Government Advertising Placement and the First Amendment: Freedom of the Press Should Outweigh the Rights of the Government as Contractor

By Bernabe-Riefkohl, Alberto | Communications and the Law, March 2000 | Go to article overview

Government Advertising Placement and the First Amendment: Freedom of the Press Should Outweigh the Rights of the Government as Contractor


Bernabe-Riefkohl, Alberto, Communications and the Law


On December 9, 1997, El Dia, Inc., the corporation that publishes El Nuevo Dia, Puerto Rico's principal and most widely read newspaper, filed a complaint against the Governor of Puerto Rico, Dr. Pedro Rosello, and several other government officials arguing that the decision to withdraw advertising of several government agencies was a violation of the newspaper's fights under the First Amendment.(1) The complaint raised serious issues regarding the constitutional doctrines of subsequent punishment of the press for protected expression and prior restraints, among others, which are of concern to journalists, the media, and the general public. In deciding the defendants' motion to dismiss based on the concept of immunity, the court hinted at how it may have decided the case on the merits, but it never had a chance to do so.(2) This article outlines some of the issues raised by the claims that a court would have to examine in similar cases and suggests how newspaper plaintiffs could argue similar claims.

I. THE CLAIMS ON THE COMPLAINT

The government routinely places a large amount of advertising and official notices in newspapers. In the case of Puerto Rico, the government's main outlet for both advertising and notices is the newspaper El Nuevo Dia. Beginning in January 1997, El Nuevo Dia published a series of articles alleging patterns of fraud and waste in the Rosello administration.(3) In April 1997, the newspaper published an article critical of the governor's first 100 days in office.(4) According to the complaint, the following day eighteen government agencies began to cancel their advertising contracts with the newspaper.(5)

After the government unexpectedly withdrew most of its patronage, the newspaper sued, arguing that the defendants violated its constitutional rights in retaliation for critical articles about the governor and his administration.(6) Governor Rosello asserted that the case did not concern the First Amendment's protection of freedom of the press.(7) Instead, he argued that the actions of the government were a legitimate attempt to manage the costs of advertising.(8) The defendants' argument was based on the notion that placement of advertising and legal notices is discretionary and that the state should be free from scrutiny by the judiciary of its daily management functions.

The defendants attempted to avoid the real issue in the case when they alleged that the issue in the case was whether members of the government "are permitted by the First Amendment to choose where the government's advertising messages will appear."(9) The answer to that question clearly is "yes." The government has the right to decide where to publish its advertising. The problem is that the plaintiff was raising a claim for a constitutional rights violation under 42 U.S.C. [sections] 1983. The issue before the Court was not whether the government had the right to decide where to publish but, rather, whether the government had violated the plaintiffs' First Amendment rights because of the way in which it exercised that right.(10) More specifically, the question was whether the government violated those rights when it decided to end a preexisting commercial relationship with a newspaper in response to unflattering news coverage. Notwithstanding the discretion to choose a newspaper with whom to advertise, if the defendants withheld patronage in retaliation for El Nuevo Dia's publication of critical articles, the defendants violated the plaintiff's civil rights under the First Amendment.

El Nuevo Dia's claim was analogous to typical claims made by government independent contractors and public employees who have asserted that adverse action was taken against them because they exercised First Amendment rights.(11) The defendants in these cases usually deny the alleged motive or claim that the adverse action would have been taken anyway because of other reasons. In cases like these, courts must deal with the factual issues regarding the government officials' motive and with the legal question regarding the burden of proof and applicable standard. …

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