The Chicago Tribune is reporting that the owners of the Chicago Cubs  are considering enacting a de facto "civility code" at Wrigley field, in response to some Cubs fans who have taken to booing the underperforming left fielder Alfonso Soriano. As Sports Law Blog notes, Wrigley and the Cubbies are privately-owned, so fans don't have First Amendment rights to express their disappointment at their team's defensive performance. At the same time, though, do the owners really think that by ejecting fans who boo the home team, or who make "profane or inappropriate comments" -- as objective a criterion as I've ever heard -- they will eliminate problems of fan disgruntlement? Thought reform through censorship doesn't work in educational contexts -- in fact, it even backfires -- so there's every reason to believe that if Cubs fans are muzzled, their booing will get even louder, and may even get directed toward the Cubbies' owners.

Following up on Harvey's post about the right to travel to Cuba, a few days ago Israeli security services detained American (ex-)academic Norman Finkelstein and refused to allow him entry to Israel for the next ten years. Salon.com's Glenn Greenwald quotes a Jerusalem Post article explaining that "the decision to deport Finkelstein was connected to his anti-Zionist opinions and fierce public criticism of Israel around the world." Even if you disagree with Finklestein's politics, there's something perverse in a country refusing admission to someone based on the content of their speech. It's one thing to keep a visiting scholar out because of real security interests, but it smacks of viewpoint censorship when scholars (like Tariq Ramadan, who writes about Islam and modernity and was denied a teaching visa by the U.S. state department back in 2004) aren't allowed to enter the marketplace of ideas. Finkelstein certainly doesn't toe the Likud party line, but it's also a stretch to call him a security threat, so it seems pretty clear why he was excluded. Ha'aretz had the right response: "It is not for the government to decide which views should be heard here and which ones should not."

This morning, the Supreme Court ruled that a law that outlaws promoting or advertising -- "pandering" -- child pornography is constitutional and does not interfere with First Amendment freedoms. In the case, United States v. Williams, decided 7-2, the justices declared that there is no free speech right that protects "offers to provide or requests to obtain child pornography," even if (in fact) there is no pornography to be provided. Free speech expert and blogger Eugene Volokh explains that the case is actually more interesting than a simple child pornography case, as the court has, in his reading, recognized that the First Amendment does not protect solicitations (or offers) to commit a crime. He writes: "[t]rying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones." 

Wendy Kaminer wrote about this case on The Free For All back in November. 

By Wendy Kaminer 

Reacting predictably to spate of noose hanging incidents in late 2007, New York governor David Patterson has signed legislation criminalizing display of a noose with intent to harass or threaten because of bias against the usual categories, including race, religion, sex, sexual orientation, disability.  The legislation amended existing law prohibiting cross burning or display of a swastika with similar intent.  All three forms of hate speech are punishable by up to four years in prison.  I have little to add to my earlier discussions about this issue, here and here, except to repeat that last fall the New York Civil Liberties Union promised to “study” the noose display amendment; anyone interested in the results of that study should call the NYCLU at 212.607.3300.

Last month, the Foundation for Individual Rights in Education (disclosure: for which TheFreeForAll blogger Harvey Silverglate serves as Chairman of the Board) noted that Colorado College had punished several students who published a parody of a campus feminist publication. FIRE is now reporting that the College has denied the students' appeal. Though the College claims that the parody violated the "student code of conduct policy on violence," it's not clear how writing can be violent when -- as in this case -- the writing wasn't inciting readers to violent action. FIRE is assisting the students in challenging the disciplinary ruling because Colorado College's free speech policy says that "[on] a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful that it may not be expressed." This is just the latest in a sadly long series of penalties inflicted by college and university administrators on students and student publications who have the audacity to use humor in order to make political points concerning various sacred cows in higher education. Read more at the FIRE website.

