Porn, Without Protection

Citing First Amendment, Maryland’s public universities defy legislature’s demands for a policy barring the use of public facilities for the display of obscene materials.
November 12, 2009

ADELPHI, Md. -- The University System of Maryland flirted with adopting rules at the request of state legislature to ban public viewings of pornography, but its leaders voted Wednesday against adopting such a policy on the grounds that it would present unwanted legal and logistical challenges.

William E. Kirwan, the system’s chancellor, and its Board of Regents had been weighing a policy since last spring, when the Maryland General Assembly included in its budget bill the requirement that all public colleges and universities enact a policy “on the use of public higher education facilities for the displaying or screening of obscene films and materials” by Dec. 1 or lose state funding.

The legislature’s demands came after students at the University of Maryland, College Park planned an early April public screening of “Pirates II: Stagnetti’s Revenge,” the sequel to a popular hardcore movie. State Sen. Andrew P. Harris, a Republican representing Baltimore County, called the proposed showing “shocking” and responded by introducing the budget amendment blocking funding for any institution that did not adopt an obscenity policy. The Democratic Senate president, Thomas V. Mike Miller, said public porn viewings were “really not what Maryland residents send their young students to college campus for." After the budget amendment passed, Kirwan and other officials said they would work to find a way to comply without restricting free speech.

But, following months of research and deliberation, Kirwan told the regents, he had concluded that the best option was to defy the legislature’s joint budget committees and not adopt a policy. “It is my recommendation that the board ask that I write the joint chairs [of the legislature’s budget committees],” he said, “expressing the view that a policy would not be in the best interest of the University System of Maryland or the state because of the First Amendment issues such a policy would raise and because of the administrative burden and costs of implementing a potentially flawed policy.”

The board voted unanimously in favor of his suggestion. Neither Harris nor Miller responded to requests for comment.

Clifford M. Kendall, the board’s chair, cautioned that the vote shouldn’t be taken as an endorsement of pornography. “This is a two way street,” he said. “One of the things that, quite frankly all of us are having a problem with, is we’re really not for pornography on campus.” Students, he said, ought to weight the moral and ethical implications of a public viewing of obscene materials for entertainment purposes before scheduling an event.

Sarah Elfreth, a senior at Towson University and the sole student regent, said she thought the decision not to adopt a policy “would never happen,” but added she was “happy it is happening.” Students “worked tirelessly on this to get their opinions out” and, without their voices, she said, “I don’t think we would be here.”

Another regent, Norman R. Augustine, heralded the vote as the right choice. “The most sensible position we can take,” he said, “is we will abide by the law of the land.”

But the vote was not a foregone conclusion. The system spent the summer working with the state attorney general and researchers at the Thomas Jefferson Center for the Protection of the First Amendment, at the University of Virginia, to formulate a policy. The presidents of the 11 universities in the system – including all five campuses of the University of Maryland – voiced their opinions, as did students, faculty and staff at all the institutions.

With all that input, the system formulated a policy that would have required administrators to vet all films being shown publicly for “purely entertainment purposes” and to determine which required an “educational component” and restrictions on the time, place and manner of screenings.

The Jefferson Center found that no other states or public universities had a comparable policy. Robert M. O’Neil, the center’s director and former president of the Universities of Virginia and Wisconsin, said “Maryland would have been absolutely unique had it adopted a policy.”

Though it was a legally sound proposal, Kirwan said, the policy would likely prove to be more trouble than it was worth, leaving the system vulnerable to lawsuits and imposing new costs on institutions that are in the midst of vast budget cuts.

“We’re absolutely, virtually certain [it] would be challenged in the courts because this is such a sensitive issue,” he told the regents. “With all of the people in the country rightly concerned about protection of First Amendment rights, this would be a target since it’s the first in the country.”

A legal challenge, Kirwan added, “would cost a lot of money …and would have to be pursued to appeal and almost certainly to the Supreme Court.”

The policy would have raised other concerns, too. It would have required each university to take on “a substantial new administrative burden” that would come with “not insignificant additional costs at a time when our budgets are all under great strain.” It would be open to interpretation by administrators at 11 institutions and would be “very difficult to administer in a uniform manner.”

Still, the deadline looms and it’s unclear whether the legislature will accept the board’s decision. “I’m very hopeful that the legislators that requested this will understand and move forward,” said Kendall, the board chair. “I hope the students and the faculty will understand this and move forward … and that we’ll all be working for a highly moral and ethical system that we can be proud of.”

Morgan State University, St. Mary’s College and the Baltimore City Community College must also provide policies – or some other explanation – by Dec. 1.


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