Should cruel speech be protected by the First Amendment?

Sure. We protect vituperative hate speech, and cruelty is a mainstay of literature, so why not.
How about selling depictions of cruelty to animals?
So you mean I can’t watch a bullfight filmed in Spain or a cockfighting video from the Philippines?
How about selling “crush videos” of kittens and puppies being slaughtered?
OK, who’s going to say the First Amendment protects that?
For the first time in many a year, the Supreme Court is going to decide (probably next year) whether a certain type of content is so devoid of expressive value that it doesn’t deserve protection by the First Amendment.
The high court has decided to take an appeal of a Third Circuit ruling striking down a federal law outlawing most depictions of cruelty to animals. The law, which was aimed at crush videos, is actually worded much more broadly.
Applying the strict scrutiny test, the appeals court reversed, 10-3, the conviction of a Virginia man for selling videos of dogfights. The government, the majority said, could not show a compelling interest in such a law and the law was both vague and overbroad.
The appeals court decided not to carve out an exception to the First Amendment as was last made in a case 27 years ago, involving child pornography, in New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech). The court said, “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.”
Early predictions are that the Supreme Court will side with the lower court and hold the law unconstitutional. But that doesn’t mean Congress won’t take another crack at the law and narrow it so it does withstand scrutiny. After all, as the New York Times’ Adam Liptak noted, quoting a source at the Humane Society, crush videos, which had all but disappeared from the Internet, have “popped back up on the Internet as a result of the Third Circuit’s ruling.”

Be in the thick of things

Here's a great internship opportunity--and possibly a future job. Jenny Donohue, who graduated last year, interned at the Senate Finance Committee, and now has a permanent job there as a press assistant. So now she's looking for interns for this summer. Here's the message from her:

The press shop internship requires substantial knowledge of writing and editing skills as well as knowledge of current events. As a former intern I highly recommend it even to students who intend to pursue more traditional careers in Journalism. My experience here was invaluable. The Finance Committee has jurisdiction over Tax, Trade, Health Care, Social Security, Medicare and Medicaid and Montana Senator Max Baucus is the Chairman. The current economic climate and upcoming health care reform debate make this summer one of the most interesting times in history to work for the committee. Finance Committee internships are highly sought after, but because of Max, Montana students get priority.

Interested students should email me their resume at Jennifer_Donohue@finance-dem.senate.gov. The deadline for summer positions is fast approaching so the sooner the better. Feel free to call me with any questions at (202) 228.4515.

Spring Fling

Whew. Wonder what critics of Bess' column would think of this. If you take a newspaper out of the mix, does it change things? Note that the University of Maryland administration, faced with a legislator's ire and threats to eliminate state funding to UMd canceled plans to show the full film. Instead, there was an educational free speech forum featuring excerpts from the film. Nonetheless, a university spokesman said, "The University of Maryland is a diverse learning environment that respects the right of a free society to offer opinion, including opinions that may differ dramatically from the larger community,"
At two University of California campuses, the film was shown without much of a fuss.

My sex advice: Butt out

Well, as you can see, the controversy over the Kaimin’s lil’ ol’ sex column is making national headlines in newspapers and blogs and on TV. Why, I’m not sure. Maybe because a UM law professor who should know better is the one raising a stink, trying to shut the column down.
First Amendment law and precedent on this is pretty darn clear. The government—in this case the state, whether it be the legislature, the board of regents or the university administration—has no business censoring a public university’s newspaper, and the editors of the Kaimin have full editorial discretion as to what they run in the paper. Indirect attempts at censorship, such as stacking the publications review board or cutting funding or imposing “professional” standards on columnists are still censorship.
As such they run smack up against two principles: One, the prohibition against prior restraint that is central to the First Amendment and two, the near-prohibition against actions or laws aimed at the content of speech. That’s where the doctrine of strict scrutiny comes in. Faced with state action aimed at the content of speech, courts have to examine whether there is a compelling governmental interest for the state to take such action and whether the action is necessary and narrowly tailored. So think about it. What compelling governmental interest would the government have in censoring a sex advice column in a university newspaper? Protecting the innocence of college students? Gimme a break. Protecting the morals of society? The Taliban would certainly like that.
The First Amendment protects unpopular, risky, troublesome, cranky, vituperative and yes, sexual speech as long as it isn’t obscene, which Bess’ sex column is light years away from. As Justice Douglas said in Terminiello, “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

I would like to repeat what the 10th Circuit Court of Appeals said in Pring v. Penthouse, that ridiculous parody of Miss Wyoming: “There is no accounting for the vast divergence in views and ideas. However, the First Amendment was intended to cover them all. The First Amendment is not limited to ideas, statements, or positions which are accepted; which are not outrageous; which are decent and popular; which are constructive or have some redeeming element; or which do not deviate from community standards and norms; or which are within prevailing religious or moral standards. Although a story may be repugnant in the extreme to an ordinary reader, and we have encountered no difficulty in placing this story in such a category, the typical standards and doctrines under the First Amendment must nevertheless be applied. The magazine itself should not have been tried for its moral standards. Again, no matter how great its divergence may seem from prevailing standards, this does not prevent the application of the First Amendment. The First Amendment standards are not adjusted to a particular type of publication or particular subject matter.”
In a Sunday editorial, the Missoulian condemns this attempt at censorship, saying, "The “Bess Sex Column,” so far as we can tell, is entirely within the bounds of the First Amendment. The Kaimin is a real newspaper, and the students who work for the Kaimin are real journalists. They are not mouthpieces for the university or the state. Just like every other decent newspaper, they are accountable only to their readers - who just happen to be fellow students at the University of Montana."

