Majority Opinion of the Court

Majority Opinion of the Court

The Court of the Associated Students, University of California, Davis

Majority Opinion of the Court




Decided: Feburary 7th 2006

CHIEF JUSTICE FRICKE delivers the majority opinion.

I. The Facts

Government Code § 703 reads:

(1) All ASUCD websites will be stored on the ASUCD server.
(2) Creation of all websites will go through Media Link

The records appear to indicate that some time previous to Fall 2005 then-Editor-in-Chief of the California Aggie (“the Aggie”) Daniel Stone concluded that Creative Media (the current name of Media Link) was unable to provide the “time and resources” for their website, and that they should move away from Creative Media. On November 2nd, 2005, the Aggie’s website began operating from a server owned by College Publisher, Inc., a subsidiary of Y2M, and based in the area of Boston, Massachusetts.

Creative Media (and ASUCD Business Manager Mark Champagne) heavily advised the Aggie against this move, but did not forbid them, and cooperated in providing them with the data that was to be transferred to the College Publisher servers.

II. Applicability of Code 703

Paragraph One: Both subsections of 703 appear to be critically vague. Paragraph one states that websites will be stored on “the ASUCD server,” without saying that they may not be stored elsewhere. Furthermore, testimony indicates that there is more than one ASUCD server, causing confusion as to what exactly it means to be on “the” ASUCD server.

Literally, an ASUCD unit could store their website at some other location in addition to an ASUCD server, and be in adherence to the bylaw. In this case, Defence argues that the component information of their website is definitely stored on one of the ASUCD servers, despite their main website being hosted elsewhere.

Since the component material is by no means the same as an assembled website, and is not publicly accessible, we find that the California Aggie does not have a website stored on an ASUCD server – it does not fulfil the requirements of 703 ¶ 1.

Paragraph Two: The word “through” has such a broad meaning that nothing definitive can be said about ¶ 2 except that Creative Media (Media Link) must in some way at least tangentially be interacted with in some manner. To quote Grayned v. City of Rockford, 408 U.S 104, 108-109:
A vague law impermissible delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (Note 1)

(Citations omitted, emphasis added) This is exactly the situation with § 703 ¶ 2; the options of reasonable interpretation left up to us on the Court is so broad and lacking in guidance that to extract some sort of meaning from these bylaws we would essentially be legislating policy on the matter.

The Grayned quote refers to reasons a statute would be ruled unconstitutionally vague and therefore null and void. It is tempting to make such a ruling on § 703 ¶ 2, however, we believe that the general spirit of the section can be discerned:

Delegation of Oversight: Though the ASUCD government created the California Aggie and ostensibly owns it, they have delegated oversight of the Aggie to the Campus Media Board (“the Media Board”). The Media Board in turn reserves for itself a very limited degree of control over the California Aggie. In light of the extreme scarcity of statutes applying to the Aggie, those that do exist must be considered important enough to have been created with this reluctance in mind.

Section III.B(1) of the Campus Media Board Guidelines (CMDG), entitled “Media Board Work Groups” describes the Board’s “responsibility for the financial and operational affairs of the media.” In subsection “a” it states “a work group shall consider items of business outside the jurisdiction of a medium manager.” § 703 ¶ 2 establishes that creating a website is at the very least not entirely within the jurisdiction of a medium manager. As it is something outside the jurisdiction of the medium manager (i.e. the Editor-in-Chief), creation of a website would therefore require the attention of a Media Board Work Group, following the guidelines set forth in CMDG III.B(1). Additionally, this specific creation of a website included a contract of some monetary weight. This contract by itself likely would qualify to place the situation in the jurisdiction of a Media Board working group.

Furthermore, oversight for the creation of websites has been delegated to Creative Media.

Media Board members and Creative Media members were both aware of the movement of the Aggie website, and those aware unanimously opposed the move. Both these groups kindly deferred to the judgment of the medium manager – the Aggie Editor-in-Chief. However, unenforced oversight is no oversight. Oversight was delegated to the Media Board and Creative Media with the hope that these bodies would prevent the relevant units from making bad decisions. In effect, however, they have allowed those under their jurisdiction to make decisions they were certain were bad.

