Research (Vol. 54) — Don’t Press the Panic Button Yet

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An Analysis of Federal Student Press Law Cases at the University Level

By David R. Wheeler
The University of Tampa

Although some student press advocates are concerned about recent decisions curtailing the speech and press rights of college students, First Amendment protections for postsecondary school students are on much firmer footing than are protections for K-12 students.

The 1960 and 1970s: Students and Editorial Control

The birth of college press freedom began even before Tinker, when an Alabama federal district court in 1967 ruled in favor of a student editor in Dickey v. Alabama State Board of Education.  In Dickey, a disagreement over content in the student newspaper resulted in student editor Gary Dickey’s suspension from Troy State University.[1]  Dickey wrote an editorial commenting on the governor and state legislature’s insistence that no articles be published that were critical of them.  The president of the university, Dr. Frank Rose, disagreed with this policy, and Dickey wanted to write an article supporting the president.  As the court noted:

It is without controversy in this case that the basis for the denial of Dickey’s right to publish his editorial supporting Dr. Rose was a rule that had been invoked at Troy State College to the effect that there could be no editorials written in the school paper which were critical of the Governor of the State of Alabama or the Alabama Legislature. The rule did not prohibit editorials or articles of a laudatory nature concerning the Governor or the Legislature.[2]

Dickey was told by his adviser that he could not publish the column.  Instead, Dickey decided to run a blank space in place of the article with the word “censored.”  For this action, Dickey was suspended, and he subsequently took his case to federal court, claiming a violation of his First Amendment rights.  In ordering that Dickey be allowed to return to the school, the district court judge said:

State school officials cannot infringe on their students’ right of free and unrestricted expression as guaranteed by the Constitution of the United States where the exercise of such right does not materially and substantially interfere with requirements of appropriate discipline in the operation of the school.[3]

For decades after this court decision, university press freedom continued to grow.  In fact, Marc Abrams in the book Law of the Student Press calls the period after Dickey a “30-plus year winning streak for America’s college student media when contesting administrative censorship.”[4]

Indeed, three years later, a federal district court in Massachusetts ruled that Fitchburg State College could not require student newspaper content to be approved by an advisory committee before publication in the student newspaper.  In Antonelli v. Hammond, the court stated:

Because of the potentially great social value of a free student voice in an age of student awareness and unrest, it would be inconsistent with basic assumptions of First Amendment freedoms to permit a campus newspaper to be simply a vehicle for ideas the state or the college administration deems appropriate. Power to prescribe classroom curricula in state universities may not be transferred to areas not designed to be part of the curriculum.[5]

In a continuation of legal protections for university press freedom, the U.S. Court of Appeals for the Fifth Circuit ruled in the 1973 case Bazaar v. Fortune that officials at the University of Mississippi could not censor publication of “earthy language” in the school’s literary magazine.  Circuit Judge Lewis R. Morgan said:

The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned. It seems a well-established rule that once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees.[6]

The same year (1973), the U.S. Court of Appeals for the Fourth Circuit heard arguments in Joyner v. Whiting.  In this case, the Echo student newspaper at North Carolina Central University published an editorial urging students to fight efforts to integrate their historically African-American college.  The president tried to withhold funding from the newspaper, citing “standard journalistic criteria” and a lack of content showing “the full spectrum of views” on campus.  President Whiting wrote the following letter to student editor Johnnie Edward Joyner:

In my view the September 16 issue of the Campus Echo does not meet standard journalistic criteria nor does it represent fairly the full spectrum of views on this campus. Because of this, I am writing to advise that funds for the publication of additional issues will be withheld until agreement can be reached regarding the standards to which further publications will adhere. If consensus cannot be established then this University will not sponsor a campus newspaper. That portion of remaining funds collected or allocated to the Campus Echo budget will accrue to the credit of all contributing students for this school year.[7]

The president’s attorneys explained to him that because North Carolina Central University is a state institution, he could not refuse to financially support the newspaper.  Undeterred, the president halted the paper’s financial support and refunded to each student a share of the activity fee allocated to the Echo.  As a result, several issues of the Echo were published without the university’s financial support, but the paper ultimately could not survive without its subsidy from student fees.

