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Free Speech On The Diag

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The Diag. If youVe lived in Ann Arbor for any length of time at all, you know the place. It Is the center- the heart- of the Unlversity ofMlchigan. Surrounded by imposlng academie buildings and shaded by beautllul , lofly trees, thls Is the place where the pathways from the four corners of the Unlversity meet at a central square of concrete. The Diag has been for time immemorial the focal point of acüvity, playlng, arguing, people-watching, and people-listening. If there is a sacred spot for meatU-M, this lsitThatiswhyanyeffort, by anybody , to limit expression here offends me so deeply. Yet that is precisely what the Unlversity admlnistration and its pólice forcé, the Department of Public Safety (DPS), have been aöempüng to do. Let's take a look at smaller andlargerexamplesoftheiracts:theharassment of Stoney Burke and the attempts to stop the "Hash Bash." The Harassmen t of Stoney Buike When I was a student, In 1982 or so, a wild dude, attlred in various outlandish costumes and halrstyles, would periodically hold forth from a bench on the Diag on whatever subject caught hls fancy , usually a current event His name was, and is, Stoney Burke, and, thank goodness, he's stlll at IL OnMonday.thispastMarch 13th,Stoney took advantage of the splendid weather to give his flrst Diag performance of the season. In an eflbrt to get students and other passersby to stop, listen and think, he started a monologue on current aflatas, and apropos of this, sald eariy in his talk, "Fuck Newt Gingrich!" Two DPS offleers reacted by interrupting Stoney's gig wlth the explanation that "You can'tsay thataround here." Stoney told me that the fact that the U-M cop had a gun on hls hip deflnitely got his attenüon. (For more details, see Stoneys piece, opposite page.) It angers me intensely that some kind of cop with a six shooter is patrolling the Diag telling people what "we" do or dont "say around here. "The Bill of Rights to the United States Constltution , which should be memorized by each and every pólice offleer, has already been interpreted on this type of issue. An analogous Supreme Court case. Cohén v. California, decided in 1971 , which has been modlfled somewhat by later decisions, still adequately states the law of the land. Therein, a young man named Robert Cohén presumed to wear a jacket to court with the phrase "Fuck the Draft" emblazoned on IL Cohen was arrested by an overzeatous pólice offleer, charged with disturbing the peace, convicted, and sentenced to 30 days Injail. The M pólice have threatened Stoney with the possibillty thattheywillpress charges agalnst him for trespassing, or something, and that he might face 30 days in the slammer. Back toour hls tory lesson. After aCalifornia appeals court afflrmed Cohen's convictlon, the U.S. Supreme Court revlewed the grounds for the convlction and then overtumed the California court's decisión. The High Court looked to several possible, consütutionalfy-perrnlssiblejusüficationsforthe State's action includlng whether "Fuck the Draft" was "obscene" (I think the Draft was obscene), whether it constltuted "flghtlng words," and whether it was illegally "thrust upon unwilling persons," most partlculaiiy women and children. On obscenity , Jusüce John Harían of the Supreme Court stated the following, which I flnd rather humorous: "Whatever else may be necessary to gtve rise to the States' broader power to prohlblt obscene expression, such expression must be, in some significan tway, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychlc stlmulaUon..." I wlll comment later on the absurdlty of the State of Michigan's archalc prohibitlon agalnst saying some sexual "obscenities" In front of women and children. For now I must state that the comment, "Fuck Newt Gingrich!" arouses me onfy In the polltical acuity of the remark. I doubt if the DPS could flnd someone who got off on it sexually. While governmental punishment for any words should be unconsütuttonal in Jon Rose's and my view, the Cohen court did, at least, suggest that the Constltutlon only allows a ban on "flghtlng words" in very special circumstances: "Whlle the letter word displayed by Cohen in relatlon to the draft is not uncommonly employed in a personalfy provocaüve fashion, in this instance it was clearly not directed to the person of the hearer." Lawyers, whlch as a group includes judges, of course, speak English only as a second language, you know. What it means for us here is that Newt wasn't even there. I wish Newt would listen to what Stoney has to say. l'm guessing that Mr. Gingrich has heard worse and thus far refralned from punching the speaker in the nose. The final poüce and prosecutor justiflcatlon for Cohen's conviction was that it was offensive to people In that California courthouse, partlcularly women and children. Astonishingly, a DPS supervisor, Lt Wesley Skowron, toW a student reporter that the DPS does cite people for uslng profanity , but only