The Volokh Conspiracy
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Professor's Lawyers Argue: Private University Student Newspapers Are "Not Entitled to First Amendment Protection"
The lawyers also argue that the speech in the newspaper was “not made pursuant to its right of free speech, but to instead to advance the personal agendas of male faculty members at Notre Dame [and others].”
From the response to the motion to dismiss in Kay v. Irish Rover Inc. (filed by Kimberly D. Jeselskis, B.J. Brinkerhoff, and MacKenzie A. Watson of Jeselskis Brinkerhoff and Joseph LLC) (emphasis added):
[A.] Defendant's Motion Should Be Denied Because the Irish Rover's October 12 and March 22 Articles Regarding Professor Kay Were Not in Furtherance of the Right to Free Speech.
The Irish Rover presumes that as a student newspaper it is somehow automatically entitled to the protections of the First Amendment or the Indiana Constitution. However, this is simply not true. The Irish Rover is not entitled to First Amendment protection as it is a private student newspaper at a private university. The First Amendment was designed by its framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs. Mills v. Alabama, 384 U.S. 214, 218-219 (1966). The First Amendment, however, does not protect rights of speech and assembly against interference or impairment by private individuals. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
It is clear that public colleges and universities, as instrumentalities of state government, are not beyond the reach of the First Amendment. Healy v. James, 408 U.S. 169, 180 (1972). A public college or university, created or controlled by the state itself, is an arm of state government and, thus, by definition, implicates state action. Powe v. Miles, 407 F.2d 73, 82 (2nd Cir. 1968). A private college or university, however, stands upon different footing and the application of the First Amendment is not readily met in the case of a private educational institution. Grafton v. Brooklyn Law School, 478 F.2d 1137, 1143 (2nd Cir. 1973); Blackburn v. Fisk Univ., 443 F.2d 121, 123 (6th Cir. 1971).
Note that these last two cases hold that the private universities' actions with respect to private university students aren't state action of the sort to which the First Amendment applies. The cases certainly don't deny that court-imposed liability for speech by private university students is indeed state action, subject to all the normal First Amendment constraints.
Back to the lawyers' response:
Similarly, in Keyishia[n] v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967), it was held that the constitutional liberty of free press applies to student press. See also Tinker v. Des[ ]Moines Independent Community School District, 393 U.S. 503 (1969). However, the student organizations discussed on Keyishia[n] and Tinker, involved student newspapers or student organizations at state or public institutions, not private institutions like Notre Dame. Thus, the Irish Rover must look to the Indiana Constitution for any free speech rights it asserts, which provides, in relevant part:
No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever; but for the abuse of that right, every person shall be responsible.
Persons exercising their right of free speech do so to advance "the public exchange of ideas" essential to a healthy democracy. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388 (2011). Indiana's anti-SLAPP defense is inapplicable where actions are "simply in furtherance of a [person's] own personal goals." Gresk, 96 N.E. 3d at 569-570 (quoting Ketner v. Timothy R. Downey, Ins., Inc., 430 F.Supp.2d 844, 846 (S.D. Ind. 2006).
Here, the record evidence establishes that the Irish Rover's October 12 and March 22 Articles were not made pursuant to its right of free speech, but to instead to advance the personal agendas of male faculty members at Notre Dame, the Sycamore Trust, Notre Dame Right to Life, and the Irish Rover relating to Professor Kay.
For instance, the record shows the concept of the October 12 Article came from Professor Munoz who, on September 19, 2022, asked the Irish Rover to write about the September 21 panel discussion. Notably, although five (5) other individuals spoke at the September 21 panel, the sole focus of the October 12 Article was Professor Kay. On the same day, September 19, Professor Munoz also emailed DeReuil a photo of the note that Professor Kay posted on her door. The evidence shows that before any "investigation" was attempted, the unfounded and false conclusion that Professor Kay was engaging in criminal conduct or misconduct in her occupation had already been drawn—on September 19 Myler texted DeReuil, "Prof promising abortion procurement". Myler assured DeReuil that she and Professor Munoz would "walk [him] through each step and all the questions".
Between September 19 and October 12, 2022, no less than eight (8) individuals, either Notre Dame faculty or staff, students, or the Sycamore Trust contacted DeReuil regarding the article. In each of the communications, the false and defamatory conclusion had already been drawn—Professor Kay was providing abortions, and "we" must get rid of her. For example, on September 21, Professor Philpott emailed DeReuil about the professor offering to procure abortions and provided DeReuil with images "with the idea that they might benefit [him]." On September 30, Fogarty sent an email to several Notre Dame faculty, staff and students regarding "a game plan to respond to the Dr. Kay/chemical abortion situation." Fogarty was also working on a student senate petition calling for Professor Kay's termination. Dempsey with the Sycamore Trust shared an email with DeReuil that he sent to Notre Dame administration where he said, "we hope that, one way or another and before too long, she [Kay] will move on…." On October 5, DeReuil and Hale exchanged text messages about "the abortion pill acquisition project," where Hale had a student from another university email Professor Kay in an apparent attempt to entrap her. On October 10, Professor Iffland emailed DeReuil, "there needs to be a coordinated assault on the Tamara Kay issue. Just flood Jenkins. Basic ouput: Keough has to hire someone based to placate the mob." Clearly, neither the Irish Rover nor Notre Dame faculty or Notre Dame Right to Life had an interest in the public exchange of ideas. The record evidence also shows that the March 22 Article was simply a continuation of the October 12 Article with the same personal agendas. For instance, Fogarty and Thompson attended the March 7 event "undercover." Thompson did not even speak to Professor Kay. Fogarty's interest was getting a quote in the March 22 Article than any exchange of ideas.
Finally, given that the mission of the Irish Rover is "to articulate and defend the Catholic character of the University," it seems improbable if not impossible that in publishing the October 12 and March 22 Articles, the Irish Rover and its faculty advisors and other Notre Dame faculty were trying to advance "the public exchange of ideas" essential to a healthy democracy. Guarnieri, 564 U.S. at 388.
Accordingly, the Irish Rover's Motion should be denied.
The trial judge quickly disposed of this, concluding that:
[E]ven though The Irish Rover is a student newspaper at a private university, it is entitled to assert a defense rooted in the Indiana State law's enhanced protection of free speech rights, when the exercise of those rights concerns a public issue….
The Irish Rover's motivation is immaterial to the issue of whether The Irish Rover was exercising its First Amendment right to free speech. A specific motivation to speak publicly about a specific individual's actions does not remove that speech from the public exchange of ideas."
See here for the judge's broader explanation that the statements about which Prof. Kay complains were basically accurate.
