"Hazelwood" Goes to College
Beware the ruling that opens with a condescending joke. "Controversy began to swirl," federal appellate judge Frank Easterbrook wrote airily, "when Jeni Porche became editor of the Innovator, the student newspaper at Governors State University. None of the articles concerned the apostrophe missing from the University's name. Instead the students tackled meatier fare." Easterbrook went on for 12 more pages, but the first paragraph announced that Porche had lost.
I guess a First Amendment squabble started by student journalists is easy to shrug off--what's at issue but the license kids have to scold the faculty and mock the administration? Yet Jeni Porche was 28 and Margaret Hosty 33 back in May 2000, when the two graduate students became editors of the Innovator.
By various accounts, GSU was a mess back then. The Rockford Register Star would soon call it "one of the most troubled universities in the state system," pointing out that the student body was shrinking and "at least four of its programs have been denied accreditation or offered without proper approval." Porche and Hosty took on the powers that be and made them furious.
The issue of October 31, 2000, brought a letter from president Stuart Fagan complaining that the paper "failed to meet basic journalistic standards" and another from the dean of the college of arts and sciences calling an article by Hosty a "collection of untruths." On November 1 the Innovator's printer, Charles Richards, heard from Patricia Carter, the dean of student life. Richards later described that conversation in writing: "She told me that Regional Publishing was not to print any more issues of 'The Innovator' without first calling her personally and then she, herself, or someone else from the administration department would come to our printing plant, read the student newspaper's contents, and approve the paper for printing by us."
The editors rejected these terms, which Richards claimed to have told Carter sounded illegal. But it was the university that paid his bill, and he didn't want to run off another issue and wind up eating the cost. The Innovator didn't appear again.
As Porche and Hosty saw it, a public institution had squelched the press. Joined by a student reporter, they promptly took GSU to court, where federal judge Suzanne Conlon narrowed a long list of defendants to Carter, whom she said should stand trial. "Defendants concede that Innovator serves as a public forum," Conlon reasoned, and in a public forum "the state's right to limit expression is sharply circumscribed."
Carter's been trying to get out from under ever since. The heart of her argument--argued by the office of Attorney General Lisa Madigan--is that thanks to the notorious Hazelwood case of 1988 she had reason to believe she was doing her duty and therefore deserved what the law calls qualified immunity. Two years ago a three-judge panel of the Seventh Circuit unanimously rejected that argument. But the full appeals court decided to rehear Carter's motion to dismiss the suit, and last week six of the other ten judges joined Easterbrook in ruling for Carter.
"A terrible decision," says Jim Killam, adviser to the Northern Star of Northern Illinois University. "It's going to give some administrators the right to censor first and ask questions later." Killam has been watching this case from the beginning. As president of the Illinois College Press Association when the suit was filed, he led an investigation that concluded the GSU administrators had "acted inappropriately, and probably illegally, with blatant disregard for students' First Amendment rights."
Porche and Hosty were anything but grateful to Killam. He'd got on their bad side by noting "several ethical lapses" of their own, in particular their doubling as editors and student senators. Porche and Hosty wrote Killam, "We take great umbrage at that assessment, believing it to be entirely erroneous and, if not precariously single-minded, then astonishingly shortsighted." At GSU, they explained, "student government and student media are united in purpose; to serve the best interests of the student body."
The Student Press Law Center in Arlington, Virginia, has been advising Porche and Hosty, and its executive director, Mark Goodman, had this to say on Easterbrook's opinion: "It definitely has extended Hazelwood to the college realm. The real question is, how far?"
Hazelwood pitted a suburban Saint Louis high school against student journalists who'd been forbidden to publish stories on teen pregnancy and divorce. By a five to three margin the Supreme Court ruled for the administration. Because the paper was produced as a part of the high school curriculum, the court reasoned, the principal was within his rights--right or wrong.
Hazelwood appalled champions of the student press, who condemn most high school papers as trivial, vacuous, and generally unworthy of institutions whose purpose is to prepare kids to be citizens. Talk to those critics today and they'll add that the failure of high schools to expose students to serious newspapers is one reason they don't read them.
