You can’t say that! 

A rundown of the 2008 Muzzle Awards—the year’s most dunderheaded assaults on free speech.

The First Amendment to the United States Constitution
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

When it came to freedom of speech, Thomas Jefferson’s view boiled down to this: Use it, without limits, or lose it.

In keeping with that sentiment, North Carolina newspaperman and entrepreneur Tom Worrell in 1990 established the Thomas Jefferson Center for the Protection of Free Expression. And for the past 17 years, on or about Jefferson’s April 13 birthday, the Charlottesville-based nonprofit has been honoring (if that’s the right word) those who engage in “especially egregious or ridiculous” acts of censorship—by bestowing them with what it calls Jefferson Muzzles.

This year’s crop has some of the old, some of the new, and a rare lifetime achievement prize. Included for censorship acts most foul are a Nebraska judge who wouldn’t permit the use of the word “rape” in a sexual assault trial and a woman arrested for swearing in her home.

Increasing numbers of Muzzles involve Internet postings, which is where the “new” comes in: one prize in this realm involves a high schooler and another involves a college student. As Thomas Jefferson Center (TJC) Founding Director Robert M. O’Neil puts it, “Facebook and MySpace have predictably pushed the boundaries of campus-based communication.” The Communications Decency Act of 1996 exempted Internet service providers from liability for material that their users may post, but wannabe censors apparently don’t believe it.

And try understanding what’s going on at the Federal Communications Commission (FCC), an agency that’s such an egregious repeat offender, it gets a category all its own.

Also on this year’s list: a Muzzle directed at the campus newspaper of the University of Virginia—the one founded by Mr. Jefferson himself. As he rolls over in his proverbial grave, let the 2008 Muzzle Awards countdown begin.

Case of disbelief
If suffering alleged sexual assault is not awful enough, imagine being barred from describing the incident in a court of law. That’s what happened to Nebraska resident Tory Bowen.

In the first-degree sexual assault trial of Pamir Safi, the judge in the case, Jeffre Cheuvront, ruled that the words “rape,” “victim,” “assailant,” “sexual assault kit” and “sexual assault nurse examiner” were forbidden. That left witnesses and the alleged victim with no other word but “sex” to describe what happened. Perhaps predictably, the trial ended with a hung jury.

When the case returned to his courtroom last summer, Judge Cheuvront enforced the ban again. A second trial never happened—Cheuvront declared a mistrial during jury selection because he said public protests on Bowen’s behalf had made it impossible to find impartial jurors.

Bowen then sued the judge in federal court over his gag order. U.S. District Judge Richard Kopf dismissed the suit on procedural grounds, but did say this: “For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was raped when she testifies in a trial about rape.”

Boos for U’s
T. Hayden Barnes didn’t like the idea of the new parking garage planned for Georgia’s Valdosta State University, where he was a junior last spring. The project would be non-eco-friendly and wildly expensive, tying up at least $30 million in student fees, he figured. So he made his disapproval known.

He posted fliers around campus. When he learned that Valdosta prez Ronald M. Zaccari was unhappy about the fliers, he took them down and apologized. Next, he wrote a letter to the campus paper, contacted the State Board of Regents, and went online. Using his Facebook profile, he mocked Zaccari and the proposed parking decks, labeling one of the structures “the Zaccari Memorial Garage.” It was the last straw for the university.

In May 2007, Barnes was expelled with a letter from the president’s office that called him a “clear and present danger” to the campus. The administration noted that the use of the word “memorial,” could be construed as a death threat.

Barnes filed a federal lawsuit this January, alleging that Zaccari violated his freedom of speech rights. About a week later, the university’s Board of Regents reversed Barnes’ expulsion. Barnes’ lawsuit is still going forward.

Vanity, thy name is legal fees
Last November, a retired police officer who lived in Long Island, New York received the patriotic tags he’d ordered: “GETOSAMA,” the license plates said. Two weeks later, the DMV asked for the plates back. The message, they’d decided, was “obscene, lewd, lascivious, derogatory to a particular ethnic group or patently offensive.” Remember, we’re talking about New York, home to Osama Bin Laden’s 2001 terrorist attacks. The officer, Arno Herwerth, sued in federal court on free speech grounds. The case is still pending, but along the way the DMV relented and informally offered to let Herwerth keep the plates. Because Herwerth wants his legal fees paid, too, the case has not been settled.

Class action
Brandeis University near Boston, Mass. was named after Louis D. Brandeis, the Supreme Court Justice who said, “It is the function of speech to free men from the bondage of irrational fears.” But nothing, apparently, could free long-tenured Brandeis poli-sci professor Donald Hindley from the bondage of political correctness.

In fall 2007, Hindley explained in his Latin American Politics class that Mexican immigrants to the United States are sometimes called a derogatory term, “wetbacks.” Some students complained.

