Is Ill. campus-press law too good to be true?

Wednesday, September 19, 2007

Of the several questions raised by Illinois’ new College Campus Press Act, one stands out: What’s the catch?

The law, after all, seems too good to be true. It protects campus media from prior review by school officials. It protects college media advisers who refuse to censor student speech. It provides student journalists access to the courts to protect their rights and allows them to recover their attorneys fees if they prevail. Surely, somewhere in the fine print, there must be a catch.

Such skepticism is justified, especially in Illinois. Gov. Rod Blagojevich and the Illinois General Assembly have for months been unable to agree on anything. The state budget, due July 1, remains unsettled. Blagojevich, sporting approval ratings lower than President Bush’s and facing mountains of unfunded pension liabilities, nevertheless continues to push to extend health-care coverage to the uninsured. Dreams of reforming school funding have been replaced with the realities of retaliatory line-item vetoes, whispers of indictments and dueling lawsuits.

So how did Illinois pass the College Campus Press Act almost unanimously? Did someone slip in gubernatorial and legislative pay raises?

No, the act stands on its own. As hard as it might be to believe, there appears to be no catch, just a sincere desire to protect the college media from overzealous campus administrators.

College press freedom has been a concern in Illinois since mid-2005, when the 7th U.S. Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana and Wisconsin) issued its decision in Hosty v. Carter. In Hosty, the court held that the U.S. Supreme Court’s 1988 ruling in Hazelwood School District v. Kulhmeier — in which the Court said high school administrators constitutionally could exercise editorial control over student newspapers — could and should be extended to colleges. As a result, the court in Hosty held a dean of student affairs could not be punished for censoring the newspaper at Governors State University.

Central to the court’s decision was its holding that the college newspaper was not a public forum. Under traditional First Amendment analysis, speech in a public forum (such as a sidewalk, public park or town square open to all) cannot be regulated on the basis of its content. The student newspaper was not a public forum, the court said, because the newspaper’s editors chose and edited what the paper published. The college newspaper therefore was subject to regulation by administrators.

The reach of the 7th Circuit’s ruling, however, was unclear. Press freedom rarely had been determined under a public-forum analysis, and even the 7th Circuit acknowledged that many colleges subsidize student newspapers but empower student editors to determine the papers’ content. In those cases, the court said, the forum is neither public nor non-public but instead a “designated” or “limited-purpose” public forum protected from the interference of school officials.

Rather than wait for further court rulings to determine whether its campus media were public, non-public or designated forums, Illinois in the College Campus Press Act legislatively decreed that recognized student publications and broadcast stations at public universities, colleges and community colleges are public forums. As such, they, under Hosty, are entitled to full First Amendment protection. To emphasize the point, the statute provides that public campus media are “not subject to prior review by public officials.”

The act further provides that student editors are solely responsible for determining “the news, opinions, feature content, and advertising content of campus media” and that, accordingly, an institution of higher learning cannot be sued for student expression in a campus publication or broadcast. Recognizing that First Amendment protections are not absolute, the act expressly does not prohibit “the imposition of discipline” for harassment, threats, obscenity, incitement or other speech that is not constitutionally protected.

College media advisers receive special mention and protection in the law. Defined as “a person who is employed, appointed, or designated by the State-sponsored institution of higher learning to supervise or provide instruction relating to campus media,” an adviser can teach “professional standards of grammar and journalism” to students working at a campus medium without jeopardizing the medium’s protection under the act. The statute also protects advisers from pressure from campus officials, saying advisers cannot be “terminated, transferred, removed, otherwise disciplined, or retaliated against for refusing to suppress protected free expression rights of collegiate student journalists and of collegiate student editors.”

The law rounds out its protection of college journalists with a provision allowing students to seek injunctions against the offending public officials. While the act does not provide a means to recover monetary damages, it allows a court to award attorneys fees to a prevailing party. Aware that losing parties frequently try to avoid attorneys fee awards by surrendering before the court declares them the loser, the act defines “prevailing party” to include a party whose claim was the “catalyst” for a “unilateral change in position” by the other side.

Although the act is a tremendous victory for student journalists, it raises two concerns. First, its definition of “campus media” — “any matter that is prepared, substantially written, published, or broadcast by students . . . under the direction of a student media adviser” — leaves underground and independent journalists and publications outside the act’s protections.

Second, the law’s attempt to define a campus medium as a public forum “for expression by the student journalists and editors” is a First Amendment contradiction. The fundamental tenet of public-forum jurisprudence is that a public forum is open to all, not just to a select group of people. It therefore is probably only a matter of time before non-student journalists use the statute to try to gain free access to the pages and airwaves of their campus media.

These concerns, however, pale in comparison to the freedoms the law protects. Let’s hope the Illinois college media exercise those freedoms responsibly. One catch, after all, exists in all legislation — as easy as the legislature giveth, it can taketh away.