Prof. Eugene Volokh, UCLA Law School *
Cite text as Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective, 1996 U Chicago Legal Forum 377, 414-21.
The foundation of workplace harassment law is the theory that harassment is itself discrimination: the denial to certain people of a particular kind of employment benefit -- a tolerable work environment -- based on their race, sex, and so on. This theory is equally applicable to other discrimination statutes, including laws that bar discrimination against patrons of places of public accommodation, such as libraries, restaurants, bookstores, and the like.
Some statutes make this explicit, prohibiting, for instance, "communication of a sexual nature" that creates "an intimidating, hostile, or offensive . . . public accommodations . . . environment." 1 Other statutes that speak only of discrimination have also been interpreted as barring harassment: For instance,
It's fairly well-established that other antidiscrimination statutes, which ban discrimination in education and housing, also apply to hostile environment harassment; 11 it stands to reason that the same would be true for public accommodations statutes. And just as workplace harassment law covers the speech of coworkers and -- at least in some Circuits -- educational harassment law covers the speech of classmates, 12 so public accommodations harassment law would cover the speech of fellow patrons. 13
Commentators have likewise suggested that bigoted speech by patrons of places of public accommodation -- including even bigoted speech on online services, such as America Online -- may be outlawed by harassment law. 14 Moreover, as with workplace harassment, the speech need not even be addressed directly to the offended customer; it's enough that it be seen or overheard. 15
Consider an example from a neighboring field, "hostile educational environment" harassment. In late 1994, in the wake of a controversy about an allegedly sexist ad in the Santa Rosa Junior College newspaper, some students posted sexist remarks about two female student newspaper staffers on a college-run electronic conference. 16 Though the female students didn't see the message, they eventually learned about it, and when they did, they filed a complaint with the U.S. Department of Education's Office for Civil Rights.
The Office concluded that the messages were probably "so severe and pervasive as to create a hostile [educational] environment on the basis of sex" for one of the students. 17 A college tolerating speech that creates a sexually hostile educational environment would, in the Office's view, violate Title IX of the Civil Rights Act. 18 If this is so, then a service provider tolerating similar speech on its computers would probably be violating public accommodations statutes.
For all the reasons I mention in my discussion of workplace harassment law, I believe that hostile public accommodations environment harassment law is itself unconstitutional. But its existence also shows that workplace harassment law is indeed starting us down the slippery slope to broader speech restrictions.
Once courts accept the notion that speech can be outlawed by workplace discrimination laws, it becomes much easier for them to hold that speech can be outlawed by almost identical public accommodation discrimination laws. If racially or sexually offensive speech by coworkers is, as some supporters of workplace harassment law have argued, "conduct, not speech," 19 then logically the same would be true of offensive speech by fellow bookstore or restaurant patrons. If workplace harassment law is justified by Congress's Commerce Clause powers "to regulate the national economy," 20 then so is public accommodations harassment law. Conversely, if public accommodations harassment law can't be justified on these grounds, then it seems clear that such grounds can't justify workplace harassment law. Perhaps some justifications, which are specific to the workplace, can do the job, but not these ones.
Analogy is a powerful force in our legal system. Supporters of workplace harassment law regularly use existing restrictions -- such as fighting words bans and obscenity law -- as analogies to justify workplace harassment law. 21 Likewise, once we recognize a "workplace harassment exception," we risk getting a lot more censorship than we bargained for.
