One of the problems of having a big, powerful bureaucracy is the potential for “legislation by regulation.” Now, the federal Departments of Education and Justice went one better than that, according to the senior VP of the Foundation for Individual Rights in Education, Robert Shibley. In a Pope Center article, he writes that the federales “effectively repealed the First Amendment for college students and faculty members” in a ruling concerning a controversy over sexual assault at the University of Montana.
The ruling appears to be a thinly veiled power grab, using a remarkably broad definition of sexual harassment as “any unwelcome conduct of a sexual nature” to stifle political speech that touches on sex, such as expressing an opinion on gay marriage.
Shibley said that it can pretty much make an entire campus guilty of harassment, as anybody who is “unreasonably offended by hearing (or overhearing) anything having to do with sexual or gender-based topics” will be able file a harassment charge against the speaker.
Fortunately, the free-speech advocates at FIRE are all over this one. And there may not be a lot of popular support for government encroachment on our fundamental rights of expression at the moment, given the scandals about politicization of the IRS and spying on reporters. Still, it’s one more step in a frightening direction that could take years to sort out.