Hosty v. Carter: An Analysis

Advocates for college press freedom are on edge. Is the sky falling or will it be business as usual when students return to campus this fall?

The June ruling by the U.S. Court of Appeals for the Seventh Circuit in Hosty v. Carter has left many First Amendment defenders on a state of alert. Others believe that the decision will have little if any impact on the day-to-day operations of their student media. But almost everyone agrees on one thing: if the Seventh Circuit’s decision to extend the Supreme Court’s 1988 Hazelwood School District v. Kuhlmeier ruling to public colleges and universities prompts even a small fraction of the censorship faced by high school journalists, the college press could be in for the fight of its life.

Now, more than ever, college journalists need to know their rights and be prepared to defend them. And to do that, they need to understand what the Hosty decision says and what college student media can and should be doing to avoid the censorship the ruling might permit.

The background

The Hosty case began as a battle over whether Dean Patricia Carter at Governors State University had the right to require prior approval of the content of the Innovator student newspaper after the editors began publishing stories critical of the administration. When student journalists refused to submit to such a demand, the paper stopped publishing. Eventually, students Margaret Hosty, Jeni Porche and Steven Barba went to court. The university requested summary judgment on the students claims, and both the federal district court and a three-judge panel of the court of appeals refused to dismiss the case against Dean Carter. On behalf of Carter, the Illinois Attorney General asked the entire Seventh Circuit to reconsider the case, and an 11-judge (en banc) panel did just that in January 2004. On June 20, 2005, by a vote of seven to four, the court reversed the lower court’s decision and granted the motion for summary judgment, thus dismissing the case against Dean Carter.[1] Ultimately, the court said because the student’ only claim for relief was money damages, Dean Carter was entitled to qualified immunity, given the uncertainty of the legal application of Hazelwood.

What the decision says

The biggest news in the majority opinion in Hosty was the court’s application of the Supreme Court’s Hazelwood decision to public colleges and universities. In Hazelwood, the Supreme Court upheld the ability of public high school officials to censor many (but not all) school-sponsored student publications if they can show their censorship is ‘reasonably related to legitimate pedagogical concerns.’[2] The Hazelwood decision gave great deference to school officials in determining what was educationally appropriate, opening the door to much more extensive censorship of student media than the courts had previously allowed.

In a footnote, the Supreme Court said, ‘We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.’[3] Most read the Court’s statement at face value ‘ the justices would not offer an opinion on an issue that was not directly before them. But the Hosty majority saw things differently. Despite the fact that several federal appeals courts had explicitly refused to apply Hazelwood to college media, the Seventh Circuit said that the ruling did extend beyond elementary and secondary schools to institutions of higher education.

Hazelwood‘s framework applies to subsidized student newspapers at colleges,’ the court ruled.[4]

What that means, the court said, is that before college student journalists can determine the level of First Amendment protection they are entitled to, they must first determine if the school-subsidized publication they work for has been opened as a ‘public forum.’[5]

Public forum status gains importance

Public forum analysis, a method the courts created for determining when censorship is permitted on government-owned property, has become increasingly complicated in recent years. In its origins, the concepts were fairly simply: speech in a traditional public forum like a public park was entitled to the strongest First Amendment protection. Speech in a closed or non-public forum like a military base was not. Between the two was government property that did not fit the definition of a traditional public forum but had nonetheless been opened for free expression such as a government-owned auditorium that was used for rallies by political candidates. These were referred to as ‘limited’ or ‘designated’ public forums and speakers there were entitled to protections similar to those in a traditional public forum.

Public forum analysis and student publications have seldom seemed a good fit given that at most colleges, the student newspaper was created at the initiative of students, not administrators, and only incidentally receives some student activity fee support from the institution in exchange for free distribution on campus. But before the Hazelwood decision in 1988 (and in college press cases decided since), courts that applied forum analysis to student publications typically took for granted that a student-edited newspaper was, by its very nature, a designated public forum where student editors had been given the authority to make the content decisions.

