UM regents defy lawmakers' demand for porn policy

Board cites risk of lawsuits, burden on campuses

November 12, 2009|By Childs Walker and Laura Smitherman | Baltimore Sun reporters

The University System of Maryland defied Wednesday a request from state lawmakers to create a policy regulating the display of pornographic films on its campuses, concluding that such a move would provoke costly free-speech lawsuits.

A pornography policy would also place undue financial and administrative burdens on the system's campuses, the Board of Regents said in explaining its unanimous decision.

"As we learned more, we came to find out it would be a very difficult thing to accomplish," said system Chancellor William E. Kirwan. "We came to see it just wasn't going to be possible to develop a policy that we were certain could stand up to constitutional challenge."

It's unclear if the vote will bring reprisal from the legislature, which made the request after uproar over the scheduled screening of the XXX-rated film "Pirates II: Stagnetti's Revenge" in April on the University of Maryland, College Park campus. Sen. Andy Harris, a Republican representing Baltimore and Harford counties, tried unsuccessfully to amend the state budget so that public universities could not access their funding unless they developed a pornography policy. The General Assembly ultimately passed a nonbinding resolution telling the university system to come up with a policy. No potential penalties were specified.

Del. John L. Bohanan, a St. Mary's County Democrat on the Appropriations Committee, said that many House lawmakers thought the legislative remedy was a "solution in search of a problem" and would likely accept the university's stance.

"I understand where the university system is coming from," he said.

When instructed to craft a policy, system officials assumed they could scout around for policies from other states and draft language based on those. But they discovered that Maryland would be the first state in the nation to pass a pornography policy for its public campuses. That realization played a crucial role in the board's eventual shift against approving the policy, which would have required that any display of pornographic films at university facilities be accompanied by educational programs.

"This is not particularly an area where I wish for us to be precedent-setters," said Regent Patricia Florestano. She added that she had initially expected to go along with the legislature's request.

Some lawmakers said they anticipate a renewed debate about pornography on campuses during the next General Assembly session that begins in January.

Sen. Nancy Jacobs, a Harford County Republican who is the minority whip, noted that the controversy didn't arise until the final days of the last legislative session, when the topic briefly gripped the Senate and became a sticking point in budget negotiations. She said more time could be spent studying the issue.

"I imagine it will be brought up again next year," Jacobs said. "They are not following the will of the legislature, and the legislature gives them an awful lot of money, and these are tough economic times. I would think they would be spending their time on academics and on funding academics than on this sort of thing."

But other lawmakers, including some Republicans, predicted the legislature would focus on other matters, especially as state officials must find ways to plug a $2 billion budget shortfall.

"I don't want to see pornography displayed on campuses; that's certainly not why parents send their kids to college," said House Minority Whip Christopher B. Shank, a Washington County Republican. "But at the same time, I think it was politicized in the Senate and became a distraction, and we certainly have a lot of other issues to deal with."

Kirwan said he had not contacted anyone in the legislature before recommending against a policy. "I'm hopeful that they will be impressed with the seriousness with which we took their charge," he said. "I trust they will recognize the difficulties this would have created."

The vote pleasantly surprised student leaders, who had spent the past few months organizing opposition to the policy.

"I never thought this would happen," said Sarah Elfreth, a senior at Towson University and the lone student representative on the Board of Regents. "But I'm so happy it is happening."

Students said the policy would put campus leaders in the awkward position of having to define obscenity and would send a dangerous signal that free speech is vulnerable to the whims of state politicians.

"This sets a precedent that the Board of Regents stands up for students and stands up for what is right," Steve Glickman, student body president at College Park, said after the vote.

After the legislature requested a policy, the system asked Robert O'Neil, the former president of the University of Virginia and a First Amendment scholar, to help sort through the issue. O'Neil and his researchers discovered the lack of precedent on other public campuses but nonetheless produced a draft policy that they believed would withstand constitutional challenges.

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