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Frohnmayer Revises Insurgent Statement

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.




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.

  1. Bryan says:

    Earle, it was you– not I– who made your education a
    part of this discussion
    . Sure, you\’ve done more impressive things than I. But I\’d be more impressed if you had done your reading, and you haven\’t. If you had been reading the Commentator, you\’d already know why I feel entitled to refrain from falling over when somebody invokes his military service. You don\’t read the Commentator, do you? From what silly blog decrying how they\’re hating on Christians at your alma mater did you link to this story in the first place, this long after the controversy\’s blown over? Have you read the issue of the Insurgent under discussion?

    I made a point of addressing a specific point of contention that you raised. You made a point of blathering on with nonsense, then following it with \”I hope this adresses your concerns.\” You presented yourself as a possessor of a law degree, and then you revealed a gross misunderstanding of both the protections of the First Amendment and the manner in which SCOTUS decisions are interpreted, resorting to ALL CAPS in the process. And you misspelled \”pornographic\”. And you misused the present tense of the verb \”choose\”. I make no pretention of being a Constitutional scholar. I read it from time to time, and I read about SCOTUS decisions, but some people I know can school me around the block on the subject, and they do so when required.

    Earle, Oregon does not have the hate speech laws that California has. No state has the hate speech laws that California has. The hate speech laws of California are probably unconstitutional. And even under the hate speech laws of California, the Insurgent would never be prosecuted for hate speech as a result of the content of the issue under discussion. You should probably already know that.

  2. Niedermeyer says:

    “it could be that Frohnmayers reluctance to come down hard on the Insurgent is as much based in politics as in the law”

    The idea that Frohnmayer has a political agenda which includes promoting the values espoused by the Insurgent is, frankly, preposterous. The addendum to his initial statement seems fairly obviously to be strictly legal in nature.

  3. Timothy says:

    Yes, the Frohn lacks courage because he refuses to stifle opinions he finds distasteful. There are a lot of reasons not to respect Frohnmeyer as an administrator, but that certainly isn’t one of them.

  4. Earle says:

    Spoken like a true Duck, Andy. You got that right about my committment to my country. What I meant to say was that I completed my MILITARY committment to my country. If they need me back now, then we are in deep trouble. I enjoyed the discussion with you guys. Hate speech is a cutting edge issue just like abortion. It will be interesting to watch its development. Go Ducks. Earle

  5. Andy says:

    Well first off thank you for serving in the Marines Sir,

    but I must disagree with your premise that, “The issue of free speech versus hate speech prohibition are both issues with worthy objectives ( to promote a meaningful exchange of ideas) that require balance in the law

  6. Earle says:

    For Timothy –

    A good substantive response on the issue. But we will have to agree to disagree because I believe the Supreme Court decisions left Frohnmayer wiggle room to defund the Insurgent. Sure, the University might be sued but it might win, and regardless, it would send a message to future students that while the University of Oregon promotes free speech it does not tolerate hate speech.

    For Andy:

    Frohnmayer certainly has access to legal advice. And,I believe he was more than a district attorney. I believe he was attorney general for the State of Oregon. And, he was, also Dean of the U. of O. law school. But many universities prohibit hate speech, and they have legal advisors, also. So the only differerence between them and Frohnmayer is courage. Or in Frohnmayer’s case, the lack thereof.

    The issue of free speech versus hate speech prohibition are both issues with worthy objectives ( to promote a meaningful exchange of ideas) that require balance in the law’s approach to them. Both are, also, political issues and it could be that Frohnmayers reluctance to come down hard on the Insurgent is as much based in politics as in the law. Otherwise, why do think Frohnmayer modified his initial response to the Insurgent controversy?

    Andy, if you don’t plan to change the system from within, as you said, how do plan to change it – join Al Quieda?

    For Bryan:

    Your approach to engaging in this discussion is to attack me personally which is indicative of your ignorance of this issue. But in response to your personal attacks let me tell you something which ordinarily would be none of your business.

    At the University of Oregon I majored in history under the bachelor of arts program. I was anticipating going to law school so my advisor was law professor Linde, now on the Oregon State Supreme Court. I was accepted at U.C.L.A. School of Law, one of the top law schools in the country, currently ranked 15th in the nation. I dare say that most of the law students at the U.of O. law school couldn’t even get into U.C.L.A. School of Law.

