When the Seventh U.S. Circuit Court of Appeals handed down its decision in Hosty v. Carter two years ago, it was heralded as the greatest blow against student press rights in almost two decades.
After Hosty, college student journalists in Indiana, Illinois and Wisconsin for the first time could be subjected to the same administrative oversight as their high school counterparts, according to the court’s ruling.
Advisers and student journalists across the country breathed a sigh of relief when the U.S. Supreme Court declined to review the Seventh Circuit’s ruling, which, if upheld, would have opened the ruling to the entire country.
But in the last several months, a silver lining to the Hosty ruling has appeared, as lawmakers have begun proposing safeguards for student press rights. The relief, however, has originated not in the courtroom, where most student expression protections are established, but rather in state legislatures.
Three legislatures, including one in the Seventh Circuit, have considered bills this protect the collegiate press from prior review and restraint, and California has had such a law on the books since August 2006. In each state, legislators said their bills were a response to the 2005 Hosty decision.
But the efforts have largely been separate from one another, and the bills have taken different routes through their respective state legislatures. A noticable common thread among the bills that garner the most support are those that frame the issue as matter of civic education, rather than simply as one of student press rights.
As one First Amendment advocate put it, the successful bills are those that are portrayed as “pro-citizenship,” rather than “anti-Hosty.”
The Hosty ruling
Hosty v. Carter, which has been the impetus for the recent rash of legislation, originated with a dispute between three student journalists at Illinois’ Governors State University and a dean who demanded prior approval of the student publication, The Innovator.
A lawsuit was filed and the Seventh U.S. Circuit Court of Appeals ultimately ruled for the administration, in doing so applying the 1988 Supreme Court ruling in Hazelwood School District v. Kuhlmeier that previously had only been applied to high school publications.
The Hazelwood decision declared that unless a student publication is designated a public forum for student expression, it could be censored when school officials demonstrated a reasonable educational justification and their censorship was viewpoint neutral.
In their response to Hosty, some lawmakers have gone beyond merely counteracting the effects of the ruling. Legislators in Oregon have introduced a bill that also would negate the Hazelwood ruling in high schools.
The reaction has actually gone a step farther to protect the student press and restore some of the rights to high school journalists that have long since been stripped away. If this trend catches on in other states, the decision in Hosty v. Carter could, in its own way, be a boon for student journalists at high schools and colleges.
California is the first – and thus far only – state to pass a bill in response to the Hosty ruling. The bill, sponsored by California Sen. Leland Yee (D-San Francisco), explicitly prohibits prior restraint and other forms of censorship of the college press.
Yee said in a recent interview that he focuses on First Amendment issues, and when he learned of the Hosty decision he was compelled to act.
The bill was intended to ensure the preservation of First Amendment rights for the next generation of journalists, Yee said.
“Young people in school, learning that it is OK to exercise prior restraint, sets a dangerous precedent,” he said.
But the law is a somewhat symbolic response to the Hosty ruling because decisions in the Seventh Circuit do not apply to California. Rather, the Hosty decision only applies in the Illinois, Indiana and Wisconsin, although just one of these states has seen progress in the legislature to combat the ruling.
In Illinois, legislators are considering a bill that would effectively nullify the 2005 court ruling.
The various legislatures do not have the authority to overturn a federal court ruling, but through deft political maneuvering, they can negate its impact.
Because Hosty declared that only publications that are not classified open forums for student expression can face censorship, the Illinois bill simply declares every publicly funded college newspaper such a forum.
So far the bill has steamrolled through the Illinois Senate, receiving unanimous support both in committee and in a floor vote in March. It is now on its way to the Illinois House of Representatives, where it likely will receive a similarly welcome reception, representatives predict.
“I don’t think censorship has that many supporters from the General Assembly,” said Illinois Rep. Kevin McCarthy (D-Orland Park), who is chairman of the committee that will review the bill in May.
That sentiment speaks to the underlying reason why the answer to fighting Hosty might lie in legislative, rather than judicial, action.
Lawmakers, as elected officials, are more accessible to citizens and the concerns they bear. That relationship with constituents is evident in the origin of the bills in Illinois and Washington, where both got their start with the lobbying efforts of First Amendment advocates.
A student in Washington, after failing to persuade administrators at his school to change their policies, lobbied Washington State Rep. Dave Upthegrove (D-Des Moines) to intervene to protect student press rights. In Illinois, the American Civil Liberties Union was the catalyst behind the legislation.
