In-depth: Words Left Unsaid
October 27, 2005
The Badger Herald (UW-Madison)
The Hosty v. Carter ruling has come under fire in recent months from several First Amendment rights groups and media watchdogs that found the ruling both shocking and appalling.
This week, a coalition of several major groups headed by the Virginia-based Student Press Law Center (SPLC), delivered their friend-of-the-court, or amicus, brief to the Supreme Court.
The coalition group hopes the high court will reverse the decision of the U.S. Seventh Circuit Court of Appeals, which gave Governors State University in Illinois the right to remove editorials that had criticized the administration.
The Seventh Circuit includes Indiana, Illinois and Wisconsin.
Though the Supreme Court rejects the majority of cases it is asked to hear, coalition members said they hoped the Hosty case would be heard.
Hosty v. Carter, a history
The demand came in response to unhappiness with content, which had been critical of the GSU administration.
According to the decision of a three-judge U.S. Seventh Circuit Court of Appeals panel, students had begun to tackle “meatier fare,” rather than the reason why the apostrophe was missing from the university’s name. Innovator editorials had begun to attack the integrity of administrators.
“[Administrators] issued statements accusing the Innovator of irresponsible and defamatory journalism,” the decision said. “When the Innovator declined to accept the administration’s view of its duties … the paper refused to retract factual statements that the administration deemed false.”
“I honestly just think [The Innovator] was like a gnat, just this little tiny thing,” said SPLC lawyer and legal consultant Mike Hiestand. “They were buzzing around and irritating people.”
This prior review was not accepted by then Innovator editor-in-chief Margaret Hosty. Hosty and others filed suit against the university in 2000 for barring the newspaper’s First Amendment rights.
Both the district court and the three-judge panel of the U.S. Seventh Circuit Court of Appeals opposed Carter’s argument; however, Carter requested another hearing of the entire 11-judge panel of the Seventh Circuit. The full panel reversed the earlier decisions, citing a 1988 Supreme Court case, Hazelwood v. Kuhlmeier.
Hazelwood v. Kuhlmeier
In 1988’s Hazelwood v. Kuhlmeier Supreme Court decision, lawyers were able to successfully argue high school administrators had the right to censor their school newspapers after students had published articles on controversial subjects.
The articles which came into question described students’ experiences with pregnancy, and another article discussed the impact of divorce on school students.
“The newspaper was written and edited by a journalism class, as part of the school’s curriculum,” according to a Supreme Court summary.
Afraid pregnant students would be identified by the article, which included references to sexual activity and birth control, the school’s principal directed the pages be withheld from printing.
Students, unhappy with the decision, pursued the case through several court levels until the high court decided high school administrators still had the right to censor. Censorship was granted on the basis that not all students were at an equal maturity level. High schools were given the right to monitor publications in order to protect students from mature content.
However, many argue the Hazelwood decision has little to do with the Hosty case.
Coalition Disagreement with Decision
The use of Hazelwood in regards to a college publication has put several groups up in arms, claiming the precedent has been used incorrectly. Individual rights groups, journalists, journalism educators and student journalists have now filed three separate amicus briefs.
Among the groups, the Philadelphia-based Foundation for Individual Rights in Education stated the Hosty case must be taken by the U.S. Supreme Court.
“Most people see the ideal newspaper as being a credible and independent source of information or opinion,” said FIRE program manager Robert Shibley. “When administrators censor a student newspaper, they make it impossible for this standard to be reached, and make the newspaper into a mockery of what free press should be.”
Amongst the many disagreements legal protestors have had with the case, many point to the difference between college journalism and high school journalism.
Shibley said there were many differences between the two. College newspapers are often funded through student segregated fees, not directly by a university. In addition, college students are expected to partake in a far higher level of intellectual debate and development.
“It is preposterous for an adult of voting age to be subject to censorship on, for instance, political issues,” Shibley said. “If some arguments cannot even be advanced, how can we ever hope to uncover the truth?”
University of Wisconsin political science professor Donald Downs agreed there was a significant difference between the effects of high school and college journalism since students in high school are not held to the same adult standards.
“Even John Stuart Mill would be open to that,” Downs said. “[High school students] are not of age yet.”
In addition, objectors worry over how the Hosty case could be used against other programs if it is not overturned in the Supreme Court.
“It doesn’t just apply to student media, but to all student speech,” Heistand said. “This standard will affect the ability to invite speakers, schools will be able to say [a speaker] is inconsistent.”
Downs, whose book “Restoring Free Speech and Liberty on Campus” was used as support in FIRE’s amicus brief, said not all public forums would necessarily be affected due to other court cases, which might conflict with the Hosty decision.
“It can be applied other things like public forums,” Downs said. “If that’s true, than you’ve got even more of a problem.”
Though the case focuses around the functionality of a student newspaper, many emphasized how the functionality of a university would be hindered.
“You have to ask yourself, what’s the mission of a university,” Hiestand said. “[The newspaper] is kind of the pinnacle of where free speech can take place.”
Perhaps more troubling for Hiestand and others was universities’ apparent lack of First Amendment knowledge.
“It’s pretty scary really, on the part of some administrators, how they don’t really know, really don’t care,” Hiestand said.
Still, the sudden presence of the Hosty case may have some beneficial consequences for college students.
“It is certainly lamentable that a university was willing to fight so hard for the right to arbitrarily censor students that they were willing to defend it in a serious of courts of law,” Shibley said. “However, if the Supreme Court does take the case and finds in favor of press freedom for college students, all college students will be much better off.”
Governors State University officials did not return phone calls regarding this article.
- In-depth: Words Left Unsaid, PDF, 15.4 KB , The Badger Herald (UW-Madison)