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Free Speech under fire in Radford, VA For years, city zoning employees cruised the university district of Radford Virginia and ordered students to take down any Greek letters that happened to be posted on student houses. Any signs they didnt like for whatever reason, even church-related Greek letters, came down. Then in 2006, someone finally asked what law, exactly, allowed them to behave this way. And surprise, surprise, surprise -- city officials found they were enforcing a law that they only thought existed... a phantom ordinance. So in 2007, they decided to create a law... A law that would not only let them take down the signs, but a law that would make students come to the government for approval before any signs even went up. The only problem was that a few people remembered a little history from Virginia's dim past ... Something about Thomas Jefferson, and free speech and free press ...
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CONTENTS OF THIS SITE Doomed to repeat history Free speech on campus
Additional notes and case law prepared with the Student Press Law Center
"The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious..." -- Justice Arthur J. Goldberg, whose papers are kept at the Radford University library, in the 1964 New York Times v Sullivan decision.
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TIMELINE OF THE CONTROVERSY Also at the same hearing, church groups objected: “I’m a member of Chi Alpha, and we’re a campus ministry group, we’re not in the Greek (fraternity and sorority) community, but we’re represented by Greek letters because of Christian tradition,” said RU senior and social work major Misty Keene. “It (the ordinance) has posed problems in the past. We had to take down our letters when we were on Main Street.” -- The Tartan student newspaper. April 23rd -- A second hearing is held. A letter is written to council warning that the ordinance has obvious Constitutional infirmities and strongly recommending that the city seek more legal advice. May 14th -- the City Council ignores the warning and passes ordinance Sec. 120-239, "Additional Requirements for Radford University Recognized Student Clubs and Organization Signs," which says, in sections c and d, that message "design and location must be approved" by city and university bureaucrats, and that "the display of RU recognized student clubs or organizations letters, banners, signs, etc, other than flags, are permitted only during special events..." July 23 -- Virginia state American Civil Liberties Union says it will sue the city if it does not repeal the ordinance. ßJuly 24 -- The City of Radford explains its policy (for the first time) City attorney Jim Gwynn says "The alternative, in my mind, is simply to say 'OK, there will be no signs in residential neighborhoods.'" Aug. 1 -- The ACLU says that the City of Radford cannot compromise on freedom of speech. Aug. 7 -- City Council members say they just dont understand why a "gentleman's agreement" to abridge First Amendment rights isnt good enough for fraternities. They claim that this actually gives the students MORE rights because it allows them a small amount of free speech, which they would not have if the ordinance didn't exist 2008 -- Not much happens in this area. 2009 -- New web site goes up to oppose city ordinance -- Hide Their Pride -- Petition drive begins. |
Doomed to repeat history
By Bill Kovarik
RU American Association of University Professors newsletter, January 2007
They say those who forget history are doomed to repeat ... the 11th grade.
In fact, a little remedial education in civics might be a good thing for a few bureaucrats in my little town in the Gothic South.
How else could we explain a new city ordinance to control the way Greek organizations express themselves on signs and flags in the university district? And how else could we explain the lack of regard for a wide variety of free speech rights, both on and off campus?
Topic A these days is the new City of Radford ordinance Sec. 120-239, under which all fraternity and sorority flags and signs will have to be approved in advance by the university as well as the town Zoning Administrator.
And what’s wrong with that?
In the first place, picture the comic prospect of a hapless bureaucrat inspecting a bit of sorority slang for dangerous ideas.
“What does this mean,” the bureaucrat asks in a menacing tone. “ ‘We heart our Tri-Sigs.’?”
In the second place, religious groups with Greek names (like Chi Alpha) have taken offense at the regulation since it was used to order their signs taken down, an extraordinary and disturbing violation of the principle of freedom of religion. At least one church plans to hang up a sign with the word "Christ" in Greek letters. Obviously, this would not be in support of the regulation.
As ludicrous as it all seems, students are starting to wonder why the university and the town government can behave with such reckless disregard of the tradition of free speech in America and, in particular, in Virginia. They wonder why the town and the university do not practice what its professors preach.
As one of those professors, it has long been my lot in life to remind students (and administrators) that they have been endowed by their creator with certain inalienable rights, among them being life, liberty and … well, everyone who passed 11th grade knows the rest of that story.
