The leaders of Maryland’s state universities have been handed a daunting homework assignment this semester. Faced with a mandate from the General Assembly, the University System of Maryland must develop a policy to govern the showing of pornographic movies on campus — while not violating the First Amendment.

“Everyone knows how treacherous it is to regulate in the area of free speech,” said constitutional law professor Michael I. Meyerson of the University of Baltimore School of Law.

Leaders can’t crib notes from their fellow states — Maryland will be the first state to require such a policy. But they can look to constitutional scholars for guidance on how to avoid First Amendment challenges.

Some scholars say that the risk of litigation is high, and to mitigate that risk, they provide one overarching suggestion: Don’t regulate too much.

“A university ought to always prefer more speech to less,” said Mark Graber, a professor at University of Maryland School of Law.

The proposals will be heard by the university system’s board of regents on Friday, and a final policy is due Dec. 1 at the General Assembly.

For help in crafting the policy, the university system turned to First Amendment scholar Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia School of Law.

O’Neil, who describes himself as “strongly committed to free expression,” said he was intrigued by the Maryland legislature’s venture into regulating the showing of smut films on campus.

“No other state has done anything like this,” he said. “It is a unique experience.”

Having been tasked with the assignment, O’Neil said his goal was to be responsive to the legislature’s mandate while ensuring that university leaders were not put in the position of being censors. O’Neil declined to state publicly the advice he has provided to the state.

Sexually explicit plus education

The legislature first called for the policy last spring following a week of General Assembly debate spurred by Sen. Andrew P. Harris, R-Harford and Baltimore counties. Harris had threatened to pull funding from the University of Maryland when he learned that students were planning to show the XXX-rated movie “Pirates II: Stagnetti’s Revenge” in the College Park campus’ student union. The demand for a system-wide policy was adopted as a compromise.

Sen. Jamin B. “Jamie” Raskin, a constitutional law professor at American University’s Washington College of Law, opposed the legislation.

“I don’t think a new policy needs to be written because we already have a policy,” said Raskin, a Montgomery County Democrat. “It’s called the First Amendment.”

Having lost that argument in the legislature, Raskin said he would endorse an educational-component policy that “invites the community to debate and analyze anything that comes on campus, from ‘Hamlet’ to ‘One Flew Over the Cuckoo’s Nest’ to a stupid naked-pirate movie.”

He said such open discussion falls squarely within the spirit of free expression.

“The university should provide a forum for people to talk about movies,” Raskin added. “Let the First Amendment do its work.”

Graber, who teaches constitutional law, agreed. He said universities, in keeping with the First Amendment and their educational mission, should permit the young adults on campus to view a wide range of movies, coupled with an opportunity to discuss what they have just seen.

The university system is looking at a similar plan. P.J. Hogan, the system’s associate vice chancellor of government relations, said the policy will not call for an outright ban on pornographic movies.

“We don’t want something where somebody has to be the movie czar,” said Hogan.

Several proposals would permit the showing of all movies if they are accompanied by “an educational component,” Hogan said. This component could be a discussion related to the film, such as a talk on the limits of free expression, he added.

That mirrors the approach taken in the wake of the “Pirates II” flap: the movie was shown on campus, accompanied by a discussion about the First Amendment and censorship.

Who wants to define ‘obscene’?

The General Assembly’s directive, which applies to the 11 schools that fall under the university system and three other state-funded institutions, calls for a policy “on the use of public higher education facilities for the displaying or screening of obscene films and materials.”

Several scholars homed in on the reference to “obscene” movies in the General Assembly’s directive. Obscenity, the professors noted, enjoys no First Amendment protection under the Supreme Court’s 1973 Miller v. California decision. Thus, universities can regulate, even ban, the showing of such films without violating the Constitution.

The use of the word “obscene,” however, does not let the universities off the hook, they said. In drafting a policy, university leaders would still have to decide which movies are truly obscene — and able to be banned — and which enjoy First Amendment protection.

