First Amendment and 'F**k Bush'

Great Debates
1

I was reading this article on CNN entitled ‘Calls for student editor to resign after ‘F**k Bush’ column’ and thought it might make an interesting debate.

As you can see the article isn’t really even about Bush. He was just thrown in to…well, I’m not sure why he was thrown in. Probably because F**k Bush is a sentiment a lot of readers can get behind…and perhaps it would sell more papers. Who knows.

The debate however is one of freedom of speech. What are your thoughts? Should the editor be forced to resign over this? Should an editor be free to say anything like this and be protected under the First Amendment?

Here is my take FWIW…I think the editor SHOULD be able to say whatever s/he wants and have their speech protected. However, they should realize that speaking in public can have consequences (such as the loss of business reported in the cited article…$30,000 in advertising money so far) and be willing to accept that fact.

Thoughts?

-XT

2

[QUOTE=xtisme]
IThe debate however is one of freedom of speech. What are your thoughts? [snip] Should an editor be free to say anything like this and be protected under the First Amendment?
[/QUOTE]

I’m sorry, I think I missed the part of the story where the editor was charged with a crime.

3

[QUOTE=athelas]
I’m sorry, I think I missed the part of the story where the editor was charged with a crime.
[/QUOTE]

I’m equally sorry…I think I missed the part in what you quoted (or in the OP) where I claimed he had been charged with a crime. Additionally, I must have missed the whole crime slant here. This was a debate about freedom of speech. No crime involved afaik.

-XT

4

I think it’s generally established that a university administration can censor, fire staff, or otherwise control the content of student newspapers, First Amendment notwithstanding; such newspapers being semi-official organs of the university.

5

[QUOTE=xtisme]
I’m equally sorry…I think I missed the part in what you quoted (or in the OP) where I claimed he had been charged with a crime. Additionally, I must have missed the whole crime slant here. This was a debate about freedom of speech. No crime involved afaik.

-XT
[/QUOTE]

I think athelas’ point is that ‘freedom of speech’ protected by the 1st Amendment is very much a legal concept. An editor being fired for printing something has little to nothing to do with the 1st Amendment.

6

School papers are always odd ducks.

A “paper” has the right to print lots of different things.
However, the issues raised with the ownership of the paper are with the publisher, not the editor. (A publisher may allow a great deal of latitude to an editor, even one whith whom the publisher disagrees, but lawsuits over libel and similar issues are going to be directed toward the publisher, (although the editor may also be named), so the publisher is the the one whose actual rights of free speech are being protected.)

So who is the publisher of a school paper that is funded by sales outside campus and receives no student fee support? I would guess that it is still the school and that the school has the right to fire the editor for causing harm (loss of revenue) to the paper/school. (If the school provides funding from the state or endowments rather than student fees–as I suspect they do–they certainly have the right as owner/publisher to fire the editor.)

In this case, it might even be the right thing to do: there is no principled stand behind which the school might find itself morally compelled to support the editor in the face of hostile public reaction and against its own policies. This was no extreme stand for or against the Iraq war, abortion rights, Affirmative Action, immigration issues, or anything similar. This was a lazy editor launching two unassociated two-word phrases out into the public that have nothing to do with each other, apparently for fun. It is not so much “exercising free speech” as “seeing how far I can go.”

I am not calling for McSwayne’s resignation and I am not encouraging the school to fire him, but I will have no problem with either action if that is the outcome.

7

[QUOTE=xtisme]

Here is my take FWIW…I think the editor SHOULD be able to say whatever s/he wants and have their speech protected.

[/quote]

I agree. I don’t really see this as a 1st Amendment issue. A lot of people seem to forget that free speech cuts both ways. You’re free to say almost anything you want but there’s going to be consequences to what you say. It seems irresponsible, at least to me, that an editor would insert a “Fuck Bush” into the paper. If the government were coming down on the editor then I’d call it a 1st Amendment issue. As it currently stands, no.

Marc

8

I’ve always been surprised that in all the debates about free speech in student newspapers, there’s so little emphasis placed on the fact that the schools publish the papers. Any publisher has the right to set rules for what they want and don’t want in their paper, regardless of whether it’s the New York Times, The Rocky Mountain Collegian, or This Week at Jefferson Junior High.

9

[QUOTE=xtisme]
The debate however is one of freedom of speech. What are your thoughts? Should the editor be forced to resign over this? Should an editor be free to say anything like this and be protected under the First Amendment?
[/QUOTE]

I don’t think he should be forced to resign. I would prefer to see the students resolve this.

