Advertisement

News, Views and Careers for All of Higher Education

June 24, 2005

The Case of the Censored Newspaper

By John K. Wilson

In what may be the worst decision for college student rights in the history of the federal judiciary, the U.S. Court of Appeals for the Seventh Circuit this week turned back the clock a half-century and reinstated the old discredited doctrines of in loco parentis and administrative authoritarianism.

Looking for a job?
See all 212 new postings
Browse all job listings:
Faculty: 3,466
Administrative: 1,661
Executive: 159
FEATURED EMPLOYERS
Post a job

Related stories

In Hosty v. Carter, the Seventh Circuit ruled by a 7-4 majority that administrators at public colleges have total control over subsidized student newspapers. But the scope of the decision is breathtaking, since the reasoning of the case applies to any student organization receiving student fees. Student newspapers, speakers and even campus protests could now be subject to the whim of administrative approval.

The case seemed like an open-and-shut example of unconstitutional suppression of dissent. On November 1, 2000, Patricia A. Carter, dean of student affairs at Governors State University, in Chicago’s south suburbs, called the printer of the student newspaper, the Innovator, and demanded prior approval of everything in the paper, which had annoyed administrators with its criticism of the university. Prior restraint is a classic violation of freedom of the press, and the editors Jeni Porche and Margaret Hosty soon sued the university.

Student press groups were alarmed when the Illinois attorney general’s office argued that the 1988 U.S. Supreme Court case Hazelwood School District v. Kuhlmeier should apply to college newspapers. The misguided Hazelwood decision has been an unmitigated disaster for high school journalists, and the possibility of extending it to college students is terrifying.

Terrifying, that is, for anyone who cares about freedom of the student press. But for the majority of the Seventh Circuit, Hazelwood was a legal opening for conservative judges who wanted to reach a predetermined result. If the majority opinion by Judge Frank Easterbrook had merely extended the censorship of Hazelwood to colleges, it would have been a principled decision; a terrible principle, but a principle nonetheless.

However, because Dean Carter’s action violated even the Hazelwood standard, these activist judges had to rewrite the Hazelwood precedent to justify the censorship of all student newspapers and activities. The judges had to eliminate Hazelwood’s restriction to curricular-based newspapers, and then had to eviscerate any constitutional protections for a “limited public forum” such as a newspaper. It took the judges 18 months from the time of oral arguments, and some convoluted reasoning, to achieve their goal.

The Hazelwood case declared that high schools could only censor student newspapers that were created as part of the curriculum. However, the majority decision in Hosty goes far beyond this, expanding censorship of high school papers as well by eliminating the “curricular” limit.

Jettisoning the Hazelwood standard restricting only curricular-based newspapers was merely the first of Easterbrook’s violations of precedent. He also annihilates the common understanding of “limited public forum,” a term created by the Supreme Court to provide a middle ground between the unregulated public forum (such as standing on a soapbox on the quad) and a non-public forum (such as a university-controlled alumni magazine).

“If the paper operated in a public forum, the university could not vet its contents,” Easterbrook wrote. He then asked, “was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)?” Of course, a newspaper isn’t a public forum like a soapbox. It’s limited to the students who run the newspaper. By declaring that only a pure public forum is entitled to Constitutional protection, Easterbrook eliminates the First Amendment on college campuses for any limited public forum, including any student-funded activities.

“What, then, was the status of the Innovator?” Easterbrook continued. “Did the university establish a public forum? Or did it hedge the funding with controls that left the university itself as the newspaper’s publisher?” By his logic, the only speakers or newspapers on a public college campus that fall under public forum protection would be those that receive no funding from student fees or university funds (a rare commodity indeed). Any funding “controls” are directly tied to ideological controls.

Easterbrook concluded, “Freedom of speech does not imply that someone else must pay.” This is the philosophy of “he who pays the piper calls the tune,” and the Supreme Court has rejected it over and over again at public colleges.

Easterbrook is claiming that if the university can require student groups to follow funding rules designed to prevent fraud (and demand that student fee money be spent on a newspaper rather than, say, a private party), then the administration must be granted total control over the content of the newspaper.

A Break With Precedent

This is a bizarre conclusion, considering that the Supreme Court has repeatedly banned such control by colleges in funding cases.

