Saturday, July 14, 2007

College student editors survive summary judgment in First Amendment case

When the activist student newspaper at the College of Staten Island devoted an issue to its favored student council candidates, the College administration nullified the election when each of these candidates won the election. The student editors sued the College administration under the First Amendment. Ruling in favor of the editors, the Court of Appeals used this case as a vehicle to clarify the First Amendment rights of college students, prompting a most unusual dissent from a Circuit judge who admittedly refused to read the 44-page majority opinion, issued on July 13, 2007.

Citing cases from around the Circuits, the majority (Calabresi and Walker) noted that college newspapers edited by students are limited public forums, which means the college cannot control content on the basis of viewpoint. "We agree that, at a minimum, when a public university establishes a student media outlet and requires no initial restrictions on content, it may not censor, retaliate, or otherwise chill that outlet's speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet."

The problem was that the College President, Springer, testified that the newspaper had to cover the election equally, providing a platform for both sides. "President Springer's nullification of the election due to the May 1997 issue of the College Voice was premised on two types of viewpoint discrimination relating to the subject of student elections. First, Springer's action was driven by her belief that only one perspective was acceptable for speech on student elections in a student newspaper -- a viewpoint that reflected a balanced view of the candidates -- and that contrary views -- including that certain candidates should be elected -- was inappropriate. Second, Springer's testimony reveals that her nullification of the initial election was premised on her belief that the College Voice's view as to the importance of electing the Student Union slate, as reflected in the presentation of the content promoting those candidates, was improper and should be excluded from the limited public forum of the student newspaper."

In cancelling the student elections on the basis of the newspaper's "unfair" pre-election coverage, the College violated the editor's First Amendment rights because cancellation chilled the newspaper's speech. The editors testified that they had to watch what they published in the future to avoid risking the College administration's wrath. Although no case with these precise facts had ever come before the Second Circuit, the unlawfulness of Springer's actions was apparent at the time, killing her qualified immunity defense.

The case is remarkable on its own, since it's the rare College administration that cancels a student election because of an outspoken student newspaper. For constitutional law practicioners, this case offers an expansive view of what constitues a chilling effect in order to claim injury under the First Amendment. It also offers a generous view on qualified immunity.

But what makes this case even more noteworthy is Chief Judge Jacob's dissent, in which he acknowledges declining to read the majority opinion (even though it clarifies the rules governing college student speech) as "this is not a case that should occupy the mind of a person who has anything consequential to do." He adds, "this is a case about nothing" and chides the students for their radical political views. "With due respect to my colleagues in the majority, and to whatever compulsion they feel to expend substantial energies on this case, I fear that the majority opinion (44 pages of typescript) will only feed the plaintiffs' fantasy of oppression: that plutocrats are trying to stifle an upsurge of Pol-Potism on Staten Island. Contrary to the impression created by the majority's lengthy formal opinion, this case is not a cause celebre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit." The footnote then re-publishes some of the more provocative and, in Chief Judge Jacobs' view, pathetic student writing in the newspaper.

No comments: