Aroused Jesus just can’t get no love. We’ve had Bill Donohue, aghast at his improbable bright red erection; we’ve had Bill O’Reilly go so far as to call for Frohnmayer’s head over the matter. Now we have an Action Alert! from – it was only a matter of time, really – the American Family Association.

There is a new angle here: the AFA is protesting the depiction of Jesus as a homosexual. (They also seem to be implying that the Jesus-on-cross-with-boner image falls into this category, which is baffling.) Money quote:

The Insurgent would never show a naked graphic of the Rev. Martin Luther King kissing another man, both sporting erections. But offending Christians was of no concern to the Insurgent or to University President Dave Frohmayer. [sic]

Thanks, American Family Association. Thanks for that image. I just snarfed my coffee.

Anyway, brace yourselves for another wave of incoherently angry protestors. Ain’t we got fun?

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.

Sincerely,

Dave
Frohnmayer

President

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.

A number of people have emailed us recently asking what the controversy surrounding the Insurgent is all about. We’ve had a number of posts going into detail about the issue and its accompanying brouhaha, so here are the important ones:

• Most importantly, we posted a .pdf of the issue here. (Note: link contains picture of the Insurgent’s cover, which many find offensive.)
• After the Insurgent released its controversial issue, the University suddenly remembered that student groups were not eligible to use the University’s bulk mailing rate.
• UO Student Zachary White was the first to file a grievance against the Insurgent. Here‘s the first post of our coverage on that, and here‘s our coverage of when the ASUO ruled against him.
• Soon enough, Bill Donohue of the Catholic League learned of the Insurgent’s issue and began complaining.
• The Commentator’s own Tyler Graf (who appeared on the O’Reilly Factor tonight) wrote a guest commentary in the Daily Emerald, the UO’s campus daily.
• And just yesterday, the ASUO once against ruled in favor of the Insurgent, by turning down the “Students of Faith” group’s grievance.
• And here are the first five pages of the newest Insurgent issue. They’ve been scanned in by hand, but we included the parts relevant to the controversy surrounding their previous issue.

NOTE: For those of you just tuning in, the Insurgent and the Commentator are two different publications. We are conservative/libertarian. The Insurgent is anarcho-syndicalist/marxist/crazy. We find this situation funnier than they do.

Well, as those of you who saw tonight’s Factor know, Bill O’Reilly came out against President Frohnmayer for his failure to take action against the Student Insurgent. The Commentator’s own Tyler Graf was on the program and bravely defended the Insurgent’s right to publish whatever they wish, even if they always seem to end up wishing for some combination of humorless anarchist ranting, tinfoil-hat conspiracy theories, and pictures of Jesus with a hard-on.

The ODE has a news article up about the Factor’s coverage:

[Tyler] Graf also conceded to O’Reilly that the images may have been intentionally offensive but argued that Frohnmayer had no legal ability to shut down the publication.

Frohnmayer agreed.

“Tyler is totally right,” Frohnmayer said. “Bill O’Reilly doesn’t know the first amendment from the back of his own hand, which is a shame because he takes full abuse of it.”

Mr. O’Reilly was, unfortunately, on the wrong side of this issue. While President Frohnmayer has his faults as University president, he has absolutely no say and, legally, no course of action to be taken on this particular issue. The unanimous Southworth Supreme Court decision of 2000 set the precedent that University administrations may not defund or otherwise punish fee-funded campus publications in a non-viewpoint neutral fashion. In other words, when it comes to campus media it is all or nothing: either you allow every sort of publication to be funded by the University or you allow none. From Southworth:

When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others. There is symmetry then in our holding here and in Rosenberger: Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.

Fortunately or unfortunately, this same decision also forbids universities from holding referenda on student groups, thereby preventing the student body from voting on which programs they’d like to be funded. The ASUO, voice of the student body though it putatively is, also acts as an arm – a tiny, shrivelled arm, but an arm nevertheless – of the state government.

The Commentator’s position has, for many years, been that no campus publication should be funded by the incidental fee, and neither should a lot of other things. We’d prefer it that no student on campus had to pay for the Insurgent, the Voice, the Siren, the Daily Emerald, or even the Commentator to publish political speech. Students come to the University of Oregon to take classes, not fund speech they disagree with. Of course, there are educational benefits (of the “here’s what not to do” variety, but still) to having publications like the Insurgent around, even when they publish offensive things. Indeed, as Tyler Graf pointed out in an ODE guest commentary, this very incident could be a teachable moment. But ultimately, at least in my mind, students value their hard-earned dollars more than they value offensive, teachable moment-creating speech.

