Wat_Tyler
Allah's Favorite
- Joined
- Apr 12, 2004
- Posts
- 43,725
We populate a web site which wouldn't be possible without Freedom of Speech. For that matter, the whole web wouldn't be possible without it, either. To protect it, censorship must be exposed wherever it is encountered.
To that end, the Thomas Jefferson Center for the Protection of Free Expression issues its annual Muzzle awards to those who would attempt to stifle our First Amendment rights.
http://www.tjcenter.org/muzzles.html
And this year's winners are:
THE 2004 JEFFERSON MUZZLES GO TO ...
(individual accounts of the winners follows)
Judge Miriam Goldman Cedarbaum
The U.S. Department of Defense
The United States Secret Service
The Albemarle County (VA) School Board
Baseball Hall of Fame President Dale Petroskey
CBS Television
The University of New Orleans Administration
The Administration of Dearborn High School (Michigan)
The South Carolina House of Representatives
The Parks and Recreation Division of Broward County (Florida)
Jeff Webster of Soldotna, Alaska, and the Unnamed Arsonist of Harrisonburg, Virginia
The Arizona State License Commission
The Pilot Point (Texas) Police Department
U.S. District Judge Miriam Goldman Cedarbaum
"Our national experience instructs us that openness is essential to public confidence in the administration of justice."
- The United States Court of Appeals for the Second Circuit
Without question, the criminal investigation and prosecution of homemaking diva Martha Stewart and her former stockbroker Peter Bacanovic generated immense media coverage. So much so that prosecutors in the case requested that the public and press be denied access to the courtroom to observe the jury selection process. United States District Court Judge Miriam Goldman Cedarbaum granted the request. In arriving at this decision, Judge Cedarbaum reasoned that potential jurors would be more candid in their responses to questioning if the press were not present. She was also influenced by the fact a member of the jury pool had posted a question from the jury survey on the Internet.
While detecting biases among prospective jurors in a criminal case is vital to ensuring a fair trial, public openness generally acts to protect, rather than to threaten, that process. The Supreme Court has said, "public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact-finding process, with benefits to both the defendant and society as a whole." Indeed, the Court has held the value of public scrutiny is so great that the First Amendment creates a nearly absolute presumption of public access to criminal proceedings that may be overcome in only rare circumstances.
Judge Cedarbaum's reasoning that the Stewart case was one of those rare circumstances is troubling. The judge contended that she could close the jury selection process because the case had generated "an extraordinary interest quite beyond the public's right to know." Under this view, jury selection in any case generating significant public interest could be closed.. In ruling that Judge Cedarbaum had erred by denying the press access to jury selection, the Second Circuit Court of Appeals held, "[w]e find it difficult to conceive of a potential juror who would be more willing to reveal a bias against the defendants in their presence, but not in the presence of reporters." The Court of Appeals also took note of the fact that Judge Cedarbaum's ruling was prompted by a request from the prosecutors and not the defendants. "If openness would truly have jeopardized the fair trial rights of the defendants in this case, we imagine that the defendants, represented by experienced counsel, would have initiated the request for closure."
Judge Cedarbaum's decision is part of a disturbing trend of judges in high profile cases giving too little weight to the presumption of openness in criminal proceedings-a willingness to set aside for celebrity defendants the rules that are applied every day to less famous defendants in courts across the country. The danger is a perception that our justice system works differently for the rich and famous. In an editorial on the decision, executive director of The First Amendment Center Ken Paulson wrote: "The way to build confidence in the judicial process is through the even-handed administration of justice and public access to the entire trial, from beginning to end." For failing to recognize the importance of public access in the Martha Stewart case, Judge Cedarbaum earns a 2004 Jefferson Muzzle.
The United States Department of Defense
"That's a flat-out gag order"
-- Miami Attorney Neal Sonnett, Chairman of the American Bar Association Task Force on the Treatment of Enemy Combatants
Soon after the terrorist attacks of September 11, 2001, the Bush administration announced its intention to make use of military tribunals for the trial of yet undesignated enemy combatants. The precise policies and regulations that would govern such tribunals were yet to be developed, but would be announced in the future. During the spring of 2003, the Department of Defense issued such policies. Several provisions evoked immediate media interest, and drew critical comments from civil libertarians and defense attorneys.
Of special concern was a section of Military Commission Instruction No. 5, which would compel any civilian attorney seeking to represent an enemy combatant before such a tribunal to agree in advance not to discuss -- without advance approval from the Appointing Authority or the Presiding Officer -- any aspect of the case with anyone other than designated members of the Defense Team, commission personnel, potential witnesses, or "other individuals with particularized knowledge that may assist in discovering relevant evidence in the case." Such a commitment must be made under oath before a civilian attorney's appointment may be processed.
Clearly such a constraint would bar any communication with the news media, or even with other attorneys who were not members of the Defense Team, in the absence of express permission from the Presiding Officer (or the Appointing Authority). While an unidentified Defense Department spokesperson offered his view that "it is probable that those contacts would be authorized," such an assurance has no official status. Moreover, military tribunal proceedings would almost certainly be closed to the news media and the general public. Thus, as seasoned defense attorney Neal Sonnett remarked upon reading the regulations, "that's a flat-out gag order" on any civilian attorneys.
Beyond doubt, the tragic events of September 11, 2001, warrant heightened concern for national security, including special procedures for the trial of those charged as enemy combatants. The use of military tribunals for this purpose has been sharply criticized, and may or may not be justified by current exigencies. What does not seem justified, in whatever procedure may be invoked, is drastically curbing the speech of civilian attorneys who may represent persons charged before such tribunals. For imposing such a constraint, the Defense Department merits a 2004 Jefferson Muzzle.
The United States Secret Service
"The public is owed an explanation both of how this happened and why it will not happen again."
--U.S. Representative Christopher Cox (R-Calif.)
The Secret Service bears the awesome responsibility, among other duties, of protecting and ensuring the safety of the President of the United States - a task which has become vastly more complex since the terrorist attacks of September 11. Nonetheless, even the Secret Service is bound by the First Amendment to respect and protect the freedom of expression on American citizens. Two severe departures from that expectation occasion this citation.
In the summer of 2003, Pulitzer Prize-winning staff cartoonist Michael Ramirez created for the Los Angeles Times a cartoon that was to evoke more intense reaction than even he could have anticipated. The drawing showed an unidentified man pointing a gun at a caricature of President Bush - an image based on the stark photograph of a Vietnam police officer shooting an enemy civilian in 1968. A sign in the cartoon's background read "Iraq" - reflecting the intended message of a politically conservative cartoonist that President Bush had in his words become the " target of a political assassination" because of statements in his State of the Union address - an attack that Ramirez termed "very disturbing."
Apparently misunderstanding this sympathetic message, Secret Service agents sought to question Ramirez on the basis of what it saw as a hostile cartoon, believing he might be guilty of "threatening the life of the President." When Republican Representative Christopher Cox learned of the interrogation, he charged the Secret Service with "profoundly bad judgment," insisting that Ramirez deserved an immediate apology, and that the general public was owed "an explanation both of how this happened and why it will not happen again." (To view the cartoon, click here and access the image for 07/21/03.) A wholly different dimension of Secret Service activity also occasions deep concern. On numerous occasions during the past two years, protestors who express views critical of President Bush and his policies have been relegated to areas remote from the site of presidential speeches and rallies, while demonstrators who wish to support the President seem to have received more favorable treatment and have been granted closer access to the podium. One specific incident cited in a lawsuit recently filed against the Secret service is the treatment of a western Pennsylvania retired steelworker who was handcuffed and detained by local officials, apparently under Secret Service orders, after he refused to be herded into a remote "designated free speech zone" at some distance from the site of the rally at which the President would speak. Similar incidents have been reported in Arizona, California, Connecticut, Indiana, Michigan, Missouri, New Jersey, New Mexico, South Carolina, Texas and Washington State.
Those who challenge such disparate treatment of demonstrators argue that the undoubted and legitimate concern for the President's safety affords no logical basis for such a practice, noting that anyone who seriously meant to harm the President would simply display a supporting banner or sign, hoping on that basis to gain closer access. The conclusion seems inescapable that whatever risk may be involved is more political than security-related, and that the segregation of supportive and critical demonstrators reflects an agenda quite different from the one that Secret Service officials invoke. For conditioning meaningful access to presidential rallies and speeches upon a sympathetic viewpoint, and making the expression of a hostile viewpoint the basis for consignment to oblivion, the Secret Service merits a 2004 Jefferson Muzzle.