Circuit Judge John D. Butzner rejected the university’s argument:

Fortunately, we travel through well charted waters to determine whether the permanent denial of financial support to the newspaper because of its editorial policy abridged the freedom of the press. The First Amendment is fully applicable to the states … and precedent establishes “that state colleges and universities are not enclaves immune from [its] sweep.” A college, acting “as the instrumentality of the State, may not restrict speech . . . simply because it finds the views expressed by any group to be abhorrent.” … It may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.”[8]

The 1980s and 1990s: Students and Offensive Material

As with the previous decade, the decade of the 1980s was also a positive time for press freedom advocates at the university level.  In 1983, the case Stanley v. Magrath was decided by the U.S. Court of Appeals for the Eighth Circuit.  The dispute began when the University of Minnesota’s board of regents were angered over a finals week humor issue of the student newspaper:

In June 1979 the “Finals Week” edition or “Humor Issue” of the Minnesota Daily, styled in the format of sensationalist newspapers, contained articles, advertisements, and cartoons satirizing Christ, the Roman Catholic Church, evangelical religion, public figures, numerous social, political, and ethnic groups, social customs, popular trends, and liberal ideas. In addressing these subjects, the paper frequently used scatological language and explicit and implicit references to sexual acts. There was, for example, a blasphemous “interview” with Jesus on the Cross that would offend anyone of good taste, whether with or without religion. No contention is made, however, that the newspaper met the legal definition of obscenity.[9]

In a maneuver reminiscent of the Joyner case from the previous decade, the university attempted to change the funding for the student newspaper by allowing students to request a refund of the portion of their student activity fee that went to the paper.  Circuit Judge Richard S. Arnold would not allow the university to take such action:

[The university’s] stated reason was solicitude for students who objected to buying a newspaper they did not want. Our study of the record, however, leaves us with the definite and firm conviction that this change in funding would not have occurred absent the public hue and cry that the Daily’s offensive contents provoked. Reducing the revenues available to the newspaper is therefore forbidden by the First Amendment, as made applicable to the states by the Fourteenth, and the Daily is entitled to an injunction restoring the former system of funding.[10]

The Circuit Court’s decision overturned an earlier ruling by a federal district court, which illustrates the fact that even federal courts can be uncomfortable with the First Amendment’s protection of offensive material.

In the 1996 California case Cohen v. San Bernardino Valley College, a tenured professor of English brought suit under the First Amendment after he was disciplined for violating his college’s sexual harassment policy by using profanity and discussing sex, pornography, obscenity, cannibalism and other controversial topics in a confrontational, devil’s advocate style in class.[11]  One student believed the sexual comments, some of which involved consensual sex with children, “were directed intentionally at her and other female students in a humiliating and harassing manner.”[12]

The school ordered the professor to:

  1. Provide a syllabus concerning his teaching style, purpose, content and method to his students at the beginning of class and to the department chair by certain deadlines;
  2. Attend a sexual harassment seminar within 90 days;
  3. Undergo a formal evaluation procedure in accordance with the collective bargaining agreement; and
  4. Become sensitive to the particular needs and backgrounds of his students, and to modify his teaching strategy when it becomes apparent that his techniques create a climate which impedes the students’ ability to learn.

Cohen was, additionally, advised that further violation of the policy would result in further discipline “up to and including suspension or termination” and the Board ordered that its decision be placed in Cohen’s personnel file.[13]

The Ninth Circuit held that the policy was unconstitutionally vague as applied to the teacher’s in-class speech, noting that the speech did not fall within the policy’s core definition of sexual harassment and that the teacher had used this teaching style for years.