True, nothing burns quite so hot or purely as a young person’s first brush with outrage, but what explains the subsequent actions of the Brandeis administration? The director of employment relations informed Hindley that he was guilty of making statements in class that were “inappropriate, racial and discriminatory.” The provost threatened to fire the professor and sent a monitor to observe Hindley’s classes for the remainder of the semester. When Hindley requested a written explanation for the harsh measures, the provost refused to give him one. Fellow teachers on the Brandeis Faculty Senate protested, but to no avail.

What tangled Webs we weave
Oh, these kids and their Internet access! Connecticut high school junior Avery Doninger undertook some high-tech note passing and as a consequence, school administrators refused to allow her to run for elected office. Then, when she won through write-in voting, they refused to let her assume her rightful position. Seems they really didn’t like the posting she made on her own time, on a non-school computer—when she referred to certain school officials as “douchebags.”

Hello? Anybody at Lewis Mill High School ever hear teenagers talk? Douchebags is the least of it.

Anyway, Avery was mad about the planning for Jamfest, a school music festival that had been canceled. She went online and, besides using the d-word, encouraged others to contact the school and try to get Jamfest reinstated.

Avery didn’t hear from administrators until it was time to file paperwork for her re-election bid to become senior class secretary. At that point, the principal, Karissa Niehoff, informed Avery that she must: apologize to a school superintendent named in her blog post; show the post to her mother; and recuse herself from the election. Avery met the first two conditions. Nonetheless, Niehoff wouldn’t allow her name to appear on the ballot.

Avery won the class secretary race anyway. When the school wouldn’t let her take her office, Avery’s mom sued. (The TJC filed a friend-of-the-court brief on Avery’s behalf.) As her mother remarked, “I don’t like what Avery wrote [but] she had the right to do it and it was up to me, not the school, to determine whether or not there had been a consequence.”

Talk about a pissing match
When her toilet started to overflow in her Scranton, Pennsylvania, home last October, Dawn Herb did what any right-minded homeowner would do: She started cussing. She was so colorfully loud, apparently, that a neighbor—an off-duty police officer—could hear her. Pipe down, he yelled.

Maybe Herb couldn’t hear his protests over the sound of the flooding but, in any event, she kept swearing. So the neighbor called his colleagues in the Scranton Police Department, who wrote Herb a ticket for disorderly conduct, a charge that carried a possible sentence of 90 days in jail and as much as $300 in fines.

The charge was later dismissed in court.

Menacing the Dennis
If there’s one thing this primary season has taught us, it’s this: Nobody tells Dennis Kucinich what to do! Texas Democrats wanted all the party’s candidates to sign a loyalty pledge to “fully support” the eventual winner—whatever that person’s views might be on the war in Iraq. If they didn’t sign, they couldn’t get on the primary ballot.

Everybody signed—except the staunchly anti-war Kucinich, who was left off the ballot as promised. So he did what any of us would do in that situation: He joined forces with Willie Nelson and sued, claiming that his First Amendment rights were violated. The judge wouldn’t hear the case.

Two moral wrongs do (sigh) make a right
The next two cases, one local and one federal, test even the most ardent free speech defenders. One involves church people who protest at the funerals of soldiers killed in Iraq because they believe the deaths are God’s retribution for the United States harboring homosexuals. (If only we were making this up!)

The other involves teenage rednecks who cap off a day of civil rights protests in Jena, Louisiana, by driving past demonstrators in a pick-up truck with nooses hanging out of the back. (This, in a place where white high school students last September placed nooses in a schoolyard tree; six black teens were later arrested for beating a white student after a fight broke out on the racially-charged campus.)

Do we like homophobes or noose-bearers? No sir, we don’t. Do we have to afford them constitutional protections? Ugh, yes we do.

Some details: Last June, Shirley Phelps-Roper, of the gay-hating Westboro Baptist Church in Kansas, protested at a Nebraska funeral. She got a permit and kept the legal distance. But she irritated authorities when she let her 10-year-old son stand on an American flag. She was arrested and charged with flag desecration, negligent child abuse, contributing to the delinquency of a minor, and disturbing the peace.

Problem is, some 30 years ago the U.S. Supreme Court overrode both state and federal laws prohibiting desecration of the flag. Standing on one is disrespectful, but not illegal. And, might we ask, where do child abuse charges come in?

In Jena, meanwhile, 18-year-old Jeremiah “Idiot” Munson and a 16-year-old pal drove the noose-draped pick-up truck by a bus depot where black civil rights protestors had gathered. Jena authorities were still smarting over the media thrashing they’d gotten for their handling of the noose-hanging racial incidents sparked by the white students. Munson, it seems, got the better-late-than-never treatment when, in January, he was charged with a federal hate crime and for taking part in a civil rights conspiracy.

Cases like these “test your tolerance,” says the TJC’s O’Neil. “But constitutionally speaking, neither of those outrageous acts is criminally punishable in our system.”