The Illinois chapter got involved last year after the U.S. Supreme Court declined to hear Hosty v. Carter. That decision ruled out the possibility that Hosty would be overturned in the courts, so the ACLU worked with Illinois Sen. Susan Garrett (D-Lake Forest) to introduce the bill.
If the bill continues through the Illinois legislature without opposition, it could be signed into law as early as this summer.
It is not yet clear whether the legislative success so far in Illinois will be replicated in other states within the Seventh Circuit.
Because the various chapters of the ACLU operate in a network of independent state branches, it is not always clear what activity will translate from one state to another, said Ed Wyohnka, director of communications and public policy for the ACLU of Illinois.
In the past, such communal efforts often are organized casually – at conference meetings or through online communiqués – he said.
“There’s some activity that happens in one state or another, then it gets picked up,” Wyohnka said. “It’s a pretty informal process the way in which that works.”
So while he said he would not be surprised if Illinois College Campus Press Act was replicated in other states, he said it is difficult to tell whether it will be picked up groups Wisconsin and Indiana.
Tim Withers, a lobbyist with the ACLU of Indiana, said that so far there has been no effort to introduce a similar bill in that state, and he expressed doubt as to whether one would succeed in the current legislative atmosphere.
Republicans hold two-thirds of the seats in the Indiana Senate, and Democrats control the state House of Representatives by a slim majority.
“Given the split, it would ultimately boil down to a partisan issue,” Withers said, adding that Republicans have largely been opposed to legislation establishing public forums. “That wouldn’t gain much traction.”
Wisconsin’s legislature is not contemplating a bill either, said Bill Ahmuty, executive director of the ACLU in that state. Also, the ACLU in Wisconsin does not have a dedicated lobbyist in the state house like the Illinois branch, and Ahmuty said that inconsistency could hinder the translation of legislative success.
The starkly different political atmospheres in the Seventh Circuit – where collegiate free expression bill has been unopposed in Illinois while eliciting doubts in Wisconsin and Indiana – underscores the precarious nature of these efforts.
The conditions in each state differ greatly, and political tactics that succeed in one state might fail in another.
It is in part because of these dissimilarities that no one has ever produced a definitive guide for effectively producing student free expression legislation, said Mark Goodman, executive director of the Student Press Law Center.
“It is so much dependent on the circumstances,” Goodman said.
In most cases, however, there are resources that can be used to the advantage of student press advocates.
For example, he said, an endorsement of support from a free speech or journalism organization, such as the American Society of Newspaper Editors or the Society of Professional Journalists, can legitimize a lobbying effort and garner media attention.
Also, many of those who have lobbied for student expression rights have found success by developing a specific framing of the issue. In political terms, this rhetorical strategy can build a stronger argument and sets the tone for ensuing debate.
Despite its failure, the Washington state bill is the best recent example of a successful rhetorical strategy, said Warren Watson, who is director of J-Ideas, Ball State University’s national First Amendment and student journalism institute.
Watson, who with J-Ideas has closely followed the efforts to protect student free expression rights, said the Washington state bill was the spark that has been the impetus for similar bills in other states: “A rising tide lifts all boats,” he noted.
While California was the first state to introduce a bill in response to Hosty, Washington state’s bill has attracted more attention from the press, and has been supported and attacked on the opinion pages of Seattle’s newspapers.
Watson said the bill attracted the attention because the issue was rhetorically framed not just as a matter of journalism, but one of citizenship.
“It pointed out that journalism is an application of civics, and it’s more than kids being able to write what they want,” Watson said. “That has to be a precursor for any successful bill.”
When framed in that light, the bill drew the support of a broader base of lawmakers, and the debate over the Oregon bill has the same tone.
“It captures the meaning of journalism as the vehicle by which people learn to be citizens,” Watson said. “This is how you learn to be in a democracy.”
In that same context, proponents need to highlight that principals would not be held responsible for student-produced content, he said.
That argument is often cited by advocates of student publication prior review, and it was often invoked by opponents of the Washington state bill.
Watson recommended underscoring the contributions of the newspaper adviser, which can not only provide more insight on sound journalism practice than most principals, but can do so without having to censor.
“Each effort needs to show there’s responsibility and accountability in each school.”