From beginning to end, the 7th U.S. Circuit Court of Appeals’ opinion in Hosty v. Carter is a curious read.
In its opening paragraph, for example, the court does not begin by acknowledging the important First Amendment issues at stake in the case. Nor does it express concern for the rights of the student journalists at Governors State University, who saw a dean of student affairs censor the university’s newspaper, the Innovator, out of existence.
Rather, the court begins its opinion by patronizingly describing the Innovator’s content. “None of the articles concerned the apostrophe missing from the University’s name,” the court writes. “Instead the students tackled meatier fare, such as its decision not to renew the teaching contract of ... the paper’s faculty adviser.”
From there, the court proceeds through a confusing analysis of the First Amendment rights of college journalists and ultimately concludes that, while the dean might have violated the students’ rights by interfering in the newspaper’s publication, she could not be punished for doing so. Along the way, the court applies the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier (1988) in a manner that appears designed primarily to antagonize the college student press.
In Hazelwood, the Supreme Court held that high school administrators constitutionally could exercise editorial control over student newspapers published as part of a journalism curriculum, as long as that control was reasonably related to legitimate educational concerns. In doing so, the Court refused to extend the protections for student expression it adopted in Tinker v. Des Moines Independent Community School District (1969) — protections that prohibit regulation of student speech unless the speech is likely to disrupt schoolwork or discipline — to student speech that occurs in a school-sponsored curricular or extracurricular activity.
In a footnote, the Court in Hazelwood noted it was not deciding whether the substantial deference afforded to high school educators in determining the reasonableness of an educational concern also should be afforded to college and university administrators.
Since Hazelwood was decided, student-press advocates have feared it would be extended to allow censorship of college media. Those fears appeared to have been relieved in 2003 when the three-judge panel of the 7th Circuit that initially heard the appeal in Hosty emphatically rejected the dean’s argument that Hazelwood allowed her to censor the student newspaper. The full court’s ruling superceding the panel decision naturally causes those fears to resurface, particularly because the court went out of its way to proclaim that “Hazelwood’s framework applies to subsidized student newspapers at colleges as well as elementary and secondary schools.”
The 7th Circuit’s proclamation is puzzling, however, primarily because the court never clearly identifies what it considers Hazelwood’s “framework” to be. Moreover, the court aggressively cites concepts from Hazelwood that it later concedes have little relevance to most college newspapers.
Having announced it was applying Hazelwood, the court in Hosty first analyzed whether the Innovator was a public forum. Under long-established First Amendment principles, speech in a public forum (such as on a sidewalk, public park or town square open to all) cannot be regulated on the basis of its content. As the court recognized, student publications almost never are open to all, as someone — student or adult — must choose and edit content. The court therefore concluded the Innovator was not a public forum, a conclusion neither surprising nor troubling.
Unfortunately, in reaching that conclusion the court approached the issue as if only two possibilities existed — that a student newspaper either is a public forum in which no regulation is allowed, or it is a non-public forum in which all regulation related to legitimate educational concerns is permitted. Having excluded the first possibility in almost all cases, the court spoke as though college newspapers enjoyed no more protection than high school publications prepared as part of a class assignment. The court even went so far as to assert that the line between high school and college newspapers in many cases is not bright, and to suggest that college administrators in those cases are entitled to substantial deference in regulating the content of student newspapers.
Having seemingly extended Hazelwood to college campuses, the court then backtracked, acknowledging that many colleges and universities subsidize student newspapers but empower student editors to determine the newspapers’ content. In those cases, the court said, the forum is neither public nor non-public but is instead a “designated” or “limited-purpose” public forum. In such a forum, the court held, college administrators may not interfere in the publication of a student newspaper. At least in these cases, the court finally appeared to concede, Hazelwood does not really apply after all.
Although it wondered whether the Innovator’s faculty adviser in fact could exercise some control over the newspaper (rather than just offer advice, as the students claimed), the 7th Circuit recognized that the procedural posture of the case required it to construe all facts in the students’ favor. (The case was up on the dean's motion for summary judgment, meaning the dean was asking the court to grant her judgment as a matter of law, before a trial. Thus the court was not making weighing credibility or evidence. In such cases, to be fair to the non-moving party, the court construes all facts in its favor.) The court therefore held the Innovator to be a designated public forum that should have been free from the dean’s interference.
In a final curious twist, the court nevertheless dismissed the case, stating that because the dean’s conduct was not clearly unlawful, she could not be liable for damages. The dean, the court said, could not be expected to know with certainty how a court would apply Hazelwood in this case or that a court would determine the Innovator to be a designated public forum.
Of all the conclusions reached in the 7-4 ruling, the majority’s holding that the dean’s conduct was not clearly unlawful is perhaps the most troubling. As the dissenting judges pointed out, each court that had addressed a similar issue — before and after Hazelwood — had ruled against the college administrator who had censored a student publication. Moreover, the dissenting judges said, the dean admitted in the trial court that she knew the Innovator served as a public forum within the exclusive editorial control of student editors. Under these facts, the dissent argued, the dean could not claim to have acted reasonably or in good faith.
In light of all its curiosities, the legacy of Hosty is difficult to predict. The court’s recognition of the fact that many college publications are designated public forums, however, fortunately makes it unlikely that Hosty will spark a torrent of censorship on university campuses.