The 2013 Muzzle Awards 

The worst crimes against the First Amendment

Since 1992, The Thomas Jefferson Center for the Protection of Free Expression has celebrated the birth and ideals of its namesake by calling attention to those who in the past year forgot or disregarded Jefferson's admonition that freedom of speech "cannot be limited without being lost."

The annual Muzzles are awarded on the anniversary of Jefferson's birthday as a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment.

Because the importance and value of free expression extend far beyond the First Amendment's limit on government censorship, acts of private censorship are not spared consideration for the dubious honor of receiving a Muzzle.

Unfortunately, each year the finalists for the Muzzles have emerged from an alarmingly large group of candidates. For each recipient, a dozen could have been substituted. Further, an examination of Muzzle recipients reveals that the disregard of First Amendment principles is not the byproduct of a particular political outlook but rather that threats to free expression come from all over the political spectrum.

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1. The Annville-Cleona School Board

The Dirty Cowboy is an illustrated children's book that tells the tale of a cowboy who goes down to a river for his annual bath, undresses, and instructs his dog to watch his clothes while he bathes. When he emerges from the river the cowboy smells so clean that his dog doesn't recognize him and won't let him have his clothes back. The remainder of the book chronicles the cowboy's travails as he seeks to reclaim his clothes, getting dirtier in the process. Although the cowboy is depicted without his clothes, the drawings never actually show him nude. The whimsical illustrations cleverly block the cowboy's "private parts" with various images including a boot, a flock of birds, a frog and more. Written by Amy Timberlake and illustrated by Adam Rex, The Dirty Cowboy has received numerous awards and accolades, including the Parent's Choice Gold Medal, the Golden Kite Award and the International Reading Association Notable Book award.

Not everyone is a fan of the book, however. In spring 2012, the parents of a student in Pennsylvania's Annville-Cleona school district objected to the book being in the elementary school library for fear it would teach children that "looking at nudity is okay and not wrong" and that "pornography is okay too." Acting on their objection, the Annville-Cleona School Board deemed the book inappropriate for young children and voted to remove The Dirty Cowboy from the elementary school library. The removal received national media attention. The American Library Association, the National Coalition Against Censorship and an online petition signed by more than 300 local parents and taxpayers urged the board to reconsider its action.

Although the complaining parents have every right to express their opinion, to equate a children's book containing no sexual or salacious content with "pornography" demonstrates a fundamental misunderstanding of the term. And while many people do find depictions of nudity objectionable, they should not have the right to impose that view on others in the community—particularly when, as here, there is not a single depiction of nudity! Ultimately, what the school board found to be inappropriate for young children was nothing more than the suggestion that people typically don't wear any clothing while taking a bath.

School administrators and board members have incredibly difficult jobs due in part to the variety of constituencies they serve. Rarely, if ever, will their decisions or actions receive universal support. But the Annville-Cleona School Board serves a broader constituency than just those who agree with its decisions. As stated by the American Library Association in a letter to the school board on this matter, "the school library has a responsibility to meet the needs of everyone in the school community—not just the most vocal, the most powerful, or even the majority. If a parent thinks a particular book is not suitable for their child, they should guide their children to other books."

In taking the extreme step of removing the book from the library, the Annville-Cleona School Board ignored the views of many in the community that they serve, the many awards the book has received, and the opinions of the American Library Association and other professional organizations. In so doing, the board essentially declared that there is only one "reasonable" view on the book's appropriateness for children.

click to enlarge A school board in Pennsylvania removed this book—about a cowboy who loses his clothes—from an elementary library when parents complained it would teach children that “pornography is okay too.”
  • A school board in Pennsylvania removed this book—about a cowboy who loses his clothes—from an elementary library when parents complained it would teach children that “pornography is okay too.”


