The ASA, Israel, Sex Week, and McGlone

The American Studies Association (“ASA”), which claims to be our nation’s “oldest and largest association devoted to the interdisciplinary study of America culture and history,” voted in December 2013 to boycott Israeli higher education institutions.  ASA claims to stand in solidarity with “the call of Palestinian civil society.”  While the ASA appears to be a bit player in U.S. higher education – 5000 members – this move sparked a widespread backlash against the organization, within the academic community.  Political opposition developed as well.  New York, Maryland, Illinois, and even the U.S. Congress are entertaining legislative pushes to curtail the boycott.  Some of these measures seek to impact the funding of the colleges or universities that have professors who support the boycott.

 

I am pro-Israel and support Israel for religious reasons.  I do not work in academia, but if I did I would reject the boycott.  I think the United States’ relationship with Israel should be fostered and nurtured.  I believe a strong relationship with Israel is in the United States’ geopolitical best interests.  My opinion is that Israel giving back land it won in armed conflict, such as the Golan Heights, makes as much sense as the United States giving Texas back, which Mexico ceded as a result of the U.S. – Mexican War.

 

At least one legislature, New York’s, had initially threatened through proposed legislation to punish state supported colleges or universities by removing state funding unless the institutions squelch any professor who shows support for the ASA.  Threatening to defund a school because of the political positions of the individual academicians who make up the school’s community, and how they choose to express their political beliefs, intrudes upon the academic freedom of the professors.

 

Although I support Israel, I think these efforts to silence the ASA and its members are an assault on free speech. While I am pro-Israel, I support the right of others to voice their opposition to the state of Israel, because I am doing my best to maintain intellectual honesty on the issue.  I believe in academic freedom.  I believe in the marketplace of ideas at college campuses.  I believe in free speech.  The concept of the marketplace of ideas is firmly planted in U.S. jurisprudence, as demonstrated in Supreme Court cases like Keyishian v. Bd. of Regents of Univ. of State of N. Y.

 

Free speech should be protected, including speech with which I disagree or even find repugnant.  Free speech has its limits — for example, I do not advocate that people should be able to defame others with impunity; and I do not advocate yelling “fire” in a crowded theater, for fun.  The ASA’s position is political speech, however, which our jurisprudence considers to be the most protected type of speech.

 

Withdrawing general state funding for colleges and universities, unless all the professors toe the party line, results in either compelled speech or repression of speech.  Effectively, the legislature would be saying, “schools, your professors must espouse what we, the state, tell them to say about politics, or they must say nothing at all.”  When a government compels speech or represses speech under these circumstances, the government violates the First Amendment.

 

If I am against state legislatures compelling universities or colleges to encroach on academic freedom and free speech, then I stand against some Tennessee legislators’ attempts to defund Sex Week, right?  Wrong.  Sex Week is distinguishable from the ASA controversy.  There is a distinction between what the individual professors, or groups of professors, “profess” and what the University of Tennessee’s message is, as an institution.

 

The opposition to Sex Week is twofold:  1) direct payment for Sex Week, rather than merely allowing its facilities to be used as a forum, which could, but not necessarily, indicate UT administration’s endorsement; 2) this direct payment for Sex Week came from the students’ activities fees.  UTK forced all students to pay for Sex Week “speech”, whether a student wanted Sex Week around or not.  My understanding of the motive behind defunding Sex Week is that legislators want to ensure that student activities fees are not used to fund Sex Week, or in the alternative allow the students to opt to support the hosting of Sex Week.  If passed, the law would protect students from compulsion to support a particular worldview with their activities fees.

 

The University of Tennessee advanced the proposition that the First Amendment required UTK to pay for the campus “Sex Week” event.  For example, UT System President Dr. Joe DiPietro stated, “But again we have a First Amendment issue here and we feel that we are within the bounds of it to do what we have to do.”

 

Nonsense; the First Amendment required no such action.  The First Amendment may have constrained UTK to host the event if A) the students who organized Sex Week arranged for its costs to be paid by a third party, and B) Sex Week organizers invited the Sex Week presenters to come to campus, per the invited speaker policy, and speak at the limited public forums on campus.

 

By paying for the event through students’ activities fees, UT forced its students to pay for Sex Week.  UT has the right as an institution to do that.  But, mind you, the Tennessee Legislature also has a right to control UT’s institutional speech.  Do not take my word for it, read Tennessee Attorney General Opinions 13-05 and 13-20.

