Should Mormons Avoid R-Rated Legal Opinions?

February 4, 2004 | 25 comments
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You remember the case: Mormon acting student at the University of Utah files suit because she felt that her free speech and free exercise rights were violated by her acting teachers’ requirement that she say f–k and g—–m in classroom performances. The federal district court tossed the suit, but the student just won her appeal, keeping the case alive (caveat clicker: the court’s opinion contains profanities) .

Here’s a quick summary for non-lawyers:
On her free speech claim, the Tenth Circuit Court of Appeals ruled that school officials may compel a student to use profanities as long as such compulsion is “reasonably related to legitimate pedagogical concerns.” The Court held, however, that the school officials may have offered their pedagogical reasons merely as a pretext for discriminating against the student because she was Mormon. Whether the reasons were pretextual or not, the Court said, must be resolved by a trial.

On her free exercise claim, the Court similarly held that the student presented enough evidence to warrant a trial on the issue of whether or not the school officials’ requirement that she use profanity was a “neutral rule of general applicability.”

Thus, the case goes back to the district court, where the school officials will attempt to prove that they weren’t discriminating against the student based on her religion.

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25 Responses to Should Mormons Avoid R-Rated Legal Opinions?

  1. Brent on February 4, 2004 at 3:34 pm

    Why in the world would they require someone to use profanity? That is just absurd. So I guess you can’t be a good actor without swearing. What is next, are they going to give failing grades to students in dancing and music classes because they refuse to allow male students to rip off half of their shirt exposing a bare breast, a la Janet Jackson? I hope this girl wins her suit.

  2. Bob Caswell on February 4, 2004 at 3:48 pm

    I’m with Brent. This is kind of stupid. I’ve heard story after story about faculty/students at the University of Utah trying to pull off semi-controversial things in order to just get back at Mormons. Can’t we just all get along? Sheesh. Just let the girl say freak and gosh dang.

    I say, good luck in proving that this wasn’t some sort of UofU/Mormon discrimination.

    Hey, all you law geeks, has this sort of thing happened anywhere else? Or just in Utah?

  3. Nate Oman on February 4, 2004 at 3:51 pm

    Interestingly, the AAUP (American Association of University Professors) filed an amicus brief on behalf of the University.

  4. Bob Caswell on February 4, 2004 at 4:04 pm

    Nate, that does make it more interesting…

    All, even if this isn’t a form of discrimination, is it just something to be expected?

    So, if someone wanted to make a career of acting, would he/she have to make it a point of interviewing each university he/she was thinking of attending by asking questions like, “Now, I don’t like to swear, smoke, drink, or have sex on stage, is that ok? Or does your university force their drama students to participate in any of these?”

    If you want to go to Hollywood, then this could be a question that needs to be asked. But to go to school? Why should a student even have to ask such a silly question?

  5. Scott on February 4, 2004 at 4:52 pm

    What would you say about an English major who sued her university because, in some of her classes, she was required to read works that contained profanity, racial epithets, or material that offended her religious sensibilities? Should a university be required to grant a degree to (and vouch for) an English major who refuses to read, write about, and be tested on Twain, Angelou, Morrison, Salinger, Lawrence, Steinbeck, Joyce, and Hemmingway?

    The theatrical canon is as critical to an actor’s education and training as the literary canon is to a writer’s. To allow puritanical theater students to “opt out” of Tennessee Williams, Arthur Miller, David Mamet, et al., is to put the inmates in charge of the asylum.

    Scott

  6. Steve Evans on February 4, 2004 at 5:26 pm

    I agree with the faculty; profanity is one of the tools of the trade for modern theater. If she didn’t want to participate, that’s fine, but it puts into question how well she will function as a modern actor. To me, it’s like some dude at refrigeration school who refuses to use freon because it damages the environment.

    What’s weird is that she just “assumed” that she would be punished for it, and left school before the end of her second semester… what’s going on there??

  7. Kaimi on February 4, 2004 at 6:38 pm

    As J. Golden Kimball might say, that’s a damn good decision.

    Actually, the decision is exactly on point. It notes that schools have valid pedagogical reasons to require actors to use profanity. They shouldn’t be able to just opt out, as Steve and Scott argue.

    On the other hand, her concerns can’t be dismissed out of hand. There is a real possibility, based on her allegations, of her being singled out. While she shouldn’t receive special treatment (allowed to act Bambi while everyone else has to act A Clockwork Orange), nor should she be a special target of required profanity (forced to act A Clockwork Orange while everyone else acts Bambi).

  8. Kaimi on February 4, 2004 at 6:41 pm

    I didn’t complete my thought in the last post. Anyway, I think that, given the facts as set out in the opinion, remand for further fact development — was she targeted, or just required to do what everyone else was doing? — is exactly appropriate. (And that’s what was done).

  9. Matt Evans on February 4, 2004 at 6:54 pm

    I don’t see any valid pedagological purpose at all. If a student only read versions of assigned literature that substitute profanities with “#%*$@!”, or “s–t”, their education wouldn’t be hampered at all.

