The Volokh Conspiracy

Maybe sometimes, but not when it comes to using copyrighted works that are owned by two or more people. You can get a nonexclusive license up front from just one of them, without the others' permission. But once you infringe you can't get a retroactive license from just one -- you'd have to get forgiven by all of them.

So held the Second Circuit last Friday, in Davis v. Blige. On the other hand, forgiveness for having invented COBOL should be very hard to get.

Thomas v. Baca, 2007 WL 2758741 (C.D. Cal. Sept. 21), holds that the L.A. County Jail's practice of having many inmates (pre-trial detainees and post-conviction prisoners) sleep on mattresses on the floor violates the Cruel and Unusual Punishment Clause (as to prisoners) and the Due Process Clause (as to detainees).

Interestingly, though, the finding wasn't based on a conclusion that such a practice caused unacceptable physical discomfort, or hygiene problems. Rather, it seems that the court thought that requiring people to sleep on mattresses (presumably with adequate other bedding) rather than on bunks was just an unacceptable indignity:

[T]he Court finds that requiring inmates to sleep on the floor deprives them of a minimum measure of civilized treatment and access to life's necessities because access to a bed is an integral part of the “adequate shelter” mandated by the Eighth Amendment. The “routine discomfort inherent in the prison setting” may not state a constitutional claim, but depriving inmates of beds goes deeper. The Constitution clearly does not allow prisoners to suffer the deprivation of adequate food or water. Just so, prisons may not deprive those in their care of a basic place to sleep -- a bed; for like wearing clothing, sleeping in a bed identifies our common humanity.

That many individuals, for cultural or health reasons, choose to sleep on the floor in no way detracts from this point. A predilection for camping under the stars or the soothing touch a hard futon may have on a sore back is entirely different in kind from stripping an individual of the option of using a bed. Quite simply, that a custom of leaving inmates nowhere to sleep but the floor constitutes cruel and unusual punishment is nothing short of self-evident.

The Court is not alone in finding that a minimum degree of civilized conduct demands such a conclusion. In Lareau v. Manson, 651 F.2d 96, 107-08 (2d Cir.1981) (emphasis added), for example, the Second Circuit affirmed the district court's ruling that “forcing men to sleep on mattresses on the floors” violates the Eighth Amendment because it does “not provide minimum decent housing under any circumstances for any period of time.” Similarly, the Third Circuit, in holding that a county's remedial plan to improve conditions in its jail would satisfy Eighth and Fourteenth Amendment requirements of adequate shelter if, inter alia, it provided inmates with “bunk-type beds of their own,” characterized forced floor-sleeping, even with mattresses, as an “unsanitary and humiliating practice.” Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996, 1001 (3d Cir.1983); see also Lyons v. Powell, 838 F.2d 28, 30 (1st Cir.1988)(holding that floor-sleeping with mattress stated cognizable Fourteenth Amendment violation); Anela, 790 F.2d at 1069 (same, in light of Lareau and Union County); Albano v. Mitchell, No. C 97-3781, 1998 WL 101743, at *1 (N.D.Cal. Feb.24, 1998) (unpublished) (noting that allegations of floor-sleeping “may be sufficient to implicate denial of the minimum civilized measures of life's necessities”); Loya v. Bd. of County Comm'rs, No. CV 91-216, 1992 WL 176131, at *2 (D.Idaho May 4, 1992) (unpublished) (noting its own previous holding that “sleeping on the floor is constitutionally prohibited”); Balla v. Bd. of Corr., 656 F.Supp. 1108, 1114 (D.Idaho 1987) (enjoining floor-sleeping and characterizing it as “dehumanizing, intolerable and certainly of no penological benefit”); Capps v. Atiyeh, 495 F.Supp. 802 (D.Or.1980)(holding that overcrowded conditions which led to practices including floor-sleeping violated the Eighth Amendment); Stewart v. Gates, 450 F.Supp. 583, 588 (C.D.Cal.1978) (holding floor-sleeping unconstitutional).

The basic humanity inherent in providing access to a bed highlights the practice of forced floor-sleeping as one of the unconstitutional effects of prison overcrowding.... [O]vercrowding “may dilute other constitutionally required services such that they fall below the minimum Eighth Amendment standards, and it may reach a level at which the shelter of the inmates is unfit for human habitation.” IdForcing inmates to sleep on the floor stoops to that unconstitutional level.

International guidelines support this basic right. See, e.g., Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (considering “international opinion” in Eighth Amendment analysis); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (same). For example, the United Nations Standard Minimum Rules for the Treatment of Prisoners, which contain guidelines regarding confinement conditions and set forth minimum acceptable prison conditions, provide that “[e]very prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.” United Nations Standard Minimum Rules for Treatment of Prisoners, E.S.C. Res. 663 C (XXIV), U.N. ESCOR, 24th Sess., Supp. No. 1, ¶ 19, U.N. Doc. E/3048 (1957) (amended 1977) (emphasis added); see Lareau, 651 F.2d at 106 (relying on these standards in assessing the meaning of “adequate shelter” and holding floor-sleeping unconstitutional).

It sounds like there is indeed precedent for the court's decision (though I haven't myself read the lower court cases that the opinion cites, I have no reason to doubt the court's summary of the cases). But isn't this a strange result? Is the presence or absence of a bunk (not of a moderately comfortable place to sleep, but a bunk as such) really a question of constitutional dimension? Even accepting the Court's holdings that the Cruel and Unusual Punishment Clause applies to conditions of confinement, is placing mattresses on the floor really constitutionally "cruel"?

In any case, this isn't my core area of expertise, so perhaps I'm missing something here; still, the case seemed worth mentioning to our readers.

I've been recently looking at some 18th century documents, and I've been struck by how common this phrase and its cousins were throughout the 1700s. It certainly wasn't just an invention of the Revolutionary Era; for instance, a New York statute of July 24, 1724 was entitled "An Act for Settling and Regulating the Militia in this Province, and making the same Useful for the Security and Defence thereof, and for Repealing all other Acts relating to the same," and began:

Whereas an orderly and well disciplin'd Militia is justly esteemed to be a great Defence and Security to the Wellfare of this Province ....

(Spelling from a 1726 edition that I found in a proprietary database; the link I give in this post is to a 1894 edition.) The Act proceeded to define the militia as "every Person from Sixteen to Sixty Years of Age, residing within this Province" (though this might have been understood as being limited to men, and possibly free men); to provide how the militia was to be equipped; to mandate musters; to provide for the promulgation of articles of war; to provide for penalties for those members who didn't comply; and the like.

I express no opinion here about how this bears on Second Amendment debates -- I just want to highlight that the prefatory clause had a well-settled and familiar history to the Framers.

More details, if I can think of any, later today.

A student, who asked that his name not be used, writes (paragraph break added):

[I]n the week before the [transfer student] law review competition, I noticed your book in the library [Academic Legal Writing] and spent some time reading it. At my previous school, I performed horribly on the law review competition, and was looking for any advice on how to turn things around.

I changed my habits during the competition in line with the advice in your book. Most importantly, I took extra time to edit, and to do the bluebooking section anew four separate times over the course of the week.

The advice in your book, combined with some time reading the sample packets on reserve helped solidify in my mind what I needed to do to write a successful competition packet. It paid off, and I was one of three transfers to be admitted to the law review.

Naturally, I'm delighted to hear this.

You may have seen snippets of this account before, as I have; here, though, is a pretty substantial excerpt, from Fred W. Friendly, The Good Guys, the Bad Guys and the First Amendment, pp. 39-42 (1975):

Bill Ruder, an Assistant Secretary of Commerce in the Kennedy years and an acknowledged leader in public relations, says frankly, "Our massive strategy [in the early 1960s] was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." ...

[Arthur Larson, chair of NCCR, one of the groups used for this purpose], who had long been a target of the radical right, recalls his role in the NCCR with embarrassment. "The whole thing was not my idea," he says, "but let's face it, we decided to use the Fairness Doctrine to harass the extreme right. In the light of Watergate, it was wrong. We felt the ends justified the means. They never do." ...

In retrospect, [Martin E.] Firestone, now a prominent Washington communications lawyer representing station owners -- a number of whom would want him to help repeal the Fairness Doctrine -- admits, "Perhaps in the light of Watergate, our tactics were too aggressive, but we were up against ultra-right preachers who were saying vicious things about Kennedy and Johnson." ...

