Porn and Censorship in the Academy

February 14, 2010, 11:00 a.m.

"Disco Dolls" and Dangerous Decisions
(brought to you by FromDC2Iowa.blogspot.com*)
The Bijou Theater has canceled its showing of "Disco Dolls in Hot Skin." See, e.g., B.A. Morelli, "UI cancels porn film showing at Bijou; Theater has shown similar films in the past," Iowa City Press-Citizen, February 10, 2010; Editorial, "Looks Like the UI Wants to Put the 'No' in 'Porno,'" Iowa City Press-Citizen, February 11, 2010; Kembrew Mcleod, "Canceling Porno Misguided," Iowa City Press-Citizen, February 13, 2010; Editorial, "UI officials have acted poorly in Bijou porn controversy," The Daily Iowan, February 12, 2010.

The cancellation raises dozens of issues, known and unknown. The information one would need to discuss any one of them, let alone all, is mostly unavailable to me at the moment. Moreover, in a nation that has never completely shaken its Puritan origins, the field of pornography remains littered with IEDs.

Of course, such concerns have never held me back in these blog entries before, so why should they now.

There are legal issues: constitutional, statutory, regulatory, and litigation -- many of which turn on fact questions involving matters unknown. They involve, among a great many other things, the definitions of "obscenity," "indecency," and "pornography" and the legal significance of the differences.

There are questions of educational administrators' judgment in protecting the mission of a university (including its faculty's "academic freedom") while being mindful of the demands of public and legislative relations.

There are media studies issues regarding the potential impact on the audience, and broader society, of depictions of violence, or sexual acts.

There are relevant, indeed decisive, fact questions regarding the exchange in this case between UI Interim Vice President Tom Rocklin and Bijou Executive Director Evan Meaney.

If UI administrators are to exercise "prior censorship" judgment about the Bijou's offerings, there are then governance, administrative process, and drafting questions regarding the relationship between the University and the Bijou.

Here are some (as noted, uninformed) comments about, primarily, the potential legal issues:

Legal. For a great many reasons, what follows is not a "legal opinion." If your job is such that you need to know "the law" on these issues you should consult a lawyer.

Moreover, legal issues may, on balance, be little more than a significant backdrop to this conflict. That is to say, without ignoring the law, what may be most important is the mission of the University and the relationship of its administrators to those running student programs generally. But here are some of the possible legal issues to think about.

Movies are considered speech. Obscene movies, or other speech, do not enjoy constitutional protection. For adults, all other speech (i.e., movies) is protected.

"Freedom of speech" and "censorship" are used colloquially in contexts where they do not apply legally. That's OK; free speech is still a useful value elsewhere. But the First Amendment's provision that "'Congress' shall make no law abridging the freedom of speech," although interpreted to apply to governments generally, does not apply to other institutions. A newspaper editor who kills a reporter's story may have exercised bad judgment, s/he may have caved in to an advertiser's pressure, but s/he has not violated the First Amendment. That's not to say that the reasons for the First Amendment may not be equally applicable to children in the home, employees in the workplace, or faculty in a private college. It is only to say that the First Amendment, legally, for the most part only operates as a restraint on government.

Thus, the State of Iowa, the Board of Regents, and UI administrators (acting in their official capacity for the University) are considered to be "Congress" for purposes of constitutional law.

But that's scarcely the end of the matter. There are many contexts in which governments may "abridge" free speech, such as specifying what may, and may not, be printed in the label on a can of peas.

Specifically relevant to the UI's Bijou context -- though it contributes more confusion than clarification -- are the concepts of "government speech," "public forum," "limited public forum," and in the context of universities, a forum for student speech.

A university may, as a matter of grace, decide that it will be able to assemble a more accomplished faculty if it grants "academic freedom" and does not exercise its legal right to control what can and cannot be said by them in the course of their employment. Like any other institution or individual, it may contract away rights it would otherwise have had.

For when it is the University that is speaking, for example, through a news release, it is not unconstitutional for "it" (acting through its hierarchy of administrators) to dictate, or edit (i.e., "censor") the copy prepared by a UI employee for that news release. As the Supreme Court has said, "A holding that the University may not discriminate based on the viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles." Rosenberger v. University of Virginia, 515 U.S. 819, 834 (1995).

The Rosenberger case, although different in some particulars, is more specifically useful in our context with regard to the consequences if the Bijou Theater is a "limited forum for student speech" (a finding that turns on facts that are presently unknown to the public, or at least not reported by the media stories).

Rosenberger involved a university program funding the printing of student organizations' publications -- funding being a circumstance that the Court treated as analytically similar to the regulation of speech in a limited forum created by a university. The University of Virginia -- ironically in an effort to honor another provision of the First Amendment, involving a prohibition on its "establishment" of a religion -- refused to make any of these funds available for use by a student Christian organization. The Court wrote:

These principles provide the framework forbidding the State from exercising viewpoint discrimination, even when the limited public forum is one of its own creation. . . . The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics. . . . Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not "reasonable in light of the purpose served by the forum," . . ., nor may it discriminate against speech on the basis of its viewpoint, . . .. Thus, in determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations."

Ibid, at 829-30.

So, where does that take us?

At the outset, there is ambiguity from the lack of information regarding the exchanges between Rocklin and Meaney. If the Vice President issued an "order," or "ruling," forbidding," or otherwise denying the Bijou the "right" to show the film, that would be one thing. If he merely said, almost offhandedly and informally, without any hint of threat of official recrimination, "In this climate, you might want to think about the possible public reaction from that choice," that could be another.

If Meaney's reasonable perception was that he had been ordered to cancel the showing (a fact question), that still leaves the issue of whether the Bijou is a "limited forum for student speech" (similar to the University of Virginia budget for student organizations' publications), or whether it is an example of University funded, sponsored and administered "University speech" only delegated to this student board to be operated on behalf of the University. Without more information there's no way to answer that one. And I would not be stunned if there is simply nothing in the Bijou archives of communication with University administrators that relates to this aspect of the relationship.

"Disco Dolls in Hot Skin" is a movie. Movies are speech. "Obscenity" (a legal definition) is not protected speech. Although I have not seen this movie, from the media descriptions my sense is that it would not be considered (and Rocklin did not consider it) "obscene." Thus, (a) if the Bijou is a "limited student speech forum," funded in part with student fees designated for student organizations, (b) and in this instance for an organization the purpose of which is to show a range of motion pictures not normally available in local, commercial movie theaters, and (c) having created this student speech forum the UI has forbid the showing of a particular film based on its content, there might very well be a variety of First Amendment claim by the Bijou.

But that's a lot of ifs.

Judgment call. Neil Postman and Charles Weingartner wrote a book entitled Teaching as a Subversive Activity (1969). I have a painting by Iowa-born Sister Mary Corita (as she then was), with the Goethe quote, "It is the property of true genius to disturb all settled ideas." That has been the academic's role since before the time of Galileo Galilei.

Academics may need no longer fear the Inquisition (Galileo spent the last ten years of his life under house arrest), but there is still a price of sorts to be paid for inquiry, for those who, as the button has it, "Question Authority," "Speak Truth to Power," for free and independent thinking.

Sometimes, though rarely, that price can affect not only the individual who has spoken or written, but the institution of which they are a part. That may have been Vice President Rocklin's concern in this case. It was a judgment call, his judgment call. The UI gets relatively little money from the legislature, compared with the percentages of its budget the State provided when I was a boy. But Rocklin may have known things I do not; millions of dollars might have been at risk as a result of showing this film. But even though I doubt that, and even though if I were in his position I would not have intervened (consistent with the positions I took as a Supreme Court law clerk to Justice Hugo Black, or as an FCC commissioner when similar issues arose), I'm not going to presume to say he was wrong to do what he did -- whatever that was.

There is a balance to be struck between the spirit of free speech and academic inquiry (whether in a context that is protected by the First Amendment or not), and the preservation of a university as an institution from political forces that have set about to harm or destroy it.

The risk is,

As I have written before, "Once 'revenue is needed' is the Polestar for a university's financial decisions its moral compass begins to spin as if it was located on the North Pole." Nicholas Johnson, "UI Loves Gambling" in "UI Held Hostage Day 410 - March 7," March 7, 2007.

"Revenue is needed" is why politicians accept the bribes called "campaign contributions;" why "non-commercial" educational radio stations run commercials; why K-12 schools subscribed to "Channel One" and continue to sell sugared soft drinks to their students, knowing they will increase obesity, dental caries, and diabetes; why the UI's athletic program becomes a partner with the organized gambling industry's casino in Riverside; and why universities provide advertising on their buildings, and in naming their colleges, that promotes their corporate "donors."

Nicholas Johnson, "University Rips-Off Students Because . . . 'Revenue is Needed,'" September 25, 2007.

I'm reminded of the time when, as chair of the National Citizens Committee for Broadcasting, our primary project was a creative effort to reduce the levels of violence in television programming. Without describing the details, what we did was to identify, and publicize, "America's bloodiest corporations" -- that is, those which provided the financial support, with their advertising, for the TV shows that were the most violent. So far as I'm aware, it was the only time in TV history that levels of violence were actually reduced.

Corporations began telling their ad agencies that they didn't want their commercials to be placed in the violent programs that were generating this adverse publicity, and reducing their sales, however marginally.

And why am I reminded of this? Because of one corporation's memo to the ad agency that was shared with me. Not only did it want its commercials removed from the now-controversial violent programs, but "from any other programs that might be controversial as well."

One can be critical of that corporation's decision, but its mission, after all, was profit maximization -- not intellectual inquiry, not free speech, not "to disturb all settled ideas." Those are the responsibility of the University of Iowa, along with other great public colleges and universities.

Concern for the possible controversy resulting from the showing of films thought to be "pornographic" can easily evolve into equivalent concern for "any other programs that might be controversial as well."

Many large institutions feel themselves to be under siege: corporations, universities, military units, hospitals, the White House. Universities' behavior is more a function of their being large, hierarchically administered institutions than a quality of the academy as such.

Thus, universities have at least two possible strategies for response when under -- or when fearful that they soon may be under -- attack.

(1) The most instinctive is the one that involves capitulation, dissembling, opacity, strategic communications, public relations, and efforts to avoid the requirements of public meetings and public records laws. The message is, "We are nothing to be afraid of; our values are your values; we will do nothing to challenge your beliefs; you can safely send us your sons and daughters knowing that they will be returned to you exactly as they were when you sent them -- and, oh yes, 'How 'bout them Hawks.'"

(2) The other -- requiring more imagination and good, hard work, but possibly paying orders of magnitude more long term benefits -- is to take the criticism head on; to accept the challenge to explain to the critics of the intellectual, academic, research life what the value of a university is, to its critics as well as its friends and graduates. Why is it our role to "disturb all settled ideas"? Why are there more benefits than risks from a population engaged in critical thinking?

It's not that universities do not have the legal authority to ban controversial speech -- at least in "university speech" and the classroom, even if not in "limited student speech forums." But at some point the lack of willingness to support the controversial, to defend the institution against the kinds of attacks that befell Galileo, erodes the very foundation and function of the institution as effectively as the earthquake in Haiti did to the foundations and functions of its buildings.
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* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself.
-- Nicholas Johnson
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