Non-profit group asks University of North Texas to turn over ‘biased’ student newspaper’s records

In the wake of calls for a Texas university to disband a conservative student organization — a move that would violate the First Amendment — a non-profit group is attempting to use the state’s open records law to force a student newspaper that reported on the controversy to turn over its notes. The university has rejected that request. FIRE and the Student Press Law Center have written to the state attorney general in support of the university’s position.

In July, students at the University of North Texas complained to administrators about a conservative student organization, the Young Conservatives of Texas, which led the university’s president to suggest on Twitter that it might take action:

We are looking into this.

— Neal Smatresk (@UNTPrez) July 4, 2020

The complaints culminated in a petition asserting that YCT had “shown a pattern of racism, transphobia, and homophobia” through its Twitter account and a “bake sale” — a performative protest critical of affirmative action that was once a mainstay of conservative student groups. The petition called for YCT to “be removed from UNT as an officially registered organization” and urged the university to implement a “3-strike” policy of some sort. 

As FIRE has explained ad nauseum, student organizations at public universities cannot be punished for speech that — however offensive someone may find it — is protected by the First Amendment. And as my colleague Joe Cohn explained in an interview with The Texan, taking action against YCT would also violate Texas state law. To our knowledge, the university hasn’t followed through on its president’s suggestion that it was “looking into” taking action, and there’s no indication it will take up the “3-strike” proposal.

Whatever its faults in suggesting that it might take action against YCT — action, again, that would violate the group’s core First Amendment rights — the University of North Texas is right to refuse to order its student newspaper to turn over unpublished materials to its critics.

Yet threats at the university to students’ First Amendment rights persist. 

After UNT’s student newspaper, the North Texas Daily, wrote about the controversy, Empower Texans — a conservative non-profit organization that publishes TexasScorecard.com — repeatedly criticized the article as “biased” because it did not “mention the threats of violence leveled at YCT or [its chairwoman], and the article frames the extreme-left coalition as the victims.”

Empower Texans also issued a request under Texas’ Public Information Act, requesting that the University of North Texas produce records held by the Daily and the reporter who penned the newspaper’s coverage of the controversy. The university refused and — as Texas’ public records law allows — asked the Office of the Attorney General of Texas to bless the university’s position that the records are confidential. (This, in addition to the university’s denial of a related request, spurred criticism from Empower Texans in an article entitled “Is UNT Covering up Plans for Conservatives on Campus?”).

Today, FIRE and the Student Press Law Center filed a public comment with the Office of the Attorney General of Texas, explaining that the request, if granted, would infringe the rights of the North Texas Daily under the First Amendment, Texas’ state constitution, and a Texas statute.

Whatever its faults in suggesting that it might take action against YCT — action, again, that would violate the group’s core First Amendment rights — the University of North Texas is right to refuse to order its student newspaper to turn over unpublished materials to its critics. 

Such a request fundamentally misconceives the relationship between a university and a student newspaper. Student newspapers, with few exceptions, are editorially-independent publications — even when they are published in partnership with a university’s department of journalism or funded by student fees. The university’s administration has no authority to censor or punish a student newspaper for speech protected by the First Amendment, nor can it tell the newspaper what to publish. It follows, as the attorney general’s office has previously ruled, that government officials cannot require student newspapers to turn records over to satisfy a public records request.

Journalists — whether they write for commercial dailies, student newspapers, or nonprofit blogs — have a First Amendment right to resist the compelled disclosure of unpublished material or the identity of confidential sources. In Texas, that right is supplemented not only by rulings that the Texas state constitution independently establishes such a right, but the Texas Free Flow of Information Act, which provides that government actors may not “compel a journalist” — specifically including those “employed by an institution of higher education” — to disclose information or documents. 

The privilege is not absolute. It can be overcome in certain civil or criminal proceedings, if there is a significant need for the information. But the request here isn’t connected to a lawsuit or criminal proceeding.

Student journalists are sometimes the target of subpoenas or public records requests, which may seek to repurpose the student journalist’s investigative work or simply to deter journalists from critical coverage. Granting such requests would have a chilling effect on the ability of student newspapers to serve their respective university community’s interest in transparency, accountability, and free speech. 

We hope that if Empower Texans does not abandon its request, the Office of the Attorney General of Texas will affirm the university’s refusal.