2. Prague High School Principal David Smith

Prague, Okla., is a quiet town of fewer than 2,200 people, located about an hour east of Oklahoma City. The school district proudly calls itself "the home of the Red Devils," a fact evidenced by the district's official school logos: a snarling Satan for the high school and a mischievous, demonic imp for the middle and elementary schools. Of all the things that might raise eyebrows in such a Hades-happy hamlet, saying "hell" would figure to be pretty low on the list. Yet, that's exactly what happened when the high school's valedictorian, Kaitlin Nootbaar, uttered that word in her commencement speech.

Nootbaar was describing to her fellow classmates and their guests how she had initially wanted to be a nurse, then a veterinarian, but when asked now, could only reply: "How the hell should I know? I've changed my mind so many times."

Principal Smith, who had previously approved an advance copy of Nootbaar's speech that used "heck" instead of "hell," was so angered by the switch that when the straight-A student stopped by to pick up her diploma last August, he refused to release it to her until she wrote a formal letter of apology to him, the school board and all of her teachers. Kaitlin and her parents felt that she had done nothing deserving of an apology and complained to the school board. Superintendant Rick Martin sided with Smith, stating that "the high school principal requested a private apology for her transgression before releasing her diploma. His request was both reasonable and in keeping with established federal case law interpreting the First Amendment."

Martin's assessment of constitutional law is debatable. But even if he were correct, the withholding of Nootbaar's diploma would still be deserving of a Muzzle. It is difficult to see how the use of the word "hell" in a speech at this school—where the mascot is El Diablo himself and the students are known as the Red Devils—could be called inappropriate. Nootbaar's only sin was departing from her approved script. If Smith felt that such a minor transgression nevertheless warranted some sort of reprimand, he could have done so by any number of less drastic means.



3. Oklahoma City Public Schools Board of Education

When 5-year-old Cooper Barton showed up to kindergarten one day wearing a University of Michigan T-shirt, the die-hard Wolverines fan had no idea that his shirt—navy, with "The Big House" in bright gold letters—violated a section of the district's dress code prohibiting "Clothing bearing the names or emblems of all professional and collegiate athletic teams (with the exception of Oklahoma colleges and universities)." Upon discovering the offending T-shirt, the principal of Wilson Elementary instructed the kindergartener to go behind a tree on the playground and turn his shirt inside-out.

Although the U.S. Supreme Court has held that the First Amendment permits public school officials a significant degree of discretion in regulating the expression of students during school hours, such discretion is not absolute. School officials are not permitted, for example, to impose policies that purposely discriminate on the basis of viewpoint. In a letter to the Thomas Jefferson Center, the Oklahoma City Board of Education defended the policy, stating its purpose had nothing to do with promoting Oklahoma colleges over their counterparts in other states. Rather, the policy was born out of a concern for student safety. "It is a fact of life that gangs and gang colors are an unfortunate fact in America today ... The intent of the policy was to address this concern ... At the time of conception, no gangs reportedly employed the primary colors of our two state schools."

The eradication of gang violence in Oklahoma schools is without question a laudable goal, but it does not fully explain this provision of the school district's dress code. For one, the policy says nothing about permissible colors, only "names" and "emblems." Furthermore, Oklahoma has 27not two"state schools" with a color palate rivaling a jumbo box of Crayolas.

click to enlarge Prague High School valedictorian Kaitlin Nootbaar had her diploma withheld by her principal for using the word “hell” in a commencement speech.
  • Prague High School valedictorian Kaitlin Nootbaar had her diploma withheld by her principal for using the word “hell” in a commencement speech.

Public reaction to the incident was swift and overwhelming. Perhaps realizing that its treatment of Barton was likely unconstitutional, the school board quickly suspended enforcement of its "home teams only" policy. A task force was convened to develop a revised dress code, but as of May 2013nine months after the incident took place—no action has been taken and the policy remains on the books.

As for Cooper, he became something of a folk hero among Wolverine fans. When the University of Michigan heard about his ordeal, the Barton family was invited to a home football game where they were honored on the field at halftime before more than 100,000 fans. The school also presented Cooper with a custom-made two-sided Michigan T-shirt—just in case.



