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Thursday, March 12, 2009

"Freedom of speech is not absolute."

Posted by on Thu, Mar 12, 2009 at 9:51 AM

That's an interesting argument for a law professor to advance—I mean, we all know that you're not allowed to scream "fire" in the proverbial crowded theater (unless your proverb is actually on fire), and libel is a no-no, but most Americans regard freedom of speech as absolutely absolute otherwise, particularly where newspapers are concerned, seeing as...

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....

But a sex column in a student newspaper at the the University of Montana has two law professors arguing against freedom of speech and in favor of censorship.

A University of Montana law professor has taken her concerns about a weekly sex column in the student-run newspaper, the Montana Kaimin, to top school administrators. Professor Kristen Juras wrote a letter last week to UM President George Dennison and School of Journalism Dean Peggy Kuhr.... And, Juras said she'll take her complaints about student Bess Davis' “Bess Sex Column” all the way to state higher education officials if necessary.

“Freedom of speech is not absolute,” Juras said Wednesday in a telephone interview. “There is accountability and responsibility. (The Kaimin is) funded by taxpayer dollars and tuition fees for an educational purpose, and they have to stay within that purpose.”

You could argue that a sex column serves a crucial "educational purpose." Many students today arrive at college dangerously misinformed about sex and for their own health and safety—and for the health and safety of their partners—they need to be brought up to speed on birth control, disease prevention, obtaining consent, etc. Someone has to undo the damage done by those taxpayer-funded abstinence-only "education" programs many of today's yound adults were subjected to in high school. You could even argue—and I shall now argue—that a college newspaper that doesn't feature a sex column that stirs messages about safety and responsibility in with the kind of sensationalistic sex tips that keep students reading is being negligent.

Another of the school's law professors, Rob Natelson, accused the student paper of "distributing porn among unmarried post-pubescents" in the form of a sex column. Um, Professor Natelson? Unmarried post-pubescents looking for porn don't rush out in the morning to pick up a student newspaper. If you're concerned about keeping porn from unmarried students you should lobbying the state legislature to ban Internet access on your campus, not hounding the editor of the student newspaper about what is a rather tame sex column.

And finally...

The column gives tips on everything from cheap, stay-in dates to new sexual positions. In fact, Davis, a 21-year-old senior in journalism, describes the column as “vanilla” compared to other sex columns published nationally...

Gee, way to throw me under the bus, Bess. Thanks.

UPDATE: Lee in comments makes a great point. We shouldn't be arguing about free speech here—although that is where the profs chose to go—but instead about what exactly a student newspaper is for.

I think the counterargument needs to take place on a completely different level: broad operating freedom for this student newspaper, and a certain level of shielding from state politics, is the only way to preserve the educational value of the enterprise. In other words, Montana taxpayers are funding the opportunity for students to run something that has the attributes of a privately-owned media enterprise. They are not funding a state mouthpiece, and the views expressed blah blah blah.

In other words, it should be thought of more as a Model UN, and less as the campus newsletter. No one gets upset when a student, at "taxpayer expense" pretends to represent Iran at the fake UN assembly. Why? Because the whole point is learning, not PR.


Comments (31) RSS

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I assume you're going to come to her rescue, Dan.

By which I mean you'd better fucking come to her rescue, Dan.
Posted by Jocelyn on March 12, 2009 at 9:57 AM · Report this
What do I need sex advice for? All I know is that I have to remain a virgin and wait until getting married before sex is allowed.

Now please excuse me while I go fuck my girlfriend in the ass.
Posted by Urgutha Forka on March 12, 2009 at 10:03 AM · Report this
Student newspapers are usually about as anaphrodisiac as they come. So to speak. Can you imagine getting off, or even casually thumbing through, a copy of the UW Daily?
Posted by Fnarf on March 12, 2009 at 10:05 AM · Report this
Rescue is what rescue does.... do you think the commentators of indecision and dismay would take away your choice of support?

