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A New Jersey Superior Court judge ruled last Tuesday that the state university’s alumni magazine is a public forum that cannot exercise content-based regulation of advertising, even though it may speak ill of the administration. As such, Rutgers Magazine must permit the Rutgers 1000 Alumni Council to place an advertisement stating that Rutgers University’s educational mission is jeopardized by the university’s emphasis on collegiate sports. In the rejected ad, Rutgers alumnus Milton Friedman, an economist, urges the school to withdraw from “professionalized” athletics, to resume competition at a “truly collegiate” level and to return to its values as an old and distinguished university. In an opinion given from the bench, Middlesex County Judge Joseph Messina adopted findings of fact and conclusions of law proposed by Princeton, N.J., sole practitioner Grayson Barber, who handled the plaintiff’s case for the American Civil Liberties Union. “We’ve got a situation where reasonable minds can disagree about the role of sports at a university,” says Barber, but the Rutgers 1000′s viewpoint is relevant because it goes to the heart of Rutgers’ mission, education, she adds. Rutgers, represented by partner Peter Skolnik and associate Michael Norwick of Lowenstein Sandler in Roseland, N.J., says it has not decided whether to appeal. “I think the most problematic legal conclusion was that the advertising pages are a public forum, rather than a nonpublic forum,” says Skolnik. “In terms of the finding of fact, although this is a mixed question of law and fact, we disagree that the magazine was engaging in viewpoint discrimination. The facts established in this case were that the magazine published the viewpoint of the plaintiff in three different sections of the magazine.” Although the magazine had a policy against issue-oriented advertising, it was not put in writing until the Rutgers 1000 request was denied, and Messina found it had been inconsistently applied. William Owens Jr., Rutgers’ director of marketing and communications services who also is the magazine’s editorial director, said at trial that he did not intend to create a public forum. “A designated public forum is ‘created by purposeful government action,’ ” the university said in court papers, citing Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666 (1998). Such fora are not created “by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse,” the university said, citing Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788 (1985). The Rutgers 1000 countered that the advertising space in Rutgers Magazine is open to the public, is compatible with expressive activity in the form of advertising and has permitted advocacy advertising before. Barber cited an ad headlined “Salute to Alumni Legislators,” which encouraged readers to contact lawmakers about state legislation involving Rutgers, and an ad for a Big East basketball tournament at Madison Square Garden. Skolnik said Owens’ acceptance of the Big East ads did not constitute the espousal of a viewpoint, and that if the college belonged to another athletic conference that organization would likewise be allowed to take out ads. “The issue here is the plaintiff took the position that when you are looking to intent, go beyond subjective intent, and infer intent from prior conduct and practices. Our position was prior conduct all demonstrated there was no such intent,” Skolnik said. Rutgers also argued that its magazine gave mention to the Rutgers 1000′s mission three times before the ad was refused. One mention was in an article about a new athletic director, when the writer interviewed and quoted the group’s leader, Robert Seclow. The magazine also printed four letters to the editor in support of Seclow’s views. And, an alumni notes section mentioned Seclow’s involvement in the group and gave an address where he could be contacted, says Skolnik. Barber argued that Rutgers Magazine engaged in viewpoint discrimination, and she cited FCC v. League of Women Voters, 468 U.S. 364 (1984). That decision held that a “regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a ‘law … abridging the freedom of speech.’ “ “There is no suggestion in this case that any newspaper or magazine would have to take an ad that they don’t want to take,” she said. “When a state actor opens up a forum to the public, then the state actor has to treat people public fairly.” Donald Robinson, who represents newspapers in First Amendment issues, says Messina appears to have applied the public forum doctrine soundly in the Rutgers 1000 case. Testing under that doctrine is highly fact-sensitive but not overly complicated, says Robinson, of Robinson & Livelli of Newark, N.J.

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