4. The North Carolina General Assembly

When North Carolina legislators enacted the School Violence Prevention Act in 2009, their intent was clear. "The sole purpose of this law," they said, "is to protect all children from bullying and harassment." Now, thanks to a 2012 amendment, that same act could be used to go after students accused of bullying their teachers or other school officials on the Internet.

The problem is twofold. First, the act treats the same speech differently depending on where it appears. A student who vents against a teacher in the cafeteria is unaffected by the law, but identical comments made online could subject him to discipline, including—depending on his age—fines or imprisonment. As noted by the ACLU of North Carolina: "students have been complaining about their teachers for as long as there have been students and teachers. They've been writing it on bathroom stalls or carving it into desks ... Just because they post it online doesn't make it suddenly any less protected."

The second problem has to do with the language of the act itself. The law, which went into effect December 1, 2012, prohibits online activity intended to "intimidate or torment" school employees. Legislators, however, neglected to define those terms, making it unclear what will violate the law. With no clear legal standard, the threat of arbitrary enforcement against students is significant. This last point is particularly troubling since the law expressly applies to statements made about school employees "whether true or false."

Teenagers are prone to making rash and unflattering statements about others, including classmates and teachers. The harmful effects of this trait are no doubt increased when the statements are posted online, reaching a much larger audience than before the advent of social media. But while young people may lack discretion when it comes to making such remarks, they are, by virtue of their age, also more susceptible to emotional injury when others direct hurtful comments toward them. Hence, one can understand laws directed at protecting children during this especially vulnerable age. By contrast, educators (hopefully) possess the maturity to react to student criticism with a tough skin and, if necessary, respond to most excesses within in the school environment. For those rare instances where a student engages in speech that is not protected by the First Amendment, existing laws are a sufficient deterrent. North Carolina state Sen. Tommy Tucker, the sponsor of the bill, sees it differently. Tucker suggests that the law is necessary to protect teachers from malicious students. "These children are bright and conniving," he says.

click to enlarge School officials in Oklahoma City made a kindergartener turn his University of Michigan T-shirt inside-out because it violated a questionable district dress code.
  • School officials in Oklahoma City made a kindergartener turn his University of Michigan T-shirt inside-out because it violated a questionable district dress code.

But what Tucker fails to appreciate is that the vagueness of the new law creates the very real possibility that students may be charged with a crime for speech that previously would have resulted in staying late after class. Moreover, the law discourages respect for free speech by teaching young people that government officials are above criticism.



5. The Idaho State Liquor Division,

In the United States, there are 18 "control states" in which the wholesale and/or retail sale of alcoholic beverages is subject to a state monopoly. One such body, the Idaho State Liquor Division, offers the following description of its mission: "to provide control over the importation, distribution, sale, and consumption of distilled spirits; to curtail intemperate use of beverage alcohol; and to responsibly optimize the net revenues to the citizens of Idaho." Notably missing from that statement is any mention of protecting consumers from words or images that some of them might find offensive. Yet that is exactly what happened when a Utah company, Ogden's Own Distillery, attempted to sell its award-winning "Five Wives Vodka" in Idaho. The liquor division refused to include Five Wives on its list of products available for sale at bars and in liquor shops after determining that the "concept" of the product was "offensive to a prominent segment of our population."

Based on the Liquor Division's explanation of its decision, Ogden's Own concluded that the only group who might find the concept of Five Wives Vodka offensive was Idaho's Mormon population. While Mormons make up 27 percent of the state's population—certainly a "prominent segment"they also, as a rule, do not drink alcohol and would presumably be very unlikely to encounter Five Wives in a bar or one of the state-run liquor stores. When Ogden's Own pointed this fact out to the Liquor Division and it was picked up in the press, the division claimed that women, not Mormons, were the issue. Bottles of Five Wives Vodka feature a historical photograph of five 19th-century women in bonnets and petticoats holding kittens near their lady parts. What this image has to do with the "concept" of the product is unclear, but according to Jeff Anderson, director of the division, at least one female member on his staff found the label to be objectionable. Anderson then added a new wrinkle to the controversy: Despite evidence to the contrary in its letter to Ogden's Own, he suggested that the division's decision to ban Five Wives was unrelated to the label at all. Calling the award-winning spirit "an average product trying to get a premium price," Anderson claimed that there simply wasn't enough space for Five Wives alongside the 106 other similarly priced vodkas sold by the state.

