Amicus Curiae Brief — Hosty v. Carter

SUMMARY OF THE ARGUMENT

Studies of high school, college, and professional

news media demonstrate the vital importance of

uncensored campus newspapers. Research shows that

experience in reporting for and editing a campus

newspaper provides a unique opportunity for college

journalists to develop an understanding of the role of the

press. This experience is critical in developing a

commitment to the field of journalism as a career, and in

acquiring the skills that newspapers find valuable.

Permitting college administrators to censor

campus newspapers undermines the goal of encouraging

students to mature as journalists and prevents them from

learning that they are responsible for what they publish.

This Court’s decisions on campus freedom of the press

support the conclusion that such censorship violates the

First Amendment. Permitting a system of prior restraint,

as in this case, harms the interests of campus and local

readers in seeking relevant and critical coverage of issues

in their community, including the administration of the

local university. The Seventh Circuit’s decision also poses

a threat to academic freedom and the exercise of First

Amendment rights by faculty members.

ARGUMENT

An official at a public university imposed a system

of prior restraint on the publication of petitioners’

newspaper. The Seventh Circuit’s decision upholding the

official’s action, if not currected, will have a chilling effect

on the exercise of First Amendment rights by journalists

and faculty at public colleges and universities. It will also

have a potentially devastating impact on the recruitment

and training of tomorrow’s professional journaiists.

1. This Court has recognized that the First

Amendment applies to students at public universities and

a

colleges. Healy v. James, 408 U.S. 169, 182 (1972). The

Court has extended First Amendment protection to

students working on college newspapers. Papish v. Bd. of

Curators of Univ. of Missouri, 410 U.S. 667 (1973).

Ten years ago, the Court made clear that

university officials violate the First Amendment when

they impose viewpoint-based discrimination on funding

decisions for student newspapers. Rosenberger v. Rector

and Visitors of the Univ. of Virginia, 515 U.S. 819 (19965).

The Court distinguished cases in which the university

was paying for an agent to promote the university’s

message from cases in which the university was

facilitating the speech of student groups. Jd. at 834.

“Having offered to pay the third-party contractors on

behalf of private speakers who convey their own

messages, the University may not silence the expression

of selected viewpoints.” Id. at 835.

._ The Seventh Circuit’s decision permits a public

official to stop publication of a student newspaper on the

basis of objections to its contents in direct contravention

of the principles articulated in Rosenberger and its

predecessors. The Court should grant certiorari in order

to reaffirm the First Amendment rights of college

journalists as well as to protect the interests of faculty

members and the readership of campus newspapers. The

Court’s decision in Hazelwood School District v.

Kuhlmeier, 484 U.S. 260 (1988), does not and should not

be applied at the university level. See Hazelwood, 484

US. at 273 n.7 (explicitly noting that the Court’s decision

does not extend to the college and university level).

2. An uncensored college newspaper is vitally

important to attracting college students to journalism and

providing them with a real-world training ground that

prepares them to become professional journalists. The

skills that journalist acquire while working at a college

newspaper are fundamental to their development into

-9.-

professionals who are able to make editorial decisions,

take responsibility for the stories that are published — and

those that are not — and gather and write about the

events of the day in an objective manner.

The reporters and editors working on a campus

paper learn valuable lessons that prepare them for a

career in journalism. Prior experience in journalism is

one of the most important factors considered by both

small and large newspapers in hiring new reporters.

Barbara J. Hipsman & Stanley T. Wearden, Skills Testing

at American Newspapers 13-14 (Aug. 1989) (paper

presented at the Annual Meeting of the Association for

Education in Journalism and Mass Communication,

Newspaper Division). More than three quarters of

newspapers test for writing skills before hiring

journalists. Jd. at 11. In addition to prior journalism

experience and writing skills, general reporting ability

ranked very high among skills that newspapers listed as

most desirable in new hires. Id. at 13.

College students acquire more than writing and

reporting skills when they work for a campus newspaper.

They also learn that they are responsible for what

appears on the pages of their publication. For this

reason, it has been argued that “the student publication

offers tne single best avenue for training — superior even

to the journalism school ... for a career in professional

journalism.” Richard J. Peltz, Censorship Tsunami

Spares College Media: To Protect Free Expression on

Public Campuses, Lessons from the “College Hazelwood”

Case, 68 Tenn. L. Rev. 481, 482 (2001). This vital

experience cannot be acquired at newspapers whose

content is controlled by university officials.

