Prof. Eugene Volokh, UCLA Law School
OK, Volokh, you might say, all this is nice in theory, but do you really expect courts to strike down workplace harassment law?
Well, to begin with, I don't argue that should actually strike down harassment law -- declare it to be entirely unconstitutional. As I've mentioned (click here) there's no First Amendment problem with punishing unwanted physical contact, or sexual extortion, or discriminatory job assignments, or threats. More controversially, I also argue (click here) that the government may even punish one-to-one insults, unwanted sexual propositions, and the like. The argument is for limiting harassment law, not overturning it entirely.
Second, from a defense lawyer's perspective, it's not necessary that the arguments be sure winners. It's enough that there be some real chance of them being accepted, either by the trial judge or on appeal. This is especially so because, as I mention in my article on "Freedom of Speech and Appellate Review in Workplace Harassment Cases", raising the First Amendment arguments can get you procedural advantages on appeal even if the court rejects the arguments on substantive grounds.
And in fact, many judges have indeed shown a willingness to limit harassment law in the name of the First Amendment. Consider the words of Judge Edith Jones, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in DeAngelis v. El Paso Mun. Police Officers' Ass'n: 1
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. (Footnote: We do not mean that sexual propositions, quid pro quo overtures, discriminatory employment actions against women or "fighting words" involve the First Amendment.) See Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791 (1992); Kingsley R. Browne, Title VII as Censorship: Hostile Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481 (1991). Whether such applications of Title VII are necessarily unconstitutional has not yet been fully explored. The Supreme Court's offhand pronouncements are unilluminating. (Footnote: The Court's [R.A.V. decision] does not mean that Title VII trumps First Amendment speech rights.)Another Fifth Circuit panel echoed this in Weller v. Citation Oil & Gas Corp.,: 2
In DeAngelis, we noted the yet unresolved dilemma facing courts adjudicating claims at the intersection of Title VII and the First Amendment [quoting DeAngelis]. Supreme Court precedent in this area provides little guidance concerning whether conduct targeted for its expressive content, like [the religious diatribe involved in this case], may be regulated under Title VII. See Wisconsin v. Mitchell, 508 U.S. 476, 485-87 (1993) (holding that conduct not targeted on the basis of its expressive content may be regulated under Title VII). Because we find that the evidence was insufficient to support the jury's verdict, we leave this troubling question for another day.Likewise, Jew v. University of Iowa, rejected a free speech defense because the speech was allegedly slanderous and thus constitutionally unprotected, but suggested that "[f]ree speech . . . considerations might preclude Title VII liability if the [rumors spread by the other employees] were true." 3 The New Jersey state intermediate appellate court in Baliko v. Stecker similarly said: 4
Because the acts of harassment which the plaintiffs allege were solely verbal, this case requires the resolution of an apparent conflict between [state harassment law] and the free speech guaranty of the First Amendment. See Eugene Volokh, Note, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791 (1992); Kingsley R. Browne, Title VII as Censorship: Hostile Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481 (1991). . . . We have not attempted to deal with the problem both because it should be considered in the light of a full factual record and because it was not fully briefed or argued by the parties. . . . [T]he case is remanded to the trial court for further proceedings not inconsistent with this opinion.
The DeAngelis, Weller, and Jew statements were dictum, and all four of the above cases just flagged the issue, rather than dispositively resolving it. Nonetheless, it seems clear that the judges had at least some sympathy for the First Amendment defense. Especially in DeAngelis and Weller, the judges didn't have to talk about the question, but they did talk about it, and in terms that show they're troubled by it.
And in fact some courts have held that constitutional principles trump harassment law, albeit in particular narrow contexts. Thus, in Meltebeke v. Bureau of Labor and Industries, 5 the Oregon Supreme Court held that the Oregon state constitution's Free Exercise Clause in certain contexts trumped a religious harassment regulation. Johnson v. County of Los Angeles Fire Dep't 6 held that the Fire Department's sexual harassment policy, which barred even possession of sexually suggestive material in the workplace, violated the First Amendment. Henderson v. City of Murfreesboro, 7 held that Murfreesboro couldn't justify its decision to take down a painting depicting a partly nude woman on the grounds that people complained that it was "sexually harassing." I collect in a footnote some more cases that touch on this. 8
Other judges -- largely federal district judges -- have summarily rejected free speech defenses. The leading such case is Robinson v. Jacksonville Shipyards, 9 a 1991 trial court case that I extensively criticize in other parts of this Web site (click here). Robinson at least includes some sort of free speech analysis, albeit one I think mistaken; several other (almost entirely trial court) cases simply dismiss the defense out of hand. 10
The one other case rejecting a free speech defense with a thorough discussion is Aguilar v. Avis Rent-a-Car System, Inc., in which the California Court of Appeal held -- over a bitter dissent -- that a trial court could issue an injunction banning racial epithets by an employee; the dissenting judge considered this an unconstitutional prior restraint. 11 The California Supreme Court has agreed to rehear the case, and should render a decision some time in late 1997 or early 1998.
