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Although the line is sometimes difficult to draw with precision, the court must distinguish at the outset between the U.S. Const. amend. I protection of so-called "pure speech" and mere conduct. As to the latter, it can be safely said that most extreme and blatant forms of discriminatory conduct are not protected by U.S. Const. amend. I, and indeed are punishable by a variety of state and federal criminal laws and subject to civil actions. Discrimination in employment, education, and government benefits on the basis of race, sex, ethnicity, and religion are prohibited by the constitution and both state and federal statutes
The defendant University of Michigan at Ann Arbor, a state-chartered university, adopted a Policy on Discrimination and Discriminatory Harassment of Students in the University Environment in an attempt to curb what the defendant’s governing Board of Regents viewed as a rising tide of racial intolerance and harassment on campus. The Policy prohibited individuals, under the penalty of sanctions, from stigmatizing or victimizing individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status. Plaintiff John Doe asserted that his right to freely and openly discuss controversial theories may have been sanctionable under defendant’s discrimination policy. Thus, plaintiff requested that policy be declared unconstitutional and enjoined on grounds of vagueness and overbreadth.
Was the defendant’s discrimination policy overbroad?
The court looked to three prior complaints involving the application of the policy and found that the innocent intent of the speaker was apparently immaterial to whether a complaint would be pursued. Moreover, the administrator generally failed to consider whether a comment was protected under U.S. Const. amend I before informing the accused student that a complaint had been filed. The court held that it was clear that the policy was overbroad both on its face and as applied. The court further found that defendant never articulated any principled way to distinguish sanctionable from protected speech, thus, the terms of the policy were so vague that its enforcement would violate the due process clause. The court then permanently enjoined defendant from enforcing discrimination policy as to verbal behavior or verbal conduct. The court concluded that however laudable or appropriate an effort this may have been, the policy swept within its scope a significant amount of verbal conduct or verbal behavior which was unquestionably protected speech under the First Amendment. Accordingly, the Court granted plaintiff’s prayer for a permanent injunction as to those parts of the policy restricting speech activity, but denied the injunction as to the policy's regulation of physical conduct.