    The definition of acting Scott and Steve rely on is awfully narrow. _Most_ roles don’t require swearing, smoking, eating meat, or wielding a gun.

  10. Steve Evans on February 4, 2004 at 7:23 pm

    I agree with Kaimi. Given the facts, construed in the most favorable light for the plaintiff, the remand is justified. What will happen upon remand is an entirely different story. The idea that she was singled out is troubling, but ultimately not very persuasive (IMHO). Most likely the poor non-cussing lass will receive a total smackdown.

    Matt: while “_most_ roles don’t require swearing, smoking, eating meat, or wielding a gun,” the good ones do. Any Mamet piece would entail all of the above!

    But I jest — of course most roles don’t require such behavior — the point is that a versatile, effective actor should be able to portray such things. Unless there is a degree in niche acting of some sort…

  11. Bob Caswell on February 4, 2004 at 11:12 pm

    Thanks, Kaimi. I think you get the prize of the day for being most diplomatic.

    I would like to focus in on one thing Matt said, “their education wouldn’t be hampered at all”. Well said.

    What’s this professor’s problem, anyway? This is akin to Hollywood throwing a tizzy fit because someone is editing their movies. People are still paying to watch these movies.

    This girl is still willing to learn and could receive the same (or better) education as her peers.

    I need a reason for the professor’s actions, not just, “he/she should be able to enforce swearing”.

    P.S. Blogging is so much fun, isn’t it? You’ve got Scott saying that refusing to swear is like refusing to read an English book and you have me saying it’s like sex on stage. When really, it’s like neither.

  12. Clark Goble on February 5, 2004 at 12:26 am

    I think the problem is that artists (of whatever quality) tend to see art as something valuable in itself in such a way that any modification is sacrilegious. In a sense art becomes almost a religion. Perhaps some might disagree with me, but there is this sense that artists think themselves Muses in touch with the divine. There is this elitism that is quite distasteful to me. What is most funny is that many artists are little better than Ed Wood and yet still hold to this view.

    I wouldn’t mind so much, were there not so much hypocrisy in their views. Of course the obvious hypocrisy – that of editing for TV and Airlines – must be recognized as something out of the artists hands. I think they’d stop that if they could. Yet clearly most studio productions have massive influence by business people, marketers, market research and so forth. To see it as any kind of paragon of authenticity seems difficult. Yes some artists probably have more control, but often they have a rather distasteful pretension that I dislike. It is as if they’ve lost track of the audience.

    Am I overreacting? Perhaps, perhaps not. It does seem like media is being polarized into people like Janet Jackson where art is pure product, open to manipulation and marketing, and those who worship it as some sort of divine production. One wishes some more “pragmatic” view would take hold.

  13. Mardell on February 5, 2004 at 12:35 am

    Actually it is like reading an English book while having sex on stage. Just kidding.

    First of all if saying a few cuss words in beyond you why would you want to be an actor, and why are you not going to BYU? I hear they are real sticks in the mud over there.

    On a more serious note she should be able to do what she wants. And she chose to not say the words and leave the program. That was her choice, live with it. If she had been kicked out or been failed then she has a real argument, but she did not even finish the war she lost a battle or two and ran away. If those were her standards and she really wanted to stay in the program then she should have stuck it out. Not ran away and sued them.
    I know prfanity is taboo in our church, but I know a lot of active church members who cuss up a storm, and a lot of them hold higher callings than scoutmaster. It is not like it is the cardinal sin to cuss.
    Now taking the lords name in vain is a little more serious after all it is one of the ten coommandments.

  14. Clark Goble on February 5, 2004 at 12:50 am

    OK, now that I’m over my rant (which I think is doubly true of any kind of “art” in colleges) let me take the other side. What if the issue was a student who was asked to read a book with “naughty” words and scenes in it? Say D. H. Lawrence’s _Lady Chatterly’s Lover_ or even something a little more intense. Would we expect the person to be able to avoid this? Clearly not.

    Now if this was high school it would be one thing. But in university you ought to know that you may be asked to watch objectionable things.

    Besides which this is pretty mellow compared to some of the stuff I’ve heard about at UVSC here in Provo where students have to watch fairly pornographic scenes for certain classes. (I think psychology was one, I forget the details)

  15. Bob Caswell on February 5, 2004 at 1:11 am

    Clark-

    I just feel that if I was a professor, I would be a little more sensitive to students’ concerns. If a student is going to take the time to express a concern to me about my class, I’m going to take the time to try and accommodate as best I can.

    But I’m not a professor nor am big into pornos being in touch with the divine.

    Ok, that last comment might have been uncalled for, but you get what I’m saying.

  16. Brent on February 5, 2004 at 11:02 am

    “A versatile, effective actor should be able to portray such things.”

