First Amendment Criticize Professors in CT... off to jail you may go.

Discussion in 'Bill of Rights' started by BushcrafterAnthony, May 8, 2013.


  1. I saw this incident posted on the 'Above The Law' and Volokh legal blogs and found it interesting (and infuriating):

    The Volokh Conspiracy » Law Student Arrested, Chiefly for Anti-Semitic and Racist E-Mail to Student Government (and for Offensive Posts About Professors)

    Law Student Arrested for Anti-Semitic, Racist, Threatening Comments « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law Schools, Law Suits, Judges and Courts + Career Resources

    The Jewish Press » » UConn Student Sends Nasty Emails to the Wrong Chosen People

    The First Amendment was meant to protect against criminalizing this type of speech - and that it does. Whether there may be civil implications is a separate matter.

    This woman seems like a loon, but the appropriate way to handle this would seem to be "internally," not through the legal system (same as if you had a nutty employee... sweep them under the carpet... ignore them and treat them like a person who habitually claims they see UFO's.... get rid of them.... give them an ultimatum to stop.... whatever).

    The seemingly malicious prosecution may fly in Canada, England, Belgium, German, and a handful of other Eurotrash countries (oops, hate speech), given their more generous "hate speech" laws, but heretofore it has been well protected speech. That is, at least that will be the case until gradual encroachment allows for prosecution of such speech by nefarious and subtle backdoor methods (such as ramming it through as a breach of peace or similar miscellaneous type charge).

    Naturally, we'll wait to see if there is "more to the story," but the relevant legal facts supporting the arrest should have been unofficially advanced by now if only to forestall claims by the opposition who would claim this is a free speech violation.

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    Law Student Arrested, Chiefly for Anti-Semitic and Racist E-Mail to Student Government (and for Offensive Posts About Professors)

    Eugene Volokh • May 3, 2013 4:03 pm

    Here are the relevant details from the affidavit in support of the arrest warrant:

    -----------------------

    http://www.volokh.com/wp-content/uploads/2013/05/barghwarrant.pdf



    "............ That, on February 25, 2013 at about 0855 an email was sent to the Student Bar Association (SBA) email account, (SBAIULAWSTUDENT@uconn.edu) which is located on the University of Connecticut School of Law, at 45 Elizabeth Street, Hartford, CT, from the account of a UConn Law Student named Anya K. Bargh (ANYA.BARGH@students.law.uconn.edu). This email stated: “Let’s celebrate diversity by having the next dean NOT be Jewish”

    That, on February 25, 2013 at about 0910 hrs another email was sent to the SBA from Bargh’s UConn Law account stating: “Here’s a hint, um, getting pretty sick from our all jew cast with a nigger on top”. That, the emails were opened by a Student Bar Association Committee member, Jessica Signor. Signor said this email stated: “Let’s celebrate diversity by having the next dean NOT be Jewish” was in response to an email that the Student Bar Association had sent all the students in reference to the new Law School Dean Search Committee. The Faculty/Staff and students who viewed these emails were offended and upset by the email.

    That SBA President Franklin Perry also received the emails. He said that during his experience here at UConn Law School, this is the first time in 3 years he had ever experienced anything close to bigotry. Perry said he is an African American male and was shocked and in disbelief. Perry said he doesn’t want the University of Connecticut in general to be affected by the perception of this type of person. He said he feels the University does not affiliate with these types of people. Perry said at one point he thought Bargh was aiming these comments on him, because he is African American and the President of SBA. Perry said after they forwarded the email to Dr. Brown (their advisor) he found out that the UConn Police Department was investigating the incident and feels it will be handled and taken care of.

    That SBA member Matthew Loftus said he went to his apartment and opened up the SBA’s email account and found the email from Anya Bargh. Loftus said the subject line was a reply for the Dean Search Committee. Loftus said the email read: “To celebrate diversity, let’s have our next dean not be a Jew.” Loftus said he thought this was offensive and out of line. Loftus said when he closed that email, he realized Anya Bargh had sent another email and he opened it and it read: “here is a hint, I am getting pretty sick of your all jew cast with a nigger on top.” Loftus said he read it three times could not believe that anybody in law school could give voice to that kind of ignorant hate. Loftus said he is a white non-religious person and was offended by the email. Loftus said he notified the rest of the executive board of the SBA and asked them how this situation is being handled. Loftus said he does not know Anya personally nor had taken any classes with her at the law school. Loftus said if there is a crime that Anya could be charged with, he would like to see her get arrested for it. Loftus said if Anya cannot be arrested he would hope she get expelled from the law school....

    That, while this affiant was investigating this incident, this affiant found some accounts under Bargh’s name registered with Yahoo!. Bargh had two Yahoo Flickr accounts under the names of: “anyabargh” and “AKBarbies.” In the AkBarbies public photo screen account, Bargh had written some disparaging remarks to Professors on the Law School Campus. That, Bargh had made some anti-semitic remarks and remarks of a sexual nature. Bargh made a remark about a Professor Peter Lindseth that said “honestly, peter, I hate you so much I would like to see you butchered and shit out like dog food” and “Mr. Lindseth will you please let me such your cock again?”, “It’s over, peter, you’re a faggot and that’s all. Not cute.” These are just a few comments, that Bargh made about Lindseth. Lindseth said when he heard about these comments, he became very upset and afraid for his safety and the safety of his family. Lindseth told this affiant that Bargh is trying to ruin his reputation with these remarks.

