Federally Regulating Free Speech

“The Obama administration is currently embroiled in two political scandals, and a third, understandably overshadowed by Benghazi and the IRS, is brewing on our campuses.” A recent post by John Leo in Minding the Campus reveals that “The Civil Rights offices of both the Education Department and the Justice Department have issued a flabbergasting and clearly unconstitutional assault on free speech, ruling that colleges must eliminate and punish ‘verbal action’ (better known as speech) touching on sexual matters. Rumors (true or not), ‘unwelcome’ requests for dates, off-color jokes and virtually all sexual discussion will now be (selectively) punishable as sexual harassment under orders from the Education Department.”

”No one would believe you if you made this up, but it’s now actually happened,” said Hans Bader, writing for the Competitive Enterprise Institute blog. “The Justice Department and the Education Department’s Office for Civil Rights now have effectively defined dating and sex education as ‘sexual harassment.’”

“In a radical departure from Title IX jurisprudence, the federal government declares that ‘any’ unwelcome sexual speech or other conduct is ‘sexual harassment’ regardless of whether it is severe, repeated, or pervasive, and regardless of whether it would offend a reasonable person.

“In its findings, it rejected narrower definitions rooted in federal court rulings, declaring that sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature.’”

This goes way beyond the Supreme Court ruling that to constitute illegal sexual harassment, sexual advances or other verbal or physical conduct must be severe and pervasive, and create a hostile environment.

“In short, sexual harassment is defined to include “any” speech or other verbal conduct even if it would not offend a reasonable person, but rather only is offensive from the subjective viewpoint of a hypersensitive person.

Defining “any” romantic overture or sexual speech as “harassment” based purely on subjective reactions . . . may effectively ban dating (since no one is a mind reader, and the whole point of asking someone out on a date is because you don’t know before asking whether they would be interested without first asking). Such a de facto ban on dating violates freedom of intimate association. Even banning dating between certain people can violate freedom of intimate association; here, the definition would define all offers to go out on a date as potentially sexual harassment unless the offerer is omniscient.”

“Perversely, the government suggests that punishment may be required BEFORE a disciplinary hearing, reminiscent of Alice in Wonderland‘s ‘sentence first, verdict afterwards.’”

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Deborah Lambert writes the Squeaky Chalk column for Accuracy in Academia.
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