    Why? Why must a “good” actor have to portray profanity or immorality? What if the class required that she portray a lesbian or do a nude scene? Would such things make her a more versatile and effective actress? I think it absurd to suggest that one has to portray vulgarity and profane the divine to be deemed a “good actor,” and no student should be forced to portray such things. How did we get good actors in the days before such things were more common place?

  17. Bob Caswell on February 5, 2004 at 11:36 am

    Brent has a good point. There seems to be this unwritten rule that the more you’re willing to “do” on stage/camera, the better actor you become. When really “how far you go” and “how good of an actor you are” should have little or nothing to do with each other.

  18. Kaimi on February 5, 2004 at 12:09 pm

    Brent, Matt,

    Recall the last time we discussed class rules that a student didn’t like, it was a rule that she couldn’t have live sex in her film project. See http://www.timesandseasons.org/archives/000141.html

    If the class or professors should have to change their curriculum to accomodate a student’s preferences in not swearing, why shouldn’t they be required to change their curriculum to allow sex in a class project?

  19. Adam Greenwood on February 5, 2004 at 12:47 pm

    Kaimi,
    there’s a world of difference between mandating that a person not be forced to do something they object to, and mandating that a person can do whatever they want. I am much worse off if I made to do evil than if I am prevented from doing good. A much better analogy would be if the LDS student insisted on exhorting the audience to repent and be baptized during the intermission of a play.

  20. Brent on February 5, 2004 at 1:54 pm

    Kaimi, come on. I think Adam correctly identifies the difference. I also think you can ask the question as to what is required to perform in the class. If it is to develop good acting skills, there is no reason why a student should be required to swear or profane. Similarly, if a film student’s requirement is that she produce a good film, there is no reason she cannot do so without filming sex in the class room. In the first case by making an exception the teacher has not undermined the goals of the course, and similarly in the second, by prohibiting certain conduct the teacher has not jeopardized the course purposes.

    I also would suggest that we ought to expect teachers to promote decency and morality, even in universities, and the exception and the prohibition do this.

  21. Scott on February 5, 2004 at 4:14 pm

    What if the student expanded her scruples even further? Suppose she refused to perform any part that required that she (1) use profanity, (2) portray an act of violence, or (3) portray an unchaste act. Suppose she refused to perform in any production in which *any* actor did any of the above. Should the university still accommodate her? Why or why not?

    Scott

  22. clark goble on February 5, 2004 at 4:19 pm

    A better parallel might be an art student refusing to go to classes with nude models. That is required in basically every art class I’ve heard of outside of BYU (where they wear bodysuits – although students frequently go to UVSC or the Springville art museum to pick up the anatomy and body painting)

  23. Bob Caswell on February 5, 2004 at 6:00 pm

    Scott-

    “Suppose she refused to perform in any production in which *any* actor did any of the above.”

    You have a good point here… This is all a matter of opinion, so here goes mine… again. It seems that the university could fairly easily be accommodating to the student in regards to HER requirements for the class.

    But if she (the student in question) didn’t have to swear but still had a problem with others swearing around her, that would be a little over the top. I mean, she’s not doing anything different than her regular life as a Mormon. That’s what we Mormons do best. Live in a world that doesn’t have the same standards as us.

    But again, in my opinion, this issue is limited to what’s required of her. If she has issues with other students and what they have to do in their roles, then she should just quietly leave.

  24. bj on January 24, 2005 at 1:43 am

    The concept of profanity is a stupid one to begin with. More so on a religous level. To swear or cuss, is just an outward expression of intent, sometimes (shrug) violent, but not typicaly . Why would one punish a child for saying F*k as oposed to “gosh darn” when the intent of anger, hate, malice, is the same? Well people do, for no other reason than society tells them to. However, If your standard god of choice, magicaly hears you cussing, do you really believe he would treat you differently if you said “fiddle sticks” With the same determination and meaning? Nope.
    Schools exist to teach of great ability, and develope great ability. It was designed to create an understanding of the world and its workings, not bend to some idiotic local custom. To not teach shakespear? Recite poetry?Or perhaps Identify with the plight of man, through periodic dialoge? When you of the beautiful people, have managed to purify the world from pain, anguish, or even mild discomfort, then maybe we can erase such ‘colorful’ phrases from our language, until then we require an equally diverse and meaningful method of expression. And that expression should be reflected in our art and literature. To act is to represent someone else. If you can’t speak as they do, than you will never be an actor. If she wins, we all lose.

  25. Sheri Lynn on January 24, 2005 at 4:25 am

    I changed my major from journalism to chemistry when I went back to school mostly for this reason. The English and Journalism profs seem to feel the need to use the F word in their lectures. I don’t know why. To make themselves seem accessible? Human? Liberal?

    I’ve never had a chemistry professor behave in such a manner. I don’t have to do peer reviews of bad porno, either, or get back profanity-laced peer reviews of my own work.

    I’ll never forget the comment, “Holy ****, too many commas!” scrawled in red across my tender prose by one fellow student. What a potty-mouth she was.