with additional reporting by Katherine Ludwig
Like so many paths you don’t want to travel, the road to censorship is paved with good intentions. The desire to protect turns into an act of suppression.
 “I think it’s the magnitude, the scope, the extent of the control of climate change and global warming information that’s been most troubling,” Robert O’Neil says of the Bush Administration’s attempts to doctor science. |
It’s always a message that Robert O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression, finds in the annual Jefferson Muzzle awards. His Charlottesville-based organization has been giving out Muzzles to free speech offenders nationwide since 1992, and recipients have ranged from the Clinton Administration to hecklers of Ann Coulter.
The 14 Muzzles awarded in 2007 are no exception to a persistent trend that Robert O’Neil sees of laudable intentions underlying two-thirds of the Muzzles given out in any given year. This year, Muzzles go to the Philly human relations commission looking out for immigrants, the NCAA looking out for Native Americans, a legislature trying to keep away terrorists, a school board backing up an allegedly threatened teacher, and several high school principals trying to avoid school fights.
The end results these offenders fought for may be noble—but that doesn’t mean they can step all over the right to free expression to get there. And defending free expression in all its forms is the sole focus of the locally based Thomas Jefferson Center, so named to honor the third president’s dedication to free speech. It’s no coincidence the Muzzles are always awarded around T.J.’s April 13 birthday.
Schools, in fact, are the most consistent violators of free expression, says O’Neil, a UVA Law School professor and former UVA president. Six school districts win 2007 Muzzles for their actions to censor their students. The Supreme Court is mentally wrestling once again with a school speech issue in the Morse vs. Frederick case argued in March that involves a mischievous student who displayed a “Bong Hits 4 Jesus” banner as the Olympic torch passed through town (the Thomas Jefferson Center filed a brief in support of the student). O’Neil points out that the schools’ humorless responses reflect the zero-tolerance policies post-Columbine.
But limiting free speech isn’t always about protecting someone else—it’s sometimes about you, particularly when you are being criticized and when you are powerful enough to do something about it.
And few are in a more powerful position than President George W. Bush, whose administration gets a big fat Muzzle this year for mucking around in scientific business better left to researchers.
What’s the point behind these dubious distinctions? “I guess we say first, these particular transgressions deserve to be duly noted and to be the subject of some public criticism,” O’Neil says. “Second, we hope that others may be dissuaded from doing likewise seeing that such a judgment was visited on someone who did. And third, I think it is a kind of barometer where, in a very general way, the most dramatic threats to free expression arise.”
And the Muzzles go to…
The Bush Administration
For its unprecedented efforts to silence science
“It gets worse every time there’s a new disclosure of how much global warming information we have not received and how it’s been truncated and distorted,” says O’Neil. “The concerns intensify. What’s troubling, I think, is that it’s come from so many different sources—from university scientists, from government scientists, independent contractors—a host of different sources have reported that they were either directed to change conclusions or conclusions they submitted were rejected or the project was redone in what were clearly biased hands.”
There is now a plenitude of evidence that the Bush Administration interfered with the conclusions of scientists. Phillip Cooney, former chief of staff for the White House Council on Environmental Quality (and former oil industry lobbyist), made 181 changes to three government climate reports, many of them “to align these communications with the administration’s stated policy.” Political appointees suppressed a fact sheet from the National Oceanic and Atmospheric Administration that suggested global warming is contributing to increased hurricane activity.
Among the most reported on is the case of James Hansen, director of NASA’s Goddard Institute for Space Studies and a leading global warming researcher. Hansen went public with his complaints after he was warned that he faced “dire consequences” if he continued saying that the earth might change without reduction of greenhouse gas emissions. A White House public affairs officer wouldn’t let him do an NPR interview, arguing his job was “to make the President look good.”
The TJ Center cautions it’s not taking sides in the scientific debate—it’s the political silencing in research that’s the problem. “I think it’s the magnitude, the scope, the extent of the control of climate change and global warming information that’s been most troubling,” O’Neil says.
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The Philadelphia Commission on Human Relations
For claiming a “Speak English” sign is discrimination
Philly, the city of brotherly love, may be known for its cheesesteaks—but in the case of Geno’s Steaks, brotherly love and cheesesteaks can produce a little heart burn.
