You can’t say that!


Juggling your rights
Chris Bliss to perform at Thomas Jefferson Center fundraiser

When it came to freedom of speech, Thomas Jefferson’s view boils down to this: Use it, without limits, or lose it. Eighteen years ago, a local newspaperman named Tom Worrell established the Thomas Jefferson Center for the Protection of Free Expression and since then, from its office east of town, the nonprofit has been honoring—if that’s the right word—those who engage in “especially egregious or ridiculous” acts of censorship.

Heaven help them: People like UVA student Grant Woolard, whose comic in The Cavalier Daily caused a ruckus last year, thought they were living in a country that put free speech above everything.
The First Amendment to the United States Constitution

“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.”

This year’s crop has some of the old, some of the new, and a rare Lifetime Achievement award. A Nebraska judge who wouldn’t permit the use of the word “rape” in a sexual assault trial is a strangely reminiscent winner. Seventeen years ago, when the Muzzles were inaugurated, the TJ Center included a San Diego judge who had a long list of banned words in a courtroom trial, among them “gorilla.” But increasingly, threats to free expression include attempts to regulate Internet postings, and that’s where the “new” comes in. This year’s Muzzles offer two such cases, one involving a high schooler and the other a college student. As Center Founding Director Robert M. O’Neil notes, “Facebook and MySpace have predictably pushed the boundaries of campus-based communication.” Still, insofar as the Communications Decency Act of 1996 exempted Internet service providers from liability for material that their users may post, digital speech remains largely free-wheeling. Try telling that to wannabe censors, though. And try understanding what’s going on at the Federal Communications Commission, an agency that has offended so often it gets a category all its own.

Also on this year’s list for the first time: a Muzzle directed at UVA’s campus newspaper. This must have been especially bitter for the board that ultimately votes on the Muzzle recipients. About half of them are UVA alumni, says O’Neil, who himself feels the pain of the award. For five years, O’Neil was the president of that university—the one founded by Mr. Jefferson himself.

The 2007 Managing Board of The Cavalier Daily and CBS Radio and MSNBC

You might think that if free speech has staunch defenders anywhere, it’d be at the university established by the Teej himself. But no! The Thomas Jefferson Center had to look no further than its backyard in granting a Muzzle to the 2007 Managing Board of The Cavalier Daily, the campus newspaper that, last September, fired Grant Woolard after his “Ethiopian Food Fight” cartoon caused a ruckus. The single-panel comic depicted loin-clothed, skinny black men throwing furniture, shoes and other nonedibles at each other. Prior to publication, it was vetted by at least two of five members of the CD’s Managing Board. That was on a Tuesday. By Sunday, Woolard was out of a job.

American comic fight: The Cavalier Daily gave in to outside pressure and gave Grant Woolard, the creator of the above comic, the boot.

Along the way, a couple hundred students protested the food fight cartoon’s “racist” connotations, demanding both that The Cav Daily apologize and that Woolard be fired. The paper said “sorry” and following his suspension, Woolard did the same thing on Facebook and later in the paper. Nevertheless, by the end of the weekend, the Managing Board informed Woolard that the CD’s proper functioning would be impaired by his continued presence. He left, but the two managers who first green-lighted the cartoon kept their jobs.

The mob mentality has no place in journalism, and for succumbing to an increasing volume of outrage, the CD’s Managing Board of 2007 earned this Muzzle. “The Cavalier Daily’s regret about the incidents rose in proportion to how many people expressed criticism, not in proportion to how they actually assessed the merits of that criticism,” reads the Muzzle citation. Speaking to C-VILLE, Woolard put his reaction to the Muzzle succinctly: “I was delighted to hear that.”

Think of it this way: A newspaper should not function according to popular demand. “A democratic society needs a free press willing to stand up to public criticism,” says the TJ Center.

Woolard says it may not have been merely volume that influenced the Managing Board. “When they feel physically threatened, that’s when they take action,” he says. “Had it been just an Internet thing, I don’t think they would have felt as threatened. But there were some things said, and some people construed them as death threats. I think it’s the fear of violent backlash” that influenced the Board to fire him.

Two more controversial comics by Grant Woolard.