Furthermore, under the current structure, no one below the Editor-in-Chief can compel him/her not to make a decision they think is bad either. In essence, if both the bodies above and below the Editor-in-Chief refuse to do more than defer decisions to him/her, the Editor-in-Chief is answerable to no one. “A college newspaper's freedom from censorship does not necessarily imply that its facilities are the editor's private domain” (Joyner v. Whiting, 477 F.2d 456, 462 (4th Cir. 1973)).

Because the office of the Editor-in-Chief is not answerable to anyone else, is occupied by a new and untested individual every year, and —if prone to make bad decisions— has the power to do significant damage to the Aggie, it is essential that where oversight is described it be exercised. As such, major operational changes must be approved by the Media Board, creation of websites be approved by Creative Link, and wherever else approval must be found it must be sought.

Approval: We find that Creative Media’s cooperation with the server transfer does not equate approval. Approval in future situations shall be considered either an affirmative statement by the individual in question that he gives his approval to the proposal, or a formal action by a Media Board working group, the Media Board itself, or other body in question.

III. Freedom of Speech

The Defense argues at length that the requirements of § 703 violate Freedom of Speech in regards to the general insulation provided to media firms against government involvement. They cite no less than fourteen cases decided by the United States Supreme Court, the California Supreme Court, and various similarly august bodies. We appreciate the thoroughness with which they addressed the topic and will address every case they cite in turn.

Defense cites Adcock v. Board of Education, 10 Cal. 3d 60 (1973), Braxton v. Municipal Court, 10 Cal. 3d 138 (1973), and DiBona v. Matthews, 220 Cal. App. 3d 1329 (1990) as to that the 1st Amendment protections of freedom of speech apply within the University of California, and we certainly agree.

Papish v. Board of Curators, 410 U.S. 667 (1973) makes some very relevant statements:

[T]he University's action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e. g., Healy v. James, 408 U.S., at 192-193, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.
And furthermore, Healy v. James, 408 U.S. 169, at 192-193:
Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-relatedactivities must be respected.

The part quoted by Defendant is non-bold below:

the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University's action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct…
(Papish at 667).

The holding of this case is clearly that “nondiscriminatory application of reasonable rules governing conduct” would justify intervention in the affairs of a college paper. More specifically, “regulations as to the time, place, and manner of speech and its dissemination,” are noted as expressly reasonable and legitimate.

In Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975) the university president justified the dismissal of editors with the fact that they were state employees and their speech could be regulated if there was a government interest outweighing the employees’ freedom of speech – technical quality of writing in this case. Ultimately the Court ruled that insufficient evidence had been presented that the motive was technical quality rather than unconstitutional control of content, without ruling that technical quality would have been justifiable anyway. As such this case raises an interesting question but does not answer it. On any account, movement of a webpage barely even can be considered an attempt to control “technical quality,” and Schiff is not really applicable here.

Defense quotes Schiff at 261 in that “Once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees.” Conveniently, Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) goes into extreme detail on such consistent regulation.

The Supreme Court has recognized three types of fora. The first type is a traditional public forum. A traditional public forum is a place "which by long tradition or by government fiat has been devoted to assembly and debate," such as a street or park. See [Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37] at 45. In traditional public fora, "the rights of the state to limit expressive activity are sharply circumscribed": the government may enforce content-based restrictions only if they are narrowly drawn to serve a compelling interest, and may enforce content-neutral time, place, and manner regulations only if they are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Id. The second type of forum has been alternatively described as a "limited public forum," see Rosenberger, 515 U.S. at 829, and as a "designated public forum," see Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679, (1998). The government may open a limited public forum "for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." Cornelius, 473 U.S. at 802. Although the government need not retain the open nature of a limited public forum, "as long as it does so it is bound by the same standards as apply in a traditional public forum." Perry, 460 U.S. [37] at 46. The third and final type of forum is a nonpublic forum. The government may control access to a nonpublic forum "based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 473 U.S. at 806; see also Perry, 460 U.S. at 46.

