A Multicultural Sorority?

[MysticCat]

Originally Posted by Kevin

Quick research brought me to a case wherein Sigma Chi was sanctioned by George Mason University for having an "ugly woman" contest. . . . . The citation is 993 F.2d 386 (4th Cir., 1993) if anyone cares.

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.

Originally Posted by Kevin

Speech isn't one of those aspects unless the speech is obscene, child porn, constitutes a "clear and present danger" (see the Holmes test), etc. This sort of thing isn't on that list of exceptions. We have the right as individuals and groups to offend one another, be it through racially inflammatory speech or almost anything else. Otherwise, there are a lot of kids at Cal-Berkley who should probably be in prison.

It is that cut and dry. Really. Especially in this case.

Really, it's not.

Originally Posted by Kevin

In the real world, but for a narrow set of categories, any state action restricting speech gets strict scrutiny.

Originally Posted by Kevin

I have no agenda except to say that content based restrictions on free speech are subject to strict scrutiny which means that the University doesn't have the legitimate power to do this.

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.

You don't have a right not to be offended.

On this, we completely agree.

[Kevin]

Originally Posted by MysticCat

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.

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?

[AOE2AlphaPhi]

Originally Posted by Kevin

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.