A popular viral video making the rounds on the internet shows New York Times columnist Thomas Friedman getting hit with a pie as he begins a speech at Brown University. The Brown Daily Herald reported yesterday that one of the students was taken into custody (but then released) by Brown police, while the second, who calls himself “Captain Custard” and may not have been a Brown student, remains unidentified. (So far, it seems that criminal charges will not be filed, though the identified student, Margaree Little ’08.5, has been referred to the Office of Student Life for disciplinary proceedings.)

The Herald also reported that someone affiliated with the “protest” against Friedman explained to them that “it’s not just Thomas Friedman. It’s what he stands for and what he promotes. It’s a pie in the face of corporate environmentalism and capitalism.”

The First Amendment protects speech – what Friedman was about to engage in when he was attacked – and also protects protesters’ countervailing right to speech, as long as their protest speech is not sufficiently loud or disruptive so as to interfere with the speaker’s ability to continue – the “heckler’s veto.” However, the First Amendment does not protect assault and battery against a speaker, which is what the students’ pie-throwing incident likely would constitute under the law were Friedman to press charges, or were local prosecutors inclined to proceed even against Friedman’s wishes. In addition to the violation of a criminal law, the students’ protest “action” runs contrary to most universities’ – including Brown’s – professed adherence to free speech and academic freedom principles. While it’s unclear what will happen to Little, Brown’s history is instructive, since not every incident of disruption or unlawful interference with free speech has been punished by campus authorities. (In these cases, you’ll often find that the administrators share the political views of the protesters, so their lack of action is a silent ratification of the protesters’ speech.) Several years ago, on campuses across the country – including Brown – students destroyed or stole press runs of student newspapers that contained a politically-incendiary advertisement placed by David Horowitz opposing reparations for slavery. Even though those actions constituted both theft as well as suppression of the newspaper’s free speech rights, few of those incidents resulted in punishment.

Then again, Friedman went on to finish his speech, so it’s not quite the same as these more successful heckler’s vetoes. But censorship of unpopular (to campus radicals) views is not acceptable, so we have to wait and wonder whether Brown will do anything to punish Little. (Of course, we may never hear anything, because so many campus disciplinary proceedings are held in complete secrecy. But that’s a separate issue.) They might do nothing. What is astonishing, and dis-spiriting, to advocates of free speech and academic freedom on our campuses of higher education, is that so many college administrators would not hesitate to publicly penalize a student newspaper or magazine and its staff writers for publishing a mere parody seen as offensive to some social group, but might hesitate to punish a student who engages in assault and battery in order to attack opinions deemed “regressive.” The double-standard that would occur were they to not punish Little would be breath-taking, particularly in an academic community supposedly devoted to the most heightened notions of free speech.

    The Waltham-based university named after the late and great Supreme Court Justice, Louis D. Brandeis, champion of free speech and free thought, has just achieved the dubious distinction of winning one of the “muzzle awards” given out annually by the highly respected Thomas Jefferson Center for the Protection of Free Expression, located in Charlottesville, Virginia.

    Twelve “winners” were picked this year, and Brandeis was chosen for its utterly incomprehensible efforts to punish a tenured faculty member, long-time Professor Donald Hindley, for his having used the word “wetback” in what turns out to be a perfectly appropriate and relevant manner during a lecture on Mexican politics and culture. It’s an offensive word, Brandeis’ Provost concluded, notwithstanding the available evidence that Professor Hindley was actually criticizing the racist use of the term. (Of course, even if Hindley approved of such use of the term, it would be his right. But the irony of punishing an anti-racist classroom lecture, on grounds of racial or ethnic intolerance or harassment, is just too much.)

    The battle against the Brandeis censors in the Hindley case as well as other recent attempts at suppression of speech has been taken up by the Philadelphia-based Foundation for Individual Rights in Education , of which I am co-founder and currently serve as Chairman of the Board of Directors. It is nice to see that the First Amendment Center agrees that battling censorship at Brandeis is a worthy goal. Maybe Brandeis President Yehuda Reinharz will begin to get the hint and undertake a conversion of Brandeis’ culture into something that Justice Brandeis would recognize and of which he would approve.

                                        Harvey Silverglate

A report by Boston Globe federal courts reporter Shelley Murphy is as interesting for what it omits as for what it reports.

