An unusual First Amendment fight on the Chesapeake Bay

The Thomas Point Shoal Light in the Chesapeake Bay. (Photo by Pete Milnes/United States Coast Guard)

Update, March 6: Last week, the Environmental Protection Agency informed the Bay Journal that it will reinstate its funding. In its letter to the newspaper announcing the about-face, the EPA said the decision was “consistent” with Administrator Scott Pruitt’s recent pledge before a Senate committee to reconsider the cut. The letter did not address the constitutional and legal issues at the heart of the Journal’s appeal to get its money back. Nonetheless, the paper’s attorney, Josephine Morse, called the EPA’s decision “a big victory for the free press and the First Amendment.”

JOURNALISTS ACROSS AMERICA are gripping the First Amendment tightly; toting their constitutional protection from an administration that publicly slams reporters and routinely threatens to expand libel laws and amp up leak investigations.

The Bay Journal—a free, nonprofit newspaper that reports on environmental issues in states bordering the Chesapeake Bay—however, is embroiled in a First Amendment fight of a different nature: to reassert its financial ties to the federal government. Until last summer, the Journal received around 40 percent of its funding from the Environmental Protection Agency, part of a longstanding federal push to clean up the Bay. In late August, nearly two years into the Journal’s latest six-year contract, that funding was abruptly terminated. EPA officials cited an ill-defined “shift in priorities.” The Journal says its grant was cut because it wrote stories those officials didn’t like.

Lawyers for the newspaper are pointing to an exchange between the then-head of the EPA’s Chesapeake Bay Program, Nicholas DiPasquale, and John Konkus, a Trump appointee to the agency. In a January interview with Energy and Environment News, DiPasquale said Konkus told him “everybody knows that the American public doesn’t trust the press” just prior to cancelling the Journal’s grant. DiPasquale also alleged EPA brass were unhappy with Journal coverage of plans to scrap the Bay Program’s funding altogether. An EPA spokesman declined comment.

The Bay Journal grew out of 1980s efforts to fight the high levels of pollution in the Chesapeake, which have been driven, in particular, by agricultural and wastewater runoff from inland areas of Pennsylvania, Virginia, and Maryland. Under the Clean Water Act, the EPA must keep the public abreast of its progress. The Bay Journal has long performed that function on the agency’s behalf: first as a newsletter, then, since 1991, as a newspaper. “I came in in 1990 and did the newsletter for a while,” says Editor Karl Blankenship. “Then after a year—because there was more [going on] than we could fit into a newsletter—we morphed it into the Bay Journal. It was printed on newsprint, and the idea was to keep people abreast of everything that was going on that was Bay-related.”

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It’s not uncommon for government agencies to outsource communications about their programs. But few, if any, federally funded outlets are quite like the Bay Journal. Since its early days, it has bloomed into a full-fledged news organization, staffed by veteran journalists with years of experience at papers like The Baltimore Sun and the Harrisburg Patriot-News. Blankenship says those journalists get their stories just like any other reporter—by sitting through hours of public meetings and asking questions of officials.

The Journal runs 10 issues a year, printing between 30,000 and 40,000 copies of each, and estimates its total reach, including online readers, is around 100,000. It syndicates some of its content with other regional titles, including Maryland’s Dorchester Banner and Salisbury Daily Times, and runs op-eds through a separately funded service. Local observers say the Bay Journal is a vital resource for conservation specialists and the local community alike. “There’s nothing like it,” says Will Baker, president of the nonprofit Chesapeake Bay Foundation. “That doesn’t mean local media don’t cover Bay issues. But the Journal is exclusively Bay-related, and has been very consistent with maintaining scientific credibility.”

The terms of the Journal’s grant make clear that its remit is to keep the public informed, not to be a vessel for administration press releases. Other EPA documents say the Journal is expected to observe “industry standard journalistic practices” and be editorially independent of the government. After Konkus threatened to cut the Journal’s federal funding, DiPasquale sent him an email, reviewed by CJR, reminding him that “this is not an EPA publication….we are not allowed by law to dictate what goes into the Bay Journal.”

