Beacon Broadside

Banned Books Week 2.0

Christopher Finan is president of American Booksellers Foundation for Free Expression, which was established by the American Booksellers Association in 1990 to defend the First Amendment rights of booksellers and their customers. He is the author of From the Palmer Raids to the PATRIOT Act: A History of the Fight for Free Speech in America, the winner of the American Library Association’s Eli M. Oboler Award for the best work on intellectual freedom published in 2006 and 2007. 

Banned Books Week turned 30 this year, but this was not your grandmother’s celebration of the freedom to read.

Since its founding, the centerpiece of Banned Books Week has been the display of banned and challenged titles on tables in bookstores and libraries around country. This year the celebration began on the Internet with a tremendously creative two-minute video produced by Bookmans, an independent bookstore with six locations in Arizona.  

The Bookmans video was a contribution to a read-out of banned books that was launched on the Internet last year. Most of the more than 1,000 videos that have been posted on YouTube feature people reading passages from their favorite books. The Bookmans video shows a series of customers and staff members reading a single line from different censored books. Each line was carefully chosen to celebrate the importance of books, reading and free speech.

The moving message of the video, combined with skillful editing by Harrison Kressler, Bookmans’ video producer, helped it become the hit of Banned Books Week. More than 17,000 people watched it on YouTube, making it our most popular video to date.

City Lights Bookstore in San Francisco also joined the read-out, producing a series of wonderful readings by writers and leading members of the literary community, including Lawrence Ferlinghetti, the store’s founder. Director John Waters read from Lady Chatterley’s Lover.

Other bookstores who contributed to the read-out include Chapter One Book Store, UConn Co-op, Vintage Books, Poor Richard’s Bookshoppe, the King’s English Bookshop, the Book House and Bookmamas. The videos may be viewed here. (Some are exhibited on playlists.)

But the Internet read-out is only one of many new things about Banned Books Week. The sponsors of Banned Books Week—the American Booksellers Foundation for Free Expression, the American Library Association, the Association of American Publishers, the National Association of College Stores and the American Society of Journalists and Authors—have created a steering committee to plan for the event throughout the year. The Internet read-out was one of our first ideas.

The committee has also invited new groups to become sponsors, including the National Coalition Against Censorship, the National Council of Teachers of English, the Comic Book Legal Defense Fund and Project Censored.

 As a result of these organizational changes, Banned Books Week has grown. Press coverage of the event doubled last year. We don’t have statistics for this year yet, but it appears that coverage continues to increase. In the past, we have had trouble placing opinion pieces in newspapers during Banned Books Week, but this year the Louisville Courier-Journal approached us for a column. KPFA, a radio station in San Francisco, devoted a full hour to Banned Books Week.

This doesn’t mean that displays of banned books are old hat. They remain the most effective means of delivering our message that even in America censorship is a problem. The “ah-ha!” moment occurs when bookstore customers and library patrons see that some of their most beloved books have been challenged.

Banned Books Week continues to give booksellers a great opportunity to bring customers into their stores. I saw this for myself this year when I spent Banned Books Week in Durango, Colorado, at the invitation of Maria’s Bookshop.

Peter Schertz and Andrea Avantaggio, the owners of Maria’s, have been expanding their celebration of Banned Books Week for several years. It happened that this year Banned Books Week coincided with the Durango Literary Festival, and festival organizers were planning a program on censorship. Peter invited me to join the panel, which included Ellen Hopkins, whose books are frequently challenged. It seemed like a long way to go for one appearance, so I asked him to see if anyone else might want to hear about banned books.

I was surprised when Libby Cowles, Maria’s community relations manager, lined up three classroom talks at Ft. Lewis College, a radio interview and a breakfast speech to the town’s booksellers and librarians. From the first day in Durango, my visit got great coverage in the local newspaper, which published a column I wrote on the front page of the Sunday opinion section. The publisher even invited me to address his editors at their daily meeting.

While I want to believe that the warm reception in Durango was a response to my rugged good looks, it was largely the result of Libby’s efforts and Maria’s excellent relations with community leaders.

There was something else at work as well. The message of Banned Books Week is that we only possess free speech as long as we are willing to fight for it. When people are made aware of censorship, they are grateful to the booksellers, librarians, teachers, parents and kids who are fighting back.

There is no danger that Banned Books Week will grow old anytime soon. Our challenge is to continue to find new ways to carry the message.

Note to School Officials: Be Wary of Punishing Students for Online Speech

David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. He is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools.

School officials need to be wary when punishing students for inappropriate off-campus, online speech or forcing students to disclose social-media passwords. Such conduct could violate students’ First Amendment right to free speech and Fourth Amendment right to be free from unreasonable searches and seizures.

That appears to be the lesson from a recent federal court decision in Minnesota. Earlier this month, a federal judge refused to dismiss a lawsuit arising from a middle school’s punishment of an eighth-grader for her Facebook posts.

In early 2011, a student at Minnewaska Area Middle School known in court papers as “R.S.” got mad at a school monitor and posted on Facebook that she “hated” the school monitor. After receiving a detention and being forced to apologize to the monitor, the student posted a second message containing profanity and inquiring who told school administrators about her initial post. She was subsequently punished for this post.

Later, in March 2011, school officials learned that R.S. apparently had engaged in sex talk that was initiated by a boy in her class. According to R.S., school officials, including a school resource officer, took her out of class and forced her to disclose her Facebook username and password and then read her public postings and private messages.

