Hosty v. Carter, 01-4155.
| Decision Date | 10 April 2003 |
| Docket Number | No. 01-4155.,01-4155. |
| Citation | 325 F.3d 945 |
| Parties | Margaret HOSTY, Jeni Porche, and Steven P. Barba, individually and d/b/a Innovator, Plaintiffs-Appellees, v. Patricia CARTER, Defendant-Appellant, and Governors State University; Board of Trustees of Governors State University; Donald Bell; Tommy Dascenzo; Stuart Fagan; Paul Keys; Jane Wells; Debra Conway; Peggy Woodard; Francis Bradley; Peter Gunther; Ed Kammer, Dorothy Ferguson; Judy Young; Claude Hill IV; and Paul Schwellenbach, Defendants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Margaret Hosty, Oak Lawn, IL, pro se.
Jeni Porche, Park Forest, IL, pro se.
Steven P. Barba, Oaklawn, IL, pro se.
Mary E. Welsh (argued), Office of Attorney General, Civ. Appeals Div., Chicago, IL, for Defendant-Appellant.
Richard M. Goehler (argued), Frost Brown Todd, Cincinnati, OH, for Amicus Curiae.
Before COFFEY, ROVNER, and EVANS, Circuit Judges.
Fifteen years ago, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Supreme Court held that high school administrators have broad powers to censor school-sponsored newspapers if their actions are supported by valid educational purposes. In this case, involving an appeal from an order denying summary judgment on qualified immunity grounds, we are asked to consider whether the principles of Hazelwood apply to public college and university students.
The three plaintiffs in this case — Porche, Hosty, and Baron1 — are (or, when this case began, were) students at Governors State University, a state-run institution in University Park, Illinois. They were appointed by the school's "Student Communications Media Board" (SCMB) to serve as editor-in-chief, managing editor, and staff reporter for its newspaper, the Innovator, which is supported by student activity fees. According to the plaintiffs, whose claims we must credit at this stage of the proceedings, they occasionally published articles and letters to the editor that were critical of certain faculty members and the school's administration.
When our three plaintiffs took their positions at the Innovator and during all times relevant to this lawsuit, the policy of the SCMB was that the student staff of the Innovator "will determine content and format of their respective publications without censorship or advance approval." (Emphasis added.) Although the newspaper's faculty adviser often read stories intended for publication at the request of the student editors, the adviser did not make content decisions. Only advice was offered.
In the fall of 2000, Patricia Carter, the university's dean of Student Affairs and Services, twice called Charles Richards, president of Regional Publishing, the company which held the contract for printing the Innovator. In those calls, Dean Carter told Richards that a school official must review the Innovator's content before it could be printed. She instructed Richards to call her when he received future issues of the paper.
In a November 14, 2000, memo delivered to the Innovator editors, Richards relayed the substance of his conversations with Dean Carter. He said Dean Carter told him his company was not to publish any more issues of the Innovator without prior approval by a university official. He noted, however, that his understanding of the law was that prior approval by school officials was not cricket. However, he also observed that he was "no attorney, so that the final decision of the handling of this matter should not be left to me." The student editors understood Richards' comments to mean that his company would not print additional editions of the paper until the issue of Dean Carter's prior approval requirement was settled. A company representative confirmed that it did not want to risk printing the newspaper and then not get paid for the effort.
Sparks were ready to fly. The student editors filed this suit against 17 defendants, listing a litany of grievances in their complaint. Ultimately, all defendants were dismissed (mostly due to Eleventh Amendment problems) from the suit. All, that is, except Dean Carter, who unsuccessfully tried to escape on a claim of qualified immunity. She is here today on a narrow interlocutory appeal from the district court's order denying her request to exit the suit before any further proceedings are required.
The pivotal issue for us is whether Dean Carter was entitled to qualified immunity. Her claim is that the law was not clearly established that her request to review and approve the Innovator prior to printing might violate the student editors' rights under the First Amendment.
Qualified immunity protects government officials performing discretionary functions when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For several decades, courts have consistently held that student media at public colleges and universities are entitled to strong First Amendment protections. These courts have held that school administrators can only censor student media 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. Attempts by school officials, like Dean Carter here, to censor or control constitutionally protected expression in student-edited media have consistently been viewed as suspect under the First Amendment. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (); Kincaid v. Gibson, 236 F.3d 342 (6th Cir.2001) (en banc) (). The prohibition on administrative censorship has extended to cases where school officials required mandatory prior review of student media, Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass.1970); Mazart v. State, 109 Misc.2d 1092, 441 N.Y.S.2d 600 (N.Y.Ct. Cl.1981); Milliner v. Turner, 436 So.2d 1300 (La.Ct.App.1983); Trujillo v. Love, 322 F.Supp. 1266 (D.Colo.1971), and other indirect forms of censorship, when undertaken to affect content. See, e.g., Stanley v. Magrath, 719 F.2d 279 (8th Cir.1983) (); Dickey v. Alabama St. Bd. of Educ., 273 F.Supp. 613 (M.D.Ala.1967), vacated as moot sub nom. Troy St. Univ. v. Dickey, 402 F.2d 515 (5th Cir.1968) (); Schiff v. Williams, 519 F.2d 257 (5th Cir.1975) ().
As one federal court of appeals noted in 1973:
Censorship of constitutionally protected expression cannot be imposed by suspending the editors, suppressing circulation, requiring imprimatur of controversial articles, excising repugnant material, withdrawing financial support, or asserting any other form of censorial oversight based on the institution's power of the purse.
Joyner v. Whiting, 477 F.2d 456, 460 (4th Cir.1973).
The court of appeals for the Fifth Circuit, sitting en banc, expressed similar sentiments in ruling that University of Mississippi officials acted illegally when they prohibited the publication of a school-sponsored student literary magazine because it contained "earthy language":
The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned. It seems a well-established rule that once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees.
Bazaar v. Fortune, 476 F.2d 570, 574 (5th Cir.1973), adopted en banc in 489 F.2d 225 (5th Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974).
Dean Carter's contention that she could not reasonably have known that it was illegal to order the Innovator's printer to halt further publication of the newspaper or to require prior approval of the newspaper's content defies existing, well-established law. Because her actions, if true, violated clear constitutional rights of which she should have been aware, the...
To continue reading
Request your trial
-
Hosty v. Carter
...of qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). A panel of this court affirmed, 325 F.3d 945 (2003), and we granted Carter's petition for rehearing en banc. When entertaining an interlocutory appeal by a public official who seeks the she......