The Albemarle County (Virginia) School Board
"I think the school board, the school division, and the administrative staff dug in our heels on an issue we shouldn't have."
--former Albemarle County School Board member Gary Grant
In 2002, while enrolled in the sixth grade at Jack Jouett Middle School in Albemarle County, Virginia, twelve-year-old Alan Newsom attended a weekend shooting sports camp sponsored by the National Rifle Association. Among the topics taught at the camp was gun safety. As a souvenir of the experience, Alan took home a t-shirt which depicted three silhouettes of men holding firearms superimposed on the letters "NRA" and positioned above the phrase "Shooting Sports Camp." In April 2002, Alan wore the t-shirt to school. During the lunch period, an assistant principal approached Alan and gave him the choice of removing the shirt or wearing it inside out. Alan chose the latter course. Although at the time there was nothing in the school's written dress code policy that prohibited clothing depicting weapons, it was the assistant principal's opinion that the shirt was inappropriate for a middle school setting. According to Alan, the shirt elicited little response from other students until he was forced to wear it inside out. "It was really embarrassing," said Alan. The assistant principal later acknowledged that the only disruption caused by the shirt that day was the time she had to take away from her other duties to discuss the inappropriateness of the shirt with Alan.
When Alan's father learned of the incident and the embarrassment it caused his son, he contacted the NRA. On Alan's behalf, the NRA wrote the school asking it, among other things, to reconsider its position on the shirt and apologize to Alan. Rather than do either, the school instead revised its dress code policy to prohibit messages on clothing relating to "drugs, alcohol, tobacco, weapons, violence, sex, vulgarity...." Believing his son had been wrongly singled out and deserved an apology, Alan's father, represented by legal counsel for the NRA, filed suit on Alan's behalf in U.S. District Court. The suit included the Albemarle School Board among the defendants and alleged that the new 2002-2003 dress code policy was unconstitutional under the First Amendment. The district court denied a subsequent request to issue a preliminary injunction. The Fourth Circuit Court of Appeals overturned that decision, however, finding that there was a strong likelihood that Alan would prevail if the case went to trial. The Court of Appeals described the 2002-2003 policy as "practically limitless" in finding that it "excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory." The Court noted that among the images that could be banned under the policy was the State Seal of Virginia for its depiction of a woman holding a spear and standing with one foot on the chest of a vanquished tyrant. The Court also noted the irony that Albemarle County High School (located across the street from Jack Jouett Middle School) uses the image of a patriot armed with a musket as its school mascot.
In awarding this Muzzle, the Thomas Jefferson Center is not insensitive to the difficult task that public school administrators face in preventing disruption of the school day. Decisions often must be made on the spur of the moment and that understandably may reflect errors in judgment. As such, the Center recognizes that school officials must enjoy a limited degree of discretion in making decisions about student expression.
Such discretion, however, is not absolute. Public school dress code policies should be drafted in a manner that minimizes the possibility of arbitrary enforcement by school administrators. Despite the fact the text of the 2002-2003 dress code policy extended to images such as the State Seal and the Albemarle County High School's mascot, it was clear that school administrators intended to disregard the policy text when it came to these and other "appropriate" depictions of weapons. Yet, the images on Alan Newsom's t-shirt were entirely lawful and non-disruptive, particularly when viewed in the context of the words "NRA" and "Shooting Sports Camp." Moreover, when an error is made in applying a dress code policy, it should be acknowledged rather than defended as a legitimate exercise of school authority. To date, the Albemarle County School Board has refused to admit that its action was unconstitutional and thereby earns a 2004 Jefferson Muzzle.
Baseball Hall of Fame President Dale Petroskey
"We believe your very public criticism of President Bush . . . helps undermine the U.S. position, which ultimately could put our troops in even more danger."
-- Baseball Hall of Fame President Dale Petroskey
The Baseball Hall of Fame in Cooperstown, New York, had long planned for late April, 2003, a celebration of the fifteenth anniversary of the release of one of the most popular films about the national pastime, Bull Durham. The film's two stars, Tim Robbins and Susan Sarandon, were to have taken a substantial role in the celebration. The film's director and at least one other actor also were to have participated.
But a strange U-turn occurred on the road to Cooperstown. The Hall of Fame's Director, Dale Petroskey, learned that Robbins and Sarandon had both recently made public statements critical of the imminent U.S. invasion of Iraq. He notified the two film stars by Federal Express that he had decided to cancel the planned celebration, solely because they had spoken out against the planned military campaign. While recognizing that "every American has the right to his or her own opinions, and to express them," Petroskey concluded that Robbins' and Sarandon's "public criticism of President Bush at this important - and sensitive - time in our nation's history helps undermine the U.S. position, which ultimately could put our troops in even more danger."
Robbins sent Petroskey a blistering reply, "as an American and as a baseball fan . . . who believes that vigorous debate is necessary for the survival of democracy." The reply lamented what Robbins perceived as Petroskey's partisanship - he had served in the Reagan administration - and the risk that "baseball is being politicized."
Petroskey, in turn, issued an apology to Robbins and Sarandon, saying he wished he had "handled the matter differently" and had conveyed his decision by phone rather than mail. The cancellation of the Bull Durham celebration, however, remained intact. Such draconian action, albeit taken by a private organization, directly and severely curbs the freedom to express a view hostile to the policies of the current national administration. For such blatant disregard of values that are at least as central to American life and culture as our national reverence for baseball, Hall of Fame Director Dale Petroskey clearly merits a 2004 Jefferson Muzzle.
CBS Television
"Misleading a smaller audience of viewers is not a noble response to the legitimate concerns raised about this program."
--Republican National Committee Chairman Ed Gillespie
Two very different events, some months apart, occasion this citation - the third Jefferson Muzzle for CBS Television. In the fall of 2003, the network announced plans to broadcast a mini-series about former President and Mrs. Ronald Reagan, production of which had begun at ABC and taken four years. The series would have enhanced CBS' audience appeal during sweeps week, and had been highly touted. But two weeks before the broadcast date, the network cancelled "The Reagans" following a barrage of criticism from friends and family of the revered former President, who had learned of material they viewed as unsympathetic and/or inaccurate. Michael Reagan, a conservative talk-show host, charged that the series "is all about dismantling my father, dismantling the conservative movement and tearing down Ronald Reagan as we go into an election year." Other conservatives expressed similar dismay, threatened boycotts of CBS and demanded the series' cancellation.
Yet "The Reagans" was not to be withdrawn completely from viewers. CBS executives soon announced that the series would be broadcast on Showtime, a cable channel controlled by parent company Viacom. Some critics saw this shift as partially mitigating the initial cancellation. Others, however, perceived such a switch as transparently hypocritical. Republican National Committee Chairman Ed Gillespie, one of the initial protestors, found little virtue in relegating the series to cable - at best, in his view, "misleading a smaller audience of viewers."
Several months later, CBS again displayed a double standard in a programming decision. Although the network has freely aired a wide range of commercial messages for products and services, as well as public service announcements for various causes and viewpoints, CBS executives adamantly refused to sell time during the 2004 Super Bowl for the airing of one message that was critical of the Bush administration's fiscal policies.
The message's sponsor, MoveOn.org, had unsuccessfully submitted a tasteful 30-second message, already broadcast on CNN, that depicted children performing a variety of manual labor occupations. The ad contained no dialogue, simply a tag near the end that read, "Guess who's going to pay off President Bush's $1 trillion deficit?" (To view the commercial, click here.) CBS officials justified this rejection on the basis of a fifty-year old policy against airing "controversial" messages - specifically designed to "prevent those with means to produce and purchase network advertising from having undue influence on 'controversial issues of public importance.'" Under such a policy, or even without a policy, a privately owned broadcast network is of course free to accept or reject submitted material as it wishes. Indeed, any governmental attempt to commandeer airtime for a particular message would almost certainly abridge a broadcaster's First Amendment freedoms. Yet the very power and authority that the major television networks possess impose a certain responsibility to exercise such power conscientiously and in the public interest. It is just that expectation which CBS seems, once again, to have disregarded.
