“Students of Faith” Trying To Restrict Anti-Christian Cartoons:

By Eugene Volokh on May 16, 2006 12:58 pm

A left-wing newspaper at the University of Oregon, The Insurgent, ran some cartoons depicting Jesus Christ in (among other things) sexual contexts. A group of Oregon students complained to the University, reasoning that:

The government is perhaps required, or at least allowed, not to support student group speech that “attack[s] specific religious groups or religious concepts.”
Speech that is “inten[ded] to incite anger” on the part of certain religious groups is unprotected — or at least may be stripped of government funding — because it’s “discriminatory.”
Various criticisms of Christianity, for instance “The [Catholic] Church attacked sex, sex education … and children with a viciousness and vengeance that warps our thoughts today,” or “the Church would like to burn [all gays] at the stake if they could,” are “fabricated” and therefore violate the University of Oregon Policy on Academic Dishonesty.”

To its credit, the University has just rejected this argument. (Thanks to reader Oliver Ruff for the pointer.) As the University program administrator’s opinion points out, speech doesn’t become “discrimination” just because it’s offensive; distributing student fee funds in viewpoint-neutral ways doesn’t violate the constitutional rights of objecting students; and the Policy on Academic Dishonesty applies to academic work submitted for a grade, not to public debate. I might have added that First Amendment law requires that these programs be run in a viewpoint-neutral way, with no exclusion of controversial viewpoints (religious, anti-religious, or otherwise); and that the cure for exaggeration and hyperbole in debate is not administrative sanctions, but criticism.

More broadly, I wonder if the Students of Faith had really thought through the implications of their argument. Under their view, public university student group funding programs couldn’t fund religious newspapers (though the Supreme Court specifically held in Rosenberger v. Rector (1995) that religious newspapers have a constitutional right to participate in funding programs on par with other newspapers). Public universities would have to, or at least would be allowed to, exclude offensive speech on campus property as well as using campus funds (since access to campus property is itself a form of subsidy) — this would mean bans not just on the Jesus cartoons and the Mohammed cartoons, but on speakers that criticize homosexuality, that argue that some religions are wrong, that discuss biological sex differences, and the like.

Groups that engage in “discriminatory” speech, such as speech that’s offensive to, or at least intended to incite anger among, people of a particular religion, race, sex, sexual orientation, or veteran status would have to be stripped of their tax-exempt status as well as any subsidies. (After all, one example that the Students of Faith gave for its position that “public groups that receive public funds are confined by law to much stricter tolerances” than provided under private groups’ “virtually unrestricted right to Freedom of Speech” is that “[p]ublicly funded groups cannot promote or attack specific political figures or specific political groups” — a somewhat distorted version of the content-based but viewpoint-neutral prohibition on electioneering and lobbying by tax-exempt groups.) General hyperbole on political, religious, and social topics in student newspapers — such as rhetorical condemnations of the attitudes and actions of the Catholic Church, Christians, atheists, homosexuals, fundamentalists, men, women, feminists, the Bush Administration, Democrats, liberals, or conservatives — would lead to punishment by the school.

This would not, I think, be a good outcome for American public debate, in universities and out. The Court’s First Amendment caselaw certainly precludes it: The University of Oregon is subsidizing the Insurgent under a program that “expends funds to encourage a diversity of views from private speakers” (and that doesn’t involve a “competitive process according to which the grants are allocated” under an “inherently content-based ‘excellence’ threshold,” see NEA v. Finley). (There is a requirement that, to get funding, a group must be generally certified as advancing the “cultural or physical” development of students; but as best I can tell the funding authorities rightly read this very broadly, and treat all groups that “engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects” as qualifying.)

Such a program for funding a diversity of private groups’ speech — as opposed to a program for expressing the university’s own views — “may not discriminate based on the viewpoint” of the speakers, as the Court held in Rosenberger. The government might be able to define the program in content-based but viewpoint-neutral ways, such as prohibiting electioneering in favor or against particular candidates, prohibiting lobbying in favor or against particular legislation, or possibly even prohibiting profanity or depictions of nudity (since those too would likely be viewpoint-neutral, though content-based). But it surely couldn’t exclude speech on the grounds that it conveys “discriminatory” viewpoints, in the sense of viewpoints that are offensive to various groups.

And this result, I think, is right. The government (federal, state, and local put together) takes and then redistributes 25-30% of the GNP, through funding, access to government property, tax exemptions, access to government-provided services such as the post office, and more. If the government had unlimited authority to condition the use of these benefits on having government-approved, inoffensive, or non-“discriminatory” viewpoints, it would have tremendous authority to influence what kinds of speech can be effectively spread. Once the government has such control over so many places and services — and of course it could one day grow bigger still — there needs to be some constitutional constraint on its ability to leverage that control into control over public debate.

