Oct. 30, 2017

CSU media law professor and 1st Amendment lawyer react

During the open forum, President Ronald Berkman mentioned the Supreme Court Case that protects hate speech. Legal views vary about this designation.

“The U.S. Supreme Court has on numerous occasions made it clear that First Amendment is not absolute, and some circumstances may call for time, place, and manner restrictions,” said Anup Kumar, Ph.D., an associate professor in the School of Communication who teaches Media Law and Ethics.

“In (the) case of this poster, it was not just offensive and reprehensible, which can be permissible legally, it was a security risk.”

In 1942, the U.S. Supreme Court established the fighting words doctrine by a 9–0 decision in Chaplinsky v. New Hampshire — a limitation to freedom of speech as protected by the First Amendment to the United States Constitution.

Fighting words are words that would likely make the person to whom they are addressed commit an act of violence.

Fighting words are a category of speech that is unprotected by the First Amendment.

“This is bullying,” Kumar said. “Not your classic case of viewpoints discrimination in public space. This sort of speech has no place on a campus.”

David Marburger, a First Amendment litigator, formerly with Baker and Hostetler, who now has his own firm Marburger Law LLC, said that a lot of what happened with the flier relates to the specific policy of Cleveland State University and the way the school chooses to use particular spaces for free speech.

“I see this at what they call a public forum problem — where the government opens up physical property for the purpose of speech,” said Marburger.

“What you call hate speech — it’s hard to say that hate speech can be disallowed when no one acts on it,” he added.

“And it doesn’t really have a call to action that people are likely to take seriously,” he commented.

Although this poster may not be considered a direct threat to action, it could still be within the university’s power to change policy surrounding posting policies, Marburger noted. 

This process could involve creating more specific rules and enforcements  for particular bulletin boards on campus.

Marburger said, “You might be able to limit what goes on those bulletin boards. Dedicate the bulletin boards to a particular purpose — the more pragmatic the purpose the easier is to police.”


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