When Free Expression Gets Expensive: Legalities, Liabilities, and Realities

Warren Binford, Ed.M, J.D.

Not unto ourselves alone are we born.
— Willamette University Motto

Americans love certain things. We love our cars. We love our guns and violence. We love our sex. We love our money. We love our freedoms; and of all of the freedoms we love, freedom of expression is our baby. In the words of former United States Supreme Court Justice Benjamin Cardozo, freedom of expression “is the matrix, the indispensable condition, of nearly every other freedom.”¹

When one reflects on the fact that the power of self-expression has given civilization the Magna Carta, Beethoven’s Ninth Symphony, the ceiling of the Sistine Chapel, the Reformation, and Van Gogh’s Starry Night, it is hard to argue with the belief that self-expression should be freely allowed, even at the cost of other cherished democratic values like equality, community, and civility. Indeed, we Americans love our free expression so much that we would rather tolerate hate speech,² virtual child pornography,³ pro-Nazi demonstrations,⁴ obscenities,⁵ and simulated “snuff” films,⁶ than restrict our nation’s favorite freedom.

Who am I to disagree? I love rolling f-bombs off my tongue as much as the next litigator. If things get a little heated in the halls of the local courthouse and a few colorful expressions are required to get my point across, I know that the United States Supreme Court is there to back me up in my moments of obscenity. This is, after all, America, the greatest democracy in the history of the world, right? If an African-American family in St. Paul, Minnesota, is terrorized by a burning cross on their front lawn, isn’t that just the unfortunate price that has to be paid for our freedom?7 After all, we are warned that restricting speech is a slippery slope and if we start to restrict the right of people like the members of the Ku Klux Klan and neo-Nazi organizations to commit iconic assaults on innocent families, some day we might lose our own right to launch f-bombs.⁸ And what kind of world would that be? I can only imagine.

We Americans swagger through life with the cocky assumption that we are free to say whatever we want, whenever we want, however we want, to whomever we want, and that we must tolerate others doing the same.⁹ We hurl our expressions into the “marketplace of ideas”¹⁰ and if someone objects, we urge them to be more tolerant.¹¹ We quote Milton: “Let [Truth] and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter” (Milton 1644)?

Unfortunately, free and open encounters are rare even when one does not insist, which one must, that there should be equality between the holders of truth and falsehood. As John Dewey observed:

The notion that men are equally free to act if only the same legal arrangements apply equally to all—irrespective of differences in education, in command of capital, and that control of the social environment which is furnished by the institution of property—is a pure absurdity (1940, 271).

If falsehood is being conveyed by media, corporations, and those in political power, and the person who conveys truth is a prisoner in Guantanamo Bay or an immigrant fieldworker in the Willamette Valley, is there anyone among us who sincerely believes that the latter will have the opportunity and power necessary for truth to prevail?

We only need to look to Germany’s tragic history to see the dangers of trusting the marketplace of ideas to identify and protect truth. An imbalance or concentration in power in the dissemination of ideas and values (especially when combined with a concentration in political control) can influence individuals to engage in or tolerate speech and conduct antithetical to truth. Thus we must, and do, regulate the public expression of ideas just as we regulate all markets where products of value are traded, from food to utilities to securities to words.

John Stuart Mill’s belief in social, legal, and self-restraints on liberty is based on his recognition that “every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct to the rest” (1986, 53). According to Mill, society is justified in enforcing “at all costs” the rights and interests of those who would be harmed or interfered with by another (53). Moreover, Mill asserts that society is entitled to punish “by opinion” one whose conduct hurts or is disrespectful of others, even if the conduct does not go so far as to violate “any of their constituted rights.” (85) Mill recognized that “[n]o person is an entirely isolated being,” and that as social creatures the liberty we so treasure must end at the point of harm to others—whether social, economic, or physical—and that society can properly exercise its power to prevent such harm (85-105). John Dewey went even further asserting that “The democratic idea of freedom is not the right of each individual to do as he pleases, even if it be qualified by adding Ôprovided he does not interfere with the same freedom on the part of others’” (1940, 341).

