2010 Muzzle Awards 

The year's 10 worst crimes against the First Amendment

This year’s Jefferson Muzzle Awards, an annual tradition from the Charlottesville, Va.-based Thomas Jefferson Center for the Protection of Free Expression that recognizes the previous year’s most egregious acts of disregard for the First Amendment, are steeped in two key points.

One is that whatever venue or means or incentive a government provides for expression, it should allow all opinions equal access. Governments can’t create a vanity license plate program, for example, only to rule that some words should be squelched. They can’t offer incentives to movie producers and then capriciously decide that some films are unworthy of support based on their content. As Robert M. O’Neil, the director of the TJ Center, says, “Unless very unusual circumstances warrant different treatment, the presumption is that all those similarly situated should be treated comparably.”

Second, censorship evolves with culture and technology. That doesn’t mean it goes away or worsens, say O’Neil. “Those who seek to restrict free speech or free press may be increasingly ingenious but we could not comfortably generalize that the state of free speech has become better or worse over time. It’s simply different.”

Different how? Here’s a look at the 2010 Muzzles.




Oklahoma Tax Commission

Keith Kimmel, 28, applied for a vanity license plate in Norman, Okla., that read, "IM GAY." The Oklahoma Tax Commission, which oversees the Motor Vehicle Division's cash-cow program, turned down the request because it prohibits plates that "may be offensive to the general public."

Kimmel cried foul and filed suit this February. "I want to tell people who I am and what I am," he told local news media. "I'm openly gay. What better way to tell everybody than to put it on the back of a car?"

The Tax Commission retorted that license plates remain state property, "not the private billboard for the person to whom they are issued." But the commission had permitted other state license plates to proclaim "STR8FAN" and "VIBR8R" and admitted it had no standard policy.

This apparent caprice, observes the TJ Center, "is almost a textbook example of what the First Amendment does not permit. Government officials cannot create an open forum for the public at large to express itself but then only allow the expression of messages that they approve." The Muzzle is "for administering the state specialty license plate program in a viewpoint discriminatory fashion."

Whatever happens in the courts, Kimmel will never get his plate. Tulsa police arrested Kimmel at a gay bar March 27 and brought him to a hospital. Kimmel formally complained that the police had insulted and beaten him; he was found dead at a friend's home on April 2, the cause of death still undetermined.

Virginia Department of Corrections

Virginia's prison inmates can't do many things: enjoy evening strolls around the neighborhood, have weapons in their cell or listen to religious sermons on CD. Kyle Mabe found that out the hard way when he requested a free copy of Life Without a Cross from a ministry in Kentucky.

Mabe was beginning his sentence at the St. Brides Correctional Facility in Chesapeake, Va., and when he requested the CD last September, he was told, "You can receive only music CDs, no sermons on CDs." When Mabe filed a complaint, he was rebuffed. The reason? An earlier memo from the Department of Corrections (DOC) Deputy Director that prohibited audio recordings of anything other than music. Lady Gaga's "Bad Romance" would be a go, but Great Expectations a no.

Mabe filed more grievances and appeals until he was told at the end of October, "You have exhausted all administrative remedies." That's when the Rutherford Institute, a civil liberties nonprofit based in Charlottesville, stepped in. In February 2010, it sued various DOC officials on Mabe's behalf for hindering "his exercise of his Christian religious beliefs."

It was not the first time the Rutherford Institute had challenged the State Department of Corrections. In 2009, the DOC shut down the Books Behind Bars program. The 20-year-old program delivers donated books to prisoners, most of whom want dictionaries, the Bible or the Qu'ran. When Books Behind Bars volunteers most likely failed to remove a paperclip and a CD from some books, the DOC accused the program of establishing a conduit for contraband. Rutherford stepped in, news media picked up the story, and a month later the DOC relented.

Mabe's lawsuit may have had a similar effect. In a letter to the TJ Center, DOC Director Gene Johnson stated, "Effective June 1, 2010, inmates will be able to order religious spoken word CDs in the same manner as they order music CDs." Although the DOC won't comment on current lawsuits, spokesman Larry Traylor writes, "all policies are ultimately the responsibility of the Director and the Director does not fashion or change policy based on anything but law, security and other legitimate concerns of the operation of a large agency such as the Department of Corrections."

In deliberating on this Muzzle, the TJ Center concedes prisons "should and do have the authority to prohibit prisoners' access to information that could cause disruption or create a risk of physical harm." Yet the sermon Mabe requested doesn't pass that litmus test. Hence, the Muzzle is awarded "for violating an inmate's constitutional rights of free speech and religious freedom."

U.S. Rep. Alan Grayson

As if prosecuting terrorists, closing Guantanamo and investigating threats against sitting governors weren't enough for U.S. Attorney General Eric Holder, Congressman Alan Grayson, D-Fla., wanted him to pursue a taunter.

In a four-page letter to Holder in December, the Democratic congressman requested that the Justice Department prosecute Republican Angie Langley for parodying his website, congressmanwithguts.com. Grayson's red, white and blue site features a video montage of Howard Dean and others praising the congressman's toughness. Langley's site, mycongressmanisnuts.com, apes the style but adds a symbolic streak of yellow. Her video montage begins with Grayson trying to stop someone from videotaping him.

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Grayson should have a soft spot for parody. On the House floor, he caricatured the Republicans' idea of health care reform as "Don't get sick, and if you do get sick, die quickly." Yet Grayson alleged Langley's parody was "fundamentally dishonest and fraudulent" not because Grayson is or isn't nuts, but because Langley lived outside Grayson's congressional district. Hence, "my" was clearly a lie. "I am not her Congressman," Grayson wrote, "and I have never been her Congressman." Grayson wanted her to serve five years in prison and pay a fine.

"The right to criticize public officials without fear of government reprisal is a fundamental component of the First Amendment," says the TJ Center. "As such, elected officials should both expect and tolerate criticism." Grayson gets the Muzzle for urging extreme action "against a vocal critic for alleged violations of Federal Election law that, even if true, represent minor transgressions."

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