AOH :: PT-1193.HTM

Judge Alito, Supreme Court nominee and First Amendment maximalist

Judge Alito, Supreme Court nominee and First Amendment maximalist
Judge Alito, Supreme Court nominee and First Amendment maximalist

[Summary: A public school in Pennsylvania adopted a policy saying that
students can't say anything that may "offend" anyone else in certain
ways. Students' legal guardian sued, saying that policy violated the
First Amendment. The 3rd circuit agreed in a 3-0 decision written by
Judge Alito. Poorly-formatted excerpt follows. --Declan] 

We disagree with the District Court's reasoning. There is
no categorical "harassment exception" to the First
Amendment's free speech clause. Moreover , the SCASD
Policy prohibits a substantial amount of speech that would
not constitute actionable harassment under either federal
or state law.

There is of course no question that non-expressive,
physically harassing conduct is entir ely outside the ambit of
the free speech clause. But there is also no question 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. See, e.g., Brandenburg v.
Ohio, 395 U.S. 444 (1969); Cantwell v. Connecticut, 310
U.S. 296 (1940). 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. "Where pure
expression is involved," anti-discrimination law "steers into
the territory of the First Amendment." DeAngelis v. El Paso
Mun. Police Officers' Ass'n, 51 F.3d 591, 596 (5th Cir.

This sort of content- or viewpoint-based restriction is
ordinarily subject to the most exacting First Amendment
scrutiny. This point was dramatically illustrated in R.A.V. v.
City of St. Paul, 505 U.S. 377 (1992), in which the Supreme
Court struck down a municipal hate-speech or dinance
prohibiting "fighting words" that ar oused "anger, alarm or
resentment on the basis of race, color, creed, religion or
gender." Id. at 377. While r ecognizing that fighting words
generally are unprotected by the First Amendment, the
Court nevertheless found that the ordinance
unconstitutionally discriminated on the basis of content
and viewpoint:

        Displays containing some words--odious racial
        epithets, for example--would be prohibited to
        proponents of all views. But "fighting wor ds" that do
        not themselves invoke race, color, cr eed, religion, or
        gender--aspersions upon a person's mother, for
        example--would seemingly be usable ad libitum  in the
        placards of those arguing in favor of racial, color, etc.
        tolerance and equality, but could not be used by that
        speaker's opponents.

Id. at 391. Striking down the law, the Court concluded that
"[t]he point of the First Amendment is that majority
preferences must be expressed in some fashion other than
silencing speech on the basis of content." Id . at 392.

Loosely worded anti-harassment laws may pose some of
the same problems as the St. Paul hate speech ordinance:
they may regulate deeply offensive and potentially
disruptive categories of speech based, at least in part, on
subject matter and viewpoint.

Certainly, some of these purported definitions of
harassment are facially overbroad. No one would suggest
that a school could constitutionally ban "any unwelcome
verbal . . . conduct which offends . . . an individual because
of " some enumerated personal characteristics. Nor could
the school constitutionally restrict, without more, any
"unwelcome verbal . . . conduct directed at the
characteristics of a person's religion." The Supreme Court
has held time and again, both within and outside of the
school context, that the mere fact that someone might take
offense at the content of speech is not sufficient
justification for prohibiting it. See T inker, 393 U.S. at 509
(school may not prohibit speech based on the"mere desire
to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint");  T exas v. Johnson,
491 U.S. 397, 414 (1989) ("If there is a bedrock principle
underlying the First Amendment, it is that the gover nment
may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable.");
Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly
settled that . . . the public expression of ideas may not be
prohibited merely because the ideas ar e themselves
offensive to some of their hearers."); see also Doe v.
University of Michigan, 721 F. Supp. 852, 863 (E.D. Mich.
1989) (striking down university speech code: "Nor could the
University proscribe speech simply because it was found to

In short, the Policy, even narrowly read, prohibits a
substantial amount of non-vulgar, non-sponsor ed student
speech. SCASD must therefore satisfy the Tinker test by
showing that the Policy's restrictions ar e necessary to
prevent substantial disruption or inter ference with the work
of the school or the rights of other students. Applying this
test, we conclude that the Policy is substantially overbroad.

As an initial matter, the Policy punishes not only speech
that actually causes disruption, but also speech that
merely intends to do so: by its terms, it covers speech
"which has the purpose or effect of " interfering with
educational performance or creating a hostile environment.
be offensive, even gravely so, by large numbers of people.").

This ignores Tinker's requirement that a school must
reasonably believe that speech will cause actual, material
disruption before prohibiting it.

The Policy, then, appears to cover substantially mor e
speech than could be prohibited under T inker's substantial
disruption test. Accordingly, we hold that the Policy is
unconstitutionally overbroad.

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