Contrary to the old adage, “Sticks and stones may break my bones, but words can never hurt me,” the truth is: we have the ability to harm others when we express ourselves. Words are used to harass, degrade, insult, abuse, deceive, rob, conspire, marginalize, and worse. If words were not such powerful tools of both good and evil, we would not go to such great lengths simultaneously to protect and restrict them.

Modern civilization has created entire systems of regulation that are born from and embodied in religious beliefs, social values, financial incentives and penalties, and legal restrictions and liabilities in an attempt to minimize the occurrence of expressions harmful to others.

All of the world’s major religions include teachings that warn against unbridled self expression. Both Judaism and Christianity teach the Ten Commandments, at least four of which directly or indirectly regulate freedom of expression:

• “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under earth.” (Ex 20:4 Authorized King James Version)
• “Thou shall not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain.” (Ex 20:7)
• “Honour thy father and thy mother…” (Ex 20:12 AV)
• “Thou shalt not bear false witness against thy neighbour.” (Ex 20:16AV)

Islam also regulates speech, treating lying and fraud as among the greatest sins (Sultan 2007, 126). The Qur’an warns that one must refrain from false speech or be shunned by Allah: “Truly Allah guides not one who transgresses and lies” (Ali 2000, 40:28).¹² “Speaking the truth and standing up for the truth, however, are qualities possessed by the people of righteousness” (Sultan 2007, 126).

The Tao Te Ching teaches that words can be false and misleading and should not be overvalued: “True words aren’t eloquent;/Eloquent words aren’t true./Wise men don’t need to prove their point;/Men who need to prove their point aren’t wise” (Mitchell 1988, ch. 81).¹³ Even when words are necessary, the Tao Te Ching basically advises us to state our peace and then sit down and be quiet (Mitchell 1988, ch. 23).

The Eightfold Path to self-enlightenment in Theravada Buddhism includes Samma Vacha, or Right Speech. The essence of “Right Speech” is described as:

…control, until our every word is courteous, considerate and true. All idle gossip and unprofitable talk must be stamped out. Silence should be so respected that the words which break it must leave the world the better for their birth. (Humphreys 1990, 110).

The Dalai Lama also teaches us “the ethic of restraint,” whereby we discipline our minds in order to exercise our freedom to “respond” in an ethical way, keeping others’ interests before our own (1999, 81-4). The ethic of restraint compliments his teaching of “universal responsibility,” where we recognize that each one of our acts has a universal dimension and that everyone has an equal right to happiness. If we develop a sense of our universal responsibility, we will “recognize the need to avoid causing divisiveness among our fellow human beings” (162-3).

Independent of religious teachings, modern social mores embodied in everything from etiquette books to the rules that govern kindergarten classrooms guide us through the minefield of self-expression. And we have plenty of laws that regulate self-expression. We ban speech that constitutes treason, fraud, defamation, harassment, criminal speech (speech involved in preparation for rape, murder, robbery, etc.), “fighting words,”¹⁴ conspiracy, solicitation, obscenity, and, of course, yelling “fire”¹⁵ in a movie theater when there is no fire, among others. If one moves beyond speech to include expressive conduct, one can identify thousands of illegal acts—from trespass to burning draft cards to murder—regardless of whether the intent was to convey a constitutionally protected message through the act. With so many restrictions on freedom of expression, we cannot argue that freedom of expression should be protected absolutely, and once we depart from absolutes, the questions become when, why, and how to regulate self expression in our society.

If one focuses first on when we restrict expression, we see that Americans’ love of money trumps our love of free expression. There seems to be little argument with our considerable restrictions on commercial speech. No one says that we should tolerate false advertising, price fixing, consumer fraud, or breached warranties and just allow truth and falsehood to grapple. Perhaps it is because the encounter in this case isn’t “free?” When the American Civil Liberties Union comes knocking at our doors soliciting contributions, I don’t recall them even once protesting compelled commercial speech such as truthin- lending requirements or securities filings, warning of the “slippery slope” we are likely to slide down: “Today it is Microsoft’s 10-K, Ma’am, tomorrow your right to protest for world peace.”

