This is extremely long and wordy, so those of you with short attention spans can skip right to the comments section, engage your caps lock key, and start with the fire and brimstone. The rest of you: please be patient.

UPDATE: Tonight’s Student Senate meeting will take place at 7:00 pm in the EMU Fir Room.
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Pira Kelly, noted local loon, “defends” herself in an ODE guest commentary today. She attempts, quite laughably, to draw a distinction between calling for the defunding of The Oregon Commentator by a bunch of ignorant, pissed-off idiots and the more recent calls for the defunding of The Student Insurgent by different ignorant, pissed-off idiots.

They printed ableist, racist and homophobic slurs on a campus that is so hostile to students with disabilities, students of color and queer students that even minimalist and inadequate administrative attention to campus climate requires massive protest.

Well, aside from all of that being blatantly untrue, it doesn’t really change the principles involved any. Even were I to grant, out of some misguided sense of sportsmanship, that her claims are correct it would still be illegal to defund the Commentator for them. I guess from a world-view where oppossing affirmative action is “racist”, or where one can be positively for same-sex marriage but still a “homophobe”, or where satirizing Joe McCarthy creates a “racist environment“, Pira’s foolish attempts to justify calling to shut others up make sense. From the final paragraph:

In a special note to Tyler Graf, editor emeritus of the Commentator: I’m not entirely sure what you’re trying to accomplish by defending our publication. Stock up points so that the next time you stomp on someone we’ll feel so indebted to you that we won’t call you out? How The Insurgent collective interacts with you and the Commentator is not my decision, but as an individual I am not ever going to allow injustice to happen because the perpetrators came to my defense with empty rhetoric when it was convenient for them.

Firstly, congratulations to Tgraf for provoking such ire from a pinko. Secondly, The Commentator is defending The Insurgent precisely because we have principles. It is more important to us that everyone be free to openly exchange ideas than that those ideas are ones we agree with, or even if they’re even logical. There is a lot of case law surrounding this issue, Pira, and more importantly a matter of deeply held principle on the part of the Oregon Commentator and its staff. Individuals should never, under any circumstances, be legally punished for expressing their opinion regardless of how stupid, hurtful, offensive, or improper some other person or group of people might find it. That’s one of the greatest insights to come out of the Enlightenment, and one of the most important freedoms to protect. That you can’t understand something so beautifully simple exposes a horrendous flaw in your judgement, and shows you to be one of the most duplicitous sort: one who will gladly grant government authority to take retributive actions against those with whom you disagree, but then has the audacity to complain when others demand that same authority be leveraged against you.

Frankly, you make me ill, but I will defend to the death your right to do so.

Please understand the following things:

1) The is the blog of the OREGON COMMENTATOR we are not, in fact, The Student Insurgent.

2) We have covered this purely as newsworthy, we’ve little to say on the content of the cartoons. Personally, I liked Coppertone Jesus, but beyond that found them mostly juvenile and dumb.

3) Before commenting on the relative merits of funding such speech via the incidental fee, please read and understand Rosenberger v. Rector, NEA v Finley, and especially Southworth v Board of Regents. This is at least a decent sample of the case law involved, grok this before mouthing off.

4) If you’d like to evangelize to the Student Insurgent in addition to us, email them or feel free to give them a ring.

More Insurgent in the press today:

The Register-Guard prints an opinion piece giving some praise to the Frohn for his handling of the situation thus far. I guess the choice quote is:

During the Muslim riots, critics never missed an opportunity to point out that such violence was virtually unthinkable in the Christian world, given Western traditions of religious pluralism and freedom of expression.

But the Muslim hysteria was designed to produce the same result as the pressure being applied to Frohnmayer by angry Christians: complete suppression of the offensive speech.

The Sunday Oregonian also printed a commentary about the Insurgent affair that has some decent background and mentions some of our contribution to the whole affair. Sadly, author Steve Duin doesn’t add much to the debate.

Aroused Jesus just can’t get no love. We’ve had Bill Donohue, aghast at his improbable bright red erection; we’ve had Bill O’Reilly go so far as to call for Frohnmayer’s head over the matter. Now we have an Action Alert! from - it was only a matter of time, really - the American Family Association.

