Missourian’s conflict policy conflicts with free speech

Posted: 25th January 2012 by Adam Goldstein in College Censorship

The blog J-School Buzz covers the Missouri School of Journalism. Recently, the blog’s then-editor, Kelly Cohen, was forced to resign from the Buzz because Cohen is also on the staff of the journalism school’s newspaper, the Missourian.

To understand what’s really wrong here, you have to understand a bit more about what the Missourian really is. It’s not a student newspaper. A student newspaper is one with student editors. Missouri has a real student newspaper, the Maneater.

The Missourian, on the other hand, has J-school faculty members as its editors. Missouri School of Journalism students contribute the content, which is then selected, arranged, and controlled by faculty editors. That’s not a student newspaper. That’s basically a professional newspaper, except all the reporters are underpaid. (Which is to say, basically a professional newspaper.)

But it’s not a professional newspaper, either. Not really. Because Missouri is a public school and the editors are public employees. And that poses First Amendment limitations on their ability to control the speech of students, particularly when that speech is outside the pages of the publication.

(As a side note, I’m aware that the Missourian is technically separately incorporated. We can have this discussion at greater length if you want to get into the nuances, but the short version is that the incorporation doesn’t remove it from its status as a public thing. The short version is that no governmental entity can do an end-run around the First Amendment by creating shell corporations run by public employees to engage in activities to the benefit of the public entity. Public employees making decisions to benefit a public entity are limited by the First Amendment, and the rubber mask of incorporation won’t fool anyone.)

Where were we? Right, a public university imposing limitations on free speech. Let’s assume for the sake of argument that the Missourian’s conflict policy was a legitimate, well-thought-out, not-totally-scummy conflicts policy. Let’s assume we think it’s a good idea.

Even if the policy was ethically valid, the First Amendment doesn’t let state employees impose rules that restrict student speech on the basis of ethics. The First Amendment doesn’t have a loophole that permits state employees to restrict speech if that’s how private employers would do it, or if it’s useful or expedient to the purposes of the state. Heck, if speech had to be ethical to be protected, most political primary debates would consist of a bunch of suits at podiums shrugging at each other.

If the Missourian can reconcile this policy with the First Amendment, I’m curious to learn how, and I’ll ask. In their defense, the Missourian started operations in 1908, and the incorporation of the First Amendment into the Fourteenth Amendment didn’t begin until 1925, so such a policy wouldn’t have been unconstitutional until, you know, the Charleston became a dance craze. That may feel like a long time in the city, but sometimes it takes a few years for news to travel.

But that’s almost not the point, because it’s hard to see how an organization edited by people who are full-time paid agents of the entity it most frequently covers, who also happens to be the biggest employer in town, could ever have a conflicts policy that isn’t a joke. I mean, how did the editorial meeting go when they created this policy at the Missourian? “Okay, now that everybody’s cashed their paycheck, NOW we’re going to be sticklers for journalism ethics.”

This is beyond merely having paid editors. Student editors have a First Amendment right to disagree with the institution. The faculty-editors of the Missourian may very well not, at least not on matters related to their employment. Which, of course, would probably include coverage of their employer.

And this isn’t even half of the questions I’ve got. If this is the biggest media owner in Columbia, isn’t this kind of monopolizing, anti-competitive behavior? If this rule is being used to gain a competitive advantage, isn’t that going to have some tax implications because this is more of an ancillary business than an educational activity? If these are really employees and not students, is it possible to get a J-school degree without taking these classes?

I’ll write more when I learn more.

  1. [...] Amendment.But the story did not end there! After the SPLC encountered a very hostile reaction to its first post on the issue, the SPLC’s Adam Goldstein did more research into the Columbia Missourian‘s legal [...]

  2. [...] is a public school and the editors are public employees,” he wrote in the post. “And that poses First Amendment limitations on their ability to control the speech of students, [...]

  3. [...] Buzz | Student Press Law Center J-School Buzz, an independent blog covering the Missouri School of Journalism, has found an ally in [...]

  4. [...] says Missourian’s noncompete policy violates First Amendment J-School Buzz | Student Press Law Center J-School Buzz, an independent blog covering the Missouri School of Journalism, has found an ally in [...]

  5. [...] outlets are usually fighting for more free speech, not less.But the Student Press Law Center is now accusing the Columbia Missourian of inhibiting students’ free speech and violating the First [...]

