Defendants’
jurisdictional statement is, to Plaintiffs’ best knowledge, accurate and
complete.
ISSUES PRESENTED
1.
Whether the law was clearly established prohibiting Defendants’ actions
as being in violation of Plaintiffs’ First and Fourteenth Amendment rights at
the time said actions occurred.
2.
Whether Defendant Carter should be entitled to qualified immunity for:
demanding that the university newspaper be reviewed and approved by the
administration prior to publication; threatening to withholding funds if those
mandates were not met; attempting to superimpose administrative viewpoint of
content on Plaintiffs; abrogating Plaintiffs’ vested editorial powers; denying
Plaintiffs official recognition, and therefore, freedom of association; and for
having taken action against Plaintiffs in denial of their due process
guarantees, as well as denying Plaintiffs property
interests in the educational process.
STATEMENT OF THE CASE
(1) The files which Hosty had been accessing do not meet the
definition of restricted files per university published policy. In State v.
McMechan, 594 N.E. 2d 211 (Ohio Ct. App. 1988), a university student charged
with trespass of a campus area was exonerated as no restrictive signs were in
the area. This depicts precisely the conditions in which Hosty was arbitrarily
charged with trespass of files, for which a hearing was conducted in violation
of constitutionally-mandated procedural and substantive due process guarantees.
The physical acts taken against Plaintiffs in violation of due process are not
addressed herein, per this Court’s denial to Plaintiffs to submit an oversized
brief.
I.
Defendant Carter’s Demand
for
Prior Review and Approval of the INNOVATOR
for Publication Was
in Violation of First Amendment
Freedoms of the Press and Speech.
Any
reasonable jury could conclude that Defendant Carter’s demand to review and
approve the student newspaper prior to printing violated Plaintiffs’ First
Amendment rights. Lower courts have consistently held that censorship of college
and university-sponsored publications is almost never permissible. See, e.g., Lueth
v. St. Clair County Community College, 732 F. Supp. 1410 (E.D. Mich. 1990); Mazart
v. State, 441 N.Y.S.2d 600, 605 (N.Y. Ct. Cl. 1981); Milliner v. Turner,
436 So. 2d 1300 (La. Ct. App. 1983), cert. denied, 442 So.2d 453 (La. 1983); Panarella
v. Birenbaum, 32 N.Y.2d 108, 343 N.Y.S.2d 333 (N.Y. 1973); State Board
for Community Colleges v. Olson, 687 P.2d 429 (Colo. 1984), appeal after
remand, 759 P.2d 829 (Colo. Ct. App. 1988). Antonelli v. Hammond, 308 F.
Supp. 1329 (Dist. Mass. 1970); Romano v. Harrington, 725 F. Supp. 687 (E.D.
N.Y. 1989); Korn v. Elkins, 317 F. Supp. 138 (D. Md. 1970).
Other
circuit courts have unanimously endorsed the right of the student expression to
be free from university control. Schiff v. Williams, 519 F.2d 257 (5th
Cir. 1975) (a university could not dismiss student newspaper editors because the
university disapproved of the paper's content); Joyner v. Whiting, 477
F.2d 456 (4th Cir. 1973) (a university withdrawing funds from the student
newspaper violated students' rights to freedom of expression); Mississippi
Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1973), cert. denied, 430
U.S. 982 (1977) (college newspaper can refuse advertisement because it is not
state actor); Bazaar v. Fortune, 476 F.2d 570, aff'd en
banc with modification, 489 F.2d 225 (5th Cir. 1973) (per curiam), cert.
denied, 416 U.S. 995 (1974) (students' rights to free speech were violated when
a university censored a student literary publication); Stanley v. Magrath,
719 F.2d 279 (8th Cir. 1983) (prohibiting a university from cutting the student
newspaper's funding because the university disapproved of its content); Sinn
v. Daily Nebraskan, 638 F. Supp. 143 (D. Neb. 1986) aff'd, 829 F.2d 662 (8th
Cir. 1987) (college newspaper can legitimately refuse to include content to
which the editors are opposed); Kincaid v. Gibson,
236 F.3d 342, 346 (6th Cir. 2001) ( a college yearbook cannot
be censored by administrators).
The
Supreme Court has consistently ruled public colleges may not censor student
expression, particularly in the form of newspapers.
In Healy v. James, 408 U.S. 169 (1972), the Court declared:
“At
the onset, we note that state colleges and universities are not enclaves immune
from the sweep of the First Amendment. ‘It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.’ Tinker v. Des Moines Independent
School District, 393 U.S. 503, 506 (1969).
Of course… First Amendment rights must always be applied ‘in light of
the special characteristics of the…environment’ in the particular case. Ibid.
And, where state-operated educational institutions are involved, this Court has
long realized …[T]he vigilant protection of constitutional freedoms is nowhere
more vital than in the community of American schools…The college…with its
surrounding environs is peculiarly the “marketplace of ideas,” and we break
no new constitutional ground in reaffirming this Nation’s dedication to
safeguarding academic [408 U.S. 169, 181] freedom. “ (citations omitted).
In Healy, the Supreme Court found it unconstitutional that a
student organization was “limited by denial of access to the customary media
for communicating with the administration, faculty members, and other students.
Such impediments cannot be viewed as insubstantial.” Id. at 181-2. If
restricting a student organization from access to the college newspaper creates
a serious constitutional violation, censoring the student newspaper itself is
far more threatening to the free exchange of ideas on a college campus.
Under
Healy, a college administration could not insist on prior review of all
materials distributed by a student organization, even for purpose of correcting
spelling errors: "It is to be remembered that the effect of the College's
denial of recognition was a form of prior restraint, denying to petitioners'
organization the range of associational activities described above. While a
college has a legitimate interest in preventing disruption on the campus, which
under circumstances requiring the safeguarding of that interest may justify such
restraint, a ‘heavy burden’ rests on the college to demonstrate the
appropriateness of that action.” Id. at 184.
A
college newspaper is analogous to college facilities like those in Widmar v.
Vincent, 454 U.S. 263, 268-69 (1981):
Just as multiple groups cannot occupy a particular room simultaneously, multiple
groups cannot simultaneously edit the student newspaper. Someone, therefore,
must be chosen to occupy the room or to edit the newspaper; however, once a
choice is made, the university may not demand prior approval of what is said in
the room or printed in the newspaper. A mechanism for choosing a student editor
gives the university no more authority to censor the newspaper than a mechanism
for allocating the room gives the university authority to censor what is said in
the facility.
In
Rosenberger v. Rectors and Visitors of the Univ. of Virginia,
515 U.S. 819, 844 (1995), the Supreme Court ruled that a student magazine at
a public university is “a publication involved in a pure forum for the
expression of ideas, ideas that would be both incomplete and chilled were the
Constitution to be interpreted to require that state officials and courts scan
the publication to ferret out views”; this “chilling effect” occurs
anytime state officials engage in prior review, whether they are ferreting out
religious views, criticism of the administration, or alleged grammatical
mistakes.
The
facts in the case now before this Court are the same as in Rosenberger;
the Defendants have refused to authorize payment to a printer until the
administration examined a student publication and approved its content.