1. Mich. Comp. Laws Ann. § 37.2103(i) (West Supp. 1995); see also Minn. Stat. Ann. § 363.01, subd 41 (West 1991); Mont. Admin. R. 24.9.609(2)(c) (1999); N.D. Cent. Code § 14-02.4-01 (Supp 1995); N.D. Cent. Code § 14-02.4.02 (1995); Cook County, Ill. ord. no. 93-0-13 art. V(c); Cambridge, Mass. Human Rights Ordinance § 2.76.120(N) ("It is an unlawful practice for any person to harass . . . or otherwise discriminate against any person in or upon any public accommodation because of the race, color, sex, age, religious creed, disability, national origin or ancestry, sexual orientation, gender, marital status, family status, military status or source of income of such person, or attempt to do so"); cf. Pennsylvania Human Rels. Comm'n publication (no date) (asserting that Pennsylvania state discrimination law bans public accommodations harassment "on the basis of your race, color, religion, national origin, ancestry, age (40 and above), sex, disability, use of a guide animal or having a GED instead of a high school diploma"); New Jersey Dep't of Law & Pub. Safety, Sexual Harassment■Your Rights (May 1997) ("Sexual harassment . . . is against the law . . . when you try to enter or join an organization that solicits members from the general public"); Iowa Civil Rights Comm'n, Sexual Harassment in the Workplace: It's Against the Law ("The Laws That Prohibit Harassment . . . . The 'Iowa Civil Rights Act of 1965´ . . . does not expressly define or prohibit sexual harassment, but such behavior is recognized by the courts as a form of prohibited sex discrimination. The state law . . . prohibit[s] sex discrimination in the area of housing [and] public accommodations . . . ."); New Jersey Dep't of Law & Pub. Safety, Sex Discrimination: Your Rights ("Where is Sex Discrimination [including hostile environment harassment] Against the Law? . . . Places of Public Accommodation"); New York City Comm'n on Human Rights document at http://www.ci.nyc.ny.us/nyclink/html/serdir/html/missions.html (asserting that New York City human rights law bars public accommodations harassment "on the basis of race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, disability, marital status . . . lawful occupation . . . and record of conviction or arrest").
2. Bond v. Michael's Family Restaurant, Wisc. Labor & Indus. Rev. Comm'n, Case Nos. 9150755, 9151204 (Mar 30, 1994). The case suggested that this theory may be limited only to speech by the restaurant owner, but a later case by the same agency made clear that the proprietor can be held liable for a hostile environment created by its patrons, so long as it is able to eject patrons but declines to do so. Neldaughter v. Dickeyville Athletic Club, Wisc. Labor & Indus Rev. Comm'n, Case No. 9132522 (May 24, 1994); see also D'Amico v. Commodities Exchange, Inc., 1997 N.Y. App. Div. LEXIS 506 (holding that proprietor of a place of public accommodations was responsible for harassment by fellow patrons).
See also Harris v. American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995) (passenger sued airline based on racist statement made by a fellow passenger; court held that in the airline context such state claims are preempted by federal aviation law); Hodges v. Washington Tennis Service Intl, Inc., 870 F. Supp. 386 (D.D.C. 1994) (health club member sued club over racist statements made by employee; claim dismissed on procedural grounds); In re Totem Taxi, Inc. v. New York State Human Rights Appeal Bd., 65 N.Y.2d 300, 480 N.E.2d 1075, 491 N.Y.S.2d 293 (1985) (passengers sued taxi company over racist statements and threats made by taxi driver; claim dismissed because company had taken reasonable steps to prevent such conduct); Comm'n on Human Rights & Opportunities vs. Mills, case no. 9510408 (Aug. 5, 1998), reported in Conn. Law Trib., Sept. 21, 1998 (recognizing hostile public accommodations environment cause of action) compare King v. Greyhound Lines, Inc., 61 Or. App. 197, 656 P.2d 349 (1982) (customer sued bus company over racist statements made by an employee; court held for customer, but suggested that the law might not cover racist statements made by a fellow patron, and that employment harassment law might not be an apt analogy).
3. In re Minnesota by McClure v Sports & Health Club, Inc., 370 N.W.2d 844, 872-73 n.40 (Minn. 1985) (Peterson, J., dissenting); id. at 853 & n.16; id. at 867 n.25 (Peterson, J., dissenting). See also Department of Fair Emp. & Housing v. University of Cal., 1993 WL 726830, *14 (Cal. F.E.H.C.) (interpeting California public accommodations law as applying to sexual and racial harassment). But see Haney v University of Illinois, No 1993SP0431, 1994 WL 880339 (Ill. Human Rights Comm'n) (holding that state public accommodations law does not bar the creation of a hostile environment, in large part because of free speech concerns).
4. State Div'n of Human Rights v. McHarris Gift Center, 52 N.Y.2d 813, 418 N.E.2d 393, 436 N.Y.S.2d 878 (1980) (Cooke, J., dissenting).
