First Amendment Mileposts in 2012

Four noteworthy First Amendment cases for college media in 2012

By Frank D. LoMonte
Executive Director, Student Press Law Center

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With the 25^th anniversary of the Supreme Court’s landmark Hazelwood ruling approaching on Jan. 13, the College Media Review asked the Student Press Law Center’s executive director, Frank D. LoMonte, to take stock of the state of free expression rights on college campuses –which, as LoMonte notes, “is a frequent source of litigation, as courts try to make sense of a shifting and sometimes muddled area of First Amendment law.”

During 2012, courts decided four particularly noteworthy cases directly bearing on the legal rights of student journalists and bloggers – including one especially significant case recognizing that the Constitution can protect advisers as well as students against retaliation by public institutions.

(1) Ward v. Polite (6^th Circuit U.S. Court of Appeals, January 27, 2012)

The Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier, which greatly reduced the First Amendment protection of college students’ speech when they use “curricular” channels of communication provided as part of school instructional activities, continues expanding far beyond its original scope – and the 6^th Circuit’s decision in Ward is the latest illustration.

The Ward case involved an Eastern Michigan University student enrolled in a practicum course to prepare for a career as a counselor. The student, Julea Ward, told her instructor during a private meeting that – because of her religious opposition to homosexuality – she was uncomfortable accepting a referral to counsel a student struggling with issues of sexual identity, and would prefer to reassign the student to a more supportive counselor.

Eastern Michigan responded by convening a disciplinary panel that kicked Ward out of the counseling program, on the grounds of conduct incompatible with the professional standards of the counseling field.

Ward claimed – and in a 3-0 ruling, the 6^th Circuit agreed – that she could demonstrate a violation of her rights by showing that other students had been allowed to reassign referral cases for reasons other than religion, so that EMU was discriminating against students with strong religious beliefs.

But in reaching that conclusion, the three-judge panel decided (for the first time in the 6^th Circuit, which covers Michigan, Ohio, Tennessee and Kentucky) that administrators at colleges as well as K-12 schools can exercise the Hazelwood level of control over their students’ speech. “The key word is student,” the court held. “Hazelwood respects the latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Hazelwood permits schools to censor student speech for any “valid educational purpose,” including their belief that the speech is “ungrammatical, poorly written, inadequately researched, biased or prejudiced.” Based on the way lower courts have deferentially applied the Hazelwood level of protection in the K-12 context, it is almost impossible for a censored student to prevail once speech is deemed to be governed by Hazelwood, no matter how weak the school’s rationale.

The impact of Ward on the college media is far from settled. In a prior ruling that was not even acknowledged in the Ward opinion, Kincaid v. Gibson, the 6th Circuit ruled that a college yearbook was not subject to the Hazelwood level of censorship

With the decision in Ward, the Sixth Circuit is now the fourth of the 12 geographic U.S. circuits – joining the 7^th, 10^th and 11^th – in holding that college as well as K-12 students are entitled to only the minimal Hazelwood level of First Amendment protection for “curricular” speech. Only the Boston-based 1^st Circuit has said otherwise with clarity, and that was only a passing mention in a footnote.

The Ward ruling reinforces the importance of obtaining state-level legal protections for the rights of college journalists, and – where possible – securing the binding commitment of colleges themselves to refrain from applying the Hazelwood level of editorial control.

(2) Moore v. Watson (U.S. District Court, Northern District of Illinois, March 13, 2012)

After the 7^th Circuit became the first court in the country to apply the Hazelwood legal standard in the context of a college journalistic publication (Hosty v. Carter), outraged Illinois legislators responded with one of the nation’s strongest “anti-Hazelwood” statutes, the Illinois College Campus Press Act.

In Moore, that act was put to the test for the first time – and it passed with flying colors.

Adviser Gerian Moore and student editor George Providence were removed from their positions at Chicago State University’s student newspaper, The Tempo, after the paper published articles questioning school practices, including inquiring into questionable spending on a high-priced concert. They sued under both the College Campus Press Act and the First Amendment, alleging unlawful retaliation.

A federal district judge found that, although the scope of advisers’ First Amendment rights is murky due to their status as government employees, the College Campus Press Act made Moore a “participant” in the public forum of The Tempo, so that he could assert a violation of his own rights as well as those of his students. The court had little difficulty concluding that the newspaper’s controversial editorial content was the cause-and-effect reason for the punitive actions against Moore and Providence, and ordered Moore reinstated at his previous salary, with his personnel record cleansed.

