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Offensive speech isnít always free or protected

...
Offensive speech isnít always free or protected

<www.polkonline.com/stories/112602/opi_offensive.shtml>

November 26, 2002
By NORAH VINCENT
Special to the Los Angeles Times

Attention must be paid. And it will be, if the chalkers have anything
to say about it.
Thatís the message coming from college and university campuses
across the country these days, where a controversial form of political
protest is stirring up a rumpus.
The practice, in which students use colored chalk to scrawl often
deliberately lewdthough purportedly consciousness-raising
slogans and drawings on campus walkways, came under fire at
Wesleyan University last month.
College President Douglas J. Bennet, who previously had tolerated
fairly racy scribble on his sidewalks, declared a moratorium on
chalking after he saw pornographic references to faculty members.
Predictably, many students and professors have protested the ban,
while others have applauded it as long overdue.
In the last few years, similar debates have arisen on other campuses,
including the University of Southern California, the University of
California, Berkeley, Swarthmore and Williams, but most
administrators havenít forbidden the practice. They should.
Chalkers defend their pranks by invoking their right to free
expression.
This is a bogus claim, primarily because chalking doesnít necessarily
qualify as protected speech but also because even if it did, chalkers
couldnít defend it as such for the simple reason that they donít really
believe in free speech.
An argument made recently in a chalking case in Santa Cruz may help
explain why chalking isnít always protected speech. City Attorney
John G. Barisone argued that police did not violate a homeless
womanís right to free speech when they arrested her for chalking a
sidewalk. Accord-ing to California case law, he said, regulating
speech in public venues doesnít violate the First Amendment if the
restriction is based on the method of expression rather than the
content and if alternative methods of expression are available.
In the Santa Cruz case, both conditions were satisfied, and the
woman was convicted of defacing public property.
Apply this reasonable standard to campus chalkings and First
Amendment objections likewise disappear.
The content of what is being expressed neednít be an issue; sensible
objections to campus chalking can be made on purely aesthetic
grounds. Chalking is graffiti, itís ugly, and it should be illegal on
campus for the same reason that itís illegal in most other places. It
diminishes quality of life, and if everyone did it, college idylls would
become as squalid as subway tunnels.
Certainly, alternative methods of expression are available on campus.
Students can publish their views in college newspapers. They can
print pamphlets and hand them out at student unions or even on
campus walkways. They need not deface college property.
By this reasonable definition, chalking isnít really protected speech at
all.
But for argumentís sake, letís say that the California standard is
hogwash and that chalking should enjoy First Amendment protection.
If students want to make this case, theyíre going to have to accept
one particularly inconvenient truth about free expression. It applies
to everyone, not just your friends and co-conspirators.
Naturally, though, chalkers donít see it this way.
The same students who shriek loudest in defense of their right to
deface sidewalks with intentionally offensive ďspeechĒ are usually
those who campaign hardest for enforcing Draconian politically
correct ďhate speechĒ codes.
Theyíre also often the same people who pilfer entire print runs of
conservative campus newspapers when those papers run
objectionable commentaries.
Not exactly civil libertarians, are they? Nope, just the usual wilding
packs of self-entitled, sophomoric pranksters falling back on high
principles when it suits them.
Itís time they get the spanking they deserve or start living up to
what free speech really means.
------------
Norah Vincent is a writer in Yardley, Pa.

 
 


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Comments

First Amendment attacks are always offensive

NOTE TO READER: I am the woman defendant this article refers to. Contrary to what is stated, I am not homeless
but I am a homeless advocate, and the words I wrote in chalk that day "Sleep is NOT a Crime!" did express my
outrage at how our progressive, liberal town criminalizes homeless people for the innocuous act of sleeping
despite the fact that we have 1500 homeless people and shelter space, at best, for 150. Read on for my imbedded
comments. --- Becky Johnson

Read the article without commentary at polkonline.com

Offensive speech isn't always free or protected
11/26/02
By NORAH VINCENT
Special to the Los Angeles Times


Attention must be paid. And it will be, if the chalkers have anything to say
about it. That's the message coming from college and university campuses across the
country these days, where a controversial form of political protest is
stirring up a rumpus.

BECKY: Actually there is nothing new about using sidewalk chalk at political demonstrations.
This is a time-honored practice that only recently has come to the attention of law enforcement.

The practice, in which students use colored chalk to scrawl often deliberately lewd -- though purportedly
consciousness-raising -- slogans and drawings on campus walkways, came under fire at Wesleyan University
last month.

BECKY: The author's reference to "lewd" speech is a red herring. Certainly students could print up a lewd
flyer if they chose and distribute it. The author is stating that because messages sometimes are lewd,
(and lewd is often in the eye of the beholder) ALL messages written in chalk should be banned.

College President Douglas J. Bennet, who previously had tolerated fairly racy scribble on his sidewalks,
declared a moratorium on chalking after he saw pornographic references to faculty members.Predictably,
many students and professors have protested the ban, while others have applauded it as long overdue.

BECKY: What is that old expression? I do not agree with what the speaker has said, but I will defend to
the death their right to say it. This can only be content-based banning of first amendment expressive
speech.

In the last few years, similar debates have arisen on other campuses, including the University of Southern
California, the University of California, Berkeley, Swarthmore and Williams, but most administrators
haven't forbidden the practice. They should.

BECKY: Right! Lets have less free speech rather than more.

Chalkers defend their pranks by invoking their right to free expression. This is a bogus claim, primarily
because chalking doesn't necessarily qualify as protected speech but also because even if it did, chalkers
couldn't defend it as such for the simple reason that they don't really believe in free speech.

BECKY: In order for the University to ban students chalking political or embarrassing messages regarding
faculty members, they must ban 8-yr-olds, girl scouts, kid's drawings, and hopscotch --- and to do so
would make the world a little less colorful and a lot more sterile and head towards a police state.

An argument made recently in a chalking case in Santa Cruz may help explain why chalking isn't always protected
speech. City Attorney John G. Barisone argued that police did not violate a homeless woman's right to free speech
when they arrested her for chalking a sidewalk. According to California case law, he said, regulating speech in public venues doesn't violate the First Amendment if the restriction is based on the method of expression rather than the content and if
alternative methods of expression are available.

BECKY: Barisone did not base his case on any current law which forbids chalk-writing. Instead, he argued that I
could have used a flyer, spoken out, or placed an ad in a local paper. Yet the law is very specific when it comes
to banning free speech. The City must present a compelling argument that some greater harm would befall the community if the speech were allowed. The argument Barisone presented was that chalking leads to graffiti, vandalism, and shop-lifting, discourages shoppers from shopping, and leads to the decline in business and loss of revenue to the
the City --- a chain of events that is neither credible nor was it proven. The City presented no evidence that revenues on
Pacific Ave. were higher before I chalked and lower after I chalked.

In the Santa Cruz case, both conditions were satisfied, and the woman was convicted of defacing public property.

BECKY: Unfortunately Commissioner Irwin Joseph has a low opinion of the value of the First Amendment. My case is on appeal. By the way, Barisone also believes its legal and okay to ban the act of sleeping out of doors from between 11PM and 8:30AM anywhere out of doors or in a vehicle, even if the law is exclusively enforced against homeless people.

Apply this reasonable standard to campus chalkings and First Amendment objections likewise disappear.
The content of what is being expressed needn't be an issue;....

BECKY: Excuse me! Didn't this writer start out by objecting to lewd comments? If the students had chalked "We love our School!" would there even have been an issue raised?

... sensible objections to campus chalking can be made on purely aesthetic grounds.
Chalking is graffiti, it's ugly,...

BECKY: Ah! Now its the aesthetic police! Whats next? Banning dreadlocks? Banning wearing plaids with stripes?
How about a ban on ugly people? Some people think that colorful chalk is more beautiful than an ugly, dirty, grey
sidewalk. That is why this is such a slippery slope. Even the City of Santa Cruz hosts a chalk festival every First Night
in which they provide the sidewalk chalk and encourage people to draw on the sidewalk. If that doesn't "deface the sidewalk" my simple expression "Sleep is NOT a Crime!" doesn't either.

and it should be illegal on campus for the same reason that it's illegal in most other places. It diminishes quality of
life, and if everyone did it, college idylls would become as squalid as subway tunnels.

BECKY: This is the "decline of western civilization" argument. That chalking leads to graffiti, to vandalism, and to
a society out of control. Also, chalking is NOT illegal most places. The ordinance I was cited under says nothing about
sidewalk chalk, and the ordinance has been on the books since 1964 and has only been enforced since the year 2000 and
only against activists. Ironically, it has not, to my knowledge, been enforced against anyone who wrote lewd expressions.

Certainly, alternative methods of expression are available on campus. Students can publish their views in college newspapers.
They can print pamphlets and hand them out at student unions or even on campus walkways.

BECKY: The fact that other means are available does NOT mean that one means of first amendment expression can be
banned. Case law is clear here. The issue is, does the government have an over-riding public interest to protect that is
significant, and not limited to a minor cost of clean-up.

They need not deface college property. By this reasonable definition, chalking isn't really protected speech at
all.

BECKY: Defacement should apply to more permanent applications such as paint, permanent markers, and the like.
It should not apply to a substance that is made up of crushed seashells and vegetable dye, wears off, blows away in
the wind, and washes off at the first sign of rain or when nearby greenery is watered.

But for argument's sake, let's say that the California standard is hogwash and that chalking should enjoy First Amendment protection. If students want to make this case, they're going to have to accept one particularly inconvenient truth about free expression. It applies to everyone, not just your friends and co-conspirators.

BECKY: I do agree with this. Anyone should be able to chalk, even kids playing hopscotch.

Naturally, though, chalkers don't see it this way. The same students who shriek loudest in defense of their right to deface
sidewalks with intentionally offensive "speech" are usually those who campaign hardest for enforcing Draconian politically correct "hate speech" codes. They're also often the same people who pilfer entire print runs of conservative campus newspapers when those papers run objectionable commentaries.

BECKY: I have never argued for "hate speech" criminal codes though I will condemn hate speech every chance I get. I also have never in my life stolen stacks of newspapers, regardless of their content, and do not approve of theft. The author
here is dead wrong and needs to manufacture some negative "outcome" of chalking in order to make her point.

Not exactly civil libertarians, are they? Nope, just the usual wilding packs of self-entitled, sophomoric pranksters falling back on high principles when it suits them. It's time they get the spanking they deserve or start living up to what free speech really means.

BECKY: In my case I am a 48 year-old mother of three with a college degree and a teaching credential. Sorry, I don't fit your
description of your typical chalk-criminal! The first amendment has always been subject to attacks, mostly from governmental
interests who are challenged by its messages, and sometimes by merchant associations who believe they, and not the general
public, own the public sidewalks. It is our duty as citizens to actively support freedom of speech and especially those whose
messages are unpopular, for popular, non-controversial messages rarely are attacked. And if we don't have freedom of speech
as a society, how will we be able to check government abuse the next time around?

Norah Vincent is a writer in Yardley, Pa.
 

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