The story involves what appears to be an allegation that Boston FBI Supervisory Agent Robert Callen either bullied, or harassed, or otherwise acted inappropriately toward an un-named “female federal prosecutor” at a meeting in the federal courthouse in 2006. Callen allegedly came up behind the unnamed prosecutor – who was assigned at the time to the Organized Crime Strike Force – put his arm around her in a headlock, and gave what the Globe article describes as “a Three Stooges-style noogie.”

This office incident – as anyone with an older brother can attest, undoubtedly one of the worst things that can be done to you at a tender young age – led to a year-long investigation and ultimately a recommendation that Callen and two other unnamed agents (let’s call them Curly and Larry) be fired. Of course, the “noogie” itself might not be the grounds for the dismissal recommendation. Rather, investigators from the FBI inspector general’s office concluded that Callen and the two other agents were not truthful when questioned about the incident.

Murphy reveals that her decision not to publish the name of the offended prosecutor was based on a request from Acting U.S. Attorney Michael K. Loucks. However, Murphy apparently learned the victim’s name for the story, and in fact reached the prosecutor, who “now handles drug cases,” by phone.

This instance of the Globe’s skittishness when it comes to publishing “sensitive” information comes on the heels of my recent Boston Phoenix Freedom Watch column. There, I complained about the Globe’s policy of not spelling out the actual four-letter words and other expletives involved in FCC censorship stories, where the actual words are crucial to the legal issues. So yet again I am astounded to see the Globe self-censor and sacrifice truth for style or political correctness – the refusal to publish the name of an alleged victim of harassment while naming the alleged harasser – an especially egregious violation of the public’s right to know since the alleged victim is a public servant and not an ordinary private citizen.

And, while we’re at it, there’s another aspect to the story that is troubling: When regular citizens are caught lying to the feds, the penalty is usually a “false statement” indictment under Title 18, United States Code, Section 1001, which makes it a felony, punishable by five years in prison, to make a “material” misstatement to a federal official. Instead of being indicted, the three FBI agents are heading for mere dismissal even though they didn’t tell the truth when talking to investigators. This is just another aspect of the double standards that more and more characterize our culture.

We’re living in a Three Stooges world.

                                             Harvey Silverglate

I have two articles in the March 13, 2008 issue of the Boston Phoenix. In the first, Jan Wolfe and I criticize the ill-advised arrest of performance artist Milan Kohout and follow up on his case, which was dismissed in Massachusetts court. In the second article, I report on newspapers' annoying tendency to censor swear words even when those words are at the core of the story being reported.

I also published an op-ed in the March 15, 2008 issue of the Boston Globe, in which I describe how vague and easily pliable federal statutes have created a situation in which the Department of Justice can concoct a novella-length federal indictment out of disgraced ex-New York Governor Eliot Spitzer's meeting a prostitute in a Washington, D.C. hotel room. Spitzer's vulnerability to federal prosecution, I argue, is part of a larger trend in federal law enforcement that has surprised defendants who have landed in trouble for acts, unlike the act of prostitution in Spitzer’s case, that they reasonably did not believe were intuitively criminal.

Writing for the Los Angeles Times (and carried in the Boston Globe), the usually very informative David Savage is a perfect example of the aggravating and puzzling trend whereby newspapers, ranging from national to regional, fail to report adequately on certain stories because stylistic conventions lead them to self-censor. Savage notes that the Federal Communications Commission is asking the Supreme Court to remove a temporary stay order, imposed last year by a federal appellate court, which put on hold the FCC’s decision to impose heavy fines on radio and television broadcasters for “isolated or fleeting expletives.” These banned utterances are dirty or otherwise offensive words that are not scripted, but that slip out accidentally or without advanced planning by the stations or networks.

