The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting story in Public Comment (Annie Gaus):
A new proposal by two San Francisco Supervisors to make "journalistic standards" a condition of City advertising contracts may be legally dubious, according to two leading First Amendment scholars.
Backing away from an earlier move to withhold City advertising funds from one local paper specifically, The Marina Times, the Board voted on Tuesday to approve placing ads in the 36-year-old paper, which circulates in a handful of Eastern neighborhoods.
Instead, Supervisors Hillary Ronen and Dean Preston announced that they are "reviewing options" to change Prop J, a 1994 law governing newspaper advertising contracts, to incorporate what Preston called "certain basic journalistic standards."
The imbroglio began at a grievance-laden Board of Supervisors meeting last week, during which Supervisors complained about what they considered unfair or inaccurate coverage by The Marina Times, making reference to "hate speech" and "disinformation," though no Supervisors provided any specifics. In a 7-4 vote, the Supervisors voted to single out The Marina Times from the City's advertising list….
San Francisco's contracting relationship with local newspapers dates back to Prop J, a 1994 law that requires the City to place ads for public notices in neighborhood or community newspapers. Each year, San Francisco's Office of Contract Administration evaluates the list according to certain content-neutral factors like circulation….
Two federal appellate precedents (not in the Ninth Circuit, where San Francisco is, but likely quite persuasive to courts even there) have held that similar viewpoint-based withdrawals of general government advertising violate the First Amendment (North Mississippi Communications, Inc. v. Jones and El Dia, Inc. v. Rossello). The matter might be different as to more specific advertising choices (e.g., if a city wants to promote itself as a place to which businesses should want to relocate, it might choose to run those ads in outlets whose editorial stances attract lots of business readers).
But when we're talking about general legally required public notices, the precedents I cite seem quite on point: The program stops being a targeted government speech program aimed at spreading a particular message in a particular place, and becomes something akin to a limited public forum, where the government gives newspapers access to funding, and must distribute it in a viewpoint-neutral way (cf. Rosenberger v. Rector)—or like a general government contracting program, where the government is likewise constrained by the First Amendment (see Board of Comm'rs v. Umbehr).
The article quotes another Supervisor who raised the First Amendment objection:
"All of us on this Board have had negative things written about us in the press. Choosing to run for office means choosing to open yourself up to criticism, fair or not," said Sup. Catherine Stefani at Tuesday's Board of Supervisors meeting. "Taking on that responsibility does not mean that we get to become the arbiters of truth, political viewpoints, or journalistic standards…that is far outside our prerogative, and far afield of the First Amendment."
And it also quotes both Berkeley Law Dean Erwin Chemerinsky and me as agreeing on this.