New concerns about free speech – Letter to the Editor

The Justice Department’s demand that the University of New Mexico define any “unwelcome” speech about sexual matters as “sexual harassment” violates the First Amendment. (“‘Harassment’ under Title IX raises concern on free speech,” Web, May 2). If followed, it would ban jokes, cartoons and discussions that only hypersensitive people find offensive, at a huge cost to free speech.

The Justice Department claims that sexual speech need not even create a “hostile environment” to be harassment. But a federal appeals court rejected that argument in DeJohn v. Temple University (2008). As it noted, a college harassment policy violates the First Amendment if it defines as sexual harassment speech that does not “objectively” create a “hostile environment.” Even if it does create a hostile environment, the sexual speech still “may be protected” by the First Amendment if it discusses political or social issues.

The Justice Department defines as harassment all sexual speech an accuser finds subjectively offensive. That subjectivity makes the definition unconstitutionally vague. In Dambrot v. Central Michigan University (1995), judges struck down a racial harassment policy as too vague, because it similarly based punishment on listeners’ “subjective” reactions to speech.


Senior attorney, Competitive Enterprise Institute


Originally posted to Washington Times.