Press Restrictions: E
E. Kentucky State Yearbook Ruling Marks Victory for Student Press
It took nearly seven years of First Amendment litigation, but members of the Kentucky State University (KSU) class of 1994 finally received their yearbooks in the spring of 2001. The distribution of the yearbook, titled The Thorobred, marks the end of a dispute that threatened to sharply limit the free speech rights of students at public universities. Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) (en banc).
The dispute began when university administrators first saw the yearbook after it came back from the printers in November 1994. It was not the kind of yearbook they were expecting. Its cover was made of purple foil (school colors are green and gold), its theme was the ambiguous “Destination Unknown,” and it included photographs of people -- among them Attorney General Janet Reno and Supreme Court Justice Ruth Bader Ginsburg -- who seemed, to administrators, irrelevant to the yearbook’s focus.
University Vice President for Student Affairs Betty Gibson and other officials were so dissatisfied with the yearbook that they decided to withhold it from distribution. Students Charles Kincaid, a prospective reader of the yearbook, and Capri Coffer, one of its editors, challenged the university decision in a First Amendment lawsuit filed in federal district court.
In November 1997, Judge Joseph Hood rejected the students’ suit, ruling that even though KSU is a state university, its yearbook is not a public forum. Judge Hood also ruled that university administrators exercised “reasonable control” over the yearbook. Kincaid v. Gibson, CIV 95-98 (E.D. Ky. Nov. 14, 1997).
But most troublesome to student press advocates was that Judge Hood’s ruling marked the first time that the 1988 U.S. Supreme Court decision Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), had been applied to a college publication. The Hazelwood decision had been a major defeat for high school media, allowing school officials to censor student expression if they could show that their actions were “reasonably related to legitimate pedagogical concerns.”
The Hazelwood decision had led to a sharp increase in high school censorship. But it had never been applied to expression at the university level, where the increased maturity of students and the diversity of voices has for decades led judges to favor wide-open expression with little regulation. A footnote in Hazelwood specifically excluded colleges and universities from its scope.
But Judge Hood invoked Hazelwood
anyway, as a justification for finding that the yearbook was not a public
forum. “The yearbook was not intended to
be a journal of expression and communication in a public forum sense, but
instead was intended to be a journal of the ‘goings on’ in a particular
year at KSU,” Judge Hood wrote.
Student Press Advocates Mobilize
Student press advocates sounded the alarm about Judge Hood’s ruling, asserting that applying Hazelwood’s censorship-friendly standard to college media would cripple an important communication tool for students.
“The college media could be fighting for their life with this case,” said Mark Goodman, executive director of the Student Press Law Center (SPLC) in Arlington, Va. “As we’ve seen at high schools across the nation, when government officials can censor an article they don’t like simply by saying that it's ‘poorly written’ -- you've made a joke of the First Amendment. No credible student journalism program can operate under such constraints. The future of journalism education is very much at stake here.”
A broad coalition of First Amendment and media organizations filed a friend-of-the-court brief when Judge Hood’s decision was appealed to the U.S. Court of Appeals for the Sixth Circuit.
“The censorship of curricula and the impingement of academic freedom that Hazelwood arguably could permit would cause irreversible damage to the venerable place occupied by academic institutions as the marketplace of ideas,” the coalition argued in a brief written by attorneys Richard Goehler, Jill Meyer Vollman, and Ana Maria Merico-Stephens of the Cincinnati-based law firm of Frost & Jacobs.
Sixth Circuit Panel Upholds Ruling
But a three-judge panel of the Sixth Circuit initially upheld the district court decision in a 2-to-1 decision issued Sept. 8, 1999. Kincaid v. Gibson, 191 F.3d 719 (6th Cir. 1999).
“It is no doubt reasonable that KSU should seek to maintain its image to potential students, alumni, and the general public,” wrote Judge Alan Norris. “In light of the undisputedly poor quality of the yearbook, it is also reasonable that KSU might cut its losses by refusing to distribute a university publication that might tarnish, rather than enhance, that image.” Judge Norris, like Judge Hood, invoked Hazelwood to demonstrate that the yearbook was not a public forum and therefore did not require the university to meet a high standard before being allowed to censor it.
In dissent, Judge R. Guy Cole, Jr. took the majority to task for invoking Hazelwood in the context of a university yearbook. He said the yearbook is a limited public form where heightened First Amendment scrutiny is appropriate. “I believe that the university’s proffered reasons for withholding distribution of the yearbook for the period of 1992-94 -- inappropriate theme or title, poor quality -- are content-based restrictions that do not serve any compelling governmental interest,” wrote Judge Cole.
Student press advocates were stunned by the majority opinion, bracing for a wave of censorship, at least at the state universities in Kentucky, Michigan, Ohio, and Tennessee, which comprise the Sixth Circuit.
Full Court Reverses
But a few months later came a sign that not all was lost. The appeals court announced it would rehear the case en banc, or as a full court. After hearing arguments in the case in May 2000, the court reversed the panel decision on Jan. 5, 2001 and declared that the yearbook was indeed a limited public forum. This time, Judge Cole wrote for a 10-to-3 majority.
“There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script,” Judge Cole wrote. “In either case, the government alters student expression by obliterating it. We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government.” Kincaid, 236 F.3d at 355. Judge Cole also rejected the earlier application of Hazelwood to the university setting.
The decision was a strong endorsement of First Amendment rights for college students. “The university environment is the quintessential ‘marketplace of ideas,’ which merits full, or indeed heightened, First Amendment protection,” Judge Cole wrote. “Confiscation ranks with forced government speech as amongst the purest forms of content alteration,” Judge Cole also said. Id.
The Sixth Circuit found the university’s confiscation of the yearbook for six years to be “arbitrary and unreasonable,” and “not a reasonable time, place, or manner regulation of expressive activity.” Id. at 354.
The ruling was applauded as a landmark for college free speech rights. “It took some time, but this court finally got this case right,” said Mr. Goodman of the SPLC. “As this court’s decision indicates, the very idea that books have been locked away by government officials on a public university campus for the past six years so that students cannot read them is more reminiscent of a third-world dictatorship than our American democracy.”
The university indicated at first that it might appeal to the Supreme Court but did not, instead negotiating with the students to fashion a remedy for the violation of their First Amendment rights. In March 2001, the university announced it would distribute the yearbooks to all entitled graduates who could be found, and it agreed to pay the students’ attorney fees.
-- Tony Mauro