University officials violated First Amendment by seizing yearbooks

From the Winter 2001 issue of The News Media & The Law, page 46.

What began as a dispute over the seizure of student yearbooks has emerged as a landmark case that affirmed the First Amendment rights of collegiate media.

Kentucky State University officials violated the First Amendment when they confiscated and halted the dissemination of the 1992-1994 yearbook, according to a Jan. 5 ruling by the U.S. Court of Appeals in Cincinnati (6th Cir.). The ruling also established that college and university student publications are not subject to the same stringent regulations imposed on high school media.

The appellate ruling is the latest action in a controversy that erupted in November 1994, after KSU Vice President for Student Affairs Betty Gibson objected to numerous features of the yearbook, The Thorobred, including the purple cover, its theme of “Destinations Unknown” and its focus on current events rather than campus events. Dissatisfied with its content and quality, Gibson and other university officials locked all the copies in a storage room on campus.

A year after the incident, two former Kentucky State students, Charles Kincaid and Capri Coffer, former editor of The Thorobred, filed a civil rights claim in federal district court against Gibson, university President Mary Smith and other school officials. The plaintiffs claimed their First Amendment rights were violated when the administration withheld the yearbooks. Both parties sought summary judgment.

The case required the court to first determine whether The Thorobred constituted a nonpublic forum, a limited public forum or a traditional public forum, in order to determine what level of content control would be allowed. The court also had to consider whether the censorship guidelines for high school publications, as determined in the 1988 U.S. Supreme Court ruling in Hazelwood Sch. Dist. v. Kuhlmeier, were applicable to the college media. In Hazelwood, the high court held that high school publications are nonpublic forums, which school officials can freely regulate.

In November 1997, a federal district court relied on the Hazelwood standard to determine that The Thorobred was a nonpublic forum and thus subject to restriction. Further, the district court stated that Kincaid and Coffer had no viable First Amendment claim to the yearbook. Kentucky State officials acted within their authority, the lower court ruled, when they withheld the yearbooks. On appeal, a three-judge panel for the Sixth Circuit affirmed, but in November 1999, the full court decided to rehear the panel’s decision.

To determine what type of forum the school created by funding the yearbook, the Sixth Circuit examined the university’s intended use of the yearbook, and evaluated the school’s written policy, actual practice and the context within which the case arose. The student handbook clearly stated that the student editor possessed editorial control over The Thorobred, with the administration prohibited from altering the content. The court also referred to testimony that school administrators practiced a hands-off policy toward The Thorobred, all of which led the court to conclude that the university intended the yearbook to be a limited public forum.

The court noted that as a limited forum, the yearbook was subject only to reasonable time, place and manner regulations, or content-based regulations that are narrowly tailored to serve a compelling governmental interest. Since the wholesale confiscation of the books could meet neither test, the court concluded that the prior restraint on distribution of the yearbooks violated the First Amendment.

The court also held that because the case arose in a public university setting, the confiscated yearbooks should have enjoyed greater First Amendment protection than a high school publication. Thus, the Sixth Circuit declined to apply the Hazelwood standard and departed from the district court’s analysis of the case.

“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. In either case, the government alters student expression by obliterating it,” Judge R. Guy Cole wrote for the majority.

In the dissenting opinion, Judge Alan Norris maintained the university did not create a limited public forum with The Thorobred and that the regulations were reasonable given the quality of the yearbook.

The ruling is a victory for members of the collegiate press. The Student Press Law Center, a non-profit organization that assists the student press and journalism educators, filed a friend-of-the-court brief in support of Kincaid and Coffer’s case in May 1998. The brief presented a strong case against the application of the Hazelwood ruling to collegiate media. Twenty-five other organizations, including every accredited college journalism program in the Sixth Circuit, also signed on to the brief.

Members of commercial media also saw the threat to press freedom. First Amendment advocacy groups focused their attention on the Kincaid case and filed an amicus brief in 1998. The Society of Professional Journalists, the Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, and the National Federation of Press Women urged the Court to overturn the district court’s ruling, noting that young journalists must have a full understanding of their First Amendment rights before they join the commercial media. The groups argued that the application of a high school standard to collegiate media “is antithetical to the robust discussion that is the essence of higher education.”

Since the Supreme Court applied the Hazelwood ruling only to high school media, its relevance to collegiate publications “was ultimately a question that would be asked sooner or later,” said Mark Goodman, executive director of the Student Press Law Center. “This case brought it to the forefront.”

Goodman said he believes the ruling will not only affect states in the Sixth Circuit’s jurisdiction of Kentucky, Michigan, Ohio and Tennessee, but also should have a nationwide impact.

According to defense attorney J. Guthrie True, the university board of regents in mid-January had not decided to appeal. –ML