There is a new angle here: the AFA is protesting the depiction of Jesus as a homosexual. (They also seem to be implying that the Jesus-on-cross-with-boner image falls into this category, which is baffling.) Money quote:

The Insurgent would never show a naked graphic of the Rev. Martin Luther King kissing another man, both sporting erections. But offending Christians was of no concern to the Insurgent or to University President Dave Frohmayer. [sic]

Thanks, American Family Association. Thanks for that image. I just snarfed my coffee.

Anyway, brace yourselves for another wave of incoherently angry protestors. Ain’t we got fun?

UO Public Relations has begun forwarding a revised statement from President Frohnmayer regarding the Student Insurgent. What follows is directly from a forwarded email:

Dave Frohnmayer has made an addition to his original statement (sent 4/26/06) and we want to make sure that all constituency groups receive the updated statement. You’ll see a double asterisk (**) at the beginning and end of the paragraph that was added.

The student publication, The Insurgent, recently published content of offensive nature in their publication. We have received numerous inquires about the publication and the offensive content. Below is the President’s response to these inquires and a copy of the letter to the editor the President submitted on April 12, to the daily student newspaper, the Oregon Daily Emerald.

Statement/response by President Frohnmayer

Thank you for your note about the student publication, The Insurgent. I share your concern about the offensive nature of the content contained within the publication.

I understand why it may seem as if the University should have prevented publication or should take some action against those responsible for the publication. The Student Insurgent is not owned, controlled or published by the University of Oregon and is funded with student fees. Therefore, the University cannot exercise editorial control over its content.

**Further, neither the University itself, nor the Associated Students of the University of Oregon, can exercise control over content by using a threat of removal of fee support. The U.S. Supreme Court has spoken on this matter. The Rosenberger and Southworth opinions restrict a public university’s ability to make decisions about incidental fee allocations on the basis of the content or viewpoint expressed by a recognized student group. Simply put, neither content nor viewpoint is a lawful basis for denying an allocation of incidental fees to a student group.**

The best response to offensive speech often is more speech. Wednesday, April 12, the daily student newspaper, the Oregon Daily Emerald, published the enclosed letter from me reminding the campus community of the need to engage in responsible civic dialogue. I am strongly opposed to speech that makes individuals feel that they or their beliefs are unwelcome or belittled, and I can assure you I will use all permissible means to respond to publications such as the recent Insurgent.

————

April 12, 2006

To the editor:

We are again called upon to explore the tension between the rights born from the constitutional protection of freedom of speech and the sometimes offensive content protected under this umbrella. I applaud the Emerald’s April 6 editorial calling on the campus media to strive for an educated, civil dialogue concerning significant ideas and current events.

While I am an ardent supporter of free speech, I also have strong beliefs that this freedom should be exercised with maturity and good judgment. Our campus community, including our media, must be part of a civil dialogue that respects the rights and beliefs of our entire campus community even while it questions and challenges some of those beliefs.

As stated thoughtfully in the Emerald’s own editorial, our media should not focus on creating controversy for controversy’s sake, but should instead seek to raise significant societal issues in ways that promote campus debate rather than making individuals feel that they or their beliefs are unwelcome and belittled.

Sincerely,

Dave
Frohnmayer

President

In my opinion Frohnmayer should have cited Southworth (and Rosenberger) when the outrage started to build, not now after it has reached a crescendo. Hell, he should have mentioned it last year when the Commentator faced defunding due to a penis joke.

A number of people have emailed us recently asking what the controversy surrounding the Insurgent is all about. We’ve had a number of posts going into detail about the issue and its accompanying brouhaha, so here are the important ones:

• Most importantly, we posted a .pdf of the issue here. (Note: link contains picture of the Insurgent’s cover, which many find offensive.)
• After the Insurgent released its controversial issue, the University suddenly remembered that student groups were not eligible to use the University’s bulk mailing rate.
• UO Student Zachary White was the first to file a grievance against the Insurgent. Here’s the first post of our coverage on that, and here’s our coverage of when the ASUO ruled against him.
• Soon enough, Bill Donohue of the Catholic League learned of the Insurgent’s issue and began complaining.
• The Commentator’s own Tyler Graf (who appeared on the O’Reilly Factor tonight) wrote a guest commentary in the Daily Emerald, the UO’s campus daily.
• And just yesterday, the ASUO once against ruled in favor of the Insurgent, by turning down the “Students of Faith” group’s grievance.
• And here are the first five pages of the newest Insurgent issue. They’ve been scanned in by hand, but we included the parts relevant to the controversy surrounding their previous issue.

