First Amendment traditions get 21st century tweak
By David L. Hudson Jr.
First Amendment scholar
05.28.10
A federal appellate judge’s simple solutions in a recent ruling for those confronted with repugnant e-mail messages — engage in debate or hit the delete button on your computer — have deep roots in First Amendment law. They involve the counter-speech doctrine and the “avert your eyes” rationale.
The underlying case involved Walter Kehowski, a math professor at Glendale Community College in Arizona who sent several racially tinged e-mails to his fellow district employees. His initial e-mail titled “Dia de la raza” asked, “Why is the district endorsing an explicitly racist event?” Kehowski later sent e-mails touting the superiority of Western civilization and similar themes.
A group of Hispanic employees of the Maricopa County Community College District sued the district and college officials for creating a hostile work environment in violation of Title VII, the leading federal anti-discrimination law, and the equal-protection clause of the 14th Amendment.
U.S. District Judge Earl H. Carroll denied the university defendants qualified immunity from the lawsuit. On appeal, though, a unanimous three-judge panel of the 9th Circuit reversed Carroll in its May 20 opinion in Rodriguez v. Maricopa County Community College District.
Chief Judge Alex Kozinski, writing for the panel, granted the defendants qualified immunity because he determined that Kehowski’s obnoxious e-mails did not constitute harassment. In his opinion, Kozinski spoke about viewpoint discrimination, academic freedom and other important First Amendment concepts.
Two of his most important free-speech themes he saved for the end of his opinion: “Those offended by Kehowski’s ideas should engage him in debate or hit the ‘delete’ button when they receive his emails. They may not invoke the power of the government to shut him up.”
The “engage in debate” rationale hearkens back to Justice Louis Brandeis’ famous concurring opinion in Whitney v. California (1927) — a case that involved the conviction of Charlotte Anita Whitney for her alleged role in Communist Party activity. Brandeis wrote: “If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Brandeis’ passage epitomizes the concept of the counter-speech doctrine — that the best response for government or individuals is to counter bad speech with good speech.
Kozinski’s “hit the ‘delete’ button” alternative represents a technological update to Justice John Marshall Harlan’s famous phrase in Cohen v. California (1971), an opinion written nearly 40 years ago. The case involved the prosecution of Paul Robert Cohen for wearing a jacket with the words “Fuck the Draft” in a Los Angeles courthouse. Harlan wrote: “Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”
Nearly everyone confronts some expression that he or she finds distasteful. Rather than censor the speech or file a lawsuit alleging harassment, perhaps people should consider the time-honored rationales of debating the negative speech or simply ignoring it.