Usually this lecture elicits a profound sense of drowsiness in my classroom, but I have recently noticed a certain alertness, especially among fraternity and sorority members, when we get around to discussing freedom of speech.
Is there not, they ask, an inherent contradiction between the First Amendment and the proposed Section 120-239 of the City Code entitled "Additional Requirements for Greek Organization Signs" ?
Is this not prior restraint – outright censorship – which is the least acceptable form of government control over speech?
Does there not have to be an extremely compelling reason for government suppression of speech? And doesn’t the regulation have to be narrowly tailored to the specific reason, and not overly broad?
These formidable questions certainly seemed to indicate a surprising wakefulness on the part of my students.
Other questions are coming up as well. Why should students have to get permits to use the university’s “free speech zone?” Doesn’t that conflict with the right to peaceably assemble?
Why are there so many regulations limiting pamphlets and table tents in the cafeterias? Isn’t that a violation of freedom of the press?
So you see, it’s starting to get out of hand. Who knows where it will end? The next thing you know, students might be comparing the university’s pompous bulletin board stamps to the odious Stamp Act of 1765.
Why, at this rate, they’ll be dragging out old copies of the state’s Constitution and the US Bill of Rights. Where will it all end? Liberty trees? Tea parties? Maybe they’ll start reading their Thomas Jefferson and their James Madison out loud in the Free Speech Zone – without permits!!
Yes, those revolutionary ideas were pretty dangerous in their day, and they may yet come back in fashion.
My students are restive, and they don’t seem to want to go back to sleep.
I just hope our hapless bureaucrats wake up to the fact that, as they said back in 1776, all power is derived from the people, and that bureaucrats are the trustees and servants of the public.
It seems a few of them have quite forgotten their history.
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Although the city of Radford seems to be well populated with rustics and primitive provincials, the university at Radford should not need a lecture on freedom of speech. This is especially true since RU holds the papers of Supreme Court Justice Arthur J. Goldberg. In 1964, Goldberg said, "The theory of our Constitution is that every citizen may speak his mind ... on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious." Even so, city council members have persisted with prior restraints on speech, and the university has encouraged them. It is deeply embarassing, and many RU faculty and student groups have spoken out about it.
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The Ordinance (Passed May 14, 2007)
Sec. 120-239. Additional Requirements for Radford University Recognized Student Clubs
and Organization Signs.An Organization Sign is any sign, flag, banner or other object used to identify a Radford University recognized student clubs or organization and are only permitted under the following conditions:
Flag requirements:
a. Flags must be located in the UD University / Business District or Business district (generally five (5) blocks east and west of the Radford University campus).
b. Flags shall not exceed 3-foot by 5-foot in size
c. Flag design and location must be approved by Radford University’s Department of Student Activities and the Zoning Administrator.
d. A maximum of one (1) flag per organization is permitted.
Display of Radford University recognized student clubs or organizations letters, banners, signs, etc, other than flags, are permitted only during special events under the following conditions:
a. Special events are limited to Radford University Homecoming, Rush, and Greek Week, and other events identified and agreed upon between the Department of Student Activities and the zoning administrator.
b. The location and type of displays must be approved by Radford University’s Department of Student Activities and the Zoning Administrator.
c. Letters, signs, banners, decorations, etc, may be hung on Friday before the event and must be removed by Sunday evening following the event.
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Letter to the City Council, April 25, 2007
Dear Radford, Va. City Council members,
This is to follow up my comments at the City Council meeting Monday about the proposed revisions to the zoning codes which include the section 120-239, which require that all flags and signs by university organizations in houses located off campus be approved in advance by both the city and the university.
It would be nice if this was simply a misunderstanding, so let me restate the effect of this ordinance. You are asking every student who has a message they want to write on a sheet and hang from a porch to get approval in advance of the content of that message. That would mean that even messages like "we support Virginia Tech" and "Go Hokies" on banners in front of a house would have to be approved in advance by at least two bureaucrats, one from the city and one from the state. Of course, no one in the city government will order a "Go Hokies" sign taken down. But theoretically they would have the power to do so, and, at their discretion, could very easily order any sign taken down whose content they simply dislike. In fact, this has happened many times in past months.
In other words, the ordinance attempts to give direct power of censorship (prior restraint) over citizen expression to university and city officials.
And, as someone familiar with law in this area, I have to tell you in no uncertain terms that you actually do not have that power. It is not yours to give. Moreover, this is the advice that you would get from most attorneys who are familiar with law in this area.
