Late last month, I wrote about the Missourian‘s conflict of interest policies and how I thought they looked unconstitutional because they amounted to state-enforced censorship. I said I’d follow up when I knew more. Well, I know slightly more now, though I don’t have all the answers I would like.
But based on the answers I can find, this is what I’ve come up with: there are at least two schools of thought as to why the Missourian‘s conflict policies are constitutional, and both are wrong. They’re also mutually inconsistent. And neither one, even if it were true, would sanitize the policy of its hypocrisy.
Before getting into the mechanics of this problem, I should point out that I’ve heard a great deal of criticism of my original post. Some of it seems to be centered around the idea that I’m out to get the Missourian. I think those critics don’t understand what it is I do here. If a dentist tells you that your tooth needs a filling, it’s not because he hates your jaw. Yet somehow, my pointing out a flaw in the structure and enforcement of this policy is being interpreted as a sinister plot.
Suffice it to say, if you ignore the dentist because you think he hates you, your teeth might fall out.
Which brings us to the two theories I’ve heard so far. In e-mailing back and forth with Prof. Tom Warhover, executive editor of the Missourian, Warhover’s position has been that being incorporated as a not-for-profit corporation makes the Missourian independent of the university, and that it therefore isn’t government censorship when the Missourian imposes a conflicts policy.
Then the Amicus Curious blog quoted Prof. Sandy Davidson, the Missourian‘s lawyer, as saying that the U.S. Supreme Court’s ruling in Garcetti — which applies to speech of employees and agents of the government — gives the Missourian the right to restrict speech of student writers.
So… the editor says the policy isn’t a First Amendment violation because they’re not the government and they can do whatever they want. The lawyer says it’s not a First Amendment violation because they are the government, and they can control what government agents do, student journalists included. Fortunately for the Missourian, I don’t think either of them are correct. But let’s talk about Garcetti first.
Why the Garcetti Theory Doesn’t Help the Policy
Garcetti is a Supreme Court case that limits the free speech of government employees when they are speaking as part of their job.
Let’s read that again, and if you’ve been one of the people trumpeting the Missourian’s independence, you might want to read it out loud: Garcetti is a Supreme Court case that limits the free speech of government employees when they are speaking as part of their job.
There’s so much wrong with that analysis that it’s difficult to choose where to start. I guess I’d start with this: you determine who is an employee for Garcetti purposes by applying the principles of agency law. Agency is an area of the law that tries to determine when one person is working on behalf of someone else.
I don’t think there’s any way to claim with a straight face that student reporters are government employees for purposes of controlling their speech. Garcetti was an interpretation of a speech rule first articulated in Pickering v. Board of Education, 391 U.S. 563 (1968). While Garcetti was limited to employees, another case, Board of County Commissioners v. Umbehr, 518 U.S. 668 (1995), extended Pickering‘s rule to independent contractors. But in doing so, the Court noted, the reason for extending Pickering was that independent contractors often perform tasks that would otherwise be assigned to government employees, and that the extension is in light of this relationship (see id., pp. 679-81).
You cannot argue that student reporters perform a job that would otherwise be performed by government workers, because if the job was performed by government employees, the Missourian would serve no educational purpose and would simply be an ancillary business (which would carry hefty tax consequences for the University).
If anything, the University is being “contracted” by the students who pay tuition; they pay the bills and they are supposed to receive the benefit of the relationship. It turns the entire universe upside down to assert that students are paying for the privilege to be “independently contracted” under terms dictated by the state; I think it is also fair to say that, under Umbehr, it would be disingenuous to assert that this “independent contractor” relationship is a substitute for employment.
Given all of the above, could you say with a straight face that the student reporters are either employees or independent contractors? Because if you can, I have some further questions. Like, why they would be agents for Garcetti purposes but not agents for minimum wage purposes? Is the Missourian trying to play the employment hokey-pokey? They put the employee claim out when it’s time to control what student reporters write elsewhere, but they pull the employee claim back out when it’s time to pay them? Are student reporters performing a function that employees would perform when it’s time to analyze agency factors, but they’re not when it’s time to pay them?
The idea that there could be an agency relationship between student reporters and the Missourian is alien and hostile to the minimum wage exemption that permits the Missourian not to pay most student reporters. Agency tries to determine who is in charge of the relationship. The minimum wage exemption exists only when the primary benefit of the relationship accrues to the student. So, if Garcetti is the applicable area of the law, presumably there’ll be a lot of paychecks written in the near future.
