Posted by Eugene Volokh:
Stanley Fish on the Tufts Case Involving Blasphemous Speech and Harshly
Anti-Affirmative-Action Speech:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179945311
From [1]the Tufts Daily:
When distinguishing offensive from harassing content, some experts
brought up the Hustler Magazine v. Falwell case. In this 1988
Supreme Court decision, prominent evangelist Jerry Falwell sued the
racy Hustler magazine for running a parody liquor ad about him
having drunken sex with his mother in an outhouse. Falwell sued for
libel and intentional infliction of emotional distress, but the
Court ruled 8-0 in the magazine's favor, upholding its right to
publish the parody.
"The Falwell case makes the point that satire, joking and
caricature are part of the free flow of ideas in a democratic
society," said Stanley Fish, who writes the "Think Again" blog for
the New York Times on education, politics and society. He is a
professor of law at Miami's Florida International University and
dean emeritus of the College of Liberal Arts and Sciences at the
University of Illinois at Chicago.
"Presumably, some people in the university who are members of
minority groups would have felt insulted," he said of responses to
the Source articles. "But being insulted doesn't mean you have any
legal redress against those who have offended you."
To this extent, he said that the administration should not have
even denounced the carol, as it did immediately after its
publication.
"They're saying, 'We're good hearted. We're good people. We're on
the right side, even though by law we cannot penalize them,'" he
said. "[But] the university is not in the business ... of policing
the views or sentiments of its students. That's not what it's
supposed to doing. It's supposed to be delivering instruction and
equipping them with the analytical tools necessary to perform
research."
I don't share Fish's view that the University shouldn't have denounced
the anti-affirmative-action carol, which struck me as cruel,
offensive, and exaggerated in a context where such exaggeration is
rude. It seems to me quite proper that leading members of a community,
such as university administrators, would speak up against such
rudeness and in defense of those who were being insulted.
But I'm glad to hear that Fish is apparently criticizing the
disciplinary action against the student newspaper. I'm not sure how
this fits into Fish's complex views about free speech (see, for
instance, the closing paragraphs of [2]this interview). But I'm
pleased to hear his current position (and his willingness to speak
based on it), whether it is consistent with his past views or is a
departure from those views.
References
1.
http://media.www.tuftsdaily.com/media/storage/paper856/news/2007/05/20/News/Csl-Hearing.Turns.Spotlight.On.Controversial.Source.Pieces-2905168-page3.shtml
2. http://www.lib.latrobe.edu.au/AHR/archive/Issue-February-1998/fish.html
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