It wasn't until Ogden's Own threatened a lawsuit that the Liquor Division's parade of justifications for the ban came to a halt. The agency agreed to make Five Wives available to customers in Idaho, but only on a special order basis. Bars and individuals can order Five Wives through the state, but liquor stores still may not stock it on their shelves. This status also means that Ogden's Own may not engage in the same type of advertising and promotional activities for Five Wives that are available to companies selling products stocked in the state-owned stores.

click to enlarge Idaho’s liquor division initially balked at allowing this Utah-based vodka label in the state, claiming it could be considered offensive to women.
  • Idaho’s liquor division initially balked at allowing this Utah-based vodka label in the state, claiming it could be considered offensive to women.

Because the value of speech is a completely subjective determination that can vary from person to person, the First Amendment does not permit government officials to impose their individual preferences on the public. As U.S. Supreme Court Justice Harlan famously wrote, "one man's vulgarity is another's lyric." Whether one finds the "Five Wives" name and label amusing or offensive is a matter of personal taste. For believing it has the right to define what is offensive for all the citizens of Idaho, the Idaho State Liquor Division earns a 2013 Jefferson Muzzle.



6. Missouri state Rep. Mike Leara

In the wake of the December 2012 shootings at Sandy Hook Elementary School in Newtown, Conn., the role of guns in American society has become hotly debated, perhaps more than ever before. Gun control advocates believe limiting the types of guns that can be privately owned would be an effective means to prevent, or at least reduce, incidents of gun violence. Proposals for restrictions on gun ownership are currently being considered at the federal, state and local levels of government. Such proposals have met with strong opposition from those who believe the greatest protection against tragedies like Sandy Hook is gun ownership by law-abiding citizens, unimpeded by government regulation.

One point often overlooked in the gun control debate is that both sides share a common goal—the reduction of gun violence. The debate centers on the best means to achieve that goal. As such, most Americans can agree that even those with opposing views should have the right to participate in the gun control debate. There are some, however, who believe that merely proposing a law that restricts gun rights should be a criminal act. Earlier this year, Missouri state Rep. Mike Leara proposed a bill that provides "[a]ny member of the general assembly who proposes a piece of legislation that further restricts the right of an individual to bear arms, as set forth under the second amendment of the Constitution of the United States, shall be guilty of a class D felony." Leara has stated that he has "no illusions" about his measure actually becoming law, but he unveiled his plan anyway "as a statement in defense of the Second Amendment rights of all Missourians."

Unfortunately, Leara's symbolic gesture of support for the Second Amendment is also a symbolic slap in the face of the First Amendment. Protecting political debate on issues such as gun control is at the very core of First Amendment protection. Yet Leara's proposal suggests that the First Amendment should provide no barrier to silencing those legislators who disagree with him on gun control. Leara's bill also disregards the Missouri Constitution, which provides that "[s]enators and representatives . . . shall not be questioned for any speech or debate in either house in any other place."

This Muzzle should not be interpreted as taking a position in the current gun control debate; it concerns free speech. Leara has the First Amendment right to express his strong opposition to proposed gun control measures. He earns a Muzzle for believing his colleagues in the state legislature should not be entitled to the same.

click to enlarge In the wake of December’s Sandy Hook Elementary shooting, Missouri state Rep. Mike Leara attempted to pass a law making it a felony for any of his fellow state lawmakers to propose bills restricting gun rights. - CHAD HARDER
  • Chad Harder
  • In the wake of December’s Sandy Hook Elementary shooting, Missouri state Rep. Mike Leara attempted to pass a law making it a felony for any of his fellow state lawmakers to propose bills restricting gun rights.