Whatever lessons hindsight has taught, this campaign in 1964 against right-wing broadcasts was at the time considered a success by its creators. In a summary written during the closing days of the presidential election, Firestone pointed with pride to 1,035 letters to stations that produced a total of 1,678 hours of free time from stations carrying McIntire, Dean Manion and Smoot. Both he and [Wayne] Phillips felt a genuine sense of accomplishment.

In a report to the Democratic National Committee, Phillips wrote: "Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts ..." In a confidential report to Phillips and the DNC, Firestone stressed the nature of the campaign that "may have inhibited the stations in their broadcast of more radical and politically partisan programs." ... "... Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule."

So it sounds like the Fairness Doctrine didn't just have the potential for deterring controversial speech -- its users, including its most sophisticated, well-organized, and politically well-connected users, saw the potential and deliberately used the Doctrine for this very purpose. Seems pretty likely that the same thing will happen if the Doctrine were resurrected, though the Internet should make it easy to mobilize many more than 1000 letters of complaint.

The UC online Sexual Harassment Training — which all employees are required to do — reports that "Vivienne posts a Gauguin print of nude figures in her office" is not an example of sexual harassment: "Artwork, especially by a recognized artist such as Gauguin, is generally not considered a sexual harassment issue, but hanging up explicit pictures, even in your personal work space ... can create an unwelcome sexualized environment."

This is actually a fairly accurate statement of what courts are likely to do, and I think it's to UC's credit that they aren't taking the most aggressive avoid-all-risk position (which would involve banning the Gauguin, and for that matter the nude sculptures in UCLA's Sculpture Garden). There have been harassment complaints over art by "recognized artist[s]", and there is some risk of liability in such situations; but not, I think, a huge risk.

Still, isn't it troubling that the law would try to distinguish "[a]rtwork[] especially by a recognized artist" from "explicit pictures," and would allow massive liability to be partly based on the latter but not the former? Seems to me to pose serious First Amendment problems (which I have discussed at length here), both related to the law's vagueness and to the law's breadth.

I should note, by the way, that it might well be permissible for the government as employer to draw such lines as to what's posted in government workplaces (setting aside academic freedom questions in universities for now), just as it's permissible for the government as employer to punish employees for rudeness to colleagues or coworkers, on-the-job vulgarities, and other speech that would be constitutionally protected against the government as sovereign. But hostile environment harassment law, which this training is discussing, is imposed by the government as sovereign, through the threat of liability even on private employers — not by the government as employer controlling its own property and its own employees.

It's online; I quote the text:

Seven students at your institution falsely attributed the “Hate Muslims? So Do We!!” fliers to The George Washington University chapter of Young America’s Foundation.When the fliers initially surfaced you said, “There is no place for expressions of hatred on our campus. We do not condone, and we will not tolerate the dissemination of fliers or other documents that vilify any religious, ethnic or racial group.”

We agree. Vicious personal attacks levied on students are intolerable, and should not go unpunished. The question remains: what will you do about such blatant character assassination now that the truth is out? How will you demonstrate that you don’t “condone” or “tolerate” the dissemination of hate?

To be clear, liberal radicals on your campus accused conservative students of engaging in racist activities, and to buttress those baseless claims, these same radicals manufactured actual racist activities to pin on the young conservatives.

Student Association Executive Vice President Brand Kroeger told the GW Hatchet that he “would support expulsion. These acts are completely heinous.” Again, we agree with this statement if Kroeger believes it is the job of The George Washington University to protect the reputation of students who are wrongfully maligned. In an open letter to you, the culprits admit to distorting the views of the conservatives on campus. They wrote, “We want to reach out to our Muslim brothers and sisters in the Holy Month of Ramadan in hopes that they will embrace our misrepresented, but honorable stand against racism” (emphasis added).

There is, of course, a clear difference between ordinary Muslims who positively contribute to society and radical Jihadists who boast about murdering people indiscriminately. It’s a typical left-wing tactic, however, to just call names, such as “racist,” rather than engage in a serious debate, in this case, over radical Islam. Only the intellectually deficient revert to such slanderous attacks.

The seven who put up the phony fliers are frauds.

