Full 7th Circuit upholds college against newspaper

Tuesday, June 21, 2005

The 7th U.S. Circuit Court of Appeals has ruled against a campus newspaper in a case being closely watched by free-press advocates.

The case, Hosty v. Carter (formerly Hosty v. Governors State University), involved a demand by the dean of student affairs at Governors State University in University Park, Ill., for pre-publication review of the newspaper, the Innovator.

The controversy arose after Dean Patricia Carter sought to prevent publication of the Innovator unless it had obtained prior approval of university officials. Two former student editors, Margaret Hosty and Jeni Porche, and a former writer, Steven P. Barba, filed a federal lawsuit, contending that Carter, the state-run school and other officials violated their free-expression rights in that their demand for prior review amounted to an unconstitutional prior restraint on expression.

Carter argued that she could censor the college newspaper under the rationale of the 1988 Supreme Court ruling in Hazelwood School District v. Kuhlmeier, in which the Court said high school newspapers could be subject to restrictions.

The majority in yesterday’s 7-4 ruling by the 7th Circuit reversed a 2003 ruling by a three-judge panel of the same court and dismissed the lawsuit against Carter.

In rejecting the panel’s finding that college students possessed greater press freedoms than high school students, the court majority said the central question was whether the Innovator could be subjected to college-administration control because it had been created as a certain type of public forum and was funded by the school.

“If private speech in a public forum is off-limits to regulation even when that forum is a classroom of an elementary school,” Circuit Judge Frank Easterbrook wrote for the majority, “then speech at a non-public forum, and underwritten at public expense, may be open to reasonable regulation even at the college level — or later, as Rust v. Sullivan [a 1991 Supreme Court case] shows by holding that the federal government may insist that physicians use grant funds only for the kind of speech required by the granting authority.”

“We hold, therefore, that Hazelwood’s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools,” the majority opinion said. The court ruled that the university had a right to reasonably regulate the newspaper's contents because it is published under the auspices of Governors State.

The court also said Carter should not be liable for “constitutional uncertainties” when she shut down the newspaper.

First Amendment advocates had feared that a ruling in Carter’s favor would severely cripple press freedom on public college campuses.

In dissent, Circuit Judge Terence Evans wrote: “In concluding that Hazelwood extends to a university setting, the majority applies limitations on speech that the Supreme Court created for use in the narrow circumstances of elementary and secondary education. Because these restrictions on free[-]speech rights have no place in the world of college and graduate school, I respectfully dissent.”

Hosty said she and Porche would appeal the decision.

“It's disastrous,” she said. “This isn't limited to journalists.”

In a news release, Mark Goodman, executive director of the Student Press Law Center, expressed disappointment with the ruling and said it “gives college administrators ammunition to argue that many traditionally independent student activities are subject to school censorship.”

“I fear it's just a matter of time before a university prohibits a student group from bringing an unpopular speaker to campus or showing a controversial film based on the Hosty decision,” Goodman said. “Such actions invite havoc on college campuses.

“As the Supreme Court itself has noted (and the dissenting judges in this case pointed out), nowhere is free expression more important than on our college and university campuses where we hope to expose students to a true 'marketplace of ideas.' This Court has [thumbed] its nose at that notion.”

The Illinois attorney general's office, which defended Carter, was happy with the court's decision.

“We're in favor of press freedom for college students,” Solicitor General Gary Feinerman said. “But the law was so unclear.”

In April 2003, college press advocates welcomed the unanimous decision by the three-judge panel of the 7th Circuit, which rejected an argument from the Illinois attorney general’s office that college journalists could be subjected to the same level of constraints as high school journalists.

That ruling asserted that, because Hazelwood did not apply to the college press, Carter was not entitled to qualified immunity — a doctrine that shields government officials from liability in civil rights suits unless they violate clearly established constitutional rights.

According to the 2003 decision, it was clearly established that college students possessed greater press freedom than high school students. The panel wrote that “Hazelwood’s rationale for limiting the First Amendment rights of high school journalism students is not a good fit for students at colleges or universities.”

“Treating these students like 15-year-old high school students and restricting their First Amendment rights by an unwise extension of Hazelwood would be an extreme step for us to take absent more direction from the Supreme Court,” the panel said in 2003. “While Hazelwood teaches that younger students in a high school setting must endure First Amendment restrictions, we see nothing in that case that should be interpreted to change the general view favoring broad First Amendment rights for students at the university level.”

The Innovator no longer publishes.

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