Group sues university over refusal to publish ad in alumni magazine

Wednesday, April 21, 1999

A group of faculty, students and alumni at Rutgers University has sued the school for refusing to publish an ad submitted to the alumni magazine urging the school to focus more on academics and less on athletics.

The Rutgers 1000 Alumni Council contends the university violated its First Amendment free-speech rights when it rejected the display ad submitted to Rutgers Magazine.

The ad, which carried the headline “For Rutgers Alumni — A Time to Choose,” included a quote from Nobel Prize-winning economist and Rutgers alumnus Milton Friedman: “Universities exist to transmit knowledge and understanding of ideas and values to students, not to provide entertainment for spectators or employment for athletes.”

The university refused to publish the ad, saying that its policy was not to carry any “advocacy ads” in the magazine.

In November 1998, the university also refused to run a classified ad placed by Rutgers 1000 to announce the goals of the organization and provide the group's address.

With assistance from the American Civil Liberties Union of New Jersey, Rutgers 1000 sued in state court on April 19, claiming that the state university's refusal to run the ad violates both the First Amendment and the free-speech provision of the New Jersey Constitution.

The university's “refusal of the advertisement was due, in whole or in part, to a custom, policy, pattern or practice of discrimination against political or advocacy speech,” the group alleges in its lawsuit, Rutgers 1000 Alumni Council v. Rutgers, The State University of New Jersey.

Flavio Komuves, the group's attorney, says “political advertising is entitled to the highest degree of constitutional protection.” He said: “We don't think the university as a governmental actor can exclude dissenting viewpoints when the reason given for squelching the dissenting viewpoint is the exclusion of all advertising about ideas.”

Rutgers University counsel refused to comment on the lawsuit to the First Amendment Center, sending instead a copy of the news release issued the day the suit was filed. According to the statement by University Counsel David R. Scott: “Based on our preliminary review, Rutgers feels that the constitutional arguments raised by the ACLU are without merit and that the actions of Rutgers Magazine with respect to this matter will be upheld as entirely constitutional and proper.”

At least one free-speech expert questions whether the alumni magazine had to accept the ad. “A reasonable person would not conclude that the pages of an alumni magazine were a public forum in which all subjects and viewpoints were invited,” Vanderbilt University law professor Tom McCoy said.

“Rather, a reasonable observer would intuitively know that an alumni magazine serves certain special public-relations purposes and only material consistent with those purposes would ever be included,” McCoy said.

McCoy said the case could well turn on “whether, in spite of the articulated policy given by the university, the university accepted a wider range of ads thereby suggesting the existence of a public forum.”