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"A doctor can bury his mistakes, but an architect can only advise his clients to plant vines."
– Frank Lloyd Wright
THE
BULLETIN
Volume 74 | Issue 3
May 2006

Campus Media: Has free speech become pressure sensitive?

Beth Mollers

Colleges and universities have traditionally been bastions of intellectual exploration—where ideas, even radical or unpopular ones, can be discussed without fear of retaliation or censorship. But some worry that the current social and legislative climate has become less supportive of free speech and press rights for students.

Pressures from alumni, legislators, and donors can push protecting students’ free speech down on the list of priorities for many colleges and universities, said Mark Goodman, executive director of the Student Press Law Center (SPLC), a non-profit group which advocates for students’ free-press rights (personal communication, December 13, 2005). “Commitment to free and open debate is way low on the list of priorities,” Goodman said.

Goodman, who has been the executive director of SPLC since 1985, said he has seen major change in the landscape of free speech and press rights for college students. “What I see today is there is a less clear understanding of and commitment to the principles of free expression by college and university administrators,” Goodman said. He pointed to a case at Syracuse University where the chancellor shut down a closed-circuit television station run by students because she found some material the station broadcast to be lacking in taste and sensitivity to diverse groups on campus. “In her mind, diversity trumped free expression,” Goodman said. “Today what we see in increasing number is people who have no problem engaging in acts of censorship. They have no problem in engaging in acts that limit student expression.”

The value of student expression is undeniable, Goodman said. College campuses were cradles for protests calling for equal treatment for blacks—an unpopular idea in the 1960s. This unpopular idea, however, was later adopted by mainstream society as the correct view. “One trap to avoid is believing that we can somehow determine now and forever those ideas that are good and acceptable and those that aren’t,” Goodman said (personal communication, December 13, 2005).

In his 30 years as a college media advisor, David Adams, now at Indiana University, has seen both positive and negative trends in terms of student free speech (personal communication, December 12, 2005). A positive trend, he said, is that a broader set of issues can now be discussed than when he began his advising career. “What is different now is that there are more pressures from the left and the right,” he said. On the left, Adams said, the political correctness movement strongly wants to shut out other points of view using overly broad “hate speech codes,” though the courts have whittled those down somewhat, he said. Federal courts used two major cases (The UWM Post v. Board of Regents of the University of Wisconsin, 1991; Doe v. University of Michigan, 1989) to strike down codes as either overly broad or vague. Codes that were vague made it difficult for students or faculty to determine what type of speech might be “hate speech.” Codes that were overly broad limited many kinds of speech that would normally enjoy constitutional protection.

On the right, conservative activist David Horowitz is trying to impose balance in the classroom by pushing his “Academic Bill of Rights” on faculty, Adams said. Horowitz (2005) argues that the “Academic Bill of Rights” is needed to protect and enforce academic neutrality on campuses because “professors behave as political advocates in the classroom, express opinions in a partisan manner on controversial issues irrelevant to the academic subject, and even grade students in a manner designed to enforce their conformity to professorial prejudices” (¶ 4). But the America Association of University Professors (2003) argues that pluralism and viewpoint neutrality imposed from outside the academy creates the danger that diversity will be measured by political standards instead of the academic criteria set by professional scholars.

The Chronicle of Higher Education (2005) documented the trend toward weakened free speech rights with a series of essays from various commentators. In introducing the series, the Chronicle editors (2005) wrote:

Rarely has the climate on college campuses seemed such a cause for concern. …What is notable is not that so many people are talking about a big chill, but that so many different people—representing very different perspectives—are doing so. (p. B7)

Fear of controversy, the desire to be politically correct, pressures from donors, legislators, and activists may be causing this big chill that the Chronicle editors are talking about. These pressures could damage the academy’s status as a bastion of free speech, intellectual exploration and student development.

Student press case law

During the past few decades, the courts have created a body of law granting wide freedom for debate on college campuses, Adams said (personal communication, December 11, 2005). In Papish v. Missouri (1973), the Supreme Court ruled that a university could not censor a student newspaper based on content because the speech was protected by the First Amendment. At public colleges and universities, advisors and administrators are precluded from reviewing content prior to publication because this could be construed as a “state agent” censoring speech. Similarly, in Antonelli v. Hammond (1973), the courts held that prior restraint of a college publication is illegal and that control of student media content should rest in the hands of the duly appointed student leaders to ensure no abridgement of students’ free speech rights by state employees. In addition, the courts have held that other methods of squelching student expression in response to objectionable content are unconstitutional. Withholding funding (Joyner v. Whiting, 1973) or changing the funding mechanism (Stanley et al. v. Magrath et al., 1983) for a student newspaper were found to be violations of the First Amendment. In a more recent case, Kincaid v. Gibson (2001), the Sixth Circuit Court of Appeals found that the students’ First Amendment rights were violated when Kentucky State University dean Betty Gibson prevented distribution of the school-subsidized yearbook.

