Freedom of the Press in Higher Education

The press is the best instrument for enlightening the mind of man, and improving him as a rational, moral and social being.
Thomas Jefferson


Freedom of the press is one of the prongs of the First Amendment. It has been one of the most controversial and divisive protected freedoms that Americans have. In the realm of higher education the implications of this freedom takes shape in different ways.It is both an individual and an institutional right. American Government Archives(2008)[1] says, "It applies not just to a single peron's right to publish ideas, but also to the right of print and broadcast media to express political views and to cover and publish news." This paper will explore newspapers. On a college campus, one can easily recognize the benefits of having a school newspaper. It gives students the opportunity to further develop their passion for writing and reporting; showcase photography, graphic design, and advertising skills; gives practical experience for those who hope to be employed in that sector later; and at times can be linked to a class or major like journalism. The University of Mississippi’s Daily Missippian (DM) is in its 100th year of existence. The DM website boasts, “The student-run, award-winning publication is the only daily college newspaper in Mississippi, and one of the largest and most influential campus newspapers in the country. It offers news and information about Ole Miss and Oxford; it circulates Mondays through Fridays on campus as well as in town." Daily Mississippian[2] On the other hand, the freedoms bestowed upon student run newspapers have at times been a nightmare for administrators all over the country.

According to Melear, Alexander, Hendrickson, and Beckham (2010),[3] “Disputes centered on the student press have been litigated regularly over time and involve a range of issues, such as termination, reduction or refusal of funding, censorship or prior review, advertising restrictions, student disciplinary actions, and defamation” (p. 57). The balancing act is ensuring that both administrators and student reporters are educated on First Amendment Rights and are respectful of to each other throughout the process. This paper will showcase issues, detail key First Amendment court cases that have impacted/influenced freedom of the press (specifically newspapers) in higher education, provide implications for various parties, and explore next steps.


Issues with Freedom of the Press in Higher Education
Three prominent issues surrounding freedom of press in higher education are funding, forum analysis, and restrictions on content. Many student newspapers receive much or all their funding through monies gathered from student fees. As a result, some administrators believe that they should be owed greater involvement and oversight because of their monetary and staff contributions(supplying advisers), this is often not the case (Reisberg, 2000).[4] Consequently, a few newspapers have decided to operate in a completely independent fashion. These newspapers receive no money from the university. Unfortunately, many of these papers struggle to produce multiple issues and have their newspapers available on campus. On occasion, administrators have attempted to find ways to diminsh the circulation and bar distribution of these papers on campus which has resulted in lawsuits.


Forum analysis has been used in many legal cases when determining an institution's level of involvement. An institution of higher education might be considered one of three forums. The first is a traditional public forum (campus public streets, campus public sidewalks etc.). It is consider open and can be regulated if it is a pedogogical disruption. It can be restricted by time, place, and manner as long as the institution remains content and viewpoint neutral. Providing alternatives when restrictions apply is vital. If a newspaper was found to be operating in an traditional public forum, the general public could have access to the paper by purchasing advertisement. This creates more potential problems for administrators. Next is designated/limited public forum. This is an area that the institution has opened for use. This area does not always have to remain designated, it can change. It too can be restricted accordign to time, place, and manner. Last is the non-public forums. This forum is the most protected and can only be used for its intended purpose (classrooms, residence hall rooms, etc.) (Silver, 2007).[5] If a student newspaper is found to be operating in a designated or nonpublic, the public is not granted “indiscriminate” use of the newspaper.
Administrators and student newspaper staff continually disagree on content. Administrators often want to remove articles because of their controversial nature (Hosty v. Carter)[6] . However, courts often say that administrators must remain content and viewpoint neutral. They may only intervene when there is a pedagogical concern.

