If someone acting on behalf of a public college cuts off funding to student media because he doesn't like what one particular outlet said, should it matter that what the outlet said was really, really offensive?
How you answer that question depends on whether you understand the First Amendment--and maybe on whether you attend the University of California at San Diego, where blatant racism on one particular TV program has resulted in a funding freeze to a number of student media organizations on campus.
The quote that we need to dissect here comes from Utsav Gupta, president of the school's Associated Students:
"Some students are drawing the incorrect conclusion that this is muzzling free speech," he said in an interview. "The right to free speech does not equate to a right to funding."
When Gupta is allocating funds collected by the state for state purposes, he's acting as an agent of the government. That means that the State of California, not Utsav Gupta, gets to decide when speech should or should not be funded.
Of course, the State of California's discretion is limited here, too, by its participation in the United States of America and the latter's Constitution.
Which brings us back to the First Amendment, as applied to the states by the Fourteenth. Does it offend the First Amendment for a government agent to cut off funding to student media because he doesn't like what they said? The Supreme Court thinks it does.
This has nothing to do with how offended the campus has been by these comments. The campus has the right to be offended. This is about one low-ranking government functionary who took his well-justified feelings of outrage and put them into motion in a way that offends the Constitution.
If Gupta believes the Constitution does not protect the right to outrage your government, I wonder--what exactly does he think the framers of our democracy were intending to accomplish? The right to say nice things to each other? The right to politely ask King George if he wouldn't mind not imprisoning quite so many people for seditious libel?
And what good has come of this freeze? It has created an echo chamber where student media wanting to refute the offensive viewpoints are limited in their ability to react. It has not made the words vanish or the sentiments softer. Now, when UCSD most needs to have its students talk to each other, the broadest methods for that discussion are hamstrung.
What do you think? But before you answer--would you feel the same way if, next year, a different Associated Students president decided that diversity was offensive and he was going to freeze student media funding until he could re-write the rules to suit the tastes of his social circle?
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California could go bust, either this year, or the next, and if/when it does, that'll mean zero public funding dollars for higher ed, or close to it, or for anything else. Can/will any of these college types write an intelligent thesis on the current miserable state of affairs in California, along with recommendations for remediation, and submit it to Sacramento before it gets any worse?
You need to do your homework. Your argument is flawed because the statement "When Gupta is allocating funds collected by the state for state purposes, he's acting as an agent of the government. That means that the State of California, not Utsav Gupta, gets to decide when speech should or should not be funded." is simply incorrect. Student fees that fund the media on campus are self assessed and paid for by students as part of a "student activity fee." These are not state funds that Gupta has decided to freeze. He made a decision about locally collected Associated Student fees. Therefore, He acted as an agent of "student collected fees" not an agent of state government. There are limits to free speech. The Koala continues to perpetuate racist attitudes that are harmful to our students and I hope that they are defunded until they change their hurtful tone. The Koala began as a humor newspaper that was actually quite good until it published racist themes.
Of course these are student-paid fees--that's where government money comes from, fees and taxes. It's like arguing that federal highway funds are somehow not governmental because, after all, we use the highways and it comes from our tax dollars, so we should be allowed to decide not to fund highways in states that take political positions we don't like. If the Bill of Rights permitted such a clean pirouette around the government, it would have no effect whatsoever, because it could put any individual right up for a popular vote and cut off rights to people who happen to be in the minority on anything.
The constitution explicitly grants the federal government the authority to regulate interstate commerce. The purpose of funding is to provide a means to engage in commerce. Any use of funds is by definition commerce.
If the 1st amendment did in fact protect "speech" not political speech you could make the case that the 1st amendment superceded the explicit authority granted government to regulate commerce. But the fact that courts merely found it more practical to implement the 1st amendment by protecting speech in general does not supercede the explicit powers granted government.
Just as with the Citizen v United decision the court, and lawyers, use precedent and scope creep to effect illegal and unconstitutional constitutional amendments. I suggest that the school and government agents in general, have every right to regulate funding, even if the commerce may somehow be related to speech. commerce=speech is a legal fiction created by the courts wholly unsupported by the constitution. If you think media commerce should equal speech and be protected then the constitution needs to be amended to say so not "interpreted" to say what it clearly does not say.
You end up chasing your tail another time when you argue that courts found it impractical to decide what's political speech, but that somehow, they should only permit the protection of political speech. The problem is, once you decide that you want to permit the government to punish a given set of words, that set of words is now inherently political, because it's the government-banned list of words. If the phrase at issue here was "chocolate cream cake," and you argue it's non-political so it's non-protected, and the government withdraws funding from someone who prints the phrase "chocolate cream cake," the fact that the government is punishing that person is directly political.
We saw the court narrow its notion of what constitutes interstate commerce over the last twenty years, and somehow, a state deciding to add a publication to its nonprofit educational activities doesn't strike me as the kind of interstate commerce the government has been permitted to regulate lately.
You seriously think the founders should have anticipated telephony? Television? Instantaneous international media? Being more explicit in a lot of areas would have been "trivial," the founders, however, specifically, and wisely, rejected any specificity beyond the bare minimum required.
Either the First Amendment is routinely ignored or its not the blanket protection you claim. I won't bother to ask why you think the founders or anyone else would think such protection necessary or desirable but I will ask why you think using public funds for speech some find objectionable doesn't infringe on the free-speech of those who object? Isn't that the whole rational prohibiting government activity that endorses a particular religion? That it could have a chilling effect on the others?
