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A large coalition of advocacy groups has asked the U. Department of Education Office for Civil Rights to pressure colleges to (1) punish students for their speech and (2) block student access to certain Web sites — especially sites such as Yik Yak, which allow students to anonymously post their views.
Now, some of the speech that the groups mention consists of true threats of violence, including threats of attack and even rape. (Indeed, some of it — threats against people for speaking, for instance, in support of feminist causes — itself attempts to suppress speech.) It is rightly criminalized and can certainly be punished.
But the letter goes very far beyond just calling on universities to punish threats.
(There is no “hate speech” exception to First Amendment protection.) But despite that, the coalition is arguing that the speech should be restricted precisely because of the viewpoints it expresses, and the offense and “hostile environment” that those viewpoints cause.
The coalition is citing an earlier Office for Civil Rights statement that, to be prohibited, “harass[ing]” speech “does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.” And the coalition is calling for the OCR to pressure universities (over which it has power, given its ability to cut off funding to universities) to, among other things, Of course, if Yik Yak and the other applications listed in the letter are banned from campus networks — which would, of course, block access to all speech on the applications, whether the speech is threatening or not — then either (1) the ban will be ineffective, given students’ ability to access those sites from their own cellular devices or (2) the speech will migrate elsewhere, onto new applications.
Presumably universities would then need to ban access to those applications as well, running a constantly expanding Great Firewall of American Higher Education.
And since many states ban discrimination in education based on religion and sexual orientation as well as race and sex, the logic of the coalition’s arguments would equally apply to speech that harshly criticizes certain religions or sexual orientations. standard applicable to K-12 education — “institutions may regulate or restrict student speech.” But though the Supreme Court cited this Tinker language in the college context, in Healy v.
(The second-to-last example I quoted from the coalition letter already implies this; and the first example shows that the coalition’s objections aren’t just limited to epithets but also include social and political arguments.) The coalition’s letter dismisses the First Amendment objections to this scheme as “vague First Amendment concerns.” “[T]he First Amendment does not prevent schools from taking action to eliminate sex- and race-based harassment, whether that harassment occurs in-person or online.” “Once a verbal act ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,’” the coalition says — quoting the Tinker v. James (1972), the court in Healy made clear that [T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.
And since then, the precedents have become even clearer. Board of Curators (1973), the court noted that Healy endorsed a university’s “authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination” (“time, place, and manner” restrictions is a label for content-neutral restrictions on speech) and not restrictions on speech of a “disapproved content” (emphasis in original).
Likewise, the court in Papish concluded that “the First Amendment leaves no room for the operation of a dual standard in the academic community” — i.e., one that is more restrictive than outside colleges — “with respect to the content of speech.” Most recently, the court held in Christian Legal Society v.
Martinez (2010), even speech said within government-funded and government-supported student groups is fully protected, notwithstanding whether it is “discriminatory”: Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers [i.e., the government may require that the student groups admit all students], they may express any viewpoint they wish — including a discriminatory one.
Today’s decision thus continues this Court’s tradition of “protect[ing] the freedom to express ‘the thought that we hate.’” Yet another example of today’s Anti-Free Speech Movement for American universities — unfortunately, one that fits well into the Education Department’s attitudes.