Despite the fact that many institutions provide funds and staff (adviser) to a student newspaper, there is usually no control of content or an “agency relationship”. As result, court cases brought against these institutions for defamation and libel are ruled in favor of the institution. Since many institutions do not have an “agency relationship” and lack control over content, they are often not held accountable in lawsuits for defamation (Melear, Alexander, Hendrickson, & Beckham, 2010).[7]




Court Cases
Four cases courts that have strongly impacted student press in higher education will be highlighted here. These noteworthy cases have been cited often when making decisions on other cases regarding the First Amendment rights of college students. Unfortunately, few determinations have been made regarding freedom of the press in higher edcuation. As a result, courts, lawyers, and litigants have relied on these court findings to provide needed direction.The first two court cases that have set a precedent are the Tinker and Hazelwood cases. These cases really began discussions about the First Amendment in secondary education. Later, they would be used to make determinations in post-secondary cases.Tinker et al. v. Des Moines Independent Community School District et al., 393 U.S. 503 (1969)[8] In protest of the Vietnam War three students attending a public high school decided to wear black armbands to school. School administrators heard about what the students planned to do so they enacted a policy that forbade students from wearing armbands to school. The policy stated that those students who wore the armbands would be asked to removed them or face being suspended for failure to do so. Although there was no supporting evidence, school administrators thought that their actions would create a disturbance. Consequently, the students were suspended from school because of their refusal to remove the armbands. The trial court and the circuit court both agreed with the actions of the school’s administration. However, the Supreme Court reserved the decision sighting that the students’ actions which were of a quiet, passive, and symbolic nature. The act was likened to pure speech which has been given the greatest protection under the First Amendment. The court ruled that the students’ actions were indeed protected under the First Amendment because “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gates” (Tinker, 1969). Students should be allowed and encouraged to express their opinion, even if it conflicts with the status quo, as long as it does not cause a disruption to the education process and does not infringe on the rights of others.This decision re-enforced the idea that schools are not allowed to transmit information that is comfortable for officials. Furthermore, the mere thought of what could potentially happen as a result of an action does not trump an individual’s freedom to express himself/herself. In this case, there was no indication that the students’ actions would result in any negative backlash that would interrupt the educational focus of school. Therefore, school administrators should not have attempted to regulate speech because the topic is uncomfortable or unpleasant. Hazelwood School District v. Kuhlmeier et al., 484 U.S. 260 (1988)[9]
Students involved in a high school journalism class were charged with producing a school newspaper using knowledge that they had previously learned. The adviser reviewed the content of the paper. The principal reviewed the paper before it went to print. There had been a change in the adviser prior to the publication of paper’s last issue. When the principal reviewed the paper, he questioned and later removed two pages of the publication. The pages included articles on pregnancy and divorce. The pregnancy article shared the names of three students. The principal thought that it was necessary to protect the privacy and identity of those mentioned directly and indirectly (parents and the fathers of the children) in the article. In addition, the principal was concerned about the message the article was making regarding unprotected sex. The divorce article explored the effects of divorce and originally named a student who was speaking ill of her father. As a result, the principal thought that the removal of the articles was the appropriate thing to do in the interest of time. Later, students filed suit because the principal had chosen to remove the pages.

