News Analysis: St. Louis Public Radio sovereign immunity claim is unprecedented

By William H. Freivogel

The University of Missouri, on behalf of St. Louis Public Radio, is making an unprecedented legal claim of sovereign immunity in the defamation lawsuit filed against it by former general manager Tim Eby. Eby maintains he was defamed by stories quoting station employees accusing him of upholding “white supremacy.”

The university’s legal filings describe the station as “an arm of the state exercising exclusively governmental functions” and conclude it should receive immunity from Eby’s suit.

Eby’s lawsuit is against the Board of Curators of the University of Missouri who hold the license for St. Louis Public Radio. The legal defense of sovereign immunity originates with the university lawyers. 

The legal filings do not cite a case where a public broadcasting network affiliated with a state has won a claim to sovereign immunity in a defamation case. A LexisNexis search by GJR found no decisions where a federal or state court had recognized this government immunity from a defamation suit for a public broadcaster with a government affiliation.

Sovereign immunity is a doctrine from English law to protect the king and government from lawsuits. Former president Donald Trump builds on this doctrine in claiming absolute immunity for presidential acts. Police officers and other government officials also receive qualified immunity from many civil rights suits. (See Qualified Immunity: A get out of court free card)

But, until now, no public broadcasting operation has won such a claim. In fact they have run away from government entanglements.

Last year National Public Radio complained when Elon Musk’s X platform labeled NPR “state-affiliated” and “government-funded” media. NPR stopped posting content on X because it thought the government labels undermined their journalists’ independence.

John Lansing, head of NPR, said at the time, said “It would be a disservice to the serious work you all do here to continue to share it on a platform that is associating the federal charter for public media with an abandoning of editorial independence or standards.”

When Congress established the Corporation for Public Broadcasting, the statute explicitly stated  it “will not be an agency or establishment of the United States Government.”

The university’s legal argument in the Eby case is that the station “is in effect an arm of the state exercising exclusively governmental functions and is therefore immune from liability” in the same way as “the State Department of Agriculture or a public hospital district.”

Eby’s attorney Christian Montroy expressed surprise that St. Louis Public Radio is representing its news organization as “state-run media” immune from defamation suits that the Post-Dispatch or Riverfront Times or KMOX would face for publishing or broadcasting the same content.

Eby’s legal filing argues that portraying St. Louis Public Radio as “exercising exclusively governmental functions” conflicts  with St. Louis Public Radio’s frequently expressed claim of being “editorially independent,” which is expressed in its Statement of Editorial Integrity. That statement says:

“….even though the University of Missouri System Board of Curators owns our FCC license, we maintain editorial independence of our content. This is in alignment with UMSL’s foundational principle of academic independence upon which the University of Missouri system is founded. The support we receive from the University of Missouri-St. Louis does not influence our editorial content or news coverage.’

Tina Pamintuan, St. Louis Public Radio’s CEO (and Eby’s replacement), told the Riverfront Times, which first reported on the sovereign immunity claim, that the public need not worry.

“I am 100 percent confident in the journalism that is produced at STLPR. Our reporters are highly trained professionals who take a lot of care in their work. 

“STLPR exists to uplift its community and this region through fair, rigorous, fact-based news and information. That is our focus and it’s important that we continue to keep that in mind. Like all nonprofit media, we have limited resources that are put to best use by prioritizing our mission.”

The sovereign immunity claim, which the state has been making since last fall, came before St. Louis Circuit Court Judge Joseph Patrick Whyte for a hearing last month. Joseph E. Martineau, a media lawyer from Lewis Rice serving as outside counsel for the state and station, declined to comment as did Christian Basi, public affairs director of the MU/UM system.

Eby had been the station’s general manager for 11 years until he was forced out in September, 2020

Eby’s removal came during the contentious summer of 2020 after a group of staffers published a blog post accusing him of choosing “to uphold white supremacy at the station.” A story on the station’s website linked to the blog post and another story a year later stated Eby resigned “amid accusations from newsroom staff that he ignored problems of systemic racism at the station and mismanaged finances.” Eby maintains the station knew these statements were false.

GJR’s Lexis search found only one defamation case in the nation where a public radio station connected to state government had tried to claim sovereign immunity in a defamation case. That one was in Missouri and the station lost.

In Allen v. Salina Broadcasting in 1982, the Missouri Court of Appeals for the Southern District ruled that Salina Broadcasting could not claim sovereign immunity even though the public radio station was run by a public school. 

The station had reported that Allen, a realtor, was “starving his cattle to death.” 

The appeals court had to decide if the station’s report was part of its governmental functions at the school, which would give it sovereign immunity, or instead was a “proprietary” function, which would mean it did not get sovereign immunity.

The court ruled the station’s actions were proprietary. “At the time of the alleged defamatory broadcast… there was ‘substantially’ no student involvement….the particular news program complained of was handled and broadcast by paid staff personnel with students seldom, if ever, called upon to participate in any meaningful sense.”

Eby’s lawyer says the Salina case should control the decision on sovereign immunity in the St. Louis Public Radio case. The St. Louis station was acting in a proprietary, not governmental way, just like the Salina case. 

At St. Louis Public Radio paid staff compose and broadcast news reports without significant student help and the reports are broadcast to a wide audience, not just within the university.

Missouri on behalf of the station says Judge Whyte should not follow the Salina case because a university is different from a local school. It points out that a public hospital was found by Missouri courts to have sovereign immunity. St. Louis Public Radio is more like a public hospital than a public school, it argues.

If St. Louis Public Radio were found to have sovereign immunity because it was an arm of the state, then questions might arise as to whether its reporters could protect their notes or sources from another arm of the government – for example from a prosecutor.

In 2015 former Circuit Attorney Jennifer Joyce subpoenaed “all raw and aired video and audio footage in connection with the incident involving Mansur Ball-Bey …” Police shot and killed Ball-Bey Aug. 19, 2015 during a raid on a St. Louis home on Walton Avenue. They said they fired after the 18-year-old African American pointed a gun at them.

St. Louis Public Radio did not provide the requested materials. Then editor Margaret Wolf Freivogel wrote in a column:  “The fishing expedition into our out-takes will jeopardize our reporters’ ability to serve the public in the future — and it will provide no public benefit now.”

Joyce dropped her attempt to obtain the materials after other news media provided some of what she was seeking. Mark Sableman, a First Amendment expert and partner at Thompson Coburn, took the lead in discussions with the circuit attorney.

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar and covered the Supreme Court. He is the publisher of Gateway Journalism Review. He is the husband of Margaret W. Freivogel mentioned in the second last paragraph of this story.