2008 Woodie Awards
Lula: First Amendment Protects Even Vulgar Attacks on Officials
Karolina Lula, op-ed columnist
Issue date: 12/19/05 Section: Opinion
This semester, more than ever, the Observer has been criticized for its content. Specifically, the column "Weird and Probably Not True" by Anthony Diaz has been criticized for its sleazy jokes and what is perceived as lewd and defamatory content. Those who defend Mr. Diaz would argue that his column is clearly a satire that is comparable to a hard-hitting political cartoon. Has Mr. Diaz exercised his First Amendment right that guarantees the freedom of speech and the freedom of press? But most importantly, how much freedom do public college campus publications have?
The freedom of press has a long legal history. The government cannot enforce prior restraint, that is, the power to review something and keep it from being printed or broadcast. Anyone in power might want to dissuade the public from criticizing their policies. Courts have ruled that the danger we would suffer is far greater than the danger if some untruth came about.
In Near v. Minnesota (1931), the U.S. Supreme Court decided that the freedom of the press must be free from prior restraints on publication. In this case, the Saturday Press, a paper comparable to the National Enquirer, was run by a semi-racist who hated the government in St. Paul. When the paper began investigating municipal corruption, the city leaders sued him. The lower courts issued a permanent injunction prohibiting him from ever writing anything malicious, defaming, inflammatory, and scandalous. The Supreme Court, however, recognized that Minnesota law, which targeted scandalous newspapers, violated the First Amendment.
The critics of the Observer will argue that public higher education newspapers are not protected in the same way that a professional newspaper would be protected by the First Amendment. These critics would say that in Hazelwood School District v. Kuhlmeier (1988), the court ruled that high schools are not public forums. This means that although there is room for individual expression, officials have a right to monitor this expression and suppress any speech that it believed violated the purpose of this forum. There is a conflict between the freedom of speech of students and the responsibility of the schools to maintain order and a peaceful learning environment.
The court, however, did not decide whether the ruling is applicable to colleges and universities. And if a college newspaper is recognized as an open public forum, it has greater protections against administrative censorship.
Colleges and universities have in the past used prior restraint to block school publications that they did not believe were appropriate. In other instances, the student editorial staffers were punished for the content of the newspaper. The Sixth U.S. Circuit Court of Appeals ruled that Hazelwood is applicable to colleges and universities. In Kincaid v. Gibson (2001), the administration of a university decided not to distribute a student-published yearbook because they did not like its design and format. The Sixth Circuit County recalled the decision of the First Circuit Court in Student Government Ass'n v. Board of Trustees of the University of Massachusetts (1989). In that case, the court ruled that all journalists were not created equal: college newspapers are more free to exercise freedom of speech and press than high school papers.
While some courts rule that a public college or university might have to seek the advice of a faculty member on form and style, the content of the newspaper is free to the discretion of the student editors. The student newspaper is a public forum for the discussion of issues facing the campus and the Newark community.
Our First Amendment rights are never as strong as they are in the case of satire. In Hustler vs. Falwell (1983), the Supreme Court's decision strengthened free speech rights in regards to the lampooning of public figures. Hustler Magazine, already known for its lewd humor and pornographic content, ran a parody of prominent Protestant minister Jerry Falwell. It was a fake advertisement of Campari, a popular alcoholic beverage, in which Falwell was depicted having a drunk, incestuous encounter with his mother in an outhouse. Needless to say, Falwell found this anything but funny and sued. The court ruled that "the State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved."
The Founding Fathers created the First Amendment with the intent to protect satire. Specifically satire clearly attacking government officials. Many people believe that the notion of libel and the First Amendment are in direct conflict. It will always be in the self-interest of an embarrassed politician or a public figure to try to stop the publication from releasing what is perceived to be "defamatory" information.
If the disclaimer-like name of the column - "Weird And Possible Not True" - is not enough to indicate that the column is written in jest, then Mr. Diaz must be banned from writing and his tongue must be promptly removed so that he may no longer create any "libelous" utterances. And if the target of Diaz's ire find the satire to be so credible that it defames, then those criticized should look at themselves in the reflection provided by the writing and do some serious soul-searching.
