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04.28.10 Muzzled cover


A look at this year's top offenders against free speech in the US

April 28, 2010, 12:00 am
 By Mark Meier

Each year, the Thomas Jefferson Center for the Protection of Free Expression recognizes the previous year’s most egregious acts of disregard for the First Amendment. This year’s “Muzzle Awards” are steeped in two key points.

One is that whatever venue or means or incentive a government provides for expression, it should allow all opinions equal access. Governments can’t create a vanity license plate program, for example, only to rule that some words should be squelched. They can’t offer incentives to movie producers and then capriciously decide that some films are unworthy of support based on their content. As Robert M O’Neil, the director of the TJ Center, says, “Unless very unusual circumstances warrant different treatment, the presumption is that all those similarly situated should be treated comparably.”

Second, censorship evolves with culture and technology. That doesn’t mean it goes away or worsens, O’Neil says. “Those who seek to restrict free speech or free press may be increasingly ingenious but we could not comfortably generalize that the state of free speech has become better or worse over time. It’s simply different.”

Different how?

Here’s a look at the 2010 Muzzles.

Should any New Mexico agencies have made the list? Comment below if you think so.

Texas State Legislature
Don’t mess with Texas. Period. Don’t even make a film about people who messed with Texans.

Waco filmmakers wanted to spend $30 million in Texas—until the state Legislature said it wouldn’t hand over a 15 percent rebate because the movie about the 1993 siege of the Branch Davidians’ compound portrayed “Texans in a negative fashion.”

Movie producer Emilio Ferrari learned this lesson last May. Ferrari’s feature film Waco depicts the fiery federal siege of the Branch Davidians’ compound in 1993. Ferrari told a reporter that Waco was America’s “biggest tragedy, after 9.11. And this was by Americans against Americans. I think people have a right to know what happened.” Consequently, Ferrari and his staff conducted thousands of hours of research and consulted “every expert on Waco.”

His team also wanted to spend $30 million filming in Texas, which should have made the state rejoice. In 2007, the state Legislature created the Moving Image Industry Incentive Program to draw more media production to the Lone Star State. The 15 percent rebate on in-state production costs had helped mostly commercials and only one movie when Ferrari applied.

The program declines projects that advertise for the state government, are obscene, or made by students for course credit. Additionally, “The State of Texas is also not required to make payments to projects that include inappropriate content or content that portrays Texas or Texans in a negative fashion.”

The Texas Film Commission ruled that Waco contained errors and could harm the state’s image. “For denying motion picture production companies tax breaks if their proposed movies portray Texas or Texans in a negative fashion,” the Texas state Legislature gets its second Muzzle.

Oklahoma Tax Commission
Everything is really not OK, in Norman, Okla. Keith Kimmel, 28, applied for a vanity license plate that read “IM GAY.” The Oklahoma Tax Commission, which oversees the Motor Vehicle Division’s cash-cow program, turned down the request because it prohibits plates that “may be offensive to the general public.”

Kimmel cried foul and filed suit this February. “I want to tell people who I am and what I am,” he told local news media. “I’m openly gay. What better way to tell everybody than to put it on the back of a car?”

The Tax Commission retorted that license plates remain state property, “not the private billboard for the person to whom they are issued.” But the commission had permitted other state license plates to proclaim “STR8FAN” and “VIBR8R” and admitted it had no standard policy.

This apparent caprice, the TJ Center observes, “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 itself but then only allow the expression of messages that they approve.” The Muzzle is “for administering the state specialty license plate program in a viewpoint discriminatory fashion.”

Whatever happens in the courts, Kimmel will never get his plate. Tulsa police arrested Kimmel at a gay bar March 27 and brought him to a hospital. Kimmel formally complained that the police had insulted and beaten him; he was found dead at a friend’s home on April 2, the cause of death still undetermined.

Virginia Department of Corrections
Virginia’s prison inmates can’t do many things: enjoy evening strolls around the neighborhood, have weapons in their cell or listen to religious sermons on CD. Kyle Mabe found that out the hard way when he requested a free copy of “Life Without a Cross” from a ministry in Kentucky.

