Hosty v. Carter
7th Circuit, June 20, 2005
(7-4)
"Was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)?
"Did the University establish a public forum? Or did it hedge the funding with controls that left the University itself as the newspaper's publisher? If the paper operated in a public forum, the University could not vet its contents.
"But if underwritten student publications at Governors State University are a non-public forum, then it becomes important whether Dean Carter had legitimate pedagogical reasons for her action."
"By establishing a subsidized student newspaper the University may have created a venue that goes by the name 'designated public forum' or 'limited-purpose public forum.' Participants in such a forum, declared open to speech ex ante, may not be censored ex post when the sponsor decides that particular speech is unwelcome.
"A school may declare the pages of the student newspaper open for expression and thus disable itself from engaging in viewpoint or content discrimination while the terms on which the forum operates remain unaltered."
"And the rules laid down by the Board, though ambiguous, could be thought (when considered as favorably to plaintiffs as the record allows) to create a designated public forum."
University officials "concede that the Board is the publisher of the Innovator and other subsidized print and broadcast media. The Board has seven members, all chosen by the Student Senate: four students, two faculty members, and one 'civil service or support unit employee of the university.' The Board determines how many publications it will underwrite (subject to the availability of funds, which as in Southworth and Rosenberger come from student activities fees), and the general character of each. It appoints 'for the period of one year, the head of each student media staff.' The Board's policy is that each funded publication 'will determine content and format . . . without censorship or advance approval'. If this is all there is to it, then the Innovator is in the same position as the student speakers in Southworth and Rosenberger: a designated public forum has been established, and the faculty cannot censor speech within it. When viewing matters in the light most favorable to the students, we stop here, because other matters are cloudy.
"Two things have the potential to cast matters in a different light if a trial were to occur. One is that the Board's charter provides that it is 'responsible to the Director of Student Life.' Perhaps the Director of Student Life (who appears to be one of Dean Carter's subordinates) has established criteria for subsidized student publications. None is in the record, however, so this possibility does not matter. The other is that each funded publication has a faculty adviser. The parties disagree . . . about whether the adviser just offers advice (plaintiffs' view) or exercises some control (Carter's view). Because the district court acted on a motion for summary judgment, it assumed (as do we) that plaintiffs' perspective is the correct one. On that understanding, the Board established the Innovator in a designated public forum, where the editors were empowered to make their own decisions, wise or foolish, without fear that the administration would stop the presses."
[Name of school] recognizes and affirms the editorial independence and press freedom of all student-edited campus media. Student editors have the authority to make all content decisions and consequently they bear the responsibility for the decisions that they make.
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