This is why the ordinance will probably be referred to a court. If previous case law is any indicator, as it almost always is, this ordinance will not pass constitutional muster.
In legal terms, the city's position is so extraordinarily weak that it would not surprise me if a case against this ordinance was simply won on motion of summary judgement. I would recommend seeking a diversity of legal viewpoints so that you know this memo is not written simply to undermine your city attorney, who Im sure is very competent in other areas.
What I find particularly annoying in all of this is the lack of any attempt by the city to provide any explanation whatsoever for a governmental interest, much less any "compelling governmental interest" as required by the law when government censorship is contemplated. It is also annoying that the city has enforced this ordinance for years even though it has never actually been on the books. This certainly does not demonstrate a good faith attempt to respect the rights of citizens.
And so, another point I wish to make in no uncertain terms, is that citizens do not check their constitutional rights at the city line, and that it is the duty of a city council to understand the law and not to embarrass its citizens.
It is true that the courts have long held that free speech is not an absolute right -- There are times when other rights and responsibilities prevail. However, in terms of direct censorship, these are extremely rare, such as on the front line of a war or when speech presents the possibility of "imminent action" towards violence.
On the other hand, instances of direct censorship which are, and have long been, unacceptable under Constitutional law include situations where viewpoints present something of a nuisance, or may be considered disorderly, or present points of view that are not popular. It is very clear to me that this is the situation in Radford.
In Black's Law Dictionary, we find this definition for Prior Restraint: "Any scheme which gives public officials the power to deny the use of a forum in advance of its actual expression. In constitutional law, the First Amendment of the U.S. Constitution prohibits the imposition of a restraint on a publication before it is published ... Any system of prior restraints of expression bears a heavy presumption against its constitutional validity, and the Government carries a heavy burden of showing justification for imposition of such a restraint... Prior restraints on speech and publication are the least tolerable infringement on First Amendment rights..."
Clearly government has not even begun to address this heavy burden, nor has it contemplated even our own state constitution's prohibition against prior restraint:
Sec. 12. That the freedom of speech and of the press are among the
great bulwarks of liberty, and can never be restrained ex-
cept by despotic governments; that any citizen may freely
speak, write, and publish his sentiments on all subjects,
being responsible for the abuse of that right; that the
General Assembly shall not pass any law abridging the free-
dom of speech or of the press, nor the right of the people
to peaceably to assemble, and to petition the government for
the redress of grievances.
The meaning of this provision is that publication must come first, without prior restraint, and that if any rules have been broken those offenses must be prosecuted AFTER THE FACT.
For example, obscenity, which is not protected by the First Amendment, can be restrained. On the other hand, libel, or invasion of privacy are prosecuted in civil court under rules based on the First Amendment, and these torts must be considered in the context of damage, intent and so on.
In simple terms, a crime has to be committed before it can be prosecuted. But in more complex terms, rules have to be clearly spelled out rather than interpreted on an ad hoc basis by a government censor.
In terms of history, the words of Justice Louis Brandeis In Whitney v. California ring true: "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.... No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. .."
Since this ordinance is about to be passed, I simply wish to restate my firm opposition to this ordinance and the hope that you will not embarrass yourselves or the city.
Sincerely,
Bill Kovarik
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The Phantom Ordinance: March, 2007. Further Notes on the history of this extraordinary controversy:
In Jan. 2006, Radford City Manager Tony Cox provided the following information when questioned about the policy of ordering Greek letters taken down from fraternity houses:
"The City code is hosted by Municode and there is a link on the front page of the city site http://www.radford.va.us/ the link is labeled "city code" and is on the center of the front page. Once you go to the Municode site, the zoning ordinance is chapter 120 and the signs are Article V." A Similar Example is http://www.municode.com/resources/gateway.asp?pid=11462&sid=46 ) Look at chapter 120 (Zoning) section 791 in Article V.
On examination, it turned out that there was absolutely nothing in the city code relating to Greek organizations. City officials then said that the rules were really created as part of an "informal agreement" between the city and the university.