The Hosty majority rejected any presumption that a student newspaper had been opened for free expression by students and thus was a public forum. Although the Seventh Circuit held (based on the procedural standing of the case) that it would presume the Innovator at Governors State was a designated public forum, the court made clear that forum status of any student publication would be determined based on the particulars of its situation. The fact that a publication was not tied to the school’s curriculum would not assure its forum status, the court said; even extracurricular publications could be a non-public forum.[6]

A designated public forum publication is one where student editors, not school officials, have been given the authority to determine the content. Although the Seventh Circuit did not describe in detail how one determines the forum status of a publication (courts have traditionally looked to school ‘policy and practice’ for that), it did suggest that what a school ‘declare[s]’ is important.[7] In Hosty, the university’s own policy said that the publication ‘will determine content and format … without censorship or advance approval.’[8] Despite that, the court said the school could point to ‘contradictory’ policy statements (that the newspaper’s media board is ‘responsible’ to a school official) and practices (that the adviser read and possibly edited some stories) that could establish the paper as a non-public forum.[9]

For the college student media, these words are ominous. Hosty gives a road map to administrators who want to censor their student publications, even if those publications have been operating freely for years. Hosty suggests that if officials adopt ambiguous policy language suggesting that the school retains the right to control content (even if that language contradicts the publication’s own governing documents), they may be able to prove the publication is not a designated public forum and thus subject censorship.

Thus school policy statements describing students’ right to control content are more important than ever.

For those student publications that are non-public forums, the Hosty court makes clear extensive censorship will be allowed. Hazelwood‘s reasonable ‘pedagogical justification’ standard gives school officials the ability to censor a variety of material that has long been considered protected speech on college campuses. Although the fact that college students are adults will not allow as much censorship as would be permitted at high schools, the Seventh Circuit said universities would be able to rely on such vague and easily abused justifications for censorship as concerns about ‘high standards’ and ‘disassociating the school from ‘any position other than neutrality on maters of political controversy.”[10] Anyone who suggests the Hosty decision is not so bad need only look at how Hazelwood has been used to justify countless acts of censorship by high school officials to appreciate how grave the risk of the Seventh Circuit’s ruling is.

But in contrast to these disturbing aspects of the ruling, Hosty does have some affirming language. For those college and university student publications that can clearly demonstrate they are designated public forums, the Seventh Circuit pulls no punches; in that context ‘no censorship [is] allowed.’[11] When a school has created such a forum, ‘the faculty cannot censor speech within it.’[12] But suggesting censors might still have an option, the court said public forum status means the school has ‘disable[d] itself from engaging in viewpoint or content discrimination while the terms on which the forum operates remain unaltered.’[13] Again, the implication is that it may be possible for a school to undo public forum status by simply changing the rules under which the publication operates mid-stream.

Limited Legal Impact

Perhaps the most important thing for college journalists and school administrators to remember about the Seventh Circuit’s Hosty decision is the fact that the ruling represents the views of only one court and contradicts the views of several others. Unless you are in Illinois, Indiana or Wisconsin (the states over which the Seventh Circuit Court has jurisdiction), the case has no legal impact on you. In most other parts of the country, college press freedom rulings from the last 35 years provide a strong legal defense against school officials who may attempt to extend Hosty beyond the Seventh Circuit’s borders.

Equally important, the Hosty case is not over. The student plaintiffs in the case have indicated they plan to ask the U.S. Supreme Court to consider their case, and supporters of their effort are growing in numbers. Until the case has concluded, schools that rely on Hosty to engage in censorship of their campus student media do so at some risk.

Protecting your rights after Hosty

The Student Press Law Center is committed to helping college journalists respond to the Seventh Circuit’s decision in Hosty v. Carter. But now, more than ever, college student media organizations have to take active steps to ensure their rights will be protected. As many of the victims of censorship over the years can attest, any belief that what happened at Governors State could never happen on your campus is probably misplaced. It only takes a new administrator with an agenda or a major controversy over news coverage for a working relationship to quickly turn sour. College publications, especially those in the Seventh Circuit, need to have some ‘insurance’ to protect from censorship.