Judge Conlon and the three-judge appellate panel found it easy to distinguish Hazelwood from the matter at hand. The GSU paper was extracurricular. Its editors were appointed by a Student Communications Media Board, whose written policy was to let the paper's staff decide its contents "without censorship or advance approval." And if the mission of a high school is indoctrination, at a university intellectual freedom reigns. Noting that over half of American college students are 22 or older, the appellate panel reasoned that treating them "like 15-year-old high school students and restricting their First Amendment rights by an unwise extension of Hazelwood would be an extreme step for us to take."
Not so, Easterbrook has now replied. When journalists lost Branzburg v. Hayes in 1972 the courts and the media alike read into the opinions of a divided Supreme Court some sort of right to protect sources. The balloon didn't burst until 2003, when the Seventh Circuit's Richard Posner seized an opportunity to declare that Branzburg did no such thing.
Posner's sidekick Easterbrook just made the same kind of move. Hazelwood was another defeat with a silver lining, in this case a footnote: "We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level." Easterbrook wrote, "Picking up on this footnote, plaintiffs argue, and the district court held, that Hazelwood is inapplicable to university newspapers. . . . Yet this footnote does not even hint at the possibility of an on/off switch: high school papers reviewable, college papers not reviewable."
On the contrary, he wrote, "Hazelwood's framework is generally applicable and depends in large measure on the operation of public-forum analysis rather than the distinction between curricular and extracurricular activities." Though Judge Conlon had written that the defendants conceded the Innovator was a public forum, Easterbrook felt the question needed plenty of analysis of his own.
Why? Not to contradict Conlon, which in the end he didn't do. And not to cut through confusion, which would have been his job if he'd been reviewing an actual trial. The issue here was whether Carter should even stand trial, and Easterbrook wanted to demonstrate how murky everything was. "Many aspects of the law with respect to students' speech, not only the role of age, are difficult to understand and apply," he wrote. "Public officials need not predict, at their financial peril, how constitutional uncertainties will be resolved."
So he gave Carter qualified immunity from liability, letting her off the hook. Unless Porche and Hosty wangle a hearing from the Supreme Court, their suit is over. And the college press must beware: Hazelwood is now inside the gates.
Mark Jacob, the Tribune's foreign and national news editor, had a smart idea last week. "Furor over Der Fuehrer," a story he wrote for the Perspective section, demonstrated that "people of all political stripes have been throwing around references to Adolf Hitler and the Gestapo for years." Jacob made a list. On it was North Korea saying Donald Rumsfeld "put Hitler into the shade," Rumsfeld comparing an Arab terrorist to "Hitler in his bunker," Senator Phil Gramm calling a Democratic tax proposal "right out of Nazi Germany."
Jacob said Dick Durbin should have learned a long time ago that people who played the "Reich card . . . have looked darn silly." But have they? In War Made Easy, a new book by media critic Norman Solomon, there's a chapter called "This Guy Is a Modern-Day Hitler"; it begins, "Evil that warrants the large-scale killing of war needs a face." Solomon's point is that invoking the Fuhrer primes the pump of martial enthusiasm. Durbin's biggest mistake, you might find yourself thinking, is that he used Hitler to criticize a war instead of to start one.
Those liberal judges did it again. According to John Kass on June 26, "liberals on the Supreme Court have gutted the old-fashioned notion of private property." The next day Dennis Byrne marveled, "How odd that liberals on the U.S. Supreme Court have come down on the side of influential corporations and their profits." Those slippery liberals know how to be simultaneously anti-private property and pro-corporate profits.
Kelo v. New London, the eminent domain case that made the two Tribune columnists, their paper's editorial page, and lots of other people very unhappy last week, shows how little "liberal" and "conservative" mean in the context of constitutional law. Justice John Paul Stevens, who wrote the opinion for the 5-4 majority that voted to uphold Connecticut's supreme court, probably thought he was applying state laws and federal precedents as he found them. (Of course the Supreme Court majority always claims to be applying precedents as it finds them.) In his dissent, Clarence Thomas admitted as much. "Today's decision," he wrote, "is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity."
Stevens invited states unhappy with the court's position on eminent domain to write stiffer restrictions of their own. Thomas said to hell with the states: "A court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property."
George Will saw the irony. In a June 24 column, he noted that conservatives had been rooting for "judicial activism [to] put a leash on popularly elected local governments." But the activists lost. Which meant the liberals won? Will thought so. Whatever.
Art accompanying story in printed newspaper (not available in this archive): photo/Lloyd DeGrane.