Why is it that we believe we should restrict or compel one’s words to prevent one from taking another person’s money unfairly, but not his or her dignity? Is it that money affects all of us, whereas hate speech is targeted at marginalized groups? Is there a darker side to our staunch defense of this freedom? Is it that we, the persons advantaged by the current social order, are not likely to be affected by the abuse of this freedom and so we are not willing to give up one lick of it, unless and until we are at risk of being victimized? Are we trying to dress up our efforts to defend a value that protects and perpetuates a social, economic, and political hierarchy built on biases such as racism, sexism, and class prejudice because we are the ones who benefit? If this is the greatest democracy in the world, committed to protecting the rights of all individuals, should we not prioritize the defense of those in our society who are most likely to have their individual rights trammeled upon?

Other democratic societies are openly striving to balance freedom of expression with additional democratic ideals such as dignity and equality. For example, Germany holds “human dignity” to be the “supreme Constitutional principle,” so that free expression is often subjugated when the two values collide. The basis for this principle lies in a cultural tradition that values honor and respect in society. Thus, one can neither defame nor insult another person regardless of ethnic heritage in Germany. Germany also suppresses certain types of speech, such as anti-Semitic and neo-Nazi speech, in light of the tragedy of the Holocaust (Krotoszynski 2006). Thus Google risked a criminal investigation for facilitating neo-Nazi propaganda by allowing users to upload anti-Semitic videos, and removed the offending videos at Germany’s request (Miller 2007).

Canada demonstrates a similar willingness to balance freedom of expression with other democratic values. While Canadians enjoy free speech protections that are similar to those espoused in the First Amendment of the United States Constitution, the Supreme Court of Canada has interpreted the Canadian Charter of Rights and Freedoms as giving priority to “equality and multiculturalism” over freedom of expression. Thus the Supreme Court of Canada upheld a hate speech statute that makes it a crime to promote hatred against any identifiable group.¹⁶ It also upheld an obscenity statute on the grounds of equality stating, “if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material.”¹⁷

It cannot be denied that there are dangers inherent in this approach, as exemplified by the fact that even “The Satanic Verses” by Salman Rushdie was interpreted by some as “hate speech” in Canada (Krotoszynski 2007). Nonetheless, when democratic ideals such as freedom of expression and equality and dignity appear poised to collide, we must have a hierarchy of values that takes into account both our society’s past and its future.

Here in the United States we have inherited a history rife with racism, sexism, xenophobia, and homophobia (along with a whole host of other “isms” and “phobias” that are too many to name, unfortunately). Certainly we have made some progress to right our nation’s path towards a more ideal democracy. Many federal, state, and local laws now prohibit discrimination based on race, color, religion, sex, national origin, age, sexual orientation, and disability.¹⁸ Unfortunately, we still have long way to go on our journey.

The remnants of slavery and segregation are glaringly visible in our inner-city schools where children can be found walking to class in hallways that smell of urine, without books to take home to complete their homework, sitting at broken desks next to filthy windows riddled with bullet holes. We deny immigrants a number of legal protections. We have no constitutional amendment expressly extending equal rights to women. The Convention on the Elimination of All Forms of Discrimination against Women was sent to Congress for ratification in 1980 and has not been seen or heard from since. We are the only recognized country in the world that has not ratified the Convention on the Rights of the Child other than Somalia (and Somalia has no organized government and so could not ratify the Convention even if it wanted to). Gays and lesbians continue to be denied the right to form legal families in most states.

This unfortunate history of denying equal rights to many members of our society is compounded by a future comprised of rapidly changing demographics and economics both in the United States and internationally. These changes are leading to social, ethnic, religious, and linguistic diversity at unprecedented levels. As globalization accelerates and economies become more integrated, the risk of social, cultural, ethnic, and religious conflict is heightened. Traditional social orders are being upset. Historically closed societies are being opened. Gender roles are being reversed. Caste systems are being questioned, and in some instances, disregarded. With so much social and cultural upheaval occurring throughout the world, it is more critical than ever for democratic societies to cherish and protect principles that will minimize violence, exploitation, humiliation, marginalization, and outright exclusion.

