[Note: Entry has been dated forward to remain at the top of the page until January 2005]

Dear Programs Finance Committee Members,

I dont think you are aware of the delicate ground you began to tread upon when you rejected the Oregon Commentators mission statement. The word “unconstitutional” gets tossed around a little too often by laypersons, but that is where we are headed here. Indeed, I am stunned, because I’m seeing cases I studied just two weeks ago in Constitutional Law II come to life before my eyes. As a representative of the Commentator, Id just like to share my own thoughts and analysis about the situation in hopes of persuading you to change course and respect our right to free expression.

Altogether now: viewpoint neutrality!

The Programs Finance Committee, acting on behalf of the Oregon State Board of Higher Education, is, as a program to facilitate extracurricular student speech, required by the First Amendment to fund student groups engaged in speech on a viewpoint-neutral basis. Board of Regents v. Southworth, 529 U.S. 217, 221 (2000). This means it cannot consider the views expressed by the Commentator in making decisions about our organizations funding.

Even if the Commentator has engaged in any form of unprotected speech, it is not the PFCs job to make this judgment. To our knowledge, the PFC hasnt taken steps to secure a legal opinion about our content from the Universitys General Council, but even that would not suffice. Absent a legal judgment (civil verdict or conviction) in a court of law that we have made specific utterances of unprotected speech, the PFC has no business saying what our expressions are or are not. As my Constitutional Law Professor, Garrett Epps, often quips, Who died and made you Pope? A judgment by the PFC that our content enjoys no First Amendment protection or is not culturally advantageous is an act of viewpoint discrimination.

Be that as it may, it may be worth asking, does any of our speech fall into one of the categories unprotected by the First Amendment?

Hate Speech? What’s Hate Speech?

Oregon has no statute criminalizing hate speech. Whatever the PFC might conceive it to be, it is not illegal, unprotected speech. I dont think I can stress that enough. The Supreme Court ruled a hate speech statute unconstitutional in R.A.V. v. City of St. Paul, even if it was restricted in its application to the already unprotected category of fighting words. 505 U.S. 377 (1992). The Court held that prohibition[s] of fighting words that contain messages of bias-motivated hatred impermissibly discriminate against a particular class of fighting words on the basis of viewpoint. Id. Thus, even a judgment that we have engaged in fighting words would have to be viewpoint-neutral.

Fighting Words and Related Offences

Fighting words are those which by their very utterance (a) inflict injury, or (b) tend to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). It bears noting that the Supreme Court has not upheld a single fighting words conviction in the 62 years since Chaplinsky. In Oregon, the closest statutory offenses to the traditional crime of fighting words are Menacing and Intimidation. A potential application of each of these statutes is analyzed below.

ORS 163.190. Menacing.

(1) A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.

Any allegation that our published content falls under the definition of menacing is doomed to fail for two reasons. First, the law requires intent. I can assure you, flat-out, that it has never and will never be our intent, as a publication, to place another person in fear of serious physical injury. Second, the law requires that the serious physical injury be imminent. Given that we publish anywhere from every two weeks to every month or so, and that, after publishing, the magazine must be distributed, picked up, and actively read before any person could attain from our words a fear of serious physical injury, the requirement of imminence is simply impossible to meet.

ORS 166.155. Intimidation in the second degree.

(1) A person commits the crime of intimidation in the second degree if the person:

(c) Intentionally, because of the person’s perception of race, color, religion, national origin or sexual orientation of another or of a member of the other’s family, subjects such other person to alarm by threatening:

(A) To inflict serious physical injury upon or to commit a felony affecting such other person, or a member of the person’s family; or

(B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

As with menacing, any allegation that we had engaged in intimidation even in the second degree would falter immediately on the requirement of intent. Further, it is a long logical leap to construe any of our published statements as threats to inflict serious physical injury, or to commit a felony, or to cause substantial damage to the property of any person.

Incitement and related offenses

Speech is incitement if it is directed to inciting or producing imminent lawless action and is likely to do so. Brandenburg v. Ohio, 395 U.S. 444 (1969). First, this definition requires that we speak with intent to incite lawless action. Again, we dont. Second, it requires that the lawless action be imminent. And again, due to the time delays in publishing, distribution, and consumption, we do not have the capacity to incite imminent action of any kind. The Brandenburg case involved videotaped statements made on an isolated farm and later broadcast on television. This illustrates well Brandenburgs requirement of imminence. Finally, Brandenburg requires that our speech be likely to incite lawless action. How likely is it that a reader will read our magazine and as a direct result take it upon themselves to break the law, other than perhaps to be inspired to engage in underage drinking?

The only Oregon law that comes under the realm of incitement is essentially a traditional falsely shouting fire in a crowded theater statute:

ORS 166.025. Disorderly conduct.

(1) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:

(f) Initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency.

Since we havent knowingly initiated or circulated false reports of any alleged or impending fire, explosion, crime, catastrophe or other emergency, we have steered well clear of incitement. Although arguably we have made statements alleging the commission of a crime, these were made in quite obvious jest and therefore not asserted as fact. Further, none was ever made with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.

Harrassment under the University of Oregon Student Code of Conduct

Offenses 571-21-030

(19) Harassment on University property or at University-sponsored or supervised activities, because of another person’s race, color, gender, national origin, age, religion, marital status, disability, veteran status, or sexual orientation, or for other reasons accomplished by:

(b) Specifically insulting another person in his or her immediate presence with abusive words or gestures when a reasonable person would expect that such act would cause emotional distress or provoke a violent response.

Although, unlike state laws, the schools definition of harrassment lowers the culpability requirement from intention to negligence, it is nevertheless drafted quite narrowly, and in such a way that nothing the Commentator prints could reasonably be found to fall within the definition. It requires insults in a persons immediate presence with abusive words. Abusive is not elsewhere defined, but the important point is that no printed speech is made in the immediate presence of the receiver.

Furthermore, to the extent that the Student Conduct Code exceeds the traditional categories of unprotected speech under the Constitution, it should not be applied to our content.

Speech-related torts

Any objectionable statements we have made were either parody or criticism of campus public figures. Therefore, it must be proven by clear and convincing evidence that we knowingly made false statements of fact, or recklessly disregarded the truth or falsity of such statements. Hustler Magazine v. Falwell, 485 U.S. 46 (1988). If we have made assertions of painfully obvious untruth in an effort at parody, proving these to be assertions of fact would be a difficult undertaking. Thus Jerry Falwell failed to recover damages from Hustler for an ad parody suggesting he had had drunken sex with his mother in an outhouse. Its just that difficult.

Summing up

All of this analysis of possibly unprotected speech is, again, merely a thought experiment. It is our steadfast contention that the PFC acts improperly when it determines, of its own accord, that some of our speech does not enjoy the constitutional protection of viewpoint neutrality. That determination is not the PFCs to make and it is an act of impermissible viewpoint discrimination. The legal status of our speech can only be determined in a court of law.

Sincerely,

Daniel Atkinson

Publisher & Member of Board of Directors
Oregon Commentator

Second-year law student
University of Oregon

This entry was posted on Saturday, January 15th, 2005 at 18:03 by danimal and is filed under Magazine Update. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.