2000s: Courts Begin Limiting University Student Speech

In the first decade of the new millennium, a line of cases showed that courts were tending to rule against students pursuing First Amendment claims against their universities.  But before this development began, university press freedom was energetically endorsed in a federal case in 2001.  In Kincaid v. Gibson, the U.S. Court of Appeals for the Sixth Circuit ruled that administrators at Kentucky State University violated students’ rights by refusing to distribute the school yearbook.[14]  University officials objected to the content of the yearbook and the color of its cover, among other things.  However, their main objection was that the yearbook looked amateurish and would be an embarrassment to the university.  The court held that: (1) the yearbook was a limited public forum for First Amendment purposes; (2) By confiscating all copies of the yearbook, university officials did not impose reasonable time, place, and manner restriction upon the speech in the limited public forum; (3) the Hazelwood case did not apply at the university level; and (4) school officials’ conduct violated the First Amendment even if yearbook was not considered a public forum.  In the ruling, Judge R. Guy Cole wrote, “There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it.”[15]  Cole’s ruling continued the legacy of the Supreme Court’s Barnette case, when Justice Robert H. Jackson warned against any attempt by a state official to “prescribe what shall be orthodox.”

However, student press advocates were disappointed when, in 2002, the Ninth Circuit—the same court that protected the professor in Cohen—applied the Hazelwood test to a university dispute in California.  (Hazelwood v. Kuhlmeier is the landmark 1988 Supreme Court case establishing the right of high school administrators to censor student newspapers for pedagogical reasons.)   Brown v. Li arose because university policy required a graduate student to submit his thesis to a committee for final approval before filing the thesis with the university library.[16]  In accordance with this policy, the student submitted his thesis to the committee, which approved the thesis.  Graduate thesis papers often contain an “acknowledgements” section wherein students thank certain people for their help or moral support.  However, the student then inserted a “disacknowledgements” section into his thesis—criticizing people for perceived wrongs—and attempted to file the thesis in the university library.  When members of the committee realized this, they prohibited the student from filing the thesis but still allowed him to receive his degree.  Applying the Hazelwood test, the Ninth Circuit upheld the committee’s actions, holding that the assignment was part of the student’s curriculum and the committee’s decision was reasonably related to a legitimate pedagogical objective: teaching the student the proper format for a scientific paper.  The court said:

The parties have not identified, nor have we found, any Supreme Court case discussing the appropriate standard for reviewing a university’s regulation of students’ curricular speech. It is thus an open question whether Hazelwood articulates the standard for reviewing a university’s assessment of a student’s academic work. We conclude that it does.[17]

Because of the explicitly stated requirements for the format of a thesis, the court concluded that the university committee had every right to order the removal of the “disacknowledgements” section in accordance with the proper format for academic papers.  However, some student press advocates believe applying the K-12 case Hazelwood to a university was a serious error, portending a coming era when judges would apply principles from cases involving middle school and high school students to the university context.  On the other hand, the facts of the case—considering that the format of a thesis would be seen as within the purview of the university’s authority to establish curriculum requirements—suggest that the case will have limited precedential value when it comes to disputes involving more common forms of student expression.

The Hosty Bombshell

In 2005, in Hosty v. Carter, the U.S. Court of Appeals for the Seventh Circuit applied Hazelwood in a case involving a newspaper at a public university in Illinois.  When the Governors State University student newspaper, The Innovator, began printing articles that were critical of university employees, the dean told the printer that the university would not pay for any issues that had not been reviewed and approved in advance.[18]  The students who worked at the newspaper filed suit against the dean (Patricia Carter), the university, and others for depriving them of First Amendment rights in violation of a federal law known as “Section 1983” that authorizes a civil suit seeking damages against public officials.

