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GUEST COMMENTARY: MU can't punish free speech

Friday, April 13, 2012 | 6:00 a.m. CDT

Travis Cornejo resigned as editor-in-chief of The Maneater in the wake of the April Fools’ Day parody. On Thursday, the Office of Student Conduct called Cornejo and said, in effect, to ignore its Tuesday letter to him. Thank goodness.

The letter had spoken of two "possible violations of University regulations":

  • Obstruction or disruption of teaching, research administration, conduct proceedings, or other University activities, including its public service functions on or off campus. Specifically: You allegedly participated in the editing process of the April Fools' Maneater Publication which disrupted the University community by printing offensive articles.
  • Disruptive or disorderly conduct or lewd, indecent, or obscene conduct or expression. Specifically: You allegedly participated in the editing process of the April Fools' Maneater Publication in which several articles were disruptive, lewd, offensive, and indecent to people in the University community.

The First Amendment was not designed to protect pretty speech. Pretty speech needs no protection. The First Amendment protects offensive and sometimes even lewd, disruptive and indecent speech.

The University has already been through a similar brouhaha and came up on the losing end in the U.S. Supreme Court’s 6 to 3 decision in Papish v. University of Missouri Board of Curators, 410 U.S. 667 (1973).

Barbara Papish, a graduate student at the School of Journalism, got expelled for selling a newspaper, the Free Press Underground, on campus. The newspaper's cover featured a political cartoon of policemen raping the Statue of Liberty and the Goddess of Justice. The newspaper also contained an article about a member of an organization called "Up Against the Wall Motherf***er." He had been acquitted of assault in New York. The headline read "Motherf***er Acquitted."

The University’s Student Conduct Committee found that Papish had violated a section of the General Standards of Student Conduct that required students "to observe generally accepted standards of conduct." The standards specifically prohibited "indecent conduct or speech." Before Papish was dismissed, the chancellor and Board of Curators affirmed the decision. Using federal law, 42 U.S.C.§ 1983, Papish took her case to federal court in Kansas City, charging that state officials had violated her right to freedom of expression. Although she lost there, the U.S. Supreme Court reversed. The High Court said Papish was "dismissed because of the disapproved content of the newspaper..." The Court held: "The mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of 'conventions of decency.'"

Offensive parodies have also received broad protection. The U.S. Supreme Court in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), extolled the virtues of the First Amendment even where offensive speech is involved.

Hustler magazine ran a parody advertisement, with the Rev. Jerry Falwell talking about his "first time" with his mother in an outhouse. The parody went from the outhouse to the courthouse when Falwell sued Hustler magazine and its publisher, Larry Flynt. Falwell's attorney asked the Supreme Court, in effect, to hold that even in cases involving a parody, the state's interest in protecting public figures from emotional distress was sufficient to deny First Amendment protection to that speech. The Court refused.

Chief Justice William Rehnquist wrote the unanimous Falwell opinion. In its glowing endorsement of free speech, the Supreme Court made clear its interest in preserving the "free trade of ideas" — even when the speech is patently offensive and is intended to inflict emotional distress. The High Court expressed concern over the chilling effect on political cartoons if plaintiffs who could not collect for libel were allowed to collect for emotional distress. "The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events — an exploration often calculated to injure the feelings of the subject of the portrayal." History is on the side of "caustic" cartoons, the Court said: "[F]rom the early cartoon portraying George Washington as an ass down to the present day, graphical depictions and satirical cartoons have played a prominent role in public and political debate."

Falwell's attorney argued that the parody ad should be distinguished from the "more traditional political cartoons" because the ad was so "outrageous." But the Court said that using "outrageousness" as a standard in the area of political and social speech is simply too subjective. It would let juries impose liability based on their tastes or dislikes. The Court wanted “to give adequate 'breathing space' to the freedoms protected by the First Amendment.”

A Mizzou administrator threatening to violate a student’s First Amendment rights even after the U.S. Supreme Court slapped down the University for similar behavior and even after the Court gave broad protection to lewd parodies? Now that’s offensive and outrageous!

No, The Maneater parody edition is not clever. It is offensive, but it is also expression protected from state interference on a state university campus.

As for the facts, the allegation that Travis Cornejo participated in the "editing process" of the parody edition is simply incorrect. Cornejo says he did not edit it. The former editor of The Maneater, Zach Toombs, said the April Fools’ edition is done by staff, not the editor-in-chief. Professor Emeritus George Kennedy, who chaired the Student Publication Committee 20 years ago, also confirmed that The Maneater’s tradition is that the editor-in-chief not participate in the production of the April Fools’ parody issue but to be surprised by its content.