Professor Peltz observes that the consequences of

applying Hazelwood to university journalists would

extend “outside the ivy-covered walls. Imagine a

generation of college-trained journalists with no practical

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experience handling controversial subject matter, nor

with any more than an academic understanding of the

role of the Fourth Estate in American society.” Id.

Early exposure to and experience in a realistic

journalistic setting is important not only for the training

that it provides, but also for the effect that it has on the

student reporters’ ability to think critically about the

proper role and methods of the press. Research

demonstrates that early participation on student

newspapers influences student journalists’ attitudes

towards the press and likelihood of committing to a career

in journalism. Student reporters with experience working

in newsroom become more like professional journalists

when asked about their views on civic journalism and on

the practices of the news media generally. Michael

McDevitt et al., The Making and Unmaking of Civic

Journalists: Influences of Professional Socialization, 79

Journalism & Mass Commce’n Q. 87, 95-96 (2002). “One

experience in particular — working for the campus paper —

appears to instill a sense of autonomy” in student

journalists. Id. at 98. See also Jennifer Rauch et ai.,

Clinging to Tradition, Welcoming Civic Solutions: A

Survey of College Students’ Attitudes toward Civic

Journalism, 58 Journalism & Mass Commce’n Educator

175, 183-84 (2003).

Research also suggests that “the earlier one

decides on journalism as a career, the greater the

commitment later on.” Wilson Lowrey & Lee B. Becker,

Commitment to Journalistic Work: Do High School and

College Activities Matter?, 81 Journalism & Mass

Comme’n Q. 528, 538 (2004). See also id. at 539 (noting

that an important predictor of the choice to become a

journalist is college-level socialization, and _ that

experience with campus media significantly enhances the

probability of pursuing a career in journalism).

. -

Extending this Court’s holding in Hazelwood to

college level newspapers would defeat these goals. If

- university administrators can impose prior restraints on

campus newspapers, college journalists will fail to learn

the importance of autonomy and _ professional

responsibility because they will be neither autonomous

nor responsible. Peltz, 68 Tenn. L. Rev. at 549 (“practical

experience with editorial freedom and responsibility is an

essential component of an education in journalism”). Not

only would college journalists fail to get real-world

experience in making and taking responsibility for

editorial decisions, they also would not be free to take

initiative in reporting because of the chilling effect of the

administration’s censors.

The threat of censorship of campus papers is not

only real, it is growing. Michael W. Hirschorn, University

Efforts to Censor Newspapers Are on the Increase, Student

Editors Say, 33 Chronicle of Higher Educ. at 35-37 (1987).

Studies show that high school newspapers suffered a_

severe chilling effect after Hazelwood, avoiding coverage

of controversial issues. Carol S. Lomicky, Analysis of

High School Newspaper Editorials Before and After

Hazelwood School District v. Kuhlmeier: A Content

Analysis Case Study, 29 J. of Law & Educ. 463 (2000); see

also id. at 473 (finding that students began to self-censor

criticism in their publications, eliminating two thirds of

the pre-Hazelwood \evels of critical commentary). Three-

fourths of high school principals and advisors

acknowledge censoring their schools’ newspapers. Lillian

Lodge Kopenhaver and J. William Click, High School

Newspapers Still Censored Thirty Years After Tinker, 78

Journalism & Mass Comme’n Q. 321, 327 (2001). More

than a decade after the Court announced its opinion in

Hazelwood, high school “journalists appear unwilling to

oppose the administration in their commentary.”

Lomicky, 29 J. of Law & Educ. at 471.

~ =

A Hazelwood regime applied to university students

risks turning college newspapers into the timid house

organs that most high school newspapers have become.

Id. at 329. Research shows that 87 percent of high school

principals believe that the student newspaper should

advance the public relations objectives of the school. Id.

Half of them disagree with the statement that the

newspaper should print a factually accurate story if the

publication will embarrass the school’s administration.

Id. Such publications would give college students little

incentive or ability to gain the real-world journalism

experience that studies show is so crucial in acquiring the

skills and commitment necessary for training tomorrow’s

reporters.

3. The Seventh Circuit’s application of

Hazelwood to campus newspapers will expand the

censorship trends identified above to college campuses.