R.S. then sued in federal court, contending that school officials violated her First Amendment free-speech rights by punishing her for her off-campus, online postings. She also alleged that school officials violated her Fourth Amendment right to be free from unreasonable searches and seizures when they forced her to disclose her passwords and then searched her online content.

The school defendants filed a motion to dismiss the lawsuit. On Sept. 6, U.S. District Judge Michael J. Davis denied the defendants’ motion with respect to the First and Fourth Amendment claims in R.S. v. Minnewaska Area School District.

On the First Amendment claim, Davis ruled that public school officials can punish students for off-campus, online speech only if the speech constitutes a true threat or “pose[s] a substantial disruptive effect.” The judge characterized R.S.’s statements about the school monitor as merely “inappropriate” and a far cry from a true threat or speech that caused a substantial disruption.

Even more significant perhaps to the ultimate outcome of the case, Davis ruled that there is “clearly established” law that school officials cannot punish students merely for “inappropriate” online speech. This finding caused Davis to deny the defendants’ request for qualified immunity, a defense available for government officials if they don’t violate clearly established law.

On the Fourth Amendment claim, Davis emphasized that R.S. “had a reasonable expectation of privacy to her private Facebook information and messages.” He also reasoned that this principle was clearly established law.

Davis stressed, however, that “this case is still in its infancy” and that the school officials “may reveal facts which change the Court’s analysis of the school defendants’ qualified immunity claims or of the ultimate merits of [R.S.’s] claims.”

The Heckler's Veto at School

David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. He is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools.

Dissenting opinions obviously don’t have the force of law that majority opinions do. But that doesn’t mean they aren’t better reasoned. Recall that Justice John Marshall Harlan (the first one) was known as “the Great Dissenter” in part for his solitary dissent in the abhorrent Plessy v. Ferguson (1896), in which the Court sanctioned segregation and the noxious separate-but-equal doctrine.

Judge Rosemary Pooler’s March 22 dissent in the student-speech case Cuff v. Valley Central School District from the 2nd U.S. Circuit Court of Appeals may not rise even close to that level of prominence. Yet it brought some much-needed perspective to an area of law in desperate need of it.

The case involved a class assignment in 2007 for fifth-graders at Berea Elementary School in Montgomery, N.Y., to color in a picture of an astronaut and write anything on it they wanted. The teacher allegedly told the class: “When I mean anything you want, anything. You can write about missiles.”

Hearing this, 10-year-old B.C. — in juvenile cases often only initials are used — wrote on his picture that he wanted to “blow up the school with all the teachers in it.” He showed the picture to his classmates and they laughed.

It was no laughing matter to the teacher, and B.C. received a six-day suspension. His parents sued on his behalf, alleging a violation of his First Amendment rights. When the case reached the 2nd Circuit, the three-judge panel ruled 2-1 in favor of school officials.

Judge Ralph Winter reasoned that school officials must have broad authority to handle student-speech issues in order to prevent violence or a substantial disruption of school under the U.S. Supreme Court’s famous decision in Tinker v. Des Moines Independent Community School District (1969).

“Courts have allowed wide leeway to school administrators disciplining students for writings or other conduct threatening violence,” he wrote. “The threat of substantial disruption was aggravated by B.C.’s sharing of his ‘wish’ with fellow students, an act reasonably perceived as an attention-grabbing device.” The reasoning was that other students might engage in distracting copycat behavior that would interrupt education at the school.

Judge Pooler disagreed with this line of reasoning, noting that Tinker requires at least a forecast of a substantial disruption. To Pooler, B.C.’s act created only a “minor disruption.”

She also warned that the majority opinion allows a speaker’s First Amendment freedoms to be determined entirely by listeners. She didn’t use the term, but the majority opinion sanctioned the idea of a heckler’s veto on speech.

“The First Amendment’s protection of free speech cannot hinge entirely on the reaction of a listener to a person’s speech,” she wrote. “If that were the case, the First Amendment would be only as strong as the weakest, or at least the most thin-skinned, listener in a crowd.”

Pooler did not say that the student should win the case. Disputed factual issues, such as the meaning and relevance of B.C.’s past drawings, required the case to go to jury, she said.

The majority seemed to declare that any student expression with violent themes justifies school punishment. Pooler dug deeper and questioned such unrestrained deference to school officials by the majority.

Her opinion brings to mind Justice Abe Fortas’ warning in Tinker: “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

Student Speech and T-Shirts

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools, which was released this week by Beacon Press. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared.

A public school student should have the right to wear a T-shirt in support of a gay-straight alliance. But a controversy at a high school in Madisonville, Tenn., highlights the reality that censorship is alive and well when it comes to sexual orientation.

Chris Sigler, a student at Sequoyah High School, wore a T-shirt with the messages “SQHS” and “Gay Straight Alliance: We’ve Got Your Back.” Sigler alleges that his principal, Maurice Moser, verbally and physically assaulted him on Sept. 30 for wearing the T-shirt.

If true, such an attack is unacceptable and likely violates the student’s First Amendment free-speech rights.

The American Civil Liberties Union of Tennessee sent a stern letter Oct. 4 to the director of Monroe County (Tenn.) Schools regarding the incident. The letter states that the T-shirt did not constitute a substantial disruption or material interference with school activities.

“It is totally unacceptable that a young man who was peacefully exercising his First Amendment rights would have his speech shut down by the public school principal,” said Hedy Weinberg, executive director of the ACLU of Tennessee, in a news release.

Under the U.S. Supreme Court’s famous student-speech decision, Tinker v. Des Moines Independent Community School District (1969), school officials cannot censor student expression unless they can reasonably forecast that the speech would cause a substantial disruption or material interference with school activities, or invade the rights of others.

