Eh? The government always gets to control the content of government publications.
The editors free speech should be protected. I guess I SHOULD have gone on to say that I don’t think this is a first Amendment issue. I usually don’t put my own opinions in an OP and I wasn’t very clear in this one, no doubt. Sorry for the confusion.
Which I felt pretty clearly stated my intent that this ISN’T a First Amendment issue…otherwise the editor would be protected fully from any kind of action (in a legal sense). Again, I apologize that my statements weren’t clear…I was trying not to channel the OP too much but leave open for discussion anyone who disagrees about this being or not being a First Amendment issue. I’m also writing this on a phone, which makes it a bit more difficult (as well as not giving me the vital spell checking tool I badly need).
Fair enough. Its not like anyone around here would be surprised that an OP written by me would be confusing…or not match my actual position.
-XT
De nada
It does if he is fired by action of a State University. The old Fourteenth Amendment, you know. 
This statemen is incorrect as a matter of law. The more correct statement is that, while the Fourteenth Amendment applies, the standard that will be used to judge violation of the “liberty” of the speaker (First Amendment incorporated concepts) will be different from that applied to, say, the legislature attempting to statutorily preempt certain types of speech. The cases you refer to later show this to be the case.
And lest anyone try to continue the concept that his “firing” as editor doesn’t have First Amendment implications, that also is wrong. Imposing any sanction on the editor for what he published would be a clear attempt to abridge his freedom of speech; the only issue becomes whether or not the state in this case is able to do so without violating the Fourteenth Amendment’s “due process” clause.
So if I get a job at the local state university, I can send out emails to the entire university mailing list, proclaiming that the entire student population is going to hell because of their fornification? The state would be unable to fire me, even though I used univerisity equipment to do this, because it would be infringing on my “liberty”?
It may have First Amendment implications in the sense that a lawyer would be able to sue the university, but it doesn’t have what I view as credible First Amendment implications because of the simple fact that it is well established and understood that universities can enforce student conduct policies even when they conflict with the First Amendment. For example students who put up inappropriate posters on their dorm room doors can be punished by the university. For that matter, so can tenants in a private residential complex. When it is clear that a person’s actions have violated institutional rules which have never been found unconstitutional it’s a bit silly to act as though there is a serious chance of this editor being saved based on some legal action asserting his First Amendment rights are being abridged.
When people voluntarily enter into agreements (like Student Conduct Policies) then they can be sanctioned even when such sanctioning may abridge their personal freedoms. For example if you live under the regime of a HOA your freedom of expression on your own property can be severely limited by HOA regulations prohibiting certain types of signage and public displays.
Student Conduct Policies also tend to guarantee a form of due process compliant with the law, FWIW.
Yes; in fact, the state would be constitutionally required to promote you and guarantee you a pension if this were to occur.
Or… maybe… just maybe… DSYoung’s post said:
He correctly points out how the issue would be analyzed; he does not predict a particular result for a particular set of facts. Nor does your proposed hypothetical analogize well to the cases discussed above.
So do you think, in general, that if someone is fired for expressing an opinion it will have no effect on others who might wish to express a constitutionally protected opinion? In China, remember, most censorship is self-censorship, done to keep from running afoul of the government after something is published.
First of all, most of your examples are totally inapposite (you DO understand the part about the Fourteenth Amendment not applying to private action, right?) because the actors are not state actors. Thus, for example, if the editor in this case were the editor of the student newspaper for the University of Rochester (a private university), they could tar and feather him for NO VALID REASON AT ALL, and he would have no constitutional claim. In such a case, Sua Sponte’s assertion about there being no First Amendment issue (sloppy shorthand, by the way, for talking about a due process issue) would be correct.
But the university here is a state school. It is obligated to utilize due process when depriving someone of “liberty.” Liberty has been defined by the Supreme Court as including the right to speak freely, without improper infringement by the government. Therefor, anytime the government infringes upon one’s ability to say what one wants, the issue requires analysis utilizing the law developed regarding the Fourteenth Amendment’s “due process” clause. Generally speaking (the exceptions aren’t worth noting here), the analysis will track the same analysis that would be used if the federal government were the actor doing the infringing. But this is quite different from the case of the private university, as noted.
