Quaro
1961
That’s not 100% correct. Prohibitable speech encompasses more than threats. Harmful speech and obscenity can both be regulated. wiki has a good summary of potentially prohibitable speech. https://en.m.wikipedia.org/wiki/United_States_free_speech_exceptions
That’s actually seems to be a fairly terrible article due to how easily it can leave the reader with the wrong impression of what is actually unprotected. Obscenity is basically limited to straight-out pornography, many may have noted there’s still no shortage of it; the “fightin’ words” is pretty much notable only for how the courts generally decline to use it; and “harmful speech” isn’t actually an exception - I assume you are getting that from “intentionally, knowingly, or recklessly inflicts severe emotional distress”, but note the very next sentence points out such a rule has never actually been articulated in an SC decision. And so forth.
By the way, Popehat is a much better place to get your First Amendment overview. And then you won’t make Ken cry!
Nesrie
1964
I think you guys don’t fully appreciate that going to college and being a student is not a right. Just because you may not go to jail for something you’ve done doesn’t mean they have to keep you as a student. And hate crimes don’t always have to be physically violent… bullying, harassment, vandalism and yes verbal abuse can fall into that camp.
Timex
1965
I don’t think you fully appreciate what it means for a college to be funded by the government.
There are very specific requirements for speech to not be protected by the first amendment, as have already been laid out.
Nesrie
1966
Even the public colleges and universities have Student Codes of Conduct policies. Those policies do not just align with what different governmental bodies define as crime. You don’t have to take my word for it. Go find an university and look. Certain behaviors can impede the pursuit of education by other students and are grounds for discipline, whether you can be arrested for that behavior or not.
Just to help out, it often looks something like this:
“Abusive conduct: Unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating. These circumstances could include the frequency of the conduct, its severity, and whether it is threatening or humiliating. This includes physically abusing a person or holding a person against his or her will. Simple teasing, offhanded comments and isolated incidents (unless extremely serious) will not amount to abusive conduct.”
which is uo’s, uo.edu. Look at how even the last part tries to separate simple teasing and isolated incidents but even then they have sort of an out because how extreme is extreme anyway?
Timex
1967
I’m not sure how better to explain to you the state of the law that hasn’t already been said at this point.
University codes of conduct have pretty much always been overturned when they have gone up against the 1st amendment. Because those universities which are funded by the government are bound by the Constitution.
You can look at cases like Papish v. the board of curators at U. of Missouri, which showed what happened when a student was expelled for violating a code of conduct which tried to prohibit protected speech. The student took them to court, and the university lost.
Thus, it doesn’t really matter what is in their code of conduct if the code constitutes a violation of free speech rights as established by our constitutional law.
Nesrie
1968
Yeah I think you’re ignoring R.A.V. v. St. Paul, which basically says you can’t prohibit certain kinds of speech but you can still go after the person for harassment. If you’re paying attention to what I am saying, it’s not the content but the method… which is what I said earlier. You can have students sitting around discussing all sort of things but if you approach harassment territory, you go after them for that, for the targeting part. I don’t think you want to understand the difference between freedom of speech and harassment. You don’t have protection to harass someone. You just don’t.
They lost the case because they went after the act of burning the cross, not trespassing, not harassment. Conduct and speech are not the same thing.
And because we’re focused on law, there is another law at play here:
The important words here are “hostile educational environment.” Under federal anti-discrimination law, as interpreted by the Department of Education, a university has an affirmative duty to guarantee students an educational environment in which they are free of hostility based on race or sex.
Timex, from your own example:
There is language in the opinions below which suggests that the University’s action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e. g., Healy v. James, 408 U.S., at 192 -193, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution. 6 [410 U.S. 667, 671]
Here’s the page 192-193 specifically referenced, and an interesting segment:
Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related [408 U.S. 169, 193] activities must be respected. 23 A college administration may impose a requirement, such as may have been imposed in this case, that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law. Such a requirement does not impose an impermissible condition on the students’ associational rights. Their freedom to speak out, to assemble, or to petition for changes in school rules is in no sense infringed. It merely constitutes an agreement to conform with reasonable standards respecting conduct.
Again, IANAL, but that seems like SCOTUS thinks that the school does have some say in the matter, albeit not unlimited. Side note - these were both from the early 70’s, and there may have been more recent stuff that says otherwise.
No, its a call out. People know victim culture for what it is and are speaking up against it.
Oh I guess only “social justice” call outs matter? Go argue with the Washington Times.
Timex
1971
That’s totally true that they have some authority. For instance, they are allowed to say you can’t just scream your opinions in class and disrupt things.
However, in the case I cited, the reason the student win was because the school was trying to censor the speech itself as offensive.
And that’s what we’re talking about here with the racist speech, right? That the speech itself is harassing and offensive?
No, at least I’m not. I’m talking about how a state school can indeed expel a student for speech. If that speech is being directed at a student or if it, as Nesrie’s citation calls it, creates “a hostile educational environment,” the school is able to act. Edit - better clarify: the threshold is the point that speech becomes action.
Timex
1973
The problem with what that, however, is that you are making the determination of what is ok and what is not, based upon the content of the speech. That’s what makes it unconstitutional.
The school can say that you are unable to shout opinions during class, as long as they equally prevent anyone from shouting ANY opinions.
What they can’t do is selectively prevent students from saying certain things, based upon the content of the speech. That is, if you are allowed to say something in a situation, then you are effectively allowed to express and opinion on that situation, even if it’s racist, offensive, or harassing.
The only limit is if it actually crosses the line into inciting imminent violent or illegal action.
No, it actually has nothing to do with the content. It has to do with “the time, place, and manner of speech and its dissemination.” If you’re shouting a racial epithet at someone, that’s an action. The action can be punished. If you’re writing an unpopular opinion piece (even a racist one) in the school paper, that’s still just speech.