In short, the missive from the Office of Student Conduct was wrong on both the facts and the law. Now Cornejo can ignore what he should never have received.

Perhaps what the University needs is some sensitivity training — gender and LGBTQ sensitivity training to avoid offensive language on the part of The Maneater staff, and First Amendment sensitivity training to avoid future legal gaffes by administrators in the Office of Student Conduct.

Sandy Davidson, Ph.D., J.D., is a professor at the Missouri School of Journalism.


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Comments

Tina Fey April 13, 2012 | 9:04 a.m.

Sandy, Your defense of free speech is an inconvenient truth for the MU School of Journalism. You, your students, and your school use free speech as a defense when your sensibilities are inebriated and you end up "going all Jerry Springer Show" on some issue. Then you, your students, and your school rail against free speech when your stories and arguments are criticized for poor reporting or bias (e.g. Sara Palin hate/envy). I have had comments removed from the Missourian and have received chastising emails from reporters when I criticize bad journalism. Why is is that you, your students, and your school can dish out free speech but not take free speech? Why are you, your students, and your school such poor leaders in facilitating a civil discourse in society today? Why has post-modern journalism failed? What is the cause of the demise of journalistic integrity today? Who is John Galt?

(Report Comment)
Michael Williams April 13, 2012 | 9:48 a.m.

Perhaps what the University needs is some sensitivity training.........to avoid offensive language on the part of The Maneater staff.
_____________________

Why? Protected speech needs no modification of behavior, does it? Sensitivity training is designed to modify behavior and thought, and when such training is "forced" then the original behavior is not protected! Does it make sense to say behavior is protected, and then try to correct it?

Something is seriously awry here.

(Report Comment)
mike mentor April 13, 2012 | 10:09 a.m.

Uhh, wait a minute... I am pretty sure the students that want their free speech can go publish a magazine on their own and not worry about the administration putting the smack down on them. However, the University gets to decide what is o.k. and what isn't in the publication THeY OwN !!!

So, get your entitlements straight before you start your whining. I would have thought with that many letters behind your name you might have outgrown the entitlement phenomoenon that is so widespread these days...

Alternate title for post...
I don't get to call the boss a jerk without repercusions unless I am the boss.

(Report Comment)
John Schultz April 13, 2012 | 11:59 a.m.

Mike, the courts have ruled in the past (as mentioned in the article and elsewhere) that the First Amendment trumps the university administrators and others. The University is run by the government and is beholden to the same constraints on limiting free speech. Nothing new here...

(Report Comment)
Barbara Burlison April 13, 2012 | 12:02 p.m.

I would like to inform the previous writer of a major fact. The University DOES NOT OWN The Maneater. When the paper was founded in 1954, the man chosen as the first editor said he only would take the job if the paper was free of University control - and funding. That has been a guiding premise of the newspaper since that time.
The "parody" was a stupid mistake - a very public and large mistake - but the University community needs to remember that most of the staff, except for top editors, are freshmen and sophomores. They are NOT in journalism school and this is an activity for them, a "club" for want of a better term.
As Sandy Davidson said, the paper and its staff is protected by the First Amendment and many court cases. While the University forgets its past mistakes in judgment, it doesn't alsolve them from making the same ones again, apparently.
What will change the climate of The Maneater is the fact that advertisers won't utilize its pages. This will be a hard lesson for the staff, but it will be one that hopefully won't be forgotten soon!

(Report Comment)
Michael Williams April 13, 2012 | 12:12 p.m.

Barbara: Do you know if the university can exercise editorial control (or other) over something distributed within its buildings/campus?

I understand the university is a public place....taxpayer supported. It makes sense to me that the 1st Amendment trumps.

However, we have seen instances where the university seems to get by with disciplinary activities when speech is involved. I want to know how this is distinguished. For example, I can probably burn an American flag, but probably will catch grief if I display...say...a confederate flag. In addition, who deems "hate" speech, and is it protected on campus.

(Report Comment)
Eliyahu Greenbaum April 13, 2012 | 12:56 p.m.

I have heard a lot about this controversial April Fool's edition, but I haven't actually seen it or read it. I couldn't find it in the archives on the Maneater's website. It has the issue before and after April 1st though.

I want to see it and decide for myself instead of just hearing about how awful it was.

(Report Comment)
Ellis Smith April 13, 2012 | 1:12 p.m.

In 2012 I might agree that University of Missouri can't punish free speech.

In 1948, although the exact same First Amendment existed, University of Missouri did a marvelous job of punishing free speech at what was then the university's only other campus. Admittedly, the university president at that time was provoked by the blatancy of the offense into taking action.

People losing their jobs qualifies as punishment, wouldn't you say? I doubt the same punishment would be applied today.