From the looks of things, the 2008 Managing Board could be cruising for a Muzzle, too (this year’s editor in chief includes a member of last year’s Managing Board). Last month, two cartoons by Kellen Eilerts and Eric Kilanski were removed from the CD website after some Christians and a ponderously conservative campus blogger complained about the cartoons’ supposedly blasphemous content. “I hope they’re not in the running for 2008,” says Robert O’Neil, who directs the Thomas Jefferson Center for the Protection of Free Expression and who preceded John Casteen as the president of the University of Virginia. Following the most recent complaints, The Cav Daily’s Managing Board promised to review its censorship policy. Not much has been heard since, and Eilerts and Kilanski’s cartoons remain offline.

Troubling questions linger from these incidents at the University that was meant to be one of Jefferson’s proudest achievements: How can we teach the finer points of irony to UVA students; when will The Cav Daily find some controversial and funny cartoonists; and, what kind of newspaper has an official censorship policy?

While Woolard may still feel some bitterness about his CD experience, as a postscript, let us affirm that there’s no such thing as bad publicity: After graduation in May, Woolard will be headed to New York City, where he’ll be interning in the graphics department of the notoriously politically incorrect and way funny Onion newspaper.
If only we could ascribe this kind of Mulligan management to youthful inexperience. But the TJ Center illustrates, with this shared Muzzle, that even multi-million-dollar media corporations can exercise a “do over” mentality when the outcry gets loud enough. We speak, of course, of CBS Radio and MSNBC’s firing of Don Imus, the “shock jock” godfather who, last April, called the mostly Black Rutgers women’s basketball team a bunch of “nappy-headed hos.”Smart move? Nope. Unexpected? No, again.

Get free speech: Retired New York police officer, Arno Herwerth, ordered this vanity plate, and soon after he got it, the DMV asked for it back, calling the message “lewd,” among other things.

Imus’ contract, paying him $40 million over five years, encouraged him to be controversial. “The News from Lake Wobegon” his show ain’t. The show was simulcast on MSNBC, but neither the cable TV station nor the radio network opted to bleep Imus’ comments. Only after the public started to complain, on April 11, did MSNBC pull the show. That’s when CBS joined and yanked the plug on him altogether, for which they were later sued by the scraggly veteran (the parties settled four months later).

The Cav Daily, CBS Radio and MSNBC “avail themselves of the protections of the First Amendment on a daily basis,” states their shared Muzzle, and unfortunately, each “took actions that, although not violating the letter of the First Amendment, were certainly contrary to the spirit of the amendment’s freedom of press clause.” 

The administration of Brandeis University

Cheer up, UVA. You are not alone in muddying the ideals of your founder or namesake. Brandeis University, which, O’Neil says, has had an “exemplary record for academic freedom for the last 60 years,” joins you in that distinction this year. Louis D. Brandeis was the Supreme Court Justice who said, “It is the function of speech to free men from the bondage of irrational fears.” But nothing could free poli sci professor Donald Hindley from the bondage of political correctness run amok. Last fall, he informed students in his Latin American Politics class that Mexican immigrants to the U.S. are sometimes called “wetbacks,” an unfriendly term, to say the least. Some students in the class complained.

True, nothing burns quite so hot as young people first discovering the power of outrage, but what explains the subsequent actions of the Brandeis administration? The director of employment relations informed Hindley that he was guilty of making statements in class that were “inappropriate, racial and discriminatory.” That seems to suggest that the best way to teach about ethnic slurs is to avoid uttering them. The Provost threatened to boot the tenured professor and sent a monitor to observe Hindley’s classes for the remainder of the semester. Yet the Provost refused to give Hindley the written explanation he had requested to account for what was going on. The Brandeis Faculty Senate protested, but to no avail.

“I am very troubled by the Brandeis situation. I looked through all the sources I could find and I’m really unable to understand why Brandeis felt such a need to treat Professor Hindley so harshly,” says O’Neil.

Valdosta State University President Ronald M. Zaccari

T. Hayden Barnes was fired up about a couple of parking decks planned for Valdosta State University, where he was a junior last spring. And he didn’t much care for the fact that the construction project would tie up $30 million in student fees. So, he made his feelings felt. He posted fliers around campus—so far, so good. When he learned that Valdosta prez Ronald M. Zaccari was unhappy about the fliers, Barnes took them down and apologized.

But he didn’t relent. He wrote a letter to the campus paper and contacted Georgia’s State Board of Regents. And then he went online. Using his Facebook profile, he mocked Zaccari and the proposed parking decks, labeling one of them the Zaccari Memorial Garage. And, in what might have been the final straw, he also posted on Facebook an article about the Virginia Tech shootings. Being poked, so to speak, comes with the territory of being a college president, says O’Neil. “Even when an epithet was used that didn’t seem very friendly,” he says of his days in the top seat at UVA, “that always seemed to me amply within the scope of student comment.”