See generally Lomicky, 29 J. of Law & Educ. at 463-76; see

also Peltz, 68 Tenn. L. Rev. at 496 (noting that high

school students and their advisors self-censored coverage

of controversial topics after Hazelwood). Yet Hazelwood

did not alter the regime of Healy and Papish, and

confirms that college-level journalists and newspapers are

entitled to the First Amendment rights guaranteed to the

professional press.

The Seventh Circuit’s application of Hazelwood to

the university press was erroneous for three reasons: (i)

high-school students are younger than college students,

and the Court has often found youth to be an important

factor in determining the application of Constitutional

rights; (ii) the high-school newspaper in Hazelwood was

part of a classroom curriculum, while the newspaper in

this case was not; and (iii) the mission of public

universities and the role that they play are different from

that of high schools.

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First, the Court should grant certiorari in order to

correct the Seventh Circuit’s error in applying Hazelwood,

a high-school press freedoms case, to adults. One of the

chief rationales the Court offered in Hazelwood for

permitting educators to control student publications was

that the officials needed to be able to “take into account

the emotional maturity of the intended audience....”

Hazelwood, 484 U.S. at 272 (citing such “potentially

sensitive topics” as the existence of Santa Claus and

discussions of teenage sexual activity). Compare Widmar

uv. Vincent, 454 U.S. 263, 274 n.14 (1981) (noting that

“[uJniversity students are, of course, young adults. They

are less impressionable than younger students....”). See

also Tilton v. Richardson, 403 U.S. 672, 686 (1971)

(noting the “skepticism of the college student”).

The First Amendment rights of children have been

limited in recognition of the importance of protecting

them from exposure to material that is deemed —

inappropriate for an immature audience. Hazelwood, 484

U.S. at 272; Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 684

(1986) (sustaining high school’s punishment of student for

vulgar speech); FCC v. Pacifica Found., 438 U.S. 726

(1978) (affirming sanctions for “dirty words” broadcast);

Ginsberg v. New York, 390 U.S. 629 (1968) (upholding

prohibition on sale of obscenity to minors); Bellotti v.

Baird, 443 U.S. 622, 636-637 (1979) (discussing the

Court’s jurisprudence liming children’s’ First

Amendment rights, citing immaturity). These cases,

however, provide no basis for departing from traditional

First Amendment principles when the relevant writers

and readers are adults. Only one percent of the students

enrolled in American colleges and universities are under

the age of 18. U.S. Census Bureau Survey, Table A-6,

Age Distribution of College Students 14 Years Old and

Over, by Sex: October 1947 to 2002, available at

http://www.census.gov/population/socdemo/school/tabA-

6.xls (last viewed Uctober 13, 2005).

-14-

Second, the pedagogical reasons for official control

of the student press do not apply when the newspaper is

not part of any class but is instead an autonomous

extracurricular activity. When __student-published

newspapers are produced in a classroom setting, as part

of the curriculum and for academic credit, the Court has

recognized that the school should be able to exercise

supervisory control over the classroom activity.

Hazelwood, 484 U.S. at 268-69; cf Brown v. Li, 308 F.3d

939, 949-50 (9th Cir. 2002) (noting that Hazelwood

applies to core curricular speech, but does not apply to

student extracurricular speech, including newspapers).

Conversely, when campus newspapers are not part of a

classroom exercise, suggestions of pedagogical

justification for censorship is unpersuasive. See Student

Gov't Ass'n v. Bd. of Trustees of the Univ. of

Massachusetts, 868 F.2d 473, 480 n.6 (Ist Cir. 1989)

(rejecting the application of Hazelwood to college

newspapers); see also Kincaid v. Gibson, 236 F.3d 342,

346 n.5 (6th Cir. 2001) (en banc) (noting that “Hazelwood

has little application” to case involving university

officials’ confiscation of yearbooks in violation of the First

Amendment). “{I}f a college has a student newspaper, its

publication cannot be suppressed because college officials

dislike its editorial comment.” Joyner v. Whiting, 77 F.2d

456, 460 (4th Cir. 1973).

Here, the University’s President and the Dean of

the College complained that the newspaper had published

articles that were “irresponsible” and “defamatory.” See

Pet. 5. The president rebuked the publication for

criticizing him and for allegedly sullying the reputation of

the faculty and the school. Jd. at 5-6. Such complaints

are not pedagogical. In any case, “[p]ublic officers, whose

character and conduct remain open to debate and free

discussion in the press, find their remedies for false

accusations in actions under libel laws providing for

redress and punishment, and not in proceedings to

-15-

restrain the publication of newspapers and periodicals.”

