Paying for free speech

The Student Press Law Center has begun to receive calls from\nmembers of the college press who report that school administrators\nor those acting on their behalf (for example, student government\nofficials, media boards, etc.) are beginning to tell them to discontinue\nprinting political editorials or endorsements. For instance, at\nFlorida A&M University, the student senate voted on March\n3 to freeze funding of the official student newspaper, The\nFamuan, after the paper ran political editorials prior to\ncampus elections. (See PAPER).\nThe student senate said it cut funding because the paper published\npolitical endorsements as part of its student government election\ncoverage, which the senate claimed violated student government\nrules. In April, the student senate passed a preliminary budget\nfor The Famuan, which decreased next year’s funding allocation\nby 31 percent. Because of this budget reduction, the paper may\nbe forced to print in black and white instead of color next year.\nThe paper has challenged the senate’s action.

At the University of North Carolina at Chapel Hill, new student\ngovernment rules prohibit the allocation of student activity fee\nmoney to any campus organization that publishes or makes political\nendorsements. Their rules have inspired a heated campus debate.\nAccording to Mark Kleinschmidt, incoming speaker of the University\nof North Carolina student legislature, the outgoing legislature\nadded a provision to the code prohibiting student activity funding\nof any “political and ideological” activity or speech\nby campus student organizations. Scott Rubish, who chairs a club\ncalled “Common Sense” that seeks to change the student\nfee system and who also serves as associate publisher on the conservative\nmagazine the Carolina Review, which itself receives student\nactivity fee funding and ran political endorsements in its March\nedition, said he recognizes the value of “dissenting viewpoints”\non a college campus, but expresses ambivalence about the funding\nof groups that he believes do not contribute to a true educational\ndiscourse at North Carolina. He thinks that mandatory student\nfee funding necessarily forces students to support ideological\nviews those students disagree with. Rubish supports retaining\na student fee fund through a voucher system.

“One way of deciding which viewpoints are ‘objectionable’\nis to allow students to vote in a de facto sense: by using a voucher\nsystem that would allow students to allocate their contribution\nto the activity fund,” Rubish said.

The Student Dissenter Cases

The rise in the incidence of cases of “political and ideological”\ncontent prohibitions on school-sponsored expression appears to\nbe what Robin Hubbard of the Center for Campus Free Speech, a\nWashington, D.C.-based coalition of students, faculty and administrators\nthat has come out against court decisions that suggest student\nactivity fee systems should be revised to take account of dissenter\nrights, calls the “second hand impact” of a number of\nrecent court cases. These cases–whose outcomes have varied–have\nbeen brought by students at public universities who object to\nsupporting political and ideological views that they oppose through\nstudent activities fees.1

The student dissenter cases have largely been spurred by conservative\nstudents who resent paying mandatory student activities fees that\nthey claim go to support “left-wing” organizations on\npublic university campuses. For example, in Southworth v. Grebe–a\ncase that is now headed to the U.S. Supreme Court (see SUPREME\nCOURT)–the U.S. Court of Appeals for the Seventh Circuit\nCourt held that the University of Wisconsin fee system violated\nstudent fee dissenters’ First Amendment rights against “compelled”\nspeech and association. The court relied on past cases that held\nthat when people are compelled to contribute fees that support\npolitical views with which they disagree, they are made to “speak”\nagainst their will in support of those organizations. The court\nprohibited the University of Wisconsin from using mandatory student\nfees to fund student organizations that “engage in political\nor ideological activities, advocacy, or speech.”2

