Alito on Free Speech

A 2001 Third Circuit opinion from Judge Alito supports even unpopular speech, even in schools:

We . . . have found no categorical rule that divests “harassing” speech, as defined by federal anti-discrimination statutes, of First Amendment protection. . . .

The public school policy governing speech was ruled overbroad:

[Advocates of the policy] could argue that speech creating a
“hostile environment” may be banned because it “intrudes upon . . . the rights of other students.” The precise scope of [the] “interference with the rights of others” language is unclear; at least one court has opined that it covers only independently tortious speech like libel, slander or intentional infliction of emotional distress. In any case, it is certainly not enough that the speech is merely offensive to some listener. Because the Policy’s “hostile environment” prong does not, on its face, require any threshold showing of severity or pervasiveness, it could conceivably be applied to cover any speech about some enumerated personal characteristics the content of which offends someone. This could include much “core” political and religious speech: the Policy’s “Definitions” section lists as examples of covered harassment “negative” or “derogatory” speech about such contentious issues as “racial customs,” “religious tradition,” “language,” “sexual orientation,” and”values.” Such speech, when it does not pose a realistic threat of substantial disruption, is within a student’s First Amendment rights.

Perhaps if this justice-to-be is so enthused about core political speech, there is hope for us yet.

Hat tip to Politech.

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Author:Ron Coleman

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