Appeals court panel set to hear case that tests limits of college press rights

Wednesday, March 17, 1999

Fifteen months after a federal judge ruled that university officials had the right to censor student publications, a federal appeals court panel is to hear oral arguments tomorrow in a case that applied high school press standards to a college newspaper and yearbook.

In Kincaid v. Gibson, two students sued Kentucky State University officials in 1994 for censoring the newspaper and halting the distribution of the school yearbook. A federal district judge cited the U.S. Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier, a high school press case, in his ruling for the university.

“This is the case that the college student media has been anticipating and dreading for the last 10 years,” said Mike Hiestand, attorney for the Student Press Law Center. “This case, were the court of appeals not to reverse, could change the face of college student journalism just as the face of high school journalism has been changed in the last 10 years by the Hazelwood decision.”

The Kentucky case began after school officials stopped distribution of the yearbook, The Thorobred, and stopped the newspaper, The Thorobred News, from publishing editorials and comic strips critical of school officials.

Charles Kincaid, a KSU student, and Capri Coffer, a former yearbook editor and newspaper staff writer, sued the university in federal court. They claimed the confiscation of the 1992-1994 yearbook, which has never been distributed, and the school's censorship of the newspaper violated their First Amendment rights.

U.S. District Judge Joseph M. Hood ruled against the students, saying Hazelwood also applied to college students. In Hazelwood, the Supreme Court ruled that high school officials can censor expression in student publications as long as they have a legitimate educational reason to do so.

Attorneys for the students pleaded for Hood to change his decision, noting that Hazelwood involved students in high school, not college.

Hood declined, writing: “The plaintiffs have not pointed out, or cited, any more persuasive authority than they originally did.… The court finds Hazelwood to be the starting point in an analysis of whether a publication is a public forum, regardless of the fact that Hazelwood purely dealt with a high school publication.”

Hiestand calls Hood's ruling a “sweeping decision” and one that runs counter to previous decisions concerning college press.

“Up to now, the courts have been pretty clear that college student journalists have the same First Amendment protections as professional journalists,” he said. “They are pretty much free to write what they see fit, provided they don't libel. This case would set a whole new standard — the Hazelwood standard — as the governing law.

“As we have found with our high school journalists, basically wherever school officials have an imagination, they can come up with a reason [their censorship meets] that standard.”

Attorney Bruce Orwin, who represents Kincaid and Coffer, calls Hood's decision “dangerous” because it makes the college newspaper and yearbook the equivalent of one produced in a high school classroom.

“He's pretty much stripped all First Amendment protections from these publications,” Orwin said, adding that, as far as he knew, Hood had never bothered to look at the yearbook.

In their appeal before a three-judge panel of the 6th U.S. Circuit Court of Appeals, the students claimed that Betty Gibson, then-vice president of student affairs, objected to newspaper stories that she said reflected negatively on the university. They argued that the publication adviser was temporarily removed from her position because she refused to censor the newspaper.

But Kentucky State administrators claimed they censored the newspaper and refused to distribute the yearbook because they were of poor quality and did not properly represent the university.

KSU President Dr. G.W. Reid declined to comment on the case and referred questions to Harold Green, the university's attorney. Green didn't return calls left with his office.

“Frankly, I'm surprised to see [the KSU officials] continue this charade,” Orwin said. “I can't imagine that they want to carry this image on.”