The following entry was written by FIRE summer intern Wei-wei Wang, a rising senior at New York University.
Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?
Volokh argues that the state may, without running afoul of the First Amendment, cancel an event in response to speech that advocates a particular outcome for that event. According to Volokh, the government may “frustrate the purpose” of an event because of someone’s speech, since the government’s conduct is not directed at silencing the speech itself. Volokh’s claim questions the July 13 decision in Husain v. Springer, in which the Court of Appeals for the Second Circuit held that student journalists’ free speech rights prohibited university administrators from canceling a student government election because a student paper published endorsements for specific candidates. Volokh writes, “What makes this a strange First Amendment case, of course, is that the newspaper wasn’t ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose—‘if you keep endorsing candidates, we’ll make sure that your endorsed candidates don’t get elected.’”
At the College of Staten Island (CSI), part of the City University of New York (CUNY) system, the student-run College Voice strategically published a special election issue of its newspaper two days before the voting period for student government elections started in Spring 1997. The College Voice was not the official student newspaper at CSI, but rather a left-leaning publication. The election issue included a headline that read, in bold letters, “VOTE STUDENT UNION!” (one of the competing parties in the election); an editorial with the same title, the platforms of several Student Union candidates and, on the back page of the paper, the Student Union’s twelve-point platform. As an editor of the paper admitted, “we felt that the timing a few days before the election would be the most opportune time to influence the election.” Additionally, several Student Union candidates were also editors and staff members of the College Voice.
On May 6, 1997, three days after the voting period ended, CSI President Marlene Springer declared the election “null and void” and scheduled a new election for the period from May 8 to May 16. President Springer called the College Voice’s election issue “a thinly veiled student activity fee funded piece of campaign literature for the Student Union slate.” As a result, she claimed that “the electoral process was compromised beyond its ability to be fair to all candidates.”
Angered, members of the College Voice took President Springer to court, alleging in a federal lawsuit that CSI administrators violated their First Amendment right to free speech. The district court judge found that the chill on expressive freedom is evident even when “[university] action was directed toward the nullification of the goal that the students espoused rather than at the vehicle, the newspaper, in which that goal was promoted.” Since administrators’ actions were “taken as a direct result of the views printed in a student newspaper,” appropriate scrutiny must apply.
Even when government constraints are well-intentioned, I believe that the chilling effect of speech can sometimes be so great as to translate otherwise benign conduct into de facto censorship. This effect can be especially devastating on college campuses, where limits on speech directly hinder students’ ability to engage in invigorating discourse on today’s most pertinent topics.
The “chilling effect” of President Springer’s actions was already apparent in Spring 1998, just a year after the incident. According to the Second Circuit’s opinion, candidates from the Progressive Student Alliance (PSA), many of whom shared the political ideology of the Student Union, feared that a College Voice endorsement would lead to disqualification. As a result, the College Voice kept its endorsements muted during the subsequent election.
The PSA’s apprehension comes as no surprise to me. Regardless of her motives for canceling the 1997 election, the message President Springer ultimately conveyed to students was an unambiguous refusal to tolerate the use of student fees to endorse specific candidates. But to the extent that countless student organizations indirectly benefit from some type of financial assistance, whether it be access to on-campus facilities or outright financial support, the task of distinguishing between school-sponsored endorsement and individual speech can often be quite cumbersome. Moreover, shouldn’t the journalists’ right to endorse certain candidates come hand-in-hand with their right to express a particular viewpoint? Since the College Voice was already known to have a political slant, it should have the right to selectively endorse those candidates whose platforms were consistent with its own ideology.
Even if Volokh is ultimately correct that President Springer’s actions were immune to First Amendment scrutiny because she did not target the student journalists’ speech itself, the intent—however benign—of an administrator’s policies must be scrupulously balanced against their tangible effects when the subject of regulation is something as delicate, yet consequential, as free speech rights. And the court seemed to understand this.