You should issue an apology to the conservatives unfairly targeted. It was obvious that the fliers were spreading lies, but your administration, led by Bridgette Behling -- the assistant director of the Student Activities Center -- sent emails to the young conservatives pressuring them to sign statements disavowing any hate speech that may originate at any future Young America’s Foundation event.

That’s astonishing. Maybe she forgot that the presumption of innocence is an American hallmark? Or maybe your administration should pressure leftist groups to sign statements disavowing any future dirty tricks on conservatives?

The political profiling of conservatives MUST stop. You need to organize a forum immediately that embraces intellectual diversity and denounces the Left’s attempts to create hostile learning environments for conservatives. The campus leftists wrote that Young America’s Foundation “should not [be] allow[ed]” to host conservative speakers. These seven students are trying to squelch robust dialogue and free speech. We believe this to be the goal of their scheme. As president of The George Washington University, we hope that you will create an atmosphere where all students, including conservatives, feel welcomed.

Don’t waste the opportunity.

A little too much umbrage, it seems to me, given that the poster was pretty clearly a satire, rather than an attempt to deceive. On the other hand, some critics of the Foundation indeed seem to have been deceived, and did indeed think that conservative students were accusing Muslims of having "lasers in eyes" and "peg-leg[s] for smuggling children and heroin," on a poster labeled "Brought to you by Students for Conservative-Fascism Awareness." Oy.

Thanks to the Washington Times for putting the letter online.

The term Islamofascism strikes me as a pretty apt description of the political and religious movement of which al Qaeda, the Taliban, Hamas, and other extremist Muslim groups are members. According to the Oxford English Dictionary, "Islamofascism" is,

The advocacy or practice of a form of Islam perceived as authoritarian, intolerant, or extremist; spec. Islamic fundamentalism regarded in this way.

1990 Independent 8 Sept. 15/8 Islamic societies seem to have found it particularly hard to institutionalise divergences politically: authoritarian government, not to say ‘Islamo-fascism’, is the rule rather than the exception. 2002 National Rev. (U.S.) (Nexis) 10 Apr., You cannot deny that a brand of Islam is most certainly at war with us. You can call this brand Islamofascism, radical Islam, Wahhabism, whatever you want. 2005 N.Y. Rev. Bks. 13 Jan. 22/4 Our enemy — variously known as Islamofascism, Islamist extremism, global jihad — has no rational agenda beyond its desire to destroy the United States out of remorseless, theologically inspired hatred for its values.

The link to fascism strikes me as quite sound: It is authoritarian, in the sense of not allowing genuine democracy, suppressing speech and religious dissent, and aiming to control many aspects of people's private lives through force of law or violence (consider the Taliban regime). It is also linked to fascism's historical desire to gain political power through military conquest; not all militarism is fascist, but fascism in the 20th century has been so closely linked to militarism that fascist should probably be used in such a way that all fascism is militarist. The link to Islam is unfortunatelly also quite sound; Islamofascism is a strain of Islam, though fortunately there are many other much better strains.

The rivals strike me as suboptimal: "Islamism," which I am told is the more common academic term, is too likely to be confused with simple Islam, and seems to me to contain a more solid condemnation of Islam than the more specific term "Islamofascism" includes. "Jihadism" is a possible alternative, but raises its own problems, especially given that the term "jihad" may in some situations have nonmilitant meanings. Fortunately, "fascism" these days has a connotation that's negative beyond cavil, more so than "jihad."

And, yes, if there were Jewish or Christian movements that aimed to govern the way the Taliban did, or tried to fight the way al Qaeda does, I would of course think that Judeofascism or Christianofascism would be perfectly proper terms to label them.

UPDATE: Commenter Vovan suggests: "It is a loaded term designed specifically to include Shi'a groups that the current administration finds undesirable. A commonly accepted academic term for the developments in Sunni Islam that EV describes is Salafi, and since the groups that directly attacked United States belonged to that version of Islam, there simply isn't a need to create a new term, that not only is overly inclusive, but is intentionally misleading."

Really — no need to create a new term when the "commonly accepted academic term" Salafi is available? How many people outside a narrow sliver of the academy know what Salafi means? Plus why limit yourself to the Sunni strand, given that many critics of Islamofascism are against Shia analogs, such as the more authoritarian strands of the Iranian mullocracy? The goal is a combination of quick comprehensibility and precision, and not just precision or academic purity alone.

