Supreme Court Denies Appeal in ‘Hosty v. Carter’

FIRE is gravely disappointed that the Supreme Court has decided not to grant cert in the case of Hosty v. Carter.  As the Student Press Law Center (SPLC) reports:

February 21, 2006

WASHINGTON, D.C.—The U.S. Supreme Court announced this morning that it will not hear a case that questioned the authority of administrators at an Illinois university to censor a student newspaper that published articles critical of the school.

The Court rejected a request by former student journalists at Governors State University in Illinois to review a lower court decision that could give university officials in three Midwestern states the authority to censor some college student speech based on a legal standard that had previously been applied only to high school and elementary school students and teachers.

As is its usual practice when ruling on whether or not to accept a case, the Court did not issue a written opinion to explain its decision.

The Court’s ruling lets stand a June 2005 decision by the 7th U.S. Circuit Court of Appeals that could open the door to providing university administrators with authority to censor school-sponsored speech by public college students and faculty, including speech in some student newspapers, at schools in Illinois, Indiana and Wisconsin.

As I wrote in a column for the Boston Globe earlier last year:

The summer of 2005 will be remembered as a rough season for student rights. The worst legal decision of the summer was Hosty v. Carter. In Hosty, the Seventh Circuit Court of Appeals ruled that a dean who demanded prepublication review of a student newspaper at Governors’ State University in Illinois—because the administration did not like its content—is not liable for her brazen act of censorship. If this were all the decision said, it would still be wrong; legal scholars have long understood that free speech means, at a minimum, that state officials cannot require publications to get state approval before publishing. Then, perhaps unsatisfied with ignoring only one principle of First Amendment law, the court decided that Hazelwood v. Kuhlmeier (1988), in which the Supreme Court ruled that a public high school had substantial control over the content of a student newspaper produced as part of a journalism class, also applied to universities.

Applying Hazelwood to colleges ignores more than 30 years of court decisions granting strong protection to collegiate student media. It disregards the fact that 99 percent of college students are adults, as opposed to high school, where most are minors. It discredits the special importance of academic freedom at universities. It dismisses the idea that students’ speech should not be as restricted in extracurriculars as it is in the classroom. And in Hosty, it discounts the fact the college contractually promised not to censor the paper!

Furthermore, the opinion held that student groups could be considered arms of the administration merely because they receive student fees. This contradicts the Supreme Court’s decision in Board of Regents v. Southworth (2000), which ruled that student fees are not considered “the university’s money” to fund only viewpoints it likes. Whereas student newspapers could once assume they had independence and strong free speech rights, now the status of any group that receives any benefit from its university (likely all of them) is in question. If student groups’ rights are no longer presumed, and the only way students can be sure their group has rights is to prove that in court, students’ rights mean little indeed.

The Supreme Court was wrong to deny cert in this case and it will be up to groups like FIRE and the SPLC to clean up the mess left in the wake of this unwise decision.  We are up to the challenge but saddened that the Supreme Court shrank from the opportunity to vindicate the rights of the student media as well as all college and university students.