‘Inside Higher Ed’ on ‘Hosty v. Carter’

As Torch readers know, the U.S. Supreme Court has decided not to hear the appeal in Hosty v. Carter, a crucially important student free speech case. Inside Higher Education has published a great article by David Epstein on the Court’s decision:

In [Hosty], the court found that Hazelwood School District v. Kuhlmeier, which held that a high school principal had the right to regulate a school paper, applies to publications that colleges put money toward, too. The Seventh Circuit decision called the Innovator, which was paid for with student activities fees, “a subsidized” newspaper, and said that since the university pays for it, the university is the publisher and can rightfully regulate it.

Mark Goodman, executive director of the Student Press Law Center, said that “to suggest an adult on a college campus can be treated the same way as a 14-year-old can in high school … signals the potential beginning of major erosion of college and university First Amendment rights.” Goodman added that the Supreme Court has been protective of free expression on campus for the last 30 years, beginning with Healy v. James in 1972, when the court defended the college environment as “peculiarly the ‘marketplace of ideas,’ ” in need of uninhibited expression.

Greg Lukianoff, interim president of the Foundation for Individual Rights in Education, called the ruling “infuriating,” and said that the Innovator was not a subsidized publication. In the 2000 decision known as Board of Regents of the University of Wisconsin System v. Southworth, he noted, the Supreme Court determined that student activities fees are student money, not university money.

FIRE elaborated on this point in our amicus brief, and FIRE co-founder Harvey Silverglate made this point dramatically in a column for the National Law Journal. In that column Harvey wrote that due to the Hosty decision “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.”

The Inside Higher Education piece concluded:

Goodman added that student publications, which have a tradition of operating independently, he said, are less likely to be hurt in most cases than “little student organizations that want to bring a controversial speaker. The school can say ‘you’re not a public forum.’”

Lukianoff was less sanguine about the ramifications even for traditional student papers. “If prior restraint, the most primitive form of censorship, is not enough to pierce qualified immunity, nothing is,” he said. “With a ruling this expansive, it will be used to justify acts of censorship until it is overturned. I feel like the Supreme Court has done college students a great disservice by choosing not to take this case. I think it will lead to a great deal of additional litigation.” After 2000, the Innovator was never published again.

Indeed. I’m not the least bit sanguine about this decision. I believe it is a potential disaster for both the student media and for students in general. In denying the appeal the Supreme Court has only delayed these issues for another day and another case.