While Savage’s article is well-intentioned, it’s maddeningly incomplete. When news reports published in venerable publications like the LA Times cover important issues of censorship – or other pressure to avoid the use of allegedly ‘offensive,’ ‘obscene,’ or simply politically incorrect language – those same news outlets’ refusal to repeat the language at issue deprives the public of an opportunity to judge the content and reasonableness of the censorship. Savage writes that “Rock singer Bono uttered an expletive on a live NBC show when accepting a Golden Globe Award in 2003 for best original song. So did Cher after receiving a Billboard Music Award for career achievement on Fox TV a year earlier.”

How are lay readers – or even broadcasters and their on-air guests – to understand the extent to which censorship continues to pervade the broadcast media if they aren’t told the precise offensive language in question? It has always vexed and puzzled me that the news media, traditionally at the vanguard of the fight for free speech rights, engages in such extensive self-censorship when reporting content that is precisely at the heart of censorship battles. It not only fails to inform news readers, but plays into the government’s assumption that it would somehow injure tender ears and eyes to run into a dreaded four-letter word now and then in the public square. As they used to say in my high school locker room: Fuck that shit!

I am reminded of my law school days, from 1964 to 1967, when we studied common law crimes. There was an ancient common law statute outlawing “the abominable and detestable crime against nature.” Though I was still a young buck at the time, I wasn’t born yesterday; I knew that it had something to do with outlawing some kind of disfavored sexual practice. I just couldn’t figure out precisely what practice the statute prohibited. Was it sodomy (oral or anal intercourse) or bestiality (making it with your favorite sheep or other alluring pet), or some other variation of the varieties of outlets for human physical passion? I did some research and found that the “crime against nature” statute had been challenged by a criminal defendant who claimed it was unconstitutionally vague. Under his theory, the wording of the law did not give citizens adequately clear notice as to what practice had been prohibited as a serious sex crime. One court rejected that defendant’s objection by claiming that the term was quite clear and that everyone knows what it refers to – without, of course, describing the offending practice.

Soon after I graduated law school, I argued my first case before Massachusetts’ Supreme Judicial Court. The street vendors of an “alternative newspaper,” published under the name AVATAR by the Fort Hill Community in Roxbury, had been arrested for selling an issue that boasted a centerfold with only four words, writ in extra-large type: FUCK, SHIT, CUNT, PISS. The issue had been published precisely in order to challenge the prudes who had threatened to arrest street vendors and close down the paper – which was, of course, also inconveniently critical of local government bodies, the Boston Police, and the Cambridge Police. The cops who targeted the AVATAR vendors wanted to be sure that their efforts would be successful, so in addition to busting dozens of street vendors for selling the issue to adults, they also arranged for several teenaged sons of police officers to buy the paper from five vendors. I took those five cases to the SJC, which overturned the convictions on the grounds that publishing those four words did not constitute purveying obscenity to minors. The court wrote that while “its authors seem to take pride in the rediscovery of certain four letter words old in Chaucer’s day,” they nonetheless had to find that “this rather sad publication is not obscene.” Note that the court failed, or refused, to repeat the words published in AVATAR. This meant that the published opinion by the highest state court in Massachusetts gave readers no guidance as to what words were constitutionally protected.

We can’t force the courts to describe in detail that which no respectable jurist wishes to utter (at least in a published court opinion), even if those descriptions would provide a useful gloss on state law. But the media have a different role to play – that of providing the public with enough information so that we can be effective rulers of our democratic society – meaning that newspapers should stop acting likes prudes and start doing their job, informing the public rather than “protecting” our delicate sensibilities. It’s time to stop circumventing the publication of sexual and racial and other “forbidden” terms. It’s time to make it respectable once again to report the news in all of its informative – and sometimes tasteless – color.

                                                                                Harvey Silverglate

"If the rap song is bad enough to cause [teenaged rapper Christopher] Holder's arrest, why is it not bad enough to cause the arrest of the guy who made the recording? ... I say ... Book 'em, Dano. Book 'em all."

It sounds like Gibson supports the underlying law that got Holder in trouble (and would be used against other rappers in his professed ideal universe), though he doesn't explain why. Maybe it's simple syllogistic logic: Gibson thinks the speech was offensive, and offensive speech should be banned. But some people evidently find John Gibson offensive, as when he mocked actor Heath Ledger's death with homophobic jokes on the air. Under Gibson's framework, shouldn't Dano book him, too?