But, a recent decision by the Seventh Circuit Court of Appeals in Hosty v. Carter, has created confusion and complexity in determining the free expression rights of college students, Goodman said (personal communication, December 13, 2005). The Seventh Circuit ruling now applies to schools in Indiana, Illinois, and Wisconsin. The U.S. Supreme Court in February declined to hear the Hosty case. In this case, Dean of Student Affairs and Services Patricia Carter ordered the printer for the Governors State University Innovator newspaper not to print the paper until each issue had been reviewed by a GSU official. The students sued alleging that Carter was retaliating because the Innovator had written negative stories about the Governors State University administration. Originally, the Seventh Circuit ruled in favor of the students, but the Court of Appeals overturned the ruling saying that Carter could not have known that her actions were illegal at the time because another case in the Sixth Circuit, Kincaid v. Gibson, had not yet been decided. The Court of Appeals also left open the possibility that college students could be restricted to the same standard as high school journalists—the Hazelwood standard. This standard was developed in the 1988 Supreme Court ruling in Hazelwood v. Kuhlmeier and allowed that high school students’ speech and press rights could be censored for “legitimate pedagogical reasons.”

The SPLC and Foundation for Individual Rights in Education said in petitions to the Supreme Court that this standard is not appropriate for college students because the vast majority of college students are over the age of 18 and should, therefore, be entitled to the same constitutional rights that adults are in other settings (SPLCa, 2005; FIRE, 2005). They also argue that colleges and universities because of their nature should offer more freedom of inquiry than high schools.

In a legal analysis for the First Amendment Center, attorney Douglas E. Lee (2005), called the Hosty ruling “puzzling” because “the court aggressively cites concepts from Hazelwood that it later concedes have little relevance to most college newspapers” (¶ 8).

Hosty implications beyond student press

Because the Supreme Court let the Hosty ruling stand, the legal landscape of students’ press rights is less consistent than it used to be, as Hosty directly conflicts with other state and federal courts (SPLC, 2006).

The Hosty ruling means that, at least in Illinois, Indiana, and Wisconsin, determining students’ free speech rights is difficult, Goodman said (personal communication, December 13, 2005). The legal question will be whether the college or university has created a designated public forum. If a public forum has been created, then student speech cannot be censored, even if university money is used to bring a speaker to campus, print a paper, put on a play, or create a broadcast. The major element used in determining if a student medium or group is a public forum is if students have been given the freedom to determine content. Additionally, the existence of policies to codify that freedom and the nature of the educational relationship between the group and the school also plays a role (SPLC, 2005b). The problem with this is that each set of circumstances will require a thorough analysis—something that cannot be decided definitively outside of a courtroom. As Goodman explains, “No one is going to know what the law is until a conflict arises and someone decides to go to court over it” (personal communication, December 13, 2005).

The implications of Hosty extend far beyond student media and apply to other types of student expression, Goodman said (personal communication, December 13, 2005). For instance, imagine a student group that receives university funding decides to bring a speaker to campus or show a film; if anyone objects to the content presented, how will one determine if that club is a designated public forum? Public forums are usually thought of as somewhat tangible, but Hosty leaves much more uncertainty and ambiguity, making it difficult to advise student organizations and build community on campus.

Additionally, the ruling makes student affairs administrators much more vulnerable to pressure to censor student expression from inside and outside their institution where previously an administrator could say “Under the First Amendment, I can’t legally censor this speech,” Goodman added (personal communication, December 13, 2005). Now administrators may have more authority to censor and “Many student affairs administrators don’t want that authority,” Goodman said. “They don’t want to be censors.” Adams agreed that Hosty could put administrators in the awkward position of squelching free expression by students. “Hosty, if carried to the extreme that some would want it, would force administrators to close that debate or stop a controversial speaker or curtail a controversial series of stories,” Adams said (personal communication, December 12, 2005).

Advisor firings

In addition to the current legislative issues surrounding students’ free speech, the university climate itself can pose challenges for student affairs. Recently, a number of college media advisors across the United States have been fired from their jobs because administrators at those schools were not satisfied with the “quality” of the student media. The firings have the potential to chill student speech thereby reducing free expression.

Ron Johnson, the advisor to the Kansas State Collegian newspaper was fired when the student editors failed to cover an on-campus conference of black student leaders from the Big 12 (Hoover, 2004). Many might concede that failing to cover a major gathering of student leaders was a mistake. The paper had won numerous national awards during Johnson’s tenure as advisor and he had received positive employee evaluations from his supervisor (Hoover, 2004). Nonetheless, the head of the publications board did a content analysis comparing the print Collegian with the online versions of other top college papers, and Johnson was then reassigned from his newspaper advising job to a teaching job (Milburn, 2004).

