First Amendment and 'F**k Bush'

[DSYoungEsq]

@Martin Hyde

“Appeared to be asserting”, that was not what I was asserting, whatever it appeared to you. In the future I’d prefer that we stick to what I’ve actually stated.

Ok, Martin let’s go back to what you actually DID say:

@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.

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.

Up to this point, the thread was wrestling with whether or not First Amendment issues were involved (we’ll use the shorthand for the actuality of it being an incorporated Fourteenth Amendment situation). Your post is in response to a post by villa which ended with this statement: “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.”

Previously, you posted this quote:

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.)

Now you understand, do you not, that what you actually said is that 1. the employer in this case had the right to fire the employee without worrying about the First Amendment, and 2. unless censorship is involved, the First Amendment isn’t part of the equation here. It may not be what you meant to say; I think I have some idea what you meant to say here, but it is what you actually said.

I don’t think you and I are in fundamental disagreement, except that you persist in your belief that the editor of the newspaper has no “free speech” interest in his ability to publish an editorial in which he expresses his opinion in the paper. I am asserting that this is incorrect; while the people who own the paper may have a right to terminate the editor for his actions, they can legitimately do so only because the constitutional question which exists can be resolved in their favor. That’s what Hazelwood was saying, and you will note that they didn’t say there was NO First Amendment issue to resolve, only that it was resolvable in the favor of the administration.

Now if the newspaper in question was totally unaffiliated from the University, so that no “state action” was involved, then you’d be correct; there would be no First Amendment issue. If you want to make the assertion there is no “state action” here, feel free to do so, and offer evidence and legal opinion to support it.

But as for what you actually said, it’s in black and white above, and to the extent it asserts that the First Amendment is not in any way involved, it is, bluntly, wrong.

In my opinion, of course, for what that is worth.

[UltraVires]

I think the overall meaning of the first amendment is very much upheld as this student editor isn’t beated, jailed, or killed for saying something negative about the President.

Good luck trying this in Cuba with Castro.

I also think that the first amendment was enacted to provide a level of intelligent political discourse and disagreement. A cheap profanity used as a taunt was not the reason the framers put the amendment in there. (Not that I think it still isn’t covered)

A story about why the editor disagrees with the policies of the President would have been more keeping in line with the framers.

I mean, what thought or idea was this guy trying to express in this “article”? I would fire the guy just for being juvenile. How about I write the rebuttal to this saying that Hillary Clinton sucks donkey dicks. And then next week, the Dems can come back with Mitt Romney has cooties, and I can write that Barack Obama is a “meanie”.

WTF was this guy thinking running a newspaper with this crap in it? And if we take the 1st amendment argument to absurdity, then there is absolutely NO REASON that an student editor could be fired, because it would related to what was in his newspaper, which is protected speech. So what if it was terrible writing, it is his free speech…

[Zoe]

Martin Hyde: Since I never made the claim that state actors get to behave as any other employ does in regard to their employees, I suggest you route further protestations about people making such claims towards those who have actually made them.

Martin, this isn’t exactly a conversation between the two of you. You posted this in another discussion:

It’s really not that much different from being told you have to leave a bar or any other private business. Sure, university buildings are “publicly funded” (at least in theory), but the university officials have the same right to set up rules of conduct within in them as judges have the right to manage conduct in their courtrooms (which are also public buildings.) While breaking the “rules” in a bar isn’t a crime, refusing to leave becomes a crime and resisting arrest if they call the police is likewise a crime.

The purpose of that statement was to point out similarities between enforcing rules of confuct in public institutions and private institutions. Later in the discussion I described some of the differences I faced just from teaching in a public high school as opposed to a private school.

[Martin_Hyde]

@DSYoungEsq

Previously, you posted this quote:Now you understand, do you not, that what you actually said is that 1. the employer in this case had the right to fire the employee without worrying about the First Amendment, and 2. unless censorship is involved, the First Amendment isn’t part of the equation here. It may not be what you meant to say; I think I have some idea what you meant to say here, but it is what you actually said.

