2017 was a perilous year for free speech in America. The Trump administration continued its campaign to vilify and delegitimize the press. Hundreds of white nationalists, many wearing body armor and carrying weapons, descended on Charlottesville, Virginia for what the event’s organizer claimed to be a free speech rally, but which immediately devolved into chaos and tragedy. College students nationwide sought to silence unpopular speakers on campus by shouting them down and disrupting otherwise peaceful events. But when we look back on 2017, it will likely be remembered as the year in which both protest speech and anti-protest rhetoric simultaneously rose to levels not seen in decades.
Protest speech has always been central to free expression and protestors have shaped much of our understanding of First Amendment law in the courts. One case in particular, West Virginia State Board of Education v. Barnette, illustrates how the battles fought 75 years ago remain relevant to this day. In Barnette, the Supreme Court ruled that it was unconstitutional for public schools to compel students to salute the flag, noting famously that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Last year, however, was one in which countless voices, high and petty alike, openly condemned unorthodox speakers. The most prominent example of this trend was, of course, the treatment of former NFL quarterback Colin Kaepernick and dozens of other professional athletes who were personally attacked by the president, legislators, team owners, and the public because they chose to protest racial injustice by kneeling as the national anthem was played before games. The response to these protests may not have violated the First Amendment, but it unquestionably demonstrated a widespread disrespect and disregard for free speech values.
The rejection of longstanding free speech norms is a recurring theme among the recipients of this year’s Jefferson Muzzle Awards. At all levels of government, we observed actions meant to silence unpopular and unorthodox voices, often in direct contradiction of clearly established laws. This year’s awards, then, are our small act of protest against those high and petty officials determined to treat this fundamental feature of free speech as a flaw.
Upon receiving their yearbooks last summer, students in the Kearney High School class of 2017 were greeted with page after page of colorful senior portraits accompanied by personal quotes, selected by each graduating senior to memorialize their time at the school. At least, that’s what moststudents found. Joey Slivinski and Thomas Swartz saw only their pictures and blank paper where their quotes should have appeared. School officials had removed both students’ quotes without warning or explanation, but to Slivinski and Swartz, the reason was clear; both were openly gay and had submitted quotes alluding to their sexuality. Swartz, wanting to leave his fellow students with a message of openness and acceptance, wrote “If Harry Potter taught us anything, it’s that nobody deserves to live in the closet,” while the dapper Slivinski joked “Of course I dress well, I didn’t spend all that time in the closet for nothing.”
Officials quickly apologized to the students but there is still much confusion over how and why the quotes were censored in the first place. Principal Dave Schwarzenbach said the quotes were removed as a precaution because someone believed they might offend one or more students. In a statement mailed to current and former students and their families, Schwarzenbach explained that “In an effort to protect our students, quotes that could potentially offend another student or groups of students are not published. It is the school’s practice to err on the side of caution.” He went on to admit that “Doing so in this case had the unintentional consequence of offending the very students the practice was designed to protect. . . . We acknowledge our mistake and will use it as a learning opportunity to improve in the future.” The actions of some members of the district’s school board, however, lead us to question how serious they truly are about making the most of that opportunity.
When the board’s only openly gay member offered his support of the two graduates on Facebook, he was verbally scolded by board president Mark Kelly during a public meeting for posting his support on social media rather than handling the matter quietly with the district. Kelly also suggested that the district might eventually decide to do away with student quotes altogether, claiming that the process was becoming too “administratively tedious.” If the current process creates such a burden, it is one of the district’s own doing. Administrators have elected to police the speech of students and to single out for censorship statements deemed potentially offensive. In this instance, they just happened to single out the only two pro-LGBT statements made by openly gay students, branding these ideas problematic at best, and at worst, dangerous. The most likely result of this blatant content-based discrimination will be a chilling of future student’s voices at Kearney High.
For Slivinski and Swartz, the damage has already been done and no apology can restore what they’ve lost. In an address to the school board, Thomas Swartz presented an eloquent case for the tangible harm inflicted by such acts of censorship. “Some of my peers use their senior quotes as throwaway jokes, but mine was meaningful to me,” he explained. “I hoped to pass down those empowering words to anyone who’s ever felt oppressed, bullied or harassed. I wanted to leave my mark on my school. Sadly, that was taken away from me. My voice was taken, and I became one of the silenced. . . . This school needs to know that all of its students are important and their attempt to shield them from students like Joey and me is disheartening and oppressive.”
Last July, hundreds of advocates descended upon the Capitol to protest efforts in the Senate intended to repeal the Affordable Care Act. As voting began on the measure, dozens of protestors yelled “kill the bill, don’t kill us” from the Senate gallery. Capitol police quickly herded the disruptive protestors into an adjoining hallway where a much larger group was already assembled. As police started to place protestors under arrest, several members of the press who were on hand turned their cameras towards the action. According to multiple accounts by journalists at the scene, officers ordered reporters not to record the arrests and to delete any photos or videos already taken. The sergeant at arms attempted to justify these orders by calling the hallway “a crime scene.” At least one reporter tweeted that Capitol Police forced him to delete video from his camera.
Reporters blocked from Senate halls where protesters being arrested, shouting, “Kill the bill!” Being told, “no photos. Delete your photos.”
— Jennifer Bendery (@jbendery) July 25, 2017
Capitol Hill staffer now telling reporters “no photography, no videos” of protestors
— Gabby Morrongiello (@gabriellahope_) July 25, 2017
Capitol Police made me delete the video I recorded. https://t.co/NQH2fLFYiO
— Andrew Desiderio (@desiderioDC) July 25, 2017
The attempt to censor coverage of these arrests constitutes a clear violation of the First and Fourth Amendments. The consensus opinion among the federal Circuit Courts of Appeal is that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.” Furthermore, the Fourth Amendment protects reporters against unreasonable searches and seizures, meaning that police may not delete footage, photographs, or social media posts from a journalist’s device, nor can police force a journalist to do those things.
“No photos” in a public place where person recording has a legal right to be present & “delete your photos” are constitutional violations https://t.co/SqMWhTb8ck
— Mickey Osterreicher (@nppalawyer) July 25, 2017
It is understandable that officials might have wanted to avoid seeing images of protesters in wheelchairs being cuffed and arrested by Capitol Police officers on the evening news, but that is no justification for violating the rights of reporters to cover newsworthy events.
Some First Amendment violations are close calls—that is to say they raise difficult or ambiguous responses. Others are so obviously unconstitutional as to make you wonder how they could have possibly happened in this day and age. Martha Strother, principal at Houston’s Windfern High School, is guilty of the latter.
For 17-year-old India Landry, standing and reciting the Pledge of Allegiance “goes against everything I believe in.” And so, for several months, the Windfern High School senior simply did not participate with the rest of her class during the morning ritual. This pattern of civil disobedience—India estimates that she sat through the pledge at school roughly 200 times—attracted little attention from her teachers, but when she refused to stand in the presence of Principal Strother, India was summarily expelled and told that “this isn’t the NFL.”
In 1943, a family of Jehovah’s Witnesses sued their public school system, arguing before the Supreme Court that their religion forbid them from saying the Pledge of Allegiance. The Court agreed, ruling in West Virginia State Board of Education v. Barnette,that schools could not force students to participate in patriotic rituals against their will. Despite this being settled law for the past 75 years, Principal Strother still issued India Landry an ultimatum: “Stand up or you’re out of here!” When Landry indicated that she would not abandon her constitutional right to remain seated, Strother told her that if her mother did not pick her up from school in the next five minutes, the police would be called to remove India by force. India remained out of school for an entire week as her mother attempted to get clear answers from anyone at Windfern about why her daughter had been expelled and when she could return. The school’s only response was to say that India could only return if and when she agreed to stand for the pledge. However, less than 24 hours after a local news station aired a report about India’s expulsion, Strother called Landry’s mother to say that India could return to school and that she could remain seated during the pledge.
Students shouldn’t have to rely on bad publicity and lawsuits to ensure that their constitutional rights aren’t violated by overzealous school officials. Principal Strother ignored clearly established boundaries and punished India Landry for the crime of engaging in expression protected by the First Amendment. Incidents like this one shouldn’t happen anymore but they do. We award Principal Strother this 2018 Jefferson Muzzle in hopes that it will inspire her and others to think twice before making the same mistake again.