President Dennison, too, has the Kaimin’s back on this, and you can be sure he’ll be blasted by religious-conservative moralizers. Politicians may get involved. But for now, it’s reassuring to read the words of President Dennison, in a letter he wrote on Friday:

Dear Mrs. and Mr. Murphy:

Thank you for the note about the First Amendment, pornography, censorship, and the Kaimin column. While I believe I understand and appreciate your perspective, and recognize your apparent frustration with the position I have taken, I trust you will recognize that the issues are not quite so simple. You appear to know more about the intentions of “our forefathers” than I, since the wording of the First Amendment seems fairly expansive, as courts through the U. S. Supreme Court have made clear.

The question about the column’s contribution to the education of students has some serious ramifications. The Editor and Editorial Board have judged the column of some value, although apparently not on the basis of its “appeal” to any particular segment of the reading population. Under the policies long in place on this campus, the students who pay for the Kaimin with their fees – about 60 percent of the cost comes from paid advertising in the paper – actually employ the editorial staff who adhere to those policies. While I have the obligation as the publisher to assure adherence to policies and responsible reporting, I interpret that responsibility within the context of long-standing interpretations of the meaning and force of the First Amendment as applied to student newspapers.

To elaborate, a student newspaper has the fundamental purpose of enhancing the quality of the educational experience for students. Those serving as editors, reporters, and other staff gain real world experience with managing the difficult issues that arise from time to time because of decisions made about the operation of the paper. The faculty advisor counsels the students but does not make the decisions for them. I exercise my responsibilities in the same manner. Certainly occasions can arise when the publisher must intervene for clear and direct reasons to protect the integrity of the paper and the University. However, I seriously doubt that the offensiveness of the printed material provides such a “clear and direct reason.” Given the serious doubt, I have exercised judicious caution and have not intervened.

Equally clear, written or spoken words with which we agree need no protection. The First Amendment serves its most essential purpose by protecting speech and writings which offend us or contain content with which we disagree. I certainly agree with your statement that “You [i.e., George Dennison] are in charge.” Being in charge and acting to impose censorship does not alter the fact of censorship, which strikes me as the result of an effort to prohibit the publication of views, opinions, and the like with which I disagree or which offend me personally.

In an educational setting, discussion and debate about such matters has the greatest educational value. Discussion has occurred and will continue. The students involved learn a great deal in the process, far more than if I assumed the role of arbiter or editorial review board of one. Newspapers depend on the support of their readers, even more so in today’s highly competitive media environment. Those who aspire to leadership positions in the world of the free press need real world experience with the consequences of their decisions.

Let me conclude with the observation that I prefer to read newspapers whose editors subscribe to good taste and judgment. Moreover, I do not read newspaper articles that I find disgusting or repulsive. I believe other people do the same. None of us has the right to impose our sense of taste and judgment on others, although we certainly have the right to argue our positions and prevail in the public arena or “marketplace of ideas” through the persuasive power of our arguments.

Sincerely,


George M. Dennison
President

Gag 'em good

Prior restraint clearly doesn't bother some governments. Let's take Egypt as an example, where a judge barred the press from reporting on a potboiler of a murder case that reaches the highest levels of government. The suspect is a well-connected Cairo businessman, the victim a Lebanese diva. Reporters who defied the ban have been fined. But in an online world, how much can information can the government end up stopping?

Photos of war coffins

We'll have to see how this plays out, but the policy announced today by Defense Secretary Robert Gates--allowing press photographers access to Dover Air Force Base where the nation's war dead arrive in the U.S.--is a very welcome step. Gates did put a condition on it, the approval of the dead soldiers' family, so it'll be interesting to see what happens. But it is an encouraging sign of openness by the Obama administration to allow access to such images, which represent the dignity of faithful service to the country as much as they represent the loss of human life in a far-off war

Where Have All the Student Speech Rights Gone?

In 1965, Mary Beth Tinker, a 13-year-old eighth-grader in Des Moines, Iowa, her 15-year-old brother John and three other school friends protested the Vietnam War by wearing black armbands. They were suspended. Mary Beth and John then sued the school district alleging that their First Amendment rights had been restricted.

Forty years ago, on Feb. 24, 1969, the U.S. Supreme Court agreed, saying “…in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom--this kind of openness--that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society…It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

That was probably the high-water mark for high school student free speech rights. Less than 20 years later, in Hazelwood v. Kuhlmeier (1988), the Court held that high school newspapers could be censored. More recently, in 2007, in Morse v. Frederick, (Listen to the 5-minute Opinion Announcement) the Court held that students could be disciplined for erecting a banner at a school-sponsored event off school grounds, which read “Bong Hits 4 Jesus.”

And at the same time, more lower courts have been endorsing school discipline of students for communicating, away from school, messages on Facebook, MySpace, YouTube and other social networking sites that are perceived as perhaps threatening or disruptive. In a sense, this is a throwback to the old bad tendency test. See my article in the current Montana Journalism Review, page 38 (type 40 in the go-to-page box).

Is this widening zone of control over student speech a development that has its roots in Columbine and other instances of school violence? What does the increasing attention paid to cyber-bullying add to this trend? Is greater control over student speech the price students have to pay in return for greater safety? Did they have a choice in this trade-off? Should they?