Saturday, December 20, 2014

Threats and Sensibilities: Presidents Kim, Lynton and Mason

December 20 and 22, 2014, 10:00 a.m.

And see, "Sony's 'The Interview': A Film Review," Dec. 26, 2014

The Price of Free Speech
What the University Owes Students
The Values of Free Speech and a Proposal
Pictures of Presidents
"The Interview" Trailer and Pictures of "Art"
Quotations from . . .
President Barack Obama
The Guardians of Peace (the Hackers' Threats)
Sony Statement
UI President Sally Mason Statement
UI AAUP President Katherine Tachau Message
First Amendment
Alternatives to Law -- and Censorship:
Professor Lawrence Lessig
Mason Williams

The University of Iowa should consider developing a course for entering undergraduates’ first semester that exposes them to the values underlying the First Amendment, the history of protest movements in this country – and on this very campus.

-- Nicholas Johnson

Remember the line: “Gravity. It’s not just a good idea, it’s the law”?

The Price of Free Speech

So it is with free speech – it’s a good idea, and also the law. With two distinctions from the law of gravity.

(1) The “law” doesn’t always apply.

Although the First Amendment to our Constitution merely forbids Congress to make a law “abridging the freedom of speech, or of the press,” the courts interpret “congress” to mean all government action – things done by city councils, school boards, and yes, state universities like the University of Iowa. But that means the First Amendment gives you no protection from restrictions on your speech at the family dinner table, or in the corporate workplace.

Courts also permit governments to restrict “freedom of speech” in a variety of contexts – how companies can advertise and label their products and new stock offerings, restrictions on sound trucks blasting messages throughout suburban neighborhoods after midnight, and a prohibition on airline passengers telling jokes as they pass through TSA security.

(2) And even when free speech is legally protected, it’s not free.

Speech is free like food is free in a Michelin four-star Paris restaurant. You tell the waitperson what you want, it’s presented before you, and you eat it. Only after the final cup of coffee, when you’re preparing to leave, do you pay the price.

This speak-now-pay-later quality of free speech made the news recently from Iowa and California.

Serhat Tanyolacar, a visiting assistant professor in the University of Iowa art department, declaring that he was “displaying the horrifying truth, the fact of racism,” put a seven-foot sculpture of a klan robe on the university’s central campus. It was covered with prints from newspapers’ stories of our country’s racist past. The artist’s intent – not that it’s necessarily relevant – appears to have been one of encouraging more serious discussion of what has long been an American problem, to “trigger awareness” by putting in historical context the current demonstrations and other reactions to a number of police shootings of unarmed African American males.

His speech was “free.” His price was the protests of some students who said they felt threatened, which was, in turn, considered a threat by a University administration trying to increase enrollment, and which responded by censoring his art, by removing it from the campus, and censuring him for displaying it.

Among the administration’s unfortunate rationalizations for its actions were the sentiments that, “There is no room for divisive, insensitive, and intolerant displays on this campus. . . . The UI respects freedom of speech, but the university is also responsible for ensuring that public discourse is respectful and sensitive.”

Meanwhile, out on the left coast, members of the “creative community” (as they like to call themselves) had exercised their free speech in the form of a hilarious satirical film about a couple of bumbling Americans the CIA asks to assassinate North Korea’s President Kim. It cost a little more to create than Serhat Tanyolacar’s sculpture, but was otherwise just as free, in the sense that it suffered no prior censorship. It was supposed to open in theaters all across the country this Christmas week.

However, also like the sculpture, there was a price paid for this free speech. Like the students who felt threatened by the art displayed in Iowa, there were North Koreans who felt threatened by the art displayed in California. Clearly, the threats, not to mention the cyber attacks, leveled at Sony were far more serious than any consequences for the University of Iowa. (The hackers had threatened, among other things, 9/11-style attacks on the U.S. and theaters displaying the films.)

But the institutional response from both institutions (the University and Sony) were otherwise similar. Both Sony and most theater owners simply censored the art (Sony didn’t release the film; theaters refused to show it). The statue was not displayed on the campus, and the film was not displayed in theaters.

What the University Owes Students

By now it may surprise you to read that I believe there is something to be said for the University’s position – not much, but something.

During at least the first half of the last century, college administrators were said to stand in loco parentis to their students. It was an old English common law concept, Latin for "in the place of a parent," that imposed on the college the legal responsibility to take on some of the functions and responsibilities of a parent. There were separate men’s and women’s dorms, both with relatively early-to-bed curfews that carried significant penalties for violations, prohibitions on alcohol, even dress codes.

Today’s equivalent includes programs endeavoring (mostly unsuccessfully) to reduce students’ binge drinking and the resulting sexual assaults and harassment, or to control the outbreak of campus-wide flu or other disease.

Few would question universities’ efforts to protect their students from physical harm. However, many are questioning the propriety of a university’s protecting their students from intellectual and emotional discomfort by insisting that all “public discourse is respectful and sensitive.”

Abraham Maslow gets credit for the line, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” It is a contagious disease of first year law students, who begin to see the law as offering solutions for most human conflicts and challenges. Sadly, there is an occasional law professor for whom the condition is chronic.

Of course, there are legal issues involved in the kerfuffle surrounding Tanyolacar’s sculpture. For example, as a state-funded (in ever decreasing amounts) institution, the University of Iowa is constrained by the First Amendment. If the campus is a “public forum” – that is, space where the University permits all kinds of speech and displays – UI administrators cannot deny speech or art because of its content. On the other hand, if it is a “limited public forum” – that is, say, space set aside for nothing but the discussion of graduate students’ doctoral dissertations – it could forbid all other speech there. Faculty are employees. As a matter of contract, the Board of Regents could tell professors what subjects they will teach and what they will say about those subjects in the state’s classrooms – except for the fact most faculty would then resign. Similarly, if the contract provides for “tenure” and “academic freedom” there are restraints on Regents’ and administrators’ ability to fire. There are many more legal issues and nuances.

But everything is not a nail; while complying with law, there are other considerations as well in the college environment. (There are even additional systems that sometimes exert more influence over our daily behavior than “the law.”)

A university is not a Marine Corps boot camp. We don’t throw entering undergraduates into the deep end of the new recreation center swimming pool to see if they can dog-paddle their way to the surface. We may no longer be in loco parentis, but there are valid reasons to create and maintain an environment conducive to students’ learning.

I lived and worked in the South during the 1950s, when the Klan was still burning crosses on people's yards (including that of a judge on the court where I was a law clerk). As a result, I probably have even more understanding and empathy than most for the African American students' reactions to the sculpture. Especially those students who had not viewed it closely, or were otherwise totally unaware of the artist's actual intent. In no way do I trivialize their concerns.

One way to avoid those kind of reactions is the way chosen by the University of Iowa. Forbid “divisive, insensitive, and intolerant displays” and speech by “ensuring that public discourse is respectful and sensitive.” Unfortunately, in the context of higher education, that’s kind of like reducing automobile accidents by forbidding drivers to move their vehicles along roads or highways; or reducing NFL players’ injuries by forbidding any physical contact during games.

The world outside the campus – and to a significant degree on campus as well – is filled with divisive, insensitive, intolerant, and disrespectful speech and art. Central to the core mission of an institution of higher education – and what should be the mission of high schools as well – is an alternative approach to that of the University of Iowa. It is to prepare students for the world they are about to enter, rather than to shield them from it.

Provide them the opportunity to acquire the knowledge and analytical skills that enable them to confront that world. To learn of cultures, religions and languages different from their own. To understand, even appreciate, the arts – graphic, theater, dance, music – as another form of language, of communication, and the role they have played in protests throughout history. To learn the language of science, and its applicability in daily life. To challenge the beliefs with which they first arrived on campus.

The Values of Free Speech and a Proposal

Why is free speech a good idea as well as the law? An enormous volume of literature explores the reasons. Here are five often mentioned. (1)In our “search for truth,” a “marketplace of ideas” is far more effective than government-approved speech. (2)It can provide a “checking value” on abuses by government and other large institutions that would otherwise be supressed. (3) It is a far more peaceful way of providing an outlet for citizens’ grievances than the efforts to silence them that can end in violence – as we have recently seen. (4)Communication, expression, is central to individuals’ self-actualization and development as humans. (5) It is essential to citizens' maintenance of a successful self-governing democracy.