Responding to these changes, our society has taken some steps to protect at least the economic interests of women and minorities in recent years. For example, it is now clearly established that individuals are legally entitled to workplaces free of harassment and discrimination.¹⁹ Thus, women are no longer required to have sex with their supervisors to maintain their employment or tolerate pornographic posters of other women in full labial display at work. Although employers in some cases try to argue that the display of pornography at work is constitutionally protected expression, courts have seen it for what it is: sexual harassment.²⁰

Moreover, courts have extended liability for harassment and discrimination not just to the individuals who commit the acts, but to supervisors and employers as well. For example, an employer may be liable when a manager or supervisor harasses an employee or if the employer knew or should have known of the harassment or discrimination and failed to take corrective action.²¹ Thus, employers have significant incentive to create policies and procedures that strictly prohibit harassing and discriminatory speech and conduct.

Employer liability for the speech of its employees is not limited to workplace harassment and discrimination. Employers also face liability for misrepresentations (and material omissions) by its employees if made in the scope of their employment duties under a theory of vicarious liability. Under this theory, the employee is viewed as an agent of the employer. The words and actions of the employee can be imbued to the employer, and thus wrongful conduct of the employee can be viewed as wrongful conduct of the employer. This system creates incentives for employers to regulate adequately the speech and conduct of their employees in the workplace or face the risk of significant financial loss.

Third party liability for an individual’s speech is not restricted to the workplace. Parents, schools, publishers, and internet sites have all faced potential liability for the expressions or omissions of third parties. For example, the West Virginia Board of Education adopted a resolution requiring students to salute the United States Flag in the midst of World War II. If the students refused, they were deemed to be subordinate and faced expulsion. They would only be readmitted if they complied with the requirement that they salute the flag. Since absence from school was unlawful, charges would be brought against the both the child and his or her parents, who would be subject to a fine and a jail term.²²

This compelled speech was especially troubling to families who were Jehovah’s Witnesses because the salute and the pledge violated their religious belief that it is a sin to worship “graven images.” Thus they sued, alleging that the law violated both their First and Fourteenth Amendment rights. A federal district court agreed, enjoining the enforcement of the regulation and the Supreme Court affirmed.²³ The court recognized that a “clear and present danger” test (based on the principle that serious substantive harm must be imminent before expressions or omissions can be punished) must be applied.²⁴ However, nowhere was the appropriateness of holding the parents liable for their child’s choice of expressive conduct questioned by either court.

More recently, the tables were turned when the United States Supreme Court recognized that schools have an obligation to regulate not only the speech and expressive conduct of teachers and school employees to prevent harassment, but the speech of students as well. LaShonda Davis, a fifth grader in Georgia, was repeatedly sexually harassed by another elementary school student. The harassment included both sexually explicit remarks as well as groping of her breasts and genitals. Although the harassment was reported to a number of teachers and administrators, they failed to take sufficient corrective action. LaShonda’s grades suffered and she considered suicide at one point. Eventually, her mother brought a civil suit on LaShonda’s behalf arguing that Title IX obligates school districts to remedy instances of severe sexual harassment by other students, and the Supreme Court agreed. Thus, schools receiving Title IX funds now must regulate students’ speech during school activities to avoid instances of severe harassment or risk civil liability.²⁵

Similarly, publishers have faced potential liability for the advertisements placed by third parties in their publications. In one of the landmark decisions in First Amendment history, the New York Times was sued for libel by a city commissioner from Montgomery, Alabama at the height of the civil rights movement. The claim was based on a paid advertisement placed in the newspaper by a civil rights group called “Committee to Defend Martin Luther King.” After a brief trial, the jury returned a verdict of $500,000 against the Times and four individual black ministers connected with the advertisement. The Alabama Supreme Court affirmed the award.²⁶ However, the United States Supreme Court overturned the award, finding among other things that the newspaper’s failure to retract the ad and failure to check its accuracy did not constitute the “actual malice”²⁷ standard that must be met in libel suits involving a public official.²⁸ The Court later acknowledged that the choice of the term “actual malice” was an unfortunate one because the standard has nothing to do with hostility or ill will,²⁹ and suggested that the best practice would be for jury instructions to refer to publication of a statement with knowledge of its falsity or reckless disregard as to truth or falsity.³⁰ Implied by this ruling is that a publisher could be held liable if it publishes an expression by a third party that constitutes libel against a public official if the publisher shows reckless disregard as to the truth of the expression.

