1st Amendment at CSU – making a Professor cry uncle

The following is a “Letter to the Editor” that I sent in this morning in reply to an Editorial in the State Press newspaper (reprinted below my letter).

UPDATE: Below this is an email exchange with a Teacher of Constitutional Law.

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The opinion expressed in the F*** BUSH editorial demonstrators the truth about navels (a**holes, etc…).  Everybody has one.

The Editor of the CSU Paper does have a First Amendment right to tell Bush to “F***” off.  If he wanted to go stand on a street corner and hand out flyers that he had personally made and personally paid to have duplicated at Kinkos on his own dime that would be an example of his exercising his First Amendment rights. But to say he had a “right” to print it in the School paper is STUPID and UNINFORMED.

The CSU paper has established guidelines for printing offensive language in editorials.  Those guidelines were established by the Paper and not by Congress – last time I looked the First Amendment applied to laws passed by Congress and not the published Editorial policy of the paper (see page 18 of the CSU Paper’s policy on Editorials) which states: “Even though profane and vulgar words are part of everyday conversation, they are not to be used in news accounts or letters to the editor unless they are considered by the editor-in-chief to be essential to readers’ understanding of the situation. Use of words viewed as vulgar and profane also should not overshadow other, more important facts of the story. Profane and vulgar words are not acceptable for opinion writing”

Your own Editorial hit the proverbial nail when you wrote “In this respect, the editorial in question failed entirely. We learn nothing about the Taser incident, or Bush. Nothing is presented in the way of argument or intent.”

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Opinions: “FUCK BUSH”

– Colorado State University’s Rocky Mountain Collegian editorial page

published on Wednesday, September 26, 2007

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While the majority of the ASU editorial staff wholeheartedly supports every newspaper’s right to use this rather blunt statement, we also like our jobs. So we are keeping the quotation marks on our page and letting Rocky Mountain Collegian Editor in Chief David McSwane continue to take the heat for using his First Amendment right to say whatever he wants.

Last week, after the Taser incident at the University of Florida, the CSU student newspaper ran what may be the shortest editorial in the history of print journalism. It said simply, in giant capital letters across the top of the editorial page:

TASER THIS?
FUCK BUSH

The statement is sharp, attention getting and to the point. And despite the protests of Colorado State Republicans, the editor was completely within his rights to print it.

The real question is whether such hatemongering language is constructive. In other words, was the juice worth the squeeze?

It depends on what kind of juice you’re looking to drink.

The purpose of an editorial page is two-fold. On one side, columns and editorials should educate citizens on current issues and events. They should provide fresh perspective and break down complicated arguments into logical steps the public can grasp.

In this respect, the editorial in question failed entirely. We learn nothing about the Taser incident, or Bush. Nothing is presented in the way of argument or intent.

However, an editorial should also promote discussion. This is the way editorials primarily break from straight news reporting.

And oh, did CSU’s newspaper get people talking.

As a comparison, a well-written (we thought) 450-word editorial ran in this space last week detailing the Taser incident as well as the history of police brutality involving Tasers.

We got one letter.

The Rocky Mountain Collegian, meanwhile, writing on the same day about the same topic, used only four words and received more than 900 written responses.

Once again, shock value wins out over rational investigation. Such is news in the world today. We really have no choice but to succumb to the wave of sensationalist yammering sweeping through the world of journalism if we ever want to be heard. On that note?

F*CK GLOBAL WARMING!

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I sent a copy of the above to some friends.  Well, one of the other people I sent my email too has a distribution list that he sent it to.

A guy on that distribution replied back to that list with the following

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ASU is a government institution – the Bill of Rights protects us against all levels of government, not just Congress.

Dave Riddle got it wrong.

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I was a little rough on him in my reply back

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I guess Mr. XXXX is uninformed and ignorant too or just incapable of seeing the point of my letter.  I guess it is one of those Forest/trees issues.

1. The Editorial in question was published at CSU not ASU as my Letter and the Editorial in the ASU paper stated.  Not to say that ASU is not also a “government” school and therefore bound by the Bill of Rights.  If the paper was a “private” enterprise and a government entity tried to censor what was being printed then he could scream that his First Amendment rights were being violated.

2.  Since the Editorial published in the CSU (not the ASU) paper was written by the student Editor-in-chief (a paid employee of the school “owned” paper) and was in fact published it is not a matter of being denied “Freedom of speech” since he was not denied ANYTHING.

3.  “If” the editor is later punished/fired for his judgement it would clearly be based on his violation of the Editorial policy of the paper.  That policy clearly indicates that there would have been nothing wrong with using “Taser This, F*** Bush” if that had been the headline of the Editorial and then was followed by an actual editorial outlying the issue(s) raised in the headline.  Take the time to educate yourself and read the operating By-laws yourself.  The operative section is found on page 18, index 29 of the Student Code of Ethics.

http://studentmedia.colostate.edu/pdfs/BSC_bylaws.pdf

As an employee of the paper he agreed to abide by these rules.  If he found them to be not to his liking he should not have joined the paper but started his own instead.

Same issue applies to the ASU paper’s editorial about this issue.  They used the unedited four word phase in their editorial and I have no issue with them because it was part of the story not the entire story.  I have not looked up ASU’s policy but I would bet it reads similar to CSU’s.

4.  The Editor himself admitted yesterday that if someone else had written a letter/opinion like what he himself had written that he would not have printed it.  Does that mean Freedom of Speech only applies to the Editor?  Of course not.  Editors make decisions all the time as to what is acceptable and what is not.  Those decisions should be based on established rules so as to be consistent.  Do papers print the names of rape victims?  Of course not.  Is that because the First Amendment does not apply or there is some “legal” reason preventing them from doing so?  Nope. Could they print the name?  Sure.   They don’t because the Editors, Publishers and society (their readers and advertisers) have decided it is not appropriate.

As much as we might want to believe that Freedom of Speech is absolute it is not.  If you don’t believe me try these simple examples.  Yell “Fire” in a movie Theater, slander or libel someone or even copy someone else’s written/spoken work and claim it for your own.  Are you “Free” to do any of those things?  Yes.  Will or can there be consequences for exercising that right.  Damn straight there will be.

I support the Second Amendment too but it also is not an absolute right.  It does not say in that amendment that if you are convicted of a crime you cannot own a gun, but be a convicted felon and get caught with a gun (whether you are committing another crime or not) and see how much the Second Amendment will be a defense in a Government Court.

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He then replied back to me with…

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David, the “ignorant and uninformed” comment is totally inappropriate for this forum and uncalled for. You have cheapened yourself and your position.
Colorado State University is a publicly funded agent of government and is bound by the same restrictions of law as is Arizona State U.
As Justice Robert Jackson said over 60 years ago in West Virginia State Board of Education v. Barnette [1943}, “if there is any fixed star in our constiutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in plos of opinion or force citizens to confess by word of act their faith therein.”
The battle goes on, though.
The forces of political correctness are as strong on campuses today as they were, in the other direction, during the McCarthy red scare. It takes constant vigilance on the part of Americans who understand and treasure the liberties enshrined in our Bill of Rights to protect our students and academics from over-reactions and inanae senstitivities that quell diversity of opinion.

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SO I wrote him back with…

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And yet you still cling to the misbegotten idea that the controversy at CSU is about Freedom of Speech.  It is not.

The case you cite is not on point.  It deals with a plaintiff (Jehovah’s Witnesses) not wanting to do and say things that the government (the school) was forcing them to do and say (Salute the Flag and say the Pledge of Allegiance).  It says nothing about an employee using his position to do and say things expressly proscribed by his employer.

Interesting to note the Editor at CSU has hired the same attorney that is representing Ward Churchill in his First Amendment complaint against Colorado firing him for Academic fraud and plagiarism.  The Churchill case has nothing to do with the First Amendment either.  obviously Churchill cam to attention for what he said and if he were fired for that reason he would have a case and I would support him.  His words invited people to examine him and it was then that his Fraud and plagiarism were discovered.  If he had not lied on his employment application and had not committed academic fraud (writing articles under a different name and then using what he wrote under those different names as citations for articles written under his own name) and plagiarism he would still be employed.

A closer case for you to cite would have been “Pickering v. Board of Education”, but that misses the mark too because the letter in question was written to a local paper and not the school paper.

“…The U.S. Supreme Court rules that school board officials violated the First Amendment rights of Illinois public school teacher Marvin Pickering, who was fired for writing a letter critical of the school administration to a local newspaper. The Court writes in Pickering v. Board of Education that the ?problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.?”

Better cases would be “Tinker” (but even here the Court ruled that the school could prohibit certain kinds of speech), “Papish”, “Bethel” and “Hazelwood”.

Here is an interesting articles:

http://www.firstamendmentcenter.org/commentary.aspx?id=15390

and

http://splc.org/legalresearch.asp?id=38

Following the above flow chart the answers in the CSU case would be: Begin, Yes, Yes, Yes, and then Yes so that Hazelwood would permit Censorship even if you wanted to argue that the  “Use of words viewed as vulgar and profane also should not overshadow other, more important facts of the story.” portion of the CSU By-laws amounted to prior restraint on the Editor’s First Amendment rights.

The issues of censorship in school=sponsored publications tend to come down on whether the issue is based on “view-point” or not.  If the School Admin does not like a view can they censor it?  This is still unsettled law because of competing rulings in different District Courts.  The Supreme Court came closes to a decision in favor of the Admin over the students in “Perry” where the School is not permitted to censor one view if they allow a different view to be published.  The School Admin must take a neutral view on the material.  But again that is not the issue at CSU.  The By-laws clearly show that if the “Taser This, F*** Bush” words had been the headline and was then followed by and actual editorial there would be no issue.

This case in the Tenth Circuit (that includes Colorado) gives coverage to Administrators too and was just ruled on last month.

http://www.thefire.org/index.php/article/8275.html?PHPSESSID=

Also the Ruling in Hotsy.

http://www.pbs.org/weta/washingtonweek/voices/200507/0711nat0.html

But I repeat the CSU case in not about Censorship of the First Amendment is that really too difficult to understand?

Additional good resouress:

http://www.firstamendmentcenter.org/Speech/pubcollege/topic.aspx?topic=newspapers_yearbooks

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He replied with…

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Well done ! This is good writing.
I may give parts of this to my students and hope that is okay with you.

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I of course followed up with…

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Feel free. What do you teach and where?

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His reply…

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Constitutional Law
Xxxxxxxxx University of Texas

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I looked him up on the Faculty there.

Maybe this Constitutional Law Prof will help his students open their eyes to see things a little more critically and not take things at face value.