The district court ruled in favor of the school. The appellate court ruled in favor of the students. And the Supreme Court of the United Stated ruled in favor of the school. The paper was a school sponsored and part of a class curriculum. Furthermore, the courts stated that public schools could be deemed public forums if administrators said so through policy or practice. If a public forum does not exist administrators could place “reasonable” restrictions on teachers, students, and school community members. Therefore, the principal was acting within his duties to block production of articles that would affect the school’s mission, violated privacy of students, and could have caused a substantial disruption to educational process. He did not violate the First Amendment rights of those working with the paper because it was not a public forum. Moreover, the age of the audience was important to note in this case. The court said,
"Educators are entitled to exercise greater control over this second form of student expression to assure participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school" (Hazelwood, 1988).
Kincaid v. Gibson, 236 F.3d 342 (2001)[10] This case involved distribution of Kentucky State University yearbook, the Thorobred. The yearbook was funded by the university which provided very little oversight. University officials took, stored, and refused to distribute the schools yearbooks because it was said to be inappropriate, of poor quality, did not display the school’s colors by using a purple cover, was themed in a poor fashion, etc. Consequently, district court found in favor of the school. The appellate court ruled in favor of the students. The United States District Court for the Eastern District of Kentucky (6th Curcuit) ruled in favor of the students. The court said that KSU officials had acted in an arbitrary ad unreasonable fashion that violated the First Amendment rights of the yearbook staff. The court determined that the yearbook was a student headed endeavor with very limited interaction from school administrators. The editors were responsible deciding the content of the yearbook. The court applied forum analysis and determined that the yearbook was a limited public forum. A limited public forum is defined by Bird, Mackin, and Schuster (2006) in the following way, "The U.S. Supreme Court has designated this type of forum as a way for a governmental entity, such as college or university, to create an environment for expression that is controlled by the mission of the institution. Thus, it can be designated as limited to particular groups or particular topics, as long as those restrictions are not based upon the content of the message to be delivered"(p. 34). Although school intended to retain rights to the yearbook content, they had not done any of the necessary things to make that happen.Hosty v. Carter, 412 F.3d 731 (2005)[11]
More recently is the case of Hosty v. Carter. The Hosty case involves Governors State College and its newspaper, the Innovator. The newspaper worked understand a policy that at the discretion of the editor, the adviser would be allowed to read articles that would be published. The paper began to publish a number of unfavorable articles about university employees. As a result, the Dean of Students changed the existing policy when she called the printing company to inform them that all materials had to be reviewed by a university official prior to printing or they would receive no payment.
Three students sued the Dean of Students. The district court did not grant qualified immunity to Dean Carter. The Seventh Circuit Court of Appeals granted Dean Carter qualified immunity because she was beleived to performing as a reasonable person would. Furthermore, the appeals court said that the Hazelwood case precedent was applicable. Surprisingly and alarmingly, the standards of a high school censorship case had been used in determining a college case mainly because they school had sponsored the newspaper. Although in the Hazelwood case, the court was very intentional about noting that the rules do not automatically apply in a college setting. This was the first and only federal court that said that Hazelwood could be applied outside of the boundaries of secondary education. Although the school had a policy that granted the newspaper content privileges and no censorship, the court focused on another policy that said the paper had to answer to a school official. This contradictory statement then made the newspaper a non-public forum and subject to censoring. If the newspaper had been seen as a public forum, there could be no censoring even if the institution subsidized the paper.Some believe that having a school newspaper designated as a public forum is the first step to avoiding future cases like this. The court did say that “the law on the issues was unsettled”. The case was appealed to the Supreme Court and that court decided not to hear the case. Many fear that the First Amendment on college campuses is at stake because institutions may begin to change the forum to the institution’s advantage. Others, like the Harvard Review Journal believe that little will change as a result of this case. The journal provided this response to the case’s ruling,
"Under Hosty's standard, a college newspaper constitutes a nonpublic forum when the school has a history of reviewing the paper and controlling its content. This situation is likely to exist, for instance, when the paper is a component of the journalism curriculum. But this situation seems to be the exception rather than the rule; for instance, one survey of 101 college newspapers found only one that was closely related to a curriculum. A nonpublic forum will also likely exist if a faculty advisor or other school official supervises content; however, few newspapers appear to operate in this manner. Thus, an analysis of the majority of newspapers – which fit in neither of these scenarios because they operate as extracurricular activities and give the final say in content to students – is likely to yield a determination that the newspaper is a limited public forum and outside Hosty's reach" (First Amendment -- Prior Restraint, 2006, p.919).[12]
At present the Hosty ruling affects only three states- Illinois, Indiana, and Wisconsin.