Idem at 348, some citations omitted, emphasis added. At 353 it offers us insight as to the categorization of the California Aggie, vis-à-vis the analogous status the yearbook in question:

There is a "distinction between 'general access,' which indicates that the property is a designated public forum, and 'selective access,' which indicates that the property is a nonpublic forum." Forbes, 523 U.S. [666] at 679 (citations omitted). General access is defined as the situation in which the government "makes its property generally available to a certain class of speakers." Id (emphasis added). Selective access occurs when the government "does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, 'obtain permission' to use it." Id. (emphasis added and citation omitted). In the instant case, KSU's policy and practice indicate that the university intended to designate the yearbook as a public forum for those students who became editors of the yearbook — in other words, the student editors composed the "class of speakers" for which the university designated the yearbook as a limited public forum. These editors were under no obligation to "obtain permission" each time they sought to access the yearbook — indeed, the policy and practice of the university was to give the student editors exclusive control over the content of The Thorobred. Thus, the student editors had "general access" to the yearbook. See Forbes, 523 U.S. at 679. This is consistent with our finding that the yearbook constitutes a limited public forum

Assuming you consider ASUCD “the government” in this case, clearly expression through the Aggie has been reserved to the Aggie Staff (Note 2), and in all relevant aspects the situation is analogous to the status of The Thorobred in Kincaid, which the Court has declared a “limited public forum.” “[T]he government may impose only reasonable time, place, and manner regulations, and content-based regulations that are narrowly drawn to effectuate a compelling state interest, on expressive activity in a limited public forum. See Perry, 460 U.S. at 46.” (at 354, emphasis added). Thus Kincaid seems to very clearly indicate that if one considers ASUCD to be the government (Note 3) they are well within their rights to regulate the location of the webpage.

Moving along, the holding of Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973) was that termination of support for a publication due to views expressed constitutes censorship. (Note 4) We have no disagreement with this.

Defence quotes Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974) in “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.” Defence alleges that this implies the changes in the instant case fall under this purview. In the opinion of this court, the website location requirement effects neither “choice of material,” “limitations on the size and content” or “treatment of public issues and public officials” – Tornillo does not give us any reason to believe the California Aggie should not have to adhere to Government Code § 703. Moreover, the holding of Tornillo was that it is a violation of freedom of speech to require newspapers to give equal coverage to contrary views – this was expressly refuted regarding college newspapers in Joyner, however, at 462: “When a college paper receives a subsidy from the state, there are strong arguments for insisting that its columns be open to the expression of contrary views and that its publication enhance, not inhibit, free speech.” (Note 5)

An important aspect of the Tornillo reasoning is that there is nothing preventing one with the will and resources from expressing their views via print media, as highlighted by the differences found in Columbia Broadcasting System, Inc. v. Democratic Nat’l Comm., 412 U.S. 94 (1973) where it is noted that the broadcast media (television & radio) constitute finite resources. Only so many persons are able to express their views via television and radio at any given time, and thus regulatory authority has been given to the Federal Communications Commission. Similarly, the California Aggie is a finite medium. It was created by the (student) government with the purpose of opening up the newspaper medium to student access, it enjoys office space in the centre of campus without rent, exclusive access to distribution points throughout campus, and most importantly, it is not conceivable for a student wishing to express themselves in print to compete with the Aggie. As such, the context of broadcasting regulations set forth in Tornillo would support an argument that the relevant government would have authority to compel the Aggie to reflect a greater diversity of views in its content. That is not the subject at hand, however.

The Defence cites Columbia at 124-125, underlined below:

Nor can we accept the Court of Appeals' view that every potential speaker is "the best judge" of what the listening public ought to hear or indeed the best judge of the merits of his or her views.All journalistic tradition and experience is to the contrary. For better or worse, editing is what editors are for; and editing is selection and choice of material.That editors — newspaper or broadcast — can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided.

Taken out of context, the quoted sentence appears to uphold the ultimate power of editors, however in context this sentence merely affirms their rights versus private citizens who wish to submit content, and affirms that even this power is granted to them by the discretion of Congress.

Defence argues that Smith v. California, 361 U.S. 147 (1959) evidences that even indirect interference with freedom of speech is prohibited. In Smith, however, a clear causal relationship is drawn between holding booksellers accountable for content they may not be aware of and a negative impact on the availability of books of all types. In the instant case no such causal relationship has been drawn.