The 2006 Muzzle Awards

“Are you liberal or conservative?” This question seems to matter a great deal to people these days. Political affiliation colors our thinking on everything from global politics to family life—so much so that it seems every story has only two sides: left and right.

   Robert O’Neil, president of the Thomas Jefferson Center for the Protection of Free Expression (and onetime president of UVA), is one of the few public figures capable of crossing political lines. As both a law clerk for the liberal Supreme Court Justice William Brennan and a member of several corporate boards (to name just two of his many roles), O’Neil has played on both sides of the ideological chessboard.

   It should come as no surprise, then, that O’Neil and his colleagues at the TJCPFE, which is based in Charlottesville, have found liberals and conservatives alike guilty of censorship over the past year. Recipients of the Center’s 2006 Muzzle Awards, their 15th annual compendium, range from liberal hecklers to conservative moralists, reflecting O’Neil’s observation that neither Republicans nor Democrats can rightly claim themselves guardians of free speech in America.

   The Muzzle Awards honor those people and institutions that most egregiously tread upon our First Amendment rights. The winnowing happens as follows: The Center for Free Expression sifts through hundreds of news reports, and then O’Neil and his colleagues perform their own research to pick out the most unapologetic censors. This year’s list includes a conservative president who seems intent on exceeding the bounds of executive authority and a liberal academic who took political correctness too far.

   The clear message is that anyone intent on seeing the world through the tiny window of ideology—be they liberal or conservative—can all too easily slip into demonizing and censoring opposing points of view.

   “There are problems across the political spectrum,” says O’Neil. And, while he certainly hopes that the final list of Muzzle “winners” includes all political persuasions, O’Neil says the Center does not manipulate the list to be fair and balanced. “We call them as we see them,” he says. “We hope it will convince people that there are misunderstandings of free expression on the Left and the Right.”

   Some of this year’s Muzzles, however, have no overt political angle. For example, this year’s winners include several cases of high school administrators censoring student newspapers for stories they deem “disruptive.” Censorship, it seems, is more than just a political tactic. The impulse to quash free speech often seems to originate from the all-too-human desire to control other people (as well as their means of expression).

   “If there is a theme, it is that virtually all of these people acted out of laudable motives,” says O’Neil. But when people follow their good intentions into the realm of oppression, they deserve a big fat Jefferson Muzzle Award.

 

 

The United States Department of Justice

For searching too deeply into Google’s records

By now, everyone who uses the Internet should know that while you’re cruising the information superhighway, somebody, somewhere, could be keeping track of every turn you take.

   What? You thought you could turn on your computer at 3am and search Google for “barely legal cheerleaders” and nobody would ever know? In summer 2005 the U.S. Department of Justice challenged Internet users’ expectations of privacy.

   Since its inception, the Internet has raised new questions about free speech and censorship. This case goes back to 1998, when Congress passed the Child Online Protection Act (COPA) to target people who post sexually explicit material that could be harmful to minors for commercial purposes. In 2004, the Supreme Court questioned whether less restrictive alternatives (like Internet filters) might provide adequate protection for young children.

   In an attempt to prove that COPA is indeed necessary, the Justice Department demanded extensive digital data from several search engine companies. The government claimed that such files would help it to understand the behavior of Web users, and estimate how often they come across potentially harmful material in their searches.

   The government insisted that it would only look at aggregate data, and not individual users. This persuaded three major search engines (AOL, Yahoo and MSN) to comply with the Justice Department’s subpoena. Google, the world’s largest search engine, refused.

   Google insisted it could not surrender the data without compromising the privacy of its subscribers and chilling their use of the Internet. Was their defiance a publicity stunt?

   “It could be for commercial reasons,” says TJ Center director Robert O’Neil. “If protecting privacy can be a competitive advantage, if it can be good business, that’s great.”

   Good business, maybe, but futile. In March 2006, a federal judge ordered Google to comply with the Department’s request.—J.B.

 

President George W. Bush

For spying on Americans without proper oversight

Whenever things have gone wrong for George W. Bush, he’s shown no qualms about placing the blame where it belongs —on the media!

   When The New York Times reported late last year that National Security Agency had for several years engaged in wiretapping of conversations involving U.S. citizens without authorization from a court established by the Foreign Intelligence Surveillance Act (FISA), Bush accused the paper of aiding and abetting terrorists. The Bush Administration claims that such tactics are necessary to fight terror in what it likes to call a “post-9/11 world.”