Near v. Minnesota, 283 U.S. 697, 718-19 (1931).

Third, the public wuniversitys mission is

fundamentally different from that of a high school, and

the power to censor does not advance its legitimate goals.

Censorship of college newspapers “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.” Rosenberger, 515 U.S. at 836. This

Court has observed that:

The first danger to liberty lies in granting

the State the power to examine publications

to determine whether or not they are based

on some ultimate idea and, if so, for the

State to classify them. The second, and

corollary, danger is to speech from the

chilling of individual thought and

expression. That danger is especially real

in the University setting, where the State

acts against a background and tradition of

thought and experiment that is at the

center of our intellectual and philosophic

tradition.

Id. at 835.

This distinction explains why the Court’s “cases

dealing with the right of teaching institutions to limit

expressive freedom of students have been confined to high

schools.” Bd. of Regents of the Univ. of Wisconsin System

v. Southworth, 529 U.S. 217, 239 n.4 (2000) (Souter, J.,

concurring in the judgment) (citations omitted). The “role

and purpose” of high schools, in contrast, are to prepare

children to become “members of the Republic” by

inculcating in them “the habits and manners of civility.”

Bethel Sch. Dist., 478 U.S. at 681; see also West Virginia

Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943) (stating

that they are “educating the young for citizenship”). The

= Fe

Court should grant review in order to restore the

freedoms that are so central to the flourishing

“intellectual and philosophic tradition” at this Nation’s

colleges and universities.

4. In addition to the real-world training

ground that it provides, an uncensored college press is

critically important in providing the services that any

newspaper provides to its readership, namely news about

the community and its public officials. The imposition of

prior restraints on the press was anathema to the

Framers, and the need for a free press is no less vital or

relevant on a college campus than anywhere else.

“(Lliberty of the press, historically considered and taken

up by the Federal Constitution, has meant, principally

although not exclusively, immunity from previous

restraints or censorship.” Near, 283 U.S. at 716. Such

freedom allows the press to fulfill its role as a “watchdog”

that alerts its readers to wrongdoing by officials.

“Clearly the watchdog comprises part of the

American tradition of freedom of the press. Judicial

recognition of the importance of the press’ institutional

function is firmly set in First Amendment case law.”

Timothy W. Gleason, The Watchdog in Nineteenth

Century Libel Law: A Common Law Concept of Freedom

of the Press at 4 (Aug. 1986) (paper presented at the

Annual Meeting of the Association for Education in

Journalism and Mass Communication, Law Division).

When university reporters turn the spotlight of the press

onto campus officials and faculty in order to scrutinize

and criticize their actions, they are fulfilling their

obligations as journalists and are as worthy of First

Amendment protections as their peers at mainstream

newsrooms across the country.

The Seventh Circuit’s imposition of the Hazelwood

regime on university journalists will harm college

journalists’ ability to cover controversial issues, and thus

aes

will handicap their readers’ ability to find out about

important issues on campus. Currently, college

newspapers cover national! and international news as well

as local issues relevant to the campus community. See

Peltz, 68 Tenn. L. Rev. at 481-82; Sylvia Spann, The

Student Newspaper in a Study Skills Class, 18 Teaching

English in the Two-Year College 38 (1991); see also

Student Activities Coverage: Mainframe of School

Publications, 21 Comme’n: Journalism Educ. Today vol. 2

(1987) (finding that roughly half of college newspaper

coverage is devoted to campus news). College reporters

“test the boundaries and look for their own sense of

ethical behavior,” and are relied upon (and expected to)

act as an impetus for campus dialogues. John Jasinski,

As They See It...: College Newspapers May Not Look the

Same to Campus Administrators, 33 College Media

Review 8, 11 (1994).

Under the Hazelwood regime, campus newspapers

will not serve their readers by reporting the undistorted

news. University officials will subject the campus

newspapers to overt forms of censorship. Peltz, 68 Tenn.

L. Rev. at 497-98 (citing examples of the “censorship

tsunami” that swept across high schools after Hazelwood).

And campus newspapers will frequently engage in self-

censorship. See Lomicky, 29 J. of Law & Educ. at 473

(concluding that after Hazelwood, many high school

newspapers engaged in self-censorship).

