1st Amendment online:
Do students editors at public universities
Shed their free speech in cyberspace?


Joey Senat

College Media Review, Winter 1998, p. 4.

Student editors at Northwestern Michigan College were preparing to place their newspaper and literary magazine on the public school’s World Wide Web page when college officials halted the plan. The President’s Council, which at that time was raising money for the school’s programs, felt that a partially nude photograph in the literary magazine would cause too much controversy (Student Press Law Center, Fall 1993, p. 13). Administrators later relented, and under new policies, school officials agreed that access for students, faculty and staff to the college’s "electronic educational resources" would be "conducted with freedom from censorship" consistent with the First Amendment (Northwestern Michigan College, 1995).

The situation at Northwestern Michigan College is an example of a restriction placed on an electronic publication that would not have been permissible for its print counterpart. Though administrators in this case relented, the issue of First Amendment protections for electronic versions of student publications is likely to become more pressing nationwide as more student journalists find their way onto the Internet.(I)

The big question is: Once words are converted from newsprint to digital format, does their First Amendment status change (Potter, 1994, p. 66)? The purpose of this research is to examine a narrower question: Do First Amendment protections granted to student publications at public colleges and universities apply to their online counterparts? The research addresses that question in two sections: Part I examines the federal and state court decisions establishing First Amendment protections for student print publications and applies these to online student publications; Part II explores public university liability for libel and privacy invasion by the student press, two court decisions regarding online service liability for potential libel, and the implications of these decisions for universities controlling the content of online student publications. (II)

1st Amendment protects students

A 1992 report found that there have been some 60 federal and state court decisions (Media Law Committee, 1992, p. 8) dealing with the struggle between students and administrators over matters involving freedoms of speech and press at state universities and colleges (Student Press Law Center, 1994). The decisions have been nearly unanimous that those First Amendment rights apply with no less force at public institutions of higher education: A state university or college campus is a marketplace of ideas encompassed by the First Amendment, which prevents school administrators from censoring students’ constitutionally protected freedoms of speech and press. Regarding student publications at state-supported universities, courts specifically have declared that administrators may not suspend an editor for publishing controversial articles (Trujillo v. Love, 1971), suppress objectionable material from publication (Mississippi Gay Alliance v. Goudelock, 1977), withdraw or reduce financial support because of the newspaper’s offensive content (Stanley v. Magrath, 1983), or regulate content to assure the compliance of printed material with "responsible freedom of the press" (Antonelli v. Hammond, 1970). However, none stated the First Amendment rights of students as succinctly as Louisiana Appeals Court Judge Jim Garrison’s concurrence in Milliner v. Turner (1983): "Even college students may speak, write and publish freely" (at 1303).

In 1972 and 1973, two cases indicated the importance the U.S. Supreme Court places on First Amendment protections for college students (Student Press Law Center, 1994, p. 52). In Healy v. James (1972), the Court stated that the First Amendment applies fully to the states and that "state colleges and universities are not enclaves immune from [its] sweep" (Healy, 408 U.S. at 180). The Court noted that "the college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas.’ " Its own precedents, the Court said, "leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ "

A year later, in Papish v. Board of Curators of the University of Missouri (1973), the Court applied similar reasoning to a case involving censorship of a 32-year-old student distributing an "underground" newspaper on a public college campus. The newspaper contained two features that the university deemed "indecent." In reversing a lower court ruling and ordering the student reinstated, the Court said, "We think Healy makes it clear that the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of ‘conventions of decency’ " (at 670). The Court also noted that "the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech. . ." (at 671).

In 1973, the Fifth Circuit Court of Appeals in Bazaar v. Fortune (1973) enunciated what are now the well-established rules concerning censorship of the college press. The court found (1) that the fact that a state university provided funding, faculty or departmental advice, or campus facilities did not authorize university officials to censor the content of a student publication; (2) that individual four-letter words were insufficient reason to censor; (3) that the state university could not be considered the same as a private publisher with absolute arbitrary power to control content; (4) that the university, as an arm of the state, could not make private publisher decisions about content; and (5) that the university could not be held liable for the content of student publications (Media Law Committee, 1992, p. 9).

