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Feb. 22, 2006
When Freedom Isn’t Freedom at All
On Tuesday, more than five years after a university dean stopped the presses because she was not allowed to vet articles before publication, the U.S. Supreme Court declined to consider whether a student newspaper was illegally censored.
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- A More Porous Church-State Wall, March 14, 2007
- Journalism That Dare Not Speak Its Name, April 11, 2006
The justices’ action leaves intact the 2005 decision by the U.S. Court of Appeals for the Seventh Circuit decision in Hosty v. Carter, which said that student papers that are subsidized by their universities can be regulated just like high school papers. Proponents of student press freedom say that the appeals court’s ruling is a green light for administrators who want to suppress articles.
In 2000, three staff members at the Innovator, the now-defunct student paper at Governors State University, in Illinois, sued university officials after a dean, Patricia Carter, on the heels of stories critical of the administration, blocked printing and insisted that she be allowed to review stories before publication. A federal district court ruled in favor of the reporters, but that ruling was overturned by the Seventh Circuit appeals court in 2005.
In that decision, the court found that Hazelwood School District v. Kuhlmeier, which held that a high school principal had the right to regulate a school paper, applies to publications that colleges put money toward, too. The Seventh Circuit decision called the Innovator, which was paid for with student activities fees, “a subsidized” newspaper, and said that since the university pays for it, the university is the publisher and can rightfully regulate it.
Mark Goodman, executive director of the Student Press Law Center, said that “to suggest an adult on a college campus can be treated the same way as a 14-year-old can in high school … signals the potential beginning of major erosion of college and university First Amendment rights.” Goodman added that the Supreme Court has been protective of free expression on campus for the last 30 years, beginning with Healy v. James in 1972, when the court defended the college environment as “peculiarly the ‘marketplace of ideas,’ ” in need of uninhibited expression.
Greg Lukianoff, interim president of the Foundation for Individual Rights in Education, called the ruling “infuriating,” and said that the Innovator was not a subsidized publication. In the 2000 decision known as Board of Regents of the University of Wisconsin System v. Southworth, he noted, the Supreme Court determined that student activities fees are student money, not university money.
Though the Court of Appeals decided that the university published the Innovator, it went on to cite Governors State’s own policy that student publications “will determine content and format … without censorship or advance approval.” In light of that policy, the court called the Innovator a “designated public forum,” free of censorship. So in that way, the appeals court sided with the student journalists.
The plaintiffs were, however, sought seeking monetary damages from Carter, the dean, and the court decided that Carter was shielded protected by qualified immunity, which protects public officials from liability for damages “insofar as their conduct does not violate clearly established statutory or constitutional rights,” according to a 1982 Supreme Court ruling. Though the defendants conceded in district court that the Innovator served as a public forum, the Court of Appeals decision said that Carter “was not bound to recognize that the Innovator operated in a designated public forum,” and reversed the district court decision.
Gary Feinerman, solicitor general in the Office of the Illinois Attorney General, which represented Carter, said that “the plaintiffs in this case chose to seek money damages from a government employee. Having done so, they made this case about qualified immunity.”
As is customary, the Supreme Court did not expand on its opinions for refusing to hear the case, and Governors State declined to comment. Lee Levine, a lawyer for the former Innovator staffers, said that he was “disappointed, but not terribly surprised.” He added that the Supreme Court ordered the state of Illinois to file an opposition brief indicating that “the court thought something in the petition was worthy of consideration.”
Supporters of student press freedom said that the implications of Hosty could be broad, geographically and ideologically.
Though the Hosty decision applies only to Illinois, Indiana, and Wisconsin, the three states in the Seventh Circuit, other states are paying attention. Shortly after the decision in June, a memo from the general counsel for California State University alerted California State presidents that the ruling “appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers.”
The Student Press Law Center has begun compiling a list of institutions in Illinois, Indiana and Wisconsin whose officials agree to sign written agreements stating that student publications are public forums. Goodman said that he wants to put college officials on notice that “we’re anxious to help student editors sue their schools if they’re censored.”
