RochesterITSidewalk-feat
After Limiting Distribution of Student Publication, RIT President Responds to FIRE Criticism

By May 7, 2014

On Monday I reported on restrictions that Rochester Institute of Technology (RIT) administrators placed on the distribution of the latest issue of the student-run Reporter Magazine, which focused on gender and sexuality. Administrators objected to a medical illustration of male and female genitals, arguing that its inclusion could raise liability concerns under New York law if the issue were to be distributed as scheduled on Saturday, May 3—the same day that the annual “Imagine RIT” festival attracts tens of thousands of visitors to RIT’s campus, including children.

After my report Monday, a FIRE supporter emailed RIT President Bill Destler asking for an explanation and justification of the school’s actions. To his credit, Destler promptly responded; you can read his full reply here.

FIRE very much appreciates President Destler’s willingness to engage FIRE and respond to our criticism. We also appreciate his points regarding the number of children who attend Imagine RIT. We had not gained a full sense of the festival’s attendees from its website, which characterizes Imagine RIT as “a campus-wide event that showcases the innovative and creative spirit of RIT students, faculty and staff” and notes that “[m]any of the exhibits are kid friendly.”

But while we are grateful both for Destler’s reply and to learn more about the Imagine RIT festival, Destler’s response does not assuage our concerns. I am happy to address each of his points here.

Destler writes:

1.   RIT never claimed that the issue of Reporter published on May 2 was obscene. In fact, we have complimented the students publicly on the high quality of the issue and its usefulness in encouraging a campus dialog on sensitive issues related to sex and gender.

Regardless of whether RIT staff complimented the students on the overall content of the issue, Reporter itself wrote that the administration “allud[ed] to New York State obscenity laws” in limiting distribution of the magazine. As linked in my blog post, the Rochester Democrat & Chronicle reported that RIT’s general counsel warned of “potential legal liability for distributing indecent materials to minors.” In his response to FIRE, Destler states that RIT had “legal concerns” about the issue. He argues, though, that these concerns do not stem from state obscenity laws but rather from state indecency laws, writing:

4.   Our legal concerns came not from obscenity laws, but from New York State statutes on the distribution of indecent material to minors. There are two parts to these statutes, and if you read them both, you will understand our concerns.

At the outset, I note that FIRE’s mission concerns higher education. In our work, we generally do not encounter restrictions on the types of material available to children, unless those restrictions seep over onto the college campus. Unfortunately, that appears to have been the case here, occasioned by the fact that children were visiting RIT’s campus. When faced with such a situation, it is incumbent upon administrators to carefully consider their responsibility to protect freedom of expression and freedom of the press along with their responsibility towards visiting children.

In this particular case, whether the administration expressed concerns based on state obscenity laws or state laws governing “disseminating indecent material to minors” turns out not to make much difference.

New York State Penal Law Article 235.00 states (formatting added):

Any material or performance is “obscene” if

(a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and

(b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, criminal sexual act, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and

(c) considered as a whole, it lacks serious literary, artistic, political, and scientific value.

That’s the general obscenity law. When it comes to minors, Article 235.21 states (emphasis added):

A person is guilty of disseminating indecent material to minors in the second degree when:

1.   With knowledge of its character and content, he sells or loans to a minor for monetary consideration:

(a)  Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity,  sexual conduct or sado-masochistic abuse and which is harmful to minors; or

(b)  Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) hereof, or explicit and  detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors

Article 235.20 also defines terms related to “disseminating indecent material to minors,” including “harmful to minors”:

“Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:

(a) Considered as a whole, appeals to the prurient interest in sex of minors; and

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.

As I noted Monday, New York’s general obscenity definition tracks the one set forth by the Supreme Court of the United States in Miller v. California,413 U.S. 15 (1973). Likewise, New York’s related statutes make clear that state law prohibits distribution of materials to minors only when those materials meet the Miller standard as applied to minors. New York courts have affirmed this understanding. For example, in People v. Barrows, 177 Misc. 2d 712 (N.Y. Sup. Ct. 1998) (internal citation omitted), a court reviewing Article 235.20 observed that “the term ‘indecent’ has been statutorily defined consistent with the constitutional standard for obscenity,” finding that “the New York law expressly incorporates for minors the standard set forth in Miller for unprotected obscenity.” It’s therefore accurate to characterize New York’s “disseminating indecent material to minors” standard as “obscene as to children,” as I did in my post Monday.

To continue with President Destler’s response, he next attempts to justify RIT’s decision to impose prior review on Reporter by arguing that prior review is acceptable under the publication’s bylaws. He writes:

2.   The By-laws of Reporter do not preclude prior review. To the contrary, they require the students to consult with the Reporter Advisory Board when they are contemplating publishing potentially libelous, offensive, or provocative material, something the students did not do in this case.

The bylaws (PDF) of Reporter do not enumerate and preclude specific ways in which the publication must be left free from administrative censorship. They do, however, state:

It shall be the role of the Reporter Magazine’s Advisory Board to assist the student staff of Reporter at the Rochester Institute of Technology in meeting Reporter’s goals and objectives, and to provide maximum opportunity for an educational journalistic experience in the full spirit of the First Amendment of the Constitution of the United States of America.

[…]

The Reporter Magazine shall retain all of the rights of a free press.

