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Walk Out Reaction & Amended Insurgent Resolution

Student Senator Dallas Brown has a guest commentary in today’s Emerald decrying the walk out his fellow senators staged. In it, Brown claims that fellow Senator Wally Hicks created a resolution which “makes significant arguments regarding a question that ultimately encompasses the entire purpose of student government.” That question being, of course, whether or not student government can punish a student publication for its content. A .pdf copy of that resolution, which was to be introduced at the 5/24 meeting but was tabled since it was submitted late, can be found here. Here’s an excerpt:

At no point has the Court indicated that to remain “viewpoint neutral” the ASUO is compelled to fund any and all funding requests that come before it. Therefore the Court has permitted the ASUO to exercise some kind of standard to reject requests for funding or to reconsider its prior awards. The Rosenburger Court provides guidance that the requesting program must contribute to the mission and goals of the university. The inference therefore is that the body which governs the incidental fee (the ASUO) has the discretion to decide whether the level of a group’s contribution is sufficient to warrant the award of incidental dollars.

Southworth also states, “it is not for the Court to say what is or is not germane to the ideas being pursued in an institution of higher learning.” Southworth, at 232. The Court has therefore left the question of what is germane to the university’s mission and goals to be decided by the school itself. By extension the ASUO therefore retains that discretion through its mandate to govern the incidental fee.

To summarize our position, the Supreme Court’s requirement of “viewpoint neutrality” permits the ASUO to de-fund the Insurgent if it judges that the group does not contribute to the mission and goals of the university.

This is a rather limited interpretation of Southworth, and it’s surprising that someone as bright as Hicks wouldn’t see that this would essentially eliminate the meaning of the term “viewpoint neutrality” thanks to two loopholes:

  1. The mission and goals of a University (or student government) can be interpreted in an extremely liberal fashion. If a student senate was filled with religious conservatives, for instance, what would stop them from decreeing that a publication geared towards homosexuals did not help the “physical and cultural development” of that university’s students? And anyway, this University’s own mission statement says that one of its guiding principles is “the conviction that freedom of thought and expression is the bedrock principle on which university activity is based.” That is hardly a ringing endorsement of censorship.
  2. It also seems that Hicks attempts to separate the University administration from the ASUO, thereby empowering student government in an area which Southworth explicitly says the University administration must remain neutral. The ASUO and University administration cannot, however, be separated since the ASUO must have approval from UO President David Frohnmayer on final budgets and consult him if there are any major administrative or personnel modifications to student groups. As the Clark Document states:

    Responsibility for the administrative structure, personnel administration, and reporting relationships of major programs funded by student incidental fees resided within the University Administration. Any recommendations for realignment of major programs or other considerations of what constitutes optimal reporting relationships should be the outcome of proper consultation and wide support between student government and the University President. Such modification requires approval of the President.

    Consequently, any action the ASUO takes in regards to funding is, in effect, an action taken by the University administration. If the ASUO but not the University President were allowed to defund groups based on legal content, then the UO President would, in effect, be able to defund groups based on content since he or she could withhold approval of final budgets until the offending groups were disciplined. The two entities are simply too entwined to have their rights legally distinguished from each other in this case.

Despite this, Brown does make a very valid point near the end of his commentary:

The ultimate irony is that all but one of the dissenting senators approved of the agenda (my discussion item included), defending the right for us to present. Somewhere among the many recesses throughout the night, these senators were influenced to walk out of the meeting without even giving an excuse for their departure.

Indeed, the motion to add the debate (and not the resolution) to the agenda passed overwhelmingly, with Sara Hamilton (who later walked out) seconding it. And then a number of these same Senators decided to walk out rather than participate in the discussion they had voted for. What’s the deal?

  1. Matt P. says:

    Haha. It’s been beat around already I’ll bet. Countless times. I’m out for now though….

  2. Miles Rost says:

    FINALLY! Someone brings up Miller v. California.

    It’s done, everyone. Let’s go and work on other things.

  3. Meghann says:

    I’m a lawyer, but I charge a looooooot of money. If y’all want my advice you’re gonna have to PAY.

  4. Timothy says:

    I wonder if Hustler v. Falwell is at all germaine here. As far as I understand it Falwell claimed that the Campari ad in question served no literary, artistic, political or scientific purpose.

  5. Matt P. says:

    PPS. I know I’m not a lawyer either. I’m just curious.

  6. Matt P. says:

    Fascinating points, Wally. And fantastic research as well, very much enlightening.

    The Obscenity points are perhaps the most intriguing. These tend to flip back and forth in the Courts as well, I have noticed from my little experience. (Justice Potter Stewart’s 1964 “I know it when I see it” is probably amongst the most hilarious of Supreme Court “definitions.”) If I can recall correctly, Miller v. California was one of the major landmarks of the “definition of pornography,” although more recent decisions have backed off to some degree. The Burger Court defined it as (from the Miller opinion):

    “(a) whether the ‘average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,

    (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

    (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (483 U.S. 24-25, which actually is quoting Kois v. Wisconsin and Roth v. United States in (a).

    It goes on to recommend that the states define obscenity standards in statute, and lays out some “sample guidelines,” which is pretty ambitious of the Court. Down on page 26, they clarify that the tests may be self-cancelling: “At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.” (ibid.) But a lot of the meaning of “obscenity” is left up to the states to define more explicitly. Nonetheless, there may be an argument there, although the precedent is nowhere near as clear as Southworth, as far as I can tell.