Note that these values, or benefits, or consequences of the First Amendment are not limited to institutions and situations to which the First Amendment is applicable. To the extent you find them valid and valuable, they are equally applicable to a retail establishment, hospital, or airline.

So what is my proposal for balancing these and other values of free speech (and the related core values of higher education) against the desire to maintain a supportive, learning environment?

The University of Iowa should consider developing a course for entering undergraduates’ first semester that exposes them to the values underlying the First Amendment, the history of protest movements in this country -– and on this very campus. What has been the role of the arts in those protests, and the changes they have brought about? Why is there a value to challenging one’s beliefs? Why is it central to a university’s educational mission to provide that challenge, to expose students to ideas they may hate – along with the tools for analyzing and presenting arguments about them?

Maybe it should be a required course for all. Maybe an elective. To be effective it needs to be more than a brief talk during orientation, or a seminar for a handful of students. Whatever form it might take, it would be clearly preferable to sabotaging education’s mission by “protecting” students from the very thing they should be coming here to acquire.


The juxtaposition of the threats, sensibilities, and censorship involving art, North Korea and the University of Iowa has been an irresistible invitation to commentary by this blog essayist -- especially now that President Obama has taken a position on the issues (quoted below).

There is so much that could be said about the hazardous porcupine of quills projected by the issues that the commentary has been truncated -- however much it may appear to you that has not been the case.

And there's more: some photos and quotes you can explore and think about why they might have been included here.

Here are our principals: North Korea's Kim Jung-Un, SONY Entertainment's CEO Michael Lynton, and the UI's President, Sally Mason.

Pictures of Presidents

"The Interview" Trailer and Pictures of "Art"

And here are some visuals regarding the artistic content in question: A trailer for "The Interview," Serhat Tanyolacar's UI sculpture -- and for contrast and comparison, what an actual KKK member looks like, and what universally acceptable Norman Rockwell art looks like.

"The Interview Official Trailer #2" (2014), YouTube

[Image credit: Norman Rockwell,"Christmas Homecoming," Regency Singers cover art (1997)

Quotations from . . .

Here are some of the quotes I found relevant to the issues:

President Barack Obama

Sony is a corporation. It suffered significant damage. There were threats against its employees. I am sympathetic to the concerns that they faced. Having said all that, yes, I think they made a mistake. . . . We cannot have a society in which some dictator someplace can start imposing censorship here in the United States. Because if somebody is able to intimidate folks out of releasing a satirical movie, imagine what they start doing when they see a documentary that they don't like, or news reports that they don't like. Or even worse, imagine if producers and distributors and others start engaging in self-censorship, because they don't want to offend the sensibilities of somebody whose sensibilities probably need to be offended. That's not who we are. That's not what America is about. Again, I'm sympathetic that Sony, as a private company, was worried about liabilities. I wish they'd spoken to me first. I would have told them, "Do not get into a pattern in which you are intimidated by these kinds of criminal attacks."

President Barack Obama, News Conference, The White House, December 19, 2014

The Guardians of Peace (the Hackers' Threats)

The world will be full of fear. Remember the 11th of September 2001. We recommend you to keep yourself distant from the places [that show the film] at that time. (If your house is nearby, you’d better leave.)

Very wise to cancel "The Interview" it will be very useful for you. We ensure the purity of your data and as long as you make no more trouble. Now we want you never let the movie released, distributed or leaked in any form of, for instance, DVD or piracy [or] anything related to the movie, including trailers."

-- Email excerpts from hackers group, Guardians of Peace, to Sony, as reported in The Guardian and Variety

Sony Statement

We are deeply saddened at this brazen effort to suppress the distribution of a movie, and in the process do damage to our company, our employees, and the American public. . . . We respect and understand our partners’ decision and, of course, completely share their paramount interest in the safety of employees and theatergoers.