When college reporters criticize faculty and school

officials, they are sometimes able to spur reform. Such

criticism undoubtedly is the reason why some university

officials are eager to have the power to censor such

coverage, but it is not a valid justification for abridging

campus freedom of speech and of the press. Under the

Hazelwood regime, college journalists “could become

increasingly complacent, unwilling to go _ after

controversial stories in the student newspaper and

unwilling to tackle controversial subjects and events....”

-18-

Peltz, 68 Tenn. L. Rev. at 534. Without such experience

during college, it would be less likely “that the same

college editor as a professional journalist would

aggressively pursue” similarly controversial stories

regarding government officials. Jd. at 535.

5. The logic of the Seventh Circuit’s opinion is

not confined to student newspapers, or even to students.

An extension of the Hazelwood rule to the university level

would also chill faculty members’ exercise of First

Amendment rights. The Hazelwood opinion has been

used in the lower courts to restrict teacher freedoms.

Peltz, 68 Tenn. L. Rev. at 483 (noting that “Hazelwood

has served as a springboard for lower courts to allow

executive inroads not only into other student

constitutional freedoms, but also into ... teachers’

academic freedom.”).

The Seventh Circuit’s extension of Hazelwood to

the college level could be expected to have a similar effect

on university teachers. Peltz, 68 Tenn. L. Rev. at 534

(noting that “there would be little reason to think that the

tradition of academic freedom in American higher

education — despite the approval of case law — is any more

than a professional courtesy that college administrators

may lawfully disregard on pedagogical grounds”) (citation

omitted). The Supreme Court should grant review in

order to forestall such an outcome, and to reaffirm the

view expressed in Healy that:

[Tlhe 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

-19-

college classroom with its surrounding

environs is peculiarly the “marketplace of

ideas,” and we break no new constitutional

ground in reaffirming this Nation’s

dedication to safeguarding academic

freedom.

Healy, 408 U.S. at 180-81 (internal quotation marks and

citations omitted).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Robert A. Long, Jr.

Counsel of Record

Kurt A. Wimmer

COVINGTON & BURLING

1201 Pennsylvania Ave., NW

Washington, DC 20004-2401

(202) 662-6000

Counsel for Amici Curiae

October 2005

- 20 -

"Court, U.S.

FILED

OCT 2 0 206

No. 05-377 cme

In the Supreme Court of the United States

MARGARET L. Hosty, JEN! S. PORCHE,

AND STEVEN P. BARBA,

Petitioners,

-~ Vv.

PATRICIA CARTER,

Respondent.

@—

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

.

Brief of Amici Curiae Student Press Law Center, Associated

Collegiate Press, College Media Advisers, Community

College Journalism Association, Society for Collegiate

Journalists, Reporters Committee for Freedom of the Press,

American Society of Newspaper Editors, National

Newspaper Association, Newspaper Association of America,

Society of Professional Journalists, Associated Press

Managing Editors, College Newspaper Business and

Advertising Managers, National Federation of Press Women,

National Lesbian and Gay Journalists Association and the

Independent Press Association/Campus Journalism Project in

Support of Petition of Margaret L. Hosty, Jeni S. Porche, and

Steven P. Barba for Writ of Certiorari

Of Counsel: Richarg ©. Goehler

(Counsel of Record)

S. Mark Goodman Frost Brown Todd LLC

Michael C. Hiestand 2200 PNC Center

Student Press Law Center 201 East Fifth Street

1101 Wilson Bivd., Ste 1100 Cincinnati, Ohio 45202

Arlington, VA 22209-2211 (513) 651-6800

(703) 807-1904 Counsel for Amici Curiae

TABLE OF CONTENTS

Page

ST EITTEED ccccesccepsessstesesecsvcessetcscecsssorscssts i

TABLE OF AUTEIORITEES ccccccsssesseccssseseseovssoosecosercess ii

INTEREST OF AM/C/ CURIAE IN THIS CASE ........ I

ST i? iE EED . csesscessccssseveteovecssscovesssceceveness I

SUMMARY OF ARGUMENT. ..........:ccccccscececeeeereeernes 2

ee 2

I, A First Amendment standard specifically

created for high school student curricular

expression is not appropriate for college and

SPUEEEEE GOUNEIDUIED. cccvcccerccesecesvsscccssceveseveseseoseces 6

A. This country’s intellectual legacy

exemplifies the fundamental role the

First Amendment has played in

preserving the “marketplace of ideas”

in our College CAMPUSES. .........c.cccceeeee 7

B. Extension of Hazelwood’ s standard

to college student media would have

GiSASIFOUS CONSEQUENCES... .......cccccccceeeeeees 10

CONCLUSION ...... siseenes sicidetdeian seonsenssvensencseusounesuniontt 18

APPENDIX -~ Identification of the Amici Curiae ......... la

TABLE OF AUTHORITIES

CASES PAGE(S)