The narrow (5-4) Hosty decision (which affects states in the Seventh Circuit, with jurisdiction over Illinois, Indiana and Wisconsin) has been the subject of debate and handwringing by advocates for a free student press.  Free-press advocates were disappointed by the court’s decision that the Hazelwood standard (established by the Supreme Court in a high school case) can apply in the university setting.  Some student press advocates believe that opening the door to Hazelwood at the college level makes Hosty a dangerous decision for student press freedom.  The court could just as easily have gone the other way (as the dissenters did, which will be discussed below) in recognizing the distinction between the appropriate level of control over students who are children and students who are adults.

The Supreme Court has not addressed the question of whether the more administration-friendly standard in Hazelwood applies equally in the context of public university education (as opposed to elementary or high school education).  In a footnote to Hazelwood, the Supreme Court said: “[a] number of lower federal courts have similarly recognized that educators’ decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference. We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.”[19]

Writing for the majority in Hosty, Judge Frank Easterbrook referred to this footnote:

…Plaintiffs argue, and the district court held, that Hazelwood is inapplicable to university newspapers and that post-secondary educators therefore cannot ever insist that student newspapers be submitted for review and approval. Yet this footnote does not even hint at the possibility of an on/off switch: high school papers reviewable, college papers not reviewable. It addresses degrees of deference. Whether some review is possible depends on the answer to the public-forum question, which does not (automatically) vary with the speakers’ age.[20]

It is odd that the majority of the en banc court (the full court of appeals) agreed with Easterbrook, considering the back-and-forth nature of his decision (at times leaning toward the students, but at other times leaning toward the university)—as well as his inability to settle on the status of the newspaper.  Was it a public forum?  If so, what kind?  In contrast, the dissenters had a clearer argument, which will be discussed below.

Easterbrook noted that the newspaper in Hosty was subsidized by the university, and “[f]reedom of speech does not imply that someone else must pay.”[21]  He reasoned that the student newspaper might be a “designated public forum” or “limited-purpose public forum,” both of which have some censorship protections, requiring the university to show that the regulation or administrative action is content-neutral; that it serves a substantial government interest; that there is not a total ban on communication; and that it is no more restrictive than is necessary to serve the government interest.[22]

Easterbrook never took a clear position on what kind of forum existed.  Frank LoMonte of the Student Press Law Center criticized Judge Easterbrook’s failure to ultimately determine whether the newspaper was a limited public forum.  In LoMonte’s opinion, Easterbrook was too preoccupied with the question of whether school officials had immunity from the lawsuit.  In an article for The First Amendment Law Review, LoMonte wrote:

The court embarked on a rambling and not entirely coherent expedition through forum doctrine, suggesting without firmly concluding that the Innovator likely would have qualified for heightened First Amendment status as a designated public forum–a question mooted when the case was pretermitted on immunity grounds.[23]

In the student newspaper context, the forum analysis can be confusing because many student newspapers are subsidized in some manner by the university with which they are connected. Such subsidy can take different forms.  For example, a university may provide any combination of funds, physical space, materials, logistical support services, salaries for faculty advisers or even course credit or extra credit for journalism student participation in the newspaper.  If there is any form of sponsorship or subsidy by the university, the student newspaper could be a limited public forum, which can open the door to disputes about the purposes for which the forum was created and whether the university has sufficiently justified the restriction on speech.

Hosty’s Numerous Problems

Hosty was an appeal decided solely on the issue of qualified official immunity of Dean Carter and others—not on the merits of a constitutional challenge.  Nevertheless, that did not stop Judge Easterbrook from discussing several other questions—only to leave them unresolved.  These questions involved (1) the forum status of the newspaper; (2) the relationship between the forum status and the possible violation of the students’ First Amendment rights; (3) the relationship (if any) between the forum status and immunity and (4) the decision of what to do if the students’ First Amendment rights were violated—e.g., did university officials infringe “clearly established rights,” thus losing the immunity that is normally granted to public officials in the exercise of their duties?

