In February, the U.S. Supreme Court announced that it would not hear an appeal in Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc), cert.denied , 2006 WL 385624 (Feb 21, 2006)(No. 05-377), a case that questioned the authority of administrators at an Illinois university to censor a student newspaper that 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 of the most common questions posed by college journalists, below.
Q: How did the case start?
A: Student journalists Margaret Hosty, Jeni Porche and Steven Barba sued Governors State University after a dean at the school, Patricia Carter, told the newspaper’s printer to hold future issues until a school official had given approval to the student newspaper’s contents. The paper, the Innovator, had published news stories and editorials critical of the administration. Carter’s directive was issued despite a university policy that said the student newspaper staff “will determine content and format of their respective publications without censorship or advance approval.”
Q: Why was this case the focus of so much attention?
A: 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 HazelwoodSchool 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.
Q: What happened in the courts?
A: There were four major court rulings as this case wound its way up to the U.S. Supreme Court. The students filed their lawsuit against the university in January 2001. The first court ruling came in November 2001 when a federal district court allowed the case to go forward against Dean Carter, who had asked to be dismissed from the lawsuit because, she argued, Hazelwood had muddied the legal waters. The district court rejected her claim that she should be immune from liability because her actions were not “clearly prohibited” by law. Carter appealed that ruling to the 7th U.S. Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana and Wisconsin. On April 10, 2003, a three-judge panel of the appeals court upheld the lower court’s decision and ruled unanimously for the students. Their decision offered strong support for college press freedom, finding that Hazelwood was not the appropriate standard for censorship of college student media and pointing to the more than three decades of law providing strong First Amendment protection to the college student press. Following this second ruling for the students, Illinois Attorney General Lisa Madigan, who represented Carter as an employee of the state university, filed a petition for a rehearing enbanc before the full panel of judges on the federal appeals court (instead of just the three who initially heard the case). On June 25, 2003, a majority of the active judges of the court granted that petition and vacated the three-judge panel’s decision. Oral arguments were heard before an 11-judge panel of the 7th U.S. Circuit Court of Appeals on Jan. 8, 2004. Seventeen months later, on June 20, 2005, the panel voted 7-to-4 in favor of Carter and the university. In its decision, the court ruled that Hazelwood was the “starting point” for analyzing college censorship cases. The students then asked the U.S. Supreme Court to hear an appeal, which, in the final ruling of the case, handed down Feb. 21, 2006, the Court declined to do.
Q: Does the Supreme Court’s refusal to hear the case mean it agrees with the 7th Circuit?
A: 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.
Q: Is the case over?
A: 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.
Q: What does the 7th Circuit’s opinion say?
A: 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.
Q: What exactly is the analysis and standard of Hazelwood?
A: 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.
Q: What is public forum analysis?
A: “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 such as a courthouse or airport. Forum analysis presumes that the government may have more authority to control speech in a non-public forum setting. Over the years, forum analysis has been expanded to evaluate speech restrictions not just on physical property but also in government-subsidized means of expression such as an employee newsletter funded and edited by a government agency. The analysis has also been used to evaluate government-controlled systems for allocating how money will be disbursed to individuals or groups engaged in expressive activities.
Public forum analysis 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.
Q: Are college student media considered designated public forums?
A: 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. In fact, a 1997 study found that only one of the 101 daily college student newspapers surveyed could be classified as strongly curriculum based, and even that newspaper proclaimed itself to be entirely student-run and produced. Students that produce a non-curriculum-based publication that receives most of its operating revenue from their efforts to sell advertising and a fraction of their support from activity fees paid by other students should not be subject to a complicated and ill-fitting public forum analysis. To do so could allow an administrator unhappy with news coverage the opportunity to establish restrictive policies regulating the content of the entire publication and simply declare the publication a non-public forum.
Q: What authority do college officials have to censor if my publication is operating as a designated public forum?
A: 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.