FURTHER UPDATE: Commenter randal writes: "What's wrong with 'militant Islam'? Oh I remember, the right thinks it's too legitimizing, believe it or not. Hence 'Islamofascism.' It's being pushed on us precisely because it comes across as sufficiently insulting to Muslims."

Actually, the commenter is mostly right, until the last word. "Militant Islam" is inadequate, I think, because it doesn't carry an important implication of "Islamo-fascism" -- that it's not only aggressive towards outsiders, but also oppressive towards its own citizens. (That's also a problem with "jihadism.")

The point of many critics of Islamo-fascism, Christopher Hitchens being just one noted example, is that Islamo-fascism isn't just a danger to the west; it's bad even for Middle Eastern women, gays, political dissenters, religious dissenters, and any other noncoformists. "Fascism" captures that; "militan[ce]" does not. So the goal is to be properly and accurately pejorative towards this strand of Islam (though not to Muslims generally).

The Hartford Courant reports:

A colorful University of Connecticut law professor has been asked to take a leave of absence for showing a film clip of a thong-clad woman dancing suggestively and for also raising provocative questions about slavery during a class.

The situation pits academic freedom against efforts to foster an inclusive, welcoming campus.

Robert L. Birmingham, known as a provocative lecturer and iconoclastic thinker, agreed to leave for the rest of the semester after he showed a clip from a film called "Really, Really Pimpin' in Da South" during class on Sept. 21, said law school Dean Jeremy Paul.

The film features an interview with a pimp who was convicted in a court case called U.S. v. Pipkins that the class was studying in Birmingham's "Remedies" course. At the end of the tape, the camera switches from the pimp to "scantily clad women in a sexually suggestive pose," Paul said. At that point, Birmingham pressed the button to freeze the film, upsetting some students.

Later that day, students in Birmingham's class on the Nuremberg trials asked to see the same film. Birmingham obliged and stopped the film at the same point again, Paul said.

Before showing the film clip in the "Remedies" class, Birmingham reportedly posed the question of whether African Americans had it better as slaves in the U.S. than their counterparts in West Africa, Paul said. Others in the class offered a slightly different version of the issue, claiming that Birmingham asked whether the descendants of slaves today are better off than their contemporaries in West Africa.

After word about the film ballooned into a campuswide issue, Paul said he sensed that the Hartford-based school needed a cooling-off period. So he asked Birmingham to consider taking the leave and asked him to apologize to the class. Paul then held a forum Sept. 24 for students to air their views and to ask questions. Paul said he was investigating the incident further....

More details here; Prof. Birmingham has since agreed to take the leave of absence.

Professors should teach effectively, and in ways that avoid needlessly alienating students; and administrations should have some latitude to make sure of this. Professors' freedom in the classroom, it seems to me, can't be the same as their freedom in their scholarship or in their public commentary. Among other things, for instance, an administration should be free to insist that a professor teach a particular subject matter, avoid needlessly personally insulting individual students, avoid bringing up personal political views that are unrelated to the class subject matter, and the like.

Yet the typical way of dealing with this should generally be through friendly advice from the administration. (Such advice might be proper even where prohibition is not; for instance, it might be proper to advise teachers that bringing in some particular controversial material might be unduly distracting and thus pedagogically ineffective, even if the administration shouldn't prohibit such material.) In some situations, some requirements going forward might be proper, though they should be as clear and narrow as possible. It's possible, depending on the factual circumstances, that some such reaction by the school might be proper in this case.

But a half-semester-long leave of absence over these two incidents strikes me as a vast overreaction. It sends a message to teachers that they had best avoid any controversial material, or any material in which some slight slip might raise hackles. It sends a message to students that the way to deal with offensive speech is by administrative punishment and not by disagreement and remonstrance. And it encourages a culture of complaint and outrage, rather than of discussion and negotiation.

Finally, I realize that the university wants to make sure that the teacher remains effective for this class, and might be worried that he's alienated students to the point that this isn't so. But such alienation is not some fixed constraint that's outside the university's power. My sense is that when universities take the view that an apology is enough (and here the professor did seem willing to apologize) and explain that sometimes these missteps happen, most students will be, and should be, willing to accept this and to continue learning from the professor.

