Law, Social Norms and Trump

"That's not nice. Next"
When I was a very young boy, and my mother was making a meal, or otherwise engaged, I'm told she'd turn to anyone handy and say, "Go find Nicky; see what he is doing and tell him to stop it."

That's how more and more traditional Republicans -- and Americans generally -- are coming to feel about Donald Trump.

The week of September 25 was a good example, from his ignoring advice on how to minimize self-inflicted harm during the Monday night debate with Hillary Clinton to his pre-dawn Twitter tirade Friday attacking Alicia Machado (the former Miss Universe).

"There ought to be a law," you say. But there's not.

Abraham Maslow may not have realized it, but he said something relevant to first-year law students when he observed, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." Many of those law students are too quickly tempted to start thinking of all human behavior as a product of legal rights and responsibilities.

There are a number of Trump's controversies that may have legal significance. David A. Graham has listed 19 in a recent Atlantic article: The Beauty Pageant Scandals, Racial Housing Discrimination, Mafia Ties, Trump University, Tenant Intimidation, The Four Bankruptcies, The Undocumented Polish Workers, Alleged Marital Rape, Breaking Casino Rules, Antitrust Violations, Condo Hotel Shenanigans, Corey Lewandowski [former campaign manager], Suing Journalist Tim O'Brien for Libel, Refusing to Pay Workers and Contractors, Trump Institute, Buying Up His Own Books, Undocumented Models, The Trump Foundation, and The Cuban Embargo. (For each he provides "where and when," "the dirt," "the upshot," and "read more.") David A. Graham, "The Many Scandals of Donald Trump: A Cheat Sheet," The Atlantic, September 30, 2016.

But like the law students, we would be wrong to assume our only means of corralling the wild Trump involves courts, judges and lawyers.

Whether we are conscious of it or not, most of what regulates our behavior, to the extent anything does, is not the law as such, but rather social norms: what we eat and how we eat it; the distance we maintain when standing and talking to another; the clothes we do (or don't) wear for various locations, occasions and situations; the verbal and body language we employ when talking to contemporaries or supervisors. Most social norms are unwritten and evolve over time. Some come from our parents, our friends and neighbors in a small community, a religious organization, or our fellow workers at a university or business.

Just as there are penalties for violating the law, so too are there penalties for violating social norms -- including what the community may consider inappropriate speech. (See, Nicholas Johnson, "Was It Something I Said? General Semantics, the Outspoken Seven, and the Unacceptable Remark," October 30, 2010.) Is this a possible course for those concerned about Trump's hateful outbursts? It just may be.

In the summer of 1969, when the Los Angeles creative community -- actors, writers, directors, producers -- became concerned about what some of them thought of as "censorship" of their work by the networks, the FCC eventually agreed to hold a hearing on the matter. The witnesses who appeared were mostly white, male, network lawyers and lobbyists in suits.

The last one to appear was decidedly not a member of that club. It was my friend, Emmy and Grammy winner Mason Williams, head writer for the "Smothers Brothers Comedy Hour," a highly-rated CBS variety program with social and political content. Given the 1960s, Tom and Dick Smothers had generated both a large, loyal following of fans, and significant levels of network executives' anxiety -- anxiety that took the form of New York executives' close review and removal of some portions of the scripts created in LA.

Mason arrived with open shirt and beads, carrying a guitar, and copies for the FCC commissioners of what he called "The Mason Williams FCC Rapport," July 23, 1969. As he played and sang his way through his testimony he read from his "Rapport" some of the brain-bursts he'd entered in his journals (e.g., "Network television wants to keep you stupid so you'll watch it;" "Winning an Emmy from television is like getting a kiss from someone with bad breath"). [Photo credit: Wikipedia, public domain, Ken Kragen & Friends; Mason Williams, 1969.]

One of those brain-bursts, relevant to Donald Trump's speech, posited that someone had leveled an offensive and possibly erroneous charge against the President. (I won't repeat the offensive speech here. It can be found at page 66 of the "Rapport.") Rather than a network censoring the remark, Williams said:

Someday I hope that someone could appear on television and say [the offensive speech] and the public would individually be able to say, "That's not right. And that's not a nice thing to say. Next."

In other words, rather than have the FCC and networks censor creative content speech that violates social norms could be uttered, because society would have evolved to the point that we would simply reject it -- "that's not a nice thing to say" -- and either change channels, or go on to the next item, with the command, "Next."

