Case Brief: Kincaid v. Gibson (2001)

[Prepared for COMM 4454- Media Law, Fall 2011]

KINCAID v. GIBSON, 236 F.3d 342 (2001)

            Decision by UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FACTS: Plaintiffs Kincaid and Coffer were both students at Kentucky State University, and Betty Gibson was KSU's Vice President for Student Affairs. KSU funded production and distribution of “The Thorobred,” the student yearbook which was student-composed and produced. Coffer served as the editor of the yearbook during the 1993-94 academic year. A student-photographer and at least one other student assisted her at one point, but Coffer organized and put together the yearbook alone after her staff members lost interest in the project. Coffer stated that she wanted to “do something different” and “bring Kentucky State University into the nineties.” She gave it a purple cover and a “destination unknown” theme, inspired by student uncertainty wondering "where are we going in our lives," high unemployment rates, and a current controversy regarding whether KSU was going to become a community college. Coffer included pictures depicting events at KSU and in its surrounding community, and political and current events in the nation and world at large.

When the yearbook came back from the printer in November 1994, Gibson objected to several aspects of it, finding the publication to be of poor quality and "inappropriate." In particular, she objected to the purple cover (KSU's school colors are green and gold), its theme, the lack of captions under many of the photos, and the inclusion of current events unrelated to KSU. After consulting with KSU President Mary Smith and other university officials, Gibson and Smith decided to confiscate the yearbooks and to withhold them from the KSU community.

In November 1995, Kincaid and Coffer sued Gibson, Smith, and individual members of the KSU Board of Regents, alleging that the university's confiscation of and failure to distribute the 1992-94 KSU student yearbook violated their rights under the First and Fourteenth Amendments. Both parties moved for summary judgment.  The district court applied a forum analysis to the students' First Amendment claim, and found that the KSU yearbook was a nonpublic forum. In deciding this, the court held that the university officials' refusal to distribute the yearbook "on the grounds that the yearbook was not of proper quality and did not represent the school as it should," was reasonable. The court granted the KSU officials' motion for summary judgment and denied the students' motion.

LEGAL QUESTION: Did the university officials violate the First Amendment rights of Kincaid and Coffer by confiscating and failing to distribute the KSU student yearbook?

DECISION: Yes. (10-3. Cole delivered the opinion of the court)

COURT’S RATIONALE: The court stated that cross motions for summary judgment authorize the court to assume that there is no evidence which needs to be considered other than that which has been filed by the parties. They claimed, “There is a substantial amount of testimony and documentary evidence in the record before us. Thus, we agree with the parties that the facts as developed in this case are sufficient to decide the case in accordance with clearly established First Amendment law, and we find no material facts in dispute that prevent the district court from granting summary judgment in favor of Kincaid and Coffer.”

They also said that because KSU is a state-funded, public university, the actions KSU officials take in their official capacities constitute state actions for purposes of First Amendment analysis, and the funds and materials that KSU allocated toward production of The Thorobred constituted state property. By confiscating the yearbooks, the KSU officials restricted access to state property used for expressive purposes. After examining KSU's policy and practice, the nature of The Thorobred and its compatibility with expressive activity, and the context in which the yearbook is found, the court believed this to be clear evidence of KSU's intent to make the yearbook a limited public forum.

They explained “Confiscation ranks with forced government speech as amongst the purest forms of content alteration. There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it. We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government. The KSU officials present no compelling reason to nullify Coffer's expression or to shield it from Kincaid's view and, accordingly, the officials' actions violate the Constitution.”

CONCURRING OPINIONS: (Judges Ryan and Boggs [in part]) Ryan was a member of the panel which previously decided in favor of the KSU officials. He claimed “I thought then, for the reasons expressed in Judge Norris's opinion for the panel, that the plaintiffs had suffered no deprivation of free speech rights under the First Amendment. I now think that in so concluding, I was in error.”

DISSENTING OPINIONS: (Judges Norris and Boggs [in part]) Boggs believed that there was substantial but not conclusive evidence on several matters, and that he would reverse for a trial of these genuine issues of material fact. “I therefore concur in the judgment of the court reversing the ruling of the district court, but dissent from our judgment ordering that judgment be entered for the student appellants.”

Norris “continued to believe that the record supports a conclusion that the university did not create a limited public forum for the reasons outlined in the prior panel's vacated opinion.” He claimed that The Thorobred represented a non-public forum, and "regulation of speech in a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation."

SIGNIFICANCE OF THE CASE: This case suggested that federal courts were reluctant to expand censorial powers of college administrators via Hazelwood. In reality, they merely distinguished between the (out of class) production of the yearbook from the classroom-generated newspaper.