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excerpts from arguments on “under God” in Pledge of Allegiance

Following are excerpts from arguments before the Supreme Court concerning the inclusion of "under God"in the Pledge of Allegiance. Solicitor General Theodore B. Olson and Terence J. Cassidy, the lawyer for a California school district, defended the current pledge, and Dr. Michael A. Newdow argued against it.

JUSTICE JOHN PAUL STEVENS: Do you think that the pledge has the same meaning today as when it was enacted—when the words, under God, were inserted into the prayer, into the pledge?

OLSON: It’s an important question because the reference to under God in the pledge, as numerous decisions of this court have indicated in dicta … is an acknowledgment of the religious basis of the framers of the Constitution, who believed not only that the right to revolt, but that the right to vest power in the people to create a government came as a result of religious principles. In that sense, the Pledge of Allegiance today … has that same significance to this country as it did in 1954 when it was amended.

But as this court has also said … the ceremonial rendition of the Pledge of Allegiance in context repeatedly over the years … would cause a reasonable observer to understand that … this is not a religious invocation. It is not like a prayer, it is not a supplication, it’s not an invocation. It is

JUSTICE RUTH BADER GINSBURG: Your argument is that there’s a stronger case now than there would have been 50 years ago?

OLSON: Yes, Justice Ginsburg, and that is for many reasons, for…the reason that I just made, but also because the Congress revisited this issue in 2002 after the decision below in this case. There are findings in the record … with respect to … what the pledge means, the context of the pledge in its historical context, in the connection with its civic invocation, its ability to invoke certain principles that are indisputably true, which gave rise to the institutions which have given us freedom over all this period of time.

It is significant that the Court, the Congress, in making those findings, specifically referred to the decisions that I was referring to before, which have been characterized as dicta, but very important dicta, because they explain how the Court came to its conclusions …

… And to go back to what this Court has taught us with respect to the Establishment Clause and the endorsement prong of the Establishment Clause, it’s the entire context. It’s the nation’s history, it’s a Pledge of Allegiance to the flag and to the nation for which it stands, and then a descriptive phrase, under God, indivisible, with liberty and justice for all. So—

JUSTICE GINSBURG: Well, why not have it like oath or affirmation? That is, give people a choice, don’t say it’s got to be all one way or all the other, but say children who want to say under God can say it and children who don’t, don’t have to say it.

OLSON: Well, they don’t. They don’t have to say it.… In summary, … the Pledge of Allegiance is not what this Court has said the Establishment Clause protects against, that is to say, state-sponsored prayers, religious rituals or ceremonies, or the imposition or the requirement of teaching or not teaching a religious doctrine.

The Establishment Clause does not prohibit civic and ceremonial acknowledgments of the indisputable historical fact of the religious heritage that caused the framers of our Constitution and the signers of the Declaration of Independence to say that they had the right to revolt and start a new country, because although the king was infallible, they believe that God gave them the right to declare their independence when the king has not been living up to the unalienable principles given to them by God.

NEWDOW: Mr. Chief Justice, and may it please the Court:

Every school morning in the Elk Grove Unified School District’s public schools, government agents, teachers, funded with tax dollars, have their students stand up, including my daughter, face the flag of the United States of America, place their hands over their hearts, and affirm that ours is a nation under some particular religious entity, the appreciation of which is not accepted by numerous people, such as myself. We cannot in good conscience accept the idea that there exists a deity.

I am an atheist. I don’t believe in God. And every school morning my child is asked to stand up, face that flag, put her hand over her heart, and say that her father is wrong.

NEWDOW: I am saying I, as her father, have a right to know that when she goes into the public schools she’s not going to be told every morning to stand up, put her hand over her heart, and say your father is wrong, which is what she’s told every morning. That is an actual, concrete, discrete, particularized, individualized harm to me, which gives me standing, and not only gives me standing, demonstrates to this Court how the—

JUSTICE SANDRA DAY O’CONNOR: Well, she does have a right not to participate.

NEWDOW: She has a—yes, except under Lee v. Weisman she’s clearly coerced to participate. If there was coercion in Lee v. Weisman—

JUSTICE O’CONNOR: That was a prayer.

NEWDOW: Well, I’m not sure this isn’t a prayer, and I am sure that the Establishment Clause does not require prayer. President Bush, and this is in the Americans United brief, stated himself that when we ask our citizens to pledge allegiance to one nation under God, they are asked to participate in an important American tradition of humbly seeking the wisdom and blessing—

JUSTICE O’CONNOR: Yeah, but I suppose reasonable people could look at the pledge as not constituting a prayer.

NEWDOW: Well, President Bush said it does constitute a prayer.

CHIEF JUSTICE WILLIAM H. REHNQUIST: Well, but he—we certainly don’t take him as the final authority on this. (Laughter.)

CHIEF JUSTICE REHNQUIST: What you say is, I pledge allegiance to the flag of the United States of America and to the republic for which it stands. So that certainly doesn’t sound like anything like a prayer.

NEWDOW: Not at all.

CHIEF JUSTICE REHNQUIST: Then why isn’t General Olson’s categorization of the remainder as descriptive, one nation under God, with liberty and justice for all? You can disagree it’s under God, you can disagree that it’s—has a liberty and justice for all, but that doesn’t make it a prayer.

NEWDOW: First of all, I don’t think … that the purpose of the Pledge of Allegiance is to disagree that it’s liberty and justice for all. I think the whole purpose of the pledge is to say that, and this Court has stated it’s an affirmation of belief, an attitude of mind when we pledge, and I think you have to take all the words. It says under God. That’s as purely religious as you can get and I think it would be an amazing child to suddenly come up with this knowledge of the history of our society and—and what our nation was founded on.

CHIEF JUSTICE REHNQUIST: What if, instead of the Pledge of Allegiance, the school required the children to begin their—their session by singing God Bless America? Would that make your case weaker or stronger? …

NEWDOW: I think that if they stood up the child and they said, stand up, face the flag, put your hand on your heart and you say God bless America, I think that would clearly violate the line as well, just as in God we trust.

CHIEF JUSTICE REHNQUIST: Well, my hypothesis is that they ask the children to stand and to sing the patriotic song, God Bless America.

NEWDOW: I think the Court would have to go through its—its normal procedures and say, was this done for religious purpose? Does it have religious effects? Is it attempting to endorse religion? We would look at the text—

JUSTICE GINSBURG: Sounds pretty much, much more like a prayer than under God, God bless America.

NEWDOW: I don’t think so. I mean, we’re saying that this nation is under God. I mean, Congress told us itself when it passed the law.

JUSTICE GINSBURG: And if children who say God bless Mommy and God bless Daddy, they think they’re saying a prayer.

NEWDOW: They think they’re saying God bless, yes, and when they say, if Daddy and Mommy were under God, they’d be also assuming that there was a God there if they said that, and especially if they’re stood up in the public schools. If they did that—

JUSTICE GINSBURG: It’s two words sandwiched in the middle of something and the child doesn’t have to say those words.

NEWDOW: But the Government is not allowed to take a position on that. Government is saying there’s a God. Certainly the child doesn’t have to affirm that belief if there weren’t the coercion that we see in—

JUSTICE GINSBURG: The child doesn’t have to if it doesn’t want to. That’s not an issue in this case.

NEWDOW: The issue is whether or not government can put that idea in her mind and interfere with my right. I have a absolute right to raise my child as whatever I see. Government is weighing in on this issue.

GINSBURG: No, you don’t, you don’t.… there is another custodian of this child who makes the final decision who doesn’t agree with you.

JUSTICE O’CONNOR: We have so many references to God in our daily lives in this country. We opened this session of the Court today—

NEWDOW: Correct, and there are—

JUSTICE O’CONNOR:—with a reference, and I suppose you would find that invalid as well.

NEWDOW: This Court has to distinguish in this case.… When this Court opens, God save this honorable Court, nobody’s asked to stand up, place their hand on their heart and affirm this belief. This Court stated in West Virginia v. Barnette that this is an affirmation, a personal affirmation.

JUSTICE O’CONNOR: And you have no problem with, in God we trust, on the coins and that sort of thing?

NEWDOW: If my child was asked to stand up and say, in God we trust, every morning in the public schools led by her teachers

JUSTICE O’CONNOR: It’s all right for her to have the coins and use them and read them, but it’s the problem of being asked to say the pledge?

NEWDOW: I’m saying in this—

JUSTICE O’CONNOR: Which she doesn’t have to say.

