Appeals court extends Hazelwood to colleges

College newspaper advisers, journalists and experts say they are approaching the Hosty v. Carter court case with a mixture of apprehension, caution and a resolve to protect the free press rights of college journalists, after a federal appeals court ruling against student journalists that could allow college officials to censor school-sponsored publications.

The 7-4 decision, handed down by an en banc panel of the U.S. Court of Appeals for the Seventh Circuit on June 20, reversed a lower court ruling that three Governors State University students’ First Amendment rights were violated when an administrator at the college prevented the printing of the student newspaper the Innovator and demanded prior review of its content.

According to the appeals court ruling, defendant and former Governors State University Dean of Student Affairs and Services Patricia Carter was entitled to qualified immunity, which protects her from being sued, because the court said she could not have known that stopping the printing of the paper was illegal at the time.

But the court came to other conclusions that frighten college journalists and advisers even more: that the precedent set by the Supreme Court’s 1988 Hazelwood v. Kuhlmeier decision, which dramatically limited high school students’ free expression rights, is applicable at the college and university level as well.

Some fear the decision will allow college administrators to censor student newspapers for content they dislike, while others worry newspapers will have to prove they are a public forum to avoid censorship.

What many agree on, however, is that they hope the case will be overturned, as the plaintiffs in the case ‘ former Innovator editors Margaret Hosty, Jeni Porche and staff member Steven Barba ‘ say they will take their case of college censorship to the U.S. Supreme Court.

The case

The controversy began in the fall of 2000 when Carter told the paper’s printer not to print the Innovator until Carter had seen the content and given them permission to go ahead with the job, as the school paid for the printer.

The printer told the student editors of the order, who contend Carter censored them because they often wrote stories that were critical of the university’s administration. The paper has not printed since the incident in 2000, although another school-sponsored student newspaper has since been established.

The student journalists sued Carter and the school in 2000, alleging their First Amendment rights were violated because of the censorship.

The press rights of the students was upheld by a three-judge panel of the court in April 2003, which ruled that college newspapers are protected by the First Amendment and that public colleges and universities cannot conduct prior review of student-run publications.

But in June 2003 the court agreed to rehear the case. The entire court, which has jurisdiction over Indiana, Illinois and Wisconsin, heard oral arguments in Hosty v. Carter on Jan. 8, 2004.

The court took more than a year to issue the ruling, which did not specify what level of First Amendment rights college journalists are allowed.

It did, however, rule that the Hazelwood v. Kuhlmeier decision could also be applied at colleges and universities.

The court also said that using the Hazelwood standard, a court facing an act of student newspaper censorship by a public college or university official must first determine if the publication had been opened up as a ‘designated public forum’ where students have been given the authority to make the content decisions.

The court also held that even if the Innovator had been established as a public forum, Carter was entitled to qualified immunity because she could not have reasonably known that Hazelwood did not apply to college and university student publications.

Illinois Solicitor General Gary Feinerman said officials were pleased that the court found Carter had qualified immunity, and that the court addressed the issue of whether college student publications can be censored.

‘The court offered a very nuanced analysis opinion, holding that although Hazelwood applies to college newspapers, the extent to which the administration may have input into the content of newspaper depends upon the individual circumstances at each school,’ Feinerman said.

‘It also clarifies the law with respect to the First Amendment rights of college journalists, and the degree of autonomy enjoyed by college newspapers will depend upon how those newspapers are set up and what internal university rules govern their operations.’

Dick Goehler, the attorney who argued on the behalf of the students, said it is the fact that administrators have discretion over whether a paper is a public forum that troubles him.

‘A university official might simply declare, [‘The paper is] not a designated public forum,’ and that’s a problem,’ Goehler said.

Goehler also said he had hoped that if the plaintiffs lost, the decision would not apply the Hazelwood standard.

‘It’s particularly disappointing to lose in a way that’s going to create more problems for us down the road,’ Goehler said.

Goehler said some of those problems are going to be in the process of proving a student newspaper is a ‘designated public forum.’

Goehler said if forced to prove they are a public forum, college newspapers will have to look at several factors, including the relationship the newspaper has had with the school’s administration in the past and what kind of policies are currently in place to guarantee the paper’s editorial independence.

And it is this difficulty in determining whether a newspaper is a ‘designated public forum,’ combined with the court’s ruling that Hazelwood can apply to colleges that has college media experts, advisers and journalists worried.

Confusion and concern

Lance Speere, president-elect of the national organization College Media Advisers, said the organization hopes the case will be taken to the U.S. Supreme Court and have its ‘day in court again.’

‘The ruling doesn’t make much sense and flies in the face of decades of legal precedent,’ said Speere, who is also the general manager of the student newspaper the Daily Egyptian at Southern Illinois University at Carbondale. ‘Until then we have to deal with what we’ve been dealt.’

