Lawyer for Governors State official points to 10th Circuit ruling for support of censorship

ILLINOIS — A lawyer representing a Governors StateUniversity administrator in the Hosty v. Carter college newspapercensorship case is urging the federal appeals court that will rule on the caseto rely on another court’s recent ruling that a Utah university ispermitted to regulate certain school-sponsored student speech.The lawyerpresenting arguments on behalf of the students, however, argued that the Utahcase is not relevant to Hosty v. Carter.Hosty v. Carterbegan in 2000 when GSU Dean of Student Affairs Patricia Carter asserted that theuniversity has the power to review The Innovator, GSU’s studentnewspaper, prior to publication. The newspaper staff objected, contending thatadministrative prior review of a college publication isunconstitutional.In her submission to the court, Illinois AssistantAttorney General Mary E. Welsh stated that the decision by the U.S. Court ofAppeals for the 10th Circuit in Axson-Flynn v. Johnson should beconsidered by the U.S. Court of Appeals for the Seventh Circuit when ruling onHosty v. Carter.Welsh submitted the request for considerationbecause the decision in Axson-Flynn v. Johnson was made Feb. 3 — amonth after oral arguments were heard in Hosty v. Carter.InAxson-Flynn v. Johnson, the court ruled that the University of Utah didnot infringe on a student’s First Amendment rights when it did not allowher to omit profanities from scripts performed in an acting class. The studentobjected to using profanity because it went against her religiousbeliefs.Richard Goehler, attorney for a group of media and FirstAmendment organizations including the Student Press Law Center who argued onbehalf of the student journalists in Hosty v. Carter, refuted the claimthat the Axson-Flynn v. Johnson ruling should be considered relevant bythe Seventh Circuit. He said the facts of the two cases were different becauseAxson-Flynn “dealt solely with student speech, assigned byteachers, in a classroom setting,” and Hosty “involvescensorship of extracurricular student speech in a student-edited collegenewspaper.”In the document, Welsh stated that because the courtruled a university classroom was not a public forum, the ruling “supportsDean [Patricia] Carter’s argument that the First Amendment permittedreasonable regulation of The Innovator, which was a nonpublicforum.” She said the newspaper was not a public forum because GovernorsState University did not intend “to open it for indiscriminate publicuse.”But Goehler said the student newspaper was a public forumbecause the university, “by express policy and practice, placed exclusiveeditorial control of the newspaper with the student editors.”Welsh also argued that the First Amendment allows university controlover school-sponsored speech because the public might believe the universityapproved the speech. “This supports Dean Carter’s argument becauseThe Innovator was “school-sponsored,” given that the publicmight reasonably perceive that it bore GSU’simprimatur.”Goehler disagreed, stating that “because of thestrong First Amendment rights that protect college student media fromadministrative censorship, courts have found that schools bear noresponsibility — financial or otherwise — for what their studentmedia publish.”Finally, Welsh argued that because theAxson-Flynn v. Johnson ruling allowed “reasonable” regulation“in the university context, where students’ age and sophisticationare factors when assessing ‘reasonableness,’” it also“permits mere review of The Innovator and that students’ ageand sophistication are factors.”Goehler said that whileAxson-Flynn v. Johnson should not be considered when deciding Hosty v.Carter, it “serves as a reminder that this court is required toexamine the true motives for Dean Carter’s censorship.”TheSeventh Circuit is expected to rule on the case later this year.

Visit the Hosty v. Carter information page.