NEWDOW: Well, first of all, under Lee v. Weisman, she is coerced in—

JUSTICE O’CONNOR: Now, wait a minute. We have other authorities saying that no child is required to say the pledge.

NEWDOW: And no child was required to be at the graduation at Lee v. Weisman, but we said this is a coercive effect on—

JUSTICE O’CONNOR: That was a prayer.

NEWDOW: And—then we’re back to the idea of why did Congress—Congress told us why they stuck this into the pledge.

JUSTICE KENNEDY: Well, we have to be careful about the facts here. Your daughter is not required, and of course, I have a serious problem about your daughter’s standing, but your daughter is not required to put her hand over her heart and face the flag. That’s a misstatement. She is not required to do that.

NEWDOW: She’s not required but she is coerced. She is standing there. She’s a 6-, 7-year-old kid at the time, and she—

JUSTICE KENNEDY: Justice O’Connor points out that’s the difference in Lee v. Weisman and West Virginia Board of Education v. Barnette. One is a prayer, the other isn’t.

NEWDOW: Well, it’s—again, the Establishment Clause does not require a prayer. To put the Ten Commandments on the wall was not a prayer, yet this Court said that violated the Establishment Clause. To teach evolution or not teach evolution doesn’t involve prayer, but that can violate the Establishment Clause. The issue is is it religious, and to say this is not religious seems to me to be somewhat bizarre.

And as a matter of fact, we can look at the standing argument and we can look at Elk Grove Unified School District’s brief, in which eight times they mention that this is the mother involved with religious upbringing, they keep talking about religious upbringing, 18 times they spoke about religious education, religious training, religious interest. All of this has to do with religion, and to suggest that this is merely historical or patriotic seems to me to be somewhat disingenuous.

JUSTICE STEPHEN G. BREYER: I mean, it’s a pretty broad use of religion sometimes … Does it make you feel any better, and I think the answer’s going to be no, but there is a case called Seeger, which referred to the Constitution—to the statute that used the word, supreme being, and it said that those words, supreme being, included a set of beliefs, sincere beliefs, which in any ordinary person’s life fills the same place as a belief in God fills in the life of an orthodox religionist. So it’s reaching out to be inclusive, maybe to include you, I mean,—because many people who are not religious nonetheless have a set of beliefs which occupy the same place that religious beliefs occupy in the mind … of religious men and women.

So do you think God is so generic in this context that it could be that inclusive?

JUSTICE BREYER: And if it is, then does your objection disappear?

NEWDOW: I don’t think so, because if I’m not mistaken with regard to Seeger, Seeger—the Government was saying what Seeger thought about religion and what’s occupied in Seeger’s mind. Here it is the Government and there’s a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. And in that case we’re talking about protecting that individual’s right for him to say in his view that this occupies the same thing as God.

Here we’re talking about government, everybody on the way here is government. It’s Congress that stuck the two words, under God, into the pledge, clearly for a religious purpose. It’s the State of California that says, go ahead, use the Pledge of Allegiance, which is now religious. It is the city of Elk Grove that says, now we’re going to demand—

JUSTICE BREYER: But what I’m thinking there is that perhaps when you get that broad in your idea of what is religious, so it can encompass a set of religious-type beliefs in the minds of people who are not traditionally religious, when you are that broad and in a civic context, it really doesn’t violate the Establishment Clause because it’s meant to include virtually everybody, and the few whom it doesn’t include don’t have to take the pledge.

NEWDOW: You’re referring to the two words, under God?

JUSTICE BREYER: Yeah, under God is this kind of very comprehensive supreme being, Seeger-type thing.

NEWDOW: I don’t think that I can include under God to mean no God, which is exactly what I think. I deny the existence of God, and for someone to tell me that under God should mean some broad thing that even encompasses my religious beliefs sounds a little, you know, it seems like the Government is imposing what it wants me to think of in terms of religion, which it may not do. Government needs to stay out of this business altogether. And this Court has always referred to— …

JUSTICE GINSBURG: There’s an option here too. The child does not have to say it at all, can say it except for the words, under God, or can say the whole thing.

NEWDOW: I think that’s a huge imposition to put on a small child. Imagine you’re the one atheist with 30 Christians there and you say to this child, let’s all stand up, face the flag, say we are one nation under God and we’re going to impose on a small child the—this immense amount of power, prestige, and financial support—

JUSTICE KENNEDY: Now, I just—I just want to point out that once again you’re arguing based on the child, and I—I think there’s a serious standing problem.

NEWDOW: I think the argument I’m trying to make, and I may not be making it well, is that government is doing this to my child. They are telling her, they’re putting her in a milieu where she says, hey, the Government is saying that there is a God and my dad says no, and that’s an injury to me that it is …

JUSTICE SOUTER: What do you make of this argument? I will assume that if you read the pledge carefully, the reference to under God means something more than a mere description of how somebody else once thought. We’re pledging allegiance to the flag and to the republic. The republic is then described as being under God, and I think a fair reading of that would—would be I think that’s the way the republic ought to be conceived, as under God. So I think—I think there’s some affirmation there. I will grant you that.

What do you make of the argument that, in actual practice, the affirmation in the midst of this civic exercise as a religious affirmation is so tepid, so diluted then so far, let’s say, from a compulsory prayer that in fact it should be, in effect, beneath the constitutional radar. It’s sometimes, you know the phrase, the Rostow phrase, the ceremonial deism.

What do you make of that argument, even assuming that, as I do, there is some affirmation involved when the child says this as a technical matter?

NEWDOW: I think that whole concept goes completely against the ideals underlying the Establishment Clause. We saw in Minersville v. Gobitis and West Virginia v. Barnette something that most people don’t consider to be religious at all to be of essential religious value to those Jehovah’s Witnesses who objected. And for the Government to come in and say, we’ve decided for you this is inconsequential or unimportant is an arrogant pretension, said James Madison. He said in his memorial—

JUSTICE SOUTER: Well, I think the argument is not that the Government is saying, we are defining this as inconsequential for you. I think the argument is that simply the way we live and think and work in schools and in civic society in which the pledge is made … that whatever is distinctively religious as an affirmation is simply lost. It’s not that the Government is saying, you’ve got to pretend that it’s lost. The argument is that it is lost, that the religious, as distinct from a civic content, is close to disappearing here.

NEWDOW: And again, I—I don’t mean to go back, but it seems to me that is a view that you may choose to take and the majority of Americans may choose to take, but … it’s not the view I take, and when I see the flag and I think of pledging allegiance, it’s like I’m getting slapped in the face every time, bam, you know, this is a nation under God, your religious belief system is wrong.

And here, I want to be able to tell my child that I have a very valid religious belief system. Go to church with your mother, go see Buddhists, do anything you want, I love that—the idea that she’s being exposed to other things, but I want my religious belief system to be given the same weight as everybody else’s. And the Government comes in here and says, no, Newdow, your religious belief system is wrong and the mother’s is right and anyone else who believes in God is right, and this Court—

JUSTICE GINSBURG: If you had her here in this courtroom and she stood up when the Justices entered and she heard the words, God save the United States and this honorable Court, wouldn’t the injury that you’re complaining about be exactly the same, so you would have equal standing on your account of things to challenge that as you do to challenge what the school district does here?

NEWDOW: I don’t think the injury would be even close to the same. She’s not being asked to stand up, place her hand on her heart, and say, I affirm this belief, and I think that can easily distinguish this case from all those other situations. Here she is being asked to stand and say that there exists a God. Government can’t ever impose that

JUSTICE GINSBURG: If she’s asked to repeat or to sing, as the Chief Justice suggested, God Bless America, then she is speaking those words.

NEWDOW: Again, if it were a situation where we said, let’s only do nothing else in this classroom, all right, we’ll say God bless America and let’s just say those words or something, I think that would violate the Constitution as well. If it’s just, let’s sing one song a day and once a month we get God Bless America, no, that would be certainly fine. We don’t want to be hostile to religion.

But here we’re not—it’s not a question of being hostile to religion. It’s indoctrinating children and Congress said that was the purpose.…

JUSTICE BREYER: So it’s not perfect, it’s not perfect, but it serves a purpose of unification at the price of offending a small number of people like you. So tell me from ground one why why the country cannot do that?

NEWDOW: Well, first of all, for 62 years this pledge did serve the purpose of unification and it did do it perfectly. It didn’t include some religious dogma that separated out some …

… Again, the Pledge of Allegiance did absolutely fine and got us through two world wars, got us through the Depression, got us through everything without God, and Congress stuck God in there for that particular reason, and the idea that it’s not divisive I think is somewhat, you know, shown to be questionable at least by what happened in the result of the Ninth Circuit’s opinion. The country went berserk because people were so upset that God was going to be taken out of the Pledge of Allegiance.

CHIEF JUSTICE REHNQUIST: Do we know—do we know what the vote was in Congress apropos of divisiveness to adopt the under God phrase?

NEWDOW: In 1954?

CHIEF JUSTICE REHNQUIST: Yes.

NEWDOW: It was apparently unanimous. There was no objection. There’s no count of the vote.

CHIEF JUSTICE REHNQUIST: Well, that doesn’t sound divisive. (Laughter.)

NEWDOW: That’s only because no atheist can get elected to public office. (Applause.)

CHIEF JUSTICE REHNQUIST: The courtroom will be cleared if there’s any more clapping. Proceed, Mr. Newdow….

JUSTICE KENNEDY: You say this is the same as the prayer in Lee v. Weisman?

NEWDOW: No, not at all. I’m saying it’s a religious exercise, and clearly the whole idea, the intent of Congress was—

JUSTICE KENNEDY: You’re saying both are religious exercises?

NEWDOW: Well, I think religious exercise is a larger set, prayer is a subset. I would say again the President of the United States considers the pledge in that subset. Whether or not you do or I do is—is somewhat, I think, irrelevant, because the question

JUSTICE KENNEDY: Well, now, let’s suppose, I thought the case turned on whether this was a religious exercise.

NEWDOW: I think it definitely is, and it is because the two words are, under God, and I can’t see of anything that’s not religious, under God …

… It fails the endorsement test, it fails the outsider test. Imagine you’re this one child with a class full of theists and you have this idea that you want to perhaps at least consider and you have everyone imposing their view on you, it fails every test this Court has ever come up with, and there’s a principle here and I’m hoping the Court will uphold this principle so that we can finally go back and have every American want to stand up, face the flag, place their hand over their heart and pledge to one nation, indivisible, not divided by religion, with liberty and justice for all.

TERENCE J. CASSIDY, LAWYER FOR THE SCHOOL DISTRICT: The Pledge of Allegiance in grammar schools, in public schools, is part of a teaching program, and that’s what we’re here about, to talk about the educational upbringing of a child, and it has to do with national unity and citizenship of our young students.

JUSTICE STEVENS: May I ask you just one question?… One of the amicus briefs filed in this case has this sentence in it. I’d like you to comment on. If the religious portion of the pledge is not intended as a serious affirmation of faith, then every day government asks millions of school children to take the name of the Lord in vain. Would you comment on that argument?

CASSIDY: I would disagree, because we feel that the use of the term, one nation under God, reflects a political philosophy, and the political philosophy of our country, as set forth in the Declaration of Independence, is that ours is one of a limited government, and that is the philosophy that’s now more enhanced, more reflected in the 1954 act.

Milford, Connecticut

The leader of a large city-based Christian church asked the Board of Education to audit all library books in local schools for sexual and occult content, a review the district’s top official said isn’t needed and won’t be done. Bishop Jay Ramirez of Kingdom Life Christian Church said his request for the audit was based on previous and recent incidents in which questionable reading material turned up in middle schools. “I definitely think the books need to be reviewed by people at the school,” Ramirez said. “Audit is a better term.”

Superintendent of Schools Gregory Firn, however, said that while he understands Ramirez’s concerns, the school system will not perform an audit. He said if anyone has an objection to a particular library book or textbook they can inform the school principal and the matter will be reviewed. “That’s why we have a process in place,” Firn said.

State Department of Education spokesman Thomas Murphy said while objections to material in textbooks have arisen in Connecticut, he can not recall any case in which a prominent clergyman raised objections to library books. “This is not something I’ve heard of in the last 20 years,” said Murphy.

Teresa Younger, executive director of the Connecticut Civil Liberties Union, said while she respects Ramirez’s right to his opinion, she applauds Firn’s decision not to conduct an audit. “No one person should dictate what students have access to in school libraries, if the librarian, school board and superintendent feel these books are suitable,” Younger said. “It is always unacceptable to take reading material out because it may reference a particular issue … literature adds to the lives of our children.”

Younger said the only recent criticism of children’s literature she recalls in the state was of books in the Harry Potter series, which involve young witches and wizards. None of those complaints resulted in removal of the books from schools, she said.

But Ramirez said he has had concerns about the content of some books in city schools since three years ago when his wife was volunteering at West Shore Middle School’s library and came across several books the couple believe had graphically sexual themes. Administrators removed the books, the names of which Ramirez was not able to recall.

More recently, Ramirez said, his brother, Dr. Randy Ramirez, a Stratford physician, found books with questionable themes at Milford’s John F. Kennedy School. Randy Ramirez said his wife, Colleen, attended a one-day book swap at Kennedy and raised concerns about six or seven books she believed contained references to violence and the occult. He said his wife handed the questionable books to Kennedy Principal John Barile to review.

Four of the books questioned were The Empty Grave, by Ida Chittum; The Berenstain Bears and the Ghost of the Forest, by Stan and Jan Berenstain; the Hardy Boys The Witch Master’s Key and Beware This House Is Haunted, by Henry Dreher, Barile said. He said the book-swap was a one-day event to promote literacy. He reviewed books the Ramirezes targeted and conceded a couple, which he did not name, might be “questionable.” Barile, however, also said an audit is unnecessary.

Ramirez’s nearly 2,000-member congregation made headlines last summer when it purchased an adults-only video/book store for $250,000 in an as yet unsuccessful attempt to drive it out of the city. He said that when he brought questionable books to the attention of West Shore Principal Macaire Stein about three years ago, she removed them. Ramirez said he examined some of the books and was dumbfounded by blatant promotion of sex and violence. One passage he highlighted was a description of two teens going into the forest to perform oral sex, he said.

“Do we really want books talking about oral sex in our schools?” Ramirez asked.

Reported in: New Haven Register, March 25.

Hernando County, Florida

Deenie, a coming-of-age novel by Judy Blume challenged last fall by the parent of a 7th-grader who borrowed the book from the Spring Hill Elementary School media center, will remain in the K–8 collections of the Hernando County Schools, the school board ruled February 17. Board members stipulated, however, that only students with written parental permission will be given access to the title—an action that had been suggested by Spring Hill Principal John DiRienzo.

The decision to retain the novel overruled the recommendation, made by a district-level materials-review committee and the superintendent of schools, to remove it from elementary schools. “I can’t see denying its availability if some parents decide it’s okay for their child to read,” school board vice-chair Jim Malcolm said. “Some people are offended by the content. Others aren’t. I will defer to individual parental choice for their child.”

Deenie, which chronicles the life of a 7th-grade girl dealing with curvature of the spine, includes two passages depicting the title character masturbating, to which Jerri Trammell objected. “What she read isn’t bad,” Trammell said of her daughter’s exposure to the book, adding, “I just don’t want her to learn about it from Judy Blume.”

The challenge process was further complicated by the St. Petersburg Times filing suit to make the review-committee deliberations public. Florida Circuit Judge Jack Springstead ruled in favor of the newspaper, and the committee held its deliberations publicly January 28. The school board is expected to review the district’s guidelines for handling material reconsiderations to avoid future litigation.

Reported in: St. Petersburg Times, February 19.

Medford, Massachusetts

Advertising by student groups at Tufts University embroiled the university library in the issue of what constitutes obscenity on a college campus. The issue focused on chalkings for “The Vagina Monologues” which appeared across campus grounds. Prior to the play’s debut, there were large, chalked advertisements in front of Tisch Library. Included in the chalking was the word “c**t.”

Although one of the aims of the play is to make such words commonplace, one student was offended enough by the chalking to complain. On February 11, “a student entered the library and complained about the language the ‘Vagina Monologues’ advertisement used,” Tisch Library Director Jo-Ann Michalak said. “We forwarded that complaint to Facilities, which arrived and removed the chalking.”

The group of students performing “Monologues” was upset to see their ad removed. “I felt as though I was being supported within the theater, but when [our cause] got outside, it got shut down,” said Assistant Stage Manager and Producer junior Louise Weed.

According to the student handbook, chalking on campus can include “no profanity or explicit sexual material.” However, there is no clarification of what constitutes profanity or how “explicit” is to be defined.

“Part of the answer lies in the context of the advertisement,” Dean of Students Bruce Reitman said. “Leeway is given to certain words if it is used in an appropriate way.” Reitman said that University policy does not permit advertisement or stand-alone graphics to remain if its objective is merely to shock the viewer.

In 1988, the University implemented free speech zones in response to complaints about a student who was selling T-shirts with the slogan “15 Reasons Why Beer is Better than Women at Tufts.” Academic buildings were designated “limited tolerance” for obscenity and dorms were designated “no tolerance.” In response to campus and national outcry, the University eventually eliminated the free speech zones, though several large state universities still maintain the distinctions.

Last school year, Reitman explained his opposition to free speech zones. “People have to be able to express how we differ in background, race, and religion, to name a few,” he said. “We at this University wish to promote and naturally cherish the tenets of freedom of expression.”

The controversy surrounding the “Vagina Monologues” came at a time when similar boundaries are being tested at other colleges nationwide. At Harvard University, a new student publication called H-Bomb has recently gained administrative approval. It will focus on “issues of sex and sexuality” and the students involved have already been warned by the administration to stay clear of any format resembling “porn.” The Harvard administration did not elaborate on what would actually constitute pornographic material.

On a similarly risqué note, Yale University provides alternative education during Sex Week, where students learn about various sexual issues in fraternity houses with the Porn and Chicken Society, which has brought porn stars to campus as speakers. Items discussed this year ranged from the logistics of a threesome to what is the best condom.

Freshman Caitlin Johnson said she was not offended by the chalkings on campus, and that she supports the play’s goals. “By celebrating my sexuality, I am not being obscene,” she said. “I will not deny one aspect of myself for the sake of puritanical mores.”

Freshman Liz Hammond agreed that the advertisements were appropriate and successful. “Advertising is supposed to attract attention, and this was just good advertising. They just happened to be selling vaginas,” she said.

But University Chaplain Rev. David O’Leary said that “people have the freedom to go and pay to see the ‘Vagina Monologues’. But people do not have that choice when drawings or wordings are written on the plaza.” O’Leary said that forcing issues on people in public spaces—especially younger children—was not a positive thing. “Some folks do not want to have to explain to a little child what function body parts have, and I do know the library is used by more than college-aged students,” he said.

Women’s Center Director Peggy Barrett said that since Tufts is a fairly liberal campus, students and the administration must make allowances for many different ideas. “[The students advertising for the “Vagina Monologues”] feel that the value of women being able to talk about their bodies themselves outweighs the discomfort of others,” she said. “The real question here is: do we want to place limits on what people can say?”

Reported in: Tufts Daily, February 25.

Helena, Montana

A concerned parent has called into question a library book about horses and wants it removed from an elementary school library. Roxanne Cleasby, a parent of an 8-year-old student attending Smith Elementary School, filed a Request for Reconsideration of Educational Materials, urging the school district to remove a book from the Smith School library that she believes promotes evolution.

Horse, by Juliet Clutton-Brock, is part of the Eyewitness Books series and explains the origin of horses using the theory of evolution without suggesting the possibility of a creator. Cleasby’s complaint calls for either the removal of the entire book from the school’s library or the removal of two pages—eight and nine—in the book that describe the evolutionary process. One sentence on those pages reads: “It took about 55 million years for the present family of horses, asses, and zebras to evolve from their earliest horse-like ancestor.”

Cleasby said she understands that evolution is widely taught in public schools, and said she was not opposed to her daughter being exposed to evolution, but wanted other theories explored as well. “It’s a hypothesis—a theory—and it needs to be presented that way,” she said.

Board policy mandates appointment of a five-member review committee by the superintendent. The committee is made up of parents, librarians and an administrator. The group reviewed the parent’s request and the book she questioned in an initial public meeting February 27.

Although John Fenlason of the Hannaford Street Bible Church agreed that “evolution is just as much a theory and a religious view as creationism is,” he was the only person offering testimony to support Cleasby. “For the success of future generations, it is critical that we allow access to books that contain the prevailing views of science,” Grant Hokit, biology professor of Carroll College, said, adding that science neither proves nor disproves the existence of a creator.

“I’ve had the opportunity, first hand, to see what extremists can do,” testified Afghani-American Zia Kazimi, who likened Cleasby’s complaint to Taliban philosophy. Kazimi went on to say, “It’s not our public schools who teach our faith. This is done at home and in our churches. Let the schools do what they do best.”

Helena School District Library Coordinator Suzi Watne, who is a member of the committee, told the crowd of more than 100 that district policy forbids pulling a book because of the author’s background or views. The review committee will prepare a written report to District Superintendent Bruce Messinger, who will take into consideration the recommendations of the committee in an ultimate recommendation to the board of trustees. The board members will be charged with the final decision.

If Cleasby disagrees with the committee’s recommendations, the superintendent’s recommendation to the board or the board’s final decision, she will have the opportunity to file a written appeal. If that happens, the board of trustees will review the complaint and the appeal and reconsider the original decision.

The request for the removal of Horse from Smith School was only the second challenge the Helena School District has seen regarding library books or instructional materials in the past decade. Cleasby said she brought the challenge to shed light on the debate surrounding the theories of evolution and creation.

“I’m sure the school’s curriculum is full of it through and through,” she said. “And I’m sure that I can’t challenge all of it, but I think there needs to be more public awareness on the creation side. There’s been lots of great scientific research done on creation that needs to be considered.”

Reported in: Helena Independent-Record, February 25, 29.

Wilmington, North Carolina

A children’s book about a prince whose true love turns out to be another prince will be available only to adults in a school’s library, a school committee has decided. King & King will be locked up at Freeman Elementary School in response to complaints by parents. The parents who complained after their 1st-grader brought the book home, said the decision satisfied them. Michael and Tonya Hartsell said they never wanted the book banned.

“It might be appropriate in certain situations,” Michael Hartsell said. “But a child of this age shouldn’t have a choice.”

In the book, Prince Bertie dismisses a line of eligible princesses before falling for Prince Lee.

Reported in: Chicago Tribune, March 28.

Brownwood, Texas

Objections made by some Brownwood residents to the inclusion of figurines of Little Black Sambo, pickaninnies, and Aunt Jemima in the city library’s Black History Month display have prompted library officials to modify the exhibit by placing the items in historical context. “The display is not at all what I expected,” Brownwood Public Library Director Mat McConnell said of the private collection on loan from area resident Sharon Watson. “This was not done to offend anyone in any way, and this display will not be going up next year.”

Watson, who is white, had asked volunteer Carol Spratt, who for years has offered to create the library’s Black History Month display, to allow her to showcase her collection. Spratt said that she agreed without seeing Watson’s memorabilia, adding, “I can understand her collecting these items. But this does not portray black heritage.” However, Brownwood Black History Committee member Reggie Perry remarked that while “there are some inflammatory pieces in the collection,” the items on display are “a testament to how far this country has come.”

Spinning the controversy into an educational opportunity, McConnell said that library workers would “add some balance to the exhibit by putting up some items showing leaders from the black community. We also want to explain the origin of some of these items and show that what was acceptable 50 to 100 years ago is not acceptable now.”

Reported in: Abilene Reporter-News, February 12.

Teton County, Wyoming

A Teton County, Wyoming, resident has questioned why the library keeps a copy of Ed Rosenthal’s Marijuana Grower’s Guide in its collection. In an e-mail to Library Director Betsy Bernfeld, Robert Gathercole asked if the library would also carry books on assassination and bomb-making. “I do not understand why, when so much of our county resources are devoted to dealing with the problem of substance abuse, you have chosen to spend tax dollars to purchase a how-to crime manual,” he wrote.

“We take challenges very seriously,” responded Bernfeld, explaining that she would put the book on hold when the current borrower returns it, then would follow established procedures for handing complaints. “We talk to the person about it to see if we can get to the bottom of the concern, and if they still aren’t satisfied we take it to the library board,” she said.

Reported in: American Libraries Online, February 27.

Sacramento, California

The Galt Joint Union Elementary School District board decided December 8 to ban a young adult novel from classrooms but keep it in middle school libraries. The district looked at the issue of whether to remove Don’t You Dare Read This, Mrs. Dunphrey, a novel that chronicles the problems of a troubled teenager, as supplemental classroom reading after a parent complained. The book had been assigned in a seventh-grade English class.

Trustees voted 4–1 to stop the novel from being used for instructional purposes but will allow it to remain in libraries as long as students get parental permission to check it out. Trustee Susan Richardson cast the dissenting vote.

Superintendent Jeffrey Jennings said he did not feel the book was appropriate for seventh-graders. “We should be able to have some discretion as to what our kids have to read,” he said.

The decision came after trustees voted 3–2 to reject the recommendations of a district committee that found the book appropriate for middle school students. Trustees Ervin Hatzenbuhler, Donna Fluty and Tina Skinner voted against the committee’s recommendations, while Richardson and trustee Donald Nottoli voted in favor.

Don’t You Dare Read This, an ALA Best Book for Young Adults, is about a fictional character named Tish Bonner, whose English teacher requires students to keep a journal. The teacher promises not to read entries that are labeled confidential, and Tish uses the journal to relate parental neglect, sexual harassment at an after-school job and other stresses she deals with. She eventually opens up to her teacher and gets help for herself and her younger brother. The novel was a supplemental book that middle school teachers had assigned on and off for the past seven years without any parental complaints, Jennings said.

Parent Mark Madison objected to the language and content, including some sexual language. “This isn’t a book that should be force-fed to young children,” he said.

But parent Barbara Vanderveen said she was disappointed because she believes it will lead to other books being challenged and removed from classrooms. “I’m afraid about where it’ll stop,” she said.

Reported in: Sacramento Bee, December 9.

Durham, North Carolina

The family of an eighth-grader at Stanford Middle School have protested the classroom use of Harper Lee’s To Kill A Mockingbird. Students in the class took turns reading passages from the classic novel aloud—an action that Garvey Jackson says forced him to hear a word possibly more offensive to him than any other word. Throughout the novel, which won the Pulitzer Prize in 1961, characters use the word “nigger.”

With the help of his family, Garvey, who is black, ultimately ended up protesting the use of the book in class. Although the class is still using the widely read novel, the Jackson family said it plans to continue educating the community about what they feel is an offensive book, and eventually formally challenge the use of the book.

“We just don’t want it in the school system,” said Andrew Jackson, Garvey’s father. “We do want to kill a mockingbird if it takes to the end of the school year.” Thirteen-year-old Garvey said he won’t be satisfied until the book “is out of the school system.”

“Just to put it simple, I felt uncomfortable,” he said. “Definitely within the first week [of reading it].”

But it wasn’t until February—Black History Month—that Garvey decided to do something. He watched a television documentary about lunch counter sit-ins in Greensboro—part of the civil rights movement—and was inspired. Garvey told his dad about reading the book. Jackson was appalled. He brought it up at a family meeting a frequent occurrence in the Jackson home.

Rita Gonzalez-Jackson, Garvey’s mother, was also stunned that To Kill a Mockingbird was being used in the classroom. She acknowledged she hadn’t read the entire book, but strongly felt if it had the word “nigger” in it, it shouldn’t be used in schools.

“I was like, this is 2004, and this is still being read in schools?” she said. “[Garvey] started pointing out the words in the book. It’s inappropriate.”

So Garvey, with the help of his mom, dad, sister and brother, devised a plan. He wore a shirt, created by his sister, to class. The white shirt was covered in phrases from the book, including “nigger rape,” “nigger lover” and “nigger snowman.” Garvey knew he might get suspended, and so did his parents. No one worried about that.

“He was doing the right thing,” his mom said. “I agree with him. I support him.” Garvey covered the shirt until he got to his English class. Then he uncovered it, and walked to the front of the class, where his teacher, Thomas Watson, noticed it.

“Basically he said, I should cover that up,” Garvey said. “I said I wouldn’t do that. If it’s good enough for the book, it’s good enough for the shirt.” Garvey said Watson sent him to the principal’s office, where a woman he didn’t recognize told him the shirt was inappropriate. He took the shirt off—minutes before his parents, wondering what had happened in the class, arrived at school—because “I guess I was just tired of hearing all this,” Garvey said. “Maybe it was fear of being suspended.” Principal Dave Ebert and Associate Principal Connie Brimmer explained the district’s process for challenging books to the Jacksons. They explained why wearing the shirt was against school rules.

“The dress code is specifically stated,” Ebert said. “We try to follow that. We ask students to take [the offensive clothing] off, if they have something else to wear, or we call the parents and ask them to bring something else.”

Although Ebert said he couldn’t comment on the specific case, he did say that most students read To Kill a Mockingbird at some point in their education. Ebert said Watson explained to the students that if they were uncomfortable saying “nigger” aloud, they didn’t have to say it.

“I think we’ve handled this as well as we could have,” Ebert said. “Any time a student has a real concern about a book or a classroom material, we treat that with respect. It is dealt with in a way that we feel is respectful to the opinions of the students and the parents.”

Garvey, meanwhile, wasn’t finished with his protest after he took off the shirt. The next week he handed out a letter to his classmates—the same letter he gave to his teacher the week before—explaining that the book offends him, and why it shouldn’t be used. That day, Garvey said, Watson and the class had a discussion about the book, and the word “nigger.” Two days later, the day the class was slated to watch the movie version of To Kill a Mockingbird, Garvey attempted to pass out armbands to his classmates, to protest.

“They didn’t want to wear them,” Garvey said. “They said they made them look ugly.” Garvey wore his anyway. The family plans to hold a mock funeral for the book, inviting the community and burying it in a cemetery. “Just another form of protest—nonviolent protest,” Andrew Jackson said. “It’s not when the book is over, the problem is over.”

Reported in: Durham Herald-Sun, February 15.

Belpre, Ohio

A sixth-grader served a three-day suspension because he refused a lesser punishment for bringing the Sports Illustrated swimsuit issue to school, the schools superintendent said. Justin Reyes had the magazine in the gymnasium at Belpre Middle School before classes February 18, and Principal Kathy Garrison cited him for violating school’s policy on nonverbal harassment and possession of lewd or suggestive material, Superintendent Tim Swarr said.

Garrison ordered the 12-year-old boy to spend two days at an alternative school where students from several area districts are sent when they get into trouble. But Swarr said Justin and his mother, Nicole Reyes, refused to accept the alternative school punishment, so the penalty was increased to three days of out-of-school suspension.

“Last time I checked, we were in charge of running the schools,” Swarr said.

Nicole Reyes said the alternative school was too harsh a punishment. “It’s not like it was Hustler, Playboy or Penthouse,” she said. “The punishment doesn’t fit the crime.”

Swarr said he had never seen the swimsuit edition before. “I was shocked,” he said. “It doesn’t belong in public schools.”

Belpre Middle School, about 90 miles southeast of Columbus, serves some 550 students in grades four through eight.

Reported in: Salon.com, February 24.

Naples, Florida

When a journalism teacher at Lely High School pulled her student editor’s column from the campus newspaper and wrote “censored” at the top of the space, it lit a fuse that sparked concern among some journalists that First Amendment rights to freedom of speech—and the press—were being violated.

Jackie Hagerman, who teaches journalism and is the newspaper and yearbook adviser at Lely High, said March 26 that censoring the student editor’s column about bad teachers was not what she intended. “I didn’t use the word ‘censored’ in the same way journalists do,” Hagerman said. “I took the column out because we didn’t have time to rewrite it, to get the harshness out.”

Hagerman, who has a degree in English, said she isn’t a journalist and isn’t trained in journalism. She said she doesn’t understand what all the flak is about. But national and state press organizations were stunned when they heard Hagerman pulled the column and printed “censored” at the top of the empty space, which was two columns wide and 14 inches deep.

“It’s pretty clear that the law does not allow censorship simply because (teachers and administrators) differ in viewpoint,” said Mark Goodman, executive director of the Student Press Law Center in Arlington, Virginia. “That’s what it sounds like in this case. In effect, they robbed the student of his voice.”

The censoring drew attention in Florida, too. “We are certainly concerned—and I am personally concerned—that the practice of high school journalism has been threatened,” said Dean Ridings, executive director of the Florida Press Association and secretary-treasurer of the First Amendment Foundation Board of Trustees in Tallahassee.

“It’s very unfortunate when a teacher goes against the journalistic principles that are so well-protected in our country and our newspapers,” Ridings said. Naples Daily News Editor Phil Lewis also wrote about the incident in two of his columns.

But Hagerman said she and the student, Renato Talhadas, editor in chief of The Trojan Epic, have learned some valuable lessons from the incident. And they also taught some lessons, Talhadas said: The teachers he wrote about have mended their ways.

“It made me realize our power,” Hagerman said. “It made me aware of the power we have, and I think we gained more respect for it. We learned from it, too.”

Talhadas, 18, a senior who wants to become a journalist someday, said it doesn’t bother him that Hagerman wanted him to tone his column down. “It was my voice. She just wanted to get some of the harshness out,” Talhadas said. “I write from the heart, sometimes with a lot of emotion.”

Talhadas wrote a column for the March 3 edition of the Epic with the headline “When teachers go bad.” In it, he said Lely High was blessed with qualified and competent teachers, and named some of his favorites. Then he said there were “quite a few” teachers who made him think otherwise. Talhadas didn’t name any of them, but he said some sat at their computers checking e-mail and trading on Ebay all day.

“That’s true. They do,” Hagerman said, defending Talhadas.

The column was still in the Epic when a courtesy proof was sent to the office of Principal Jerry Primus for review before it went to press. Primus was out of the office at the time. The Epic was reviewed by Karen LaPorte, assistant principal for curriculum and instruction, and Mary Ellen Cash, a teacher of English for Speakers of Other Languages, or ESOL, whom Primus designated.

LaPorte and especially Cash were the ones who raised the concern over the column Talhadas wrote, Hagerman said. “They didn’t tell me to remove the column,” she said. “I wanted Renato to rewrite it, but he didn’t have time. There was too much going on, so I took the column out. I was just trying to make everybody happy. If I had known it would cause all this, I would have left it in there.”

When Primus got back and read the column, he became involved. “It wasn’t the column I was concerned about—my sensitivity was with the timing,” he said. “I had a newsletter praising teachers going out at the same time as the newspaper.” The newsletter highlighted six teachers Primus chose because of their “extraordinary dedication and service” to Lely High.

Primus said he recognizes and respects the Epic’s First Amendment right to free speech and freedom of the press. But Primus said there are other reasons why he likes to review the paper before it goes to press. “I have been very open. The first thing they’ll admit is that I’m very objective,” Primus said. “It’s a great paper, and that’s why I support them. But I have caught hell this year, and somebody has to come in and say, ‘Thou shalt not do this.’

Primus referred to printing words such as “crap,” “hell” and other four-letter words that send up a red flag. “Along with freedom comes responsibility,” he said. “What the Epic prints reflects taste. It reflects the image of this school.”

Goodman, of the Student Press Law Center, said Talhadas could appeal the censorship and take the issue to the Collier County School Board. But Talhadas said he doesn’t want to push it any further. “The teachers that were trading on Ebay don’t do it anymore,” he said. “Now they get up in front of the class and teach like they’re supposed to. So we taught some lessons out of this.”

Reported in: Naples Daily News, March 31.

Brooklyn, New York

Long Island University at Brooklyn removed the faculty adviser of its weekly student newspaper, Seawanhaka, after the paper published the grades of a former student leader. University officials also temporarily removed the newspaper’s student editor and changed the locks on the Seawanhaka office.

The university contends the newspaper violated the student’s privacy in publishing personal information, although journalism experts are defending the legality of the disclosure.

The shake-up involved a January 21 article about the resignation of the student-government president, Abdel Alileala. In the article, Alileala cited “personal problems” as reasons for stepping down. “There has been speculation,” the article continued, “that Alileala’s academic struggles last year are the reason for his decision to resign.” Alileala’s grades in six classes, which included two failing marks, followed. The article did not contain a comment from Alileala about the grades. Obtaining a response to accusations or unfavorable comments is a standard practice in journalism.

Justin Grant, the author of the article and the newspaper’s editor, said he had obtained information about Alileala’s grades from another reporter hours before his deadline. Grant, a junior, said that the reporter had confirmed the information with several student sources and that the newspaper had not obtained Alileala’s official academic transcript.

“I stand by my work,” Grant said. “The only thing I probably would have done differently would have been to let [Alileala] know we had the information after we got it.”

Both Grant and G. Michael Bush, the ousted adviser of the newspaper, said students had a right to know about the grades because Alileala was an elected official and a public figure, to whom laws do not accord the same degree of privacy as they do to ordinary citizens. “It would have been wrong,” Grant said, “if it had been John Q. Public student.” The decision was journalistically sound because the grades “were obtained legally and published accurately,” said Bush, who remains a professor of journalism at the university.

Some administrators, however, disagreed. In a February 3 letter to Bush, David Cohen, a dean at the university, suggested that the adviser had violated “federal regulations” by directing students to publish the grades.

But Mark Goodman, executive director of the Student Press Law Center, a nonprofit group, said that the Family Educational Rights and Privacy Act, which protects most student records, “is a limitation solely on the university.” The U.S. Department of Education has previously stated that the law, commonly known as FERPA, was not intended to apply to campus newspapers.

Goodman also cited Bilney v. Evening Star, a 1979 case in which a Maryland court held that it was not an invasion of privacy for a college newspaper to publish the grades of members of a university’s basketball team because the athletes were public figures.

Bernadette Walker, the university’s dean of students, did not return a telephone call to her office. A statement released by the university said that the administration was investigating the incident and reviewing editorial procedures, “to ensure that they safeguard our students’ confidential information.”

Peg Byron, a spokeswoman for the university, said the Seawanhaka, which did not come out for a week, would resume publishing under a new supervisor. Grant, who receives a tuition discount as editor of the newspaper, said his suspension was effective until the end of February.

In an opinion column that appeared in the January 28 issue of the Seawanhaka, Grant apologized for the “hurt and embarrassment” the article may have caused Alileala and his family. “In spite of the gathering storm clouds though, this year’s Seawanhaka staff has set out to take this newspaper to the next level,” Grant wrote. “We are not just a student club, we are a newspaper.”

Reported in: Chronicle of Higher Education, February 13.

Cullman, Alabama

United States District Attorney Mary Beth Buchanan apparently wasn’t kidding when she said in a national television appearance that it might be possible that even Playboy, a tame magazine by today’s standards, could still be deemed obscene in the United States. A bookstore in Alabama is currently being accused of selling obscene materials—Playboy and Playgirl.

The Books-A-Million bookstore in the Cullman Shopping Center has removed all adult magazines following a police investigation that obscene materials were on display and being sold at the location. Cullman County District Attorney Len Brooks told the local newspaper that Playboy and Playgirl were the “obscene materials” that led to the complaints.

“I have received a letter today from the president of Books-A-Million indicating that the placement of the magazines in the local store was a mistake and that the magazines have been removed,” Brooks said. “I’m glad to know that Books-A-Million has voluntarily chosen not to sell these magazines. We must continue to work to insure the community standard and values of morals and decency that have been established here are not compromised.”

Brooks indicated that he would continue to press businesses not to carry such magazines.

If Playboy were not to meet the “community standards” test for proving that an item is “obscene,” it would happen in a community like Cullman—the town has a population of less than 14,000 and is best known as the home of the only Benedictine Abbey in the state of Alabama, which hosts the Ave Maria Grotto—miniature reproductions of over 125 famous churches, shrines, and buildings.

Cullman is also the home of University of Alabama offensive lineman Wesley Britt—who declined an offer to be a member of Playboy’s preseason All-America team last year—because the magazine didn’t conform to his Christian faith.

Buchanan had made her now prophetic remarks during a debate about the Extreme obscenity case on ABC’s Good Morning America in August of last year. Good Morning America host Charles Gibson asked Buchanan to give her interpretation of what is illegal, specifically questioning how far the “community standards” concept could go. “Some would argue that applies to Playboy. By community standards Playboy might be offensive,” Gibson, said.

Buchanan admitted, “That might be possible.”

Apparently it definitely is possible, although the bookstore decided to pull the magazines voluntarily rather than let a jury decide whether or not the magazine actually was obscene.

Reported in: Cullman Times, January 17.

San Antonio, Texas

Clear Channel Communications, the biggest radio broadcaster in the nation, suspended the Howard Stern show from its stations February 25 after announcing a policy to prevent the broadcasting of indecent content. The moves by Clear Channel came after it fired a talk-show host who broadcast sexually explicit material.

“Clear Channel drew a line in the sand today with regard to protecting our listeners from indecent content, and Howard Stern’s show blew right through it,” Clear Channel Radio’s president, John Hogan, said in a statement. The statement did not specifically describe the content but said it “was vulgar, offensive and insulting, not just to women and African Americans but to anyone with a sense of common decency.”

Clear Channel did not disclose how many of its stations carry the show, which is produced and distributed by the Infinity radio unit of Viacom. The company said it would not reinstate Stern “until we are assured that his show will conform to acceptable standards of responsible broadcasting.”

Clear Channel said earlier that it fired Todd Clem, the host of a show broadcast from Florida who called himself Bubba the Love Sponge. His show drew the threat of a fine from the Federal Communications Commission for broadcasting graphic and sexually explicit material.

The actions by Clear Channel came as Congress sought to toughen penalties for indecency. The company’s new policy includes making disc jockeys’ pay part of any federal fines imposed for using profanity.

The Clear Channel decision prompted speculation that the move had more to do with Stern’s politics than his raunchy shock-jock shtick. Stern’s loyal listeners, Clear Channel foes and many Bush administration critics immediately reached the same conclusion: The notorious jock was yanked off the air because he had recently begun trashing Bush, and Bush-friendly Clear Channel used the guise of “indecency” to shut him up. That the content of Stern’s crude show hadn’t suddenly changed, but his stance on Bush had, gave the theory more heft. That, plus his being pulled off the air in key electoral swing states such as Florida and Pennsylvania.

Stern himself went on the warpath, weaving in among his familiar monologues about breasts and porn actresses accusations that Texas-based Clear Channel—whose Republican CEO, Lowry Mays, is extremely close to both George W. Bush and Bush’s father—canned him because he deviated from the company’s pro-Bush line. “I gotta tell you something,” Stern told his listeners. “There’s a lot of people saying that the second that I started saying, ‘I think we gotta get Bush out of the presidency,’ that’s when Clear Channel banged my ass outta here. Then I find out that Clear Channel is such a big contributor to President Bush, and in bed with the whole Bush administration, I’m going, ‘Maybe that’s why I was thrown off: because I don’t like the way the country is leaning too much to the religious right.’ And then, bam! Let’s get rid of Stern. I used to think, ‘Oh, I can’t believe that.’ But that’s it! That’s what’s going on here! I know it! I know it!”

Stern’s was relentless in detailing the close ties between Clear Channel executives and the Bush administration, and insisting that political speech, not indecency, got him in trouble with the San Antonio broadcasting giant. If he hadn’t turned against Bush, Stern told his listeners, he’d still be heard on Clear Channel stations. In a statement released to Salon, the media company insisted that “Clear Channel Radio is not operated according to any political agenda or ideology.”

Although by far the most powerful, Stern was not the first radio jock to charge Clear Channel with retaliation for anti-Bush comments. “I’m glad he’s pissed off and I hope he raises hell every single day,” said Roxanne Walker, who claims Clear Channel fired her last year because of her anti-war views. “I think any time a broader section of the population hears about the Bush administration and the Clear Channel connection, it’s a good thing.”

Walker, South Carolina Broadcasters Association’s 2002 radio personality of the year, is suing Clear Channel for violating a state law that forbids employers from punishing employees who express politically unpopular beliefs in the workplace. “On our show, we talked about politics and current events,” she said. “There were two conservative partners and me, the liberal, and that was fine. But as it became clear we were going to war, and I kept charging the war was not justified, I was reprimanded by Clear Channel management that I needed to tone that down. Basically, I was told to shut up.” She says she was fired on April 7, 2003.

Phoenix talk show host Charles Goyette said he was kicked off his afternoon drive-time program at Clear Channel’s KFYI because of his sharp criticism of the war on Iraq. A self-described Goldwater Republican who was selected “man of the year” by the Republican Party in his local county in 1988, Goyette—more recently named best talk show host of 2003 by the Phoenix New Times—said his years with Clear Channel had been among his best in broadcasting.

“The trouble started during the long march to war,” he said. While the rest of the station’s talk lineup was in a pro-war “frenzy,” Goyette was inviting administration critics like former weapons inspector Scott Ritter on his show, and discussing complaints from the intelligence community that the analysis on Iraq was being cooked to support the White House’s pro-war agenda. This didn’t go over well with his bosses, Goyette said: “I was the Baby Ruth bar in the punch bowl.”

Soon, according to Goyette, he was having “toe-to-toe confrontations” with his local Clear Channel managers off the air about his opposition to the war. “One of my bosses said in a tone of exasperation, ‘I feel like I’m managing the Dixie Chicks,’“ Goyette recalls. “I didn’t fit in with the Clear Channel corporate culture.”

Writing in the February issue of American Conservative magazine, Goyette put it this way: “Why only a couple of months after my company picked up the option on my contract for another year in the fifth-largest city in the United States, did it suddenly decide to relegate me to radio Outer Darkness? The answer lies hidden in the oil-and-water incompatibility of these two seemingly disconnected phrases: ‘Criticizing Bush’ and ‘Clear Channel.’”

Goyette, who was relegated to the dead 7–10 p.m. slot, wrote, “I was replaced on my primetime talk show by the Frick and Frack of Bushophiles, two giggling guys who think everything our tongue-tied president does is ‘Most excellent, dude!’“

Whether Stern was suspended because of his Bush-bashing—or only because of his Bush-bashing—is open to question. The media behemoth had another powerful reason to clean up its image: In the wake of Janet Jackson’s nipplegate, broadcasters faced hostile congressional hearings about indecency on the airwaves and a new bill that would drastically increase the penalties for it.

If Clear Channel did fire Stern at least partly to prop up Bush, the move may backfire—especially if Stern’s rage against Clear Channel feeds his newfound distaste for the president. Stern’s audience contains many independents and potential swing voters.

At least one radio pro suggests Stern’s sudden turn against Bush could prove costly to the administration during this election year. “Absolutely it should be of concern for the White House,” says Michael Harrison, the publisher of Talkers magazine, a nonpartisan trade magazine serving talk radio. “Howard Stern will be an influential force for the public and for other talk show hosts during the election. Despite the shock jock thing, Stern has credibility. He’s looked upon as an honest person.

“Clear Channel is a good target and Stern may be honestly upset with them. But over time he’ll realize Bush makes a better target, and Stern could be the leader of a new anti-Bush movement. Bush is very vulnerable at talk radio and Stern could reinvent himself as a new, improved Stern and take on more serious issues.”

Stern’s political conversion came on Monday, February 23, when he returned to the show after a week’s vacation and announced he’d read Al Franken’s anti-Bush book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. That morning Stern, who had strongly backed Bush during the war on Iraq, told listeners, “If you read this book, you will never vote for George W. Bush. I think this guy is a religious fanatic and a Jesus freak, and he is just hell-bent on getting some sort of bizzaro agenda through—like a country-club agenda—so that his father will finally be proud of him … I don’t know much about Kerry, but I think I’m one of those ‘Anybody but Bush’ guys now. I don’t think G.W. is going to win. What do you think about that?”

Three days later, on the morning of February 26, Stern was suspended from all six Clear Channel stations that aired his wake-up program. Company executives pointed to the Tuesday show as the reason for the suspension.

During that program Stern interviewed Rick Solomon, who had starred in a sex tape with Paris Hilton. The conversation was graphic (Stern: “I can’t believe you banged her. Did you get anal?”), and one caller used a racial slur that was broadcast. But Stern’s shows are filled with such language and have been for years.

On Monday, March 2, Stern was telling his vast audience he took a hit because of his stance on Bush.

For her part, former Clear Channel jock Walker doubts that politics was behind Clear Channel’s move against Stern. “Much as I’d love this to be about Bush and politics, it’s more about sex and indecency,” she said. But she stresses the important thing for people to understand is the relationships among Clear Channel CEO Mays, vice chairman Tom Hicks and George W. Bush. Says Walker, “These are not casual acquaintances.”

Mays is a staunch Republican, a good friend of the elder George Bush, and close to the current president. “I see him all the time,” Mays told a reporter during the 2000 presidential campaign. “His father’s a friend of mine.” Mays and the company have showered the party with contributions, while essentially stiffing Democrats. Mays served as one of Texas A&M’s nine regents when the school landed the elder Bush’s presidential library. Mays subsequently became a major donor to the library. Also, former President Bush and Mays shared a podium when they were inducted into the Texas Business Hall of Fame on the same evening in 1999.

FCC chair Michael Powell, appointed by the current president, has been pushing a strong pro-big-business, deregulation agenda, which makes Mays happy. But Texas investment banker Hicks may have an even closer relationship to Bush. Hicks, a major Bush donor, sits on the Clear Channel board. The two men helped make each other very wealthy during the 1990s. When Bush was governor of Texas, he privatized the financial assets of the University of Texas, all $13 billion worth, rolled them into a single entity, and placed it under the control of Hicks, who, behind closed doors, doled out investment deals to longtime Bush family political contributors. In 1998, Hicks turned around and bought the Texas Rangers from a group of investors that included Bush; Bush pocketed $15 million off his initial investment of $605,000, most of which was borrowed.

During the 2000 campaign, Hicks announced on a conference call among Clear Channel’s senior radio executives that the company was supporting Bush’s presidential run, that everyone was encouraged to make donations, and that the legal department would be in contact with donors in order to maintain a proper roster. “Some people took out their checkbooks, but lots of people felt it was staged like a shakedown,” said one knowledgeable source. “To be fair, Hicks told everyone they were free to vote for whoever they wanted. But some senior people felt there was an implied pressure there, especially with the mention of the law department maintaining a roster of donors,” the source said.

Clear Channel is also the corporate home of rabid Bush booster Rush Limbaugh, who spoke to company managers during a Clear Channel conference on the eve of the 2000 presidential election. According to one person who attended, Mays also addressed assembled executives, telling them a Bush administration would be good for the radio industry and good for America.

Just before the war, Clear Channel made news when its syndicated talk show host Glenn Beck began promoting “Rallies for America.” Clear Channel insisted the events were put together at the local level and not sponsored by San Antonio headquarters. Yet at a time when antiwar rallies were dominating the news, Clear Channel played a key role in giving war supporters a voice by providing a turnkey service: staging the events, acquiring any necessary permits, taking care of security, assembling speakers, and of course relentlessly publicizing the events on Clear Channel radio stations.

Reported in: New York Times, February 26; Salon.com, March 4.

Los Angeles, California

In the aftermath of Janet Jackson’s controversial Super Bowl breast exposure, MTV has decided that pop singer Britney Spears may be a bit too “Toxic” for daytime tastes. The music channel, which produced Jackson’s notorious halftime duet with Justin Timberlake, said February 9 that it had moved six of its racier videos, including Spears’ video for her new single, “Toxic,” from daytime to late-night rotation.

Record labels for Spears and other artists whose videos were consigned to overnight programming—from 10 p.m. until 6 a.m.—were informed of the move, a spokeswoman for the network said. She denied that MTV was engaging in self-censorship or responding to pressure from its corporate parent, Viacom, Inc.

“We always take into account what the cultural environment is on an ongoing basis,” the spokeswoman said. “Given the particular sensitivity in the culture right now, we’re erring on the side of caution for the immediate future.”

A Viacom spokesman likewise insisted the decision to remove some particularly edgy videos from daytime rotation originated from within MTV. “All play lists are decided by the individual channels and we have nothing whatsoever to do with it,” Viacom spokesman Carl Folta said.

MTV’s decision also applied to offerings from alternative rock bands Blink 182 and Maroon 5 and the rap-rock outfit Incubus, whose video for the song “Megalomaniac” depicts an Adolf Hitler character with angel’s wings flying over a crowd.

In a statement issued by the band’s publicist, Incubus guitarist Mike Einziger mocked MTV’s play-list alteration, saying, “It’s ironic that this MTV scrutiny comes from an incident where someone bared their chest in public, while for the first time, our singer has his shirt on for an entire video.”

It was not the first time MTV has altered its play lists in the face of controversy. The network previously declined to premiere an R. Kelly video on its popular “Total Request Live” show in the aftermath of the R&B singer’s indictment on child pornography charges.

MTV’s quiet shuffling of its video rotation marked the latest instance of fallout from Jackson’s bosom-baring performance at the Super Bowl, which sparked a public uproar and the promise of an inquiry by federal regulators. MTV, which produced the halftime extravaganza, apologized for the Jackson episode and insisted the stunt was not part of the planned show. MTV’s sister broadcast network CBS, which aired the February 1 Super Bowl telecast, reacted by implementing a five-minute delay for its broadcast a week later of the Grammy Awards.

CBS also demanded that Jackson and Timberlake, who ripped open Jackson’s Super Bowl costume to briefly reveal her right breast, apologize on air as a condition for appearing on the Grammy telecast as planned. Timberlake obliged, but Jackson opted out of the event altogether.

NBC, a unit of General Electric Co., then edited out a brief glimpse of an elderly woman’s breast in an emergency room scene on the hit hospital drama ER.

Reported in: Reuters, February 9.

Washington, D.C.

A newly arrived Republican appointee pulled references to sexual orientation discrimination off an agency Internet site where government employees can learn about their rights in the workplace. The Web pages at the Office of Special Counsel, an independent agency whose mission is to protect whistleblowers and other federal employees from retribution, no longer includes references to sexual orientation on a discrimination complaint form, training slides, a brochure titled “Your Rights As a Federal Employee” and other documents.

Scott J. Bloch, the agency head, said he ordered the material removed because of uncertainty over whether a provision of civil service law applies to federal workers who claim unfair treatment because they are gay, bisexual or heterosexual.

“It is wrong to discriminate against any federal employee, or any employee, based on discrimination,” Bloch said. But, he added, “it is wrong for me, as a federal government official, to extend my jurisdiction beyond what Congress gives me in the actual interpretation of the statutes.”

At issue is the meaning of a few lines of a civil service law that bans discrimination against employees and job applicants “on the basis of conduct which does not adversely affect the performance of the employee or applicant.”

Bloch said he took the references to sexual orientation bias off the agency Web site because he was not clear about the office’s policy and legal interpretation of the provision. He said he did not think it appropriate to leave the references on the site—“to have my stamp of approval”—while he reviewed the matter.

The provision usually has been interpreted to mean that a worker’s off-duty behavior cannot be used as a justification for dismissal, demotion or discipline unless it hampers job performance or interferes with the work of others. That has been the stance at the Office of Personnel Management, which oversees the government’s workplace policies, for at least two decades. The OPM Web site continues to advise employees that bias based on sexual orientation is unlawful and informs them that complaints may be filed at the Office of Special Counsel.

Bloch, who assumed office in January following Senate confirmation, had served as deputy director and counsel to the Task Force for Faith-Based and Community Initiatives at the Justice Department. He was a partner in a law firm, specializing in civil rights and employment law, and has served as an adjunct professor at the University of Kansas School of Law.

Bloch said he did not clear his decision to alter the agency’s Web site with the White House, which is caught up in a political debate on same-sex marriage.

The Human Rights Campaign, which lobbies Congress on gay rights, and Federal GLOBE, an umbrella organization for gay and bisexual employee support groups in agencies, faulted Bloch’s decision to remove material from the Web site.

Colleen M. Kelley, president of the National Treasury Employees Union, said she was especially concerned because Bloch removed an agency news release posted last year describing an investigation at the Internal Revenue Service that found an IRS supervisor denied a job to an applicant because he was gay.

“Removal of this press release, in particular, seems to signal a deliberate decision to obscure the history of OSC’s enforcement actions,” Kelley said. Her union represents about 98,000 IRS workers.

As a general rule, most federal employees take complaints of sexual discrimination or harassment to the Equal Employment Opportunity Commission. During the Clinton administration, the Office of Special Counsel added sexual orientation discrimination to its list of prohibited personnel practices.

Elaine Kaplan, who served as the Clinton administration’s special counsel, said references were added to complaint forms and training materials as part of an overhaul of the agency’s information and outreach efforts.

“It seemed to us that this was well-established law,” she said. “Part of the job of the agency is to educate employees about their rights.” Kaplan said the old Civil Service Commission issued a bulletin to agencies in 1973 stating that agencies could not declare a person unsuitable for employment merely because the person was gay or engaged in homosexual acts. Ten years later, she said, the assistant attorney general for the office of legal counsel at the Justice Department concluded federal employees, even those in law enforcement, could not be fired solely for being gay.

In 1998, President Bill Clinton issued an executive order, which President Bush has not rescinded, saying it is unlawful to discriminate against employees based on their sexual orientation, Kaplan said. The order focused attention on the need to provide greater education to employees, she said.

“It is a matter of great concern that—as its first step—the new leadership of OSC is sanitizing all of the agency’s public statements, including the complaint form and its educational materials for the purpose of removing references to sexual orientation discrimination,” Kaplan said.

Reported in: Washington Post, February 18.

London, England

An ad for supermodel Elle Macpherson’s lingerie line was banned after regulators received a complaint from the public that the model in the ad appeared to be masturbating. The Advertising Standards Authority said March 3 it had ruled that the ad by Bendon UK Ltd. for its range of Elle Macpherson Intimates was offensive and couldn’t be repeated.

The complaint was about an ad in Vogue magazine that showed a model wearing a bra and panties, and her thumbs were hooked inside the panties. The image was framed as if shot through a keyhole, and the model’s head was not visible.

Bendon UK said the ad was inspired by Alfred Hitchcock’s film “Rear Window,” showing a moment that was “feminine, luxurious and stylized.” Vogue argued that the image was “beautiful with no disturbing undertones.” The Advertising Standards Authority ordered Bendon UK to consult with the agency before doing any more advertising.

Reported in: Associated Press, March 3. 

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