In Rosenberger v. University of Virginia, the Court ruled that a public university cannot ban funding for a newspaper based on its religious content. Now the Seventh Circuit has declared that a public university may be obliged to fund a religious newspaper, but it can impose any control over its contents. In Board of Regents of the University of Wisconsin v. Southworth, the Supreme Court ruled that public colleges must ban all viewpoint discrimination in funding student groups. It would be bizarre if college administrators were granted the direct power to control the viewpoints expressed in student newspapers, while by expressly banned from making funding decisions based on viewpoint. Yet this is what Easterbrook’s opinion permits.

Any non-public forum that is funded by the university to any degree could be controlled and censored by administrators. Any use of campus space by a student organization is subsidized by the university, as are all registered student groups that receive any benefits or funding. Therefore, all of these groups are subject to total control by the administration under Easterbrook’s ruling.

In essence, Easterbrook argued that there is only one kind of censorship that is impermissible on a public college campus: banning someone from speaking for free on a soapbox on the quad. In all other cases, under the Hosty v. Carter ruling, college administrators across the country now have a green light to ban anything they want, from controversial campus speakers to critical student newspapers.

Although the Hosty ruling itself only applies to Illinois, Indiana and Wisconsin, the states covered by the Seventh Circuit, the “qualified immunity” test allows any public college administrators to avoid damages in any case where the law is unclear — and the Hosty case certainly makes freedom of the student press an unclear idea.

The Hosty decision could also affect faculty academic freedom. If college students have no more Constitutional protections than first graders do, then college professors may have no more rights than elementary school teachers. Decades of cases establishing the unique legal status of colleges and academic freedom, based on the maturity and rights of college students, might be wiped away if Hosty is upheld.

Easterbrook also hauled out the dubious idea of institutional academic freedom: “Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts.” If “academic freedom” means only the power of administrators to “manage an academic community,” then students and professors alike will be subject to censorship by the administration.

The Innovator has been shut down for almost five years, replaced by the administration with a more pliable newspaper where students never investigate or criticize their college. Unless the Supreme Court reverses the Seventh Circuit’s unprecedented act of conservative judicial activism, the Innovator may only be the first among many newspapers and student organizations silenced by administrators at public colleges, with the blessing of the courts.

Got something to say?


Want it on paper? Print this page.
Know someone who’d be interested? Forward this story.
Want to stay informed? Sign up for free daily news e-mail.

Advertisement

Comments

Censored Newspaper

“Decades of cases establishing the unique legal status of colleges and academic freedom, based on the maturity and rights of college students, might be wiped away if HOSTY is upheld.” Might be? This hypothetical is out of touch with the reality some of us have already encountered. The Sixth Circuit, in March of 2001, ruled that college professors’ freedom of speech, while “paramount,” is not so special that it cannot be canceled at any time by the whim of any compelled administrator. This was done to further advance the understanding that all college students are really no more than fourteen years old, that they constitute a “captive audience,” exactly like the incarcerated Americans processed by the K-12 system. (The “judges” of Censornati followed the precedent, among other irrelevancies, of the Fifth Circuit’s MARTIN V. PARRISH, which held that the rules devised for high schoolers apply with equal force in college. Fifth Circuiteers used the SCOTUS opinion of BETHEL SCHOOL DISTRICT V. FRASER (1986), ignoring the fact that this squelch designed for the likes of scanted tykes ought have no status in institutions of higher learning. Not to mention in soi-disant free countries.)

For various alleged thought and speech crimes, I have been suspended seven times (five without pay) since 1999. Less than two months ago, yet another magistrate decided that Macomb Commodity College, where I labor between banishments, must continue to have the right to censor me because it had done so with impunity before. Stare decisis – often the refuge of scoundrels or cowards – no doubt is the “principle” involved. To add to the repression, the College forbade permission to publish the decision, claiming students’ (informants’) “confidentiality rights” prevail, even though no such rights are implicated, since the complaining student is designated merely as “Student A.” Moreover, where this ruling and related but redacted documents are concerned, this posture has no legal status. But that has not prevented the College from pretending such, and its “immunity” must be secure since there was no way they could have reasonably known they were abusing the clear letter and intent of the law. Without the ability to talk about the specifics involved, my colleagues’ ignorance and jeopardy are assured; the students of the college are subjected to insidious, clandestine censorship; and the public which pays the piper is not invited to consider what its taxes have purchased. (I raised these issues with the Attorney General of the State of Michigan three weeks ago, but my plea was dismissed as a merely “private” concern.)

