June 22, 2005
Court ruling may imperil student newspapers
By Ashley Eldridge, Daily Texan, University of Texas at Austin
The U.S. Court of Appeals for the 7th Circuit cast a death knell for student
publications nationwide in a Monday ruling which applies a 1988 Supreme Court
decision to a case regarding prior review in public universities.
The 7th Circuit, which encompasses Illinois, Indiana and Wisconsin, ruled in the
case of Hosty v. Carter that public institutions of higher education can be
subject to prior review, emphasizing the role of the institution in funding the
publication. Student representatives from the Innovator, the student newspaper
of Governors State University in Illinois, filed a lawsuit against Patricia
Carter, dean of student affairs and services in 2001. When the editorial staff
of the newspaper refused to retract factual statements deemed false by the
university, Carter, about whom the paper had published criticism, threatened to
cut funding from the printer unless she was able to review the articles prior to
publication. The students saw this as a violation of their First Amendment
rights and filed suit with a federal district court and a partial panel of the
7th Circuit. Carter appealed for immunity and was denied until Monday, when the
case was heard before the full panel of the circuit court.
The court's decision draws from the 1988 case of Hazelwood School District v.
Kuhlmeier, which sealed the fate of primary school publications on the basis
that "the First Amendment rights of students in public schools are not
automatically coextensive with the rights of adults in other settings, and must
be applied in light of the special characteristics of the school environment."
"Hazelwood's framework applies to subsidized student newspapers at colleges as
well as elementary and secondary schools," wrote Judge Frank Easterbrook in the
majority opinion.
Coupled with the 1988 statement that students' First Amendment rights had not
been violated, the Hosty decision raises the question of when a person becomes
deserving of constitutionally protected adult rights.
"June 2005 will probably go down as one of the saddest months in the history of
college student media," said Kathy Lawrence, director of Texas Student
Publications.
Texas lies within the jurisdiction of the 5th Circuit, which according to Mark
Goodman, executive director of the Student Press Law Center, has been
traditionally more supportive of student publications' freedoms. While this does
mean that no immediate repercussions will be felt here, it does not guarantee
that a court could not make a future ruling in keeping with the precedent set by
the 7th Circuit. This could mean future trouble for not only Texas Student
Publications, but the entire umbrella of student organizations.
"The impact will most quickly be felt by other student organizations that invoke
expressive elements, such as groups bringing speakers and films to campus,"
Goodman said.
A major factor in the court's decision was the role of subsidies in the
publication of the paper, a fact which Hosty found debatable.
"Although the money used to publish the student paper was derived exclusively
from the students, the school refused to allow the student editors access to the
paper's funds," Hosty said in a written statement. "[This] is comparable to a
bank holding an account-holder's money, but refusing to let the account-holder
have a say in what the money can be used for or when it will be made available
for withdrawal, only permitting checks to be written to whom and at what time
the bank decides is appropriate."
The Daily Texan is also funded primarily through advertising sales -- around
$2.5 million annually -- although 10 percent of the operating costs are acquired
through student fees, roughly 2 cents per student per issue.
"We don't consider student fees as being direct University subsidies. It's not
coming from state tax dollars," Lawrence said. "We look at it as a subscription
fee."
Lawrence added that while it is still considered a subsidy, the amount The Daily
Texan receives is very little in comparison to many other universities.
Representatives from Texas Student Publications have been trying to do away with
prior review, which was instituted in the 1970s with the signing of the
Declaration of Trust, for more than five years. TSP is closer now than ever
before to getting the amendment passed; all it needs is the rubber stamp of
approval, Lawrence said.
Richard Finnell, The Daily Texan's adviser said Monday's court ruling should not
have an immediate impact on the Texan or the amendment.
The U.S. Supreme Court hears approximately 10 percent of the cases appealed to
it. Hosty and her former colleagues plan to push for an appeal. Hosty said she
remains hopeful.
"At this point in time, I think, if we are permitted the stay to file petition,
and the petition might be granted because there is a question of exceptional
significance being addressed, which is to say, do adults have no more rights
than do children, simply because they set foot on a public campus?" Hosty said
in a written statement.
Representatives from Governors State University were unavailable for comment.