Bonus Episode: Free Speech Today

Transcript for Bonus Episode: FREE SPEECH

Gregorio Olivares Gutierrez  00:05
I told them that “our publication had never done prior review and that we would not be doing prior review or any other forms of censorship so long as I was editor in chief.” By mid-September, I was not editor in chief since I was fired.
 
Dylan Purvis  00:20
We just heard Gregorio Olivares Gutierrez, former editor of the student newspaper at the University of Texas Dallas. This is a bonus episode of A Matter of Conscience. I’m Dylan Purvis. In part one, Bill Short and Willa Seidenberg speak with Gregorio about a story of on-campus censorship. And in part two, I speak with Sean O’Rourke, a free speech expert, about the threats facing political movements in the media today.
 
Sean O’Rourke  00:45
54% of Americans now receive their news from social media…
 
Wayne Root  00:50
Funded by George Soros
 
Gary Miller  00:51
The country is on fire
 
Joe Rogan  00:52
The climate change issue is very complicated
 
Sean O’Rourke  00:54
… and I think that’s exacerbating the problem of how the protests get covered.
 
Gregorio Olivares Gutierrez  01:01
My name is Gregorio Olivares Gutierrez. I’m a student journalist at the University of Texas at Dallas, who was the former editor-in-chief of The Mercury before it was destroyed, and now current editor-in-chief of the independent Retrograde newspaper.
 
Willa Seidenberg  01:16
Tell us how this all unfolded, the university shutting down the paper.
 
Gregorio Olivares Gutierrez  01:22
The Mercury had been the newspaper at UTD for over 40 years. We’d won a lot of awards during that time, and there had always been a tension. One of the first things I did when I became news editor in my freshman year was to just look back at our archives and see what previous struggles had happened. And there were many. There was just always this tension between university administration and the newspaper what students wanted to say, and what the university said could be said.
 
Dylan Purvis  01:49
The UT Dallas chapter of Students for Justice in Palestine had been protesting the war in Gaza for months. The students demanded that UTD call for a ceasefire in Gaza and divest from five companies manufacturing weapons of war.
 
Gregorio Olivares Gutierrez  02:02
When I became editor in chief, my first day was May 1st. May 1st was also the first day we had an encampment on campus. It was also the last day we had an encampment on campus. 12 hours after our students had put together this encampment in solidarity with the people of Palestine, our university administrators, in conjunction with the governor of Texas and the chancellor of the UT System, called in over 60 state troopers to come in storm, the encampment violently, and arrest 21 students, community members, and faculty. We had an article out by noon covering the existence of the encampment, and within 30 minutes of the brutal dismantling of it. We had another super quick update. We then followed those people to jail, did coverage of the protests that happened there. We spoke to the attorneys to know what was the condition of these people. Because despite us reaching out to campus administrators, we were not provided any insight from them, and this would be the case for the rest of May. We continuously reached out, tried to make every attempt we could to find out, and we were met with a wall of silence. So we published our issue, and when that published in print, our administration did not like that. Within two days, our advisor was demoted, and in his place, they appointed a PR person for the Student Affairs Department to oversee us. In our first meeting with this PR person. She told us that we should never have run these stories.
 
Dylan Purvis  03:24
Gregorio recorded this meeting with the PR representative.
 
Jenni Huffenberger  03:26
The latest issue, obviously, has gotten the attention of administration. This is journalistic activism. What I see here is wall-to-wall activism, and that really is journalistic malpractice.
 
Dylan Purvis  03:42
This is Jenni Huffenberger, the Senior Director of Marketing and Student Media at UT Dallas.
 
Jenni Huffenberger  03:47
So, I need you guys to understand that the approach on this issue was incredibly flawed. There’s opinion that is just saturating this content.
 
Gregorio Olivares Gutierrez  03:58
We’re gonna report on what occurs. What has occurred is entirely unprecedented in UTD history. They’ve never called in state troopers to attack a peaceful student protest before.
 
Jenni Huffenberger  04:09
Careful about the use of the word “attack,” but yes absolutely.
 
Gregorio Olivares Gutierrez  04:12
We have video footage of them attacking. That is why we chose the words we chose.
 
