L. Rutgers Alumni Magazine Agrees To Publish Controversial Ad

     Several years ago a group of Rutgers University alumni, including Nobel laureate Milton Friedman, prepared a message they wished to have published in Rutgers Magazine, the principal medium for communication with graduates.  The “Rutgers 1000,” as they called themselves, wished to share with fellow alumni their growing concerns about the emphasis on intercollegiate athletics.   

     They described themselves as “the Loyal Opposition -- loyal to the university but opposed to big-time sports.”  Specifically, they urged that Rutgers withdraw from the Big East Conference, eliminate athletic scholarships, and decrease other athletic expenditures, emulating the Ivy League institutions by returning athletics to a “truly collegiate” level.  The magazine seemed to the Rutgers 1000 the only feasible means of reaching a diverse and geographically scattered alumni body.

     The university blocked publication of such a message, insisting that the alumni magazine simply did not run “issue-oriented” ads.  The Rutgers 1000 promptly went to state court, where they argued that such an action by a state university abridged their First Amendment freedoms.  (Though Rutgers began life as a private institution, it has long been the state university of New Jersey, as its publications and insignia proudly proclaim.)

     In March 2001, New Jersey Superior Court Judge Joseph Messina ruled in favor of the Rutgers 1000, telling the university it could not refuse to publish such a message.  Though the magazine’s editor had insisted in court that his publication did not constitute a “public forum” for First Amendment purposes, the judge was not impressed.  What seemed crucial to him, as well as legally dispositive, was the presence in earlier issues of Rutgers Magazine of articles and ads about the Rutgers athletic program.  Thus, a rejection of the critical message submitted by the Rutgers 1000 represented unconstitutional “viewpoint discrimination.”  In early summer 2001 school officials announced the ad would appear, though the university may yet appeal the ruling.

     The message of the Rutgers 1000 was, to be sure, not purely commercial, but more closely analogous to the “editorial advertisement” that caused the U.S. Supreme Court to create the New York Times libel privilege in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).  The present judgment is notable because it suggests that First Amendment concepts that shape traditional aspects of a public university’s communications system also govern the acceptance or rejection of materials for its alumni magazine.