Truely Free Speech Protects Kids From Bullying

Photo by rosipaw on Flicrk

This week, Stephanie Mencimer at MotherJones.com reported on horrifying cases of harassment and suicides in the Anoka-Hennepin schools  of Minnesota, in Rep. Michelle Bachman’s district. The article, published within days of a suit filed against the district by the Southern Poverty Law Center, has further mobilized advocates calling for expanded anti-bullying policies and legislation.

The suit alleges that the school district’s “Sexual Orientation Curriculum Policy”, passed by the school board in 2009, functions as a gag order preventing teachers from discussing sexual orientation in the classroom. While the policy itself employs language instructing educators to address sexual orientation in a “respectful manner that is age-appropriate, factual, and pertinent to the relevant curriculum”, members of the community say in practice it prohibits school staff from presenting basic, factual information about LGBT people, even when necessary to address anti-gay stereotypes or hostility within the student body.

When a group of Anoka-Hennepin students tried to form a Gay-Straight Alliance chapter, the school delayed approval for three months in response to claims that it was a “sex club.” This is nonsense.  Gay-Straight Alliances exist in schools across the country as a place “to give both LGBT and straight kids a supportive environment from which to combat harassment and a place to learn coping skills,” as reported by Mencimer. Students are as entitled to form Gay-Straight Alliances as they are to form chess clubs.

As a First Amendment defender working every day to oppose censorship within schools –book challenges, banned movies, shuttered play productions– it makes me furious that the school interfered with the students’ right of expression and association. And it makes me furious when I hear Michelle Bachman say she opposes anti-bullying policies and legislation due to free speech concerns. It’s obvious to me that Michelle Bachman and her anti-gay activist base don’t care at all about the First Amendment.

But we can’t let Bachman give free speech a bad rap. The First Amendment and free expression play a critical role in planning successful anti-bullying policies.  This is widely misunderstood in the effort to curb any behavior, including protected speech, that might be offensive.  Even the Office of Civil Rights in the Department of Education has a problem understanding that depriving students of free speech rights isn’t the way to promote students’ other rights.

Let’s be clear: the Anoka-Hennepin school district doesn’t need a speech code to restrict anti-gay statements. The huge, glaring problem in Anoka-Hennepin is that they are already restricting speech about LGBT issues and sandbagging efforts of students to support each other and openly address issues of concern.  It’s also clear that the abuse alleged in the SPLCenter suit, if proved, is prohibited under existing laws and precedents defining a hostile educational environment when:

• School officials have actual knowledge that students are being harassed because they do not conform to gender stereotypes,
• They are deliberately indifferent to the harassment, and
• The behavior is so pervasive, severe, and objectively offensive that it effectively bars access to an education opportunity or benefit.

The lawsuit recounts how students were harassed with slurs on a daily basis, threatened, choked, shoved, and one was even stabbed with a pencil. The acts were allegedly perpetrated on school grounds, sometimes in plain view of school officials. Despite the students and their parents repeatedly reporting these incidents to school staff and administrators, the suit claims they failed to act. In several cases, school officials reportedly told the harassed students to “lay low” or “try to stay out of people’s way” rather than punish the abusive students. One student withdrew from her school when officials failed to address her harassment.

Assuming these allegations can be proved, the answer is not to enact more policies to restrict speech. Young people need more speech on LGBT issues, not less, especially speech that allows gay students to present their views and perspectives and that call schools to account for ignoring real harassment and physical assaults. Suppressing anti-gay speech doesn’t mean the anti-gay sentiments will cease to exist  – only that it will be silenced in school, potentially to be expressed in more covert form elsewhere.

If you or someone you know has been obstructed from creating LGBT support clubs or other forms of educational programming about queer issues within your school, call the National Coalition Against Censorship! We oppose censorship in all its forms, and are dedicated to protecting the free speech rights of young people in the classroom.

Communities can make the First Amendment one of the best anti-bullying policies available to schools today.

Hazelwood: A Student’s Perspective

Courtesy of the First Amendment Center

Two years ago I sat upon the graduation stage to receive a diploma that would end my 13-year relationship with the public school I attended since kindergarten.  As a member of a class of 125 students, this day symbolized endless shared memories and a common identity between us.  Out of the five speeches given, the three student speakers truly spoke to our class—and this is what student free speech is really about.  It is about the ability to communicate the experience of such a specific and sensitive age group.  Parents are endlessly befuddled by the actions and emotions of teenagers. By providing avenues of expression, schools aid students in providing an explanation.

In a recent report, the Student Press Law Center (SPLC) warned of the expanding application of the Hazelwood v. Kuhlmeier (1988) decision to students’ school activities– including recent cases of graduation speech censorship. To be honest, as a high school student I was blind to this case and its possible implications on my activities as a student.  However, it is disillusioning to think that many public school administrators hold so little trust in their students.

In my mind, the consequences of Hazelwood can stretch far beyond a school newspaper article or play.  Adults often write off teen behavior as a “phase” that will pass in the transition to maturity.  Through this denial, teens develop the complex that they are “misunderstood” and often self-alienate from resources for communication or (in some cases) more serious issues.  In high school, teens are able to find a community of peers that share this experience. Forms of school censorship suppress this mutual understanding instead of harnessing its potential through campus media.

