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The free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, the court cannot turn a blind eye to the First Amendment, U.S. Const. amend. I, implications. Where pure expression is involved, anti-discrimination law steers into the territory of the First Amendment. This is especially true because when anti-discrimination laws are applied to harassment claims founded solely on verbal insults, pictorial or literary matter, the statutes impose content-based, viewpoint-discriminatory restrictions on speech.
In August 1999, the State College Area School District ("SCASD") adopted an Anti-Harassment Policy ("the Policy"). Plaintiff David Saxe is a member of the Pennsylvania State Board of Education and serves as an unpaid volunteer for SCASD. He is the legal guardian of both student-plaintiffs, who are enrolled in SCASD schools. After the Anti-Harassment Policy was adopted, Saxe filed suit in District Court, alleging that the Policy was facially unconstitutional under the First Amendment's free speech clause. The district court, concluding that the Policy prohibited no more speech than was already unlawful under federal and state anti-discrimination laws, held that the Policy was constitutional and entered judgment for the school district.
Did the district court err in concluding that the Policy was constitutional?
The appellate court reversed the judgment. The district court was incorrect in its conclusion that harassment, as defined by federal and state anti-discrimination statutes, is not entitled to First Amendment protection. In addition, the Policy prohibited a substantial amount of speech that would not have constituted actionable harassment under either federal or state law. The appellate court determined that the Policy was unconstitutionally overbroad because the policy prohibited a substantial amount of non-vulgar, non-sponsored student speech and the policy's restrictions were not necessary to prevent substantial disruption or interference with the work of the school or the rights of other students.