7. The Democratic and Republican National Committees

"There is not a dime's worth of difference between the Democrats and the Republicans" is a sentiment that has been expressed by persons on the political left and right. The accuracy of the statement is, of course, a matter of individual judgment and opinion. Those believing it to be true, however, will find evidence to support their view in the 2012 national conventions of both parties.

As a practical matter, the role of the Democratic and Republican National Conventions in nominating their respective candidates for president has been reduced to a mere formality by the advent of the primary system. Delegates to both conventions are now largely selected through the state primaries based upon the candidate they intend to support. As a result, the party's nominee is decided months in advance of the "nominating" convention. However, the role of a convention delegate is not limited to selecting the party nominee. Delegates are called upon to vote on a variety of questions, setting the party's direction on those matters for the next four years. At least, that's what the Democratic and Republican National Committees (essentially the governing boards of the respective parties) would like us to believe.

At the 2012 Democratic National Convention in Charlotte, N.C., Los Angeles Mayor Antonio Villaraigosa presided over a voice vote of convention delegates to determine whether references to God and the designation of Jerusalem as the capital of Israel should be restored to the party platform. The removal of those references earlier in the convention generated a great deal of public outcry causing the Democratic National Committee to fear a backlash in the upcoming presidential election. A two-thirds majority was required to restore the references. Villaraigosa's first call for a voice vote resulted in an indistinguishable difference between the "ayes" and the "nays." After a second vote, when the delegates again appeared evenly divided, Villaraigosa consulted with a party official on stage. He then called for a third voice vote, resulting once again in an even split among the delegates. This time, however, Villaraigosa declared that the resolution had passed, essentially muzzling the voice votes of half the convention's delegates.

At the Republican National Convention in Tampa, Fla., House Speaker John Boehner called for a voice vote to adopt new rules proposed by the campaign staff of presumptive nominee Mitt Romney, and endorsed by the Republican National Committee. The changes would make it easier for establishment candidates to dominate future conventions. Many delegates, including those supporting candidate Ron Paul, opposed the changes. After ignoring the objections of several delegates, Boehner proceeded with the vote. As with the Democratic Convention, the crowd appeared equally split among the "ayes" and "nays." Boehner nonetheless declared that the new rules had passed by the necessary margin. Amateur video footage later revealed that Boehner's teleprompter displayed the "result" of the voice vote seconds before the actual votes had been cast, suggesting that the outcome was pre-ordained by party leadership.



8. Maryland Delegate Emmett C. Burns, Boston Mayor Thomas Menino, San Francisco Mayor Edwin Lee, and Mayor Rahm Emanuel and Alderman Joe Moreno of Chicago

In July 2012, Dan Cathy, president of the Chick-fil-A restaurant chain, publicly expressed his opinion that marriage should be defined as a union of a man and a woman. Since 2009, Baltimore Ravens linebacker Brendon Ayanbadejo has publicly advocated for legalizing same-sex marriage. Despite the fact that their views on the issue are diametrically opposed, Cathy and Ayanbadejo received very similar reactions from elected officials after publicly expressing their opinions.

Cathy's comments drew the ire of mayors and other elected officials from across the country who threatened to block expansion of the franchise in their cities. Chicago Alderman Moreno threatened to use rezoning laws to block the opening of a new Chick-fil-A in his ward. "[T]here are consequences for freedom of speech," said Moreno, and "in this case, you're not going to have your first free-standing restaurant." When asked if he supported Moreno's plan to block the new restaurant, Mayor Emanuel stated, "Chick-fil-A's values are not Chicago values. They're not respectful of our residents, our neighbors and our family members and if you're gonna be part of the Chicago community, you should reflect Chicago values." Boston Mayor Menino wrote directly to Cathy, stating "[t]here is no place for discrimination on Boston's Freedom Trail and no place for your company alongside it." San Francisco Mayor Lee tweeted: "Closest #ChickFilA to San Francisco is 40 miles away & I strongly recommend that they not try to come any closer."