Why is this sort of pedantic discussion needed? Because the state actor cannot, even under the weakest scrutiny, act without SOME rational basis for proceeding. True, the Court rarely overturns state action when it applies a rational basis standard. But it still has to consider the situation. Does it have facts involved that require some other standard to be applied? If not, is there a rational basis? Or is the state actor acting irrationally?
Now, you may say, “So what? They are going to dismiss it regardless, so he doesn’t have a First Amendment claim.” But I will point out that, should the situation be one where the Court was applying a higher scrutiny, but there was precedent firmly on point that established that the action was correct even under the higher scrutiny, you would hardly assert that the First Amendment didn’t apply. Rather, you would correctly note that the application of free speech principles did not result in a determination that due process was not followed. And whenever we use convenient shorthand to describe more complex legal reasoning, we run two risks: confusion on the part of the general masses (who won’t understand that we are using shorthand), and potential future confusion on the part of the courts (see, for example, the mess that has been made of Fourth Amendment jurisprudence as a result of poorly worded shortcuts dealing with searches and seizures).
Finally, I want to deal with your last statement:
This is a red herring. This deals with procedural due process, which is a whole different critter. No one is attacking the procedure being used to address the controversy. Substantive due process is what is involved here (I know, a dirty phrase, but still alive in this day of hightened scrutiny tests).
I left this alone previously, choosing to deal with it more generically, but in light of your more recent post, it needs to be revisited.
You need to learn the law, if you intend to make statements like this. Your assertion about there being no censorship, therefor no free speech issue is completely wrong. That’s pretty basic First Amendment jurisprudence, and I suggest learning something about it before you make assertions like that. Secondly, your reference to the *New York Times * is inapposite, because the Times is a private actor, and can do whatever it wants without worrying about either the First or Fourteenth Amendments. But states cannot fire without worrying about Fourteenth Amendment due process issues (and I’m not talking simply procedural ones, either). Thus, if the state were to fire someone for being Baptist, they would have to withstand judicial scrutiny of the action under the Fourteenth Amendment, for having deprived someone of the “liberty” of free exercise of religion. The Times, by comparison, can fire you because you are Baptist anytime they want, without federal constitutional issues being involved.
The reference to the Times is also ironic, given that Sullivan v. The New York Times is one of the more well known First Amendment cases, and, of course, libel suits involve not censorship, but post-publishing punishment.
Mea culpa. Yes, I was being sloppy, trying to cursorily dispose of an issue.
Sua
In what portion of my post did I make the claim that the student could be fired with “no worrying about the Fourteenth Amendment due process issues”, I’m genuinely curious as to what lead you to think I was saying that when I in fact, never said it.
I simply made the statement:
My assertion is most valid, the newspaper, whether it be a private one or a publicly owned one, can fire people for incompetence. My impression is that the Colorado State University Rocky Mountain Collegian is a State actor (although some student newspapers at some universities are arguably private actors.)
You’re correct that this means, as a State actor, they cannot fire him for no reason whatsoever. I’ve never stated that this paper can fire him for “whatever reason they wish.” I’ve furthermore never made the claim that they can fire him without having to worry about any possible legal issues. In fact, it is my opinion that the persons who are on the Board of Student Communications (apparently the body with the authority to fire the editor-in-chief) are almost certainly aware of the legal issues, as most major universities have a multitude of lawyers who help them craft their policies and implement decisions, ever mindful of the fact that an angry student suing his school is by no means a rare occurrence.
As a result of the editor-in-chief’s actions, the paper lost $30,000 in revenue. In addition, since the student paper receives no funding from the school and is entirely dependent on the advertising revenue to survive, it had to cut the wages of all of its student employees by 10%. It’s my contention that the BoSC can remove the editor-in-chief because his actions harmed the paper and everyone working at the paper.
If you behave incompetently you can lose your job, whether your employer is the New York Times or the Federal government, or anything in between. Most government jobs have a fairly structured process for dismissal when someone has acted incompetently, but ultimately virtually any employer in the United States, be they private or public, can fire individuals for incompetence. It is one of the basic truths, that were it not so, would essentially cause our government to lose its ability to function.
Your interpretation of my assertion is flawed. I said there was no censorship but never said there was no free speech issue.
