Academic journal article Texas Law Review

Rights and Regulations: Academic Freedom and a University's Right to Regulate the Student Press*

Academic journal article Texas Law Review

Rights and Regulations: Academic Freedom and a University's Right to Regulate the Student Press*

Article excerpt

Among the multitude of roles the First Amendment serves, the creation of a marketplace of ideas is arguably its most basic and vital function. By protecting freedom of speech, press, assembly, and expression, the First Amendment acts as a true guardian of democracy, facilitating the thought, discourse, and debate necessary to reinvigorate and energize a democratic society.

Colleges and universities play a similarly crucial role in American society. They exist as the archetypal marketplace of ideas that the First Amendment aims to create. Yet, the university marketplace is different than the marketplace existing in society at large. It serves a broader purpose-to educate both present and future generations-and unlike the state, its educational mission is in line with First Amendment goals. While the state may attempt to restrict expression, a university has every incentive to encourage and facilitate expression in the search for truth and enlightenment.

Student publications are an integral part of the university's educational marketplace, facilitating communication and fostering values required in an educational setting. These publications act as the university marketplace in print and aid me university in fulfilling its educational mission. In order for student publications to continue to serve this essential function in the academic community, it is imperative that they be protected and preserved. The First Amendment provides the necessary protection-safeguarding basic freedoms of expression and, in the university context, incorporating the additional liberty of academic freedom, a freedom supplied to students, faculty, and even the university itself.

Yet a recent decision by the Seventh Circuit has created criticism and concern that the freedoms of student publications are at greater risk than ever.1 In Hosty v. Carter,2 the court applied traditional forum analysis to determine whether a university could permissibly regulate a student newspaper.3 Forum analysis is a method courts use to determine the permissibility of state regulation of expressive activity on public property.4 This standard categorizes public property as one of three forums: public, limited public, or nonpublic forums.5 Each forum is accompanied by a specific standard of review; a form of strict scrutiny is applied to public and limited public forums, and a deferential standard similar to rational basis review is applied to nonpublic forums.6

While applying forum analysis in Hosty, the court strongly considered categorizing a student paper as a nonpublic forum and implementing a highly deferential standard of review, first formulated in the high-school context, to legitimate a university's prior restraint on a campus paper.7 Such consideration was significant because prior to Hosty, a university publication had never before been categorized as a nonpublic forum. While in the end the court did not actually implement deferential review, it reserved the right to do so in the future8 and sparked great fear that university administrators may have the power to regulate campus publications to a much higher degree than previously believed.9

Critics of the Hosty decision have attacked the Seventh Circuit for its suggestion that a college-student newspaper could constitute a nonpublic forum and thus be subject to deferential review;10 however, this criticism is misplaced. The Hosty decision should not have been criticized for its threat to categorize a university publication as a nonpublic forum and apply deferential review; it should have been criticized for its application of forum analysis altogether. Though forum analysis has been the traditional mode of analysis applied to student publications, its application is fundamentally inapposite to the university setting and detrimental to the university's educational function.

When reviewing university regulations of student publications, courts have traditionally applied forum analysis to protect student publications. …

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