However, courts have recognized a public college’s interest in maintaining order and discipline necessary for the success of the educational process (Jones v. State Board of Education, 1969; Norton v. Discipline Committee of East Tennessee State University, 1973; Speake v. Grantham, 1971). Not since the turbulent early 1970s, though, "has a court found material in a college student publication to justify a school’s claim of material and substantial disruption of school activities" (Student Press Law Center, 1994, p. 34). Courts also have held that maintaining the order necessary for educational activities is the "only legitimate justification for censorship of student expression that is otherwise constitutionally protected" (p. 52). Courts have ruled censorship is not justified even when the material might be considered obscene or offensive (Antonelli v. Hammond), is of poor quality (Schiff v. Williams, 1975), or might be libelous (Mazart v. State, 1981).

Does form matter?

As courts have recognized First Amendment protections for newspapers and a literary magazine, they have also indicated a willingness to extend such protection to other types of student publications. In Antonelli v. Hammond, one of the most frequently cited student press cases, a U.S. district court said: "In the very creation of an activity involving media of communication, the state regulates to some degree the form of expression fostered. But the creation of the form does not give birth also to the power to mold its substance" (at 1337).

The U.S. District Court of Colorado relied in part on Antonelli v. Hammond two years later when it ruled in Trujillo v. Love that Southern Colorado State University officials could not require student editors to submit "controversial" material to their faculty adviser for prior approval. The court said: "The state is not necessarily the unfettered master of all it creates. Having established a particular forum for expression, officials may not then place limitations upon the use of that forum which interfere with protected speech and are not unjustified [sic] by an overriding state interest" (at 1270).

In Bazaar v. Fortune, the Fifth Circuit Court of Appeals relied on Antonelli v. Hammond in rejecting the University of Mississippi’s distinction between a newspaper and literary magazine. "[W]e see no difference between this and other University publications which the University concedes, quite correctly in our opinion, that it cannot censor except within constitutional limitations. The literary magazine, Images, is certainly within the broad class of publications to which the broad rule enunciated in Antonelli was designed to apply" (at 575).

In ruling that the university did not have the authority to control the publication’s content, the court said:

The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned. It seems a well-established rule that once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees (at 575).

Are World Wide Web sites considered publishing?

The U.S. Supreme Court and a lower panel of federal judges have recognized the World Wide Web as a "publishing" medium. In 1996, a trio of federal judges reviewing the Communications Decency Act of 1996 repeatedly referred to placing information on the WWW as "publishing" and also noted that newspapers and magazines "now publish ‘online’ editions of their material. . ." (American Civil Liberties Union v. Reno, 1996, at 837). The judges described "home pages" on the WWW as the "the equivalent of individualized newsletters about that person or organization" (at 837).

The Supreme Court, while later striking down the CDA, agreed with that analogy and with the concept of "publishing" on the World Wide Web. Wrote Justice Stevens for the Court: "Any person or organization with a computer connected to the Internet can ‘publish’ information" (Reno v. American Civil Liberties Union, 1997, at 1837).


Are WWW sites protected by the First Amendment?

The CDA provided the Supreme Court with its first opportunity to say how the First Amendment will be applied to the Internet, and the Court refused to regulate the new medium as though it were part of the broadcast media.

The Court said the special factors justifying regulation of the broadcast media -- a history of government regulation of broadcasting, scarcity of available frequencies at its inception, and its invasive nature -- are not present in cyberspace (Reno v. American Civil Liberties Union at 1844). For student editors of student-produced WWW sites, the Supreme Court’s ruling means they do not face the prospect -- as student broadcasters do -- of public universities as license holders trying to enforce Federal Communications Commission regulations.

Though the Supreme Court stopped short of explicitly saying cyberspace warranted the same full First Amendment protection afforded the print medium, it said it could find no basis in previous decisions for qualifying the level of First Amendment protection for the Internet. Justice Stevens also pointed out that as a matter of constitutional tradition, the Court presumes that "governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship" (at 1844).

