Prof. Eugene Volokh, UCLA Law School
Cite text as Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791 (1992).
Through harassment law, the government is suppressing speech that it believes is harmful and offensive. This speech isn't limited to threats or insults, but includes political statements, religious proselytizing, art, and humor (click for details) -- material that's at the core of the First Amendment's protections.
This, I think, shows that harassment law is presumptively unconstitutional. Is there, however, some existing exception to First Amendment protection that justifies such a broad speech restriction? Or even if there isn't, should courts create a new exception?
Below, I argue that the answer to both questions is "no":
As applied to one-to-many speech, harassment law is an unconstitutional restriction on free speech.
Harassment law is a government-imposed speech restriction on people's speech: The government is enjoining certain kinds of speech, or awarding substantial compensatory and punitive damages based on speech.
This is most obvious when harassment law punishes an employer's own speech, or when a court enjoins employees themselves from speaking. 1 When the government is imposing liability on a private employer because of the speech of its employees -- thus giving the employer an incentive to restrict its employees' speech -- the situation is a little less familiar. Nonetheless, state action is clearly present there, too.
The best way of seeing this is through a simple hypothetical. Say Congress commanded that "Any employer that tolerates criticism of American soldiers shall be liable to any coworkers who are offended by such criticism, for instance those whose relatives were injured or killed in action." (This is actually not that far-fetched a hypothetical; such speech might well qualify as something akin to "veteran status harassment," a recognized claim under existing law. Click for example.)
For state action purposes, this law is identical to harassment law. 2 Instead of the government restricting people's speech directly, the government is pressuring private employers -- through the threat of liability -- into restricting the speech. But surely this cannot be constitutional. Private employers, of course, may restrict employees' speech with no First Amendment difficulties, just as private householders and private publishers may restrict speech on their property; 3 but when the government pressures the private employers into restricting speech, the First Amendment steps in.
The Court has recognized this distinction between what a private employer can do to the employee and what the government can force the employer to do. For instance, in Truax v. Raich a state law required that at least eighty percent of each employer's employees be citizens. 4 Raich, a noncitizen who was discharged because of this law, sued, alleging that the law was a denial of equal protection, 5 and the Court agreed. Though Raich's employer could have fired Raich at any time, the Court said, the state's attempt to force the employer to fire him was unconstitutional; the state, by imposing the eighty percent requirement on the employer, was acting directly upon the employee. 6
Similarly, in Peterson v. City of Greenville, a Greenville city ordinance required restaurants to be segregated, and plaintiffs were arrested for trespass when they ignored a lunch counter manager's demand that they leave. Though the Court agreed that the manager could have kept his lunch counter segregated, it held that the city could not have required the manager to do this: Imposing the requirement that the manager eject blacks was tantamount to the city's ejecting them directly. 7
Just as the government can't avoid Equal Protection Clause scrutiny by forcing private parties to discriminate, so it can't avoid First Amendment scrutiny by drafting private parties to implement speech restrictions. 8
The First Amendment protects workplace speech from government abridgement, so long as the communications "do not contain a `threat of reprisal or force or promise of benefit.´" "[A]n employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed"; and likewise, courts of appeals have held, for employees' free speech rights. 9
The Court has been more willing to find a threat or a promise in an ambiguous statement made by an employer or a union than in other situations. Workplace communications by the employer must be viewed in light of "the economic dependence of the employees on their employers, and the necessary tendency of the former . . . to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." And "[the] threat of retaliation based on misrepresentation and coercion [is] without the protection of the First Amendment." 10
But where no promise or threat is present, workplace speech, both by employers and employees, is fully protected. Federal appeals courts have regularly upheld free speech rights in cases in which no threat or promise could be implied, such as where a manager told his subordinates that they lost benefits by voting for a union; 11 where a union put out leaflets to plant employees revealing, contrary to an administrative judge's protective order, what happened at an administrative hearing; 12 where an employer asserted that unionization, by increasing costs, might lead to the plant's closing in the future; 13 where an employer encouraged injured workers to go through a company's claims representative instead of going to court; 14 and so on. 15
Harassment law cannot fit within the threat-or-promise exception. Except for actual threats and possibly certain kinds of sexual propositions made by a supervisor to a subordinate, no other forms of harassing speech could be viewed as threats or promises of benefit. The cases make clear that there has to be some fairly tangible evidence of threat. Abstract assertions that certain kinds of speech might be potentially menacing are inadequate, just like abstract claims that all employer speech on labor issues is necessarily threatening are inadequate.