    This past weekend, my research assistant James Tierney and I published an op-ed in the Massachusetts Lawyers Weekly about the dubious arrest and prosecution of local attorney Simon Glik under the state "wiretapping" statute. The op-ed (and the news article that David Frank of the Lawyers Weekly wrote to accompany our piece) lays out the facts in some detail, but here's a summary: 

    While walking down Tremont Street, Boston, last October, Glik stopped when he saw police officers arresting a teenaged boy in what he later found out to be a drug arrest. Glik says that at the time he thought the cops were being overly harsh, so he pulled out his cellphone camera and, from a distance of about ten feet, began recording video (and audio) of the arrest. Holding the cellphone at arms length, and at eye level, Glik slowly walked back and forth recording the incident until the cops noticed him and determined that Glik was recording audio. At that point, they arrested him and sought a complaint for wiretapping, disorderly conduct, and aiding the escape of a prisoner from an officer.

    Why "wiretapping"? As we explain in the op-ed, the Massachusetts statute criminalizing unauthorized electronic eavesdropping and establishing procedures for lawful government wiretaps, 272 M.G.L. § 99, is vaguely worded and covers the secretive audio recording of oral communications -- in other words, speech. In 2001, Massachusetts' Supreme Judicial Court issued an opinion in Commonwealth v. Hyde upholding the wiretap conviction of a motorist who surreptitiously recorded his interaction with a cop during a traffic stop.

    But § 99 and Hyde both explicitly name secrecy as one element of the wiretapping crime. As we note in the op-ed, “[e]ven the Hyde majority explained that recording an interaction with the police would not have violated the law had ‘the defendant … held the tape recorder in plain sight.’ That Glik did nothing wrong, from either a legal or ethical standpoint, seems clear to us.”

    Glik appeared in Boston Municipal Court on Tuesday morning for a motions hearing. His attorney, June Jensen of Wayland, Massachusetts, argued a motion to dismiss all three charges. (The Commonwealth agreed to drop the charge for aiding the escape of a prisoner, since the term prisoner facially did not apply to the fact pattern.) Relying on Massachusetts case law and statutory text, she argued that § 99 required not just an element of secrecy but also that the recording actually have captured intelligible speech or voices. Furthermore, she argued that according to case law, 272 M.G.L. § 53, which proscribes disorderly conduct, is not triggered when there is a legitimate purpose behind the act that caused the disturbance. “When the purpose of the conduct is to record an arrest,” Jensen argued, “the conduct is legitimate.”

    In turn, the Commonwealth put up embarrassingly weak, convoluted, and non-responsive rebuttals to Jensen’s arguments. With regard to the wiretapping charge, even though Glik held the cellphone out at arm’s length and at eye level, the cops had their backs to Glik, so the recording was “secret” until they turned around and saw the camera, according to the prosecutor. Similarly, the Commonwealth argued that it didn’t matter that the police report did not contain any information to demonstrate that any speech was recorded – nor indeed that any recording had been made at all – since it was sufficient that Glik told the cops that he was recording audio. The judge posed a hypothetical: had the judge himself stopped on the street to record the arrest, and had he been holding up a cellphone that had no camera or technical ability to record anything, but had told the cops that he was recording audio – the only fact relied upon by the Commonwealth in its complaint against Glik – would the Judge be liable for wiretapping under the Commonwealth’s theory? Well, the prosecutor said, yes.

    As for the disorderly conduct charge, which requires that “the defendant either intended or recklessly created … a risk of public inconvenience, annoyance or alarm,” Alegata v. Commonwealth, 353 Mass. 287, 304 (1967), the Commonwealth argued that there was probable cause to issue a complaint for disorderly conduct because Glik had annoyed the cops. Police are not the public, of course, so the Commonwealth then argued that because the videotaping had occurred on a busy city street at rush hour, it was reasonable that Glik would have created a public annoyance.

