Freedom of Repression

For almost five years, the Innovator newspaper at Governors State University has been absent from the suburban Chicago campus, banished by the administration’s demands for prior approval of its content.

After a June 20 decision by the 7th U.S. Circuit Court of Appeals, the Innovator may never be seen again–and many other campus newspapers may join it on the list of publications censored or eliminated for questioning the status quo.

The decision in Hosty v. Carter demonstrates the threat that right-wing judges pose to freedom of expression in America. The majority opinion, written by conservative judge Frank Easterbrook and supported by other conservative justices such as Richard Posner, is a classic example of judicial activism. Easterbrook’s convoluted opinion abandons well-established precedents supporting the free expression rights of college students, and gives college administrators near-absolute authority to control the content of student newspapers.

The facts of the Hosty case are particularly appalling. On November 1, 2000, Governors State Dean Patricia Carter called the Innovator’s printer, attempting to stop the publication of the newspaper. When she discovered that she was too late, she ordered the printer to give her future newspapers before they were printed so that she could approve content. Two days later, the president of the university wrote a campus-wide memo denouncing the Innovator because of its coverage of the firing of the newspaper’s advisor (who later won an award for wrongful dismissal). Editor-in-Chief Jeni Porche and managing editor Margaret Hosty fought back, refusing to accept the administration’s demands for censorship.

Easterbrook built his logic upon the Supreme Court’s 1988 Hazelwood case, which gave high school principals limited authority to control newspapers created in the classroom. Hazelwood has had a disastrous impact, supporting censorship of the student press. The Hosty decision not only applies Hazelwood to college students, but greatly expands the scope of censorship to cover any newspaper or, potentially, any activity subsidized with student fees.

The Hosty case is only part of the growing conservative attack on freedom of speech on campus. An alternative newspaper at the University of Wisconsin at Eau Claire was denied funding in 2005 because the student government thought it was too “political.” Arizona’s state budget for next year includes a ban on state appropriations for college student newspapers after a campus sex column offended legislators.

And David Horowitz’s Academic Bill of Rights has been introduced as legislation in more than a dozen state legislatures; some versions of the bill would compel grievance procedures at all public (and even private) colleges to enable students to start investigations against professors who express political views or who assign reading lists deemed “too liberal.” Horowitz has even threatened to sue Lehigh University after it allowed Michael Moore to speak on campus last fall, claiming that this violated the school’s nonprofit status.

But the Hosty decision is so extreme in denying student liberties that even conservatives are worried. Charles Mitchell, a program officer at the right-leaning civil liberties group Foundation for Individual Rights in Education, noted, “Hosty will give college administrators yet another excuse to indulge their taste for squelching speech–and that’s never a good thing for liberty.”

Although the 7th Circuit Court of Appeals only covers Illinois, Wisconsin and Indiana, the decision will enable administrators across the country to censor papers without penalty. Under the “qualified immunity” standard, state officials are only liable for violating constitutional rights when the law is clear, and the Hosty decision raises serious doubts about whether college students have any rights. And if administrators can legally treat college students the same as elementary school students, what will happen to academic freedom?

The Society for Professional Journalists (SPJ) president Irwin Gratz said, “It is a sad day for journalism in the United States.” The SPJ and dozens of journalism groups joined an amicus brief in the case, urging the 7th Circuit to defend freedom of the press on campus.

“My co-plaintiffs and I are resolved to appeal to the nation’s highest court,” said Hosty.