He said the advisers in Illinois and other states that he has heard from have been more confused about what the ruling could do than concerned about its effects.

‘There was confusion over what the decision actually said, especially the parts about the application of Hazelwood and whether a newspaper is a public forum and whether or not their publication is subsidized,’ Speere said.

Irwin Gratz, president of the Society of Professional Journalists, said he worries what the impact of the ruling will be on college journalists preparing for professional careers.

‘I’ve always emphasized to college journalists that they have full First Amendment rights and [with this ruling] we’re going to have students learning journalism for eight years under conditions that bear no resemblance to real conditions,’ Gratz said.

David Hudson, a research attorney at the First Amendment Center in Nashville, Tenn., who wrote about the decision, said Hazelwood should not be applied to college newspapers because it was designed for journalists who were much younger than the plaintiffs in Hosty v. Carter.

Hazelwood was designed specifically for high school students and should have little application to adults,’ Hudson said. ‘This decision just runs counter to the whole concept of colleges and universities as centers of the greatest expression of ideas.’

Although college media experts are worried, many advisers and students at newspapers in the three states say they do not feel the decision will affect them.

Courtney Rakers, editor in chief of the Alestle newspaper at Southern Illinois University at Edwardsville, said she and the staff decided the ruling does not apply to them because the university has given them freedom from censorship in the past.

Linda Haworth Anderson, director of student life and adviser to the student newspaper the Phoenix at Indiana University Northwest, said she was disappointed with the ruling, but said the newspaper does not plan on making any changes to its editorial guidelines yet. She also said she does not feel the newspaper will be affected by the ruling because the paper has traditionally been free from censorship from the university’s administration.

Many student journalists are not aware of the ruling because many papers do not publish during the summer.

Doug Kirchberg, student publications coordinator and adviser to student newspaper the Clarion at Madison Area Technical College in Wisconsin, said he has discussed the ruling with the small summer staff and also does not believe the college will be affected by the ruling, although they are considering inserting wording into their editorial policy designating them as a public forum.

‘The bad thing about this ruling is that it gives people who might want to interfere a little more justification and a little more reason for doing so,’ Kirchberg said.

Joe Gisondi, adviser to the Daily Eastern News at Eastern Illinois University, said he was disappointed that Carter was given qualified immunity.

‘I was always taught that ignorance is no excuse for breaking the law,’ Gisondi said. ‘And in this case they’re saying she broke the law because she didn’t understand it and that’s OK.’

Gisondi said he has discussed the case with the newspaper’s staff, and does not fear the ruling will allow for the censorship of the newspaper.

‘We have excellent administrators here who truly understand the role of a student newspaper in the educational sense,’ Gisondi said. ‘The students make some mistakes and work to correct them.’

He added that he does not think the ruling is the worst thing that could have happened to college journalists.

‘I don’t think the sky is falling down,’ Gisondi said. ‘We just need to educate administrators on the First Amendment and make sure they understand it.’

Where next

On the legal front, Hosty has said that she, Porche and Barba plan on asking the U.S. Supreme Court to hear their case and have found a lawyer to represent them: First Amendment attorney Lee Levine of Levine Sullivan Koch & Schulz, L.L.P., who also represents The Associated Press and other media clients. Levine has argued several news media cases before the U.S. Supreme Court.

In a statement Hosty said the case needs to be addressed by the U.S. Supreme Court because it stands against the principles of the U.S. Constitution.

‘Stripping student journalists of any real possibility of getting to press might seem to be a relatively insignificant issue, [but] it is not without its more serious repercussions,’ Hosty said. ‘It must not be forgotten or de-emphasized that, in addition to being students, we are citizens of the United States of America, and, as such, to us certain liberties are essentially guaranteed.’

While the former student journalists prepare for more legal maneuvering, Speer said College Media Advisers is going to work on a plan that will educate both college administrators and college journalists on students’ First Amendment rights.

‘We’re going to try to let everyone know what case law exists,’ Speer said.

The Student Press Law Center is planning a major campaign to help college journalists to respond to the decision. (See ‘Hosty,’ page 27.)

Other educational programs CMA is going to work on include working with administrative organizations to foster better relationships between administrators and college journalists.

Gratz said SPJ is looking at several options for countering the decision, including helping colleges develop statements establishing themselves as public forums.

College newspapers and their advisers are also being advised to consider inserting wording into their policies that establish them as ‘designated public forums.’

Organizations in the states affected by the ruling are taking steps to educate people about the ruling’s potential impact, such as writing to local newspapers to give coverage to the ruling, said Merv Hendricks, director of student publications at Indiana State University.

‘I hope the letter gets some attention,’ Hendricks said. ‘We certainly have to make the case to the professional press about how fundamentally damaging to freedom this ruling is.’

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