Gregorio Olivares Gutierrez  04:17
We asked her, “Hey, what was wrong with it? Ultimately, we’re student journalists. We’re here to learn. You’re now serving the role of the advisor. So, what did we do wrong so that we can do better in the future?” Instead of doing the job of an advisor, the PR person cut the meeting short and left without answering any of our questions, and that would be our relationship for the rest of the summer. When August came, the start of fall 2024, they appointed a new person who they had brought from off campus to be our director. They would fill in the role of the former advisor. And things had started off pretty well. We had a good relationship with her. She had 30 years of journalism experience. So, it seemed like this was going to be good. It seemed auspicious. Once she was done with the university-required trainings, once she was off her leash, she immediately scheduled a meeting with us, in which she told us “that unless we submitted to prior review, we would not be doing any sort of journalistic traveling to conferences or educational events,” which we typically did. I told them “that our publication had never done prior review and that we would not be doing prior review or any other forms of censorship so long as I was editor in chief.” By mid-September, I was not editor in chief, since I was fired. The rest of my staff began a strike. Immediately, campus administration suspended all Mercury-affiliated emails, and by the end of September, fired all of the members of the staff, and the publication was left defunct. We immediately started our own publication, did our own printing, and have continued to do so successfully since then.
 
William Short  05:56
Do you have an office that you’re working out of? And where are you getting the paper printed, and what kind of financial backing do you have?
 
Gregorio Olivares Gutierrez  06:03
We like to meet up at different cafes and study spots on campus. Every now and then, we’ll occasionally meet at each other’s apartments, but we’re mostly an entirely asynchronous organization. We organize ourselves on things like Slack and email, and then when it comes to our actual publication, we use the exact same people, this small business in Texas called Midway Printing, who used to print The Mercury, and now they also print The Retrograde. Financially, we do a lot of fundraising. That’s how we got our initial set of money from students, alumni, faculty who wanted to support this endeavor. And we’ve also had advertisements from groups like the Society of Professional Journalists, the foundation of individual rights and expression in the Student Press Law Center, who have helped us with all sorts of both financial and just legal advice.
 
William Short  06:53
How many copies of your paper are you able to afford to publish, and where’s your distribution points, and what kind of blowback do you get for that distribution?
 
Gregorio Olivares Gutierrez  07:02
As a public university, we don’t face too many issues when it comes to physically distributing it. What we do face issues with is locations for campus. The university can impose time, place, manner, restrictions for how things are displayed around campus. They can set specific news areas where this is where newspapers can be and nowhere else. So they have those restrictions in place that limit the visibility of the newspaper, and they’ve also opted, at UTD to remove every single newspaper kiosk that previously existed. When we announced that we were going to start doing print publication, they came in, took all of those newspapers. What we experience more is subtle forms of repression, where they remove these kiosks so that we feel that we don’t have places to put our stance because there’s no places for it, why would we even print? As creative college students, that has not stopped us. We just find other places to put the newspapers that technically meets their definitions of what is and is not acceptable.
 
William Short  07:59
I was also wondering if you have an online presence, and how do you distribute that part of the paper?
 
Gregorio Olivares Gutierrez  08:06
Yeah, it’s theretrogradenews.com. We mainly just distribute that part of our paper by linking to our own articles when possible, and really focusing in on providing good breaking news coverage so that other newspapers know, like, “oh, we can link to them. They have good information.” So that’s a way to get our name out there, get our reputation out there. When it comes to the website.
 
Willa Seidenberg  08:29
What was the reaction of the student body?
 
Gregorio Olivares Gutierrez  08:32
We’ve seen a very positive reaction of the student body towards us. There’s this underdog story of students who are standing up to campus administrators that are already widely unpopular and succeeding at it. We’re breaking the news on things like hate crimes happening on campus, on students having their visas revoked, and it’s important information for students to have, because our university isn’t going to inform you about it, so someone has to. This is valuable journalism. So we’ve seen a lot of support from student government, from various student organizations all across campus, from alumni groups and faculty. We’ve continued to have better numbers when it comes to our circulation both on Instagram, our website, and our print editions than what The Mercury had. And overall, it’s just been like a net positive when it comes to our relationship to the student body.
 
Willa Seidenberg  09:23
Has there ever been this kind of crackdown and pressure put on the paper in its history?
 
Gregorio Olivares Gutierrez  09:31
There’s never been a kind of crackdown to this extent. The most we’ve had is typical like disciplinary proceedings where an editor wasn’t doing their job, or the editor had some other thing that was affecting them academically, which made them ineligible for the position. But something like this had never occurred, entirely unheard of. The most we kind of got when it came to extreme pressure from the university was back in the 70s, when the paper was still new. So they were covering the Star Wars Defense Initiatives that the government was doing. Some professors were part of that at UTD when it came to kind of like designing weapons for the government. And there were protests about that, and then the paper covered those protests, and was also told “you can’t go too in depth with them,” but it was never going into newspaper kiosks and taking them out, firing every single member of the staff, putting in these like ultimatums of be censored or else. All of that’s entirely unprecedented at UTD.
 
Willa Seidenberg  10:32
Why did it come to this drastic step of them disbanding the paper?
 