The Radford University off campus housing policy, as of March 2007, continues to refer to the phantom ordinance (See http://www.radford.edu/~dos-web/OCSG.pdf page 12:)
Flags and Banners
City ordinance prohibits the hanging of signs and banners in residential areas, with very few exceptions. Those campus groups, including fraternities and sororities, that are interested in hanging flags and/or banners should contact the Office of the Dean of Students for more information. Students that choose to live in house used by a Greek organization need to be aware of the standards that have been set up by the City/University Joint Commission on Public Affairs concerning the display of flags, banners and signs that display letters.
Flags signifying Greek letters or symbols are permitted under the following conditions:
o Flags must be located in University Multi-Family or Busines zone (generally this area is five blocks east and west of the Campus)
o Flags shall not exceed 3 x 5 feet in size
o Flag design and location must be approved by the University
o Each organization is permitted one flag
Display of letters, banners, signs, etc. other than flags are permitted ONLY during special events under the following conditions:
o Special events are limited to Homecoming, Rush, and Greek Week
o The location and type of displays must be approved by Radford University
o Letters, signs, banners, decorations, etc. may be hung on Friday before the event and must be removed by Sunday evening following the event
Other than under these circumstances, signs are prohibited in residential areas Additional questions concerning the display of Greek letters can be
answered by the Greek Life Coordinator
This is almost the same language as the proposed city ordinance (above).
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Free speech on campus
Also: Additional notes and case law (below)
Feb. 2, 2006, Heth Lounge C, 1 pm.
Remarks by Prof. Kovarik
- A few weeks ago, as I walked to my first media law class of the semester, I was wondering how to illustrate the importance of freedom of religion, speech and press. This is a struggle that caught fire here in Virginia, in 1776, and it continues every day, all over the world, particularly against dictatorships like those in China, Cuba, Saudi Arabia and others.
- To illustrate the importance of these rights, I needed a local example of things that affected students.
- And as I walked, I noticed that the signs and flags with Greek fraternity and sorority letters that had been up all weekend were now down. I looked up the university’s housing policy, and I found it has almost a page of regulations about these off campus signs. So after taking the roll in class that day, I asked my media law students what they thought.
- Well, the room almost exploded. The students were seething with long-dormant anger. There were lots of comments about this and other speech related issues on campus.
- The students were also very interested in what I thought. After all, wasn’t this a contradiction of the First Amendment? I agreed, it seemed fishy.
- So I looked up the written policies. In the first place, Radford University’s student handbook expresses strong support for free speech. It is pure poetry. I certainly couldn’t have written a better one.
- Radford University is a community of scholars and learners in which the ideals of freedom of inquiry, thought, expression and the individual are sustained. With these ideals comes the responsibility of every student to hold him/herself to the standards of the Radford University community set forth in its policies.
- Unfortunately, the policy has exceptions, and some of these seem to be small but serious abridgements of the right of free speech. For example:
- As I mentioned, Greek letters cannot be displayed on frat and sorority houses off campus during the weekdays. The university off campus policy says this is due to a city ordinance, but I talked with the city manager and searched the zoning code, and it turns out, actually, there is no such ordinance. Its an informal policy agreement between RU and the city written into the off campus housing code at RU.
- Another big exception is that flyers and posters have to be stamped before they can be put up on bulletin boards. My understanding from Heth officials is that this is designed to ensure that RU student groups do not discriminate or solicit or promote drugs or alcohol. So if I were to ask for a stamp for a poster for a group that wants to change the laws about marijuana, or challenge the university’s disciplinary policies, such a poster might be turned down. It’s obvious censorship.
- Its also inefficient. For example, this past fall, an official RU student club promoting Christian Concerts was unable to get their posters up because the university took too long to stamp them; A similar Tech concert was better advertised here on the RU campus.
- During last year’s presidential election, campaign posters put up by registered student groups were taken down by RU employees.
- My understanding is that unofficial student groups cant put messages up. And its worth noting that many students have complained that the barriers to forming official student groups are quite formidable.
- Another big exception is our “Free Speech” zone – In this case, free speech comes with a long list of rules. You have to apply for a permit to demonstrate a few days in advance and there are lots of things you cant do anyway. The Rowdy Reds cant pass out pamphlets, for example, urging students to attend basketball games. This apparently followed complaints that the Gideons (!) were passing out Bibles (!) in the clock circle. (For more on Free Speech Zones, see this First Amendment Center article.)
- Student media at RU has been through a complicated set of problems, and I don’t have time right now except to say that the administration has tightly controlled the broadcast media and has really not tried to control print and online media at all. Ill be glad to expand on that if needed – I have been worried about the polices related to ROC TV.
