No Campus Censors
Prior restraint acceptable in high school doesn’t apply to university publications.
By Jane Kirtley
Jane Kirtley (firstname.lastname@example.org) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
In the 15 years since the U.S. Supreme Court ruled in Hazelwood vs. Kuhlmeier that public secondary school administrators could censor the student press as long as they had legitimate educational reasons for doing so, college-level student newspapers have contended that standard doesn't apply to them.
That's certainly what the editors at the Innovator, the student newspaper at Governors State University in University Park, Illinois, must have thought. GSU is a state school, which means it is subject to the First Amendment and can't arbitrarily impose prior restraints on free expression. Plus, the policy of the Student Communications Media Board stated that editorial staff "will determine content and format of their respective publications without censorship or advance approval." Although the Innovator had a faculty adviser, he didn't make content decisions. He just provided advice.
So it must have been a shock to Charles Richards, president of Regional Publishing Co., which prints the Innovator, when Patricia Carter, GSU's then-dean of student affairs and services, telephoned him in the fall of 2000. Carter's message: a warning that a school official must review the content of the paper before it could be printed.
That didn't sound right to Richards. But, as he wrote in a memo to the Innovator editors, he wasn't an attorney and "the final decision of handling this matter should not be left to me." Although he might not have known much about the law, Richards did know that he didn't want to risk printing the newspaper without official approval--he might not get paid.
For the student editors, the dean's call to Richards was the last straw. They filed suit in federal district court in Chicago. Their complaint, as described in court opinions, included a "litany of grievances" claiming that GSU officials had locked them out of their offices, confiscated their computers, tampered with their mail, disconnected their phones and suspended their budget, allegedly in retaliation for articles and letters to the editor that criticized the administration.
The lawsuit initially named 17 defendants, including the provost and the president. But for procedural reasons, all of them were dismissed from the suit--except Carter. She appealed, arguing that she should be granted qualified immunity because her actions didn't actually prevent the students from publishing the Innovator. And anyway, she said, she could not have been expected to know that it was contrary to First Amendment law for her to demand prior review of the paper or to stop its publication.
The 7th U.S. Circuit Court of Appeals didn't buy that. Her alleged actions, Judge Terrence Evans wrote, defied "existing, well-established law." True, the Supreme Court had said in Hazelwood that "the First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings." But the high court didn't address whether censorship acceptable at a high school would also be constitutional at a college. In subsequent cases, the Supreme Court recognized the "vital" role that exercise of First Amendment rights plays in defining the intellectual life of a university. And it specifically held that prior review of publications by administrators chills "individual thought and expression."
Other federal and state courts have repeatedly ruled that university administrators may censor the student press only if the expression would not be protected by the First Amendment--for example, if the publication was legally obscene--or would result in significant disruption on campus, the court noted. And the court found no evidence that the Innovator's content, however objectionable it might be to Carter, was not entitled to constitutional protection.
"Hazelwood's rationale...is not a good fit for students at colleges and universities," Evans wrote. Whatever justification there might be for censorship in a high school, it would be "inappropriate for a university setting," if for no other reason than the students are older. "Treating these students like 15-year-old high school students...by an unwise extension of Hazelwood would be an extreme step for us to take absent more direction from the Supreme Court," Evans concluded.
The students' case now proceeds to trial, unless Carter's motion for rehearing is granted. But let's hope she'll learn her lesson--a lesson established by 30 years of court opinions, which even Charles Richards, the printer who thought Carter's phone call "was not cricket," must have known.
In my grade book, Richards goes to the head of the class.###