Sex Column Deserves First Amendment Protection

Gene Policinski Commentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

What is it about sex?

Ah, let me rephrase that now that I have your interest: What is it about sex and the First Amendment?

From censors who attack music — often under misimpressions about sexual content — to those who trumpet the virtues of “smaller, less-intrusive government” except when calling on it to enforce some personal idea of virtue, it’s a subject that appeals, confounds, incites and occasionally seems to mesmerize many of us.

Our nation has a long — some would say shameful — history of anxious individuals and energetic groups ever ready to safeguard public morals by closing down public discourse over matters sexual. Begin with the Puritans and trace the path right through a variety of leagues of morality or decency.

City commissions and postal chiefs have parsed with a close eye what was sold or mailed within their purview. Art-museum displays periodically leave officials and others gasping in indignation. And parents, school administrators and even the FBI periodically have had fits over popular music, including the song “Louie, Louie” — a tune that beginning in the 1960s became something of the American poster child for music censorship, even though its lyrics are not at all salacious or smutty. Rap and hip hop are the latest targets in the censors’ sights.

The issue has been among the toughest for lawmakers and judges to deal with. U.S. Supreme Court Justice Potter Stewart famously remarked in the 1964 obscenity case Jacobellis v. Ohio that although he didn’t have a proper legal definition of even hard-core pornography, “I know it when I see it.”

That very personal approach to considering the topic may well be the best filter through which to view a debate over a column about sexual matters in the University of Montana student newspaper. The column and its writer are under attack by a law professor at that school.

The Associated Press reported recently that Professor Kristen Juras wanted the Montana Kaimin to drop a weekly column, “Bess Sex,” by senior Bess Davis. The flap isn’t the first over collegiate newspapers that offer such advice, often using terms that are very specific — and sometimes very personal.

Davis’ column has discussed topics like student sexual activity and “cheap and kinky” gifts for Valentine’s Day. By some standards — clearly not Juras’ — the column’s topics and language are fairly tame: In recent weeks, there was a non-prurient discussion of Facebook etiquette and another offering advice on working out “to look better naked.”

So far, the newspaper’s student editor and the university administration stand with Davis and her column as a matter of protected free expression. Juras counters by saying the column is unprofessional, denigrates the work of Montana’s school of journalism, and should offer information about sexually transmitted diseases and other health matters — not advice on how to cut spending in tough times by staying home and finding other, shall we say “non-revenue,” ways to entertain oneself.

A smirk and a snicker would be tempting responses to the entire matter, if Juras weren’t going further — raising not just issues of image and appropriateness, but of constitutional concern.

“I don’t think journalists can stand behind freedom of speech every time someone objects to one of their columns,” Juras is quoted as saying.

Isn’t that First Amendment freedom exactly what every one of us can count on to shield ourselves from the self-appointed, the popularly elected or even the lifetime-tenured who would substitute their decisions on free expression for yours or mine?

To shut down “Bess Sex” because it offends or embarrasses — or even if it fails to provide medically grounded advice — would be just plain wrong. We ought to be teaching students freedom of choice — that more speech, not more censorship, is the right response to speech (or newspaper columns) they may not like or want to read.

Those who don’t like Davis’ column can exercise their free-expression rights by turning the page of the paper or by declining to click online on any similar offering. (The idea of a serious column with real health advice for sexually active young people certainly would seem to have merit quite apart from the current dispute.)

Silencing student journalists in the name of “good taste,” a call for higher professional standards or as a means of promoting a positive university image is just plain old censorship masquerading behind some other fancy names.

And I think we know that, too, when we see it.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].