Even though the First Amendment reasonably seems to prohibit public universities and colleges from controlling the content of their students’ WWW publications, some administrators might still do so. In such situations, those officials might be opening their institutions to liability for libelous statements made in those publications.


Liability can be assessed

A number of writers have concluded that because public universities are constitutionally prohibited from exercising editorial control over student-run newspapers, they should be immune from legal liability for defamatory or privacy-invading statements in those publications (Student Press Law Center, 1994, p. 159; "Tort Liability," 1972; Walden, 1988). Those colleges that do attempt to control content, however, should be held liable. Those contentions are supported by the holdings of courts deciding libel cases against student newspapers and by the logic followed by two courts in libel actions against computer information services.

In Milliner v. Turner, Southern University of New Orleans faculty members sued the student-run newspaper after it called them "racists" and "proven fools." The Louisiana Court of Appeals ruled that the university was not liable because it did not have the authority to censor the newspaper. "We find that the First Amendment . . . would bar [the university] from exercising anything but advisory control over the paper, therefore, exempting the university from any liability or responsibility" (at 1303).

In Mazart v. State, the Pipe Dream, the student newspaper at the State University of New York at Binghamton, ran a letter to the editor identifying the two plaintiffs "as members of the gay community." The New York Court of Claims found that the publication constituted libel per se, and that the editors "acted in a grossly irresponsible manner" (at 604). The court also recognized that the Pipe Dream and its staff might be incapable of compensating claimants for damages. But, the court concluded:

[I]n light of the University's eschewing control, editorial or otherwise, over the paper and the constitutionally imposed barriers to the exercise by the University of any editorial control over the newspaper, the Court must reluctantly conclude that the relationship of the University and the Pipe Dream is not such as would warrant the imposition of vicarious liability on the State for defamatory material appearing in the student newspaper (at 606).

The logic followed by two courts deciding libel lawsuits against computer information services also supports the conclusion that liability is attached through the exercise of control over the editorial process. In Cubby Inc. v. CompuServe Inc. (1991), a federal district court ruled that a computer service company was a mere distributor of information and could not be held responsible for defamatory statements made in news publications loaded into its computer library by an independent third party. In Stratton Oakmont, Inc. v. Prodigy Servs. Co. (1995), however, the New York State Supreme Court in Nassau County ruled that Prodigy was a publisher subject to libel laws because the online service "exercised sufficient degree of editorial control" over the content of messages posted on its bulletin boards.

The New York court, relying on Cubby, emphasized that computer bulletin boards should generally be regarded as distributors such as book stores and libraries, which may be liable for the defamatory statements of others only if they knew or had reason to know of the defamatory statements. The judge noted that CompuServe had no opportunity to review publications posted to its electronic forum prior to their uploading and exercised "little or no editorial control" over their content (Prodigy at 1797). Prodigy, however, was not such a passive conduit because it advertised itself to the public and to its subscribers as controlling the content of the bulletin board messages. By using technology and board leaders to delete bulletin board messages on the basis of offensiveness and "bad taste," Prodigy was making editorial content decisions similar to those made at newspapers. With that editorial control, the court said, comes increased liability (at 1796).

It can be reasonably assumed then that public universities insisting on controlling the content of online student publications will be held responsible for statements made in those publications. Likewise, universities that do not exercise such involved editorial control should be immune from such liability.(III)


The First Amendment rights of students at public universities and colleges are well-established by federal and state courts. Where the publication has been created as a forum for student expression, college authorities may not exercise anything but advisory control over the editorial decisions of the student editors.

Such publications, however, do not exist only in ink-and-paper form; more than 250 student newspapers are published on the World Wide Web. The U.S. Supreme Court has recognized the World Wide Web as a publishing medium and refused to qualify the level of First Amendment protection granted to the Internet. Online student newspapers and literary magazines would reasonably fall within the broad view of forms of student expression granted First Amendment rights by the courts and, therefore, should be afforded the same First Amendment rights as their ink-and-paper forerunners. Universities adopting a hands-on attitude, in spite of consistent rulings by the courts granting editorial control to student editors, could find themselves being held liable for defamatory and privacy-invading statements made in those online publications, while colleges that abide by the courts’ rulings should be immune from such liability.