(Report Comment)
Richard Saunders April 13, 2012 | 3:14 p.m.

Sounds to me like another lawsuit in the making. Kudos to the "Office of Student Conduct" for making it all possible.

This must be part of that new "branding" initiative I read about earlier.

As always, they do nothing but focus on the facade, because as we all know, any institution is worthless without a bright, shiny one.

"Up Against the Wall..."

(Report Comment)
mike mentor April 13, 2012 | 4:33 p.m.

Who is legally responsible if the Maneater were to break the law or get sued for defamation?

The buck has to stop somewhere.

The maneater would have some value. It is certainly not the current student employees that own it or else it would have been sold for beer money long ago...

It has to be owned. If it's a corp, there will be officers. If it's an LLC there will be members. If it's a trust, there will be trustee's. These are the people that will be legally responsible for The Maneater. These people should be able to say yes or no to anything in that paper.
Everyone else, including the University if they do not have any ownership interest, should mind their own business.

(Report Comment)
mike mentor April 13, 2012 | 4:40 p.m.

The referenced court cases all have someone trying to impose censorship on something they do not own. (The Univ over Barbara Papish's paper. Falwell against Flynt's magazine.) Very different than if you censor your own...

Anyone ???

Ownership ???

(Report Comment)
Rick Church April 13, 2012 | 11:13 p.m.

Funny how the School of Journalism is so eager to poise themselves as the defenders of educators of free speech and the First Amendment when it comes to /other/ University departments making the gaffe... The Student Press Law Center, who (correctly) called out the Department of Student Affairs for their mistake, also called out the School of Journalism and the policies of the Missourian directly but two months ago for preventing students engaged in coursework from working for other media outlets under its conflict of interest policy.

http://www.splc.org/wordpress/?p=3122

Get back to me when you get that "First Amendment sensitivity training," SoJ.

(Report Comment)
Jonathan Hopfenblatt April 14, 2012 | 9:43 p.m.

Well, I'm one of those dirty liberals everyone here loathes, and yet I'm on the fence on this one:

1. Someone said that The Maneater is not owned by the University. Who owns it? (Mike said it well: Who would be responsible if the paper got involved in a defamation lawsuit?)
2. Even if the University doesn't own The Maneater, if the paper contains any UM trademarks/logos, then the University SHOULD be able to weigh in on the contents of the newspaper--at least to whatever extent a public university can have a say in such things. I graduated in 2007 and haven't seen a Maneater in a while, though, so I don't remember if it uses any Mizzou-related trademarks in its layout or not.

(Report Comment)
Taylor Dankmyer April 15, 2012 | 3:15 p.m.

Jonathan, the Maneater is not affiliated with the University, other than it being an official student organization. It's fairly free to say whatever it wants. The University weighing in on its contents, as an administrative body, is called "prior review" and is a very dangerous path to start going down.

I guarantee if a Mizzou journalism professor served as an Advisor of the Maneater, things like this wouldn't happen.

Would that make it an "official" newspaper of the Mizzou journalism school (in addition to the Missourian)? Maybe. But for the good of journalism, I'd love to see the Maneater have an advisor from one of the best journalism schools in the country. It would hopefully prevent episodes like this one.

(Report Comment)
Ellis Smith April 15, 2012 | 10:28 p.m.

Why don't we also ask who owns the Columbia Missourian? My understanding, gained from the Missourian staff (actually, it was George Kennedy), is that the Columbia Missourian is owned not by University of Missouri System or even by its Columbia campus or the Journalism Department but by a private foundation. Is that correct, or has it changed?

If one were libeled by the Missourian, who would one sue for libel? I'm certain an attorney could quickly arrive at the answer that question. But since the Missourian is overseen by Journalism School advisors, libel couldn't be a possibility. :)

(Report Comment)
Tom Warhover April 16, 2012 | 10:03 a.m.

@Ellis: You, and George, are correct: The Columbia Missourian is a 501c3 not-for-profit organization of the Missourian Publishing Association.

As to whom to sue, well, that's a subject I'd rather not dwell on. Although I would imagine your lawyer would find as many parties as possible to throw into the soup.

Tom Warhover
executive editor

(Report Comment)
Ellis Smith April 16, 2012 | 1:02 p.m.

@Tom Warhover:

Thanks for the verification. I posted mainly because I believe there are those who are not aware of the situation.

I can assure you that it is common practice in litigation for plaintiff(s) attorneys to "cast the widest net" possible, leaving it to attorneys for a defendant or multiple defendants to get their clients off the hook. During my time in corporate America I must have signed several thousand affidavits to the effect that "our sales records show that we never sold an asbestos-containing products to plaintiff's employer."

(Report Comment)

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