Antonelli v. Hammond,

308 F. Supp. 1329 (D. Mass. 1970) .......cccccscereerereeerseeees 5

Bannon v. School Dist. of Palm Beach County, 387

Oye 12

Bazaar v. Fortune, 476 F.2d 570 (Sth Cir. 1973) ............ 5,9

Board of Regents of the Univ. of Wisconsin System v.

Southworth, 529 U.S. 217 (2000) .....cccccerercesererereeseeseeees 8

Boring v. Buncombe County Bd. of Educ., 136 F.3d

FOO, SFO CR Cae BO cecnernsnnianneenn 12

Brandt ex rei. Brandt v. Board of Educ. of City of

Chicago, 326 F.Supp.2d 916 (N.D. Ill. 2004)............... 12

Desilets v. Clearview Regional Board of Education,

G67 A.B TSO GEE, COPD ctctrcrretnmsstttinnnmnasians 13

Fleming v. Jefferson County School Dist. R-1, 298

i 12

Gambino v. Fairfax County School Board,

479 F. Supp. 731 (4th Cir, 1977) ........ccccccccceceeeeereeeereess 10

Hazelwood School Dist. v. Kuhimeier,

ee Passim

Healy v. James, 408 U.S. 169 (1972) ......ccccccccccececeeeeeeeeees 7,9

Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) .............00. 3,8

In re Williams, 205 Cal. Rptr. 903 (Cal. App. 1984) ......... iI

Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973) ...........0. 5,5

Kincaid v. Gibson, 236 F. 3d 342 (6th Cir. 2001) ............ 5,9

Lueth v. St. Clair County Community College,

732 F. Supp. 1410 (E.D. Mich. 1990) .0..........cccccceeneeeeees 5

Mazart v. State, 441 N.Y.S.2d 600

Me Re | Re ree ee ee eee ae en 5

Milliner v. Turner, 436 So. 2d 1300

C0 GR I, FEI. cctencteenesetictinmnienncmnsiincientiivtmenin 5

Mississippi Gay Alliance v. Goudelock,

SOO rae CET S CPE Gils SOESE cineninanensminnanion 5

Nicholson v. Board of Education,

ee ff. 10

Panarella v. Biernbaum, 32 N.Y. 2d 108,

- AA De 8 | A. Ee Renee 6

Phillips v. Oxford Separate Mun. School Dist., 314

F.Supp.2d 643 (N.D.Miss. 2003) ........cccccccccreceeerenreeeenes 12

Romano v. Harrington, 725 F. Supp. 687

Fk ee Pen sesusedesensesvnapenttuciee 16

Rosenberger v. Rectors and Visitors of the University

of Virginia, 515 U.S. 819 (1998) oo. ccccccsceceeeeereeee By Dy 8

Schiff v. Williams, 519 F.2d 257 (Sth Cir. 1975) .....cccceccees 5

Sinn v. Daily Nebraskan, 638 F. Supp. 143

(D. Neb. 1986) aff'd, 829 F.2d 662

SD GER. EDT) coccececscvssvcvacesecesecvseuessavesecscccesscnoectnunecnedoese 5

Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983) .......06. 5,8

State Board for Community Colleges v. Olson,

SF Feds GaP GORE, TGBG) ccesensestescepencevevnseviounesvevicssensent 6

Student Government Association v. Board of

Trustees of the University of Massachusetts,

ee ae BFS RGR Ce, FRIRID ceccecsncwessnevsenevesnnstenensnsonteyes 9

Tinkzr v. Des Moines Independent Community School

District, TIS UB. TUS (UGPS) cerrescocrecceccrsccsevenveoveens 10, U1

Trachtman y. Anker, 563 F.2d 512 (2nd Cir. 1977) ......006 10

Walz ex rel. Walz v. Egg Harbor Tp. Bd. of Educ.,

S42 FSG 270 (S86 Cop, FUGS) cccccccccccccccvsccscccevecessccesecoees 12

Widmar v. Vincent, 454 U.S. 263 (L981) c.ccccccccccseeceereseeeees 7

Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969) ......... LO

STATUTES AND RULES

BUTTS COGS RIGO FF cccceccecsevcescvcescocesevevenssocosonnencsosessonve l

OTHER AUTHORITIES

“About Us” on The Miami Student Web site

(http://miamistudent.collegepublisher.com).......... puecescen 4

C. Helwick, Memorandum to CSU University

PURSES GID DO SOO Presecrenescccscensresnscessscnensssenesnsceee 18

Death by Cheeseburger: High School Journalism in

the 1990's and Beyond, Freedom Forum

(Arlington, Va.), 1994, pp. 113-15. 0.0... cccccceceeceeereeeenes 14

Editor & Publisher international Yearbook 2005 at

Re Ee Re eee 4

High School Confidential, Brills Content, June 2001,

nL 14

J. Marc Abrams and S. Mark Goodman, Comment,