I’ve read a lot of your posts here, and one thing I have always recognized about you is that you are someone who will not tolerate blatantly false information and that you are someone who pays an incredible amount of attention to the details. So I must admit I am quite puzzled to find that you have missed some important details concerning what I actually said, details which fundamentally alter your interpretation.

You assert that I state, “the employer in this case had the right to fire the employee without worrying about the First Amendment.” I never said that.

And that “unless censorship is involved, the First Amendment isn’t part of the equation here.” I never said that.

Here is what I actually said, with an extremely important word highlighted so that readers will take note of it:

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.

Note the word should. I was simply stating my opinion that he should be fired. That doesn’t speak whatsoever to the legal situation at hand, in fact, my prefacing the passage with “In any case,” clearly shows that I’m segueing into an aside concerning my personal feelings on the editor. I felt he should be fired, that the paper should have the right to fire him. I did not say definitively that they could fire him with no concern for the First Amendment, all I said is that they “should be able to.”

It’s akin to someone arguing that Bush shouldn’t be President because he didn’t rightfully win the Election in 2000 (or say, 2004.) People who make this claim aren’t saying that Bush’s election was not properly certified and that he was not legally put into power. They are saying the way the votes were counted was improper and he shouldn’t have been put into power. It’s a distinction that is relatively significant but one that may not be so clear unless elaborated upon.

Then we have me saying this:

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 was dealing with a separate issue and this is one point on which I will issue a mea culpa because I was not clearly delineating where my discussion on one matter began and the other ended, thus the confusion over this is understandable and could have been prevented by myself. The original article lead me to believe that the student was facing possible loss of his position as editor of the paper and some sort of university disciplinary sanction. In this passage I was moving on to a brief discussion about the issue of his possible disciplinary sanction. Nothing I said about the student conduct policy necessarily had anything to do with the larger discussion over his employment status.

Then finally I say:

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.

I stand by this, you can’t censor someone retroactively. Him no longer being able to publish in the Rocky Mountain Collegian would perhaps be a form of censorship, but that would be censorship of new speech, his original speech was still not (and has not) been censored.

I don’t think you and I are in fundamental disagreement, except that you persist in your belief that the editor of the newspaper has no “free speech” interest in his ability to publish an editorial in which he expresses his opinion in the paper. I am asserting that this is incorrect; while the people who own the paper may have a right to terminate the editor for his actions, they can legitimately do so only because the constitutional question which exists can be resolved in their favor. That’s what Hazelwood was saying, and you will note that they didn’t say there was NO First Amendment issue to resolve, only that it was resolvable in the favor of the administration.

I do not believe that the editor has “no free speech interests in his ability to publish an editorial.” I have emphatically stated that I believe this case has free speech implications regardless of what happens. But again, lots of things have free speech implications without being legally improper. I may have free speech interests in going into a lengthy diatribe/outburst in a courtroom, but I’m not allowed to do such a thing nor would the State be acted in violation of the 1st Amendment by restraining me from doing such.

Now if the newspaper in question was totally unaffiliated from the University, so that no “state action” was involved, then you’d be correct; there would be no First Amendment issue. If you want to make the assertion there is no “state action” here, feel free to do so, and offer evidence and legal opinion to support it.

I never made such an assertion–I simply pointed out that there are differing levels of association between student newspapers and their parent universities based on the university in question.

But as for what you actually said, it’s in black and white above, and to the extent it asserts that the First Amendment is not in any way involved, it is, bluntly, wrong.

In my opinion, of course, for what that is worth.

It’s patently not in the black and white above. You’ve extrapolated what you think I said, when it just clearly isn’t supported by what I actually said. I never said the any of the following things:

1. The First Amendment is not in any way involved

2. There are absolutely no free speech implications

3. The State can fire people just like any other employer

4. The editor has no first amendment concerns

I did say, at one point:

“It’s not really a free speech issue but a business/professionalism issue.”