    The judge took the motion under advisement, saying he would decide on the motion in a week’s time, and setting the next hearing date for March 12. If one wishes to know why Massachusetts and Boston find themselves in such woeful financial straits these days, it’s useful to begin by examining how our police officers, prosecutors, and, therefore, judges as well, spend their time. Nonetheless, the civil liberties aspects of this case are considerably more disturbing that the specter of such a senseless waste of the public treasury.

    We will be following the case in the Phoenix and on this blog, so keep an eye out for a report once the judge decides on the motion to dismiss.

    (With thanks to James Tierney for his report of the hearing.)

By James F. Tierney

In a story we missed when it first broke a month ago, a federal appellate court upheld a Texas school's decision to suspend the high school sophomore for writing a violent fictional short story that school administrators interpreted to be a "terroristic threat." According to the Student Press Law Center, the Fifth Circuit decision "relied heavily on Supreme Court Justice Samuel Alito's opinion" in the "Bong Hits 4 Jesus" case that came down this summer -- Morse v. Frederick. Alito's decision in that case had limited the scope of legitimate school censorship to "'speech that a reasonable person would interpret as advocating illegal drug use' and did not extend to any political or social commentary." [emphasis added] By contrast, in Ponce v. Socorro the Fifth Circuit divined a much broader rule that it determined was implicit in Morse, holding that "speech advocating a harm that is demonstrably grave and that derives that gravity from the 'specific danger' to the physical safety of students arising from the school environment is unprotected." [emphasis added] It looks like the family of the student is considering whether to ask the full membership of the Fifth Circuit to rehear the case; even if they do, it's by no means certain that the whole court will agree to do so. We'll follow the story and post if more details come in.

By James F. Tierney

Two weeks ago, Harvey Silverglate blogged about a federal Magistrate Judge, Wayne Brazil, who overturned a “civility code” at San Francisco State University on the grounds that it targeted speech and expression that falls under the protection of the First Amendment. (The case was brought by the officers of SFSU's College Republicans, who were investigated under the civility code when students complained they had insulted Muslims by stepping on the Hamas and Hezbollah flags -- which contain the word “Allah” in Arabic script -- during an anti-terrorism rally.) The opinion is available here.

By Harvey Silverglate

            H. L. Mencken, late in life, allowed himself to be interviewed by a young reporter from his hometown newspaper. The interviewer asked the grand old curmudgeon, "why, if you find so much that is unworthy of reverence in the United States, do you continue to live here?" Mencken answered the query with another question: “Why do people visit zoos?” Well, living right smack in the middle of the zoo that Harvard has become in its dotage, I now understand Mencken’s reasoning perfectly.

            The latest head-shaking Harvard story is that anthropology professor J. Lorand Matory introduced a one-sentence resolution at a faculty meeting stating that “this Faculty commits itself to fostering civil dialogue in which people with a broad range of perspectives feel safe and are encouraged to express their reasoned and evidence-based ideas.” Professor Matory, according to the Harvard Crimson, “has claimed that critics of Israel, like himself, ‘tremble in fear’ of repercussions for their views.”

            As a pretty close student of the goings-on at Harvard (I’m a graduate of the Law School, a long-time affiliate at one of the Harvard undergraduate houses, and I lecture at least a couple of times each semester at one or another Harvard Law School class), I have to say that the only faculty member I know who actually did suffer for his views on Israel was Lawrence Summers, who happened to be the university president at the time he gave a speech positing a possible link between animosity toward Israel and anti-Semitism or the appearance of anti-Semitism. That speech, plus another unpopular speech supporting the ROTC program, which Harvard's faculty stripped of university funding in 1995, capped off by Summers’ infamous musing on women’s suitability for careers in science made Summers sufficiently vulnerable so that a no-confidence resolution introduced by none other than Professor Matory caused Harvard’s governing body to vote “no confidence” in Summers, resulting in his resignation in February 2006. And so it was a bit ironic to have Matory, a leader of the faculty rebellion that forced Summers out for his unpopular and politically incorrect views on hot-button topics, claim that he felt “unsafe” for espousing his views on the campus. Presumably, had Harvard truly dedicated itself to a culture that fostered “civil dialogue in which people with a broad range of perspectives feel safe and are encouraged to express their reasoned and evidence-based ideas,” Summers would still be Harvard’s president.