The post of mine you were quoting said this:
I view censorship as the deletion or restriction of speech. During World War II there was even an Office of Censorship, created by Executive Order. Said office analyzed incoming communication to the United States and would remove (or censor) parts of it that were possibly harmful to the national security of the United States.
If I publish something in a newspaper, and am then arrested and imprisoned, the original speech was not censored. Now, since I am being kept in prison to prevent me from being able to express my ideas further, after that point, I am being censored. But the original text itself was not censored because it went out to the public without being altered or deleted.
Likewise if I am a radio broadcaster and am fined for something I say, then I believe that my freedom of speech is being infringed upon. Whether or not in a manner that is allowable by the constitution would have to be decided using our legal system; but my speech would not be censored, because no one was modifying my speech prior to its becoming public. That is what censors do, they remove or alter speech before it reaches the public.
When the U.S. government halted publication (at least temporarily) in the case of the newspaper The Progressive, that was an act of censorship; but if they had tried to punish the paper after publication, that would not have been censorship–even if said action violated the first amendment, it wouldn’t be censorship. It would be unconstitutional and the government would be acting improperly, but not all infringements on free speech are censorship. Maybe you define censorship differently, but I have yet to find any authoritative definition of exactly what censorship is and is not. And since people who actually work as “censors” are people who alter forms of speech or expression prior to them going public, I view censorship as a pre-publication form of restriction on the freedom of speech, not a post-publication one.
No one said you were considering censorship a post-publication form of restriction on free speech. But you appeared to be asserting that the First Amendment does not preclude post-statement punishment related to content. This is clear from your assertion that there was no pre-publication censorship, followed by your assertion that the post-publication effort to punish him for what he printed isn’t a First Amendment issue (shorthand, ugh). That is wrong. And, that is what we have here.
You assert that he can be fired for incompetence. You fail to comprehend: not necessarily if by “incompetence” you mean “offering an opinion that is offensive to the university that controls the paper in question.” In that case, they must undergo some scrutiny to determine if they are, by asserting “incompetence” and terminating employment actually violating due process rights on the part of the employee. Those due process rights are the right to “liberty,” specifically, the right to speak freely without infringement by the government (even if in the form of dismissal for “incompetence” after the fact).
Please note that, at no time have I stated what I think the outcome of the situation should be. What I am very strenuously pointing out is that this IS a freedom of speech case, and subject to freedom of speech scrutiny at some level. I am strenuously pointing this out because this is the second time in a week someone here on this Board has advanced the incorrect notion that state actors, when acting as employers, get to act as any other employer does with regard to their employees, which patently is not true.
A quick follow up article from CNN for anyone still interested:
The last quote pretty much is in line with my own thoughts on this. I think that the editor should be able to say whatever he likes (his freedom of speech rights) but that shouldn’t shield him from the consequences of his actions. He cost his paper $50k according to the article. There are consequences for that kind of action.
-XT
The Republican students have a right to petition for grievance. The School had not even expressed any particular interest in the article, so far as I have heard. But, if the students want a newspaper outside of the control of the University, they have the right to produce their own paper. If there are not enough paid subscribers to support the F**k Bush News, then it falls by the wayside.
Student Newspapers, like Student Governments are theoretically pedagogic instruments and are entirely under control of the educational institution which sponsors them, even if the actual cost is provided elsewhere. Ethically, the school should consider including appropriate lessons on what is, and what is not protected speech under the First Amendment. Firing an editor for editorial choices is perhaps poor educational method, but it isn’t illegal. Firing an editor for gratuitously using the paper for his own political ends seems to me to be fairly good educational methodology. Fuck Bush may be a sentiment I agree with, but it hardly qualifies as journalism.
Tris
“Appeared to be asserting”, that was not what I was asserting, whatever it appeared to you. In the future I’d prefer that we stick to what I’ve actually stated.
I’ve said nothing to indicate I fail to comprehend this whatsoever. If the school was firing him for “incompetence” which was really just a pretext to their real motives, obviously they would be going under scrutiny and things could possibly turn out badly for them. The fact that I brought up lost ad revenue and forced reduction of student wages because of the editor’s actions (as well as the more difficult to quantify loss of prestige/credibility) shows I was talking about the university firing him for genuine incompetence. I fully agree if they fire him because of what he said as opposed to the negative effects his actions had on the paper, the university is in hot water–even if they put up the pretext of firing him for incompetence.