All this language is key to the Journal’s legal challenge to the EPA. If Konkus did indeed cut its funding in response to critical coverage, his decision would seem to amount to unconstitutional discrimination based on the newspaper’s viewpoint. The Journal’s lawyers argue the EPA has broken decades of precedent in allowing a political operative to vet grant applications in the first place. And a 20-year-old court verdict specifically protects government contractors’ speech against retaliation under the First Amendment.

“If this newspaper can show the government has granted these funds for a general purpose but then, in response to negative coverage, engaged in viewpoint discrimination, I think they have a good argument that that’s impermissible [under the First Amendment],” says Katie Fallow, a senior attorney at the Knight First Amendment Institute.

While the Journal’s case seems strong, it isn’t cut and dry. Case law is messy in this area; in weighing whether the First Amendment has been violated, a 1991 precedent, for example, asks in part whether a government funding decision amounts to censorship, or whether the viewpoint in question can still be expressed through alternative channels.

Generally speaking, meanwhile, it’s not true to say the government is banned from ever influencing views it pays for. If the government were to fund a publication arguing that abortion is immoral, for example, a future administration with opposing views would probably have the right to upend that stance—as long as the publication’s grant made clear that its purpose is to be a government mouthpiece.

“We want newspapers that are free from the government. But if a particular newspaper is going to get money from the government to speak about a certain topic, understandably the government is going to ask ‘is the money being spent wisely?’” says Eugene Volokh, a First Amendment specialist at the University of California, Los Angeles. “If the government is giving a subsidy to one or a small group of voices, to convey a certain message, it doesn’t mean they’re stuck with those voices indefinitely.”

A change of administration is a logical moment for a reassessment of spending priorities. Rich Kuhlman, a former grant management official at the EPA, told a public radio station in Washington, DC, earlier this month that an incoming government probably does have the authority to move money around. “Why bring in somebody new if they’re going to do the same thing the previous administration did?” he asked.

But the terms of the Bay Journal’s grant are broad, and the Supreme Court ruled last year that “government speech” isn’t a catch-all justification for intervention. And the Bay Journal’s challenge, in any case, doesn’t rest solely on the First Amendment—its lawyers allege the agency did not follow due process in terminating its grant unilaterally and without due cause.

That line of argument looks particularly promising: In late January, EPA Administrator Scott Pruitt told a Senate committee that the cut “was probably a decision that should not have been made in the way that it was,” and said it would be reconsidered (Maryland’s Democratic senators, Ben Cardin and Chris Van Hollen, have both called for the Journal’s funding to be reinstated). “The head of the agency said this was not done in an appropriate way, so we’re hopeful that the agency will rectify it,” says Josephine Morse, an attorney representing the Bay Journal with the group Democracy Forward.

The Journal may well win out this time round. But the fact it’s had to sue to get its money back shows the pitfalls of its funding model, which is, to an extent, contingent on the whims of the government. Clearly, privately funded smaller newspapers aren’t immune from whiplash financial pressures in the current economic climate for news. But Blankenship has sought gradually to steer the Journal away from its dependence on public money in recent years, bringing in extra cash, for example, from a variety of foundations. “For the last 10 years, the EPA has been the single largest funder but not the only funder, and in recent years not even the majority funder,” he says. “Strategically, you don’t want a disproportionate amount of your funding coming from any one source.”

The EPA has nonetheless continued to provide nearly half of the Journal’s funds, and the permanent absence of the grant would leave a big hole in Blankenship’s budget. The previous tranche of grant money ran out at the end of January, and Blankenship says he already cut two staff positions as financial uncertainty bites. “This is a really dicey situation for us,” he says.

Blankenship remembers discussing the Journal’s federal funding with John Carroll, the former editor of The Baltimore Sun and the Los Angeles Times who served on the Journal’s board before he died in 2015. “He had this perspective that it’s not an ideal funding situation because it looks like a conflict. But the alternative to that is to say it’s somehow better to have less or no information out there. And that’s just not an acceptable argument either.”

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Jon Allsop is a CJR Delacorte Fellow. Find him on Twitter @Jon_Allsop.