Letter from FIRE to University of Memphis President Shirley C. Raines, August 24, 2012

By on August 24, 2012

August 24, 2012

President Shirley C. Raines
University of Memphis
Office of the President
341 Administration Building
Memphis, Tennessee 38152

Sent via U.S. Mail and Facsimile (901-678-5065)

Dear President Raines:

As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE; thefire.org) unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, free speech, legal equality, due process, the right of conscience and, as in this case, freedom of the press on America’s college campuses.

FIRE is deeply concerned about the threat to freedom of the press presented by the recent decision of the University of Memphis’ Student Activity Fee Allocation Committee (SAFAC) to reduce funding to The Daily Helmsman, the university’s student newspaper, in apparent retaliation against the newspaper’s content. By reducing the Helmsman‘s funding, SAFAC has brazenly violated the First Amendment rights of the newspaper. The University of Memphis (UM) must reject and reverse this result.

This is our understanding of the facts. Please inform us if you believe we are in error. SAFAC, which consists of student, faculty, and staff representatives, is authorized by the University of Memphis Operation Procedures to allocate portions of the mandatory student activity fee paid by UM students. Due to the power vested in it by the university as a public institution of higher learning, SAFAC is an agent of UM and is morally and legally bound by the United States Constitution, including the First Amendment.

For roughly the last decade, the Helmsman has consistently received allotments of $70,000 to $75,000 in annual funding through student activity fees. For the 2012-2013 academic year, the Helmsman requested $80,000 in funding from SAFAC. In a May 9, 2012, funding recommendation letter, Associate Vice President for Student Affairs and Dean of Students Stephen H. Petersen, who served as SAFAC’s chair, informed the Helmsman that it would be allocated $50,000 for the next year-a one-third decrease in its funding from the 2011-2012 year.

After receiving notification of the allocation, Helmsman Editor-in-Chief Chelsea Boozer and General Manager Candy Justice met with Petersen around June 5, 2012, to discuss the funding decrease. Boozer recorded this meeting, and has provided FIRE with a transcript of the discussion. On numerous occasions in the meeting, Petersen discusses concerns raised by SAFAC regarding the content and editorial decisions of the Helmsman and “whether the paper is really serving the students of the campus.” Petersen stated, for instance:

I can’t begin to tell you the examples that came up in that conversation about things that the paper did print that seem to have very little relevance or that seemed to touch very, very few students on the campus.

[...]

Probably the one that sticks out most in my mind is the Marxist student group, which is like four people or something.

[...]

[A]re you going to give the same amount of coverage to all 200 or 280 [student organizations]?

Petersen and SAFAC also questioned the Helmsman‘s decision not to run an article promoting an on-campus debate featuring former Senator Fred Thompson and former Governor Howard Dean:

There are those on the committee who are very confident that the Helmsman had information about the Political Perspectives, the Fred Thompson and Howard Dean several weeks in advance. But you didn’t run anything in advance of that event. You covered the event that night and it appeared whatever the next issue of the paper was.

[...]

They’re saying they don’t want stories the day of because if you don’t pick up the paper until, you stick it in that notebook and you don’t read it until you get home, and you say oh my god, I missed this, which happened two hours ago, all right.

Petersen also noted the animosity of some SAFAC members to the Helmsman:

There were some members of the committee, and now take [former Student Government Association (SGA) President] Tyler [DeWitt] and [former SGA Vice President] Rachael [Goodwin] out of the equation, because it was their proposal, but they were not the discussants in this. There were some members of that committee that voted zero funding for the Helmsman this year. Zero.

The SGA, per UM policy, holds two of the seven SAFAC seats, putting it in the unique position among student groups of being represented on the same committee to which it applies for funding.[1] DeWitt has been critical of the Helmsman, as well as open about the factors contributing to the decision to reduce its funding-including those based on its content. As The Commercial Appeal reported:

“We’re looking at content in the sense of, this fee is to be used for student activities. And the Helmsman is not promoting student activities,” said former SGA President Tyler DeWitt, who sat on the allocation committee. “We’re simply saying that some things should exist, and they’re not meeting the objectives of what the fee is for.”

