AGO 2007-024.

Case DateNovember 01, 2007
CourtConnecticut
Connecticut Attorney General Opinions 2007. AGO 2007-024. Attorney General's Opinion Attorney General, Richard Blumenthal2007-024November 1, 2007David G. Carter, Sr., ChancellorConnecticut State University System39 Woodland StreetHartford, CT 06105Dear 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...

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