It’s done, everyone. Let’s go and work on other things.

The Obscenity points are perhaps the most intriguing. These tend to flip back and forth in the Courts as well, I have noticed from my little experience. (Justice Potter Stewart’s 1964 “I know it when I see it” is probably amongst the most hilarious of Supreme Court “definitions.”) If I can recall correctly, Miller v. California was one of the major landmarks of the “definition of pornography,” although more recent decisions have backed off to some degree. The Burger Court defined it as (from the Miller opinion):

“(a) whether the ‘average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (483 U.S. 24-25, which actually is quoting Kois v. Wisconsin and Roth v. United States in (a).

It goes on to recommend that the states define obscenity standards in statute, and lays out some “sample guidelines,” which is pretty ambitious of the Court. Down on page 26, they clarify that the tests may be self-cancelling: “At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.” (ibid.) But a lot of the meaning of “obscenity” is left up to the states to define more explicitly. Nonetheless, there may be an argument there, although the precedent is nowhere near as clear as Southworth, as far as I can tell.

The argument for cutting a portion of their funding rather than outright closing down the paper is also interesting. It might be a little bit of a loophole. It’s worth thinking about.

I hadn’t really thought of the obscenity argument, so Wally’s research is most interesting in that regard as it does provide a new legal perspective. Either way, I think that would be a tough case for the ASUO and, especially, the Frohn. There may, however, be an argument there with some legal validity, and that’s noteworthy.

PS. I know Wally isn’t trying to censor the Insurgent either. I’m not sure anyone really is at this point, save for O’Reilly.

Oh, and Andy… deep breaths buddy

For God’s sake Andy, he isn’t pretending to have a perfect legal opinion on the matter. He is providing more background for his argument and he’s said that he isn’t going to further pursue the Insurgent. Did you even read what he wrote?

Not that I’m questioning your rational approach to the topic, which is surely commendable considering the performance of your peers.

The problem I have with your approach is you are attempting to violate the writer’s of the insurgent rights. This may seem slightly idealistic to you, but your completely unqualified legal opinion, and thereby worthless research, is advocating that several of your peers, the Frohn, and the UO to become liable in a federal lawsuit.

Maybe you just have a secret agenda and would love to see the UO substantially harmed by such a case - but I believe most here do not.

Say some case was decided on your premise that censorship of obscenity is permissible - then more damage will been done to free speech in this country, and for what? For a coerced apology from a bunch of shit-for-brains?

With your mindset Wally, you’ll be a perfect advisor for the next totalitarian regime.

Yeah after I had a chance to research some more I discovered that you were right about the ASUO being held to the same standard as Frohn and the government. Its not just because of the Clark document though, the Supreme Court actually says so. And some other things (contact me if you want actual case references):

-The Court treats the ASUO the same as the university administration and the government in general, so I was wrong about that piece. But it really doesn’t make a difference because either way we arrive at the same viewpoint neutrality requirement.

- Viewpoint Neutrality is a subset of Content Neutrality. Decisions based on the viewpoint of the group (as opposed to decisions based on the ASUO’s viewpoint) are never allowed. Recommend looking at (http://www.campusspeech.org/speech.asp?id2=12434) for the most succinct explanation I (credit to Toby) have found. Our argument centered on the interpreted requirement that the group must contribute to the university’s mission. No question that argument is assailable, but we thought it was at least worth debating.

- Decisions based on content are in fact permitted under certain circumstances. Generally the administration can limit content when it interferes “to a substantial and material degree with the requirements of appropriate discipline in the operation of the school.” (American Law Reports). The issue was published two months ago and the U of O is still educating students so I don’t think the interference was “substantial and material”. But I throw that out there to add another dimention to the content-based argument.

- If the ASUO/university cut the Insurgent’s funding, that might be constructive censorship, but if it straight shut the Insurgent down or banned it from campus that would likely be presumed censorship and would at that point invoke a First Amendment question. Even so, the university/ASUO has the power to censor in several situations. Obscenity is one of them, but its such a wild card that they would never want to hinge a case on it. Besides, this only comes into play after the university or ASUO shuts the Insurgent down, and we know that would never, ever happen.

- I don’t know the basis of O’Reilly’s argument, but President Frohnmayer is not legally compelled to do anything. He can only be legally directed if he initiates action (eg. he shuts the Insurgent down, and court tells him to open it back up).

Also from American Law Reports:

“Thus, a number of courts have held that, totally aside from the First Amendment, regulation of the student press may be sustained on the basis of the student writers’ gross disobedience of, or disrespect towards, school or college officials or regulations, it not being necessary to consider the student writers’ actions in the light of whether the rules or regulations they were accused of violating were constitutional or not.” 16 A.L.R. Fed 182.

So if by publishing the March issue the Insurgent actually did violate something in the conduct code, it seems plausable that the Administration/ASUO could take regulatory action. Also from ALR:

“Courts likewise appear generally to favor the view that schools and colleges may prohibit obscenity in student publications, although the courts, as in other situations not related to the student press, cannot agree on what obscenity is.”

So if its obscene, its probably not protected from administrative action. With Roberts, Scalia, Thomas, and Alito on the bench, I would hesitate to assume anything right now with regard to obscenity. Obscenity is always arguable to some degree or another.

Brown and Hicks, in my opinion, make the most logical argument so far in support of censoring the Insurgent. They go beyond trying to stretch inapplicable case law like Tinker or simply being angry and calling for Frohnmayer’s head in ignorance of all legal considerations.

Nonetheless, I think the argument is fundamentally flawed, both legally and on principle. Hicks, in the resolution, asserts that the Insurgent can be de-funded based on the intent of the cartoons to provoke:

The Insurgent’s March issue was inflammatory, divisive, and designed to provoke people on an emotional rather than an intellectual level. As such, it detracted from – rather than contributed to – the university’s goal of promoting discourse about important issues. (para 3 pg 2)

The problem with this argument, and the “intended to offend, not to educate,” argument Dallas presented to me on his way out the door that night, is that it ignores that the Insurgent and the insuing controversy did in fact contribute to the goal of promoting discourse.

The debate regarding this issue, both locally and nationally, has led students to explore issues of free speech, student funding, religious doctrine, and the goals of the University in response to the offensive material. Furthermore, it has led to a number of interesting and thought-provoking articles by concerned students in the Emerald and here as well.

Ultimately, I would argue that the fact the Collective never planned on a educational response is irrelevant: it happened nonetheless. Just because the idiots at the Collective only wanted to piss people off (which may or may not be true, but it’s the center of Dallas’s reasoning), doesn’t mean that they “detracted from” the goal of promoting intellectual discourse.