The Student Press Law Center's (SPLC's) Adam Goldstein published a scathing, must-read assessment over at The Huffington Post of the Supreme Court's 5-4 decision upholding the University of California Hastings College of the Law's denial of official recognition to the Christian Legal Society (CLS) and affirming the constitutionality of Hastings' all-comers policy for student organizations. Goldstein stated that "the rationale of this opinion could end up doing more violence to student expression rights than any decision in the last 22 years."
Now, in a separate blog entry, SPLC Executive Director Frank LoMonte more directly examines the threat to SPLC's constituency: the student press. LoMonte envisions this scenario as the result of the decision:
The question left after Monday's decision is: Could a college refuse funding to a conservative or liberal student newspaper on the grounds of a "viewpoint neutral" rule that required all publications to present a representative cross-section of diverse student opinions? That the answer to that question is no longer unmistakably "no" illustrates why Christian Legal Society's reasoning is cause for concern.
What of this? What if, as LoMonte posits, this all-comers policy were applied to student newspapers, particularly those with partisan missions?
Student publications differ from other participatory groups in important respects. Many student groups have open meetings that anyone from the student body can attend if they want to learn about the group. (CLS's meetings were open to all students, regardless of belief.) Most student publications, however, have editorial boards, and many have an application process in which prospective writers are judged on the quality of their writing and—if applicable—whether or not they seem to be a good fit to serve a publication's stated mission, be it to advance conservative or liberal thought on campus or to write intelligently about the arts, sports, or finance. There is no "right" to write a column—rather, the right resides with the paper's editors to grant the space.
Let's imagine that another UC system school, UC Berkeley, adopted an all-comers policy similar to the one approved by the Court, and demanded that all student groups conform to this standard to maintain recognized status—now a conceivable scenario. What would this do to ideologically opposed student publications such as the conservative California Patriot and the progressive The Smart Ass (a publication of the Cal Berkeley Democrats)? What if each were now forced to "present a representative cross section of diverse student opinions," as LoMonte states? (Membership in the respective organizations is a requirement to write for the publications in this case, though it seems that basic membership is open to all.)
What we would see, most likely, is the dramatically decreased autonomy of the publications' editors to choose their content as they see fit. What if the California Patriot rejected a liberal columnist's submission, or even one from a conservative whose ideas were thought to be too radical for the publication's mission? In the pre-Martinez world, the Patriot, Smart Ass, and other publications could freely reject such unfitting submissions based on their respective viewpoints, in the interest of protecting the integrity of their missions.
In the post-Martinez world, editors suddenly are dramatically vulnerable to spurious charges of belief-based discrimination simply because they chose not to publish someone's work, and could find administrators butting into their editorial processes. Perhaps worst of all, publications may water down their content in an effort to appear more neutral, watering down their missions. If nothing else, answering such complaints will be a huge waste of their time, and a distraction from pursuing their stated objectives.
LoMonte is right to be concerned about such an outcome—Martinez has made it much more possible. It is an outcome not many proponents of the Court's decision have likely considered, but it is one that might have to be dealt with soon. It could be one of the many surprises awaiting the supporters of the Martinez decision, who will have to face the reality of reaping what the Court's opinion might have sown.
Read the full text of LoMonte's blog for more of his thoughts on Martinez, and keep reading the Torch this week for FIRE's ongoing commentary.