In any case, cheers for the University of Oregon, and a mild Bronx cheer to the Students of Faith. I understand why they’re offended, and I understand that undergraduates can’t be expected to know the ins and outs of First Amendment jurisprudence. But if you’re making assertions about First Amendment law — as the students were doing in their grievance — then you ought to check them with a First Amendment lawyer. And if you’re making arguments for why certain speech should be excluded from university-supported publications, it would help to think harder about the implications of those arguments for speech besides the sort that has made you angry in this particular case.

(By the way, for whatever it’s worth, I actually find the cartoons somewhat more offensive than the Mohammed cartoons. Bt if the difference — which has to do, in my mind, with the gratuitous connection to sex as a means of showing contempt, with little by way of substantive argument — does exist, it’s a difference of degree, not of kind, and one that’s not relevant to the First Amendment principle.)

(For the text of the Students of Faith grievance, see here.)

ASUO Program Grievance Form

Factual Chronology of your Grievance:
(Describing the situation) –
The Student Insurgent, a student fee-receiving group affiliated with the University of Oregon, published (March, 2006) images, articles and information about Jesus Christ, Christianity and the Roman Catholic Church that were discriminatory, knowingly false, slanderous and egregious.

Please describe any steps taken to resolve the conflict
In speaking with the ASUO Programs Administrator, Vice Provost for Institutional Equity and Diversity, and University of Oregon President, there have been numerous attempts at retrieving an apology from specific individuals responsible for the gratuitously offensive images and articles. Other students have filed formal grievances with the ASUO against the content printed in the Student Insurgent.

Laws, rules, ect. that have been violated
There are at least three (3) violations of student and university policies with the publication of the March 2006 edition of the Student Insurgent: (1) Discrimination (as defined by the Office of Affirmative Action and Equal Opportunity) (2) Fabrication of Information and (3) Separation of Church and State
1. The OAAEO defines discrimination as “Any act that unreasonably discriminates among individuals (individual fee-paying students who read and are offended by the March 2006 issue) on the basis of race, color, gender, national origin, age, religion, marital status, disability, veteran status, sexual orientation, gender identity, gender expression or any other extraneous considerations not directly and substantively related to performance.” Publication and distribution with the intent to incite anger (as stated by Jessica Brown) is discriminatory. Ms. Brown writes, “I have to say it is really fun to offend people. It is fun to break the rules. If it pisses people off…good thats the point!!! It already has here in this office. So read, get pissed and talk about it…”
2. The University of Oregon Policy on Academic Dishonesty defines Fabrication of Information as: “The intentional use of information that the author has invented…, or the falsification of research or other findings with the intent to deceive.” Continuing, (located in section three) “Inventing data or source information for research or other academic exercises.” Much of the information published, even as opinion pieces, falls in direct violation of this policy. As an example of fabricated information/invented data, one reads in A Brief History of the Catholic Church – “The Church attacked sex, sex education… and children with a viciousness and vengeance that warps our thoughts today.” Further along, one reads “Don’t mention gays, the Church would like to burn them all at the stake if they could.”
3. Private individuals and groups have virtually unrestricted right to Freedom of Speech. However, public groups that receive public funds are confined by law to much stricter tolerances. For example, publicly funded groups cannot produce or distribute pornographic images, a right that private organizations have. Publicly funded groups cannot promote or attack specific political figures or specific political groups and must refrain from using public money to promote or attack a specific political agenda. Publicly funded groups cannot use public funds to promote religious groups or religious concepts and likewise cannot use public funds to attack specific religious groups or religious concepts. The Insurgent, a public student group recognized by the University of Oregon and the ASUO as part of the public university community, receives public money in the form of Student Incidental fees collected by the University of Oregon and distributed by the ASUO, is a publicly funded group allowed access to University equipment and provided with access to public facilities. The Insurgent cannot use public money and their public status to advocate a specific pro or anti-religious agenda or to direct speech and materials for the pre-mediated purpose of causing harm and suffering to a specific religious group. The subject of religion in the public community is to be neutral without advocacy or attack of specific religious faiths, values or groups.

What is your desired outcome of the grievance?
The desired outcome is a public apology for the slanderous speech and images. Also, a promise to never, in the future, discriminate in such a hateful and angry manner toward any religious group. Finally, a revised Mission Statement to include protection against discrimination toward all religious traditions.

(Hide the text of the grievance.)

Navigation