The principal may have acted out of a fear that some students would pick on or bully students who wore shirts supporting the attempts to form a gay-straight club at the school. But as the ACLU indicates in its letter, “when students engage in harassment or bullying, whether their purported reason is a T-shirt or something else, the school administration is obligated to stop the harassment and maintain order and safety.”

Even if the T-shirt supporting the formation of a gay-straight alliance provoked bullying, the school should stand up for Sigler. Otherwise, the school would allow bullies to impose a “heckler’s veto” upon protected speech.

The bottom line is that a principal should be protecting a student’s constitutional rights to wear a T-shirt either for or against a gay-straight alliance. He certainly shouldn’t be in the business of censoring and harassing a student for wearing one.

Free Speech in Schools: Interview With David Hudson

The American Booksellers Foundation for Free Expression is the bookseller's voice in the fight against censorship. Founded by the American Booksellers Association in 1990, ABFFE’s mission is to promote and protect the free exchange of ideas, particularly those contained in books, by opposing restrictions on the freedom of speech; issuing statements on significant free expression controversies; participating in legal cases involving First Amendment rights; collaborating with other groups with an interest in free speech; and providing education about the importance of free expression to booksellers, other members of the book industry, politicians, the press and the public.  

The ABFFE Book of the Month for September is Let the Students Speak! A History of the Fight for Free Expression in America's School by David L. Hudson. The ABFFE interviewed Hudson for their website. 

This week is Banned Books Week! The ABFFE is holding a benefit auction to help support the organization's efforts to protect the First Amendment Rights of young readers. Beacon Press is hosting a giveaway to raise awareness of Banned Books Week. Find out about other Banned Books Week activities here. 

ABFFE: How did you become interested in student free-speech rights? 
Hudson: Much of it comes from my daily work at the First Amendment Center. One of the best parts of my job is getting to travel to different middle and high schools and speak to students and teachers about First Amendment issues in the schools. My interest began even before my employment at the Center, as I had a personal experience with censorship in high school (being punished for "inappropriate" speech). 

ABFFE: What was something that surprised you in your research about the history of student expression? 
Hudson: I was surprised at the sheer number of early student speech cases. They are not often talked about, mentioned or even cited in most modern student-speech cases or secondary-source literature (with a few notable exceptions). The stories of Earl Wooster, Pearl Pugsley, Camilia Booth and other early student litigants are interesting to students - and hopefully will be interesting to readers of the book. 

Read the rest of the interview here. To read about other Book of the Month selections, click here.

 

Threatening Messages and Student Speech

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools, which was released this week by Beacon Press. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared.

Administrators didn’t violate the First Amendment when they expelled a Nevada high school student who sent instant messages containing an alleged hit list, a federal judge has ruled.

In 2008, Landon Wynar sent messages to a friend known in court papers as J. In his messages, Wynar threatened violence against some female students. One message read: “that stupid kid from vetch, he didn’t do shit and got a record.  I bet I could get 50+ people, and not one bullet would be wasted.”

J. forwarded the messages to R., another student, who suggested that they tell Douglas County High School authorities.  After J. and R. told school officials, Wynar was suspended for 10 days and then expelled for 90 days.

In October 2009, Landon and his guardian, Mark Wynar, sued school officials claiming that they violated Landon’s constitutional rights, including his First Amendment right to free-speech when he was punished for his off-campus speech.

On Aug. 10, U.S. District Judge Larry R. Hicks rejected these claims in Wynar v. Douglas County School District. Hicks reasoned that even though the speech originated off campus, most courts would apply the “substantial disruption” test from the U.S. Supreme Court’s 1969 decision Tinker v. Des Moines Independent School District if the speech were brought to the attention of school authorities. Under the Tinker test, school officials can restrict student speech if they can reasonably forecast a substantial disruption of school activities.

“Where a student’s speech is violent or threatening to members of the school, a school can reasonably portend substantial disruption,” Hicks wrote, adding that “the court finds that defendants had a reasonable basis to forecast a material disruption to school activities.”

Hicks noted that Landon Wynar specifically referenced April 20 — the anniversary of the infamous school shooting at Columbine High School in Littleton, Colo., as a date for the shooting and “made specific references to girls and the school by name.”

Wynar insisted that the messages were only jokes, not real threats. But Hicks said that even if they were jokes, school officials “still had a reasonable basis to forecast a substantial disruption to school activities.”

The Wynars’ attorney, Jeffrey S. Blanck, said his clients hadn’t decided whether to appeal the ruling.

“I am not happy with the decision because this was purely off-campus speech and the kid did not intend to harm anyone and didn’t convey an intent to harm anyone,” Blanck said. “This was joking between friends and the friend joked back.

“This kid spent 33 days in jail before a juvenile court judge tossed out the criminal charges.”

Requests for comments from the school district’s attorney went unanswered.

Just Published: Let the Students Speak! A History of the Fight For Free Expression in American Schools

Released Today: Let the Students Speak! details the rich history and growth of the First Amendment in public schools, from the early nineteenth-century's failed student free-expression claims to the development of protection for students by the U.S. Supreme Court. David Hudson brings this history vividly alive by drawing from interviews with key student litigants in famous cases, including John Tinker of Tinker v. Des Moines Independent School District and Joe Frederick of the "Bong Hits 4 Jesus" case, Morse v. Frederick. He goes on to discuss the raging free-speech controversies in public schools today, including dress codes and uniforms, cyberbullying, and the regulation of any violent-themed expression in a post-Columbine and Virginia Tech environment. This book should be required reading for students, teachers, and school administrators alike.

