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C00002 00002	%freedo.2[w89,jmc]	Stanford Daily opinion piece
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%freedo.2[w89,jmc]	Stanford Daily opinion piece
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\title{Upholding the First Amendment at Stanford}

	The First Amendment begins ``Congress shall make no law $\ldots$''.
The Fourteenth Amendment extends the prohibition to the states.
Since 1940 the Supreme Court has greatly restricted what any
governmental entity can prohibit and punish.

	An adaptation of the First Amendment to Stanford, would
begin ``Stanford shall make no rule $\ldots$''.  In particular,
``The SCLC shall make no rule $\ldots$''.  The statement by John
Schwartz and Iris Brest says that Stanford's policy is not to
punish what the First Amendment prevents government from
punishing.  However, the statement of the Fundamental Standard,
if enacted into law, couldn't be used to punish anyone for
anything, because the courts would say it was too broad and
vague.  To be enforcable, the rules would have to be more specific.

	As the Schwartz-Brest statement and also John Perry's {\it Daily}
article point out, the First Amendment and its current interpretations
don't say that no speech can ever be punished.  ``Fighting words'',
harassing telephone calls, and intrusions on certain forms of private
property, etc. provide many exceptions.  The boundaries
of these exceptions have been outlined by numerous court cases.

	The First Amendment and its Supreme Court interpretations
don't themselves prohibit any form of expression.  Instead
they tell us what governmental entities may and may not prohibit.
Governments don't have to prohibit everything that they may prohibit,
and they don't.

	Extending the ``rule of law'' to Stanford rules would involve
making explicit rules, and the SCLC is the appropriate body to do it.
If the SCLC decides to make rules that stay within First
Amendment prohibitions, there are plenty of constitutional
lawyers who can help them.

	The SCLC decision not to observe First Amendment restrictions
in making rules is thoughtless.  They simply haven't begun to notice
the messes they will create.  Their current draft illustrates this.

Here is section 5 of SCLC's proposed addition to the Fundamental Standard.

{\narrower ``DEFAMATION OF GROUPS.  Members of the Stanford community have
the right not to be inescapably and involuntarily exposed to
obscenities, epithets, and other forms of expression that by accepted
community standards stigmatize, victimize, or pejoratively
characterize persons or groups on the basis of personal or cultural
differences.''\par}

	Here's the part that arouses the most fear.  ``$\ldots$
other forms of expression that by accepted community standards
$\ldots$ pejoratively characterize persons or groups on the basis
of $\ldots$ cultural differences.''  Taking it out of context
is legitimate, because that's how laws and rules are used.

	The reference to ``community standards'' comes from a
Supreme Court decision concerning obscenity.  In this decision,
the phrase was used very narrowly.  John Perry of SCLC said on
KZSU that his idea is that it would be used narrowly.  However,
once it becomes a rule, its effect can be quite different from
what Perry imagines.  At least that's what happened to provisions
the framers put into the Constitution.

	Indeed its adoption would result in political campaigns
within Stanford for ex post facto punishment.  We can already see
this in connection with the Ujaama incident, where there was a small
campaign to define some expression as contrary to community standards
and then punish it.

	A law incorporating the phrase ``community standards''
wouldn't be upheld by the courts as applying to speech in
general.  You could have something like the trial of Socrates at
which the Athenian jury said that what Socrates taught was
contrary to community standards.  In a university setting, Bob
Jones University could have said that advocacy of interracial
dating is contrary to their community standards.

	It could also be said that posting excerpts from
``Satanic Verses'' violates the standard as might printing {\it
Doonesbury} which often makes fun of conservatives and characterizes
individuals in ways they could find libellous were they not public
figures.  Doubtless, SCLC
has no present intention of going after either of these.
Viewpoints that are less popular at Stanford today or which may
become unpopular in the future have reason to worry.

	The SCLC could alleviate much worry if they would make
the commitment that their rules are not to be interpreted as punishing
expression that the First Amendment would prevent government from punishing
in similar circumstances, e.g. in dormitories at State institutions.
This would assure the community of some limitations
on the future politicization of the rules and would give them
and everyone else access to the tradition of First Amendment law.
\smallskip\noindent{This draft of freedo.2[w89,jmc] TEXed on \jmcdate\ at \theTime}
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