I for one, am glad you posed the question.
Posted by daniel (w.){hunt clubber}thninnymcsavage on March 12, 2009 at 10:15 AM · Report this
Anybody else remember Tim Curry's character from Kinsey?
Posted by Greg on March 12, 2009 at 10:16 AM · Report this
Universities are not for keeping people ignorant.
Posted by Vince on March 12, 2009 at 10:19 AM · Report this
Aren't "post-pubescents" just ADULTS?
Posted by M2 on March 12, 2009 at 10:22 AM · Report this
"No doubt there are people out there who will explain to me why distributing porn among unmarried post-pubescents is such a critical function of government that people should be forced to pay for it."

It's really weird he chose to describe the group so specifically. It almost seems to imply there IS a demographic whose porn consumption should be government-funded.

"On the other hand, Daniel Viehland, 19, considers sex a spiritual act."

Someone is trying *really* hard to score some chicks.

"She's toyed with the idea of oral sex, but she's yet to find an angle."

I find it difficult to believe the editor didn't flag this sentence.
Posted by Gloria on March 12, 2009 at 10:22 AM · Report this
On track with what Dan was saying about how could make an argument about how irresponsible it would be to not have a sex column in the newspaper, Ms. Davis should get together with some people at her school and conduct a study on what percentage of people at the college are sexually active(all of them basically), and what percent were reasonably knowledgeable about sex(I'm guessing 25% this is Montana).
Posted by Goethe's Girl on March 12, 2009 at 10:24 AM · Report this
I wish these kinds of debates could take place on a high school level, too. I remember being the editor of my high school paper back in the day, and there was NO freedom of speech at all and it was very clear, and no one's really stepping in for THOSE students, because it's expected that, since they're so young, they really don't have rights to freedom of speech since they're children. I find it appalling that students aren't allowed to use journalism to express themselves honestly to other students in a constructive way.
Posted by Teresa Jusino on March 12, 2009 at 10:27 AM · Report this
Freedom of speech isn't absolute. It kind of should be, just because the only readily accessible piece of federal law that most people know says it is. But it's not.

Of course, that's not really the point. The point is that the content of student newspapers is governed differently from the content of commercial or privately produced newspapers -- cutting off funding or mandating content in a student paper is not the same thing as censoring the press generally.

Need I remind y'all that Slog readers were all for regulating the content of student papers when the Daily published their little man-on-sheep gay marriage article? Evidently I do.
Posted by Judah on March 12, 2009 at 10:30 AM · Report this
Thank you, #7. I'm 39, and a proud post-pubescent!

I can't believe (well, sadly, I CAN believe) that these people are arguing that college students shouldn't be exposed to the sexual content of a newspaper column. Wait til that law professor hears about the internetsy series of tubes all the students have unfettered access to...
Posted by eric on March 12, 2009 at 10:32 AM · Report this
Well, it's not like she's the only sex advice columnist in town. The internet is full of such creatures. It's like if they shuttered their sports page -- there's always the local paper and/or ESPN, etc.

I don't advocate cutting her column, but if you can find the same information elsewhere, what's the big deal? It's not like she's going to bust out some exclusive a la how to score dates by using twigs, scotch tape, and odd numbers.
Posted by Jason Josephes on March 12, 2009 at 10:33 AM · Report this
It is not a 'speech' issue.
Bess may say whatever she wants.

It is a 'freedom of thr press' issue.

The newspaper's owner has a right to say what it wants.

The owner is the University.

If the University doesn't care for Bess' column it has a right to squash it. For whatever reason it wants. It doesn't have to get Dan's approval.

Anyone who wants to go to Montana and print a paper full of sex is free to.
But they are not free to dictate to the University what to do with it's paper.
Posted by Butt Out on March 12, 2009 at 10:37 AM · Report this
Your column, Dan, is gooey caramel.

