2015.88: Cocks AND Glocks


It is clearly free speech.

Waving a dildo around to convey a message is symbolic speech, which is speech. Waving a dildo around to protest guns on campus is not obscenity, and it falls into no other historically recognized category of unprotected speech.

This, to First Amendment lawyers, goes without saying.

And what are the chances that the University of Texas would arrest, ticket, or discipline a student for carrying a dildo around as part of a protest “to draw attention to the fact that carrying a dildo to class could be ‘prohibited expression’ under university rules“? Nil, especially given that the university will have almost ten months to consult with counsel and choose the right course. I have heard (take it with a grain of salt) that the university has told students they will not be cited for carrying dildos in protest.

John Banzhaf writes:

To express their hostility towards the new law, a few female students are organizing a demonstration in which protesters will dramatize their opposition by carrying large dildos. They raise the question: Would UT really expel a student for displaying a dildo while nevertheless permitting guns capable of discharging more than a dozen high-powered rounds?

No, of course not. The protesters raise a stupid question. Show me that UT has expelled a student, or threatened to expel a student, for displaying a dildo and I might be convinced that it isn’t a stupid question.

Banzhaf writes:

A Texas statute, and the UT regulation apparently based upon it, prohibits the display of “obscene devices.”

Not so. The UT regulation prohibits obscene writings, visual images, and performances. It does not specifically prohibit “obscene devices.” A dildo is an “obscene device,” but an “obscene device” is not necessarily “obscene.” It’s amazing, as Troy McKinney says, what you learn when you read the statute, which the UT regulation cites.

But hey, if your objective is—as Banzhaf’s objective, near as I can tell, is—to be outraged and to try to get other ignorant people to share your outrage, why would you bother yourself with things like “reading statutes”?

The protesters fear arrests or university discipline.

No they don’t. The protesters crave arrests or university discipline. The worst thing that could happen to them is that the administration would cheerfully join them in their day of dildo waving. If they don’t pretend to fear arrests or university discipline, their stupid question appears stupid, even in the context.

And indeed, a legal website reported that UT-Austin’s vice chancellor says he faces a “dilemma,” and wouldn’t speculate on how he will handle the protest. “We do try to tolerate a good deal of free speech on campus,” he said.

“A legal website,” eh? No link? What is Banzhaf trying to hide?

Here‘s my best guess for the “legal website,” and if I guess right you can see what he’s trying to hide: it wasn’t UT Vice Chancellor Daniel Sharphorn who said he faced a “dilemma”; it was Sue Reisinger, the author of the article. Sharphorn did say that he can’t speculate on how he will handle the protest (a hail of bullets, or snack food for protesters?), and “We do try to tolerate a good deal of free speech on campus,” which is a tin-eared statement of which I don’t think we can make a whole lot, especially since it was made within a couple of days of the protest being announced.

Moreover, free speech is something to be revered, not just “tolerated,” especially at a university.

Sing it, brother!

Texans should be very concerned that professors at the UT Law School seem to be standing idly by.

Um, no.

UT’s law professors, if they have even thought about it, know that the protesters raise a stupid question. They know that obscene devices are not necessarily obscene, and that since October 16 when Sharphorn said that the university tries to accommodate a good deal of free speech (instead of accommodating all free speech) he has had an opportunity to give it some thought, and to decide: plomo o pizza.

If those who teach Constitutional law don’t see a clear threat to free speech and academic freedom and speak out about it, it’s no wonder that the chancellor is so confused, and that free speech is just “tolerated” at UT-Austin.

Except that there is no clear threat to free speech and academic freedom because nobody is in any danger, however much they desire it, of dildo-based arrest or discipline.

Displaying dildos shouldn’t create a “dilemma” for anyone familiar with First Amendment law.

Nor does it. “Dilemma” appears to be Ms. Reisinger’s word.

The Supreme Court has held that protesters have a constitutional right to make their point by displaying many upsetting things, including swastikas, burning American flags, and even flaming crosses of the type used by the KKK. Other courts have upheld the right of women to bare their breasts as part of a protest.

Yes.

More importantly, a federal appeals court has struck down the Texas law upon which the vice chancellor seems to rely, making it once again legal to display dildos, even if not part of a First Amendment protected protest, unless they are “obscene”: i.e., appeal to a “shameful or morbid” interest in sex and are “patently offensive.” This is something that UT should have known.

No.

First, the vice chancellor doesn’t appear to have said anything about relying on any statute, or even about disciplining students. This is a strawman argument.

Second, the university regulation governing obscene communications explicitly incorporates the Constitutional definition of obscenity rather than the statutory definition of “obscene device.” So UT knew what UT “should have known.” If Banzhaf had behaved like an actual lawyer rather than a cheerleader for a failing cause he would have read the rule and seen this. If the university were inclined—there is no indication that it is—to discipline rubber-cock-wielding students, they could only do so if the wielding of the cock was obscene.

Some protesters may also carry Nerf guns, pointing out another “dilemma” UT faces: The university’s Residence Hall Handbook prohibits Nerf guns. So the learned vice chancellor may be in the odd position of having to expel a student for having a Nerf gun, which shoots harmless pieces of foam, while defending the rights of other students to carry Glocks, Colts, Rugers, etc., capable of a mass murder.

That would be odd an odd position, but it wouldn’t a free-speech issue. The university’s regulations do not say anything about Nerf guns (except that “Campus violence” includes “Displaying a weapon or an object which appears to be a weapon in a threatening manner”). So students are free to carry Nerf guns on campus. The Residence Hall Manual forbids “Weapons or facsimiles of weapons” in residence halls; a Nerf gun is not a facsimile of a weapon (an Airsoft gun, however…). If this oddity really existed, there would be two ways to fix it: allow Nerf guns on campus, or get the legislature to change its mind about allowing concealed-handgun license holders to carry on campus. Guess which is feasible.

Banzhaf is trying to manufacture outrage. His success depends on ignorant people believing:

  • That the display of dildos is against university rules;
  • That the university administration, with ten months of time to brief and reflect, will be clueless about free speech; and
  • That the protesters are therefore in danger of arrest or discipline.

In aid of this trickery Banzhaf repeatedly misattributes “dilemma” to an official of the school rather than the reporter who used it. He fails to read (or deliberately ignores) the university rule that would apply, as well as the statute that defines “obscene.” If Banzhaf told the truth—”University regulations forbid obscenity, but dildos are not necessarily obscene; the University has given no indication that it will punish students for demonstrating; demonstrators want to believe that they face danger because otherwise they’re just a bunch of silly people waving rubber dicks.

Only if the protesters are in real danger of (rather than just having a devout wish for) arrest or discipline do UT’s law profs—or serious people generally—need to speak about it. It goes without saying. Banzhaf’s First Amendment outragemongering is discreditable, unworthy of a lawyer or even a halfway-competent law professor.


5 responses to “2015.88: Cocks AND Glocks”

  1. Despite the assurances by someone apparently not affiliated – but who dies have a “letter of marque” – that UT-Austin will not discipline students demonstrating with dildos, the record is otherwise.

    The well respected media outlet Corporate Counsel, in article entitled “Campus GC’s Gun Law Dilemma: What to Do With a Different Kind of ‘Open Carry”‘discussing the planned campus demonstration, reported:

    “Daniel Sharphorn, vice chancellor and general counsel at the University of Texas in Austin, has a tough decision to make: Will he arrest or discipline students who openly carry dildos on campus in apparent violation of a school rule against obscene ‘visual images,’ while other students can freely carry guns? . . .In an interview Friday, Sharphorn, a former judge advocate general at the U.S. Military Academy at West Point, said he can’t speculate on how he will handle the protest. ‘We do try to tolerate a good deal of free speech on campus,’ he added.”

    Saying that he is not sure how he will handle the protest, and that the university “do[es] try to tolerate a good deal of free speech on campus,” is very far from Mark’s assurances that “it is clearly free speech,” and that the chances of any disciplinary actions are “nil.”

    Moreover, the fact that a top university spokesman would announce that the University just “tolerates” rather than welcomes or even embraces free speech, and then only a “good deal” of it, is also a major cause for concern about any academic institution. Mark’s totally unsupported “best guess” that a reporter from a respected legal publication may have misquoted Sharphorn, cannot be given much credence, especially since Sharphorn apparently hasn’t protested or clarified his remarks.

    In any event, those organizing the protest have publicly announced these very concerns. Since it appears that the University has yet to issue a statement or provide any other formal assurance that the academic freedom of students, faculty, and other protesters will be respected, Sharphorn’s statement (which he apparently hasn’t yet bothered to clarify or disavow) is obviously having a chilling effect on their First Amendment Rights.

    Perhaps Mark, instead of trying to nit pick, would better spend his time seeking to persuade the university he is trying so hard to defend to speak for itself, and assure everyone that those simply waiving cocks to protest Glocks will not be disciplined.

    • You have murdered a lot of words there, Mr. Banzhaf.

      You misattributed “dilemma” to Mr. Sharphorn, then didn’t cite to the article to conceal that fact. Do you deny that?

      Are you ignorant of the actual rule and statute, or just trying to ignore them? Your intellectual dishonesty is unbecoming.

      If you had actually read my post, rather than just skimming it looking for unkind things about your ignorant article, you would have seen that I addressed what Sharphorn did say, which was published shortly after the protest was announced, and which came nowhere close to a threat to arrest anyone. If the university’s failure to renounce Sharphorn’s too-weak statement is the only evidence you have that the protesters’ fear of official consequences is legitimate, then you have a very weak argument indeed.

      Yet you go on trying to generate outrage over a non-issue, trying to make a civil-disobedience silk purse of this protest. The protesters have publicly announced these very concerns because without these concerns their protest is just silliness. It’s not at all obvious that Sharphorn’s statement is having a chilling effect on their First Amendment rights. If anything is obvious, it’s that if someone explained the law to these protesters (that the rules don’t forbid obscene devices, but only obscenity, and that their display of obscene devices doesn’t come anywhere near being obscene, so that the university has no imaginable legal argument for punishing them) they wouldn’t bother. The specious risk of arrest is the entire point of the protest.

      The university has said, “The freedoms of speech, expression, and assembly are fundamental rights of all persons and are central to the mission of the University. Students, faculty members, and staff members have the right to assemble, to speak, and to attempt to attract the attention of others, and corresponding rights to hear the speech of others when they choose to listen, and to ignore the speech of others when they choose not to listen.” That’s pretty strong stuff in contrast to Sharphorn’s understated “We do try to tolerate a good deal of free speech on campus.” Still, I’d have liked to have seen the university make a public statement specific to this protest—”What we said about free speech applies to this protest too”—because it would have saved me from being exposed to your massive ignorance and proportionate ego.

  2. The Court of Criminal Appeals held that a defendant by the name of Larry Alan Yorko was guilty
    of possession of an “obscene device” by possessing a bunch of dildoes. See Yorko v. State. So, I
    suppose that a dildo is an “obscene device”? Does that include a human hand or finger? Do need to go further?

    • Per Texas Penal Code Section 43.21(a)(7):

      “Obscene device” means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.

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