   Leading members of Congress claim that they expressly denied Bush’s request for wiretaps on U.S. citizens, while Bush contends he had legislative permission. Further, critics say Bush has never explained why he dodged the FISA court—their rules may seem cumbersome at times, but they rarely refuse surveillance requests.

   The TJ Center does not dismiss concerns about national security. “We do try to be careful to acknowledge that life was bound to be quite different after September 11,” says Director Robert O’Neil. “We’re not saying there’s not an urgent need for surveillance. We’re saying it is up to the administration to convince a FISA court or Congress.”

   The Center points out that the Supreme Court has given the government broad powers to spy in wartime, but that wiretapping has always been viewed as especially intrusive and subject to special regulation, such as FISA. Bush’s decision to skirt these regulations earned a rebuke from the American Bar Association, which declared the wiretaps unconstitutional violations of the First and Fourth amendments.

   “Until the Times disclosed this story, the assumption was that if either party in a conversation was a citizen of the United States, you had to get a warrant from a FISA court,” says O’Neil. “Now, any U.S. citizen who has a colleague or close relationship with a person in a suspect country, is that person going to feel free to speak?”

   That’s what they get for reading the newspaper.—J.B.

 

 

The Yelm (Washington) City Council

For banning the name “Wal-Mart”

Any place Wal-Mart targets for a new store is bound to be the subject of community infighting. Supporters of the mega-discounter who defend their rights to cheap TVs are inevitably pitted against the tree huggers who fear sprawl and the uglification of the landscape. In many ways, this issue is the ultimate American debate: Is mega-consumerism working for us? And which “us” are we talking about, anyway?

   The question came up in Yelm, Washington, in 2004 when the corporate giant announced plans to set up shop. Uproar ensued. Those opposed to the plan expressed their unhappiness to City Council during the public comment portions of the City Council meetings—some people going so far as to request the zoning laws be reviewed and a temporary moratorium be put on all big- box construction until the issue was examined. Soon “some people” grew to “many people.” So many, in fact, that Council apparently got sick and tired of hearing about that damn building moratorium…and voted, in April 2005, for a moratorium on talk of a moratorium. Two months later, having failed to muzzle the debate, Council took the draconian step of prohibiting the use of the specific terms “Wal-Mart” and “big-box stores,” regardless of whether those terms were used in the context of a moratorium discussion.

   After the city’s attorney approved the decision, then-mayor Adam Rivas virtually giggled with glee. “I’m going to be a lot more choosy about who I let up there,” he said, referring to the public comment sessions.

   The First Amendment does not require public comment sessions during City Council meetings, and anyone who’s ever been to a City Council meeting in Anywhere, USA, knows there are certain discussions that can go on and on and on and on and on…

   However, the TJ Center holds that if a local government opts to offer such sessions, it’s the responsibility of that body to do so in a manner consistent with the First Amendment.—N.B.

 

 

The Supreme Court of Florida

For denying lawyers the right to animal magnetism

Would you hire a lawyer who advertised himself as a pit bull? What about a shark, or a crocodile?

   It may be distasteful for a lawyer to compare his work to the behavior of a vicious predator, but the Supreme Court of Florida went a step further and declared such advertising illegal. For that, the justices earned a 2006 Muzzle Award.

   The case stems from a television commercial produced by the Fort Lauderdale firm of Pape & Chandler, a pair of motorcycle enthusiasts whose practice is dedicated to clients who have suffered motorcycle injuries. Their website screams “badass,” featuring photos of the attorneys wearing goatees and sunglasses straddling gleaming choppers and crotch rockets. But it was Pape & Chandler’s ad featuring a pit bull with a spiked collar and the phone number PIT-BULL that got them in trouble with the law.

   Florida specifically restricts lawyers from “sensational” advertising and from using “slogans,” even if they’re factual. When a competing personal injury lawyer complained about Pape & Chandler’s ads, it was this ban on sensational ads that the state used to prosecute. “They clearly imposed their taste on us,” says Marc Chandler, a partner in the firm.

   In a decision that the TJ Center calls “outlandish,” the Court ordered Pape & Chandler to stop running the commercials and change its logo and letterhead. On March 27, the U.S. Supreme Court declined to hear the firm’s appeal. Chandler notes that only a day before that decision, U.S. Supreme Court Justice Antonin Scalia was photographed giving reporters the bird outside a church in Boston. How’s that for dignity in the profession?—J.B.

