Federal Court Judge R. Allan Edgar has denied the preliminary injunction retaining ousted journalistic advisor Cheryl Reed.
Edgar gave his ruling yesterday, July 13.
“This case seems to have been spawned by what amounts to an editorial dispute between different people involved with the newspaper. The dispute may well have been avoided if those involved, including Reed, had talked to each other during the school year, and tried to reach a consensus,” Edgar wrote.
Assistant Vice President of University Marketing and Communications (formerly Identity, Brand and Marketing) Derek Hall said Northern was happy with the decision.
“The judge’s comments seem to support the efforts of the North Wind Board in following their bylaws and it is the board’s responsibility to find a journalistic advisor for the student paper,” Hall said. “The University looks forward to a resolution to the lawsuit and the judge’s ruling on the injunction is just the first step.”
The opinion said that an injunction was denied because Reed’s primary role of professor was not affected by not being advisor. Reed is still employed by NMU.
Plaintiffs relied on rulings that had direct impact on advisor’s salary or benefits in their oral arguments. Previous problems regarding Reed’s release time regarding her role as advisor were chronicled in the released Facebook messages implemented by the plaintiffs as being an English department issue away from the North Wind Board of Directors. Those sentiments were mirrored by emails released in the controversial Freedom of Information Act request by Emma Finkbeiner in January 2015.
The injunction would not create harm for either party if it was issued or denied. It did say that if the case was not thrown out in entirety in the upcoming days that only Neiheisel would remain as a defendant.
“(I)t cannot be said that the requested injunction would result in great harm to Mr. Neiheisel, who is likely to remain the only defendant in this case if the case is not dismissed in its entirety,” Edgar wrote.
That is a big win for the four student defendants in the case, which includes the board’s chairperson Aubrey Kall. Edgar stressed the student volunteer nature of four of the five defendants and that without pay or class credit, the students retained their independence from the state actor of NMU.
Edgar wrote that four of the five defendants were students first and the relationship between students and professors was strained.
“At this point it seems that this case is mostly sound and fury,” he wrote. “We have the odd spectacle of a professor suing her students (in reference to the four student defendants).”
Reed was saddened by the decision, but was more concerned that the ruling had a long-lasting impact on student journalists at the North Wind.
“The judge has decided it was in the purview of the board to decide tone and content of the paper,” Reed said. “That flies in the face of earlier student journalists cases, including Kincaid v. Gibson, which ruled that student editors have full control over the editorial content of student media. We are saddened by the judge’s opinion and concerned for the future of a free press on the campus of NMU.”
The issue over tone of the newspaper comes from the North Wind bylaws. Edgar ruled that any action by the four students would be in direct relation to the process involved by the bylaws, which state that “the Editor shall be responsible to the Board for the editorial content and tone of the newspaper and for the selection, direction and supervision of the editorial staff.”
Kincaid v Gibson is a 2001 case regarding student publications at Kentucky State University. Kentucky is part of the sixth federal circuit and is the binding decision for the court presided by Edgar.
“The whole provision in the board bylaws that gives the board responsibility for tone is one of the underlying issues in this case,” Frank LoMonte said in an article regarding the decision by Trisha LaBoeuf of the Student Press Law Center. “There’s no question that you can’t have a government-appointed board controlling the content of the student media. That is completely foreclosed by the Kincaid decision.”
LoMonte was present at the oral arguments on June 29.
Edgar can only rule on factors that were presented by the attorneys on both sides. Unfortunately, some information was not fully expressed. Some other key factors from the opinion by Edgar that were not addressed by counsel from either side:
1) Edgar ruled that Michael Williams, the student journalist who was a plaintiff in the case, was not the focus of protected speech by the North Wind. Since the controversial Starbucks and sexual assault stories were published while he was not a student, Edgar wrote that the issues between board members started long before he was involved with the group. Edgar even said that none of the controversial stories were written by Williams. However, Williams was the journalist that went to the doors of Bridget Berube and Walt Kyle and wrote the controversial story on January 22. The defense included emails between Reed and a NMU department head as part of their three pieces of evidence when they did not address the Starbucks or sexual assault stories at all.
2) It did not deal with defendants Kall and Troy Morris as NMU employees involved in image-related positions. Kall was one of the producers of Public Eye News, which is both a leader of a student group and a paid position at NMU, while Morris is a campus tour guide. Campus image is a key part of Neiheisel’s role as vice president of student services and enrollment.
3) It did not address the conflict of interest between Northern Michigan and Miller Canfield. Defense attorney Robert Zielinski and NMU legal counsel Kurt McCammon both work for the mega-firm based out of Chicago. Miller Canfield is a huge firm, but McCammon has actively been involved in Freedom of Information Act requests by and about the North Wind and other media groups. One of those interactions was the exclusion of emails between Neiheisel and Kall under the guise of FERPA. McCammon’s decisions on FOIA requests would be considered a state action since it is described in NMU’s official FOIA policy and would constitute as attorney-administrative conflict of interest.
4) It does not give a clear definition of two students as state actors. While Edgar has written and referenced cases that define students as independent actors, it does not deal with whether or not Morris and Mary Malaske (the fifth student on the board) would be designated as state actors since they were appointed by the Associated Students of Northern Michigan University (ASNMU). The fifth and eighth circuits have ruled that student governments are state actors but the second district in a case referenced by the defense ruled they weren’t. The most direct comparison case is Alabama Student Party v. Student Government Ass’n, which was about student government involvement in student publications. That was from the eighth circuit.
ASNMU voted on April 13 that they were only allowed to operate based on the permission of the NMU Board of Trustees, which would define the student government as state actors under public forum creation rules. If Morris and Malaske are determined to be state actors as well, then the board would shift to a majority of state actors, with the two students considered appointed by a state actor, the two advisors and faculty member at large employed by the university and the community journalist appointed by the NMU president, who is an indisputable state actor. Edgar’s ruling was based on the independence of the board, but this clarification could change that.