David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. Read his posts on Beacon Broadside.

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Let the Students Speak! Excerpt

Slumber Parties and Student Speech: Judge Rules That School Can't Punish Girls for Racy Pics

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools which will be released tomorrow, August 16th, by Beacon Press. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

“Not much good takes place at slumber parties for high school kids, and this case proves the point.” Despite that observation, U.S. District Judge Philip P. Simon found that Indiana school officials exceeded their authority when they punished two high school girls for posting provocative pictures of themselves online.

In 2009 during summer vacation, 16-year-old T.V. and 15-year-old M.K. posed for photos during a sleepover then posted them in what the court called a “saucy online display.” The court noted that several photos featured the girls pretending to lick a penis-shaped lollipop and wearing lingerie with money stuck in “stripper-style.”

The girls did not bring the images to school and all the activity took place off-campus. However, another parent brought printouts of the photos to Steve Darnell, superintendent of Smith-Green Community School Corp. The parent claimed that the images were causing divisiveness on the volleyball team — a squad which included T.V. and M.K.

Darnell took the photos to Austin Couch, principal of Churubusco High School. Couch suspended the girls from several volleyball games for violating the school’s “Extra-Curricular Code of Conduct” and student handbook. The handbook states: “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year.”

Couch also said the girls were suspended because their online photos had the potential to cause disruption at school.

In October 2009, the girls, represented by the American Civil Liberties Union of Indiana, sued in federal court, arguing that school officials violated the First Amendment by punishing them for purely off-campus conduct.

Judge Simon agreed with the students in his Aug. 10 opinion in T.V. v. Smith-Green Community School Corp.

The school defendants initially argued that the online photos were not expression and therefore did not trigger First Amendment protections. Simon disagreed, writing: “The record supports the conclusion that, although juvenile and silly — and certainly not a high-minded effort to express an idea such as burning a flag or wearing a black arm band — the conduct depicted in the photographs was intended to be humorous to the participants and to those who would later view the images.” In other words, the photos were speech that conveyed a particularized message sufficient to trigger First Amendment protections.

The school defendants then argued that they had the power to discipline the students under the U.S. Supreme Court precedent Bethel School District v. Fraser (1986) — a case in which school officials suspended a student for his sexually laced speech at a school assembly. The Fraser standard provides that school officials can punish students for lewd and vulgar speech. The defendants in the Indiana case argued that because the girls’ photos were lewd and vulgar, they should evaluated under Fraser. Simon disagreed, finding that Fraser did not apply to off-campus student speech.

Simon then addressed the seminal student-speech standard from the Supreme Court’s black armband case Tinker v. Des Moines Independent Community School District (1969). Under the Tinker standard, school officials can prohibit or punish students for speech if they can reasonably forecast that the student speech will cause a substantial disruption of school activities.

“Defendant’s showing of actual disruption is extremely weak,” the judge wrote. “In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds.”

Simon concluded that “no reasonable jury could conclude that the photos of T.V. and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption.”

He also ruled that the school policy which permits school officials to punish students for any conduct “that brings discredit or dishonor” on the school or student is too broad and vague.

Ken Falk, the ACLU of Indiana’s legal director, told the First Amendment Center Online: “The students and parents are very happy that the court recognized that there is a clear line beyond which a school cannot go in punishing students for expressive conduct.”

W. Erik Weber, an attorney for the school district, told the Associated Press that he believed the school officials were justified in their actions in this “unsettled area of the law.” He said it was too soon to determine whether the district would appeal because the judge did not rule on whether the school corporation was immune from damages under the 11^th Amendment, which often prohibits citizens from suing states for monetary damages.

 

The First Amendment and Student Speech Online

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

A former Connecticut high school student punished for speech critical of school officials on her public Internet journal has asked the U.S. Supreme Court to hear her appeal. If the Supreme Court takes Avery Doninger’s case, it could offer much-needed guidance on when or whether school officials can punish students for online speech created off campus.

Doninger, the former class secretary of Lewis S. Mills High School in Burlington, became upset with Principal Karissa Niehoff and Superintendent Paula Schwartz in 2007 over the cancellation of a proposed student event called Jamfest. In an online message, Doninger referred to Niehoff and other school officials as “douchebags.” As a result of the message, Niehoff barred Doninger from running for re-election for student office. Later the principal also prohibited students from wearing “TEAM AVERY” T-shirts.

Doninger sued in state court, contending that the principal violated the First Amendment by punishing her for off-campus, online speech and for censoring the T-shirts. The defendants had the case removed to federal court.

In a protracted battle in the lower federal courts, the 2^nd U.S. Circuit Court of Appeals sided with school officials on both the Internet free-speech claim and the T-shirt issue. The 2^nd Circuit ruled that the principal and other school officials were entitled to qualified immunity.

Now Doninger takes her case to the high court. “This case presents important and compelling first amendment issues which impact millions of students and thousands of school officials,” reads her cert. petition in Doninger v. Niehoff.

The petition points out that the 2^nd Circuit’s decision conflicts with a pair of en banc decisions issued last month by the 3^rd U.S. Circuit Court of Appeals —Layschock v. Hermitage School District and J.S. v. Blue Mountain School District. In those decisions, the 3^rd Circuit ruled that school officials exceeded their authority in punishing students for off-campus, online speech that did not cause a substantial disruption.

The petition adds that school officials, students and others need guidance in this area of student online speech: “The lack of guidance by this Court to address students’ internet speech, or indeed any kind of off-campus speech, combined with school officials’ inflated fears of school violence, have resulted in improper punishment of many students for otherwise protected off-campus speech.”

