Pezzano Mickey & Bornstein, LLP July 2019

JULY 2019

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Perspectives PMB


“I disapprove of what you say, but I will defend to the death your right to say it.” –Evelyn Beatrice Hall

right to free speech and successfully argued that the Ohio law which criminalized his statements was unconstitutional.

The Fourth of July is a time to reflect on the freedoms we enjoy as Americans and remember that we must always be on the lookout for their erosion. The First Amendment to the Constitution safeguards one of our most precious freedoms, a cornerstone of our democracy: freedom of speech. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Each of the clauses in this Amendment has been the subject of voluminous textbooks and court decisions. With regard to speech, the First Amendment safeguards our ability to speak our minds without fear of punishment by the government. In the United States, our right to free speech is broader than anywhere in the world. In many other countries, citizens are imprisoned for criticizing the government or speaking in a subversive manner. In dictatorships like North Korea and Cuba, political dissidents are tortured or thrown into prison camps. Nonpolitical speech may also be targeted for suppression in relatively free countries. According to the BBC, just this past April, a British woman was arrested in Dubai for equating her ex-husband’s new wife to a horse on Facebook! Even in comparison to other democracies, the First Amendment provides an unprecedented level of protection for free speech. The United Kingdom doesn’t have a written Constitution to limit government power. British citizens may be arrested for using offensive language, like the young Scottish man who was actually jailed and lost his career opportunities for posting racist comments on Twitter. Of course, even in the U.S., there are limits to the freedom of speech. The First Amendment does not permit speech that encourages physical harm to others. In the 1969 landmark case of Brandenburg v. Ohio, the Supreme Court ruled that the vile speech of KKK members could not be suppressed unless it promoted immediate violence. Despite the abhorrent, racist messages spewed by Mr. Brandenburg, the ACLU fought to protect his

In recent years, First Amendment principles have been undermined by vague speech codes which seek to “keep the peace” by stifling voices some might find offensive or hurtful. College campuses have traditionally been havens where students were encouraged to engage in the free flow of a wide variety of ideas. Students today are far more restricted. Speech codes have been enacted across both public and private college campuses to quash speech interpreted as offensive or hateful. By attempting to redefine speech as violence, universities have been regularly suppressing unpopular dialogue by declaring campuses to be “safe spaces,” in which students are “protected” from hearing ideas that might upset them. On that basis, numerous controversial figures have been banned from college campuses across the country, and students have been punished for daring to utter unpopular notions. New Jersey is not immune from to such speech codes. For example, the policy manual of The College of New Jersey (TCNJ) states that disciplinary action may be taken to address any “unacceptable” conduct, including speech. This overly broad policy has been given a “red” rating by the Foundation for Individual Rights in Education, which found that TCNJ’s policy clearly and substantially restricts its students’ freedom of speech. What happened to the concept that we will defend with our lives the right of our fellow citizens to speak, even if we disagree with them? Moreover, who decides what speech is acceptable and what is not? To reverse this trend of chilling free speech, 17 states thus far have enacted campus free- speech legislation. In June 2019, the New Jersey Senate passed bipartisan Bill S-1176 out of committee, which reiterates that every public school student shall have the right to exercise freedom of speech and freedom of the press, and requires districts to adopt a clear written policy regarding freedom of expression. Although the bill is geared specifically toward student journalists, it is a step in the right direction in safeguarding the First Amendment rights of students. As you enjoy the fireworks this month, consider the freedoms you hold most dear and remember that they may be eroded if we do not have the courage to push back against those who seek to restrict them.

–Lisa Pezzano Mickey | 1

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