In February, the U.S. Supreme Court announced that it would not hear an appeal in Hosty v. Carter, a case that questioned the authority of administrators at an Illinois university to censor a student newspaper that had published articles critical of the school. The Court’s refusal means that an earlier decision by the 7th U.S. Circuit Court of Appeals stands as law for some student journalists. The case changes the free press landscape for America’s college student media. But just how much? And what should be done? The SPLC answers some questions posed by college journalists.
Why was this case the focus of so much attention?
The case generated national attention in part because of the controversial argument made by the state in defending the school’s right to censor the student newspaper. The Illinois attorney general attempted to justify the school official’s actions based on the Supreme Court’s 1988 Hazelwood School District v. Kuhlmeier decision, which upheld the authority of a principal to censor the student newspaper at a Missouri high school. In a footnote, the Hazelwood majority said, “We need not now decide whether the same degree of deference [to school censorship] is appropriate with respect to school-sponsored expressive activities at the college and university level.” Up until the 7th Circuit’s decision in Hosty, courts had consistently rejected the application of Hazelwood to college student media.
Does the Supreme Court’s refusal to hear the case mean it agrees with the 7th Circuit?
No. A refusal by the Court to hear a case constitutes neither an endorsement nor rejection of a lower court decision and creates no national precedent. The Court’s inaction simply means that the important questions raised by Hosty regarding the application of Hazelwood to colleges remain to be answered by the Supreme Court.
Is the case over?
Yes. All appeals have been exhausted. The en banc decision of the 7th Circuit is the law in Illinois, Indiana and Wisconsin, at least until another case comes along.
What does the 7th Circuit’s opinion say?
The court said that because of uncertainty over the application of the Hazelwood decision to colleges, Dean Carter was entitled to “qualified immunity” and the students’ claims for money damages should be dismissed. But the court’s decision did not end there. Even though the court said it would presume that the Innovator at Governors State was a “designated public forum,” the 7th Circuit majority said that the Hazelwood ruling determines the First Amendment protections afforded student editors at public colleges and universities. The court extended both the analysis and the standard of Hazelwood to the college environment.
What exactly is the analysis and standard of Hazelwood?
As one commentator has described it, Hazelwood creates a potential “censorship tsunami.” The Hazelwood standard allows school officials to censor otherwise lawful student speech where they can show their actions are “reasonably related to legitimate pedagogical [educational] concerns.” For high school journalists, this incredibly vague standard, which gives great deference to the decisions of school officials, has led to a significant curtailment of First Amendment protection. The Hazelwood standard, however, applies only to school-sponsored student publications deemed “non-public” or “closed forums.” Publications categorized as public forums (what the 7th Circuit called “designated public forums”) are not affected and retain strong First Amendment protection from censorship. Therefore, before a court can rule whether a specific act of censorship is permissible under Hazelwood, it must first engage in what is known as “public forum analysis” to determine the category into which the student expression falls.
What is public forum analysis?
“Public forum analysis” is a legal theory courts have developed to evaluate the legality of government censorship of expression on government-owned or controlled property. It generally recognizes three kinds of forums. A traditional public forum is a place that by an established tradition has been devoted to free expression, such as a town square. A “limited” or “designated” public forum is one created by the government for use by the general public or a certain category of speakers (such as student editors of a student publication) or to the discussion of certain subjects. High school student media organizations found to be public forums have fallen in this category. Speech in a designated public forum is afforded the same extensive protection given to speakers in a traditional public forum. Any regulation of speech must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels of communication. Even a legitimate government interest cannot justify a restriction if the restriction accomplishes that goal at an inordinate cost to speech. The final category is the “non-public” or “closed” forum. Closed forums have not been established to function as places for free expression. Many closed forums are fairly easily identified because of the traditional and well-known restrictions placed on speech in them; jails and military bases are obvious examples. In a non-public forum, government officials can limit expression as long as their restrictions are “reasonable” and not simply an effort to silence a particular viewpoint.
Public forum status is determined by examining two things: policy and practice. The key question is whether the government agency in question (a school, for example) intended to allow speakers to make their own content decisions. Official statements of the government’s intent are probably most important, but if such policies do not exist or are unclear, the practice or tradition of how the venue operates will be significant.
Are college student media considered designated public forums?
That is probably the biggest — and most troubling — question raised by the Hosty decision. In Hazelwood, the Supreme Court said that forum analysis was appropriate in analyzing whether a high school principal’s censorship of a school-sponsored newspaper was lawful. Hosty was the first court to conclude that forum analysis was necessary for determining the level of First Amendment protection afforded a public college student newspaper. Prior to Hosty, most courts seemed to suggest that student-edited publications were by their very nature public forums where student editors had the authority to make their own content decisions. Indeed, to date, no court (including the 7th Circuit in Hosty) has ever found a student-edited, college newspaper to be a non-public or closed forum. The danger of Hosty, however, is that it opens the door to that possibility. Moreover, it is a door over which school officials — by slyly enacting new policies and practices that alter a student publication’s forum status — may have significant control.
The SPLC believes that public forum analysis simply does not fit in the context of student-edited publications at public colleges and universities. Many public college or university student newspapers were founded by students and are completely or largely financially independent of their school; almost all exist apart from the school’s curriculum and are editorially independent.
Who is affected by Hosty?
For students attending a public college or university in Illinois, Indiana and Wisconsin (states covered by the 7th U.S. Circuit Court of Appeals), Hosty is now the law. As a practical matter, most college student newspapers will still be considered designated public forums and entitled to the strongest First Amendment protection because that is the way they have been operating for decades. Consequently, the decision’s short-term impact may be limited. The concern is that Hosty gives college administrators a road map for closing the public forum that would permit greater censorship in the future.