A similar controversy arose when Maryland General Assembly Delegate Emmett C. Burns, apparently dismayed by Ayanbadejo's outspoken support of marriage equality, wrote a letter to Ravens owner Steve Bisciotti requesting that he order Ayanbadejo to stop publicly advocating for same-sex marriage. Burns' letter, written on his official government stationary, was clear that he was not writing as a private citizen, but as "a Delegate to the Maryland General Assembly and a Baltimore Ravens fan." Burns asked that Bisciotti "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious action."

In fairness, it should be noted that the elected officials discussed here do not appear to have taken any actual retaliatory action against Cathy or Ayanbadejo. In fact, in the days that followed their initial statements, the officials conceded that the First Amendment prohibited their taking any such steps. Yet their concessions beg the question of why these officials didn't know this in the first place? A citizen's right to speak on the political issues of the day, free from government retaliation, is the very heart of the First Amendment.

click to enlarge Mayors from Boston to Chicago to San Francisco chastised restaurant chain Chick-fil-A last year when company president Dan Cathy publicly voiced opposition to same-sex marriage.
  • Mayors from Boston to Chicago to San Francisco chastised restaurant chain Chick-fil-A last year when company president Dan Cathy publicly voiced opposition to same-sex marriage.


9. U.S. Rep. Doug Lamborn, Chair, House Subcommittee on Energy and Mineral Resources

Maria Gunnoe is a West Virginia mining activist, the recipient of many awards including the 2009 Goldman Environmental Prize (the so-called "Green Nobel"), and a tireless advocate for the people of southern Appalachia. She has, on several occasions, been asked to testify on issues involving mountaintop-removal coal mining before Congress, a body that she considered largely unreceptive to her message. Thus, when Gunnoe was invited by Rep. Doug Lamborn of Colorado to testify before the Energy and Mineral Resources subcommittee he chairs, she wondered what she could do to more effectively make her case. Adopting the old adage, a picture is worth a thousand words, Gunnoe decided to provide the subcommittee with a visual aida photo by award-winning photojournalist Katie Falkenberg depicting a 5-year-old West Virginia girl bathing in murky orange water, the result of runoff from a nearby mountaintop-removal project.

When Gunnoe arrived on Capitol Hill, she was informed by a member of Lamborn's staff that the photograph was "inappropriate" and that she could not display it during her testimony. Adding insult to injury, at the conclusion of her testimony, Gunnoe was approached by a U.S. Capitol Police officer who escorted her into a side room where the 44-year-old grandmother was questioned for almost an hour based on an anonymous tip that Gunnoe might be in possession of child pornography.

Gunnoe emailed the image to Lamborn's office two hours before the hearing was scheduled to begin. Lamborn denies ever having seen the photograph himself, but told The Denver Post that a member of his staff "had a serious question about whether [the image was] appropriate or not." Based solely on that staffer's recommendation, Lamborn ordered that the photo be removed from Gunnoe's presentation. There is no indication that anyone other than Lamborn's staff ever viewed the image prior to Gunnoe's detention by Capitol Police.

The censoring of a congressional witness is bad enough, but to then smear her name with allegations of child pornography is simply reprehensible. Lamborn, however, remains unmoved. "I'm not going to issue an apology, and I don't think the staff members involved are going to issue an apology," he said, adding, "I think this woman should consider what . . . she brings to hearings."

Lamborn's blind reliance on a staff member's objection resulted in silencing a significant element of Gunnoe's testimony regarding the effects of mountaintop-removal mining. As Gunnoe sees it, "they didn't have anything else in mind other than stopping that photograph from being seen. And it wasn't because the little girl didn't have a shirt on. It was because she was bathing in mine waste."

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