Gregorio Olivares Gutierrez  10:38
Texas is a conservative state. Our public institutions exist at the beck and call of the state legislature who, on a whim, might choose to defund them because of things like being too woke or too diverse. All of these things are issues that we as a student newspaper are actively covering. They’re the concerns of the student body. After SB 17 passed in the state of Texas, we saw all of the facilities and programs that helped students of color, queer students, students from international communities. All of those programs were either entirely eliminated or severely defunded so they could pretend that it’s not providing that service to avoid the ire of the state.
 
Dylan Purvis  11:18
SB, 17 is a new Texas law that passed in 2023. The legislation bans diversity, equity, and inclusion (DEI) offices and policies at public colleges and universities.
 
Gregorio Olivares Gutierrez  11:31
So the state is always there. It’s always that pressure on our campus administration, and they have this fear that if the student newspaper is saying things, if the student newspaper is acting up, that will draw the ire of the state legislators. That’s a thing that I spoke to extensively with other students who do student journalism in the state of Texas, at a recent Texas Intercollegiate Press Association Conference, a lot of the newspapers have been self-censoring themselves out of the fear that if they do this, their school won’t exist anymore, or the programs that they have will be destroyed out of fears of over compliance, out of fears that the state will just directly defunct them at UTD, specifically, if the university does something wrong, it is our job to cover it and also criticize it. First, they took away these rocks that were a public forum on campus, the Spirit Rocks. Students were doing graffiti on them, both in favor and against Israel. When the campus administration caught wind of this first day of Thanksgiving break, fully removed the three big boulders that students did graffiti on, we did a two-page spread special coverage issue of it. And after that, we started to see university offices refused to talk to us, and it was like we criticized you, and now you don’t want to talk to us when we did our May 1 coverage, that’s the most scathing The Mercury had ever been. This was the first time we had ever seen such direct acts of violence against students for exercising their First Amendment right to protest the actions of their university, the actions of their government. It’s not like this is anything new. Colleges are notorious for being hotspots of protest, of political development, and to see that crushed so violently, so aggressively. We criticize that. We continue to criticize how the university handled it. UTD is straddled between two different Texas counties. Southern portions of campus are in Dallas County, which is a Democratic leaning environment, and the northern portions of campus are in Collin County, a Republican leaning environment. The students on May 1st were arrested in the Dallas County side of campus, but they were not taken to Dallas County courts. They were instead taken over an hour away to the Collin County courts so that the Collin County Republican prosecutors could handle the situation.
 
Greg Willis  13:49
Free speech is one of our most important constitutional rights, and enforcing the law is actually what keeps free speech standing strong.
 
Dylan Purvis  13:57
Collin County DA Greg Willis.
 
Greg Willis  13:59
We’ll treat these cases like we will any other case.
 
Dylan Purvis  14:02
Originally, 21 protesters were arrested for criminal trespassing. One year later, the DA dropped those charges and instead convened a grand jury to indict 14 of “the UTD 21” for obstructing a passageway. The use of a grand jury and the filing of a new misdemeanor charge nearly a year after the arrest is highly unusual.
 
Adwoa Asante  14:22
The indictment has a chilling impact on political speech nationally.
 
Dylan Purvis  14:28
This is Adwoa Asante, one of the attorneys for the UTD students.
 
Adwoa Asante  14:32
This is part of a whole array of political repression for people of conscience in the United States that oppose the genocide in Palestine,
 
Dan Sullivan  14:42
And the way that they’re reading that statute means that the police can shut down any protest they want, anytime they want, by saying it’s obstructing something.
 
Dylan Purvis  14:50
Dan Sullivan is another lawyer for the students.
 
Gregorio Olivares Gutierrez  14:52
So instead of having things like what happened to UT Austin students who quickly had their charges dropped, we had. Students who still do not know the status of their legal case on campus, who still do not know whether or not the university will do something to them, because the university has said, Well, this is beyond our control. It’s in the courts. The university is the one who is filing these charges. They can drop them at any point, and we criticize that because of our choice to try to hold them accountable to the claims they make on their website of what their goals are for the university. That is why they shut us down, because we weren’t going to bend over like they thought we would.
 
William Short  15:30
Are you being tracked or watched by anybody from the government to wait for you to trip up and do something that they can arrest you for?
 
Gregorio Olivares Gutierrez  15:38
I haven’t gotten anything like that from state or national level entities, what I have gotten is the University Police Department following me around. The chief of police making strange, almost threatening comments whenever we’re both at the scene of an event. I am currently being investigated for claims of discrimination because the newspaper The Mercury published a disclaimer before a student submitted op-ed where we were saying that the claims that the student was making were not factually to our standards as a newspaper. So the university is investigating me for discrimination because of that, and the status of that is entirely unknown to me.
 
Willa Seidenberg  16:21
You’re 19 years old?
 
Gregorio Olivares Gutierrez  16:22
20
 
Willa Seidenberg  16:23
20 years old, and it strikes me that soldiers in Vietnam who are being drafted were your age. Where are you getting your strength and your tenacity to stand up against this?
 
