In a continuing legal battle over the censorship of student newspapers by college authorities, US courts are siding with journalists defending the freedom of speech. Walter Ellis reports
Student newspapers in the US take themselves very seriously. They like nothing more than a scuffle with the dean over claims of censorship. If the controversy goes to court, they are delighted. Should the issue raised - which is almost invariably tied to the First Amendment of the US Constitution - end up before the Supreme Court, they are in heaven.
One such college versus students row is being played out between the dean of Governors State University in Illinois and a trio of indignant journalists. The case has already delivered much, and it promises more.
Three years ago, GSU dean Patricia Carter banned publication of the university's student newspaper, the Innovator , until she or a designated school official had approved its contents. The Innovator has not appeared since.
The dean believed she was within her rights. The three journalists - managing editor Margaret Hosty, editor Jeni Porche and reporter Steven Barbra - were outraged. The stated policy of the university was that the editors of the paper "will determine content and format of their respective publications without censorship or advance approval". Carter had broken the compact. It was time for the lawyers on both sides to start earning their money.
The phrase "tempest in a teapot" could have been coined for the occasion. It was independence and freedom of speech versus prejudice and tyranny. The labyrinthine halls of America's legal system were about to echo to the footfalls and catcalls of student-based national debate.
Last September, having been given leave by the US Court of Appeals in Chicago, attorneys for the Student Press Law Center and a group of First Amendment enthusiasts began preparing their case to be argued before a panel of federal judges.
Central to the hearing was the highly controversial Hazelwood decision of the Supreme Court in 1998, under which school administrators were told they could censor high-school student newspapers on the basis of exhibiting "reasonable educational purpose". Advocates of the First Amendment were scandalised by that ruling and have fought it ever since, believing it to offer scant protection to free speech.
The First Amendment itself is short and to the point: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
From the simple statement that no law shall abridge the freedom of speech or of the press, a great deal has flowed. Much of the debate about the "Pentagon papers" case and the Watergate scandal turned on what was free speech and what was illegal. But whereas the national press, as well as radio and television, have tended to test the First Amendment on the basis of what they can and cannot say about the governance of their country, or big business, or powerful individuals, student publications have stood up repeatedly on an "us against them" basis - "us" being students who represent free speech and freedom of the individual, "them" being stuffy college officials anxious not to be embarrassed in their own backyards.
Last week, in what could turn out to be a landmark judgment, the same Chicago-based Court of Appeals ruled that public colleges and universities could not ask to review the content of student-edited publications before they hit the streets. Arguably, this contradicted the Hazelwood decision, thus possibly teeing up a fresh legal battle involving the nine justices of the Supreme Court, headed by Chief Justice William H. Rehnquist.
Mark Goodman, executive director of the Student Press Law Center, says the Chicago judgment - which followed a similar ruling by the Cincinnnati Appeals Court in 2001 - reaffirmed the previous 30 years of college censorship cases.
"We hope that this ruling will dissuade - once and for all - college officials who are inclined to censor from engaging in that unconstitutional behaviour," Goodman says.
That remains to be seen. The GSU dean had argued that the law was not clearly established for college media, as distinct from high-school publications. The court denied her claim and said she should have been aware of the many cases over the past 30 years that supported college students' press rights.
"These courts," said Judge Terence T. Evans, "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."
The Court of Appeals affirmed the order of a lower court denying Carter's request for qualified immunity and returned the case to the district court for further proceedings.
Other cases could hang on the Innovator ruling. Protesters at the University of Maryland are demanding an apology for a cartoon that ran in the student newspaper, Diamondback , last month, despite the insistence of editors that printing it was within their rights as journalists.
The cartoon, which labelled the actions of an American peace activist killed by an Israeli bulldozer as the definition of stupidity, prompted campus groups to organise a sit-in blocking one of the entrances to the newspaper office and caused many administrators to speak out against the newspaper's decision. Editor-in-chief Jay Parsons said that although the paper had decided to review its policy on opinion-page content, no apologies would be made: "We're standing by the cartoonist's right to free speech."
A celebrated defence of the right of students to express themselves freely was given two years ago by the incoming president of Brown University, in Providence, Rhode Island. Ruth Simmons, the first black female president of an Ivy League institution, herself the descendant of slaves, supported the decision of the Brown Daily Herald to accept a paid advertisement arguing against the payment of reparation to blacks to compensate them for centuries of persecution.
The ad gave offence to many at the university, and 4,000 copies of the newspaper were stolen overnight.
"By entering this university," Simmons told first-year students, "each of you has also become a guardian of free expression. Knowledge is rooted in freedom of speech and inquiry.
"I won't ask you to embrace someone who offends your humanity through the exercise of free speech. But I would ask you to understand that the price of your own freedom is permitting the expression of such opinions."