At Vincennes University in Indiana, Trailblazer newspaper advisor Michael Mullen was reassigned from that job as well as his job as head of the journalism program after a series of controversies related to Trailblazer content. In 2003, the Trailblazer printed an April Fools’ Day edition that was not well received by many students and staff on campus. In fact, some students were seen stealing copies of the paper from stands (SPLC, 2004a). Later in the year, students wrote stories about low enrollment and stories questioning the university president’s fitness for the job. Shortly after that series of event, Dean of Humanities Mary Trimbo called Mullen and the Trailblazer staff in for a meeting. She said the story about the president was “biased and misleading” (SPLC, 2004a). After the meeting she wrote a memo telling the staff not to print another April Fools’ Day edition. The student staff printed the edition anyway. In May 2004, Mullen was told in his evaluation that he would be reassigned. Mullen told the SPLC in the same article, that he believed he was reassigned because he refused to censor the Trailblazer. “In my evaluation, Trimbo criticized my handling of the students and said I gave them too much freedom,” Mullen said. “She admitted that she knew that was my style and that I was prepared to give them a lot more breathing room—and she didn’t like that” (SPLC, 2004a).

At Barton County Community College in Great Bend, Kan., Jennifer Schartz, advisor of the Interrobang newspaper was not given a reason for her firing, but she was fired shortly after refusing to censor a letter to the editor that the student editor had selected for publication (SPLC, 2004b). The letter at the heart of the controversy was written by a student who had been cut from the basketball team. It was critical of the college’s coach. In a letter to Schartz the college’s Board of Trustees lawyer wrote that the “administration has decided that no letter to the editor will be published which are by and large personal attacks upon other members of the Barton County Community College family” (SPLC, 2004b, ¶ 10). Schartz had received positive evaluations for her work in her three years at BCCC (SPLC, 2004b).

More recently, in December 2005, Karen Bosley, a 35-year newspaper advisor at Ocean County College was informed that she would assigned to teach only English classes (Evelyn, 2005). Bosley and her supporters allege she was fired because the newspaper she advised, the Viking News, had published articles critical of the college president, Jon H. Larson. Administrators deny this charge (Evelyn, 2005).

What can student activities professionals do?

In contrast to situations on other campuses, Chancellor James Moeser at the University of North Carolina–Chapel Hill recently reaffirmed the rights of student journalists on his campus. “Even if we had an editorial group that I didn’t trust, that I thought were actually poor journalists and making bad judgments—and [in] the most extreme case, abusing their privilege of putting ink on paper—I still think that’s not grounds for our stepping in to censor a newspaper,” he told the Daily Tar Heel newspaper (Johnson, 2005, ¶ 8). Unfortunately, fewer and fewer administrators are willing to make that statement, Goodman said (personal communication, December 13, 2005).

So how can student affairs administrators and student media advisors work to preserve and protect free speech on campus? Adams recommended setting policies and bylaws for student organizations that make it clear that they encourage a broad spectrum of thought (personal communication, December 13, 2005). The bylaws should also designate that the group operates as a “designated public forum,” he said. In light of Hosty, this step is particularly important for schools in Indiana, Illinois, and Wisconsin (SPLC, 2006). Advisors should make sure that policies outlining evaluation and removal procedures are clear and that the students are responsible for the content of the student media or of programs and events, Adams added.

Staying informed on free expression issues by reading online and print resources related to these issues, is one of the best things campus life administrators can do, Goodman said (personal communication, December 13, 2005). The Student Press Law Center Web site (www.splc.org) as well as Foundation for Individual Rights in Education (http://thefire.org), and the American Civil Liberties Union (http://aclu.org) also offer good information, he said. The First Amendment Center Web site (www.firstamendmentcenter.org) and national media also can be resources.

Student affairs administrators can model the importance of free expression by attending speakers, films, and performances of all persuasions and helping to expose students to a variety of viewpoints. “The principle that is so important here that is almost lost is the obligation that we have as Americans to stand up for the free expression rights for those we disagree with,” Goodman said (personal communication, December 13, 2005).

In response to universities’ reactions to student newspapers running a controversial advertisement, Martin Snyder, director of the Office of Academic Freedom for the American Association of University Professors, said:

"Suppression of any type of material—ads, plays, speeches—deemed offensive by individuals or groups will not and should not stifle uncomfortable ideas. As teachers and citizens, we must defend free speech and the flow of ideas it engenders. (National Coalition Against Censorship, 2001, ¶ 5)

As student affairs professionals, this is even more critical in our positions working with students. We must foster open debate, allowing students the freedom to sift through varying viewpoints to become the people they want to be.

