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From AJR,   August/September 2005  issue

Paying the Piper   

When government funds the media, it can control the message.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

As debate continues over an alleged rightward tilt to the news, some have argued the cure for press bias is government subsidies to encourage development of minority and other "independent" media.

It may sound appealing. But there's an old saying: "He who pays the piper calls the tune." And in June, journalists got a couple of chilling reminders that government all too frequently succumbs to the temptation to try to control the message when it's paying the bills.

First there was the unseemly spectacle of politicians turning federal funding for the Corporation for Public Broadcasting into a political football. CPB Chairman Kenneth Tomlinson charged that public broadcasting engages in "liberal advocacy journalism," a rallying cry for conservatives who demanded greater "balance" in programming on public television and radio. When a House subcommittee voted to cut funding to CPB by 25 percent, an 11th-hour campaign by viewers and listeners persuaded the full House to restore it. But in the meantime, Tomlinson installed Patricia Harrison, a former co-chair of the Republican National Committee, as the new president of CPB, ensuring that the battle over content in public broadcasting and who controls it is far from over.

In the same week, a majority of the 7th U.S. Circuit Court of Appeals ruled that student newspapers at public universities may be censored by school administrators under certain conditions, reversing an earlier opinion by a three-judge panel. (See "First Amendment Watch," June/July 2003.) The appeals court concluded the 1988 Supreme Court decision Hazelwood School District vs. Kuhlmeier, which had been interpreted by two other circuits as applying only to elementary and secondary schools, could be used to regulate expressive activities those covered by the First Amendment's free expression clause at the collegiate level as well. Hazelwood upheld the authority of administrators to control the content of school-sponsored student newspapers in order to advance valid educational goals.

Student staffers of the Innovator at Governors State University in University Park, Illinois, had sued school officials after Patricia Carter, then dean of student affairs and services, told the printer not to publish the paper before submitting it for review. Administrators claimed the paper had published false and defamatory statements criticizing the school, and Carter contended that under Hazelwood, she had authority to censor the paper.

The 7th Circuit's majority opinion by Judge Frank Easterbrook didn't say that university officials have unlimited authority to control the content of student media. It didn't even say that Carter necessarily did the right thing, although it did hold that she was immune from suit because of the uncertainty of the law.

But it did say that if an extracurricular student newspaper at a university is "underwritten at public expense," it may be subject to "reasonable regulation even at the college level." And the administration can use the Hazelwood standard to decide whether it can be censored.

The first question to ask, the court said, is whether the subsidized paper was a "public forum" for expression. A university might publish an alumni magazine using student stringers but retaining control over content. That wouldn't be a public forum, and the university would be free to print only articles that expressed its official viewpoint.

In the Innovator's case, the court said, it appeared that Governors State's Student Communications Media Board probably had created a "designated public forum," "where the editors were empowered to make their own decisions." (The Innovator ceased to exist in 2000. The decision does not address the status of the new student newspaper.)

But for subsidized collegiate newspapers that are not designated public forums, school officials may censor in order to ensure "high standards for the student speech that is disseminated under [the school's] auspices" which could range from cleaning up grammatical errors to eliminating articles that take "any position other than neutrality on matters of political controversy."

Judge Terence Evans, who wrote the original panel opinion in favor of the Innovator, dissented, contending that the majority opinion "gives the green light to school administrators to restrict student speech in a manner inconsistent with the First Amendment." He claimed the majority had ignored important distinctions between the missions of colleges and secondary schools, as well as between university and high school students themselves. "College students voting-age citizens and potential future leaders should feel free to question, challenge, and criticize government action," Evans wrote.

Most journalists would agree that this should be true for everyone in the media. But what happens when the government subsidizes the press? As Judge Easterbrook wrote, "Freedom of speech does not imply that someone else must pay." The government has no obligation to support the media, but if it does, then those who choose to accept its money may find that the price is pretty high.

It's the loss of independence.