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Preemptive Strike

May 15, 2006

On Thursday, California’s Assembly signaled strong support for freedom of the student press by voting 76-0 in favor of a bill that would extend First Amendment protections to college journalists. The state would be the first in the nation to provide such support, if the bill ultimately becomes law.

Student press officials nationwide are closely watching the happenings in California in the aftermath of a federal appeals court decision last year that many journalists and legal experts said would open the door to overzealous administrative censorship.

California student press advocates widely hailed the lopsided vote as a sign that administrative censorship will not be condoned in the state, which, by law, already offers such guarantees to high school journalists. Several supporters of the bill said Friday that they have received indications from senators who are willing to pass a similar bill when it is expected to come up for debate later this summer.

“It was a great surprise to get a unanimous vote,” said James W. Ewert, legal counsel of the California Newspaper Publishers Association, which sponsored the bill. “We don’t want colleges and universities to be vulnerable to censorship attacks.”

“It’s a huge statement in favor of student press,” added Lance Speere, president of College Media Advisers, a journalism advocacy group. “If California does pass it, I’d hope that other states will soon follow suit.” To date, no other state lawmakers have proposed similar legislation. 

The strong Assembly support has calmed some behind the scenes worries that the notoriously press-wary Gov. Arnold Schwarzenegger would veto such a bill. “I don’t think he would veto if there is widespread support,” said Rachele Kanigel, assistant professor of journalism at San Francisco State University and a student newspaper adviser. “Coming out against the First Amendment would look pretty bad -- it’s like coming out against Mom and apple pie. But, yes, he kind of does what he wants, so it’s hard to tell.” The governor’s office did not return calls for comment on Friday.

There is still some concern that officials with California State University System may attempt to have the legislation modified to water down college student press freedoms. Those concerns stem, in part, from a memo sent last year by Christine Helwick, the system’s general counsel, to all presidents in the system and to Chancellor Charles B. Reed. She referred in the memo to the U.S. Court of Appeals for the Seventh Circuit's decision in Hosty v. Carter, which “held that an earlier decision that permitted high schools to regulate the content of a subsidized student newspaper to further legitimate and reasonable pedagogical purposes is also applicable to colleges and universities.”

“So long as the regulation is regular, the censorship may include material that is ungrammatical, poorly written, inadequately researched, and biased or prejudiced, vulgar or profane, or unsuitable for immature audiences, as well as material that associates the school with any position other than neutrality on matters of political controversy,” Helwick wrote.

“The Hosty Court ruled that academic freedom includes the authority of the university to manage an academic community free from interference by other units of government. If a subsidized student newspaper is a ‘designated public forum’ -- meaning that the students have been given sole authority to make all content decisions, then censorship is not permissible. But if supervision and review of content for pedagogical purposes is regularized, then censorship is appropriate.”

Helwick wrote that “while the Hosty decision is from another jurisdiction and, as such, does not directly impact the CSU, the case appears to signal that CSU campuses may have more latitude than previously believed to censor the content of subsidized student newspapers, provided that there is an established practice of regularized content review and approval for pedagogical purposes.”

At the same time, she stated that exercising control over the content of student newspapers could expose CSU to liability for that content against claims of defamation.

On Friday, Helwick said that CSU is “very supportive of the First Amendment and we’ve never had censorship.” “The whole issue is the balance between the First Amendment right versus the university’s responsibility if something gets out there that isn’t responsible,” she said. Regarding the memo, she said it was “unfortunate that it got distributed to a larger audience.” She also said that CSU has considered talking to the Senate about “minor” changes to the legislation’s language, but that the system has no plans to oppose the bill.

Some advocates of the bill noted Helwick’s use of the word “minor.” “An administration that doesn’t understand the First Amendment might not understand that a tiny change in the language could allow an administrator to review every word before it is printed,” said Sylvia Fox, president of the California College Media Association, who supports keeping the legislation just the way it is. “We’re not saying that administrators should have no control over student media -- just no control prior to publication. If a student defames someone, they will be held liable.”

Administrators, professors and students nationwide have spent much time contemplating the Hosty decision and its ramifications. “Plain and simple, it was a shock,” said Mark Goodman, director of the Student Press Law Center. "It really conflicted with the last three decades of case law.”

Speere said, though, that many administrators are currently misinterpreting the real impacts of Hosty. “Some think it suddenly means that administrators have the right to censor college paper,” he said. “But the judge even said that censorship is unconstitutional.” In the Hosty case, an administrator in Illinois ended up being protected by “qualified immunity,” which means she didn’t know that she was breaking the law by censoring a student newspaper.

Speere said that it's important to understand what Hosty decision does -- and does not -- do. But as long as confusion exists in the minds of administrators, Speere says efforts like the bill in California are "important and necessary."

 

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