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Lesson 50 - Free Speech 11:

ANNOYING / OFFENSIVE / HARASSING SPEECH, PART 2

3."HARASSMENT": Contrary to what many think, there's no well-established "harassment" exception in free speech doctrine.
"Harassment" has no well-defined meaning. Sometimes it's used to refer to persistent offensive or annoying communications. As we mentioned above, such communications by one-to-one e-mail can probably be banned under Rowan v. Post Office Department principles (see item 1, in the previous message).

On the other hand, persistent offensive or annoying posts (even personal attacks) in newsgroups or discussion lists are constitutionally protected. Some "harassment" statutes do seem to ban some such posts -- though it's not clear that such a ban was intended by the statutes' drafters -- but, if they do, they seem unconstitutional.

"Harassment" is also sometimes used to refer to "hostile environment harassment," speech that creates a hostile environment for people based on race, sex, religion, national origin, or other categories. This usually covers bigoted insults, but has even been read to include religious proselytizing, off-color jokes, bigoted political statements, and art that contains nudity.

Whether hostile environment harassment law is constitutional is a hotly debated question. Most lower courts suggest that bans on "hostile environment harassment" in colleges and universities are unconstitutional. Courts seem more receptive to laws banning hostile environment harassment in workplaces, but there's a lot of controversy even as to that.

It seems quite clear that a ban on "hostile environment harassment" in cyberspace generally would be unconstitutional. Even bigoted and otherwise offensive speech is constitutionally protected.

authors:
Larry LessigDavid PostEugene Volokh



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