The
Court in Rosenberger struck down “a sweeping restriction on student
thought and student inquiry in the context of University sponsored
publications.” Id. at 836. The Supreme Court noted, “In this case,
‘the government has not fostered or encouraged’ any mistaken impression that
the student newspapers speak for the University.” Id. at 840-1. GSU has
made it abundantly clear that the student newspaper does not speak for the
administration, most ostensibly in a November 3, 2000 letter sent to the entire
campus from President Stuart Fagan, condemning The INNOVATOR. As in Rosenberger,
“The distinction between the University's own favored message and the private
speech of students is evident in the case before us.” Id. at 834.
The
Supreme Court, in Board of Regents of the Univ. of Wisconsin Sys. v.
Southworth, 529 U.S. 217 (2000) noted: “If the challenged speech here were
financed by tuition dollars and the
University and its officials were responsible for its content, the case might be
evaluated on the premise that the government itself is the speaker. That is not
the case before us.” at 205-206. At GSU, student fees supported the newspaper
(in addition to Plaintiffs’ advertising revenue), and university officials
were not responsible for its content. Southworth
and other precedents establish that universities are not the speakers in
college newspapers. The Supreme Court’s rulings to protect academic
freedom and freedom of the press point unmistakably to the conclusion that
government officials and university administrators
may not censor or review student newspapers at public colleges.
A.
The District Court’s Decision Regarding
Deference Under the De Novo Standard of Review
Plaintiffs
contend that the documents provided by parties not named in this suit, as
well as prior issues of the INNOVATOR published under their editorial tenure,
are sufficient to demonstrate more than a “mere scintilla” of evidence in
support of Plaintiffs’ claims. Of these documents specifically included in the
public record are the letter and affidavit of the printing agency owner, the
affidavit of the printing agency employee, and the October 31, 2000 issue of the
INNOVATOR.
B.
Viewpoint Discrimination Attempted by Defendants Violates First
Amendment Freedoms of Speech and the Press.
Defendants
claim Defendant Carter’s demand for prior review and approval was made to
ensure that the INNOVATOR was in “compliance with the University’s standards
for grammar, punctuation, and composition as well as with journalistic
standards. Doc. 44 at
Carter dep. at 9, 4-5. In his memo
to the GSU community, Defendant Fagan wrote, “With few exceptions, the October
31st edition of the INNOVATOR just did not measure up to accepted
journalistic standards.” Doc. 44 at Fagan dep. at
ex. 2. It is reasonable,
therefore, for a jury to conclude that the GSU administration, if it had only
acted quickly enough to reach the printer, intended to censor most of the Oct.
31, 2000 issue of the INNOVATOR for allegedly violating “journalistic
standards.”
Defendants
did, in fact, attempt to censor the issue, as Carter made the first
call to the printing agency to block publication of the October 31, 2000 issue,
and upon learning that it had, indeed, already been published and delivered to
the university, made the second call to prohibit publication of future issues.
Doc. 43 at Richards aff.
Fagan’s
condemnation, however, despite being inaccurate and hence untrue, springs from a
man with admittedly zero journalism experience. Doc. 44 at Fagan dep. at 24.
Despite this acknowledged
ignorance, Defendants intended to hold Plaintiffs culpable to a journalism code
to which Plaintiffs are not beholden; Fagan’s memo attached a copy of the code
espoused by the “Society of Professional Journalists.” Doc. 44 at Fagan dep.
at ex. 2. Plaintiffs clearly, in
their capacity as merely student newspaper editors and writers, are not
professional journalists. (This accomplishes nothing less than accusing, for
example, a Christian of being a poor Buddhist; the right to choose affiliation,
whether ethical, educational, professional, or religious, ever remains the
individual’s, and is an indirect denial of Plaintiffs’ First Amendment
guarantees of freedom of association.)
Moreover,
“journalistic standards” is entirely too vague and nebulous a criterion to
be supportable; the fact that every paper creates its own editorial policy
deflates the notion of a singular model. Since
every paper creates its own criteria, and there are many
press codes, it defies the existence of the singular set of “journalistic
standards” Fagan would have this Court and the GSU community believe to exist.
In Lueth, a former
editor-in-chief of a student-run newspaper at a community college challenged
prohibited publication of content per
criteria established outside the discretion of the paper’s editorial board;
the college was found to have violated the First Amendment rights of the
editor-in-chief, as the college’s regulations were not narrow enough to
identify a state or institutional interest. 732 F. Supp. 1410.
A district court ruled in favor of a student who challenged the
constitutionality of the university’s policy on discrimination, finding the
terms of the policy were “too vague,” which
violated the due process clause and resulted in a restriction against
free speech. Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich.
1989).
The courts have also
held that vague university regulations are too broad to satisfy a university’s
legitimate interests in maintaining propriety or aesthetics. Students Against
Apartheid Coalition v. O’Neil, 660 F. Supp. 33 (W.D. VA 1987). The
Court in Rosenberger ruled
that the Constitution “forbid[s] the State from exercising viewpoint
discrimination, even when the limited public forum is one of its own
creation.” 515 U.S. 819 at 829.
Moreover,
grammar, punctuation, and spelling are all content-related matters, and
therefore subject to editorial discretion, not administrative approval or
compliance with unspecified, unpublished, and unsubstantiated university
mandates: Add to this the fact that language is in a constant state of flux;
“slang” usage cannot not possibly be accurately predicted or justifiably
prohibited; and journalism, like any other profession, has its own special forms
and jargon. Such considerations
evidence just how ludicrous, implausible, and extremely restrictive
Defendants’ allegations are in suggesting that such “university standards”
either exist, or, in fact, that mandated adherence to any such regulations would
be desirable.
In Healy, the Court ruled that only with
“evidential basis to support the conclusion” that students’ actions
substantially and materially disrupt the educational process can the
administration’s actions be affirmed as permissible. 408
U.S. 169 . Defendants make no allegations that
Plaintiffs’ publication either caused such disruption or were likely to do so,
based on the mere possibility of disputation of comma usage or speculative
misplaced periods appearing in subsequent issues.
The Fourth Circuit has ruled that it could not
force newspapers to print content to which the editors were opposed. Kania v.
Fordham, 702 F. 2d 475 (4th Cir. 1983): Grammar, spelling, and punctuation
are all content-related issues, and subject to editorial discretion
The
Supreme Court of Oklahoma ruled First Amendment rights had been violated in a
university’s refusal to officially recognize a student organization.
Failing to show written documents or evidence the activity was illegal,
the state could not rely on the mere suspicion that some members would violate
state laws (i.e., fail to meet “university standards”).
The key issue noted by the court was whether the state could deny
recognition based on the content espoused by the organization—it could not,
and thus the plaintiffs’ First Amendment rights had been violated on the
grounds of mere suspicion of non-compliance, as is the case here. Gay
Activist Alliance v. Board of Regents of Univ. of Oklahoma, 638 F 2d. 1116
(Okla. 1981)
In Tinker, the Supreme Court upheld:
“But in our system, undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of expression.
Any departure from absolute regimentation may cause trouble.
