A House Divided: How Judicial Inaction and a Circuit Split Forfeited the First Amendment Rights of Student Journalists at America's Universities

Authors

Richard Bradley Ng

Abstract

In Hazelwood School District v. Kuhlmeier, the Supreme Court examined whether a high school principal's review and censorship of a student newspaper offended the First Amendment. Although the Court held that high school administrators were accorded a high degree of deference in such circumstances, the Court expressly left the question open whether the analytical framework of Hazelwood was applicable to the university setting. Without clear guidance from the Supreme Court, the federal circuit courts have split on the issue.

Because of this circuit split, geography defines the extent of both a student journalist's First Amendment rights and the states' ability to regulate university-sponsored speech at public universities. Most importantly, the split has opened a qualified immunity loophole that can easily be exploited by university administrators who can claim, somewhat legitimately, that Hazelwood and the subsequent circuit split on the applicability of the Hazelwood standard to the college context has left the law unsettled. Hence, as shown in Hosty v. Carter, under Saucier v. Katz, any public university official who exercises a prior restraint on university-sponsored student publications will escape 42 U.S.C. § 1983 liability through qualified immunity because the law is not "clearly established." Ultimately, the Supreme Court's failure to address whether Hazelwood is applicable to public universities, and the resulting circuit split, has constructively forfeited university student journalists' remedies against First Amendment encroachments by university officials.

This note begins by exploring the background and application of Hazelwood, briefly touches upon First Amendment forum analysis, and lays out the legal arguments made on both sides of the Hazelwood debate. It discusses how federal appellate courts, without guidance from the Supreme Court, have split on the applicability of Hazelwood to the university context, and the implications of that circuit split on university student journalists' First Amendment rights in the context of qualified immunity. The note then points out that as long as the circuit courts remain split on the applicability of Hazelwood, qualified immunity protects administrative infringement of university student journalists' First Amendment rights. The note concludes by urging the Supreme Court to close the qualified immunity loophole by granting certiorari and settling whether or not Hazelwood applies to the university setting.

Recommended Citation

Richard Bradley Ng, A House Divided: How Judicial Inaction and a Circuit Split Forfeited the First Amendment Rights of Student Journalists at America's Universities, 35 Hastings Const. L.Q. 345 (2008).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol35/iss2/8