Page 25 - Delaware Lawyer - Fall 2019

The balance struck by the First Amendment, which applies only to pub- lic institutions but should in principle apply equally to private, is that students are protected against targeted threats and harassment but not against abstract ideas, no matter how offensive or demeaning those ideas might be. Does this strike the best balance between our commitments to equality and free speech? Maybe not when your daughter calls home in tears because students are holding signs that say “Hitler Was Right.” Maybe so when your daughter is threatened with disci- plinary action for handing out literature defending Israel’s right to exist.
As Justice John Harlan observed, free- dom of speech is “powerful medicine in a society as diverse and populous as ours” and inevitably produces “verbal tumult, discord and even offensive utterance.”12 But this “verbal cacophony,” he reas- sured us, is “not a sign of weakness but of strength.” 13 It is through this cacophony that our society’s values are realized; it is
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the price we pay for freedom.
But there’s a caveat. As Judge Learned
Hand famously warned in 1944 dur- ing our nation’s life-and-death strug- gle against fascism: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” 14
Our commitment to liberty requires us to permit purveyors of hatred to spill their bile. But it is equally true that our liberty will be secure only if people of good faith combat the forces of hatred, bigotry and prejudice whenever they are arrayed against any member of the Ameri-
(2017); NADINE STROSSEN, HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP 60-66 (2018).
3. Chemerinsky & Gillman, supra note 2, at 121.
4. Id. at 9.
5. Collin v Smith, 447 F. Supp. 676, 702 (1978), aff’d, 578 F.2d 1197 (1978), cert. denied, 439 U.S. 916 (1978).
6. Full Text: Donald Trump Announces a Presidential Bid, available at https://www. washingtonpost.com/news/post-politics/ wp/2015/06/16/full-text-donald-trump- announces-a-presidential-bid/?noredirect=on.
7. Abrams v. United States, 250 U.S. 616, 630 (1919).
8. Id.
9. Chemerinsky & Gillman, supra note 2, at
101.
10. Senate Bill 4001, 218th Legislature, State of New Jersey, available at https://www. njleg.state.nj.us/2018/Bills/S4500/4001_ I1.HTM.
11. New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
12. Cohen v. California, 403 U.S. 15, 24-25 (1971).
13. Id. at 25.
14. Learned Hand, Spirit of Liberty Speech, available at http://www.learnedhand. org/?p=4.
can family.
For every neo-Nazi who wants to
march in Charlottesville, we need 100,000 Americans who want to march for tolerance.
NOTES
1. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
2. See ERWIN CHEMERINSKY & HOWARD GILLMAN, FREE SPEECH ON CAMPUS 116-123
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From left to right: George R. Tsakataras, Scott E. Swenson, Timothy M. Holly, Rev. Tom Laymon, Timothy Jay Houseal, Steven J. Stirparo
INSIDE: The First Amendment & White Supremacy • Free Speech on Campus • Approaches to Regulating Speech
Delaware Lawyer
Is Hate Speech Free Speech?
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INSIDE: Delaware’sCivilJusticeGap•TheInjusticeofCollateralConsequences•ShouldJudgesGoogleTheirCases?
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ACCESS TO JUSTICE:
Where We Fall Short and How We Can Do Better
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FALL 2019 DELAWARE LAWYER 23