Offensive as bigotry or pornography may be, courts thus cannot view it as inherently threatening at least until some evidence is shown in the particular case that the employee was actually threatened (rather than just offended) by it. Similarly, harassment that is largely the work of a single coworker, who has little power over the victim, 16 should rarely be threatening, though it could easily be very offensive. It may be true that some of the targets of bigoted speech might perceive such speech as inherently threatening, but one can also say that some employees might perceive any antiunion commentary by an employer as threatening. Gissel's "threat" exception does not reach far enough to cover either situation. 17
And Gissel makes perfect First Amendment sense. Speech in the workplace has no less value than the same speech outside the workplace. It might be that, as a statistical matter, "for the most part workplace speech will not [help form public opinion]," 18 but neither will most speech in some homes, magazines, or television shows. Surely this does not mean that the government can freely limit speech in those places. Jokes, posters, and political discussion are just as valuable in the workplace as elsewhere, and should be just as protected as elsewhere.
Of course, employee speech can always be restricted by private employers, who are not bound by the First Amendment. This cannot, however, authorize greater restrictions by the government. A householder is entitled to kick out dinner guests who say certain things. A commercial landlord can refuse to rent to tenants who put up certain posters. A newspaper publisher can refuse to publish articles with which he disagrees. A private university may restrict what its faculty say in class, or even what its students say on campus. Speech on private property can generally be controlled by the private property owner. But this in no way increases the power of the government to restrict speech in private homes, private shopping centers, private newspapers, private universities, or private workplaces.
Harassment law cannot be justified as a "time, place, or manner" regulation. Time, place, and manner regulations are permissible only if they are content-neutral; 19 harassment law is content-based, suppressing some kinds of speech (say, bigoted political statements) and not others. 20
Nor can harassment law be seen as focusing on the "secondary effects" of speech, and thus being "justified without reference to the content of the regulated speech." 21 The Court has many times held that the "direct impact that speech has on its listeners [--] the emotive impact of speech on its audience [--] is not a `secondary effect.´" 22 Thus, in Boos v. Barry, where the government tried to "protect the dignity of foreign diplomatic personnel" by restricting demonstrations hostile to foreign governments, the Court held:
[l]isteners' reactions to speech are not the type of "secondary effects" we referred to in [City of Renton v. Playtime Theatres, the case that pioneered secondary effects analysis]. To take an example factually close to Renton, if the ordinance there was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate. 23Harassment law is precisely the sort of thing that the Boos language describes -- a law justified by the desire to prevent psychological damage to the targets of the harassment -- and is therefore content-based. 24
Furthermore, time, place, or manner restrictions must in any event be viewpoint-neutral. The Renton Court explicitly justified its upholding of a speech restriction by saying that
[t]he ordinance does not contravene the fundamental principle that underlies our concern about "content-based" speech regulations: that "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." 25But much of the speech that harassment law suppresses is suppressed precisely because of its point of view; saying that women make bad policemen can give rise to liability, but saying that men and women should be treated equally cannot. 26 Such a viewpoint-based law cannot be justified as a mere "time, place, or manner restriction" -- as even the two most prominent defenders of the constitutionality of workplace harassment law, Suzanne Sangree and Deborah Epstein, agree. 27
R.A.V. v. City of St. Paul, which held that the government cannot impose viewpoint-based restrictions even on bigoted fighting words, specially distinguished (in dictum) workplace harassment law:
Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech. . . .
. . . .
[S]ince words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the nation's defense secrets), 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 [citing Barnes v. Glen Theatre, Inc., FTC v. Superior Court Trial Lawyers Ass'n, and United States v. O'Brien]. Thus, for example, 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. 28
This dictum makes clear that harassment law can constitutionally restrict sexually derogatory fighting words; and it suggests the same about an unspecified set of "other words," which seems to be referring to other proscribable words -- for instance, threats, obscenity, slander, and the like. 29 This does not by any means dispose of harassment claims based on nonproscribable speech, such as art, jokes, political statement, or religious proselytizing.
