Freedom of expression is one of the most fundamental rights afforded by the United States Constitution. Moreover, as it has been interpreted by the Supreme Court, this freedom persists even if what is being expressed is offensive to others -- persists up to a point, that is.
The discovery of the "sex newsletters" produced by members of Zeta Psi fraternity has raised just such a question: Whether such a publication falls under the aegis of the First Amendment's guarantee that "Congress shall make no law ... abridging the freedom of speech."
The New Hampshire criminal code defines criminal defamation as the purposeful communication "to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule," a crime which earns the offender a class B misdemeanor.
When false statements are in the form of malicious writing or printed publication, the offense is termed libel.
Yet whether written or said, the crux of an issue such as the Zete papers, which describe lewd references to sexual acts between brothers and named female students, is whether or not the statements are based on fact.
Libel "occurs when you take something that isn't true and spread it around," according to Christine Gordon, an attorney with Wadleigh, Starr & Peters in Concord, N.H., who practices tort law.
If what is said is true, however, even if it hurts a person's reputation or is said in an offensive manner, then it might not be libelous, Gordon said.
A person or organization can defeat a defamation action by claiming the right of free speech, explained Peter Brown, an Associate Attorney with Frank A. Smith & Associates in Boston.
"But you can't have a reckless disregard of the truth," he said, defining the point at which free speech ends and libel begins.
If you publish something, you have to make sure what you print is backed by fact, he added.
Melissa Heaton '02, one of the women named in the papers, confirmed the false nature of statements made about her, and said that at least one lawyer she consulted said her case sounded as if it would be considered libel. However, Heaton said she would not be pressing formal charges.
Yet, as evidenced with last term's Psi Upsilon fraternity incident, administrators, and not the Constitution, have the final word as to what is and is not appropriate speech for a College-recognized organization.