    At the time, I was, also, in the United States Marine Corps Reserve as a First Lieutenant. After finishing my second year of law school at U.C.L.A I was called to active duty by the U.S. Marines. I served in Vietnam for 13 1/2 months and was promoted to Captain. On my return from Vietnam I served as company commander at MCRD San Diego.

    Having fulfilled my commitment to the Marines and to my country I decided I did not want to be a lawyer and attended the two year MBA program at the University of Southern California. Upon receiving that degree I entered the business world beginning with IBM Data Processing.

    Later in life I decided I wanted to complete my third year of legal education so as not to leave something I started unfinished. To do that I enrolled at Newport University. Newport University is a correspondence school approved by the California State Bar, one of the toughest bars in the nation. In law school all of your bar tested courses are taught in the first two years. Your third year is mostly electives and is really only about increasing your units for graduation. So by that time you really don’t need a professor to guide you in your study of the law. Newport University allowed me to adjust that final year of my legal education to my work schedule while saving me money for tuition.

    Now, Bryan, since you think the quality of education is so pertinent to this discussion perhaps you would like to expound on the quality of your education and life experience.

  7. Bryan says:

    Newport University was developed as an alternative to the traditional institutions of higher education for those persons who have been unable to experience college-level learning for various reasons. From its founding in 1976, the University has been committed to a credo that each individual is a unique and diverse person, and that society will benefit to the extent that each individual is able to add to the societal pool of talent and competence if given the opportunity to develop personal skills and knowledge.
    — from that school’s website

    In hindsight, I’d like to apologize for that *teachable moment* business. I was giving Earle too much credit.

    Earle, you have clearly not done your reading. It would be a tiresome and fruitless endeavor to address the many points on which your understanding falters.

    Andy: laughing stalk? That is really, really rich.

  8. Andy says:


    Actually free speech isn’t my primary forte. I’m more interested in the 2nd Amendment and tyrannical governments.

    The Frohn was a district attorney, and I’m sure with the size of the budget of this University he has a reasonable legal staff which has come across the issue of free speech many a time. Also, you should check out the FIRE website because they have won many a case defending any and all forms of speech, and while all should be tested for their constitutionality, sometimes it takes a long time for that to happen and peoples rights are unjustly oppressed.

    I definitely will not be attending law school for in my short life I have learned that the system cannot be changed from within the system.

  9. Timothy says:


    One more time Earle, the key issue regarding mandatory fee funding is viewpoint neutrality. Because Oregon’s fee is mandatory without an opt-out option disbursement of the fee must be conducted in a viewpoint-neutral manner. The rule established in Rosenberger and extended in Southworth isn’t “viewpoint neutral except for ‘hate speech'” or “viewpoint neutral except for opinions Earle doesn’t like”.

    Even if you’re arguing that the Insurgent cartoons fall under one of the non-protected areas of speech (fighting words, obscenity) the viewpoint-neutrality rule established by Rosenberger and Southworth still applies fully. Unless the Insurgent violated any part of the rules in the Green Tape Notebook or Student Conduct Code, which both the ASUO Constitution Court and the ASUO Programs Administrator determined (rightly) that they did not there isn’t legal recourse for defunding.

  10. Earle says:

    For Andy –

    First of all, all the laws of this land all have to pass muster under the U.S. Constitution. And, that is what Southworth is about, isn’t it? That is, whether a university can constitutionally allow a student to withhold state funds out of his tuition which might otherwise go to campus newspaper, with which he disagrees. That is the legal issue of that case. That is all it is about.

    That case does not address any other facts. The key facts are STATE FUNDS; UNIVERSITY; and WITHHOLD. So, all that other stuff that you mention may be true but it is IRRELEVANT. The decision of any written case opinion whether it is that of a court of appeals or the U.S. Supreme Court applies only to the facts of that particular case and is precedent only for subsequent similar facts. It is not precedent for any other set of facts.

    The issue raised by the Insurgent’s pornagraphic display of Jesus Christ on the Cross is not whether the Insurgent has the constitutional right to engage in such hate speech. Of course it does. But the issue here is whether the University of Oregon can set standards of conduct for the students at the University. And, in doing so whether it can withhold state funds from students that violate those standards. There is nothing in the Southworth decision that prohibits Frohnmayer from doing that because that case did not address hate speech. In short the court has yet to render a decision on the set of facts raised by the Insurgent incident.

