SGA control of media funds unconstitutional

Dear Editor:

Thank you for alerting us to the situation at Northern Kentucky University. As I understand it, the student government is currently trying to obtain budgetary control of The Northerner (as well as WNTV and WRFN) for the purpose of influencing the content of these media outlets. It is also my understanding that the SGA’s ultimate goal is to feature more SGA members in the broadcast outlets and to generate more favorable coverage – of the school in general and the SGA in particular – in The Northerner. Finally, I understand that the SGA wishes to reach this goal by funneling funds from the university to The Northerner while attaching new strings to the use of those funds in the process.

Based on these facts, you have asked for our opinion on the following: first, whether the school can validly transfer budgetary control of the student media outlets to a group which has already stated its intent to influence the content of said media; and second, what consequences could the school face if such a transfer were to go forward. The Student Press Law Center is the only legal assistance agency in the country devoted exclusively to educating high school and college journalists on the latest developments in the law affecting the student press. Having provided assistance to over 2,200 student journalists and educators last year alone, we are happy to help.

Switching control of The Northerner’s funding process to a group that has already stated its intent to use its control of said funding to influence the publication’s content is unconstitutional.

When a student publication (print or broadcast) has its funding mechanism changed in a way that has foreseeable unconstitutional consequences – such as allowing any group to alter the flow of public funds in an attempt to control content – the university that effects such a change opens itself to the possibility of a lawsuit. See, e.g., Stanley v. Magrath, 719 F. 2d 279 (8th Cir. 1984) (holding that a university engages in unconstitutional censorship by allowing students to specify whether or not their student activities funds may be used for the newspaper); see also Schiff v. Williams, 519 F. 2d 257 (5th Cir. 1975).

Furthermore, even if the school were to make such a change, the student government could not alter the paper’s funding in an attempt to control, manipulate or punish its content. State Board for Community Colleges v. Olson, 687 P.2d 429 (Colo. 1984), appeal after remand, 759 P.2d (Colo. Ct. App. 1988).

In light of the Sixth Circuit’s decision in Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001), which cited both Stanley and Schiff favorably in dicta as limitations on the university’s power to transfer or alter funding mechanisms, Kincaid at 348 note 6, it seems clear that a legal challenge could successfully be brought in your jurisdiction against the school if this change were to go through.

Toward that end, we at the Student Press Law Center will be happy to contact members of our Attorney Referral Network. Our network includes experienced media law attorneys who have offered to assist student journalists on a pro bono basis.

If the administration and student government are not aware of the law in this area, please share this letter with them. Also, please keep the Student Press Law Center updated on any developments in the situation and do not hesitate to contact us if we may be of further assistance.

Student Press Law Center Adam Goldstein, Esq. New Media Legal Fellow