Whatever the case, Tyler Graf was absolutely correct when he said that the decision was out of Frohnmayer’s (and Goward’s) hands. Could the President have handled the situation better? Yes, absolutely. But he should not be fired for not ignoring established Supreme Court precedent. As for the Insurgent, the more people get to read their Aroused Jesus issue, the stupider they look. Allowing them to keep publishing is the legally correct decision, and it’s a reminder of an important moral principle – but in the long run, it’s also the most fitting punishment of all.

That’s Mr. Tyler Graf on The Frohn just now. O’Reilly is, like expected, completely ignorant of the relevant case law. And he’s giving Jethro a lot more time. I sort of wish that we’d gotten “viewpoint neutrality” out there, or maybe a plug for the website, but overall nice job Tyler.

The Commentator crowd will be convening at Rennie‘s at 5:00 to watch Tyler Graf defend free speech on The O’Reilly Factor. Advance word is that Billy is calling for Frohnmayer’s head. It’ll be a party– join us!

Also: due to this engagement, we may be a few minutes late for tonight’s 6:00 meeting. So if you’re showing up for that, just hang out– we’ll be back to the office soon.

Now that we know Tyler is going to be on O’Reilly tomorrow, I just thought I’d wish him luck and leave him with the words of John Stuart Mill for inspiration:

(more…)

Eugene Volokh, of the eponymous Conspiracy and UCLA Law, tackles the Insurgent/SoF mini-debacle:

In any case, cheers for the University of Oregon, and a mild Bronx cheer to the Students of Faith. I understand why they’re offended, and I understand that undergraduates can’t be expected to know the ins and outs of First Amendment jurisprudence. But if you’re making assertions about First Amendment law — as the students were doing in their grievance — then you ought to check them with a First Amendment lawyer. And if you’re making arguments for why certain speech should be excluded from university-supported publications, it would help to think harder about the implications of those arguments for speech besides the sort that has made you angry in this particular case.

I know the Students of Faith have been claiming the support of five (?) local attorneys. I’m not sure what legal basis they were/are asserting for their challenge, but I’d be very interested to hear more about it.

I’ve just been booked on the O’Reilly Factor for tomorrow, where I’ll be discussing the Insurgent’s Christ-Penis debacle, as well as Frohnmayer’s handling of the situation. Joining me will be someone from Students of Faith, the ad hoc student group whose petition calling for an open apology from the Insurgent was recently rejected by David Goward. Surely this will be must-see television.

UPDATE by Ian: Just a quick reminder, the Factor‘s on at 5:00 and 8:00pm PST on Eugene Comcast channel 48.

ASUO Programs Administrator and Bureaucrat David Goward today announced that he has ruled against the “Students of Faith,” a group created “in response to the recent escalation of religious intolerance at the” UO. Their basic contention is that the Student Insurgent published images and articles which slandered Jesus Christ and that this somehow violates school policy. Goward rightly points out that the publication of offensive images does not affect any student’s educational or professional access:

The Student Insurgent did not practice discrimination. Although students may have been offended by the content, no privileges or opportunities were denied to any incidental fee paying student through the publication of the Student Insurgent. Nor did publication affect a student’s ability to practice her or his religion.

Goward also touches on Southworth:

Decisions regarding awarding incidental fee revenues to and use of incidental fees by student groups must be viewpoint neutral as cited in Soutworth v. University of Wisconsin “We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.” Except to determine if the publication contributes the physical and cultural development of students, decisions regarding award of incidental fee revenues may not be based on content.

Overall it’s a good, well-written decision. (A 42k .pdf of the ruling can be found here)

There are two pieces about the Insurgent’s cartoons in the Daily Emerald today. The first is the prerequisite reaction to reaction Editorial. To their credit, the ODE Gets It Right:

The ASUO and University should, under no circumstances, have the power to censor student publications. This was clearly established last year during the Oregon Commentator’s battle with the PFC when members of student government and the public tried to have the publication defunded for printing “hate speech.” The ridiculous irony is that members of The Insurgent staff spoke in favor of defunding the publication.