The city’s Commission on Human Relations didn’t like the sign that Geno’s’ owner, Joey Vento, posted over the counter in response to the neighborhood’s growing immigrant population: “This is America… When Ordering, Speak English.” Despite the fact that no complaint was filed about denial of service on forbidden grounds, the commission cited Geno’s with a violation of city anti-discrimination laws.
“The issue is not whether anyone has been denied service, but that such a sign discourages people from coming asking for service,” said Commission Chairman Rev. James S. Allen, Sr. Much of his concern was about the “image” of Philadelphia.
But the TJ Center thinks that’s not the issue. So long as his views don’t cross lines into service, a restaurateur is entitled to his opinion, no matter how many others find them offensive. Si, es verdad.
Watson Chapel School District in Arkansas
For suspending students who wore black armbands
If Watson Chapel School District has a Supreme Court history class, it should give itself an F. Almost 40 years after the highest court upheld the right of students protesting the Vietnam War to wear black armbands in Tinker v. Des Moines School District, Watson Chapel administrators suspended roughly 20 students in Watson Chapel’s junior high and high school for wearing black armbands in protest of the school district’s dress code.
Back in 1969, the Supreme Court said that there was no reason to think the armbands would “substantially interfere with the work of the school.” The disruption, in fact, came from the school’s punishment.
But even putting that aside, Watson Chapel deserves a Muzzle for the double-standard of its dress code, which didn’t even prohibit armbands. In fact, the school sold black armbands to students with “Watson Chapel” printed on them. One of the suspended students had previously worn a white armband with a Bible verse.
The ACLU entered the picture, filing suit on behalf of three of the students. In October a judge issued a temporary injunction allowing Watson Chapel School District students to wear armbands without fear of punishment.
U.S. Representative Peter King (R-NY)
For demanding criminal charges for good reporting
That whole freedom of the press thing—it can be a little tiresome when you’re trying to operate a covert surveillance program.
The New York Times broke news of the Bush Administration’s domestic spying program in 2005 (which earned the President a 2006 Muzzle), and in 2006 reported on another Bush Administration secret program bent on monitoring international financial transactions for terrorist activity.
Enter New York Representative Peter King.
Others criticized The New York Times for its actions, but only King went this far: “I’m calling on the Attorney General to begin a criminal investigation and prosecution of The New York Times—its reporters, the editors who worked on this, and the publisher,” King told Fox News in June.
“Some release of some such information might be subject to a valid charge under the Espionage Act,” says O’Neil. “[King] seemed to us to be going way too far.”
No wonder those crazy Founding Fathers explicitly command in the First Amendment that “Congress make no law abridging the freedom of speech, or of the press.” We guess that press-fearing congressmen like King are a timeless trend.
The Federal Communications Commission
For broadening the scope of forbidden “profanity” and “indecency”
Two contestants on the CBS show “The Amazing Race” disembark from a train. As the camera tracks them, in the background, graffitied on the train, is the phrase “Fuck Cops.” It is visible for a matter of seconds.
 After Bono’s f-bombing during the 2003 Golden Globes, the FCC ruled that any use of the word “fuck” is deemed “to have an inherently sexual connotation.” In March, the FCC found that the expression, “This is bullshit,” in an “NYPD Blue” episode constitutes indecency. |
That inadvertent glimpse of the f-word earned CBS scrutiny from the FCC for possible sanctions. After Bono’s f-bombing during the 2003 Golden Globes, the FCC ruled that any use of the word “fuck” is deemed “to have an inherently sexual connotation.”
Though the FCC ended up ruling that this is “one of the rare instances in which this presumption is effectively rebutted,” such investigations are all too common now. The TJ Center criticizes the level of scrutiny that increased with a complex FCC report issued last March.
“Profane has been in the statute along with indecent and obscene since 1927,” says Robert O’Neil, founding director of the TJ Center, “but effectively there has been no targeting of nonindecent profanity until this order last spring. And that marks for us a very worrisome new departure.”
