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Hosty decision sets poor precedent

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Also by Darryn Beckstrom:

Ignorance, irresponsibility doom broken segregated fee system (November 15, 2005)
State should endorse monotheism (November 22, 2005)
Neutrality violations rampant in SSFC (December 14, 2005)
Acidic justice (June 30, 2005)
New course for Madison in 2006 (January 15, 2006)

by Darryn Beckstrom

Tuesday, February 28, 2006

College newspapers and student journalists around the nation have come under increasing scrutiny over the past month for the publication of cartoons portraying the Islamic Prophet Muhammad.

But recently, the extent of the First Amendment rights student publications have to publish such content has become a bit murky.

Last week, the Supreme Court declined to hear a case asking the high court to define the free speech rights held by college newspapers and journalists. Despite the controversy and publicity surrounding the case, the Court failed to grant certiorari to hear Hosty v. Carter, a case arising here in the Seventh Circuit.

The legal move by the Court marks an end to a drawn-out legal battle pitting the right to free speech against the ability to censor.

In June 2005, a federal court held that a dean of Governors State University in Illinois did not violate the First Amendment when she censored the student newspaper The Innovator because the paper was critical of the administration.

Unfortunately, the ruling leaves subsidized college newspapers in the Seventh Circuit — which includes Illinois, Indiana and Wisconsin — at the mercy of college administrators. And the editorial control administrators place on these papers can be as restrictive as that received by high school publications.

In Hosty, the court applied the 1988 Supreme Court decision of Hazelwood School District v. Kuhlmeier and held that university administrators, like high school newspaper advisors, could restrict speech as long as the restriction was "reasonably related to legitimate pedagogical concerns."

The court applied a forum analysis in deciding the case. Often, high school newspapers have been viewed as functioning in a limited public forum, and as a result, are repeatedly subjected to censorship and editorial control. However, the court in this case took the analysis a step further and decided that non-independent student newspapers and the student journalists who work for them do not operate in an open forum, but rather a limited medium as well.

It seems as though the judges in Hosty essentially wrote a blank check to those wanting to censor unfavorable coverage in a college rag.

Though true First Amendment freedoms can only come when a newspaper is entirely independent from the hand that feeds it, college newspapers should not be forced to function under the same First Amendment limitations as high school newspapers.

College is the place where students develop into professional journalists. No longer is writing relegated to the status of an extracurricular activity held in a classroom after school where students chase around teachers for quotes while janitors sweep the halls or design graphics on a dated version of Claris Works. Rather, at many of the larger universities and colleges around the country, daily student newspapers are a business and present an opportunity for young journalists to get their feet wet before venturing out into the real world.

Not only does the case demote adults to the status of adolescents, it also sets a dangerous precedent that could be followed across the country. Although this decision is currently limited to the three aforementioned states, other circuits could look to the Seventh Circuit when interpreting similar cases that are presented to them.

Federal courts are often bound by the precedent established within their jurisdiction. However, if no such precedent has been established, it is not uncommon for these courts to look outside to see how their fellow colleagues on other benches around the nation have addressed similar constitutional questions.

Simply put, a slippery slope has been created.

Placing the legal precedent this case establishes aside, Hosty violates the very essence of a marketplace of ideas. In principle, universities have always been considered a place where students and scholars alike can sift and winnow for the truth. Regrettably, if a university administration engages in censorship of a student publication for anything more than slander or libel, then the search for the truth may very well cease to exist.

Though the Seventh Circuit has made its decision and the Supreme Court will not be reviewing the case, university administrators are not forced to screen the contents of the school's paper. And in the best interest of a true marketplace of ideas, they shouldn't.

Darryn Beckstrom (beckstrom@badgerherald.com) is a doctoral student in the department of political science and a second-year MPA candidate in the La Follette School of Public Affairs.

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Anonymous (February 28, 2006 @ 6:28am):

This is probably the only column you will ever write that I will agree with. I will say, though, that the decision only demonstrates the wisdom of the Herald's route--be financially independent.

Anonymous (February 28, 2006 @ 9:32am):

There is a reason that despite the presence of Ms. Beckstrom the BH is far and away the best newspaper in Madison. Because they function as an independant paper they are privy to rights that aren't granted to other entities. It shouldn't be a surprise that a paper that is subsidized by a large company or large university wouldn't want to print articles that portray the parent company negatively. That is the right of any company that has a hand in the media. There is absolutely nothing new to this. But that is also why it is so important to support the independant media to make sure that there is a voice for everything that needs to be said.

Anonymous (February 28, 2006 @ 11:39am):

Come on Darryn- where's the utter craziness this week? I miss it. You're like "Cops." Or "The National Enquirer." Or "Benny Hill." We know we shouldn't pay attention to you, but we do so simply for the sheer "What the hell?" of it all.

Anonymous (February 28, 2006 @ 1:29pm):

So the conservative Supreme Court didn't take up the case, in effect restricting freedom of speech. Hmm, well, all I can say is that's what you get Darryn. If you want all of your conservative nut jobs on the Supreme Court to change all of these social issues (e.g. aborotion, religion in school, etc.) then you better get used to them squashing civil liberties as well. You can't have your cake and eat it too...

Anonymous (February 28, 2006 @ 3:33pm):

This is like that time the restaurant replaced my coffee with Folgers Crystals.

Anonymous (February 28, 2006 @ 9:37pm):

"This is like that time the restaurant replaced my coffee with Folgers Crystals."

That wouldn't happen at Starbucks. Not Starbucks! No Siree!

Anonymous (March 1, 2006 @ 3:37pm):

Anytime somebody else is paying for something it stops being free speech and instead becomes funded speech. Individuals have the right to say quite a bit on the street corner of ideas as for example in Denver where a Man holds up a sign that says, "Clinton raped Juanita." However, on Campus when ASM or the Daily Cardinal say something they are no longer in the venue of FREE speech as they are taking dollars from students and are having their Speech Funded. Both have a right to say many things but they do not have the right to compell those who disagree with them to pay for the microphone.

Since the Illini paper was funded by the isntitution the institution has every right to say you crossed a line and censor the paper if they choose. I happen not to agree with their decision but understand that it is founded on how the paper is funded.

Your Free Speech cost me nothing as I can choose not to listen. But don't ask me to build you the auditorium where you get to speak freely.