Perspectives: Another anniversary: Free press wins at ‘U’

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“[A] government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Thomas Jefferson, before his presidency (1787)

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“[T]he man who never looks [at] a newspaper is better informed than he who reads them … whose mind is filled with falsehoods and errors.”

Thomas Jefferson, after his presidency

Another 40th anniversary of a landmark legal case from Minnesota occurred this week:  the decision of the 8th U.S. Circuit Court of Appeals upholding the freedom of expression right of the student newspaper at the University of Minnesota.

It was four decades ago, this Wednesday, Oct. 11, 1983, to be precise, that the appellate court unanimously reversed a decision of the U.S. District Court in St. Paul, ruling that the First Amendment rights of the Minnesota Daily, the award-winning student publication at the Twin Cities campus of the university was infringed by a decision by the Board of Regents stripping of some of its financial base in response to publication of an issue that offended many Minnesotans, including university administrators.

The case, Stanley v. Magrath, 719 F.3d 279 (8th Cir. 1983), joins a pair of landmark Minnesota cases marking their ruby anniversary this year, both recalled in this column earlier this year.  E.g., Hubbard v. United Press International, 330 N.W.2d 428 (Minn. 1983) (intentional infliction of emotional distress) and Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983) (employment handbook).

Here’s the Stanley saga.

Pupils protest

The roots of the Stanley case go back to the strife over the Vietnam War in the late 1960s. In Tinker v. Des Moines Ind. Community Sch. District, 393 U.S. 503 (1969), the Supreme Court upheld the right of high school students to wear black arm bands in school objecting to the War.

Because the donning of the protest garb did not “materially and substantially” interfere with or disrupt academic activities, the justices granted First Amendment protection to the protesting pupils. The ruling used the evocative phrase that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

Tinker rang the bell for expanded freedom of expression rights in the academic world, although it was later diluted by other high court rulings in favor of school authorities from  a more constructive composition of jurists on that court and other lower federal and state  tribunals.

‘Finals’ furor

But the Tinker admonition  against shedding constitutional rights was revisited when the Daily and its editors were taken to the proverbial woodshed a decade later due to the paper’s “Finals Week” edition at the end of the 1978-1979 school year.

The case arose due to the attempt by the paper to mimic the then-popular “National Enquirer” supermarket tabloid with a provocative content.  The paper’s ill-fated effort included some scatologic  terminology,  poking fun at university administrators, and, most controversially, a “mock” interview with a pretend “Jesus Christ,” garbed in a crucifix or a cross in the middle of the mall adjoining Northrop Auditorium on campus offering this advice to “Today’s students”:  “take drugs” and fornicate.

That piece, along with other portions of what was referred to as the paper’s end-of-year “humor” edition,  did not go over well within the U administration or the general public, for that matter.  A firestorm erupted with a pair of legislative hearings accompanied by calls for expulsion of the publication’s student editors and even closing down the publication. The vitriol was reminiscent of another landmark piece of Minnesota litigation.  Near v. Minnesota, 283 U.S. 697 (1931), the iconic Supreme Court case barring “prior restraint” of the press.  See “First Amendment Anniversaries are ‘Near’ here”   in the June 1, 2021, edition of Minnesota Lawyer.

The university’s governing body, the 12-member Board of Regents, did not go that far. But, to quell the furor, by a 9-3 vote, it converted the long-standing mandatory “student-service fees” paid by students for the newspaper, dating back around 60 years, along with about two dozen other student organizations, of  about $5 per year, to an optional arrangement allowing objectors to “opt out” of paying the fee while getting the newspaper distributed without charge on the Twin Cities campuses in Minneapolis and St. Paul.

The amount of money lost was negligible as few students opted out; in fact, because the Regents actually raised the fee amount, the newspaper experienced a net gain of about $16,000. But  the effect on the editorial content of the newspaper was more severe. The paper claimed that the retaliatory sanction caused it to steer away from controversial matters or items that might be deemed sensitive or upsetting.

The Daily, through its editors, sued, claiming a First Amendment infringement of its right of freedom of press, an assertion rejected by U.S. District Court Judge Robert Renner in St. Paul, who deemed the regental action to be “rational.”

But the 8th Circuit, in a decision rendered 40 years ago this Wednesday, reversed, holding that the Regents’ action constituted a First Amendment violation. The three-judge panel reasoned that the slight “amount of money [at issue] is beside the point” because the Regents’ action caused a “chilling effect … adverse” to the newspaper and its staff.

The gravamen was that the Regents were “reacting to the contents of the paper and the disapproval that others expressed of those contents,” a motivation that constitutes an impermissible First Amendment transgression. (Conflict Alert:  This columnist was one of the attorneys, along with Samuel Heins, who successfully represented the Daily in the litigation.)

The four-year legal battle had a happy ending.  The Daily was reimbursed  for its economic loss, along with attorney’s fees for its gallant lawyers, who generously contributed a portion of it to establish a “First Amendment Fund” providing scholarships and other awards for journalism and law students as well as sponsoring  educational programming on First Amendment issues at the University.

Wax & wane

But the rights of free expression by students have waxed and waned since the Stanley case.

Five years later, the Supreme Court in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), upheld the rights of high school faculty to censor a student newspaper that sought to publish articles about teen pregnancy and the impact of divorce, topics that the school administration deemed inappropriate.  The court reversed a ruling of the 8th Circuit, holding that because the paper was not a “public forum,” its contents were subject to censorship by school authorities.

So much for the “schoolhouse gate!”

In another notable high school case two years earlier in Bethel Sch. Dist. v. Frost, 478 U.S. 675  (1986), the high court upheld suspension of a high school student running for a student government office who made sexually provocative comments at a student assembly.  It focused on the deleterious effects the off-color remarks had on the captive student audience.

But off-campus student freedom of expression  was given a boost a couple of years ago in the high court’s ruling in Mahoney Area Sch. Dist. v.  BL, 141 S.Ct. 2038 (2021), upholding a high school student’s right to make offensive comments on social media about school personnel and practices, including a graphic “finger” gesture, on grounds that freedom of expression overcomes school disciplinary authority over offensive off-campus conduct.  See “‘Finger’ gesture hands high court a key case” in the May 25, 2021, edition of Minnesota Lawyer.

The Stanley case, as progeny to Tinker, was a  high water mark for constitutional rights of students who pass through “schoolhouse gates.”  Its precedent still stands, although somewhat wobbly, 40 years later.

PERSPECTIVES POINTERS

Half dozen other 8th Circuit Rulings in 1983

• NLRB v. C.R. Adams Trucking:  Wrongful discharge for failure to join union
• U.S. V. Varsalone:  Reference to “organized crime” does not taint perjury conviction
• Yarlott v. Commissioner of IRS:  Stipend for surgery resident doctor at U of M is taxable income
• Pilon v. University of Minnesota:  Release bars sex discrimination claim
• Movie Systems, Inc. v. Mid-Minnesota Auto Distributors:  Injunction for wrongfully diverting cable television services
• Brandt v. Northfield and Southern Ry. Co.:  Failure to allow promotion after military service leave of absence.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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