O’Neil cites the damage done to the career of Sarah Jones, a singer whose single was subject to an indecency inquiry, causing many radio stations to opt not to play it for fear of FCC fines. The process didn’t allow for appeal, and so Jones was left in regulatory limbo.
Remembering that the FCC interest in stepping-up its codes and fines stems from the 2004 Super Bowl Halftime Show, C-VILLE can only bemoan: What a staggering price we have paid for a fleeting glimpse at Janet Jackson’s breast.
The Ohio General Assembly
For bringing back a new version of the loyalty oath
Muzzling for speech abrogations in the name of the War on Terror are nothing new—ever since 9/11, federal agencies and the dear President have been earning them right and left. But 2007 marks the first time a Muzzle goes to a state legislature for such an act.
Pondering the age-old question, “How do we avoid hiring terrorists?,” the Ohio General Assembly in its infinite wisdom found divine inspiration from one Joseph McCarthy. In their state-level version of the PATRIOT Act, the Ohio legislature included a provision that makes anyone seeking a state job answer six questions about terrorist activity, such as, “Have you hired or compensated a person you knew to be engaged in planning, assisting or carrying out an act of terrorism?” Any answer other than “No”—including a failure to respond—to any of the six questions immediately disqualifies the applicant and could bring further scrutiny.
“As with all loyalty oaths, the person least likely to be deterred is the genuine subversive,” O’Neil says. “It’s just that we’ve forgotten all that because it was 30-some years ago since we last had occasion to focus on these issues.”
Kentucky Governor Ernie Fletcher
For selectively blocking access to political blogs
It’s undeniable that Internet access siphons away some productivity from the work place, but it would be a strange set of state employees who are only distracted by liberal bloggers.
Such is the essence of the explanation Governor Ernie Fletcher offers for why his administration blocked state employees from accessing a blog critical of his governance: He did it to increase productivity.
Fletcher was embroiled in criminal charges of political patronage when The New York Times last summer quoted a Kentucky political blogger, Mark Nickolas, who wrote that the Fletcher Administration was “peddling ludicrous conspiracy theories.” The very next day, the Governor’s administration banned state employees’ access to Nickolas’ blog, BluegrassReport.org, along with a few other Democratic websites. Fletcher billed the ban as comprising all blogs, but state employees were allowed to slake their thirsty minds with all the Drudge Report and Rush Limbaugh they could stomach.
Nickolas has filed suit in federal court. On March 30, 2007, the court refused to dismiss the case and the matter is now pending. Fletcher’s former commissioner of the Commonwealth Office of Technology has gone on the record with a local paper to say that his deputy bragged he blocked Nickolas’ blog and “hid it in a bunch of other stuff.”
The Maine Bureau of Liquor Enforcement
For trying to “dignify” beer labels
 Alcoholic beverage bottles: Where society always turns to learn values of dignity and propriety. This view of Santa’s butt was ruled too much for the good people of Maine. |
It would seem that Santa Claus, appropriated through the ages by virtually every commercial outfit trying to make a buck around Christmas, has done it all. But the Maine Bureau of Liquor Enforcement couldn’t bear the indignity foisted upon jolly ol’ St. Nick by the Shelton Brothers beer distributors: They banned a holiday-themed beer named Santa’s Butt Winter Porter, citing as “undignified or improper” the label illustration that prominently features (you guessed it) Santa’s butt.
The Maine hop cops also kept out two other beers distributed by the Shelton Brothers. The issue this time? Bare-breasted women on the labels. This despite the fact that one was a detail from Eugene Delacroix’s painting “Liberty Leading the People” which hangs in the Louvre.
Alcoholic beverage bottles: Where society always turns to learn values of dignity and propriety.
The Shelton Brothers took the Maine agency to court, and after the Maine Attorney General determined that the Shelton Brothers would likely win, the bureau reversed its decision. Had they followed the news in New England, they might have known better: Connecticut’s liquor bureau tried and failed to censor bottle labels in 2005.
Charles A. Beard Memorial School Corporation of Knightstown, Indiana
For punishing its students’ energy and creativity
You would think school administrators would laud four students who chose to spend their time out of school making a 78-minute movie in which good triumphs over evil. Not the Charles A. Beard Memorial School Corporation—at least not when teddy bears attack. They expelled the four sophomores for threatening a teacher.