Still, Goodman said that even written public forum agreements are tenuous. “If we’re relying on public forum status as the sole means of First Amendment protection, what’s to keep a university from saying tomorrow, ‘Oh, we’ve decided our paper is no longer a public forum.’ ”
Goodman added that student publications, which have a tradition of operating independently, he said, are less likely to be hurt in most cases than “little student organizations that want to bring a controversial speaker. The school can say ‘you’re not a public forum.’ ”
Lukianoff was less sanguine about the ramifications even for traditional student papers. “If prior restraint, the most primitive form of censorship, is not enough to pierce qualified immunity, nothing is,” he said. “With a ruling this expansive, it will be used to justify acts of censorship until it is overturned. I feel like the Supreme Court has done college students a great disservice by choosing not to take this case. I think it will lead to a great deal of additional litigation.” After 2000, the Innovator was never published again.
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Comments
Not the end of the world
Don’t worry, my free-speech comrades, this issue will come before the court again in a case that will present even fewer gray areas and even more terrible aspects of censorship, and only then will Hazelwood be clarified. In this case, the students were seeking damages under 42 USC 1983, which has been interpreted as including a doctrine of “qualified immunity” which (which sort of complex) requires that a reasonable state actor in the defendant’s position. Sooner or later, a paper will get its act together and seek a prospective injunction.
Andrew, since the Supremes denied cert. the “precedent” only binds courts in the 7th circuit.
Quick note to IHE: The 7th Circuit’s website employs a rather interesting system of linking to cases. When you search by cases, you will view a dynamic link, which expires after a few hours. A better link is thus: http://www.ca7.uscourts.gov/fdocs...t=showbr&shofile=01-4155_042.pdf
Larry88, at 8:30 am EST on February 22, 2006
Who is the publisher?
Identifying the publisher seems the key here. And with a student newspaper, that might not be as simple as it seems. Is the paper written, edited, designed, and produced using school facilities? Does the school in any way subsidize the paper? If the paper prints something libelous, who is likely to get sued?
If a school is the owner or publisher of or the legally responsible party for a “student” publication, then it seems to me that the school can decide what the publication may and may not say. Whether a school should censor a student newspaper is a separate issue. But a publisher gets to decide what appears in a publication. Free speech and the First Amendment have nothing to do with it. Inside Higher Ed has no legal obligation whatsoever to run this comment, and I can’t call my lawyer if they decide not to.
Congress shall make no law telling Sports Illustrated or Road & Track to print or not print a certain article. But the publishers of those magazines can tell their editors “Don’t print that” or “You must print this.” If the editors don’t like the rules, they are free to find employment elsewhere. Freedom of the press means that the person who owns the press (or its equivalent) gets to make the decisions.
Perhaps a solution to the question of institutional censorship of student publications is to make such publications more like real newspapers. Let them exist as free-standing operations that need to pay their own way. The journalism and English departments could provide advisors to help students learn reporting, writing, editing, design, layout, production, and printing, but the paper would have to meet all of its own financial obligations. It would need not only reporters and editors, but a sales department and advertising salespeople as well. Students who worked with the paper would get good lessons in identifying and serving markets. They’d learn about the business side of publishing and news. And they’d learn that even in a society with a free press, a publication rarely enjoys perfect freedom, because a paper cannot survive if it drives away advertisers or the particular readers whom the advertisers want to reach. These are all good, if sometimes unpleasant, lessons for young folk to learn.
Even dealing with a censor can be a good lesson for a student journalist. In the real world, writers answer to editors, editors answer to publishers, publishers answer to owners, and everyone answers to the balance sheet. Welcome to the great chain of being. If a student editor or reporter sometimes needs to make an argument and convince Dean Sternface to let a story run, the student is learning a valuable skill, one that he or she will most certainly need in the business of journalism. And if Dean Sternface sometimes says, “No. That’s it. My decision is final. Now get out of my office,” the student can learn from that, too. Sometimes you have to take your lumps, and always you have to pick your fights carefully, and often you must learn to work with people with whom you disagree. They’re all parts of being a grownup.