Thus the SPLC recommends that student media organizations on every campus in the country (especially those in the Seventh Circuit states of Illinois, Indiana and Wisconsin) use the Seventh Circuit decision in Hosty as an impetus to demand that their college administration go on the record regarding their support for student press freedom. Ask the school to immediately adopt a statement that reads something like the following:

[Name of student news media organization] is a ‘designated public forum.’ Student editors have authority to make all content decisions without censorship or advance approval.

Because the Seventh Circuit in Hosty explicitly recognized that those publications that are ‘designated public forums’ are places where ‘no censorship [is] allowed,’ this language could be crucial.

The Hosty ruling said some confusing things about what goes into determining whether a publication is a designated public forum, but one thing the courts have made clear about forum status: it will be determined by a reflection of intent on the part of the the school. Traditionally, courts have looked at two things to determine forum status: policy (of the school, not just of the publication in question) and practice (how the publication has operated). Policy will almost always supercede practice because it is a clearer reflection of the intent of the school.

Thus getting an official policy statement from your college or university recognizing your publication as a designated public forum is of vital importance today.

Some important things to remember:

1) You will want a school official to sign off on the policy statement. The higher up that official is, the more protection the statement provides, but a policy signed by any school official (including an adviser, as long as no higher authority has contradicted it), could be legally significant. There is no harm in getting a statement signed by people at multiple levels.

2) Publishing a designated public forum statement can help establish a ‘practice’ of operating as a public forum. It’s a good idea to include one in your masthead or staff handbook. But such an action will not provide you the protection that something signed by a school official will.

3) Do not presume that language in existing policies that significantly differs from what is suggested above will protect you. If you do not have the phrase ‘designated public forum’ and a reference to no prior review or advance approval, a court could say that there is not sufficient evidence of the school’s intent to give full First Amendment protection. The Seventh Circuit’s decision in Hosty makes this very clear: the language must be uncontestable.

4) Do not presume that verbal statements of support from school officials provide you any protection. Unless a statement is in writing, with a signature of a school official and a date, it will mean very little in court if a censorship case were to arise.

5) Get support from alumni, faculty, students ‘ anyone who will write, call or e-mail the school officials in question demanding that they make the school’s intent clear. This is a campaign for the future of your publication; there are others who will care about your cause.

6) If, after a reasonable period of time, your school officials refuse to sign such a statement or do not respond to your request, publicize that fact. Let the SPLC know. This issue goes to the very heart of your mission as an independent student publication; your readers have the right and the need to know where you stand.

Beginning this fall, the SPLC will publish on our Web site the name of every public college and university in Illinois, Indiana and Wisconsin where an upper-level administrator has endorsed a statement designating campus student media organizations as designated public forums in writing.

Also this fall, we will begin publishing a list of those schools that have refused to issue such a statement or ignored a request to do so. We will periodically send that list to high school media organizations around the country and actively discourage high school students from attending a college or university that will not commit to supporting press freedom.

The Hosty decision may prove to be a turning point for college student media. But college journalists and their advisers can help set the direction for the future by responding in force.


1 Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005).2 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988).3 Id. at 273-74, n. 7.4 Hosty, 412 F.3d 731, 735.5 Id.6 Id. at 736. In fact, the court went so far as to suggest that a curricular publication was inherently a non-public forum, raising special concerns for those student publications that are tied to classes but that have operated as editorially independent. Id.7 Id. at 737.8 Id.9 Id. at 737-38.10 Id. at 734-35.11 Id. at 735.12 Id. at 737.13 Id. (emphasis added).

To see the list of public colleges and universities in Illinois, Indiana and Wisconsin that have designated their student media as public forums where student editors make the content decisions ? and those that have not ? go to the SPLC Web site: