Confiscation of Yearbooks at Public University Overturned
March 22, 2001
Public colleges and universities, beware!
Student yearbooks – even shoddy, school-financed ones – can be “limited
public forums” that are protected against unreasonable regulations or
actions of school officials.
A federal appeals court recently held that
officials at Kentucky State University violated the First Amendment rights of
a student and student editor by confiscating and hiding copies of a campus
yearbook. The officials objected to the publication’s content and quality
– its purple foil cover, its “destination unknown” theme, its lack of
captions under photos, and its use of photos of events unrelated to campus
life. The full appeals court reversed an earlier decision that upheld the
trial court’s dismissal of the students’ constitutional claims.
At issue was whether the decision to
confiscate and prevent distribution of the yearbook violated the free-speech
rights of a student and the student editor. The central issue was the
nature of the yearbook at issue. Was it intended to be merely a non-public
forum over which the university had substantial control of its content,
subject matter, and viewpoints? Or, was it meant to be a “limited” or
“designated” public forum in which the university had far less control
over the students’ expression?
A clear majority of judges (10 of 13) ruled
that the university’s policies and practices supported their conclusion that
the yearbook was intended to be a limited public forum. They relied on the
student handbook, which outlined the editorial structure of the yearbook
publications board. The fact that editorial control was placed in the hands of
student editors, subject only to limited oversight by a faculty advisor,
showed that the university intended that the yearbook be opened up for
expression of student viewpoints. Of importance, the advisor had limited
authority to make only such reasonable changes that deal with “the form or
the time and manner of expression rather than alteration of content.”
The university argued that it retained
significant control over the editorial process and that the lack of a
disclaimer on the yearbook was important. It pointed out that a disclaimer was
required on the student newspaper to distinguish student views from those of
the university. The appeals court rejected this point, concluding that the
lack of a disclaimer was not important.
Next, the majority focused on the evidence
showing that the university had a “hands off” policy over the yearbook’s
publication. The university “exercised minimal oversight” over the
yearbook thereby supporting the conclusion that it was intended to be an open
forum of student expression. Finally, the majority noted that the yearbook
“is a student publication that, by its very nature, exists for the purpose
of expressive activity.” The fact it was a university yearbook was all the
more important because of the value that free speech receives in academia. For
all these reasons, the yearbook was deemed to be an “open forum” for the
designated purpose of student expression subject to constitutional protection.
The majority also condemned the university’s
actions in confiscating the yearbooks as a “rash, arbitrary act, wholly out
of proportion to the situation it was allegedly intended to address.” It
also stated that the “suppression of the yearbook smacks of viewpoint
discrimination” because it censored the “editor’s choice of theme,
selection of particular pictures, and expressions of opinion.” In short, the
university was held liable – as a matter of law – by the court without the
need for a trial.
One dissenting judge was troubled that the
appeals court entered judgment against the university. He felt that, although
the yearbook was meant to be a limited public forum, the evidence of the
university’s motivation in confiscating the yearbooks was sufficiently in
dispute that a trial should be held.
Three dissenting judges felt it was reasonable
for the university to “ maintain its image to potential students, alumni,
and the general public.” Because the yearbook was of “undisputedly poor
quality” it was reasonable for the university to “cut its losses” by
taking steps to prevent distribution of a university-financed publication
“that might tarnish, rather than enhance, that image.”
Of interest, the majority held that the
university violated the constitutional rights of a student who did not work on
the yearbook staff. The university was liable to him because it denied “his
right to read The Thorobred [the yearbook] once the university has opened it
up as a forum for speech.”
The case might work its way to the United
States Supreme Court in light of its novelty and the lack of clear precedent
in the university context. The lesson to be learned is that courts may
conclude that student publications at universities and colleges are fora in
which First Amendment rights are entitled to significant protection.
Accordingly, university and college officials
should structure their publication policies carefully and, most importantly,
implement them in an even-handed and reasonable way. Even the dissenters felt
the situation could have been handled more effectively, which means that the
entire court of appeals was not happy with how the Thorobred (yes, it’s
spelled that way) was locked away.
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