5. South Dakota Dep't of Commerce & Reg. Div'n of Human Rights, Sexual Harassment (no date).
6. In re Urban League v. Sambo's, No. 011790461 (R.I. Comm. Hum. Rts. Mar. 16, 1981). But see Sambo's v. City Council of City of Toledo, 466 F. Supp. 177 (N.D. Ohio 1979) (holding that it was unconstitutional for a city to deny sign permits to Sambo's because of its name); Sambo's Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) (arguing that use of "Sambo's" name was protected by the First Amendment); id. at 696 (Keith, J., dissenting) (arguing the contrary).
7. In re Craig, 1996 WL 907560 (Chi. Comm'n Hum. Rel.). See also In re Miller, 1998 WL 307868 (Chi. Comm'n Hum. Rel.) (finding racial public accommodations harassment based on racial epithets during two phone calls made in the context of a dispute over price of plumbing services); In re Ross, 1995 WL 907568 (Chi. Comm'n Hum. Rel.) (sexual harassment in public accommodations).
8. In re Plochl, No. 92-PA-46 (Chi. Comm'n Hum. Rel. Oct. 4, 1993). A Chicago city ordinance bans discrimination -- and, according to the commission, therefore bans harassment -- based on "lawful source of income." Cf. Conn. Gen. Stat. Ann. § 46a-64 (likewise banning discrimination in public accommodations based on "lawful source of income"); D.C. Code. Ann. § 1-2519(a) (same); see also N.D. Century Code ch. 14-02.4-14 (same for discrimination based on "status with regard to . . . public assistance").
9. Note, A Public Accommodations Challenge to the Use of Indian Team Names and Mascots in Professional Sports, 112 Harv. L. Rev. 904 (1999).
10. Letter from U.S. Department of Justice, Civil Rights Division, Educational Opportunities Section to Mr. Bob Bowers, Superintendent, Buncombe County Public Schools, Jan. 22, 1999.
11. See, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir. 1995) (education); see also Honce v. Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993) (housing); Szkoda v. Illinois Human Rights Comm'n, 1998 WL 887884 (App. Dec. 16) (housing); Secretary v. Gutleben, 1994 WL 441981 (H.U.D. ALJ) (holding that racist statements by landlord violated hostile housing environment harassment law, and concluding that because "the Act's restriction on racially pejorative speech is similar to Title VII's restriction on sexually harassing speech[, i]t may therefore be considered a `secondary effect´ of the Act's prohibition of interference with rights protected by the act[, and thus constitutional under] R.A.V. v. City of St. Paul").
12. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990) (employer liable for harassing speech by coworkers); Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754, 755 (9th Cir. 1997) (employer liable for harassment by patrons); 29 C.F.R. § 1604.11(d),(e) (employer liable for sexual harassment by coworkers and by patrons); Oona S. v. McCaffrey, 1997 WL 458675 (9th Cir.) (educator liable for harassment by classmates). But see Rowinsky v. Bryan Independent School Dist., 80 F.3d 1006, 1016 (5th Cir. 1996) (holding that educator is not liable under Title IX for harassment by classmates; this seems to be the minority view); Davis v. Monroe County Bd. of Educ., 1997 WL 475207 (11th Cir.) (en banc). Both Rowinsky and Davis rested on the special status of Title IX as an exercise of Congressional power under the Spending Clause -- such reasoning would not apply to state hostile public accommodations environment laws.
13. See Neldaughter v. Dickeyville Athletic Club, Wisc. Labor & Indus Rev. Comm'n, Case No. 9132522 (May 24, 1994) (proprietor of a place of public accommodations can be held liable for a hostile environment created by its patrons, so long as it is able to eject patrons but declines to do so); see also D'Amico v. Commodities Exchange, Inc., 652 N.Y.S.2d 294 (1997) (proprietor responsible for harassment by fellow patrons).
