Journalism plays many roles in society, including government watchdog, public educator and facilitator of dialogue.
The Utah Legislature would do well to remember that. The Legislature is considering a measure, HB241, that could inhibit journalism organizations in their important role in society. By imposing a ban on certain contracts between news media organizations and their employees, HB241 abridges the freedom of speech and of the press, and thus it violates the First Amendment to the U.S. Constitution.
Writing in the Alabama Law Review in 2014, University of Utah law professor RonNell Andersen Jones discussed Supreme Court cases on the educational role of the press. Jones said the Supreme Court viewed news media organizations as entities “that will do the hard work of finding out what is happening in the democracy, and then pass along the information to those who could not or would not glean it for themselves.”
One of the cases Jones discussed was decided by the Supreme Court in 1983 in favor of a Minneapolis newspaper that objected to Minnesota’s tax on ink and paper. In that case, Justice Sandra Day O’Connor wrote for a majority of the court that “an untrammeled press is a vital source of public information … and an informed public is the essence of working democracy.”
O’Connor led seven other Supreme Court justices in concluding, against one dissenting vote, that the First Amendment protected newspapers from a targeted tax on ink and paper such as Minnesota had imposed. While generally applicable regulation, including taxes, would not offend First Amendment values, the differential treatment of newspapers in the Minnesota case resulted in the law being declared unconstitutional.
The Supreme Court reached this conclusion despite no documented history that legislators in Minnesota imposed the tax due to animus toward news organizations. Previously, the Supreme Court had held in a Louisiana case that a state violated the First Amendment when it imposed a sales tax on newspaper circulation with the intent to burden newspapers due to their negative coverage of former Gov. and then-Sen. Huey Long.
Under the Minnesota and Louisiana cases, then, the Utah Legislature should avoid targeting news organizations whether or not the legislation is based on animus. In its current form, HB241 prohibits news organizations from entering into a “post-employment restrictive covenant” with their employees.
While so-called noncompete agreements in any industry may be abused, that is no excuse for legislation targeting news organizations. The Supreme Court, in the cases discussed above, has stated that any law or regulation specifically targeting news organizations would only be held constitutional if the government can demonstrate a compelling reason.
In the constitutional law context, a compelling interest must be of the life-and-death or national security magnitude. That is not something Utah has shown in the case of HB 241. While the bill has been cast, including by writers at The Salt Lake Tribune, as a necessity to free up journalists, my view is that any government regulation that specifically targets news media is presumptively unconstitutional and unwise. It opens the door to future government meddling in journalism.
While news organizations are imperfect, like all other entities, they have always had a special role under the Constitution. Utah should leave news organizations alone so they can monitor, educate and promote dialogue in line with the values behind the First Amendment.
HB241 should not be passed by the Legislature and, if it is, it should be vetoed by the governor.
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Edward L. Carter is a Utah journalism professor and lawyer. In 2016 he completed a postgraduate law degree in international human rights law at the University of Oxford.