Encouraging News in ‘Hosty v. Carter’

As loyal Torch readers know, FIRE is at war with the Seventh Circuit Court of Appeals’ dangerous opinion in Hosty v. Carter. So far, both FIRE cofounder Harvey Silverglate and I have written op-eds condemning it, FIRE has issued a policy statement explaining why it was such a dangerous opinion, and two weeks ago we filed an amicus brief joined by nearly a dozen groups requesting that the Supreme Court review and overturn the decision. The threat this opinion poses to campus freedoms can hardly be overstated. As Harvey wrote:

Independent college journalism may soon be a relic of the past—on a par with typewriters and eight-track cassette players—in at least three states, and potentially throughout the country. This past summer, the 7th U.S. Circuit Court of Appeals, which presides over Illinois, Wisconsin and Indiana, applied to colleges and universities the censorship rules designated years ago by the Supreme Court to govern elementary and high school journalism. The implications are far-reaching and severe: Public university administrators, seemingly more sensitive than ever to criticism, as well as to dissent against prevailing opinion, no longer have to fret. They need only designate extracurricular student newspapers "non-public forums" in order to assure themselves editorial control over all aspects of student news coverage and editorial opinion.

And we are not alone in opposing the decision: The Student Press Law Center and attorneys at Covington and Burling filed two additional briefs on behalf of dozens of groups, including journalism associations, faculty associations, and other media groups.

But no matter how much public outcry there may be against a judicial opinion, it does not change the fact that the Supreme Court grants review in only a tiny percentage of cases. On October 27, however, the Supreme Court sent a letter to the attorney for Governors State University (the public university that brazenly attempted to censor Margaret Hosty’s newspaper) that is very encouraging. A few weeks back the attorney for GSU waived its right to respond to Hosty’s cert. petition (her formal request that the Supreme Court hear her case). This was an interesting and somewhat unexpected move. It seemed to indicate that GSU or its attorney was so confident the Supreme Court would not grant the Hosty appeal that it didn’t need to argue its case.

The U.S. Supreme Court apparently disagrees. The October 27 letter states:

Although your office has waived the right to file a response to the petition for a writ of certiorari in the above case, the Court nevertheless has directed this office to request that a response be filed.

So, while it is certainly no guarantee that the Court will take the case, we apparently have gotten the Court’s attention. In the meantime, administrators out there who wish to rely on Hosty to rein in their pesky student newspapers should take notice: Hosty may not be good law for long.