In fact, it's clear that the First Amendment generally prohibits speech from being punished based on its communicative impact, even when that impact places the speech "within the reach of a statute directed at conduct." For instance, the government may ban conduct that interferes with the war effort, but it may not constitutionally apply the ban to, say, antiwar publications whose communicative impact interferes with the war effort. 30 Likewise, many kinds of conduct may lead to liability under the torts of intentional infliction of emotional distress and intentional interfence with economic advantage -- but when the liability is triggered by the communicative impact of speech, as in Hustler v. Falwell and NAACP v. Claiborne Hardware, such a tort judgment must face First Amendment scrutiny. 31
When speech violates a general law because of its noncommunicative qualities, it may indeed be more readily punished. Thus, the government may generally apply a ban on interference with the draft to people who are demonstrating in a way that blockades a draft office, because the speech implicates the law because of its noncommunicative qualities -- because the speakers are blocking the door. This is even more clearly so when expressive conduct violates a general law because of its noncommunicative qualities: As R.A.V. says, "[N]onverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses." 32 The three cases that the R.A.V. dictum cited -- Barnes, Superior Court Trial Lawyers Ass'n, and O'Brien -- all involved laws that were violated by the noncommunicative aspects of the challengers' conduct (public nudity, economic boycott, and destruction of a draft card). 33
R.A.V. held that proscribable categories such as fighting words would, to a large extent, be treated as conduct rather than speech: "[T]he exclusion of `fighting words' [and other proscribable categories] from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a `nonspeech´ element of the communication." 34 The government may punish fighting words because of their tendency to cause a fight, though not because of the "hostility -- or favoritism -- towards the underlying message expressed." 35
The R.A.V. dictum thus reaffirms a basic principle: When a law is violated by the nonexpressive impact of speech, or by the proscribable impact of proscribable speech, then applying it to the speech will not require the strictest First Amendment scrutiny. But as Hustler v. Falwell, NAACP v. Claiborne Hardware, and the antidraft speech example show, protected speech may not be punished because of its communicative impact, even if the punishment is accomplished through a general law.
Harassing speech in the workplace, even when seen as a violation of the general ban on creation of work environments hostile to particular groups, 36 violates this ban precisely because of its communicative impact. Just as it was the communicative impact of the offensive parody in Hustler that inflicted emotional distress on Jerry Falwell, and the communicative impact of the boycott advocacy that hurt Claiborne Hardware's business, so it is the communicative impact of verbal workplace harassment that creates a hostile work environment for its victims. The fact that Title VII does not specifically mention speech cannot immunize it from First Amendment scrutiny when it operates to restrict speech because of the offensive or disfavored message the speech conveys.
Edith Jones of the Fifth Circuit, writing (also in dictum) in DeAngelis v. El Paso Mun. Police Officers' Ass'n, had it right:
The Supreme Court's offhand pronouncements [about harassment law] are unilluminating. . . . The Court's pronouncement in R.A.V., that "sexually derogatory `fighting words,´ among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices" does not mean that Title VII trumps First Amendment speech rights. Rather, as the next sentence in R.A.V. explains, conduct not targeted on the basis of its expressive content may be regulated. Citing R.A.V., the Court in Wisconsin v. Mitchell, 113 S. Ct. 2194, 2200 (1993), reiterated that conduct not targeted on the basis of its expressive content may be regulated by Title VII. However, application of Title VII to the "conduct" in the case sub judice [which involved sexist newsletter articles] would do precisely that -- regulate speech on the basis of its expressive content. 37R.A.V. suggests that the Supreme Court is sympathetic to the aims of harassment law. Quite likely it would be willing to stretch First Amendment doctrine to allow regulation of some harassing workplace speech, which is what I to some extent propose. But this sympathy for harassment law does not mean that the Court would uphold all of harassment law's speech restrictions under all circumstances, especially those that are far from the "fighting words" context in which the R.A.V. dicta arose.
Employees in the workplace are often said to be a "captive audience," and in a sense they are: Their jobs require that they remain in a particular place. 38 But what does this mean for others' rights to speak?
Posted Matter: When we say that people are "captive" to posted matter -- for instance, flyers on people's cubicles or bulletin boards -- we generally don't mean that they're compelled to stare at it for hours. Rather, we mean that they have to pass by it every so often, and risk seeing it out of the corner of an eye. Even if they studiously try to avoid looking at it, the very act of averting their eyes might only serve to remind them of the offensive message.
But of course this sort of "captivity" is extremely common, and is no justification for a speech restriction. Employees who have to cross a picket line may see, twice a day, picket signs that call them "scabs," or even hear similar statements made by the picketers. If they have to run errands, or if their workstations face the street, they may see the picket line even more often. But this doesn't allow the government to ban offensive picketing.
Likewise, people whose work takes them out into the street -- traffic police, pushcart vendors, workers who have to come and go from nearby buildings -- are "captive" to street demonstrations; and yet this doesn't cancel the demonstrators' right to speak, or even to speak offensively. Gardeners in UCLA's Sculpture Garden, or students or staff walking by on their way from parking to class, can't avoid seeing the sculptures of nudes that stand there. Drivers who must keep their eyes on the road may be "captive" to billboards that are unavoidably visible from their only route to work or school. Nonetheless, the government can't ban offensive sculptures or billboards.
