FIRE Disappointed with Supreme Court’s Refusal to Take ‘Hosty v. Carter’

The Foundation for Individual Rights in Education (FIRE) is deeply disappointed that the U.S. Supreme Court has decided not to hear an appeal of the U.S. Court of Appeals for the Seventh Circuit’s opinion in Hosty v. Carter, leaving student newspapers at public universities in Illinois, Indiana, and Wisconsin vulnerable to administrative censorship.

“Hosty v. Carter is simply the most harmful Court of Appeals decision regarding student freedom of speech in higher education to come down in a generation,” stated FIRE Interim President Greg Lukianoff. “The Supreme Court passed up an important opportunity to vindicate student rights and restore clarity to the law.”

In Hosty v. Carter, the Seventh Circuit refused to hold liable a college administrator at Governors State University in Illinois who censored a student newspaper that was highly critical of her administration. Most disturbingly, the court chose to apply Hazelwood v. Kuhlmeier, a Supreme Court decision allowing prior review of certain high school newspapers, to student fee–funded college media. This directly contradicts two other Supreme Court decisions by holding that a student paper or group could potentially be controlled by the university merely because for receiving funding from mandatory student fees that are considered to belong to the student body, not the university. FIRE released a statement in September 2005 explaining its opposition to the circuit court’s decision.

“Unfortunately, the inescapable message of this decision is that college students—nearly all of them adults—should have the same level of press freedom as high school freshmen in a journalism class,” remarked Lukianoff. “Neither FIRE nor anyone else should accept that those who may vote and fight for their country cannot operate a college newspaper without oversight from state employees.”

Students in Illinois, Indiana, and Wisconsin, however, are not the only ones who are likely to suffer from the effects of the Hosty decision. Colleges and universities that choose to exercise control over student newspapers will face an increased threat of being held responsible in potential libel or other lawsuits against those newspapers.

“With control comes liability,” noted Lukianoff. “Administrators who claim the right to censor are likely to have a hard time explaining why they should not be held responsible for libelous statements in the paper that they could have removed. Considering the deep pockets of state universities, more such lawsuits are likely to be filed, as well. Despite the Hosty opinion, universities would be wise to let their student presses remain independent.”

Lukianoff concluded, “While FIRE normally accepts courts’ interpretations of First Amendment freedoms, we will continue to argue that this case was wrongly decided. Our commitment to freedom requires no less.”