Implications
The struggle over freedom of press in higher education has yielded a plethora of results, some positive but most are negative. All of the results have occurred because there is a strong need for more clarity. The implications discussed below encompass the following categories: creation of new laws, administrators, advisers, students, and a special interest group (HBCUs).Creation of New Laws
Following the Hosty verdict California took action to protect the press rights of students in higher education. In 2007, California adopted a law (A. B. 2581) that provides college journalists the same press protection as those given to individuals employed to do the work. The author of the bill, Leland Yee, stated,
"Having true freedom of the press is essential on college campuses and is a fundamental part of a young journalists training for the real world. Allowing a school administration to censor is contrary to the democratic process and the ability of a student newspaper to serve as the watchdog and bring sunshine to the actions of school administrators" (Mayor, 2006).[13] At present, seven other states have laws protecting the First Amendment Rights of school journalists. They are Arkansas, California, Colorado, Illinois, Iowa, Kansas, and Orgeon. Several other states are working on similar laws.[14]
Administrators
Administrators are testing the limits. One student newspaper faced having its paper stopped for poor grammar and “bad journalistic practices”. It was also discovered that the newspaper had plagarized two articles as well (Vance, 2007).[15] Although plagiarism is known to be a serious offense, administrators never brought their concerns to the editor. Students were outraged. The editor believed that the institution was posturing and attempting to censor what was written.
At another institution the newspaper was locked because the editor received threatening letters after printing another student’s opinion column. Afterwards the academic senate was to impose “great editorial control over the student newspaper”(Rooney, 2003).[16] This angered many students. Although it was understandable for the institution to take some action to protect the editor of the paper; it was completely inappropriate for administrators and some faculty members to blame the fall-out of the article on the adviser and the editor.
AdvisersSchool newspaper advisers are usually faculty or staff who may receive some additional compensation, allowed to fulfill some of their service requirements, and often serving in this capacity in addition to their primary position. The adviser position has a high turnover due to politics and burn-out. For those who advise student newspapers the implications for things going “poorly” can be far reaching and often quite negative. Advisers have been reassigned, fired/not renewed, and not promoted (Green, 1999).[17] Some of the reasons they received this action were for not reading the paper before it went to print and not removing inflammatory information. One adviser described his role in the following way, “My understanding of the role of the adviser was that I should be the professional conscience of the paper. … My job is not to censor content” (Young, 2002)[18] As a result, advisers are filing lawsuits of their own (Ashburn, 2006).[19]


Plight of Historically Black College and Universities (HBCUs)Reisberg (2000)[20] reported that some HBCUs have no newspapers because of budget issues but mainly because administrators are attempting to avoid additional negative press. This is shocking because many of these institutions offer journalism degrees. Unfortunately, many HBCUs aim to maintain their image and retain their students. Those students that do have student newspapers have found a need to censor themselves just to stay in the good graces of administrators and retain their funding.

Students In many instances students are being greatly disserved. They are at the market place of ideas but often are not able to fully explore the landscape. Although college may not be seen as the “real world” to some, it is a great springboard for the future. Students should be allowed, encouraged, and applauded for thinking in a critical manner that might bring about new and different ideas. No student deserves to feel as though exercising their First Amendment right might result in disciplinary action of any kind. Student affairs professionals must look for opportunities to provide the support and guidance needed to enable the discourse to occur. Some students are beginning to create independent newspapers that and receive no funding from the university. Independent newspapers are not usually the institutions primary school newspaper. As a result, these newspapers often struggle to get their printed materials into the hands of students. Some newspapers have found that administrators are not very accommodating. At Oregon State University the administrators changed a policy that would take The Liberty’s distribution from twelve locations to two. Members of the newspapers staff believe that the institution is attempting to censor the newspaper (Stewart, 2009).[21]


At Cornell University there was alleged censorship of a different kind. The conservation newspaper, the Cornell Review, published an article that many found offensive. As a result, the student government wanted the university to require the newspaper to remove the school’s name from its masthead. Their reason was because the newspaper did not share the same values as the institution. Later student government chose to not impinge on the first amendment rights of the newspaper but did want a committee formed so that all parties’ concerns could be shared and addressed (Deyo, 2008).




Next Steps/Conclusion
Higher education is seen as the place where having various opinions is valued and encouraged. As we move forward, administrators must keep in that students have the right to say and share dissenting opinions. Administrators are within their rights to interfere only when it is pedagogically disruptive. Administrators should work to acquire a designated column space in the student newspaper in which information can be shared, clarifications can be made, and rebuttals can be submitted. Furthermore, administrators must embrace the fact that times are changing. Student not only use newspapers and yearbooks to express themselves, they are now acquiring full media centers that might house online newspapers, blogs, magazine, student reporting shows, radio, and advertising . As a result, it would behoove administrators to create a good working relationship with students who are in media as well provide significant education to students and staff regarding First Amendment issues such as freedom of the press.
Students must continue to respect the craft at its highest level. Sound reporting is key. As a major information source for students, it is important for students to give their readership accurate facts. Students do their part to build a better relationship with administrators that embodies respect for the work that they do in higher education.
Moreover, those who advise student newspapers must be supported by students and administrators. Furthermore, the level of risk associated with being working with the student newspaper must be reduced exponentially. An adviser should never be expected to change stories, twist the arm of the editor, side with administration, or fear losing their university position. Most importantly, their role should be clear and of limited consequence to their professional career.
Finally, the amount of litigation that occurs needs to be reduced. With respectful and professional working relationships between administrators, advisers, and students, we should see a sharp decline in the number of court cases.
Our forefathers gave us an awesome right that many do not have. It is incumbent upon all of us to treasre and protect that freedom the best of our ability.We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
~John F. Kennedy