Gregorio Olivares Gutierrez  16:38
I think a lot of it, initially, for me, came from just the ‘Oh, my God, it is my first day on the job, and this is happening.’ I am seeing my own peers, who I have classes with, who I attend social events with, who I know, get violently arrested. I am seeing professors who I respect be kicked, assaulted, put in chains. So to me, that just struck me as like, Well, someone has to cover this. I’m in charge of the student newspaper. So I’m going to make it my mission to make sure that this gets covered immediately. On that day, the people we were competing with when it came for breaking news was Fox News. Fox News presented it as, “look at these violent brown people,” they had like this image of one of our professors being kicked and assaulted and thrown to the ground by the police officers. And their spin on this was, “Look how he’s daring to resist arrest as they kick him and force him to the ground.” The professor wasn’t even protesting. He was just standing in between the police and the students that day on his way back to his car when they started to attack him. It’s in my curriculum to point out these discrepancies and really emphasize that this isn’t okay. It doesn’t live up to our ideals as an organization. So, we have professionals telling us that what we did was correct, but somehow our administration thinks that something’s wrong, and then, of course, they fire me, and they fire all of my staff. I’m dealing with administrators who don’t even know their own policy, who don’t even know what the law says, and think that because they are older than me, they can use that to silence me.
 
William Short  18:15
Because of your writings or articles about Gaza and the Palestinian situation. Have you been accused of being antisemitic at all?
 
Gregorio Olivares Gutierrez  18:24
We have been accused of being Islamophobic, antisemitic, transphobic, and homophobic, which for an organization that employs almost entirely queer Jewish and Muslim students, has been really fascinating to us. We just stick to journalistic standards upheld by the Society of Professional Journalists, and that does tend to lead to us covering things that don’t always take everyone in a positive light. If something happens, we’re going to cover it, and we get a lot of fun hate mail every now and then. Recently, the claims have been specifically just of antisemitism, because we just publish, hey, campus administrators went up to these Students for Justice in Palestine and told them, your free speech ends where our policy begins, and it’s apparently antisemitic for us to point out that this is a thing that happened, but we don’t see really any claim in that we want to uphold diversity, want to uphold everyone’s rights. We’re very staunchly against discrimination, so we don’t really see any of that hateful accusations impact us.
 
Willa Seidenberg  19:31
How do you feel about the fact that this is part of a larger trend under the Trump administration to attack free speech and to attack educational institutions as a young student, just kind of starting your career?
 
Gregorio Olivares Gutierrez  19:50
As a student who goes in and, like talks about philosophy every week, who goes in and talks about history every single week, this just like parallels all of. Like the evil things from the past that I’ve read, where it’s like, oh, okay, we’re just like playing beat for beat from Hitler’s playbook when it came to like silencing the intelligentsia, like kidnapping people based off of their identity for what they dare to say, silencing journalists, attacking the press, attacking critical sources of academic understanding. Texas right now has things like SB 37, which would seek to put the power of curriculum writing for universities in the hand of Governor Abbott, instead of the experts in their industries, like it’s currently set up faculty being in charge of their own curriculum. So, we’re seeing all of these like endless attacks. We’re seeing attacks on people for writing op-eds in their student newspapers, for people who just happen to not be covered in a mask when they’re doing protests on their campuses, like with Mahmoud Khalil, we see all of these things happening, and it’s making a lot of student newspapers reanalyze how we approach our coverage, the Student Press Law Center, in conjunction with I think six other organizations, recently put out a student media alert saying, “hey, for a long time, student journalists, journalists as a whole, have always emphasized, get people’s names, publish their name with what they’re saying. And if they come back to you and say, “Hey, could you take it down?” You leave it up. They said it, they should stick to what they said.” But now that advice is changing, because people are being kidnapped by the government, deported to places like El Salvador, to what is seen internationally as tantamount to a concentration camp. And that is a new sort of threat that we have to face while journalists are committed to the truth, seeking it out and reporting it. We’re also committed to minimizing harm in our communities. We don’t want the people we talk to to suddenly get kidnapped because they spoke out about something. What we’re recommending to other student journalists in the state of Texas is be more lax with your anonymity. Always get the information of who you’re talking to know exactly who they are, and be clear that you’re giving out these anonymity this kind of like pseudonyms to people, because to your reader, it says a lot, if you have to preface in your article, “we gave this person a pseudonym because they fear for their life that they will be kidnapped by the government.” And those are the sorts of things we’re doing to protect our community members to protect the students we interact with.
 
William Short  22:22
But it seems to me like the issues of free speech on campuses now is as much a national movement as the opposition to the war in Vietnam was. Can you speak about the kind of broader sense of student newspapers around the country and the oppression that they’re feeling in this atmosphere?
 
