Maryland Senators and University of Maryland Violate First Amendment over X-Rated Film Showings
April 3, 2009
by Adam Kissel
Under intense pressure from the Maryland Senate, the University of Maryland has cancelled a student-run campus event that would have included an educational event by Planned Parenthood and then a screening of the self-described "XXX"-rated film Pirates II: Stagnetti's Revenge.
Maryland Senator Andrew P. Harris introduced this amendment to the budget bill that happened to be before the Senate yesterday:
Further provided that no general funds will be provided to any public higher education institution that, on or after April 2, 2009, sponsors, sanctions, promotes, endorses, or allows a public screening of any film that is marketed as a XXX-rated adult film, except for a screening as part of an official academic course offering open only to students enrolled in that course.
The language would have been unconstitutionally overbroad, essentially removing all general funds from a public college that "allow[ed]" student groups to screen films that are marketed as XXX, regardless of their actual content, context, and purposes—educational, social, or cultural. No matter the First Amendment, however: Senate President Thomas V. Mike Miller indicated he would vote for it.
The Washington Post reports that "Behind the scenes, conversations ensued between a university lobbyist, College Park President C.D. Mote Jr., University System of Maryland Chancellor William E. Kirwan and other officials."
The Baltimore Sun has quoted me on the cancellation:
[I] said the legislature was "far out of line" for threatening to withhold funding and said Mote's apparent "capitulation" was "distressing."
"I think because of the autonomy that a public university ought to have versus the legislature, the president should not have canceled the film," Kissel said, though he added it was not immediately clear whether the pornographic film would have constituted protected speech under the First Amendment.
Obscene content is not necessarily protected under the U.S. Constitution, Kissel said, but the fact that the student committee planned to have Planned Parenthood give a pre-screening presentation on safe sex practices before the film strengthens the First Amendment argument. Planned Parenthood, while saying it does not endorse pornography, had accepted the invitation as a way to educate students.
It is hard to keep up with the international press generated around this issue. A spokesperson for Digital Playground, the film's producer, reports a number of television appearances, including CNN and BBC. The story also has been covered in Thailand, Australia—twice, France, South Africa, and New Zealand, not to mention the major U.S. media. Several of the international stories generated by an Agence France-Presse (AFP) story also quote me:
Linda Clement, the university's vice president of student affairs, denied the cancellation was linked to threats made by state lawmakers.
"No, we cancelled the (showing) because the educational context of the movie has been lost in the titillation that's been associated with the movie itself," according to Clement's spokesperson Millree Williams.
"That's hard to believe," responded Adam Kissel, director of the Individual Rights Defence Programme at the Foundation for Individual Rights in Education based in Philadelphia, Pennsylvania.
The university's claim, he said, was extremely unlikely because beforehand "university administrators had known about it, had expected it to go on and they had no problem with it".
Kissel said his education rights group was "very concerned" about the likely constitutional violation, namely the First Amendment that protects free speech.
"Strictly based on the plot and the trailer, the movie has plenty of action beyond the sexual action - it has a plot, it has intrigue, just like any movie."
Indeed, the Sun reports that the decision to cancel the event came from Linda Clement, Vice President for Student Affairs, who said:
I think people were concerned about portrayal of women, concerned about violence, concerned about our students and decision-making processes ... We were losing sight of the educational value that might come from some kind of exercise like this, so it just seemed like the best thing to do.
But pulling the plug on a previously approved, student-sponsored expressive event violates the group's First Amendment rights. It is not up to a public school administrator to engage in prior review and decide whether an event has sufficient educational or other merit to overcome allegations of obscenity. The university's attempt to re-focus the case on the film's purported political views about women makes the censorship even more suspect under First Amendment analysis, not less. In addition, as I suggested above, unlike many XXX movies (I presume) Pirates II has a real plot to go along with the X-rated scenes. Moreover, the film was to be shown along with an explicitly educational event, the Planned Parenthood discussion. Further, the event organizers are on the record stating that the screening was intended for the social purpose of giving students something fun to do other than drinking—something to which the university did not object prior to the undue political pressure.
Finally, the university has shown pornographic movies before, so the capitulation to political pressure in this case is quite clear. As the The Washington Post reports today:
The screening would not have been the school's porn premiere. In the 1980s or ‘90s, Cunningham said, there was a soft-core series called "Take It Off at the Hoff." Several years ago, "Deep Throat" was shown to a sellout crowd, with few complaints. More recently, some doctoral candidates held a film series looking at ways that Elizabethan plays have been referenced in hard-core movies. They called it "Shakesporn."
Now that the showing of the film has been made so controversial, Linda Clement has a very strong incentive to reverse her ill-considered decision on educational grounds. It is completely backwards to say that the controversy made the showing less educational, when in fact the controversy has opened serious issues for debate: government censorship, freedom of speech, what counts as truly obscene in the legal sense, the educational and cultural value of potentially distasteful or offensive art, and so on. With their ill-considered actions, the university and the Maryland legislature have actually created a situation in which showing a pornographic film will enrich campus discourse about important issues. Remember: We're talking about adult college students, not eighth graders. As Greg wrote in The Huffington Post about this case, "With all the uproar, you would think these were children forced to watch the film, rather than adult college students engaged in perfectly legal behavior."
The University of Maryland must reverse its decision to cancel the event and restore First Amendment rights on campus. Following this, the University has an opportunity to make the event even more educational by keeping First Amendment issues on the minds of students in the coming weeks.
As for Senator Harris, he should be ashamed that he contemplated such an amendment. Does the senator really think it is wise to encourage a public university to engage in unconstitutional prior review? FIRE can offer a laundry list of examples of how poorly that idea tends to work out.
The First Amendment champion in the legislature is clearly Senator Jamie Raskin, who spoke against the amendment. It will probably not surprise FIRE's supporters that Senator Raskin, a law professor, is involved with FIRE as a member of FIRE's Board of Editors for our Guides to Student Rights on Campus project. According to The Associated Press, he said:
[N]o one had to watch the movie, and that it "should not be up to politicians to try to dictate to the citizens what movies they are going to see." He also pointed out that a student group had organized the film's showing.
"Anybody who doesn't want to see it doesn't have to go see it, and I think it's utterly absurd that we would say: ‘We're going to cut off every dollar to the University of Maryland ... if one movie is shown to a handful of students who show up that night," Raskin said.
Unfortunately, the university capitulated before Raskin's cooler and wiser (not to mention constitutionally sound) arguments could prevail, but it is not too late for the university to reverse its decision.