Questions & Answers about Free Speech and Workplace Harassment Law

Prof. Eugene Volokh, UCLA Law School


              Q:  Do courts take free speech defenses seriously?

              A:  Some courts do, some courts don't, but it's definitely worth making the argument.  Click for more information.


              Q:  My case involves a mix of political speech, insults, and physical conduct.  Can I raise a First Amendment defense?

              A:  Yes -- under black-letter free speech law, a lawsuit can't be based even in part on protected speech.  Click for more information.


              Q:  I doubt that any courts will find that the speech in my case is protected by the First Amendment.  Is there still anything useful on this site for me?

              A:  Raising a First Amendment defense can give you important procedural benefits, such as independent review on appeal, even if the court holds that the speech in your case is substantively unprotected.  Click here for more information.


              Q:  But wait -- private employers are allowed to restrict their employees' speech, so how can private employee speech be "free"?

              A:  The First Amendment protects people's speech -- on the street, in homes, in private workplaces -- from government restriction.  Whether or not the speech can be restricted by private people, it can't be restricted by the government.  For an explanation of why harassment law is state action, click here.  For an explanation of why speech in private workplaces is constitutionally protected, click here.


              Q:  Aren't private employees a "captive audience"?

              A:  Whether or not they are, this argument can't justify harassment law.  Click for more information.


              Q:  Didn't the Court in R.A.V. v. City of St. Paul uphold the constitutionality of harassment law?

              A:  No.  Click for more information.