The U.S. Supreme Court could define and clarify how much First Amendment protection college and university newspapers possess — if it accepts review in the highly watched case Hosty v. Carter.
In June 2005, the full panel of the 7th U.S. Circuit Court of Appeals ruled
that Patricia Carter, a dean at Governor’s State University in Illinois, was entitled to qualified immunity from a lawsuit filed by three former student journalists for The Innovator,
a student newspaper. That decision conflicted with decisions by a federal district court and a three-judge panel of the 7th Circuit.
The three students — Margaret Hosty, Jeni Porsche and Steven Barba — sued the university in January 2001, after Carter told the printer of the newspaper not to print any more issues without her review of the content. University officials were upset by several articles that were critical of various school officials.
In that decision, the Court ruled that school officials could censor school-sponsored student expression if they had a legitimate educational reason for doing so. In footnote 7, the Court in Hazelwood wrote: “We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.”
Hosty and the other students asserted that Hazelwood had no applicability to a college newspaper. However, the majority of the 7th Circuit wrote that “Hazelwood’s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools.”
The students have appealed to the Supreme Court, contending that the 7th Circuit decision “has exacerbated the recent palpable confusion in the lower courts concerning the reach of this Court’s holding in Hazelwood in a manner that threatens to restrict substantially the freedom of expression on college and university campuses throughout the nation.”
In their cert. petition,
the students argue that the 7th Circuit’s decision conflicts with the U.S. Supreme Court’s decisions in Healy v. James
(1972), which concerned whether a university could deny recognition to a controversial student political group, and Papish v. Board of Curators
(1973), which dealt with whether administrators could restrict distribution of a student newspaper they felt was indecent. In both decisions, the Supreme Court ruled against the school officials.
“The Seventh Circuit’s decision in this case cannot be reconciled with Healy and its progeny,” the student petitioners write. “The distinction that this Court has drawn between the First Amendment rights enjoyed by high school students, on the one hand, and university students, on the other, flows from the fact that the vast majority of high school students are minors, while virtually all college and university students are adults.”
The cert. petition also notes that the 7th Circuit decision conflicts with decisions in other circuits and “broadly threatens free expression at public colleges and universities.” The petition notes that some public universities have restricted student expression through speech codes and free-speech zones. According to the petitioners, the 7th Circuit decision “will surely accelerate the promulgation of such regulations across the country.”
Student-press advocates are urging the Court to take the case. “The Supreme Court in Hazelwood in a footnote delayed the time until it had to clarify whether or not its ruling extended to college and university campuses,” said Mark Goodman, executive director of the Student Press Law Center. “The Court said, ‘We need not now decide.’ Well, it’s been almost 20 years, and we’ve seen that now is the time for the Court to decide this issue. The confusion in the lower courts indicates that the time is now for the Supreme Court to clarify this issue.”
The 7th Circuit opinion “is disastrous for free speech,” remarked Greg Lukianoff, the director of legal and public advocacy for the Foundation for Individual Rights in Education in a press release. “Any group that supports student rights should join FIRE and the SPLC in trying to convince the Supreme Court to review and ultimately overturn this dangerous decision.”
“I really feel like the chances are about even that the Court will take the case,” Goodman said. “I also believe that the fact that this is a tremendously important issue increases the chances that the Court will accept the case. But, statistically the odds are against any one case being taken for review.