State and federal courts have decided more than 60 cases over the last five-plus decades directly involving censorship of the college and university student press. The decisions have been unanimous in their agreement that the First Amendment forbids almost all censorship of student-edited publications by college administrators. Dickey v. Alabama, 273 F.Supp. 613 (M.D.Ala.1967)
Student Press Freedom at the University Level, Defining the Tinker Standard
The landmark Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), set the standard for defining the free expression rights of students in America’s public schools. Student expression is constitutionally protected and may not be censored, the Court said, unless school officials can show that the expression:
(1) Would result in a material and substantial disruption of normal school activities or
(2) Invades the rights of others.
Under Tinker, student expression may not be censored simply because it is controversial, because school officials dislike its content or because it offers harsh criticism of them and/or their school policies. In other words publications, which are otherwise lawful (ie, they contain no libel, obscenity or other legally unprotected speech) cannot be punished or censored for content-based reasons unless they violate the two standards set by Tinker.
The Application of Tinker to School-Sponsored Student Media
A school’s unsupported claim that a publication could disrupt school activities or might incite lawlessness is not enough to satisfy Tinker. Typically, school officials must offer “compelling evidence” of “imminent” or “immediate” disruption for the evidence to be considered “material and substantial.” This being the case, courts rarely find student expression disruptive enough to justify censorship under Tinker, especially at the college level. Indeed, some courts have suggested that even “disruptive” material — if otherwise lawful — might still be protected and that public college student media enjoy constitutional protection identical to that available to commercial news media.
The Impact of Hazelwood
The Supreme Court’s 1988 Hazelwood School District v. Kuhlmeier decision does not apply to most college student journalists. Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001)(en banc). However, a 2005 decision by the U.S. Court of Appeals of the Seventh Circuit, Hosty v. Carter, ruled that Hazelwood is the “starting point” for college media censorship cases in Illinois, Wisconsin and Indiana, the three states that fall within that court’s jurisdiction. The impact on Illinois college student media was subsequently nullified by a state law returning full free press protections to students in that state.
The Rights of Public College Student Editors
Student editors have the right to make all decisions related to the editorial and advertising content of student media. Courts have been consistent in ruling that at the public colleges and universities, school officials, including student government officers, may not exercise the power of a private publisher over student publications simply because they provide financial support. The fact that public universities are considered an arm of the state distinguishes them from a private publisher. Bazaar v. Fortune, 476 F.2d 570, aff’d en banc with modification, 489 F.2dn225(5th Cir. 1973)(per curiam, cert. denied, 416nU.S. 995(1974).
As a result of these cases, it is now clear that:
School officials cannot:
(1) Censor or confiscate a publication, withdraw or reduce its funding, withhold student activities fees, prohibit lawful advertising, fire an editor or adviser, “stack” a student media board, discipline staff members or take any other action that is motivated by an attempt to control, manipulate or punish past or future content. Joyner v. Whiting; Schiff v. Williams,n477 F.2d 456(4th Cir. 1973); Leuth v. St. Clair County Comm. College, 732 F.Supp. 1410(E.D.Mich.1990); Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001)(en banc).
(2) Demand the right to review publications before distribution. Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass 1970).
Students cannot:
Student government officials are subject to the same First Amendment restraints as school administrators. For example, they cannot punish a paper’s staff or advisor or withdraw a publication’s funds for content-based reasons. State Board for Community Colleges v. Olson, 687 P.2d 429 (Colo. 1984), appeal after remand, 759 P.2d 829 (Colo. Ct.App. 1988).
However, school officials can:
Regulate non-content based aspects of a publication. For example, school officials can review the financial records of its student media and prohibit staff hiring policies when they discriminate on the basis of race.