The Hosty case is both important and frustrating.  Several key issues are left dangling that could have been resolved with a more comprehensive and thoughtful opinion.  Easterbrook did not explain how the determination of the newspaper’s forum status relates to whether Dean Carter and other administrators enjoy immunity for their actions.  He concluded that the rights at stake were not clearly established and therefore immunity is upheld.  However, he did not explain whether the forum status of the newspaper had some impact on whether the First Amendment rights of the students were sufficiently established for the administrators to know what they were doing was a violation of those rights.  He implied that the newspaper was a limited public forum because of the subsidies offered by the university, but because he stopped short of concluding it was such a forum, he did not explain why that distinction matters.  If it is a public forum, the university is limited by the First Amendment from interfering with the content or operation of the newspaper.  But since the case was based on immunity and Section 1983 liability, the question of forum status was not given proper attention.

Hosty and Qualified Immunity

The immunity question posed to the court in Hosty was whether the constitutional rights of the student editors were so clearly established that Dean Carter should have known she was violating them when taking the action she did.  The protection offered by qualified immunity has been developed in case law over a period of many years to prevent administrative officials from constantly facing lawsuits over their decisions.  It is a difficult standard to meet, and thus many lawsuits brought against public officials are unsuccessful.

The court concluded that because of the lack of precedent in this area, Carter did not knowingly violate clearly established rights.  Easterbrook wrote: “One might well say as a ‘broad general proposition’ something like ‘public officials may not censor speech in a designated public forum,’ but whether Dean Carter was bound to know that the Innovator operated in such a forum is a different question altogether.”[24]  The Hosty majority used the district court’s decision as a way to narrow the question presented in such a way to find in favor of the public official:

The district court held that any reasonable college administrator should have known that (a) the approach of Hazelwood does not apply to colleges; and (b) only speech that is part of the curriculum is subject to supervision. We have held that neither of these propositions is correct—that Hazelwood’s framework is generally applicable and depends in large measure on the operation of public-forum analysis rather than the distinction between curricular and extra-curricular activities.

But even if student newspapers at high schools and colleges operate under different constitutional frameworks, as both the district judge and our panel thought, it greatly overstates the certainty of the law to say that any reasonable college administrator had to know that rule. …[25]

The majority also justified narrowing its decision by citing the arguments of the parties:

For reasons that should by now be evident, the implementation of Hazelwood means that both legal and factual uncertainties dog the litigation—and it is the function of qualified immunity to ensure that such uncertainties are resolved by prospective relief rather than by financial exactions from public employees.[26]

Hosty and Prior Review

Judge Terence T. Evans, writing for the four dissenters, said: “Prior to Hazelwood, courts were consistently clear that university administrators could not require prior review of student media or otherwise censor student newspapers.”[27]  Evans also said:

The Innovator, as opposed to writing merely about football games, actually chose to publish hard-hitting stories. And these articles were critical of the school administration. In response, rather than applauding the young journalists, the University decided to prohibit publication unless a school official reviewed the paper’s content before it was printed. Few restrictions on speech seem to run more afoul of basic First Amendment values. First, prior restraints are particularly noxious under the Constitution. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (“prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”); Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (“it has been generally, if not universally, considered that it is the chief purpose of the [First Amendment’s free press] guaranty to prevent previous restraints upon publication”). Second, and even more fundamental, as Justice Frankfurter stated (albeit in somewhat dated language) in Baumgartner v. United States, 322 U.S. 665, 673–74, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944), “one of the prerogatives of American citizenship is the right to criticize public men and measures.” College students—voting-age citizens and potential future leaders—should feel free to question, challenge, and criticize government action. Nevertheless, as a result of today’s holding, Dean Carter could have censored the Innovator by merely establishing “legitimate pedagogical reasons.” This court now gives the green light to school administrators to restrict student speech in a manner inconsistent with the First Amendment.[28]

The decision in Hosty was simply to recognize that because Hazelwood applies at the university level, the existing law was not clear enough to strip the university administrator of immunity.  This leaves somewhat unsettled the extent to which student journalists can seek First Amendment protection when university administrations exercise prior review over student newspapers in Indiana, Wisconsin, and Illinois.