    That, the affiant became aware that Bargh had made comments about Professor Michael Fischl. Fischl said in the course of his interview with the affiant, he learned to his dismay that he remains on Bargh’s “radar”. Fischl said the affiant showed him one Internet posting by Bargh and read a second one. In the former, Bargh referred to Fischl as a “faggot” with a “gay classroom routine” who should be fired and sent back to Florida (where he had taught before coming to Connecticut in 2006). Fischl said in the other posting, Bargh stated that she was “horny” and wanted to be “slammed” by Fischl and two other professors. Fischl said this does not strike him as a school-girl crush or just letting off steam or fantasies on the Internet. Fischl said the bizarre combination of violent sexual imagery and homophobic slurs represents a direct and vicious attack on him, and her continued fixation on wanting to see him lose his job makes her afraid of what else she would do – beyond fabricating criminal and sexual harassment charges, posting vicious slurs on the Internet – to bring harm to him, Fischl gathers he is not the only one being targeted by Bargh. Fischl said the era of Newtown, Virginia Tech and Aurora, it is extremely worrisome to him that Bargh will eventually escalate her attacks and bring physical harm to him and/or others. Fischl said he sincerely hopes Bargh can get the much-needed help, but he is desperately concerned that she be stopped in the meantime.

    Professor James Stark was also mentioned under Bargh’s Flickr account comments. It stated “Fuck you James Stark. You owe me $3000 in pig fat.["]

    This affiant has spoken to these three professors that Bargh mainly targeted in her Flickr account and they all have had negative encounters with Bargh, either because of the grades they gave her or she mistook their acts of kindness to help her succeed in law school as sexual advancements. Bargh has filed complaints against Professors when she receives an unacceptable grade and the Professors feel that Bargh is tarnishing their reputations, especially when she posted these negative remarks on Social Media.... "

    ------------------------

    Above The Law has a summary of the story, with links to news accounts; the Hartford Courant likewise reports on it. Bargh wass arrested for second degree breach of the peace [53a-181] and second degree harassment [53a-183].

    Bargh seems like a foul individual, and it’s possible that she might be mentally unbalanced to some extent. (My sense is that the latter is what some of the people quoted in the warrant are worried about.) It’s also possible that one of the statements that she posted on her Flickr account — “honestly, peter, I hate you so much I would like to see you butchered and shit out like dog food” — might be a constitutionally unprotected “true threat” of violence, though I doubt it. (State v. LaFontaine (Conn. Ct. App. 2011) also suggests that the harassment statute isn’t properly used to prosecute threats, since threats are covered under “the two criminal threatening statutes, General Statutes §§ 53a-61aa and 53a-62.”) Likewise, some of the posts on her Flickr account might be libelous, if they are seen not as hyperbole or trash talk but as factual allegations, though again I doubt it, and in any event Connecticut doesn’t criminalize libel.

    But the bulk of the statements, including the ones that the arrest warrant notes most prominently, are fully constitutionally protected. If a student wants to e-mail the student government to express hostility to Jews or blacks, and to urge that there be fewer Jews and blacks in the law school’s leadership, that’s her First Amendment right. (Indeed, even leaving personal racist slurs on a government official’s office voicemail is constitutionally protected; sending such opinions to an impersonal student government e-mailbox is even more clearly protected.) Likewise, what someone posts on her Flickr account, Facebook account, and the like is constitutionally protected — including if it expresses a wish to be “slammed” by a professor, or insults the professor, or expresses a wish that the professor be fired — unless it is indeed a “true threat” of criminal conduct or a punishable false statement of fact about someone.

    It’s rare to see an actual American “hate speech” prosecution, largely because courts recognize that there is no “hate speech” exception to the First Amendment; but this seems to be one example. I am told that the case has been continued until May 29. If anyone has more facts on the story, I’d love to hear them.
     
  2. mysterymet

    mysterymet Monkey+++

    The lady is vile and what she said was nasty but it is also protected by the 1A. Kick her out of school. By arresting her she will just be able to sue the state and win.
     
  3. natshare

    natshare Monkey+

    Pretty sure that anyone would agree that SCOTUS has stated that free speech is NOT absolute. There are limits, such as slander and libel, as well as anything that could create a danger to the public (yelling fire in a crowded theater, for example).

    Since the civil rights era of the 60's, we have added hate speech, that protect people regardless of their sex, race, sexual preference, religion, etc. While you still have the right to think what you want, and to say it in the privacy of your own home, the moment you state it, publicly, and people find it offensive, you've crossed a line.

    In other words, just because you CAN say it, doesn't mean you SHOULD say it. At least, that's the way my momma taught me!
     
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  4. QUOTE: "... Since the civil rights era of the 60's, we have added hate speech, that protect people regardless of their sex, race, sexual preference..."
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    Not really. What we have added is federal anti-discrimination laws that are done under the auspice of the Commerce Clause. Fortunately, legislators have not yet found a way to 'make' (read: abuse) the Commerce Clause into a blank check trump card which can supercede the First Amendment in the particular manner which we are discussing.

    Any attempt to enjoin speech of this type (hate speech) will only be upheld by the court on extremely narrow grounds such as if it has a clear nexus to tangential regulations (e.g. certain workplace regulations.... or possible some Title IX horseshit can be worked in there by a clever prosecutor... but those kinds of exceptions simply are not going to fly for college student speech) are claimed to be justified under the Commerce Clause. However, hate speech which has no such nexus falls outside of such restriction and is virtually untouchable under preexisting First Amendment case law.

    Hate speech would have to rise to such a degree that it meets the incredibly high bar of the Brandenburg test in order to trigger a prosecution. That's why rogue prosecutors who want to try to restrict such speech have to resort to doing an end-run around the otherwise protected nature of such speech by trying to shoehorn in more vague catch-all charges (e.g. harassment or creating some kind of disruption).
     
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