McCluskey 1

Hosty v. Carter

Thesis: The final verdict in Hosty v. Carter places excessive power in the hands of

administrative officials on college campuses. The verdict undermines the efforts of collegiate

journalists and threatens rights granted to them in the First Amendment.

The student paper at Governor State University in Illinois, the Innovator, published

articles critical of a professor in the fall of 2000 (Niedbalski). According to Niedbalski, the

articles were poorly written, cited anonymous sources and were not an example of

exemplary collegiate journalism. But the content of the Innovator, which was supported by

student activity fees, was still entitled to First Amendment protections. The policy of the

University’s Student Communications Media Board entitled the Innovator’s student staff to

“determine content and format of their respective publications without censorship or

advance approval” (Hosty v. Carter, 325 F.3d 945). The faculty adviser often read stories

before their publication, but did so at the request of the student editors—and the adviser

only offered advice, never decisions concerning content.

The University’s Dean of Student Affairs and Services, Patricia Carter, objected to

the content of the issue in question and called Regional Publishing to halt publication of the

paper (Hosty v. Carter, 412 F.3d 731). Carter told Regional Publishing’s president, Charles

Richards, that a school official must approve the Innovator’s content before it could be

printed, and told him to call her when he received future issues of the paper. Richards

passed along information from his conversations with Carter in a November 2000 letter to

Innovator editors, including the instructions not to publish any issues without the prior

approval of a college official. Richards stated that he didn’t believe the school was legally
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able to enact such a policy, but advised that he was not a lawyer. Regional Publishing

officials confirmed that they would not publish additional issues of the Innovator, as they

couldn’t risk printing the issues without assurance of payment.

In response, Innovator editors Margaret Hosty and Jeni Porche, as well as staff

reporter Steven P. Barba, filed a lawsuit against 17 defendants, most of whom were

ultimately dismissed (Hosty v. Carter, 412 F.3d 731). Dean Carter claimed qualified

immunity, which “shields an official from suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the circumstances

she confronted” (Hosty v. Carter, 412 F.3d 731). Carter claimed that the law did not clearly

state “that her request to review and approve the Innovator prior to printing might violate

the student editors’ rights under the First Amendment” (Hosty v. Carter, 325 F.3d 945).

However, for many years leading up to the case, courts have consistently upheld and

enforced the First Amendment protections of student media at public colleges and

universities. The censoring of student media has only been supported when the schools

were able to demonstrate that the speech in question is a disruption to the educational

process, or if the schools can prove that the speech is not legally protected.

The Hazelwood v. Kuhlmeier ruling was used in an attempt to muddle the case

against Carter. But the Supreme Court’s strict First Amendment standards in that case

“sprang from its premise that the special circumstances of a secondary school… permit

school authorities to exercise greater control over expression by students” (Hosty v. Carter,

325 F.3d 945). In Hosty v. Carter, the court ruled that the Hazelwood rationale could not and

would not apply due to the “obvious differences in the missions of high schools and
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colleges—as well as differing needs, ages and maturity levels of the respective students”

(Hopkins 283).

Carter also argues that she never actually restricted publication of the paper. She

claims that the editors of the Innovator were responsible for deciding not to send

additional issues to the publishing company (Hosty v. Carter, 325 F.3d 945). But documents

prove that Regional Publishing was not inclined to print future issues, as doing so meant

the company risked not getting paid. A federal appeals court wrote in 1973 that

“censorship of constitutionally protected expression cannot be imposed by… withdrawing

financial support, or asserting any other form of censorial oversight based on the

institution’s power of the purse (Hosty v. Carter, 325 F.3d 945). Carter’s call to the

publisher and implication that the company would not be paid if it printed the Innovator

without prior approval from a college administrator was in direct violation of this policy.

Her actions also clearly violated the student editors’ First Amendment rights.