- Overall, RU is a relatively tolerant place. I want to be sure we keep this in perspective. Generally speaking, I would give it a B- or C+ in terms of free speech compared to other campuses. And of course you don’t get dragged off to jail for criticizing the administration like dissidents in China, Cuba, Saudi Arabia and so on. So I’m not here to disparage the university. I don’t like the policies Ive mentioned above, but there are bigger problems out there, and generally, student media has a large measure of independence.
- But even a tempest in a teapot can be a teaching moment. Whether or not frat houses get to hang out their signs matters very little in the long run. But what does matter, a great deal, is that the spirit of freedom be fostered among students. When the lesson is acquiescence to bad rules, I want students to ask why. When the answer is that students have to surrender their primary rights to secondary concerns, lets encourage them to question, to petition, and to demand change.
- The bottom line-- straight from my patented Old Professor Lecture -- is this:
- The rights of American citizens are not given to them by the government. A person’s rights are not a privilege, like a drivers license. They are inherent, inalienable, natural rights. When it comes to Constitutionally protected freedoms, the government is here to protect rights, and not protect its own conveniences. And here the university is in the position of the government and the students are in the position of citizens. So even if it’s a little inconvenient to have pamphleteering and chaotic bulletin boards, that’s a small price for freedom.
- These rights are recognized by the Universal Declaration of Human Rights of the United Nations. (www.un.org/Overview/rights.html) (which article? Anyone know?)
- Constitutional law is a balance between rights of individuals against the needs of society for order and security.
- First Amendment / free speech rights are the most cherished individual rights and occupy what we call a legally preferred position.
- Only the most serious, grave threats to public safety or health justify abridgement of free speech rights.
- Only compelling state interests can justify time place and manner restrictions, and only if there are reasonable alternatives.
- Courts have consistently upheld this
- “The First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses....” said Justice Arthur Goldberg in the most important free speech case of the century, the New York Times v Sullivan case of 1964.
- “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years…" said Justice Abe Fortas in Tinker v. Des Moines Independent Community School District, 1969
- In the mid 19th century, John Stuart Mill gave us four reasons why silencing the expression of an opinion is a peculiar evil.
- A statement believed to be in error may in fact be true
- A statement in error may have a grain of truth
- The truth may not be understood but merely held as a prejudice
- And the collision of error with truth provides a clear and lively impression
- Since that time, we have discovered several more.
- The marketplace of ideas is a lot more efficient than authoritative systems; the Christian rock group’s experience trying to advertise their concert is a good example of that;
- Free people are more capable of mustering their will to survive, of acting independently for the common good. Saving private Ryan is a great example of that.
- And the lesson of that great movie is that people have sacrificed everything they had for our rights. They sacrificed so that we could be sitting here today. Let’s not let them down.
- Let’s keep keep asking questions, let’s protect our right of free speech, and the more we learn from the small lessons on campus, the more we can do this with the big issues on a global scale.
Prepared by:
Bill Kovarik, Ph.D., Professor, Dept. of Media Studies
With assistance from
Mike Hiestand, Staff Attorney, Student Press Law Center, Arlington, Va.
In this document:
Case Law in the area of student media rights
Rosenberger v Rectors of the University of Virginia (1995) A religious publication could not be denied student publication funding on the basis of its religious orientation. "A public university ... may not ... silence the expression of selected viewpoints... Viewpoint discrimination poses danger to First Amendment speech principles in (1) granting the state the power to examine publications to determine whether such publications are based on some ultimate idea and if so, for the state to classify such publications, and (2) chilling individual thought and expression; such danger is especially real in the university setting, where the state acts against a background and tradition of thought and experiment that is at the center of the nation's intellectual and philosophical tradition.."
PERRY ED. ASSN. v. PERRY LOCAL EDUCATORS' ASSN., 460 U.S. 37 (1983) -- With respect to public property that is not by tradition or government designation a forum for public communication, a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.
Healey v. James, 408 US 169, 180, (1972) the Court said that the First Amendment applies on college campuses with same force as elsewhere.
Bazaar v. Fortune, 489 F.2nd 255 (5th Cir. 1973) cert denied 414 US 1135 (1973) The university, as an arm of the state, could not make private publisher decisions about content and had infringed upon the free press rights of students when it denied distribution rights to an issue of the magazine.