Tshirt from Cafe Press.

Student Speech Ruling 25 Years Ago Still Curtails Speech Today

Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

Twenty-five years ago – on July 7, 1986 — the U.S. Supreme Court curtailed the free-speech rights of public school students in Bethel School District No. 403 v. Fraser, ruling that public school officials could punish a student for giving a speech that they considered vulgar and lewd before a school assembly.

The decision signaled a sea change in First Amendment law, as the Court seemingly created a large exception to its seminal free-speech decision inTinker v. Des Moines Independent Community School District (1969) — known as the black-armband decision. In Tinker, the Court had ruled that public school officials could restrict or punished student speech if they could show evidence that it would cause or had caused a substantial disruption of school activities.

Under the Tinker “substantial disruption” standard, Matthew Fraser should have won his free-speech battle with school officials at Bethel High School. Instead Fraser inspired the wrath of school officials after he delivered a sex-laced speech nominating a fellow student for elective office at the school assembly of 600 students.

“I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.

“Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds.

“Jeff is a man who will go to the very end — even the climax, for each and every one of you.

“So vote for Jeff for A. S. B. vice-president — he’ll never come between you and the best our high school can be.”

For his brazenness, school officials suspended Fraser for several days for allegedly violating a school no-disruption rule. But his speech did not cause a substantial disruption. Some students giggled and snickered. A teacher took time to discuss the speech in the classroom. The incident did not, however, cause a breakdown of school discipline or other significant problems.

That is why Matthew Fraser prevailed before a federal district court in Washington and the 9^th U.S. Circuit Court of Appeals. His punishment also is the probable reason that fellow students elected Matthew Fraser as a speaker at graduation. Years ago, Matthew Fraser told me in an interview that school officials made a free-speech martyr out of him.

Although lower court judges voted for Matthew Fraser, the U.S. Supreme Court did not. Chief Justice Warren Burger and the majority of his colleagues saw the legal dispute differently. They said school officials needed more flexibility to establish control over students. In the last opinion he wrote on the Court, Burger emphasized that “[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

“Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse,” Burger wrote. He created a new standard to handle student speech considered to be vulgar, lewd or plainly offensive.

Burger took pains to distinguish Fraser’s case from the Tinker precedent, writing there was a “marked distinction” between the political speech symbolized by the black peace armbands and Matthew Fraser’s sexual speech. But Burger conveniently ignored that Matthew Fraser was delivering a speech nominating a student to elective office.

Two justices — Thurgood Marshall and John Paul Stevens — dissented from the Court’s ruling. Marshall, a consistent defender of free speech, wrote that “the School District failed to demonstrate that respondent’s remarks were indeed disruptive.”

Stevens began his dissent with the famous Clark Gable line from “Gone With the Wind”: “Frankly, my dear, I don’t give a damn.” He emphasized that Matthew Fraser was denied due process because he was not given fair notice that he could be punished under a disruption rule for a speech that didn’t create a substantial disruption.

But Chief Justice Burger prevailed 25 years ago today, writing an opinion that gave school officials greater control over student speech within school walls.

The Pentagon Papers, 40 Years Later

“It seems to me that what the Pentagon Papers really demonstrated 40 years ago was the price of that practice,” he said. “Which is that letting a small group of men in secret in the executive branch make these decisions — initiate them secretly, carry them out secretly and manipulate Congress, and lie to Congress and the public as to why they’re doing it and what they’re doing — is a recipe for, a guarantee of Vietnams and Iraqs and Libyas, and in general foolish, reckless, dangerous policies.” -- Daniel Ellsberg in the New York Times, June 8, 2011

Rev. Robert N. West, UUA President, and Senator Mike Gravel (D-Alaska) hold a press conference on Nov. 5, 1971 concerning Beacon Press' publication of "The Pentagon Papers" and ongoing harassment of the UUA by the FBI. Photo courtesy Robert N. West.

Forty years ago this month, the New York Times began publishing excerpts from what has been popularly referred to as "The Pentagon Papers," and officially known as "the Report of the O.S.D. Vietnam Task Force." The papers, which were smuggled out of the RAND corporation by Daniel Ellsberg, were published a few months later by Beacon Press as the Senator Gravel Edition of The Pentagon Papers: The Defense Department History of United States Decisionmaking in Vietnam. The story of their publication is a gripping tale, one that involved heroic stands by Ellsberg, Senator Mike Gravel, Beacon Press director Gobin Stair, and UUA President Robert West against immense pressure from the Nixon administration.

It has taken four decades for the government to officially release the papers. We aren't worried here about the new, "official" publication affecting sales: the five volumes-- a whopping 7,000 pages-- have long been out of print, and were never a commercial "success." In fact the cost of producing the books combined with the associated legal fees was a huge financial burden for the press. Loans from the Unitarian Universalist Association and a significant donation from the Unitarian Universalist Veatch Program at Shelter Rock, combined with smaller donations from supporters and from other publishing houses (led by a $2,500 donation from Random House), helped allay the enormous expense. But the reasons for publishing the papers were never financial:

In 2002, during an interview with Susan Wilson in preparation for Beacon’s 150th anniversary, Stair referred to The Pentagon Papers as “a test of our purpose,” before concluding, “We were publishing what needed to be published." (From "Beacon Press and the Pentagon Papers" by Allison Trzop)

We aren't sure why it took forty years for the government to declassify these papers, but we look back at that moment in the history of Beacon Press with great pride. Subpoenas, FBI investigations, and even calls from President Nixon himself deterred neither Beacon Press nor the Unitarian Universalist Association from doing what was right, and it is our goal today to function by the same principles that guided those brave decisions.