For its handling of "The Reagans," and for barring a tasteful if provocative public service message, while granting Super Bowl time to advertise three different erectile dysfunction medicines, among a welter of commercial products, not to mention a half-time performance the climax of which could hardly be deemed less "controversial" than the banned PSA, CBS amply deserves yet another Jefferson Muzzle.
The University of New Orleans Administration
"The university campus is supposed to be an open and accommodating environment to a wide variety of political and religious views."
--Stuart J. Roth, Senior Counsel of the American Center for Law and Justice
The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College is a statutory entity that supervises and manages public institutions of higher learning in Louisiana, including the University of New Orleans ("UNO"). In 2002-2003, UNO had a written policy that stated persons not-affiliated with the University "have limited rights of distribution on campus of printed materials as protected by the First Amendment." The policy went on to require prior approval from the University's Student Life Office before persons not affiliated with the University distributed any materials on campus. The policy did not, however, provide any guidelines for determining what materials would or would not receive approval.
Michelle Beadle is a full time missionary with CJF Ministries. As a Messianic Jew and missionary, Beadle believes it is her duty to spread the word that Jesus is the Messiah with Jewish persons and Gentiles alike. One of the primary ways Beadle shares her belief others is by distributing leaflets. In August 2002, Beadle sought permission from the UNO administration to distribute a tract on campus. entitled, "You Can Say Anything...Almost." The tract asserted that almost any thing is acceptable for polite conversation today, but one statement still triggers an angry response: "Jews should believe in Jesus." In a letter denying her request, Beadle was told that the tract, specifically the statement "Jews should believe in Jesus," "could be offensive to some people." In 2003, Beadle filed a lawsuit in federal court challenging the constitutionality of the UNO policy. UNO subsequently adopted a revised policy but Beadle's attorneys believe it too is unconstitutional. The case is pending.
While UNO should be commended for having a policy that explicitly recognized the protections of the First Amendment, the University apparently had a misperception as to what those protections are. Situations in which some may find certain speech "offensive" are often the circumstances in which First Amendment protections are at their strongest. Indeed, public higher education institutions would not be serving their purpose if students were not challenged by views opposite to their own. In addition, when a person is required to seek permission from a public authority before engaging in protected speech, the First Amendment requires that clear and specific guidelines are in place and adhered to in order to insure that the authority does not make a decision based on the speaker's message or viewpoint. The former UNO policy provided no such guidelines to the Student Life Office, thus allowing it to make a viewpoint-based decision with respect to Michele Beadle and thereby earning UNO a Jefferson Muzzle.
Dearborn (MI) High School Administration
"There is no evidence that the t-shirt created any disturbance or disruption...[and] the record does not reveal any basis for fear aside from [the assistant principal's] belief that the t-shirt conveyed an unpopular political message."
--Judge Patrick Duggan of the U.S. District Court for the Eastern District of Michigan
On February 17, 2003, sixteen-year old student Bretton Barber wore a t-shirt to school featuring a picture of President Bush and the caption "International Terrorist." Bretton stated that he wore the shirt to express his feelings about the war in Iraq and to "spark discussion among the students on an issue [he] cared deeply about." During his lunch hour, after four hours had passed without incident, Dearborn High School officials asked Barber to remove his t-shirt or go home. The administration based their demand on a fear that the shirt might cause a disruption in the school. Barber refused to remove the t-shirt and went home. The ACLU of Michigan filed suit in federal court against the Dearborn School District for violating Barber's First Amendment right to express his opinions on matters of public importance and seeking an injunction to restrain Dearborn from prohibiting him from wearing the t-shirt.
After a hearing on September 17, 2003, Judge Patrick Duggan of the Eastern District of Michigan ruled that Barber could not be prevented from wearing his t-shirt to school. The court rejected the school's argument that the schoolyard is an inappropriate place for political debate. In fact, held Dugan, "students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others."
While school officials have the authority to prevent disruption of school activities, the manner in which the Dearborn administration exercised that authority in this instance deserves criticism. The city of Dearborn has the largest concentration of Arabs anywhere in the world outside the Middle East. Approximately 31.4% of the High School's students are Arab, and many of those students' families immigrated to the United States from Iraq. Barber's t-shirt did not disrupt learning, but instead was a catalyst for discussion of current political issues with particularly saliency to the Dearborn student body. For assuming that a student's political speech will cause disruption to the school day, the Dearborn High School Administration earns a 2004 Jefferson Muzzle.
The South Carolina House of Representatives
"To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public."
-- Theodore Roosevelt, speaking on President Wilson's crackdown on dissent after the U.S. entered W.W.I
In early March 2003, the popular country music singing trio from Texas known as the Dixie Chicks was performing a concert in London. Although expected imminently by many, the war in Iraq had yet to begin. Critical of the potential invasion, Dixie Chick lead singer Natalie Maines told the audience, "Just so you know, we're ashamed the president of the United States is from Texas."
Just one week after Maines' statement, South Carolina State Representative Catherine Ceips introduced a House Resolution calling upon the Dixie Chicks to publicly apologize for the statement and perform a free concert for American troops stationed in South Carolina when the group began a tour in Greenville, South Carolina on May 1st. The Resolution called the comments "unpatriotic," "unnecessary," and "anti-American." The measure passed the House on a 50-35 vote.
Ironically, it is the South Carolina House's resolution that may be accurately described as "anti-American" because of its apparent disregard of one of the fundamental principles we are fighting to protect. Although the First Amendment protects speech in many forms, its primary purpose is to insure that American citizens can criticize their elected officials without fear of governmental reprisal. While South Carolina officials have the right to publicly criticize Maines for her comments, such criticism must be made in their capacity as private citizens and not with the power of government office behind it. Otherwise, those in power could effectively squelch any criticism of government through the use of an imprimatur that "officially" declares what speech is patriotic and what speech is anti-American. Although this resolution was directed only at the Dixie Chicks, it equally tarnishes the patriotism of other South Carolina citizens who opposed the war in Iraq.
It is worth remembering that the First Amendment does not affirmatively bestow the rights of free speech and free press. Rather, it prohibits government from making laws that abridge those rights. Clearly, those rights are abridged when government assumes it has the authority to officially declare what speech is "unpatriotic," "unnecessary," or "anti-American." For using the official power of government to condemn a citizen's exercise of her First Amendment rights, a 2004 Jefferson Muzzle goes to the South Carolina House of Representatives.
The Parks and Recreation Division of Broward County (Florida)
"Government may not, in the name of political correctness, single out the views of religious persons for discriminatory treatment."
- John W. Whitehead, President, The Rutherford Institute
Every winter, Florida's Broward County presents the Holiday Fantasy of Lights from late November to early January to celebrate the season and generate revenue for the County. Approximately 250,000 people pay the admission fee to see the exhibition. In addition, individuals, businesses and organizations pay up to $15,000 to sponsor a display in the two-mile path of lights. Although the County provides displays to many sponsors, it also allows sponsors to propose and design their own light displays. Such displays frequently include commercial logos, typically with imagery associated with the holiday season in general and Christmas specifically.
On April 8, 2003, Calvary Chapel of Fort Lauderdale submitted a proposal to the committee of the County Parks and Recreation Division responsible for overseeing the event. Calvary Chapel proposed to enter a display in the exhibition that included the words, "Jesus is the Reason for the Season." The committee rejected Calvary Chapel's display due to its religious nature. The decision was due in part to the fear that the display's message would be perceived as county sponsored and thus in violation of the First Amendment's Establishment Clause. County officials also expressed concern that the County could lose money because controversy over the display would cause some sponsors to withdraw from the exhibition and keep people from attending. The County had not, however, received threats of withdrawal from sponsors or threats of boycott from the public.
In response to the denial of the display, Calvary Chapel (with the legal representation of the Virginia-based Rutherford Institute) brought action in federal court seeking a preliminary injunction allowing it to enter the display in the Fantasy of Lights. The Chapel claimed that denying its display constituted viewpoint discrimination in violation of the right free speech. United States District Court Judge William J. Zloch agreed and granted the preliminary injunction but with one condition-the display be changed to read "Calvary Chapel says Jesus is the Reason for the Season." This, he said, would avoid the possibility that the Fantasy of Lights viewers would misconstrue the source of the message and would therefore steer clear of any potential Establishment Clause issues.