Joyner v. Whiting, 447 F.2nd 456 (4th Cir. 1973) A university can't withdraw funding from a student publication due to content disagreements.
Papish v. Board of Curators at the Univ. of Missouri, 410 US 667 (1973) The Court said that even ideas offensive to good t aste could not be prohibited on a state university campus in the name of conventions of decency alone.
Stanley v. Magrath, 719 F.2nd 279 (8th Cir. 1983) University administrators can't punish students for content of a publication by withholding funds.
Tinker v. Des Moines Independent Community School District, 393 US 503 "It can hardly be argued that either students or teachers shed their constitutional rights at the schoolhouse gate."
Freedman v. Maryland, 380 US 51, 1965 Film did not have to be submitted to Maryland Board of Censors for review. Unanimous decision. Referring to Speiser v. Randall, 357 US 513, the court said: "Where the transcendent value of speech is concerned, due process certainly requires ... that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.... Only a judicial (rather than ex parte censorship decision) can ensure the necessary sensitivity to freedom of expression."
Muir v. Alabama Educational Television Commission, 688 F.2d 1033, 1982, also LEXIS 24813, cert. denied 1983, Several Texas and Alabama PBS stations refused to air the PBS docudrama "Death of a Princess" for fear of offending Saudis who funded university functions. The courts said there is no First Amendment right to compel government speech. "Standard First Amendment doctrine condemns content control by governmental bodies where the government sponsors and financially supports certain facilities through the use of which others are allowed to communicate and to exercise their own right of expression. Government is allowed to impose restrictions only as to "time, place, or manner" in the use of such public access facilities -- public forums.... If the state is conducting an activity that functions as a marketplace of ideas, the Constitution requires content neutrality. Thus, a state university may not override editorial freedom for student newspapers."
Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016 (5th Cir. 1972), Here the federal court adopted the following test for determining whether a public facility is a public forum: "Does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance."
Case law salient quotes concerning the First Amendment and the Campus
"The First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses.... The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious." -- Supreme Court Justice Arthur J. Goldberg, in concurrence with the New York Times v. Sullivan decision, 1964
"That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." -- Supreme Court Justice Robert H. Jackson, West Virgina v. Barnett, 1943
"First amendment rights, applied in the light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years." -- Justice Abe Fortas, Tinker v. Des Moines Independent Community School District, 1969
"Standard First Amendment doctrine condemns content control by governmental bodies where the government sponsors and financially supports certain facilities through the use of which others are allowed to communicate and to exercise their own right of expression. Government is allowed to impose restrictions only as to "time, place, or manner" in the use of such public access facilities -- public forums.... If the state is conducting an activity that functions as a marketplace of ideas, the Constitution requires content neutrality. Thus, a state university may not override editorial freedom for student newspapers." -- Second Federal Circuit Court of Appeals, Muir v. Alabama Educational Television Commission, 1982
"Vital First Amendment speech principles are at stake here. The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and if so for the State to classify them. The second, and corollary danger is to speech from the chilling of individual thought and expression. That danger is expecially real in the university setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." -- Justice Anthony Kennedy, Rosenberger v. Rector and Visitors of the University of Virginia, 1995.
Definitions (from Black's Law Dictionary)
Censorship "... prohibiting the publication, distribution or production of any material deemed objectionable as obscene, indecent or immoral."
Prior Restraint: "Any scheme which gives public officials the power to deny the use of a forum in advance of its actual expression. In constitutional law, the First Amendment of the U.S. Constitution prohibits the imposition of a restraint on a publication before it is published ... Any system of prior restraints of expression bears a heavy presumption against its constitutional validity, and the Government carries a heavy burden of showing justification for imposition of such a restraint... Prior restraints on speech and publication are the least tolerable infringement on First Amendment rights..."
Obscene "Objectionable or offensive to accepted standards of decency. Basic guidelines for a trier of fact in determining whether a work which depicts or describes sexual conduct is obscene [are] whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole lacks serious literary, artistic, political or scientific value."
Indecent. "Offensive to common propriety; offending against modesty or delicacy; grossly vulgar; obscene; lewd; unseemly; unbecoming; indecorous; unfit to be seen or heard... Indecent publications -- Such as are offensive to modesty and delicacy; obscene; lewd; tending to the corruption of morals. See Obscene."
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"That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them." Sec. 2, Constitution of the State of Virginia