In the United States and abroad, internet service providers have all faced legal, political, social, or market liability for third party expressions facilitated by them. As noted above, Google faced the possibility of criminal investigation in Germany for hosting anti-Semitic videos. YouTube™ was pressured to take down recruiting videos for Al-Qaeda. Google™, Yahoo™, and Microsoft™, among others, have all had to adapt access to the content they provide in order to enter the China market because of regulations on freedom of expression in that country (Miller 2007). Recognizing the potential legal and economic consequences of facilitating “hate speech,” a number of internet service providers and websites now include warnings against hate speech in their terms of use with subscribers.

In other words, employers, parents, publishers, and internet providers have found that they may face potential financial or even criminal exposure not only for their own words, but for the expressions of others. This web of liability encourages members of society to rise above the allegorical standards of Pontius Pilate. Under the threat of vicarious liability, we cannot simply “wash our hands” of the speech of others—we are obligated to correct and sometimes even silence potentially harmful, if not illegal, speech because we have been made potentially vicariously liable for it.

Under this legal scheme, for example, a university cannot view itself simply as an institute of higher education, existing in rarefied air above and beyond the grit of unseemly sexual comments, racial slurs, and other embodiments of offensive speech that permeate our society. The university exists as a matrix. Its obligations include balancing its duty as an educational institution to protect and nurture the idealism of freedom of expression (being used by informed adults to advance moral, spiritual, and intellectual enlightenment) with its duties in other roles, such as employer, to ensure that individuals that try to harass or discriminate against others through expressive conduct are corrected, and sometimes silenced.

The difficulty of navigating these at times conflicting roles can be appreciated by imagining that it is spring semester 2007 and you are Lee Pelton, President of Willamette University. You are out of town on business and during a break in one of your meetings you receive an email advising you that your university campus is in crisis and an executive decision has to be made immediately.

Apparently a Willamette University student has displayed a number of mock lynchings of African-Americans, Asians, Jews, and Hispanics around campus. Members of the university community, including both employees and students, encountered these mock lynchings without warning as they arrived for work and school that day, including members of the ethnic groups represented. Understandably, many were shocked and upset by the vision they encountered. Indeed, that was the intended response.

If you were President Pelton, what would you do? Does it matter that Willamette University is also an employer, and that places of employment generally have a lower tolerance for freedom of expression? You recognize that as an employer, the university administration must ensure that a hostile work environment is not created. If the student were only a student, you could argue that the university is not liable for the student’s expressive conduct (although even then the university could be obligated to take corrective action). However, the student who organized the mock lynchings was also an employee of the university. Indeed, it appears that the student-employee was working on a project funded by the university and, thus, this expressive conduct was directly within the scope of his employment. As a result, the university could be held vicariously liable for legal claims based on the expressive conduct of the student-employee. Looked at from this perspective, the executive decision appears simple: the mock lynching displays had to be removed immediately to limit the university’s legal exposure. The university took corrective action as soon as it learned of expressive conduct that a reasonable person could perceive to create a hostile work environment.

But what about the university’s unique setting as a place where “the free and unfettered interplay of competing views is essential to the institution’s educational mission?”31 While places of employment tend to have a lower tolerance for freedom of expression than society generally, universities are deemed to have a higher tolerance. Thus, President Pelton and other university administrators are at a point of tension that embodies the intensifying conflict that exists in the world at large between free expression, on the one hand, and equality and dignity on the other.

As campuses have become more diverse and reflective of the world around them, the frequency of hate incidents on campus in recent years has been disturbing. How does a university respond when “Death Nigger” is scratched on a black woman’s dorm room door or a slave auction is held at a fraternity (MacKinnon 1993, 53)? The immediate response of many universities when such incidents became prevalent was to develop speech codes. However, when legally challenged, the speech codes were deemed to violate the First Amendment.³²

A student is not permitted to go up to another student and say, “Give me all of your money,” while waving a night stick, so why can a student go up to another and commit an iconic assault by brandishing a noose or a burning cross and demand that same person’s dignity with denigrating or hateful speech? Some would suggest that one surrenders one’s dignity only by choice; we—or more likely you— just need to be tolerant of these offensive expressions; you need to “toughen up.” But we could say the same thing regarding a robbery. You only surrender your money by choice; just ignore the implied threat of the weapon and do not allow yourself to be intimidated by the brute. After all, what is more important to protect: a few dollars cash or freedom of expression? And yet we restrict speech to protect our money. We also do not hesitate to issue standards prohibiting students from plagiarizing, even though this is a restriction on their freedom of expression. Again and again, we restrict students’ (and other individuals’) freedom of expression for many things that are important to us; apparently, the dignity of others is not one of them. In fact, we place so little value on the dignity of members of disadvantaged groups that we restrict the ability of universities— bastions of the highest levels of civilization—to protect their most vulnerable students’ dignity by creating standards of expression on campus.