These remarks are consistent with remarks DeWitt made to the Student Press Law Center:

“We sat down with them and asked, ‘Is the purpose of the newspaper to promote student activities and report on things going on school, or is it to serve as a training tool for journalism?” he said. “By what we could gather, the newspaper is more of a tool to help journalists prepare for their professional career. In the purview of what the student activity fee is meant to cover, we didn’t think the newspaper met the standards of what the committee required.”

Seemingly in accordance with DeWitt’s complaints about the paper’s content, the funding recommendation letter given to the Helmsman by SAFAC requested that the newspaper “develop a mission statement which clarifies/confirms the paper’s alignment with the intended purposes of the Student Activity Fee.”

Petersen and other UM officials have denied that the decrease in funding to the Helmsman was in any way related to displeasure with its content. However, the public statements criticizing the newspaper made by those charged with the task of approving its funding leaves the unmistakable impression of viewpoint-based discrimination against the paper-a serious violation of the Helmsman‘s First Amendment rights.

That the First Amendment is fully binding on public universities like the University of Memphis is settled law. See Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities”); Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’”).

Further, the Supreme Court has made clear that universities may not discriminate in the funding of student organizations through student activity fees on the basis of an organization’s viewpoint. Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217, 233 (2000) (“When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others.”); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 836 (1995) (“For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.”). SAFAC’s actions here smack of precisely such unconstitutional discrimination due to SAFAC’s dissatisfaction with the content of the Helmsman.

In Rosenberger and Southworth, the Court held that when a public university decides to use student fees to fund a multiplicity of independent student groups, as UM has done here, each student group retains its status as a private party expressing its personal viewpoint. Unlike an “official” university publication, student newspapers like The Daily Helmsman are independent organizations whose speech is fully protected by the First Amendment. Accordingly, the university and its agents cannot censor or punish such publications on the basis of content, even those which receive student fees, any more than the government can censor The New York Times. The Helmsman‘s funds cannot be withdrawn or diminished simply because SAFAC or the SGA may not find its content to their liking. Nor can rules be selectively, differentially, or unequally enforced in order to contrive a seemingly innocuous reason for punishing the newspaper for its protected speech.

UM’s students are more than capable of determining for themselves how well they are being served by the Helmsman without SAFAC’s second-guessing of its content. If students feel that they aren’t being served by the paper, they will stop reading it. If students stop reading it, revenue will dry up, and the paper will have to find ways to be more responsive to its readers, or else shut down. SAFAC’s financial punishment of the paper over its content accomplishes the opposite of its goal of making the newspaper better “serve” UM students. Indeed, implicitly conditioning the funding of the Helmsman on SAFAC’s and SGA’s satisfaction with its content will likely delegitimize it in the eyes of UM’s students. If its readers do not see the Helmsman as independent, it cannot possibly deliver the service it sets out to provide.

The University of Memphis must understand that it has a non-delegable duty to ensure that the First Amendment rights of its students are protected and that it is legally liable if these rights are not respected. FIRE is aware that UM has begun an investigation of the process by which the Helmsman‘s funding was dramatically reduced. We now urge the University of Memphis to promptly complete its investigation, restore the entire amount of funding apparently cut from its allocation for content-based reasons, and clarify that, under the First Amendment, The Daily Helmsman has a right to express its own viewpoint and exercise its own editorial judgments, free from institutional censorship.

FIRE hopes to solve this matter amicably and swiftly. We are, however, committed to using all of our resources to see this matter through to a just and moral conclusion. We request a response to this letter by September 14, 2012.

Sincerely,

Peter Bonilla

Associate Director, Individual Rights Defense Program

cc:
Stephen H. Petersen, Associate Vice President for Student Affairs and Dean of Students
David Cox, Executive Assistant to the President for Partnerships and Administration
Rosie Phillips Bingham, Vice President for Student Affairs
Chelsea Boozer, Editor-in-Chief, The Daily Helmsman
Candy Justice, General Manager, The Daily Helmsman

 



[1] FIRE notes that the SGA was nearly alone among student groups in receiving an increase in funding over its 2011-2012 allocation, receiving an increase of $58,866. SGA had also requested more than double its previous year’s allotment of $175,000, requesting $363,866 for the 2012-2013 year. SGA’s request for $188,866 in additional funding alone accounted for more than half of the total funds requested by 16 organizations above and beyond the $1.57 million in available funding.

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