Brown University newspaper advertisement

[Michael MASINTER]

I wonder about the easy substitution of conduct for speech in the first
two sentences.  One of the ways of "openly removing the vehicle of the
message" is kidnapping or killing the speaker.

Private interference with speech does not implicate the first amendment,
but state responses which vary according to the viewpoint of the speaker,
or of those who would silence the speaker, surely do.  Message based
exercises of prosecutorial discretion (whether under criminal law,
university disciplinary codes, or other governmental exercises of power)
should concern everyone lest private parties become proxies for state
actors who cannot themselves censor speech.  Dictatorial regimes of all
stripes routinely delegate to nominally private mobs the task of silencing
the disfavored.

Public and private universities which embrace conventional notions of
academic freedom have the obligation to defend unpopular as well as
popular speech.  Destroying newspapers to protest editorial judgments is
antithetical to free speech.  News accounts reported no reaction from
Brown's administration for more than 24 hours after the events, and only
after the story became a national news item.  The behavior of the Brown
students was disappointing; the apparent initial silence of the Brown
administration was shameful.  If Brown is serious about academic freedom
and free speech, it should demonstrate it.


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 20 Mar 2001, gayle binion wrote:

> A long tradition in support of free speech similarly values the heckler's
> speech.  I wonder if there should not also be recognition that the
> conduct of protesting a message by openly removing the vehicle of the
> message isn't also a form of protest speech...  Had the behavior made the
> message inaudible it might be seen differently from an act of expressive
> protest that if anything has drawn more attention to the content of this
> ad and perhaps may be intended and/or have the effect of making people
> think more about the ad and its meaning for African-Americans... I am not
> sure that this kind of event inhibits free speech..
>
>
> gayle binion
>
>
>
> At 08:59 AM 3/20/01 -0800, Volokh, Eugene wrote:
>
> >>>>
>
> <excerpt>
>
>
> <fontfamily><param>Arial</param><color><param>0000,0000,8080</param>I
> agree with Paul that there may be rule of lenity problems with criminally
> punishing the students, and that this problem can easily be solved by
> just making it clear that only the first copy of the paper was free for
> each customer.
>
> </color></fontfamily>
>
>
> <fontfamily><param>Arial</param><color><param>0000,0000,8080</param>But
> setting aside the criminal law questions, isn't it clear that this sort
> of conduct is highly reprehensible -- especially in a university -- and
> that the proper academic-freedom-respecting thing for the university to
> do is (1) explicitly ban such conduct, and (2) speak out firmly against
> it even if the ban had not yet been implemented?  Surely a respect for
> the marketplace of ideas means that you don't physically destroy
> anothers' speech products, if you might have the legal right to do so.
> (Of course, this analysis rests on my assumption -- which strikes me as
> pretty self-evident -- that an evenhanded rule barring the mass
> destruction of free papers is itself neither unconstitutional nor
> violative of any academic freedom rights.)
>
> </color></fontfamily>
>
>
> <fontfamily><param>Arial</param><color><param>0000,0000,8080</param>Of
> course if I'm mistaken, and someone persuades me that this behavior is
> perfectly proper, I'll be off to destroy as much of the print run of the
> LA Weekly as I can (the Weekly is a free newspaper here in L.A. that I
> think can fairly be described as having a Socialist-or-further-left
> editorial policy, and I'm using the term advisedly).
>
> </color></fontfamily>
>
>
> <fontfamily><param>Arial</param><color><param>0000,0000,8080</param>Eugene</color></fontfamily>
>
>
>
> <fontfamily><param>Arial</param><smaller><smaller>-----Original
> Message-----</smaller></smaller></fontfamily>
>
> <bold><fontfamily><param>Arial</param><smaller><smaller>From:
> </smaller></smaller></fontfamily></bold>
> <fontfamily><param>Arial</param><smaller><smaller>Paul Salamanca
> [SMTP:psalaman at POP.UKY.EDU]</smaller></smaller></fontfamily>
>
> <bold><fontfamily><param>Arial</param><smaller><smaller>Sent:
> </smaller></smaller></fontfamily></bold>
> <fontfamily><param>Arial</param><smaller><smaller>Tuesday, March 20, 2001
> 8:38 AM</smaller></smaller></fontfamily>
>
> <bold><fontfamily><param>Arial</param><smaller><smaller>To:
> </smaller></smaller></fontfamily></bold>
> <fontfamily><param>Arial</param><smaller><smaller>CONLAWPROF at listserv.ucla.edu</smaller></smaller></fontfamily>
>
> <bold><fontfamily><param>Arial</param><smaller><smaller>Subject:
> </smaller></smaller></fontfamily></bold>
> <fontfamily><param>Arial</param><smaller><smaller>Re: Brown University
> newspaper advertisement</smaller></smaller></fontfamily>
>
>
> <fontfamily><param>Arial</param><smaller>This issue actually arose here
> at the University of Kentucky a couple of</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>years ago, and was battled out
> in the criminal courts -- more or less.  Two</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>or three students destroyed an
> entire run of the Kentucky Kernel, the</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>student newspaper, because the
> editor had pulled a story that he or she</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>considered libelous (I
> believe).</smaller></fontfamily>
>
>
> <fontfamily><param>Arial</param><smaller>The students defended themselves
> on the ground that the papers were free,</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>and that they therefore had the
> right to take all they wanted and destroy</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>them.  The matter was settled in
> a plea bargain; the students accepted</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>community service and their
> records do not reflect the charges.  But I do</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>know that the Kentucky Kernel is
> now free for the first copy, and quite</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>pricey for each copy
> thereafter.</smaller></fontfamily>
>
>
> <fontfamily><param>Arial</param><smaller>I assume the government's theory
> was that there was an implied limitation</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>on taking copies that the
> students had exceeded.  I understand that the</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>rule of lenity militates against
> this theory.  As I said, the case was plea</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>bargained
> out.</smaller></fontfamily>
>
>
> <fontfamily><param>Arial</param><smaller>
>                Paul Salamanca</smaller></fontfamily>
>
>
>
> <fontfamily><param>Arial</param><smaller>At 10:39 AM 3/20/2001 -0500, you
> wrote:</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>I have a collateral question
> about events reported over the weekend.</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>According to the report, Brown
> University's student newspaper published</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>an advertisement for a book by
> David Horowitz, the advertisement</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>enumerating reasons against
> reparations for African Americans.  The</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>student newspaper is
> (apparently -- but assume that it is) available at</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>no charge.  A number of
> students who objected to the advertisement,</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>apparently followed the
> newspaper's delivery routes and picked up all</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>copies of the newspaper as they
> were dropped off.  Now, the collateral</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>question:  Did the students do
> anything that violated (general) legal</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>standards?  (I put aside the
> possibility that there might be some</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>specific criminal regulation
> directed at this behavior.)  Or, more</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>generally, is it an offense to
> take an unreasonable number or amount of</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>material that is made available
> without charge?</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>></smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>>Attachment Converted:
> "c:\eudora\attach\tushnet13.vcf"</smaller></fontfamily>
>
> <fontfamily><param>Arial</param><smaller>></smaller></fontfamily>
>
>
> </excerpt><<<<<<<<
>
>
>
>
> Gayle Binion, Ph.D.
>
> Professor of Political Science
>
> and Law & Society
>
> UC Santa Barbara
>
> Santa Barbara, Cal. 93106
>
> (805) 893-2114 (office)
>
> (805) 969-0380 (residence and fax)
>
>