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Washington DC: Student Press Law Center & Others File Amicus Briefs to the Supreme Court
October 21, 2005
30 organizations, including university journalism departments and myriad student and press freedom groups, filed a total of three amicus briefs this week in support of a Petition for Writ of Certiorari to the Supreme Court to hear the case, Hosty v. Carter.
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The Student Press Law Center was joined by 15 other organizations in its amicus, or “friend of the court,” brief. In it, they argue that the 7th Circuit Court of Appeals incorrectly extended the 1988 Supreme Court case Hazelwood School District v. Kuhlmeier to state funded universities—the earlier case was originally and explicitly intended to apply only to high schools. Additionally, the brief argues that if Hosty is allowed to stand, it will have disastrous consequences for the free exchange of ideas on college campuses.
To read the Student Press Law Center’s press release on the filing, please follow this link:
Student Press Law Center’s 10/21/05 Press Release
Background
In January 2001, Governors State University students Margaret Hosty, Jeni Porche and Steven P. Barba filed the lawsuit that would become known as Hosty v. Carter. The three students had worked on the university newspaper The Innovator when Dean Patricia Carter called the printer to halt publication of the newspaper until she could read and approve the articles. The students filed suit, claiming that this act of prior restraint violated their First Amendment rights. In response, Dean Carter argued that the 1988 Supreme Court case Hazelwood School District v. Kuhlmeier – a case which has until now only applied to publicly funded high schools – gave her the right to censor the college newspaper.
A federal district court ruled on behalf of the students in 2001, and in 2003 a three-judge appellate court panel upheld the decision. (for earlier case history, see Free Speech Case in Court of Federal Appeals)
However, on June 20, 2005 the 7th Circuit Court of Appeals (Illinois, Indiana and Wisconsin) dealt a blow to free speech for college and university presses by vacating the decision of the three-judge panel and reversing the lower court ruling in Hosty v. Carter. The court based much of its opinion on a very broad reading of Hazelwood, in which high school administrators were held to a lower standard – compared to other governmental entities – when seeking to restrict the content of high school student newspapers.
Using Hazelwood as a basis for its ruling, the court then found that because The Innovator received funding from the state university, the school had a right to review its content. The paper therefore was not a “public forum,” according to the court’s analysis, and not entitled to the full protections of the 1st Amendment.
Perhaps even more troubling for the future of college press freedom is the court’s expansion of Hazelwood to apply to universities as well as high schools. Hazelwood has historically been interpreted as applying solely to state funded high-schools – in fact, the Supreme Court stated this intent explicitly in a footnote to its opinion.
In her 2005 opinion in Hosty, Judge Suzanne Conlon stated that Hazelwood “provides our starting point,” but expressed doubt about the clarity and guidance it provided in such a setting, noting that other opinions that relied upon Hazelwood may have too hastily interpreted it as inapplicable at the college level. Nonetheless, rather than applying Hazelwood with careful regard to its apparent ambiguities, Judge Conlon applied it broadly. (see pdf of decision at: http://www.ca7.uscourts.gov/tmp/N80XWKVZ.pdf)
But in a dissenting opinion Judge Terence Evans wrote, “In concluding that Hazelwood extends to a university setting, the majority applies limitations on speech that the Supreme Court created for use in the narrow circumstances of elementary and secondary education. Because these restrictions on free speech rights have no place in the world of college and graduate school, I respectfully dissent.”
Student Press Law Center director Mark Goodman expressed disappointment with the ruling in a 2004 press release and worried that the precedent could allow the administration to monitor and censor other independent student activities. (see http://www.splc.org/newsflash_archives.asp?year=2004 )
Goodman also stated in an Associated Press article, “I fear it’s just a matter of time before a university prohibits a student group from bringing an unpopular speaker to campus or showing a controversial film based on the Hosty decision… nowhere is free expression more important than on our college and university campuses where we hope to expose students to a true ‘marketplace of ideas.’ This Court has thumbed its nose at that notion.” (see http://www.firstamendmentcenter.org/news.aspx?id=15452)
Current Status
As it stands now, if state colleges and universities in the 7th Circuit wish their student presses to have full Constitutional protection, the only clear way they can ensure this is to affirmatively declare the papers to be public forums and therefore outside the daily reach of administrative censors. The Student Press Law Center has spearheaded a campaign to encourage universities to create new “public forum” policies for school newspapers.
On September 15, in response to the Hosty decision, Illinois State University became the first institution in the 7th Circuit to take this course of action: President Dr. Al Bowman signed a public statement saying, “The Daily Vidette student newspaper at Illinois State University is a designated public forum. Student editors have the authority to make all content decisions without censorship or advance approval.” This was followed by similar policy changes at the University of Illinois and the University of Southern Indiana. (for regularly updated list of schools with student press “public forum” policies, see http://splc.org/legalresearch.asp?id=91)
Meanwhile, the students at Governors State University filed a Petition for a Writ of Certiorari to the Supreme Court on September 16, 2005 arguing, among other things, that the Circuit Court’s ruling in Hosty v. Carter will threaten free expression on public college and university campuses. (for pdf of petition see http://www.splc.org/gsu/hostypetition.pdf)
In support of the Students’ Petition, 30 organizations filed a total of three Amicus briefs on October 21, 2005.
PEN USA is particularly concerned about the outcome of this case and that such a broad reading of precedent by the 7th Circuit Court will have a chilling effect on freedom of expression on college campuses. If state-funded colleges and universities are allowed to claim that their financial support of the student press allows them to restrict newspaper content, few student-run presses will be protected under the First Amendment.
For more information on this case, please see the Student Press Law Center’s Hosty information page at:
http://www.splc.org/legalresearch.asp?id=49