ILLINOIS — A federal appeals court in January heard arguments in Hosty v. Carter, a case that could drastically change the way student newspapers are run at public colleges and universities in Illinois, Wisconsin and Indiana.
The case pits student journalists at Governors State University against a college administrator who claimed she should have the power to review a student newspaper before it was published. A ruling in favor of the student journalists would reaffirm students’ rights to free speech. A ruling in favor of the university could limit students’ rights and give college administrators the ability to institute prior review of college student publications.
Richard Goehler, the lawyer who argued on behalf of the GSU student journalists, said he was “cautiously optimistic” after the hearing on Jan. 8 in Chicago.
“It’s always one of those inexact sciences to try to predict [the outcome of a hearing] based on the questions that are asked,” said Goehler, who is working on behalf of several First Amendment organizations, including the Student Press Law Center. “Our collective reaction after the oral arguments was very positive.”
In November 2000, Patricia Carter, dean of student affairs for Governors State University, ordered Regional Publishing to refrain from printing The Innovator, a student newspaper at the public university, without first obtaining a school official’s approval of its content. The paper has not published since.
In January 2001, the student editors filed a lawsuit against the university, claiming the university’s prior restraint of the newspaper infringes on their First Amendment rights.
The university’s argument that a 1988 Supreme Court ruling allowing high school administrators to review student publications before they are published should be applied to college student newspapers, has been rejected twice, once by a federal district court and again by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. The full 11-judge panel of the Seventh Circuit, however, granted the university’s request for a full hearing.
Goehler continues to wonder why the Seventh Circuit decided to rehear the case, but he said he believes the arguments presented before the appeals court “clearly support the court ruling in our favor and affirming the original ruling by the district court.”
Mary E. Welsh, the assistant attorney general who argued on behalf of the university, declined to comment on the hearing.
In March, Welsh filed a document with the court, requesting that the court consider a ruling from the U.S. Court of Appeals for the 10th Circuit when deciding Hosty v. Carter.
In Axson-Flynn v. Johnson, a three-judge panel of the 10th Circuit ruled that the University of Utah did not infringe on a student’s First Amendment rights when a professor refused to allow the student to omit profanities from scripts performed in a theater class. The student objected to using profanity because it went against her religious beliefs.
Welsh argued that the Axson-Flynn ruling is relevant to the Hosty case because it allows universities to regulate certain school-sponsored speech, including, she argued, the student newspaper at Governors State.
Goehler argued in his response that the Axson-Flynn case is not relevant to Hosty because it “dealt solely with student speech, assigned by teachers, in a classroom setting,” and Hosty “involves censorship of extracurricular student speech in a student-edited college newspaper.”
Goehler said that if the court rules against he student journalists, he is not sure whether they will appeal to the U.S. Supreme Court.
“It’s one thing to say, ‘If we lose, we’re definitely going to the Supreme Court,’” Goehler said. “But I’m not sure either side will be able to say that, at least not at this point.”
A ruling in Hosty v. Carter is expected by the end of the year.
Only public colleges and universities in states under the jurisdiction of the Seventh Circuit — Illinois, Wisconsin and Indiana — would have to comply with the court’s ruling, but courts in other jurisdictions could consider the ruling when deciding similar cases.
CASE: Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).