Same Time, Next Year: Tenth Circuit Has Chance to Break Away From Hosty

About this time last year, the U.S. Court of Appeals for the Seventh Circuit handed down its widely debated Hosty v. Carter decision, which allowed university officials in Illinois, Indiana, and Wisconsin to censor student publications for publishing material they disliked. Hosty severely curtailed the free press rights of student journalists in the Seventh Circuit and provided fodder for the debate of whether other appellate circuits would follow the Seventh Circuit’s poor example.

Now, the Student Press Law Center (SPLC) reports that the first college press case to reach appellate review since last year’s troublesome Hosty decision will go before the Tenth Circuit Court of Appeals in November.

The Lane v. Simon case, in which FIRE joined the amicus brief to the Tenth Circuit, involves the dismissal of Professor Ron Johnson as long-time adviser to Kansas State University’s (KSU) student newspaper, The Collegian. After university administrators conducted a “content analysis” of the paper and determined the publication lacked “diversity content,” Johnson was reassigned from his post as faculty adviser in 2004.

KSU officials readily admitted that the school’s own policies prohibit a publications adviser from interfering with content decisions, leaving complete editorial control in the hands of the student journalists at The Collegian. The school further maintained, however, that Johnson was dismissed as adviser due to the “general quality of the newspaper,” not because of any “substantive expressions” of content. The school argued that only “substantive expressions” deserve protection from the First Amendment—a claim that undermines the very objective of the freedom of speech clause. If the court were to adopt that rationale, the government could place any content-based restrictions on media it wanted to, so long as it could argue that it did so based on the “general quality” of the publication and not its specific substantive material. It would surely not take long for such a “loophole” to be abused.

The problem with KSU’s claim is that—noble as it may sound, with its discussion of “quality”—it masks plain old, garden variety censorship. The dismissal or suspension of faculty advisers to student publications is widely recognized as an attempt at administrative control. FIRE has seen cases like this time and time again, including most recently at Le Moyne College and Ocean County College, and they have become so common that organizations like the Society for Professional Journalists and the Association for Education in Journalism and Mass Communication have adopted resolutions denouncing the indirect censorship of the student press through the removal of advisers. College Media Advisers also issued an official censure of Le Moyne College when it attempted to dismiss its student newspaper adviser for not exercising more control over the paper.

While Hosty remains persuasive authority for other appellate courts around the country, FIRE will keep its watchful eye on this Tenth Circuit case and hopes that the court will reject Hosty’s restrictive take on collegiate student press freedom.