Courts started applying Hazelwood at the college level almost immediately. Within a year of the Supreme Court's decision, the Eleventh Circuit used Hazelwood to dismiss a First Amendment claim against the University of Alabama by student government candidates who thought the university was excessively regulating campaign speech.
The legal community didn't really sit up and take notice until 2005, when the Seventh Circuit in Chicago decided the Hosty v. Carter case, a case involving censorship of a college newspaper in Illinois. That case was really a wake-up call for the First Amendment community, because you had an especially influential court of appeals say that, depending on how a college newspaper is structured, its journalists might have no greater rights than 15-year-olds, even though essentially all of the speakers and all of the readers are adults.
If you read Hazelwood carefully, it's a very limited case. It's a case about the use of a vehicle for communication that the government pays for and supervises, like a newspaper or a yearbook. But the lower courts have exploded the Hazelwood doctrine from a doctrine about control over the use of government property into a doctrine about control over students as people.
As a result, you have decisions like the ruling last year from the Sixth Circuit in Ward v. Polite that the Hazelwood level of protection applies even where the speech is a private one-on-one conversation between a 31-year-old graduate student objecting to her college's curriculum and her faculty adviser.
A number of courts are now saying that Hazelwood applies to the educational "context" or the educational "setting" and not to the use of educational property, and those are very different things. If I go home on Saturday and write a blog about my experiences at college, I'm very clearly not using the college's property and Hazelwood should never enter the discussion—but you might see colleges argue (and in fact we saw the University of Minnesota try this very argument, unsuccessfully, in a case last year) that speech about the college is part of the educational "setting" or educational "context."
If that becomes accepted doctrine, then you can kiss the First Amendment goodbye at colleges, and you can kiss journalism goodbye along with it.
It's ironic and disturbing that we're seeing this drift toward less freedom of expression and more government regulatory authority at colleges at exactly the time that college and even high school journalists are being asked to step up and assume the front-line news-gathering responsibilities that salaried professionals used to fulfill.
You've got more and more ventures going on in places like Macon, Georgia, where the college journalism program is now providing the backbone of the staff for what was once a large metropolitan daily newspaper. Those students are being asked to produce professional-caliber journalism on which the entire community can depend to stay informed, but to do it without any assurance that they are safe from retaliation if someone in their institution dislikes what they wrote.
We should be moving urgently toward greater and greater protection for college journalists, and instead we are eroding their rights, to the detriment of everyone in the audience who relies on them for news.
More broadly, do you see the Supreme Court limiting Hazelwood or even reversing it, given that students are exposed to a vast range of expression nowadays that make the articles in Hazelwood seem tame?
Subscribe to The National Law Journal