Although the Establishment Clause prohibits the government from sponsoring or endorsing a religious doctrine, it does not allow government to discriminate against private religious speech. Even without the change in wording required by Judge Zloch, there was little chance anyone would mistake Calvary Chapel's message as that of the County's. Individuals and organizations that sponsor displays are recognized by a sign that identifies the sponsor and is located next to the sponsor's display. The decision of the committee of the Parks and Recreation Division is representative of a mistaken assumption held by many local government officials today-that any religious in a public setting, even when there is no government endorsement of the speech, is prohibited by the Establishment Clause. In an effort to correct this mistaken view, the Broward County Parks and Recreation Division is awarded a 2004 Jefferson Muzzle.
Jeff Webster of Soldotna, Alaska, and an unnamed arsonist in Harrisonburg, Virginia
"I would have loved to hear you say, 'I've learned a lot through this process, I now see I was wrong and I want to apologize to all those people.'"
--Alaska Magistrate David Landry
Beginning in early March 2003, a handful of people peacefully gathered for an hour on the corner of a busy intersection in Soldotna, Alaska, to protest the buildup to the war in Iraq. The protestors, made up of mostly women, included Ms. Billie Dailey, 82, and several pacifist Quakers. The temperature in Soldotna in March is often just below freezing but it got even colder for the protestors one evening late in the month. While standing on the corner, the protestors were doused with a bucket of cold water from the back of a passing pickup. Jeff Webster, a resident of Soldotna and the father of a Marine serving in Iraq, later admitted to throwing the water. The protestors declined to press charges, saying they understood the stress Webster was under because of his son. The police issued a warning to Webster not to do it again.
Webster did not heed the advice, however, and returned a week later to douse the protestors with even more water. In addition, Webster arranged to have the second dousing videotaped and later distributed the (video set to patriotic music) via e-mail. This time, Webster was arrested and convicted of two counts of harassment and one count of punishing the protestors for exercising their First Amendment rights. He was sentenced to 320 hours of community service, a suspended 120-day jail term, and placed on probation for three years. The judge in the case stated he imposed a stiffer sentence than what is normally given for the misdemeanor offenses because Webster had refused to apologize for his actions.
Like the protestors in Soldotna, Sam Nickels and his wife Cindy Hunter of Harrisonburg, Virginia opposed the war in Iraq. To express their opposition, they posted an anti-war sign on the front of their house. During the months after the war began, various people tore down the sign, egged their house, and committed other acts of vandalism. In the early morning of October 20, 2003, an arsonist set fire to the sign while Nickels, Hunter, their three children, and an adult guest (a political asylum refugee from West Africa) were asleep inside the house. The fire quickly spread from the sign to the house itself. Fortunately, everyone in the house was able to escape without injury but the fire caused $60,000 in damage to the house. A 14-year-old male was later arrested and convicted for the arson. At trial it was revealed that, although no one told him to start the fire, the14-year-old was motivated in large part by the sign's anti-war message. Because of his age, the 14-year-old's name and court record remain sealed though it is known that he was placed on probation for an indefinite period of time. Through a victim-offender mediation program, the victims and the minor's family agreed to repair the house together.
The differences between these two incidents--freezing water in northern Alaska and fire in central Virginia--are completely overshadowed by what they have in common; an intolerance for the free speech rights of others. Regardless of one's views on the war, the right to criticize the policies of government without fear of physical reprisal is the cornerstone of democracy and, ironically, one of the freedoms that the American men and women serving abroad are fighting to protect. Statements made at the trial of Mr. Webster demonstrate his belief that his actions were a patriotic show of support for American troops. This type of misguided patriotism sends a dangerous message of intolerance to young people such as the 14-year-old in Harrisonburg. In fact, using violence to harm or intimidate those who express a viewpoint different than your own is both criminal and un-American. For their misguided sense of patriotism, a 2004 Jefferson Muzzle goes to Jeff Webster of Soldona, Alaska, and an unnamed arsonist in Harrisonburg, Virginia.
The Arizona State License Commission
"In general, the reason they did it is because it's a very contentious and divisive issue that is not appropriate for a license plate."
--Kris Meyers, spokeswoman for Arizona Governor Janet Napolitano
Like many states, Arizona allows members of non-profit organizations the opportunity to pay a fee for specialty license plates on their motor vehicles. Arizona law does not place any limitations on the message for a specialty plate. Rather, it limits the type of organization that may receive a specialty plate to nonprofits whose: (A) Primary activity or interest of the organization serves the community, contributes to the welfare of others and is not offensive or discriminatory in its purpose, nature, activity or name, (B) Name of the organization or any part of the organization's purpose does not promote any specific product or brand name that is provided for sale, (C) The purpose of the organization does not promote a specific religion, faith or antireligious belief.
A seven-member State License Commission, established under the auspices of the state's Department of Transportation, is assigned the task of determining whether an applicant organization meets the criteria for a specialty plate. If approved, the organization pays a fee and collects applications from its members for the specialty plate. Organizations that have received Arizona specialty plates include: the Classic Car Club of America, the Wildlife Conservation Council, the University of Phoenix, police and firefighter groups, and several veterans' organizations.
In August 2003, despite meeting all the statutory requirements, the application of the anti-abortion group The Arizona Life Coalition for a specialty plate with the message "Choose Life" was denied. The Commission did not immediately offer a public explanation for its decision but a spokeswoman for the Arizona Governor's office, Kris Myers, defended the action saying, "n general, the reason they [denied] it is because it's a very contentious and divisive issue that is not appropriate for a license plate." A lawsuit challenging the denial on First Amendment grounds is now pending in federal court.
Motor vehicle license plates have become one of the most highly visible of forums. While it is true that a state is not required to allow specialty license plates, if it chooses to do so it must act in a manner that is neutral to political and social viewpoints. Regardless of one's view on the abortion issue, the government cannot exercise unbridled discretion in determining the topics that are appropriate for public discourse. For creating a public forum but then trying to control the topics discussed in it, the Arizona State License Commission earns a 2004 Jefferson Muzzle.
The Pilot Point (Texas) Police Department
"...the eyes of both of them were opened, and they realized they were naked; so they sewed fig leaves together and made coverings for themselves."
--Genesis, Chapter 3, The Bible (King James version)
For 28 years, Wes Miller has owned and operated an antiques store and art gallery in Pilot Point Texas (pop.3800). In the spring of 2003, Miller commissioned local artist Justine Wollaston to paint a mural on the outside wall of his gallery. Inspired by the Biblical story of Genesis, Wollaston's mural depicts the hand of God pointing at a nude Eve, with an apple suspended between them. Although Wollaston believes people can and should take their own meaning from the mural, she sees it as God commanding Eve not to eat the forbidden fruit. No one claimed that the mural portrayed or implied sexual activity of any kind.
When unveiled in June 2003, the mural inspired a variety responses ranging from raves to outrage. A few of those critics complained to the local police department. Three weeks later on July 14, 2003, Pilot Point Police Sergeant James Edland served noticed on Miller that unless he covered the mural by August 4 (later extended to August 20), he would be criminally prosecuted for displaying "harmful materials" to minors. To avoid criminal charges while he evaluated his legal options, Miller covered the mural's breasts with crime scene tape next to a banner reading, "Temporarily censored." Apparently, it was the depiction of female breasts that was "harmful" to minors as evidenced by Sergeant Edland's statement that covering the breasts with crime scene tape put Miller "in compliance with the law."
Edland, now the Chief of the Pilot Point Police, should be more concerned with insuring that his department is in compliance with the law. The U.S. Supreme Court has rightly determined that works of artistic merit cannot be considered "obscene" or "harmful to minors" solely because they depict nudity. Depiction of the human nude has been a form of artistic expression that has transcended the ages. To eliminate all nudity would rebuke history's most influential artists: Michelangelo, Rembrandt, Manet and Picasso, to name but a few. While distributing sexually explicit materials to minors may be made unlawful, the U.S. Supreme Court has struck down general bans on depictions of nudity--even if it means minors could see such works. Moreover, the text of the Bible depicts both Eve and Adam as being nude before they ate the forbidden fruit. For Wollaston to portray Eve before the temptation in a state other than nude would have departed from the text of the Bible.
It is important to note that the law at issue here was not a zoning ordinance that merely regulated where artistic works could be displayed outdoors (Such ordinances, when motivated by a legitimate goal such as historic preservation have been found constitutional.) Rather, the Pilot Point Police Department threatened to charge Wes Miller under a law that would label him a criminal merely because he displayed a work of art depicting female breasts. Such action is completely at odds with settled First Amendment principles and earns the Pilot Point Police Department a 2004 Jefferson Muzzle.
