Opinion: UO, Lane County violated the First Amendment

by Marty Wilde

Two local cases highlight the importance of restraint when addressing speech that offends. Most often, the only appropriate and legal response is not official retaliatory action, but more speech to clarify, challenge assumptions, or reframe an issue.

The University of Oregon’s response to an art exhibit targeting UO leaders and Lane County’s response to protests against what some viewed as offensive merchandise sold by the GOP at the Lane County Fair both infringed on free speech rights, and neither has subsequently offered apology for their error.

UO has a history of forgetting that it is not just an educational institution, but also a state agency. As reported in the Eugene Weekly, a UO student created an art installation featuring a dining table with settings for UO President Karl Scholz, Nike founder Phil Knight, and dean of the UO College of Design, Adrian Parr Zaretsky.

Tacked to the wall nearby was a poster suggesting that Dean Parr Zaretsky is complicit in genocide for Israel’s actions in Gaza. Dean Parr Zaretsky filed a complaint alleging antisemitic harassment. The University hired an outside firm to investigate, and the artist received a notice that he was being investigated for possible violations of the student conduct code. Pursuant to his rights under the code, the student was assigned a (retired) faculty advisor. However, after the advisor spoke to the press about his concerns, presumably with the student’s consent, the University removed him from the case.

The University’s actions constitute a “heckler’s veto” — the attempt to prohibit speech because someone finds it offensive or disruptive to public order, rather than because it constitutes the incitement to imminent lawless action required by the Constitution to prohibit speech.

The dean claimed the art installation was “part of a broader, coordinated pattern of antisemitic attacks and threats” against the campus Jewish community. Nothing in the reporting suggests that the art installation, which was approved by the appropriate University officials, contained threats or other content that might raise legal concerns.

It is worth noting that Dean Parr Zaretsky denies supporting Israel’s actions in Gaza. Indeed, her career has been focused on resolving issues of water scarcity that contribute to conflict in region. In that sense, the criticism may be incorrect or unfair, but the dean holds a public position—one that has a degree of supervision over the student—that position legally limits her options in responding.

And while the University was quick to point out that it was merely investigating the incident, its actions have had a chilling effect on the student and on campus speech more generally. This is part of a troubling pattern by the University, which has already put legally questionable restrictions on protest activities on campus to essentially one intersection on campus and administered student elections in ways that clearly express a preference in the outcome through rules regarding prohibited campaign activities. These are clearly unconstitutional, but remain on the books.

Lane County also suppressed political speech recently. According to reporting, the Lane County Republican Party marketed “Alligator Alcatraz” merchandise at their booth at the Lane County Fair, which progressive groups quite understandably found offensive. When these groups objected, the county pointed out their limited options in content-related restrictions on political speech. The activists responded by attempting to chalk the pavement in front of the booth. The county responded by prohibiting them from doing so, and that was a clear violation of their right to symbolic speech.

While the fair administrators might have been justified in restricting the chalking on the basis that it disrupted the safe flow of foot traffic, it instead relied on the premise that the chalking somehow “threatened” the GOP’s booth. As with UO, the county did not specifically state which messages were offensive, but rather found that the mere act of chalking was somehow threatening.

Having allowed the sale of the offending merchandise as speech, the country took a clear position favoring this ‘disruptive’ commercial speech over the the non-commercial ‘disruptive’ chalking. As with the dean above, I do not fault their motivation – to reduce conflict in the community – but, also as above, the county chose to do so in a way that prioritized the goal of reducing conflict over the legally more important protections given free expression.

As Justice Kennedy put it in a 2012 Supreme Court decision, “[t]he remedy for speech that is false is speech that is true.” The Trump administration has made this difficult by itself persecuting governments and universities that do not impermissibly support the causes it promotes through suppressing contrary viewpoints.

I appreciate the cost and difficulty in pushing back against an administration that openly retaliates against institutions asserting their rights or obligations under the Constitution. Fortunately, the institutions challenging these orders have, to the best of my knowledge, universally succeeded when the issues have been taken to court.

A better approach for both institutions would have been to encourage responsive speech from the dean and the local progressive groups, rather than seeking to suppress debate on topics of public interest. Perhaps they will take this failure as an educational opportunity.

Marty Wilde represented central Lane and Linn counties in the Oregon legislature. For more of his Letters From a Recovering Politician, subscribe at https://martywilde.substack.com/subscribe.