Related reading, listening, and viewing:

Beacon Press and the Pentagon Papers at Beacon.org

New York Times: After 40 Years, the Complete Pentagon Papers

CNN -- Daniel Ellsberg: All The Crimes Richard Nixon Committed Against Me Are Now Legal

National Archives and Presidential Libraries Release Pentagon Papers

"The Most Dangerous Man in America" documentary on PBS (check local listings to watch)

Beacon Press and the Pentagon Papers by Allison Trzop

Watch the full episode. See more POV.

How Disruptive is a Silent Cheerleader?

David L. Hudson, Jr. is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law.

This week, the Supreme Court declined to hear Doe v. Silsbee Independent School District, a case in which a cheerleader was kicked off her squad when she refused to cheer for the boy she said raped her. Hudson wrote this piece for the First Amendment Center blog when the case was making its way through the courts. 

Can a silent cheerleader disrupt school activities? Is there a legitimate educational reason to punish a student for refusing to cheer for her alleged attacker?

These questions formed the basis for an appeal to the full 5th U.S. Circuit Court of Appeals filed on behalf of a former Texas cheerleader (known as H.S. in court papers), who was kicked off the Silsbee High School squad after she didn’t cheer for a basketball player who allegedly sexually assaulted her after a football game. The individual played on both the football and basketball teams.

Last September, a three-judge panel of the 5th Circuit rejected H.S.’s First Amendment, due-process and equal-protection claims in Doe v. Silsbee Independent School Dist. With respect to the First Amendment claims, the panel upheld a lower court’s dismissal in part because, it said, the cheerleader’s silence was disruptive. According to the panel, the lack of cheering “constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily.”

The panel also reasoned: “Insofar as the First Amendment does not require schools to promote particular student speech, [the school] had no duty to promote H.S.’s message by allowing her to cheer or not cheer, as she saw fit.”

The panel cited two seminal student First Amendment decisions in its decision — Tinker v. Des Moines Independent Community School Dist. (1969) and Hazelwood School District v. Kuhlmeier (1988). In Tinker, the Court ruled that public school officials can censor student speech only if they reasonably forecast that the speech will cause substantial disruption of school activities. Under Hazelwood, school officials have more control over school-sponsored speech if their reason for censorship is reasonably related to a legitimate educational concern.

There is no way that a single cheerleader not cheering for a player at the free-throw line is disruptive. The crowd probably focused on the game, not on a single cheerleader. If the cheerleader, say, had walked to the foul line and confronted the player, that would have been disruptive. But being silent for a few moments disrupts nothing.

The full 5th Circuit reasonably could say that the student speech should be evaluated under the more deferential Hazelwood standard, in that cheerleading is a school-sponsored activity. But even the Hazelwood standard requires fundamental reasonableness. What is the legitimate educational reason in forcing a student-cheerleader to cheer for her attacker? (The player later pleaded guilty to misdemeanor assault.)

In the petition for full panel review, Larry Watts, the cheerleader’s attorney, wrote: “She cheered the entire game except for a two brief times when the accused rapist went to the free-throw line. There was no pedagogical purpose ever articulated by defendants as to why a rape victim should in addition to cheering for the team be required to cheer for the accused rapist also.”

It is not only unreasonable to force a cheerleader to cheer for her assailant, it is ridiculous. As Selena Roberts of Sports Illustrated wrote in her Nov. 8 column, “lessons remain to be learned — by the educators.”

 

Who's the Bully? "Academic Freedom" vs. Freedom of Speech

Beacon Press author Carl Elliott has been under attack in a scenario best described by one of his many defenders as “Orwellian.” In order to defend academic freedom, his university argues, they must prevent him from speaking.

Please read some of these posts to learn more about this important (and disturbing) story. -- Helene Atwan, Beacon Press Director

Pharmalot Blog: A Seroquel Clinical Trial And Academic Freedom

Health Care Renewal Blog: Who Is Really "Bullying?" - Academic Leaders and the Stifling of Critics of Conflicts of Interests

Hastings Center Bioethics Forum: Freedom's Just Another Word For... Restriction?

Leiter Reports: The University of Minnesota "Clinical Trials" Fiasco--and the Apparent Attempt to Silence Faculty Critics

UPDATE 5/5/2011 more links...

Law.com: No Advice, Please: Minnesota University GC Embroiled in Research Dispute

Banned in Boston: The Watch and Ward Society’s Crusade against Books, Burlesque, and the Social Evil

Neil Miller played to a packed house at the Brookline Booksmith last night, introducing his new book, Banned in Boston: The Watch and Ward Society’s Crusade against Books, Burlesque, and the Social Evil.

In the book, Miller relates the scintillating story of how a powerful band of Brahmin moral crusaders helped make Boston the most straitlaced city in America, forever linked with the infamous catchphrase "Banned in Boston." You can read a sample chapter on Scribd.

In their heyday, the Watch and Ward operated from the lofty heights of Beacon Hill, in their headquarters at 41 Mt. Vernon St. This address is very familiar to those of us here at Beacon Press...

 ... because it's where we work!

Given Beacon's great commitment to publishing "dangerous" work, and our numerous books examining the history and importance of free speech (From the Palmer Raids to the Patriot Act, Free for All, Worst Instincts, to name a few), it's interesting to think about the meetings held here by the city's moral guardians. The Watch and Ward, in their efforts to keep scintillating material out of the hands of readers, sent out secret orders from this address banning countless works, including modern classics by Hemingway, Faulkner, and Sinclair Lewis, and went to war with publishing and literary giants such as Alfred A. Knopf and The Atlantic Monthly (who, in another ironic twist, also once had offices at 41 Mt. Vernon). 

