Date: Wed, 4 Dec 1996 09:58:26 -0500 Sender: Legal Scholarship Network From: Alan Lewine Subject: CYBERSPACE-LAW #50: Free Speech 11 To: Multiple recipients of list CYBERSPACE-LAW CYBERSPACE LAW FOR NON-LAWYERS Topic: Free Speech 11 (Number 11 of 27 on the topic FREE SPEECH) E-Mail Number: 50 Date Posted: 4 December 1996 * * * * * * * * * FREE SPEECH 11 of 27 ANNOYING / OFFENSIVE / HARASSING SPEECH, PART 2 OF 3 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 Lessig David Post Eugene Volokh * * * * * * * * * * * * * * * * * * * * * * Cyberspace-Law for Non-Lawyers is presented by the Cyberspace Law Institute (http://www.cli.org) and Social Science Electronic Publishing (http://www.ssrn.org). Please note that this is an announcement-only list and not a discussion list. Please, do not attempt to post comments to the list, as they will be ignored. We have recently opened a discussion site at http://www.ssrn.com/cyberlaw/cyberspaceLawList.html, the web site of the Social Science Research Network. We hope to soon have an indexed archive of our materials available there as well. Meanwhile, the Counsel Connect web site contains an archive of much of this course at http://www.counsel.com/cyberspace. You can retrieve all of the material posted to date for Cyberspace-Law For Non-Lawyers by sending e-mail to: LISTSERV@PUBLISHER.SSRN.COM with the (optional) subject line: GET INDEX and in the body, type the message: GET CYBERSPACE-LAW.LOG9608 GET CYBERSPACE-LAW.LOG9609 GET CYBERSPACE-LAW.LOG9610 **** Also add GET CYBERSPACE-LAW.LOG9611 Type all three lines above to get all the materials posted to date, or type the line ending in LOG9608 to get the materials posted through August '96, type the line ending in LOG9609 to receive all the materials posted in September, etc. ------------------------------------------------------------ To subscribe to cyberspace-Law, go to SSRN's homepage at HTTP://WWW.SSRN.COM/ OR send an e-mail to: LISTSERV@PUBLISHER.SSRN.COM with the subject line (optional): SUBSCRIBE and the body message in the first line: SUBSCRIBE CYBERSPACE-LAW FIRSTNAME LASTNAME replacing "FIRSTNAME" and "LASTNAME" with your first and last names (or such pseudonyms as you prefer). ------------------------------------------------------------ To signoff (unsubscribe to) Cyberspace-Law, send a message to: LISTSERV@PUBLISHER.SSRN.COM with the subject line (optional): SIGNOFF and the body message in the first line: SIGNOFF CYBERSPACE-LAW (Do NOT include your name in an unsubscribe message.) Yours virtually, Alan Lewine Cyberspace-Law Listmeister Alan_R_Lewine@SSRN.com