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.

We’ve written about prior restraints before on The Free For All, in the context of a court order that prevented a Boston TV station from broadcasting the results of autopsies of firefighters killed in the line of duty. As we wrote last fall, prior restraints on speech, and especially these kinds of court injunctions limiting publication of something before it’s actually published, are the most drastic form of censorship and are strongly disfavored by the courts – or at least by courts that are reasonably versed in constitutional law.

Because these prior restraints are so generally frowned-upon, it was with some surprise that I read that the Department of Justice has asked a federal judge to silence Kansas physician Stephen Schneider, and his wife Linda, who had attempted to speak out about the highly questionable prosecution against them. According to the Fort Mill Times, the Schneiders are charged with conspiracy, fraud, and a variety of other allegations related to their clinic, which prosecutors are calling a “pill mill.” Even more remarkably, the DOJ, clearly intent on keeping its prosecution – and persecution – of the Schneiders as quiet as possible, is also seeking to hush up the outspoken Siobhan Reynolds, the founder and head of the Pain Relief Network, who has been heroically battling federal drug warriors for years. Reynolds had come to the defense of the Schneiders as part of her larger push against the devastating terror campaign the DOJ has been conducting for decades against doctors who prescribe pain medications to patients who suffer from serious, chronic pain. The Schneiders apparently spoke with the media about their case and about the flimsiness of the allegations against them, which in turn provoked the DOJ into seeking the gag order against them. It appears that the DOJ, unable to withstand public scrutiny of its shameful war on physicians who help people deal with chronic pain, is turning its guns on those who vociferously oppose the reactionary anti-drug agenda of the DOJ – and accordingly dare to inform fellow citizens about the travesty of these prosecutions.

Though courts have the power, under legal ethical rules, to tell lawyers they can’t talk about certain elements of ongoing cases to the media – known as the pretrial publicity rule – presumably in order to avoid influencing the minds of potential members of the jury pool, it’s unclear how they can tell defendants, let alone third party observers like Reynolds (who isn’t a party to the case) what they can and cannot say. Typically, litigants, the press, observers and other commentators cannot be restrained by these kinds of injunctions. I doubt that the judge will be dumb – and reckless – enough to grant a gag order that almost certainly would be reversed on appeal. However, judges, who sometimes view themselves as part of the government “anti-drug” team rather than as neutral arbiters whose job it is to enforce the law, have done stranger things.

Indeed, for these reasons, I would predict that the DOJ would fail in seeking an injunction against anyone other than the lawyers in the case. However, this bizarre strategy by the DOJ does give us some idea of how far out of line the drug war has veered, such that the prosecutors are trying to keep the public from knowing that if their physician is reluctant to treat chronic severe pain, the reason probably lies in Washington.

            The front page of today's Boston Herald contains a startling bit of religious bigotry that surely would not have made it past the editors had it been referring to a church other than Scientology: “Dollars For ‘Cult’ Scholars,” screamed the headline. “Hub charity gives $20G to proposed Scientology-linked school.” 

            What happened was that the “Cornerstone for Success Academy,” described in Dave Wedge’s sensationalistic story as “a proposed taxpayer-funded pilot school linked to an arm of the controversial Church of Scientology,” was given a modest grant by the Boston Foundation, a highly-reputed Hub private charity. Richard Stutman, President of the Boston Teachers Union – which is opposed to pilot schools generally because they outshine the public schools that are hobbled by the infamously dysfunctional BTU contract – obliged by charging that “The Boston Foundation obviously didn’t pay careful attention to  who [sic] they gave the planning grants to [sic].”

            Naturally, the educational authorities will investigate any applicant that wants to start a charter school. Religiously-linked groups are not excludable per se, as long as the school will be operated along secular, not religious, lines. This would be so regardless of whether it’s a Jewish, Christian, Islamic, Scientology, Mormon or any other group to which a proposed pilot school might  be linked. And indeed a spokeswoman for Applied Scholastics, sponsor of the school, recognized this when she told the Herald that “our organization is a secular organization” and that there is no “religious material in our programs.”

But what is disturbing about the Herald’s report is the treatment of Scientology as a “cult.” Consider the reaction if the paper had referred in this derogatory manner to, for example, the Mormon Church to which our former governor – and Presidential primary candidate – Mitt Romney belongs. And, of course, there’s no reason why an even larger religious denomination could not be referred to as a cult by those who find its practices mystifying or unpleasant. To a non-member or a non-believer, any church has practices and beliefs that could be described as cultish. (Disclosure: Some years ago I represented the Church of Scientology of Boston in defending, on First Amendment religious liberty grounds, against lawsuits seeking money damages for “religious fraud.”) The notion that one’s own belief is the only true belief, and that all others are fools, apostates, or cultists, is a very dangerous one, ending, historically, in the cemetery. That such intolerance graces the front page of one of Boston’s daily newspapers is disturbing.

        There has been a lot of bleating from those who believe that boycotting the Olympic Games over The People’s Republic of China’s abysmal human rights record is in poor taste because the Olympiad is not a political event. Personally, I think that, since the Olympiad pitches itself as a symbol of fraternity and respect for individual achievement, a boycott over the choice of China as a host country is not entirely unreasonable. I am, however, sufficiently flexible on the subject to see the point made by athletes who see the games as apolitical.

But what does really irk me about this issue, above all else, is when this “the Olympics is not a political event” retort is used to criticize the protests that have followed the Olympic Torch’s journey from Athens to Beijing.

Loud and visible public demonstrations are not the equivalent of a boycott, but are simply an exercise in free speech that seems perfectly appropriate – indeed, a bit on the mild side – given the provocation from Beijing. After all, not only has the PRC oppressed and suppressed Tibet since the invasion of 1949, but, according to recent reports, the Communist Chinese overlords have undertaken a program of attempted political indoctrination in order to convert the Tibetan Buddhist teenagers into PRC-thought and away from the ancient teachings of their religion and of their leader, the Dalai Lama.

            Governmental attempts to coerce expressions of belief, even more than attempts to suppress the expression of what people actually do believe, is perhaps the most serious invasion of mind, spirit and conscience that any government could possibly undertake. It harkens back to the days of the Inquisition, when human beings were tortured in order to make them renounce their beliefs and then mouth the beliefs of others. Today, we have remnants of such obscene practices in, for example, the mandatory sensitivity and diversity training sessions which many starting college freshmen are forced to attend when they first arrive on campus, or the required thought reform sessions to which students are sentenced by campus kangaroo courts as punishment for uttering words (we call it free speech, but campus administrators call it “harassment”) that might be viewed as insulting to some group on campus.

            Indeed, in our own country, the United States Supreme Court, in one of its most magnificent opinions on behalf of liberty, declared unconstitutional a state’s requirement that students be forced to pledge allegiance to the flag. That would be a violation of a student’s rights to both free speech and free conscience, declared Justice Robert Jackson for the court majority in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). This opinion was rendered, it must be noted, during World War II, when pressures for patriotic symbols and expression were at their strongest.

            As long as Tibet’s PRC masters exercise their raw power in both suppressing the Tibetan people and in forcefully “re-educating” that beleaguered nation’s religious figures, demonstrations on the occasion of the coming Olympics are a perfectly appropriate – indeed, understated – way for free people to make a critically important point about human freedom and those who suppress it.

    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