Thanks to Prof. Jim Hu for the pointer.

So the conservative Young America's Foundation is putting on Islamo-Fascism Awareness Week at college campuses, including GW. According to the Washington Post (Oct. 9), "[Sergio] Gor [the group's GW student leader] said writer David Horowitz will speak, 'The Path to 9/11,' a TV mini-series, will be shown, and there will be a panel discussion featuring people who escaped the regime in Iran. 'One gal got flogged 300 times for wearing nail polish,' he said."

Then Monday morning, the following poster came up:

The university took the posters down, and said the university "will not tolerate[] the dissemination of fliers or other documents that vilify any religious, ethnic, or racial group." Student association Executive Vice President Brand Kroeger called for "expulsion" of those who put up the posters.

Now it turns out that the poster was put up by student critics of the Islamo-Fascism Awareness Week event. The students claim that the posters were supposed to be pretty clear satire — quite plausible, given the "lasers in eye" and "peg-leg for smuggling and heroin," and the "Brought to you by Students for Conservativo-Fascism Awareness." They also keep talking about how the Islamo-Fascism Awareness event is supposedly "racis[t]," without much of an explanation. Islamofascism is a religious and political ideology, and deserves condemnation; note also that the people who are killed and oppressed by Islamofascists are, of course, overwhelmingly of the same ethnic groups as the Islamofascists themselves.

In any case, thought I'd pass along this little academic farce. Thanks to Dave Sidhu for the pointer to the GW Hatchet stories.

A commenter recently repeated the claim that President Harding coined the term "normalcy" in his 1920 Presidential campaign. Not so; he may have popularized the term, but it was included in the 1913 Webster's Revised Unabridged Dictionary, and the Oxford English Dictionary attests it back to 1857.

This is further evidence, should you need it, that you should be careful believing linguistic factoids, especially ones about how some word -- whether normalcy, strategery, or lonely -- was supposedly coined by some famous figure.

AP reports:

Texas Tech has banned the sale of a T-shirt featuring a drawing of a football player dangling Texas A&M's dog mascot by her leash.

The red shirts, with black text reading "VICK 'EM" on the front in a reference to the Aggies' slogan "Gig 'em," were created by a Tech student who said he has sold roughly 300 of the shirts through his fraternity ahead of Saturday's game against Texas A&M in Lubbock....

The back shows a football player, wearing Michael Vick's No. 7, hanging the mascot Reveille from the end of her leash. The suspended NFL quarterback has pleaded guilty to a federal dogfighting charge, admitting that he helped kill six to eight dogs.

"We will not permit individual students or any student organization to profit from selling merchandise on campus that is derogatory, inflammatory, insensitive, or in such bad taste that it reflects negatively on this fine institution, its students, athletic teams, alumni or faculty," school president Jon Whitmore said in a statement released by the school Tuesday afternoon.

The school also suspended the fraternity and plans to bring charges against it under the university's code of student conduct....

"You can't make light of a situation like that," Texas Tech media relations spokesman Chris Cook said. "That is in poor taste and poor judgment."

It sounds like the students involved are contrite, and aren't going to make a fuss about this; and if they want to apologize and take whatever punishment is meted out because they think their actions were unsportsmanlike or in bad taste, that's fine. But a public university like Texas Tech can't bar the sale of T-shirts because of their message — even a message that's "derogatory, inflammatory, insensitive, or in ... bad taste" — or suspend a fraternity for selling such T-shirts.

A public university can of course ban on-campus sales of merchandise generally; and it can likely impose viewpoint-neutral subject matter categories, such as allowing sales only of curriculum-related merchandise. But it can't ban sales based on the viewpoint of the text or pictures that the merchandise contains, whether it's a pro-animal-cruelty viewpoint (humorous or serious) or any other viewpoint, and whether the material is a T-shirt, a bumper sticker, or a book. Nor can it ban sales based on whether the text or pictures that the merchandise contains are "derogatory, inflammatory, insensitive, or in ... bad taste." And it certainly can't punish a student organization for expressing such viewpoints, on T-shirts or otherwise.

UPDATE: Thanks to a reader, here's a photo of the front and back of the T-shirt: