Free speech issue at Penn State

[James Maule]

I, too, wonder about this, especially the practicalities of protecting or repressing speech. The hecklers' comments are indeed silly, somewhat crude (by today's standards), and far from intellectually constructive. So what? The comments are also something else, something that is very important. The comments are revealing. They are an announcement. They are a warning.They are in essence, a message that says, "If you visit this abode, you most likely will encounter this sort of mentality (or at least, from *some* of the people living or hanging out here you will hear comments of this sort)." This permits a decision to visit or refrain from visiting. It's always much nicer when wolves look like wolves and aren't in sheep's clothing. Of course, some people prefer to run with wolves, others prefer to herd sheep. Punishing wolves or sheep for being truthful about their clothing seems far more damaging to those who need to know than are the words of the hecklers' announcements.

I've never quite understood the suppression of speech that is a legitimate warning. Then, again, I've never quite understood the justifications for repression generally.



Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
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>>> VOLOKH at mail.law.ucla.edu 04/28/01 10:30PM >>>
        Wow -- I'd thought that the responses to my hypo would be "Of course
it's protected speech, the claims of harassment are silly, why are you
dragging this out when it's clearly just an anomalous overreaction that
casts no useful light on any broader legal analysis?"  I'm glad to see
confirmation that this sort of speech is indeed seriously in jeopardy.

        On the other hand, I'm rather puzzled by Prof. Ware's analysis.
Here we have a march, presumably by dozens of people, loudly expressing a
political viewpoint.  Four or five hecklers shout a pretty vulgar and silly
response, but one that's obviously meant as an attempt to mock and show
contempt for the marchers' view.  Seems to me like quintessentially
constitutionally protected speech (at least in the absence of some sort of
content-neutral, evenhandedly applied rule barring any audible responses to
any marchers).

        Whatever one might think of Prof. Ware's hypo, I just don't see
quite how it's apposite here.  We don't have 5 hecklers to 1 speaker -- if
anything, I suspect that the ratio is the exact opposite.  We don't have any
evidence that the speakers' position or size was physically menacing.  We
don't have any evidence of the hecklers "surround[ing]" the speaker.

        Am I missing something here?  Isn't this a quintessential example of
people being punished for expressing dissent against a majoritarian
political view (incidentally, a view [the marchers'] that I entirely agree
with)?  Conversely, if this speech by a small group of hecklers can be
punished on the grounds that it's somehow threatening, by a long slip down
the analogic slope from the five football players surrounding me, then
hasn't the "threat" exception to the First Amendment grown to a rather
alarming size?

        Eugene



Leland Ware writes:

>       Not protected speech in my view. Volokh always analyzes situations
> from
>       the perpetrator's perspective. The equality interests of the victims
> is
>       never given any weight. Suppose 5 black football players surrounded
> him
>       and made anti-white utterances. What would he think then?
>
>       "Volokh, Eugene" wrote:
>
>       >
>       >
>       >         Any thoughts on the item below?  (I realize that it's not
>       > clear from the material below whether the Interfraternity Council
> is a
>       > state actor, but the suggestion from the story is that the
>       > University's own student disciplinary system and even the police
> may
>       > get involved in this.)  Should the statements below be seen as
>       > "foster[ing] a hostile environment or fostering an environment
>       > facilitating sexual assault," and even if they are, are they
>       > nonetheless protected by the First Amendment?
>       >
>       >
>       >
> http://www.collegian.psu.edu/archive/2001/04/04-26-01tdc/04-26-01dnews-5.a
> sp:
>       >
>       >                                 Council looks into
>       >                                 harassment charges
>       >                                 Rally marchers were allegedly
> harassed
>       > by
>       >                                 fraternity members.
>       >
>       >                                 By Lindsay Bosslett
>       >                                 Collegian Staff Writer
>       >
>       >                                 The Interfraternity Council is
>       > investigating allegations that
>       >                                 several fraternity members
> harassed
>       > marchers at a "Take
>       >                                 Back the Night" rally.
>       >
>       >                                 Although many fraternities
> supported
>       > the marchers by
>       >                                 echoing chants and by lighting
> candles
>       > in the their house
>       >                                 windows, marchers overhead others
>       > chanting "No means
>       >                                 yes, now take off your dress!" in
>       > response to the
>       >                                 marcher's chant of "No means no,
> yes
>       > means yes,
>       >                                 wherever we go, however we dress!"
>       >
>       >                                 As the marchers stopped to form a
>       > circle, they said they
>       >                                 saw four to five men exit from the
>       > back door of Sigma
>       >                                 Alpha Mu fraternity, 329 E.
> Prospect
>       > Ave., make the
>       >                                 inappropriate chants and re-enter
> the
>       > house. . . .
>       >
>       >                                 Pilnick wrote Sigma Alpha Mu a
> letter
>       > regarding the
>       >                                 incident, to which the fraternity
>       > responded that their
>       >                                 members were not responsible for
> the
>       > action and were
>       >                                 insulted by the allegations. . .
>       >
>       >                                 On Monday, the IFC executive board
>       > passed a new
>       >                                 sexual harassment policy that will
>       > affect the procedures
>       >                                 taken if any of the Sigma Alpha Mu
>       > members are
>       >                                 charged.
>       >
>       >                                 "A girl who was sexually harassed
> at a
>       > fraternity house
>       >                                 came to us around winter break
>       > wondering what the IFC
>       >                                 could do to sanction an
> individual,"
>       > said Aaron Nye,
>       >                                 executive vice president of IFC.
>       > "While we can't sanction
>       >                                 an individual, her plea did make
> us
>       > reconsider our policy,
>       >                                 and we worked with many women's
>       > concern groups and
>       >                                 the Panhellenic Council to improve
>       > it."
>       >
>       >                                 If individuals are found guilty of
> the
>       > inappropriate chants at
>       >                                 the "Take Back the Night" rally,
> they
>       > will be referred to
>       >                                 the State College police and Penn
>       > State's Office of
>       >                                 Judicial Affairs.
>       >
>       >                                 If the entire chapter house is
> found
>       > to "foster a hostile
>       >                                 environment or fostering an
>       > environment facilitating sexual
>       >                                 assault" the chapter will be
> brought
>       > up before an IFC
>       >                                 disciplinary hearing board. If
> they
>       > are found guilty, the
>       >                                 house will receive sanctions
> ranging
>       > from a $500 fine to
>       >                                 five weeks of social probation.
>       >
>       >                                 The house will also have to attend
>       > mandatory educational
>       >                                 programs on sexual assault/abuse
> and
>       > perform community
>       >                                 service in the Centre County
> Women's
>       > Resource Center. . . .
>       >