Student press advocates fear yearbook case may erode college journalists’ rights

Thursday, September 9, 1999

The call to the Student Press Law Center from the Michigan college student yesterday was typical. The student, who said that administrators had fired the campus newspaper adviser so they could hire a more subservient one, needed guidance.

On any other day, staff attorney Mike Hiestand would have cited a handful of collegiate press cases, forwarded a packet of legal materials and fielded the next call.

But because a federal appeals court panel said yesterday that Kentucky State University administrators had a right to confiscate 2,000 copies of a student yearbook and to fire a faculty adviser to the student newspaper, Hiestand had to change his response.

“For the first time ever, I wasn't able to tell a college student that he has strong First Amendment protections,” Hiestand said. “I had to preface my comments with a lot of 'what-ifs' and 'buts.' I'm no longer able to tell him that we can win this thing.”

The 6th U.S. Circuit Court of Appeal's decision in Kincaid v. Gibson has student press advocates worried that First Amendment press rights of collegiate journalists are eroding.

A three-judge panel yesterday rejected arguments by two former Kentucky State University students that the school violated their First Amendment rights by forbidding distribution of a yearbook and allegedly interfering with the student newspaper. The panel ruled that Charles Kincaid and Capri Coffer failed to prove their allegations against the Frankfort, Ky., university.

In a 2-1 decision, the panel ruled that the yearbook, The Thorobred, was not protected by the First Amendment because its content did not amount to public speech. The panel didn't consider the First Amendment in its decision concerning The Thorobred News, because it said the former students lacked standing to pursue their claims concerning the newspaper.

Although the case is binding only in Michigan, Ohio, Kentucky and Tennessee, the implications are far reaching because it marks the first time a federal appeals court has applied the U.S. Supreme Court's decision in the landmark 1988 case, Hazelwood School District v. Kuhlmeier, to the collegiate level.

Although the court panel cited six collegiate cases from the past 30 years, it rested its opinion solely upon Hazelwood, a decision that allows high school officials considerable control over school-sponsored publications if they show strong educational reasons for doing so.

The appeals court panel found that Kentucky State had not clearly established the student yearbook as a public forum, a venue the Supreme Court deemed to enjoy full First Amendment protection.

Judge Alan Norris, in the majority opinion, wrote that the high court in Hazelwood determined “that if the school did not intentionally create a public forum, then the publication remains a nonpublic forum, and school officials may impose any reasonable, non-viewpoint-based restriction on student speech therein.”

KSU administrators said they confiscated the 1992-94 yearbook because it didn't sport the school's official colors and was of poor quality.

Those were legitimate concerns, Norris wrote.

But Judge R. Guy Cole Jr. faulted Norris for failing to note that Hazelwood dealt solely with high school journalism.

Cole, in a dissenting opinion, quoted a Hazelwood footnote that reads: “We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.”

Cole wrote: “The majority fails to acknowledge this point, instead applying the same level of deference to KSU as the Court did to Hazelwood East High School. Neither this court or any of our sister circuits have taken a position on this issue, and I hesitate to do so implicitly, as the majority has done.”

Missouri University journalism professor Charles Davis agreed that the leap was “amazing,” especially because the 6th Circuit offered no justification why Hazelwood should have bearing on a college case.

Davis also says he's disturbed by the Hazelwood standard of categorizing student speech as either a public forum or a nonpublic forum, calling it “an intellectually starved way to treat, in essence, student speech.”

“I think it's wrong that the court examined the yearbook and claimed that there was no First Amendment violation simply because the yearbook was not raised to some public forum,” Davis said. “They are ignoring what took place there — which is censorship, censorship in every form of the word.”

Hinfred McDuffie, vice president for university advancement at Kentucky State, said university officials were pleased with the decision, noting that the student yearbook “is simply a means of accurately commemorating student activities and events of the year.”

“We support the importance of our student newspaper as a forum for ideas and expressions,” McDuffie said in a written statement. “Our student press enjoys the same journalistic freedom enjoyed by other university students and the students at Kentucky State University are encouraged to engage in the discussion of the ideas of the day.”

Student press advocates also expressed amazement that the court validated “poor quality” and “lack of school colors” as legitimate reasons for censoring college publications. That, some say, could cause considerable problems for student publications and journalism programs at public colleges nationwide.

“This decision represents an almost 180-degree turn from the strong First Amendment protections that have traditionally been afforded public college student media,” said Mark Goodman, executive director of the Student Press Law Center. “Make no mistake, if allowed to stand, the decision … will gut student journalism programs at some colleges and universities.”

Although the attorney for Kincaid and Coffer promised appeals to both the full appeals court as well as the U.S. Supreme Court, there's no guarantee that either one will take the case, says Jane Kirtley, a journalism professor at the University of Minnesota School of Journalism and Mass Communication.

“We're not dealing with a situation that they necessarily view as an outrage,” Kirtley said. “I don't think it's subject matter that is exciting to them.”

In the meantime, Kirtley says college journalists, particularly those in schools in the 6th Circuit, can hope for enlightened school officials.

“I can only pray that administrators at our great public institutions would say this is an inappropriate thing to do and not attempt to limit the student journalists,” Kirtley said. “But I wouldn't hold my breath.”