In Venters v. City of Delphi, the Seventh Circuit "acknowledge[d] . . . that there may be some tension between the rights that [an employee] enjoys under . . . Title VII and [an offensive supervisor's] First Amendment rights." 12 Nonetheless, the Circuit held that the speech alleged in the case -- threats of retaliation if plaintiff didn't follow a supervisor's religious views, coupled with "highly personal remarks about the status of [plaintiff's] soul [made after the supervisor was] informed that these remarks were unwelcome" -- was not constitutionally protected.
It's quite clear that the First Amendment doesn't protect threats of retaliation, and as I argue elsewhere on this site, I believe unwanted one-to-one speech is also unprotected. The Seventh Circuit's result is thus quite consistent with my general thesis, as is the Circuit's willingness to at least "acknowledge [the] tension between free speech and harassment law." Unfortunately, the court explicitly declined "to draw lines at this juncture," so the case tells us little about the free speech / harassment law conflict more broadly.
Finally, it's clear that the Supreme Court has not decided this question. In R.A.V. v. City of St. Paul, the Court said, in dictum, that: 13
[A] particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.But, as I discuss in more detail elsewhere (click here), and as the Fifth Circuit aptly pointed out, this "offhand pronouncement[ is] unilluminating," and "does not mean that Title VII trumps First Amendment speech rights." Among other things, note that the text explicitly speaks only of sexually derogatory "fighting words," which are indeed "a proscribable class of speech." It says nothing about sexual jokes or "sexually suggestive" art or sexist political statements, which generally do not fall within "a proscribable class of speech."
One other recent case, Harris v. Forklift Systems, 14 did generally read harassment law fairly broadly, but it did not discuss the free speech defense. No such defense was raised either at trial or before the court of appeals. 15 "It is [the Supreme Court's] practice to decline to review those issues neither pressed nor passed upon below." 16 And it's equally black-letter law that "cases cannot be read as foreclosing an argument that they never dealt with" 17 -- Harris, which didn't deal with a free speech defense is no obstacle to future free speech claims.
1. 51 F.3d 591, 596-97 & n.6-7 (5th Cir. 1995).
2. 84 F.3d 191, 194 n.6 (5th Cir. 1996).
3. 749 F. Supp. 946, 961 (S.D. Iowa 1990).
4. 275 N.J. Super. 182, 645 A.2d 1218 (1994).
5. 322 Or. 132, 903 P.2d 351 (1995).
6. 865 F. Supp. 1430 (C.D. Cal. 1994).
7. 960 F. Supp. 1292 (M.D. Tenn. 1997).
9. 760 F. Supp. 1486 (M.D. Fla. 1991).
10. Citing Robinson: Berman v. Washington Times Corp., 1994 WL 750274 (D.D.C.); Bowman v. Heller, 1993 WL 761159, *7 (Mass. Super. Ct.), rev'd on other grounds, 420 Mass. 517, 651 N.E.2d 369 (1995); Baty v. Willamette Industries, Inc., 1997 WL 292123 (D. Kan. May 1); see also Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 675 A.2d 684 (App. Div. 1996) (citing Robinson but also pointing out that the free speech issue should not be decided without adequate briefing, citing Baliko v. Stecker).
Citing R.A.V. v. City of St. Paul: Jarman v. City of Northlake, 950 F. Supp. 1375, 1379 (N.D. Ill. 1997); Johnson v. Evelith Taconite Co., 824 F. Supp. 847, 884 n.89 (D. Minn. 1993); EEOC v. Acorn Niles Corp., No. 93-C-5981, 1995 WL 519976 (N.D. Ill.). I explain below why I think R.A.V. does not resolve the constitutionally of workplace harassment law.
See also Trayling v. Board of Fire & Police Comm'rs, 273 Ill. App. 3d 1, 14, 652 N.E.2d 386, 395 (1995) ("Plaintiff requests we invalidate [harassment law's] prohibition against sexual harassment . . . He, however, cites no authority holding [such a] prohibition unconstitutional. We, therefore, decline plaintiff's invitation.").
11. 53 Cal. Rptr. 2d 599 (App. May 21), review granted, 921 P.2d 602 (Cal. 1996).
12. 123 F.3d 956 (7th Cir. 1997).
13. 505 U.S. 377, 389-90 (1992).
14. 510 U.S. 17 (1993).
15. See Harris v. Forklift Sys., Inc., 976 F.2d 733, 1992 WL 229300 (6th Cir. 1992) (unpublished); Harris v. Forklift Sys, Inc., 1991 WL 487444 (M.D. Tenn.).
16. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224 (1990); see also, e.g., Kentucky v. Stincer, 482 U.S. 730, 747 n.22 (1987).
Waters v. Churchill, 114 S. Ct. 1878, 1889 (1994) (plurality); see also, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (striking down a statute on constitutional grounds even though a similar statute had been upheld in the past, in a case where the constitutional attack had not been made: "Of course the unexplained silences of our decisions lack precedential weight."); Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) ("Petitioner contends that we are bound by [past cases], by way of stare decisis . . . . But since we have never squarely addressed the issue, and have at most assumed [the question at issue in this case], we are free to address the issue on the merits."); Miller v. California Pac. Medical Ctr., 991 F.2d 536, 541 (9th Cir. 1993).