Have we reached that point? Hardly. Indeed, many are concerned, as I am, that Trump's approach to political campaigning may be seen as a new normal by both the young and those with sufficient celebrity status to consider running for office themselves with a Trump-like campaign.

But there are hopeful signs that social norms regarding speech are beginning to join the other objections to Trump's candidacy -- his lack of political and governing experience, the character of his staff choices (some of whom had to be replaced), his policy proposals (e.g., building the wall, deporting 11 million, use of nuclear weapons), his untruthful utterances, his refusal to reveal his tax returns, and the 19 items involving his business practices noted above.

One source of those signs is what some solidly Republican newspapers have been writing in the course of not endorsing him:

The Dallas Morning News, which has never endorsed a Democratic Party presidential candidate since 1940, wrote: "We reject the politics of personal destruction. . . . He [Trump] plays on fear — exploiting base instincts of xenophobia, racism and misogyny — to bring out the worst in all of us, rather than the best." Editorial, "We Recommend Hillary Clinton for President," The Dallas Morning News, September 7, 2016.

A couple weeks later the Cincinnati Enquirer, which had never endorsed a Democratic Party presidential candidate since 1916, joined the Dallas Morning News with its endorsement of Hillary: "We've condemned his childish insults; offensive remarks to women, Hispanics and African-Americans; and the way he has played on many Americans' fears and prejudices to further himself politically. . . . Trump tears our country and many of its people down with his words so that he can build himself up. Trump has toned down his divisive rhetoric, . . .. But going two weeks without saying something misogynistic, racist or xenophobic is hardly a qualification for the most important job in the world. Why should anyone believe that a Trump presidency would look markedly different from his offensive, erratic, stance-shifting presidential campaign?" Editorial, "It Has to be Hillary Clinton," Cincinnati Enquirer, September 23, 2016

More would come in rapid order. The Arizona Republic, which has never endorsed a Democratic Party presidential candidate since it began publication in 1890 (as The Arizona Republican), wrote: "Trump mocked a reporter’s physical handicap. Picked a fight with a Gold Star family. Insulted POWs. Suggested a Latino judge can’t be fair because of his heritage. Proposed banning Muslim immigration. Each of those comments show a stunning lack of human decency, empathy and respect. Taken together they reveal a candidate who doesn’t grasp our national ideals. . . . She [Hillary Clinton] can move us beyond rancor and incivility." Editorial, "Endorsement: Hillary Clinton is the Only Choice to Move America Ahead," The Arizona Republic, September 27, 2016.

Here's what The Detroit News had to say: "[Donald Trump] rubs hard against the editorial board’s values as conservatives and Americans. [He] is unprincipled, unstable and quite possibly dangerous. .... Trump has attracted support from too many of those who represent the worst of human nature .... Few groups have been spared from his bile. . . . But the most worrisome thing about Trump is that he is willing to stir the populace by stoking their fears of sinister forces at work from within and without to tear down their traditions, values and families .... His sort of populism has led to some of history's great tragedies." The News, which has only endorsed Republican Party presidential candidates since it began publication in 1873, rather than endorsing Hillary Clinton, instead chose to skip Trump for Gary Johnson, the Libertarian Party candidate. Editorial, "Libertarian Gary Johnson for President," The Detroit News, September 29, 2016.

The next day the Chicago Tribune followed the Detroit News' example with its endorsement of Gary Johnson. This was only the third time in the last 169 years that it had endorsed any presidential candidate who was not a Republican (the two prior were both Chicagoan Barack Obama in 2008 and 2012). Its editorial said: "Trump has gone out of his way to anger world leaders, giant swaths of the American public, and people of other lands who aspire to immigrate here legally. He has neither the character nor the prudent disposition for the job." Editorial, "A Principled Option for U.S. President: Endorsing Gary Johnson, Libertarian," Chicago Tribune, September 30, 2016.

Finally, USA Today, one of America's national newspapers, took a different approach -- urging voters to not vote for Trump, while not endorsing any of the other three (Clinton, Johnson, or Stein). (Its editorial board only expresses consensus, and there was no consensus for an alternative.) This is the first time in the paper's 34-year history that it has expressed an editorial opinion for or against a candidate in any presidential election.