In a fit of anger and growing despair, I have put my diploma up “for sale” on Ebay. Readers, with a stomach for the grim, might want to review the rationale (SEARCH “diploma, Bonnell”). In any case, one has to wonder what has been going on in the nation’s law schools, emporia that have unleashed such a horde of censorial “judges” (I call them “thudges,” as their opinions often have the ring, the resonance, of struck pigs of lead). Their utter contempt for Constitutional liberties has, in the nation’s history, no match.

John BonnellProfessor of Language and Literature

John Bonnell, Professor at Macomb Comm. College, at 1:38 pm EDT on June 24, 2005

An unpopular view

After the above mentioned article and righteous First Amendment arguments, the following comments are not going to be popular. I also want to say that I am not making a comment about the case at this particular college. I live under a rather oppressive administration myself and know how vengeful they can be.

HOWEVER…..

A backlash against college newspaper has been long in coming. I have seen far too much irresponsible journalism come from college press. When someone complains the answer always is, “it is just a bunch of students.” I have seen privacy invasions, misrepresentation, heavy handed opinion in news articles, and outright defamation. The newspapers are far too often not held responsible. Administrations are reluctant to react or hold college newspaper editors to a professional level of responsibility because of this type of reaction. At the same time, college administrators may be unwilling or unable to tell their side due to privacy or defamation consideration placed on them.

The facts are that the university is the publisher of a supported newspaper. They pay the bills and provide a distribution venue. It will not be too long before someone sues a university finds itself in court over content in its paper.

With freedom comes responsibility. College media need to take on this responsibility and find a way to arbitrate these disputes in a way that is fair for the university, the community, and the paper.

Steven Dick, Assistant Professor of Radio-TV at Southern Illinois University Carbondale, at 9:04 am EDT on June 25, 2005

This comment “They’re just a bunch of students” is, I imagine, frequently used to exempt many a student from responsibility for ruining an adult’s reputation. What IS the legal standing regarding utterances by an eighteen-year-old that are false, malicious, and have the effect of demotion or firing for a faculty member? Is there a magic age at which the student can get away with this sort of thing—as apparently happens with the selling of drugs—and does this age differ according to which state you’re in? And just how complicated is it to stand up against libel or slander or whatever it’s called? What if the student is forty-five years old?

Veronica, at 11:49 am EDT on June 25, 2005

Steven Dick’s comment about Hosty decision

Steven Dick’s comments in favor of universities holding students accountable and making them responsible for their actions offer an illogical argument. By definition, one can only be responsible for her actions if she has the freedom to decide what it means to be responsible. If instead, as Dick urges, a university administrator were to decide what it means for student journalists to be responsible, then the student journalists, by definition, would not be responsible for their actions — the one doing the threatening would be responsible (for an explanation of this line of thinking, see J. Herbert Altschull’s “From Milton to McLuhan: The Ideas Behind American Journalism"). For an alternative to Dick’s false claim about universities being the publisher of a student newspaper because they pay the bills, see the Student Press Law Center’s Web site at splc.org. Universities do not own student newspapers — the taxpayers do, and a committee authorized by the taxpayers selects an editor-in-chief who also serves as publisher — at least that is the case at universities that do not censor student newspapers. If universities consistently do not censor student newspapers, then they are not held liable for the newspapers’content — instead, the student editor-in-chief is liable (again, see SPLC). This Hosty decision follows many recent attacks on freedom of expression and inquiry, including the Patriot Act, the House’s approval of a constitutional amendment to modify the First Amendment by outlawing political expression through flag burning, the assault on public television and public radio, etc. The U.S. has been far from first among nations in its freedom of press and speech the last few years (see Reporters Sans Frontiers), and now we are bordering on being a considered a wretched disgrace.How a radio and television professor could advocate student media censorship is a mystery. This is as anti-American as anything could ever be. I urge you, Steven Dick, to read up on the subject of freedom of the press for students so that you will better understand what is at stake and the reasoning in favor of freedom of the press for college students. I would suggest a paper on the topic that I presented at Oxford recently if you would like to get started on your reading.