 

Command Authority of the U.S. Army Base at Fort Bragg (North Carolina)

For imposing “ground rules” on reporters without judicial authorization

  The public’s right to know is not absolute, but the public has a right to know when its right to know will be denied. In the case of criminal trials, the U.S. Supreme Court has established that the public and the press should have access in order to ensure public confidence in the courts system. There might be reasons to deny press access, of course, and that decision falls to a judge. But one year ago, the Command Authority at the U.S. Army’s Fort Bragg base in North Carolina decided it was up to them, not the judge, to limit press access to a court martial proceeding. There was no hearing or judicial finding that limited the press coverage of the trial, and for that circumvention of judicial authority, a Muzzle goes to Fort Bragg’s Command Authority.

   The particulars: In 2003, two days before the U.S. invasion of Iraq, U.S. Army Sergeant Hasan Akbar, a Muslim, killed two officers and wounded 14 soldiers in Kuwait. He said he was opposed to American troops killing other Muslims. Two years later, Akbar was convicted and sentenced to death at the disputed court martial proceeding at Fort Bragg.

   While the trial was not closed, per se, journalists who wanted the story had to sign a one-page set of “Ground Rules” that, among other restrictions, prevented them from interviewing other soldiers at Fort Bragg about the case. Not only that, journalists who did sign were not taken at their word; they were escorted everywhere they went on base, including in some cases, to the toilet.

   “There may well be valid reasons for deciding that press access to a court-martial proceeding should be limited,” the TJ Center says. “But military regulations and constitutional principles dictate that a judge, not a base commander, make that decision on a case-by-case basis.” In other words, limiting application of the First Amendment is not in an Army boss’ job description.—C.H.

 

 

William Patterson University

For political correctness run amok

  You’ve gotta love political correctness. Somewhere, someone decided that if we all just say “landfill” instead of “dump,” or “vertically challenged” instead of “short,” our good intentions would pave the way to a heavenly world of peace and harmony.

   Yeah, right.

   For the past 20 years, some colleges have tried to enforce political correctness through “speech codes,” all of which courts have deemed unconstitutional.

   It came up again last year when the women’s studies program at William Patterson University in Wayne, New Jersey, scheduled a screening of a film dealing with lesbian relationships. Professor Arlene Scala sent a campus-wide e-mail heralding the event. The e-mail offended Jihad Daniel, who repaired computers at the school.

   Scala’s e-mail asked that if anyone wished to reply, they do so using her private university account. Daniel did so, writing: “Do not send me any mail about [the films]. These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned.”

   Then it was Scala’s turn to take offense. She filed a complaint with the campus equal opportunity office, claiming that the message caused her to feel threatened in her workplace. (A New Jersey state law on workplace discrimination and harassment forbids the use by state employees of “derogatory references” with regard to several categories, including sexual orientation.) School officials found that Daniel’s response—specifically his use of the word “perversions”—violated New Jersey’s anti-harassment policy. Daniel received an official reprimand, though
an investigation found he was a threat to no one.

   Media pressure forced school officials to eventually rescind their reprimand. The school continued to insist, however, that Daniel deserved some form of punishment. Which leaves C-VILLE wondering, what’s the P.C. term for “bullshit”?—J.B.

 

 

The United States Department of Homeland Security

For trying to silence a whistleblower

  When high-level federal employees stand up to voice concerns about national security, you’d like to think government officials would listen, not try to shut them up. But that’s what happened to Federal Air Marshal Frank Terreri when he voiced concerns about the Federal Transportation Security Administration.

   Terreri is head of the air marshal unit of the Federal Law Enforcement Officers Association. Last spring, that group called for the resignation of Air Marshal Service Director Thomas Quinn. Terreri was concerned about security in the flight check-in process and a dress code he thought could blow an air marshal’s cover, as
well as news stories approved by officials that Terreri felt revealed too many sensitive details about air marshals’ training and tactics.

   Terreri had been directed not to state his concerns. When he allegedly sent an
e-mail to several colleagues about a People magazine article that he thought posed
a security risk for saying too much about air marshal procedure, officials took him off flight duty and placed him under investigation. At no time had Terreri disclosed any classified, confidential or sensitive information.

   Terreri protested his gag order with a federal suit against the Secretary of Homeland Security. He claimed the rules jeopardize the safety of the flying public by preventing those who are most knowledgeable about possible security breaches from exposing their concerns. A Homeland Security flak responded that the Federal Air Marshal Service works to preserve “a professional work environment,” which the TJ Center took as a zero-tolerance policy for whistleblowers.

   Workplace decorum may be important to Washington bean counters, but the Department earns a Muzzle for apparently putting those issues above legitimate concerns about air safety.—J.B.

