Rutgers to pay ACLU's attorneys fees in battle over magazine ad
By The Associated Press
09.24.02
TRENTON, N.J. — Rutgers University must pay the American Civil Liberties Union $10,000 to cover attorneys fees related to a four-year dispute over an alumni magazine's refusal to publish a critical advertisement.
The ruling, issued last month by a state appeals court panel, said the university had to cover the court costs of the Rutgers 1000 Alumni Council. The three-judge panel also found that Rutgers Magazine had discriminated against the group.
But the panel broke with a lower court's decision by saying the quarterly magazine's policy of refusing issue-oriented advertisements is reasonable and constitutional. The problem, according to the panel, was that the magazine did not consistently follow its own policy.
The appellate panel's ruling "supported legal principles that we really thought needed to be clarified, and corrected a lot of what the lower court had said," said university counsel David R. Scott.
The Rutgers 1000 group and the ACLU had sought $14,000 in fees, but said they were pleased with the ruling.
The dispute between the magazine and the alumni branch of Rutgers 1000 — a group opposed to the university's focus on Division I college athletics and membership in the Big East conference — began in May 1998.
The Rutgers 1000 Alumni Council submitted an advertisement for the magazine's summer issue seeking support. Editors declined to publish it, citing their unwritten policy of not publishing ads "supporting one side or another in a matter of public controversy."
However, Rutgers 1000's position was discussed in the summer issue's cover story on the new athletic director, Robert Mulcahy. The next issue included three letters supporting Rutgers 1000's position.
In October, the group again tried to place an advertisement in the magazine, this time a more neutrally worded classified ad: "Rutgers 1000 Invites Inquiries," followed by a mailing and Internet address.
The magazine again rejected the ad, saying the group's name triggered "an association with an issue." But it published an ad promoting the Rutgers basketball team, the Big East conference and its championship tournament.
Unlike the trial court judge, the appellate panel believed the magazine's policy of rejecting issue-oriented ads to avoid exposure to controversy was reasonable and fair.
But the panel ruled that once the magazine published the Mulcahy article and subsequent letters, the Big East advertisement became as issue-oriented as the Rutgers 1000 advertisement.
"The Magazine violated its own policy," Judge Philip S. Carchman wrote for the panel. "It published what in other circumstances would not be an issue-oriented ad in juxtaposition to a controversy and by doing so, made such an ad appear issue-oriented."
Scott argued the university was trying to protect its ability to avoid controversy by rejecting issue-oriented ads, not stop Rutgers 1000's viewpoint from getting out.
The university decided last month not to appeal the appeals panel's ruling.
Mark Maben, a Rutgers spokesman, said the university would not comment on the decision regarding the attorneys fees. The case has already cost the university more than $375,000 in legal fees.
The university released a statement last month after the appeals court ruling that said "most of the First Amendment principles underlying Rutgers' appeal of the case have been vindicated."