U.S. News Rankings & the First Amendment: Bad Legal Takes and Shooting Themselves in the Foot

U.S. News' CEO Eric Gertler was part of a panel at Lafayette College on May 2nd. You can watch the full panel video here, which we'd recommend because it's quite interesting. But our focus will be on what Mr. Gertler said about the U.S. News rankings. Specifically, their relationship to the First Amendment and freedom of speech.

Mr. Gertler offered his opinion on the battle over freedom of speech on college and university campuses, saying:

I do view that the schools that didn't participate in our survey as not providing or fulfilling the First Amendment

What? The? Are you kidding me?

We're not even sure where to start with this one. Apparently Mr. Gertler has a law degree. A refresher course in constitutional law might be tremendously helpful to him, and anyone in his organization who agrees with that statement. U.S. News is headquartered in D.C., and luckily there are a number of excellent law schools in the area. Actually, you don't even need a law school course for this one, paying attention in high school civics should have ensured enough basic understanding of the First Amendment to save Mr. Gertler from this embarrassing hot take.

The First Amendment has absolutely nothing to do with providing or not providing data to U.S. News. "Congress shall make no law...abridging the freedom of speech." Emphasis on Congress; this is known as the State Action Doctrine. Can Mr. Gertler point to any laws that restrict schools from providing data to U.S. News? Has the Department of Education ordered that any school that receives federal funding is prohibited from completing a U.S. News survey? No? The schools are completely able to decide whether or not to participate in the rankings or not, free from government mandate? Then what exactly is the problem when it comes to the First Amendment? Have schools boycotting the rankings perhaps ordered their IT departments to block the U.S. News website? Are they monitoring student conversations for forbidden references to the rankings? Also no? Really doesn't sound very First Amendment problem-y to us.

We didn't know this needed to be clarified, but freedom of speech also includes freedom from speaking. As the Supreme Court put it, "the First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 782 (1988) (emphasis added). If a law school, or any other entity, doesn't want to share data with U.S. News, they have that right. There is no affirmative obligation to say anything. If we were to reach out to U.S. News and ask for detailed financial disclosures on topics like, say, revenue associated with their rankings products, salaries and compensation for officers, that kind of thing, would U.S. News be under any obligation to share it with us? Nope. In fact, Mr. Gertler recently declined to share details on the revenue his company derives from the rankings.

Mr. Gertler and U.S. News seem to operate under the impression that the First Amendment guarantees them the right to ask whatever questions they want, have schools do the work of collecting that information, turn around and give it to U.S. News, all so U.S. News can monetize it. We like making money as much as the next person, but we've never been under the impression that anyone else is obligated by the Constitution to do uncompensated work for our financial benefit. We can't just send U.S. News a survey for us to rank them and other ranking sites, for example, and claim they are constitutionally bound to fill out our survey.

The special irony here is that for decades U.S. News has charged schools for access to the very data they submit to it, not to mention charging applicants for access to the "transparency" U.S. News loves to tout. Free speech ain't so free after all, eh, Mr. Gertler?

Trivializing the First Amendment protections of freedom of speech like this is shameful behavior. The First Amendment is, among other things, supposed to protect us from government overreach and censorship. It's supposed to make sure that people can freely discuss and debate what their leaders are doing, so that come election time the voters are well-informed and unafraid. It is not intended to protect the financial interests of a defunct-magazine-turned-glorified-Yelp, one desperately trying to stave off an existential threat to its business.

This is just another step in their cynical attempts to latch onto the culture wars taking place over higher education. Previously U.S. News was content to play footsie with culture-war issues, focusing its complaints on the out-of-touch "elite schools" trying to "sidestep" future Supreme Court rulings. Now they want to go to third base. U.S. News is seeking to portray itself as a victim of cancel culture and distract from the substance of complaints about their rankings. Nothing drives clicks like outrage! And right now, free speech suppression on university campuses is all the rage. Not submitting data to them is an attack on America's free speech values! Ignore the reasons why they don't want to participate in our game anymore, law schools hate free speech! If they can come for U.S. News, who will the nefarious law schools silence next???

But no one is cancelling U.S. News. Schools don't have the ability to do so, and they certainly aren't making nonsensical appeals to the Constitution to try. People are electing to assert their own freedom to choose what to share, or not share, with and for a for-profit enterprise. If U.S. News doesn't think that schools refusing to submit data to them is good, it is free to make arguments and try to persuade people (fyi to U.S. News, that is the type of thing protected by the First Amendment). The problem, of course, is that's not the type of approach they're used to taking after decades of unchallenged dominance. U.S. News loves to trot out the line that they "met with over 100 deans of law schools," failing to mention that this was their first real engagement with the community in years, engagement that only came about as a last-ditch effort to stanch the flow of schools pulling out of the rankings. Meaningful, substantive debate? Nope, not in their wheelhouse. Instead they've resorted to contrived free speech claims, and shown just how desperate and threatened they feel.

If you were still unsure whether U.S. News' rankings were a force for good, hopefully this is proof to you: they don't care about offering a useful product. It is all about money, and they will do and say anything to protect their bottom line. In the end, we probably shouldn't be surprised at this kind of ploy from an organization that will rank anything from states to cars to hospitals, expertise and methodological rigor be damned.

But in the end, this is just another unforced error for U.S. News. For many months now we've said the organization would likely still be as relevant in 3 years as they are today. But the more U.S. News opens its mouth, the more likely we are to be wrong. Deans and leaders of law schools that took a neutral or supportive stance towards them are still legal scholars, and this butchering of the Constitution hasn't been unnoticed; it certainly isn't winning them fans among those they need on their side. Law schools almost all are attached to main universities, and universities are watching. So the irony here is that by demanding schools do work that U.S. News needs and submit data (because the Constitution!), by continuing to whine and lash out, U.S. News may finally lose their voice in the higher education market as more schools pull out of the rankings.