Two 1A decisions
maule at LAW.VILLANOVA.EDU
Sat Jan 13 10:49:41 PST 2001
ACLU of Kentucky Hails Two Free Speech Victories:
University Can't Censor Student Yearbook;
Court Affirms Woman's Right to Wear Manson T-Shirt
FOR IMMEDIATE RELEASE
Friday, January 5, 2001
LOUISVILLE -- Free speech rights received hearty endorsements today in
two significant appeals court decisions, the American Civil Liberties Union
of Kentucky said.
Ruling en banc in what is being called a landmark case, the Sixth Circuit
Court of Appeals said that Kentucky State University officials violated
the First Amendment when they confiscated and banned distribution of the
school's student-produced yearbook.
And in a classic free speech case, a state court of appeals reversed the
1998 harassment conviction of a Benton woman who wore a T-shirt with a
controversial Marilyn Manson song lyric to a community festival.
"It is always dangerous to give the government the power to decide what
speech is appropriate and what is inappropriate," said Jeff Vessels,
Executive Director of the ACLU of Kentucky. "As Voltaire famously said,
'I may not approve of what you say, but I will defend to the death your
right to say it.' The rulings today reflect that spirited defense of our free
In the T-shirt case, a district court judge had convicted Venus Morgan of
harassment for wearing a shirt with the words "I am the God of Fuck," to
the 1998 Tater Days Festival in Benton. A circuit court of appeals upheld
the ruling, saying that Morgan was being prosecuted not for the content
of her speech but for the "conduct" of wearing the offensive T-shirt.
The state appeals court agreed to hear the ACLU's arguments and
ultimately reversed the decision, finding that the harassment statute "clearly
requires more than a simple expression of dislike by the members of the
public for the conduct of another person."
"Two and a half years after the trial, free speech finally has been
vindicated by the Court. It is a good day for the First Amendment," said
David Harshaw, a Louisville attorney who defended Morgan on behalf of the
ACLU of Kentucky, working with attorneys Kathleen M. Flynn and David A.
In the yearbook case, two students, Charles Kincaid and yearbook editor
Capri Coffer, sued Kentucky State University, claiming that the school's
seizure of the 1993-94 yearbook was based on the publication's contents,
not its quality.
At issue in Kincaid v. Gibson, in which the ACLU filed a
friend-of-the-court brief, was the proper legal standard for school and
student control of college-level publications.
"Confiscation ranks with forced government speech as amongst the purest
forms of content alteration," Circuit Judge R. Guy Cole, Jr. wrote in a
strongly worded majority opinion for the full appeals court.
The Court called the confiscation "arbitrary and unreasonable," finding
that the student yearbook is a limited public forum and that University
policy cedes editorial control to the yearbook's student editors, with
limited school oversight. While government can establish reasonable time,
place, and manner restrictions on limited public forums, government must
remain viewpoint neutral in such restrictions, the court said.
"There is little if any difference between hiding from public view the
words and pictures students use to portray their college experience, and
forcing students to publish a state-sponsored script," Judge Cole wrote.
"In either case, the government alters student expression by obliterating
it. We will not sanction a reading of the First Amendment that permits
government officials to censor expression in a limited public forum in
order to coerce speech that pleases the government."
Today's ruling in Kincaid reversed a district court's order and a
September 1999 decision by a three-judge panel of the Sixth Circuit Court
of Appeals. The authors of the ACLU's friend-of-the-court brief in the
case were Ann K. Benfield, a Louisville attorney working on behalf of the
ACLU of Kentucky, and Marjorie Heins, a attorney and noted expert on
First Amendment law.
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
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