Now, per the bylaws, Reporter staff are “expected to consult with the Advisory Board before publication when any material might be considered libelous, obscene, disruptive of university operations, or in violation of school regulations.” (Note that the bylaws’ contemplation of prior review differs from Destler’s characterization, as the bylaws do not require prior review for “potentially … offensive, or provocative material.”)

But “[a]ll the rights of a free press” includes the right to be free from prior review, and “assisting” and “consulting” with magazine staff does not (or at least should not) imply a licence to spike stories that RIT administrators find inconvenient. Exercising that power certainly would not uphold the “full spirit of the First Amendment.” The Supreme Court has held that 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, 372 U.S. 58 (1963) and Freedman v. Maryland, 380 U.S. 51 (1965) for more about prior review.)

Whatever review RIT did perform does not appear to have included any effective procedural safeguards. If it had, the university would not have cited New York law as a reason to restrict distribution of the magazine, since the magazine plainly does not include material that may constitutionally be prohibited. As I discussed in my post Monday and again below, the magazine’s content isn’t obscene. That Reporter staff did not submit the content to the Advisory Board isn’t surprising; no reasonable person would conclude the medical illustrations contained therein to be “libelous, obscene, disruptive of university operations.” Similar illustrations may be found in an encyclopedia, and only the unusually high presence of children on campus caused this issue to arise. The bylaws do not—and cannot, given the declaration that Reporter retains all the rights of a free press—ask students to submit to prior review for that which is “potentially … offensive[ ] or provocative,” as Destler writes.

It is important to remember, too, that the harm caused by prior review is twofold. In addition to limiting students’ ability to disseminate their message, prior review creates a chilling effect on student speech. In the future, student journalists may choose not to cover certain topics rather than risk having their work subjected to prior review.

Destler continues:

3.   RIT did not censure the issue or limit its distribution in any way other than to restrict its distribution to those 18 and over during our Imagine RIT Festival. We took this action because about 10,000 school age children were in attendance at the Festival, and we believe that decisions on when and if these images and issues are to be introduced to children should be the responsibility of parents, not college students. In fact, almost 2,000 copies of the issue were distributed at the Festival.

We are glad that RIT says it did not go further in restricting distribution. But this brings up another question about how carefully RIT considered its decision. RIT and its general counsel should know that New York Penal Law Article 235.20 defines “minor” as “any person less than seventeen years old.” RIT, however, disallowed distribution to any person less than eighteen years old. Further, Article 235.21 prohibits selling or loaning indecent material to a minor for monetary consideration. Reporter was being handed out for free. Finally, the statute’s reference to considering the work “as a whole” means one must consider the entire issue of the magazine—which clearly has value, as Destler recognized by complimenting Reporter staff. These facts suggest that RIT either did not consult or ignored the statutes when making its decision.

What’s more, even with respect to those 16 years old or younger, New York courts have made clear that would-be censors do not have blanket authority to shield minors from materials that do not meet a clear and precise standard of obscenity as to minors (or “indecency”). In Calderon v. City of Buffalo, 61 A.D.2d 323 (1978), for example, a New York appeals court held that a statute limiting the sale of pornography to minors was unconstitutionally overbroad in part because it did not include the factors that are considered in determining obscenity for adults.

RIT, of course, is private, and can hold that “decisions on when and if these images and issues are to be introduced to children should be the responsibility of parents, not college students.” But it should not be using state law to justify a standard of obscenity or indecency that the law does not in fact support, and it shouldn’t make this decision in disregard of its own policies on freedom of the press.

Finally, Destler seeks to justify RIT’s actions by appealing to a larger sense of responsibility:

5.   All of us, including our students, have responsibilities to act in the public interest. RIT would not invite young children to view an “R” rated movie on campus, and even newsstands place sexually explicit material out of the reach of young children even though much of that material does not quality as being obscene under the law. Such actions are not censorship, but rather socially responsible actions taken as we work together within our communities toward shared goals and values.

Destler’s concerns about children are understandable, and taking such worries into account when regulating speech has support in First Amendment jurisprudence. Indeed, the Supreme Court has acknowledged that the interest in protecting minors warrants special consideration. In Ginsberg v. New York, 390 U.S. 629 (1968), for example, the Court held constitutional a statute prohibiting the sale of material to minors when it was obscene as to minors, even though the material would not be deemed obscene as to adults.

But the important interest in protecting children doesn’t justify any and all restrictions on speech simply because children may hear it, and it doesn’t mean that only material suitable for children may be allowed in public. For example, the Court has found that the government’s “legitimate power to protect children from harm … does not include a free-floating power to restrict the ideas to which children may be exposed.” Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2736 (2011) (internal citations omitted). Similarly, the Court has concluded that “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” held in Erznoznik v. Jacksonville, 422 U.S. 205, 213–14 (1975). The materials in Brown and Erznoznik—violent video games and films containing nudity screened in public, respectively—were constitutionally protected despite the fact that they prompted the same concerns that RIT administrators have about the Reporter issue.

Destler says that everyone at RIT, including students, has the responsibility to act in the “public interest.” But that’s not very helpful: While President Destler may believe that the “public interest” requires copies of the student newspaper be kept from children visiting campus, student journalists may feel that the public interest is best served by a press and distribution scheme that is not affected by whether or not minors may be on campus at a particular time. Either way, a private institution’s promise to protect freedom of the press must be considered when its administrators determine whether to restrict a publication’s distribution. RIT doesn’t appear to have taken this decision as seriously as it should have.