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From: rsk@staff.cc.purdue.edu (Rich Kulawiec)
Newsgroups: misc.legal,news.admin,soc.women
Subject: Re: A real sweetheart
Summary: This is not the law.
Message-ID: <18@staff.cc.purdue.edu>
Date: 29 Jul 88 12:42:05 GMT
References: <12624@agate.BERKELEY.EDU> <1809@iscuva.ISCS.COM> <12729@agate.BERKELEY.EDU>
Reply-To: rsk@staff.cc.purdue.edu.UUCP (Rich Kulawiec)
Organization: Purdue University
Lines: 46

In article <12729@agate.BERKELEY.EDU> era1987@violet.berkeley.edu writes:
>If the only reason you can give for referring to someone repeatedly,
>against their wishes, in a rude and impolite way that refers
>to what they are, rather than what they said, that is, to their race,
>religion, color, age, handicap, or sex, is that they ARE that
>particular race, religion, color, age, handicap, or sex, then
>you have a case of discrimination based on race, religion, color, age,
>handicap or sex.

This is not the law, in my opinion.  Let me put that a bit more strongly:
this is clearly not the law, and it is a wild and dangerous misconstruction
of constitutional provisions and case law.  I hesitated to dignify such
a ridiculous assertion with a response; but I felt that the possibility
existed that someone else might possibly be convinced of the truth
of the above-quoted statement, and I wanted to forestall that, if possible.

Simply put, anti-discrimination amendments, statutes, and case law do
not involve speech; they involve such practices as hiring, admission
to the bar, access to schools, use of public transport, membership in
civic organizations, and so on.  Further, discrimination based on
age, handicap, or sex  has not been given the same strict scrutiny that
discrimination based on race or religion has.  In particular, the
Supreme Court has not determined that women are a "suspect class";
this means that the standards of judicial review applied in sex
discrimination cases are not as rigorous as in some other situations.

(See Craig v. Boren, Rostker v. Goldberg, Gelduldig v. Aiello, all
modern gender-based discrimination cases.)

Please note as well that freedom of speech admits only minor and (hopefully)
limited restrictions: the so-called "fighting words", although that doesn't
appear much anymore; "obscene speech"; certain forms of symbolic speech
which might involve conduct; issues of "national security"; and certain
"time, place, and manner" restrictions.   I am aware of no Supreme Court
cases which render certain forms of speech subject to restriction on
the grounds that such speech is "discriminatory".

(See Chaplinsky v. New Hampshire, Roth v. United States, United States
v. O'Brien, New York Times Co. v. United States, and other cases.)

I strongly urge that no one base their concept of legal rights and
duties on what has been appearing in this forum; that includes this
article as well.

I am not an attorney.

Rich Kulawiec