllinoisAssistant Attorney General Mary E. Welsh again argued that the law wasunsettled. Less than 10 seconds into her opening statement, however, it wasclear that at least some of the judges were not buying it.

“In myresearch I couldn’t find a single case where censorship of a college studentpublication has been upheld,” Judge Diane P. Wood told Welsh. “Can you cite asingle case where that has occurred?”

“No,” Welsh reluctantlysaid.

But Welsh argued that this was not a case of content-basedcensorship because all that Carter wanted to do was review the paper for grammarand punctuation mistakes. Colleges, she said, should have the right to screencollege publications for “pornography and obscenity” and other forms of unlawfulcontent to protect the school’s reputation and shield it from legalliability.

While some of the judges appeared somewhat open to the idea ofsuch limited prior review, most seemed to agree that a high school-basedcensorship standard was inappropriate for college student newspapers such asThe Innovator.

“This case is quite different from Hazelwood ,and I think that the effort to extend Hazelwood to cover it is a strangeone at best,” Judge Wood said.

Jeni Porche and Margaret Hosty, the formereditors of The Innovator who brought the case, were in the courtroom andfelt that, overall, the arguments went well.

“I think that the court hada clear understanding of the law involved, even if not all the facts,” Hostysaid.

Though the court’s decision will only have a direct effect onstudent speech at public colleges and universities in Illinois, Indiana andWisconsin, the three states covered by the Seventh Circuit, the case is beingclosely watched by the college student media and administratorsnationwide.

A decision is expected within six months.

SPLC View:One should never try to read too much into the questions judges raise duringoral arguments, but the very first question asked of the university’s lawyersure helped the college press supporters in the courtroom relax a bit. Theuniversity is arguing that the law protecting college student media is”unsettled,” that cases – specifically including Hazelwood – have watereddown college student journalists’ First Amendment rights. We have always said -and Judge Wood at least certainly seemed to agree – that with more than thirtyyears and dozens of free speech victories on our side, the law is actuallyclear. However, although it does not appear the court was prepared to impose thedraconian high school-based Hazelwood standard on college media,questions from some of the judges suggested they may be willing to carve at theedges of existing First Amendment protections. One judge, for example, seemed atleast mildly receptive to the idea of mandatory administrative prior review forunlawful (libelous, obscene, etc.) content. Experience tells us that priorreview has a uniquely chilling effect on student media inevitably leads tooutright censorship. Furthermore, courts have said that public colleges anduniversities cannot be held responsible for the actions of student journalistsunless they are engaged in censorship. 

Until the decision in thiscase is handed down (six months is an average time between oral argument andruling, but it can extend to over a year) advocates for the First Amendment cando little more than cross our fingers.