Allan Lovelace, Newspaper and Newscast Adviser at Riverside Community College, at 12:10 am EDT on June 26, 2005

Factual, chilling article

What concerns me, and what I will share later this summer in my monthly column at Inside Higher Ed, is a growing tendency to treat “fact” as politicized opinion. John K. Wilson’s article may look like an op-ed; however, it is a factual and substantive exegesis of the situation at hand, caused by the extension and expansion of Hazelwood. The sad truth is that the Judiciary has become less factual and more political, from appointments to rulings.

But this ruling stands out above others.

I’m a former adviser for the student newspaper at Oklahoma State University, The Daily O’Collegian. I can attest in my experience more than 20 years ago as a media adviser that administrators sometime suppress stories because they find them all-too-accurate and therefore, embarrassing. I can also attest that media advisers are often the scapegoats when those accurate but embarrassing disclosures are made public. This ruling only will embolden administrators to suppress stories that belong in the public domain, especially when taxpayer dollars are at stake. Without the freedom of the student press, you will hear fewer such stories.

We stereotype student newsrooms as containing only young, inexperienced student journalists. I can attest, as can other media advisers, that student newsrooms contain non-traditional as well as traditional undergraduates, along with graduate students. How will this ruling, which puts these adults on par with high school students impacted by Hazelwood, impact the diversity of student newsrooms?

Finally, a word now about those “young, inexperienced” undergraduates: more often than not, they have had several internships at metro newspapers. At my School, those internships have been at the New York Times, Wall Street Journal and Denver Post, among others. How ironic that the First Amendment applies to them at these media companies but not at their home institutions.

Michael Bugeja, Director, Greenlee School of Journalism and Communication at Iowa State University of Science and Technology, at 9:21 am EDT on June 27, 2005

diploma, Bonnell

John: I was thoroughly entertained and stimulated by some of the stories about you and your students but could you please be a little more specific about how we would go about learning about your putting your diploma up for sale? When you say “search diploma, Bonnell” I for one don’t know my way around ebay or the internet in general well enough to Do that. And where can we read more about ,and By, you? Please! For example your writing is fascinating, and I have no doubt that your use of profanity is a powerful teaching tool, so please tell us about this profanity thing and your use of it.

Veronica, at 7:20 pm EDT on June 27, 2005

I am just a parent, so this will not have any academic weight on this subject, but I do have a common sense viewpoint. If you decide to take a job somewhere, then you will have to conform to the constraints of that job. If you decide to take on the job of an editor of a newspaper, you will have to do the bidding of the publisher, even if that publisher is the university itself.

If you do not like the way you are constrained by that publisher, go start your own newspaper. I know that when my son could not get his columns accepted by his college newspaper, he published his own paper, getting a printer, finding advertisers, finding reporters and editing their inputs. Needless to say, his newspaper accepted his editorials. He published the newspaper until the university newspaper accepted him as one of their regular columnists.

There is no great constitutional question at all here. It all comes down to who controlls the newspaper, and all to often that comes down to who puts up the money. If you do not like the conditions the controlling agency enforces, go do your own thing. Just do not expect the freedom of the press to provide you with the print forum you want just because you want it.

marty a, freedom, at 9:04 pm EDT on July 5, 2005

Marty has it wrong

Marty, please see splc.org. You need to be better informed about constitutional protections for student journalists. The public university should not have the power to censor, as this would be the government censoring the press. The model of the privately owned newspaper does not apply to the public university student newspaper regarding ownership and control. Your model of control does apply to university public relations newsletters and the like, but not student newspapers.

Allan Lovelace, Newspaper adviser, at 7:37 pm EDT on July 6, 2005

Marty, SHOW ME THE MONEY!!

