Journal of Free Speech Law: "Protecting Public Knowledge Producers," by Prof. Heidi Kitrosser

The third of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the Introduction:

In 2020, the U.S. Agency for Global Media (USAGM) was sued by several of its employees. USAGM oversees U.S.-funded international broadcasting outlets, including the Voice of America (VOA). The plaintiffs, five USAGM senior managers and VOA's program director, alleged that USAGM CEO Michael Pack, who was appointed by President Trump in 2020, "[had] sought to interfere in the newsrooms of the USAGM networks, in violation of their eighty-year practice … of journalistic autonomy." Plaintiffs accused Pack of "seek[ing] to quash … coverage that is insufficiently supportive of President Trump," as well as "any coverage, unless unfavorable, of President Trump's political opponents." These actions, the plaintiffs charged, ran afoul not only of statutory commands but of the First Amendment. USAGM responded that VOA and the other networks speak on behalf of the government and lack any First Amendment rights in so doing. In taking the actions that he did, Pack was simply "exercis[ing] his [own] authority to 'direct and supervise' and to 'assess the quality, effectiveness, and professional integrity of' USAGM" reporting.

The First Amendment arguments in this case, Turner v. USAGM, reflect a broader tension in the case law concerning the government's role as "knowledge producer"—that is, its role in producing or conveying information or otherwise fostering knowledge. From the plaintiffs' perspective, the government ties itself to a mast when it purports to produce journalism. That mast is comprised of the norms of professional journalism, including a strict separation between an operation's business or political commitments and its journalistic endeavors.

This argument is consistent with several strands of Supreme Court case law. For example, the Court repeatedly has held that, although government is not required to subsidize private speech or create speech forums, once it does so, it may not impose restrictions that are based on viewpoint or that are incompatible with the very nature of the speech subsidized or forum created. The defendants, on the other hand, invoked aspects of free speech doctrine that emphasize the government's broad discretion to control the speech that it produces. This includes the Garcetti rule—stemming from the 2006 Supreme Court case of Garcetti v. Ceballos—whereby government employees generally are unprotected by the First Amendment for their work product speech, meaning speech that they produce as part of their job duties. Garcetti itself arguably is in tension with the Court's acknowledgment elsewhere to the effect that "speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment."

Similar First Amendment questions are raised by battles currently raging over state legislative proposals to curtail discussions of race and racism in another site of knowledge production: public colleges and universities. The laws' opponents argue that they are antithetical to the very nature of higher education. They suggest that states tie themselves to the mast of academic freedom norms—including rules of faculty and intradisciplinary governance on matters of scholarship and pedagogy—when they create colleges and universities. The laws' proponents, on the other hand, emphasize the "public" in public education, suggesting that schools effectively belong to the public, are funded partly by their tax dollars, and that members of the public, through their representatives, must have a say in what is taught and studied at the schools.

These First Amendment controversies are layered on top of major cultural and political tensions. This is unsurprising, as public knowledge institutions often are sites of cultural contestation. If one reviews the public debates alongside the legal arguments about these matters, one can find illuminating overlaps between the two. For example, public outcries against the press and against "critical race theory" are often framed as fights against indoctrination by elites. From this perspective, it is not journalism or higher education that is under siege. Rather, it is ordinary folk who are seeking simply to right the balance and to reclaim neutrality in public spaces. These arguments parallel legal arguments to the effect that government employees, or persons carrying out government-subsidized functions, have no constitutional right to speak freely while carrying out their government-supported roles. Their words effectively belong to the people.

The shared populist core of the arguments for broad political control of public knowledge institutions betrays the arguments' fundamental failings. First, the notion that political might should govern knowledge production runs counter to the very idea of discipline-based knowledge and expertise; it would strip knowledge production of its meaning and value. Worse still, it would mislead consumers of any "knowledge" so produced, because the knowledge would purport to stem from disciplinary best practices and expertise. Such deception poisons the speech marketplace and is antithetical to core First Amendment values. Second, the conceit that political controls protect against indoctrination and support neutrality is belied by the nature of the power that proponents of political control seek: the power to bar or require certain speech content in public schools and in other public knowledge institutions.

In this essay, I explore the nature and value of government's knowledge producers in our constitutional order and the legal, cultural, and political threats that they face. In Part I, I explain that public knowledge producers are an essential part of a democratic society, and that their worth depends partly on their having some insulation from political pressure. In Part II, I use the example of international broadcasting, with an emphasis on the USAGM case to argue that such insulation is called for not only as a matter of good policy but as a matter of First Amendment theory. I acknowledge, however, that First Amendment doctrine is more mixed; one can find support for this position, as well as contrary indicia in judicial precedent. I also make the case for more robust doctrinal support to insulate public knowledge producers going forward. In Part III, I explore the broader legal, political, and social contexts. With respect to law, I observe that legislation plays at least as crucial a role in protecting knowledge producers as does the First Amendment. Yet such legislation increasingly is under threat by the Supreme Court's growing allegiance to unitary executive theory. I also explore parallels between judicial reasoning in some of the First Amendment case law, unitary executive theory, and cultural and political movements against knowledge producers. Finally, I apply some of my earlier analyses to one last set of examples: ongoing legal and political controversies concerning the topic of race in public higher education.