In this video, Neil Miller explains another surprising connection to the Watch and Ward.

A First Amendment Victory: William Ayers Finally Allowed to Speak

Beacon Broadside ran a post by William Ayers on April 7 about being "disinvited" from lecturing at the University of Wyoming—read the original post here. Earlier this week, Denver Westword's Michael Roberts, who followed the incident closely as it became a lawsuit, reported that United States District Court Judge William Downes "ordered that Ayers be allowed to speak at the university," after dismissing the university's security concerns as a "heckler's veto." According to Roberts, the federal judge cited earlier free speech cases—including the famous Williams v. Wallace involving Dr. Martin Luther King, Jr.—and "stressed that 'fear is not enough to override the First Amendment.'" Ayers spoke yesterday to a crowd of more than 1,000; the Billings Gazette offers a write-up of the event, which drew "about 10 protesters."

For those interested in reading more about important First Amendment battles, we suggest two great books: Anthony Lewis's Freedom for the Thought That We Hate: A Biography of the First Amendment and Christopher M. Finan's From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America.

William Ayers: Doublespeak at the University of Wyoming

William Ayers is Distinguished Professor of Education and Senior University Scholar at the University of Illinois at Chicago. He is the founder of the Small Schools Workshop and the Center for Youth and Society, and he is the author of many books on education, including Teaching Toward Freedom and A Kind and Just Parent, and a memoir, Fugitive Days.

On March 30, 2010, officials at the University of Wyoming, citing “security threats” and “controversy,” canceled two talks I was invited to give in early April, one a public lecture entitled “Trudge Toward Freedom: Moral Commitment and Ethical Action,” and the other, a talk to faculty and graduate students called “Teaching and Research in the Public Interest: Solidarity and Identity.” I’d been invited in August, 2009, but one week before I was to travel to Laramie, I was told I had been “disinvited.”

In February, as the University began to publicize my scheduled visit, a campaign to rescind the invitation was initiated on right-wing blogs, accelerating quickly to a wider space where a demonizing and dishonest narrative dominated all discussion. A wave of hateful messages and death threats hit the University, and was joined soon enough by a few political leaders and wealthy donors instructing officials in ominous tones to cancel my visit to the campus. On March 28 an administrator wrote to tell me that the University was receiving vicious e-mails and threatening letters, as well as promises of physical disruption were I to show up. This is becoming drearily familiar to me, as I’ll explain.

Christopher M. Finan: Supreme Court Case Threatens Free Speech

In today's post, Christopher M. Finan, president of the American Booksellers Foundation for Free Expression, explains why booksellers should care about what happens to Robert J. Stevens, a Virginia man who has been convicted of creating videos that contain scenes of dogfighting. Finan is the author of From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America. This post originally appeared at the ABA's Bookselling This Week.

Why should booksellers care about what happens to Robert J. Stevens?

Stevens is a Virginia man who has been convicted of creating videos that contain scenes of dogfighting. I'm sure there are many people, including some booksellers, who would applaud the fact that he was sentenced to three years in jail.

But U.S. v. Stevens is now before the U.S. Supreme Court, and it could become the most important First Amendment case in a generation. Civil libertarians are deeply concerned that the Court may use the case to begin dismantling the protections for free speech that have been built up over the last 70 years. If that happens, booksellers will find themselves facing a government armed with a broad new power to censor speech.

Stevens was prosecuted under a federal law that was passed in an effort to suppress the sale of so-called "crush" videos. These videos are a genre of fetish films that depicts small animals being crushed to death by women's feet. When the bill was introduced in Congress in 1999, it faced little opposition because it appeared to be focused on a very specific type of material that bordered on obscenity. Obscenity is not protected by the First Amendment.

In fact, however, the law applies to a much broader range of material. It makes it a felony to create or sell a depiction of animal cruelty, including a photograph, film, or audio recording of an animal being intentionally harmed or killed. President Bill Clinton acknowledged the breadth of the bill when he signed it into law by promising that the Justice Department would only enforce it against producers and distributors of crush videos.

There have been three prosecutions under the law -- none involving crush videos. Stevens was indicted for producing three videos extolling the virtues of pit bulls. The films do contain scenes of pit bulls fighting and attacking other animals, but Stevens opposes dogfighting in a self-published book, Dogs of Velvet and Steel: Pitbulls: A Manual for Owners. Stevens did not stage or film the fights. Some of the footage was more than 30 years old and some came from Japan, where dogfighting is legal.

It is clear that the law applies even more broadly. Since it covers any depiction of animal cruelty in whatever country it may have occurred, including countries where the acts are legal, it could apply to books and films about bullfighting. In overturning the law in 2008, the Third Circuit Court of Appeals observed that even depictions of killing deer or catching fish could fall within the act. It might also be used against animal rights activists who attempt to shock the public with graphic depictions of slaughterhouse practices or the inhumane treatment of farm animals.

A New Climate of Fear?

"It has all the hallmarks of suppression of speech: incitement of fear, intimidation of well-meaning folks, mob rule." So said Bill Ayers in response to the cancellation of a scheduled talk he was to give to high school students, whose parents would have been required to sign permission slips for them to attend, in Naperville, Ill. 

