Attorney General: David G. Carter, Sr., Chancellor, Connecticut State University System, Formal Opinion 2007-024, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 1, 2007

 

 

David G. Carter, Sr., Chancellor

Connecticut State University System

39 Woodland Street

Hartford, CT  06105

 

Dear Chancellor Carter:

 

          I have received your request for advice asking whether the publication of a so-called cartoon entitled "Polydongs" in the student newspaper at Central Connecticut State University (hereinafter “CCSU” or the “University”) is speech protected by the First Amendment to the United States Constitution.

 

Unquestionably, this humorless and tasteless material has racist overtones and is an affront to all minorities and to those who have fought against child abuse and sexual assault.  It has no rightful place on the pages of an academic publication, particularly a publication affiliated with a Connecticut university.  Still, despite its clearly offensive and repugnant nature, federal court decisions compel the conclusion that it is speech protected by the First Amendment to the United States Constitution. 

 

Even material contrary to decent taste and civil discourse, including basic moral or ethical principles, has been judicially held to have constitutional protection. The protection is against government interference -- either through prior restraint or punishment after publication.  As a government agency, the State University System may not retaliate or impose punitive measures against individuals in charge of the student newspaper or the newspaper itself for publishing this material. 

 

These principles in no way prevent the University from making changes to the newspaper ­­ including placing editorial control in a faculty director or university board.  If changes are made for legitimate content neutral reasons, and not as a pretext to retaliate for this or other student newspaper content, they may be far reaching and fundamental in structure and scope.

 

          In addition to steps that may effectively require enhanced accountability ­­ such as putting the newspapers under control of a faculty or trustee body ­­ other measures may be appropriate ­­ and fully permissible under the First Amendment ­­ to address the root causes of this offensive and repugnant publication.  Requiring sensitivity training or institutionalizing cultural interaction certainly abridge no constitutional rights, and may be legitimate avenues of education and understanding.  The First Amendment preserves freedom of expression, without forbidding positive measures to enhance the quality of expression.  The University management and Trustees have the opportunity ­­ some may also say obligation ­­­­ to explore such options.

 

You advise us that The Recorder published material depicting two geometrical figures, a triangle and a square.  The triangle tells the square that whenever he eats a certain cereal, his urine smells funny.  When the square asks the triangle if his urine tastes funny too, the triangle replies, “I dunno.  I’d have to ask that 14-year old Latino girl tied up in the closet.”  From behind a chained closet door, a voice in Spanish says: “I’m hungry.”  The illustration bears a “disclaimer” which reads “The Recorder does not support the kidnapping of (and subsequent urinating on) children of any age or ethnicity." 

 

          Apparently, The Recorder (formerly known as The Central Recorder) was established as a student organization at CCSU in 1931.  Membership in the organization is available to any undergraduate student matriculated at CCSU.  The organization’s operations are funded by the CCSU Media Board, which obtains its funding by way of a media fee charged to each full-time undergraduate enrolled at CCSU.  The Media Board, in turn, distributes portions of that media fee to the University’s media organizations, including The Recorder, the yearbook, the campus radio station, and the CCSU literary magazine.  The Recorder obtains additional funding through advertising revenue.

 

          The purpose of the Media Board, as stated in its Constitution, is “advisory to all student-sponsored media at Central Connecticut State University,” including The Recorder.  Media Board Constitution, Article II.  The Media Board is comprised of students, academic and administrative faculty, and one member of the local community.  Constitution, at Section 4.4.E.  The Board’s Constitution states that “[t]he Board shall be responsible for promoting responsible student broadcast and written journalism on campus and assisting in the protection of their freedom of speech and expression.” (Section 5.1) The Media Board Constitution further provides that:

 

1.2      The editorial freedom of the student editors and managers entails corollary responsibilities to be governed by the canons of responsible journalism, such as the avoidance of libel, indecency, undocumented allegations, attacks on personal integrity, and the techniques of harassment and innuendo.  As safeguards for the editorial freedom of student media, the following provisions are necessary:

 

a.      Student publications and student media shall be free of censorship and advance approval of copy.  Its editors and managers shall be free to develop their own editorial policies and news coverage.

 

b.      Editors and managers of student publications and student media shall be protected from suspension and removal because of student, faculty, administrative, or public disapproval of editorial policy and content.

 

c.      Each media organization is responsible for the appointment/ removal of editors and managers in accordance with their organization’s constitution.

 

d.      All University-published and financed student publications shall explicitly state on the editorial page that the opinions there expressed are not necessarily those of the University or student body.                

 

          The Recorder similarly operates pursuant to a Constitution which provides, in pertinent part, that the editor-in-chief “shall make the decisions concerning the operational aspects of the Central Recorder, as well as editing the content of the Central Recorder” in accordance with the purpose of the publication as described in the Constitution.  Constitution of The Central Recorder, Article IV, Section 1.a.  The Recorder’s Constitution further provides that The Recorder’s editorial board, with the consensus of a majority of its voting members, appoints its faculty advisor(s) and that those advisors “should attend meetings” of the organization, if possible, and “aid and advise on matters under consideration.”  Constitution of The Central Recorder, Article V.          

 

“The First Amendment generally prevents government from proscribing speech . . . because of disapproval of the ideas expressed.” R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382 (1992). Thus, as a general matter, the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564, 573 (2002).  There are, however, certain limited categories of speech that may be regulated based on their content because they “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” R.A.V., 505 U.S. at 383, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). These categories include obscenity, Miller v. California, 413 U.S. 15, 24 (1973), child pornography, New York v. Ferber, 458 U.S. 747 (1982), “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), true threats, Virginia v. Black, 538 U.S. 343, 359 (2003), defamation,  New York Times, Co. v. Sullivan, 376 U.S. 254 (1964), and fraud. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003). See also R.A.V., 505 U.S. at 383; Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-246 (2002).1

It is well settled that “obscene material is unprotected by the First Amendment.” Miller v. California, 413 U.S. 15, 24 (1973). In order to determine whether speech is obscene, the U.S. Supreme Court applies a three prong test that considers:  (1) “whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973); Ashcroft v. ACLU, 535 U.S. 564, 574 (2002). “Sexually-oriented work is not obscene unless all three elements of . . . [this] test are satisfied.” U.S. v. Various Articles of Obscene Merchandise, 709 F.2d 132, 135 (2d Cir. 1983) (tapes and magazines depicting explicit sex were not obscene because the availability of similar material in the geographic area indicated that the New York community did not find them patently offensive); Jenkins v. Georgia, 418 U.S. 153 (1974)(the film “Carnal Knowledge” was not obscene under the Miller standard because even though it included nudity, it did not portray the actors’ genitals or “hard core sexual conduct”).

Although Miller v. California, 413 U.S. 15, 24 (1973), included “patently offensive representations or descriptions of . . . excretory functions” among its examples of conduct that might come within the scope of the second prong of the Court’s three-part test, we found no cases that held or even considered whether descriptions of excretory functions were obscene. Instead, all caselaw found focused on material that would generally be considered sexual in nature.  Indeed, the Supreme Court in Cohen v. California, 403 U.S. 15, 20 (1971), stated that “obscene . . . expression must be, in some significant way, erotic.” This is consistent with Connecticut law, which defines “obscene” material to encompass the description or depiction of patently offensive “prohibited sexual acts,” but does not specifically include excretory functions within the definition of “prohibited sexual acts.” See Conn. Gen. Stat. § 53a-193.

Nevertheless, "representations or descriptions" of excretory functions could, in certain circumstances, be considered sexual, and could, if "patently offensive," satisfy the second prong of the Miller test and be found to be "obscene" if the other two prongs of the test were also satisfied.  Miller v. California, supra at 24.  However, because the so-called cartoon only alludes to, but does not depict or describe the excretory or sexual conduct, it is very unlikely that a court would find the material at issue obscene.

Child pornography, like obscenity, is outside the scope of First Amendment protection. New York v. Ferber, 458 U.S. 747 (1982). According to the U.S. Supreme Court:

The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that the sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.

Ferber, 458 U.S. at 764. However, to constitute child pornography, the work must “visually depict sexual conduct by children.” Id. Thus, “[t]he distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve the live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.” Ferber, 458 U.S. at 764-765. In addition, the images must be those of actual children. Images of children engaged in sexual conduct that are created through the use of computer imaging technology or otherwise do not depict real children, do not constitute child pornography.  Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Because the so-called cartoon at issue does not visually depict sexual conduct by actual children, it is not child pornography for purposes of the First Amendment.

          A third category of speech that is unprotected by the First Amendment is speech that is intended to incite violence, often referred to as “fighting words.” “Fighting words” are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke a violent reaction.” Virginia v. Black, 538 U.S. 343, 359 (2003), quoting Cohen v. California, 403 U.S. 15, 20 (1971). They are words that are  “directed to the person of the hearer,” Cohen, 403 U.S. at 20, and “by their very utterance . . . tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)(advocacy “directed to inciting or producing imminent lawless action . . . [that is] likely to incite or produce such action” is not protected by the First Amendment). The material at issue, although offensive and racist in its implications, does not contain words that fall into the category of speech that tends to incite "an immediate breach of peace." 

A fourth category of unprotected speech is “true threats.” Virginia v. Black, 538 U.S. 343, 359 (2003). “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia, 538 U.S. at 359. “Intimidation . . . is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Virginia, 538 U.S. at 360. “The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.” Virginia, 538 U.S. at 360.

The material at issue implies that an Hispanic child has been kidnapped and abused, sexually or otherwise.  The "disclaimer" beneath the material, however, states that The Recorder does not support such acts of violence against children or ethnic groups.  Taken as a whole, therefore, it does not appear that the material would be found by a court to constitute a “true threat" because the material does not express an intent to commit violence or appear to engender fear that such violence will occur.

A fifth category of speech that is unprotected under the First Amendment is defamation. Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); New York Times, Co. v. Sullivan, 376 U.S. 254 (1964). Defamation is “the unprivileged communication of a false statement that tends to either to harm the reputation of another by lowering him or her in the estimation of the community or to deter others from dealing or associating with him or her.” Woodcock v. Journal Publishing Co., 230 Conn. 525, 553 (1994)(Berdon, J., concurring), quoting 1 D. Pope, Connecticut Actions and Remedies: Tort Law § 10:03 (1993). The statement must be one of fact, not opinion, Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 117 (1982), and must be “of and concerning” a particular individual, as opposed to being a general, impersonal attack. Rosenblatt v. Baer, 383 U.S. 75, 80-83 (1966). If the individual is a public figure, the statement must be shown to have been made with “actual malice.” New York Times, Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). In the present case, the material does not concern any identifiable individual and is therefore not defamatory under the legal test.

A final category of speech that falls outside the scope of First Amendment protection is fraud. Under Connecticut law, fraud is “a false representation . . . made as a statement of fact . . . [that is] untrue and know to be untrue by the party making it, . . . made to induce the other party to act upon it, and . . . [upon which] the other party . . . so act[s] . . . to his injury.” Duplissie v. Devino, 96 Conn. App. 673 (2006). Although the U.S. Supreme Court has held that fraudulent statements are not protected by the First Amendment, Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003), the cartoon in question does not contain any such statements. Accordingly, the material is not fraudulent..

          The conclusion is inescapable and inevitable ­­ even if seemingly incredible to many ­­ that the material fails to fit any of the categories of unprotected speech.  It is, in short, protected by the First Amendment -- repugnant and offensive as it is.  Words which are offensive are not excepted from constitutional protection.  School officials may not prohibit or restrict protected speech simply “to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,”  Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 509 (1969), or “simply because it [is] found to be offensive, even gravely so, by large numbers of people.”  Doe v. Michigan, 721 F. Supp. 852, 863 (E.D. Mich. 1989).  This principle acquires “a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution’s educational mission.”  Id.; see also Rosenberg v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 836 (1995)(“[f]or the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses”); IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 392 (4th Cir. 1993) (expressly applying the standards set out in R.A.V. to the higher education setting and holding unconstitutional sanctions against a university fraternity for a racially offensive ugly woman contest on the ground that university officials may not impose sanctions because of the university's disapproval of the ideas expressed).  Accordingly, the offensive material published by The Recorder is entitled to First Amendment protection.  The precise level of protection depends upon the type of forum The Recorder constitutes.

 

          The United States Supreme Court has promulgated a forum classification method for engaging in First Amendment analysis of speech occurring in or on public property.   As the Supreme Court explained in Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44 (1983), “[t]he existence of a right of access to public property and the standard by which limitations upon such right must be evaluated differ depending on the character of property at issue.”  The Perry Court described the three types of fora, referred to as the public forum, the limited public forum, and the nonpublic forum, respectively, as follows:       


In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."  Hague v.
CIO, 307 U.S. 496, 515 (1939).  In these quintessential public forums, the government may not prohibit all communicative activity.  For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.  Carey v. Brown, 447 U.S. 455, 461 (1980).  The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.   United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 132 (1981). [Additional citations omitted.] 
 
A second category [the limited public forum] consists of public property which the State has opened for use by the public as a place for expressive activity.  The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place.  Widmar v. Vincent, 454 U.S. 263 (1981).  [Additional citations omitted.]  Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.  Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.  Widmar v. Vincent, supra, at 269-270.


Public property which is not by tradition or designation a forum for public communication is governed by different standards.  We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Assns., [453 U.S. 114], 129 [(1981)].  In addition to time, place, and manner regulations, the State may reserve the [nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.  453 U.S., at 131, n. 7.  As we have stated on several occasions, "'"[the] State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated."'"  Id., at 129-130, quoting Greer v. Spock, 424 U.S. 828, 836 (1976), in turn quoting Adderley v. Florida, 385 U.S. 39, 47 (1966).

 

Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37, 44-46 (1983).  On the basis of the decision recently issued by the Second Circuit Court of Appeals in Husain v. Springer, 494 F.3d 108 (2007), we believe The Recorder constitutes a limited public forum.   

 

          In Husain, the plaintiff students alleged that the defendants, the College of Staten Island (which is a part of the City University of New York) and its President, violated the First Amendment by nullifying a student government election based on the students’ publication of a newspaper endorsing a certain slate of candidates.  The newspaper at issue, the College Voice, was produced by students at the College and was funded primarily by student activity fees allocated by the College’s student government association.2  In the spring of 1997, the College Voice published a special election issue prominently endorsing a particular slate of candidates running for student government.  The College determined that the publication and distribution of the newspaper constituted “a thinly veiled student activity fee funded piece of campaign literature” for a particular slate of candidates.  Concluding that the electoral process had been compromised by the distribution of the newspaper, it nullified the election.

 

          The Second Circuit held that the cancellation of the election violated the First Amendment rights of the plaintiff students.  The Court explained that “[c]ourts have long recognized that student media outlets at public universities, and the student journalists who produce those outlets, are entitled to strong First Amendment protection.  These rights stem from courts’ recognition that such student media outlets generally operate as ‘limited public fora,’ within which schools may not disfavor speech on the basis of viewpoint.”  Husain, 494 F.3d at 121.  The Court noted that:

 

all the circuits that have considered the issue have determined that, at the very least, when a public university creates or subsidizes a student newspaper and imposes no ex ante restrictions on the content that the newspaper may contain, neither the school nor its officials may interfere with the viewpoints expressed in the publication without running afoul of the First Amendment.  We agree that, at a minimum, when a public university establishes a student media outlet and requires no initial restrictions on content, it may not censor, retaliate, or otherwise chill that outlet’s speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet.  This holding is fully consistent with and, indeed, substantially follows from our decisions, and those of the Supreme Court, in other cases addressing limited public fora.           

         

Husain, 494 F.3d at 124 (emphasis added). 

 

          The Court concluded that because neither the College nor the University had placed any restrictions on the subjects that could be covered in the College Voice or any other student publication, the College Voice constituted a limited public forum.  Husain, 494 F.3d at 125.  The Court concluded that “[w]hen a state university official takes retaliatory action against a newspaper for publishing certain content in an effort to force the newspaper to refrain from publishing that or similar content in the future, the official’s action creates a chilling effect which gives rise to a First Amendment injury.”  Husain, 494 F.3d at 128. Because this situation existed in the case before it, the Court concluded that the defendant university officials had violated the students’ First Amendment rights. See also Joyner v. Whiting, 477 F.2d 456 (4th Cir. 1973)(withdrawal of university’s financial support for student newspaper due to objections to content violated the First Amendment); Bazaar v. Fortune, 476 F.2d 570 (5th Cir. 1973), cert. denied, 416 U.S. 995 (1974)(university’s attempt to prevent distribution of student magazine because it considered content to be in bad taste violated the First Amendment); Stanley v. Magrath, 719 F.2d 279 (8th Cir. 1983)(university’s decision to limit funding of student newspaper because of disapproval of content of humor issue violated the First Amendment). 

 

          Central Connecticut State University similarly imposed no restrictions on the subjects which could be covered in The Recorder.  The Constitution of the University’s Media Board explicitly provides that “[s]tudent publications and student media shall be free of censorship and advance approval of copy.  Its editors and managers shall be free to develop their own editorial policies and news coverage.”  The Constitution of The Recorder similarly provides that the editor-in-chief shall make the decisions concerning the operational aspects of the paper and edit its content.  The role of the faculty advisor is limited to providing aid and advice.  Accordingly, on the basis of the Second Circuit’s holding in Husain, The Recorder constitutes a limited public forum.  When its content is protected speech, the University and the Connecticut State University System “may not censor, retaliate, or otherwise chill that outlet’s speech, or the speech of the student journalists who produce it, on the basis of content or viewpoints expressed through that outlet,” without violating the First Amendment. Husain, 494 F.3d at 124.

 

          Although the University may not take any action against The Recorder or its student journalists based on the content of the material at issue, the University has authority to make changes to the newspaper in the future, provided it does so for legitimate, content-neutral reasons. Such changes might include changing the newspaper’s structure by placing editorial control in a faculty or trustee body or board.  If faced with a legal challenge, the University must be prepared to demonstrate that any such changes are not in retaliation for The Recorder’s publication of the content in question or other content. See “First Amendment – Prior Restraint – Seventh Circuit Holds That College Administrators Can Censor Student Newspapers Operated As Nonpublic Fora,” 119 Harv. L. Rev. 915 (Jan. 2006).  The University may also require sensitivity training or institutionalize cultural interaction as part of its educational mission.

 

          We trust the foregoing adequately responds to your inquiry. 

 

 

                                                          Very truly yours,

 

 

 

                                                          RICHARD BLUMENTHAL

                                                          ATTORNEY GENERAL

 

 



1 Even within these categories of speech, however, the Supreme Court has made clear that content-based discrimination is prohibited. R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377(1992). Thus, for example, a state may prohibit obscenity without running afoul of the First Amendment, but it may not prohibit only obscenity that includes offensive political messages. Id. at 388. 

 

2 The court noted that “[t]he editors of the College Voice choose the material that the newspaper publishes without any supervision or prior review by anyone other than the editors and staff of the newspaper.  (The newspaper has a faculty advisor who does not review or approve articles prior to publication.)  Participation in the College Voice is entirely extracurricular, and the editors and staff do not receive any academic credit for working on the newspaper.”  Husain, 494 F.3d at 114.

 


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