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Tennessee Lawmakers, Anti-Porn Advocates Demand Censorship of UT Sex Week

By March 6, 2014

Last month, my colleague Will Creeley urged Tennessee state legislators to reject a proposed bill that would cut off all funding for outside speakers at the state’s public universities. Torch readers might recall that the bill came amidst criticism of the University of Tennessee’s (UT’s) “Sex Week”—an event whose funding was threatened last year, too. Now some state lawmakers are calling UT’s decision not to shut the event down “unacceptable” and warning that the university’s funding might be affected if the school doesn’t take action. A group of petitioners is even asking UT to institute a system of prior review of Sex Week materials—a grave mistake that would be a disaster for UT, its students, and the First Amendment.

The Times Free Press (Chattanooga, Tenn.) reported that the Tennessee House already voted in February to condemn Sex Week, although that statement is not binding on the university. And so far, UT administrators have defended the event, explaining that the purpose of Sex Week is to educate students on a range of issues relating to sexual health, such as sexual assault and safe sex. Frank discussions about sex and sexuality, while perhaps offensive to some, are fully protected by the First Amendment. This is true regardless of whether Sex Week organizers aim to “thrust a radical agenda on the students of the University of Tennessee,” as critics of the event argue. Opponents of the viewpoints expressed in and by Sex Week events are of course free to hold their own events to get their message out—even if some Sex Week proponents would deem their ideas “radical” in turn.

Sadly, this isn’t the first time FIRE has seen state legislators attempt to threaten or coerce a university into punishing speakers because of the content or viewpoint of their expression. Just last October, some Kansas state legislators said that they would not vote for the University of Kansas’ budget if KU Professor David Guth was not fired for controversial but constitutionally protected tweets from his personal Twitter account. As I wrote then, legislative efforts to silence viewpoints legislators dislike undermine the very purpose of universities and must be strongly opposed by all who truly care about the First Amendment and the marketplace of ideas on campus.

A group outside the legislature is also calling for censorship. A petition by Girls Against Porn and Human Trafficking called Sex Week programming “disgusting” and asked UT to investigate programming in advance to determine whether it might be in violation of state obscenity laws. Tiffany Leeper, the founder of the group, even argued that UT “is potentially violating Tennessee law by not reviewing the content of ‘Sex Week’ in depth and materials brought by those invited.” Actually, the contrary is true: Not only is UT not required to pre-approve Sex Week presentations, such a system would almost certainly raise serious constitutional problems and would create a much larger liability risk than simply allowing Sex Week with minimal oversight.

As the U.S. Supreme Court has held, there is a “heavy presumption against [the] constitutional validity” of prior restraints on expression, and any system of prior review must include procedural safeguards in order to ensure that they are not abused to effect unconstitutional censorship. (See Bantam Books, Inc. v. Sullivan (1963) and Freedman v. Maryland (1965) for more about this doctrine.) UT’s policies regarding speech are some of the nation’s finest, but universities have shown time and again that when they do maintain policies that allow for content- or viewpoint-based censorship, those policies will very likely be abused. However you look at it, UT has made the correct decision in declining to enact a system of prior review.

In any event, whether the material presented during Sex Week would meet the exacting criteria for unprotected obscenity set forth by the Supreme Court in Miller v. California (1973) is dubious at best. The Court held in that case:

A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value.

The schedule for this year’s Sex Week is detailed on the Sex Week UT website and comprises a series of seminars, demonstrations, and exhibits with relevant topics of discussion—almost certainly satisfying Miller’s “literary, artistic, political, or scientific value” prong. Indeed, it’s not clear whether any of the events even involve explicit depictions of sex.

Also noteworthy is this question posed by Leeper: “If [Sex Week participants] want to exercise their free speech, why don’t they speak up for girls who are trafficked because of porn addictions?” This argument is an old, hackneyed red herring. Freedom of speech doesn’t require individuals to say any particular thing simply because someone else would like them to do so. Obviously, Leeper is free to request that Sex Week organizers incorporate her point of view, and Girls Against Porn and Human Trafficking is free to invite people to its own events. But Leeper’s question is disingenuous and betrays a fundamental lack of understanding of how a free society works. Perhaps some expansion on one of The Torch’s often-cited ideas is needed here: The best solution to speech with which one disagrees is more speech by the person who disagrees, not compelled additional speech (and, of course, not censorship). If we want the best arguments to be put forward, they need to be put forward by those who believe what they’re saying, not mouthed by others on pain of punishment.

Here’s the bottom line: Those who object to Sex Week—whether legislators or advocates against pornography—should counter the event’s programming with their own, rather than calling for censorship.

Schools: University of Tennessee – Knoxville