Ayers, author of Fugitive Days: Memoirs of an Antiwar Activist, is Distinguished Professor of Education and Senior University Scholar at the University of Illinois at Chicago. His relationship with Barack Obama became a source of controversy during the Presidential campaign in what Ayers described as a “dishonest narrative.” 

An event at Anderson's Bookshop in Naperville, scheduled for April 8 and tied to his new book from Third World Press, Race Course, was also cancelled. The bookshop cited security concerns. Similarly, an event at Brandeis University has been postponed due to the cost of security.

And a Boston College engagement at which Ayers was to speak about education reform was first cancelled by the college, then moved off campus, and briefly reworked into an event by satellite before that, too, was blocked by the BC officials. A local radio personality incited the protests that prompted the College to cancel the event. The student group that had invited Ayers to campus instead sponsored a discussion of freedom of speech and academic freedom on campus which drew 300 students, staff and faculty members. 

This is not the first time venues hosting speaking engagements featuring Ayers have come under fire. Officials at the University of Nebraska-Lincoln cancelled a lecture last fall, citing safety concerns. Countless events, however, have gone on in spite of attempts to suppress Ayers' speech. In October of 2001, when the late A. David Schwartz of Harry W. Schwartz Bookshops stood firm in the face of calls and letters urging him to cancel an event tied to the original release of Fugitive Days, he offered this eloquent defense to his critics: 

"I myself grew up in Wisconsin during the McCarthy era and witnessed firsthand the attack on civil liberties and civic life that crippled America at that time. My father was accused of running a Communist bookshop by many people just because he thought it important to stock and promote books which were unpopular in the political climate of the time. I also was engaged in the movement against the Vietnam War and had some opportunities to view the Weathermen in action. I decided that I was politically and intellectually opposed to their positions on most matters.

Now to the specific issue of whether or not Bill Ayers should be allowed to be one of the 26 authors who will visit our shops in October. It seems to me this is what America is about: listening to many freely expressed viewpoints so we can decide for ourselves the truth. America's brilliance and enormous distinction from other democracies is that it truly believes in the democratic process. Letting Bill Ayers speak is a part of that process. I hope customers who disagree with Bill Ayers and his views will attend this book reading so you can question him about this ideas. That's another part of the process."

(Incidentally and on a sad note, Schwartz Bookshops very recently closed its doors for good after 82 years. Two of the chain's four locations will reopen soon under new names, and we wish the new owners all the best.)

Helene Atwan, director of Beacon Press, offers these thoughts on the cancellations:

"Like most of our colleagues in the publishing and media communities, we deplore a climate in which schools, universities and bookstores are made fearful of having any author--or indeed any one--speak in their venues.  As the management of Anderson's Bookshop put it:

'Bookstores play an integral part in the process by which ideas are disseminated and debated. Debate is essential in our society, and we take seriously our responsibility to promote ideas, including those that we personally do not endorse or condone. This week freedom of speech was threatened.'

For all of us involved in the work of publishing ideas, the suppression of speech is a blow to democracy. It impoverishes us all to live in a climate where ideas are suppressed rather than discussed and debated, where anger overtakes discourse.  We remain hopeful that the fear-mongering that led to these cancellations can be staunched by the many individuals and organizations dedicated to protecting the free speech rights so integral to our national health."

Christopher M. Finan: Books Still Burn Here

Today's post, by Christopher M. Finan, honors Banned Books Week. Finan is president of the American Booksellers Foundation for Free Expression, the bookseller's voice in the fight against censorship. He is the author of From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America, which recently received the American Library Association's Eli Oboler Award for the best book on intellectual freedom in 2006 and 2007.

Some people will yawn at hearing that Saturday was the beginning of the 27th Annual Banned Books Week.

The story is the same every year, isn't it? Hundreds of titles are challenged in schools and libraries around the country. In 2007, the number was 420. This is fewer than the year before, but the number has fluctuated widely since the launch of Banned Books Week in 1982. The average is around 500.

Even the book at the top of the hit list is the same as last year–And Tango Makes Three, a childrens book that has been condemned as "pro-homosexual" and "anti-family" because it tells the story of two male penguins caring for an egg.

But this apparent sameness masks what is really going on. Behind the numbers are a lot of angry people–censors demanding the removal of books that offend them; teachers and librarians upset at finding themselves accused of trying to hurt kids, and the kids themselves caught in the crossfire.

Book banning is an old story, but it is new and often intensely painful for the people who experience it for the first time.

A Decent Decision, But Fleeting?

Today's post is from Frederick S. Lane, author of The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court. Lane is an expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. His next book will be People in Glass Houses: American Law, Technology, and the Right to Privacy (Beacon 2009). For additional information, please visit www.FrederickLane.com.

Four and a half years ago, during the halftime show for the 2004 Super Bowl, Justin Timberlake and Janet Jackson set off a heated national debate about televised decency when Timberlake pulled off part of Jackson's bustier and revealed her right breast.

The global exposure of Jackson's breast was remarkably brief -- roughly half a second -- but more than long enough to send the nation's moral watchdogs into orbit. The following morning, Federal Communications Chairman Michael Powell (the son of former Secretary of State Colin Powell) made the rounds of the morning television talk shows and promised a swift and thorough governmental investigation. The Timberlake/Jackson "flash dance" proved to be a political boon for many in Washington: the controversy enabled Chairman Powell to divert attention from his failed and much-criticized efforts to promote media consolidation, and the FCC's new-found willingness to punish indecency was a boost for President Bush's re-election campaign. Much more detail on the political fall-out of the half-time show is available in the opening chapter of my 2006 book, The Decency Wars: The Campaign to Cleanse American Culture (Prometheus Books 2006).