Art Scheck, at 12:41 pm EST on February 22, 2006
Another potential consequence
Another issue which institutions should consider before deciding to follow Governor State’s lead is that the institution acting as publisher of the student newspaper must also accept liability for what appears in student newspaper. However, the courts have found that institution’s cannot be held liable (generally) for the actions of an independent student press.
John, at 12:50 pm EST on February 22, 2006
A fascinating belief is that “student activities fees are student money, not university money.” While that is true, it is the institution that tells students that they cannot get a degree if they refuse to pay the student activity fees. The power seeking student politicians who inhabit student boards, panels, etc. are seldom authentic representatives of the student body. Typically, the vast majority of students refuse to participate in student elections. Most students go to college to learn, not to play politics.
Where student newspapers are produced in private, off campus, facilities by students working off campus and receiving no course credit, using advertisng fees and subscription fees from uncoerced buyers, and having no indirect institutional support, then I favor complete autonomy of publication content subject only to the public laws that govern other newspapers.
Marvinlee, at 1:30 pm EST on February 22, 2006
Please read the actual case from the 7th before commenting
Folks, can you please read all of the 7th Circuit’s decision before commenting on it. (I posted a working link above.) It describes the law, which is quite nuanced, regarding what is or is not a public forum, but ultimately it concludes that qualified immunity shields the remaining defendant. Concentrating on who must take “lumps” and who subsidizes what, is not really the legal analysis used, and will only confuse the issues. Indeed, I would suggest that based on the 7th Circuit’s decision, administrators need to actually be more aware of whether school papers are public forums or not. (In many circumstances, the identity of the publisher or whether they are “student funds” or not might be irrelevant.) See p. 10 of the opinion ("But by establishing a subsidized student newspaper the University may have created a venue that goes by the name ‘designated public forum’ or ‘limited-purpose public forum”.’). I think, at some point, administrators are going to have to make it quite clear, from the onset the degree of control they assert over a student paper, and tell everyone what that control is. In essence, school administrators are now on notice that qualified immunity won’t protect them.
Thank you.
Larry, at 2:45 pm EST on February 22, 2006
Stop Ideas!!!
New ideas make my head hurt. I am an academic and I want only good clean middle class concepts. Thanks supreme court—-rights and freedoms just make the world a confusing mess—-as an academic I need a nice tidy controlled environment
mike, at 4:45 am EST on February 23, 2006
ARGH! It’s the misconception that the school should have control of a newspaper because they collect the student fee money to be used for the student activites.
First of all, there would be no need for administrative positions like Dean of Student Life or Executive Director of Student Life, if the university didn’t have student activities. Which means the student activity fee money pays for those administrative positions, as well as all the secretarial and technical positions they have hired to assist them in the student life office. So this negates Andrew’s comments about the money having “no administrative costs taken out.”
In the case of the GSU, the Phoenix (student newspaper that replaced the Innovator in 2002) was investigating whether student fee money was being used for capital improvement projects, such as the new gym floor. A project that was complete in 2004.
Apparently some people didn’t read the case well enough to know that some of the arguments pertained to ‘power of the purse’ meaning the student fee money was essentially being “held hostage” by the administration as a means to control the printed material in the newspaper. So again, this would negate Andrew’s comment that claimed “S&A funds effectively travel from students to the projects they fund.”
“And they’d learn that even in a society with a free press, a publication rarely enjoys perfect freedom, because a paper cannot survive if it drives away advertisers or the particular readers whom the advertisers want to reach. These are all good, if sometimes unpleasant, lessons for young folk to learn.”
It is good to see that today’s journalists are delivering us the unbiased news. That if the Sunrise Nursing Facility is the top advertiser for the Daily Blab, then the Daily Blab will not print a story about how one of the orderlies was found guilty of abusing twenty elderly patients, due to the fact that it would show the nursing facility in an unfavorable manner and therefor they would pull their advertising. This says a lot about today’s news and journalists.
