We already told you about how JSB’s last editor-in-chief had to resign her position at J-School Buzz thanks to the Columbia Missourian‘s antiquated conflict of interest policy. Then the Student Press Law Center looked into the matter and found that the Missourian‘s conflicts of interest policy violates the First Amendment.
But the story did not end there! After the SPLC encountered a very hostile reaction to its first post on the issue, the SPLC’s Adam Goldstein did more research into the Columbia Missourian‘s legal argument for the policy. He now says the Missourian‘s arguments are bunk and its conflicts policy is “unconstitutional.”
You can read Goldstein’s entire argument on the SPLC’s website, but we will try to dissect the legal arguments as best we can.
Before Goldstein explains why the Missourian‘s policy is unconstitutional, he does mention that the reaction to his original post has been extremely cold.
As he writes, “Some of (the criticism) 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.”
Poor Goldstein. He had no idea what he was getting into when he criticized anything that happens in the Missouri School of Journalism. We hate to say it, but Mizzou is the Texas A&M of journalism schools: too damn proud for its own good and reflexively defensive to any critique you give it, even (especially) when it is for the institution’s own good.
We sympathize with Goldstein. As the J-School’s loudest critic and overall biggest pain in the ass, we know the Mizzou J-School’s ugly defensive side. But the Missouri School of Journalism also has good stuff, too. Like entrepreneurial freshmen, student-driven investigative projects and brilliant seniors.
But let’s get back to Goldstein’s legal argument. He writes that the Missourian‘s editor-in-chief Tom Warhover and legal counsel Sandy Davidson have offered two conflicting arguments for why the Missourian‘s policy is legal.
In a nutshell, Warhover says the policy is legal because the Missourian is incorporated as a private non-profit company, and so any conflict of interest policy is not government censorship.
Davidson, however, told Convergence Junior Samantha Sunne the Missourian‘s policy is legal thanks to the Supreme Court decision Garcetti v. Ceballos. That decision, according to the SPLC’s Goldstein, ”Applies to speech of employees and agents of the government.” That would mean Mizzou journalism students in the Columbia Missourian newsroom would actually be considered government contractors.
The Student Press Law Center says neither argument holds water, making the whole conflict of interest policy unconstitutional.
Here’s how Goldstein breaks down the first argument, Davidson’s claim that the Missourian can restrict student speech because it is a government entity:
Garcetti is a Supreme Court case that limits the free speech of government employees when they are speaking as part of their job…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.
That’s pretty straightforward. On its face, it is ridiculous to suggest Missourian employees are government employees in any capacity. A court decision over a situation involving government employees would not apply to the Columbia Missourian newsroom.
But even if you somehow thought Missourian reporters could actually be considered government employees, the Garcetti case does not even allow for the sort of censorship the Missourian imposes on every student journalist.
So, what’s the Missourian‘s other argument?
Warhover says that because the Missourian is a private non-profit company, they can restrict any speech they like. Goldstein writes:
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.
Okay, the Missourian Publishing Association, Inc. is clearly a shell corporation. And?
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.
That means the MPA is completely, 100 percent dependent on the University of Missouri (a government entity) to exist. If it were not for the funds and resources of the public university, there is no way MPA could possibly exist. MPA sure doesn’t sound like a genuinely independent company that can operate by its own rules and policies.
Goldstein brings us back to the larger point, his final legal karate chop:
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.
This leads us to the inevitable question: Will the Columbia Missourian give in to public pressure from the Student Press Law Center and Poynter to change this policy, or will it continue to stonewall until someone takes the Missourian to court?
It’s your move, Missourian.