Mabe was beginning his sentence at the St. Brides Correctional Facility in Chesapeake and, when he requested the CD last September, he was told, “You can receive only music CDs, no sermons on CDs.” When Mabe filed a complaint, he was rebuffed. The reason? An earlier memo from the Department of Corrections deputy director that prohibited audio recordings of anything other than music. “Bad Romance” would be a go, but Great Expectations a no.

Mabe filed more grievances and appeals until he was told at the end of October, “You have exhausted all administrative remedies.” That’s when the Rutherford Institute, a civil liberties nonprofit based in Charlottesville, stepped in. In February 2010, it sued various DOC officials on Mabe’s behalf for hindering “his exercise of his Christian religious beliefs.”

It was not the first time the Rutherford Institute had challenged the state Department of Corrections. In 2009, the DOC shut down the Books Behind Bars program, operated by Charlottesville’s Quest bookstore on W. Main Street. The 20-year-old program delivers donated books to prisoners, most of whom want dictionaries, the Bible or the Quran. When Books Behind Bars volunteers most likely failed to remove a paperclip and a CD from some books, the DOC accused the program of establishing a conduit for contraband. Rutherford stepped in, news media picked up the story, and a month later the DOC relented.

Mabe’s lawsuit may have had a similar effect. In a letter to the TJ Center, DOC Director Gene Johnson stated, “Effective June 1, 2010, inmates will be able to order religious spoken word CDs in the same manner as they order music CDs.” Although the DOC won’t comment on current lawsuits, spokesman Larry Traylor says, “all policies are ultimately the responsibility of the Director and the Director does not fashion or change policy based on anything but law, security and other legitimate concerns of the operation of a large agency such as the Department of Corrections.”

In deliberating on this Muzzle, the TJ Center concedes prisons “should and do have the authority to prohibit prisoners’ access to information that could cause disruption or create a risk of physical harm.” Yet the sermon Mabe requested doesn’t pass that litmus test. Hence, the Muzzle is awarded “for violating an inmate’s Constitutional rights of free speech and religious freedom.”

US Rep. Alan Grayson, D-Fla.
As if prosecuting terrorists, closing Guantanamo and investigating threats against sitting governors weren’t enough for US Attorney General Eric Holder, Congressman Alan Grayson wanted him to pursue a taunter.

In a four-page letter to Holder in December, the Democratic congressman requested that the Justice Department prosecute Republican Angie Langley for parodying his website,, claiming the site was “fundamentally dishonest and fraudulent” because its creator lived outside his congressional district.
Grayson’s red, white and blue site features a video montage of Howard Dean and others praising the congressman’s toughness. Langley’s site,, apes the style but adds a symbolic streak of yellow. Her video montage begins with Grayson trying to stop someone from videotaping him.

Grayson should have a soft spot for parody. On the House floor, he caricatured the Republicans’ idea of health care reform as “Don’t get sick and, if you do get sick, die quickly.” Yet Grayson alleged Langley’s parody was “fundamentally dishonest and fraudulent” not because Grayson is or isn’t nuts, but because Langley lived outside Grayson’s congressional district. Hence, “my” was clearly a lie. “I am not her Congressman,” Grayson wrote, “and I have never been her Congressman.” Grayson wanted her to serve five years in prison and pay a fine.

“The right to criticize public officials without fear of government reprisal is a fundamental component of the First Amendment,” the TJ Center says. “As such, elected officials should both expect and tolerate criticism.” Grayson gets the Muzzle for urging extreme action “against a vocal critic for alleged violations of Federal Election law that, even if true, represent minor transgressions.”

The Alabama Alcoholic Beverage Control Board
Maybe you’ve never seen a woman bicycling naked. If you live in Alabama, the chances that you will became much smaller last year. The Alabama Alcoholic Beverage Control Board banned sales of Cycles Gladiator wine because the label features a nude nymph flying alongside a bicycle with winged pedals. The Alabamans thereby earned their Muzzle Award “for utilizing a paternalistic, highly subjective, and most likely unconstitutional approach to evaluating the advertising of alcoholic products.”