  6. [...] article from the Student Press Law Center accusing that the policy censors [...]

  7. Adam Goldstein says:

    I didn’t offer deeper analysis because I didn’t think it needed more explanation–it strikes me as pretty obvious. (What do you mean, call them out “if” they’re censoring students? What do you call making someone quit editorial activities on a blog? In what way is that not the textbook definition of censorship?)

    If you’re a state college, and you make a policy that restricts speech that isn’t illegal itself (e.g., defamatory, libelous, etc.), you’re violating the First Amendment. The “educational settings” argument you’re making sounds like Hazelwood, but Hazelwood hasn’t been widely adopted as the applicable law for colleges; and even if it had been, it wouldn’t apply, because this is a policy restricting speech OUTSIDE OF THE CURRICULAR SETTING, not within the curricular setting.

    In other words, Missouri can probably set curricular reasons for restricting speech within a lab setting. But it can’t restrict speech OUTSIDE that lab setting on the basis of the existence of the lab setting. That’s just plain old un-American censorship, and it isn’t that complicated.

    It’s like the DMV telling you that, if you want a driver’s license, you have to promise not to ride any bicycles. The DMV might have legitimate reasons for telling you what to do while you’re in the car, but when you’re not in the car… you’re not in the car.

    So… yeah, no. Just, no.

    It’s totally irrelevant that professional publications do this. Professional publications can stop printing newspapers and sell chicken sandwiches if they want to, that doesn’t make it legitimate for a state educational institution to do that. And some of this is part of the journalism community’s larger refusal to understand, at both the secondary and higher education level, that public education’s obligation to respect civil rights is neither conditional upon or subordinate to its desire to inculcate professional values.

    Speaking more generally, I’m unimpressed by the idea that freedom should be subordinate to journalism. I think it is a profound misunderstanding of the intent of the First Amendment to think that our freedom exists to create journalism, and therefore, it should be curbed if journalism is inconvenienced. The founding fathers weren’t trying to make better newspapers. Freedom has to come first, even when it inconveniences lab newspapers.

    In short, it’s swell that they like the real world. In the real world, the Constitution exists and they’re the state. If they don’t like that part of the real world, consider moving to Canada. Blunt, and I’m sorry for that, but that’s the bottom line.

    As far as Missouri goes, I’ve never been there. I know Hazelwood is there, and the Missourian is there. If it has charms that redeem it, someone should sue about them so I can read about them later.

  8. Sarah says:

    I don’t understand how this policy (which I had to look up myself) violates the First Amendment. Perhaps you’re right, but I can’t tell because there is almost no legal analysis here. You make some good points about state action and reverse incorporation. That’s all fine and good, but it only tells us that the First Amendment can apply to the Missourian, not whether the Missourian has violated it. Your post seems to argue that if the First Amendment applies, there can be no speech suppression at all. You know as well as I do that’s just not true, especially in an educational setting.

    In my view, the paper has a policy that is justified by its interest in teaching journalism and creating an effective newsroom laboratory. Whatever protected speech it may sweep up (which is arguably not a whole lot), I think it’s within reasonable proportion to the rest of what the policy covers. And it does matter that newsrooms around the country use policies like this. The Missourian didn’t draw this out of thin air; it’s basing its policies on the real world.

    Aside from the legal aspect of this, I take offense at the snark about Missouri. The people in this state are quite aware that the 14th Amendment was ratified, and I can explain reverse incorporation just as well as you can. Not only are you making cheap shots at the Midwest, but you’re deriding an organization created for the sole purpose of teaching journalism. I attended the school and worked at the Missourian for several semesters; I can tell you they take the First Amendment very seriously. An organization like the SPLC should not be attacking j-schools so lightly. I’m not saying that journalism schools can do no wrong — please call them out if they’re censoring students. But you haven’t offered good enough reasons here to justify the rather damning title of this blog post. It isn’t fair to the University of Missouri, especially in the days of Google.

    Frankly, I’m disappointed in the SPLC after reading this. When I was the editor of my high school newspaper, I called your organization several times about censorship issues, and you helped us win some big battles. The SPLC was always on my list of organizations to donate to after I get out of school. But if this is the level of analysis you give to First Amendment issues now, I’ll rethink my future donations because I don’t see how you can help anyone.