In the video movie The Teddy Bear Master, which the students sold on MySpace for $5 a pop, a high school student with the ability to control stuffed animals orders his fluffy minions to kill a teacher who embarrassed him. The demented plan is foiled by other students, however, who take out the teddy bears and rescue the teacher. The problem? The fictional teacher shared a name with an actual teacher at Knightstown Intermediate School.
Feeling threatened by the cuddly bears, the teacher took a copy of the movie to the Henry County Sheriff’s Department. While prosecutors looked into it, the school officials suspended and then expelled the four indie filmmakers. When the prosecutors found the video contained no criminal threat and declined to press charges, the stubborn administrators claimed the students’ actions had “disrupted” school operations.
To the rescue came the ACLU, which filed suit on behalf of two of the expelled students. The school system eventually settled the case, expunging the students’ records and paying $69,000 for their attorney fees.
The United States Department of Defense
For snooping on peaceful protesters
In these post-9/11 days, Americans seem to have a higher tolerance for government invasions of their space and privacy in the name of national security. (We all understand that the Constitution does not protect our right to fly with fingernail clippers in our carry-ons.) But when the government treads on our civil liberties in the name of protecting our American way of life (which is defined by, uh, our right to civil liberties), it’s more than a little ironic.
That’s exactly what the Department of Defense (DOD) did when it reached its surveillance talons into the operations of several peaceful anti-war protest organizations. And we mean talons literally.
In 2003, the DOD created a covert data gathering and storage program called TALON (Threat and Local Observation Notice)—a Web-based data entry system through which civilians and military personnel can report suspicious activities and potential terrorist threats. Through TALON, the DOD began monitoring the activities of political protest groups across the country—from those criticizing the war in Iraq to those taking issue with the “don’t ask, don’t tell” policy for gays in the military. By the end of 2005, DOD had compiled a database of more than 1,500 “suspicious incidents.” The Feds even got their claws on private e-mail communications among anti-war protest organizers, many of them on college campuses.
The worst part, according to the TJ Center, is that the DOD retained innocuous e-mails and personal data on these groups long after their threat to national security would have been proven invalid (if not ludicrous).
In the midst of public outrage, the Pentagon has now purged the database of any reports on groups that have no connection to international terrorist activities.—K.L.
The City Council of East St. Louis, Illinois
For canning a public access show that criticized them
Free speech from call-in show host Lee Coleman, who operated the city’s public access cable TV station, was fine and dandy with the East St. Louis City Council—until they had to handle a tongue lashing themselves.
Coleman, awarded a 15-year contract in 2005 to operate the station “for the purpose of providing community programming and information dissemination,” began criticizing the city’s administration in 2006 and brought in as occasional guest the former city manager, who was running for mayor. After City Council announced they would pull the plug on the cable channel, Coleman showed photos of dilapidated city properties and questioned the raises City Council had voted for themselves.
The channel went dark the next day.
Coleman sued, and a St. Clair County judge ruled in his favor, claiming that the city didn’t adequately show cause.
Even though the case was decided on the basis of the contract, First Amendment principles strongly support Coleman, according to the TJ Center. Government officials can’t change a deal to silence their critics.
The Miami-Dade County (Florida) School Board
For banning kids’ books on Cuba
Move over Elian Gonzales—there’s a new poster child for the Cuban-exile community in Miami. Or make that poster children: all those in attendance at Miami-Dade elementary and middle schools with access to a library book called A Visit to Cuba. At least one community member (and former political prisoner under Fidel Castro) convinced the Miami-Dade School Board that the picture book made life under the communist dictator seem a little too pleasant. In response to the complaint, the Board voted to ban the book from library shelves, as well as 23 other titles in the picture book series on life in other countries.
The Florida ACLU filed suit, prompting U.S. District Court Judge Alan Gold to issue a temporary injunction against removing the books. Judge Gold said that by banning the library books, the Board denied kids even voluntary consideration of the themes contained in them and thereby implicated the First Amendment.
Undeterred by the constitutional rights at stake, the School Board appealed the injunction and then voted to strip the libraries of yet another picture book, Cuban Kids, f
or being too favorable to Fidel.
