Report Details First Amendment Violations Against ‘Helmsman’ and Promises Future Changes
September 18, 2012
We've kept Torch readers updated on the free speech case involving the University of Memphis (UM) student newspaper The Daily Helmsman, which had $25,000 cut from its funding through a process that strongly suggested the involvement of viewpoint discrimination by the student government body responsible for distributing funding from student activity fees. Fortunately, the sum of the on-record comments and documented exchanges in which the content of the Helmsman was criticized convinced UM of the impropriety of its funding decision, and the Helmsman's funding was restored.
FIRE has since received a copy of the results of the investigation conducted by David Cox, executive assistant to UM President Shirley C. Raines. Cox interviewed six of the seven members of the Student Activity Fee Allocation Committee (SAFAC) as part of the investigation. Helmsman Editor-in-Chief Chelsea Boozer was present for these interviews as well. The findings are worth quoting at length here because of the insights the investigation offers into the student fee allocation process at UM and how that process failed in the case of The Daily Helmsman.
The report notes first that, while SAFAC members had been briefed on the stated purpose of the student activity fee, "No Committee member recalled a discussion of First Amendment protections involved with allocation decisions." This is a regrettable omission, given the guidance the Supreme Court has given in this area. In both Rosenberger v. Rector and Visitors of the University of Virginia (1995) and Board of Regents of the University of Wisconsin System v. Southworth (2000), the Court made clear that bodies tasked with distributing student activity fees to groups on campus must do so in a viewpoint-neutral manner. More background on the Court's guidance on student fees, which has figured in numerous FIRE cases over the years, can be found in FIRE's Guide to Student Fees, Funding, and Legal Equality on Campus.
The report also discusses the sometimes-tricky nature of keeping content considerations from unduly interfering with the allocation process:
Regarding the role of content in the Committee's decisions, in several instances it can be difficult to separate the application of those criteria from the content of the proposed programming. As one example, one proposal was put forward because it was seen as effective for retaining entering students, a University priority. In another, a committee member favored proposals that supported the arts reflecting that person's assessment of impact on students. In sum, attention to content appeared to be a factor in Committee allocations.
Where SAFAC crossed the line becomes crystal clear when the discussion turns to the Helmsman. Cox notes that:
while discussion of an idea does not guarantee that the idea was used in making a decision, the content of the Daily Helmsman did become a part of the Committee's deliberations. In particular, questions were raised about the Daily Helmsman's choice of whether and when to cover some student activities including Student Government Association sponsored events. As one solution to address this issue, the Student Government Association had asked for funding to publish a Tiger Rag Weekly Newsletter to inform the campus of events it felt were not adequately covered by the Daily Helmsman. The Committee did not approve funding for the SGA request. It did, however, reduce the amount of funding for the Daily Helmsman by the approximate amount requested by the SGA and recommended that the Daily Helmsman and Student Government Association meet to see if the Student Government Association's requests could be accommodated.
As we documented in our letter to President Raines and on our blog, this is consistent with the on-record criticisms of the Helmsman. Regarding the proposed "Tiger Rag Weekly," it makes the content-based motivation behind the funding cut that much clearer, given that SAFAC reduced the Helmsman's funding by precisely the amount the SGA had requested for its newsletter. Remember also that the SGA holds two of the seven seats on SAFAC, despite the fact that the SGA receives its funding from SAFAC.
The investigation's conclusion was the same as FIRE's—that the First Amendment rights of the Helmsman had been violated by the funding decision:
[B]y my understanding, involvement of the content of the Daily Helmsman in the deliberations for its funding was in fact inappropriate under the First Amendment protections for student newspapers as outlined by the courts. In addition, given the risk involved, even the appearance of a content-influenced decision must be avoided. Therefore, I offer the following recommendations as remedies.
Cox thusly recommended the "immediate return" of the Helmsman's lost funding. Interestingly, and importantly, Cox also recommended that new measures be taken to ensure that the Helmsman would not be at risk of viewpoint discrimination in the future.
Two, applicable criteria for the allocation of funding varies among the Student Fee program proposals. For some decisions, content is relevant and appropriate to consider. For the Daily Helmsman, content is not an appropriate consideration. Accordingly, the current manner of Student Fee allocations which mixes those criteria for decision making may not provide the structure and process that best serves the purposes of the Fees while offering the appropriate allocations and protections for the Daily Helmsman.
Accordingly, I recommend the formation of the committee to explore and recommend a structure and process for funding the Daily Helmsman that identifies appropriate sources of funding, assures journalistic independence, and establishes appropriate accountability. I recommend that the committee complete its work and recommendations prior to the AY 2013–2014 Student Fee Allocation funding cycle.
This is welcome news and hopefully will ensure that the Helmsman's First Amendment rights are protected in the allocation process.
It's also welcome for another reason, though. Quite often in FIRE's experience, when a university is confronted with a free speech rights violation it has committed, it will answer FIRE's concerns without admitting there was a problem in the first place, thus not taking particular care to see it doesn't make the same mistake twice. That wasn't the case here. Cox's report shows that UM was concerned it had violated the rights of the Helmsman, and the university undertook a thorough and good-faith investigation to get to the bottom of the problem. It concluded it had erred, ordered its mistake rectified, and is now taking extra steps to make sure it doesn't do this again in the future. That's commendable, and it's good news for more than just the students who produce The Daily Helmsman.