A Win for the Future

By: Nat Hentoff When I wrote The First Freedom: The Tumultuous History of Free Speech in America (Delacorte Press, 1980), I began with the 1969 U.S. Supreme Court decision (Tinker v. Des Moines Independent School District) in which it ruled that neither students nor teachers "shed their constitutional right to freedom of speech or expression at the schoolhouse gate."

On its first page, I made clear I started "with the young, for if they do not have reason to believe that the First Amendment is of real, palpable, personal value to them, its future will be in some peril."

Years before, freedom of the press became very personal to me when, as editor in chief of the Northeastern Daily News, I and my staff were commanded by the university's president, Carl S. Ell, to cease our muckraking reporting about the school and the city of Boston or be thrown out of our office. Leaving, we sadly turned in our bylines.

That traumatic event happened well before 1969, and, in any case, we would have had no standing in court because Northeastern was and is a private university.

But, in my rage, I became immersed in First Amendment history, and, in my book, I acknowledged my indebtedness to the Northeastern administration for providing such powerful motivation for the research. I have since covered cases of student-press censorship around the country and written of successful resistance in E&P. Resistance became much more difficult after the Supreme Court's 1988 decision (Hazelwood School District v. Kuhlmeier) in which it ruled that principals and school boards could censor anything in the high-school press that was inconsistent with the school's "basic educational mission" - as defined by the censors. In a furious dissent, Justice William Brennan accused his colleagues of teaching "youth to discount important principles of our government as mere platitudes."

On April 10, the 7th U.S. Circuit Court of Appeals declared that Illinois cannot extend the slippery standards of Hazelwood to the college-student press. Three years ago, Patricia Carter, then dean of students at Governors State University, stopped the printing of the student newspaper, the Innovator, because of its criticism of grade inflation and other offenses, claiming she had the right to exercise prior restraint under the Hazelwood decision. No issue has appeared since.

A U.S. district court, in Hosty v. Carter, dismissed the students' suit against the university's trustees and administrators, but denied Carter's claim that she was immune because of "qualified immunity."

Without the money to hire a lawyer, the student journalists - Margaret Hosty, Jeni Porche, and Steven P. Barba - filed their own appeal to the 7th Circuit Court. But, in what the court called a "superb" friend-of-the-court brief, the Student Press Law Center (SPLC) led a free-press phalanx, including the American Society of Newspaper Editors, the Associated Press Managing Editors, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, and a number of college press associations.

Writing for a three-judge panel, Judge Terence Evans ruled out prior restraint for college-student publications, which should receive "broad First Amendment rights. ... [S]chool administrators can only censor student media [at public colleges] if they show that the speech in question is legally unprotected or if they can demonstrate that some significant and imminent physical disruption of the campus will result from the publication's content."

The case has been sent back to the district court for a full trial on the merits, consistent with the appellate court's ruling. That means the students have won, and although the decision applies only to Illinois, Indiana, and Wisconsin, it will be cited in similar cases around the country, pending the Illinois attorney general's recent request for an en banc rehearing, which I think is unlikely to be granted.

Wisely, SPLC, directed by Mark Goodman - the leading defender of student-press rights - urges student journalists throughout the nation to follow up on the ruling and "ask your top school administrators to sign off now on a statement supporting student-press freedom, and give them heat if they aren't willing to do so." That statement should include, says SPLC, that "student editors have the authority to make all content decisions."

Also, rather than just celebrating the victory, adds SPLC, student journalists should "start a campus petition ... in support of free expression and create a regular feature for your publication about the status of free expression on your campus. ... How many people on your campus have even heard about the Hosty case?"

And I would add: How many professional newspapers have covered the educational benefits of the Hosty decision for student journalists? My only wish now is that some day the Supreme Court, hardly the current court, will reverse Hazelwood and liberate high-school journalists, too - as was the intent of the 1969 Tinker decision.