"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Justice Louis Brandeis, 1927.
Harvard Law Professor Alan Dershowitz once lamented that it is "so difficult to fight against censorship by good people who seek to use it to bring about good results." That is the case here. It is about good administrators who repeatedly have taken courageous and decisive action to protect free speech and academic freedom from attacks both internal and external to the Evergreen community. It is also about good administrators who have taken enlightened, deliberate and successful steps not only to increase the diversity of students, faculty and staff, but also to ensure a learning and working environment that promotes equality of opportunity. In the 1990's, decisions which require administrators to strike the proper balance between the often competing interests of free speech and equality are numerous and never easy. Sooner or later, any institution will make a wrong decision, and in my view, that has happened here.
To understand this case, it is useful first of all to state what it is not about. It is not your classic First Amendment case in which a plaintiff has standing to sue for violation of the right to free speech. No alumnus or alumna could successfully make a claim that he or she has a First Amendment right to have his or her words published in the Voices of '71 booklet. The College generally has the right to choose what will or will not appear in its official publications. Nor is this a pure and simple case about a traditional public forum where content-based restrictions on speech are presumptively unconstitutional.
End of case? Not by a long shot. While this is not a legal issue per se, it is a case about important free speech principles independent of First Amendment requirements. Whether or not the College is bound by the First Amendment in a particular decision it makes, it acts at its peril if it violates fundamental free speech principles. It has done so in this case.
What were the good results which the College was trying to bring about through its action? Concerned that some S.M. Park cartoon panels promoted racial and ethnic stereotypes, the College believed that publishing them would be inconsistent with its educational mission to protect all Evergreen students as equal members of the community. Only the most unenlightened persons unfamiliar with the Fourteenth Amendment would disagree that this is a constitutionally required mission. It follows, then, that the College generally has the right, if not an obligation, to refuse to promote racial and ethnic stereotypes in those publications that are not public forums for the exchange of ideas. College promotional materials are the most obvious examples of this type of publication where the College may make extensive content-based decisions. It is, after all, in the business of selling educational services and may put forth its best face in order to convince consumers to buy them.
But is the Student Voices of '71 booklet your classic college promotional material? I think not, and the College is not easily let off the hook by claiming that it is. For several reasons, the booklet clearly does not fall neatly into the same category as the college catalog, the face book, recruitment brochures and alumni publications, even if the College decides to use it for promotional purposes. Student Voices of '71 differs from the usual promotional and recruitment pieces in many ways: the manner used to solicit content, the criteria used to judge what should be included, the expected use of the publication by its recipients, and the forum of sorts which was created for alumni voices.
The College solicited contributions from a very narrow class of persons: alumni from the Class of '71. This acknowledged that this class of individuals had a unique perspective: what it was like to have been the first group of students to study at and graduate from Evergreen. Surely the College knew that, in the spirit of Evergreen, many contributions likely would test the bounds of "acceptable" expression. And Class of '71 alumni had every reason to believe that any decision to include or exclude their contribution in any exhibit or publication would be based on qualitative and aesthetic criteria, not on the viewpoint they were expressing. In fact, Richard Alexander, in his letter soliciting contributions from alumni, assured them that this would be the case.
Sid White took on the task of mounting an exhibit in the College galleries and putting together the Voices of '71 booklet. Through the years Sid had done an admirable job in assembling a number of art exhibits and publications. He was the natural choice for this phase of the project, and the College trusted his artistic and aesthetic judgment to determine what was to be exhibited and printed. At no point did the College tell him that the booklet's main purpose was promotional or suggest that he should use selection criteria more appropriate to a public relations publication.
Apparently, the Office of College Relations, whose job it is to create promotional and public relations material, was minimally or not at all involved in this project. Certainly, had it been involved, it would have used additional criteria, and the resulting promotional publication would have been quite different. But I would hope that had it been asked to be involved it would have pointed out the inappropriateness of trying to skew the diverse alumni voices into an "acceptable" public relations piece (I leave for others to ponder, for a discussion at another time and place, the tension between "air brushed" and "warts-and-all" public relations images of Evergreen).
The Voices of '71 booklet also differs from promotional materials in the way it would be used by its recipients. Some alumni might treasure it as memorabilia to be kept and cherished for years to come. Persons who were not part of the founding period of the College would read the publication not so much to be sold on what Evergreen is all about today as much as to satisfy curiosities about what it was like in 1971. In that regard, the publication is more of an historical account book of what Evergreen meant to this select group of alumni. The accuracy of that account should not be altered in the name of public relations.
Is it not clear, then, that in the wide spectrum of publications, represented on one end by those over which the College may exercise little or no content control and on the other end by those over which it may exercise considerable control, the Voices of '71 booklet falls closer to the former? The College's argument that it may exercise broad discretion over the content of this booklet and remain loyal to free speech principles is untenable.
To hear the perspectives of the Class of '71 alumni, the College in effect created a forum of sorts to which every member of the Class of '71 could contribute. The College was interested in all of the perspectives, not just those which met some standard of decorum, and in fact the exhibit in the Evergreen galleries contained something from every contribution sent in time to be included. Furthermore, the original uncensored version of Voices of '71 contains everything which was featured in the exhibit with some minor editing. The censored version, however, is identical to the first edition with the exception of one person's contribution: S.M. Parks. His cartoon was singled out for censorship because of its content.
Any ban on speech because of its content or viewpoint is presumptively inconsistent with free speech principles. The only arguable exceptions, those narrowly-defined categories of unprotected speech such as obscenity and libel, are inapplicable here.
In a free society, a perceived evil should not be countered with the greater evil of censorship. Certainly within a free society, academic institutions should model free inquiry and expression, not censorship. And within academia, most of us, including our well-intentioned administrators, want Evergreen to remain a model of critical, innovative and cutting-edge thinking. To protect that distinction, it behooves us to find legitimate ways to counter speech which undermines our commitment to equality and diversity.
I am a Mexican American, and even though I am only mildly offended by the Tijuana lawyer portrayal in the Parks cartoon (it doesn't come close to the invidious hate speech too prevalent in our society), I can see how such an image can contribute to a perpetuation of a stereotype about me and my ethnic community. But I am even more painfully aware that any society that bans speech which "promotes racial or ethnic stereotypes" is in deep trouble, well on its way to relinquishing precious freedoms. And I just know that such a vague and broad proscription would someday be used discriminatorily and with a vengeance against me, my community and other ethnic and racial groups.
Up until now, Evergreen had managed to resist dangerous policies and practices, such as speech codes, urged upon it by a sizable "politically correct" constituency. The difficulty in resisting these pressures is articulated well by Professor Dershowitz in his book Contrary to Public Opinion:
"Lacking a historical memory, many young students are impatient with falsity. They know that racism, sexism, homophobia, anti-Semitism, and other forms of bigotry are false and evil. Why then must these evils be tolerated on the altar of some abstraction labeled freedom of speech? I see the sincerity on the faces of students as they ask this question. But it is no different from the sincerity on the faces of religious zealots who cannot understand why we tolerate the evil falsity of atheism, evolution, or abortion, which they know are wrong.""The marketplace of ideas is an uncomfortable and wasteful metaphor for those who know the difference between true ideas and false ones. Yet the alternatives are so self-evidently dangerous to all sides. Once the state or the university arrogates to itself the power to define what is true and false--what is politically correct and incorrect--a static inertia settles in. That is why those who have a strong stake in whatever status happens to be quo at any given time are often tempted into making the case for censorship."
Based on S.M. Parks' web posting, I do not believe that he intended to promote a racial or ethnic stereotype. And because I am acquainted with the civil liberties and civil rights leanings of the well-intentioned administrators in this case, I know that they intended to do good and that in their zeal to do so they did not fully understand the free speech consequences of their actions. But then the road to many bad places is paved with good intentions.
It also appears from Parks' posting that he is open to being enlightened about what others find so objectionable in his cartoon. He appears to be a reasonable person who, had the College explained its concerns to him before it excised his cartoon, very well might have voluntarily withdrawn or redrawn the offending panel (I speak in the singular here, because I fail to see the alleged offenses in the other two panels). Failing that, the College had at its disposal other tools short of censorship, including "more speech".
The College now has the opportunity to reaffirm its commitment to free speech . It is a rare opportunity to demonstrate the courage which this important freedom deserves. As Elmer Davis is reported to have said at the height of McCarthyism, "This will remain the land of the free only so long as it is the home of the brave."
José Gómez, Evergreen Faculty Member, E:mail: gomezj@elwha.evergreen.edu