The banned label reproduces an 1895 advertisement by the French artist Georges Massias. The Gladiator was a line of bikes begun in 1891, and Massias’ original prints have fetched $50,000 at auction. Reproductions can be bought as dorm room posters or on mugs, T-shirts and the Hahn Family Wines’ bottles in all 49 nymph-friendlier states. The central California vineyard picked the image, according to its website, because it “captures the grace and uninhibited beauty of our hillside vineyards.”

The board may have nothing against hillside vineyards, but it does have an aversion to uninhibited beauty. The board’s attorney told the Associated Press that a “person posed in an immoral or sensuous manner” could not be used to advertise alcohol. The board banned another Hahn Family Wine after enlarging the label many times over revealed that a woman’s nipple was visible through her gauzy garment.

Nonetheless, the TJ Center notes, “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.” Alabama’s ban has boosted Cycles Gladiator sales and generated a new marketing slogan: “Taste what they’re missing.”

Chicago Alderman James Balcer
The Governator may have found his match in the Alderman-ator. James Balcer, 11th Ward Alderman in central Chicago, heard about a private mural he didn’t like so he called in the “graffiti blasters” to blow the offending art into uniform brown oblivion. “Yeah, I’m the alderman here,” he told Chicago Public Radio. “I was told about it and I OK’d it and I stand by it,” he said of the mural’s purging.

The mural in question depicted three police cameras, which resemble blue and white boxes, and are ubiquitous atop poles throughout the city. One of the mural’s cameras featured a trophy deer head, another a skull, and the third a crucifix. Mural artist Gabriel Villa had been asked by the building’s owner to paint the wall for a local arts festival. Villa said his intention with the mural was to get people talking.

Apparently, some people did just that. Balcer said he received a few complaints from residents and police as the mural neared completion. Balcer had the mural painted over in an early morning raid without consulting Villa or the building’s owner, whose son was organizing the festival.

Balcer also erroneously claimed the mural needed a permit. He then called the mural “a threat to this community.” Well, the Constitution doesn’t give public officials the right to erase art wherever and whenever they want, so the TJ Center recognizes the alderman “for failing to appreciate this constitutional principle and his city’s own permit requirements.”

Administration of Southwestern College, Chula Vista, Calif.
Southwestern College so cherishes its students and faculty’s right to express themselves that it has designated a special “free speech patio” for that purpose. Reserve the patio in advance, and complain all you want. Don’t stay, however, if you want to avoid dire consequences. Just ask three sanctioned professors.

Last October, protesters originally assembled at the free speech patio to decry cuts to classes and funding. They then spontaneously marched to President Raj Chopra’s office, where a line of campus police awaited them. The president’s office was empty, the professors drifted away and the crowd dispersed.

That night, however, each professor got a surprise visit at home: a cop and the director of human resources. The latter bore a letter that placed the professors on administrative leave, and banned them from the campus and its resources, including email, until their presence at the rally had been investigated fully.

Southwestern spokesman Chris Bender says: “This campus is covered with posters expressing people’s views—we make no attempt to take those down. Those are not the actions of a college that limits free speech. The issue at hand was public safety, and it’s a shame the Jefferson Center has confused protecting free speech with protecting people from getting hurt.”

Nonetheless, “for promulgating and enforcing a policy limiting even peaceful and non-disruptive protests to a designated ‘free speech’ patio,” Southwestern College gets a Muzzle.

SK Johnson, Principal Orange (Calif.) High School and the West Fargo (ND) School Board
According to his accounts, SK Johnson, a California high school principal, found a pre-release copy of Pulp, the final project of the school’s journalism class. The cover pictured a bare back tattooed with “PULP” in Old English type and a panther, the school’s mascot. It related to a story inside about tattoo trends around the predominantly Hispanic campus. Also inside was a list of things to do before graduation, such as skinny dip. After a custodian purportedly saw Johnson with the magazine and asked if he was reading one of those “gang-tattoo magazines,” Johnson ordered all 300 copies to be confiscated and locked in his closet. “It was not an easy decision,” he told a local newspaper, “but we have an image of our school that I want to uphold.”

