FIRE Intervenes after East Carolina University Fires Newspaper’s Adviser over Streaker Photo
January 9, 2012
by Adam Kissel
On Friday, Jaclyn wrote about East Carolina University's ill-advised decision to fire Paul Isom, adviser to student newspaper The East Carolinian, after the newspaper printed an uncensored photo of a man who streaked at a football game. The East Carolinian and the Student Press Law Center had already run stories on the case, and the Chronicle of Higher Education had a story on it by the afternoon. By Friday night, FIRE had intervened with a letter to East Carolina University (ECU) Chancellor Steve Ballard, explaining that the university had violated the First Amendment when it fired Isom.
FIRE's letter pointed out that The East Carolinian is an independent, student-run newspaper, and that the constitution of ECU's Media Board protects The East Carolinian's freedom of expression and acknowledges its editorial independence:
Editorial policy of an individual medium shall be excluded from board control. The board shall uphold and support the First Amendment guarantees granted to the print media under their oversight.
This is wise not only because it respects the First Amendment rights of student journalists but also because it shields ECU from liability incurred by student expression, as courts have indicated that institutions exerting control over student publications may be found liable for the publications' content.
Perhaps ECU forgot the 1973 decision against it in Thonen v. Jenkins, 491 F.2d 722, 723 (4th Cir. 1973), a case involving ECU student editors punished for publishing a letter to the editor that criticized the university president and used an expletive. In that case, the U.S. Court of Appeals for the Fourth Circuit held that "[F]irst [A]mendment rights on college campuses are coextensive with those in the community at large. ... [A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." (Internal citations and quotations omitted.) I can't imagine that ECU would like to suffer another embarrassing and costly loss.
In particular, courts have long held that adverse administrative action by a public university against a student newspaper as a result of protected speech violates the First Amendment. (See our letter for the details.) Indeed, firing The East Carolinian's adviser easily qualifies as adverse administrative action against the newspaper, given the prominent role of the adviser at the newspaper and the explicit warning communicated to the newspaper's editors by ECU Vice Chancellor for Student Affairs Virginia Hardy, who who stated that the paper would be "facing consequences" as a result of its publication of the photo, which is protected expression. It's too late for ECU to pretend that this is not about the photo; at the time, Hardy also stated that running the photo was "in very poor taste" and that ECU officials did not support the decision to print it.
ECU's decision to fire Isom will result in an impermissible chill on all student media with advisers, who are now subject to termination whenever the university disagrees with students' editorial decisions. FIRE has asked ECU to meet its legal and moral obligation to respect freedom of expression and to reinstate Isom immediately.