Q: If my publication has always been student-controlled and has never been subject to administrative censorship, why should I worry about this case?
A: 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.
Q: Under what circumstances can an open forum be closed?
A: 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. For example, the First Amendment should prohibit administrators unhappy with news coverage in a student newspaper currently operated as a public forum from enacting or amending a student publications policy that alters the publication’s forum status if their content-based motivation is clear. 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.
Q: Who is affected by Hosty?
A: Students in Illinois, Indiana and Wisconsin
Hosty is now law for all students attending a public college or university in Illinois, Indiana or Wisconsin, the states covered by the 7th U.S. Circuit Court of Appeals. As a practical matter, most college student newspapers are going to 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 will probably be limited. The danger is that Hosty gives college administrators a road map for closing the public forum that would permit greater censorship in the future.
Students in all other states
It is crucial to note that 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. For example, just ten days after the 7th Circuit handed down its decision, the California State University system distributed a memo to administrators citing Hosty and suggesting “CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers.” Student media must challenge such interpretations immediately.
Q: What impact does the case have on private college student media?
Q: Does the case affect independent/incorporated student media?
A: 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.
Q: What impact does the decision have on high school student media?
A: If there is any silver lining to Hosty, the decision reinforces the requirement that a court go through a careful, measured public forum analysis whenever any school official — including high school officials — claim that Hazelwood justifies their censorship. By reaffirming the necessity of addressing a publication’s forum status before allowing administrative censorship under Hazelwood, many high school student newspapers and other media should qualify for legal protection as designated public forums.
Q: Does the decision affect only student media?
A: 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.
Q: Does this decision impact the speech of college faculty?
A: 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.
Q: What should college student media organizations do to protect themselves?
A: 7th Circuit schools
The Hosty decision makes clear that those student publications that are operating as “designated public forums” where student editors have been given authority to determine content will have strong First Amendment protections when school officials attempt to censor them. Thus the Student Press Law Center is joining with student journalists, journalism educators and working journalists to demand that all public colleges and universities in Illinois, Indiana and Wisconsin go on record regarding their support for student press freedom.
What should a student media policy say?
We are urging student journalists in the 7th Circuit to ask their school administrator to immediately adopt a statement that explicitly recognizes campus student news organizations as “designated public forums.” Here are a couple of policy suggestions:
Version 1: [Name of student news media organization] is a designated public forum. Student editors have the authority to make all content decisions without censorship or advance approval.
If using this version, a separate statement will be needed to protect each student news organizations on campus. Don’t forget yearbooks, magazines, television and radio stations and online media.
Version 2: All student-edited campus media are recognized as designated public forums. Student editors have the authority to make all content decisions without censorship or advance approval.
A policy statement should be signed or otherwise endorsed by a school administrator or a body delegated authority to act the administration. Verbal statements will not necessarily indicate a clear intent, nor will existing policies whose language significantly differs from what is suggested above.
Schools outside the 7th Circuit
If you do not already have a policy on the books clearly stating that student editors — not school officials (including the adviser) — have the authority to make all decisions regarding content, now is a good time to push school officials to sign off on one.
What should a student media policy say?
Though the policy language for schools outside the 7th Circuit can be a bit more flexible, the policy should include a clear statement that is 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.
Q: Is there anything a student newspaper staff can do if university officials refuse to sign a statement supporting student press freedom?
A: 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. The Student Press Law Center is publishing the names of public colleges in the 7th Circuit that have recognized their student media as designated public forums as well as those that have not. (See: www.splc.org/publicforumcolleges) The SPLC will periodically send the list of schools that have refused to issue such a statement to high school media organizations and will actively discourage high school students from attending a college or university that will not commit to supporting press freedom. Campus media organizations in California are supporting legislation that specifically limits administrative censorship. A state 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. 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.
Q: What next?
A: 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.
 Bodle, The Instructional Independence of Daily Student Newspapers, Journalism and Mass Communication Educator (Winter 1997), at 16.