In front of women and children. Apparently women , In the DPS' view, are too frail to Ignore, dispute, or, If they are so Inclined, enjoy pubücly proclaimed profanities. The sexlsm Inherent In "shielding" women from some speech should be loudly denounced and opposed. (I wonderwhat happens lf DPS cops catch a woman swearlng to herself. Maybe the DPS should Issue maize and blue veils so that if a woman mutters a profanity, no one will know.) Children, of whlch, I am informed, there were none on the Dlag at the hour in quesüon, should notbe protected from profanity by Big Brother. In a free society, children will hear common words from time to time. Their parents or guardlans can gulde them as to how to avold, Ignore, understand, tolérate, and dispute inflammatory words. Flghtlng words wlth words Is the answer, not wlth the threat of a policeman's gun or a jall cell. Where do the campus pólice get their guldance on protectlng free speech at the Untversity? It seems lt should come from the hlghest echelons of the Unlversity admlnistratlon. Unfortunately, that appears to be Just where their guldance does come from. Here is our larger example of U-M's disdain for the principies of free speech, partlcularly wlthln the context of our beloved Diag. U-M vs. the Hash Bash Wltness the prolonged battle by the U-M admlnlstratlon to stop the U-M studentchapter of the National Organlzatlon for the Reform of Marijuana Laws (NORML) from conductlng thelr annual Dlag rally supporüng the decriminalization of marijuana, whlch Is held concurren tly wlth the local celebratlon of marijuana use commonly known as the "Hash Bash." WashtenawCountyClrcultJudgeDonald Shelton and the local ACLU, through attorneys RobertCarbeck, Lore Rogers, and Milton Hlll (If IVe left anyone out, please wrlte to correct me), have lectured the U-M and their lawyersextensivelyonFirstAmendmentlaw slnce 1990, but the admlnlstratlon reliises to leam the legal lessons, and, more Importan tly, to acknowledge the Importance and beauty of prohlbitlons on government restrlctlons of free expression. Even thls year the Unlversity has agaln fought to stop NORML from speaktng out on the Diag. Fortunately, the U-M adminlstratlon once again has been stymied and the rally is set to go forward on April 1 sL Here's how thls has unfolded. The Hash Bash itself dates back to the early 70s and has been an Arm Arbor tradiÜon wherein some local folks and whoever else is interested teil the government and the world at large, "Let us smoke our dope in peace." In 1988, NORML requested and received University permlssion to hold a politlcal rally concurrently with the Hash Bash on April Fool's Day. The Hash Bash went on as usual, but thls time with an hour of amplifled poliücal talk about organizing to legalize the weed. The next year, NORML's request was given an unusual, if not unlque, response by the U-M officials whooversee Diagevents. As a conditlon of the 1989 permit, the Unlversity demanded, and received, a written promise from NORML that lts members would not "commit acts nor incite persons attending the event to commit criminal acts at the event, e.g., using illegal drugs or publlcly consumlng alcohol." The 1989 rally proceeded as planned. In October 1989, NORML requested a permitforanAprill, 1990 rally. The next day the University approved the permit and NORMLsetaboutorganlzingtheevenL Then the real kicker carne: University admlnlstrator Frank Cianciola sent a letter dated Feb. 19, 1990announcingthathewaswithdrawing the permit "because of criminal activity - notablymarijuanasmoking and alcohol consumption by people not of drinking age - associated with that event last year and in the years prior to that" U-M later admitted that there was no evidence that NORML members committed criminal acts or incited anyone else to do so at the 1989 rally, but on they pushed. At this point, NORML got the ACLU involved to get an injunctlon against U-M's retracting the permlL After an emergency hearing, Judge Shelton pronounced the law on the matter. "[A] government agency may only deny a public opportunity for free speech if it can demónstrate a 'clear and present danger' of substantlal injuries to person or property. That burden is even higher where the government agency is a public university seeking to impose a prior restraint on student speech and assembly on its campus. The university setting is traditionally a 'marketplace of ideas' and students should be allowed to speak, rally, debate and protest as part of their own maturation as well as part of the normal poliücal process." Then Judge Shelton stressed the point that he has made to the University repeatedly over the last five years by quoting a U.S. Court of Appeals case: "The right of the people to peaceably assemble and to speak freely any viewpoint, however unpopular, cannot be altowed to yield to the speculative apprehension of pólice and municipal authortües that some unpleasantness or even damage to property and lnjury to persons mlght posslbly occur. It Is the duty of the municlpality and the pólice