The Board wrote: "Trump has demonstrated repeatedly that he lacks the temperament, knowledge, steadiness and honesty that America needs from its presidents. . . . From the very beginning, Trump has built his campaign on appeals to bigotry and xenophobia, whipping up resentment against Mexicans, Muslims and migrants. His proposals for mass deportations and religious tests are unworkable and contrary to America’s ideals. . . . He speaks recklessly. . . . He has coarsened the national dialogue. Did you ever imagine that a presidential candidate would discuss the size of his genitalia during a nationally televised Republican debate? Neither did we. Did you ever imagine a presidential candidate, one who avoided service in the military, would criticize Gold Star parents who lost a son in Iraq? Neither did we. Did you ever imagine you’d see a presidential candidate mock a disabled reporter? Neither did we." Editorial, "Trump is 'Unfit for the Presidency,'"> USA Today, September 30, 2016. And see generally, Tim Dickinson, "5 Conservative Newspapers That Just Went 'Never Trump;' Why Papers That Have Backed Republicans for Decades Broke Ranks With This GOP Nominee," Rolling Stone, September 29, 2016.

(The USA Today editorial is also one of the most thorough in discussing the range of reasons not to vote for Trump, with the following headings: He is erratic; He is ill-equipped to be commander in chief; He traffics in prejudice; His business career is checkered; He isn't leveling with the American people; He speaks recklessly; He has coarsened the national dialogue; He's a serial liar.)

It is significant enough that solid, conservative newspapers that have never lifted a figment of type to help a Democratic presidential candidate, or oppose a Republican, are now opposing Trump -- and sometimes even endorsing Hillary Clinton. And most, like USA Today, have identified and enumerated categories of reasons why he is unacceptable.

But what I find most heartening is the growing formulation of a set of social norms, or political norms, regarding what is, and is not, acceptable speech in presidential campaigns. If this continues, it may just save us from future political candidates assuming Trump-style campaigns are the new normal.

Here's what you and I can do:

Next time you see Trump on TV, listen to what he says, and if you find it unacceptable, say so. Say to whomever is with you -- or out loud even if you are alone -- "That's not right. And that's not a nice thing to say. Next."

# # #

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

Contents 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.
Next."

-- 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)

# # #

What Teens Can Teach Us

October 26, 2007, 6:45 a.m.

Out of the Mouths of High School Student Editors
On occasion, the very fact that two related stories pass like ships in the night, each with no reference to the other, is really bigger news than what each reports.

So it was this week.

On October 24 the Press-Citizen Editorial Board published its take on race relations, Editorial, "All Johnson County should read 'Blood Done Sign My Name,'" Iowa City Press-Citizen, October 24, 2007.

(Not incidentally, the author, Timothy Tyson, is speaking this evening (Friday, October 26) at 7 p.m. in Room C20 of the Pomerantz Center on the University of Iowa campus.)

And just how does the Editorial Board support its rather grand suggestion that everyone in the county should read a book? It says,

"events described in this book are not fictional and are not part of some distant past. The One Community-One Book committee chose Tyson's book for all Johnson County to read precisely because the retelling of this story raises so many still relevant questions about race and identity, about law enforcement and justice, about historical memory and willful amnesia.

And it goes on to quote Washington Post reviewer Jonathan Yardley who tells us that the author's "chief aim is to persuade us that Americans are blind to their own history -- or, even worse, determined to falsify it -- and that they cannot hope to resolve the deepest and most intractable of all the country's problems, race, until they are willing to look history directly in the eye."

Fortunately, this issue of the paper made it onto the newsstands and porch steps of Iowa City.

Because, as a news story in that very same issue of the paper reported, another community paper, with a history of national awards that would be the envy of any commercial publication, was not so lucky. Rob Daniel, "Survey Prompts Pulling of School Newspaper," Iowa City Press-Citizen, October 24, 2007.

You see, it turns out that the Iowa City City High Little Hawk newspaper Executive Editor, Adam Sullivan, and his staff decided that rather than just urge their readers to read a book about "the deepest and most intractable of all the country's problems" they would gather some actual data about that portion of the problem that exists within their own high school in an effort to promote some discussion and solutions.

Rather than praising these teenagers' commendable and constructive efforts -- going well beyond those of the county's well-meaning, book-reading adults, focused on problems far from Iowa City 30 years ago -- City High Principal Mark Hanson decided the better course of action would be to seize all the copies of that issue of the paper (without telling Sullivan or others on the staff) in an effort to prevent this recognition of the school's very real racial challenges.