References

American Association of University Professors, Committee A on Academic Freedom and Tenure. (2003, December). Retrieved February 11, 2006 from the AAUP Web site: http://www.aaup.org/statements/SpchState/Statements/BillofRights.pdf.
Antonelli, v. Hammond; 08 F. Supp. 1329; 1970 U.S. Dist. LEXIS 12948 (1970). [Joyner v. Whiting; 477 F.2d 456; 1973 U.S. App. LEXIS 10599 (1973).]
Bertin, J., Goodman, M., Synder, M., D’Entremont, J., Finan, C., & Platt, J. (2001, March 26). Free speech groups express concern over student reaction to controversial ad. Retrieved February 6, 2006, from the National Coalition Against Censorship Web site: http://www.ncac.org/issues/reparationsad.html.
A chilly climate on the campuses. (2005, September 9). The Chronicle Review, The Chronicle of Higher Education, B7.
Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989).
Evelyn, J. (2005, Dec. 15). Professors at 2-year college in New Jersey say criticism of president led to their ouster. Retrieved Dec. 15, 2005 from The Chronicle of Higher Education Web site: http://chronicle.come/daily/2005/12/2005121503n.htm.
Foundation for Individual Rights, Amicus Brief to the Supreme Court (2005). Retrieved February 11, 2006 from http://www.thefire.org/pdfs/fffc2c0c035669e5e791e2d08016712c.pdf.
Hazelwood v. Kuhlmeier, 484 U.S. 260, 273; 108 S. Ct. 562; 98 L.Ed. 592; 1988 U.S. LEXIS 310; 56 U.S. L.W. 4079; 14 Media L. Rep. 2081 (1988).
Hoover, E. (2004, June 28). Black and white and mad all over: The ouster of Kansas State U.’s newspaper director has college-journalism advisors seeing red. The Chronicle of Higher Education, p. A10.
Horowitz, D. (2005, March 15). Why an academic bill of rights is necessary, Testimony before the Education Committee of the Ohio Senate. Retrieved Feb. 11, 2006 from the Students for Academic Freedom Web site: http://www.studentsforacademicfreedom.org.
Johnson, C. (2005, September 29). No. 1 in the hood, g: Chancellor Moeser’s move to affirm the freedom of the press on UNC’s campus is good news for anybody who supports the First Amendment. Retrieved December 21, 2005, from the Daily Tar Heel Web site: http://www.dailytarheel.com/vnews/display.v/ART/2005/09/29/433b5b220d71f?in_archive=1.
Kincaid v. Gibson, 236 F. 3d. 342; 2001 U.S. App. LEXIS 86; 2001 FED App. 0005P (6th Cir.); 29 Media L. Rep. 1193 (2001).
Milburn, J. (2004, July 15). Judge allows reassignment of Kansas State advisor. Retrieved July 16, 2004, from The Capital-Journal Web site: http://cjonline.com/stories/071504/loc_ronjohn.shtml.
Papish v. Board of Curators of the University of Missouri et al., 410 U.S. 667; 93 S.Ct. 1197; 35 L. Ed. 2d 618; 1973 U.S. LEXIS 93 (1973).
Stanley et al. v. Magrath et al.; 719 F. 2d. 279; 1983 U.S. App. LEXIS 16170; 9 Media L. Rep. 2352 (1983).
Student Press Law Center. (2006, February 21) Supreme Court announces it will not hear appeal in college censorship case: Ruling means college students in three Midwestern states will have extra challenges in defending their press freedom. Retrieved March 2, 2006 from http://www.splc.org/newsflash.asp?id=1190. Student Press Law Center. (2005). Amicus brief to the Supreme Court. Retrieved February 11, 2006 from the Student Press Law Center Web site: http://www.splc.org/pdf/hostypetitionbrf.pdf.
Student Press Law Center. (2005, Fall). Appeals court extends Hazelwood to colleges: Student journalists wait to see impact of 7th Circuit’s ruling in Hosty v. Carter. SPLC Report, 27(3). Retrieved December 22, 2005, from http://www.splc.org/report_detail.asp?id=1239&edition=37.
Student Press Law Center. (2005, June 20). U.S. court throws out censorship claim by Governors State U. student journalists. Retrieved December 22, 2005, from: http://www.splc.org/newsflash.asp?id=1033
Student Press Law Center. (2004, June 9). Ind. college paper advisor believes he was dismissed because of content. Retrieved February 6, 2006, from: http://www.splc.org/newsflash_archives.asp?id=814&year=2004.
Student Press Law Center. (2004, May 3). Kansas college drops advisor who refused demands to censor student paper: College lawyer directed adviser to not allow newspaper to publish “personal attacks.” Retrieved February 6, 2006, from: http://www.splc.org/newsflash_archives.asp?id=803&year=2004
The UWM Post v. Board of Regents of the University of Wisconsin, 774 F.Supp. 1163 (E.D. Wis. 1991).