-- Brent Lang, "Sony Cancels Theatrical Release for 'The Interview; on Christmas," Variety, Dec. 17, 2014

UI President Sally Mason Statement

The goal of the University of Iowa . . . has always been to provide an environment where all members of our campus community feel safe . . .. The effects of the display [of] a 7-foot tall Ku Klux Klan effigy . . . were felt throughout the Iowa City community [and] caused Black students and community members to feel terrorized and to fear for their safety. . . .

Our students tell us that this portrayal made them feel unwelcomed and that they lost trust in the University of Iowa. For failing to meet our goal of providing a respectful, all-inclusive, educational environment, the university apologizes. All of us need to work together to take preventive action and do everything we can to be sure that everyone feels welcome, respected, and protected on our campus and in our community.

-- Sally Mason, "Mason shares UI's response to Pentacrest art display," Iowa Now, Dec. 8, 2014

UI AAUP President Katherine Tachau Statement

Unfortunately, on Sunday, Dec. 7, President Mason issued a further statement that redoubled the administration’s inaccurate and insulting treatment of Prof. [Serhat] Tanyolacar’s “In Their Shoes,” describing it not as a work of public art or sculpture – which it is – but as a “Ku Klux Klan effigy” and a “display.” According to her message, President Mason regretted “that display immediately caused Black students and community members to feel terrorized and to fear for their safety.” Like those who would censor films or books without having seen or read them, members of the UI administration, who had not viewed the actual artwork “In Their Shoes” for themselves, but who had been hearing from students who were outraged by it since Friday morning, adopted the point of view of some of the many spectators who had encountered the work, and acceded to their demands that it be removed from public view.

-- Katherine Tachau, President, University of Iowa Chapter AAUP, "President's Message," University of Iowa Chapter AAUP NEWSLETTER, Dec. 16, 2014, vol. 12, no. 2

First Amendment

Congress shall make no law . . . abridging the freedom of speech, or of the press . . ..

-- U.S. Constitution, Amendment I (interpreted by the Supreme Court as applicable to all "state" action; counties, cities, school boards -- and state universities)

Alternatives to Law -- and Censorship

Professor Lawrence Lessig

Behavior . . . is regulated by four kinds of restraints.

[1] Law is just one of those constraints. . . . The law tells me not to buy certain drugs, [and] promises strict punishments if these orders are not followed. . . .

[2] Social norms do as well. Norms control where I can smoke; . . . they limit what I may wear . . .. Norms are enforced (if at all) by a community, not by a government. . . .

[3] Markets, too, regulate. They regulate by price. The price of gasoline limits the amount one drives [as the price of cigarettes is recognized as one of the most effective ways to regulate teens' smoking] . . ..

[4] [T]here is a fourth feature of real space that regulates behavior -- "architecture." . . . That a highway divides two neighborhoods limits the extent to which the neighborhoods integrate. [He goes on to explain, in the context of cyberspace, his distinction between "east coast code" (the U.S. Code, containing acts of Congress) and "west coast code" (the software that determines how the Internet functions -- a form of "regulation by architecture" in cyberspace).]

-- Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L.Rev. 501 (1999)

Mason Williams

Someday I hope that someone
Could appear on television & say:
"The President screws pigs"
& the public would individually be
able to say: "That's not right,
& that's not a nice thing to say.

-- Mason Williams, head writer "Smothers Brothers Comedy Hour,"The Mason Williams FCC Rapport, July 23, 1969 (in an aural presentation to the FCC, with guitar, urging, in effect, the use of social norms, rather than government (FCC) control of content)

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Unknown said...

"By limiting, distorting and
obscuring information, the
mass media can limit, distort
and obscure ma's freedom of
action. To the extent that the
media limit his information,
they make a man less than fully
man." William F. Fore page 4 of Teat Pattern For Living by Nicholas Johnson . . . still the most relevant book about living in America I have ever read. Used in my classroom for from 1974 through 1984. I took a leave of absence and when I returned in 3 years all the books in my classroom had disappeared an I was given a set of grammar books to use for my English classes.

Anonymous said...

Lost Teachable Moment

A University President
Forgot for what purpose art is meant.
Sought pardon from th'offended
When she should have defended
Free Speech: a calamitous precedent.

-- Professor

Nick said...

Thank you, Richard Fischer.

-- Nick