Gregorio Olivares Gutierrez  22:42
I do think that there is that parallel where it’s like we as student newspapers primarily deal with what would be analogous to the base commander, the one who directly oversees you. That’s what we see when it comes to student newspapers. Yes, my specific battle is with the University of Texas at Dallas. But that doesn’t mean that that’s where it ends. The whole role of these universities isn’t unique. The best way to view it is with how the encampment movement began. It started off at Columbia University. You had these protests that had been going on for a long time, and then suddenly those students, Jewish Voices for Peace, Students Justice in Palestine, Columbia, anti-apartheid divestment movement worked together to make their encampment. Once that started, you started to see these pop up across the whole country, and the way that Columbia handled it set the tenor for how other universities would react. And the way they reacted was with violence. They came in, had NYPD sweep it. When they were removing students who were occupying Hamilton Hall, members of NYPD shot their guns, and that’s kind of like the level of violence that we’re experiencing at UTD, at UT Austin, you have sniper rifles posted on all of the buildings. You have helicopters overhead, militarized occupying police forces coming in. They’re in full riot gear, carrying rifles, grenade launchers, and with what is tantamount to a tank to disperse students, again, students in an academic environment who pose no threat whatsoever. That’s the sort of thing where it’s like we have these small battles that are happening at every university, but it’s all part of this larger movement. Social media allows us to immediately see what’s going on at other universities right now, I was talking to some students that were potentially going to do an article about with situations developing at the University of Houston, they have their Students for Justice in Palestine chapters setting up some art displays in their campus public zones, and their university removed that art. So we see these students reacting to that. Students at UTD are considering putting up their own art in solidarity with the students from the University of Houston. We see students at the University of North Texas. They had a professor who was going to speak about Palestine, and this is their field of study. We had state legislators interfere, send messages to the university saying, “you absolutely cannot let this speech happen.” And it’s this whole very interconnected web that the student newspapers are a part of. We don’t exist independently. What happens at other universities is going to impact us.
 
Willa Seidenberg  25:19
From what you know about the anti-war protests and the GI movement within the military. Do you see any lessons that you can learn from?
 
Gregorio Olivares Gutierrez  25:32
The big thing I took away from kind of like this GI underground press movement is just how it was overwhelmingly anti-war. It was anti-military, and it criticized its command. These are all things that we see as key tenants when it comes to our student journalism. We criticize our universities. What is parallel to our command, and it’s this really inspiring example to look at of these are people in the middle of the Vietnam War who are choosing to go against what they are being told to do, and that is absolutely imperative for successful student journalism. Student journalists around the country are told, “Oh, we’re the administration, we’re your advisor. This is what you ought to do.” But it’s not a thing of what we ought to do for the university, they’re not in charge of us. And even here, where these GIs, the commanders are in charge of them, they’re still able to show that tenacity, to go against what they see as wrong, criticize it in their own way through the fatigue presses, underground newspapers, they distributed and continue keeping people informed. They spoke to an audience of other soldiers, and that’s what mattered, because you can’t really convince the people above you when you’re just diametrically opposed. There are different material conditions affecting what you as a GI want and what you as a general or a commanding officer want. There are different material interests that impact what we as students want and what the administration wants. And I think it’s really key to understand there’s no point in appealing to them. So why not be the voice of the students? Why not talk in the way that the students talk? Reach out to them in their terms? Because that’s the best way to develop that anti-war movement, what, for them ended up being this radical revolutionary movement.
 
Willa Seidenberg  27:25
As somebody who grew up in the United States, what was your assumption about First Amendment rights and free speech rights? What was your assumption growing up and coming into a university about being an American citizen and having these rights?
 
Gregorio Olivares Gutierrez  27:44
I actually did not grow up in the United States. I grew up in Mexico. I have citizenship because my father was a citizen. And when we came here during my second year of high school, I started off as a resident and applied for citizenship that I got because he already is one, just that kind of like by blood. But when I came here growing up, it was always in American media portrayed as the land of the free, where people have these constitutional rights. When I immediately jumped into my political science studies, the first course I took was a constitutional law class that jumped in on, ‘These are your rights. This is what it means to have these. Here is the extensive court jurisprudence that upholds people’s rights to be able to practice in these different ways.’ And then the very next year, I pretty much see all of that begin to just be meaningless, where it’s like, ‘cool. I just took a constitutional law class, and now everything I took from that constitutional law class is being actively overturned.’ I’ve always seen the US as this idealized bastion of freedom, because that’s what the US propaganda apparatus presents itself in other countries, and now I’m just seeing it evaporate again, like with things such as people being disappeared from the street without any court proceedings. It’s happened before the US had the Japanese concentration camps. It had various sort of like quota laws. It’s not a new phenomenon, but it’s entirely mask off. It’s very open and very public about who it’s targeting and how it’s targeting them, and it’s now something we have to deal with without being able to rely on the law without having any of these safeguards that formerly existed for people who were in that acceptable social class within the US.
 
