Legal Commentary

A Sad Victory for Thuggery in Texas

By Eugene Volokh

The Foundation for Individual Rights in Education reports:

A student performance of an excerpt from Corpus Christi, a play positing Jesus Christ as a gay man, was canceled this past Friday at Tarleton State University (TSU) in Texas amid controversy and calls for censorship.

The performance of the excerpt, which was to be directed by TSU student John Otte, was scheduled to be held on Saturday morning as fulfillment of an assignment for an advanced directing class. Instead, Corpus Christi and three other student-directed plays, also scheduled for Saturday, were canceled by the class?s professor late Friday evening[, citing] ... ?safety and security concerns for the students as well as the need to maintain an orderly academic environment.? ...

Otte?s selection of award-winning American playwright Terrence McNally?s play had prompted condemnation from fellow students and community members because of the play?s content. Shamefully, even Texas Lieutenant Governor David Dewhurst weighed in on the side of censorship, saying in a statement that ?Every citizen is entitled to the freedom of speech, but no one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans.?

Fortunately, however, ... TSU President F. Dominic Dottavio recognized in a March 11 open letter that while TSU does not endorse the play, and while he personally found it ?offensive, crude, and irreverent,? TSU, as a public university, was ?legally bound to allow the student production to go forward.? Dottavio further wrote:

We have had many conversations with the Office of General Counsel for The Texas A&M University System and they have made it clear to us that this is an unambiguous freedom of speech (First Amendment) issue. The Supreme Court of the United States has consistently held that public universities may not engage in the sort of censorship that prohibiting this student?s project would involve. This concept was reaffirmed by the 2008 Higher Education Opportunity Act which stressed that students should not be intimidated, harassed, or discouraged from speaking out. Like every citizen of the country, the student who chose to direct excerpts from the play enjoys his right to free speech. This right is protected by law even if the speech is offensive to others. But, again, it is important to understand that this is not the university?s speech; it is the student?s speech.

When actions and words are particularly offensive, the freedoms we enjoy can often lead to lively debate. As an educator, I believe the debate should be conducted with civility and respect. That is exactly what I expect from our Tarleton family and that is what I have seen from the campus community.

Despite Dottavio?s plea for a civil debate, Mark Haltorf, an assistant professor at TSU, told the Fort Worth Star-Telegram that the university?s drama department received threats which prompted the cancellation:

?We received so many threatening calls and e-mails today across campus, the numbers were staggering. One administrator received in excess of 800 e-mails. Our department received calls of a threatening nature. I could not guarantee the safety of my students. The administration was truly behind the academic exercise, but I could not justify the safety risk.?

In essence, then, the heckler?s veto seems to have successfully censored speech on campus in this instance, as security threats preempted protected expression. It is impossible for FIRE to know for certain if behind-the-scenes pressure from TSU administrators or elected officials like Lt. Gov. Dewhurst played some tacit role in the performance?s cancellation, but in any event, the show will not go on. [UPDATE: I originally trimmed this paragraph for space reasons, but decided to put it back in.]

This particular silencing of speech is difficult for FIRE to fight. Had President Dottavio or another TSU administrator buckled to political pressure and cancelled the performance on his own, the First Amendment violation would be clear as day .... But because the performance was an assignment for a class, and the decision to cancel this play and the others was made by the professor, First Amendment protections are not implicated in the same way. Generally speaking, a professor enjoys a great deal of pedagogical deference to control classroom speech, and for the most part may conduct class as he or she sees fit....

[Nonetheless, t]hat the performance was cancelled because of threats of violence is a deeply depressing development for respect for the First Amendment in Stephenville, Texas, where TSU is located. If TSU community members, local citizens, and even the state?s elected officials don?t understand that (1) the First Amendment exists precisely to protect speech that challenges widely held presumptions about politics, religion, and other issues of the day and (2) the answer to speech with which one disagrees is more speech, not violence or censorship, then the phenomenon we here at FIRE call ?unlearning liberty? is advancing faster and further than we feared....

It?s incredibly disappointing when our fellow Americans threaten violence and shout down those with whom they disagree rather than choose to engage in rational debate and accept the wonderful fact that in this country, unlike so many others, each citizen is free to speak his or her mind.

FIRE has more; a sad occasion indeed. For more on a similar incident, in which FIRE condemned a university that tried to suppress a parody of The Passion of the Christ, see here. For more on thuggery suppressing free speech, see far too many other examples, such as this one.

Full post as published by The Volokh Conspiracy on March 29, 2010 (boomark / email).