Media Law in the News #1

Seattle U Jesuit Deems Photo Offensive, Pulls Copies From Stands
http://www.seattlespectator.com/2018/04/18/seattle-u-jesuit-deems-photo-offensive-pulls-copies-stands/

Part I - Summary of Issue
Seattle University hosts an annual drag show, celebrating inclusion and acceptance and offering a safe and fun space for students to explore their identities. This color, fun, and celebration was depicted in a picture on the front cover of the university's student run newspaper, The Spectator.

After the release of the newspaper, students and the editorial board noticed that the papers had unusually quickly disappeared from the stands across campus. As a result, a student from the paper took it upon her to investigate where the papers would have gone, by obtaining and scraping video tapes from the school's public safety team. The videos appeared to show Jesuit English Professor, Father David Leigh taking the papers.

Upon questioning, Father Leigh explained that he took the papers because, "he was offended by a recent edition of The Spectator, whose cover contained what he [I] considered an inappropriate risque photograph." To be clear, the photo was of a student dressed in a body suit with their leg in the air. He also stated that he wanted these papers removed because he did not want new students who were arriving to campus to find these papers and be deterred from attending the school. 

To add to this issue, the President of Seattle University, Father Steve Sundborg made claims to the student reporter communicating his personal disdain for the photo and for the drag show itself. His comments have hurt members of the LGBTQ community and have caused people to question their place on the campus.

The area of law that must be discussed here is prior restraint. Even though Seattle University is a private school affiliated with the Jesuits, this must be discussed in regards to the rights of the journalists on our campus and and their rights to free expression and free speech.

Part II - Legal Questions Raised
1. What, if any, burden should The Spectator have to meet to sustain a prior restraint from administration?

2. Even though a private campus has the ability to set the parameters and precedents for the code of conduct, is it a violation of the democratic concept of the First Amendment, to essentially censor and restrict?

3. What, if anything, constitutes needing censorship on a private campus?

4. By removing the papers was free speech, the free flow of ideas, and expression harmed?

5. Does the photo reach the levels of obscenity described in Miller v. California?

Part III - Relevant Doctrine/Precedent
The category of law which must be used here is prior restraint. Prior restraint is an official government restriction of speech prior to publication. Prior restraints are viewed by the U.S. Supreme Court as "the most serious and the least tolerable infringement on First Amendment rights. Attempts to censor the media are presumed unconstitutional.

The relevant doctrine that must be used here, is Near v. Minnesota (1931). The US Supreme Court heard an appeal by a small publication in Minneapolis that had published articles alleging that law enforcement officials were turning a blind eye toward local organized crime. The country attorney wanted to prohibit the publication of the newspaper, citing a state statute that banned "malicious, scandalous, and defamatory" periodicals. The Court held that the statue was unlawful. And, information can only be held in six exceptional cases (The Near Test): 1) threat to national security, 2) obstruction of military recruitment, 3) incitement, 4) obscenity, 5) fighting words, and 6) foreseeable overthrow of the government.

Banning this type of expression would distort people's ability to share, discuss and express information necessary to governing themselves.

Another important case to note is The New York Times Company v. United States. The Court ruled here that the top secret Pentagon Papers could not be blocked because they did not meet the criteria of the Near Test. Notably in this case it also demonstrated the freedom of press which is protected by the First Amendment. Free press is critical to a democracy that is accountable to the people. And media function in this form to investigate and report on wrongdoing and to allow ordinary citizens to express their opinion.

Prior restraint is the relevant doctrine that applies to this case because Father Leigh removed the publication of The Spectator, which violates free speech of the reporters, and calls into question the free expression of the individual on the cover. It also calls into question a private campuses ability to censor publications, or even just an individual faculty members ability. Father Leigh's removal without notification is also a substantial reason this case must be reviewed under prior restraint because the editorial board of The Spectator were unaware of the removal or reasons at the time. Furthermore, this calls into question free speech rights under the First Amendment, free speech, free thought, and free expression. In this case, a prior restraint or the removal of publications would be a direct violation of the First Amendment.

Part IV - Conclusion
In the case of Seattle University's Father David Leigh, this does not meet The Near Test objectives therefore it is a violation of prior restraint. Neither The Spectator nor the photo are posing a threat to national security, obstruction of military recruitment, incitement, obscenity, fighting words, or foreseeable overthrow of the government. Glancing at the Miller v. California case regarding obscenity, this photo of a student's leg in the air does not come close to reaching obscenity according to law.

The photo of the students leg or the reporting done on it by The Spectator does not justify Father Leigh's actions in removing the publication from stands across campus. His actions inhibited and restrained the publication of that edition of The Spectator. This is rather a direct form of censorship, even though the photo would not have caused substantial or provable serious or irreparable harm.

Also, Father Leigh's removal restrict the freedom of the press. The Spectator staff was unable to adequately share information with the rest of the campus as a result of his removal.