            But I suppose that my disgust over the Harvard faculty’s intolerance for views with which it disagrees -- and Matory surely is not in the camp that has to worry about being “unsafe” – is matched by my amusement over the notion that tenured faculty members, especially those adhering to the politically correct fashions of the day, are somehow “unsafe.” That faculty, as Summers learned the hard way, is perhaps the most pampered tenured faculty in the nation. Harvard has become infamous, for example, for the paucity of full professors who actually teach undergraduates. They are so pampered, in fact, that it is notoriously difficult to get them even to attend faculty meetings, unless, of course, they are about to vote no-confidence in a president who expresses his views too bluntly. Indeed, the reason the Matory resolution was not brought to a vote was that it takes one-sixth of the faculty present to conduct an official vote, and attendance at the meeting fell just short of that very modest quorum.

            One of the craftiest semantic tricks adopted by campus censors since the mid-1980s used to suppress unpopular viewpoints and supposedly offensive speech on campus has been the “civility code,” a close relative of the “harassment code.” The latter has received more attention by commentators as well as courts. But free speech advocates have been slow to recognize the dangers posed by codes that insist that students be civil to one another – or else. It is the “or else” that makes these codes mandatory, and hence a form of censorship.

            On November 7^th, U.S. Magistrate-Judge Wayne Brazil, sitting in federal court in San Francisco, made one of the clearest statements I’ve yet seen as to why forced civility, innocuous as the term may sound, can all too easily be turned into a speech code and lead to unconstitutional censorship. Ruling in a lawsuit brought by the Alliance Defense Fund, a Christian public interest organization, and supported by the non-partisan and wholly-secular Foundation for Individual Rights in Education (disclosure: I co-founded FIRE and currently serve as Board of Directors chairman), Brazil issued a preliminary injunction against San Francisco State University’s so-called civility code. The jurist said that the school could enforce the portion of the code that prohibited true intimidation and harassment but it could not conflate those concepts with the act of merely telling someone something he or she did not want to hear. This ruling sends the clear message that before a public college or university – which, being a governmental institution, is bound by the constitution’s free speech provision – may shut a student up, it must actually show that the speech or conduct can reasonably be seen “to threaten or endanger the health or safety of any other person,” not just make him or her uncomfortable.

            Of course, there’s nothing wrong with civility, but, like much that is virtuous, it must be the product of voluntary self-restraint, not orders barked by an intrusive (and unconstitutional) campus feel-good bureaucracy. Magistrate-Judge Brazil said he would issue a written opinion, which we’ll be looking for. Meanwhile, let us each do a good deed and find someone today to whom to be voluntarily civil.

By James F. Tierney

Last week the family of a U.S. marine who died in Iraq won a $10.9 million award against members of the Westboro Baptist Church for picketing outside the soldier’s funeral, bearing signs reading “God Hates Fags.” (They “argue” that U.S. servicemen and women are dying in Iraq because God is punishing the U.S. for its tolerance of gay people.) Law professor Eugene Volokh makes a convincing argument that the verdict is unconstitutional. The case is now expected to go to the Fourth Circuit, which will consider whether the award will be overturned. We’ll keep an eye on this one.

(Update, Nov. 12, 2007: this post has been edited from the original.)

By Harvey Silverglate

The act of censorship is usually seen as a direct affront to the First Amendment, buts it’s not always that clear and simple. The reason, of course, is that the amendment has several clauses, and at times some of them are in tension with one another, if not in seeming conflict.

Consider today’s curious report in The Boston Globe that the pastor of St. Joseph’s School in Wakefield, Rev. Ron Barker, ordered the removal of the Harry Potter series of books from the school library’s shelves. At first, it seems to be a slam-dunk case of unconstitutional censorship. Once a book is selected by the relevant school authorities for placement in a school library, the Supreme Court has ruled, there has to be a pretty good reason for administrators to remove it. The First Amendment, after all, protects the freedom of speech and press.

