At least in Ill., an antidote to college media censorship

Tuesday, September 28, 2010

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At least in Illinois, a legal case inimical to college press freedom appears to be dead.

In 2005, the full 7th U.S. Circuit Court of Appeals stunned college media across the country when it decided in Hosty v. Carter that college administrators could, without violating the First Amendment, exercise editorial control over campus newspapers. In Hosty, the 7th Circuit relied on the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988), in which the high court held that high school administrators could control the content of their students’ publications as long as they had legitimate educational reasons for doing so.

Although the Court in Hazelwood noted it was not deciding whether college administrators were entitled to the same right, the 7th Circuit in Hosty had little difficulty extending that right to university campuses. As a result, college media in the 7th Circuit’s jurisdiction — Illinois, Indiana and Wisconsin — justifiably feared they were in danger of losing their independence.

In 2007, the Illinois General Assembly sought to eliminate those fears in Illinois. While hardly known for dealing with issues head-on, the Illinois legislature passed the Illinois College Campus Press Act. The act, which took effect Jan. 1, 2008, designates that each campus newspaper, broadcast station or other publication “produced primarily by students at a State-sponsored institution of higher learning is a public forum for expression by the student journalists and editors at the particular institution.”

By designating college media as public forums, the General Assembly intended to provide those media the highest level of constitutional protection recognized by the courts. Until the recent decision in Moore v. Watson, however, it was not clear whether courts would interpret the state law the way it was intended.

If Moore is any indication, it’s now clear that the Illinois law has trumped Hosty in Illinois. In Moore, U.S. District Judge Rebecca Pallmeyer was faced with claims brought by a former faculty adviser and a former student editor that administrators at Chicago State University unhappy with the campus newspaper’s content had fired the adviser and effectively shut down the paper. Relying almost exclusively on the Illinois College Campus Press Act, Pallmeyer rejected the administrators’ request for judgment and ordered the case to trial.

Gerian Steven Moore was hired by Chicago State University in 2007, in part to oversee the re-establishment of the university’s student-run newspaper, Tempo, which had not been published in two years. As the paper began publishing again in March 2008, Moore was determined not to interfere with its content or to exercise any editorial control. Rather, he limited his role to advising students regarding journalistic ethics and procedure.

Soon after the paper began publishing, George Providence II was named its editor. Described by Pallmeyer as “an unconventional college sophomore,” Providence at the time was 48 years old and a former editor of a community-college newspaper.

Under Providence’s leadership, Tempo regularly published articles critical of the university and its administrators. Many of these articles alleged misuse of funds and abuses of authority. Within months, both Moore and Providence became targets of the administration’s ire, and Moore, coincidentally or not, was placed under the direct supervision of Patricia Arnold, the school’s executive director of university relations.

Arnold criticized Tempo and Moore bitterly, complaining that the newspaper was building “a tenor of dishonesty and deceit” at the university, that it was riddled with grammatical errors and poor writing and that it reflected poorly on the school and its students. In October 2008, Arnold, purportedly unhappy with the quality of two press releases Moore had written as part of his duties unrelated to Tempo, recommended that Moore be fired immediately. Within days, the university’s president accepted that recommendation and relieved Moore of all of his duties.

Arnold then turned her attention to Providence. After clashing with him over whether student reporters wishing to interview faculty members should first contact Arnold’s office, Arnold wrote at least two critical letters to the newspaper and exchanged many angry e-mails with Providence.

During the months following Moore’s ouster, Providence and the university also battled over Moore’s replacement. After a few months with an interim faculty adviser, Tempo was assigned a permanent adviser who insisted on reviewing all articles before they were published. After the adviser delayed the publication of one issue, Providence published the next two issues without the adviser’s approval. After the adviser resigned, the university locked the Tempo staff out of the paper’s offices. Tempo ceased publishing in April 2009, and Providence chose not to return to Chicago State.

Moore and Providence sued, seeking damages and declarations that the university had violated their First Amendment rights. On the parties’ cross-motions for summary judgment, Pallmeyer ruled that damages were not recoverable under the Illinois College Campus Press Act but that Moore and Providence were entitled to present their other claims to a jury.

While Hosty would have allowed Arnold and other Chicago State administrators to threaten and take adverse action against Moore and Providence, Pallmeyer said the Illinois law does not. Under the state law, Pallmeyer held, college newspapers “are not to be subject to prior review by university officials, regardless of whether the outlets receive financial support from the university.” The Illinois law also prohibits university administrators from retaliating against a faculty adviser who refuses to “suppress the protected free expression rights of collegiate student journalists.”

Given these restrictions on administrators’ conduct, Pallmeyer held that Moore had introduced evidence sufficient to present his case to a jury. “A reasonable jury,” Pallmeyer wrote, “might infer that Arnold’s distaste for Tempo’s controversial content was the motivating factor behind her decision to terminate Moore.”

Pallmeyer reached a similar conclusion regarding Providence’s claim. Providence, she said, presented evidence that after the staff was locked out of Tempo’s offices, “Tempo fell into decrepitude and its days as campus gadfly ended. … As it stands, a reasonable finder of fact could … conclude that University officials acted deliberately to alter or eliminate disfavored student speech from the protected forum of the campus newspaper.”

Whether Moore and Providence ultimately will persuade a court that Chicago State violated their First Amendment rights remains to be seen. However the jury decides, though, Pallmeyer’s interpretation of the Illinois College Campus Press Act in Moore is an unqualified victory for Illinois’ college media.

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