Oral Remarks: Being "captive" to occasional oral remarks (or occasional e-mail) also doesn't mean literally being forced to listen to an extended harangue. The speech is thus pretty much over -- or is fairly easily avoidable, for instance by deleting the e-mail or by walking away from the speaker -- shortly after one realizes it's offensive. The captivity, though, comes from the fact that you may at any time be surprised by offensive speech: Every week or month or however often it happens, you'll unavoidably find yourself hearing things that you didn't want to hear.
But of course this is also true outside the workplace. We may at any time run into someone on the street wearing a "Fuck the Draft" jacket, or a shirt that says something even more offensive. We may at any time overhear someone using profanity, or even hear someone using it directly at us. We may at any time run into someone making an offensive political statement, whether it be burning a flag or criticizing a religion or wearing a swastika. 39 Averting our eyes won't erase the offensiveness of the speech, 40 or prevent us being offended in the future. Employees or not, we're all equally "captive" to occasional offensive remarks whenever we're surrounded by people whose behavior we can't control. Again, though, this can't justify restrictions on such speech.
The Doctrine: This is why the Court has acknowledged that "we are often `captives' outside the sanctuary of the home and subject to objectionable speech," 41 and concluded that despite this such speech can't be restricted. This was first made clear in Cohen v. California, where the government sought to bar public profanity. But even though constitutionally protecting such profanity made us all captive to it -- wherever we go on the street, we might run into profane or otherwise offensive speech -- the Court held that banning such profanity, even in the presence of a "captive audience," is unconstitutional.
Likewise, people who must cross a picket line, whether they be employees or patrons of important services, are captive to the picketers: For instance, as the Court seemed to acknowledge in Madsen v. Women's Health Center, abortion patients are "held `captive´ [to antiabortion picketing] by medical circumstance." 42 But despite this, the Court refused to uphold even content-neutral restrictions on displaying images observable by the incoming and outgoing patients, and on approaching patients within 300 feet of the clinic. The Court did uphold content-neutral restrictions on picketing within 36 feet of the clinic door, and on loud noises audible from inside the clinic, but both of these were justified by concerns other than the patients' "captivity." 43 Abortion clinic patients may be captive to antiabortion picketing, but the Court has not seen this as reason enough to suppress it.
The one case most often cited for the proposition that captive audiences can be protected through content-based restrictions, 44 Lehman v. City of Shaker Heights, actually holds no such thing. Lehman upheld the policy of a city government, acting as proprietor, allowing only nonpolitical ads on government-run municipal buses. The four-Justice plurality argued that the advertising space on the buses was not a public forum, and that therefore the city policy needed to meet only a deferential reasonableness test. 45 The four-Justice dissent argued that the advertising space was a public forum, and that the content-based restriction violated the First Amendment. 46
The one opinion that stressed the bus passengers' captivity was Justice Douglas's concurrence (the plurality considered captivity only as one factor in deciding that the advertising space was not a public forum). But even Justice Douglas believed that captive audience considerations would only justify content-neutral restrictions. In his view, "the content of the message [was not] relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message." 47 As Justice Douglas said a year later in Erznoznik v. City of Jacksonville -- where he agreed that a ban on drive-ins showing movies containing nudity was unconstitutional --
the interests of captive audiences [citing Lehman] . . . . cannot . . . justify attempts to discriminate among movies on the basis of their content -- a "pure" movie is apt . . . to be just as intrusive [as an "impure" movie] upon the privacy of an unwilling but captive audience. Any ordinance which regulates movies on the basis of content . . . impermissibly intrudes upon the free speech rights guaranteed by the First and Fourteenth Amendments. 48
Justice Douglas voted to allow the ban on political ads not because he thought the city could constitutionally discriminate among ads, but because he thought the city was constitutionally forbidden from putting any ads on its buses: The "captivity" of the bus passengers "preclude[d] the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience." 49 This view (first articulated by Douglas in his dissent in Public Utilities Commission v. Pollak, 50 which his Lehman concurrence frequently cited) prevented Justice Douglas from agreeing with the Lehman dissent and forcing the city to take political ads, because such a course would have only been a violation of the passenger's right to be free from government-imposed propaganda (political or commercial). The correct remedy, to Justice Douglas, would have been to bar commercial as well as political ads, but it was a remedy that he was procedurally unable to grant, since no challenge to the commercial ads was before the Court. 51