 

The School Administrations of Tennessee’s Oak Ridge High School, Florida’s Wellington High School, and California’s Troy High School

For teaching student journalists the wrong lesson

Never mind the fact that each time a kid switches on “Will and Grace” or pops in a Shakira CD he’s inundated with sex of all shapes, sizes and sounds—this year’s lucky Muzzle honorees from the hallowed halls of learning all clamped down on student newspapers that broached topics of sex and sexuality.

   At Florida’s Wellington High School, Principal Cheryl Alligood put the kibosh on the student newspaper, The Wave, when it printed an article about students’ thoughts on sex and virginity. The article ended on a note of warning, saying, “Make sure, when the time comes, you truly want to swipe your v-card, because this purchase is non-refundable.” Alligood, however, apparently considered the topic itself too hot to handle, and ordered all 3,000 copies recalled.

   In a similar incident last November at Tennessee’s Oak Ridge High School, Principal Becky Ervin recalled 1,800 issues of the student newspaper, The Oak Leaf, which printed photos of students’ tattoos and published an article that discussed birth control.

   As for Troy High School in Fullerton, California, it may be the 21st best high school in the nation (according to Newsweek), but science, not government, is the school’s academic strength. In January 2005, newspaper editor Ann Long was removed from her post by the school’s administration after profiling three gay students—two 18-year-olds and one 15-year-old, who willingly participated in the article. School administrators couched their actions in terms of privacy rights, saying California education codes require parental permission before printing touchy personal information about issues relating to family life, morality, or religion. In that case, however, many feel it would be the responsibility of the parents, not the school, to take action.

   Questions inevitably arise. Will the students in these schools be more likely to get distracted by discussing the articles themselves, or by discussing the confiscation of the articles? More importantly, after these events, what will the future leaders, businesspeople and teachers being taught in these classrooms think about the First Amendment?—N.B.

 

New York City Mayor Michael Bloomberg

For quashing art in the name of crime prevention

  The first and only person to ever win a Lifetime Muzzle Award is former New York City Mayor Rudy Giuliani, who in 1999 won the honor for repeated disregard for rights of free speech, peaceable assembly and freedom of the press.

   Given that Giuliani’s successor in the mayor’s office, Michael Bloomberg, made his fortune in the media, TJ Center Director Bob O’Neil says he was surprised to see him up for a Muzzle, too.

   O’Neil says he was “baffled” by Bloomberg’s decision to shut down an exhibit in which graffiti artists were to paint on two-dimensional panels made to look like subway cars.

   The story began in 1994, when former-graffiti-artist-turned-fashion-executive Marc Ecko applied for a street permit to hold an outdoor graffiti art demonstration in lower Manhattan. The permit was finally granted in July 2005, but was revoked a month later. According to the city, a display of accomplished artists painting mock subway cars “would incite criminal behavior.” The Mayor himself upheld the decision in several interviews, saying that Ecko’s display was “not really art or expression,” and that it would “encourage vandalism.”

   According to the U.S. Supreme Court, the First Amendment protects any expression unless it is intended and likely to produce imminent lawless action. In this case, there was no evidence that Ecko intended viewers to immediately go out and paint subway cars. A U.S. District Court judge dismissed Bloomberg’s logic, saying, “By the same token, a street performance of Hamlet would be tantamount to encouraging revenge murder.”

   The judge ordered the city to reissue the permit, and the exhibition took place without incident.—J.B.

 

Federal Communications Commission Chairman Kevin Martin

For going too far in a quest to whitewash television

  At least 90 million American homes subscribe to some kind of cable TV service. Millions more purchase satellite TV. While broadcast television is available for free to everyone who has a set and a pair of rabbit ears, millions of viewers clearly want more. To gain access to round-the-clock sports coverage, “Three’s Company” reruns, live feeds from the U.S. Congress, and Tony Soprano, many Americans pay a fee. That transaction sits at the center of this year’s Muzzle to Federal Communications Commission Chairman Kevin Martin, who is recognized for “calling for greater governmental control over television content when it is not authorized or needed.”

   Last November, Martin told a U.S. Senate committee (which had convened a forum on television “indecency”) that cable and satellite providers should be subject to FCC fines if they didn’t take measures to protect kids from the naughty content in their shows. But while “indecent” content on broadcast television is within the FCC’s purview, paid-TV programming is not the legal concern of that agency. Why? First of all, as the Thomas Jefferson Center explains, Congress never gave the FCC authority to regulate cable and satellite TV programming. Moreover, the U.S. Supreme Court has ruled that the FCC’s authority derives from the fact that television shows broadcast over the publicly owned airwaves, which are “uniquely pervasive of homes and, as such, uniquely accessible by children,” as the TJ Center puts it.

