Wednesday, May 17, 2006

Free Speech Dust-Up in Oregon - Updated

Apparently, the University of Oregon has at least three student newspapers. The Oregon Daily Emerald is the main paper, the Oregon Commentator is the conservative voice, and the Insurgent (no link that I could find that's more recent than 2001) is the liberal voice. Back when the whole Muhammed cartoon scandal occurred, the Commentator chose to print the cartoons. That garnered the ire of the Insurgent crowd, who decided to retaliate by collecting and printing offensive cartoons of Christian figures, in a "how do you like it" style. Predictably, various religious groups were outraged, and some students filed a grievance against the paper, which the Volokh Conspiracy posts here.

The President of the University issued this statement:
"I share your concern about the offensive nature of the content contained within the publication.

"I understand why it may seem as if the University should have prevented publication or should take some action against those responsible for the publication. The Student Insurgent is not owned, controlled or published by the University of Oregon and is funded with student fees. Therefore, the University cannot exercise editorial control over its content.

"The best response to offensive speech often is more speech. ... I am strongly opposed to speech that makes individuals feel that they or their beliefs are unwelcome or belittled, and I can assure you I will use all permissible means to respond to publications such as the recent Insurgent."
Incidentally, the Commentator's response:
Regardless of content, people and organizations should not be censored for speech that’s considered “offensive” or “hateful.” Indeed, we support the publication and round denunciation of ideas and opinions which are bigoted or inappropriate. The best way to counter the free expression of bad ideas is with the free expression of good ideas.

Eugene Volokh points out the caselaw:
The Court's First Amendment caselaw certainly precludes it: The University of Oregon is subsidizing the Insurgent under a program that "expends funds to encourage a diversity of views from private speakers" (and that doesn't involve a "competitive process according to which the grants are allocated" under an "inherently content-based 'excellence' threshold," see NEA v. Finley). (There is a requirement that, to get funding, a group must be generally certified as advancing the "cultural or physical" development of students; but as best I can tell the funding authorities rightly read this very broadly, and treat all groups that "engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects" as qualifying.)

Such a program for funding a diversity of private groups' speech — as opposed to a program for expressing the university's own views — "may not discriminate based on the viewpoint" of the speakers, as the Court held in Rosenberger. The government might be able to define the program in content-based but viewpoint-neutral ways, such as prohibiting electioneering in favor or against particular candidates, prohibiting lobbying in favor or against particular legislation, or possibly even prohibiting profanity or depictions of nudity (since those too would likely be viewpoint-neutral, though content-based). But it surely couldn't exclude speech on the grounds that it conveys "discriminatory" viewpoints, in the sense of viewpoints that are offensive to various groups.
Looking at the Rosenberger case:

The University of Virginia had established a Student Activities Fund, paid for out of student fees and designed to support a ‘broad range of extracurricular student activities.’ To apply for funding, student groups had to first qualify as a Contracted Independent Organization. This status which was not available to religious organizations, defined as "an organization whose purpose is to practice a devotion to an acknowledged ultimate reality or deity." The groups also had to agree to include a disclaimer in all written materials, indicating that the group was independent of the university and the university was not responsible for it. Once CIO status was attained, the group could submit a funding request, which would be examined in light of university guidelines for acceptance or denial. Among other things, the guidelines excluded both political and religious activities from funding. It should be noted that the prohibition on "political activities" was defined so that it was limited to electioneering and lobbying - the Guidelines specifically stated that the "restrictions on funding political activities are not intended to preclude funding of any otherwise eligible student organization which . . . espouses particular positions or ideological viewpoints, including those that may be unpopular or are not generally accepted." By contrast, the prohibition against religious activity was viewpoint-based, precluding any activity that "primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality."

A few months after qualifying as a CIO, a student group called “Wide Awake Productions” requested money to pay the $5,862 cost of printing its newspaper. The paper was established "[t]o publish a magazine of philosophical and religious expression," "[t]o facilitate discussion which fosters an atmosphere of sensitivity to and tolerance of Christian viewpoints," and "[t]o provide a unifying focus for Christians of multicultural backgrounds." The appropriations committee of the student council denied the request on the ground that printing the paper was a "religious activity" within the meaning of the guidelines.

WAP appealed the decision up through the university system, then filed suit. The two primary issues: did the denial of funds constitute discrimination against speech based on it’s content in violation of the ‘free speech clause’ of the First Amendment; and did the ‘separation of church and state’ Establishment Clause of First Amendment require that the University deny funding to the group. A refresher on the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Regarding the free speech issues, the university tried to argue that the guidelines were constitutional because they drew lines based on content, not viewpoint. In other words, since it banned funding religious activities by atheists and Christians alike, it really wasn’t discrimination. The Court found this unpersuasive:
The nature of our origins and destiny and their dependence upon the existence of a divine being have been subjects of philosophic inquiry throughout human history. We conclude, nonetheless, that here, as in Lamb's Chapel, viewpoint discrimination is the proper way to interpret the University's objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications.

The university also tried to argue that while the denial of funding may have violated WAP’s first amendment speech rights, requiring the university to fund WAP would infringe on the university’s own speech rights as a government entity: the right to allocate it's own funds to promote it's own message. The Court disagreed, saying this case did not involve a message by the university itself, just a message by a third party funded by a university group dedicated to promoting a "diversity of views,” so the university’s speech rights weren’t impaired.

Side Note: the Establishment Clause arguments were much, much closer, and the primary reason the decision was split 5-4. If you're interested, go read the case.

. . . . . . . . .

Caselaw aside, there are some policy and logic issues here. I'll grant that, unlike the Muhammed cartoons, most of the Jesus cartoons were created simply to offend, rather than be humorous or make a broader political point. (They generally succeed in that, by the way, so be careful in clicking the links if that would bother you.)

And I'll grant that some speech may be censored under certain conditions: commercial speech is routinely censored both for accuracy and content, protests generally must occur in the proper time, place and manner, etc.

But if you're talking censorship of a newspaper for content because an idea could be considered offensive . . . I'm not sure why the Christian student groups that filed the complaint don't get that it's an entirely different proposition. They seem to get the concept well enough when it's applied to attempts to stifle pro-Christian speech a la Rosenberger. Yet they do so poorly when it's protecting speech they find abhorrent.

On the other hand, the Insurgent is hardly immune to this selective blindness. From the issue that published the cartoons:
Although the [Muhammed] cartoons have not been published in the US yet we have heard plenty of heated guff on talk radio and in letters to the editor. Many callers say the Muslims should "get over it", that we have freedom of speech here and that Muslims in general are violent and crazy . . . It's clear the US is a deeply racist country with little understanding of other customs or religions. . . . how could Jyllands-Posten NOT realize those cartoons would cause a lot of trouble. . . . When the situation is so lopsided, any small provocation can blow up into a big deal. . . . We present these cartoons as a test. Just how much do we honor our own freedom of speech and how well do we deal with opposition to the US religions?

Perhaps it's just the logic talking, but I don't know how one could simultaneously be on both sides of the issue at once.

Using the Jesus cartoons to illustrate hypocrisy by people who supported the Muhammed cartoon publication but would oppose it here is logical - a consistent free speech stance. But you can't simultaneously support the Muslim protesters who called for the suppression of the Muhammed cartoons, at least not without implying the suppression of your own magazine for the Jesus cartoons would also be proper - a very anti-free speech stance.

(Side Note: okay, well obviously you can. But it's not logical.)

Oh, and to answer the question "Just how much do we honor our own freedom of speech and how well do we deal with opposition to the US religions?" We file a grievance. Not this.

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