The Oct. 2 Missoulian editorial entitled "A student journalist isn't a solicitor" addresses an important policy issue in advocating a student newspaper staff's right to solicit interviews from students in their University of Montana residence hall rooms without being invited by the students who live in them. Here's why the Missoulian gets it wrong on the First Amendment points in the editorial.
I say without fear of contradiction that we of the University of Montana understand very well the First Amendment freedom of the press. As the attorney who defends the Montana Kaimin from actual and threatened lawsuits, and who helped put together one of Montana's highest visibility legal cases in history upholding journalism students' legal rights, and also as a UM Law School faculty member who teaches and publishes scholarly works on higher education First Amendment legal issues, I have a good grasp and an extreme affinity for our UM student media. As the parent of a high school newspaper journalist who wrote for the Missoulian, worked all the way through a journalism degree program on the editorial staff of an award-winning campus newspaper and who now makes a living professionally in the large city journalism world, I have plenty of personal sympathy for working reporters and editors. Let us now get down to some basic First Amendment rules applicable to the press.
Print and other media have never had limitless First Amendment rights to do what they want. Print and broadcast media cannot defame others, incite riots, knowingly publish fraudulent or deceptive content likely to harm, and, more to the point here, invade privacy. The University of Montana has long had the policy of prohibiting all door-to-door solicitations or other communications of any type in UM residence halls. Montana law defines dormitory rooms as private residences, and not even UM residence life staff have the right to enter them without occupant consent. In addition, federal and state courts in the United States regularly recognize and enforce legally protected privacy rights even in the hall areas of public university dormitories to keep these areas free from intrusive behavior. Earlier this year an appeals court in Washington reiterated this well-established rule in a case which threw out student arrests. Worth noting here is Montana's state constitutional right to privacy, which our Supreme Court describes as the most stringent privacy protection law in the country.
A committee appointed by President George Dennison and chaired by one of Montana's pre-eminent First Amendment attorneys who teaches full-time in our Law School thoroughly reviewed our facilities use and access policy, including the one at issue here, with the mandate to ensure compliance with all applicable constitutional requirements. We are satisfied that our UM access policies do so. As I understand the Missoulian editorial position, we should make a student journalist exception to the policy barring door-to-door intrusions in residence halls. Under this rationale we would then have to make exceptions for the Missoulian, our local television stations, national newspapers and broadcast media, and all other journalists (actual and would-be) who want onto the floors. I say this because we choose to treat the Kaimin as we do all other media, with the respect our campus newspaper connected to our nationally ranked Journalism School deserves.
Under this same Missoulian rationale, reporters would be free to roam around all public agency locations whenever and wherever they wish, at any hour of the day or night, with tape recorder and camera in hand, exercising a freedom the First Amendment has never condoned or contemplated. Kaimin staff are professional journalists as far as UM is concerned, with the same rights and privileges, but also subject to the same restrictions.
Once we create an exception for reporters seeking access to our residence hall floors and doors, we open the proverbial floodgates. Political candidates, religious and anti-religious advocates, and eventually commercial solicitors of all kinds will soon be invading the residence halls seeking access to a captive student audience with serious disruption. In addition to such disruption, major safety concerns also arise as occurs whenever uninvited persons enter our residence halls. UM has chosen to avoid these problems with a legally sound policy conducive to a quieter, safer residence hall environment linked to the reason students are here, namely to study. We do not even allow our ASUM student government candidates to campaign on the floors door to door, and no one seems to mind.
The Missoulian is free to criticize the University of Montana and our UM policies whenever it wants to do so. Our First Amendment and Montana's Constitution guarantee this right. Freedom of press rights stop well short of unwanted intrusion into our students' private lives. We'll likely keep it that way for the foreseeable future as a matter of sound educational policy.
David Aronofsky is legal counsel for the University of Montana.