Freedom of Speech vs.

Workplace Harassment Law —

A Growing Conflict


Prof. Eugene Volokh, UCLA Law School




What speech can Hostile Work Environment Harassment Law restrict?




Religious articles in newsletter and Bible verses on paychecks — “religious harassment,” says a court.


Anti-veteran posters at Ohio State University — “veteran status harassment,” says the federal government.


Goya’s “Naked Maja” painting displayed in a classroom — sexual harassment, claims a professor; university takes the painting down for fear of liability.


“Any racial, religious, ethnic or other remarks . . . contrary to their fellow employees’ religious beliefs”prohibited harassment, says a court injunction.


“Any and all offensive . . . speech implicating considerations of race”prohibited harassment, says another injunction.


“Where pure expression is involved, Title VII steers into the territory of the First Amendment.  It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial, or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech.”  Circuit Judge Edith Jones, writing (albeit in dictum) for a unanimous panel of the Fifth Circuit, DeAngelis v. El Paso Mun. Police Officers’ Ass’n, 51 F.3d 591 (5th Cir. 1995).


Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski's speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49; Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir.2001); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir.1995). ‘There is no categorical ‘harassment exception’ to the First Amendment's free speech clause.’ Saxe, 240 F.3d at 204 [written by then-Circuit-Judge, now Supreme Court Justice, Samuel Alito].” Chief Judge Alex Kozinski, writing for a unanimpus panel of the Ninth Circuit, Rodriguez v. Maricopa County Community College Dist., 605 F.3d 703 (9th Cir. 2010).


With little fanfare, “workplace harassment law” has become one of the government’s broadest — and most constitutionally troublesome — speech restrictions.  It has been used to suppress, among other things,

·                 political statements,

·                 religious proselytizing,

·                 art, such as prints of Francisco de Goya paintings,

·                 sexually themed (perhaps not even misogynistic) jokes.

Harassment law has done a lot of good, and much of it is constitutionally valid.  But other parts are serious threats to free speech.


This Web site is a resource for lawyers, researchers, students, writers, and citizens interested in the conflict between the freedom of speech and workplace harassment law.  It’s heavily footnoted, and borrowed largely from articles I’ve published in legal journals.  It’s organized as follows:






What kinds of speech harassment law suppresses

First Amendment analysis of harassment law

Allowing restrictions on conduct and one-to-one speech, but not other kinds of speech




Procedural First Amendment issues in harassment cases

Harassment law slipping beyond the workplace

Harassment law restricting cyberspace speech

Q & A

Questions & answers for lawyers




      Reference Materials





Sources of harassment law (state and federal)

What some courts have said about the First Amendment issue

Bibliography of leading harassment law articles (from all perspectives)




Keyword index of materials on this site

About the author of this site

How to use and cite materials on this site




Topical Index


Art restricted by harassment law

Author of this site


Bose Corp. v. Consumers Union

Captive audience doctrine

Court cases confronting the free speech defense

Countervailing constitutional values arguments

Cyberspace — how harassment law restricts access to it

Employer rights to restrict employee speech


Every place is a workplace

Evidence, speech as

Fighting words doctrine

Gissel Packing Co., NLRB v.

Government employee speech doctrine

Harris v. Forklift Systems, Inc.

Injunctions restricting speech

Jokes restricted by harassment law

Libraries restricting speech because of the risk of harassment liability

Mixed speech and conduct claims

Patrons, how workplace harassment law restricts speech by them

Political speech restricted by harassment law


Public accommodations, how hostile public accommodations environment law restricts speech

Public forum doctrine

R.A.V. v. City of St. Paul

Secondary effects doctrine

Slippery slope dangers

Speech sold by employer, how harassment law restricts it

State action, why harassment law is

Time, place, and manner restrictions

Union-related speech restricted by harassment law

Vagueness of harassment law

Value of workplace speech

Veteran status harassment

Workplace speech is constitutionally protected



About the Author


Eugene Volokh teaches constitutional law at UCLA Law School.  He’s written five law review articles about free speech and workplace harassment law, which have been cited in 10 court decisions and 70 law review articles.  He has been cited or quoted on this subject in the New York Times, The New Republic, U.S. News & World Report, Harper’s Magazine, the Chicago Tribune, Forbes, and many other publications.


He is also the author of many other scholarly articles on constitutional law and other legal topics, which have appeared in the Yale Law Journal, the Harvard Law Review, the Stanford Law Review, the Supreme Court Review, the NYU Law Review, the Pennsylvania Law Review, the Michigan Law Review, the UCLA Law Review, and other publications.  He clerked for Judge Alex Kozinski on the U.S. Court of Appeals for the 9th Circuit, and for Justice Sandra Day O’Connor on the U.S. Supreme Court.  For a full c.v., click here.



About this Site


This site is largely composed of excerpts from published law review articles, though modified for readability, and updated to reflect new cases.  For some materials, I’ve tried to keep the footnote numbers the same as in the original, which explains the missing and fractional footnotes.


How to Cite:  I generally indicate the source of each document with a “Cite text as:” message at the very top.  This will let you cite the work as general support for a proposition.  If you want to cite to an exact page number, you might want to pull the article from the library.


Reproduction:  If you want to reproduce any part of this Web site, or of my articles, for any nonprofit purpose, please feel free to do so.  I’ve retained the copyright in these works, and hereby give you an unlimited, nonexclusive right to copy them for nonprofit purposes.  I’d prefer, though, if you checked with me before excerpting anything, so I might speak up if it looks like something important might be missing.  If you want to reproduce the piece for profit — for instance, in a casebook — I’ll generally be happy to give permission, too, but I’d like you to check with me first.