Stars and Stripes and the First Amendment – Columbia Journalism Review

Posted: February 15, 2020 at 9:49 am

The Pentagon. Photo: Adobe Stock

On the eve of the Trump administration presenting its budget proposals to Congress, the Wall Street Journal reported that the Pentagon plans to cut back its funding of Stars and Stripes, a government-ownedyet editorially independentnewspaper covering military matters.

That was news to the papers top management, which wasnt officially informed of the planned cut until Monday morning. Initially, the extent of the cut wasnt totally clear, though Terry Leonard, the papers editorial director, told NPR that it could amount to more than a third of the papers budget. On Wednesday, the Pentagon confirmed that it wants to cut the subsidy in its entirety.Like any newspaper, Stars and Stripes draws revenue from subscriptions, sales, and advertisingbut, it says, it also depends on the Defense Department subsidy to cover the expensive and sometimes dangerous task of overseas reporting and distribution.

Why is the Pentagon targeting Stars and Stripes now? Officially, the decision stems from a wide-ranging review ordered by Mark Esper, the defense secretary, in a bid to free up extra funds. But Elaine McCusker, the Pentagons acting comptroller, also said the department had decided that in the modern age, running a newspaper is probably not the best way we communicate. That remark elicited pushback. Barbara Starr, Pentagon correspondent for CNN, noted that the print edition of Stars and Stripes serves troops overseas who cant use their phones for security reasons. Leonard pointed out, on NPR, that Stars and Stripes isnt just a dead-tree product, but has a digital presence, including a podcast. And Ernie Gates, the papers ombudsman, took issue with McCuskers use of the word communicate. Stars and Stripess mission is not to communicate the DOD or command message, he tweeted. So we communicate misses the mission.

Instead, Gates wrote, Stars and Stripes is an independent, First Amendment publication. I asked him what that looks like in practice, given the operational and financial involvement of the federal government. He told me, in an email, that the arrangement does entail some limitations. Stars and Stripes journalists are Pentagon employees, and are barred from revealing classified information and running editorials (though they can publish secrets revealed by other outlets, as well as outside opinions). Nonetheless, Gates said, Stripes is part of a free pressfree of censorship, free of command interference, free of prior restraint or prior review. Its reporting on the military, he added, is analogous to the freedom a commercial news organization should have to report on its business side or ownership.

The proposed funding cut to Stars and Stripesand Gatess invocation of the First Amendmentreminded me of a story I wrote in 2018 about the Bay Journal, a newspaper that covers environmental issues on the Chesapeake Bay. The Bay Journal grew out of the Clean Water Act, which included provisions to keep the public informed about efforts to clean up the Bay. The Journal has performed that functionfirst as a newsletter, then as a full-fledged newspaper.

Like Stars and Stripes, the Journal is editorially independent but receives significant state fundingin its case, from the Environmental Protection Agency. In 2017, the EPA moved to cut the Journals funding. Its official reasoning was vague, but internal emails clearly suggested that the decision was linked to the papers coverage. As a result, the Journal sued the government on First Amendment grounds, claiming that the cut amounted to discrimination based on viewpoint, and thus was unconsitutional. It also argued that it had been denied due process. In the end, the EPA backed down and restored the grant.

At the time, the Journals plight intrigued me: how could the governmentwhich, after all, is elected to make funding decisionsbe constitutionally bound to fund certain types of speech? Experts I spoke with differed on the merits of the Journals case. But broadly speaking, the question boils down to whether or not a state-backed outlet has been designed as a government mouthpiece. If a Republican administration, for example, created a newspaper explicitly to push anti-abortion views, a subsequent administration with different priorities would likely have a right to change course. When it comes to papers with independent journalistic mandates, however, thats less clear-cut.

McCuskers use of communicateand Gatess objection to itthus goes beyond semantics. I would argue that Stars and Stripes, as an editorially independent organization, is a designated public forum under the First Amendment, Jonathan Peters, a professor at the University of Georgia and CJRs press-freedom correspondent, told me in an email. The First Amendment doesnt require the government to subsidize expression, but if the government does, it may not then discriminate based on the viewpoints of the organization whose speech its subsidizing.

At present, there is no clear indication that the Pentagon wants to cut Stars and Stripess funding for reasons relating to its reporting. There is some evidence, however, of tensions between the paper and military brass. Leonard told NPR this week that while the Pentagon hasnt tried to interfere with its coverage, it has imposed restrictions elsewhere. Were finding that in the current atmosphere, access is getting tighter and tighter, Leonard said. You cant help but see that theres people that resent the fact that were not playing ball with the team. (Leonard and a Pentagon spokesperson did not respond to requests for comment.)

While Stars and Stripes stresses its First Amendment mission, the First Amendment does not, as things stand, look sufficient to protect it against cuts to its funding. But it may not need it. With Congress divided, the Trump administrations budget, as a whole, is more a wish list than a viable legislative blueprint. The Stars and Stripes proposal could be ratified individually, but in the past, lawmakersincluding Republicans on the House Armed Services Committee (one of whom, Martha McSally, is now a US senator)have opposed cuts to its subsidy.

Being zeroed out in the presidents budget is not the best starting point, but Im sure Congress will have its own ideas, Gates told me. I wouldnt try to predict the outcome, but Im hopeful.

The Bay Journal, for its part, has been left alone by the EPA since its legal fight, and continues to do what any independent newspaper shouldscrutinize the government. On the Journals radar right now: Trumps budget proposing, for the fourth year in a row, to decimate environmental protections for the Chesapeake Bay.

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