10

[QUOTE=Little Nemo]
I’ve always been surprised that in all the debates about free speech in student newspapers, there’s so little emphasis placed on the fact that the schools publish the papers. Any publisher has the right to set rules for what they want and don’t want in their paper, regardless of whether it’s the New York Times, The Rocky Mountain Collegian, or This Week at Jefferson Junior High.
[/QUOTE]

No they don’t. Flat out wrong. Not where the publisher is the government, they don’t. And in a lot of student cases, that’s what they legally are.

They may restrict content, but they must do it in a viewpoint neutral manner.

11

[QUOTE=xtisme]
I’m equally sorry…I think I missed the part in what you quoted (or in the OP) where I claimed he had been charged with a crime. Additionally, I must have missed the whole crime slant here. This was a debate about freedom of speech. No crime involved afaik.

-XT
[/QUOTE]

You missed athelas’ point because you, like a disturbingly large percentage of Americans, appear not to understand the First Amendment and freedom of speech.
The First Amendment protects a speaker (or writer, or publisher) from government action. It prevents punishment of speech, by criminal or civil sanction, or prior restraint. Because no government entity is attempting to punish the speech at issue here,* the First Amendment simply does not apply to the situation.

You may wish to debate the public benefit and ethics of untrammeled speech, but there is no legal issue here.

Sua

  • Yes, Colorado State University, as a public university, is a government entity. But when a government entity is also the publisher, First Amendment principles do not apply. The college, as publisher, is in effect regulating its own speech.
12

[QUOTE=villa]
No they don’t. Flat out wrong. Not where the publisher is the government, they don’t. And in a lot of student cases, that’s what they legally are.

They may restrict content, but they must do it in a viewpoint neutral manner.
[/QUOTE]
I’m pretty sure that all or nearly all case law disagrees with you, here.

13

[QUOTE=villa]
No they don’t. Flat out wrong. Not where the publisher is the government, they don’t. And in a lot of student cases, that’s what they legally are.

They may restrict content, but they must do it in a viewpoint neutral manner.
[/QUOTE]
Bullshit. “[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood School Dist. v. Kuhlmeier, 108 S.Ct. 562, 571 (1988). “Reasonably related to legitimate concerns” is the lowest standard there is, and it effectively means that schools control all of the content of the newspapers they support.

Sua

14

Actually, at least some student papers aren’t published by the schools precisely because throughout the history of college papers you’ve had incidents where the school exercises editorial control over the paper. Many college papers are only loosely affiliated with the college, and most try to get independent funding. What a lot of universities/colleges do is a small part of some of the general fees that all students pay goes towards a “mandatory subscription” to the student paper (usually the papers are then just distributed for free around campus at many locations.) So while technically the school may fund part of the paper, it’s really seen as the students funding it through a very small portion of their mandatory student fees with additional revenue coming from advertisers.

In any case, I think like any other employer the paper should be able to fire this editor for whatever reasons they feel are appropriate as long as it doesn’t violate employment laws at the state or Federal level. In general if you say or print something your boss or employer does not like, you can be fired. It’s unlikely a student newspaper editor is a contracted employee (and if they were I imagine that said contract would stipulate termination for taking an action which caused a dramatic loss of revenue.)

It’s not really a free speech issue but a business/professionalism issue. Every newspaper, whether it be a college one or one owned by a private corporation/individual should be able to make money and maintain credibility. If the editor does something that adversely affects either things, he should be fired. It’s really just that simple.

First Amendment rights aren’t at play, because the First Amendment is a restriction on governmental action against free speech rights. If the editor is fired his freedom of speech is not being infringed whatsoever because he is not the publisher and he isn’t being prohibited from publishing “Fuck Bush” he’s just being prohibited by the publisher from working at their paper for doing something objectionable. If said student decided to start his own blog or even start his own newspaper and the local government tried to stop him from distributing it, then it’d be a 1st Amendment issue, that isn’t the case here. It is the publisher of the paper whose 1st Amendment rights are at stake (and no one is trying to restrict the publisher’s 1st Amendment rights, it is the publisher itself that is considering taking action against one of its employees.)

15

But if you combine that with Perry Educational Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), and decisions such as Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (requiring university funding of publications to be on a viewpoint neutral basis) I think the argument is that legitimate pedagogical concerns must be in some sense viewpoint neutral.

You cannot, for example, prevent a student paper running a column listing reasons to vote Republican and allow them to run one listing reasons to vote Democrat. Or at least I am pretty certain you can’t. I don’t see how that would be justified under legitimate pedagogical concerns. You could, I would assume, allow an article supporting racial tolerance while still permitting the censorship of an article supporting the Klan. So I agree that viewpoint neutral was probably an overstatement.

