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Free speech intimidated by harassment charges
© St. Petersburg Times, published February 25, 2001 For more than a decade, the First Amendment has been nudged aside by the term "harassment." In schools especially, the goal of avoiding sexual, racial, ethnic and religious harassment claims by students has provided the impetus for administrators to restrict ever-more innocuous forms of speech, from slurs to jokes, from insults to compliments. Today, the idea of free speech being a rough-and-tumble marketplace where anything goes -- the only way of keeping government from dictating what is acceptable -- has been replaced by knitted-brow concern over offensive speech and the alleged harms it causes. The political left has convinced itself that the ability to waltz through life without hearing a discouraging word is more important than free speech and, for the most part, the courts have been willing to go along. But that may finally be about to change. A ruling earlier this month by a federal appellate court recognized there are limits to how far a school district can go in controlling offensive speech in the name of preventing harassment. The 3rd U.S. Circuit Court of Appeals ruled that the anti-harassment policy of the State College Area School District in Pennsylvania was unconstitutionally broad, violating the First Amendment rights of students. The case was brought by David Saxe, an associate professor in the education department at Pennsylvania State University and a member of the Pennsylvania State Board of Education, on behalf of himself and two students in the district. They all claimed to hold the belief that homosexuality is a sin and said because the policy prohibited students from making negative comments about another's "values," it restrained their right to speak out and distribute information on "the sinful nature and harmful effects of homosexuality." Bryan Brown, attorney at the conservative American Family Association Center for Law and Policy, who represented Saxe and the students, said the policy limited the exchange of ideas. "You could be punished," said Brown, "if you said anything negative about a national culture. So if you said something positive about female circumcision that was okay. But if you said that the continued practice of the ritual in Somalia was an outrage, you could be taken the next day to the thought police in the principal's office to have your mind scrubbed." Refreshingly, the appellate court saw the point. In a statement that should be required reading for every public school administrator, the court said a school district can't ignore student free speech rights merely by labeling whole categories of expression "harassment." "(There is) no question," wrote Judge Samuel Alito Jr. for the majority, "that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs. . . . When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications." Are courts finally beginning to get it? Are they finally realizing that free speech and verbal harassment rules are on a collision course? Public schools within the 3rd Circuit's jurisdiction -- Pennsylvania, New Jersey and Delaware -- are now in an impossible legal predicament. They can be sued under federal law for student-on-student harassment, but by erecting broad rules against belittling another they can be sued for running afoul of the Constitution. While not every incident of schoolyard name-calling constitutes actionable harassment, relatively trivial incidents taken together can be used to form the basis of a lawsuit. To protect against such liability, every untoward remark has to be sanctioned as if it were harassment -- a policy that would surely violate student free speech. But the First Amendment isn't the bad guy here, it's the hero. Which is more pedagogically valuable: a copesetic school environment obtained through censorious rules or allowing students to engage in frank, open exchanges of views and ideas? Forced tolerance is its own form of intolerance. And today's liberal orthodoxy that wants rules protecting everyone's feelings from ever being hurt is as repressive and unenlightened as any Religious Right moralist who plucks books off a school's library shelf. What happened to the schoolyard chant about "sticks and stones . . ."? It's been supplanted by lawyers, litigious students and warm and fuzzy school personnel.
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