    Now as far as the Insurgent staff is concerned those people are of no concern to me. They are just a few punks trying to get attention by destroying rather than creating, and they deserve to be ignored. But the official stance of the University of Oregon to allow such speech to be funded by the University does bother me. That’s because it is indirectly sanctioning such speech.

    I doubt if the stance of the University would be as benign towards the Insurgent if the hate speech had addressed a minority ethnic group or religion. But, since it addressed a majority religion it seems that the University has taken the stance that it is O.K.

    Andy, since you seem to like these kind of discussions maybe you will choose to go to law school and then you will have a better appreciation of what I am saying. In legal terms the facts of the Insurgent incident can be DISTINGUISHED from the Southworth case. Therefore that case does not preclude Frohnmayer from withholding funds from the Insurgent for distributing hate speech. Beyond that, sure, the Insurgent staff can constitutionally go out in public with their hate speech and make asses of themselves. The only price they will pay for that is social rejection. However, the University shouldn’t fund such hate speech.

    As a law student, if you become one, you will IRAC cases. That is you will define the issue; state the rule of law; and analyze whether the rule should be applied to the facts at hand. Then you will come up with a conclusion.

    With regard to the facts raised by the Insurgent incident the Rule of law in the Southworth case does not apply because the Southworth case did not deal with hate speech. The facts of Southworth and the Insurgent incident are DISTINGUISHABLE. That left Frohnmayer with room to act, which, to his discredit, he choose not to do.

    Best regards, Earle

  11. Timothy says:

    Earle: Instead of wasting our bandwidth rehashing conversations from months ago, you could research the complete picture of the issues surrounding speech and fee-funded groups at publically funded universities. Southworth is not the only case that exists in the matter.

    Southworth established that so long as there existed mandatory student fees used to fund speech disbursement of those fees had to be done in a viewpoint-neutral manner. Neutral with respect to the views expressed by the fee-funded group in question, that is. It eliminated funding via student ballot measure, because voting isn’t exactly viewpoint neutral. There can be established criteria for receivership, but they cannot include requirements on the views held or espoused by the group in question. However, it does leave open the possibility of opt-out fees. If a fee can be opted out of, the university seems free to establish whatever criteria they wish.Rosenberger first established the viewpoint neutrality as an extension of the Lamb’s Chapel case.

    We do live in the unfortunate world post Hazelwood and Hosty. Hazelwood is quite possibly the worst student speech related decision ever to come down from SCOTUS. It essentially established that a principal of a highschool is the de facto publisher of any student journalism produced in the school and, as such, could censor the paper. In Hosty the 7th Circuit determined this same standard could apply to fee-funded student publications (unless the publication is a “designated public forum”, but simply. SCOTUS refused to grant cert.

    Taken together this means, somewhat nonsensically, that a university can, in fact, censor student journalism prior to their publication but cannot take retributive action in the form of defunding the publication in question. Essentially, as I understand things, they have to give you the money regardless of what your opinion is, but they can censor you. The part of Southworth I think you failed to grasp, was the bit about defunding as a result of their viewpoint being a no-no. The ability to censor falls apart in the case of designated public forums. At the University of Oregon, last I was aware, all of the student publications are such.

    And here, I believe, we’ll probably reach an impasse. Being that I don’t believe there is such a thing as “hate speech” that exists seperate from other forms of speech. Other than direct threats, I don’t think that there is any legitimate reason to punish people for whatever garbage happens to come out of their mouths. I mean, does it really matter, why some idiot beat up a weather station or some innocent passerby? Not really. And pardon if I get a bit terse, but you’re not the first statist to come through this neck of the woods, I doubt you’ll be the last, and it’s the same thing over and over.

    No, you can’t defund them for speech because fee disbusement has to be viewpoint neutral. Yes, if the publication is not a designated public forum the university can censor it. Yes, at the UO all of the student publications as far as I know are designated public forums. It’s tiresome as all hell.

  12. Andy says:

    The laws of this land are not all equal. Many states do not recognize “hate speech” because its definition is so subjective. Your state, California, in particular is in gross defiance of the constitution on many levels and fronts. Here is a good synoposis from the FIRE-

    “There is no constitutional exception for so-called hate speech. The First Amendment fully protects speech that some may find offensive, unpopular, or even racist. The First Amendment allows you to wear a jacket that says

  13. Earle Richmond says:

    For Ian: The First Amendment has limits. For example a person can be liable for defamation; a person can be prosecuted for obscenity if it violates the community standard; a person can be prosecuted for revealing State secrets; a person cannot lie to a police officer or a federal agent; a person cannot lie in court; a person cannot use speak out to disrupt a classroom or a legal proceeding; a person cannot use a loud speaker under certain circumstances.

