A First Amendment refresher for administrators at the University of Memphis (and everyone else) about college newspaper funding



When campus budget-writers sit down to divvy up student activity fee dollars for the coming term, they understandably want some way of assessing whether the organizations queuing up before them are worthy ones.

It may be frustrating that the most obvious way to evaluate the value of the student newspaper -- whether the articles seem well-written and aptly selected -- is forbidden. But that is what the law dictates, and it is what the best interests of the campus community require.

At the University of Memphis, it is openly acknowledged that a committee of students and administrators were influenced in deciding to reduce the budget of the Helmsman newspaper by $25,000 -- a 33 percent cut -- by their belief that the editors' choice of stories poorly served the reading audience. That's simply not allowed.

Because Memphis is a public university, its administrators are state government officials. First Amendment safeguards insulate the editorial content decisions of a student newspaper staff from government interference. That includes interference by indirect means, including by imposing punishment through the budget to coerce editors to alter their news judgment.

At the college level, student expression is entitled, at a bare minimum, to the significant level of First Amendment protection recognized by the Supreme Court in its 1969 Tinker ruling (and many believe that even Tinker is not sufficiently protective, and that colleges are limited by the same legal constraints as other government agencies).

Under Tinker, lawful student expression may not be prevented or punished unless it materially and substantially disrupts the operations of school. There is of course no suggestion that anything Helmsman editors chose to cover, or not cover, rose to that extreme level.

The Supreme Court has emphasized that a college may not pick-and-choose which student publications receive funding based on the publication's content.

In Rosenberger v. Rector and Visitors of University of Virginia, the Supreme Court found that a public university violated the First Amendment by withholding funding from a student publication because it advocated Christianity:

It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. ... Discrimination against speech because of its message is presumed to be unconstitutional. These rules informed our determination that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.
Lower courts have consistently held that university officials may not exert pressure on the editorial process, even at publicly funded publications, by:
  • Withdrawing university financial support. Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973).
  • Removing student editors from their positions. Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975).
  • Demanding the right to review publications before distribution. Antonelli v. Hammond, 308 F.Supp. 1329 (D.Mass 1970).
  • Refusing to print or distribute copies. Bazaar v. Fortune, 476 F.2d 570 (5th Cir. 1973).
We do not have to speculate how First Amendment principles might be applied by a federal court in Tennessee in the year 2012. The federal appeals court that creates binding legal precedent for Tennessee, the 6th U.S. Circuit Court of Appeals, has already answered the question for us.

When administrators at Kentucky State University refused to distribute the 1994-95 edition of the student-produced yearbook, Thorobred, because they contended the publication was of poor quality and portrayed KSU inaccurately, the student editors took their school to court.

In Kincaid v. Gibson, the Sixth Circuit rejected Kentucky State's "quality" argument and ruled that a public university may not substitute its judgment for that of the editors as to what constitutes "appropriate" material in a student publication:

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.
Significantly, the court in Kincaid refused to apply the Supreme Court's Hazelwood standard -- the standard that reduces First Amendment protection for "curricular" publications at the K-12 level -- to a college-funded yearbook. It therefore is beyond debate in Tennessee that government officials may not use their authority to prevent or punish lawful, non-disruptive speech.

Besides being the law, maintaining the wall between editorial content and funding is essential if student journalists are to perform their independent oversight role, a role that is doubly irreplaceable now that so few off-campus professional media outlets have the personnel to regularly cover higher education.

If budget-writers are free to withhold funding based on subjective determinations of "editorial quality," abuses are inevitable.

