When Freedom Isn't Freedom at All

February 22, 2006

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.

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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