ILLINOIS — A fullpanel of federal appellate court judges heard oral arguments this morning in acase that could have a profound impact on First Amendment protections affordedAmerica’s college student media.The case before the U.S. Court ofAppeals for the Seventh Circuit, Hosty v. Carter, involves administrativecensorship of the student newspaper at Governors State University in Illinois.In the fall of 2000, GSU Dean of Student Affairs Patricia Carter orderedRegional Publishing to refrain from printing The Innovator without firstobtaining a school official’s approval of its content. The paper had publishedseveral articles critical of the administration.The Innovator hasnot published an issue since. The Illinois attorney general,representing the university, has argued that the law protecting the collegestudent 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 have provided strong legal protections to thecollege student media. In June, the full appeals court voted to vacate thatruling and rehear the case before its entire panel of judges. In today’shearing, conducted in a half-full courtroom in downtown Chicago, IllinoisAssistant Attorney General Mary E. Welsh once again argued that the law wasunsettled. Less than 10 seconds into her opening statement, however, it wasclear that at least some of the judges weren’t 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.Again, Wood cut her off. “No — what it presents is absolute censorship. Printers don’t print for free,” Woodsaid.Welsh continued to insist that in addition to reviewing for grammarand punctuation mistakes, colleges should have the right to screen collegepublications for “pornography and obscenity” and other forms of unlawful contentto protect the school’s reputation and shield it from legal liability.That was a point on which Judge Richard A. Posner seemed to bite.In questioning Dick Goehler, the attorney representing the Student PressLaw Center and 24 other groups who filed a friend-of-the-court brief on behalfof the students, Posner asked whether there was anything wrong with such apractice of prior review. “[Carter] didn’t actually censor anything didshe? She just wanted to see the paper,” Posner said. He wondered whatthe difference was between an adviser looking over an article and some otherschool official doing so.”Advisers provide advice,” Goehler said. “Theydo not engage in censorship.”Posner did not seempersuaded.Still, most of the judges appeared to agree that a highschool-based censorship standard was inappropriate for college studentnewspapers such as The Innovator.”This case is quite differentfrom Hazelwood, and I think that the effort to extend Hazelwood tocover it is a strange one at best,” Judge Wood said.During much of thehearing, some of the judges struggled to understand the role of the collegestudent media.For example, a number of judges wanted to know who the”publisher” of the paper was and spent time asking the attorneys for informationon such things as who hired the advisers and the makeup of the school’s mediaboard.Jeni Porche and Margaret Hosty, the former editors of TheInnovator who brought the case, were in the courtroom and felt that,overall, the arguments went well. They feel confident the court will rule intheir favor. “I think that the court had a clear understanding of thelaw involved, even if not all the facts,” Hosty said.”I hope the courtwill understand what a Pandora’s box this will be if they ruled against us,”Porche said.Student Press Law Center legal consultant Mike Hiestand, whoalso observed the hearing, said he felt fairly positive.”The law hasprovided clear, strong and consistent legal protection for the college studentmedia for nearly four decades,” Hiestand said. “We think the law remains clear,and after what we’ve heard today, we remain confident that many of the judgeswill agree.”Though the court’s decision will only have a direct effecton student 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.
Hosty v. Carter, Case No. 01-4155