Any variation from the majority’s opinion may inspire fear.
Any word spoken, in class, in the lunchroom, or on the campus, that
deviates from the views of another person may start an argument or cause a
disturbance. But our Constitution
says we must take this risk… In order for the State in the person of school
officials to justify prohibition of a particular expression of opinion, it must
be able to show that its action was caused by something more than a mere desire
to avoid the discomfort and unpleasantness that always accompany an unpopular
viewpoint…In our system, students may not be regarded as closed-circuit
recipients of only that which the State chooses to communicate.
They may not be confined to the expression of those sentiments that are
officially approved. In the absence of a specific showing of constitutionally
valid reasons to regulate their speech, students are entitled to freedom of
expression of their views.” (citations omitted) 393 U.S. 503.
As
such, Plaintiffs were not obligated to adhere to administrative-designated and
“officially approved” use of language, as Defendants’ enforced
proscriptive usage indisputably would interfere with Plaintiffs’ freedom of
expression; Plaintiffs’ departure from administratively-proscribed language
does not guarantee material and substantial disruption of the educational
process or university environment, and Defendants, therefore, have failed to
meet the “heavy burden” required of them to substantiate their trespass of
Plaintiffs’ rights.
C.
Prior Restraint of the INNOVATOR Exercised by Defendants Violates
the First Amendment Freedom of the Press.
The
Supreme Court has upheld that the primary purpose of the First Amendment is
"to prevent all such previous restraints upon publications as had been
practiced by other governments." Patterson v. Colorado, 205 U.S.
454, 462 (1907).
In
Near v. Minnesota, 283 U.S. 697, 713 (1931), the Supreme Court declared:
"[I]t has been generally, if not universally, considered that it is the
chief purpose of the [First Amendment's] guaranty to prevent prior restraints
upon publication." The exemption to the ban on prior restraint would only
apply if Plaintiffs published movement
of troops during wartime, which Defendants neither allege, nor did Plaintiffs
attempt. In New York Times v.
United States 403 U.S. 713 (1971), the Supreme Court ruled that the
government had not met the “heavy burden” of proving that national security
claims outweighed the First Amendment: If the Court found that even national
security claims did not warrant disregard of First Amendment freedoms, how much
less, then, should mere allegations of grammatical errors?
In
Texas v. Johnson 491 U.S. 397 (1989), the Supreme Court ruled that “We
do not consecrate the flag by punishing its desecration, for in doing so, we
dilute the freedom that this cherished symbol represents.” The following year,
the Court rejected a congressional act to punish flag burners: If the Supreme
Court did not find even flag burning to be sufficient cause for denial of First
Amendment rights, then alleged grammatical mistakes in newspaper copy are
nowhere near to being a legitimate excuse to strip Plaintiffs of their
identical, constitutional guarantees.
If
GSU intends to use prior review merely to correct trivial errors, then it does
not rise to any educationally justifiable purpose. Grammar,
punctuation, and spelling are content-related issues, subject to viewpoint
variation: A university should accomplish its educational goals in some
fashion other than silencing speech on the basis of its viewpoint or content. Iota
Xi Chapter of Sigma Chi Fraternity v. George Mason University, 773 F.Supp.
792 (E.D. VA 1991), 993 F. 2d 386 (4th Cir. 1993) .
Defendants
have offered no written guidelines or laws which grant license to them to
trespass Plaintiffs’ rights either as collegiate administrators or government
officials: Considering that Defendant
Carter’s invocation of prior review powers was in violation even of
university-published policy, a reasonable jury would be likely to
question the credibility of the Defendant on this point.
The
Supreme Court upheld, in New York Times, that "Any system of prior
restraints of expression comes to this Court bearing a heavy presumption against
its constitutional validity.” 403 U.S. 713
The government "thus carries a heavy burden of showing justification
for the imposition of such a restraint." Organization for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971): Defendants have neither offered
nor can provide such justification.
In
New York Times , it was determined that “Both the history and language
of the First Amendment support the view that the press must be left free to
publish news, whatever the source, without censorship, injunctions, or prior
restraints.” 403 U.S. 713 at 717.
It was also declared by that Court that “[T]he First Amendment tolerates
absolutely no prior judicial restraints of the press predicated upon surmise or
conjecture that untoward consequences may result.”
Id. at 725-6. Also, prior restraint is permitted only when
"the evil that would result is both great and certain and cannot be
militated by less intrusive measures.” CBS Inc. v. Davis, 114 U.S. 912
(1994); this most certainly cannot be reasonably believed to be the result of
questionable punctuation and spelling in newspaper copy.
It
is the unique legal position of GSU to be a publisher legally prohibited from
prior review, but capable of using its financial position to illegally demand it
from a printer: Regional Publishing held the contract to print the INNOVATOR
with Defendants, and Plaintiffs did not have the means or fiscal authority to
have the INNOVATOR printed on their own. Plaintiffs are not constitutionally
compelled to waste their time attempting to produce a newspaper which the
administration will not allow to appear without prior review and approval; Plaintiffs,
in fact, did continue to attempt production. Doc. 44 at Hosty dep. at 47,
50-51, 86-87.
Nor
are Plaintiffs obligated to risk the danger of having their newspaper
bowdlerized by state officials without their knowledge. In Hazelwood School
District v. Kuhlmeier, 484 U.S. 260 (1988), which the Defendants wrongly
assert is guiding to this case, the principal was exonerated of having deleted
two pages from the high school newspaper before having it printed due to the
“immaturity” of the student population under his auspices. At GSU, the
student population is comprised of adult students, and Plaintiffs have
encountered classmates who are grandmothers, career teachers, military veterans,
law enforcement officials, and retirees, some of whom have even been previous
contributors to the INNOVATOR under Plaintiffs’ tenure as editors.
If
Defendants wish to argue they question the maturity of the student population at
GSU and therefore should be granted unfettered license to screen and determine
reading materials for such a population, their argument is not merely ludicrous,
but insulting as well. The “special environment” of the GSU community
bespeaks, therefore, of a student population comprised of individuals having
demonstrated maturity enough to hold jobs, raise families, and serve their
country; the situation of Hazelwood does not reflect in even
remotely the situation of this case, and therefore has no rightful
application to it.
Legal
precedence establishes clearly that college student journalists are free to
publish whatever they want without prior review or restraint. Requiring college
students to submit a publication for prior review has been deemed an
unconstitutional attempt by the administration to control content. See, e.g., Antonelli,
308 F. Supp. at 1335. In Mazart, the court ruled: “censorship or prior
restraint of constitutionally protected expression in student publications at
State-supported institutions has been uniformly proscribed by the courts.” 441
N.Y.S. 2d 600 at 605.
Plaintiffs
are entitled to have the threat of censorship lifted before they proceed with
publication. No court has ruled that a journalist must publish a newspaper under
the threat of an unconstitutional prior restraint in order to have a legal
claim. See Near v. Minnesota, 283 U.S. 697, 713-716 (1931); Organization
for a Better Austin v. Keefe, 402 U.S. 415, 418 (1971); Freedman v.
Maryland, 380 U.S. 51, 57 (1965).