to prevent such occurrences and to protect the expression of vtewpoint" Justice prevalled; the 1990 rally was held.M1991,U-McÜdntmesswithNORMi;s rlght to free speech and assembly, but In 1992 they were atltagaln. In direct vlolatlon of Judge Shelton's prevlous order and the federal and Michigan cases he clted, Vlce PresldentforStudent Aflairs Mary Arm Swaln sent out a terse computer memorandum orderlnghersubordinatestorefuseto"schedule NORML for the Dlag anywhere around Hash Bash time." After another hearing, JudgeSheltonruled for NORML, againgrantlng an Injunctlon requlring U-M to Issue the rally permlL The Urüverslty immedlately appealed to the Michigan Court of Appeals In an effort to get the Judge's decisión overturned, but while the appeals court granted U-M's request for Immedlate conskderaüon, they dented both U-M's request to have the appeals court conslder overturning Judge Shelton's opinión and U-M's motlon to allow the Unlversity to deny the 1992 rally permit Yes, justlce prevalled agaln, and the 1992 rally took place. Dld the Unlversity finally concede that thelr deslre to quash NORML's free speech In order to elimínate the Hash Bash was unconstltutional?Noway. Theirnewtactlc was to try to tax the polltlcal rally out of exlstence. In response to NORML's 1993 permit request, the Unlversity asserted that the permit would only be granted tf the NORML chapter, a handHü of local marijuana legalizatlon acttvists, prepaid $9,429.18, which was to "cover the estimated costs. . .for cleanup, eléctrica] power and security services," accordlng to Mr. Clanciola. The Universlty later admltted that $8,800 of that figure was for "security services." Thls Is an example of what constltuüonal law Jurists and scholars refer to as "time, marmer, and place restrictions" on free speech. The govemment has been allowed by the courts to restrict when, how, and where people can express themselves lf the restrictions meet certaln criteria. There's more to lt than I can show you here, but the govemment must at least meet these three criteria for such a restricüon. The restriction must 1 . not be based on content or subject matter of the speech; 2. be narrowly tailored to serve a significant govemmental Interest and 3. leave open ampie altematlves for communicaüng the Information. Fortunately for NORML, the U.S. Supreme Court declded a legally anabgous case In the fall of 1992. Rlght-wlngers In Georgia planned a march to protest Martin Luther Klng Day. Forsyth County officials knew a huge counter-demonstration was likely. They passed an ordlnance requlring that a permlt appllcant defray the costs of protectlng people observlng or partlclpatlng In a parade. They wan ted to charge the racist marchers a whole $ 100 for the rally permlt The Supreme Court struck the ordlnance down as unconsütuüonal. They polnted out that the anücipated security costs for the parade requlred a bureaucratie examlnatlon by the county of the content of the message that the march wanted to convey to determine the reactlon to the message and thus the cost of protectlng marchers and bystanders. In followlng the Supreme Court's dictates and ruling agalnst U-M once agaln, Judge Shelton quoted the Fbrsyth decisión liberally: The costs to which the petltloner refers are those associated wlth the public's reactlon to the speech. Listeners' reactlon to speech Is not a content-neutral basis for regulatlon. Speech cannot be financialfy burdened , any more than lt can be punlshed or banned , slmply because it mlght offend a hostlle mob." Incredlbly , U-M's administratlon was stlü unchastened. First, they soughttoget Judge Shelton taken off the case. He blasted back; The Unlversity simply wishes to 'shop' for a different judge in the hope that it may obtain a different result" The Michigan Court of Appeals refused to assign the case to a different judge. Then the Unlversity slmply ignored the 1993 order and in response to NORML's 1994 permlt appllcatlon requlred an even bigger deposit for costs. The upshot is that NORML won before Judge Shelton again In 1994 and 1995 for the same reasons IVe listed above. ACLU cooperatlng attomey Milton Hlll estlmates that U-M has spent into six figures in legal fees to try to stop the NORML rally and, they hope, the Hash Bash. Thls doesn't dlsturb me nearly as much as the fact that our local unlversity, a natlonally prominent place of higher learnlng, would repeatedly try to run roughshod over the Bill of Rlghts and one tough local judge. Thls Is not an isolated example of the Unlverslty's views on cMl llbertles. In future Rose & Weber Object columns we will revlsit thls subject repeatedly. In the meantlme, why don't you take advantage of the spring weather to wander down to the Diag and teil someone what you thlnk of Speaker Glngrich's "Contract with America. " Did you sign a contract wlth Newt? I didn't so íuck hlm. Jonathan Weber s an A2 attomey. He and nis partner, Jonathan Rose write a column, "Weber & Rose Object," as a regular feature of AGENDA.


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