Whitewash U.

by John Giuffo
August 2nd, 2005
The Village Voice

Imagine for a moment that you are a university administrator in charge of maintaining your school's public image, when one day you are given the power to control the content of your college's newspaper. Not only are you given editorial control, mind you, but prior review editorial control. Don't like that shrill exposé of cafeteria health violations? Best to take that one out before the issue goes to print. Has a colleague been identified in the paper as having improper photos on his office computer? That would be embarrassing—take it out too.

Well, university administrators, dream no more. That power is yours, thanks to the Seventh Circuit Court of Appeals. Until now, college journalists enjoyed the same First Amendment freedoms as their professional counterparts. But in a case watched closely by press experts, the Seventh Circuit ruled, on June 20 in Hosty v. Carter, for defendant and Governors State University dean Patricia Carter, who in October 2000 told the printer for the school newspaper The Innovator (staffed by grad students and undergrads) not to run off any more issues until she had seen them first. (The paper had published stories about lackluster professors and what it felt was an antagonistic administration.) Editors Margaret Hosty and Jeni Porche, both graduate students at the Illinois public university at the time, and writer Steven Barba, said that amounted to unconstitutional censorship and took Carter to court.

It's a convoluted case, with conflicting opinions from the judges, a vacated decision, and a long backstory. It's the sort of a case that, because of the subtlety of ceding publishing authority to administrators, can easily escape notice but nevertheless have a profound impact on press freedoms. "We haven't seen any evidence that anyone has attempted to use that authority," says Mark Goodman, executive director of the Arlington, Virginia–based Student Press Law Center (SPLC). "But in terms of what impact this decision will have on the law, I'm very concerned about it," says Goodman. His organization filed an amicus brief in support of the students' position and assisted them in other ways. "The fact that seven appellate court judges said in essence college students can be treated like teenagers is very disturbing."

When Hosty, Porche, and Barba first filed suit, a district court allowed the case to go forward against Carter, and the university appealed to the Seventh Circuit, where a three-judge panel ruled in April 2003 again for the plaintiffs. The court found that "Dean Carter's contention that she could not reasonably have known that it was illegal to order the Innovator's printer to halt further publication of the newspaper or to require prior approval of the newspaper's content defies existing, well-established law." But that decision was soon vacated, and the case was reheard by the entire 11-judge panel. The panel dismissed, by a vote of 7-4, the students' claims of constitutional violations by Carter, who argued that she should be granted qualified immunity from being sued, due to the fact that the law is not clearly established. The four dissenting judges, however, held that "[t]he majority's conclusion flows from an incorrect premise—that there is no legal distinction between college and high school students"—before going on to cite precedents that forbid prior review of student media.

Speaking for Illinois attorney general Lisa Madigan, who argued the case for the university, Solicitor General Gary Feinerman says that "Madigan strongly supports the free speech rights of college students," adding that the decision "defines what the rules are, and that's a good thing."

In coming to its decision, the Seventh Circuit essentially found that college students have no more right to make editorial decisions without administrative input than do high schoolers. The Supreme Court decided, in 1998's Hazelwood School District v. Kuhlmeier, that high school students have fewer First Amendment rights because they are younger, more emotionally immature, and more likely to be influenced by administrators' views.

It's no surprise, then, that when high school students are now asked about journalistic freedoms, a frighteningly high percentage of them distrust a free press. Here are a couple of facts to hasten curmudgeonhood: According to the John S. and James L. Knight Foundation, which released in January a study in conjunction with the University of Connecticut that analyzed the opinions of more than 100,000 high school students, about three-fourths of all high school students are ambivalent about the First Amendment or admit they take it for granted. More than one-third of all students polled said the First Amendment "goes too far." And only half of all high school students who do not take part in student media activities believe that journalists should be able to pursue controversial stories without governmental approval. This should be terrifying to anyone interested in the free exchange of ideas or in the press's ability to report on government.

"The Hazelwood decision has created a generation of young people that believe it is appropriate for the government to be dictating what is and isn't news," argues Goodman. "The irony is that most high school students don't even know what the Hazelwood decision is, and I think it definitely has had an impact on them."

Goodman says that Hosty, Porche, and Barba, who couldn't afford a lawyer and represented themselves before the Seventh Circuit Court, are planning an appeal to the Supreme Court. Hosty tells the Voice that Lee Levine, a media lawyer who has argued before the nation's highest court, will represent the plaintiffs in their petition to the Supreme Court and in writing the necessary briefs and arguing before the court, should the case receive a hearing.

If the court declines to hear the case, the Seventh Circuit's decision will stand, and Goodman's worry is that it could set a nationwide precedent. "It's kind of like encouragement for schools in other parts of the country that want to censor and are looking for some validation," he says.

In an effort to prevent that, the SPLC is spearheading a campaign to get college journalists to pressure their administrators to issue a statement recognizing that college newspapers are public forums. "If they refuse to do that, [to] publicize that," says Goodman, "we're going to be publishing all the names of those colleges and universities in the Seventh Circuit that haven't designated student media as a public forum, and we'll send the names of those schools to high school journalists and journalism groups to actively discourage them from attending those schools."

Call it the sunshine attack. Press freedoms often die quiet, unnoticed deaths. Other than going to the Supreme Court, the only remedy is to make such attacks on press freedoms embarrassingly public, argues Goodman. "We're seeing more college administrators who aren't embarrassed to be censorious, who seem to think it's appropriate and educationally defensible," he says. "Things have definitely gotten worse."