PS I want a tee that says "post-pubescent" in generic black letters.
Posted by Oswald Cornelius Durnham on March 12, 2009 at 10:37 AM · Report this
Butt out is exactly right. Freedom of speech is not the same as freedom to have the Government pay to publish your words.
Posted by AnyEdge on March 12, 2009 at 10:42 AM · Report this
All I need to know about sex I learned from the Jonas Brothers and their purity rings.
Posted by @ on March 12, 2009 at 10:43 AM · Report this
There's no such thing as "freedom of speech." Whoever pays the bills makes the rules. Or does anybody here really think The Stranger would publish something if Tim Keck said not to?
Posted by Fifty-Two-Eighty on March 12, 2009 at 11:04 AM · Report this
Natelson is a big player in the Montana GOP having run for governor in at least 2000 (and maybe before that I can't remember). The Legislature is currently in session, this could be used as an excuse to whack at the state higher ed budget.
Posted by Seth on March 12, 2009 at 11:17 AM · Report this
Dan, would you want Fred Phelps telling you what you could and couldn't publish in The Stranger? If others are only free to do what you want them to do they're really not free.
Posted by Rob on March 12, 2009 at 11:35 AM · Report this
No, freedom of speech is not absolute, and specifically that means (to me) that the first amendment does not shield any speaker from the consequences of his or her words, nor does it guarantee any kind of platform for speech other than public space in the most literal sense.

I think the counterargument needs to take place on a completely different level: broad operating freedom for this student newspaper, and a certain level of shielding from state politics, is the only way to preserve the educational value of the enterprise. In other words, Montana taxpayers are funding the opportunity for students to run something that has the attributes of a privately-owned media enterprise. They are not funding a state mouthpiece, and the views expressed blah blah blah.

In other words, it should be thought of more as a Model UN, and less as the campus newsletter. No one gets upset when a student, at "taxpayer expense" pretends to represent Iran at the fake UN assembly. Why? Because the whole point is learning, not PR.
Posted by Lee on March 12, 2009 at 11:36 AM · Report this
Natelson is a nut job who had to sue the University for his job. (look it up) If you think this is outrageous he also thinks only land owners should be allowed to vote and admitted he admired Andrew Jackson for having the initiative to pay for Indian scalps. Indeed he is a constant embarrassment to us fee paying students at the U of M. (perhaps he should have a nasty sex act named after him -- hint - hint) I assume Prof. Juris is just making the claim that our paper should have a professional sex column such as Dan's. If Juris is really concerned about the professionalism of the Journalism students at the U, wouldn't make more sense to talk about the student who tried to interview the Jury of the W.R. Grace trial? There are bigger fish to fry when it comes to state money spent on things we find morally objectionable.
Posted by Were not all crazy in MT on March 12, 2009 at 11:46 AM · Report this
I had both of these individuals as professors at the University of Montana School of Law. I would expect these sorts of comments from Natelson, who is, by all accounts, a complete and utter neo-con douchebag, but Professor Juras is actually a smart and hip individual who happens to be leaning too hard on her Christianity to prop-up a weak constitutional argument. Either way, this is totally indefensible and both professors should be held accountable for advancing such specious arguments.
Posted by Up With Montana, Boys on March 12, 2009 at 11:47 AM · Report this
I'm all for a student newspaper having a sex advice column. It's kind of cute. But Dan's arguements about constitutional rights are completely delusional. And they are delusional in a way that seems to be popular among journalists.

Note to journalists: you are employees. The person who had broad rights to print whatever he wants is his newspaper is the owner. Your journalistic rights are defined in your employment contract, not the constitution.

Because this newspaper is run by a public university, the relevant "ownership" is a little unclear -- it's some mix of the faculty advisor, the university administration, and the legislature that funds the university. But what is perfectly clear is that the student writers are not the owners. And what is also perfectly clear is clear that any professor, taxpayer, reader, or student has a perfectly legitimate right to lobby the ownership regarding what kind copy their newspaper should be printing.

(By the way, for another common journalistic delusion, see the belief that journalists have a right to protect their sources in the face of a supoena.)
Posted by David Wright on March 12, 2009 at 12:17 PM · Report this
Butt Out has it completely wrong! The Kaimin is funded by advertising revenues and student fees, not taxpayers! Did you even read the fucking article?