To that end, the Thomas Jefferson Center for the Protection of Free Expression issues its annual Muzzle awards to those who would attempt to stifle our First Amendment rights.
http://www.tjcenter.org/muzzles.html
And this year's winners are:
THE 2004 JEFFERSON MUZZLES GO TO ...
(individual accounts of the winners follows)
Judge Miriam Goldman Cedarbaum
The U.S. Department of Defense
The United States Secret Service
The Albemarle County (VA) School Board
Baseball Hall of Fame President Dale Petroskey
CBS Television
The University of New Orleans Administration
The Administration of Dearborn High School (Michigan)
The South Carolina House of Representatives
The Parks and Recreation Division of Broward County (Florida)
Jeff Webster of Soldotna, Alaska, and the Unnamed Arsonist of Harrisonburg, Virginia
The Arizona State License Commission
The Pilot Point (Texas) Police Department
U.S. District Judge Miriam Goldman Cedarbaum
"Our national experience instructs us that openness is essential to public confidence in the administration of justice."
- The United States Court of Appeals for the Second Circuit
Without question, the criminal investigation and prosecution of homemaking diva Martha Stewart and her former stockbroker Peter Bacanovic generated immense media coverage. So much so that prosecutors in the case requested that the public and press be denied access to the courtroom to observe the jury selection process. United States District Court Judge Miriam Goldman Cedarbaum granted the request. In arriving at this decision, Judge Cedarbaum reasoned that potential jurors would be more candid in their responses to questioning if the press were not present. She was also influenced by the fact a member of the jury pool had posted a question from the jury survey on the Internet.
While detecting biases among prospective jurors in a criminal case is vital to ensuring a fair trial, public openness generally acts to protect, rather than to threaten, that process. The Supreme Court has said, "public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact-finding process, with benefits to both the defendant and society as a whole." Indeed, the Court has held the value of public scrutiny is so great that the First Amendment creates a nearly absolute presumption of public access to criminal proceedings that may be overcome in only rare circumstances.
Judge Cedarbaum's reasoning that the Stewart case was one of those rare circumstances is troubling. The judge contended that she could close the jury selection process because the case had generated "an extraordinary interest quite beyond the public's right to know." Under this view, jury selection in any case generating significant public interest could be closed.. In ruling that Judge Cedarbaum had erred by denying the press access to jury selection, the Second Circuit Court of Appeals held, "[w]e find it difficult to conceive of a potential juror who would be more willing to reveal a bias against the defendants in their presence, but not in the presence of reporters." The Court of Appeals also took note of the fact that Judge Cedarbaum's ruling was prompted by a request from the prosecutors and not the defendants. "If openness would truly have jeopardized the fair trial rights of the defendants in this case, we imagine that the defendants, represented by experienced counsel, would have initiated the request for closure."
Judge Cedarbaum's decision is part of a disturbing trend of judges in high profile cases giving too little weight to the presumption of openness in criminal proceedings-a willingness to set aside for celebrity defendants the rules that are applied every day to less famous defendants in courts across the country. The danger is a perception that our justice system works differently for the rich and famous. In an editorial on the decision, executive director of The First Amendment Center Ken Paulson wrote: "The way to build confidence in the judicial process is through the even-handed administration of justice and public access to the entire trial, from beginning to end." For failing to recognize the importance of public access in the Martha Stewart case, Judge Cedarbaum earns a 2004 Jefferson Muzzle.
The United States Department of Defense
"That's a flat-out gag order"
-- Miami Attorney Neal Sonnett, Chairman of the American Bar Association Task Force on the Treatment of Enemy Combatants
Soon after the terrorist attacks of September 11, 2001, the Bush administration announced its intention to make use of military tribunals for the trial of yet undesignated enemy combatants. The precise policies and regulations that would govern such tribunals were yet to be developed, but would be announced in the future. During the spring of 2003, the Department of Defense issued such policies. Several provisions evoked immediate media interest, and drew critical comments from civil libertarians and defense attorneys.
Of special concern was a section of Military Commission Instruction No. 5, which would compel any civilian attorney seeking to represent an enemy combatant before such a tribunal to agree in advance not to discuss -- without advance approval from the Appointing Authority or the Presiding Officer -- any aspect of the case with anyone other than designated members of the Defense Team, commission personnel, potential witnesses, or "other individuals with particularized knowledge that may assist in discovering relevant evidence in the case." Such a commitment must be made under oath before a civilian attorney's appointment may be processed.
Clearly such a constraint would bar any communication with the news media, or even with other attorneys who were not members of the Defense Team, in the absence of express permission from the Presiding Officer (or the Appointing Authority). While an unidentified Defense Department spokesperson offered his view that "it is probable that those contacts would be authorized," such an assurance has no official status. Moreover, military tribunal proceedings would almost certainly be closed to the news media and the general public. Thus, as seasoned defense attorney Neal Sonnett remarked upon reading the regulations, "that's a flat-out gag order" on any civilian attorneys.
Beyond doubt, the tragic events of September 11, 2001, warrant heightened concern for national security, including special procedures for the trial of those charged as enemy combatants. The use of military tribunals for this purpose has been sharply criticized, and may or may not be justified by current exigencies. What does not seem justified, in whatever procedure may be invoked, is drastically curbing the speech of civilian attorneys who may represent persons charged before such tribunals. For imposing such a constraint, the Defense Department merits a 2004 Jefferson Muzzle.
The United States Secret Service
"The public is owed an explanation both of how this happened and why it will not happen again."
--U.S. Representative Christopher Cox (R-Calif.)
The Secret Service bears the awesome responsibility, among other duties, of protecting and ensuring the safety of the President of the United States - a task which has become vastly more complex since the terrorist attacks of September 11. Nonetheless, even the Secret Service is bound by the First Amendment to respect and protect the freedom of expression on American citizens. Two severe departures from that expectation occasion this citation.
In the summer of 2003, Pulitzer Prize-winning staff cartoonist Michael Ramirez created for the Los Angeles Times a cartoon that was to evoke more intense reaction than even he could have anticipated. The drawing showed an unidentified man pointing a gun at a caricature of President Bush - an image based on the stark photograph of a Vietnam police officer shooting an enemy civilian in 1968. A sign in the cartoon's background read "Iraq" - reflecting the intended message of a politically conservative cartoonist that President Bush had in his words become the " target of a political assassination" because of statements in his State of the Union address - an attack that Ramirez termed "very disturbing."
Apparently misunderstanding this sympathetic message, Secret Service agents sought to question Ramirez on the basis of what it saw as a hostile cartoon, believing he might be guilty of "threatening the life of the President." When Republican Representative Christopher Cox learned of the interrogation, he charged the Secret Service with "profoundly bad judgment," insisting that Ramirez deserved an immediate apology, and that the general public was owed "an explanation both of how this happened and why it will not happen again." (To view the cartoon, click here and access the image for 07/21/03.) A wholly different dimension of Secret Service activity also occasions deep concern. On numerous occasions during the past two years, protestors who express views critical of President Bush and his policies have been relegated to areas remote from the site of presidential speeches and rallies, while demonstrators who wish to support the President seem to have received more favorable treatment and have been granted closer access to the podium. One specific incident cited in a lawsuit recently filed against the Secret service is the treatment of a western Pennsylvania retired steelworker who was handcuffed and detained by local officials, apparently under Secret Service orders, after he refused to be herded into a remote "designated free speech zone" at some distance from the site of the rally at which the President would speak. Similar incidents have been reported in Arizona, California, Connecticut, Indiana, Michigan, Missouri, New Jersey, New Mexico, South Carolina, Texas and Washington State.
Those who challenge such disparate treatment of demonstrators argue that the undoubted and legitimate concern for the President's safety affords no logical basis for such a practice, noting that anyone who seriously meant to harm the President would simply display a supporting banner or sign, hoping on that basis to gain closer access. The conclusion seems inescapable that whatever risk may be involved is more political than security-related, and that the segregation of supportive and critical demonstrators reflects an agenda quite different from the one that Secret Service officials invoke. For conditioning meaningful access to presidential rallies and speeches upon a sympathetic viewpoint, and making the expression of a hostile viewpoint the basis for consignment to oblivion, the Secret Service merits a 2004 Jefferson Muzzle.
