Updated: Dec 5, 2020
A revision to a contract the City maintains with community newspapers, which singled out a publication called the The Marina Times, raised alarm bells with First Amendment watchdogs
A group of Supervisors voted to separate The Marina Times from the City's advertiser list on the basis of what they deemed illegitimate reporting
The action may run afoul of First Amendment law, which contends that governmental bodies must not engage in "viewpoint discrimination"
For First Amendment watchdogs, an item introduced this week at the San Francisco Board of Supervisors didn't quite pass the smell test.
That was an amendment, introduced by Sup. Dean Preston on Dec. 1, to the routine process of approving a list of community newspapers in which the City places ads for public meetings. This process is enshrined in Proposition J, a 1994 ballot measure that designated the City as “purchaser” of these small advertising contracts, which are based on criteria like distribution and circulation.
This time, Preston singled out one paper, The Marina Times, and posited that the paper be segregated from the list and barred from receiving City advertising, which amounts to a few hundred dollars in monthly revenue.
The reason? Preston, who has received critical coverage in The Marina Times, said he considers their reporting illegitimate, likening the coverage to “disinformation” and “personal attacks,” also citing a tweet that he deemed threatening.
Sup. Hillary Ronen and others chimed in with their own personal grievances towards The Marina Times, a paper known for its critical coverage of City Hall -- and in the eyes of some Twitter users, outspoken tweets by Editor-in-Chief Susan Dyer Reynolds. Ronen went so far as to label The Marina Times, which has circulated for 36 years, “a propaganda outfit that presents lies with facts,” though she didn’t cite any specifics.
Ultimately, only Supervisors Peskin, Stefani, Safai and Mandelman dissented on the proposal to single out The Marina Times from the circulation list, and the board will vote on whether to cut off funding to the paper on Dec. 8. Supervisors Preston, Ronen, Haney, Fewer, Walton, Yee and Mar approved the proposal.
“How many times have we seen [Trump] go after reporters because he doesn't like what they say? We cannot allow these trends to continue...We must protect local journalism even when we don't like what they say,” said Sup. Stefani in a heated dissent. “When I first heard about this proposed amendment, I literally could not believe it. I may not always agree with what is printed in The Marina Times. But that is not for me to decide.”
Reporters, yours truly included, were similarly incredulous at the conversation unfolding on Tuesday. Let’s call a spade a spade: Tuesday’s session was a display of retaliation towards a specific news source, with a group of politicians – to be sure, the very same politicians often scrutinized by The Marina Times – openly adjudicating the merits of that publication’s reporting.
“It’s troubling when government officials are making policy decisions based on their perception of whether a media outlet is real or valid journalism,” said David Snyder of First Amendment Coalition, a leading First Amendment law group. “That’s the kind of distinction government officials should not base their policy decisions on. Even if it’s not a violation of the First Amendment, it smacks of state-sponsored punishment of free expression.”
According to David Hudson, professor of law at Belmont University and a fellow at the Freedom Forum Institute, the Board of Supervisors’ actions on Tuesday may constitute “viewpoint discrimination” – a subset of First Amendment law which holds that the government may not discriminate by favoring one set of private speakers over another.
In one famous First Amendment case, Tinker v. Des Moines Independent Community School District (1969), public school officials in Des Moines banned black armbands but allowed students to wear other symbols, such as Iron Crosses and political campaign buttons. In this case, the Supreme Court warned that this represented a singling out of a specific, anti-war, viewpoint.
“From what you describe, this sounds like blatant viewpoint discrimination – a governmental body discriminating against a newspaper based on its coverage,” said Hudson. “That is the essence of viewpoint discrimination, which is anathema to the First Amendment and a free society.”
In theory, Hudson said, the government could try to argue that the speech constitutes government expression, which carries its own framework for what is permissible.
But at minimum, Hudson added, the Board of Supervisors's actions are "fishy.”
“I just think this is very problematic,” he said.
As for The Marina Times, Reynolds said that losing the City’s advertising wouldn’t be a death knell for the newspaper, but acknowledged that the lost advertising revenue would hurt the paper’s publisher. The advertising revenue amounts to about $3700 per year, according to Reynolds.
“He’s 73 and very well-respected, and this money means a lot for him,” she said, calling the Supervisors’ vote “vindictive.”
Reynolds defended The Marina Times’ reporting, pointing to a July 2020 article that was the first to identify the relationship between permit expediter Walter Wong, who pled guilty to fraud and money laundering charges, and former San Francisco Public Utilities Commission head Harlan Kelly, who was just charged with fraud as part of the ongoing federal corruption probe of San Francisco officials.
“I love San Francisco and I’m tired of the corruption, and I love the hardworking men and women who have long felt ignored,” Reynolds said. “I do my homework, and not once has any of [the Supervisors] asked me for a retraction at any time. If they don’t like what I say on Twitter, too bad.”