Essay: Free Speech and Sexual Harassment

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Sexual Harassment and Freedom of Speech

The freedom of speech is considered, by many, to be the most fundamental freedoms. Without free speech it is impossible to transmit ideas, to learn, to educate. In fact, in many ways speech that is regulated impairs the functioning of a democracy by impairing the open exchange of ideas. However, the fact that speech has so much power means that speech can also be dangerous. Free speech can threaten some of the fundamentals of democracy. This is most particularly true when one examines speech in the context of how that speech impacts minority groups or groups that have traditionally been disadvantaged. After all, speech is a powerful tool for propaganda and there is no doubt that free speech has historically been used to encourage discrimination. However, the reality is that free speech has also been a powerful tool in discouraging discrimination. Without the protected right to free speech and the affiliated rights such as freedom of assembly, there could have been no civil rights movement because dissenting speech would have been quashed. This places society in a quandary; how can it protect the right to free speech while ensuring the right to be free from discrimination and harassment? Unfortunately, there is no simple answer to that question.

In order to understand why the issue is so complex, it is important to consider what type of speech has generally been given full protections under the First Amendment. First, many people misunderstand what the concept of free speech means. They believe that it means that there can be no punishments for speech that is offensive. For example, when a public figure says something offensive and the response is to call for a boycott of that person's employer or sponsor until the person is fired, many people claim that the freedom of speech is threatened. However, freedom of speech does nothing to protect someone from the private or social consequences that necessarily arise from engaging in speech that people find offensive. Instead, freedom of speech is specifically targeted at preventing the government from prohibiting or punishing certain types of speech.

Moreover, freedom of speech prohibitions are more nuanced than many believe. There are many types of speech that are prohibited and, if those prohibitions are violated, can result in punishments, including criminal punishments. The most notorious example of such speech is someone yelling "fire" in a crowded theater, because of the potential for harm to the occupants. In fact, any speech reasonably calculated to be the cause of immediate harm to the members of the audience can be prohibited. Furthermore, threatening language can be criminalized under the rubric of terroristic threats, but the threat has to meet certain standards to be criminal behavior. The threat must be specific and the person issuing the threat must be in the position of carrying out the threat. The government may also place reasonable time and manner restrictions on speech, as well as prohibitions as to how loud speech may be. As long as these prohibitions and conditions are enforced with all groups, they are permissible.

However, there are two types of speech that have traditionally been given extra protection under the First Amendment: political speech and religious speech. That is because the First Amendment directly speaks to the freedom of religion and has been interpreted as having been drafted in order to ensure political freedom. In modern American society, much political and religious debate focuses on the appropriate role of women in society. There is an inordinate amount of debate about whether women should have access to birth control, the ability to seek abortions, the right to work for the same wage as men, the right to work as primary breadwinners for their families, the right to be single parents, and the right to engage in sexual activity outside of marriage. Although many of these questions are considered well-settled by most of society, they are hotly debated in some circles. Moreover, there are religious reasons that people argue against many of these freedoms, making the debate touch on the freedom of religious speech. Even if religion is not mentioned, because these issues are ones currently being debated in state and federal legislatures, it is impossible to ignore that they touch upon political questions. As a result, one would… [END OF PREVIEW]

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