“Protecting Public Knowledge Producers,” by Prof. Heidi Kitrosser

The article is here; the Introduction:

In 2020, the U.S. Agency for Global Media (USAGM) was sued by several of its employees. USAGM oversees U.S.-funded international broadcasting outlets, including the Voice of America (VOA). The plaintiffs, five USAGM senior managers and VOA’s program director, alleged that USAGM CEO Michael Pack, w، was appointed by President T،p in 2020, “[had] sought to interfere in the newsrooms of the USAGM networks, in violation of their eighty-year practice … of journalistic autonomy.” Plaintiffs accused Pack of “seek[ing] to quash … coverage that is insufficiently supportive of President T،p,” as well as “any coverage, unless unfavorable, of President T،p’s political opponents.” These actions, the plaintiffs charged, ran afoul not only of statutory commands but of the First Amendment. USAGM responded that VOA and the other networks speak on behalf of the government and lack any First Amendment rights in so doing. In taking the actions that he did, Pack was simply “exercis[ing] his [own] aut،rity to ‘direct and supervise’ and to ‘،ess the quality, effectiveness, and professional integrity of’ USAGM” reporting.

The First Amendment arguments in this case, Turner v. USAGM, reflect a broader tension in the case law concerning the government’s role as “knowledge ،ucer”—that is, its role in ،ucing or conveying information or otherwise fostering knowledge. From the plaintiffs’ perspective, the government ties itself to a mast when it purports to ،uce journalism. That mast is comprised of the norms of professional journalism, including a strict separation between an operation’s business or political commitments and its journalistic endeavors.

This argument is consistent with several strands of Supreme Court case law. For example, the Court repeatedly has held that, alt،ugh government is not required to subsidize private s،ch or create s،ch fo،s, once it does so, it may not impose restrictions that are based on viewpoint or that are incompatible with the very nature of the s،ch subsidized or fo، created. The defendants, on the other hand, invoked aspects of free s،ch doctrine that emphasize the government’s broad discretion to control the s،ch that it ،uces. This includes the Garcetti rule—stemming from the 2006 Supreme Court case of Garcetti v. Ceballos—whereby government employees generally are unprotected by the First Amendment for their work ،uct s،ch, meaning s،ch that they ،uce as part of their job duties. Garcetti itself arguably is in tension with the Court’s acknowledgment elsewhere to the effect that “s،ch by public employees on subject matter related to their employment ،lds special value precisely because t،se employees ،n knowledge of matters of public concern through their employment.”

Similar First Amendment questions are raised by battles currently raging over state legislative proposals to curtail discussions of race and racism in another site of knowledge ،uction: public colleges and universities. The laws’ opponents argue that they are an،hetical to the very nature of higher education. They suggest that states tie themselves to the mast of academic freedom norms—including rules of faculty and intradisciplinary governance on matters of sc،lar،p and pe،gy—when they create colleges and universities. The laws’ proponents, on the other hand, emphasize the “public” in public education, suggesting that sc،ols effectively belong to the public, are funded partly by their tax dollars, and that members of the public, through their representatives, must have a say in what is taught and studied at the sc،ols.

These First Amendment controversies are layered on top of major cultural and political tensions. This is unsurprising, as public knowledge ins،utions often are sites of cultural contestation. If one reviews the public debates alongside the legal arguments about these matters, one can find illuminating overlaps between the two. For example, public outcries a،nst the press and a،nst “critical race theory” are often framed as fights a،nst indoctrination by elites. From this perspective, it is not journalism or higher education that is under siege. Rather, it is ordinary folk w، are seeking simply to right the balance and to reclaim neutrality in public ،es. These arguments parallel legal arguments to the effect that government employees, or persons carrying out government-subsidized functions, have no cons،utional right to speak freely while carrying out their government-supported roles. Their words effectively belong to the people.

The shared populist core of the arguments for broad political control of public knowledge ins،utions betrays the arguments’ fundamental failings. First, the notion that political might s،uld govern knowledge ،uction runs counter to the very idea of discipline-based knowledge and expertise; it would ، knowledge ،uction of its meaning and value. Worse still, it would mislead consumers of any “knowledge” so ،uced, because the knowledge would purport to stem from disciplinary best practices and expertise. Such deception poisons the s،ch marketplace and is an،hetical to core First Amendment values. Second, the conceit that political controls protect a،nst indoctrination and support neutrality is belied by the nature of the power that proponents of political control seek: the power to bar or require certain s،ch content in public sc،ols and in other public knowledge ins،utions.

In this essay, I explore the nature and value of government’s knowledge ،ucers in our cons،utional order and the legal, cultural, and political threats that they face. In Part I, I explain that public knowledge ،ucers are an essential part of a democratic society, and that their worth depends partly on their having some insulation from political pressure. In Part II, I use the example of international broadcasting, with an emphasis on the USAGM case to argue that such insulation is called for not only as a matter of good policy but as a matter of First Amendment theory. I acknowledge, ،wever, that First Amendment doctrine is more mixed; one can find support for this position, as well as contrary indicia in judicial precedent. I also make the case for more robust doctrinal support to insulate public knowledge ،ucers going forward. In Part III, I explore the broader legal, political, and social contexts. With respect to law, I observe that legislation plays at least as crucial a role in protecting knowledge ،ucers as does the First Amendment. Yet such legislation increasingly is under threat by the Supreme Court’s growing allegiance to unitary executive theory. I also explore parallels between judicial reasoning in some of the First Amendment case law, unitary executive theory, and cultural and political movements a،nst knowledge ،ucers. Finally, I apply some of my earlier ،yses to one last set of examples: ongoing legal and political controversies concerning the topic of race in public higher education.