    The argument for cutting a portion of their funding rather than outright closing down the paper is also interesting. It might be a little bit of a loophole. It’s worth thinking about.

    I hadn’t really thought of the obscenity argument, so Wally’s research is most interesting in that regard as it does provide a new legal perspective. Either way, I think that would be a tough case for the ASUO and, especially, the Frohn. There may, however, be an argument there with some legal validity, and that’s noteworthy.

    PS. I know Wally isn’t trying to censor the Insurgent either. I’m not sure anyone really is at this point, save for O’Reilly.

  7. Niedermeyer says:

    To save myself from a reighteous bitch-slap from Andy for posing as a lawyer, let me just say that the fact that there were 5 different editorials (one by each member of the Collective) presenting a wide range of reactions to the cartoons within the issue itself. Having you know, read the issue in question, I guess I just don’t understand how you can really claim they were not trying to stimulate debate.

    Oh, and Andy… deep breaths buddy

  8. Ian says:

    And the level of discourse drops about six notches in the space of a post…

    For God’s sake Andy, he isn’t pretending to have a perfect legal opinion on the matter. He is providing more background for his argument and he’s said that he isn’t going to further pursue the Insurgent. Did you even read what he wrote?

  9. Andy says:

    Hey Wally,
    Where did you get your JD from again?

    Not that I’m questioning your rational approach to the topic, which is surely commendable considering the performance of your peers.

    The problem I have with your approach is you are attempting to violate the writer’s of the insurgent rights. This may seem slightly idealistic to you, but your completely unqualified legal opinion, and thereby worthless research, is advocating that several of your peers, the Frohn, and the UO to become liable in a federal lawsuit.

    Maybe you just have a secret agenda and would love to see the UO substantially harmed by such a case – but I believe most here do not.

    Say some case was decided on your premise that censorship of obscenity is permissible – then more damage will been done to free speech in this country, and for what? For a coerced apology from a bunch of shit-for-brains?

    With your mindset Wally, you’ll be a perfect advisor for the next totalitarian regime.

  10. Wally says:

    (QUALIFIER: I consider this issue to have been decided and I harbor absolutely no intention of further pursuing the Insurgent).

    Yeah after I had a chance to research some more I discovered that you were right about the ASUO being held to the same standard as Frohn and the government. Its not just because of the Clark document though, the Supreme Court actually says so. And some other things (contact me if you want actual case references):

    -The Court treats the ASUO the same as the university administration and the government in general, so I was wrong about that piece. But it really doesn’t make a difference because either way we arrive at the same viewpoint neutrality requirement.

    – Viewpoint Neutrality is a subset of Content Neutrality. Decisions based on the viewpoint of the group (as opposed to decisions based on the ASUO’s viewpoint) are never allowed. Recommend looking at ( for the most succinct explanation I (credit to Toby) have found. Our argument centered on the interpreted requirement that the group must contribute to the university’s mission. No question that argument is assailable, but we thought it was at least worth debating.

    – Decisions based on content are in fact permitted under certain circumstances. Generally the administration can limit content when it interferes “to a substantial and material degree with the requirements of appropriate discipline in the operation of the school.” (American Law Reports). The issue was published two months ago and the U of O is still educating students so I don’t think the interference was “substantial and material”. But I throw that out there to add another dimention to the content-based argument.

    – If the ASUO/university cut the Insurgent’s funding, that might be constructive censorship, but if it straight shut the Insurgent down or banned it from campus that would likely be presumed censorship and would at that point invoke a First Amendment question. Even so, the university/ASUO has the power to censor in several situations. Obscenity is one of them, but its such a wild card that they would never want to hinge a case on it. Besides, this only comes into play after the university or ASUO shuts the Insurgent down, and we know that would never, ever happen.

    – I don’t know the basis of O’Reilly’s argument, but President Frohnmayer is not legally compelled to do anything. He can only be legally directed if he initiates action (eg. he shuts the Insurgent down, and court tells him to open it back up).

    Also from American Law Reports:

    “Thus, a number of courts have held that, totally aside from the First Amendment, regulation of the student press may be sustained on the basis of the student writers’ gross disobedience of, or disrespect towards, school or college officials or regulations, it not being necessary to consider the student writers’ actions in the light of whether the rules or regulations they were accused of violating were constitutional or not.” 16 A.L.R. Fed 182.

    So if by publishing the March issue the Insurgent actually did violate something in the conduct code, it seems plausable that the Administration/ASUO could take regulatory action. Also from ALR:

    “Courts likewise appear generally to favor the view that schools and colleges may prohibit obscenity in student publications, although the courts, as in other situations not related to the student press, cannot agree on what obscenity is.”

    So if its obscene, its probably not protected from administrative action. With Roberts, Scalia, Thomas, and Alito on the bench, I would hesitate to assume anything right now with regard to obscenity. Obscenity is always arguable to some degree or another.

  11. Matt P. says:

    Excellent post, Ian. I was just about to ask if anyone knew where I could get a copy of the Brown-Hicks amended resolution.

    Brown and Hicks, in my opinion, make the most logical argument so far in support of censoring the Insurgent. They go beyond trying to stretch inapplicable case law like Tinker or simply being angry and calling for Frohnmayer’s head in ignorance of all legal considerations.

    Nonetheless, I think the argument is fundamentally flawed, both legally and on principle. Hicks, in the resolution, asserts that the Insurgent can be de-funded based on the intent of the cartoons to provoke:

    The Insurgent

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