Now those student fees also pay for things like the Christian students club, so seems to be paying for a different view is only par for the course.
Posted by UM Alum on March 12, 2009 at 12:27 PM · Report this
We can believe you are a UM product.
Posted by dan on March 12, 2009 at 1:49 PM · Report this
Dan, your objections are inconsistent. You heavily imply that these professors are wrong about freedom of speech. But, as is clear in the Juras quotes, their views on freedom of speech are only used to support the idea that the newspaper's content can be restricted to educational purposes. You completely buy into this point (as I think you should). You argue (I think rightly) that sex columns DO serve an educational purpose. Your argument is only even relevant if you already agree with them about the FoS stuff.

tl;dr: the freedom of speech stuff is a red herring, and wantonly complaining about freedom of speech violations where there are no freedom of speech violations is annoying and dumb and counterproductive for real defense of FoS.
Posted by C Ehrett on March 12, 2009 at 3:10 PM · Report this
Wait! Isn't print media dying? Why would it matter if this stupid piddling school paper doesn't have the column, the author probably has a blog online and students probably read that more than they do a stupid piece of paper. No one has silenced the author of the sex column, they've merely caused the readership to go to a different source. One that probably won't be censored by editors or school administrators. So if anything, the sex column will continue stronger than before and completely unhampered by prudes.
Posted by yucca flower on March 12, 2009 at 5:25 PM · Report this
I love that they're making this 'free speech is not absolute' not about, say, the Westboro Baptist Church, but a SEX ED COLUMN.

Really, guys? Really?
Posted by Gabrielle on March 13, 2009 at 1:17 AM · Report this
When I said my column is vanilla compared to nationally published columns I was actually specifically referring to Savage Love. It's my favorite column and I listen to the podcast religiously. I wish my campus could handle the honesty you have in your column, Dan.
Posted by BessDavis on March 13, 2009 at 12:00 PM · Report this
I have been trying to put my finger what really troubled me about the Bess Sex controversy, such that it is. The answer hit me in a visual memory. In Kutaisi, Georgia, near an apartment that I lived in briefly, is a two-story building. It’s attractive, with old ironwork, many windows, and some balconies. I passed it every day on my to teach law and American Studies students at Kutaisi State University. It was well-known and historic. In 1930s Soviet Georgia it housed the Union of Georgian Writers and Poets. It still does.

It always stood out for me because in those very walls Georgian poets had been purged in an orgy of denunciation and self-criticism. They were purged because of the subjects that they wrote about. Or, if it wasn’t the subjects, it was how they treated them–their poetic styles. They were purged because what they wrote or how they wrote offended the orthodoxy of someone who had power. And that power was such that, once purged, some of those poets took their own lives. One killed himself in that very building.

And that, I think, is what troubles me most about the Bess Sex controversy. It is not that some of my colleagues are offended by the subject or by what is written about it. They have every right to take offense if they wish. They have every right to express offense if they are offended.

No, what troubles me is the purge. It wasn’t an opinion letter in the Kaimin. It wasn’t an anti-Bess demonstration in front of the Journalism School. Nor was it a public debate between one of my colleagues and the Kaimin’s editor that troubled me. Because none of those things happened.

No, it was the letter to the President of the University and the threat that if the Kaimin, or the Dean of the Journalism School, or the President of the University didn’t do something about it, then the writer would make trouble. She would go to the Regents and to the Legislature, if necessary. She would initiate the purge.

And what did she want? A set of “journalistic standards” and guidelines and a watchdog. A new orthodoxy to be enforced by new commissars. Always beware the commissars, whether of the left or of the right.

So, it’s not the dispute over content that troubles me. That is a subject for discussion, debate, and, in the end, persuasion. I won’t miss Bess Sex if Bess or the Kaimin is persuaded by discussion to discontinue it. That would be their free choice.

I will miss freedom of thought, however, if Bess is banned by bullies.

Jeffrey T. Renz
Clinical Professor of Law
School of Law
The University of Montana
Posted by Jeff on March 17, 2009 at 9:14 AM · Report this

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