Looking at Hazelwood, it specifically applies to newspapers in schools that were not set up as fora for student expression, which have a higher standard. Even in those situations, the censorship must serve a legitimate purpose - it cannot be random.

Some “student newspapers” do get a higher degree of protection than others, though. That I will agree on. But the bottom line is that all student papers where the state is the publisher receive a degree of first amendment protection.

16

The student has freedom of speech in that he may publish a paper that says virtually whatever he’d like. He does not have freedom of using someone else’s equipment to do so. If he buys his own presses, paper, ink, building, etc., he doesn’t have to answer to anyone’s rules but his own. But he uses facilities owned and controlled by someone else only at the pleasure of said owner/controller.

17

[QUOTE=villa]
But if you combine that with Perry Educational Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), and decisions such as Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (requiring university funding of publications to be on a viewpoint neutral basis) I think the argument is that legitimate pedagogical concerns must be in some sense viewpoint neutral.

You cannot, for example, prevent a student paper running a column listing reasons to vote Republican and allow them to run one listing reasons to vote Democrat. Or at least I am pretty certain you can’t. I don’t see how that would be justified under legitimate pedagogical concerns. You could, I would assume, allow an article supporting racial tolerance while still permitting the censorship of an article supporting the Klan. So I agree that viewpoint neutral was probably an overstatement.

Looking at Hazelwood, it specifically applies to newspapers in schools that were not set up as fora for student expression, which have a higher standard. Even in those situations, the censorship must serve a legitimate purpose - it cannot be random.

Some “student newspapers” do get a higher degree of protection than others, though. That I will agree on. But the bottom line is that all student papers where the state is the publisher receive a degree of first amendment protection.
[/QUOTE]

What you’re missing is that no one is trying to censor anyone. Censor means the original article is not published or is edited (“censored”), that did not happen. The article was published as the student-editor wanted it to be.

The fact that he may lose his position as student-editor is a separate issue, like any other publisher or employer, whether this be a totally school-run paper or a quasi-school associated paper they have the right to get rid of people that take actions which hurt the paper’s bottom line or its public credibility. Just like the New York Times ownership would have the right to fire an editor who did something which hurt the NYT’s ownership or lowered its credibility.

Furthermore as a university student he is almost certainly subject to a student conduct policy which he agreed to before he enrolled in school. Student conduct policies tend to apply to the student for the duration of his association with the school, meaning he could be punished by the school even for things he did outside the school. Most schools have within their student conduct policy a stipulation about actions which hurt the reputation or image of the university and provide for sanctions for said action.

This guy could lose his position at the student paper and be punished by the school and he still would not have been censored, nor would the paper have been censored, because the original article was published in its original form.

18

[QUOTE=SuaSponte]
You missed athelas’ point because you, like a disturbingly large percentage of Americans, appear not to understand the First Amendment and freedom of speech.
The First Amendment protects a speaker (or writer, or publisher) from government action. It prevents punishment of speech, by criminal or civil sanction, or prior restraint. Because no government entity is attempting to punish the speech at issue here,* the First Amendment simply does not apply to the situation.
[/QUOTE]

Well…actually I DO understand the 1st Amendment. If you read carefully what I wrote I don’t in fact think this is a 1st Amendment issue, and I don’t think that it applies here. Which is why I believe that freedom of speech should be protected, but in this particular circumstance it doesn’t really come into play. Whether this editor should be fired or not is an internal issue to the paper. Personally if someone lost me $30k in advertising I’d strongly be inclined to give him/her the boot.

-XT

19

[QUOTE=Martin Hyde]
What you’re missing is that no one is trying to censor anyone. Censor means the original article is not published or is edited (“censored”), that did not happen. The article was published as the student-editor wanted it to be.
[/QUOTE]

And what you are missing is that I specifically never commented on this case. I was replying to a post that I felt incorrectly represented the law.

20

[QUOTE=xtisme]
Well…actually I DO understand the 1st Amendment. If you read carefully what I wrote I don’t in fact think this is a 1st Amendment issue, and I don’t think that it applies here…-XT
[/QUOTE]

What you wrote in the OP was

You directly posited the question as to whether the 1st Amendment should protect the editor, and opined that it should. You also opined that the editor should be ready to accept the economic consequences of the speech.

If you had intended to take the position that the First Amendment doesn’t apply here, I suggest that your OP did not match your intent.

Sua