[0771] sethf@ATHENA.MIT.EDU MIT_harassment 04/15/93 00:47 (151 lines) Subject: Re: Build your own harassment policy "Fight Back" is not a great source. A far better source is the primary materials stored on the anonymous-ftp site ftp.eff.org (192.88.144.4) (look in pub/academic/law). The following, from the README file, are some of the more interesting documents there (my comments and some excerpts in brackets). Reading through some of these tonight, I'm much more convinced that there is a basic intellectual swindle taking place in some advocacy. The conflation of dirty jokes and rape brings all the punishments and liabilities concerned with the latter against the former. The proponents talk about the state of the law, but conveniently omit the limiting factors that make their definition very different from the legal one. By the way, after this reading, the Bitran verdict made a lot more sense to me. cohen-v-california.1 * Expression -- Offensive -- Cohen v. California -- 1 Definition of "fighting words"; why no right not to be offended The definition of fighting words from _Chaplinsky v. New Hampshire_ and then _Cohen v. California_. Also, says quotes the Supreme Court saying that there is no universal right to not hear offensive expression. doe-v-u-of-michigan * Expression -- Hate Speech -- Doe v. U of Michigan This is Doe v. University of Michigan. In this widely referenced decision, the district judge down struck the University's rules against discriminatory harassment because the rules were found to be too broad and too vague. keyishian-v-board-of-regents * Constitution -- Public University -- Keyishian v. Board Of Regents In this Supreme Court case, the Court said that public universities can not infringe on the Constitutionally protected rights of their students and employees (specially with regard to loyalty oaths). meritor-v-vinson * Expression -- Harassment -- Meritor v. Vinson This is Meritor Savings Bank FSB v. Vinson. This is the Supreme Court decision that recognized illegal sexual harassment in the form of a "hostile environment" at the work place. It is referenced in the two university speech code decisions. [I went and read this. It turns out the "hostile environment" they're talking about is not the ideological one of having pin-ups around, but "According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions."] obscenity.history.us * Expression -- Obscenity -- History -- U.S. Notes on the the history of obscenity law by T.S. Davies, tsdavies@mailbox.syr.edu. Based on the book by Edward de Grazia: 1992 _Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius_. New York: Random House. (ISBN: 0-394-57611-X, $30.00) rav-v-st-paul.1 * Expression -- Hate Speech -- RAV v. St Paul -- 1 The Supreme Court's _R.A.V. v. City of St. Paul_ decision about hate crimes. The Court overturned St. Paul's Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." By 9-0, the Court said the law as overly broad. By 5-4, the Court said that the law was also unfairly selective because it only tried to protect some groups. Included: summary, majority opinion, 3 concurring opinions. uwm-post-v-u-of-wisconsin * Expression -- Hate Speech -- UWM Post v. U Of Wisconsin The full text of UWM POST v. U. of Wisconsin. This recent district court ruling goes into detail about the difference between protected offensive expression and illegal harassment. It even mentions email. It concludes: "The founding fathers of this nation produced a remarkable document in the Constitution but it was ratified only with the promise of the Bill of Rights. The First Amendment is central to our concept of freedom. The God-given "unalienable rights" that the infant nation rallied to in the Declaration of Independence can be preserved only if their application is rigorously analyzed. The problems of bigotry and discrimination sought to be addressed here are real and truly corrosive of the educational environment. But freedom of speech is almost absolute in our land and the only restriction the fighting words doctrine can abide is that based on the fear of violent reaction. Content-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands." [Good stuff, for example: "(8) The University of Wisconsin--Oshkosh disciplined a female student under the UW Rule for referring to a black female student as a "fat-ass nigger" during an argument. See id., Ex. C. The university found that the student violated the rule and another provision of the student code. See id. The student, who was already on disciplinary probation, was required to view a video on racism and write an essay and a letter of apology and was reassigned to another residence hall." Note wesommer's point in #770 is actually addressed: "The Board correctly states Title VII law. However, its argument regarding Title VII law has at least three difficulties. First, Title VII addresses employment, not educational, settings. Second, even if Title VII governed educational settings, the Meritor holding would not apply to this case. The Meritor Court held that courts should look to agency principles when determining whether an employer is to be held liable for its employee's actions. See id. Since employees may act as their employer's agents, agency law may hold an employer liable for its employees actions. In contrast, agency theory would generally not hold a school liable for its students' actions since students normally are not agents of the school. Finally, even if the legal duties set forth in Meritor applied to this case, they would not make the UW Rule constitutional. Since Title VII is only a statute, it cannot supersede the requirements of the First Amendment." ] young-conservatives-v-sau * Expression -- Offensive -- Young Conservatives v. SAU A UPI story that tells how Stephen F. Austin University originally banned a group's "sexist" flyers, but when challenged, the ban was lifted and a cash settlement was given to the students whose free-speech was violated by the ban. [ "Young Conservatives of Texas hung fliers featuring a startling quote from former Republican Sen. Barry Goldwater. It read, ``SEX and politics are a lot alike. You don't have to be good at them to enjoy them.''" "Officials at the Nacogdoches school called the fliers sexist and tried to bar the group from posting them." Remember, we keep hearing that these regulations *won't* be abused ...] --[0771]-- (pref = [0770], nref = [0774])