University System of Maryland Regents Choose First Amendment, Reject Policy on Pornography

By on November 13, 2009

In a vote earlier this week, the University System of Maryland’s Board of Regents declined to impose a policy on pornography on the eleven schools under its jurisdiction. By rejecting calls to create a policy regarding the screening on campus of films "purely for entertainment purposes," the Board of Regents struck a blow for the First Amendment rights of Maryland’s public university students. The vote hopefully brings a happy conclusion to a tumultuous process which began in April when students at the University of Maryland-College Park planned to screen the pornographic film Pirates II: Stagnetti’s Revenge accompanied by a talk from Planned Parenthood representatives.

As Torch readers may recall, lawmakers in the Maryland Senate, led by Senator Andrew P. Harris, intervened prior to the planned event at College Park by threatening to remove all general funding from any university that allowed student groups to screen films marked as "XXX," no matter what the content of the film or the educational, social, or cultural context or purpose of the presentation. The university capitulated by canceling the initial campus event. Students on the College Park campus, however, went ahead and screened parts of the film anyway. According to FoxNews.com, the students did so "[a]fter First Amendment debates and a discussion with the Foundation for Individual Rights in Education." The entire episode drew significant amounts of press coverage within the U.S. as well as abroad.

The Maryland Senate, again spearheaded by Senator Harris, then imposed a requirement on all schools within the System (as well as Morgan State University, St. Mary’s College of Maryland, and Baltimore City Community College) to submit to the Board of Regents a comprehensive policy "on the use of public higher education facilities for the displaying or screening of obscene films and materials." An editorial in The Washington Post rightly criticized the measure, and FIRE’s Will Creeley followed up with a letter of his own in the Post.

Now, it appears that the Board of Regents has brought the matter to a close by upholding the First Amendment rights of students in the University System of Maryland. As FoxNews.com reports, in so doing, the Board is following the recommendation of Chancellor William E. Kirwan:

According to the recommendation, the chancellor will write a letter "expressing the view that a policy would not be in the best interest of the USM or the State because of the First Amendment issues a policy would raise."

[...]

Chancellor William E. Kirwan said the issue is not one of viewing pornography, but rather protecting student rights to free speech. Although the creation of a policy would not bring a financial burden to campuses in itself, "it would be a target for a law suit" that would "almost certainly go to the Supreme Court," Kirwan said, which would ultimately be expensive.

Kirwan also said that such a policy would be difficult to uniformly implement across all university system campuses.

Members of the Board also have demonstrated a proper understanding of the principles at stake:

The board repeatedly said that not creating an explicit policy should not be seen as inaction on the matter.

"We are creating a policy here, and that is to abide by the laws of the land," said Chairman Clifford Kendall, referring to the First Amendment.

Well said. 

The Board’s brave decision is a victory for the First Amendment in that it recognizes the problem with banning all screenings of pornographic films, whether or not such films constitute obscenity in the legal sense. Under the law, such a determination must take place on a case-by-case basis and must take into account the literary, artistic, political, and scientific value of the film. Moreover, even if a film can be considered obscene in the legal sense, that does not mean that adults do not have a right to view it; the government is allowed to regulate the viewing of such a film, not to completely ban it.

Especially in the university setting, there are good arguments to be made that the screening of a pornographic film may be part of a legitimately educational and beneficial activity–for instance, as part of academic research. By rejecting calls for a System-wide policy on pornography, the Board of Regents has allowed for the continuation of such activities. It is good to see this conclusion to the debate within the University System of Maryland. Hopefully, Morgan State University and the other schools will follow suit.

Schools: University of Maryland – College Park