An Open Letter from FIRE to the Associated Students of the University of Oregon, February 21, 2005

February 21, 2005

Dear Student Representatives,

By now you are all aware of the ongoing debate over whether the Associated Students of the University of Oregon (ASUO) should approve the mission statement of the Oregon Commentator, a conservative student paper.  The issue arose last fall after the Commentator ran pieces satirizing a student senator.  An ASUO committee subsequently refused to recognize the Commentator as a student publication on two separate occasions, in each case referring to the content of the publication to justify this action.

Since December, confusion seems to have reigned at UO about the ASUO Program Finance Committee’s responsibility to administer recognition and funding in accordance with the First Amendment of the U.S. Constitution and the basic principles of free and open expression.  On February 11, 2005, the Foundation for Individual Rights in Education (FIRE) wrote UO President Dave Frohnmayer, reminding him that “[a]s a state institution, the university and its administrators should understand that it has a non-delegable duty to ensure that the First Amendment rights of its students are protected.” (Emphasis in original.)  FIRE also noted that students on the Program Finance Committee complained of the lack of guidance from the administration on this issue—a complaint that has now been made by two students who voted against the Commentator—and stated, “UO cannot leave this institutional failure unaddressed and uncorrected.”  Yet President Frohnmayer’s February 15 response to FIRE stated that to “intercede” in the ASUO’s decision-making process would be “unwise and premature.”  He went on to express “confidence [that] the final decision regarding funding of the Oregon Commentator will be viewpoint neutral.”

Once it becomes clear that students are seeking to allocate student fees in an unconstitutional manner, we believe it is the administration’s duty to notify the student government that it is exceeding its powers under the law.  Since President Frohnmayer has explained that he is unwilling to fulfill this duty, even in the face of requests for guidance from the students involved, FIRE has decided to briefly explain to ASUO its duties under the law and why refusing to punish the Oregon Commentator is the right thing to do.

As the staff of the Commentator has repeatedly asserted, the Supreme Court’s decision in Board of Regents of the University of Wisconsin System v. Southworth (2000) dictates that student government organizations at state universities that make decisions affecting mandatory student fee funding (such as the ASUO Program Finance Committee) must distribute those funds to student groups (such as the Oregon Commentator) on a viewpoint neutral basis.  Indeed, the situation in the Southworth case was very similar to the current issue at UO, as in both cases some students argued that student fee money should not be spent on groups with which they disagreed.  The Supreme Court determined in Southworth that since state agents are forbidden to engage in viewpoint discrimination, state universities must also distribute funds on a viewpoint-neutral basis.  Since ASUO distributes student fee funds under the authority of UO, the ASUO is also forbidden from discriminating on UO’s behalf.

It is essential that the ASUO understand that the principle underlying the Southworth decision is not some bureaucratic rationale devoid of moral reasoning.  The Southworth decision recognizes  that all students have viewpoints they would wish to support and those they would never support.  In Southworth, some students were understandably upset that their money was being used to support student groups with causes with which they fundamentally disagreed .  The Supreme Court came up with a sensible compromise: universities can collect mandatory student fees as long as they are distributed without any regard for the viewpoint of the group.  In this way student fees become a subsidy for speech in general that supports a richer forum for ideas, rather than a mechanism that might force students to give money to support any particular cause or viewpoint.  The Supreme Court declared this to be the only way to have a fair and equitable student fees system; therefore, discrimination against students on the basis of viewpoint in the distribution of mandatory student fees is considered illegitimate.  ASUO must understand that by trying to use denial of student fee funding as a weapon to silence a group’s viewpoint, it is undermining the very student fee system that doubtlessly benefits its members every day.

It cannot be doubted that the Oregon Commentator’s expression was fully protected satire under the law.  Even highly offensive material, including both satire and profanity, is fully protected under the First Amendment.  We strongly encourage you to read Hustler Magazine, Inc., et al. v. Jerry Falwell (1988), a case that firmly rejected on First Amendment grounds an attempt to punish a publication for mocking a prominent figure.  The Falwell case involved a published (and widely circulated) cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse.  Falwell, along with hundreds of other cases, decisively and clearly protect offensive material, farce, satire, profanity, and exaggeration, and even recognize that the “right to offend” serves a vital societal function.

ASUO’s repeated refusals to fund the Commentator also constitute a continuing and serious denial of the right to free speech.  The Supreme Court has long recognized that denial of constitutional rights, even for a day, constitutes “irreparable harm” and can open an institution to liability for denying these rights.  The longer ASUO goes without restoring the Commentator’s rights, the more serious the offense in the eyes of the law.

Furthermore, ASUO must not delay the recognition of the Commentator in order to find another, seemingly more legitimate, reason for refusing to approve the paper’s mission statement.  In discrimination cases, courts have been extremely suspicious in circumstances where a clearly established desire to punish an entity because of its viewpoint (and this has been clearly established in the Commentator’s case) is later justified by some more “objective” reason.  Any new effort to punish the Commentator will rightly be seen as a transparent attempt to accomplish an illegal aim through legal means, and will only prolong the embarrassment for the university and for ASUO.

Living in a free society means that sometimes we must deal with speech or views that we might find repugnant. When faced with a case in which the urge to punish a viewpoint presents itself, you should remember that you will certainly meet people in life who would like to censor your viewpoints, and who would do so if the Constitution did not forbid it.  As the times change, the censors of today, sadly, are too often likely to be the censored of tomorrow.  Therefore, rather than put the power to define the acceptable limits of discourse in anyone’s hands, the U.S. Constitution puts the freedom to speak in everyone’s hands, leaving only the power of persuasion to determine what ideas will be popular and what ideas will be rejected.  Momentary offense is a small price to pay for freedom.  ASUO must move immediately to recognize the Oregon Commentator and restore fundamental rights to all University of Oregon students.

Sincerely,

The Foundation for Individual Rights in Education