   By contrast, by virtue of having purchased a service, paid-TV viewers can reasonably be seen as having different expectations about what gets beamed into their homes. In addition, they can control the cable content that gets there with things like “v-chips” or channel-blocking software.

   Perhaps Martin is unfamiliar with the scope of his agency, or the legal rationale upholding it. His comment to the Senate, which sealed his place in this year’s class of Muzzles, was: “You can always turn the television off and of course block the channels you don’t want, but why should you have to?”

   Here’s the Center’s answer, Chairman Martin: Your statement “demonstrates a disregard of First Amendment principles by calling for government involvement where it is not needed. The fact that private citizens have the ability to control for themselves what appears on their television sets should cause Chairman Martin to ask a completely different question; specifically, why should the government take away our ability to determine for ourselves what we or our children see and hear on television?”

   As TJ Center director Robert O’Neil puts it: “The idea that you can restrict Tony Soprano’s language, that’s outlandish.”—C.H.

 

Orange County (Florida) School Superintendent Ron Blocker

For punishing a teacher’s private viewpoint

  What teachers do over summer break is their business. Or at least, that’s what Jan Hall, a fifth grade teacher in Orange County, Florida, thought when she wrote a letter to her congressman about her concerns vis-à-vis the influx of foreign students into her classroom.

   “We must close the door to all foreigners for awhile [sic], until we get this economy and the schools back on their feet,” she wrote. She also described her feelings about different nationalities, saying Puerto Rican children “are holding American children back academically… Haitian children are more aggressive in the classroom,” and that “jobs poor blacks and whites used to take are filled by Mexicans, who I am told bring in drugs and disease as incurable as TB, for the most part.”

   The letter was originally intended for the congressman’s eyes only, but it somehow ended up splashed across the pages of the Orlando Sentinel and the Spanish-language paper El Nuevo Dia. Civic groups went on the offensive, attacking Hall’s comments and, in response, Superintendent Ron Blocker suspended Hall without pay, a decision subsequently ratified by the school board. Hall has resigned from her post and filed suits against the two newspapers to find out how her letter was leaked. Both cases are pending.

   There is no evidence that Hall’s personal opinions ever played out in the classroom. If they had, Blocker’s action might have been justified. However, while Hall’s views don’t convey the nicest sentiments, people, as the cliché goes, are entitled to their own opinions. Misguided or not, sharing those opinions with one’s elected representative is, simply put, a civil right.—N.B.

 

 

The University of Connecticut Heckling Club

For shouting down conservative pundit Ann Coulter

  On a list dominated by government agencies, military commanders and Bush Administration officials, it’s tempting to think that the inclusion of this relatively minor act of leftist student activism was strictly a quid pro quo affair. After all, the Muzzles had to include at least a few ornery, free-speech-suppressing liberals to balance the scales, right?

   Well, that may be, but it doesn’t make the circumstances surrounding this sad display of groupthink any less unsavory. The problem lies not with the offending students’ animus for Ann Coulter (this is the woman, after all, who fantasized aloud about Timothy McVeigh blowing up The New York Times building, and recently called for the poisoning of Supreme Court Justice John Paul Stevens), but the idiotic way they chose to express it.

   By arriving en masse at Coulter’s speech (which was sponsored by UCONN’s College Republican Club, and open to all students) and drowning her out with a constant barrage of shouting, screaming and singing, these putatively progressive knuckleheads were guilty of the exact sort of chilling intolerance that they would (almost certainly) condemn in any other forum.

   Making the affair even more embarrassing for the left-wing hecklers, a equally well-attended campus speech by anti-war activist Cindy Sheehan—an event sponsored by the university’s Progressive Student Alliance just two days prior—had gone off without a hitch. Yes, there were some mild protests outside, but Sheehan’s Bush-bashing speech was delivered with little or no disruption. Compared to Coulter, who was forced to abandon her preplanned remarks and engage in a spirited question-and-answer session, Sheehan was treated with a laudatory level of respect. As one chagrined attendee wrote in UCONN’s student newspaper: “I am going to say something I never thought I would say as a UCONN student. I commend the College Republicans. Not for their viewpoints, not for their choice of a speaker, but for how they behaved on Monday night during Cindy Sheehan’s talk compared to the shameful display Ann Coulter received at the hands of dissenters on Wednesday night.”

   We couldn’t agree more.—D.C.


Know your rights

The First Amendment to the U.S. Constitution – Amendment I

  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.

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