Zaccari apparently didn’t see Barnes’ protests in that light. He deemed the student a “clear and present danger” to life—or at least parking—on campus and kicked Barnes out of Valdosta.

“While college administrators properly protect their campuses against genuine threats…Barnes’ Facebook postings and other forms of protest could hardly be deemed to pose any such risk to campus security or safety,” says the TJ Center, calling Zaccari’s actions an “extreme overreaction to a student’s disrespectful, even insulting, but clearly protected expression of genuine concern about a major building project.”

The New York State Department of Motor Vehicles

Vanity plates are at the heart of this Muzzle. Last November, a retired police officer received the patriotic tags he had ordered: “GETOSAMA.” Two weeks later, the DMV asked for the plates back. The message, they’d decided, was “obscene, lewd, lascivious, derogatory to a particular ethnic group or patently offensive.” Remember, we’re talking about New York State, home to Osama Bin Laden’s 2001 terrorist attacks. The officer, Arno Herwerth, sued in federal court on free speech grounds. The case is still pending, but along the way the DMV revealed the fluidity of its principles by informally offering to let Herwerth keep the plates. Because the police officer wants his legal fees paid, too, the case has not been settled.

“Obviously, the Constitution does not require states to offer vanity plate programs. If a state chooses to do so, however, it must administer the program in a manner consistent with the principles of the First Amendment,” says the TJ Center. “At the very least, a state should approve all vanity plate applications unless there is a clear and rational reason for denying them.”

Lewis Mills High School Principal Karissa Niehoff and School District Superintendent Paula Schwartz

Oh, these kids and their Internet access! Connecticut high school junior Avery Doninger undertook some high-tech note passing and as a consequence, school administrators refused to allow her to run for elected office. Then, when she won through write-in voting, they refused to let her assume her position. Seems they really didn’t like it that in a posting she made on her own time and from a nonschool computer she referred to school officials as “douchebags in central office.”

Hello? Anybody at Lewis Mill High School ever hear teenagers talk? “Douchebag” is the least of it.

Anyway, Avery was mad about the planning for an annual music festival at her school. She went online and, besides the name-calling, encouraged others to call and e-mail the office to get Jamfest, as it was called, reinstated.

Avery didn’t hear anything from school administrators about her blog until it was time to file paperwork for her nomination for senior class secretary. At that point, the principal, Karissa Niehoff, informed Avery that she must: apologize to Paula Schwartz, the superintendent who was named in her blog post; show the post to her mother; and recuse herself from running for re-election as class secretary. Two out of three ain’t bad and Avery met the first two conditions. Nonetheless, Niehoff cited Avery’s disobedience and her vulgar language online and wouldn’t allow her name to be put on the student ballot.

Avery won, anyway (was she party to an Internet support campaign? We may never know…). When the school still wouldn’t let her take her office, Avery’s mom sued. The Thomas Jefferson Center for the Protection of Free Expression filed a friend of the court brief on Avery’s behalf, by the way.

As any parent can attest, trying to control kids’ expression on the Internet is…difficult, to say the minimum. And schools have a tough job. Besides, who wants to be called a douchebag on a widely disseminated public forum? But, Avery used neither school time nor resources to complain in her blog, rendering it none of Lewis Mills High School’s business. As her mother remarked, “I don’t like what Avery wrote [but] she had the right to do it and it was up to me, not the school, to determine whether or not there had been a consequence.”

The Scranton Police Department

And the “potty mouth” jokes just keep coming!

When her toilet started to overflow in her Scranton, Pennsylvania, home last October, Dawn Herb did what any right-minded homeowner would do: She started cussing a blue streak, really going gangbusters with the invectives. She was so loud, apparently, that a neighbor could hear her. And not just any neighbor, but an off-duty cop. Pipe down, he yelled.

Maybe she couldn’t hear him over the sound of the flooding, but at any rate, she persisted. So her neighbor resorted to the only tactic he had left. No, he did not bring her a bucket and a mop, or the number of a carpet cleaning company. Instead, he called his colleagues in the Scranton Police Department, who wrote Herb a ticket for disorderly conduct, a charge that carried a possible sentence of 90 days in jail and as much as $300 in fines. Talk about getting pissed on.