Pira Kelly, former Insurgent contributor, participated in a rally last year to encourage the administration to “take responsibility” for hate speech on campus after the PFC decided to fund the Commentator (“Students protest hate, discrimination” ODE, Feb. 18, 2005).

The point of the student incidental fee is that everyone may end up paying for something they do not support as long as it contributes to the cultural environment and marketplace of ideas at the University, a concept clearly established by the U.S. Supreme Court. Further, labeling any language “hate speech” is tricky business. The Insurgent’s sudden reversal in position from protester to protested demonstrates this perfectly.

Indeed. Of course, the gem of today’s paper is an excellent guest commentary by the Commentator’s own Tyler Graf:

Before spring break, our publication published an editorial lamenting the U.S. media’s inability to properly deal with the Mohammed cartoon controversy, which occurred several months after Danish newspaper Jyllands-Posten published a number of political cartoons featuring the Prophet Mohammed. We did this to put the controversy into context and educate the public. In our editorial, we mention that President Bush squandered a “teachable moment.”

Perhaps, at the University, our own mini-brouhaha will engender a teachable moment — a moment of clear, undiluted resoluteness: Speak freely, but don’t be a jerk. Or perhaps this moment will make us all realize how devalued the word “discrimination” has become, as the Zachary Whites of the world continue to believe that crudely drawn pictures of Jesus sporting a giant pink erection — images viewed primarily by Oregon’s prison population — are discriminatory. Or perhaps it will teach some members of the University community that free speech is an idea worth fighting for, and that it is ultimately intended to protect that which offends or goads.

As Glenn Reynolds would say, read the whole thing. (Oh, and the ODE appears to have inserted a superfluous comma into the second sentence of the second paragraph. The draft Tyler showed me a few days ago was grammatically correct, so I don’t know why they changed it.)

As Ian noted below, Total Choice has gotten us back up and running. He’s also provided a new link to the Insurgent .pdf. The file is unfortunately large (9 megs and change) and all the excess traffic sucked up all of our bandwidth in a matter of days. Our usage generally runs about 2-5 gigs a month, this episode spiked it to 10.63 as of this morning, with more on the way I’d guess. To keep us up and running, even with the no-charge doubling of our hosting for the rest of the month (Thanks Total Choice!), we needed to cut down the size of files going across the server.

To that end I’ve replaced the Insurgent .pdf that was hosted on the OC site with a .pdf that says “HOTLINKING IS THEFT. STOP STEALING.” After I get off of work today I’ll update it to include something a little more polite, and the new URL for the “controversial” issue of The Insurgent. Again, I apologize for the inconvienience, but the website needs to stay up and a 461k file is a lot safer for us than one that’s 9 megs.

That said, thanks to everyone who’s been linking to us. Ian did a great job putting together the Insurgent issue for the web, and we certainly appreciate the attention here at the OC Blog. If you’re new, take a stroll through the archive, read a back issue or two, have a drink, do some coke off of Stevie Nicks, kick your feet up, and relax. And, just FYI, we’re far more Reason than we are NRO.

UPDATE: Rude .pdf replaced with this one (and it’s only 23k!)

I apologize for our earlier downtime tonight. This morning we were using 44% of our 10gb monthly bandwidth allotment. By 9:30 PM, we were at 110% of our quota and our hosting provider promptly restricted access. We’re back up for the moment and the Insurgent .pdf is now being hosted at a different location.

The WorldNetDaily story Ian pointed to has been updated with a quote from an unnamed Frohn-spokesman:

I share your concern about the offensive nature of the content contained within the [Insurgent].

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.

The best response to offensive speech often is more speech. … 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.

Well, at least nobody had to issue thinly veiled threats of legal action to get a quote out of them this time. That’s progress, right?

UPDATE by Ian: The Register-Guard also has a story concerning the images in today’s paper.

WorldNetDaily, America’s Most Trusted News Source, has an article about Catholic League President Bill Donohue’s efforts to complain to UO President “John Frohnmayer.” Donohue has apparantly learned of the Student Insurgent’s recent issue and, angry at a depiction of Jesus and a friend “sporting erections,” has now directed his ire towards our fair state. My popcorn is on hand.