Why? Well, you see, apparently in Hanson's view, the problem in the school was not the pre-existing tension and prejudice between the races at City High, the problem was writing about it. (The story, in fact, reported a survey of student option -- you know, "data gathering" -- that revealed to no one's surprise that 13% of the white students are responding with prejudice to their characterization of an entire race, in short, to a label rather than individual persons with unique personalities.)

Here are my reactions:

1. Principal Hanson's reaction to a newspaper story reminds me of Defense Secretary Rumsfeld's reaction to the photographs from Abu Ghraib.

As Secretary Rumsfeld characterized the problem in his testimony before the U.S. Senate, "It is the photographs, the people running around with digital cameras."

The problem, in short, was the public relations impact on American citizens (and possibly the president's re-election), and on Iraqis' "hearts and minds." The problem was not our pre-interrogation techniques, the problem was the pictures of those techniques. No cameras, no problem.

Did Principal Hanson really think it was the newspaper report that caused what this morning's Gazette on-the-one-hand-on-the-other-hand editorial characterized as "three separate verbal confrontations" -- Hanson's offered explanation for seizing the newspapers? Did he really, like Rumsfeld, think if only there was no newspaper there would be no problem? It sure looks that way.

Had he made any prior effort to gather this data on his own? If not, why not? Was he aware of a race relations problem in his school? Had he done anything proactive to address it, or even to promote discussion? We now know what he is against, but what is he for?

"Just because you can get away with it doesn't mean you should do it."
2. As a lawyer, it is with sadness that I note the extent to which the existence of legal standards can contribute to the absence of moral and ethical restraints -- as well as common sense.

Want a couple examples?

Because alcohol is "legal" and "drugs" are not, we send users of the latter to fill our prisons, and wink at the use and abuse of what is, by any measure, our nation's number one hard drug: alcohol (in terms of numbers of persons impacted, the seriousness of that impact, economic loss, relation to crime, and seriousness of medical consequences).

The UI's athletic program argues there's nothing wrong with its profiting from partnerships with organized gambling. Why? Because gambling casinos are legal in Iowa.

Did Hanson have the legal right to do what he did? Notwithstanding Iowa's legal protections for the free speech of high school journalists, he may have -- though I don't think it's as clear a case as has been represented.

The law says a principal can intervene in the case of a high school newspaper containing material that is obscene, defamatory, or that encourages students to engage in behavior that is unlawful or violative of school regulations.

Clearly, the survey and story violated none of these standards -- indeed, quite the contrary.

It is the final category on which Hanson relied: newspaper content that will cause the "material and substantial disruption of the orderly operation of the school."

There are three arguments one might make as to why he was wrong.

1. As a matter of fact finding, a common sense, colloquial interpretation of the standard would suggest that "three separate verbal confrontations" -- something that probably occurs on occasion among faculty, as well as among students in the hallways, and is sometimes but a prelude to constructive discussion and problem solving -- scarcely constitutes a "material and substantial disruption of the orderly operation of the school."

2. Legally, while I doubt one would win the argument (for a variety of reasons) I think there's a question as to whether this provision is constitutionally "void for vagueness." Under Hanson's interpretation a principal might very well conclude that criticism of the principal, or his or her unpopular policies, would cause "disruption of the orderly operation of the school."

3. Moreover, given the context of the other named standards, one could also argue that conventional principles of statutory interpretation should rule out the possibility this provision provides a carte blanche grant of justification for principals to act on their every whim, or otherwise render meaningless the statutory purpose of providing protection for student editors.

Even assuming what he did was legal, the far greater wisdom is to be found in what Rob Daniel quotes Adam Sullivan as saying: "Legally, he may have been able to do that, [but] just because you can get away with it doesn't mean you should do it."

The Press-Citizen is right. It would be good for all of us to read Blood Done Sign My Name. It might be even better if we were also to read that survey and story in the Little Hawk and reflect on racial prejudice in Iowa City in 2007 as well as in Mississippi in the 1970s.

Additional stories:

As always, see State29 -- on this topic: "Da Principal is Yo Pal," October 24, 2007.

Erin Jordan, "School paper editor defends survey; The Iowa City High student says he sought to stir discussion about racism - and ran into censorship," Des Moines Register, October 25, 2007.

Gregg Hennigan, "Confronting Discrimination; Despite Confiscation, City High Newspaper Pursues Race Issue," The Gazette, October 26, 2007, p. B1.

Editorial, "Censorship Not Always Black and White," The Gazette, October 26, 2007, p. A4.

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