End of an Era? The Decline of Student Press

Rights in the Wake of Hazelwood School District

v. Kuhimeier, 1988 Duke LJ. 706, 728............cccccceeeeee 13

Kapian, J., Hazelwood decision continues to haunt

high school journalists, Editor and Publisher,

ee Fy ete Binntittnninigmnnnnin 15

L. Kopenhaver and R. Spielberger. College Media

Review, B 4-11 (Wimter 2002) .eccesecovccvevenevsseveseseesesereveees 4

Martha M. McCarthy, Post Hazelwood

Developments: A Threat To Free Inquiry In

Public Schools, 8\ Ed. Law. Rep. 3, 689 (June

ee ninteesigistitdomemmpeemitnintationipebenetintin 13

Miami-Dade Community College (FL) Catalyst, July

22, 1992 (as reported in the Student Press Law

Center Report, Winter 1992-93, at 34). ..0......ccccccccceeees 16

Northern Illinois University, Northern Star, June

1985 (as reported in the Student Press Law Center

PRESS, FUN CSET, GS BE), cocereccccescecsccesssscssessesevecessvocsesees 17

Richard J. Peltz, Censorship Tsunami Spares College

Media: To Protect Free Expression on Public

Campuses, Lessons From The ‘College

Hazelwood’ Case, 68 Ten. L. Rev. 481 (2001) ............. 4

Student Press Law Center, Memo linking California with

Hosty decision worries students, SPLC NewsFlash,

September 15, 2005 (available online at:

http://www.splc.org/newsflash.asp7id=1064&year=)... 18

Student Press Law Center Web site

GETS CC LCT) cercscsstssssccnsssesnsstescsccszssssseseeessseen 16

U.S. Census Bureau survey:

http://chronicle.com/weekly/almanac/200 | /nation

FORESTRY cencnnannenmanneimeininteanantee 6

University of Southwestern Louisiana, L'Acadien,

(1991), at 12, 219 (as reported in Student Press

Law Center Report, Fall 1994, at 29). ........ccccccceseceeeees 17

West Virginia State University The Yellow Jacket,

Jan. 27, 1994 (as reported in the Student Press

Law Center Report, Spring 1994, at 25) ........cccsceeereees 17

vi

William G. Buss, School Newspapers, Public Forum,

and the First Amendment, 74 lowa L. Rev. 505, 513

Brief of Amici Curiae in Support of Petition of

Margaret L. Hosty, Jeni S. Porche, and Steven P. Barba

for Writ of Certiorari

+

INTEREST OF AMICI CURIAE IN THIS CASE’

The Amici Curiae’s Interest

Amici, identified in the attached Appendix, represent

Student media, journalism educators and professional

journalists. These individuals and organizations come to this

Court to voice their grave concern about the consequences of

the decision of the United States Court of Appeals for the

Seventh Circuit entered in this case. Because of the

exceptional importance of this case for the future of free

expression and thoughtful debate on public college and

university campuses and the training and preparation of

young journalists, Amici respectfully request the Court to

review, reconsider and reject the ruling.

STATEMENT OF FACTS

On November 1, 2000, Patricia A. Carter, dean of

student affairs at Governors State University, called the

printer of the student newspaper, the /nnovator, and

demanded that che or a,other GSU official be allowed to

read and approve the newspaper pricr to publication. The

, Pursuant to Supreme Court Rule 37.6, the Amici Curiae state

that no counsel for any party authored this brief in whole or in part, nor

did any person or entity, other than the Amici Curiae, their members, and

their counsel, make a monetary contribution to the preparation or

submission of this brief. Counsel of record for all Petitioners and

Respondents have consented to the filing of thts brief

Innovator’s student editors refused Carter's demands. The

Innovator, which had published a number of stories and

editorials critical of the GSU administration just prior to the

censorship, has not been published since.

