# Amicus Curiae Brief — Hosty v. Carter

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0245%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1169

## Text

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

-10-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0245%3A5. Public record. Not legal advice.