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
Save to active project

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?