Bailey McDaniel, a senior criminology major at Mississippi State University, wanted to do something positive for the people of Starkville before she moved on to law school. “I was trying to plan a pride parade before I left so a community that I had been a part of for four years could have a celebration.” McDaniel applied for a parade permit on behalf of Starkville Pride, an LGBT support group, for what was to be the town’s first ever gay-pride parade. A majority of the town’s Board of Aldermen, however, voted to deny the permit. This, by itself, was highly unusual. During the hearing, there were no objections raised concerning the details of the application, and the board had not rejected a single event permit since 2010. Sixteen residents, including McDaniel, spoke in favor of the parade, while only two speakers opposed it. Still, four aldermen—Roy A. Perkins, Ben Carver, David Little, and Henry Vaughn—voted against the parade. None of the four voiced their opinions on the matter during the board meeting and afterwards, Carver, Little, and Perkins left from the venue’s back entrance. Carver eventually justified his vote by suggesting that the majority of constituents from his ward supported his vote. Perkins, Little, and Vaughn have steadfastly refused to explain their votes.
The reasons were all too clear to McDaniel, however, who described how she tried to look the four aldermen in the eyes as she addressed them during the meeting. “They wouldn’t speak; they wouldn’t make eye contact; they looked ashamed, but they still did it,” she said. There is little, if any, doubt that the decision to deny Starkville Pride’s parade application was based solely on four men’s disapproval of the group’s viewpoint and the content of their speech. After all, this wasn’t the first time these aldermen had gone out of their way to punish LGBT interests in Starkville. In 2014, the town became the first community in the state to pass a resolution denouncing discrimination based on sexual orientation, gender identity, or gender expression. That same year, with same-sex marriage still banned in the state, city employees were allowed to insure not just legal spouses, but also other adults who lived with them. Within months, however, the same four aldermen who would go on to vote down the pride parade without explanation, repealed both the insurance coverage policy and the town’s anti-discrimination resolution.
But there was still a happy future in store for Starkville Pride. After organizers hired well-known civil rights attorney Roberta Kaplin and news of the board’s decision gained national attention, the permit was reconsidered and approved. Not that anyone saw the error of their ways. Carver, Vaughn, and Perkins once again voted to deny, while Alderman Little abstained—though not before reassuring his supporters that despite his abstention, he still “maintain[ed] his principal decision” on the matter. Starkville Mayor Lynn Spruill broke the tie and on March 25, 2018, more than 2,500 people attended the town’s first Pride parade.
Aldermen Roy A. Perkins, Ben Carver, David Little, and Henry Vaughn have a duty as government officials to apply the law equally to all those who come before them, no matter how much they may personally disagree. These aldermen ignored that responsibility when they unconstitutionally voted to deny Starkville Pride the right to assemble and speak. Their attempts to govern based on personal animus rather than the rule of law earns them a 2018 Jefferson Muzzle.
When Mats Järlström’s wife received a ticket triggered by a red light camera near their home in Beaverton, Oregon, his natural curiosity was piqued. After some preliminary research, Järlström became convinced that the formula used by the state to set the length of yellow lights—unchanged since 1959—failed to account for contemporary traffic behavior. Specifically, he concluded that Oregon’s timing formula ignored the effect of cars turning right at intersections, resulting in yellow lights that were objectively too short. Based on these findings, Järlström developed a modified version of the formula and began sharing his results with members of the scientific community, government officials, and the media.
His efforts were well received by most, but the Oregon State Board of Examiners for Engineering and Land Surveying had a much different reaction. Not only was the board uninterested in Järlström’s ideas, they also launched a full-blown investigation into his actions, alleging that he had engaged in the unlicensed practice of engineering.
After an inquiry lasting two years the board fined Järlström $500, ruling that because he was not a state-licensed professional engineer, he broke the law by openly critiquing the length of yellow lights and discussing his ideas with members of the public. Adding insult to injury, the board further instructed Järlström that he could not refer to himself as an “engineer,” despite the fact that he holds a degree in electrical engineering from Sweden, and has decades of work experience in a variety of technical fields. According to Järlström, this prohibition amounted to an “unconstitutional ban on mathematical debate.” We agree wholeheartedly.