William Short  29:30
If somebody wants to support your new paper, how do they do that financially?
 
Gregorio Olivares Gutierrez  29:35
Yeah, our website: retrogradenews.com has links to a GoFundMe and a Patreon right now we’re working with other nonprofits to make it so that donations can be tax deductible.
 
Willa Seidenberg  29:47
Well, thank you, Gregorio, we really appreciate your perspective.
 
William Short  29:51
I think you have a great future.
 
Gregorio Olivares Gutierrez  29:52
Thank you so much.
 
Dylan Purvis  29:56
This is one of many campus crackdowns on free speech in the United States. Process, more than 3,600 people were arrested last spring in the nationwide encampment protests on college campuses. To talk about free speech rights of students publishing newspapers on campus and the history of protests in the United States, I spoke with Professor Sean O’Rourke. He has published two books, Rhetoric, Race, Religion and the Charleston Shootings and Like Wildfire, the Rhetoric of the Civil Rights Sit-Ins.
 
Sean O’Rourke  30:25
My name is Sean Patrick O’Rourke. I am a professor and chair of the department of Rhetoric, and also professor and chair of the department of American Studies at Suwanee, the University of the South. I think protest gets at the heart of what it means, or at least what it has meant, to be an American. To have the right to protest, to have the right to give voice to the concerns and grievances that you have and the legitimate interests that other people have in being full and equal citizens. That’s what protest is about.
 
Dylan Purvis  30:56
What would you say are free speech rights provided to Americans under the First Amendment?
 
Sean O’Rourke  31:01
In the US Constitution of course, the religion clauses of the First Amendment prohibit Congress from making laws establishing a religion or prohibiting individuals free exercise of religion. The remaining clauses in the First Amendment prohibit Congress from passing laws that abridge the freedom of speech, the freedom of the press, the right of peaceful assembly and guarantees of the right to petition the government. It’s important, of course, to note that these rights are not absolute. There are some limitations, such as reasonable time, place and manner restrictions, and the term speech, of course, has been interpreted broadly to include marches, symbolic acts, even more recently, money. But I would also emphasize that the First Amendment is only one layer of free speech rights we hold. Every state constitution has some statement about freedom of expression, including freedom of the press. The Federal Constitution’s First Amendment sets forth the minimal rights all states must guarantee their citizens; however, each state can guarantee greater speech protections within its jurisdiction, and I think in the context of these times, that’s a kind of important place for protesters to think about looking for their free speech rights.
 
Dylan Purvis  32:16
Is there a major difference between the Free Speech of everyday citizens and free speech for publication, such as newspapers and other media?
 
Sean O’Rourke  32:25
One interesting area on this topic is the so-called reporter’s privilege, which, when invoked, can theoretically protect journalists from being forced to reveal confidential sources or information in legal proceedings. So, the general rule, I guess, is that individuals in the press must have equal rights with very few specific exceptions. Things seem to vary wildly from state to state, because the Supreme Court hasn’t really filled in the cracks between the states very effectively,
 
Dylan Purvis  32:55
People in the military face restrictions on their free speech, as we cover in the show with these soldiers who resist fighting in the Vietnam War. Could you talk about other populations that face restrictions?
 
Sean O’Rourke  33:07
Civilian employees of the government may have their speech restricted when their speech relates to their official duties, or, I guess, could interfere with or harm the government’s operations. Prisoners also have limited free speech rights. Public school students may also have their speech restricted, especially where the speech may be disruptive, offensive, or may in some other way interfere with the educational mission of the school. Corporations and private universities can set their own rules for workplace free speech rights. And then there are rare instances in a national emergency when the government can for a limited time and a very specific rationale limit speech.
 
Dylan Purvis  33:51
Could you talk about the free speech rights for students publishing a newspaper at a high school, college, university?
 
Sean O’Rourke  33:58
This is a very slippery area of the law. Let’s start with the courts in Hazelwood School District versus Kuhlmeier, which is a 1988 case, the Supreme Court of the U.S. determined that pre-publication administrative review of a high school student newspaper was justified where the school newspaper is, quote, “school-sponsored.” That means the administration is acting as a publisher. In a later case, Hosty versus Carter, the United States Court of Appeals for the Seventh Circuit extended the reasoning of Hazelwood to college campuses by permitting administrative prior review of campus student newspapers. However, there are signs of hope for student newspapers. Some states, such as Illinois have passed the College Campus Press Act protecting student newspapers from both pre-publication, administrative review and post-publication, administrative punishment or retribution. That Illinois law is pretty strong. I suspect that with the current power in Washington, focusing on educational institutions and their practices. My guess is, many schools will react by trying to restrict freedom of the press on their campuses. This would be, in my opinion, a mistake.
 