SUMMARY OF ARGUMENT

The Hazelwood First Amendment standard was

created specifically for high school student expression and is

inappropriate for college and university students. This

country’s intellectual legacy exemplifies the fundamental

role the First Amendment has played in preserving the

“marketplace of ideas” on our college campuses. Extension

of Hazelwood'’s standard to college campuses — and

specifically to college student media — would have

disastrous consequences. The Hazelwood standard is vague

and difficult to apply outside the specific context in which it

arose. Based on our observations of Hazelwood's impact on

student journalism at public high schools, amici fear that the

extension of Hazelwood to college campuses will result in a

significant increase in threats of censorship and the

curtailment of debate on controversial issues, as well as

meaningful criticism of government officials and policies.

Indeed, less than four months after the Hosty decision was

handed down, its effect is already being felt beyond the

Seventh Circuit.

ARGUMENT

Introduction

In Hazelwood School District v. Kuhimeier, 484 U.S.

260 (1988), this Court explicitly left open the question of

whether the First Amendment standard it adopted for school-

sponsored speech of school children at the high school and

2

elementary school level would be appropriate with respect to

censoring such speech by students attending public colleges

and universities. Because of the growing confusion and

conflict among the lower courts on this important question,

amici believe the time has come for this Court to provide an

answer.

In this case, the Seventh Circuit held that both the

framework’ of the Hazelwood decision — as well its

deference to school officials acts of censorship’ — should be

applied to limit adult student speech in a subsidized student

newspaper on a public college or university campus. The

Seventh Circuit's ruling cannot be reconciled with this

Court's decision in Rosenberger v. Rectors and Visitors of

the University of Virginia, 515 U.S. 819 (1995), in which the

Court held that the First Amendment prohibits a public

university from denying funding to a student publication

because of its religious or political message. Under the

Seventh Circuit's decision in Hosty, once the student

publication at issue in Rosenberger accepted any funding,

the university could demand both the right to review the

publication and to censor its content as a means of

disassociating the school from political controversy.

For almost two centuries, editorially independent,

student-edited publications at public and private colleges and

universities have been a vital component of campus life in

Hosty v. Carter, 412 F.3d 731, 735 (7th Cir. 2005) (en banc).

Id. at 734-735. ("To the extent that justification depends on ...

the desire to ensure ‘high standards for the student speech that ts

disseminated under (the school’s] auspices’ _.. but also the goal of

disassociating the school from ‘any position other than neutrality on

matters of political controversy, there is no sharp difference between

high school and college papers.”’) (citations omitted)

3

the United States.’ As counterparts to the professional media

in American society at large, college journalists act as

independent watchdogs of student governments and

university administrators, ensuring that student and public

money is wisely spent, policy decisions thoughtfully made

and campus justice equitably administered. A key part of

virtually every university campus in the nation, college

student newspapers play a crucial role in ensuring a true

“marketplace of ideas” exists at an institution of higher

education. As a supplement to the professional media,

college journalism also serves the wider community by

monitoring the administration of higher education. College

students have a greater stake than anyone in the conduct of

government on campus and they have unparalleled access to

campus officials and information. Student news

organizations are an important training ground for

professional journalists.°

Most public college student news organizations rely

primarily on advertising revenue to support their activities,

with less than 28 percent reporting they receive any financial

assistance from their college or university's general funds.’

4

The student newspaper at Miami University of Ohio, The Miami

Student, claims to be the oldest student newspaper in the United States,

established in 1826. From “About Us” on The Miami Student Web site

(hetp: //miamistudent.collegepublisher.com).

There are approximately |,627 daily and weekly college student

newspapers currently published on American college and university

campuses. Editor & Publisher International Yearbook 2005 at 17-36.

: Richard J. Peltz, Censorship Tsunami Spares College Media:

To Protect Free Expression on Public Campuses, Lessons From The

‘College Hazelwood’ Case, 68 Ten. L. Rev. 481, 481-482 (2001).

: In 2005, 98 percent of college and university newspapers

reported revenue from advertising, with 52.7 percent reporting that ad

sales accounted for more than half of their annual revenue. Campus

4