According to the State of the First Amendment 2011, the Hazelwood decision may be losing ground.  For the first time since the question (Q7) was asked, the majority (51%) of respondents answered in agreement to the statement: “Public high school students should be allowed to report on controversial issues in their student newspapers without approval of school authorities.” Teens are increasingly exposed to harsh realities in the media and therefore are learning to comprehend and analyze an imperfect world. Censoring speeches or plays will not change this.

I am unsure how much “editing” went into the student speeches given at my high school graduation yet the results fulfilled the ultimate goal: to capture the character of a particular class—not the school or town.  In all educational activities, school administrators should be proud to foster their students’ creativity rather than buckle under reputability pressures. There must be a happy medium between muting students’ voices and allowing behavior that truly disrupts the learning environment. It is unfortunate that the current interpretations of the Hazelwood decision perpetuate such underestimations of teenage expression.

Victory in Richland, WA! “…Part-Time Indian” Restored To Curriculum

The Richland, WA school board has overturned a previous vote that removed Sherman Alexie’s award-winning Absolutely True Diary of a Part-Time Indian from the district’s high school curriculum. The book will now be available to all high school classes!

NCAC congratulates the board members who reversed their previous votes, after reading the book for themselves. According to the Richland News Tribune, board members were under the mistaken impression that the entire Instructional Materials Committee (the recommending body to the school board) had the book prior to giving a mixed review to the board.

Once the board realized only part of the IMC read the book, two of the three members who voted for removal decided it was imperative to read the work.

As we’ve noted in the past, civic and bureaucratic politics impact local censorship incidents almost as much as ideology. The citizens of Richland who stood up to be counted as in favor of First Amendment principles and a rich curriculum provided the political energy to correct this oversight.

Click here to read a joint letter from NCAC, ABFFE, AAP, SCBWI, NCTE and PEN to the Richland school board.

ICAN(N) Censor

Courtesy of Libertarian Punk Blog

In late June the Internet Corporation for Assigned Names and Numbers (ICANN), the international body that oversees the Internet address system, announced that it approved new generic top-level domain names (gTLDs). There are currently 22 general top-level domain names (.com, .org, .net, etc.), however this vote means that there will be an indefinite number.

One of the myths about the Internet is that it is completely decentralized, which is the reason that it has been celebrated as a free and democratic tool for disseminating information and connecting people. However, the organization and accessibility of sites is determined by a system, overseen by ICANN, called the Internet Assigned Numbers Authority (IANA) function. This function can be designed to foster openness or to permit censorship. In fact, ICANN attempted to use a similar expansion of domain names to censor pornography last March by approving an .xxx domain for porn sites. There are some who fear that these new domain names could also make certain sites more susceptible to government censorship. Lauren Weinstein, co-founder of People For Internet Responsibility and founder of Privacy Forum voiced several concerns on her blog. She directly addressed the issue of censorship in a statement to Radio Free Europe Radio Liberty.

“Once you start to create very fine-grained top level domains (TLDs) you create a very simple way for governments to enforce blocking and censorship on those TLDs… That’s much harder to do when you have a few general and generic ones like .com and .net,”

Over the past ten years there has been controversy surrounding who should administer the IANA function. Since ICANN was established it has received widespread criticism for being ineffective, lacking legitimacy and inadequately representing the interests of worldwide Internet users. In addition, the international community has viewed the U.S. government’s role in establishing ICANN to be hegemonic. As a result, at the 2003 UN World Summit, several countries proposed ICANN either change itself into an international organization or have an existing international organization such as the International Telecommunication Union or the UN itself take over its role. Although the U.S. government and ICANN have signed agreements in 2006 that have essentially called for the transitioning of IANA functions from the U.S. government to ICANN by this year, it is still unclear how much authority the U.S. government has in ICANN’s decisions. Many still believe that ICANN favors the United States while its Government Advisory Committee, which is composed of delegates from other nations, has no real authority.

While Internet censorship has been the subject of abundant news coverage since Arab Spring, it is important to remember that Internet censorship is not isolated to restrictive governments.  While the U.S. government does not filter Internet content, many countries such as Great Britain, France, Germany and South Korea do and some fear that the U.S. and other democracies are slowly moving in that direction. As the Internet gains prominence as a medium it will continue to be threatened by various forms of censorship. However, unlike other media, Internet content can be filtered and restricted in ways not necessarily apparent to the general public.

 

 

It’s About Time We Have “The Video Game Talk”

Last Monday the Supreme Court ruled 7-2 to strike down a California law that banned the selling of violent video games to minors. The Supreme Court ruled that video games are allowed the same protection under the first amendment as books, plays, and movies. The ruling also distinguished the California statute from the Ginsburg vs. New York decision, in which the court ruled that material that is not considered obscene for adults (in this case a “girlie magazine”) may nonetheless be harmful for children, and its marketing and sale may be regulated. Through this distinction, the court has established separate standards for regulating the sale of violent content from sexual content to minors.

