Free Speech

"SF Supes Step in First Amendment Quagmire in Seeking to Update Newspaper Contracts"

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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.

NEXT: Today in Supreme Court History: December 10, 1877

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  1. Of course, these days, in San Francisco, you really have to watch out for what you might step in.

  2. THE VOLOKH CONSPIRACY

    This movement conservative
    blog has operated for
    1 DAY
    without gratuitous use of
    a vile racial slur and for
    596 DAYS
    without imposing partisan,
    viewpoint-driven censorship

    1. Whine whine whine... poor sucker!

      1. Most of this blog is whining by disaffected right-wingers who figure society owes them more respect and support.

    2. Brother Kirkland-
      I’m worried for you. (I’m being genuine here, not sarcastic or facetious.) Yes, I recall you always having a distaste (even a mocking disgust) for religion and religious people, especially Christians. (As I’m a Christian, I of course was never a fan of those comments of yours, but I understood that it’s a diverse group of commenters and we each have to take the good with the bad, and its easy to scroll to the next comment.)

      But it wasn’t all consuming for you. I do remember you making substantive and even non-political comments on various posts, about the legal issues raised, or even your work with craft beer (IIRC). It wasn’t snark and anger 100% of the time.

      Now? For at least the last 6-9 months, maybe longer, I think near all of your comments have been about how much you despise this blog, 98% of its contributors (EV the most, followed closely by Blackman), how angry you are for some perceived slight by EV years ago, and how much you hate and resent conservatives and look forward to their eventual comeuppance (which you describe rather colorfully — “open wider clingers,” etc.).

      My friend, it seems hate and rage has consumed you. You comment on most posts, but as noted, it’s pure rage or derision, all the time. They can’t be healthy, and must be exhausting. It certainly can’t be enjoyable, right? I implore you to step back, and get back in touch with that side of you who used to mix in plenty of non-political takes, and fun discussions of beer. While we are from different ends of the political spectrum, and while there are certainly some juvenile (or worse) right-wing commenters on here (and one or two unhinged left-wing ones as well), there are many of us interested and willing to have civil discussions (including non-political discussions) with people with whom we likely disagree passionately on very important issues. Not everything must be about left vs right, or politics at all.

      Come back from the edge of the abyss, Reverend Kirkland. I’m sure there are many of us who will be happy to have normal conversations again, notwithstanding any past slights in either direction

      1. I respond to the fringe, from the mainstream and in kind.

        May the better ideas win -- even at a marketplace whose proprietors have misappropriated the franchises of strong institutions to peddle a stale mix of intolerance, ignorance, and backwardness.

        If I begin to sprinkling my comments with gratuitous, vile racial slurs, will your respect for me increase?

        Thank you for the kind thoughts.

    3. Rev again misses the part above the comments saying, "We invite comments and request that they be civil and on-topic." Not a surprise since Rev's comments often fail to meet at least one of those conditions. Maybe you should add a day counter since your last on topic and civil comment.

      1. You figure it is not on-topic or civil to observe, in this thread, that the person offering pointers on expression uses vile racial slurs and engages in viewpoint-controlled censorship?

  3. An interesting aside is the advertising of legal notices in self-identified "Black" newspapers which appear to exist just for this purpose.

    I always considered this inherently racist, along the lines of separate water fountains...

    1. By definition, blacks cannot be racist.

      1. You're not thinking this through properly: blacks can be racist, but not Blacks.

        1. Ah, yes, you're right. There is a subtle distinction.

      2. More generally, the people who get to make up new, improved definitions of negative things, are cannot ever be those things.

        Probably by coincidence.

        1. Yes. Notice how "hate speech" and "misinformation" are redefined to mean "speech that is critical of us."

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