College media weigh options in wake of Kincaid ruling

Friday, October 1, 1999

Faculty media advisers and student press advocates are scrambling to figure out what their options are in the wake of a recent federal appeals court decision in the Kincaid v. Gibson case.

The decision, which was handed down Sept. 8 by the 6th U.S. Circuit Court of Appeals, rescinds many of the freedoms traditionally enjoyed by university media outlets. Although the decision applies only to the states that make up the 6th Circuit — Tennessee, Ohio, Michigan and Kentucky — the repercussions could be felt nationwide.

Editors of student newspapers and yearbooks are now left wondering where their publications stand in terms of student free expression.

The three-judge appeals panel voted 2-1 to uphold a lower court ruling that found Kentucky State University officials were within their rights to confiscate 2,000 copies of the student-produced yearbook. The appeals panel cited the 1988 U.S. Supreme Court case Hazelwood v. Kuhlmeier as the basis for its decision in Kincaid. In Hazelwood, the Supreme Court found that high school administrators have great latitude in regulating the content of student-produced newspapers. The court ruled that “the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings,” and that “[e]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Many student press advocates fear that the same is now true for student-produced media at the university level, thanks to the Kincaid decision.

“We are at the mercy of attitude for the publication of our yearbook, here in the 6th Circuit,” said Mike Agin, University of Kentucky student media adviser. “If it does stay in affect with that overlay of Hazelwood, people in student media are really (going to) have to work to put in place procedures at their schools to counteract that,” said.

The options left to student-run media in the 6th Circuit, according to most student press legal experts, are few. The application of Hazelwood to university media outlets means that in order to be considered a public forum and to be afforded the enhanced legal protection commensurate with that status, student-produced media would have to get their universities' permission. Student newspapers, yearbooks and broadcast outlets unable to come to such an agreement with their respective university administrations would find themselves legally vulnerable to interference and possible censorship.

There is some question as to what degree of freedom some independent or partially independent student-run university papers may enjoy. Dennis Hale, a professor of journalism at Ohio's Bowling Green State University, said that these publications need to be careful.

“Some of those independent papers may not be as independent as they think. They need to scrutinize the documents that created them,” he said. “Some might be under the auspices of the university more than they think they are.”

Asked if he expected a new rash of censorship of student media on the university level, Hale said he did.

“I really do, just because some university presidents are more thin-skinned than they should be,” he said. “They are not real friends of the First Amendment. They don't like to be scrutinized; if you give them a new weapon, they're going to use it.”

Hale is not alone. In a recent news release, Lillian Lodge Kopenhaver, the president of the Association for Education in Journalism and Mass Communication, wrote, “This decision threatens to have a terrible chilling effect on student journalism and journalism education. It offers university officials a license to curb any kind of expression on campuses that they think may not reflect well on the institution.”

Kopenhaver said that student-run publications may have a difficult time insulating themselves from the repercussions of the latest Kincaid ruling. “That will be very difficult,” she said.

“Each individual student medium — be it a newspaper, yearbook or whatever — needs to have a statement that spells out that it is a forum for free student expression.”

Kopenhaver says student media outlets can establish themselves as free-speech forums. “Each one…has the right to establish itself as a forum for free student expression. In the past, they may not have put that declaration into writing, but now that is where it needs to be.”

Not everyone is as convinced that the situation is immediately dire. Mark Goodman, executive director of the Student Press Law Center, said that he believes the effects of Kincaid may take more time to set in than Hazelwood did.

“For what it's worth, colleges and universities are a little more attuned to the public-relations risks (of) engaging in censorship” than high schools, he said. “Right now everybody's attention is on the issue. I am guessing they will wait a reasonable period of time, and then decide … to make some changes.”

Still, Goodman says that student journalists should act now to protect themselves from possible university interference. “As time passes, we will see more schools decide that they want to affect the content of student-run publications,” he said. “We are going to be suggesting that — right now — student editors ask their administrators to state, in writing, that student-edited publications are public forums for free expression.”

The legal battle surrounding the issue is not over. The plaintiffs in Kincaid have asked the full 6th U.S. Circuit Court of Appeals to rehear their case. Free-press advocates hope the full court will recognize the problems they see with the current ruling and overturn it.

“It's a disappointing ruling,” said the University of Kentucky's Mike Agin. “I think there are dangers ahead.”