My position is that the impossibility of definitively identifying nonpolitical speech is exactly why the courts pragmaticly treat speech in general as protected. But that kind of pragmatic implementation cannot in and of itself supercede explicit powers granted in the constitution.
And IMHO the scope creep from decades of precedents is the problem not a validation. Its like inbreeding, minor, even insignificant legal or logical flaws, can become major and life-threatening through repeated and indiscriminate recombination.
1. An organization that advocates political assassination
2. A group that advocates violence against another campus group
3. A group that mounts a spurious, non-factual, personal attack on another individual
Is there a limit on the amount of gummint funding? For instance, I doubt there's a university in the nation that doesn't receive grant money of some kind from a government organization. Does that make it subject to the same rules as so-called public schools? Does the public school rule apply to high schools, middle schools, and elementary schools? Can a high school editor mount a personal attack on a pep squad enemy without fear of having funding yanked?
What about a government organization that advertises for, say, job openings? Can the CIA pull advertising from a newspaper if that newspaper advocates violence against CIA personnel?
Putting it more broadly, can any organization that receives some of its funding from the gummint EVER withdraw funding for any organization whatsover for any viewpoint whatsoever? Are there any limits to this?
At the college level, if a publication creates a clear and present danger of the commission of unlawful acts, or the material and substantial disruption of the operation of a school, the school can take measures to stop the publication as long as necessary to secure the campus. But racial slurs standing alone aren't threats or calls to violent action. And there's no doctrine that says it can indefinitely shut down all student publications with a stroke of the pen over hurt feelings.
Something that can make this easier to analyze is to think about what the government is really buying for its money. It's the existence of the activity. When the state funds, for example, a Chess Club, it buys the existence of the Chess Club as an activity for students, not the right to go to the meeting and demand students use the Kasparov defenses and not the Fisher defenses. Student groups who are advocating that the school should be telling student media what to do probably haven't played out the implications of that model yet.
Would a college be able to argue that attacks against minority groups represent a "substantial disruption to the operation" of the school? What, if any, responsibility does a college have to guarantee the safety of the educational environment? When does racism equal harmful harassment?
1. See http://thefire.org/article/11606.html
This article describes the 1995 incident in which the Voz Fronteriza, a UCSD student media org, published an article calling for the deaths of border patrol agents. Long and short of it? That's protected speech.
3. The Koala has, in fact, done this to people I know. (I'm a UCSD student.) I'm no lawyer, but my understanding is that this counts as libel when directed against a private figure. (A public figure - say, our illustrious A.S. president - is subject to satirization.) To my understanding, these private figures could file civil suits against The Koala.
The government advertising situation (called the "government speech model") was proposed at Wednesday's A.S. council meeting (and ultimately defeated). It's uncharted legal territory as it applies to a public university. Had it passed, the ACLU would have sued (and probably won). (See http://www.ucsdguardian.org/news/funds-restored-to-student-press/ . It has a few things wrong, but you'll get the idea.)
Lastly, I don't think being government-funded is the same as being a government organization. If you're a civil servant, you can still publish whatever you want on your own time with your own money (from your government paycheck). Taking it to extremes, it does not make you a government agent to receive social security or food stamps or a tax return.
Yet the Koala is still only 1 of 33, and the rest of us would very much like to be able to publish our condemnation of their actions as well as battle the growing perception that all of UCSD is a bunch of racist ignorant jerks, but we have been denied the means to do so.
Adam - do courts ever award money damages against schools for first amendment violations? Punitive damages to set an example? Can administrators be held personally liable for doing things like this?
So traditionally, you would pursue nominal damages of $1 and an injunction against future violations. The problem is there are some jurisdictions that are throwing a monkey-wrench into that entire model of civil rights law by erroneously co-opting a doctrine from corporate and tort law that goes like this: if a party gives you the entire damages you seek, you can't take them to court for the damages.
That makes sense if you're talking about two big companies arguing over a contract. It's silly if you're talking about nominal damages. But the concern over some courts latching onto this bad idea is spurring a lot of talk about whether nominal damages are dead and you have to make a larger economic claim.
That is bad for absolutely everyone. If civil rights claims start looking like tort law claims, how long before people call for civil rights reform, saying you can't sue for a violation of civil rights?
Whether people can be held personally liable rather than liable in their official capacity is a much more complicated question. It's always going to depend on the facts and on who was doing what for whom.
It sounds like what you're saying is that racial slurs are bad. I'd agree with you. But once we decide they're bad, we're making a value judgment about the speech. And once we're making a value judgment, we're in the area the First Amendment says can't be the basis of governmental funding decisions. That refusal to judge the value of a viewpoint, however asinine and crude, is the foundation of the American form of government.
Whether he was wise to do what he did, or whether what he did was ethical, are very good questions. But the students of UCSD, through their elected representatives, probably have a right to stop buying anything they want to stop buying, the same way I have the right to stop buying the local rag if I think it's doing terrible journalism. Until I have different data, I don't think this is a violation of First Amendment rights.
In particular, check out Kennedy's discussion in Southworth of how the fee is extracted as a University rule with University authority making it mandatory on University students, and that viewing the expenditure of the fee as as a voluntary consumer decision ignores the governmental requirement that it be collected and spent.
Would the history of how certain fees are voted upon and collected make a difference in how the SC would view them?