While the Supreme Court has held that school boards have discretion over their library shelves, it has also held that such discretion may not be exercised in a “narrowly partisan or political manner.”
For playing politics with picture books, the Miami-Dade School Board earns a Muzzle.—K.L.
The National Collegiate Athletic Association
For its arbitrary policy on team logos and mascots
The NCAA had good intentions at heart when it decided in 2005 to impose a ban on the use of Native American imagery, names and symbols in universities’ postseason play. But in 2006 it became increasingly clear by NCAA hair-splitting that, where this rule is concerned, not all schools are created equal.
 The NCAA gave William and Mary the right to keep its nickname, the Tribe, but not the two feathers on its athletic logo. Florida State, meanwhile, retained everything—its Seminole nickname, its spear-and-feather logo and its war-painted, horse-riding, spear-tossing mascot. |
The College of William and Mary won the right to keep its nickname, the Tribe, but lost two feathers on its athletic logo. Florida State, meanwhile, retained everything—its Seminole nickname, its spear and feather logo as well as its war-painted, horse-riding, spear-tossing mascot. Don’t expect the FSU faithful to stop doing the “tomahawk chop” during football games in Tallahassee.
The NCAA’s justification? Seminole tribe leaders say they’re O.K. with Florida State’s usage, but no tribe can vouch for William and Mary’s. Of course, Florida State is a big-time Division I school with football national championships and 37,000 students. And William and Mary is almost always lost in the sports shuffle.
“We passed over it last year,” O’Neil says, “but this year we felt the anomalies were too acute not to take note.” In issuing the Muzzle, the TJ Center writes that even if the First Amendment can’t be directly invoked here (as there’s no state actor), “it is still important to recognize that paternalistic censorship is an inadequate way to reconcile tradition and school spirit with the educational prerogative of eradicating institutional racism.”
Ben Davis High School (Indianapolis, Indiana), Princeton High School (Cincinnati, Ohio) and the Wyoming Valley West High School (Kingston, Pennsylvania)
For censoring student publications
The TJ Center always has to reserve a slot for school leaders who are afraid that school students can’t handle any ideas but the most bland. This year, they decided to jointly Muzzle these three school districts for silencing student publications because they printed opinions that other students might actually care to read.
“When we cite in particular these three schools, they are simply illustrative of a far larger group of censorious activities,” O’Neil says. All in the very place where one is supposed to learn about the First Amendment.
Imitating the style of most sports columnists, Evan Payne criticized his Princeton High School’s losing football team in a school magazine, writing, “I wonder if [the players] want to be on the field on Friday nights.” The coach thought it unfair, but didn’t ask it be pulled. Yet the principal objected, and student staff ripped it out of the publication.
Justifying the action, school district Superintendent Aaron Mackey said, “You’re dealing with a very large football squad, not in stature but in numbers. You’ve got one kid putting his neck out there. It may not be in his best interest to have that article. This is not a threat, but it creates an attitude and a situation between kids.”
Hmm…wonder how scrawny but acerbic sports commentator Tony Kornheiser gets through all those thrashings from the 300 pounders he criticizes. For the record, Payne was so afraid that he posted his article online at Facebook and MySpace.
In Ben Davis High School, an editorial decrying illegal immigration was the topic that administrators didn’t want in the market place of ideas. The school principal had the school paper lifted from the racks because of an unsigned editorial that said “illegal immigrants are doing nothing but breaking our laws.” The paper’s masthead read that the paper was an “open forum,” implying that others would have an opportunity to respond. As the TJ Center writes in their Muzzle, “many administrators incorrectly assume that because something is provocative, it is also disruptive.”
The third part of the Muzzle is awarded to Wyoming Valley West High School for barring the publication of a poem in a high school literary magazine. The poem recounted in literary fashion the suspension of a student caught by a “demon” of a teacher without a hall pass.
The Italian poet Dante sets a bad example for the youth in this regard. He, after all, notoriously banished his real-life enemies to hell in his fictional poem, Inferno.
Maybe his works should be banned too.
The First Amendment to the United States Constitution
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