 

UT Board of Trustees Vice Chair J. Brian Ferguson stated that UTK could not outright ban Sex Week.  UTK’s administration certainly outright banned John McGlone, a traveling Christian evangelist.  Mr. McGlone asked for permission to come onto the UT campus – for free – and use the Humanities Amphitheater, as well as the “Joe Johnson and John Ward Pedestrian Mall”, which passes close by the amphitheater as it runs between Andy Holt Ave. and Volunteer Blvd.

 

Instead of embracing McGlone’s appearance on campus, in the name of the First Amendment, free speech, and the marketplace of ideas, the UTK administration said, “No.”  This is surprising, given Dr. Pietro’s statement,” I believe free and open exchange at higher education institutions of views on controversial issues is appropriate, healthy, and routinely occurs on our campuses and others across the nation.”  It is also surprising, given that UT allowed McGlone on campus several times in the past, beginning in 2008.

 

Apparently when the speaker represents a traditional, Christian, hellfire and brimstone point of view, the UT administration no longer is interested in the campus serving as a “free speech laborator[y] where ideas are tested in a crucible of critical thought,” for which the News-Sentinel called in an editorial recently.

 

Could McGlone’s denial relate to the opening of the UTK LGBT and Ally Resource OUTreach Center in early 2010, which is located on the ground floor of Melrose Hall, F-103?  McGlone usually presented his message on the Pedestrian Mall very close to the location of the OUTreach center, then moved to the Amphitheater.  The events leading to the McGlone-UT lawsuit happened as fall semester 2010 began.

 

Regardless of the reasons behind the UT administration’s turnabout, whether anyone on the UT campus agrees with the substance of McGlone’s message, or his delivery, the marketplace of ideas deserves his participation.  Those who support the marketplace of ideas and free speech should embrace his participation.

 

No one has connected the dots between Sex Week and the McGlone, so I will.  The grand irony is that during the same week UT paid thousands of student activity fees dollars to host Sex Week, all in the name of the First Amendment, UT paid John McGlone’s lawyers a $75,000 settlement for unlawfully denying him access to campus.  The administration’s action in the McGlone case stand in stark contrast to the statements about the university’s duty to free speech and the First Amendment.

 

In reaction to the legal defeat at the hands of John McGlone, UT Trustees, with the assistance of UT administration attorneys, adopted a new policy for speakers who are not already affiliated with UT as a student, faculty, or staff member.  The new invited speaker policy is more restrictive, meaning that the UT administration has greater control to restrict the marketplace of ideas.  Previously, any student, staff member, or faculty member could invite a speaker onto campus, at least under one version of the previous invited-speaker policy (the ambiguity in the former policy relates to the Sixth Circuit’s reversal of the dismissal of John McGlone’s lawsuit).

 

Now, only student groups and faculty can invite speakers on to the UT campus, for First Amendment activities.  There is a catch to this new policy – student groups must have at least 10 members, and a student group must obtain a faculty sponsor.  No faculty sponsor?  No student group.  One student?  No student group.  Yet UT makes faculty and student groups the “gatekeepers” of free speech on the UT campus, for anyone who is not affiliated with UT either as a student, staff member, or faculty member.  Minority views in the marketplace of ideas may never have an opportunity to be presented to the student body because UT designates every speck of green space, sidewalks, and gathering areas on campus to be limited public forums.

 

The reader would benefit from a little knowledge about the First Amendment.  While the First Amendment is a short and straightforward admonishment, there is a vast and intricate body of law outlining the circumstances under which government must allow speech to take place on government property.  In simplified terms, there are several types of government property, two of which relate to Sex Week and McGlone – traditional public forums and limited public forums.

 

Traditional public forums are properties under government control that traditionally have been open to public assembly and debate, such as city-owned sidewalks and public parks.  The First Amendment severely restricts the government’s ability to control the substance of speech in traditional public forums.  The government may, however, impose reasonable time, place, and manner restrictions.  For example, government could restrict someone from exercising his or her free speech rights in the middle of the street, at 1:00 AM, with a megaphone.

 

Limited public forums are government-controlled properties opened as a forum, but with limitations on either the subject matter that can be addressed or the scope of people who can use the limited public forum for First Amendment activities.  An example of a limited public forum is a government owned civic auditorium, opened for performances of theatrical productions – a limitation of the subject matter to plays and opera.  The outdoor portions of college campuses are also often declared to be limited public forums, available for First Amendment activities to certain classes of people:  students, staff, and faculty.

 

This new policy contains some smoke and mirrors for anyone who knows a little about the First Amendment and forum analysis.  The UT administration announced that speakers who are not invited onto UTK campus will still have the opportunity to engage students on streets and sidewalks surrounding UTK.  There is nothing different between the old policy and the new policy.  Knoxville owns the sidewalks and streets surrounding the UTK campus, and therefore the sidewalks, at least, have always been open to First Amendment activities, because the sidewalks are traditional public forums.