Private groups such as families, private schools and universities, associations, churches, businesses, etc. not only have the right, but an ethical duty, to regulate expression among their members. These entities play a significant role in socializing and civilizing individuals and they should be free to create spheres in society that are as free from hostility, harassment, and denigration as possible. Thus, a parent should be free not to allow racist speech in the home, an employer should be free to prohibit sexist speech at work, and a private university should be free to take down a display of simulated child pornography on the university quad, for example, all in an effort to foster a more civil, egalitarian, inclusive, and tolerant world.

Ours is not the first community to struggle with the balancing of freedom of expression with the other values we cherish, such as civility, community, dignity, equality, and enlightenment. Nations around the world have struggled, and continue to struggle, with the role of free expression in their increasingly diverse societies. Canada, Japan, the United Kingdom, and Germany, among others, have all tried to create legal protections for free expression with varying aims, unique contours, and differing degrees of success. Each has tried to protect this fundamental freedom of democracy while balancing it with the need to protect other democratic values such as equality and human dignity. None has created a right to free expression that is absolute (Krotoszynski 2006).

Here in the United States, we have yet to demonstrate a willingness to balance openly and consistently our nation’s most cherished freedom with a commitment to protect and advance the interests of marginalized persons, including women, children, immigrants, minorities, and the impoverished. It is time for America to recognize that as the world becomes increasingly populated and integrated we must reasonably limit the freedoms we enjoy to allow literally billions of people of different races, religions, economic classes, languages, genders, sexual orientations, abilities, and ages to live peacefully together in a more respectful, equalized, and civilized manner. This will require us to tap into all of the sources of social regulation we can muster, from religious teachings to the socialization of our children in schools and homes to standards of conduct within private spheres such as the workplace and universities. It also requires us to consider whether we should follow the examples of other diverse and democratic countries like Canada and Germany and reconsider our interpretations of the constitutional protections of freedom of expression to allow for the balancing of America’s favorite freedom with other democratic values such as equality and dignity.

We have never enjoyed absolute freedom of expression and we never will. If we can curb freedom of expression to protect economic interests, perhaps it is time to question whether there might not be other things that are just as important to us, if not more important to us, than money.

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[1] — Palko v. Connecticut, 302 U.S. 319, 327 (1937).

[2] — R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (overturning the conviction of a youth for burning a cross in the yard of an African-American family’s home in violation of a municipal hate speech ordinance).

[3] — Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (striking down the Child Pornography Protection Act of 1996).

[4] — See Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 44 (1977) (reversing state court’s refusal to “provide immediate review” or issue a stay of trial court injunction preventing Nat’l Socialist Party from conducting a pro-Nazi demonstration on the grounds that such a refusal did not meet the “strict procedural safeguards” of prior restraint), Skokie v. Nat’l Socialist Party, 69 Ill. 2d 605 (1978) (holding that the swastika symbol was protected speech under the fighting words exception), reversing Skokie v. Nat’l Socialist Party, 51 Ill. App. 3d 279, 295 (1977) (prohibiting defendants from “Intentionally displaying the swastika” on the grounds that the village “met its heavy burden” justifying prior restraint because “epithets of racial and religious hatred are not protected speech”). See also Smith v. Collin, 436 U.S. 953 (1978) denying cert. to Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), affirming Collin v. Smith, 447 F. Supp. 676 (N.D. Ill. 1978) (requiring village to issue valid permit for pro-Nazi demonstration).

[5] — Cohen v. State of California, 403 U.S. 15, 25 (1971) (“one man’s vulgarity is another manÕs lyric”). See, e.g., the lyrics to 50 Cent’s song, “Fuck You.”

[6] — In “snuff” films, men are portrayed as becoming sexually aroused by the torture and eventual murder of women. See Am. Booksellers Ass’n, Inc.v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (invalidating a city ordinance prohibiting pornography that portrayed women in a degrading manner).