What has many in the college press worried is that school officials\nmay, based on Southworth, interpret the First Amendment\nto mandate increased university involvement in making content-based\ndecisions about the political and ideological character of student\norganizations, including student media, that benefit from student\nfee support. For example, the Southworth court included\nexcerpts from a campus women’s center newsletter, The Source,\nto classify the groups at issue in the case as “political\nand ideological” and therefore subject to funding restrictions.\nCritiquing the political nature of the newsletter, the Southworth\ncourt noted, “in the February/March 1996 issue of ‘The Source,’\nthe newsletter published a lengthy article opposing the Informed\nConsent Bill (Assembly Bill 411), which proposed certain regulations\nof abortion.”3 The Seventh\nCircuit also cited the Ten Percent Society as a group that “used\nits Internet Home Page to advocate legislation authorizing same-sex\nmarriages, while condemning attempts by the Wisconsin Legislature\nto ban them.”4 Thus, the Seventh\nCircuit engaged in content-based appraisals of the student media’s\n”political and ideological” content. If a university\nundertook the same task, the result could by the imposition of\nprior restraints on the student media.

To maintain a system of student fee funding of campus organizations,\nuniversities may feel pressure to restructure student fee expenditures\nto only support organizations with noncontroversial content in\norder to strike a proper constitutional balance between university\ngoals and the rights of students dissenting to certain campus\ngroups.5 Of particular concern to\nthe college press, school officials and their representatives\nmay construe a prohibition on “political and ideological”\ncontent to apply to every school-funded campus organization, including\nthe “mainstream” student media. An example of a past\nuniversity policy arising out of such fears occurred in California.\nA California University State Board of Trustees regulation in\nthe 1980’s banned unsigned endorsements of political candidates\nin student papers that received any state funding. The Board enacted\nthe policy out of concern that people might think the University\nof California endorsed political candidates if the endorsements\nremained unsigned. In a case brought by a San Diego State University\nstudent editor who ran political endorsements despite the prohibition\nand was suspended from school, a federal judge found the California\npolicy violated the First Amendment’s protection of free speech.6

Those who object to student activities fees being used to support\ncampus organizations say such fees promote predominantly liberal\ncauses. Phyllis Schlafly of the Eagle Forum, a conservative national\nvolunteer organization supporting “pro-family values,”\nstrongly endorses the Southworth decision. She believes\nthat students should privately support organizations of their\nchoosing and should not have to pay mandatory dues that support\npolitical candidates, political advocacy and legislative initiatives.\nShe says that newspapers are not really on her organization’s\nagenda, although she believes that most are left-wing.

Students asserting that mandatory student activities fees violate\ntheir rights generally appeal to two lines of cases. The first\ninvolves the right not to be compelled to speak. Two First Amendment\ncases, West Virginia State Board of Education v. Barnette7 and Wooley v. Maynard,8 held that persons enjoy a right against\n”compelled speech.” In Barnette, for example,\nthe Supreme Court found it violated the First Amendment for students\nin a public school to face expulsion for failing to salute the\nflag and recite the pledge of allegiance. The Court asserted,\n”We think the action of the local authorities in compelling\nthe flag salute and pledge transcends constitutional limitations\non their power and invades the sphere of intellect and spirit\nwhich it is the purpose of the First Amendment to. . . reserve\nfrom all official control.”9\nIn Wooley v. Maynard, 430 U.S. 705, 707 (1977), the Court\nheld the First Amendment right of a New Hampshire driver who covered\nthe state motto “Live free or die” on his license plate\nbecause the slogan conflicted with his Jehovah’s Witness religious\nbeliefs.

The second line of cases invoked by student dissenters appeals\nto the First Amendment right against compelled funding of speech\nwith which one disagrees, or “compelled association.”\nFor example, in Abood v. Detroit Board of Education the\nSupreme Court held that members of a union need not contribute\nfees that went to political activity not germane to an organization’s\ncentral purpose of advocating on behalf of workers in labor disputes\nand improving working conditions.10\nThe Abood Court cited Thomas Jefferson for the proposition\nthat “to compel a man to furnish contributions of money for\nthe propagation of opinions which he disbelieves, is sinful and\ntyrannical.'”11 Students dissenters\nanalogize mandatory student fee funding to forced funding of causes\nwith which they disagree.