 

The announcement about the sidewalks surrounding UTK, thrown in the with new invited-speaker policy, is a nice-sounding truism that has no substantive effect on UTK as a provider of the marketplace of ideas.  The new policy, distilled, is this:  No one can step foot on UTK campus for First Amendment activities, unless invited by a student group, a faculty member, or the institution itself.

 

Should anyone be worried that UT has greater ability to control the marketplace of ideas?  Can the citizens of Tennessee, who support UT with their tax dollars, trust that UT will make the UTK campus a place where students receive an evenhanded exposure to the panoply of worldviews, where ideas can be tested in a crucible of critical thought?  Or should Tennesseeans and their lawmakers worry that the UT administration is promoting a radical agenda at the expense of other worldviews?

 

If the administration shows dedication to the First Amendment, free speech and the marketplace of ideas, the citizens should not worry.  But, has this administration shown a commitment to exposing its students to the entire marketplace of ideas, regarding controversial topics? Let us examine the recent track record for the UT administration.

 

On one hand the UT administration paid for Sex Week in part, indicating at least a belief that its students would benefit by exposure to Sex Week’s message.  According to my research, in 2013 the UT administration institutionally endorsed Sex Week, before it reversed course.

 

Although SEAT, (Sexual Empowerment and Awareness at Tennessee) the student organization that sponsors Sex Week at UT, pays lip service in its mission statement to conducting a frank dialogue on sex via Sex Week, representing all viewpoints, its “Resources” webpage indicates otherwise.  For example, there are no Pregnancy Medical Clinics nor Pregnancy Resource Centers listed, which are pro-life organizations, yet SEAT links directly to Planned Parenthood.  Were any anti-pornography speakers invited to Sex Week?  Was anyone who left a homosexual lifestyle invited to speak?  Did anyone invite Camille Paglia, the Philadelphia, Pennsylvania University of the Arts professor and cultural commentator who self-identifies as feminist but refuses to stay within the confines of standard feminist (and liberal) rhetoric?  In a recent column she questioned “today’s hedonistic, media-saturated environment” and observed that society may be better off with a “bit more self-preserving fear and shame,” on the issue of sex.  Not all, but many of the events justify Senator Mike Bell’s characterization of Sex Week as a radical agenda.

 

Brianna Rader, a co-founder of Sex Week, loosed a freudian slip about what she thinks of less avant garde views on sexuality.  In response to allegations of people in a giant vulva costume and giant penis costume attacking passersby, Rader stated to the News-Sentinel, “At the University of California-Berkely, they run a sex education summer camp for middle schoolers, and all the camp counselors wear these costumes.  Just as a comparison, that’s how behind Tennessee is.”  The statement “how behind” is normative, characterizing those who object to seeing a giant vulva or giant penis in the open square as uninformed and backwards.  Drawing the inference that Sex Week is intended to be the introduction of a radical agenda onto the UT campus, with some “cover” of less extreme events, is not difficult.

 

On the other hand, the UT administration would not allow John McGlone to even step on to campus, at no cost to the University, to speak in areas that resemble traditional public forums, i.e., the Pedestrian Mall and the amphitheater.  Evidence of the liberal bias of UTK’s programming does not stop with John McGlone versus Sex Week.  A review of the campus events during the past two years, as depicted by the UTK event calendar, also reveals a liberal slant.

 

How can the Tennessee Legislature insure that the UTK campus fulfills its role as a host for the marketplace of ideas, where the free and open exchange of views on controversial issues occurs, when the UT administration does not appear to be open to some views?  Those who hold minority views or undesired views from the UT administration’s perspective, like John McGlone, can better position themselves to interact with the students, if they are located on campus and not relegated to the periphery.

 

The Tennessee Legislature should pass a law declaring that the Humanities Amphitheater and the “Joe Johnson and John Ward Pedestrian Mall” are traditional public forums.  The Pedestrian Mall is a thoroughfare and the amphitheater is not enclosed, consequently students would not be a captive audience.

 

There would be no disruption to its educational mission.  The opportunity for greater exposure to controversial ideas enhances the well-roundedness of its students, even exposure to the currently unpopular idea in academic circles that all mankind are sinners, Jesus Christ is God, and He died for everyone’s sins.  The university can maintain control to implement reasonable time, place, and manner regulations.  But UT would lose, to a modest degree, the ability to limit the marketplace of ideas.

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About W. Andrew Fox

I am a lawyer in Knoxville TN.

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