OLEAN -- You probably haven't heard or read about a Supreme Court decision last week that most newspapers and television news directors seemed to consider a yawner, but it was an insidious blow to higher education in this country and, indeed, to every citizen's right of free expression.
Actually, it wasn't really a formal decision at all. It was a determination not to decide. The U.S. Supreme Court announced it would not hear a case that brought the question: Are university administrators allowed to censor student newspapers? Though mute, the Supreme Court answered yes through its silence.
As usual in instances when pondering whether or not to accept a case, the Supremes did not explain their decision nor reveal pros and cons from individual justices. However, in refusing to accept for review the vitally important case Hosty v. Carter, the highest court in the land essentially let stand lower court rulings that will subject college student editors in Illinois, Indiana and Wisconsin to prior restraint.
That means administrators or faculty in those states legally may review before publication all content -- stories, editorials, photos, opinion columns, the works -- and if they don't like any of them, scrap the whole darn issue.
Mark my words: It will be cited soon as case law in student publication controversies arising all over the nation, and may spread like wildfire through the country and its regions. In today's educational atmosphere, many college administrators care more about image than about learning and preparation for adult life.
The Supreme Court's deliberate inaction is a bad seed planted by wrongheaded justices who exhibited lassitude and yes, a certain amount of cowardice, in failing to tackle this issue.
The neglected court case arose about six years ago at Governors State University -- a college of more than 6,000 students about 30 minutes south of the Chicago Loop in University Park, Ill. The school is not very old -- it was only founded 37 years ago. Among the many bachelor of arts degrees offered is one in Communications, which at GSU encompasses sequences in journalism, multi-media, public relations and TV/video production.
On its gushing Web site -- with its ironic motto "Empower Yourself" -- the Governors State smoke machine produces such empty boasts as embodying "the optimistic vision of the 1960s" and states: "It believed in its students and their ability to learn and succeed. So it took a deliberate step away from the 'establishment' and forged opportunity through experimentation."
Some experimentation: "Let's take the Bill of Rights and see what happens when we screw with it."
More self-serving crapola from the Governors State Web site: "GSU has also retained that 60s spirit. It continues to experiment, and it never excludes. With a belief in its students, GSU matches the best ideals of the past with the most promising innovations" of the future. Well, maybe that's true if curtailing freedom of speech is considered a "promising innovation" (as seems trendy in Washington).
Here's how Governors State "believed in its students." Here's how the Hosty v. Carter case came down. As the new millennium approached, the student newspaper, the Innovator, had a popular faculty adviser named Geoffrey de Laforcade. For whatever reason, the administration decided not to renew his teaching contract. A reporter for the Innovator, Margaret Hosty, under byline, attacked that decision and criticized the dean of the GSU's college of arts and sciences, Roger K. Oden.
Both Oden and Governors State President Stuart Fagan issued statements accusing the paper of "irresponsible and defamatory journalism" -- according to the case transcript of the U.S. Court of Appeals for the 7th Circuit, which court's decision the Supremes allowed to stand by their inaction.
According to the circuit appeals court, "the paper refused to retract factual statements that the administration deemed false," and Patricia Carter, the dean of student affairs, stepped in. She called the Innovator's printer and, according to the 7th Circuit transcript, "told it not to print any issues that she had not reviewed and approved in advance." It was a standoff. The paper refused to submit to prior review. Dean Carter and the university wouldn't pay the printer from student activity funds. Publication ceased in November of 2000. The paper has since resumed publication under new student management and a new name, The Phoenix.
Hosty, another reporter named Steven Barba, and the Innovator's editor, Jeni Porche, sued Governors State, all of its trustees and most of its administrators, claiming Carter's threat to withdraw the paper's financial support violated the First Amendment to the Constitution. The three GSU students were soon supported by about 35 national and professional news media organizations and the Student Press Law Center, a non-profit advocacy organization founded 30 years ago to "promote and preserve the free expression rights of student journalists."
At trial level in federal district court, the judge:
According to the Court of Appeals transcript, the first federal judge at trial level added that the distinctions between college level and high school papers "are so clearly established that no reasonable person in Carter's position could have thought herself entitled to pull the plug on the Innovator."
The Supreme Court, in the Hazelwood case, found that a high school principal was within the law in blocking a student newspaper's publication because the articles might be inappropriate for younger students. The court ruled he could do so because a high school paper does not constitute a "public forum" and -- unlike a college publication -- its content is actually more the result of teaching assignments and learning exercises than true journalism.
In the Governors State case, the federal trial 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." Sounds like a victory, right? Indeed, when the case reached a three-judge panel of the U.S. Court of Appeals for the 7th Circuit in 2003, those judges initially upheld the lower court ruling and the GSU student plaintiffs.
However, when the full 11-member Circuit Court of Appeals considered the case last June, they reversed, held that Hazelwood did apply to colleges as well as to fifth graders, and by a 7-4 vote ruled in favor of Dean Carter and GSU. The four dissenters and their observations state the case for freedom of speech on a university campus much better than I can:
"These restrictions on free speech rights have no place in the world of college and graduate school.
"The intellectual curiosity of students remains today a central determination of a university's success and asserting restriction of that curiosity risks the suppression of free speech and creative inquiry in one of the vital centers for the nation's intellectual life, its college and university campuses.
"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 ... prior restraints are particularly noxious under the Constitution."
Indeed, in previous rulings, the Supreme Court has stuck up for this recognition of the differences between grade school and university intellectual ability. In one fairly recent case, the Supreme Court articulated it this way: "The precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The college classroom with its surrounding environs is peculiarly the marketplace of ideas."
But that was a previous Supreme Court. As we have all read, the current Supreme Court is a different animal altogether -- seemingly predisposed toward restriction of individual rights rather than amplification.
Free press advocates are infuriated.
Mark Goodman, the executive director of the Student Press Law Center, said of the Supreme Court's refusal to review, "This ruling changes the playing field. People ... who care about free expression need to take steps today to defend a free student press if they want to ensure a free press will be around tomorrow."
Greg Lukianoff, president of the Foundation for Individual Rights in Education, said, "Hosty v. Carter is simply the most harmful Court of Appeals decision regarding student freedom of speech in higher education to come down in a generation. The Supreme Court passed up an important opportunity to vindicate student rights and restore clarity to the law. ... Unfortunately, the inescapable message of this decision is that college students -- nearly all of them adults -- should have the same level of press freedom as high school freshmen in a journalism class."
Lukianoff brings up another point: "Colleges and universities that choose to exercise control over student newspapers will face an increased threat of being held responsible in potential libel or other lawsuits against those newspapers. ... Administrators who claim the right to censor are likely to have a hard time explaining why they should not be held responsible for libelous statements in the paper that they could have removed. Considering the deep pockets of state universities, more such lawsuits are likely to be filed."
Perhaps the best point about the subtle effects of this inaction by the Supremes appeared in an editorial in the Oregon Daily Emerald, an independent newspaper serving the University of Oregon and environs:
"This is a dangerous and inaccurate message. Raising a crop of journalists who don't know how to properly fill their roles is a disservice to the public -- a disservice that could result in corruption flying under the radar of journalists who were taught not to criticize."
As one might have said back in those optimistic 1960s that the Governors State blurbmeisters seem to yearn for, "Right on, Daily Emerald, right on!"
Niagara Falls Reporter | www.niagarafallsreporter.com | Feb. 28 2006 |