Dylan Purvis  35:13
Since October 7, 2023, as a result of increased protests by students, universities have censored, suspended, expelled protest leaders and even student journalists who reported on the encampments.
 
Sean O’Rourke  35:26
So, the theory of civil disobedience is to violate unjust laws, to highlight the injustice and those who practice civil disobedience. And I think a lot of campus protest is that need to be ready to accept the individual consequences for the greater good. In the courses I teach at Swanee, I focus in on the protests of the 1960s and 70s, and in those protests, for example, Mario Savio was suspended from Berkeley and had to complete his degree at San Francisco State, while David Harris was indicted and served time in prison for his anti-draft protest at Stanford and his refusal to be inducted into the military. So, campuses have historically chopped down on protesters on the campuses in ways that I don’t think are helpful or, frankly, justified by the educational mission of the universities that said there are more enlightened administrative responses to the protests of those times, and that was to engage those protesters in dialog. I’m thinking now of an example that I know fairly well. Robert D. Clark was President of San Jose State from ’64 to ’69 and president of the University of Oregon from ’69 to ’74. He had an open door policy that helped keep the situations in both San Jose and Eugene from escalating as it easily could have, and he met with protesters over and over again, sometimes through the night. The approach he exemplifies is, in my opinion, more in keeping with the mission of an educational institution than many of the other administrative responses we saw
 
Dylan Purvis  36:56
Across the country, students formed encampments to protest the war in Gaza and demanded that their universities divest from Israel. Why did the universities crack down on free speech and response?
 
Sean O’Rourke  37:07
At least one reason for the crackdown, and that is the economic stake that most universities have in their investments and in those endowments. There is a political angle as well as the economic angle as to why the administrations at some universities have cracked down at least since 2016 both the Congress and the executive branch under Trump has played a fairly savvy game with colleges and with the protests, and that political game is to label those protests as antisemitic or and they’ll shift as quickly as they need to to label it as something else that they will then advertise as heinous or something we need to get rid of. There are now growing organized numbers of Jewish citizens who are saying that to label these things antisemitic is, in fact, a kind of antisemitic act when they’re not really antisemitic, and to be opposed to certain Israeli policies is not to be antisemitic. And historically, crackdowns on free speech usually have two not mutually exclusive results. First, they have a chilling effect, which means that the robust, free-spirited give and take of debate or Republic demands is muted and all too often one-sided. But the second effect is that it forces those things underground, where it often percolates into something more violent and destructive than the peaceful protests that it began as well. I do have my suspicions that some of the very public protesting that we’ve seen recently was something that this administration actually wanted, so that they could have the fight and to frame it as they wanted to.
 
Dylan Purvis  38:47
How do you think movements such as the Civil Rights sit ins or the current student encampments or the soldiers in the Vietnam War era who resisted fighting? How do you think their actions can lead to lasting change?
 
Sean O’Rourke  39:01
I definitely think all of those and many others can lead to lasting change, but not alone, and usually not as a first step. The most effective protest usually comes after all. Other approaches have been tried and have failed, and this was true for the abolition movement the suffrage movements and was certainly also true of the civil rights movement. The recent Los Angeles protests present a different situation, because I think the Trump administration was attempting to force the issue to a head before other means could be attempted and could play out. I think they wanted the imagery of the protests so that they could misrepresent them as riots and label them as an insurrection or an invasion, but good, patient, long-lasting discipline, direct public action will always have its place in all efforts to create lasting change. But as I say, it can never happen alone. The civil rights movement’s most lasting and enduring changes occurred either legally or politically. Eight. Legally, I’m thinking Brown versus Board of Education and all of its progeny. And politically, I’m thinking of the Civil Rights Act and the Voting Rights Act. Those were the most long, lasting effects of all of them. And I think protests had their role in getting the nation to those places. It gets too early to tell what Black Lives Matter, or the Gaza protests or others will have in terms of a long-term effect, we need to remember that the successes of both the civil rights movement and the Vietnam era anti-war movement were achieved over a long period of time. They suffered many setbacks, and they were never completed as fully as many advocates had hoped. The NAACP began in 1909 as the Niagara Movement, and it wasn’t until nearly 50 years later that we got Brown versus Board of Education. It was another 10 years to the Civil Rights Movement and the Voting Rights Act. So, in recent years, both of these pieces of landmark legislation have been undermined, and there are always setbacks, and if you let that kill the movement, then you let the setback win. Decades ago, the historian Jacqueline Dowd Hall asked historians of the civil rights movement to quit focusing on that period between 1954 and 1965 and urged a more expanded view of what she called the long civil rights movement. This refocusing allows us to see that the civil rights movement was decades, perhaps even a century, in the making. So that’s one of the reasons why I say Black Lives Matter and Gaza who knows? We’ll see what happens. We don’t know what’s going to unfold over the next several decades. I always put a quotation of the day on the board in a classroom, there’s a quotation that always goes up in the protest class. It’s Oliver Wendell Holmes Jr, and he said, “If I had to say anything on my deathbed, I would say, have faith and pursue the unknown end.” And I do think that’s a nice statement for protesters, because a lot of times, all you’ve got is faith, because the facts don’t seem to be tending your way. And the way I interpret it is to say, Have faith in yourselves. Have faith in your movement. Have faith in your vision of a just society. And you don’t know where it’s going to end up, but if you don’t pursue it, you’ll never get there.
 