“It would be difficult to imagine a situation in which one could not utter any language in the confines of one’s own home,” Robert O’Neil says with characteristic restraint.

And even if the police were unclear on this point, they actually got legal advice on the matter, but chose to take Herb to court anyway, where the charge was dismissed. “For refusing to flush an unconstitutional charge,” the TJ Center gave a 2008 Muzzle to the Scranton Police Department.

Lancaster County District Judge Jeffre Cheuvront

If suffering alleged sexual assault is not awful enough, imagine being barred from describing the incident in a court of law. Nebraska resident Tory Bowen doesn’t have to imagine it—that’s what happened to her. In the first-degree sexual assault trial of Pamir Safi, the judge in the case, Jeffre Cheuvront, ruled that the words “rape,” “victim,” “assailant,” “sexual assault kit” and “sexual assault nurse examiner” were forbidden. That left witnesses and the victim herself with no other word but “sex” to describe what happened to her. Perhaps predictably, the trial ended with a hung jury.

But that didn’t deter Judge Cheuvront from enforcing the ban when the case returned to his courtroom last summer. Yet, when prosecutors said, fine, then ban the words “sex” and “intercourse,” too, the judge denied their motion.
The case never went to trial that second time, and the alleged victim, Bowen, sued the judge over the gag order. A federal judge dismissed that suit and then in January of this year, prosecutors abandoned the original case altogether. Bowen’s understated response: “I’m still trying to comprehend this.”

Same for the TJ Center. “It’s very hard to understand what the judge’s rationale was,” says O’Neil, adding “one of the things we’ve learned through this is that judges more often limit or constrain the use of terms in their courtrooms than we think.” The Center gives the Lancaster County District Judge a Muzzle for “failing to appreciate the importance of freedom of expression within the criminal system and specifically in his courtroom.”

The Texas Democratic Party

If there’s one thing this primary season has taught us, it’s this: Nobody tells Dennis Kucinich what to do! Texas Democrats wanted all the party’s candidates to sign a loyalty pledge to “fully support” the eventual candidate as a condition of getting on the primary ballot. Everybody did—except the staunchly anti-war Kucinich. For his principled stance (he said his conscience might not permit him to endorse a war supporter), Kucinich was left off the ballot.

McCarthyism be gone: Congressman Dennis Kucinich won’t have anything to do with loyalty pledges. Just ask the Texas Democratic Party.

He did what any of us would do in that situation: He joined forces with Willie Nelson and sued, claiming that his First Amendment rights were violated. The judge wouldn’t hear the case, but the TJ Center has given it its due, handing the Lone Star Democrats a 2008 Muzzle.

Sarpy County Attorney L. Kenneth Polikov and U.S. Attorney for the Western District of Louisiana Donald Washington and Acting Head of the Justice Department’s Civil Rights Division Grace Chung Becker

Cases like these, one local and one federal, test even the most ardent free speech defenders. In one instance, you have church people who protest at the funerals of soldiers killed in Iraq because they believe those deaths to be God’s retribution for the United States harboring homosexuals. (If only we were making this up!) In the other case, you’ve got teenage rednecks who cap off a day of civil rights protests in Jena, Louisiana, home to the high school noose incident, by driving past Black protestors with nooses draped off the back of a pick-up truck. Do we like these people? No sir, we don’t. Do we have to afford them constitutional protections? Ugh, yes we do.

Some details: Last June, Shirley Phelps-Roper, who belongs to the Westboro Baptist Church in Kansas, protested at a Nebraska funeral according to the dictates of her gay-hating church. But she was orderly about it, getting a permit and keeping the legal distance. Still, she irritated authorities when she let her 10-year-old son stand on an American flag on the ground. For her lenience, she was arrested and charged with flag desecration, negligent child abuse, contributing delinquency to a minor, and disturbing the peace.

Problem is, some 30 years ago, the U.S. Supreme Court overrode both state and federal laws prohibiting desecration of the flag. “Yes, the kid was standing on a flag, which is extremely disrespectful, but she was charged with child abuse!” says O’Neil. It’s clear that Phelps-Roper was being prosecuted solely for the, admittedly reprehensible, views she held.

