Rutgers Magazine must print alumni group's ad, appeals court rules
NEW JERSEY — Rutgers Magazine, an officialpublication of Rutgers University, violated the First Amendmentrights of an alumni group when it refused to print an advertisement,a state appeals court ruled Aug. 2.
The Rutgers 1000 Alumni Council attempted to place the ad criticalof funding for athletics in Rutgers Magazine in May 1998.After the magazine's editors rejected its publication, citinga policy against running issue-oriented ads, the alumni groupsued and won in a state trial court.
The three-judge panel of appellate court upheld the lower court'sdecision, but also found that the magazine's policy of refusingissue-oriented ads was acceptable, except in this particular case.The judges said the magazine's decision to publish an ad for ticketsto a Big East basketball tournament infringed on the magazine'spolicy. Therefore, the university engaged in viewpoint discriminationwhen it turned down the alumni group's ad, the court ruled.
"While the magazine's stated policy of refusing issue-orientedads is valid, the magazine violated its own policy through theprior publication of what can reasonably be construed to be anissue-oriented or advocacy ad addressing the same subject matter,"the decision stated.
Grayson Barber, the American Civil Liberties Union attorneywho represented the alumni group, said the decision was a victoryfor both parties. In addition to narrowing the scope of the trialcourt's decision, the appeals court also gave Rutgers leverageto edit the magazine for content, Barber said.
The university's legal counsel praised the court for allowingRutgers to maintain its advertising policy, but criticized thepanel's findings in the Rutgers 1000 matter.
"Although we disagree with the court's ultimate conclusionas to one classified ad, the university is pleased that the courtrecognized and corrected many errors made by the trial court,which had severely compromised Rutgers' freedom to speak in itsown magazine," university counsel David R. Scott wrote ina statement.
While the appeals court did not address the relationship betweenuniversities and student publications, Barber said student journalists,such as those at Rutgers' Daily Targum, still retain theirrights to operate free of censorship.
"When you have a student-run publication where the editorialdecisions are being made by students, then that publication getsa lot of freedom," Barber said. "The Targum couldtake or reject ads for any reason — that's a First Amendment right."
"That's why this case was so different," she continued."Rutgers Magazine really was an instrument of thestate because state officials were making the decisions."
The university has not decided if it will appeal the decision.