Yeah but you have no right to type "kkkhall." :) You're like a KKKrappa on kkkrack.

it's my kkkonstitutional right to kkkall it what i want.




but anyhow, i had kkkheese today on my sandwikkkh, and i'm lakkktose intolerant. now i gotta kkkrap.

If we don't champion the right to speech we find to be offensive, and the ugly woman contest, fwiw, to me, is offensive as hell, then we risk losing that right. We cannot allow the government to be in a position where it gets to draw the line as to what is good and what is bad when it comes to speech. That line drawing is left to the public at large.

Now.. if the Native group wants to protest, condemn, write letters to the editor, write to Gamma Phi Beta's National, taunt, hold rallies, etc., then good for them. Gamma Phi Beta should have to face the consequences of their speech if indeed it was offensive, but those consequences can't flow from any governmental institution.

As for the "Redskin Party," the ability to have it is important where actually having it -- that'd probably be a pretty dumb thing to do. The reaction of the public to such an event would be a better indicator than anything else as to how far we've come.

Condemnation for insensitivity is fine. Social probation ain't.

(in a world where the University refused to overstep, that is). As it is, the chapter seems to be trying to smooth over their public image and take corrective action because they want to appear sensitive to how outsiders perceive them.

I don't think social probation which was initiated just a few weeks before finals is really that big a deal.

Kevin, you do have to take into account that this is the Fourth Circuit, which tends to be much more conservative on First Amendment issues (and just about everything else) than most if not almost all other circuits.

Iota Xi is also not quite on the all-fours you seem to want it to be. There, the court considered what the chapter did to be "live entertainment," and it specifically applied the standards for live entertainment, where almost everything short of obscenity is protected. The issue the court decided was whether what the chapter did should legally be considered a performance. That's what the Court decided, and note that Judge Murnaghan (what a character!) wrote seperately to say that while he concurred in the result, he thought the majority set too broad a rule. He would have said that the University was out of luck for punishing the chapter post hoc after giving tacit approval for the performance. He then goes on to describe why the majority went too far.

I don't think the outcome of a lawsuit in this case is as open and shut as you seem to.

Really, it's not.

Just because it's subject to strict scrutiny doesn't mean the University doesn't have the legitimate power to do what it did. It just means that a compelling state interest must be shown and the state action must be narrowly tailored to further that compelling state interest.

I'm not saying that UND would meet that standard in this case. I don't have an opinion one way or another -- years of practice have taught me that it's useless, if not irresponsible, to try to form an opinion on something like this when I have nothing but a few newspaper articles to go on. Who knows how accurate the articles are, and who knows other information there is that the article doesn't contain.

But again, I think you're making this more cut and dry then it is in the real world.
On this, we completely agree.

You know you're in strict "ch sound" violation right now. :p

No.

This is another thing that you are trying to make black and white when it isn't. There are all sorts of things that can be found offensive (comedians, advertisements, etc.) but not all potentially offensive things are conceived and received equally.

Dance my puppets.....dance!

I hate him. Really, I do.

but wait, the kkkrappas said it was okkkay.

So you could make an argument for an ex post facto ad hoc review of speech to determine whether a group should be sanctioned for the content of their speech could pass strict scrutiny and keep a straight face?

Let's apply strict scrutiny.

Is the action narrowly tailored? Sure isn't -- in fact, it's amorphous and the power being asserted is seemingly limitless. If the University can impose social suspension because someone was offended, where does it draw the line?

Is there a compelling governmental goal? I think the school would assert that providing a safe and comfortable learning environment is a compelling governmental goal. Unfortunately, for them, the ability to do whatever they want on an ad hoc basis is not the least restrictive means available for them to accomplish their goal.

If the school is instituting social probation pending a review, they imply that the punishment could be more than social probation. There's nothing in the student code of conduct which allows this sort of action by the University. In fact, assuming that we can classify this apparel as "speech," the university has a policy in the Code of Conduct, (I read it) stating that the University powers won't be employed to inhibit speech.

I guess the University could argue that this wasn't speech at all, but how many times have we seen the Supreme Court hold otherwise regarding apparel being speech?

One of the first things you learn in a law class is that if you apply strict scrutiny 99% of the time whatever you're dealing with is unconstitutional. The issue is that the courts don't always use that standard, and it's difficult to predict when they will.

Real life is not a constitutional law final. Constitutional law is never black and white.

Kevin, you're in no position to be making clear-cut, black-and-white determinations. Even if you were a licensed, practicing attorney you wouldn't be. But you're not licensed, you're not practicing and your practical experience is as a law clerk in family law.

For instance, you posted this:
That is simply not true in reality. Very very rarely does anyone get sanctioned by the court for filing a "frivolous" action. You made an absolute statement "they can count on being sanctioned" without anything to back it up. What you personally think is "frivolous" is not necessarily what a court would deem frivolous. Especially a district court, where any federal action would be filed. This is a great example of you talking out of your ass in absolute terms and having no authority for what you're saying.

Thanks to Mysticat for helping you prepare for your con-law final. I don't have time to do the Lexis research (nor do I have a free account like you do) nor do I have time to check up on your citations. However, I will say that you need to stop talking out of your ass in such absolute terms and saying what a court will or will not do on a myriad of claims. You don't know, nor does anyone else know for certain.

Thank God. That class was a nightmare.

This discussion is why SWTX made the moral vs. legal distinction. My head is exploding. Kevin is talking about court cases as support for a university's inability to regulate student conduct (student organizations included).

Are university regulations always an issue of legality or are many of them attempts to take "moral stances" and hold students accountable? This situation isn't like students being expelled from college for an honor code violation--that seems to be a university regulation that holds more legal significance. So an organization that takes social probation (or whatever university imposed sanction on the organization) to court may have made it more of a legal issue than it initially was.

And I think that's exactly why he's doing it - to make your head explode. The vast majority of GC cannot argue back because he's using a lot of legalese and trying to input various standards, etc. It's a diversion from an actual discussion about what happened and people's feelings about it.