Meyerson, of the University of Baltimore, said that letting school administrators decide could put them in the constitutionally suspect role of being censors, leaving the schools vulnerable to a legal challenge that the banned films are not obscene and that preventing their viewing violated the students’ First Amendment rights. Instead, a policy could require students wanting to show a controversial film to affirm that it is not “obscene,” as defined by the Supreme Court in Miller, Meyerson said.

“This keeps the administrators from being censors,” he said.

“It also has the virtue of teaching students to take responsibility for their actions,” Meyerson added. “You’re basically telling students, ‘Don’t break the law.’ ”

Maryland law prohibits a person from exhibiting “any obscene matter” in the state. The misdemeanor violation is punishable by up to one year in prison and a $1,000 fine. Subsequent violations are punishable by up to three years in prison and a $5,000 fine.

But the Supreme Court’s nebulous definition provides little guidance to administrators or students in determining whether a movie is truly obscene or merely pornographic, scholars said.

The high court in Miller defined obscene material as that which the average person, applying contemporary community standards, would conclude appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct; and taken as a whole, does not have serious literary, artistic, political or scientific value.

The definition’s lack of clarity will make any university policy regarding the showing of “obscene” films constitutionally suspect, said Kathleen A. Bergin, a First Amendment professor at the South Texas School of Law in Houston.

“It’s difficult to define what’s obscene,” said Bergin, adding that community standards have become more relaxed with the ubiquity of sexual images in popular culture and on the Internet.

“What is obscene is going to be different than what was obscene 20, even five years ago,” she added.

The task of defining obscenity is even more difficult when dealing with young adults on college campuses, who are “bombarded with sexual images every day,” said Bergin, co-editor of the online First Amendment Law Prof Blog.

“What is going to be offensive to them? God knows,” she said.

Viewpoint or subject-matter?

With no clear definition of obscenity, policies restricting the showing of movies run the substantial risk of being either overbroad (limiting the viewing of movies that enjoy constitutional protection) or vague (failing to provide the students with a clear statement of what movies are obscene), Bergin said. Courts have struck down state laws and policies that infringed on the First Amendment because they were overbroad or vague, she added.

But state universities have “fairly ample leeway” in regulating the showing of pornographic films on campus, said Barry McDonald, a constitutional law professor at the Pepperdine University School of Law in Malibu, Calif.

Under the First Amendment, universities are barred from discriminating against groups based on the viewpoints they express, McDonald said. Thus, schools that permit the Young Democrats to form on campus must also accommodate the Young Republicans, he added.

In contrast, schools may place restrictions on the “subject matter” they permit to be shown on campus, he said. Thus, a university can have a policy that prohibits movies depicting the “subject” of pornography, which is viewpoint neutral, said McDonald.

For example, a permissible policy could state, “We are only allowing up through R-rated movies,” said McDonald. “We believe anything that carries a more extreme rating is not consistent with the values, mission and purpose of the university.”

But University of Virginia School of Law professor Frederick Schauer said there is “no clear answer to that question” of whether a restriction on the showing of pornographic films would qualify as a lawful subject-matter restraint or unconstitutional viewpoint discrimination.

Sexually explicit movies arguably present a point of view with regard to sexuality, he said. Thus, restrictions on the showing of such movies could be unconstitutional, said Schauer, who served 18 years as the Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government at Harvard University.

Explicit material on taxpayer dollars

Harris, the lawmaker whose strong objection to the showing of a pornographic movie led to the legislature’s call, said the issue is not the First Amendment but whether certain movies should be shown in facilities paid for with tax dollars.

“My goal is unequivocally not to interfere with freedom of speech — this is simply a matter of taxpayers footing the bill for the screening of pornographic material, and I think that’s an inappropriate use of taxpayer dollars,” Harris said in a statement last week.

“This issue is not about students at the University of Maryland choosing to watch this material on their own time and dollar,” he added. “Tax dollars sent to the university are intended for higher education. The merits of freedom of speech can be discussed and debated without the screening of a hardcore pornographic film paid for by Maryland taxpayers.”