The trouble is, California’s law against censoring school publications requires people like Johnson to prove the publication is “obscene, libelous, or slanderous” or “so incites pupils as to create a clear and present danger” to the law or orderly conduct of school. After a state senator and legal groups complained, Johnson let Pulp out of his closet—in July.

In Fargo, ND, a similar drama unfolded. Jeremy Murphy of West Fargo High School seems like Glee’s Mr. Shue, except he orchestrates the student news, rather than show choir. Former students raved about his advising of the yearbook and the school newspaper The Packer, which under his stewardship won regional awards for best overall school newspaper and journalist of the year.

Yet all that ballyhoo quickly became boo-hoo. A student editorial in May 2009 criticized the school administration for decision making that “shows a lack of restraint and consideration from administration officials to gauge the outcome of the people being affected. More time should be spent contemplating and going over the issues with those involved rather than jumping hastily into action.” Ouch. Such rhetoric and pesky reporting had become too much for the administration, which sacked Murphy for a “difference in philosophy.”

Although schools do walk a fine line between maintaining an educational environmental and protecting students’ rights, the West Fargo School Board and SK Johnson share a Muzzle “for actions that reveal little regard for teaching First Amendment principles.”

Puerto Rico Department of Education
Profanity and sexual content allegedly led to the removal of five books from the US territory’s 11th-grade Spanish curriculum and school libraries, including Aura by Mexican author Carlos Fuentes.

In September, Puerto Rico’s Department of Education banned the books by reputable authors because of crude language. Governor Fortuño, backing up his DOE, claimed, “The books are not being banned,” rather the DOE is determining “at which level they can be read.”

Under pressure, the DOE reconsidered four of the five banned works after a “revision” to remove the vulgarity.

It’s not clear, however, who’s doing the revising and how, or who even promulgated the bans in the first place. But even changes to language can’t redeem a memoir by Juan Antonio Ramos, Mejor te lo cuento: Antologia Personal, which the DOE will not reconsider. A DOE spokesman said to a local news organization, “You can have good books with bad words because they reflect the reality out there. But this book can be a screenplay for a porn movie.”

As the TJ Center says, “banning venerated literary works on a vague premise of age-level inappropriateness is unacceptable.” Hence, the Muzzle.

Las Vegas Metropolitan Police Department
Elvis impersonators beware: Keep the jumpsuit and sideburns in the casino or risk arrest on the Vegas Strip.

Impersonator Bill Jablonski told a Las Vegas reporter that tourists “come from all over the world looking for an Elvis.” He hangs around the street to help them out. He doesn’t want their money; he just thinks it’s fun. He cries when he talks about the girl in a wheelchair who just wanted a picture with the faux Elvis. Is that too much to ask in Vegas?

Apparently, yes. Las Vegas police have regularly detained and threatened to arrest buskers and street performers for obstructing sidewalk traffic and operating without a license, even though the courts say the cops aren’t allowed to do that. Sidewalks, streets and other spaces are “public forums” for the free exchange of ideas. About the only thing cities can do to peaceful people in such places is to regulate aggressive panhandling.

The ACLU has sued on behalf of the performers, just as it previously sued on behalf of people who wanted to distribute flyers or preach along the Strip. An ACLU attorney said of the Las Vegas police, “They think each new type of expression they can suppress, and we have to go to court for each of those, and the results are always the same.” The TJ Center also takes up the cause, granting a Muzzle “for continually harassing street performers in contravention of their established First Amendment rights.”  SFR

The Thomas Jefferson Center for the Protection of Free Expression has awarded the Jefferson Muzzles since 1992. They are announced each year on or near April 13, the anniversary of Jefferson’s birthday. To make a nomination for the Muzzles, go to


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