    However, the issue here is: does the First Amendment preclude a university from setting standards of speech for student papers funded out of student fees. The Southworth case only addressed the facts of a student refusing to pay a proportion of his fees for on-campus publications. The Supreme Court said the Student could not withhold those funds. It stated the purpose of its ruling was to futher the free exchange of ideas among students.

    However, the facts of Southworth did not deal with hate speech such as appeared in the insurgents pornographic depiction of Jesus Christ on the Cross. In fact allowing that type of hate speech does nothing to further the objective of the Southworth decision, to wit, furthering the free exchange of ideas among students. In fact such hate speech has the tendency to bring any discussion of the substantive issue to an abrupt halt. In that regard, the hate speech in the insurgent diverted any meaningful discussion about Christianity to a discussion about hate speech.

    Therefore, until the Supreme Court says otherwise a University can preclude hate speech in its on campus publications. And, many universities do just that.

    For Timothy: Instead of wasting everyone’s time with personal insults against me, why don’t you address the issue. What was it in the Southworth case that you think I didn’t comprehend?

    For Andy: We are not talking about hate speech in general, are we? We are talking about the right of a university administration to set standards prohibiting hate speech in on campus publications funded by the state. So to answer your question, a universtiy in California or anywhere else in the United States has the right to prohibit such speech.

    As for my example of connecting hate speech to a crime, that was to point out that hate speech is not protected by the First Amendment under certain circumstances. One is while committing a crime. Another is in an on campus student publications funded by the state. At least not yet, because Southworth didn’t address those facts.

    For Bryan: I hope my above comments address most of your concerns.

    Thanks all for taking the time to respond.

    B.A. – University of Oregon
    MBA – University of Southern California
    JD – Newport University School of Law including 2 years at U.C.L.A. School of law

  14. Bryan says:

    We\’ve invoked the notion of the *teachable moment* a few times in relation to this topic here at the Commentator, so in that vein, without disagreeing with any of the above comments, I\’d like to suggest that it\’s counterproductive to get testy with our friend Earle.

    Earle, I don\’t know everything about California\’s hate crime legislation, but I understand it\’s more comprehensive than that of any other state in the Union. Maybe there\’s good reason for that. However, I also understand that the legislation there in your state is so unevenly enforced that people across the state can\’t really be certain what the standard is. The fact remains that if a person were convicted of a hate crime in your state, it would usually be a matter of someone having committed an act of violence and/or vandalism, or perhaps, depending upon the county or other type of jurisdiction, the proven incitement thereof. Nothing of the kind has ocurred in relation the matter under discussion. Not a single person has been hurt or threatened. In fact, within the pages of the issue of the Insurgent to which we refer, an approximation of the phrase \”I/we do not hate Christians\” appears at least once.

    Mind you, this is not a defense of the merit of the Insurgent\’s argument, but rather a defense of its legality.

    Furthermore, regardless of the wording of the law itself, it is highly improbable that any resident of California would ever be convicted of a crime merely for words he or she said, in vocal word or in print, unless it could be proven that some criminal act aside from said utterance bore some relationship to the speech act in question.

    Hypothetically speaking, were a person to be convicted of a hate crime in the state of California merely for words he or she said, and if the convict had the wherewithal to ride the case all the way to the Supreme Court of the United States, I\’d bet dollars to doughnuts on any day that under any SCOTUS panel within our lifetime(s), past or future, left-tilting or right-, such a person would be cleared of all wrongdoing and California\’s law would be overturned on Consitutional principles. And that is the way it should be.

  15. Andy says:

    So what was the crime the insurgent commited earle? What happens if there was no crime but hate speech in cali?

  16. Timothy says:

    Well, Earle, maybe you ought to try understanding the Southworth decision. I mean, it’s nice that you can read and all but that whole comprehension thing might help.

  17. Ian says:

    And this invalidates the First Amendment because…

  18. Earle Richmond says:

    I have read the Southworth opinion and I don’t believe, for a minute, it condones hate speech or requires Universities to allow it in student funded publications. In California our penal code distinguishes between hate crimes and ordinary crimes. Hate crimes are ordinary crimes accompanied by hate speech. That accompanying speech can dramatically increase the penalty for the crime.

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