The Albemarle County (Virginia) School Board
"I think the school board, the school division, and the administrative staff dug in our heels on an issue we shouldn't have."
--former Albemarle County School Board member Gary Grant
In 2002, while enrolled in the sixth grade at Jack Jouett Middle School in Albemarle County, Virginia, twelve-year-old Alan Newsom attended a weekend shooting sports camp sponsored by the National Rifle Association. Among the topics taught at the camp was gun safety. As a souvenir of the experience, Alan took home a t-shirt which depicted three silhouettes of men holding firearms superimposed on the letters "NRA" and positioned above the phrase "Shooting Sports Camp." In April 2002, Alan wore the t-shirt to school. During the lunch period, an assistant principal approached Alan and gave him the choice of removing the shirt or wearing it inside out. Alan chose the latter course. Although at the time there was nothing in the school's written dress code policy that prohibited clothing depicting weapons, it was the assistant principal's opinion that the shirt was inappropriate for a middle school setting. According to Alan, the shirt elicited little response from other students until he was forced to wear it inside out. "It was really embarrassing," said Alan. The assistant principal later acknowledged that the only disruption caused by the shirt that day was the time she had to take away from her other duties to discuss the inappropriateness of the shirt with Alan.
When Alan's father learned of the incident and the embarrassment it caused his son, he contacted the NRA. On Alan's behalf, the NRA wrote the school asking it, among other things, to reconsider its position on the shirt and apologize to Alan. Rather than do either, the school instead revised its dress code policy to prohibit messages on clothing relating to "drugs, alcohol, tobacco, weapons, violence, sex, vulgarity...." Believing his son had been wrongly singled out and deserved an apology, Alan's father, represented by legal counsel for the NRA, filed suit on Alan's behalf in U.S. District Court. The suit included the Albemarle School Board among the defendants and alleged that the new 2002-2003 dress code policy was unconstitutional under the First Amendment. The district court denied a subsequent request to issue a preliminary injunction. The Fourth Circuit Court of Appeals overturned that decision, however, finding that there was a strong likelihood that Alan would prevail if the case went to trial. The Court of Appeals described the 2002-2003 policy as "practically limitless" in finding that it "excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory." The Court noted that among the images that could be banned under the policy was the State Seal of Virginia for its depiction of a woman holding a spear and standing with one foot on the chest of a vanquished tyrant. The Court also noted the irony that Albemarle County High School (located across the street from Jack Jouett Middle School) uses the image of a patriot armed with a musket as its school mascot.
In awarding this Muzzle, the Thomas Jefferson Center is not insensitive to the difficult task that public school administrators face in preventing disruption of the school day. Decisions often must be made on the spur of the moment and that understandably may reflect errors in judgment. As such, the Center recognizes that school officials must enjoy a limited degree of discretion in making decisions about student expression.
Such discretion, however, is not absolute. Public school dress code policies should be drafted in a manner that minimizes the possibility of arbitrary enforcement by school administrators. Despite the fact the text of the 2002-2003 dress code policy extended to images such as the State Seal and the Albemarle County High School's mascot, it was clear that school administrators intended to disregard the policy text when it came to these and other "appropriate" depictions of weapons. Yet, the images on Alan Newsom's t-shirt were entirely lawful and non-disruptive, particularly when viewed in the context of the words "NRA" and "Shooting Sports Camp." Moreover, when an error is made in applying a dress code policy, it should be acknowledged rather than defended as a legitimate exercise of school authority. To date, the Albemarle County School Board has refused to admit that its action was unconstitutional and thereby earns a 2004 Jefferson Muzzle.
Baseball Hall of Fame President Dale Petroskey
"We believe your very public criticism of President Bush . . . helps undermine the U.S. position, which ultimately could put our troops in even more danger."
-- Baseball Hall of Fame President Dale Petroskey
The Baseball Hall of Fame in Cooperstown, New York, had long planned for late April, 2003, a celebration of the fifteenth anniversary of the release of one of the most popular films about the national pastime, Bull Durham. The film's two stars, Tim Robbins and Susan Sarandon, were to have taken a substantial role in the celebration. The film's director and at least one other actor also were to have participated.
But a strange U-turn occurred on the road to Cooperstown. The Hall of Fame's Director, Dale Petroskey, learned that Robbins and Sarandon had both recently made public statements critical of the imminent U.S. invasion of Iraq. He notified the two film stars by Federal Express that he had decided to cancel the planned celebration, solely because they had spoken out against the planned military campaign. While recognizing that "every American has the right to his or her own opinions, and to express them," Petroskey concluded that Robbins' and Sarandon's "public criticism of President Bush at this important - and sensitive - time in our nation's history helps undermine the U.S. position, which ultimately could put our troops in even more danger."
Robbins sent Petroskey a blistering reply, "as an American and as a baseball fan . . . who believes that vigorous debate is necessary for the survival of democracy." The reply lamented what Robbins perceived as Petroskey's partisanship - he had served in the Reagan administration - and the risk that "baseball is being politicized."
Petroskey, in turn, issued an apology to Robbins and Sarandon, saying he wished he had "handled the matter differently" and had conveyed his decision by phone rather than mail. The cancellation of the Bull Durham celebration, however, remained intact. Such draconian action, albeit taken by a private organization, directly and severely curbs the freedom to express a view hostile to the policies of the current national administration. For such blatant disregard of values that are at least as central to American life and culture as our national reverence for baseball, Hall of Fame Director Dale Petroskey clearly merits a 2004 Jefferson Muzzle.
CBS Television
"Misleading a smaller audience of viewers is not a noble response to the legitimate concerns raised about this program."
--Republican National Committee Chairman Ed Gillespie
Two very different events, some months apart, occasion this citation - the third Jefferson Muzzle for CBS Television. In the fall of 2003, the network announced plans to broadcast a mini-series about former President and Mrs. Ronald Reagan, production of which had begun at ABC and taken four years. The series would have enhanced CBS' audience appeal during sweeps week, and had been highly touted. But two weeks before the broadcast date, the network cancelled "The Reagans" following a barrage of criticism from friends and family of the revered former President, who had learned of material they viewed as unsympathetic and/or inaccurate. Michael Reagan, a conservative talk-show host, charged that the series "is all about dismantling my father, dismantling the conservative movement and tearing down Ronald Reagan as we go into an election year." Other conservatives expressed similar dismay, threatened boycotts of CBS and demanded the series' cancellation.
Yet "The Reagans" was not to be withdrawn completely from viewers. CBS executives soon announced that the series would be broadcast on Showtime, a cable channel controlled by parent company Viacom. Some critics saw this shift as partially mitigating the initial cancellation. Others, however, perceived such a switch as transparently hypocritical. Republican National Committee Chairman Ed Gillespie, one of the initial protestors, found little virtue in relegating the series to cable - at best, in his view, "misleading a smaller audience of viewers."
Several months later, CBS again displayed a double standard in a programming decision. Although the network has freely aired a wide range of commercial messages for products and services, as well as public service announcements for various causes and viewpoints, CBS executives adamantly refused to sell time during the 2004 Super Bowl for the airing of one message that was critical of the Bush administration's fiscal policies.
The message's sponsor, MoveOn.org, had unsuccessfully submitted a tasteful 30-second message, already broadcast on CNN, that depicted children performing a variety of manual labor occupations. The ad contained no dialogue, simply a tag near the end that read, "Guess who's going to pay off President Bush's $1 trillion deficit?" (To view the commercial, click here.) CBS officials justified this rejection on the basis of a fifty-year old policy against airing "controversial" messages - specifically designed to "prevent those with means to produce and purchase network advertising from having undue influence on 'controversial issues of public importance.'" Under such a policy, or even without a policy, a privately owned broadcast network is of course free to accept or reject submitted material as it wishes. Indeed, any governmental attempt to commandeer airtime for a particular message would almost certainly abridge a broadcaster's First Amendment freedoms. Yet the very power and authority that the major television networks possess impose a certain responsibility to exercise such power conscientiously and in the public interest. It is just that expectation which CBS seems, once again, to have disregarded.
For its handling of "The Reagans," and for barring a tasteful if provocative public service message, while granting Super Bowl time to advertise three different erectile dysfunction medicines, among a welter of commercial products, not to mention a half-time performance the climax of which could hardly be deemed less "controversial" than the banned PSA, CBS amply deserves yet another Jefferson Muzzle.