To dilute the free speech and free press rights of student editors because newsprint has been converted to a digital format would seem to defeat the ideals expressed in dozens of court opinions. Indeed, considering the increasing popularity of online student publications and the World Wide Web, restricting the constitutional rights of those editors would threaten the student press’ role in the marketplace of ideas that is a public university.



American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).

Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970).

Bazaar v. Fortune, 476 F.2d 570, aff’d as modified en banc, 489 F.2d 225 (5th Cir. 1973), cert. denied, 416 U.S. 995 (1973).

Cubby Inc. v. CompuServe Inc., 776 F.Supp. 135 (S.D.N.Y. 1991).

Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972).

Jones v. State Board of Education, 407 F.2d 834 (6th Cir.), cert. granted, 396 U.S. 817 (1969), cert. dismissed, 397 U.S. 31 (1970) (leaflets urging boycott of fall registration).

Mazart v. State, 441 N.Y.S.2d 600 (N.Y. Ct. Cl. 1981).

Media Law Committee, College Media Advisers (1992). First Amendment Danger Signals/Tips/Resources for Advisers of Student Publications.

Milliner v. Turner, 436 So.2d 1300 (La. App. 4 Cir. 1983).

Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073, 1 Media L. Rep. (BNA) 1949 (5th Cir. 1976), cert. denied, 430 U.S. 982, 97 S.Ct. 1678 (1977).

Northwestern Michigan College (1995, December 27). Electronic Publication Access and Electronic Publication Access Procedures. Policies and Procedures Manual.

Norton v. Discipline Committee of East Tennessee State University, 419 F.2d 195 (6th Cir. 1969), cert. denied, 399 U.S. 906 (1970) (literature urged students to "stand up and fight" and to "assault the bastions of administrative tyranny").

Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (per curiam), reh’g denied, 411 U.S. 960 (1973).

Potter, W. (1994, July/August). Free Speech on the Infobahn. Presstime, p. 66.

Reno v. American Civil Liberties Union, 25 Media L. Rep. (BNA) 1833 (US SupCt 1997).

Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975).

Speake v. Grantham, 317 F. Supp. 1253 (S.D. Miss. 1970), aff’d, 440 F.2d 1351 (5th Cir. 1971) (per curium) (hoax notices that classes would not meet two days before finals began).

Stanley v. Magrath, 719 F.2d 279, 9 Media L. Rep. (BNA) 2352 (8th Cir. 1983).

Stratton Oakmont, Inc. v. Prodigy Servs. Co., 23 Media L. Rep. (BNA) 1794 (N.Y. Sup. Ct. 1995).

Student Press Law Center (1993, Fall). Michigan School Outlines New Cyberspace Policy. SPLC Reports, p.13.

Student Press Law Center (1994). Law of the Student Press.

Tort Liability of a University for Libelous Material in Student Publications (1972). Michigan Law Review, 71, 1061.

Trujillo v. Love, 322 F. Supp. 1266 (Colo. 1971).

Walden, R. (1988, Fall). The University’s Liability for Libel and Privacy Invasion by Student Press. Journalism Quarterly, 65, 702.



(I)More than 250 college student publications already are published on line. See AJR Newslink for lists of campus daily and weekly online student publications.

(II)An expanded version of this research was presented by the author to the Association for Education in Journalism and Mass Communication, Anaheim, CA, August 1996.

(III) In response to the Prodigy decision, Congress enacted Section 509 of The Telecommunications Act of 1996 to forbid the imposition of publisher liability on any interactive computer service that exercises editorial control over the content of third-party messages published via that system. Congress feared that such liability would deter service providers from blocking and screening offensive material from children. Congress explicitly granted the immunity "to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." It does not appear, however, that Congress intended to grant such immunity to public universities actively controlling the editorial process of the student press. Thus, the reasoning applied in Prodigy still supports the contention that when a public university exercises control over the editorial process of a student online publication, it would assume liability for libelous or privacy-invading statements made in that publication.

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