[7] — See R.A.V., 505 U.S. 377.

[8] — See, e.g., Cohen at 26 (“Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been ableÉ to discern little social benefit that might result from running the risk of opening the door to such grave results.”).

[9] — To the contrary, the United States Supreme Court informs us, “[T]he First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses.” Cohen at 19.

[10] — The “marketplace of ideas” theory is one of three classic theories offered to support the principle of freedom of expression. The theory asserts that ideas should be allowed to compete in a free and open marketplace in order to advance human enlightenment. The second is the “human dignity and self-fulfillment” theory. This theory suggests that self-expression is critical to the human condition, (cont’d from previous page) and that without the freedom to express ourselves we cannot fulfill our human potential. The third is the democratic self-governance theory. Under this theory, freedom of expression is viewed largely from the role the freedom plays in protecting democratic ideals. Thus, expressions that are not related to politics or governments might not be protected if the theory is construed strictly as the only justification for freedom of expression. (1 Rodney a. Smolla, smolla and nimmer on freedom of speech: a treatise on the first amendment, § 2.3-6 (16Th ed., 2007)). [So annoying that I can’t comment in footnotes — what is this? Is it a cite of some sort? Is it a book? It’s not in the works citedÉ I don’t get it]

[11] — Even Albert Einstein warned, “[L]aws alone cannot secure freedom of expression; in order that every man present his views without penalty there must be a spirit of tolerance in the entire population.” (Einsten 1950, 13).

[12] — See also Qur ’an 2:42: “And cover not truth with falsehood, nor conceal the truth when you know [what it is]. ”

[13] — “Those who know don’t talk./Those who talk don’t know.” (ch. 56); “The tao that can be told/is not the eternal Tao./The name that can be named/is not the eternal Name./The unnamable is the eternally real./Naming is the origin/of all particular things.” (ch. 1); and “Honors can be bought with fine words.” (ch. 62)

[14] — “Fighting words” are personally abusive epithets that are likely to provoke a violent reaction in the ordinary person. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). See also In re John M., 201 Ariz. 424 (Ct. App. Div. 1 2001) (holding that the “fighting words” of an unprovoked youth leaning out a car window and yelling “Fuck you, you god damn nigger” at an African-American woman were held not to be protected by the First Amendment).

[15] — See Schenck v. United States, 249 U.S. 47, 52 (1919).

[16] — Regina v. Keegstra [1991] 2 W.W.R. 1 (Can.).

[17] — Butler v. Regina [1992] 2 W.W.R. 577 (Can.).

[18] — Title VII of the Civil Rights Act of 1964 provides the foundation for much of our modern civil rights law. See 78 Stat 253, as amended, 42 U.S.C. ¤ 2000e et seq. (1988 ed., Supp III).

[19] — See, e.g., Meritor, 477 U.S. 57.

[20] — Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla.1991). But note that some courts have disallowed Title VII claims based on pornography as sexual harassment, but not on the basis that displaying pornography at work is protected speech. See, e.g., Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986) (Keith, J. concurring in part, dissenting in part), cert. denied, 481 U.S. 1041 (1987).

[21] — See, e.g., Sparks v. Jay’s A.C. & Refrigeration, Inc., 971 F.Supp. 1433 (M.D.Fla.1997)..

[22] — Former W. VA. CODE ¤¤ 1847, 1851 (Supp.1941) (repealed 1943).

[23] — West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

[24] — Barnette at 633.

[25] — Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

[26] — New York Times Co. v. Sullivan, 273 Ala. 656 (1962).

[27] — Masson at 511.

[28] — See New York Times Co. v. Sullivan, 376 U.S. 254, 286-88 (1964). For a comprehensive treatment of the entire case, see (Lewis, 1991)

[29] — Masson at 511.

[30] — Id.

[31] — Doe v. Univ. of Michigan, 721 F. Supp. 852, (E.D. Mich. 1989).

[32] — See, e.g., Doe, 721 F. Supp. 852; UWM Post v. Board of Regents of Univ. of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1990); Ioata XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 773 F. Supp. 792 (E.D. Va. 1991), affirmed, 993 F.2d 386 (4th Cir. 1993).

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