After The University of Alabama abruptly shut down two student-run magazines Monday, the institution said that students’ First Amendment rights “remain fully intact.” Experts disagree.
Though the University said it “will never restrict our students’ freedom of expression,” experts said the school did just that, engaging in illegal viewpoint discrimination and censorship that flies in the face of the First Amendment.
“It’s just appalling to me,” said Marie McMullan, student press council for the Foundation for Individual Rights and Expression.
Vice President for Student Life Steven Hood said the publications were shut down in compliance with a July 29 memo from U.S. Attorney General Pam Bondi. The memo to federal agencies provided “non-binding suggestions” to help federal funds recipients comply with antidiscrimination laws. One recommendation concerned “unlawful proxies,” or intentionally using “ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex, or other protected characteristics.”
The two publications, Alice and Nineteen Fifty-Six, were aimed toward women and Black students, respectively. Hood said this made the publications “unlawful proxies” in the University’s view.
“The University appears to be being very clear here that they are looking at the viewpoint that these magazines are expressing and saying, ‘The government doesn’t want those viewpoints expressed anymore, and so we’re going to shut down this magazine.’ That’s viewpoint discrimination,” said Alex Morey, an attorney and First Amendment expert with the Freedom Forum, a nonprofit that advocates for First Amendment freedoms.
The University’s actions were “about as clear an act of censorship as you can have,” said Mike Hiestand, senior legal counsel for the Student Press Law Center.
“You cannot have a more blatant First Amendment violation here,” he said.
Experts said past U.S. Supreme Court decisions underscored prohibitions against restrictions on student journalists. In a 1995 case, Rosenberger v. Rector and Visitors of the University of Virginia, the University of Virginia denied a Christian student publication funds because it primarily promoted specific religious beliefs.
The Supreme Court said that the denial was viewpoint discrimination and that if universities promote speech at all, they must promote all forms equally.
On Wednesday afternoon, the Foundation for Individual Rights wrote a letter to UA President Peter Mohler, which said the organization is “appalled” by the suspension of the publications and called the decision a violation of their “clearly established” First Amendment rights.
The University justified its actions by pointing to the viewpoints expressed in the magazines, which the Supreme Court called an “egregious form of content discrimination,” the letter said, adding that the University risks suppressing free speech and creative inquiry on campus.
The letter demands that the University confirm that both publications are reinstated by Dec. 10 in order to uphold its commitment to editorial independence.
Since the memo cited was legally non-binding, the First Amendment would overrule any other regulations and provisions. However, experts said the vagueness of the memo may have caused the University to act preemptively out of caution.
Experts rejected the University’s claims that the publications were “unlawful proxies” for discrimination, noting that the memo concerned access to University programs, but that publications were open to everyone. Both publications had employed students who weren’t part of their target audiences.
“This argument that they’re making that this DOJ memo was requiring them to do this is just ridiculous,” Hiestand said. “The memo is not applicable, and certainly their execution would be unconstitutional.” He had not heard of other instances of universities shutting down student publications based on the memo.
The University has a “pretty heavy burden” of showing that purposeful discrimination took place, said Heidi Kitrosser, a law professor at the Pritzker School of Law at Northwestern University.
“That’s just another way of imposing viewpoint discrimination and dressing it up like it’s about race and gender discrimination,” Kitrosser said.
Though the University said that students could publish the same content elsewhere, experts said this still would violate the First Amendment.
“It’s not going to be the same thing as having your own magazine and having your own editorial staff and being able to make your same editorial decisions,” Morey said. “It’s still viewpoint discrimination.”
Tionna Taite, founding editor-in-chief of Nineteen Fifty-Six presented the idea of the magazine to University officials in the summer of 2020 following racial protests after that followed the murder of George Floyd. She said the University approved the magazine in less than 24 hours and promised to fund it to aid in eradicating UA’s history of racial exclusion.
“I urge the University to reconsider their decision and think about what side of history they want to be remembered on,” Taite said. “In past years, the University didn’t make the best decisions; however, now they have a chance to do what’s right.
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