In Kania, the court ruled that neither
the school nor the courts could force a student newspaper to print content to
which the editors were opposed. 702 F. 2d 475.
Plaintiffs,
in fact, desired to proceed with publication of future issues (and originally
filed for declaratory and injunctive relief to do so), but were precluded from
completion and publication of any further issues due Defendants’ violative
actions. In Sinn, the court found that
determination of content is a constitutionally-protected editorial discretion,
which is to be upheld even if a paper is subsidized with state money.
638 F. Supp. 143.
The fact that plaintiffs voluntarily chose (in editorial capacity) to
have their faculty advisor review the newspaper does not in any way compel them
to accept prior review and approval by an administratively-designated
individual. Defendants claim that advisor review being “common practice”
made its imposition by the GSU administration acceptable; such an argument is
not plausible.
The
advisor’s mandated signature for release of the paper was due to
university-established procedure, as all advisors to GSU student clubs and
organizations are required to sign off on paperwork generated for processing of
requests and expenditures; the forms are neither mentioned in nor mandated by
SCMB bylaws or university media
policy, and primarily serve the university’s fiscal and plant operations’
departments instead of the student newspaper.
As such, it exists not to confirm the “common practice” of advisor
review, but merely the “common practice” mandated of all student clubs and
organizations, the campus press included, in order to process internal requests
of all natures or remit payment to vendors such as the printing agency.
Defendant
Carter demanded prior review and approval and threatened non-payment in order to
censor viewpoints disapproved of by the administration, which is an
unconstitutional act of viewpoint discrimination and prior restraint.
The Eighth Circuit Court ruled in favor of a student association suit having
brought suit against public university officials for violating the group’s
First Amendment rights, the result of it’s having been denied funding by the
school. State action was present
since the university official had final determination of funding, as did
Defendants, and specifically, Carter.
The denial of funding was found to be
content-motivated and a violation of the group’s First Amendment rights
resulted. Gay & Lesbian Student Association v. Gohn, 850 F. 2d 361
(8th Cir. 1988)
The
Sixth Circuit upheld that a
state-operated theater’s cancellation of a controversial film at the request
of a state senator was a state action, and therefore an unconstitutional
deprivation of students First Amendment rights to receive information and ideas.
Brown v. Board of Regents of University of Nebraska, 640 F. Supp. 674 (D.
Neb. 1986), 669 F. Supp. 297 (D. Neb. 1986): Carter’s calls to Richards meets
identical standards of interference in terms of withholding funds, and
accomplished nothing less than an identical deprivation of receipt of ideas and
information.
The motives of the Defendant are disputed facts which a jury must
determine, and are not reserved for summary judgment. Defendants’ true motives
must be called into question because they allege that the calls were made to the
printing agency to ensure that an advisor was in place, in order to proofread
for spelling and grammar errors. Plaintiffs’ advisor’s name and Hosty’s as
copy editor, however, appeared in every issue published, and Defendant Carter herself
testified in three places that no less than three individuals had informed her
Plaintiffs, indeed, had an active advisor in place; had Carter no knowledge of
such, it would have been impossible
for her to have debated with Plaintiffs about having someone other than him
review the paper.
Also, Carter’s signature was the last required before Plaintiffs’ paperwork for The INNOVATOR
could be successfully processed; university policy mandated that the advisor and
an administrator directly under her auspices (such as Defendant Dascenzo) sign
off on all paperwork prior to it being advanced to her office; Carter’s claims
of ignorance are just that—claims. (Carter testified she had no concerns
whatsoever with Plaintiffs’ October 31, 2000 issue, which would include
grammar and journalism standards; contradictions such as this abound in
Defendant testimony.)
Moreover,
Defendant Carter’s firing of the advisor prevented Plaintiffs from submitting
any further issues for publication because university policy mandated that all
paperwork for student clubs and organizations bear advisory signatures; the
firing of Plaintiffs’ advisor, in addition to being an abrogation of
Plaintiffs’ editorial rights, also effectively precluded payment to the
printing agency, as it accomplished nothing less than the implicit threat of
withholding payment made by Defendant Carter to Richards.
Defendants have failed to show a jury verdict against Dean
Carter could not be justified. Since courts justifying a summary judgment must
view evidence in a manner most favorable to the plaintiff, summary judgment must
be rejected. Any reasonable jury could conclude that an order for prior review
and prior restraint issued almost exactly
at the same time that administrators were restricting and denouncing a student
newspaper having severely criticized them was an unconstitutional attempt to
restrain freedom of the press based on content and viewpoint. See Doc. 44 at
Fagan dep. ex. at 3.
Even
if the evidence is viewed in the manner most favorable to the Defendants, Dean
Carter’s confessed reason for prior review and
restraint (to correct grammatical errors and uphold journalistic standards) is still illegitimate under the precedents established for the college
press, and summary judgment must be rejected. The act of prior restraint, once
established, continues to exist until it is specifically lifted; as evidenced by
Richards’ affidavit, the university had never contacted him to lift the ban
imposed by Carter well beyond Plaintiffs’ editorial tenure, as his affidavit
is dated September 26, 2001. Doc.
43 at Richards’ aff.
Antonelli dealt with a college president who “through his
power over the purse is censoring the material for publication by subjecting it
to the prior approval of a faculty advisory committee.” 308 F. Supp. 1329 at
1331. The Antonelli court
upheld “the right to be free from the burden of submitting future issues of The
Cycle to the advisory board for its prior approval.” Id. at 1334.
Grammar, punctuation, and spelling all constitute content, and if
language were indeed static, inflexible, limited, and not subject to individual
interpretation, then there would be only one, perpetual dictionary of the
English language.
In
Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir.
1971), this very Court struck down a Chicago Board of Education prior review
rule as violative: “Because section 6-19 requires prior approval of
publications, it is unconstitutional as a prior restraint in violation of the
First Amendment.” The Fujishima ruling also applied to distributing
college newspapers, since it noted that Antonelli was “[i]n harmony
with the cases cited.” 308 F. Supp. 1329 at 1359.
Nor
is the excuse claimed by Dean Carter, which Plaintiffs challenge, sufficient to
justify prior review or restraint. In Schiff , a college president
claimed that the student newspaper "currently reflects a standard of
grammar, of spelling and of language expression unacceptable in any publication,
certainly unacceptable and deplorable in a publication of an upper level
graduate university." 519 F.2d
257. The Fifth Circuit held in Schiff that "any regulation or action
infringing on free speech, when not shown to be necessarily related to the
maintenance of order and discipline within the educational process, must
fail." 519 F.2d 257.
Schiff added, “In the case at bar, the ‘special
circumstances’ relied on by the university -- poor grammar, spelling and
language expression -- could embarrass and perhaps bring some element of
disrepute to the school; but assuming the president's assessment was correct,
these faults are clearly not the sort which would lead to significant disruption
of the university campus or within its educational process.” Id. at
261. Prior review and prior restraint for alleged grammatical errors is
prohibited precisely because a state official or university administrator could
use copyediting as cover for viewpoint discrimination.