In Jena, 18-year-old Jeremiah (“Idiot”) Munson and a 16-year-old buddy drove a noose-draped pick-up truck by the bus depot where Black civil rights protestors were waiting to return to Tennessee after a day of marching. Authorities in Jena had been severely criticized for their handling of the racial incidents that started with the hanging of nooses in a tree by white high school students. Munson, it seems, got the better-late-than-never treatment when, in January, he was charged with a federal hate crime and for taking part in a civil rights conspiracy.

O’Neil admits that cases like these “test your tolerance.” “It would be hard to think of a situation in which it would be worse to display a symbol of that sort,” he says of the Jena nooses. “But constitutionally speaking, neither of those outrageous acts is criminally punishable in our system.” And that is the simple reason these prosecutors share a Muzzle—“for their respective criminal prosecutions of individuals for acts of symbolic speech.”

Senator Jay Rockefeller

Ladies and gentlemen, from the great state of West Virginia may we introduce the author of the “Indecent and Gratuitous and Excessively Violent Programming Control Act,” otherwise known as Democratic Senator Jay Rockefeller. He’s been on a tear about extending FCC authority for years, and though his aforementioned proposal never made it out of committee in 2005, he has not been deterred in his efforts to rid the airwaves of even so much as one little “S” word.

Last July, he introduced a bill called “Protecting Children from Indecent Programming” that would force the Federal Communications Commission to strictly “maintain a policy that a single word or image may be considered indecent.” Meaning? The FCC would have no wiggle room with even accidental incidents of dirty words or imagery (can you spell Wardrobe Malfunction?).

Clearing the airwaves: When it comes to “indecency” on TV, Senator Jay Rockefeller is content to switch off the First Amendment.

In the censors’ grand tradition of hiding their constitutional mutability behind the swing-set, Rockefeller invokes “the children” that need his protection. Indeed, O’Neil recalls a time when he was testifying to a Senate committee about V-chip proposals when “out of nowhere, Senator Rockefeller shakes his head and says, ‘Every time I turn on the TV I see things to which my children should not be exposed.’” And how’s this for irony: Rockefeller’s wife is the chair of WETA, a leading PBS station.

“I cannot believe this issue has much importance to the voters in West Virginia,” says O’Neil. For Rockefeller’s “persistent insensitivity” to freedom of expression across the broadcast media, he gets himself a 2008 Muzzle.

The Federal Emergency Management Agency

We think we know what happened in October when the Federal Emergency Management Agency, the fine folks who brought you the New Orleans disaster, staged a press conference complete with staff posing as reporters lobbing powder puff “questions” to agency officials. Clearly, they’d been playing too much Biggie Smalls in the office—you know, “FEMA, FEMA, FEMA, can’t you see, sometimes your words just hypnotize me.” So captivating and convincing must they have thought themselves to be, they just faked a press conference to make themselves look good. They must have thought they’d pass unnoticed by the few legitimate journalists who were there.

Well, do you have a better theory? The TJ Center is hard pressed to come up with one. “I cannot imagine that they could have conceivably thought they’d get away with it or that this fabricated event could possibly generate any positive publicity,” says O’Neil. He adds, however, that maybe this was a good thing, in its own way, “because nobody in memory of anybody living will be so incautious or foolish or deliberately deceitful as to ever do anything along these lines again.

“They were ashamed,” O’Neil says. “No federal agency less needed another hit of this kind.”

Federal Communications Commission (Lifetime Achievement)

As George Carlin taught us, the seven words you can’t say on radio and TV are “Shit,” “Piss,” “Cunt,” “Fuck,” “Motherfucker,” “Cocksucker” and “Tits.” Or maybe you can say them. If you’re a broadcaster, you really can’t be sure anymore.

The Federal Communications Commission, which since 1934 has had the power to punish broadcasters for airing “obscene, indecent or profane” material, keeps changing its mind about what exactly that means. Does one enthusiastic slip of the tongue warrant a sanction? Fucking brilliant, as Bono might say.

What about a millisecond of pierced nipple?

How about the opening scene of Saving Private Ryan, another real-life example?

The Thomas Jefferson Center for the Protection of Free Expression has a long and detailed write-up on this, only its second-ever Lifetime Achievement award (the FCC joins Rudy Giuliani in this distinction). We asked O’Neil to put it a bit more simply for us and this is what he said: “The FCC’s way of dealing with the industry makes it so difficult to know where you stand [as a broadcaster], what you can expect, what’s permitted and what’s not.” In a word, it’s capricious.

To which we might add, brrr, it’s cold in here; there must be some federal regulators in the atmosphere.

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