The Case Of Professor Duane's Conduct And Freedom Of Speech

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The First Amendment forbids the abridgment only of "speech," but it 's been long recognized by the supreme court that its protection does not end at the spoken or written word. The question in the case of Professor Duane will be whether a particular conduct possesses sufficient communicative elements to bring the First Amendment into play, meaning, is there an intent to convey a particularized message with a likelihood that the message would be understood by those who view it. The argument could easily be made that by lecturing on sexual assault without the trigger warnings, that Duane absolutely had an intent to communicate his particular message (of education) under the assumption that the students would in turn understand and learn from …show more content…
Under the overbreadth doctrine, a law is unconstitutional and thus void for being too broad if it covers activities that are protected by the federal Bill of Rights or the rights listed in state constitutions. The First Amendment protects five basic rights, the most important in the syntax of protecting Duane’s conduct, freedom of speech. Applying Duane’s conduct in the lecture to overbreadth doctrine, which states: “if a statute extends to encompass substantially protected conduct and speech in relation to the legitimate reach of the statute, then it is overbroad and subsequently void on its face.” Looking at the text of the restriction, the initial "Instructors are required to offer appropriate warning and accommodation regarding the introduction of explicit and triggering materials used for lectures, discussions, and homework assignments.” is constitutional. Although, the second part, where actual examples are listed is not only extremely broad, it is extremely vague. For starters, the restriction for the warnings curtails “subject matters,” meaning, discussing these very specific topics requires the warning: “but are not limited to: sexual assault and any depiction of sexual violence; graphic images of extreme violence, mutilation, mayhem, gore; graphic images from any genocide including the Holocaust.” As mentioned before, the “not limited to” implies that there is much more rules and regulations …show more content…
While that wouldn’t necessarily make Duane a criminal, circumventing trigger warnings in the nature of school could potentially create a clear and present danger. The words of the clear and present danger test however go beyond just the danger, said danger has to bring about substantive evils that then congress would have a write to prevent. The phrase “substantive evils” on its own is incredibly indistinct, in addition, the clear and present danger test is a question of proximity and degree, and in the case of Schenck v. U.S. the clear and present danger was during times of war, making the proximity and degree less significant. In conclusion, the clear and present danger test is a solid approach for State University to take, although it would be difficult for the school to prove that Professor Duane brought about “Substantive

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