ACLU of Kentucky Hails Two Free Speech Victories

Affiliate: ACLU of Kentucky
January 5, 2001 12:00 am

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LOUISVILLE — Free speech rights received hearty endorsements today in two significant appeals court decisions, the American Civil Liberties Union of Kentucky said.

Ruling en banc in what is being called a landmark case, the Sixth Circuit Court of Appeals said that Kentucky State University officials violated the First Amendment when they confiscated and banned distribution of the school’s student-produced yearbook.

And in a classic free speech case, a state court of appeals reversed the 1998 harassment conviction of a Benton woman who wore a T-shirt with a controversial Marilyn Manson song lyric to a community festival.

“It is always dangerous to give the government the power to decide what speech is appropriate and what is inappropriate,” said Jeff Vessels, Executive Director of the ACLU of Kentucky. “As Voltaire famously said, ‘I may not approve of what you say, but I will defend to the death your right to say it.’ The rulings today reflect that spirited defense of our free speech rights.”

In the T-shirt case, a district court judge had convicted Venus Morgan of harassment for wearing a shirt with the words “I am the God of Fuck,” to the 1998 Tater Days Festival in Benton. A circuit court of appeals upheld the ruling, saying that Morgan was being prosecuted not for the content of her speech but for the “conduct” of wearing the offensive T-shirt.

The state appeals court agreed to hear the ACLU’s arguments and ultimately reversed the decision, finding that the harassment statute “clearly requires more than a simple expression of dislike by the members of the public for the conduct of another person.”

“Two and a half years after the trial, free speech finally has been vindicated by the Court. It is a good day for the First Amendment,” said David Harshaw, a Louisville attorney who defended Morgan on behalf of the ACLU of Kentucky, working with attorneys Kathleen M. Flynn and David A. Friedman.

In the yearbook case, two students, Charles Kincaid and yearbook editor Capri Coffer, sued Kentucky State University, claiming that the school’s seizure of the 1993-94 yearbook was based on the publication’s contents, not its quality.

At issue in Kincaid v. Gibson, in which the ACLU filed a friend-of-the-court brief, was the proper legal standard for school and student control of college-level publications.

“Confiscation ranks with forced government speech as amongst the purest forms of content alteration,” Circuit Judge R. Guy Cole, Jr. wrote in a strongly worded majority opinion for the full appeals court.

The Court called the confiscation “arbitrary and unreasonable,” finding that the student yearbook is a limited public forum and that University policy cedes editorial control to the yearbook’s student editors, with limited school oversight. While government can establish reasonable time, place, and manner restrictions on limited public forums, government must remain viewpoint neutral in such restrictions, the court said.

“There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script,” Judge Cole wrote. “In either case, the government alters student expression by obliterating it. We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government.”

Today’s ruling in Kincaid reversed a district court’s order and a September 1999 decision by a three-judge panel of the Sixth Circuit Court of Appeals. The authors of the ACLU’s friend-of-the-court brief in the case were Ann K. Benfield, a Louisville attorney working on behalf of the ACLU of Kentucky, and Marjorie Heins, a attorney and noted expert on First Amendment law.

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