Defendant
Carter’s instructions to Richards that she be called after
the newspaper’s copy had been delivered to him is problematic and troubling,
as it represents a serious departure of conduct permissible even in instances
wherein prior review is not
specifically prohibited. Her instructions are problematic also
because Defendant Carter did not specify anyone other than herself as to whom
she would entitle to have access to the paper in order to determine its
acceptability for publication, or what qualifications she or they might possess
to ably do so: Defendant Carter admitted to having no journalism experience
herself, and did not specify a time-frame for when the prior review and approval
might be carried out per her orders: Indefinite delay in publication could
seriously and adversely affect the contents and integrity of the paper.
Moreover,
Plaintiffs could have no guarantee that even future submissions of the modified
issue would not be subjected to the same kind of censorship, and Plaintiffs,
therefore, could be required to work on an issue ad
infinitum without ever making it to publication, as the university
administration could hold off publication of an intended issue repeatedly and
indefinitely, all in the name of alleged copy editing concerns.
Prior
restraint is not a narrowly crafted regulation designed to preserve a compelling
state interest. (See, e.g., Perry
Education Assoc. v. Perry Local Educators’ Assoc.,
460 U.S. 37,46 (1983) at 46.) The
desire to stop alleged grammatical errors is not compelling because Defendants
did not cite any mistakes in the INNOVATOR, and all newspapers
make mistakes. Prior restraint is not narrowly crafted because the Defendants
never sought less extreme measures to improve the paper.
As
Defendants have demanded the right to stop publication until they have examined
the INNOVATOR and made changes to their
satisfaction (and not the Plaintiff editors’), prior review amounts to a form
of prior restraint. This unrestricted prior review is especially dangerous
because it enables the administration to indefinitely delay publication of
potentially important articles, in order to reduce their impact, including, it
should be noted, articles about the administration and the other Defendants.
The
SCMB bylaws demonstrate that its body is intentionally comprised of students,
civil servant staff, and faculty, and administrators of even the lowest level of
university employment are and have been prohibited from serving on that body;
the clear intention of precluding administrative involvement in the decisions of
the campus media are not by accident but by design, and therefore Carter’s
claims to having discretionary powers over the student press, whether in
appointing an advisor or demanding prior review, are in flagrant opposition to
even university-published policies, and
are, therefore to be called into question and decided by a jury.
Moreover, of all the student clubs and organizations at GSU, the student
media is the only extra-curricular body of which the administration has
taken upon itself to designate an advisor; this undoubtedly bespeaks of the
administration’s attempt to exercise influence or control over the paper’s
contents, clearly in violation of viewpoint discrimination prohibitions:
Defendants offer no explanation as to why they have singled out the student
media for administrative interference.
In
Tinker, the Supreme Court held:
“Certainly
where there is no finding and no showing that engaging in the forbidden conduct
would ‘materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,’ the prohibition cannot
be sustained…In our system, state-operated schools may not be enclaves of
totalitarianism. School officials
do not possess absolute authority over their students.
Students in school as well as out of school are ‘persons’ under our
Constitution. They are possessed of
fundamental rights which the State must respect, just as they themselves must
respect their obligations to the State.” 393 U.S. 503.
The
Supreme Court and lower courts have especially prohibited the state action of
prior review and restraint in the context of a university where the
free exchange of ideas is essential, universally
wherein the schools fail to meet the “heavy burden” of proving that imminent
“material and substantial” disruption would result from student
comportment or speech.
D. Non-Recognition
and Abrogation of Editorial Discretion on the Part of Defendants is a
Violation of the First Amendment Guarantees of Freedom of
Association and the Press.
In
Healy, the Supreme Court held that an unsubstantiated fear or
apprehension that a group would produce an undesirable or illegal result is not
enough for a university to deny them recognition; that university’s refusal to
recognize a group as an active, campus organization denied the plaintiffs their
First Amendment rights. 408 U.S. 169. As
such, Defendants’ alleged apprehension that Plaintiffs might
fail to meet “university standards” (whether real, or as is the case here,
imagined) is insufficiently justifiable to deny Plaintiffs official recognition
and hence, their First Amendment rights; Plaintiffs’ departure from
administratively-prescribed language cannot reasonably be argued as being likely
to incite imminent lawless action, and therefore Defendants argument is
considerably weaker even than the school’s having been involved in the Healy
decision.
The
Court of Appeals of New York ruled that administrative power to exclude is not
absolute, and may not be used to
exclude or restrict persons from
exercising their First Amendment rights. People
v. Leonard, 447 N.Y.S. 2d 111 (N.Y. 1984):
Defendants have failed to produce legitimate evidence or valid reasons which
entitle them to restrict Plaintiffs’ use of language to the standards which
Defendants allege exist at their university.
In
Gay Student Services v. Texas A. & M. University., 737 F2d 1317 (5th
Cir. 1984), failing to show written documents or evidence that students’
activities were illegal, the state could not rely on the mere suspicion that
some members would violate state regulations ( i.e. “university standards,”
which, it must be remembered herein, simply do not exist as specific or
published policy). That court, citing Healy, have ruled that without
significant substantive, evidentiary, and supported reasons for denial of
recognition, non-recognition results in an infringement of First Amendment
rights.
In Kania, the court ruled it could not force newspaper
editors to publish in opposition to their editorial powers, as compelled
adherence violates freedom of the
press guarantees. 702 F. 2d 475. Plaintiffs’
being permitted to render decisions which pertained solely to content and format
(a limitation which Defense infers in its’ brief) would, logically, be
restrictive: Defendants, in denying Plaintiffs the right to have selected their
own advisor or language preferences for publication for a “totally student
run” newspaper, violate
university-published policy and present false limitation of Plaintiffs’
editorial discretion t this Court; “totally” does not mean “partially.”
Defendants
denied Plaintiffs an officially-recognized advisor for in excess of two months,
which effectively established prior restraint, as university policy mandates an
officially-recognized advisor be in place for all student clubs and
organizations affiliated with Student Life, as was the student newspaper. Dr. de
Laforcade was fired by Defendants in the first week of December 2000, and
Defendants failed to appoint an officially-recognized advisor to Plaintiffs’
publication until mid-February 2001; denial of recognition to Plaintiffs’
advisor of choice, in addition to being an abrogation of Plaintiffs’
constitutionally-protected editorial discretion, effectively prevented
Plaintiffs from going to press because no payment could or would be remitted to
the printing agency without an administratively-approved advisor’s signature.
The Supreme Court , in Healy, ruled :
“Among
the rights protected by the First Amendment is the right of individuals to
associate their personal beliefs. While
freedom of association is not explicitly set out in the Amendment, it has long
been held to be implicit in the freedoms of speech, assembly, and petition . . .
There can be no doubt that denial of official recognition, without
justification, to college organizations burdens or abridges that associational
right. The primary impediment to
free association flowing from nonrecognition is the denial of use of campus
facilities for meetings and other appropriate purposes…Petitioners’
associational interests also were circumscribed by the denial of the use of
campus bulletin boards and the school newspaper.