Marty:Your common-sense approach is just that-common. Like a common misconception, though, it is all too easy to believe. However, it does not require a university education to ascertain that university-imposed MANDATORY FEES, such as those which fund the student newspapers being discussed here, are taxpayer monies, collected by the university to be used, as provided for by law, to provide services to the students. One of those services is a ’student-run’ newspaper. Students pay a fee to have the opportunity to voice their views. Since these fees cannot be waived, they represent an additional ‘tax’ upon the student body at large, (which is a part of the public). Now, since a tax by legal definition is collected to be used to provide a service, it cannot by any stretch of the imagination make sense that your child would willingly pay this tax, be denied the benefit of the service to be provided, and find that okay. The university has an obligation here of honor, not just one of law; to serve the interests of its clients, the students. Lest any of us forget, there IS a legally-binding business relationship here, because a contract is signed whenever a student enrolls. Because of the nature of the law regarding contracts, anytime one party promises or ‘contracts’ to perform some service, and fails to do so, they are in breach of contract, plain and simple. If a student managed to graduate without paying up, rest assured, no university in the country would grant that degree until the bill got paid, and no court would force them to! Litigation might ensue, but the university would prevail by virtue of the contractual nature of the relationship. It is a simple fact that is being overlooked, probably because the Constitutional issues are much more significant, legally speaking, to say the least. However, it is nonetheless a legitimate way to view this problem, and one that can be followed up on after the Constitutional questions are dealt with. After all, the contract in dispute in this case is our Constitution and our Bill of Rights! This does not in any way diminish the perversity of certain legal decisions, the corruption and the propensity for legislation that seems to permeate the judicial system in our country, but it does go a long way towards showing that “Power corrupts: absolute power tends to corrupt absolutely". This is why it is critical for everyone to get an education: if you don’t know your rights you are effectively barred from fighting for them. You as a taxpayer have a right to see that the student fees (taxes) paid into the university’s coffers by your progeny are not used for purposes unintended, such as the flat-out supression of the rights of those who pay those taxes. “He who pays the piper calls the tune"? Only when him who pays insists on it!

David, Chief Instigator (that’s right, Instigator) at http://www.govst.edu, at 6:55 am EDT on July 15, 2005

Public Univ Attempte to Censor Independent Newspaper

I founded a new Independent Campus Newspaper, and since, university admin has been bouncing off the wall.

My university is dangling my degree in front of my face, demaning my silence, after reporting violent acts, election tampering, many aditional acts of misconduct and deception.

I’m sure they’re reading this article.

If any one has some suggestions, I can use them.

Reserved, Editor-in-Chief, Independent Student News, at 10:05 am EST on December 19, 2005

Advertisement

 Jobs Related to The Case of the Censored Newspaper

or search for jobs directly.

Assistant Professor, Psychology
Winston-Salem State University

Winston-Salem State University and the College of Arts and Sciences invite applications for a tenure-track Assistant ... see job

Assistant Professor
Ithaca College

Job Description: Ithaca College invites applications for a full-time tenure-eligible computer ... see job

Assistant/Associate Professor in Health & Human Performance
University of Texas, Brownsville

Specialization in Physical Education and/or Health Education [ Position Number: FY 07-38 ] Reports to: Chairperson of Health ... see job

Admissions Representative
Corinthian Colleges

Everest College, a respected member of the Corinthian Colleges’ network of schools, is dedicated to helping students ... see job

Faculty Nursing/Denton — 7NU05
Texas Woman’s University

JOB DESCRIPTION: Tenure track faculty member needed to teach across the RN-BS/MS, MS, PhD and or/DNP nursing programs to ... see job

Adjunct Faculty — Gerontology
Harrisburg Area Community College

HACC, a leader in education in Central PA, is a comprehensive, multi-campus community college, providing quality instruction ... see job

Associate Professor or Professor — Philosophy of Science
University of Minnesota, Twin Cities

The University of Minnesota is a premier employer and a talent magnet attracting leading faculty and staff from around the ... see job

Distance Education Coordinator
University of North Carolina, Chapel Hill

The Distance Education Coordinator will be responsible for (1) supporting and assisting schools and units throughout the ... see job

Surgical Technologist Instructor
Concorde Career Colleges, Inc.

Our work environment is dynamic. Our people are valued. A rewarding career awaits you at Concorde! Concorde Career Colleges, ... see job

Adjunct Faculty, Dept. of Management (Part-Time)
Bridgewater State College, MA

BSC is one of the largest and most exciting centers for higher education in the commonwealth. Here in our idyllic setting, ... see job