by Eugene Volokh,
from reason.com, June 4, 2001
Workplace harassment law, the nationís number-one form of speech code, has taken yet another step toward controlling what we may read and say. Libraries, the federal Equal Employment Opportunity Commission has just ruled, may be breaking the law if they dare to give adult patrons complete and unfiltered Internet access.
One can argue about whether libraries have a constitutional duty to provide totally unfiltered access, even to adults. Some people say that a library should have the power to control what happens on its property, and to stop patrons from accessing sexually themed materials on library computers. Others say that even when government computers and buildings are involved, libraries may not censor Internet access.
But until now, most people had assumed that a library had a right to provide such access, if thatís how it understood its professional obligation. Not so, says the EEOC: Because some material accessed by patrons may be offensive to the librarians who end up seeing it, the law can punish libraries for allowing such unlimited access.
The case arose in Minneapolis, which used to provide unfiltered access to adults in its libraries. Many libraries do this, and this is, in fact, the approach suggested by the American Library Association.
Several librarians, however, filed an EEOC complaint based on what they say was "repeated exposure to sexually explicit materials," and an environment "which is increasingly permeated by [pornographic] images on computer screens, [and] is also barraged by hard copies of the same, created on Library provided printers." Other library employees likewise signed a letter saying that "Every day we. . .are subjected to pornography left (sometimes intentionally) on the screens and in the printers. . ..We feel harassed and intimidated by having to work in a public environment where we might, at any moment, be exposed to degrading or pornographic pictures."
In late May, the EEOC agreed, concluding that the libraryís toleration of unfiltered access crated a "sexually hostile work environment." If the library doesnít settle with the librarians, the EEOC may sue it to force compliance. According to press accounts, the EEOC is encouraging the library to settle the case by paying the librarians a total of $900,000.
Now I sympathize with the librarians -- I wouldnít want to work around pornography, either. Maybe the library could and should take steps to boost employee morale, even if that means constraining patrons in some measure; as I said, thatís a tough constitutional question.
But under the First Amendment, the librarians ought not be able to use the federal government, and the threat of massive legal liability, to force the library into making this decision. Remember that the law the EEOC is using against the Minneapolis libraries also applies to private libraries, such as libraries at private universities--and, for that matter, to private cyber-cafes and other access points, such as Kinkoís. The federal government has no right to pressure all these organizations to suppress their patronsí Internet access. Librariansí offense, even understandable offense, canít justify restrictions on First Amendment rights.
This is just the latest great leap forward for harassment law. Harassment law already forces employers to suppress sexually suggestive displays (not by any means limited to pornography), sexual jokes, politically offensive statements, and religious proselytizing.
During the Clinton scandals, employment experts sensibly suggested that employers had to suppress Clinton-Lewinsky jokes, because such jokes might have helped create a "sexually hostile work environment." The Department of Educationís Office for Civil Rights has argued that "educational harassment law" -- a body of law developed by analogy to workplace harassment law -- requires universities to implement student speech codes. The U.S. Civil Rights Commission has likewise argued that public accommodations harassment law outlaws American Indian team names and mascots, on the grounds that such symbols are racially offensive. The Massachusetts Commission Against Discrimination forced a Boston bar to take down a display that supposedly expressed racist viewpoints.
Workplace harassment law has already been used to suppress art displayed in universities and in government buildings. It was only a matter of time before it stepped in to censor libraries.
And of course workplace harassment law applies to racially and religiously offensive material as much as to sexually offensive material. Librarians can equally complain about patrons accessing supposedly racist material -- not just Nazi sites, but also Web pages for the sports teams with American Indian names that the U.S. Civil Rights Commission says are racially harassing. The same goes for patrons accessing supposedly religiously bigoted or blasphemous material.
Once the law tries to suppress offensive viewpoints--especially under the vague rubric of speech that is "severe or pervasive enough" to create a "hostile, abusive, or offensive work environment" based on race, religion, sex, and so on--the logic of the law keeps it spreading further and further outward. The strange career of harassment law is a sobering reminder that "slippery slope" arguments, while often abused, have a lot of truth to them. In a legal system such as ours, which is built on precedent and analogy, itís easy for even initially narrow speech restrictions to grow dramatically over time.
Some people argue that libraries should use technological solutions short of filtering--putting up privacy screens on their computers, for instance. Such screens, though, are far from perfect: People might still be able to see the screen when they walk by directly in front of the computer. Moreover, they do nothing about librariansí complaints about seeing offensive material in a printer bin. Setting up privacy screens gives libraries no immunity from massive legal liability.
But more important, even if itís wise for libraries to implement such solutions voluntarily, focusing on them misses the big question: Should the government be in the business of creating a nationwide speech code -- for public and private workplaces, universities, stadiums, libraries, and bars -- that use the force of law to suppress offensive speech and offensive viewpoints?
When the federal government insists that even libraries must become offense-free-zones--on pain of massive liability if the libraries should choose a more liberal approach--our First Amendment rights are in serious jeopardy.
Eugene Volokh (VOLOKH@mail.law.ucla.edu) is a professor of law at UCLA School of law, and the author of a forthcoming First Amendment textbook. His work on the tension between harassment law and the First Amendment is gathered athttp://www.law.ucla.edu/faculty/volokh/harass, and a recent article that focuses on free speech and harassment law in cyberspace is available at http://www.law.ucla.edu/faculty/volokh/harass/cyberspa.htm.