Timex
1975
But it does have to do with the content, because you aren’t trying to prevent everyone from shouting anything in public. You are taking offense at what they are shouting, specifically due to its content, and trying to censor it due to that impact of that content upon others. If someone shouted, “Hey Dan!” While driving down the street, you wouldn’t find anything wrong with that. Thus, it definitely is about the content.
Shouting things is also still speech. Your suggestion that it somehow transcends speech and goes into “action” isn’t something which is supported by any sort of case law, I do not believe.
If someone is not being harassed, they have no complaint to make about harassment. The harassment is the action, not the shout.
As far as courts supporting it, from one of the cases linked to above:
The College’s Statement of Rights, Freedoms, and Responsibilities of Students contains, as we have seen, an explicit statement with respect to campus disruption. The regulation, carefully differentiating between advocacy and action, is a reasonable one, and petitioners have not questioned it directly. 21 Yet their statements raise considerable question whether they intend to abide by the prohibitions contained therein. 22 [408 U.S. 169, 192] - See more at: http://caselaw.findlaw.com/us-supreme-court/408/169.html#192
Note - that case was about some students trying to open a chapter of a fraternity that was notorious for disruptions on campuses. The courts vacated the support of the school banning it because the logic used to support the school was wrong (they failed to acknowledge the First Amendment aspect), but remanded it to the lower court for reconsideration because SCOTUS "cannot conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations "
Timex
1977
If someone is not being harassed, they have no complaint to make about harassment. The harassment is the action, not the shout.
But the problem you will run into with this rationale is that the harassment consists entirely of a person expressing their beliefs. There is no action taken beyond that, on their part.
There are limits on what constitutes protected speech, but saying things that make other people feel bad is not outside that realm of protected things. Unless those statements can be reasonably construed as leading to imminent illegal action, then they are protected by the first amendment. It doesn’t matter if they make you feel uncomfortable.
Simply labeling speech as harassment doesn’t sidestep the first amendment.
Edit - I’m not arguing what is and isn’t protected speech. I’m talking about a school’s ability or inability to affect consequences on specific usages of it (in a similar manner that was already acknowledged that an employer can, just through different methods).
Let me try another angle: sexual harassment. That’s actually against the law regardless of any code of conduct. Importantly, it can still be “just speech.” However, the act that is undertaken with the speech is actually illegal. It’s the act which is able to be addressed by courts. The individual words are not against the law. Writing them down or speaking them aloud is not against the law. However, using the words to harass another person is against the law. If you sexually harass other students, I’m pretty sure the school can discipline you. I don’t think you’d argue against that (I may be wrong, and if so then I’ll back up).
With that in mind, I will pose the following question:
What is the functional nuts-and-bolts difference between sexually harassing someone and harassing someone because of their ethnicity?
Timex
1979
There are actually many reasons to believe that many anti harassment laws actually are unconstitutional.
Generally, they can be considered a subset of fighting words, and end up having to be interpreted as such.
R.A.V. held that proscribable categories such as fighting words would, to a large extent, be treated as conduct rather than speech: “[T]he exclusion of fighting words' [and other proscribable categories] from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially anonspeech´ element of the communication.” 34 The government may punish fighting words because of their tendency to cause a fight, though not because of the “hostility – or favoritism – towards the underlying message expressed.” 35
The R.A.V. dictum thus reaffirms a basic principle: When a law is violated by the nonexpressive impact of speech, or by the proscribable impact of proscribable speech, then applying it to the speech will not require the strictest First Amendment scrutiny. But as Hustler v. Falwell, NAACP v. Claiborne Hardware, and the antidraft speech example show, protected speech may not be punished because of its communicative impact, even if the punishment is accomplished through a general law.
Harassing speech in the workplace, even when seen as a violation of the general ban on creation of work environments hostile to particular groups, 36 violates this ban precisely because of its communicative impact. Just as it was the communicative impact of the offensive parody in Hustler that inflicted emotional distress on Jerry Falwell, and the communicative impact of the boycott advocacy that hurt Claiborne Hardware’s business, so it is the communicative impact of verbal workplace harassment that creates a hostile work environment for its victims. The fact that Title VII does not specifically mention speech cannot immunize it from First Amendment scrutiny when it operates to restrict speech because of the offensive or disfavored message the speech conveys.
Edith Jones of the Fifth Circuit, writing (also in dictum) in DeAngelis v. El Paso Mun. Police Officers’ Ass’n, had it right:
The Supreme Court’s offhand pronouncements [about harassment law] are unilluminating. . . . The Court’s pronouncement in R.A.V., that “sexually derogatory `fighting words,´ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices” does not mean that Title VII trumps First Amendment speech rights. Rather, as the next sentence in R.A.V. explains, conduct not targeted on the basis of its expressive content may be regulated. Citing R.A.V., the Court in Wisconsin v. Mitchell, 113 S. Ct. 2194, 2200 (1993), reiterated that conduct not targeted on the basis of its expressive content may be regulated by Title VII. However, application of Title VII to the “conduct” in the case sub judice [which involved sexist newsletter articles] would do precisely that – regulate speech on the basis of its expressive content. 37
R.A.V. suggests that the Supreme Court is sympathetic to the aims of harassment law. Quite likely it would be willing to stretch First Amendment doctrine to allow regulation of some harassing workplace speech, which is what I to some extent propose. But this sympathy for harassment law does not mean that the Court would uphold all of harassment law’s speech restrictions under all circumstances, especially those that are far from the “fighting words” context in which the R.A.V. dicta arose.
magnet
1980
I believe that a single incident does not constitute sexual harassment, with the exception of quid pro quo (promoting benefits in exchange for sex).
