Posted on 07/20/2005 9:27:34 AM PDT by fight_truth_decay
The issue: An appellate court ruled that college newspapers aren't protected by the First Amendment.
We say: Students and college officials need to work more closely to protect First Amendment rights.
Our View
Last month, the Seventh U.S. Circuit Court of Appeals in Chicago(which encompasses Illinois, Indiana and Wisconsin) ruled against three former journalism students at Governors State University in nearby University Park.
The three sued a dean who ordered the printer to cease printing any more issues of the student newspaper after an article including details of the paper's former adviser's dismissal from the university was published.
The court contended that since the paper was funded and based out of a state-run school, then it should be subject to pre-publication review by university officials.
One of the first lessons a rookie journalist learns in the professional arena is that the person who owns the ink controls the words. At professional newspapers, the publisher controls what the paper prints. The publisher and journalists collaborate to ensure the paper is as fair and unbiased as possible, in order to benefit the community the newspaper serves.
Different publishers handle Freedom of Speech differently. Some don't get involved at all, and allow their newsroom leaders to make the decisions. Some, like late Chicago Tribune publisher Col. Robert R. McCormick, get involved to such a degree that you wind up with wishful thinking-type headlines such as "Dewey Defeats Truman."
The question stands: Are college newspapers and other college publications intended to be free forums for public discussion, or does the university have the right to protect its "property" and regulate the paper's content?
The Appellate Court decision was clear that the latter is true. And while we can see the merit in making sure its journalists are on solid ground factually with their stories, literally shutting down a college press because a story may rankle some people within the college sends a poor message to budding journalists who may be wondering if investigative journalism is really worth all the trouble.
Seasoned journalists wonder the same if their publisher squashes an investigation that might cause the publisher, or friends in the community, some embarrassment.
Publishers, and university officials, have this right. But they should use this right sparingly, if at all. What does it say about a newspaper, college or otherwise, if readers know that this is not all the news, but all the news that publishers or university officials see fit to print?
A true newspaper is one that does not back down from the truth, no matter how embarrassed or queasy it might make some people. A true newspaper prints the truth, because it is the right thing to do.
We would encourage these young journalists who attended Governors State University not to be discouraged. Just as there are many college, and even high school, newspapers that would have allowed their story to be published, the number of good "professional" newspapers for which they will someday work outnumber those that stomp on the Freedom of the Press.
Just use your keen investigative skills to make sure you find the right one.
-— The Herald News
Hosty v. Carterdecision threatens First Amendment Jul 13, 2005
In a 7-4 ruling, the appeals court reversed what had been a lower court victory for three student journalists at Governors State University in Illinois. The students, Margaret Hosty, Jeni Porche and Steven Barba, had successfully contended that a university dean, Patricia Carter, had ordered a commercial printer not to press another copy of the student newspaper, the Innovator, without administrative approval of its contents before publication. (Indiana Statesman, IN)
''Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts,'' Judge Frank Easterbrook wrote for the majority.
However, Judge Terence Evans, who wrote in dissent, said the free speech restrictions ''have no place in the world of college and graduate school.''
Hosty said she and Porche would appeal the decision to the U.S. Supreme Court. Hosty and Porche have 90 days to petition the Supreme Court, which typically only considers a small number of the cases petitioned.
''It's disastrous,'' she said. ''This isn't limited to journalists.''
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."
That's the theory, anyway. Kinda like the theory that babies are delivered by a stork.
"...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..."
In the real world, the paper can be sued for libel...if they want the "freedom", then they must assume the responsibility and accountability...
"[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."
Umm...wait until he tries to withdrawl from a 401K, or cash in company stock...
The question is whether the college alone paid for the newspaper and "ink" or whether the funds extracted from the students paid for the "ink" Inquiring minds, although old, would like to know. I was recently held up for about $110 by a local college.
In the old west to combat the carrying of guns, the old adage was formed: "the pen is mightier than the sword." That adage needs reforming given today's environment.
today it is likely that a story that gets squished will get a larger audience than one just left to run, especially one in an obscure college news paper.
I thought everyone knew there is only freedom of the press if you own the press.
I wish newspapers would deal in facts. The truths will attend to themselves.
This is a precedent. Up until know, the courts have ruled that high schools have limited First Amendment rights while colleges enjoy the full protection.
Having a degree in journalism, this bothers me. While in college, I helped out with some stories that slammed our administration. Had the deans been able to control the newspaper, our story would have never gotten out. The only power we held over the administration was their fear of what was printed in the daily paper, which many alums subscribe to.
For starters, Judge Easterbrook's majority decision does not hold that the newspaper wasn't a public forum; in fact he expressly refrains from ruling on that point, and he assumes for the purpose of his analysis that the paper was a public forum. The essence of the holding is simply that a university official has qualified immunity against certain First Amendment suits because no official can reasonably be expected to know the answer to an unsettled question of law.
The controversial (and worrisome) part of the ruling is its holding that Hazelwood applies to college newspapers. (I agree with the dissent on this, but the article posted here doesn't even mention it as a problem.)
At any rate, this was an interlocutory appeal from a ruling at the trial level; now the case goes back to the trial court to be completed in accordance with the appellate court's holding.