However, the Hosty decision has no legal impact outside the boundaries of the 7th Circuit. For student media outside Illinois, Indiana, Wisconsin, the law prohibiting virtually all forms of administrative censorship remains unchanged. In fact, the Hosty decision is in direct conflict with court rulings dating back nearly four decades (including a ruling by the 6th Circuit in 2001). Unfortunately, it is likely that some misguided or opportunistic college officials outside the 7th Circuit will point to Hosty to justify more administrative control over student media. Student media must challenge such interpretations immediately.
What authority do college officials have to censor if my publication is operating as a designated public forum?
According to the 7th Circuit, none. The Hosty decision explicitly says that “no censorship [is] allowed” in a public forum publication. Thus the significance of public forum status in determining a student journalists rights can be dramatic.
What impact does the case have on private college student media?
None directly. The case addressed the First Amendment protections provided to students attending public colleges and universities. Private school students have never been able to claim First Amendment protection from censorship by school administrators. Still, private schools do not exist in a vacuum and the court’s ruling could chill the free speech climate for all college student speech.
If my publication has always been student-controlled and has never been subject to administrative censorship, why should I worry about this case?
Because even though your publication might be considered a public forum today does not mean it will be in the future. Situations (and college administrators) change. Hosty creates a door to censorship that college officials can — if they take certain steps -— manufacture the keys to unlock.
Under what circumstances can an open forum be closed?
Unfortunately, that is a question that remains largely unanswered. A couple of things can be said, however. On the plus side for student media, the law almost certainly prohibits school officials from closing down a forum where it is clear they are doing so because they are unhappy with the publication’s otherwise protected content.
On the down side, however, courts have placed much weight on the “intent” of government officials in creating a public forum. Specifically, courts have said that a forum is not irrevocably established simply because the government has ignored it or failed to restrict it in the past. That would suggest that a publication previously operated as a public forum might be prospectively closed provided school officials clearly expressed their intent to operate it as a closed forum (probably in the form of a written policy) and did so for “lawful,” non-content-based reasons.
Does the case affect independent/incorporated student media?
If a publication is truly independent of the school and receives no school sponsorship (no use of school facilities, no financial support, no faculty adviser ) the answer is probably no. But only a handful of college publications actually meet the test of true independence.
Does the decision affect only student media?
No. The Supreme Court’s decision in Hazelwood — now extended to some colleges and universities by Hosty — explicitly applies to any school-sponsored, non-forum student activity that involves student expression. The Hazelwood Court specifically mentioned that theatrical productions and other student activities such as art shows could be affected. The decision could also potentially be used to restrict the type of speakers brought to campus or films shown by activity fee-funded student groups.
Does this decision impact the speech of college faculty?
Potentially. The Hazelwood decision has been cited by a number of lower courts to significantly restrict and punish the classroom speech of high school teachers.
What should college student media organizations do to protect themselves?
For those in Illinois, Indiana and Wisconsin (the states of the 7th Circuit), establishing themselves as designated public forums is crucial. The Student Press Law Center is joining with others to demand that all public colleges and universities in Illinois, Indiana and Wisconsin go on record regarding their support for student press freedom. See the box “Public forum newspapers” on page 24 for suggested language. A policy statement should be signed or otherwise endorsed by a school administrator or a body delegated authority by the administration. Verbal statements will not necessarily indicate a clear intent, nor will existing policies whose language significantly differs from what is suggested above.
For schools outside the 7th Circuit, if you do not already have a policy on the books clearly stating that student editors have the authority to make all content decisions, now is the time to push school officials to sign off on one. The policy language for schools outside the 7th Circuit can be a bit more flexible, but should include something like the following:
[Name of school] recognizes and affirms the editorial independence and press freedom of all student-edited campus media. Student editors have the authority to make all content decisions free from censorship and advance approval and consequently they bear the responsibility for the decisions that they make.
Is there anything a student newspaper staff can do if university officials refuse to sign a statement supporting student press freedom?
The first question that should be very publicly asked of such school officials is, “Why?” Do they support a free student press or do they not? A refusal to take a stand can only mean they want to protect their right to censor in the future. Furthermore, a growing and consistent body of law indicates that where school officials have no control over what student editors publish, the college will not be liable for the publication’s content.
A school’s position on student press freedom is news and you should make certain that your readers, potential students, alumni and others are made aware of it. Consider putting out a press release to local media, other campus news organizations and state and national press groups. (See: www.splc.org/publicforumcolleges for the SPLC efforts to publicize schools that are doing the right thing and those that are not.) Campus media organizations in California are supporting legislation that specifically limits administrative censorship. A stat legislator — at the behest of the California Newspaper Publishers Association — has introduced a bill that would insulate college student journalists in that state from the effects of Hosty (See brief on page 33). Finally, some college student media organizations may want to examine establishing complete financial and legal independence from their schools. Unfortunately, such a separation is not a realistic option for many college student publications.
What next?
These could be trying times for America’s college student media, particularly those publications now subject to the 7th Circuit’s decision in Hosty. However, student journalists outside the 7th Circuit retain the same, strong protection from censorship that courts have recognized for decades. The SPLC is committed to assisting students pursue college censorship cases more vigorously now than ever before. Student journalists must not back down or change their commitment to good journalism in fear of administrative censorship. n
Case: Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc), cert. denied, 126 S.Ct. 1330, 74 USLW 3471 (U.S. Feb 21, 2006) (NO. 05-377).