Law Commons^™

'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Much Critical commentary concerning the so-called "divisive concepts" provisions in this year's budget legislation has focused on their restrictions on speech. These restrictions, among other things, forbid public K-12 teachers from instructing that some persons are "inherently superior or inferior to [others]", "inherently racist or sexist," "should be discriminated against," or "should not attempt to treat others equally" because of their "age, sex gender identity, sexual orientation, race, creed, color, marital status, mental or physical disability, religion, or national origin."

New Hampshire's 'Divisive Concepts' Law And The Big Chill, John M. Greabe

Law Faculty Scholarship

[Excerpt] "

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others]” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or …

The Supreme Court's Worst Decision In Recent Years--Garcetti V. Ceballos, The Dred Scott Decision For Public Employees, David L. Hudson Jr.

Law Faculty Scholarship

The United States Supreme Court decision of Garcetti v. Ceballos deserves its rightful place in the Court’s hall of shame. In Garcetti, the Court issued a decision that serves as a Dred Scott-type ruling for public employees, diminishing their free speech rights to an unacceptable level. The Court created a categorical rule that public employees have no free speech rights when engaged in official, job-related speech.

Under Garcetti, it does not matter how valuable an employee’s speech is, how much corruption that speech exposes, or whether the speech informs the public regarding an important issue. Instead, the five-justice majority focused …

Essay: The Fighting Words Doctrine: Alive And Well In The Lower Courts, David L. Hudson Jr.

Law Faculty Scholarship

The fighting words doctrine is alive and well in the lower courts. The first part of this article briefly explains how the fighting words doctrine has fared in the U.S. Supreme Court. These results would seem to indicate that it would be rare indeed for a defendant’s words to fall under the fighting words exception. That is not always the case. The next part of this article provides a sampling of decisions in which lower courts have rejected First Amendment-based defenses to disorderly conduct, breach of the peace, or similar charges based on the fighting words doctrine. The final part …