Dylan Purvis  42:20
Can you talk about how the media or politicians use the actions of a few to discredit or delegitimize largely nonviolent protest movements?
 
Sean O’Rourke  42:29
Protest opponents have long used the actions of a few to discredit and distort the nonviolent, peaceful and rational actions of the many. That is a tried and true establishment response to protest, you’ve lost the consensus journalists once had that their work would always be guided by certain professional standards, including truth and accuracy, full and deep research, detachment from political, religious and other partisan desires, and a strict policy of corroborating sources. And that loss is really hurting the way protests are being covered. The Reuters Institute for the Study of Journalism, just published its annual study of news consumers worldwide, and its finding for the US were really stark. 54% of Americans now receive their news from social media. This means that news influencers, few of whom are trained journalists, are now the main source of news for most Americans. Entertainment now masquerades as news politically motivated disinformation as “fair and balanced,” and I think that’s exacerbating the problem of how the protests get covered. Part of that Reuters study was how a student newspapers, both high school and college, are beginning to fill in where we’ve essentially developed news deserts. I think it’s absolutely more important that we have good student newspapers, good student radio shows, news shows, so that we can, in fact, be aware of where news influencers who are really not journalists, are distorting what we see and what we hear and, most importantly, how we interpret it. This part of distorting a protest is not new. This is why Martin Luther King was so intent on trying to keep his movement nonviolent, because he knew the second there was violence, and there was in Memphis, shortly before his death, that that would be distorted and blown all out of proportion to the majority of the public protest, which had not been violent at all. I think both the distortion is being exaggerated today, and I think that the student news and newspapers are absolutely more important to fill in and to reveal some of those distortions.
 
Dylan Purvis  44:46
Could you say a little more about what you think the role is of protesters in keeping message discipline?
 
Sean O’Rourke  44:52
I don’t know how many students today are aware of the enormous training that went in to many of the civil actions and many of the anti-war protests. I’m thinking now about Mississippi Freedom Summer and how the students who went into that were trained at Miami of Ohio, in Oxford, Ohio, prior to going down to Mississippi, and how important that training was for many of them. So if we think about the various ways in which messages and images can be distorted by those who are actively opposed to them. It means we have to attend to a whole bunch of disciplinary aspects to being a good protest, but also to think about the best way to frame what it is you’re protesting in a way that opens you, least to the charges that some might draw against you.
 
Dylan Purvis  45:42
That is an essential point about the level of training and coordination involved in effective activist movements. Thank you, Sean, for providing context on free speech protections and the history of protests in the United States. We really appreciate your time.
 
Sean O’Rourke  45:57
This has been fun for me.
 
Dylan Purvis  46:02
According to a Gallup poll from May 1964, 74% of the public said that mass demonstrations by Black Americans hurt their cause for racial equality. Yet two months later, on July, 2, 1964 the Civil Rights Act was signed into law by President LBJ. History shows us that often the possibility of progress looks darkest just before the dawn. As discussed in our prior episode GI underground newspapers and coffeehouses were part of growing movements of dissent among soldiers who resisted fighting in the Vietnam War. This contradicts the official government narrative and public perception of soldiers as loyal patriots and hippie activists as the face of the anti-war movement. In fact, GIs and civilians marched together to end the war. There is a similar spin going on today, portraying the opposition to the war in Gaza as only college students, but the campaign for peace is made up of a much larger coalition. It’s inspiring that despite the UT Dallas administration’s attempts to silence The Mercury, the newspaper staff forged ahead with The Retrograde to much success. To support freedom of the press, go to retrogradenews.com. That’s it for this bonus episode of A Matter of Conscience: GI Resistance During the Vietnam War. If you like what you hear on this podcast, please subscribe, review and recommend the show to your friends. Word of mouth really helps. Please visit our website, at Amatterofconscience.com, where you can see the extensive show notes for this bonus episode. This episode was produced by Dylan Purvis, with help from Willa Seidenberg, Paulina Cherezova and Bill Short. The music is by Danny Seidenberg. Thanks for listening.

 
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