If an organization is to remain a viable entity in a campus community in
which new students enter on a regular basis, it must possess the means of
communicating with these students. Moreover,
the organization’s ability to participate in the intellectual give and take of
campus debate, and to pursue its stated purposes, is limited by the denial of
access to the customary media for communicating with the administration, [408
U.S. 169, 182] faculty members, and other students. Such impediments cannot be
viewed as insubstantial… We may concede, as did Mr. Justice Harlan in his
opinion for a unanimous Court in NAACP v. Alabama ex rel. Patterson, 357
U.S., at 461, that the administration ‘has taken no direct action…to
restrict the rights of [petitioners] to associate freely’… But the Constitution’s protection is not limited to direct
interference with fundamental rights. The
requirement in Patterson that the NAACP…was found to be an impermissible,
though indirect, infringement of the member’s associational rights.
Likewise, the group’s possible ability to exist outside the campus
community does not ameliorate significantly the disabilities imposed by the
[administrator’s] action. We are not free to disregard the practical
realities…Freedoms such as these are protected not only against heavy-handed
frontal attack, but also from being stifled by more subtle government
interference.’” (citations omitted). 408 U.S. 169.
E. No Public Forum Analysis is Required for the Collegiate
Press.
Defendants
argue that the INNOVATOR is a non-public forum. Although they fail to show
justification for prior restraint even of a non-public forum, the courts have, without exception, ruled that no censorship of a college newspaper
can be justified on public forum grounds.
The
public forum analysis does not apply to college newspapers: This Court itself
has established the public forum question is irrelevant at
public colleges. Linnemeir v. Purdue, 260 F.3d 757, 760 (7th
Cir. 2001): Just as a play cannot be stopped in a college theater, regardless of
its forum status, so too is any demand for prior review and approval of a
student newspaper’s content prohibited.
The
Court of Appeals for the Fifth Circuit found that any student-edited university
publication is an "open forum" and
such publications could only be restricted when they "would or could
lead to any significant disruption." Bazaar v. Fortune, 476 F.2d
570, 575-6 (5th Cir. 1973).
According
to the Defendants, the Kincaid court declined to state whether it would
apply the same analytical framework in the context of the student press.
Defendants refer to a footnote in Kincaid: “Our decision to apply the
forum doctrine to the student yearbook at issue in this case has no bearing on
the question of whether and the extent to which a public university may alter
the content of a student newspaper.” 191 F.3d 719 at 348 n.6.
The
court in Kincaid (which dealt exclusively with a yearbook) clearly
intended this footnote to mean a newspaper is a public forum, and no forum
analysis is needed for a college newspaper case because all
of the precedents show that censorship of a college newspaper is not allowed
under any kind of forum; a yearbook, which does not resemble a newspaper,
therefore required a public forum analysis. Yet the court in Kincaid held
that even the constraints on a limited public forum could not
apply even to a yearbook. 236 F.3d 342.
Alternately,
even if the public forum issue were relevant to a college newspaper, GSU created
a limited public forum by ceding editorial control to the student editors. GSU
gave up any right or responsibility to control its content by declaring the
INNOVATOR “totally student-run.” Doc. 44 at Hosty
dep. at 151. A college newspaper is a limited public forum where anyone
is invited to submit letters and articles for publication; Plaintiffs declared
their editorial decision to be a limited public forum at the onset of their
tenures in their premiere publication, and all subsequent issues contained
invitations to the public to respond and contribute to The INNOVATOR. Doc. 44 at
Fagan dep. ex. at 3.
The
Supreme Court noted in Widmar that the campus of a public
university, at least for its students, may be reckoned a public forum. 454 U.S.
263.
In
Bazaar, college administrators argued that the magazine was a
nonpublic forum because it was published with the advice of the English
Department and received student funds. 476 F.2d 570. The Fifth Circuit rejected
this argument: "The college classroom with its surrounding environs is
peculiarly the 'marketplace of ideas' and we break no new constitutional ground
in reaffirming this Nation's dedication to safeguarding academic freedom." Id.
at 580 (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
The court in Bazaar ruled that publications could be censored only when
the publication "would or could lead to any significant disruption on the
University campus.” Id. at
575-76. Defendants make no such allegation about The INNOVATOR, and have failed
to meet the “heavy burden” which would entitle them to prior restraint as
established by the Near v. Minnesota court’s parameters.283 U.S. 697.
As
student newspapers at public colleges are protected from state censorship or
prior restraint, no forum analysis is necessary to conclude that Defendants’
actions were unconstitutional. Even if analysis were required, a student
newspaper is necessarily a limited public forum protected from prior review and
restraint.
F.
College Students’ First Amendment Rights Are Not
And Have Never Been Limited By Hazelwood v. Kuhlmeier.
Defendants
claim that Hazelwood entitles
state officials at public college to control any student newspaper. This claim
has been repeatedly rejected, and no court whatsoever has ever recognized
that state officials or university administrators have this power over adult
college students unless substantial and material disruption is proven to
reasonably occur as a result of student speech or comportment .
The
only two federal appellate courts to directly address the question have rejected
the application of Hazelwood to college newspapers. As the First Circuit
noted, the public forum
issue of a student newspaper “is
not applicable to college newspapers.” Student Government Association v.
University of Massachusetts, 868 F.2d 473, 480, fn. 6 (1st Cir.
1989), citation omitted.) Citing that case, in Kincaid, ,
the 6th Circuit noted that “Hazelwood
has little application to this case,” as it dealt with a yearbook, and not a
student newspaper. 236 F.3d 342.
As
the Supreme Court has never addressed the application of Hazelwood to
college students, all of the college press precedents readily dismissed by Defendants
are still valid law, and all of the
high school press precedents cited by Defendant are inapplicable to the unique
status awarded by the courts to the college press and students.
The
Supreme Court has had numerous opportunities to apply Hazelwood
restrictions to college students, and it refused in the Rosenberger and Southworth
cases to even mention Hazelwood. To the contrary, Rosenberger and Southworth
reinforce the Supreme Court’s doctrine that colleges are constitutionally
different from high schools because of the nature of the institutions and the
maturity of the students.
The
Supreme Court has noted the unique legal importance and status of colleges and
universities. The Court wrote in Keyishian, “The Nation's future
depends upon leaders trained through wide exposure to that robust exchange of
ideas which discovers truth ‘out of a multitude of tongues, [rather] than
through any kind of authoritative selection.’ United States v. Associated
Press, 52 F.Supp. 362, 372,(SDNY 1943), aff’d. 326 U.S. 1, 65 U.S. 1416
(1945). By attempting to make an authoritative selection of language or
journalistic practices and content,
Defendants threaten the robust exchange of ideas. In Healy the
Court noted: “The college classroom with
its surrounding environs is peculiarly the ‘marketplace of ideas,' and we
break no new constitutional ground in reaffirming this Nation's dedication to
safeguarding academic freedom.”(citations omitted). 408 U.S. 169 at 180-181.
The student newspaper is an essential part of the university’s “surrounding
environs,” and critical in promoting the exchange of ideas.
In
Widmar, the Supreme Court ruled: "University students are, of
course, young adults. They are less impressionable than younger students."
