Hate Speech, the First Amendment, and Professional Codes of Conduct: Where to Draw the Line?

• DOI: http://doi.org/10.1111/j.1744-1722.2008.00044.x
• Published date: 01 February 2008
• Author: Jeffrey A. Mello
• Date: 01 February 2008

Hate Speech, the First Amendment,

and Professional Codes of Conduct:

Where to Draw the Line?

Jeffrey A. Mello

n

INTRODUCTION

In learning about law, students are often disappointed to realize that a

good deal of the practice of law involves interpretation rather than more

literal enforcement of the law. Indeed, the inherent ambiguity of most

federal, state, and local statutes provides a good deal of leeway in how cases

are argued and how the judiciary comes to interpret congressional intent.

Students understandably learn that a good deal of the law is not black and

white, and the ‘‘letter of the law’’ may indeed oftentimes be gray. For some

students the fact that the law is subject to interpretation is frustrating,

whereas to others, it provides exciting opportunities for analysis relative to

suggestions as to how the law should be interpreted.

Indeed, how the law is interpreted by the judiciary can often be a

game of chance for the parties in a legal proceeding. Even when a potential

outcome appears to be obvious, unanticipated and unprecedented

interpretations can make the walk into a courtroom analogous to a walk

into a gambling casino.

To add to this confusion, ambiguity, and, oftentimes, excitement are

the fact that members of the judiciary themselves may harbor inherent

biases toward certain classes of plaintiffs, issues, or attorneys appearing

before them. A judge is only human and may have had life experiences,

including indoctrination/teaching, that prohibit him or her from fully

ensuring that the law is blind to characteristics such as age, race, religion,

physical ability, sex, sexual orientation, or any other protected class

status. While any judge ideally should suspend her or his personal

r2008, Copyright the Author

Journal compilation rAcademy of Legal Studies in Business 2008

1

Journal of Legal Studies Education

Volume 25, Issue 1, 1–16, Winter/Spring 2008

n

Professor, Andreas School of Business, Barry University.

and/or religious beliefs and prejudices to ensure an impartial court,

frequent cases of bias are reported in the media, which, at best, question

the impartiality of a particular jurist and, at worst, result in allegations of

judicial misconduct.

This teaching case involves the presentation of an actual incident in

which a state commission on judicial performance had to balance a judge’s

First Amendment rights to protected free speech against his public

statements about a societal class/group that were deemed to be derogato-

ry and inflammatory and, hence, cast suspicion on his ability to uphold the

professional standards of the bench.

USES

This case can be used in courses to facilitate discussion related to public

policy, discrimination, the Constitution, and ethics and professional codes

of behavior. The specific uses of the case include:

exploration of the nature of free speech and whether this right should

be absolute;

consideration of the social, political, and religious arguments related to

discrimination based on sexual orientation; and

examination of the nature of standards or codes of ethics in professions,

specifically the judiciary.

SPECIFIC LEARNING OBJECTIVES

Parallel to the uses of this case, several learning objectives have been

developed. They are:

to explore what free speech entails and whether any restrictions should

be placed on it;

to debate whether discrimination based on sexual orientation should

be outlawed;

to debate whether religious-based exceptions to discrimination statutes,

in general, should be allowed; and

to consider whether judges should be expected to exercise restraints of

their right to free speech.

2 Vol. 25 / The Journal of Legal Studies Education