Although the court also found Providence’s rights were violated, no relief was ordered, because Providence was no longer eligible to reenroll in Chicago State and was not in a position to suffer future censorship at CSU’s hands.

(3) Tatro v. University of Minnesota (Minn., June 20, 2012)

Although not involving journalistic speech, the Tatro case is important for the rights of all student Internet users – both for what the court decided, and also for what it did not decide.

In Tatro, a college mortuary-sciences student was caught joking on her personal Facebook page about the corpse she was assigned to dissect, and about stabbing her former boyfriend with a dissecting tool. Although campus police concluded that the student, Amanda Tatro, posed no genuine threat, she was brought up on charges before a campus disciplinary board and punished.

The University of Minnesota’s legal counsel – in an argument that would have virtually wiped the First Amendment out of existence for college students in Minnesota – tried to convince the court that Tatro’s speech on Facebook was subject to control under the Hazelwood “curricular speech” standard because it reflected unfitness for her chosen course of study.

The justices did not buy that argument. They did, however, uphold the university’s punishment on much narrower grounds.

In a 5-0 ruling, the court decided that colleges may lawfully punish speech that violates “established professional conduct standards” – in Tatro’s case, the failure to speak respectfully about corpses – even if the speech does not rise to the level of disrupting class or inciting others to lawlessness.

The state court precedent is binding only in Minnesota. But because it represents perhaps the first appeals-court case anywhere analyzing the scope of First Amendment protection for online speech by college (as opposed to K-12) students, the ruling may be influential in other jurisdictions.

There are obvious risks to journalists if it becomes accepted that colleges may punish “unprofessional” speech, so advocates – including students – will need to closely watch their student conduct codes for the introduction of “professional conduct standards” language as a basis for disciplinary action.

(4) OSU Student Alliance v. Ray (9^th Circuit U.S. Court of Appeals, October 23, 2012)

Finally, a federal appeals court in California decided that top university administrators can be held personally liable for enforcing an unconstitutional policy that selectively restricts the distribution boxes of particular student publications from campus.

The OSU Student Alliance case dates back to Christmastime of 2004, when editors of a conservative alternative newspaper at Oregon State University, The Liberty, noticed their newsracks disappearing. All seven Liberty bins – and 150 copies of the newspaper – were found in a university dumpsite.

Maintenance workers claimed to be acting under OSU’s physical plant manager to enforce an unwritten – and previously unenforced – “beautification” policy. But Liberty editors proved that other boxes for competing newspapers were left standing in comparable locations.

A federal district judge threw out the newspaper’s First Amendment claims, but on a 2-1 ruling, the Ninth Circuit reinstated the case and sent it back to the district court for trial.

There are two bottom-line takeaways of importance to the college media. First, the placement of newsracks at a public college is a protected First Amendment act, and colleges can regulate distribution locations only if they act under established standards that prohibit picking-and-choosing among publications based on their editorial content. Second, high-level supervisors – even the college president – can be held to account for unconstitutional restraints on the distribution of news, even if they have no personal involvement in the censorship decision, if it can be proven that they knew of the censorship and continued enforcing the unconstitutional policy anyway.

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Frank LoMonte, executive director of the Student Press Law Center, is a commercial litigation attorney who joined SPLC after practicing with the Atlanta-based law firm of Sutherland Asbill & Brennan LLP and clerking for federal judges on the Northern District of Georgia and the Eleventh Circuit U.S. Court of Appeals. Before law school, LoMonte was an award-winning investigative journalist and political columnist in state capitol bureaus in Florida and Georgia and in Washington, D.C., with the Morris newspaper chain. LoMonte graduated magna cum laude from the University of Georgia School of Law, where he was a senior editor of the Georgia Law Review. The Student Press Law Center notes at Student Press Law Center, “Since 1974, the Student Press Law Center has been the nation’s only legal assistance agency devoted exclusively to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment and supporting the student news media in their struggle to cover important issues free from censorship. The center provides free legal advice and information as well as low-cost educational materials for student journalists on a wide variety of legal topics. In addition, the SPLC operates a formal attorney referral network of approximately 150 lawyers across the country who are available to provide free legal representation to local students when necessary. Approximately 2,500 student journalists, teachers and others contact the Center each year for help or information. Calls come from all 50 states and the District of Columbia.”