Despite Hosty, Protections Still Exist

It is important to remember that the Hosty decision did not overrule the precedents that protect student First Amendment rights.  The Seventh Circuit’s decision in Hosty cannot supplant or supersede the decisions of the U.S. Supreme Court.  For example, in a 2000 concurring opinion, Justice David Souter recognized that the Supreme Court’s “university cases have dealt with restrictions imposed from outside the academy on individual teachers’ speech or associations,” whereas “cases dealing with the right of teaching institutions to limit expressive freedom of students have been confined to high schools, whose students and their schools’ relation to them are different and at least arguably distinguishable from their counterparts in college education” (emphasis added).[29]

At the time of Hosty, only one of the U.S. Appeal Circuits held that the Hazelwood analysis cannot be applied in a university context.  In a footnote in Student Government Association v. Board of Trustees, the First Circuit incorrectly suggested in 1989 that the Supreme Court in Hazelwood had actually decided the issue.[30]  Other circuits had either adopted the Hazelwood analysis in the university setting or had applied it in a modified form.[31]  Yet, while Hazelwood somewhat altered the context (whether at the university or high school level), Hazelwood probably did not change the results of the substantive law when it comes to a university-level publication or other expressive activity.

In Ward v. Polite¸ a 2012 decision from the U.S. Court of Appeals for the Sixth Circuit, the court expressly held that Hazelwood applies in the university setting.[32]  Ward involved the dismissal of a student from Eastern Michigan University’s graduate counseling program.  The student in a practicum course requested to refer, rather than directly counsel, a homosexual client, because the student believed the counseling would conflict with the student’s personal religious beliefs.  Ultimately, the court reversed the summary judgment that had been entered in the university’s favor and permitted the student’s First Amendment claim to proceed to trial.[33]  In dicta concerning student newspapers, the Ward court made clear that the context of the Hazelwood analysis could vary greatly between the university and high school settings:

Nothing in Hazelwood suggests a stop-go distinction between student speech at the high school and university levels, and we decline to create one. … By requiring restrictions on student speech to be reasonably related to legitimate pedagogical concerns, Hazelwood allows teachers and administrators to account for the “level of maturity” of the student. Although it may be reasonable for a principal to delete a story about teenage pregnancy from a high school newspaper, the same could not (likely) be said about a college newspaper. To the extent that the justification for editorial control depends on the audience’s maturity, the difference between high school and university students makes all the difference.[34]

The Ward court also suggested that it is the public forum analysis that may typically be unfriendly to students’ freedom of expression:

Hazelwood also features a question crucial to the resolution of all school-speech cases, whether at the high school or university level: Whose speech is it? The closer expression comes to school-sponsored speech, the less likely the First Amendment protects it.  And the less the speech has to do with the curriculum and school-sponsored activities, the less likely any suppression will further a legitimate pedagogical concern, which is why the First Amendment permits suppression under those circumstances only if the speech causes substantial disruption of or material interference with school activities.[35]

It is interesting to contemplate the relationship between a school-sponsored publication (such as a university alumni magazine) and the subsidizing of a school newspaper.  The Ward court suggests that if it is school-sponsored speech, less First Amendment protection is available to student journalists.  Hosty and other cases suggest that if the paper is subsidized with university money, it is more likely to be a limited public forum and thus students will get greater First Amendment protection.  At what point does subsidy (thus enhanced First Amendment rights for students) become school-sponsored (limited First Amendment rights for students)?

This quandary suggests that public forum status may be the wrong standard to use in student First Amendment cases, and a review of legal articles echoes the confusion surrounding public forum analysis.  In a 2009 issue of Nova Law Review, Marc Rohr explored “the ongoing mystery of the limited public forum,” concluding with a simple plea: “Above all, give us clarity, please.”[36]  If legal scholars and judges cannot agree on what a public forum is, perhaps it is the wrong principle to use in deciding First Amendment cases.