By contrast, those who favor continued mandatory student fee\nfunding emphasize the view that a student fee fund creates a limited\npublic forum that advocates no particular political agenda, but\nis instead distributed to a diverse array of campus groups. The\ndissent in Southworth distinguished the student fee dissenter\ncases from the union shop cases like Abood by arguing that\nthe educational environment at issue raises different concerns\nthan labor advocacy groups. Dissenting circuit judge Diane P.\nWood wrote, “I take issue with the panel’s fundamental premise–that\nthe fee is a compelled subsidy of speech itself, rather than a\ncompelled subsidy of a neutral forum of speech. In my view, there\nis a dispositive difference for First Amendment purposes between\nrequiring someone to fund a forum, and requiring someone to support\nthe speech of any or all speakers who come to use the forum.”12

Hubbard of the Center for Campus Free Speech echoed those sentiments,\nsaying the Seventh Circuit simply handed down a bad decision that\nfailed to recognize the “unique role campus organizations\nplay in the marketplace of ideas.” She said the Seventh Circuit\npanel relied too heavily on cases involving individuals who did\nnot want to pay union dues or bar dues because they disagreed\nwith some of the organization’s political initiatives–cases that\nHubbard said were simply not relevant to the university context.

A recent decision out of the U.S. Court of Appeals for the\nNinth Circuit that upheld mandatory student fee fund support of\nthe Oregon Student Public Interest Research Group Education Fund\n(OSPIRGEF) at the University of Oregon took the same view. Circuit\nJudge Sidney Thomas, writing for the unanimous court in Rounds\nv. Oregon State Board of Higher Education, asserted, “The\ngoals of the university are much broader than the goals of a labor\nunion or a state bar, and they are inextricably connected with\nthe underlying policies of the First Amendment.”13

When the Supreme Court reviews Southworth next term,\ncollege student media supporters hope the Court will draw clearer\nlines so that school officials will understand that they must\nstill respect the well-established Supreme Court holdings protecting\nthe editorial independence of the public university student media.\nOver the past quarter century, the Supreme Court has consistently\nupheld the claims of student journalists claiming First Amendment\nviolations by public university officials,14\nmost recently holding in Rosenberger v. Rectors and Visitors\nof the University of Virginia that discriminating against\na student journal advocating a Christian perspective in student\nfee fund distribution violated the Constitution.15

Impact on Student Media

Despite evidence of an increased willingness on the part of\ncourts to recognize student dissenter rights against compelled\nspeech and association, courts still largely regard the student\npress as constitutionally immune from measures that limit funding\nbased on content or impose other content-based restrictions. Most\ncourts have not distinguished the public college and university\nstudent press from the non-student press, where the imposition\nof prior restraints by the state receives the highest level of\njudicial scrutiny.16 Indeed, Supreme\nCourt doctrine suggests that college newspapers are particularly\nworthy of First Amendment protection because of student papers’\nrole as a public forum–a quintessential “marketplace of\nideas”–on college campuses.17\nLower court opinions have also found the goal of a vibrant\ncampus dialogue to overshadow the speech and associational rights\nof dissenting students.18 Even the\nSeventh Circuit distinguished past cases involving student newspapers\nfrom the political and ideological campus organizations at issue\nin Southworth.19

Nonetheless, even in their expressed support for student newspapers,\ncourts have not always made clear whether they would treat a paper\nor newsletter with a professed political bent differently than\na more mainstream college newspaper that publishes political viewpoints\nor occasional editorial endorsements.20\nThe proportion of “political or ideological” material\nin a given paper might vary depending on the goals of a publication,\nand Southworth suggests that this factor might prove dispositive\nin a case brought by an objecting student fee payer.21\nAnother factor a court might have to consider is the extent to\nwhich a student group’s funding comes from student fees, as opposed\nto advertisers or other sources of funds.

Suggestions for Avoiding “Political and Ideological”\nCensorship

Although guidelines for retaining editorial control of public\nuniversity campus papers will better be delineated after the Supreme\nCourt decides the Southworth case next term, the following\nsuggestions may assist student media organizations in avoiding\nstudent fee fund battles over political and ideological content: