« Concepcion Redux | Main | The Scheulke Report on the Stevens Prosecution, and Some Thoughts the Adversarial Process, and Prosecutorial Restraint »

Monday, March 19, 2012

Warning the audience

A group called Created Equal will be on FIU's campus tomorrow, apparently as part of a two-week tour of Florida colleges and high schools. Created Equal is one of several anti-choice organization that makes its point with the display of graphic images of terminated fetuses and fetus parts. Last weekend, an email was sent out by the university's VP for Student Affairs, announcing the coming event, recognizing the "distasteful" nature of the signs which have created "controversy" in the past, reiterating the university's commitment to free expression and the exchange of ideas, and encourgaing members of the university community to "take this opportunity to examine and express their views."

Objections to groups such as this often come from women who have had to deal with the choice to terminate a pregnancy, who feel re-traumatized and triggered by the in-your-face and disturbing images (Created Equal's response is that women feel traumatized not by the pictures but by their earlier actions). I believe that concern motivated the email--the administration wanted to warn those who may feel traumatized that the group (and its photos) will be there this week so those women can avoid that part of campus. And it incidentally allowed the administration to preempt the inevitable objections to allowing the group to set up shop by shouting its belief in and commitment to the freedom of speech.

That said, is there something troubling about the university sending out this email? The administration does not ordinarily warn the campus community about every public protest or expressive event happening on campus. It certainly does not warn the community with the apparent goal of notifying listeners how to avoid unwanted speech--and thereby trying to limit the speaker's audience. And the administration certainly does not routinely call on the community to come out and engage in (what it probably expects to be) counter-speech. So it looks like content or viewpoint discrimination at work here: government is taking steps to affect the expressive environment (potential audience size, likelihood of counter-speech, etc.) under which this group--and only this group--will operate.

On the other hand, the email appears to be government speech; the government can take sides in a public debate and be as discriminatory as it wants to be. But can or should government speech take the form of public pronouncement to the effect of "we have no choice but to allow these people to use this public forum, but we think you should avoid this area or turn out in droves to debate them"? Is warning the audience about the (in the government's view) objectionable content of a speaker in the public forum--and, as noted above, changing the expressive environment--legitimate government speech? Is speech that alters the conditions under which a group operates in the debate different than government taking a stance on the substance of some debate?


Posted by Howard Wasserman on March 19, 2012 at 12:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Warning the audience:


There is precedent for the state takings sides in the abortion debate. The Supreme Court has regularly and repeatedly emphasized that the state may send the explicit message that it prefers childbirth over abortion -- and it may impose that message on women who have decided to end their pregnancy.

I know two wrongs don't make a right, but I wanted to provide some context.

Of course, your questions is whether this is a wrong. I might frame the question as whether the government may use its power in a way that may impact the size of a speaker's audience.

Posted by: Caroline Mala Corbin | Mar 21, 2012 11:19:26 AM

The troubling aspect here is that the university is itself quite obviously taking a side in a matter of debate. Has anyone else had their speech described as "distasteful"? Taking sides in these sorts of debates is not what universities should do. I've always thought the Kalven committee got that one right.

Posted by: Thomas | Mar 21, 2012 12:15:51 AM

I appreciate the clarification as to the "unique" nature of the "emotional reaction," but -- not belittling said trauma in this context -- at some point we seem to be slicing things a bit thin.

Various photos can provide striking emotional reactions that can be a major concern and selectively choosing what ones should be warned about is somewhat troubling. A religious believer very well feel more than "anger" at certain images. For instance, misuse of the Koran not only results in "anger" but other emotions. Religion is very personal, which is why religious images result in many controversies.

Posted by: Joe | Mar 20, 2012 10:52:39 AM

It's the difference between anger at the image and feeling trauma caused by the image.

Posted by: Howard Wasserman | Mar 19, 2012 7:56:51 PM

"abortion is unique in the sense of the images triggering emotional reaction"

Religious images trigger rather strong emotional reaction, including the crucifix in urine controversy of years pass, so I'm not sure of the "unique" nature here. In what sense?

Posted by: Joe | Mar 19, 2012 5:39:10 PM

I have no reason to believe that the university would warn on other groups or issues. But that's a guess; we have nothing else to compare this to. But abortion is unique in the sense of the images triggering emotional reactions.

In any event, medium-based discrimination is considered a form of content discrimination and subject to heightened scrutiny. In fact, in a different abortion protest case, the Court rejected limits on signs because people inside the clinic could pull the shades, while upholding limits on sound amplification, because it's more difficult to avert one's ears.

Posted by: Howard Wasserman | Mar 19, 2012 3:29:03 PM

Has there been another example of public speech involving graphic, in-your-face photos to which we can compare this episode? Would it be reasonable if the campus was warned about such demonstrations-- for example, if a group came to lobby about gun control or torture or animal abuse and brought giant photos on sandwich boards-- while not being warned about verbal speech?

It sounds from your post that the adminstration's warning was based on the upsetting nature of the images, more than the message, so I'm not convinced it's viewpoint/content based so much as medium-based. If a group formed to publicize the need to wear bike helmets and decided to do so using gruesome photos of accident victims, it seems likely the adminstration might warn about that too, no?

Posted by: sugar huddle | Mar 19, 2012 3:19:28 PM

Is the university sending out emails in each case that might "surprise or astonish," or is it selectively doing so?

Posted by: Joe | Mar 19, 2012 12:56:25 PM

Another way to phrase the question: Does a group have the right to surprise or astonish or does the government alter its speech by removing the surprise element? Reaching for an analogy: Does the addition of a "Caller ID" button to the traditional public forum of the state university campus, change the forum?

Posted by: Ann Marie Marciarille | Mar 19, 2012 12:26:35 PM

The comments to this entry are closed.