The University of New Orleans Administration
"The university campus is supposed to be an open and accommodating environment to a wide variety of political and religious views."
--Stuart J. Roth, Senior Counsel of the American Center for Law and Justice
The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College is a statutory entity that supervises and manages public institutions of higher learning in Louisiana, including the University of New Orleans ("UNO"). In 2002-2003, UNO had a written policy that stated persons not-affiliated with the University "have limited rights of distribution on campus of printed materials as protected by the First Amendment." The policy went on to require prior approval from the University's Student Life Office before persons not affiliated with the University distributed any materials on campus. The policy did not, however, provide any guidelines for determining what materials would or would not receive approval.
Michelle Beadle is a full time missionary with CJF Ministries. As a Messianic Jew and missionary, Beadle believes it is her duty to spread the word that Jesus is the Messiah with Jewish persons and Gentiles alike. One of the primary ways Beadle shares her belief others is by distributing leaflets. In August 2002, Beadle sought permission from the UNO administration to distribute a tract on campus. entitled, "You Can Say Anything...Almost." The tract asserted that almost any thing is acceptable for polite conversation today, but one statement still triggers an angry response: "Jews should believe in Jesus." In a letter denying her request, Beadle was told that the tract, specifically the statement "Jews should believe in Jesus," "could be offensive to some people." In 2003, Beadle filed a lawsuit in federal court challenging the constitutionality of the UNO policy. UNO subsequently adopted a revised policy but Beadle's attorneys believe it too is unconstitutional. The case is pending.
While UNO should be commended for having a policy that explicitly recognized the protections of the First Amendment, the University apparently had a misperception as to what those protections are. Situations in which some may find certain speech "offensive" are often the circumstances in which First Amendment protections are at their strongest. Indeed, public higher education institutions would not be serving their purpose if students were not challenged by views opposite to their own. In addition, when a person is required to seek permission from a public authority before engaging in protected speech, the First Amendment requires that clear and specific guidelines are in place and adhered to in order to insure that the authority does not make a decision based on the speaker's message or viewpoint. The former UNO policy provided no such guidelines to the Student Life Office, thus allowing it to make a viewpoint-based decision with respect to Michele Beadle and thereby earning UNO a Jefferson Muzzle.
Dearborn (MI) High School Administration
"There is no evidence that the t-shirt created any disturbance or disruption...[and] the record does not reveal any basis for fear aside from [the assistant principal's] belief that the t-shirt conveyed an unpopular political message."
--Judge Patrick Duggan of the U.S. District Court for the Eastern District of Michigan
On February 17, 2003, sixteen-year old student Bretton Barber wore a t-shirt to school featuring a picture of President Bush and the caption "International Terrorist." Bretton stated that he wore the shirt to express his feelings about the war in Iraq and to "spark discussion among the students on an issue [he] cared deeply about." During his lunch hour, after four hours had passed without incident, Dearborn High School officials asked Barber to remove his t-shirt or go home. The administration based their demand on a fear that the shirt might cause a disruption in the school. Barber refused to remove the t-shirt and went home. The ACLU of Michigan filed suit in federal court against the Dearborn School District for violating Barber's First Amendment right to express his opinions on matters of public importance and seeking an injunction to restrain Dearborn from prohibiting him from wearing the t-shirt.
After a hearing on September 17, 2003, Judge Patrick Duggan of the Eastern District of Michigan ruled that Barber could not be prevented from wearing his t-shirt to school. The court rejected the school's argument that the schoolyard is an inappropriate place for political debate. In fact, held Dugan, "students benefit when school officials provide an environment where they can openly express their diverging viewpoints and when they learn to tolerate the opinions of others."
While school officials have the authority to prevent disruption of school activities, the manner in which the Dearborn administration exercised that authority in this instance deserves criticism. The city of Dearborn has the largest concentration of Arabs anywhere in the world outside the Middle East. Approximately 31.4% of the High School's students are Arab, and many of those students' families immigrated to the United States from Iraq. Barber's t-shirt did not disrupt learning, but instead was a catalyst for discussion of current political issues with particularly saliency to the Dearborn student body. For assuming that a student's political speech will cause disruption to the school day, the Dearborn High School Administration earns a 2004 Jefferson Muzzle.
The South Carolina House of Representatives
"To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public."
-- Theodore Roosevelt, speaking on President Wilson's crackdown on dissent after the U.S. entered W.W.I
In early March 2003, the popular country music singing trio from Texas known as the Dixie Chicks was performing a concert in London. Although expected imminently by many, the war in Iraq had yet to begin. Critical of the potential invasion, Dixie Chick lead singer Natalie Maines told the audience, "Just so you know, we're ashamed the president of the United States is from Texas."
Just one week after Maines' statement, South Carolina State Representative Catherine Ceips introduced a House Resolution calling upon the Dixie Chicks to publicly apologize for the statement and perform a free concert for American troops stationed in South Carolina when the group began a tour in Greenville, South Carolina on May 1st. The Resolution called the comments "unpatriotic," "unnecessary," and "anti-American." The measure passed the House on a 50-35 vote.
Ironically, it is the South Carolina House's resolution that may be accurately described as "anti-American" because of its apparent disregard of one of the fundamental principles we are fighting to protect. Although the First Amendment protects speech in many forms, its primary purpose is to insure that American citizens can criticize their elected officials without fear of governmental reprisal. While South Carolina officials have the right to publicly criticize Maines for her comments, such criticism must be made in their capacity as private citizens and not with the power of government office behind it. Otherwise, those in power could effectively squelch any criticism of government through the use of an imprimatur that "officially" declares what speech is patriotic and what speech is anti-American. Although this resolution was directed only at the Dixie Chicks, it equally tarnishes the patriotism of other South Carolina citizens who opposed the war in Iraq.
It is worth remembering that the First Amendment does not affirmatively bestow the rights of free speech and free press. Rather, it prohibits government from making laws that abridge those rights. Clearly, those rights are abridged when government assumes it has the authority to officially declare what speech is "unpatriotic," "unnecessary," or "anti-American." For using the official power of government to condemn a citizen's exercise of her First Amendment rights, a 2004 Jefferson Muzzle goes to the South Carolina House of Representatives.
The Parks and Recreation Division of Broward County (Florida)
"Government may not, in the name of political correctness, single out the views of religious persons for discriminatory treatment."
- John W. Whitehead, President, The Rutherford Institute
Every winter, Florida's Broward County presents the Holiday Fantasy of Lights from late November to early January to celebrate the season and generate revenue for the County. Approximately 250,000 people pay the admission fee to see the exhibition. In addition, individuals, businesses and organizations pay up to $15,000 to sponsor a display in the two-mile path of lights. Although the County provides displays to many sponsors, it also allows sponsors to propose and design their own light displays. Such displays frequently include commercial logos, typically with imagery associated with the holiday season in general and Christmas specifically.
On April 8, 2003, Calvary Chapel of Fort Lauderdale submitted a proposal to the committee of the County Parks and Recreation Division responsible for overseeing the event. Calvary Chapel proposed to enter a display in the exhibition that included the words, "Jesus is the Reason for the Season." The committee rejected Calvary Chapel's display due to its religious nature. The decision was due in part to the fear that the display's message would be perceived as county sponsored and thus in violation of the First Amendment's Establishment Clause. County officials also expressed concern that the County could lose money because controversy over the display would cause some sponsors to withdraw from the exhibition and keep people from attending. The County had not, however, received threats of withdrawal from sponsors or threats of boycott from the public.
In response to the denial of the display, Calvary Chapel (with the legal representation of the Virginia-based Rutherford Institute) brought action in federal court seeking a preliminary injunction allowing it to enter the display in the Fantasy of Lights. The Chapel claimed that denying its display constituted viewpoint discrimination in violation of the right free speech. United States District Court Judge William J. Zloch agreed and granted the preliminary injunction but with one condition-the display be changed to read "Calvary Chapel says Jesus is the Reason for the Season." This, he said, would avoid the possibility that the Fantasy of Lights viewers would misconstrue the source of the message and would therefore steer clear of any potential Establishment Clause issues.
