Student Press Law Center: Columbia Missourian Conflict of Interest Policy Violates First Amendment
The Missouri School of Journalism’s news 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 Amendment.
Wait… come again? Let’s Tarantino this sucker and take you to the beginning.
Last fall, J-School Buzz announced it was hiring new editors, which were named in December and got to work immediately. But we hit a snag a few weeks ago, when it came to our attention our new editor-in-chief could not work for JSB, because she was a Missourian staffer. As a result, she was forced to resign as JSB’s editor-in-chief.
That post quickly caught the Student Press Law Center’s attention, which published a blog post on its website saying the Missourian‘s conflict of interest policies violate the First Amendment.
As the Columbia Missourian‘s Editor-in-Chief, Tom Warhover, told me during a phone interview, “The SPLC’s claim certainly took me by surprise. The Columbia Missourian has been supporting the First Amendment for the last 103 years.”
Let’s dissect the SPLC’s argument saying that the Missourian has violated the First Amendment, perhaps the most serious accusation it could level against a news organization.
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.
Warhover’s central argument during our interview hit on this point. The Columbia Missourian is unlike other J-School newspapers in that the publication’s primary audience is not the student body, but rather the unaffiliated townspeople. It’s a professional paper, even though the reporters make no money, the reporters are students and the editors are J-School professors.
“The Missouri School of Journalism is based on students working as professionals,” Warhover said. And he’s right! The University of Missouri is different from other journalism schools because students in the Mizzou J-School’s affiliated newsrooms are supposed to act as if they are paid for the job (What?!) as professionals.
These conflict-of-interest policies are standard fare in the professional news industry, and as Warhover explained to me, “we based our newsroom standards off professional ones because we are a professional newspaper.”
But as the SPLC argues, expression of free speech can not be inhibited by a code of ethics, even the sacred Journalist’s Creed.
The SPLC’s Adam Goldstein, the man behind this post, also added on his post in the comments:
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.
I didn’t press Warhover on this point, but he could have argued that the Missourian has no single “lab.” As soon as news breaks, Mizzou J-Schoolers are back in the lab making the phone calls and getting the story.
The SPLC’s argument focuses on that (brief) period of time between stories, when a Missouri J-Schooler is going about the rest of his or her life. During that time, it is a J-Schooler’s First Amendment right to say whatever they like wherever they like, according to the SPLC.
The SPLC also argued that any conflict-of-interest policy at the Missourian would be ridiculous because conflicts of interest are entirely unavoidable in that newsroom:
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.”
The idea that conflicts of interest in a town like Columbia, Missouri could ever be adhered to strictly is a point that College Media Matters hit on as well.
Conflicts of interest are often unavoidable in collegemediatopia. Some of the classics: the student working in the school’s PR office while wanting to report for the newspaper; the student joining a frat while wanting to write about an event that involves Greek organizations; the history major who finds herself editing a story involving a dust-up between history profs and the administration; and the student keeping an indy Tumblr blog while writing for the school magazine on similar issues.
Each potential conflict must be addressed on its merits. And while most policies and idealists have their hearts in the right place, the truth is always murkier and in need of wiggle room. Teeghman is correct in the overall implication that independent student media tend to get short shrift in conflict-of-interest fights when pitted against long-established, school-affiliated behemoths. But in this instance, I don’t personally see any Orwellian plot to keep J-School Buzz down.
We don’t see any Orwellian plot either. In fact, to be honest, if we had known Cohen was going to be on the Missourian‘s staff as well as editing JSB, we would have asked her to choose between them. Editing JSB is a full-time commitment, and it often involves pissing off people in the Missouri School of Journalism, including the Missourian.
The problem with the Missourian‘s conflict-of-interest policy is more about the fact that you can not contribute to other newsrooms in any capacity. A lot of content posted on this site has come from contributors who only published once or twice. Under the Missourian‘s COI policies, contributors are not allowed to post even once.
It would make more sense for the Missourian and the other newsrooms affiliated with Mizzou’s J-School to have a policy that allows J-Schoolers to contribute to other news organizations, but not allow them to be in the leadership of another publication.
That sort of policy would strike a reasonable balance between the need for preserving J-Schoolers’ free speech rights outside the newsroom, and protecting the integrity of the institution. Plus, it would allow for J-Schoolers to gain a wide variety of skills and learn to deal with different types of journalists.
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I’ve struggled with whether to weigh in publicly on this,
but I think we’re at the point where my perspective from the middle of two
universes might be helpful.
By way of introduction, I went to grad school at Mizzou,
earned my degree in 2010 and promptly moved to D.C. where I’ve worked ever
since at the Student Press Law Center. We’re a small but proud nonprofit,
serving as the nation’s primary source of free legal help for high school and
college journalists.