I've seen plenty of online articles make hash of legal issues and court cases, but this little op-ed piece is an absolute gem in that regard.
I've yet to discover an official student-run University newspaper that's anything more than a campus newsletter with not-very-edifying rants against the evils of the Demon of the Week.
Excellent point, Mysterio.
Yeah. Sure. Or they could start a website for peanuts and publish without restriction to a potentially much larger audience.
I liked the way the president (who I actually wasn't to fond of, but I got a kick out of the fact that he was a dead ringer with a uncanny resemblance to Dick Cheney, he even talks like him, and has his mannerisms) responded to the "outrage".
He basically said, its a school paper, we publish it, we hire the and pick the guys who run it, and we pay for it (well actually the advertisers do, but I digress), we are the publishing company and we can set policy on our paper and how its run, and what runs in it, and this is our views, and this is what the paper has to reflect, if they don't like it, they can quit or form their own paper and distribute it, we aren't going to stop them.
Hosty said she and Porche would appeal the decision to the U.S. Supreme Court. Hosty and Porche have 90 days to petition the Supreme Court, which typically only considers a small number of the cases petitioned.
''It's disastrous,'' she said. ''This isn't limited to journalists.''
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.
So why are they appealing to the Supreme Court..my links showed what led up to the decision step by step..
If the Herald got it wrong why the appeal as I just stated? I am confused!!!! Help me here.
Hosty v. Carterdecision threatens First Amendment Jul 13, 2005
In a 7-4 ruling, the appeals court reversed what had been a lower court victory for three student journalists at Governors State University in Illinois. The students, Margaret Hosty, Jeni Porche and Steven Barba, had successfully contended that a university dean, Patricia Carter, had ordered a commercial printer not to press another copy of the student newspaper, the Innovator, without administrative approval of its contents before publication. (Indiana Statesman, IN)
In a 7-4 ruling, the appeals court reversed what had been a lower court victory for three student journalists at Governors State University in Illinois.
Yes, the appellate court reversed the trial court's holding, but the article posted at the top of this thread is wrong about why. The basis for the holding was that a university official couldn't be expected to know, based on current case law, that it was a First Amendment violation to require administrative preapproval of the paper's content even if the paper were a public forum; therefore, the official enjoyed qualified immunity and the students wouldn't be entitled to damages even if a First Amendment violation were involved.
That was an interlocutory appeal from a ruling at the trial level. Since the appellate decision was handed down over a month before this article was posted, I'm sure the trial was concluded in accordance with the appellate ruling -- and of course the students lost. But again, the reason they lost is not what this article says it is.
This isn't true. In fact, the court said that,
If the paper operated in a public forum, the University could not vet its contents.IF the paper operated in a public forum. That's a big if. If this case had gone to trial, it would be up to the jury to decide exactly what kind of forum was created. In the words of the court,
What, then, was the status of the Innovator? Did the University establish a public forum? Or did it hedge the funding with controls that left the University itself as the newspaper’s publisher?Again, that's a question for the jury, but if a jury decided that the paper was indeed a public forum, then Dean Carter would probably lose.
HOWEVER--and this is a big however--the court wasn't deciding or ruling on any facts concerning what the dean did or didn't do or whether the paper was a public or non-public forum or whatever. The court was ruling *only* on Dean Carter's claim of qualified immunity. "Qualified immunity"--that's another legal term, which essentially means that public officials can't be sued for a civil rights violation unless the right was "clearly established" at the time the offense against it was committed.
For the sake of qualified immunity analysis, the court proceeds by accepting the facts most favorable to the plaintiff, in this case the students. In other words, the court says, "Assuming that everything the students say is true, did Dean Carter violate the students' first amendment rights." The court essentially says yes at this point:
[The plaintiffs'] facts would permit a reasonable trier of fact to conclude that the Innovator operated in a public forum and thus was beyond the control of the University’s administration.However--and this is another crucial point--the analysis *doesn't end* yet. Even *after* concluding that the plaintiffs' facts (if true) show that a right was violated, the court *still* needs to determine whether that right was "clearly established" at the time that it was violated:[and]
a designated public forum has been established, and the faculty cannot censor speech within it.
[and]
[Because this is a motion for summary judgement, the court is required to assume] that plaintiffs’ perspective is the correct one. On that understanding, the Board established the Innovator in a designated public forum, where the editors were empowered to make their own decisions, wise or foolish, without fear that the administration would stop the presses.
Qualified immunity nonetheless protects Dean Carter from personal liability unless it should have been “clear to a reasonable [public official] that his conduct was unlawful in the situation he confronted.” . . . 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. (my emphasis)Hope that helps.[snip]
[B]oth 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. "Qualified immunity shields an official from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau, 125 S. Ct. at 599. That description is as apt here as it was in Brosseau.
Public officials need not predict, at their financial peril, how constitutional uncertainties will be resolved. Disputes about both law and fact make it inappropriate to say that any reasonable person in Dean Carter’s position in November 2000 had to know that the demand for review before the University would pay the Innovator’s printing bills violated the first amendment. She therefore is entitled to qualified immunity from liability in damages.
Thank you
and thanks for the clarification
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