Both the Hosty and Ward decisions suggest that the applicability of Hazelwood in the university setting will not alter the conclusion that traditional university student newspapers (i.e., newspapers produced and managed by students and that are extracurricular activities) are beyond the editorial control or censorship of university faculty and administrators.  Instead, the various distinctions between the university setting and the high school or elementary school settings are borne out in the application of the Hazelwood analysis; i.e., university student newspapers are typically public forums while high school student newspapers are not typically public forums.  Subsequent decisions in the Seventh Circuit applying Hosty confirm this assertion.[37]

Likewise, other circuits that have applied Hazelwood in the university setting have maintained the same pre-existing robust First Amendment protection for traditional student newspapers.  In Husain v. Springer[38], the Second Circuit held:

The Fourth, Fifth, and Eighth Circuits, therefore, have adopted the position that the establishment of a student media outlet, in essence, necessarily involves the creation of a limited public forum where the only restraint is on the speakers who can participate (i.e., students) and where there can be no restrictions on the content of the outlet except with respect to content that threatens the maintenance of order at the university. Two other circuits, while also recognizing that student media outlets often enjoy First Amendment protection from interference by school administrators, have taken a less expansive view. The Sixth and Seventh Circuits agree that the establishment of a student media outlet can create a limited public forum but have concluded that the scope of that forum can be restricted by the school. In other words, these courts do not consider the creation of a student media outlet as categorically involving the creation of a limited public forum within which students may speak on essentially any subject without fear of reprisal, but rather look to the context of the public university’s treatment of a student media outlet, including its intent in creating the outlet and practices with respect to the outlet, in order to determine what First Amendment protection the outlet, and those that participate in it, receive.

Nevertheless, although the treatment of forum analysis with respect to student media outlets at public universities has differed in some respects in the various circuits, all the circuits that have considered the issue have determined that, at the very least, when a public university creates or subsidizes a student newspaper and imposes no ex ante restrictions on the content that the newspaper may contain, neither the school nor its officials may interfere with the viewpoints expressed in the publication without running afoul of the First Amendment.

We agree that, at a minimum, when a public university establishes a student media outlet and requires no initial restrictions on content, it may not censor, retaliate, or otherwise chill that outlet’s speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet. This holding is fully consistent with and, indeed, substantially follows from, our decisions, and those of the Supreme Court, in other cases addressing limited public fora.[39]

Hosty’s Silver Lining

A silver lining from Hosty is that it ultimately inspired a greater level of protection for student newspapers at public universities in Illinois.  Shortly after the Hosty decision, the Illinois legislature reacted to the case by enacting the Illinois College Campus Press Act, which explicitly declared all student-run newspapers at Illinois public universities to be public forums in which university administrators could have no editorial control or ability to censor content.[40]  The federal courts in Illinois have expressly held that the Act supersedes the holding in Hosty to the extent of any conflict.[41]

This is an interesting issue when it comes to the power of courts.  It is an important feature of our democratic system that judicial rulings are subject to modification by legislative bodies (federal judges are not accountable to the people —legislators are).  However, if federal courts base the ruling on a constitutional provision, legislation cannot modify the ruling.

It could be argued that, at least in the state of Illinois, the Hosty decision has no lasting practical effect.  If anything, the Hosty decision ultimately generated more vigorous protections for student journalists by encouraging the Illinois legislature to pass the Illinois College Campus Press Act.  Furthermore, the ruling focused the attention of the student press community about the extent to which student journalists should be free to choose the content of their publications. In 2015, the campaign to protect student speech and press rights picked up steam when North Dakota’s legislature unanimously passed a bill protecting student newspapers at public schools and colleges from censorship.  In 2016, Maryland followed suit with a law protecting high school and college student journalists from censorship, regardless of whether the school financially supports the media outlet or if the publication is part of a class.  Grass-roots campaigns continue in other states, signaling a renewed interest in protecting student media nationwide.