  1. ^
    Freedom of the press. (2008, June 23). American Government Archives http://www.america.gov/st/democracyhr-english/2008/June/20080630215145eaifas0.6333842.html
  2. ^
    Daily Mississippian http://www.olemiss.edu/depts/smc/dm.html
  3. ^
    Melear, K.B., Alexander, L.A., Hendrickson, R.M., & Beckham, J.C. (2010). Student Free Speech in Public Higher Education. Dayton, OH: Education law Association.
  4. ^
    Reisberg, L. (2000, March 3). Student press at Black colleges faces 'a new wave of censorship'. The Chronicle of Higher Education. Retrieved from http://0-chronicle.com.umiss.lib.olemiss.edu/article/Student-Press-at-Black/16335/.
  5. ^
    Silver, D. A. (2007). Policy, practice and intent: Forum analysis and the uncertain Status of the student press at public colleges and universities. Communication Law & Policy, 12(2), 201-230. doi:10.1080/10811680701266534
  6. ^
    Hosty v. Carter, 412 F.3d 731
  7. ^
    Melear, K.B., Alexander, L.A., Hendrickson, R.M., & Beckham, J.C. (2010). Student Free Speech in Public Higher Education. Dayton, OH: Education law Association.
  8. ^ Tinker v. Des Moines, 393 U.S. 593 (1969).
  9. ^ Hazelwood School District v. Kuhlmeier et al.,484 U.S. 260 (1988).
  10. ^ Kincaid v.Gibson, 236 F.3d 342, 2001.
  11. ^ Hosty v. Carter, 412 F.3d 731 (2005).
  12. ^ First Amendment -- Prior restraint -- Seventh Circuit holds that college administratorc can censor student newspapers operated as nonpublic fora. -- Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) (en banc). (2006). Harvard Law Review, 119(3), 915-922. Retrieved from EBSCOhost.
  13. ^ Mayor, E. (2006, August 28). California governor signs college student freedom bill law passed in the wake or the Hosty v. Carter decision is the first of its kind in the country. Student Press Law Center. Retrieved from http://www.splc.org/news/newsflash.asp?id=1316.
  14. ^ http://www.wku.edu/~joshua.moore1/Student_Jounalism/Other_States.html
  15. ^ Vance, E. (2007, January 26). Student newspaper at Grambling State U. is back after administrators briefly shut it down. The Chronicle of Higher Education. Retrieved from http://0-chronicle.com.umiss.lib.olemiss.edu/article/Student-Newspaper-at-Grambling/10957/.
  16. ^ Rooney, M. (2003, May 6). Student newspaper is locked at California junior college afer editor received death threats. The Chronicle of Higher Education. Retrieved from http://0-chronicle.com.umiss.lib.olemiss.edu/article/Student-Newspaper-Is-Locked-at/110280/.
  17. ^ Green, W. J. (1999, July 23). Colleges need good adviser for student newspaper. The Chronicle of Higher Education. Retrieved from http://0-chronicle.com.umiss.lib.olemiss.edu/article/Colleges-Need-Good-Advisers/24249/.
  18. ^ Young, J. R. (2002, August 9). Censorship or quality control. The Chronicle of Education. Retrieved from http://chronicle.com/article/Censorship-or-Quality-Control-/19249/.
  19. ^ Ashburn, E. (2006, August 11). Kansas community college and former newspaper adviser settle lawsuit. The Chronicle of Higher Education. Retrieved from http://0-chronicle.com.umiss.lib.olemiss.edu/article/Kansas-Community-College-and/118888/.
  20. ^ Reisberg, L. (2000, March 3). Student press at Black colleges faces 'a new wave of censorship'. The Chronicle of Higher Education. Retrieved from http://0-chronicle.com.umiss.lib.olemiss.edu/article/Student-Press-at-Black/16335/.
  21. ^ Stewart, B. (2009, June 9). Oregon State removes independent student newspaper's distribution bins from campus locations. Student Press Law Center. Retrieved from http://www.splc.org/news/newsflash.asp?id=1913