Although the Establishment Clause prohibits the government from sponsoring or endorsing a religious doctrine, it does not allow government to discriminate against private religious speech. Even without the change in wording required by Judge Zloch, there was little chance anyone would mistake Calvary Chapel's message as that of the County's. Individuals and organizations that sponsor displays are recognized by a sign that identifies the sponsor and is located next to the sponsor's display. The decision of the committee of the Parks and Recreation Division is representative of a mistaken assumption held by many local government officials today-that any religious in a public setting, even when there is no government endorsement of the speech, is prohibited by the Establishment Clause. In an effort to correct this mistaken view, the Broward County Parks and Recreation Division is awarded a 2004 Jefferson Muzzle.
Jeff Webster of Soldotna, Alaska, and an unnamed arsonist in Harrisonburg, Virginia
"I would have loved to hear you say, 'I've learned a lot through this process, I now see I was wrong and I want to apologize to all those people.'"
--Alaska Magistrate David Landry
Beginning in early March 2003, a handful of people peacefully gathered for an hour on the corner of a busy intersection in Soldotna, Alaska, to protest the buildup to the war in Iraq. The protestors, made up of mostly women, included Ms. Billie Dailey, 82, and several pacifist Quakers. The temperature in Soldotna in March is often just below freezing but it got even colder for the protestors one evening late in the month. While standing on the corner, the protestors were doused with a bucket of cold water from the back of a passing pickup. Jeff Webster, a resident of Soldotna and the father of a Marine serving in Iraq, later admitted to throwing the water. The protestors declined to press charges, saying they understood the stress Webster was under because of his son. The police issued a warning to Webster not to do it again.
Webster did not heed the advice, however, and returned a week later to douse the protestors with even more water. In addition, Webster arranged to have the second dousing videotaped and later distributed the (video set to patriotic music) via e-mail. This time, Webster was arrested and convicted of two counts of harassment and one count of punishing the protestors for exercising their First Amendment rights. He was sentenced to 320 hours of community service, a suspended 120-day jail term, and placed on probation for three years. The judge in the case stated he imposed a stiffer sentence than what is normally given for the misdemeanor offenses because Webster had refused to apologize for his actions.
Like the protestors in Soldotna, Sam Nickels and his wife Cindy Hunter of Harrisonburg, Virginia opposed the war in Iraq. To express their opposition, they posted an anti-war sign on the front of their house. During the months after the war began, various people tore down the sign, egged their house, and committed other acts of vandalism. In the early morning of October 20, 2003, an arsonist set fire to the sign while Nickels, Hunter, their three children, and an adult guest (a political asylum refugee from West Africa) were asleep inside the house. The fire quickly spread from the sign to the house itself. Fortunately, everyone in the house was able to escape without injury but the fire caused $60,000 in damage to the house. A 14-year-old male was later arrested and convicted for the arson. At trial it was revealed that, although no one told him to start the fire, the14-year-old was motivated in large part by the sign's anti-war message. Because of his age, the 14-year-old's name and court record remain sealed though it is known that he was placed on probation for an indefinite period of time. Through a victim-offender mediation program, the victims and the minor's family agreed to repair the house together.
The differences between these two incidents--freezing water in northern Alaska and fire in central Virginia--are completely overshadowed by what they have in common; an intolerance for the free speech rights of others. Regardless of one's views on the war, the right to criticize the policies of government without fear of physical reprisal is the cornerstone of democracy and, ironically, one of the freedoms that the American men and women serving abroad are fighting to protect. Statements made at the trial of Mr. Webster demonstrate his belief that his actions were a patriotic show of support for American troops. This type of misguided patriotism sends a dangerous message of intolerance to young people such as the 14-year-old in Harrisonburg. In fact, using violence to harm or intimidate those who express a viewpoint different than your own is both criminal and un-American. For their misguided sense of patriotism, a 2004 Jefferson Muzzle goes to Jeff Webster of Soldona, Alaska, and an unnamed arsonist in Harrisonburg, Virginia.
The Arizona State License Commission
"In general, the reason they did it is because it's a very contentious and divisive issue that is not appropriate for a license plate."
--Kris Meyers, spokeswoman for Arizona Governor Janet Napolitano
Like many states, Arizona allows members of non-profit organizations the opportunity to pay a fee for specialty license plates on their motor vehicles. Arizona law does not place any limitations on the message for a specialty plate. Rather, it limits the type of organization that may receive a specialty plate to nonprofits whose: (A) Primary activity or interest of the organization serves the community, contributes to the welfare of others and is not offensive or discriminatory in its purpose, nature, activity or name, (B) Name of the organization or any part of the organization's purpose does not promote any specific product or brand name that is provided for sale, (C) The purpose of the organization does not promote a specific religion, faith or antireligious belief.
A seven-member State License Commission, established under the auspices of the state's Department of Transportation, is assigned the task of determining whether an applicant organization meets the criteria for a specialty plate. If approved, the organization pays a fee and collects applications from its members for the specialty plate. Organizations that have received Arizona specialty plates include: the Classic Car Club of America, the Wildlife Conservation Council, the University of Phoenix, police and firefighter groups, and several veterans' organizations.
In August 2003, despite meeting all the statutory requirements, the application of the anti-abortion group The Arizona Life Coalition for a specialty plate with the message "Choose Life" was denied. The Commission did not immediately offer a public explanation for its decision but a spokeswoman for the Arizona Governor's office, Kris Myers, defended the action saying, "n general, the reason they [denied] it is because it's a very contentious and divisive issue that is not appropriate for a license plate." A lawsuit challenging the denial on First Amendment grounds is now pending in federal court.
Motor vehicle license plates have become one of the most highly visible of forums. While it is true that a state is not required to allow specialty license plates, if it chooses to do so it must act in a manner that is neutral to political and social viewpoints. Regardless of one's view on the abortion issue, the government cannot exercise unbridled discretion in determining the topics that are appropriate for public discourse. For creating a public forum but then trying to control the topics discussed in it, the Arizona State License Commission earns a 2004 Jefferson Muzzle.
The Pilot Point (Texas) Police Department
"...the eyes of both of them were opened, and they realized they were naked; so they sewed fig leaves together and made coverings for themselves."
--Genesis, Chapter 3, The Bible (King James version)
For 28 years, Wes Miller has owned and operated an antiques store and art gallery in Pilot Point Texas (pop.3800). In the spring of 2003, Miller commissioned local artist Justine Wollaston to paint a mural on the outside wall of his gallery. Inspired by the Biblical story of Genesis, Wollaston's mural depicts the hand of God pointing at a nude Eve, with an apple suspended between them. Although Wollaston believes people can and should take their own meaning from the mural, she sees it as God commanding Eve not to eat the forbidden fruit. No one claimed that the mural portrayed or implied sexual activity of any kind.
When unveiled in June 2003, the mural inspired a variety responses ranging from raves to outrage. A few of those critics complained to the local police department. Three weeks later on July 14, 2003, Pilot Point Police Sergeant James Edland served noticed on Miller that unless he covered the mural by August 4 (later extended to August 20), he would be criminally prosecuted for displaying "harmful materials" to minors. To avoid criminal charges while he evaluated his legal options, Miller covered the mural's breasts with crime scene tape next to a banner reading, "Temporarily censored." Apparently, it was the depiction of female breasts that was "harmful" to minors as evidenced by Sergeant Edland's statement that covering the breasts with crime scene tape put Miller "in compliance with the law."
Edland, now the Chief of the Pilot Point Police, should be more concerned with insuring that his department is in compliance with the law. The U.S. Supreme Court has rightly determined that works of artistic merit cannot be considered "obscene" or "harmful to minors" solely because they depict nudity. Depiction of the human nude has been a form of artistic expression that has transcended the ages. To eliminate all nudity would rebuke history's most influential artists: Michelangelo, Rembrandt, Manet and Picasso, to name but a few. While distributing sexually explicit materials to minors may be made unlawful, the U.S. Supreme Court has struck down general bans on depictions of nudity--even if it means minors could see such works. Moreover, the text of the Bible depicts both Eve and Adam as being nude before they ate the forbidden fruit. For Wollaston to portray Eve before the temptation in a state other than nude would have departed from the text of the Bible.
It is important to note that the law at issue here was not a zoning ordinance that merely regulated where artistic works could be displayed outdoors (Such ordinances, when motivated by a legitimate goal such as historic preservation have been found constitutional.) Rather, the Pilot Point Police Department threatened to charge Wes Miller under a law that would label him a criminal merely because he displayed a work of art depicting female breasts. Such action is completely at odds with settled First Amendment principles and earns the Pilot Point Police Department a 2004 Jefferson Muzzle.