Stephanie, at 4:45 am EST on February 24, 2006
Stephanie, Not everyone wants deans of student life
Stephanie, I don’t think that you read 7th Circuit’s opinion, either. Indeed, they did not address whether this particular publication was a public forum or not, because this was a 42 USC 1983 action for damages, in which the defendants could (and did) assert a defense of qualified immunity. If the plaintiffs were seeking an injunction things would have been different.
Second of all, there is absolutely no need for these “deans of student life” and whatever. They are non-academics who have an extreme need to not only be in college for the rest of their lives, but run other peoples’ lives. Indeed, because of their lack of education (that is, they generally don’t have terminal degrees, except in subjects like “higher education administration”) couple with discretion, they often get the school into trouble because they don’t have the ability to comprehend many of the complicated legal issues that a school will face on a daily basis. Most academic deans, while not lawyers, at least can appreciate just how complicated life and the law is. For me, and most others, college ended long ago and didn’t involve dorm-related-activities or people trying to be my mother.
Finally, Stephanie, your rant about advertisers controlling content doesn’t make much sense, because it doesn’t seem to have happened here. Finally, you don’t really provide a definition of what constitutes “responsible” journalism, so it is difficult to tell what you are talking about.
Larry, at 4:55 pm EST on February 24, 2006
Larry, I don’t think you grasped the points that I was trying to convey in either of my messages.
First, my comments regarding the administrators affiliated with student life was based on a comment made by Andrew, that stated:
“...the money has no administrative costs taken out (at least I have never seen any taken out), which means that S&A funds effectively travel from students to the projects they fund.”
I was not defending the administrators. I was explaining to Andrew that these positions are in fact funded out of student activity fees — meaning there are administrative costs taken out to fund support staff and administration. I am not sure why you thought I was defending those positions.
Second, I have read the 7th Circuit Decision; and I have discussed it many times with Ms. Hosty. Another editor & I actually filed suit against the same university in the same circuit for many of the same types of issues (as well as other issues).
Lastly, my point regarding journalism was based on Art’s comments, which, in my opinion, deem today’s journalists as corporate sell-outs. My example was a hypothetical situation involving a nursing home which is the top advertiser in a daily newspaper. If an orderly is convicted of abusing 20 patients at that nursing home, how will the newspaper handle it? Will the newspaper avoid print it and risk losing their top advertiser; or will the newspaper aquiesce and fail their readers? It is getting to the point that the newspaper mastheads will soon be carrying corporate sponsors in their logos, much like the sports stadiums.
I hope I cleared that up.
I do have a question/comment to pose to everyone. If I pay a university mandatory student fees for the purpose of funding student activities (specifically, the newspaper); should I allow the university to censor the newspaper? If so, why? After all, I, as the student, have paid for all the equipment and supplies, as well as the public forum that is created by that student-funded newspaper. Also, why should I now be coerced into funding a so-called independent newspaper because I do not like the administration’s governance over the newspaper, and still be held accountable for paying student activity fees that they have no intention of giving to the newspaper?
Stephanie, at 8:40 am EST on February 26, 2006
Please provide the citation (even if it is just a docket number) of your lawsuit, so that we can either look at a published decision or read get it off PACER.
Larry, at 3:50 pm EST on February 26, 2006
Blahut v. Oden 05C-4989
Complaint: http://www.sams-corner.com/SpImages/Complaint_08292005.pdf Motion to Dismiss: http://www.sams-corner.com/SpImages/02102006_Motion.pdf July/August 2004 Phoenix: http://www.sams-corner.com/Images/august2004.pdf
Updates posted to: http://www.myspace.com/freedom_of_speech
Stephanie Blahut, at 4:45 am EST on February 27, 2006
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Two Issues
First, should we count S&A fees, which are paid by students with tuition, to be funding from the school itself. True, without the institution there to collect the fees, there is nothing, but the money has no administrative costs taken out (at least I have never seen any taken out), which means that S&A funds effectively travel from students to the projects they fund. As such, can the administration claim the right to exercise prior restraint, since it is the students, not the school, paying for publication?
Second, does this apply differently to public and private schools? Should the administrations of publicly funded colleges and universities have less latitude in these matters than their privately funded counterparts? More?
Andrew Purvis, at 6:35 am EST on February 22, 2006