Court Restricts Free Speech for College Students

Academe, Sep/Oct 2005 by Euben, Donna R

A U.S. Supreme Court case that restricted high school students' First Amendment protections applies to student newspapers at colleges as well as at elementary and secondary schools, ruled the U.S. Court of Appeals for the Seventh Circuit in June in Hosty v. Carter. By extending to higher education the results of the earlier case (Hazelwood District v. Kuhlmeier), the appeals court's decision significantly curtails the constitutional protection afforded the extracurricular speech of college and university students at public institutions.

In Hosty v. Carter, editors of the student newspaper The Innovator challenged the actions of Patricia Carter, a dean at Governors State University in Illinois, after she informed the newspaper printer that she had to approve the publication's content before production. The students argued that the dean's action violated their First Amendment rights. In 2003, a unanimous three-judge panel agreed with the students, saying that "while Hazelwood teaches that younger students in a high-school setting must endure First Amendment restrictions, we see nothing in that case that should be interpreted to change the general view favoring broad First Amendment rights for students at the university level."

In reversing the panel decision, a majority of the full appeals court reasoned that the analysis of such cases should depend not on whether the speech is curricular or extracurricular, but on whether the student publication is a public forum. Nevertheless, the majority held that Hazelwood applies to college and university newspapers. In so reasoning, the court raised the chilling specter that college and university administrations may censor college student extracurricular and curricular speech. The court opined that "academic freedom includes the authority of the university to manage an academic community . . . free from interference by other units of government."

The four-judge dissent in Hosty asserted that the majority failed to distinguish properly between secondary and postsecondary students: "There are two reasons why the law treats high school students differently than it treats college students .... High school students are less mature and the missions of the respective institutions are different. These differences make it clear that Hazelwood does not apply beyond the high school context."

The students have declared their intention to seek review by the U.S. Supreme Court. If the Court should grant such review, the AAUP is prepared to weigh in as an amicus, contending that Hazelwood should not apply to college and university student speech.

-D.R.E.

AAUP at Work was written by Gwendolyn Bradley, Donna R. Euben, Marcus Harvey, and Wendi Maloney.