First Amendment Fighters Get Trigger-Happy

By: Sandy Davidson

According to Allan Wolper in E&P’s May edition of the Ethics Corner column [–Student-Press-Law-Center-Is-Pressing-the-Issue-When-It-Comes-to-Students–First-Amendment-Rights], “The Student Press Law Center … is searching for a student journalist to sue a state university for allegedly violating the First Amendment.”

He also says that Adam Goldstein, who works for the SPLC, “even has a school in his legal gunsights: the University of Missouri.”   What does First Amendment freedom of the press mean, freedom to write anything one wants, whether it be inaccurate, libelous, invasive of privacy, offensive, or just plain stupid? Unbridled freedom! But who picks up the damages — or should press freedom mean no damages, either?  

In Miami Herald Publishing Company v. Tornillo (1974), the U.S. Supreme Court struck down a right-to-reply statute for political candidates criticized by newspapers. The owner of the press determines the paper’s content, the Court ruled. It also said: “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and, like many other virtues, it cannot be legislated.”  

No, press responsibility cannot be legislated, but perhaps it can be taught. Since 1908, the University of Missouri School of Journalism has endeavored to produce responsible journalists through use of the Missouri Method. The school publishes a community newspaper — not a “campus newspaper” as mistakenly stated by Wolper. The campus newspaper is The Maneater. For more than a century, the Missourian Publishing Association, a 501(c)(3) corporation, has set the policies for the Columbia Missourian. Mizzou Students receive a real-world education and are ready to enter newsrooms with their boots on. That has been the formula for success that has produced so many talented, responsible editors, publishers, and reporters.  

In short, Wolper and Goldstein make a category mistake by confusing a campus newspaper (The Maneater) with a community newspaper (the Columbia Missourian).  

But Missourian teachers work for a state university, they argue. Censorship! Violation of the First Amendment! Take a deep breath, gentlemen, before you advocate a 42 U.S.C. § 1983 suit. Before jumping on, plaintiffs need to realize that their white steed might instead be a nag. Lower federal courts have split on whether Hazelwood v. Kuhlmeier (1988) applies to colleges and universities.  

In Hazelwood, the Supreme Court said in footnote 7: “A number of lower federal courts have similarly recognized that educators’ decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference … We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level.”  

Perhaps this is the footnote Wolper referred to when he said of Hazelwood, “However, in an important footnote to that decision, the Supreme Court specifically excluded public colleges and universities from the censorship stamp.” Steadfastly, the Supreme Court has refused to answer the question, and perhaps Wolper and Goldstein should consider that a blessing.  

The Hazelwood ruling, painting with a broad brush, states: “(W)e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical (teaching) concerns.”  

Along with editorial control comes liability for libel and other torts. Publishers hold the ultimate liability, unless a state law granting greater press freedom to students than does the First Amendment also waives liability for all potential defendants except students.  

Would Goldstein and Wolper also want to argue that KBIA-FM and KOMU-TV, which are licensed to the University of Missouri, must allow broadcast students to air anything they want? Think of the liability risk. Since 2006, FCC fines per incident for indecency can be $325,000. Or would Goldstein and Wolper say that only the students, to whom they would give control, would have liability? Sure, students’ deep pockets could pay FCC fines to avoid license revocation.  

Should journalism interns working, say, at the FTC or FCC or media corporations also have unbridled First Amendment freedom to disseminate anything they wish?  

The University of Missouri School of Journalism teaches, among other things, ethics, responsibility, and avoiding conflicts of interest or the appearance of conflicts of interest, as well as how to communicate by telling a good, inverted-pyramid story. In short, in a media landscape increasingly dominated by blogs, tweets, YouTube, and the like, the Missouri Method still educates journalists in newsrooms with (gasp!) editors.

Sandy Davidson, Ph.D, J.D. is the attorney for the Missourian Publishing Association and teaches media law at the University of Missouri.

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Published: July 18, 2013

One thought on “First Amendment Fighters Get Trigger-Happy

  • July 18, 2013 at 8:45 pm

    If a lawyer “shopped” a solicitation like that, isn’t that CHAMPERTY, or BARRATRY, or something, or are we way beyond considerations like that nowadays ?



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