1) U.S. Representative Alan Grayson (D-FL)

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." - from the U.S. Supreme Court’s opinion in New York Times v. Sullivan.

For urging the U.S. Attorney General to seek a monetary fine and a 5 year prison sentence against a vocal critic for alleged violations of Federal Election law that, even if true, represent minor transgressions, a 2010 Jefferson Muzzle goes to… U.S. Representative Alan Grayson (D-FL).

In late 2009 a group of Orlando-area Republican activists led by Angie Langley launched a website targeting U.S. Representative Alan Grayson (D-FL). The site, titled “mycongressmanisnuts.com,” is a parody of Grayson’s official website “congressmanwithguts.com.” The spoof website lambasts Rep. Grayson and raises funds with the aim of unseating the Congressman next election.On December 15, 2009, just a few months after the site’s launch, Grayson wrote a four-page complaint to Attorney General Eric Holder alleging that Langley’s operation of the website violates federal law because it fraudulently represents that Langley is a constituent of Grayson’s district when in fact she resides in a neighboring congressional district. Additionally, Grayson argues that Langley submitted paperwork to the Federal Elections Commission falsely stating that the local committee managing the website (which accepts donations for Grayson’s potential future opponents) supports or opposes more than one candidate. Grayson contends that this is fraudulent because the site is directed entirely towards him and does not mention any other candidates. “Therefore, Ms. Langley and the Committee should be fined, and Ms. Langley imprisoned for five years.”

The merits of Rep. Grayson’s claims are weak at best. The argument that he only represents the people in his Congressional district reflects a very technical and narrow view of his responsibilities. An equally plausible view is that as a member of the Florida delegation to United States House of Representatives, he represents all Florida citizens, if not all the citizens of the United States. Indeed, the impact of many (if not most) of the bills voted on by Congress will be felt by a far greater number of citizens outside of Rep. Grayson’s district than within. And while Rep. Grayson is certainly the specific target of Langley’s website, it is clear that its general goal is to promote Republican Party candidates and policies, and to defeat those of the Democratic Party. Prominently displayed on the website, for example, is a rapidly increasing dollar figure allegedly representing the national debt and declared the “Obama/Grayson Price Tag.”

The political views of Rep. Grayson or Angie Langley are irrelevant to the merits of this Muzzle. But Rep. Grayson’s urging the U.S. Attorney General to seek a 5 year prison sentence against a vocal critic for minor transgressions, even if proven, clearly merits censure. The right to criticize public officials without fear of government reprisal is a fundamental component of the First Amendment. As such, elected officials should both expect and tolerate criticism. Perhaps former President Harry Truman articulated it best when he stated, “If you can’t take the heat, get out of the kitchen." In hopes that Rep. Grayson will develop a tougher skin when confronted with criticism in the future, we award him a 2010 Jefferson Muzzle.

2) The Alabama Alcoholic Beverage Control Board

"It’s still available in 49 states.”- Bill Leigon, president of Hahn Family Wines, discussing the availability for sale of a wine that cannot be sold in Alabama.

For preventing the sale of a wine in the State of Alabama because the labels on the wine bottles showed a 19th century depiction of a nude nymph, a 2010 Jefferson Muzzle goes to… the Alabama Alcoholic Beverage Control Board.

The recent roots of the modern bicycle can be traced to the late 19th century when a number of improvements made it much more comfortable, safer and easier to ride. During this period the bicycle manufacturing business boomed in the great cities of Europe. In Paris, Cycles Gladiator was just one of the many companies saturating the market. Cycles Gladiator sought to distinguish itself in 1895 by commissioning an artist to create an advertising poster to be placed throughout Paris and beyond. The poster depicted an impressionistic side view of a nude nymph with flowing red hair holding on to a winged bicycle as it flew through the sky. Although only a few of the original posters survive today (one sold for $50,000 at auction), reproductions of the iconic image are available throughout the world on posters, postcards, and framed prints. The image can also be found on the label of a wine produced by Hahn Family Wines, a California vintner. According the Hahn Family Wines’ website, the image was chosen because it “captures the grace and uninhibited beauty of our hillside vineyards.”

Cycles ClementThe Alabama Alcoholic Beverage Control Board views the label somewhat less positively. Although the wine with the Cycles Gladiator label had been available for sale in Alabama since 2006, the Control Board denied the re-application to sell the wine in late 2008, citing “Inappropriate Content on Label” as the reason for the denial. The Control Board again rejected the application when it was resubmitted a few months later, only this time stamping “not approved because of nude photo” on the application. A 2009 Associated Press article quoted an attorney for the Control Board as stating the label violated the Board’s advertising prohibition of “person[s] posed in an immoral or sensuous manner.” For the same reason, the Control Board subsequently denied an application by Hahn Family Wines to sell a different wine with a label that also displayed a 19th century French bicycle ad featuring a female figure. Yet the nudity in this image was more implied than actual as the female figure was wrapped in a transparent cloth. It was only after the Control Board viewed a significantly enlarged copy of the label was it able to detect a nipple. Thus, the “inappropriateness” of the Cycles Clement label was not the label itself, but the knowledge that a nipple was discernible on the original artwork that inspired the label. Both wines continue to be sold in the remaining 49 states and internationally.

For some, any public depiction of nudity is offensive. For others, the depiction of a nude human is a means of artistic expression that has transcended the ages. To eliminate all nudity would rebuke history’s most influential artists: Michelangelo, Rembrandt, Manet and Picasso, to name but a few. Indeed, The U.S. Supreme Court has determined that works of artistic merit cannot be considered "obscene" or "harmful to minors" solely because they depict nudity. While people may disagree on this issue, the First Amendment does not allow the government to automatically take sides in the debate. Yet that appears to be exactly what the Alabama Alcoholic Beverage Control Board has done by prohibiting any images of “persons posed in an immodest or sensuous position.” Moreover, the Control Board’s actions in this case indicate that the Board’s members are guided more by their subjective preferences than objective standards. The Control Board’s rejection of the Cycles Clement label illustrates a subjective view that even implied nudity is inappropriate. For utilizing a paternalistic, highly subjective, and most likely unconstitutional approach to evaluating the advertising of alcoholic products, the Alabama Alcoholic Beverage Control Board richly deserves a 2010 Jefferson Muzzle.

3) Chicago Alderman James A. Balcer

The private owner of the property and the artist have a right to some due process before an alderman simply orders troops out.” - Ed Yohnka of the ACLU reacting to Chicago Alderman James Balcer ordering the painting over of a mural on private property.

For claiming the authority to destroy a work of art based on his personal assessment of the work’s content, a 2010 Jefferson Muzzle goes to…Chicago Alderman James A. Balcer.

In the spring of 2009, the owners of a building in south central Chicago’s Bridgeport neighborhood sought to have a mural painted on the outside wall of the building as part of an upcoming arts festival. Artist Gabriel Villa devoted two weeks painting a work that he admits was intended to be provocative. The large-scale mural featured three police cameras, each emblazoned with the Chicago Police Department logo and an unusual icon: a crucified Christ, a deer head, and a human skull. Said Villa, “I wanted to create a platform for dialogue but the mural was never given a chance.”

Villa’s comment reflected the fact that immediately upon its completion, the mural was completely painted over on the orders of 11th ward Alderman James A. Balcer. Balcer initially explained that his order was not based on the mural’s content but the fact that neither Villa nor the building’s owners had obtained a permit as required by a local ordinance. “Everyone has a right to their opinion, but there’s limits. He has to follow the law, this artist, like everyone else.”

The problem with Balcer’s explanation is that Villa was following the law. News reporters covering the incident soon discovered that a permit was not required for murals on private property. Following this revelation, Balcer’s explanation for his actions changed somewhat, implying that he had in fact been motivated by the mural’s content. “If it’s a threat to this community, I’ll take it down. I believe that … [mural] was a threat.” Despite the fact that he was wrong about the permit requirement, Balcer was unapologetic for his action. “I acted on behalf of my constituents who were calling the ward office. I stand by that. I will not back down. I will not retreat.”

If this were a simple case of a government official misstating a permit requirement, perhaps a Muzzle would not be warranted. But the Alderman’s statements imply his actions were justified even if he knew no permit was required. Alderman Balcer is therefore claiming that he has the authority to destroy works of art based on his personal assessment of their content. In fact, the U.S. Supreme Court has clearly established that theAalderman’s order is the sort of arbitrary action by government officials that the First Amendment prohibits. For failing to appreciate this constitutional principle and his city’s own permit requirements, a 2010 Jefferson Muzzle goes to Alderman James Balcer of Chicago’s 11th ward.

4) The Oklahoma Tax Commission

They didn’t think…[“STR8SEXI”] was inappropriate but yet “IM GAY” is. I think it’s kind of a double standard.” - Oklahoma resident Keith Kimmel objecting to the state’s rejection of his application for a personalized license plate message.

For administering the state specialty license plate program in a viewpoint-discriminatory fashion, a 2010 Jefferson Muzzle goes to… the Oklahoma Tax Commission.\

Motor vehicle “specialty” or “vanity” license plates have become one of the most highly visible of expressive forums. Indeed, almost every state now allows drivers–for a fee–to choose the 7-8 letter and number combinations appearing on the license plates that all the states require be mounted on the back (and sometimes front) of their cars. The reason so many states permit personalized license plates is readily apparent: the fees collected from such programs provide hundreds of thousands of dollars to state coffers. Each state permitting specialty license plates has a policy limiting the messages that can be conveyed through the 7-8 word and letter combinations. Typically, these policies require denying applications for plates whose messages are deemed “offensive.” But determining what is “offensive” is a highly subjective process, and while a state is not required to provide the option of choosing a specialty license plate over a randomly chosen series of numbers and letters, the First Amendment requires those that do so provide must implement their programs without bias to political and social viewpoints.

Oklahoma plate: IM GAYIn Oklahoma, the specialty license plate program is administered by the Motor Vehicle Division of the Oklahoma Tax Commission. In 2009, Norman, Oklahoma resident Keith Kimmel applied for a specialty license plate stating, “IM GAY.” An Associated Press report quotes Kimmel as saying, “I want to tell people who I am and what I am. I’m proud of it. I’m openly gay. I’m not hiding.” The Oklahoma Tax Commission denied Kimmel’s application citing its own policy that the messages on specialty license tags “may not be offensive to the general public.” Apparently what the Commission found offensive was specifically the homosexual connotation of Kimmel’s message rather than a general disapproval of license plate messages stating one’s sexual orientation; the Commission had previously allowed such heterosexually-approving tags as “STR8FAN” and “STR8SEXI.”

In a subsequent administrative hearing, the denial of Kimmel’s application was upheld despite the concession by the Tax Commission that it “did not have any standard policy, written or otherwise, to determine whether a [license] request may be offensive to the general public.” Further, the administrative hearing opinion stated that “the determination of whether a [specialty plate] request may be offensive to the general public is made by…[a Commission employee] based upon his or her personal perceptions and ideas, which vary from person to person….” Kimmel has filed suit against the Oklahoma Tax Commission in state court claiming a violation of his First Amendment rights and seeking a judicial order to grant his specialty plate application. The suit is pending. UPDATE: On March 31, 2010, Keith Kimmel was found dead in his apartment. Cause of death has yet to be determined.

The explanation of the Oklahoma Tax Commission in detailing the subjective nature of its policy is almost a textbook example of what the First Amendment does not permit. Government officials cannot create an open forum for the public at large to express themselves but then only permit the expression of messages that they approve. Further, even in cases in which the First Amendment allows governmental regulation of speech–such as the requiring of a permit–the government cannot exercise unbridled discretion in determining the topics that are appropriate for public discourse. Yet, the Oklahoma Tax Commission explicitly admits to administering its policy with virtually no limits on what messages it can choose not to deny.

Although the policy of the Oklahoma Tax Commission is fundamentally at odds with the dictates of the First Amendment, there is a simple solution to this conflict—eliminate the specialty license plate program. But if Oklahoma, or any other state, chooses to enjoy the revenue that specialty license plate programs generate, it must accept the Constitutional principle that its program has to be administered in manner that is open to a variety of messages and viewpoints. For failing to do so, the Oklahoma Tax Commission earns a 2010 Jefferson Muzzle.

5) The Las Vegas Metropolitan Police Department

They [tourists] come from all over the world looking for Elvis.”- Las Vegas street performer and Elvis impersonator Bill Jablonski.

For continually harassing street performers in contravention of their established First Amendment rights, a 2010 Jefferson Muzzle goes to… The Las Vegas Metropolitan Police Department.

When Elvis Presley burst on the public’s consciousness over 50 years ago, there were many who argued that his music should be banned. Apparently the Las Vegas Metropolitan Police Department still feels that “Elvis’ should be banned from the sidewalks of the Las Vegas strip, despite the fact that the streets, parks, and sidewalks of American communities have long been considered “public forums” for the dissemination and exchange of ideas. It does not matter whether such expression is protest or performance; all forms of speech are permitted and protected, subject to a few narrow content-neutral restrictions.

Street performing, or “busking,” has been a common method of artistic expression throughout American history. If there were one community in which one would expect such performing to be welcome, it would be the city that provides around-the-clock entertainment, Las Vegas, Nevada. In fact, Las Vegas buskers claim they are continually harassed and threatened with arrest by members of the Las Vegas Metropolitan Police Department. “For well over a decade, there’s been this attempt to make the sidewalks up and down Las Vegas Boulevard on the Strip the private domain of the hotel-casinos and their interests,” says Allen Lichtenstein of the Nevada ACLU, “and the fact that the police continue to think that it’s more important to serve those interests rather than protect the rights of free speech on those sidewalks as ordered by the federal courts is disheartening.”

Las Vegas Police Department BadgeAt issue in this particular instance are repeated incidents of harassment and arrests made by the Las Vegas police department against two street performers, Suze Banasik (a singer and guitar player) and Bill Jablonski (an Elvis impersonator). Banasik has faced several instances of harassment by the Las Vegas police over the past few years, including a citation for begging and public nuisance. On March 12, 2009, she was arrested while singing songs on a pedestrian bridge. Police detained her for 12 hours, though prosecutors ultimately chose not to charge her with any crime. Jablonski has also been previously cited by the Las Vegas police, namely for obstructing a sidewalk. This citation led to Jablonski halting his performances for over a year. Additionally, both performers allege continuous harassment by the police for their street performances.

In July 2009, armed with a recent decision by the U.S. Court of Appeals for the 9th Circuit that held blanket prohibitions and excessive regulation of buskers were unconstitutional, the Nevada ACLU filed a lawsuit in federal court on behalf of Banasik and Jablonski challenging the police actions against the performers. In early 2010, the parties signed an Interim Stipulated Memorandum of Understanding that most likely will result in the suit’s settlement. But regardless of the lawsuit’s outcome, the potential still exists for Las Vegas police officers to use municipal ordinances that prohibit “disturbing the peace” or “obstructing sidewalk traffic” as a means to harass street performers, thereby causing a “chilling effect” on the performers’ expression. In the hope that it will serve as a reminder of buskers’ First Amendment rights, the Las Vegas Municipal Police Department is awarded a 2010 Jefferson Muzzle.

6) The Texas State Legislature

One objection I have heard voiced to works of this kind—dealing with Texas—is the amount of gore spilled across the pages. It cannot be otherwise. In order to write a realistic and true history of any part of the Southwest, one must narrate such things.” - Robert E. Howard, an early 20th century American author and proud Texan.

For denying motion picture production companies tax breaks if their proposed movies portray Texas or Texans in a negative fashion, a 2010 Jefferson Muzzle goes to…The Texas State Legislature.

WacoWaco is the working title of a planned movie production about the FBI’s 1993 siege of the Branch Davidian compound in Waco, Texas. This nearly two month long ordeal captivated the media across the nation and culminated in a shoot-out and fire, leaving 86 dead and more than 19 wounded, including 20 children. According to the movie’s production company, Entertainment 7, the film seeks to provide a historical account of the actions taken by the FBI and the Branch Davidians that led to the violent conclusion of the siege.

In order to encourage motion picture production in the state, Texas by statute offers a state rebate of up to 15% on in-state movie production costs. In 2007, the Texas State Legislature amended the Moving Image Industry Incentive Act to deny such incentives to films with “inappropriate content or content that portrays Texas or Texans in a negative fashion.” The amendment was given effect for the first time in 2009 when Bob Hudgins, Director of The Texas Film Commission and the state officer in charge of making such decisions, determined that Entertainment 7 would not be eligible for the tax incentives because “[a]fter reading the Waco script, I did some fact-checking and feel very confident in the checking I did. I talked to people, law enforcement and journalists who were actually involved in the whole incident. This was not something that was done lightly. This project steps outside an accurate portrayal of those events.” Although Entertainment 7 had yet to formally apply for the incentives, they had provided Hudgins with a copy of the Waco script in anticipation of doing so.

Entertainment 7 producer Emilio Ferrari strongly disputes Hudgins’ claims of the script’s inaccuracies: “Show me where in the script there is anything against Texas. Those are his two points: It’s against Texans and it’s inaccurate. Neither is correct.” Says Ferrari, “it’s not a movie about Texas. It’s about an incident that happened there, but it could happen anywhere.” Ferrari points to the film’s production staff including Mike McNulty, who co-wrote the 1997 Oscar-nominated documentary, Waco: The Rules of Engagement. “We did years of research on this project, and there’s nothing inaccurate in the script. We have not been told of any specific inaccuracies, and I’d really like to know,” states Ferrari.

Hudgins contends that the movie’s script compresses and simplifies the historic event. Actions that were taken by several individuals are attributed to a single character in the movie. Hudgins appears to deny that the extent of a movie’s factual distortion is a factor in determining its eligibility for the tax incentives. “Either it is (accurate) or it isn’t.”

Whether Entertainment 7 or Hudgins is correct about the historical accuracy of the Waco is irrelevant to the First Amendment principles at issue in this incident. No state is required to offer tax incentives to movie production companies. If a state chooses to do so, however, it cannot bestow those benefits in a manner that discriminates on the basis of the views expressed in the movie. Yet such discrimination is exactly what is required under the amendment to the Moving Image Industry Incentive Act. Under the terms of the amendment, a movie that took a critical of Texans such as Lyndon Baines Johnson or George W. Bush would be ineligible to receive the tax incentives. Moreover, the amendment conflates questions of historical accuracy with the determination of whether Texas or Texans are depicted in an unfavorable fashion. In passing the amendment, the Legislature for the State of Texas fails to recognize that there has never been a movie based on actual events that has depicted those events with 100% accuracy; history—whether detailed in a book or depicted in a movie—always involves a significant degree of subjective interpretation. For engaging in blatant viewpoint discrimination by passing legislation that presumes the only correct view of Texas or Texans is one which depicts them in a positive fashion, a 2010 Jefferson Muzzle is awarded to the Texas State Legislature.

7) The West Fargo School Board in North Dakota and Principal S.K. Johnson of Orange High School in California

I felt the role of the advisor should be to advise. And they [the West Fargo High School administration] felt it should be to control.” - Jeremy Murphy, ousted faculty advisor to West Fargo High School’s student newspaper.

For actions that reveal little regard for teaching First Amendment principles, 2010 Jefferson Muzzles go to… the West Fargo School Board in North Dakota and Principal S.K. Johnson of Orange High School in California

The adage ‘damned if you do, damned if you don’t’ has particular relevance in the context of public school administrators. Theirs is a profession that requires a balancing of often competing goals: promote critical thinking while fostering respect for tradition and traditional values, encourage creativity but discourage disruptive behavior, cultivate independence but instill respect for authority. Public school administrators have to address the needs and often competing demands of students, parents, teachers, politicians, taxpayers, the general public, and even the occasional civil liberties organization. Rare is the occasion that administrators’ actions are not criticized by someone. Although this Jefferson Muzzle concededly may be another example of just such criticism, that fact does not diminish the validity of the assessment that the following two incidents reveal an insufficient appreciation of First Amendment principles.

The PackerAlthough the foregoing statement was made a year ago by the Thomas Jefferson Center in awarding a Jefferson Muzzle to two separate public school administrations, it unfortunately applies with equal validity to two more recent incidents. In July 2009, a reported 75 students, parents, teachers, and union officials attended a meeting of the West Fargo School Board in North Dakota. The crowd hoped to persuade the board to reinstate high school English teacher Jeremy Murphy as the faculty advisor to West Fargo High School’s student newspaper, The Packer. The effort met with no success, however, and the school board voted unanimously to hire a new advisor. The previous month, school officials had removed Murphy, citing “a difference in philosophy” over the role of a student newspaper advisor. Murphy said school officials had objected to “negative” content in the newspaper, particularly student-written opinion columns. A May editorial criticized school officials for a lack of student input in recent decisions they had made. “I advise [The Packer] as a student run publication,” said Murphy. “So the students make the content decisions. My role as advisor is just to help them evaluate the value of what they are reporting.” Although West Fargo school officials found a problem with Murphy’s methodology, it was not a view shared by the Northern Interscholastic Press Association which had recently named The Packer “Best Overall Newspaper” in a state competition.

Although the West Fargo School Board reportedly claimed that the decision to remove Murphy had nothing to do with the newspaper’s content, a number of e-mails obtained under North Dakota’s open records law belie that assertion. In the e-mails, West Fargo High School Principal Gary Clark wrote he was apprehensive about “loaded questions” that student journalists were asking while reporting on a story about the school district’s move to block scheduling. Clark wrote he felt the “controversial” topic could “harm our relations in the district.” The principal went on to write, “These are issues that need to be kept private with our staff. There (sic) are not issues for the ears of students or parents and community.”

Shortly before the forgoing incident occurred in North Dakota, some 1800 miles away Principal S.K. Johnson of Orange High School in California confiscated and thereby prevented the scheduled distribution of all 300 copies of PULP, a literary magazine that served as the final project for the school’s advanced journalism class. “It was not an easy decision,” said Johnson, “but we have an image of the school that I want to uphold.” Contrary to Johnson’s image of the school was the magazine’s feature story on the popularity of tattoos, with quotes from students who had tattoos. The magazine’s cover featured an image of a man’s back tattooed with Old English letters and a picture of the school’s mascot, a panther. In addition to believing the magazine “romanticized” tattoos, Johnson felt the cover promoted gang life and could send the message that Orange High School was a “gangster school.” Johnson also objected to an unrelated article listing 10 things students should do before graduating. Included in the article were such suggestions as skipping class and swimming in the school’s pool, “clothing optional.” PULP editors offered to remove the “10 things to do” article but the principal cited the cover and corresponding story as unsuitable for the school environment.

That might have been the end of the matter had it not caught the attention of State Senator Leland Yee. In a June 24 press release, Senator Yee referenced a California state law that provides protections for student publications beyond those provided by the First Amendment. Yee stated that[]he principal’s actions clearly violated state law. Administrators cannot censor student press just because they do not like the content.” Following Yee’s intervention, Principal Johnson allowed for the 2009 edition of PULP to be released, but only after the “10 things to do…” article was removed.

Although the U.S. Supreme Court has consistently affirmed that public school students do not “shed their rights at the schoolhouse gate,” the Court has also held that school administrators may impose restrictions on student publications of this type, provided that the administrators’ actions are reasonably related to legitimate pedagogical concerns. Greater deference is, for example, given to K-12 administrators in regard to “time, place and manner” regulations, and to a teacher’s control of the classroom. Yet even if the Orange and West Fargo high school administrators acted within the constitutional limits of their authority, the decisions they made were poorly taught lessons on the value of freedom of the press. In both incidents, content control was exercised by administrators with no journalism experience and who were not regularly involved in the production of either publication. Further, the lesson to students was that that they were not ready for the responsibility of determining the content appearing on the pages of their publications. For their poor instruction on the value of First Amendment freedoms, a 2010 Jefferson Muzzle goes to Principal S.K. Johnson of Orange High School in California and the West Fargo School Board of North Dakota.

8) The Administration of Southwestern College in Chula Vista, California

Let’s go where they can hear us.” - a student at Southwestern College encouraging a group of student protestors to leave the single area on campus in which protests are allowed to take place.

For promulgating and enforcing a policy limiting even peaceful and non-disruptive protests to a designated “free speech” patio, a 2010 Jefferson Muzzle goes to… the Administration of Southwestern College in Chula Vista, California.

Southwestern College protestorsIn October 2009, a group of students at Southwestern College in Chula Vista, California, participated in a peaceful protest over college budget cuts. Initially, the protest took place on a covered patio in front of the cafeteria. Sensing that they were in a location unlikely to be noticed by members of the college’s administration, the protestors left the patio and moved in the direction of the courtyard outside the offices of Southwestern President Raj. K. Chopra. At different points in this chain of events, three Southwestern faculty members joined the protest. Upon reaching the courtyard, the protestors were met by a group of police officers who would not let them proceed further. The students and three faculty members peacefully complied and shortly thereafter left the area.

The basis for the police officers’ action was the protestors’ violation of the college’s policy limiting all such speech activities to the “free speech” patio where the protest began. (It is not clear whether the protestors had reserved the patio in advance of their protest—another Southwestern policy.) That evening a college human resource officer, accompanied by a police officer, hand-delivered letters to the three faculty members involved in the day’s events informing them that they were banned from campus pending a criminal investigation. The campus ban of the three faculty members was lifted two weeks later and the criminal investigation was eventually dropped, but an official reprimand was placed in each of the faculty members’ employee files.

Southwestern College administrators appear intent on continuing the College’s policy concerning campus protests. In February 2010, Nickolas Furr, who had set up a table outside the “free speech” patio to collect signatures calling for the recall of three members of the college’s governing board who had voted to cut spring classes, was told he had to move his table to the patio. The college official who ordered Furr to move said he was acting on the order of a superior whom he declined to name. A similar incident occurred 6 days later when a group of students and faculty also sought signatures for removing the governing board members. Among the protestors was Southwestern Professor Robert Unger—a licensed attorney—who, when asked to move to the patio, politely refused insisting it was his right under federal and state law to protest outside of the patio so long as he was not disrupting college activities.

Colleges and universities, along with other government entities and agencies that manage public property, may surely protect their educational activities, ensure equal access to scarce facilities, and impose content-neutral time, place and manner regulations designed to maintain safety and order. But when such rules become so restrictive as to stifle even the peaceful presentation and discussion of controversial viewpoints on public issues, free expression is inevitably at grave risk. “That danger,” declared the U.S. Supreme Court, “is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.” For consistently refusing to heed and apply such clear principles of free expression in the governance of an institution of higher learning, Southwestern College’s administration clearly merits a 2010 Jefferson Muzzle.

9) The Virginia Department of Corrections

If the allegations are correct, then the Virginia Department of Corrections is violating the amendment from two directions.”- Editorial in The Daily Progress, a daily newspaper in Charlottesville, Virginia on the Virginia Department of Corrections directive denying inmate Kyle Mabe a spoken Christian sermon on CD.

For violating an inmate’s Constitutional rights of free speech and religious freedom by denying him a spoken-word Christian sermon CD, a 2010 Jefferson Muzzle goes to… the Virginia Department of Corrections.

Virginia Department of Corrections badgeKyle Mabe is currently serving sentences totaling 8 years and 7 months in a prison operated by the Virginia Department of Corrections. On September 2, 2009, Mabe submitted a Personal Property Request Form for a Christian sermon CD titled Life Without a Cross. This sermon and many others are produced by Still Water Ministries of Clarkson, Kentucky and are provided free of charge to any person who requests them. Life Without a Cross is available on compact disc but not in print. A few days after Mabe submitted his request, prison officials informed him that “you can only receive music CD’s, no sermons on CD’s.”

Clearly prison officials should and do have the authority to prohibit prisoners’ access to information that could cause disruption or create a risk of physical harm to those within a prison. Further, prison officials must be accorded a certain degree of discretion in making such assessments. But it is difficult to see what purpose is served by a blanket policy censoring all spoken word CD’s while allowing musical CD’s. Indeed, it would seem that many spoken CD’s might better serve to encourage good behavior on the part of prisoners both while they are serving their sentences and after they are released.

In the month that followed the denial, Mabe filed a number of administrative appeals but all proved unsuccessful. In October 2009, Department officials informed Mabe that he had “exhausted all administrative remedies.” Represented by The Rutherford Institute of Charlottesville, Virginia, Mabe filed suit in federal court challenging the Department of Corrections’ action on several grounds including denial of his First Amendment rights of freedom of speech and free exercise of religion. Whether the case goes to trial is uncertain. It appears that in response to the filing of the lawsuit, the Virginia Department of Corrections intends to revise its policy effect. In a letter dated March 30, 2010, Department director Gene M. Johnson informed the Thomas Jefferson Center that “[e]ffective June 1, 2010 inmates will be able to order religious CDs in the same manner as they order music CDs.”Books Behind Bars

A similar reversal by the Department occurred in September 2009. In the previous summer, the Department gained notoriety for halting “Books Behind Bars,” a 20-year-old program run by a nonprofit organization that provided free Bibles, dictionaries and other books to inmates. After a firestorm of public criticism and a threatened lawsuit by the Rutherford Institute, the Department of Corrections allowed the program to resume. While these policy reversals represent a step in the right direction, there is nothing to bind the Department to staying on this course. A 2010 Jefferson Muzzle is awarded to the Virginia Department of Corrections in hopes that it will serve as a reminder to the Department to not wait until after the threat of a lawsuit before giving proper consideration of First Amendment principles in formulating policy.

10) The Puerto Rico Department of Education

These kinds of things happened in Afghanistan under the Taliban.”- Silvia Alvarez Curbello, professor at the University of Puerto Rico, on the decision of the Puerto Rico Department of Education to ban five books at public high schools because of allegedly coarse language.

For banning books at public schools in Puerto Rico, a 2010 Jefferson Muzzle goes to… the Puerto Rico Department of Education.

Aura by Carlos FuentesIn September of 2009, The Puerto Rico Department of Education decided to ban five books from public high school curriculum because of allegedly coarse language. Not only would the ban remove the books from the course curriculum, it would also mandate that they be removed from school libraries. The books were written by prominent authors and were intended to be part of the 11th-grade Spanish curriculum. Among the banned books was Aura by Mexican author Carlos Fuentes, who is widely regarded as one of Latin America’s most prominent contemporary authors. In March 2010, Fuentes, while receiving an honorary doctorate from the University of Puerto Rico, lashed out against the book removal, calling it an “antidemocratic, anticultural” act.

Shortly after the removal of the books, then-Education Secretary Carlos Chardón defended the ban of the books, but relented slightly in the face of strong criticism by agreeing to a “revision” or review of four of the books. The fifth book, Mejor te lo cuento: Antologia Personal by Juan Antonio Ramos will remain banned. Numerous attempts have been made to contact the government officials overseeing the review of the four books but no response has been made at the time of this release. The extent and scope of the review is therefore unknown. What is known is that at the time of the removal, Puerto Rico Governor Fortuño backed the decision to remove the books, stating that “books that can be read by an 18-year old cannot be read by a 12 year-old.” Yet, that age comparison is not relevant to this incident as the books were assigned to 11th-graders. Further, then-Education Deputy Secretary of Academic Affairs Juan Rodriguez, a proponent of the ban, admitted he had never read any of the books on the removal list.

Flag of Puerto RicoCritics of the Education Department’s action have pointed out the lack of uniformity in the ban, arguing that many important works of Spanish literature still on the shelves contain language that could be considered “coarse” and that such language has to be considered in context of the book as a whole. Luce Lopez-Baralt of the University of Puerto Rico explained, “A teacher who teaches these works with maturity and authentic literary knowledge will lead students in the reading and studying of these without creating false scandals and much less encourage repressive and fundamentalist attitudes.”

Education officials have the complicated task of balancing educational values, parental concerns, and issues of constitutionality. However, by banning venerated literary works on the basis of passages not considered in context, the Puerto Rico Department of Education failed to give appropriate weight to First Amendment principles and thereby earns a 2010 Jefferson Muzzle.