John - The First Amendment

The First Amendment
(John Speaking)

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Malik

A grad student has filed a law suit against the university claiming that the anti-harassment policy violates his First Amendment rights. He's got the ACLU on his side. This is BIG! The precedent set here will influence universities all over the country.

I've been reading up on the history of interpretations of the First Amendment. Current First Amendment doctrine is a fairly recent development. Over the past 75 years the Supreme Court has constructed the current interpretation. The Court does not take an "absolutist" position. In other words, it does not hold that all speech is protected anywhere and all the time. Furthermore, not all speech receives the same degree of protection under the current doctrine. There are at least two levels of protection. The highest level includes, but is not limited to, political ideas. The lower level includes commercial speech and speech that is obscene.

At the highest level:

Government, including the federal, state, and local governments, cannot restrict speech merely because it has been determined to cause or tend to cause harm.
Government cannot restrict speech on the basis of content or viewpoint.
Government can establish reasonable restrictions on the time, place, and manner of speaking. These restrictions cannot be a cover for restrictions based on content.
There are certain exceptions to these rules which have been upheld in some cases; but they are narrowly defined and must be very carefully argued.

If the university is going to win, it will have to argue that universities are a special case. The ACLU has recent trends on its side. But this isn't and open a shut deal. What do you think?

Reference: For a history of hate speech from an ACLU perspective, see Samuel Walker Hate Speech: the History of an American Controversy. Walker believes that it has been the constant pressure and argument from the ACLU, combined with the absence of any similarly committed organization on the other side, that has given us the current interpretation of the First Amendment. For arguments defending the constitutionality of campus speech codes and broader legal restrictions on racist speech or hate speech, see Words That Wound and Only Words and The Price We Pay. For arguments from an ACLU perspective, see Nadine Strossen "Regulating Racist Speech on Campus: A Modest Proposal." For a more extensive discussion from a similar perspective, see "A Libertarian Critique of University Restrictions of Offensive Speech" by David McGowan and Ragesh Tangri.

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		The First Amendment (John Speaking)
						MAIN PATH: Malik
						Malik

The First Amendment (John Speaking)

The First Amendment
(John Speaking)