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Who’s protected by a free student press? Part I: The right to editorial independence.
Blake Aspen, president of the student senate at Wayne State College in Nebraska, made a splash a few weeks ago when he accused the Wayne Stater, the campus newspaper, of political bias. “I have possess[ion] of the Wayne Stater, WSC’s campus newspaper, refusing to publish conservative/right of center thoughts,” he tweeted on Oct. 6. Soon enough, Aspen’s accusation that the student newspaper did not welcome conservative voices had made local headlines.
Aspen followed his complaints with threats of a defamation lawsuit and an attempt to use his authority within WSC’s student senate to officially censure the paper. The paper, for its part, assured readers that it welcomes conservative viewpoints on staff and in submitted op-eds, pointing to a recent column celebrating the life of Rush Limbaugh and an article spotlighting Kristi Noem, the Republican governor of South Dakota.
But, for argument’s sake, let’s pretend for a moment Aspen’s criticisms held merit, and that the paper avoids printing conservative voices. What does that mean for Aspen and other conservatives on campus, and what does that mean for press freedom? Turns out, it’s a sticky issue.
Here’s the hitch: There is no general right to have one’s work published by a particular publication, including a student publication. While viewpoint diversity may be an important cultural aim, recognizing the editorial freedom of student publications is another vital — and, in many cases, legally required — aspect of preserving the culture of free speech on campus. Sometimes these two values come head-to-head, and untangling them isn’t always easy.
The principles of editorial freedom dictate that the expressive rights of a student publication should rest with the student editors of that publication and — ultimately — with its highest editor, usually the editor-in-chief or general manager.
At public institutions, this right to editorial freedom is guaranteed by the First Amendment — that is, the publication’s own First Amendment rights. At private institutions, this right is often guaranteed by institutional policy, either promising to preserve free expression for students generally, or promising to preserve editorial independence for student publications particularly. This means student editors have the right to set content priorities for their publications.
Some may be thinking, “But as student publications, aren’t student newspapers, radio stations, yearbooks, broadcast, and other media for the use of all students?”
Most student publications are editorially independent, meaning they are not simply an arm of the college or university and are not bound by the same restrictions regarding viewpoint neutrality.
Well, it doesn’t really work that way. Just like student organizations have an organizational right to free expression and free association, student publications are similarly free to determine their own editorial priorities, policies, and — ultimately — content. Sometimes, this might take the form of an editorial bent. For example, a publication might be known as conservative or pro-union or diversity-focused. This is the same freedom that protects a pro-choice campus group from having to host a pro-life speaker, or a Christian club from having to offer atheist perspectives at the close of its meetings.
This is especially true in the context of a newspaper, where the decision to appoint someone as editor presupposes that person will edit, and the definition of editing is to choose, arrange, and remove material. The decision to create a newspaper and appoint an editor means appointing someone to make the decisions necessary for a newspaper to function — including decisions about content.
Ultimately, this means most student publications are editorially independent, meaning they are not simply an arm of the college or university and are not bound by the same restrictions regarding viewpoint neutrality as are public institutions, such as a public college or university.
The aggrieved student who had an article rejected might now object: “But my newspaper takes funding from my public university! How can the newspaper use school funding but not be bound to the school’s obligations?”
When public institutions use student activity fees to recognize and fund student organizations, courts may apply the “forum doctrine” to assess what if any restrictions the government can put on the expressive rights of those organizations. Forum doctrine permits third parties -- such as student groups -- to direct the use of state resources independently. As one court observed, “The state is not necessarily the unrestrained master of what it creates and fosters.” (Private colleges and universities can achieve a similar end through contracts or institutional policies.)
So, when a student publication declines to publish an op-ed arguing against defunding the police because it “would cause a lot of backlash” — as happened last year at University of Wisconsin-Madison’s Badger-Herald — the publication’s editors are within their First Amendment rights to do so. This editorial decision does not violate the rights of the person who submitted the op-ed. (Later in this series, we’ll talk more about how these submitters can best deal with these kinds of denials.)
What about when an editor-in-chief is fired for expressing her views about mask mandates, as recently occurred at the University of Oklahoma’s O’Colly newspaper? To maintain the independence of the publication, the rights to hire and fire the lead editor of a student publication should rest with the other members of the editorial board or staff: Just as Congress may expel a member by a two-thirds vote, student publication boards may issue a vote of no confidence to remove their highest member. And, depending on policy, this usually can be done for any reason, even arguably unwise ones.
This is all to say, no one has a right to have their writings published in an independent student publication.
If governing bodies could bind the student press to adhere to a vision of journalism that aligns with prevailing values, the press couldn’t perform its watchdog function.
This certainly doesn’t mean that there aren’t ethical or moral arguments for why viewpoint diversity should be encouraged within student publications, as we’ll discuss in the next installment of this series. Those arguments can certainly be valid criticisms of the press, including the student press. But such arguments can also be weaponized to attempt to usurp the constitutionally-protected editorial autonomy of student publications. When implemented in this way, these ethical and moral criticisms can become tools of censorship themselves.
Freedom, including freedom of the press, means freedom to do things that are in tension with other values. That’s where the power to challenge the status quo comes from. If governing bodies could bind the student press to adhere to a vision of journalism that aligns with prevailing values, the press couldn’t perform its watchdog function.
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