A couple of disclaimers: First, I don’t claim to speak for
anyone but myself here. I also don’t claim to be “objective” about this issue,
however you want to define the term. Second, I never worked at the Missourian – or any of the school’s faculty-led media outlets – during my time at the J-school. I studied what I’m
most passionate about – First Amendment issues and media law. Once upon a time,
in fact, I was a Comm Law TA (yeah, that guy). I’m not an attorney and make no claim to be one. Finally, my thoughts are based on views about student media rights developed before I ever stepped foot on the Missouri campus, and beliefs about the J-school’s operations and culture
during my time there.
If there’s one thing you can say about the Missouri School
of Journalism it’s that they’re a proud bunch. Proud of their stories, proud of
their purpose and just plain proud to be at the best damn journalism school in
America. It’s that sense of pride – bordering on arrogance at times – that
probably contributes to the prickly reception J-School Buzz continues to receive.
It’s also probably something that colors the reaction to a pretty harsh
criticism about the way the school operates.
To the extent that criticism is seen as disloyal, I accept
full blame.
I think it’s important to remember what we’re debating here.
This is not about whether conflict policies are journalistically good or bad.
You can make legitimate arguments either way. It’s also not about whether such
policies are common in the profession –
I think we can all agree that they are. What we’re talking about is how those
policies interact with the First Amendment in the unique situation that is the
Missouri School of Journalism.
There is, to my knowledge, no other school in America with a
collection of faculty-run news outlets that serve as the core of the
curriculum. That’s a great talking point for recruiters, but it also means
there’s no legal analogy to pull from.
This isn’t a student newspaper (faculty make content
decisions), and so the body of law about the rights of student journalists
doesn’t exactly fit. It’s also not a “professional” newspaper because it’s a
core academic component at a public university and it’s staffed by public
employees.
The critical issue here is one of “state action.” If the Missourian is a state actor, it’s
limited by the constitution in the same way the university is. Certainly a math
professor could not, as a condition of you passing his class, require you to be
silent about your political views – particularly outside of class. On the other
hand, if the newspaper is not a state actor, it doesn’t have to abide by the
First Amendment and there’s nothing to talk about.
There’s also a host of other complications that come with
being classified as a state actor: How does the state’s public records law
apply? What about disclosing information about students and the impact of
federal student privacy law? Who picks up the bill in the event of a lawsuit?
It seems that the Missourian
folks have been convinced (or perhaps convinced themselves) that this whole issue
was taken care of by incorporating the newspaper as a separate nonprofit
organization. That’s all well and good but, as Adam rightly pointed out, that
doesn’t end the conversation. This is a corporation that’s heavily subsidized
(to the tune of millions of dollars over time) by a public university. Its
editors are all university employees with university salaries. The dean of the
journalism school is described as its “publisher.” The remainder staff is made
up of university students who work countless hours, most of them for no
compensation other than university course credit. Working shifts for the
publication (or one of its sister faculty-run media outlets) is essentially a
condition for receiving a journalism degree. It has, essentially, its own
dedicated building on campus.
These are important factors – ones that can’t be overridden by
a paperwork maneuver. A separate incorporation is a not a
get-out-of-government-free card.
So what does this all mean? Well I’ll lay it out there as
simply as I can:
- I think it means the conflicts policy is
unconstitutional.
- I think it means the ban on participating in
political campaigns is unconstitutional.
- I think it means the social media restrictions
are unconstitutional.
- I think it means any prohibition on what
students say or write outside of class assignments is presumptively
unconstitutional and unenforceable.
Take a breath. Absorb that for a second. Pound your fists if
you need to.
Again, this is not about whether any of these things are
journalistically good or bad. In fact, I think some of them are fine, sound,
common policies from an ethical standpoint. But this is not about what is
journalistically right. This is about what is legally acceptable. And if the
University of Missouri wants to have a faculty-run newspaper staffed by students,
it has to accept the baggage that comes along with it.
Many of you may be thinking to yourselves that most student
newspapers have these kinds of policies. You’re probably right. The difference,
however, is that those policies are enforced by students. Students are
generally not state actors – they don’t get paid by the university and they
don’t make decisions on behalf of the university.
Faculty members do. No matter how much we wish we could have
our cake and eat it too, the law has to work this way. For it to do otherwise
would put vital constitutional rights in jeopardy – and that, I assure you, is far
more dangerous than undergrads with side jobs.
To be clear, no one at the Missourian or the J-school had any devious intentions when they
came up with these policies. They weren’t out looking to step on anyone’s
rights. I think they simply see themselves as folks who are trying to run a
newspaper the most professional and ethical way they know how. There’s zero
shame – or blame – in that.
The short-term solution is a relatively simple one: Carry
on. Hold your budget meetings. Assign your stories. Do news the way you’ve
always done it. But the next time you find a student writer working for another
outlet, let it go. When you see a reporter at a political rally, just make sure
they’re on another beat. When you read a student journalist’s criticism on
Twitter, close your browser.
I appreciate that’s a significant departure from the way
things have been done. In the grand scheme of things, though, it’s not a hard
adjustment to make. And I’d rather see it made now than down the road when some
future aggrieved student forces the issue.
No hard feelings and no sugarcoating. Just some thoughts
from a free speech guy who left his heart in CoMo.