Updated: Dec 13, 2020
San Francisco Supervisors Dean Preston and Hillary Ronen announced they plan to incorporate "journalistic standards" into a City law governing newspaper advertising contracts
Doing so may be unconstitutional, according to leading First Amendment scholars
A new proposal by two San Francisco Supervisors to make “journalistic standards” a condition of City advertising contracts may be legally dubious, according to leading First Amendment scholars.
Backing away from an earlier move to withhold City advertising funds from one local paper specifically, The Marina Times, the Board voted on Tuesday to approve placing ads in the 36-year-old paper, which circulates in a handful of Eastern neighborhoods.
Instead, Supervisors Hillary Ronen and Dean Preston announced that they are “reviewing options” to change Prop J, a 1994 law governing newspaper advertising contracts, to incorporate what Preston called “certain basic journalistic standards.”
The imbroglio began at a grievance-laden Board of Supervisors meeting last week, during which Supervisors complained about what they considered unfair or inaccurate coverage by The Marina Times, making reference to “hate speech” and “disinformation,” though no Supervisors provided any specifics. In a 7-4 vote, the Supervisors voted to single out The Marina Times from the City’s advertising list.
That move, combined with the nearly an hour's worth of complaints by Supervisors about The Marina Times' coverage, raised eyebrows among First Amendment experts.
“You can’t discriminate based on the viewpoint of a publisher,” said Eugene Volokh, professor at the UCLA School of Law and a widely-published author on First Amendment issues.
Volokh pointed to two legal precedents, North Mississippi Communications, Inc. v. Jones and El Dia, Inc. v. Rossello, both of which involved a government’s relationship with a local newspaper. Those federal cases held that governments may not withhold a benefit on a basis that infringes upon constitutionally protected interests, such as free speech.
"All of us on this Board have had negative things written about us in the press. Choosing to run for office means choosing to open yourself up to criticism, fair or not," said Sup. Catherine Stefani, who represents the Marina district, at Tuesday's Board of Supervisors meeting. "Taking on that responsibility does not mean that we get to become the arbiters of truth, political viewpoints, or journalistic standards...that is far outside our prerogative, and far afield of the First Amendment."
San Francisco’s contracting relationship with local newspapers dates back to Prop J, a 1994 law that requires the City to place ads for public notices in neighborhood or community newspapers. Each year, San Francisco’s Office of Contract Administration evaluates the list according to certain content-neutral factors like circulation.
In a peculiar joint statement on Monday, Supervisors Preston and Ronen said that they “are seeking guidance” from the Society of Professional Journalists, a group that publishes professional guidelines and recommendations for journalists, in figuring out a way to incorporate new standards in the City's contracting rules. However, a board member of the Society’s local chapter disputed the Supervisors’ characterization of their role, saying they “haven’t signed on to anything.”
“We should at minimum require that any news outlet wishing to contract with the city comply with certain basic journalistic standards,” said Preston and Ronen in the statement. “Going forward, we intend to have objective standards in place to ensure that City funds are not supporting misinformation.”
The issue with the Supervisors’ plan to write “journalistic standards” into law, vague as it may be? That pesky First Amendment again.
“A city cannot discriminate among papers it will contract with based on the viewpoints expressed. Nor do I think can this be done based on content. But there can be neutral criteria, like circulation,” said Erwin Chemerinsky, Dean of Berkeley Law and a leading constitutional law scholar who has argued First Amendment cases at the U.S. Supreme Court.
“I think ‘objective standards to prevent misinformation’ sounds very close to being about content," Chemerinsky said.
But, he added, "it is hard to tell at this stage."