However, the First Amendment also protects the “free exercise” of religion, and if an administrator at private parochial school decides, as Rev. Barker reportedly has, that the witchcraft and sorcery themes of J. K. Rowling’s now-classic series are inimical to Catholic religious teachings, and that, as one parent reported, “he said it’s his job to protect the weak and the strong” from undue literary influences, then the First Amendment actually protects that act of censorship. Besides, the First Amendment arguments are moot in this case anyway, because the constitution protects only against censorship by public officials, and that doesn’t cover any private school, whether religious or not.

And so, in this instance, the First Amendment, if it were even applicable, actually protects the power of Rev. Barker to keep the students from reading the Potter books in school. Of course, having the power to censor does not mean that it is wise, or even effective, to do so. Indeed, Rev. Barker could have saved himself the trouble, since it’s obvious that the students will read the books elsewhere if that’s what they want to do. There’s one surefire way to deal with official censorship – by unofficial reading outside of school.

Scholars have for centuries sought to define and promote the concept of academic freedom, and, while the exact definitions they’ve arrived at have varied, the underlying rationale has always been the same: to shield academics from political and religious pressure. For this reason, I’m a bit puzzled by the fact that many of the modern-day groups that describe themselves as defenders of academic freedom are also clearly political in nature and often seem to be promoting a political agenda rather than neutral principles of liberty.

The most recent academic freedom movement within the academy, which calls itself “The Ad Hoc Committee to Defend the University,” seems to fit this mold. It eloquently extols the virtues of academic freedom, particularly in debates over the Middle East, but upon closer inspection, seems concerned only with the rights of scholars from one side – theirs, of course – of  the political spectrum.

The Committee, led Joan Wallach Scott, a history professor at Princeton, has already voiced its opinion on quite a few academic freedom controversies, and, so far, they’ve always come out pretty much on the right side, in my view. When St. Thomas University cancelled a speech by critic of Israel and Nobel laureate Archbishop Desmond Tutu, members of the Committee rallied behind the censored clergyman. And when the pro-Israel group StandWithUs convinced the University of Michigan press to stop publishing a book called Overcoming Zionism, the Committee helped convince Michigan to change its mind, arguing persuasively against these “efforts to broaden definitions of anti-Semitism to include scholarship and teaching that is critical of U.S. foreign policy in the Middle East and of Israel.”

So what’s the problem, then? As you can see, all of these controversies involve censorship of anti-Israel speakers. In order for me to take this group seriously, it first needs to defend the academic freedom of someone whose speech doesn’t fit neatly into the limited range of politically acceptable (or, as some prefer to say, politically correct) viewpoints prevalent on most campuses. The Committee stood behind Tutu, a liberal darling, but where was it when the Regents of the University of California nixed a speaking invitation to former Harvard University president and Secretary of the Treasury Lawrence Summers because of complaints from a handful of leftist postmodernist professors? Similarly, the Committee criticized Israel supporters Alan Dershowitz and David Horowitz for involving themselves in DePaul University’s tenure dispute with Jewish-born Israel-basher Norman Finkelstein, but why hasn’t it also criticized the leftist academics who aggressively sought to bar Arab-born Israel-supporter Nonie Darwish from speaking at Brown last year? (Disclosure: I’m a long-time personal friend of Dershowitz. This said, however, I’ve been publicly critical of a number of his positions.)

As I’ve said many times, and will say again, once we cease looking at free speech and academic freedom as modal liberties – that is, as primary values in and of themselves – and begin to treat them as a means to a politicized or ideological end, we irreparably weaken thm in the long run. Either free speech and academic freedom are seamless and equally applied across the ideological spectrum, or they might as well be abandoned entirely. The founders of these important doctrines understood this. It’s a shame that their modern-day counterparts need so often to be reminded of it.

(My thanks go to my research assistant, the very talented Jan Wolfe, for assisting me with this blog entry.)