Firing squad
CBS radio and MSNBC fired Don Imus last April after the “shock jock” called the mostly black Rutgers women’s basketball team a bunch of “nappy-headed hos.” Unexpected? Not particularly. Imus had a $40 million five-year contract based on a career of being offensive and insulting.

The show in question was simulcast on MSNBC, but neither the cable TV station nor the radio network opted to bleep Imus’ comments. Only after the public started to complain, on April 11, did MSNBC pull the plug and did CBS fire Imus, for which the companies were later sued (the parties settled four months later).

Firing squad II: The college paper comic caper

Showing the world that meathead management isn’t just for multi-million-dollar corporations, the 2007 managing board of the University of Virginia’s student newspaper, The Cavalier Daily, fired artist Grant Woolard last September after his “Ethiopian Food Fight” cartoon caused a ruckus. And this happened in Charlottesville, right in the TJC’s backyard.

The single-panel comic depicted loin-clothed, skinny black men throwing furniture, sticks and other non-edibles at each other. On the Tuesday prior to publication, the strip was vetted by at least two of five board members. After it appeared, several hundred students protested the cartoon’s “racist” connotations and demanded that Woolard be fired. By Sunday, Woolard was indeed let go (while the two managers who first green-lighted the comic kept their jobs).

Woolard says the termination was prompted more by fear of a violent backlash than by the volume of protests. Some of the comments could be construed as death threats, he noted.

The happy postscript? After graduation in May, Woolard will be headed to New York City, where he’ll be interning in the graphics department of the notoriously politically
incorrect and way funny Onion newspaper.

Emergency press management
In October 2007, the Federal Emergency Management Agency (FEMA)—still smarting from its mishandling of Hurricane Katrina—called a press conference to discuss the agency’s efforts on behalf of the victims of wildfires in California. Trouble began when FEMA gave reporters only about 15 minutes notice before the event started, making it impossible for many legitimate journalists to attend. The few people who did appear, meanwhile, asked some suspiciously friendly, puffball questions. Turns out, those “reporters” were in fact FEMA members who’d been planted at the event to make FEMA look good.

When he learned about the fraud, Homeland Security Michael Chertoff (to whom FEMA reports) expressed deep displeasure; the agency also apologized profusely. Several staff members who were responsible for the incident were fired or disciplined

He doesn’t have the decency to quit?
Ladies and gentlemen, from the great state of West Virginia may we introduce the author of the “Indecent and Gratuitous and Excessively Violent Programming Control Act,” otherwise known as Democratic Senator Jay Rockefeller. He’s been on a tear about extending FCC authority for years, and though his programming control bill never made it out of committee in 2005, he has not stopped his efforts to rid the airwaves of the “S” word or other deadly broadcast sins (so famously introduced to the zeitgeist by comedian George Carlin).

Last July, Rockefeller introduced a bill called “Protecting Children from Indecent Programming” that would force the FCC to strictly “maintain a policy that a single word or image may be considered indecent.” Meaning? The FCC would have no wiggle room with even accidental incidents of dirty words or imagery (can you spell wardrobe malfunction?).

In the censors’ grand tradition of hiding their constitutional agendas behind the swing-set, Rockefeller invokes “the children” that need his protection. And how’s this for irony: Rockefeller’s wife is the chair of WETA, a leading PBS station.

Lifetime nuggie to the FCC
As the aforementioned comic genius Carlin taught us, the seven words that you aren’t supposed to say on radio and TV are (close your eyes) shit, piss, cunt, fuck, motherfucker, cocksucker and tits. The words—among other allegedly indecent bits that sneak onto America’s airwaves—are at the heart of a debate that’s been ongoing for decades. In short, what’s smut?

The FCC, which since 1934 has had the power to punish broadcasters for airing “obscene, indecent or profane” material, keeps changing its mind about the definition of the word and what constitutes an infraction. Does one enthusiastic slip of the tongue warrant a sanction? Does a milli-flash of singer Janet Jackson’s bare breast?

In 2004, some 150 ABC television stations were so fearful of possible FCC sanctions (including fines et al) that they declined to air the acclaimed film, “Saving Private Ryan” on Thanksgiving Day, because of the movie’s coarse language and, well, violent war scenes (war being a violent thing and all). That same year, the commission fined CBS $550,000 for the infamous “wardrobe malfunction” that exposed Jackson’s flesh during her half-time Super Bowl song and dance.

Thanks to those events and current efforts by the FCC to expand its regulatory powers even further, the TJC granted the federal behemoth a special “lifetime achievement” award. In a word, the Jefferson Center believes the FCC’s capriciousness leaves a chilling effect on free speech rights in general. To which we might add, brrr, it’s getting cold. Let’s hope things warm up soon.

This article originally appeared in c-ville, the Charlottesville, N.C. alternative weekly.
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