NOTE: For those of you just tuning in, the Insurgent and the Commentator are two different publications. We are conservative/libertarian. The Insurgent is anarcho-syndicalist/marxist/crazy. We find this situation funnier than they do.

Well, as those of you who saw tonight’s Factor know, Bill O’Reilly came out against President Frohnmayer for his failure to take action against the Student Insurgent. The Commentator’s own Tyler Graf was on the program and bravely defended the Insurgent’s right to publish whatever they wish, even if they always seem to end up wishing for some combination of humorless anarchist ranting, tinfoil-hat conspiracy theories, and pictures of Jesus with a hard-on.

The ODE has a news article up about the Factor’s coverage:

[Tyler] Graf also conceded to O’Reilly that the images may have been intentionally offensive but argued that Frohnmayer had no legal ability to shut down the publication.

Frohnmayer agreed.

“Tyler is totally right,” Frohnmayer said. “Bill O’Reilly doesn’t know the first amendment from the back of his own hand, which is a shame because he takes full abuse of it.”

Mr. O’Reilly was, unfortunately, on the wrong side of this issue. While President Frohnmayer has his faults as University president, he has absolutely no say and, legally, no course of action to be taken on this particular issue. The unanimous Southworth Supreme Court decision of 2000 set the precedent that University administrations may not defund or otherwise punish fee-funded campus publications in a non-viewpoint neutral fashion. In other words, when it comes to campus media it is all or nothing: either you allow every sort of publication to be funded by the University or you allow none. From Southworth:

When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others. There is symmetry then in our holding here and in Rosenberger: Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.

Fortunately or unfortunately, this same decision also forbids universities from holding referenda on student groups, thereby preventing the student body from voting on which programs they’d like to be funded. The ASUO, voice of the student body though it putatively is, also acts as an arm - a tiny, shrivelled arm, but an arm nevertheless - of the state government.

The Commentator’s position has, for many years, been that no campus publication should be funded by the incidental fee, and neither should a lot of other things. We’d prefer it that no student on campus had to pay for the Insurgent, the Voice, the Siren, the Daily Emerald, or even the Commentator to publish political speech. Students come to the University of Oregon to take classes, not fund speech they disagree with. Of course, there are educational benefits (of the “here’s what not to do” variety, but still) to having publications like the Insurgent around, even when they publish offensive things. Indeed, as Tyler Graf pointed out in an ODE guest commentary, this very incident could be a teachable moment. But ultimately, at least in my mind, students value their hard-earned dollars more than they value offensive, teachable moment-creating speech.

Whatever the case, Tyler Graf was absolutely correct when he said that the decision was out of Frohnmayer’s (and Goward’s) hands. Could the President have handled the situation better? Yes, absolutely. But he should not be fired for not ignoring established Supreme Court precedent. As for the Insurgent, the more people get to read their Aroused Jesus issue, the stupider they look. Allowing them to keep publishing is the legally correct decision, and it’s a reminder of an important moral principle - but in the long run, it’s also the most fitting punishment of all.

That’s Mr. Tyler Graf on The Frohn just now. O’Reilly is, like expected, completely ignorant of the relevant case law. And he’s giving Jethro a lot more time. I sort of wish that we’d gotten “viewpoint neutrality” out there, or maybe a plug for the website, but overall nice job Tyler.

The Commentator crowd will be convening at Rennie’s at 5:00 to watch Tyler Graf defend free speech on The O’Reilly Factor. Advance word is that Billy is calling for Frohnmayer’s head. It’ll be a party– join us!

Also: due to this engagement, we may be a few minutes late for tonight’s 6:00 meeting. So if you’re showing up for that, just hang out– we’ll be back to the office soon.

Now that we know Tyler is going to be on O’Reilly tomorrow, I just thought I’d wish him luck and leave him with the words of John Stuart Mill for inspiration:

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Eugene Volokh, of the eponymous Conspiracy and UCLA Law, tackles the Insurgent/SoF mini-debacle:

In any case, cheers for the University of Oregon, and a mild Bronx cheer to the Students of Faith. I understand why they’re offended, and I understand that undergraduates can’t be expected to know the ins and outs of First Amendment jurisprudence. But if you’re making assertions about First Amendment law — as the students were doing in their grievance — then you ought to check them with a First Amendment lawyer. And if you’re making arguments for why certain speech should be excluded from university-supported publications, it would help to think harder about the implications of those arguments for speech besides the sort that has made you angry in this particular case.

