Introduction/thesis:

News publications are very common outlets for political dissent. Contemporary journalism, in fact, was bred from political dissent, rising from American resentmentof British colonialism in 1700's New England. However, the ways in which activists voice their political distaste is often cause of legal and ethical contemplation.This paper will examine and discuss the legal and ethical implications of politicalspeech characterized by vulgarity. I will explore one particular case thereof in whicha student-produced newspaper printed a four-word editorial, brashly criticizing aU.S. president.My research and analysis suggest that while the student journalist who approvedthe printing of the editorial acted within the law, he violated the expectations of hisposition and acted unethically. Still, however, I will argue the laws which protect hisactions legally are ethically necessary, despite allowing for unethical behavior.

Facts:

David McSwane was the editor of Colorado State's student newspaper, The Daily Collegian, during the 2007-2008 school year. In September 2007, McSwane andsome of the paper's editorial board members were upset over a recent political spatin Florida

: Sen. John Kerry — who ran unsuccessfully against President George W.Bush in 2004 — was speaking to a group largely composed of college students. Onestudent, Andrew Meyer, addressed Kerry during a question and answer session.Meyer asked Kerry to respond to accusations that he had ties to Bush and asked why Kerry hadn't used his stature as a ranking U.S. senator to push for Bush'simpeachment. Officers on the scene restrained Meyer, who resisted. A 2-minutescuffle between Meyer and a handful of police officers and security guard ensued,ending with Meyer being tackled, tased, and handcuffed.The events were captured on video and broadcast via the web, garnering millionsof views across the country and throughout the world. In additional to viral

1."Don't Tase Me, Bro," Time Magazine, March 29, 2010

Vulgarity in political dissent: A legal and ethical analysis by Adam B Sullivan

dissemination via the Internet, news organizations (largely cable television outlets)aired the video and provided commentary about it. The events initiated discussionsabout Bush, the political climate, and the use of non-lethal force.In response, McSwane okay'd an opinions-page editorial reading "Taser this:FUCK BUSH"

in large letters across the top of the page. In interviews with Denver-area news organizations, McSwane defended his and his staff's actions, saying they wanted to offer a "wake up call" to apathetic students. McSwane said he wasdisappointed that college students weren't being as politically active as those in othergenerations

. We as an Editorial Board made a statement. We stand by that statement, andI intend to defend our right to do so. We feel this statement, albeit unpopular, was necessary in communicating our opinion that it's time college studentschallenge the current political climate and speak out. While the statement was undeniably political, we feel that the moreimportant statement was in our support of freedom of the press and free speechon a college campus.However, many on campus and across the country were upset by the vulgarity of The Collegian's statement. Many on campus and around the country called forMcSwane to resign or be fired, The Collegian lost dozens of advertisers, and thepaper's staff was widely criticized.

Legal analysis:

The U.S. Constitution's First Amendment gives Americans significant protection tosay and write what they'd like. The U.S. Supreme Court has handed down only ahandful of decisions which limit freedom of speech and of the press, including:

2."Taser This, Fuck Bush," Rocky Mountian Collegian, Sept. 21, 2007.3."Statement from CSU Editor," thedenverchannel.com, Sept. 24, 2007.

Vulgarity in political dissent: A legal and ethical analysis by Adam B Sullivan

•

Schenck vs. United States (1919), Debs vs. United States (1919), Dennis vs.United States (1951)

First amendment does not protect speech which creates"clear and present danger" or speech which is "likely to incite violent behavior."

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Miller vs. California (1973)

Obscene speech is not protected. The Court'sobscenity test includes speech which appeals to the "prurient interest"as judged by "contemporary community standards," depicts offensive sexualacts, and has no artistic or political value.The court has also ruled a number of times to expand or reinforce protections of the First Amendment, including:

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New York Times vs. Sullivan (1964)

One can only be guilty of libel if he orshe acted with "actual malice."

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Cohen vs. California (1971), Tinker vs. Des Moines (1969)

Political speech isespecially protected by The Constitution.These restrictions and protections are not easy to navigate. In fact, the First Amendment is even difficult to interpret by the U.S. judicial system, as evidenced by the many more Supreme Court cases dealing with freedom of speech. However, thedecisions listed above do provide some insight into whether McSwane's "FUCK BUSH" statement was legally permissible.First, it is clear McSwane's editorial did not incite lawless behavior: The words were not violently inflammatory and no riots broke out because of the editorial.Second, while the Supreme Court's obscenity test is not absolutely clear, it isn't likely McSwane's speech was technically obscene: "Fuck" is commonly meant to describesexual acts, but The Collegian's use of the word was not explicit or descriptive. While we can likely observe "actual malice" in what McSwane printed, there are nosupposedly factual claims in the editorial. Language which is not false cannot beconsidered libel by the Court's definition. It's also clear that The Collegian's editorial was political in nature, and is therefor allotted special protection. Accordingly, there were no grounds for formal legal action to be taken against