Collins v. Smith (1978)

1. Collins v. Smith (1978) • "No such thing as a false idea" under the First Amendment. • Any speech can offend or disturb. • Could there be a distinction between attempts to persuade and attempts to humiliate, shock or demean? • Could the public display of certain symbols (swastika) be banned without limiting the freedom of discussion?

2. Campus Speech codes • Is the possible connection to violent acts relevant? O. W. Holmes: "every idea is an incitement to action." • Do these codes have a chilling effect on freedom of discussion of controversial issues? • Is there a slippery slope? Would it ban feminist speech, e.g., claims that all heterosexual acts are rape?

3. University of Texas -- Austin “Racial harassment” is defined as extreme or outrageous acts or communications intended to harass, intimidate, or humiliate a student or student on account of race, color, or national origin and that cause them to suffer severe emotional distress.

4. Racial harassment of students is expressly prohibited, and any student, faculty or non-faculty employee who engages in such conduct is subject to appropriate disciplinary action whether the harassment takes place on or off the campus. Appendix E, General Information Catalog

5. Does the "fighting words" exception apply? In UMW Post (1991), the circuit court ruled that the fighting words exception is "limited to speech which by its very utterance tends to incite an immediate breach of the peace."

6. Discussion • Is there an equivalency between face-to-face racial insults and “fighting words”? What other forms of insult? • Can this be used to defend campus speech codes? • Does the restriction of racial insults inevitably lead to the censorship of opinions?

7. Liberty and “the Harm Principle” "The only purpose for which power can be rightly exercised over any member of a civilized community against his will, is to prevent harm to others." John Stuart Mill, On Liberty.

8. The meaning of “harm” • By "harm", Mill means only direct harm. That is, harm I do to others by harming myself does not count, unless I thereby fail to fulfill some specific, concrete obligation. • At the same time, Mill allows the state to compel members of society to aid others

9. Some examples of paternalistic legislation motorcycle helmet laws, seat belt laws, laws forbidding swimming without a lifeguard, prohibition of recreational drugs, laws forbidding gambling, laws regulating sexual conduct between consenting adults in private (including prostitution and sadism), prohibitions of gambling, usury laws, laws against duelling,...

10. More examples murder statutes (insofar as consent of victim is no defense), laws prohibiting the use of drugs not approved by the FDA, laws prohibiting the sale of uninspected meat (even when customer is forewarned), mandatory Social Security contributions, compulsory school attendance.

11. Ulysses and the sirens • Every ship which came within earshot of the sirens was steered into the rocks. • Ulysses put wax in the ears of his sailors, and had them bind him to the mast. • They were strictly forbidden to untie him until they were well past the straits.

12. Mill's Exceptions • Mill recognized two exceptions to the principle: • (i) children, and • (ii) people living in "backward states of society". • Stephen argued that these exceptions made Mill's principle empty.

13. Children vs. Adults • Should children be protected from pornography, or from sexual relations with adults? from the use of alcohol, tobacco or drugs? from lack of education? • If so, does the justification for doing so extend to protecting some or all adults from certain kinds of self-inflicted harm?

14. Stephen's Criticisms of Mill • Mill claims that each person is more keenly interested in his own welfare than is anyone else. • Is this always so? What about those suffering severe depression or self-loathing? • Is this sufficient? Are all adults always fully competent to act in their own best interests?

15. Purposes of punishment? Stephen also argues that the criminal law exists, not only to deter crimes that are dangerous to society, but "also for the sake of gratifying the feelings of hatred -- call it revenge, resentment, or what you will -- which the contemplation of such conduct excites in healthily constituted minds. " (LEF, p. 318)

16. The Definition of Harm • Offense? See Feinberg article. Public sexual activity, including very exotic kinds. Public expressions of racist, sexist ideas, displays of swastikas? Pictures of aborted fetuses, or of victims of illegal abortions? • Harm to others through a polluting of the moral atmosphere? Advertising and openly soliciting immoral activity.

17. Frustration of other-directed preferences? • Stephen: "It is surely a simple matter of fact that every human creature is deeply interested, not only in the conduct, but in the thoughts, feelings and opinions of millions of persons who stand in no assignable relation to him than that of being his fellow-creatures."

18. Weakening the social fabric? • Do immoral acts weaken the cohesion of society by encouraging deviation from widely and deeply held norms? (Lord Devlin) • Is there empirical support for such an effect? (Hart)

19. Indirect Harms • Increased danger to others, through damage to own's own character? Does violation of one social norm make violation of others more likely? • • Increased burden on the charity of others, through damage to own's capacity to support oneself?