And even if we ignore all of the above and assume Garcetti applies, Garcetti does not permit the kind of censorship that the conflicts policy requires. The conflicts policy restricts speech far beyond speech within the scope of a reporter’s job duties; it prohibits holding political office, participating in campaigns, and participating in rallies, all of which Garcetti permits public employees to do. So even under Garcetti, the policy would be unconstitutional.
(Side note: federal employees are restricted from campaigning because of the Hatch Act, but that only applies to federal employees, not state employees. Nothing in Garcetti would permit such a restriction.)
As usual, I’m just scratching the surface here. Classifying the student staff members of the Missourian as college employees for purposes of regulating their speech carries all sorts of additional complications: Is the University providing workers’ compensation coverage to those injured on the job? Or policing the newsroom for sexual harassment? Are the documents created by these “employees” going to be classified as official “education records” of the University so as to be covered by the federal FERPA privacy law? Does the University assume liability if a student reporter crashes her bike into a pedestrian on the way to a press conference? It’s doubtful that UM has thought through — or wants — all of the baggage that comes with categorizing student journalists as “employees” for Garcetti purposes.
Why the Independence Theory Doesn’t Help the Policy
Moving on… okay, let’s look at the universe posited by Warhover: that the Missourian is genuinely independent and that means it can make any speech rules it wants, because it’s not really the government when it enforces them.
I don’t think the Missourian Publishing Association is genuinely independent, but even if it is, the policy it enforces is clearly not independent of the University.
With respect to a lack of independence–if you look at the Missourian Publishing Association’s 990 form, it says right on the front: “The Missourian Publishing Association, Inc. is operated as a learning laboratory for the University of Missouri’s school of Journalism.” As I pointed out to Warhover in an e-mail, one way to tell a corporation isn’t all that independent from a government entity is when, if the government entity ceased to exist tomorrow, the corporation would cease to exist five minutes later.
The executive editor is paid for his job as a professor at the University, but is paid $0 by the Missourian Publishing Association (see Part VII of the 990) for running the lab experience to benefit the University. As the MPA notes on Schedule O of its 2010 990 form, “Compensation for the executive director is determined by the University of Missouri. The Employees of the Columbia Missourian are under University of Missouri policies and guidelines.”
One of the unanswered questions out there is whether MPA could even fire the executive editor, given that it pays the editor $0 and the compensation is determined entirely by the University of Missouri. Even if the MPA is independent, which I doubt, the MPA itself asserts that the executive editor is an employee of the University of Missouri, subject to all policies and guidelines, and it seems silly to argue that it isn’t the University of Missouri that imposes the conflicts rule.
Furthermore, if Warhover is subject to University of Missouri policies and guidelines, then I think the assertion that the Missourian is editorially independent is basically gutted. He’s obligated to report “[i]nformation of illegal, improper, or dishonest acts” related to the University to University officials (see HR-520 in the UM Human Resources Policy Manual). In what universe is it not a conflict for the editor in charge of a publication to report wrongdoing directly to the government?
Which brings us back to the larger point, one I made in the original post: even if, somehow, this policy wasn’t unconstitutional–and I have yet to see any valid explanation why it isn’t–it’s hypocritical for a newspaper that is arguably itself built on a conflict (government-salaried actors who direct news coverage of the government) to insist on absolute purity from students who are just trying to build a well-rounded work portfolio by writing for more than one outlet.
And again, unanswered questions remain. Does the Missourian accept paid advertising? Are the ads designed or sold by students? The ancillary business income questions aren’t tied to any particular independence theory–I just think it’s another area of the law the Missourian hasn’t thought through carefully enough.
I don’t think it’s impossible to structure a publication to have faculty oversight and at the same time a conflicts policy enforced by students so as to be constitutional. I also think the conflicts policies are not so essential to journalism education that you can’t learn journalism without them. But if the Missourian insists on having government employees restrict student speech, I think the options are pretty few.
Correction: The original version of this blog stated that Umbher was “subsequent” to Garcetti, which it wasn’t. Both cases extended the rule in Pickering, so the substance is the same. Thanks to Prof. Davidson for the catch.