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First Amendment 101

The United States Constitution is the supreme law of the land. All legislation passed by the federal government and by state governments must be consistent with the Constitution, as interpreted by the Supreme Court of the United States, otherwise that legislation is invalid. The rights guaranteed to Americans by the Bill of Rights are inviolable by the government. All Americans should understand this; this concept is central to the unique freedom that we enjoy as Americans. Sadly, however, it seems that many Americans, including the chief law enforcement official of the State of New Jersey, do not understand this at all.

FIRE is currently involved in a case at William Paterson University in New Jersey, which recently convicted a student employee of “discrimination” and “harassment” for describing homosexuality as a “perversion” in a private response to a professor’s unsolicited announcement of a university event that promoted a positive view of lesbian relationships. The student employee, Jihad Daniel, was convicted under the Interim State of New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace (“the New Jersey policy”). It is a violation of this policy to make “derogatory references” about an individual in a protected category or to display or distribute material that contains language that is “derogatory or demeaning” towards an individual in a protected category.

FIRE wrote to William Paterson University to explain to them that their punishment of Daniel’s speech was unconstitutional. FIRE received a response from Peter Harvey, the Attorney General of New Jersey, since FIRE’s complaint involved a statewide policy. Attorney General Harvey wrote that Daniel’s speech was prohibited under the New Jersey policy, and stated that “clearly speech which violates a non-discrimination policy is not protected.” Incredibly, Attorney General Harvey seems to believe that a New Jersey Interim Policy determines what is protected by the First Amendment. As Harvey must have learned in first-year Constitutional Law, however, it is 100 percent the other way around: the U.S. Constitution determines what a state may legitimately pass as a law. As applied, the New Jersey policy violates the First Amendment, since the U.S. Supreme Court has made absolutely clear that unlawful harassment “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment,’” and that the “mere utterance of an…epithet which engenders offensive feelings in an employee” does not constitute harassment. Meritor v. Vinson, 477 U.S. 57, 67 (1986).

An article posted today on also illustrates the degree to which some Americans misunderstand the First Amendment. The article contains a brief interview with Arlene Holpp Scala, the William Paterson professor who was allegedly “harassed” by Daniel’s email. Professor Scala told that Daniel’s speech was not protected because “he used the word ‘perversion’ and that’s discriminatory. There are kinds of speech that are not protected. You cannot cry out ‘fire’ in a crowded theater.” Has our understanding of the First Amendment really degraded to the point where someone as highly educated as Professor Scala believes that a student’s expression of his religious beliefs is akin to inciting a potentially life-threatening panic?

FIRE is working diligently, through educational projects such as our Guide to Free Speech on Campus, to ensure that the next generation of citizens is educated about the rights absolutely guaranteed to them by the Constitution. However, Americans should also take it upon themselves to understand these precious rights we enjoy. As FIRE cofounder Alan Charles Kors has said, “a nation that does not educate in freedom will not long preserve it, and it will not even know when it has lost it.”

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