454 U.S. at 274 n. 14.
The
Supreme Court in Rosenberger specified colleges as uniquely free, noting
that the danger “from the chilling of individual thought and expression….is
especially real in the University setting, where the State acts against a
background and tradition of thought and experiment that is at the center of our
intellectual and philosophic tradition.” 515 U.S. 819 at 835.
In
Southworth, the Supreme Court wrote : “[C]ases dealing with the right
of teaching institutions to limit expressive freedom of students have been
confined to high schools… whose students and their schools' relation to them
are different and at least arguably distinguishable from their counterparts in
college education.” (Souter, J., concurring)
529 U.S. 217.
Lower
courts have unanimously recognized the difference between colleges and high
schools. As the Fifth Circuit concluded, in Lansdale v. Tyler Junior College,
318 F. Supp. 529 (1970), affd., 470 F.2nd 659 (5th Cir. 1972), “[A]s a matter
of law the college campus marks the appropriate boundary where the public
institution can no longer assert that the regulation of this liberty is
reasonably related to the fostering or encouragement of education.”
The
court in Mazart noted, “It is clear from a reading of the published
cases dealing with the rights of college students that the courts uniformly
regard them as young adults and not children.”
441 N.Y.S. 2d 600 at 606-7.
The
court in Antonelli noted, "The university setting of college-aged
students being exposed to a wide range of intellectual experience creates a
relatively mature marketplace for the interchange of ideas, so the underlying
assumption that there is positive social value in an open forum seems
particularly appropriate." 308
F. Supp. 1329.
The
Sixth Circuit called Hazelwood “a case that deals exclusively with the First Amendment rights of students in a high
school setting” at 346. It also noted: “The university is a special place
for purposes of First Amendment jurisprudence….In addition to the nature of
the university setting, we find it relevant that the editors of The
Thorobred and its readers are likely to be young
adults….” Id. at 352
The
application of Hazelwood to higher education would threaten the freedom
of the college press, and overturn hundreds of rulings which established the
liberty of college newspapers and the unique status of higher education.
Defendants’ argument that this Court should create a new power for the
government to infringe upon the constitutional rights of adult college students
is both unpersuasive and unconscionable, and is in diametric opposition to the
freedoms precisely established by the First Amendment.
G.
Defendants’ Actions Were: in Violation of the Fourteenth Amendment’s
Protections Against Arbitrary Deprivations of Liberty; in Denial of Procedural
Due Process; and a Deprivation of Education as a Property Interest.
The
Court in Rosenberger upheld that “[S]tudent expression is an integral
part of the University's educational mission.” 515 U.S. 819.
In Kania, the Fourth Circuit ruled that the newspaper served
valuable functions, both in pursuit of communication within the university and
the open exchange of ideas. 702 F. 2d 475. The Supreme Court, in Goss v. Lopez, 419 U.S. 565
(1975) wrote: “It requires no
argument to demonstrate that education is vital and, indeed, basic to civilized
society.”
In
Goss, the Supreme Court has ruled that students at a public school have
property and liberty interests which qualify for protection under the Due
Process Clause of the Fourteenth Amendment.
419 U.S. 565. Moreover, Goss also declared:
“Neither
the property interest in educational benefits temporarily denied nor the liberty
interest in reputation is so insubstantial that suspensions may constitutionally
be imposed by any procedure the school chooses, no matter how arbitrary...The
authority possessed by the State to prescribe and enforce standards of conduct
in its schools, although concededly very broad, must be exercised consistently
with constitutional safeguards. Among
other things, the State is constrained to recognize a student’s legitimate
entitlement to a public education as a property interest.” 419 U.S. 565 at
575-576.
In
Meyer v. Nebraska, 262 U.S. 340 (1923), the Supreme Court ruled :
“No
state shall…deprive any person of life, liberty, or property without due
process of law. While this Court has not attempted to define with exactness
the liberty thus guaranteed…Without doubt, it denotes … the right of the
individual to…engage in any of the common occupations of life, to acquire
useful knowledge… and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men…The
established doctrine that this liberty may not be interfered with, under
the guise of protecting the public interest, by legislative action which is
arbitrary or without some reasonable purpose within the competency of the State
to effect.”
Defendants’
guise of protecting the university’s reputation is, therefore, inadmissible
before this Court.
The
Court also declared in Goss that “[T]he State’s claimed right to
determine unilaterally and without process whether that misconduct has occurred
immediately collides with the Due Process Clause’s prohibition against
arbitrary deprivations of liberty.” 419 U.S. 565
The
Court in Goss also ruled that arbitrary deprivations of liberty are
violative of the due process , as it upheld: “ ‘Where a person’s good
name, reputation, honor, or integrity is at stake because of what the government
is doing to him,’ the minimal requirements of the Clause must be
satisfied.”(citations omitted) 419 U.S. 565. Fagan
‘s university-wide, defamatory
November 3, 2000 memo was distributed without any notice, inquiry, or hearing
having been afforded to Plaintiffs; it significantly
damaged Plaintiffs’ reputation, especially problematic because Fagan could not
cite any specific errors in the
condemned issue, and university-published policy mandates all media concerns be
addressed to the SCMB.
Goss,
upholding the sentiments espoused by the Court in Brown v. Board of Education,
347 U.S. 483 (1954), ruled: “[E]ducation is perhaps the most important
function of state and local governments…and the total exclusion from the
educational process for more than a trivial period, and certainly if the
suspension is for 10 days, is a serious event.” 419 U.S. 565. The Court
in Goss also upheld that, in determining whether due process requirements
apply in the first place, severity of deprivation was not to be decisive of a
basic right. 419 U.S. 565.
Goss
also established that “The Court’s view has been that as long as a property
deprivation is not de minimus, its
gravity is irrelevant to the question whether account must be taken of the Due
Process Clause…A ten-day suspension from school is not de minimus in our view and may not be imposed in complete disregard
of the Due Process Clause.” (citations omitted), and that even temporary
suspensions require due process. 419 U.S. 565. Plaintiffs have been deprived by
Defendants of liberty and property interests for in excess of 21 months, and
counting; there has been no publication of the INNOVATOR since the prior
restraint went into effect.
The Supreme Court, in Meyer, ruled that in order to satisfy the
constitutional requirements of substantive due process, if a state is going to
deprive a person of his life, liberty, or property, the state must have a valid
objective and the means used must be reasonably calculated to achieve the
objective, and that the substantive due process requirements applied to
education as a property interest under the Fourteenth Amendment.
262 U.S. 340.
The
Antonelli court upheld " Having fostered a campus newspaper, the
state may not impose arbitrary restrictions on the matter to be communicated.”
308 F.Supp. 1329. In Leonard,
a university restriction was deemed violative because the school could not
support the ban with valid reasons. 447 N.Y.S. 2d 111.
In Iota Xi,
it was held that a university should accomplish its educational goals in some
fashion other than silencing speech on the basis of its viewpoint or content.
993 F. 2d 386.
As
in the case with Gay Student Services , failure on the part of Defendants
to show written documents or evidence that Plaintiffs might
violate “university standards,” (or even that such standards exist)
is an arbitrary deprivation of liberty based on mere suspicion of
non-compliance. 737 F2d. 1317. Gay Student Services, citing Healy,
ruled that restricting student speech or activity without significant
substantive, evidentiary, and supported reasons results in constitutional
violation. 737 F2d 1317.