  • [1] Dickey v. Alabama State Bd. of Ed., 273 F. Supp. 613 (M.D. Ala. 1967) vacated sub nom. Troy State Univ. v. Dickey, 402 F.2d 515 (5th Cir. 1968).
  • [2] Id., at 616.
  • [3] Id., at 618.
  • [4] Marc Abrams, Law of the Student Press 63 (3rd ed. Student Press Law Ctr. 2008).
  • [5] Antonelli v. Hammond, 308 F. Supp. 1329, 1337 (D. Mass. 1970).
  • [6] Bazaar v. Fortune, 476 F.2d 570, 574 (5th Cir.) modified on reh’g, 489 F.2d 225 (5th Cir. 1973).
  • [7] Joyner v. Whiting, 477 F.2d 456, 459 (4th Cir. 1973).
  • [8] Id., at 459-460.
  • [9] Stanley v. Magrath, 719 F.2d 279, 280 (8th Cir. 1983).
  • [10] Id.
  • [11] Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996).
  • [12] Id., at 970.
  • [13] Id., at 971.
  • [14] Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001).
  • [15] Id., at 355.
  • [16] Brown v. Li, 308 F.3d 939 (9th Cir. 2002).
  • [17] Id., at 949.
  • [18] Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005).
  • [19] Hazelwood v. Kuhlmeier, 484 U.S. at 273-74 n.7 (citations omitted).
  • [20] Hosty v. Carter, 412 F.3d 731, 734 (7th Cir. 2005).
  • [21]  Id., at 737.
  • [22] Id. at 737.
  • [23] Frank D. LoMonte, “The Key Word Is Student”: Hazelwood Censorship Crashes the Ivy-Covered Gates, 11 First Amend. L. Rev. 305, 332 (2013).
  • [24] Id., at 738.
  • [25] Id.
  • [26] Id., at 739.
  • [27] Id., at 742.
  • [28] Id.
  • [29] Bd. of Regents v. Southworth, 529 U.S. 217, 239 (2000).
  • [30] 868 F.2d 473, 480 n.6 (1st Cir. 1989).
  • [31] Ward v. Polite, 667 F.3d 727, 734 (6th Cir. 2012); Brown v. Li, 308 F.3d 939, 950 (9th Cir. 2002); Axson-Flynn v. Johnson, 356 F.3d 1277, 1289 (10th Cir. 2004); Keeton v. Anderson-Wiley, 664 F.3d 865, 874-76 (11th Cir. 2011).
  • [32] Ward v. Polite, 667 F.3d 727, 733 (6th Cir. 2012).
  • [33] Id., at 737.
  • [34] Id., at 733-734 (internal citations and quotation marks omitted).
  • [35] Ward v. Polite, 667 F.3d at 733-734 (citations and punctuation marks omitted).
  • [36] Marc Rohr, The Ongoing Mystery of the Limited Public Forum, 33 Nova L. Rev. 299, 299 (2009).
  • [37] See, e.g., Badger Catholic, Inc. v. Walsh, 620 F.3d 775 (7th Cir. 2010).
  • [38] Husain v. Springer, 494 F.3d 108 (2d Cir. 2007).
  • [39] Id., at 123-124.
  • [40] 110 ILCS 13/10.
  • [41] Moore v. Watson, 838 F. Supp. 2d 735, 756 (N.D. Ill. 2012).

David Wheeler

David R. Wheeler is an assistant professor of journalism at The University of Tampa. He writes regularly for outlets such as CNN, The Atlantic, The Week, The New Republic, The New York Times, and The Chronicle of Higher Education. He earned a bachelor’s degree from Asbury University and a master’s degree and Ph.D. from the University of Kentucky. For The Atlantic , Wheeler has written more than a dozen articles about everything from student free speech rights to the disappearance of funny headlines in the age of Google. His 2015 Atlantic article on the challenges facing student newspapers was promoted on the websites and social media accounts of Editor & Publisher, PBS MediaShift, the Pew Research Center and Harvard’s Nieman Lab.

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