See also Harris v. American Airlines, Inc., 55 F.3d 1472 (9th Cir. 1995) (passenger sued airline based on racist statement made by a fellow passenger; court held that in the airline context such state claims are preempted by federal aviation law). But see King v. Greyhound Lines, Inc., 61 Or. App. 197, 656 P.2d 349 (1982) (customer sued bus company over racist statements made by an employee; court held for customer, but suggested that the law might not cover racist statements made by a fellow patron, and that employment harassment law might not be an apt analogy -- note that the case dates from a very early stage in the era of hostile environment litigation).
Likewise, the U.S. Department of Housing and Urban Development takes the view that offensive speech by fellow tenants can be illegal "hostile housing environment." See U.S. Department of Housing and Urban Development, HUD Report on Racial and Ethnic Harassment at Boston Housing Authority Finds Progress Made Since 1996, U.S. Newswire, May 15, 1999.
14. Stuart Biegel, Hostile Connections, L.A. Daily J. 7 (Aug. 22, 1996) (focusing on cyberspace); Deborah M. Thompson, "The Woman in the Street": Reclaiming the Public Space from Sexual Harassment, 6 Yale J. L. & Feminism 313 (1994) (accepting the notion that public accommodation laws bar harassing speech, and suggesting that they be extended to patrons of public parks); see also Robert A. Sedler, The Unconstitutionality of Campus Bans on "Racist Speech": The View from Without and Within, 53 U. Pitt. L. Rev 631, 673 (1992) (asserting that racist statements by employees of places of public accommodation to customers violate laws that bar discrimination in public accommodation).
15. See, e.g., Bond v. Michael's Family Restaurant, Wisc. Labor & Indus. Rev. Comm'n, Case Nos. 9150755, 9151204 (Mar 30, 1994); South Dakota Dep't of Commerce & Reg. Div'n of Human Rights, Sexual Harassment (no date) (stating that "racist or sexist statements displayed in a public accommodation which affect a person's ability to use and enjoy those accommodations" are illegal); In re Urban League v. Sambo's, No. 011790461 (Mar. 16, 1981) (finding that calling a restaurant "Sambo's" violated public accommodations laws).
16. The remarks were "anatomically explicit and sexually derogatory," but there was no allegation that they were threatening or otherwise generally outside the First Amendment's protections. Letter from John E. Palomino, Regional Civil Rights Director for United States Department of Education, Office of Civil Rights, to Dr. Robert F. Agrella, President of Santa Rosa Junior College 2 (June 23, 1994) (on file with author).
17. See id. at 7. The message was posted on a men-only conference -- by student request, SOLO included men-only and women-only conferences as well as integrated ones -- but this factor didn't affect the OCR's harassment analysis. It seems to me that, if the messages were posted on an integrated conference, especially one which the offended women read, this would have only exacerbated their harassing effect.
18. The Office concluded the college didn't violate Title IX, but only because it "took immediate action to remedy the harm . . . and to prevent sexual harassment from occurring in the future." Id. at 8. Cf. U.S. Department of Education, Sexual Harassment: It's Not Academic (describing the Department of Education's view that, even in "colleges and universities," "displaying or distributing of sexually explicit drawing, pictures and written materials" and "sexual or `dirty´ gestures" may constitute harassment if "severe, persistent, or pervasive" enough).
See also CMU Disciplinary Charges, at http://joc.mit.edu/charges.html, reporting various "harassment" claims based on online speech at Carnegie Mellon University.
19. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991) ("[pornographic] pictures and verbal harassment are not protected speech because they act as discriminatory conduct in the form of a hostile work environment").
20. Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev. 461, 540 (1995), makes this argument. To my mind, it is singularly unpersuasive; of course Congress has Commerce Clause powers, but they are constrained by the Free Speech Clause. See Eugene Volokh, How Harassment Law Restricts Free Speech, 47 Rutgers L. Rev. 563, 573 (1995).
See, e.g., David B. Oppenheimer, Workplace
Harassment and the First Amendment: A Reply to Professor
Volokh, 17 Berkeley J. Emp. & Lab. Law 321, 322-25 (1996);
Eugene Volokh, Thinking Ahead About Freedom of Speech and
Hostile Work Environment Harassment, 17 Berkeley J. Emp. &
Lab. Law 305, 319 (1996).