“Parties
whose rights are to be affected are entitled to be heard; and in order that they
may enjoy that right, they must first
be notified.” Baldwin v. Hale, 1 Wall. 223, 233 (1864) At the very
minimum, therefore, students facing suspension and the consequent interference
with a protected property interest must be given some kind of notice and
afforded some kind of hearing. Mullane v. Central Hanover Trust Co., 339
U.S. 306 (1950). The courts have declared that due process must be afforded to
individuals by administrative and government officials equally when the loss of
a fundamental right is at stake. See., e.g., Hobson v. Bailey, 309 F.
Supp. 1393, D.C. Tenn. (1970) ; Zanders v. Louisiana State Board of Educ.,
281 F. Supp. 747, D.C. La (1968).
Defendants' suppression of Plaintiffs' freedom of expression,
association, and the press by means of prescribing and mandating adherence to non-existent
language constraints cannot reasonably be considered a valid objective; covertly
halting publication by threat of non-payment to the printer and covertly firing
Plaintiffs' advisor cannot be considered reasonable means to achieve Defendants'
alleged objective of guarding against errors in copy.
Also,
in Dixon v. Alabama State Board of Educ., 294 F. 2d 150 (5th
Cir. 1961), cert. denied 368 U.S. 930 (1961), the court ruled:
“Whenever a governmental body acts so as to injure an
individual, the Constitution requires that the act be consonant with due process
of law. In the disciplining of
college students, there are no considerations of immediate danger to the public,
or of peril to the national security, which should prevent the Board from
exercising at least the fundamental principles of fairness…Indeed, the example
set by the Board in failing to do so, if not corrected by the courts, can… do
inestimable harm to their education.”
In
Leonard, an appellate court upheld that administrative powers are not
absolute, and may not be used to
exclude or restrict the exercise of First Amendment rights; a university
restriction was deemed illegitimate since there were no valid reasons to support
the imposition. 447 N.Y.S. 2d 111.
In
McMechan, an appellate court determined that an
institution has an obligation to clarify those standards which it considers
essential to its educational mission and its community life, and that
disciplinary action should be instituted only for violations of standards of
conduct published in advance. 594 N.E. 2d 211. Defendants have not and cannot
point to any such published and decidedly vague "university standards"
to which Defendants allege exist and are intended to be regulatory, which is
violative of substantive due process. Defendants’ “disciplining” of the
student press, in initiating prior restraint, an action taken against Plaintiffs
without notice or opportunity afforded to Plaintiffs to defend their editorial
discretion, is a violation of procedural due process guarantees.
The
Fifth Circuit upheld that a school board’s action was constitutionally
deficient in terms of due process where the board simply confirmed the school
principal’s judgment in a dismissal proceeding without independently
evaluating and weighing evidence on its own
Lee v. Macon County Board of Educ., 490 F. 2d 458, (5h
Cir. 1974). Defendants exercised no
care in preservation of Plaintiffs’ rights in failing to contact Plaintiffs or
Richards, and in relying exclusively
on Carter’s claims of innocence, denied Plaintiffs’ procedural due process
guarantees.
II.
Defendant Carter is Not Entitled to Qualified Immunity.
In
order to qualify for protection under the doctrine of qualified immunity,
Defendants must show that there was no clearly established law prohibiting their
conduct at the time it occurred. Since the prior restraint continued throughout
the editorial term of the Plaintiffs, the question is whether First Amendment
jurisprudence through April 30,2001
demonstrated that college newspapers and students cannot be subjected to prior
review, viewpoint discrimination, abrogation of editorial powers,
non-recognition resulting in freedom of association, arbitrary deprivations of
liberty, procedural due process, prior restraint, or denial of education
benefits as a property interest. As qualified immunity in a summary judgment
requires viewing the disputed facts in the manner most favorable to Plaintiffs,
the Defendants must show that the law entitled them to commit the
above-mentioned offenses against college students and media; it emphatically
does not. The courts have consistently and clearly established that the U.S.
Constitution prohibited Dean Carter from demanding review and approval of the
newspaper prior to printing for any reason,
and on this point alone, therefore, Carter
must be denied summary judgment.
In
West Virginia Board of Education. v. Barnette., 319 U.S. 624 (1943) , the
Supreme Court ruled:
“ But small and local authority may feel less sense of
responsibility to the Constitution… but none who acts under color of law is
beyond the reach of the Constitution…Freedoms of speech and of the press…may
not be infringed upon such slender grounds.
They are susceptible of restriction only to prevent grave and immediate
danger to interests which the law may legally protect… Compulsory unification
of opinion achieves
only the
unanimity of the graveyard… We set up government by consent of the governed,
and the Bill of Rights denies those in power any legal opportunity to coerce
that consent. Authority here is to
be controlled by public opinion, not public opinion by authority.”
The Supreme Court, in Tinker, citing Board of Ed v. Barnette,
upheld that “The Fourteenth Amendment, as now applied to the States, protects
the citizen against the State itself and all of its creatures, Boards of
Education not excepted. These have,
of course, important, delicate, and highly discretionary functions, but none
that they may not perform within the limits of the Bill of Rights.” 393 U.S.
503 In Widmar, the Supreme Court ruled that there can be "no
doubt that the First Amendment
rights of speech and association extend to the campuses of state
universities." 454 U.S. 263.
The
Supreme Court has ruled that “the Fourteenth Amendment guarantee of
‘liberty’ for all citizens protected freedom of speech and press ‘from
impairment by the state’.” Gitlow v. New York, 268 U.S.
652
(1925).
Also, in Wood v. Strickland, 420 U.S. 308 (1975), the Court
determined that it need only be established that the defendants did not, “in
light of all the circumstances, act in good faith.
The test is an objective rather than a subjective one.”
Defendants
were obligated to afford Plaintiffs the civil rights guaranteed to them as
outlined in Defendants’ own, university-published materials; a jury could
easily ascertain that Defendants should have reasonably known, at
the very least, their own published policies which guarantee preservation of
constitutional liberties. Also,
Defendants also sought immunity from liability by petitioning as agents and
officials of the government, which the lower court has recognized them as being
in having granted them Eleventh Amendment immunity. Defense now argues that
Defendant Carter should not be held culpable before the law because she would
have had no way of knowing for certain that the law had clearly established the
parameters of administrative interference regarding the press, and cites the
argument that even the courts have been divided in their stances of such
matters.
This
argument is summarily incredible, and even
works against Defense’s pleadings; the lower courts were divided on the Kincaid
case on which Defense itself attempts to base part of its argument, and if
unanimity were achievable for every matter before a court, our judicial system
would not exist as it does. Defense’s argument requests that Defendants not be
culpable before the law because the judicial system does not operate in absolute
consonance; were absolute consonance even possible, there would be no need,
then, for either appellate courts or the Supreme Court.
In addition to the implausibility of Defendants not being aware of policies they themselves published, Defendants were aware at all times that they were agents and officials of the state, and bound to uphold the Illinois Constit