Columnist Karolina Lula is an NCAS political science and economics major and a junior senator in the SGA. Full disclosure: Lula ran on the same slate as Anthony Diaz in the spring 2005 SGA elections.
The freedom of press has a long legal history. The government cannot enforce prior restraint, that is, the power to review something and keep it from being printed or broadcast. Anyone in power might want to dissuade the public from criticizing their policies. Courts have ruled that the danger we would suffer is far greater than the danger if some untruth came about.
In Near v. Minnesota (1931), the U.S. Supreme Court decided that the freedom of the press must be free from prior restraints on publication. In this case, the Saturday Press, a paper comparable to the National Enquirer, was run by a semi-racist who hated the government in St. Paul. When the paper began investigating municipal corruption, the city leaders sued him. The lower courts issued a permanent injunction prohibiting him from ever writing anything malicious, defaming, inflammatory, and scandalous. The Supreme Court, however, recognized that Minnesota law, which targeted scandalous newspapers, violated the First Amendment.
The critics of the Observer will argue that public higher education newspapers are not protected in the same way that a professional newspaper would be protected by the First Amendment. These critics would say that in Hazelwood School District v. Kuhlmeier (1988), the court ruled that high schools are not public forums. This means that although there is room for individual expression, officials have a right to monitor this expression and suppress any speech that it believed violated the purpose of this forum. There is a conflict between the freedom of speech of students and the responsibility of the schools to maintain order and a peaceful learning environment.
The court, however, did not decide whether the ruling is applicable to colleges and universities. And if a college newspaper is recognized as an open public forum, it has greater protections against administrative censorship.
Colleges and universities have in the past used prior restraint to block school publications that they did not believe were appropriate. In other instances, the student editorial staffers were punished for the content of the newspaper. The Sixth U.S. Circuit Court of Appeals ruled that Hazelwood is applicable to colleges and universities. In Kincaid v. Gibson (2001), the administration of a university decided not to distribute a student-published yearbook because they did not like its design and format. The Sixth Circuit County recalled the decision of the First Circuit Court in Student Government Ass'n v. Board of Trustees of the University of Massachusetts (1989). In that case, the court ruled that all journalists were not created equal: college newspapers are more free to exercise freedom of speech and press than high school papers.
While some courts rule that a public college or university might have to seek the advice of a faculty member on form and style, the content of the newspaper is free to the discretion of the student editors. The student newspaper is a public forum for the discussion of issues facing the campus and the Newark community.
Our First Amendment rights are never as strong as they are in the case of satire. In Hustler vs. Falwell (1983), the Supreme Court's decision strengthened free speech rights in regards to the lampooning of public figures. Hustler Magazine, already known for its lewd humor and pornographic content, ran a parody of prominent Protestant minister Jerry Falwell. It was a fake advertisement of Campari, a popular alcoholic beverage, in which Falwell was depicted having a drunk, incestuous encounter with his mother in an outhouse. Needless to say, Falwell found this anything but funny and sued. The court ruled that "the State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved."
The Founding Fathers created the First Amendment with the intent to protect satire. Specifically satire clearly attacking government officials. Many people believe that the notion of libel and the First Amendment are in direct conflict. It will always be in the self-interest of an embarrassed politician or a public figure to try to stop the publication from releasing what is perceived to be "defamatory" information.
If the disclaimer-like name of the column - "Weird And Possible Not True" - is not enough to indicate that the column is written in jest, then Mr. Diaz must be banned from writing and his tongue must be promptly removed so that he may no longer create any "libelous" utterances. And if the target of Diaz's ire find the satire to be so credible that it defames, then those criticized should look at themselves in the reflection provided by the writing and do some serious soul-searching.
Columnist Karolina Lula is an NCAS political science and economics major and a junior senator in the SGA. Full disclosure: Lula ran on the same slate as Anthony Diaz in the spring 2005 SGA elections.