I know the Students of Faith have been claiming the support of five (?) local attorneys. I’m not sure what legal basis they were/are asserting for their challenge, but I’d be very interested to hear more about it.

I’ve just been booked on the O’Reilly Factor for tomorrow, where I’ll be discussing the Insurgent’s Christ-Penis debacle, as well as Frohnmayer’s handling of the situation. Joining me will be someone from Students of Faith, the ad hoc student group whose petition calling for an open apology from the Insurgent was recently rejected by David Goward. Surely this will be must-see television.

UPDATE by Ian: Just a quick reminder, the Factor’s on at 5:00 and 8:00pm PST on Eugene Comcast channel 48.

ASUO Programs Administrator and Bureaucrat David Goward today announced that he has ruled against the “Students of Faith,” a group created “in response to the recent escalation of religious intolerance at the” UO. Their basic contention is that the Student Insurgent published images and articles which slandered Jesus Christ and that this somehow violates school policy. Goward rightly points out that the publication of offensive images does not affect any student’s educational or professional access:

The Student Insurgent did not practice discrimination. Although students may have been offended by the content, no privileges or opportunities were denied to any incidental fee paying student through the publication of the Student Insurgent. Nor did publication affect a student’s ability to practice her or his religion.

Goward also touches on Southworth:

Decisions regarding awarding incidental fee revenues to and use of incidental fees by student groups must be viewpoint neutral as cited in Soutworth v. University of Wisconsin “We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.” Except to determine if the publication contributes the physical and cultural development of students, decisions regarding award of incidental fee revenues may not be based on content.

Overall it’s a good, well-written decision. (A 42k .pdf of the ruling can be found here)

There are two pieces about the Insurgent’s cartoons in the Daily Emerald today. The first is the prerequisite reaction to reaction Editorial. To their credit, the ODE Gets It Right:

The ASUO and University should, under no circumstances, have the power to censor student publications. This was clearly established last year during the Oregon Commentator’s battle with the PFC when members of student government and the public tried to have the publication defunded for printing “hate speech.” The ridiculous irony is that members of The Insurgent staff spoke in favor of defunding the publication.

Pira Kelly, former Insurgent contributor, participated in a rally last year to encourage the administration to “take responsibility” for hate speech on campus after the PFC decided to fund the Commentator (“Students protest hate, discrimination” ODE, Feb. 18, 2005).

The point of the student incidental fee is that everyone may end up paying for something they do not support as long as it contributes to the cultural environment and marketplace of ideas at the University, a concept clearly established by the U.S. Supreme Court. Further, labeling any language “hate speech” is tricky business. The Insurgent’s sudden reversal in position from protester to protested demonstrates this perfectly.

Indeed. Of course, the gem of today’s paper is an excellent guest commentary by the Commentator’s own Tyler Graf:

Before spring break, our publication published an editorial lamenting the U.S. media’s inability to properly deal with the Mohammed cartoon controversy, which occurred several months after Danish newspaper Jyllands-Posten published a number of political cartoons featuring the Prophet Mohammed. We did this to put the controversy into context and educate the public. In our editorial, we mention that President Bush squandered a “teachable moment.”

Perhaps, at the University, our own mini-brouhaha will engender a teachable moment — a moment of clear, undiluted resoluteness: Speak freely, but don’t be a jerk. Or perhaps this moment will make us all realize how devalued the word “discrimination” has become, as the Zachary Whites of the world continue to believe that crudely drawn pictures of Jesus sporting a giant pink erection — images viewed primarily by Oregon’s prison population — are discriminatory. Or perhaps it will teach some members of the University community that free speech is an idea worth fighting for, and that it is ultimately intended to protect that which offends or goads.

As Glenn Reynolds would say, read the whole thing. (Oh, and the ODE appears to have inserted a superfluous comma into the second sentence of the second paragraph. The draft Tyler showed me a few days ago was grammatically correct, so I don’t know why they changed it.)