(Another legitimate point to the incompetence claim is the fact that he egregiously threw in low-brow language concerning the President in an article which had next to nothing to do with the article itself. I genuinely doubt that the Rocky Mountain Collegian wants to present this image to the outside world.)
However I genuinely believe he can be legitimately fired for incompetence and that appeared to me to be the issue. I can’t see into the minds of the university, and at the time of my posting there was a single news article (linked to in this thread) available on the matter, which was not entirely conclusive concerning the university’s motives.
Obviously since incompetence can be used as a pretext for firing, saying you are firing someone for incompetence will bring scrutiny regardless of the true motives–also something I did not deny. But just because an issue is scrutinized does not mean anything one way or another. If he’s being legitimately fired for incompetence then I do not believe there is any First Amendment issues at hand (even if there is scrutiny to see if the university is violating the first amendment–just because there is scrutiny to me, doesn’t mean there’s actual First Amendment concerns.) Whether or not there are First Amendment concerns is also a separate issue from whether or not there are free speech concerns. In any case, whatever happens, there are free speech issues at play. However “free speech issues” is not synonymous with “First Amendment” issues.
I’ve never stated that this had nothing to do with freedom of speech, only that I do not believe there are any First Amendment implications–what I mean by this is I do not believe the school is doing anything that violates the First Amendment (if they fire him for incompetence); whether or not what they are doing tramples on free speech is a slightly separate issue, as you can restrict free speech without violating the First Amendment. When I say I don’t believe it has First Amendment implications I also don’t mean that it isn’t subject to any scrutiny to see if it does in fact violate the First Amendment rights of the student.
Perhaps you view anything which can be scrutinized to determine whether or not it violates the First Amendment as “having First Amendment implications” that’s not how I particularly choose to use the term “First Amendment implications.” When I said in an earlier post that, “If the editor is fired his freedom of speech is not being infringed whatsoever because he is not the publisher and he isn’t being prohibited from publishing “Fuck Bush” he’s just being prohibited by the publisher from working at their paper for doing something objectionable.” I think it is clear by my usage what I meant. I did not view this as a firing over the student exercising his right to say “F*CK BUSH” or anything else, but as a firing over the student saying something inappropriate for a student newspaper, something that cost said newspaper ad revenue and made him a less than satisfactory editor-in-chief.
I am glad that you are strenuously working towards clearing up ignorance on this point, however you should exercise restraint and only do so when it is necessary. Since I never made the claim that state actors get to behave as any other employ does in regard to their employees, I suggest you route further protestations about people making such claims towards those who have actually made them.
Former newspaper editor and adjunct instructor (formerly) of journalism logging on here.
**timndebb ** and **Martin Hyde ** have both covered the ground pretty well. Yes, school-owned newspapers do answer to the school that owns them, just as any newspaper answers to its ownership. And no, it’s not a real First Amendment issue, although any beseiged editor can reasonably be expected to scurry for the shade of the First Amendment when coming under fire for poor judgement. And if the ownership of the CSU paper wants to tell the campus Republicans to step off, said ownership (I believe in this case it’s a publications board) can also argue First Amendment.
Even if the pubs board fires McSwane for poor judgement (a lot of my colleagues have been kicked to the curb over the years for precisely that error) it will be castigated for “censorship,” regardless of the fact that censorship can only happen prior to publication, which is why it’s formally called prior restraint. And only a government entity that doesn’t own the publication it is censoring can be charged with prior restraint. That’s why command information newspapers like post papers and Stars & Stripes can be legally muzzled by DoD (but fortunately aren’t because that wing of the Pentagon has a perverse desire to retain credibility!) Our local junior college is having a similar dustup over official prevarication concerning some recent administrative decisions. The administration has every right to muzzle its own newspaper (although the journalism professor is trying to persuade the administration that it’s a poor PR move.)
I think it’s interesting that McSwane has retained the same lawyer who is representing Ward Churchill in his quixotic lawsuit against CU. The guy must have a real penchant for lost causes.