That isn’t the same as saying “there are absolutely no free speech implications.” No, it is just me saying that this is an issue of professionalism and common business sense. An editor puts a curse word into the title of an article in the form of “Fuck Bush” (or maybe it was actually published as F*CK BUSH, I don’t know) the said article was not a criticism of Bush. It had nothing to do with Bush whatsoever, in fact. The article itself never mentioned Bush. Now, that in and of itself shows immaturity and a lack of professionalism. It’d be one thing for an edgy paper to publish an editorial titled such when said editorial was a criticism of the President. That wasn’t the case here, it was simply immature and pointless, and has no place in journalism. Secondly, the act caused the paper to lose revenue (originally $30,000 and now apparently up to $50,000), all student workers at the paper had their wages reduced by 10% because the editor did something childish. This is why the core issue is his lack of professionalism and his lack of business sense. As editor-in-chief he has to be concerned with the overall health of his paper, he obviously wasn’t, for that he should be fired.

It was my view from the very beginning that we were talking about removing an incompetent editor, not about punishing someone for exercising free speech. If I thought that he was being sanctioned simply because of the objectionable nature of what he said, I would not view it as being a business/professionalism issue but rather a free speech issue. Either way, I’m not saying it’s all or nothing, I’m just saying the core issue is business/professionalism related, not free speech related. I think that’s fairly clear given the actual wording and context of my original text.

[Martin_Hyde]

@Zoe

Martin, this isn’t exactly a conversation between the two of you. You posted this in another discussion:

The purpose of that statement was to point out similarities between enforcing rules of confuct in public institutions and private institutions. Later in the discussion I described some of the differences I faced just from teaching in a public high school as opposed to a private school.

This has nothing whatsoever to do with this discussion. Furthermore, I think you need to quit stalking me and get over yourself. In various threads now you have tried to “zing me” by bringing up quotes from other (sometimes vaguely related but usually completely off-topic) threads.

This may not be exclusively a conversation between me and DSYoungEsq, but it is most certainly a conversation between me and people who actually have an interest in this thread. Since you haven’t posted in this thread whatsoever except in an attempt to stir up something with me, this conversation quite obviously does not include you.

I have no idea what point you are even trying to make here, as the quote of mine you have linked to clearly is about the issue of state actors having the authority to regulate behavior within public buildings. DSYoungEsq is more knowledgeable than me concerning the law and issues such as this, and I would wager that he would agree with me that state actors (such as public universities) have the authority to regulate behavior within their buildings.

I regret that I even have to expend effort on this issue, since you inserted it into this thread with no reason and since the issue is not really related to this thread at all, but it isn’t in my nature to not rebut people who are trying to make some vague attack upon me by engaging in selective quoting of me from past threads.

Any reasonable person can agree that a publicly funded university has the right to restrict use of its buildings, just because they are buildings which are part of a publicly funded university does not, in fact, mean you can behave however you want in them. It does not mean that you can interrupt scheduled events and make a disruption. For example, many publicly funded universities have movie theaters within one of their buildings. These movie theaters might operate as a free form of entertainment to the students (or at least free in that it comes from their tuition/fees not directly in the form of buying a ticket), however just because these theaters are operated by a “State actor” does not mean they can’t do many of the same things a private actor could. They can most certainly eject loud, drunk, disruptive and et cetera people. I have no idea what experiences you have in the public/private school system in the context of High Schools, however High Schools are fundamentally different from universities for various reasons.

High Schools don’t typically have 20,000+ students, high schools have mostly minors as students, universities have mostly adults. High schools are typically highly structured when compared to any university. A university might have public speakers coming in every day of the week on all kinds of issues.

What I do know is this, whether it be a high school assembly in which the local town mayor comes in to give a speech, or a university event in which a nationally known figure comes in to give a speech–both the high school and the university can remove students from the event if they are being loud and disruptive. I don’t know the legal background on why they can do that, I just know from my general life experiences that this is true. People were kicked out of such assemblies all the time when I was a teenager, I don’t imagine this is a rare event at other high schools. Maybe all these acts were unconstitutional, but for some reason I doubt that at any point has the SCOTUS ever ruled that High Schools (or universities) do not have the right to remove unruly students from assemblies/speeches/et cetera.