Resolution violates law, places USG on shaky legal ground

The Undergraduate Student Government is contemplating a resolution that would subject the reporting that takes place at The BG News to greater oversight, and in doing so its actions would invite legal challenges for the University and could create a chilling effect on student media and other University organizations.

USG has suggested in its resolution that some form of oversight be imposed on The BG News because its reporting has been flawed, inaccurate, misspelled and not always representative of views of students who have complained to student government.

While some of these claims are indeed causes for concern, they are not legal grounds by which a university can impose restrictions on the press. The case law precedent that determines what a publicly funded university may or may not do to restrict student media is based on the 1969 Supreme Court ruling known as Tinker v. DeMoines. In Tinker, the Court established a baseline legal test saying a university may not limit free expression unless the content at hand poses a “material” and “substantial” disruption to the school.

None of the examples USG provides meet this legal rationale for infringing on rights of student reporters to freely publish as they see fit. At best, the concerns articulated in the resolution fall into the category of hearsay or unconfirmed claims on the part of various student and University departments. Basing any governing policy on such an arbitrary and capricious rationale would fail constitutional muster and would likely do nothing more than cost the University thousands of dollars in legal challenges.

The resolution also raised more serious allegations, suggesting inaccurate reporting at The BG News has limited attendance at games, curbed support for student athletes and degraded sororities. USG also charged that the paper has been negligent in its reporting practices.

When it comes to defamation claims such as these, the standard of care by which a court assesses the actions of any news organization is called an actual malice test. Simply stated, actual malice claims must show that the reporting organization was intentional in its inaccurate reporting and that the reporting led to actual damage to the organization at hand.

In other words, claiming feelings were hurt or student organizations were unfairly represented is not enough in the eyes of a court to limit a student paper’s constitutional rights.

The facts are that most court cases have affirmed that student media have the right to print what it wants to print no matter how bad it is or how grammatically incorrect or biased it might be.

While there is a code of ethics we encourage all journalists to abide by, the reality is that no constitutional mandate requires journalists do “good” reporting. And, any arm of a publicly funded university that seeks to restrict student-run media on such grounds would find itself in an embarrassing situation when floods of legal scholars and local media begin to scrutinize their actions for what is obviously a clear disregard for student rights.

In Kincaid v. Gibson, the court noted that the university is the “quintessential” marketplace of ideas … a special place for purposes of First Amendment jurisprudence. The justices ruled in that case that, “The danger of chilling . . . individual thought and expression . . . is especially real in the university setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.”

Before USG makes a final decision, it shouldn’t take my word for it. Instead, it would do well to review past legal precedent on attempts to limit student-run media and see for itself the tenuous path on which it treads.

But more importantly, it might consider what its actions say about the level of tolerance for differing points of view on campus.

Perhaps, Supreme Court Justice Brennan said it best, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

I would hope University students might consider how the unintended consequences of such policies might affect their own speech or their own organizations. The fact is that if USG is so flippant with the constitutional rights of student run media, then who knows which group might just be next.

Respond to Michael Horning,

assistant professor of Journalism & BGSU Society of Professional Journalists adviser,

at [email protected]