Mats Järlström never claimed to be a state-licensed engineer. He merely identified an existing problem, studied it, and offered his findings to those in a position to rectify it. The First Amendment guarantees him the right to debate any and all subjects—even those of a technical nature. By investigating and punishing Järlström, the Oregon State Board of Examiners for Engineering and Land Surveying sought to bestow upon a privileged few a monopoly over the exchange of technical ideas. As a result, we bestow upon them a 2018 Jefferson Muzzle.
In 1943, the Supreme Court held that public schools could not force unwilling students to participate in patriotic rituals such as saluting the flag or reciting the Pledge of Allegiance. Three quarters of a century later, some school officials still haven’t gotten the message.
Take, for example, Waylon Bates, principal at Louisiana’s Parkway High School. Seemingly inspired by the public and political reaction to protests taking place prior to games in the National Football League, Principal Bates set out to ensure that players on the Parkway High football team knew to keep their mouths shut and their knees unbent. Bates sent a letter to students and their parents on September 28, 2017, announcing that all players must “stand in a respectful manner throughout the national anthem during any sporting event in which their team is participating.” Students who failed to comply risked losing playing time and could even face dismissal from the team. Rather than condemning Principal Bates’ edict for the unconstitutional infringement it was, Bossier Parish School Superintendent Scott Smith doubled down, supporting Bates and warning students that participation in extracurricular activitieswas “a privilege, not a right.”
Whether by choice or fear of reprisal, no Parkway High School football player has failed to comply with Bates’ orders—which are seemingly still in effect to this day. Everyone involved knows that actually carrying out Bates’ threat would constitute a clear violation of students’ First Amendment rights (Bossier Parish officials have repeatedly refused to comment when asked about the legal basis for the school’s position) so, for now, it seems destined to hang over the heads of student-athletes at Parkway High until the school either comes to its senses or is dragged into court by the first brave student to take a knee.
Two student journalists at Herriman High School in Utah learned just how tough the news business can be last year. Unlike their professional peers, these students weren’t attacked by politicians and members of the public crying “fake news,” instead, they found themselves in hot water for publishing a well-researched and written story that school administrators simply didn’t want to see in print.
Max Gordon was editor in chief of the school newspaper, the Herriman Telegraph, when he and another student, Connor Spahr published an article about the status of a well-liked teacher who had recently gone missing from campus. Based on more than a month and a half of reporting, including numerous public record requests and interviews with students and teachers, Gordon and Spahr concluded that the teacher had been fired for alleged misconduct related to inappropriate text messages sent to a female student. They published their story to the paper’s website under the headline “Herriman High Teacher Fired For Misconduct,” and within hours saw traffic to the site jump exponentially as local news outlets picked up on the story and began corroborating elements of the students’ reporting. However, when Gordon and Spahr checked the website the next morning, they discovered that their story had been removed and they were no longer able to log in as administrators of the site. By the end of the day, school administrators took the entire Telegraph site offline along with the paper’s social media accounts.
Confident in their reporting but locked out by their own school, Gordon and Spahr took the unusual step of creating an alternate venue for their work. The students registered a new website and quickly republished their story on the Herriman Telegram, operating under the slogan: “Student Run. No Censorship.”
High school journalists generally enjoy limited First Amendment protection compared to those in college, and of course, professionals. Even so, Herriman High School offered its students an opportunity to learn and practice the craft of journalism and then took that opportunity away when the students wrote something the administration didn’t like. When asked to explain what prompted the school to censor Gordon and Spahr’s article and take control of the Telegraph website, a spokesperson for the district would only say that officials wanted to ensure that the student’s journalistic work was “accurate, appropriate, and informative.” The only problem is, the deleted article appears to have been all of these things. Prior to publication, the students showed their story to the newspaper’s faculty adviser, as well as a vice principal at the school, neither of whom noted any factual inaccuracies. “All of that negative attention on the school I think caused them to have a knee-jerk reaction and censor the website,” Gordon said.