Bloggers, journalists and television personalities alike have been debating the implications of this particular distinction. Those that are critical  assert that there should not be a discrepancy between how violence content is treated under the law and how sexual content is treated. It does seem counter intuitive that it is illegal to sell a minor material with, for example a naked woman on it, when the retailer could hypothetically sell that same minor a video game in which he maims, kills or rapes a computer-simulated female, a point that Justice Breyer made in his dissenting opinion.

However this does not mean that the reasoning behind the ruling was necessarily incorrect but rather it points to how difficult it is to establish standards for defining obscenity, a form of expression that is not protected by the First Amendment.  It is nearly impossible to derive legal standards for classifying potentially obscene content because it is subjective and invites many different opinions, attitudes, beliefs and values.  This type of material also features various degrees (as well as types) of sexual and violent content and it is therefore challenging to draw the line between what has “literary, artistic, political or scientific” value and what does not.

While I think the court made the right decision in this case, I don’t know if I can subscribe to the notion that depictions of sex or sexual acts are necessarily more damaging (and therefore merit stricter regulation) for children than violent video games. By citing the Ginsburg case it could become easier to legally justify censorship of nudity and nude images when it is not  merited, for example in the case that the Supreme Court is set to hear after its summer break involving the FCC and indecency regulations.

The ambiguity surrounding  obscenity is especially  fraught when it involves minors. It is understandable that parents would want laws to protect their children from physical or psychological harm.  The court, however, was appropriately skeptical of the causal links between video game violence and aggressive behavior. Identifying causation can be informative but it can also be misleading. Statistical evidence and psychological studies can be easily manipulated or skewed, even unintentionally. When it comes to limiting free speech, though, evidence should be overwhelmingly compelling.

What this case highlighted for me is the fact that many parents are  unsure of how to process  the content and kinds of media that their children are using.  Media and our interaction with media is probably the most significant change that humanity has seen since the turn of the millennium.  As a result, children as well as adults face  new and complicated challenges. This does not mean we should immediately ban, block, or censor certain material or media for children. It does mean that we need to, as a society, make more time to educate children and young adults about media literacy and that families need to have some frank conversations.

Reassessing “Decency”

Courtesy of Google Images

On Monday, June 27^th, the Supreme Court announced that upon returning from its summer recess in October, it would revisit the Federal Communication Commission’s rule that allows it to fine broadcasters for “indecency.” Last year, the New York-based 2nd U.S. Circuit Court of Appeals ruled that the FCC was violating broadcasters’ free-speech rights. The Court also stated that the FCC’s rules are unconstitutionally vague, not giving broadcasters fair warning of what constitutes a violation. In April, the Justice Department appealed to the Supreme Court over the ongoing confusion on the FCC’s enforcement of moral standards in broadcasting, stating that the Appeals Court rulings “preclude the commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934.” The Obama administration appealed to the Supreme Court saying that the ruling impeded upon the FCC’s ability to effectively enforce broadcast indecency restrictions, also arguing that the FCC’s policy is constitutional.

The FCC was prompted to tighten its rules in 2003 after an episode of NYPD Blue on ABC showed the full buttocks of a nude woman, and Nicole Richie, Cher, and Bono’s speeches at awards shows included curse words. The FCC responded in 2004 by prohibiting “single uses of vulgar words” under any circumstances on broadcast television between 10 am and 6 pm, when the FCC believes children are most likely watching, fining networks that didn’t comply. Even one un-bleeped aired profanity could lead to multi-million dollar fines for networks after Congress increased potential fines to $325,000 per violation after two years. Broadcasters sued, arguing that their First Amendment right of free expression was infringed by vague and inconsistently applied FCC obscenity rules. But in 2009 in a 5-4 vote, the Supreme Court ruled that the FCC did have the authority to enforce the rules against networks, declaring that the agency’s procedures were “neither arbitrary nor capricious.”

In its decisions, the FCC often looks to the 1978 case against Pacifica, in which George Carlin’s comedic routine, “Filthy Words,” received censure for allegedly violating FCC regulations. But with the major changes in the media landscape, such as the widespread presence of cable television and Internet video sites, which are not subject to the same restrictions as over-the-air broadcasters, the justifications of previous rulings might be undermined.

There is also danger in the hazy lines between “decency” and “indecency” as defined by the FCC that leads to an immense amount of self-censorship by broadcasters, performers and producers alike. The organization’s inconsistency doesn’t help either. While the FCC deemed the language in The Blues unacceptable, it allowed Saving Private Ryan to air, even though the language used in the two films is similar. According to the FCC, the language used in Saving Private Ryan was “integral to the film’s objective” of portraying the life of a soldier. The ambiguous distinction causes broadcasters to when in doubt, censor themselves. As a result, there have been many incidents in which TV shows have been canceled in order to avoid a steep fine. This fear incited into networks by the FCC leads to an inevitable loss of creative content and the suppression of free speech.

The Supreme Court’s ruling next fall could set a critical precedent for how governments are allowed to regulate broadcast speech. If the Supreme Court decides to rule against the FCC and could be monumental in protecting the First Amendment rights of other forms of media.