Federal Court Ruling Recognizes First Amendment Protection for College Newspapers under Illinois State Law
September 21, 2010
by Azhar Majeed
A lawsuit filed by the former faculty advisor and the former student editor of a campus newspaper at Chicago State University (CSU), alleging violations of the First Amendment by the CSU administration, is still alive after a federal court ruled on the case last week.
As Inside Higher Ed reported, the federal district court denied both the plaintiffs' and the defendant administrators' motions for summary judgment, citing the need to resolve material disputes of facts. More importantly, in handing down its decision, the court expounded on the free speech protections afforded to university student newspapers under Illinois state law. Specifically, the court cited the Illinois College Campus Press Act, enacted by the state legislature following the Seventh Circuit Court of Appeals' 2005 decision in Hosty v. Carter, a case that undermined the expressive rights of student journalists on college campuses and has been strongly criticized by FIRE and other First Amendment advocates.
Though the court's opinion provides a larger picture of the dispute at CSU, Inside Higher Ed summarizes the pertinent facts of the case as follows:
Last week's ruling came in a suit by the former faculty adviser and the former student editor of Tempo, the student newspaper at Chicago State University. They charge that the university fired the adviser and interfered with the legitimate work of the editor because of the administration's anger over critical articles published in Tempo. The university has maintained that it did nothing wrong and that the adviser was dismissed for other reasons. But the record in the case makes clear that the university's administrators were angry about what the newspaper was publishing and wanted to review articles prior to publication—and that the student journalists, with their adviser's backing, resisted.
The facts of the case as stated in the court's opinion do not paint a pretty picture of the CSU administration's handling of the Tempo newspaper and the rights of its advisor and staff. The opinion recounts that the Tempo's criticism of the CSU administration generated "substantial controversy on campus" and that issues of the newspaper "began being stolen from their racks," with "whole stacks of newspapers ... seemingly disappear[ing] before students had the opportunity to read them." At one point, the paper's advisor, Gerian Steven Moore, was reassigned from his position and placed under the direct supervision of Patricia Arnold, CSU's Executive Director of University Relations, who as the court understood it "held a non-academic position that essentially involved managing and overseeing the University's public relations efforts." If it seems objectionable to make the faculty advisor to an independent student newspaper have to answer to a public relations administrator with no academic role at the university, that's because it is.
The court further recounts that Arnold sought to engage in pre-publication review of the newspaper's editorial content. Responding to Moore's point that the administration did not have the "right to dictate the terms of how or what [the students wrote,] even if it's grammatically incorrect," Arnold said, "Well, you can't just let the students do anything." Arnold ultimately made the decision to recommend to the university's president that Moore be fired for what she claims were legitimate reasons tied to Moore's performance in his reassigned position and unrelated to his role as the Tempo's advisor. While the merits of these arguments will be resolved as the case proceeds beyond the summary judgment stage, what we do know is that the university president promptly fired Moore following Arnold's recommendation.
The case will be a very interesting one to follow as it proceeds and as the factual disputes that led the court to reject both sides' motions for summary judgment are cleared up. For now, though, the court's recognition of the importance of affording strong First Amendment protections to independent student newspapers at the college level is encouraging.
FIRE followers may remember that in Hosty v. Carter, the Seventh Circuit held that public colleges and universities have many of the same rights as schools in lower levels of education to regulate the student press. Hosty applied the Supreme Court's standard from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), a high school case which, as the CSU court summarized it, "permits a school to regulate 'the speech for which it also pays' when its 'actions are reasonably related to legitimate pedagogical concerns.'" The decision was such an affront to the speech rights of student journalists at colleges and universities, who are entitled to greater speech protections than their high school counterparts—and all the more so when they work for independent, non-curricular newspapers—that FIRE issued a policy statement directly in response to Hosty.
Thankfully, in last week's decision, the federal court in the CSU case recognized the primacy of the Illinois College Campus Press Act in setting the standard for the rights of college student journalists in the state of Illinois and doing away with the harm created by the Hosty decision. The court summed up the Act as follows:
That statute designates that "[a]ll campus media produced primarily by students at a State-sponsored institution of higher learning is a public forum for expression by the student journalists and editors at the particular institution." ... Such media outlets, the Act states, are not to be subject to prior review by university officials, regardless of whether the outlets receive financial support from the university.... Under the Act, faculty advisors may teach student journalists "professional standards of grammar and journalism," but the students themselves are to be solely "responsible for determining the news, opinions, feature content, and advertising content of campus media." ... By the same token, the Act prohibits any retaliatory act against a faculty advisor who refuses to "suppress [the] protected free expression rights of collegiate student journalists." [Internal citations omitted.]
Given the Act's strong protections for student newspapers and their advisors, the court wisely concluded:
In light of the Hosty decision, the Illinois legislature's intent to designate student publications as public forums that are free from censorship is particularly clear.... In short, by adopting the Illinois College Campus Press Act, the state voluntarily ceded any ability it may have had to control the content of a student publication such as Tempo. As a result, the First Amendment prohibits University officials from taking any "adverse action against [Tempo or its staff], including engaging in conduct designed to chill the speech contained in future editions, on the basis of the views expressed in the publication unless such action served a compelling government interest." ... Strict constitutional scrutiny, therefore, applies to any effort by the University to restrict student speech in Tempo's pages. [Internal citations omitted.]
I am pleased to see the court reach this conclusion and interpret the act of the state legislature as it was surely intended to be applied. I hope that courts in Illinois facing similar situations in the future will likewise uphold robust protections for campus newspapers and avoid the potential harm caused by the Hosty decision. In the meantime, we will report on future developments in the CSU lawsuit.