Over the past 18 months, the Helmsman's aggressive reporting on UM student government -- led by the journalist who is now the paper's public face, editor-in-chief Chelsea Boozer -- has revealed that:

  • Student government officers get free tuition (and parking) paid out of student activity fees.
  • Student fee money was used to buy $1,000 worth of flowers and tiaras for beauty-pageant contestants, and $1,000 worth of "uniform shirts" for student senators.
  • The former student body president misspent student fee money to pay for campaign expenses.
  • The university may be putting students at heightened risk of theft with an unusual policy that requires every undergraduate to carry an initial balance of at least $300 on a prepaid dining card.
  • Despite its reputation as a cash cow, football is in fact losing the University of Memphis some $4.6 million a year as a result of stagnant ticket sales and high-dollar buyouts for fired coaches.
Is that "good quality" journalism that merits continued financial support? In the eyes of the campus community that is well-served by such watchdog reporting, absolutely -- but in the eyes of those stung by the disclosures, perhaps not. And that is why what the newspaper chooses to cover can play no part in governmental funding decisions.
At Memphis, there is no mystery about motivation. Every public statement from a person involved in the budget process has directly connected the newspaper's level of funding with the editors' discretionary choice of stories:
  • From former Student Government President Tyler DeWitt, who sat on the allocation committee: "[T]he Helmsman is not promoting student activities."
  • From UM Dean of Students Stephen Petersen, who also participated in the budget meeting: "I can’t begin to tell you the examples that came up ... about things that the paper did print that seem to have very little relevance or that seemed to touch very, very few students on the campus."
  • From DeWitt's successor, current Student Government President Russell Born: "I’ve heard complaints that some student groups’ needs aren’t being met by the Helmsman. We need students to know about the big events on campus."
The editor of a student newspaper is not entitled to a certain dollar amount any more than is the captain of the intramural flag-football team. But both are entitled to compete fairly for funding without regard to the opinions they voice.
So, is a university powerless to reduce funding for student media, and must it make funding decisions with a blindfold on? Not at all.

If financial austerity requires everyone to absorb a hit, the First Amendment does not immunize the student media from accepting its share; at Memphis, however, the cut was not proportionate to what comparable organizations suffered.

If people lose interest in working for the newspaper so that staff positions go chronically unfilled, then the payroll can of course be cut, just as the budget for any organization can be cut if fewer participants are joining.

If the publication is dysfunctional as a business -- it can't account for money, it fails to maintain a regular publishing schedule -- then funding can be adjusted or discontinued without regard to editorial content.

But the budget process should never be -- and under the law, can never be -- used to send a "warning shot" of displeasure over discretionary coverage decisions.

There are better ways to deliver that message. University administrators and student elected officials are opinion leaders. They have attained their positions in no small part because of their ability to communicate. And it is through communication -- not punishment -- that change can be brought about.

The Helmsman is run by bright, well-trained people who understand that a newspaper cannot "lose" its community. "If you don't cover high-profile speakers on campus, people will stop reading the paper," is a persuasive argument. "If you don't cover high-profile speakers on campus, we'll take your money away," is not. It is, in fact, affirmatively counterproductive; if editors now begin covering student government events more avidly, they'll appear to be capitulating to financial blackmail.

If it is genuinely the case that the Helmsman's coverage of campus events has been deficient, the last response should be cutting the budget. If there were not enough pages and not enough reporters to cover everything considered newsworthy last year, imagine what this year will be like.

The back-story leading up to the newspaper's budget cut cannot be ignored. The single greatest deficiency identified in the Helmsman's coverage was its editors' decision not to staff a student government-sponsored visit by two former U.S. senators -- because reporters were instead needed on the late-breaking news of a campus rape.

The university's persistent efforts to downplay the problem of sexual assault -- raising baseless legal arguments to block the release of a police report documenting a November 2011 assault, and then failing to alert the campus to a March 2012 assault -- are an ongoing source of tension between the newspaper and Memphis administrators. The trial of a First Amendment case against the University of Memphis will not be about lofty freedom-of-the-press principles. It will be about whether journalists should be punished for prioritizing a student's rape ahead of a speech by out-of-office politicians.

If that is how Memphis wants to spend the next three years, then it should stay right on course. But part of being an effective leader is to recognize when those under your supervision have done something indefensible -- and to stop defending it.

We know how this story will end, because the law and the facts are unmistakable. We soon will know whether those running the university are stubborn and shortsighted enough to put their school through years of reputational damage reaching that inevitable conclusion.

Tagged: censorship