Carter would not be excused from the suit on the grounds of qualified immunity, nor

her claims that she didn’t actually restrict the Innovator’s publication. The 2003 ruling

from a three-judge panel “cited legal precedence in holing that administrators can censor

only when student media content is ‘legally unprotected or if they can demonstrate that

some significant… disruption of the campus will result from the publication’s content’”

(Hopkins 283). Carter could not prove that the media she censored met such requirements,

and the ruling in the case was celebrated as a “major victory” by the Student Press Law

Center (283).
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But less than a year later, the case was reargued in front of the circuit court. Circuit

Judge Easterbrook wrote for the majority in the second ruling of the case. The Hazelwood

decision included 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” (Hosty v. Carter, 412 F.3d 731). According to Easterbrook, the

plaintiffs’ argument and the district court’s decision relied too heavily on the Hazelwood

footnote. He states that the footnote was interpreted as stating that high school papers

could be subject to review, while college papers could not, and that the interpretation was

incorrect. Easterbrook states that “whether some review is possible depends on the answer

to the public-forum question, which does not (automatically) vary with speakers’ age”

(Hosty v. Carter, 412 F.3d 731). He adds that “only when courts need to access the

reasonableness of the asserted pedagogical justification in nonpublic-forum situations does

age come into play.”

Easterbrook focuses on the public-forum question, stating that “extracurricular

activities may be outside any public forum” (Hosty v. Carter, 412 F.3d 731). He reminds the

court that “academic freedom includes the authority of the university to manage an

academic community and evaluate teaching and scholarship free from interference by

other units of government, including the courts.” This is where Easterbrook’s argument

begins to lose its steam. He uses case law to support his statements, which should present a

strong argument. But his statements then appear to contradict each other. Easterbrook

establishes that “[the majority] does not think it possible on this record to determine what

kind of forum the University established or Dean Carter’s justifications” (Hosty v. Carter,

412 F.3d 731). It seems that, had the majority made an attempt to determine such
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qualifiers, it would have been possible to conclude that the Innovator was a public forum;

Easterbrook himself states “these facts would permit a reasonable trier of fact to conclude

that the Innovator operated in a public forum and was thus beyond the control of the

University’s administration.”

But the majority makes no visible attempt to determine such qualifiers. As a result,

Easterbrook continues on to say “the Innovator did not participate in a traditional public

forum. Freedom of speech does not apply that someone else must pay” (Hosty v. Carter, 412

F.3d 731). The verdict in this case prompts the Student Press Law Center to urge college

publications to declare themselves public forums as a means of protecting themselves from

a similar fate as Innovator editors.

The court also holds that “when a school regulates speech for which it also pays…

the appropriate question is whether the ‘actions are reasonably related to legitimate

pedagogical concerns.’” But in Hosty v. Carter, the University does not pay for the speech

that Carter attempted to regulate. The argument is therefore irrelevant. The second ruling

in this case appears to be a grand attempt to side with the University. Easterbrook implies

that the district court’s initial ruling relies too heavily on the footnote in the Hazelwood

case, but it appears that, in a similar manner, the second ruling relies too heavily on the

public forum question. I’m unsure as to why the court would want to stifle student media

on college campuses, but because case law allows that this verdict may be cited in future

cases, that’s exactly what the verdict accomplishes.

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Works Cited

Hopkins, W. Wat. Communication and the Law. Blacksburg, VA: Vision Press, 2009. Print.

Hosty v. Carter. 325 F.3d 945. United States Court of Appeals, Seventh Circuit. 2003. Google
Scholar. <http://scholar.google.com/
scholar_case?case=16470782979640004436&q=hosty+v+carter&hl=
en&as_sdt=20000000002>. 01 May 2010.

Hosty v. Carter. 412 F.3d 731. United States Court of Appeals, Seventh Circuit. 2005.
Google Scholar. <http://scholar.google.com/
scholar_case?case=10225258152708377913&q=hosty+v+carter&hl=
en&as_sdt=20000000002>. 01 May 2010.

Niedbalski, James. Class Lecture. Media Law and Ethics. Massachusetts College of Liberal
Arts, North Adams, MA. 15 April 2010.