Thus, five of the Lehman Justices -- the four dissenters and Douglas -- did not agree that content-based restrictions may be justified by the presence of a captive audience, even on government property. As importantly, none of the Justices suggested that the government may impose such content-based restrictions on private property. (The four-member plurality upheld the city policy because the advertising space was a nonpublic forum; content-based restrictions are generally allowed in nonpublic fora. 52) The Court has twice specifically held that Lehman can only apply to government property, 53 and surely this must be right -- surely, for instance, Lehman doesn't allow the government to ban political ads on private buses. 54
The only other serious mention of captive audiences outside the home is a dictum in Erznoznik v. City of Jacksonville, where the Court said that certain content-based restrictions may be permissible if "the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure" and when at the same time "substantial privacy interests are being invaded in an essentially intolerable manner." 55 But as the examples I mention above suggest, this must be a narrow exception indeed: Even where it is in fact impractical for people to avoid exposure to picketing, demonstrations, and the like, the government may not restrict them. And in fact, the Court has never acted on this dictum. 56
The Doctrine -- Audiences in the Home: The rare cases in which the Court has upheld content-based restrictions aimed at shielding captive audiences have specifically relied on the audience being in the home, though even there the Court has been hesitant. Rowan v. United States Post Office Department upheld a Federal statute allowing a householder who has received sexually-oriented ads to demand that the Postmaster General order the sender to refrain from further mailings to that householder. An advertiser argued that this statute violated its First Amendment rights, but the Court disagreed:
[T]he right of every person `to be let alone´ must be placed in the scales with the right of others to communicate.Clearly the rule would be entirely different outside the home. The viewers in Cohen v. California, for instance, were actually more captive than the householder in Rowan: The householder could have easily thrown out the mailer, but the viewers would have had to either leave Cohen's presence, or consciously keep their eyes averted from his jacket, which would likely only remind them of the jacket's offensive message. 58 But despite the viewers' greater captivity, the Cohen Court refused to shield them, precisely because "we are often `captives' outside the sanctuary of the home and subject to objectionable speech." 59
. . .
We . . . categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good" ideas on an unwilling recipient. That we are often "captives" outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. 57
Similarly, in FCC v. Pacifica Foundation, the Court upheld an FCC regulation which banned the use of certain vulgarisms in radio broadcasts, in part because radio broadcasts "confront the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder [citing Rowan]." 60 Though the listener could hardly be considered to be "captive" to a broadcast that he could easily turn off, Justice Stevens concluded that "[t]o say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow." 61
The Doctrine and Content-Based Restrictions: Finally, even in the home, the Court is quite properly skeptical about content-based speech restrictions. Thus, though content-neutral bans on residential picketing are allowed, 62 the Court has (in Carey v. Brown) struck down content-based bans precisely because of their content discrimination. 63 Similarly, though the law upheld in Rowan referred only to householders demanding an end to "erotically arousing or sexually provocative" mailings, the Court stressed that "In operative effect the power of the householder under the statute is unlimited; he may prohibit the mailing of a dry goods catalog because he objects to the contents . . . . Congress provided this sweeping power not only to protect privacy but to avoid possible constitutional questions that might arise from vesting the power to make any discretionary evaluation of the material in a government official." 64
Even Pacifica, which upheld a content-based ban (albeit one that touched only speech that the plurality saw as "low-value"), emphasized that
the fact that society may find speech offensive is not a sufficient reason for suppressing it . . . . For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content . . . First Amendment protection might be required. 65
Bigoted speech, of course, is offensive precisely because of its political content, the message of inferiority that it sends. 66 Even bigoted epithets are barred by harassment law not because they are epithets (and thus ugly because of their form, and not merely their content 67) but because they express bigoted views. 68 An analogy would be an FCC regulation that banned only the words "fascist," "imperialist," or "capitalist pig"; 69 even if these words were viewed as "low-value" enough that they could be banned as part of a general ban on epithets on the radio, a selective ban on pejorative words used to describe supporters of the government would clearly be based on the words' political content. 70
Summary: Thus, the best restatement of current captive audience doctrine is this: The government has some power to restrict offensive speech that reaches into the home, though even there the restriction cannot be justified by the offensiveness of its ideas (as opposed to its form), see Carey, Rowan, and Pacifica. But outside the home, the government acting as sovereign can't shield people from offensive speech even if the speech is genuinely hard to avoid.
Cohen and Madsen hold this as a matter of doctrine, but the examples with which I begin show this as a matter of basic First Amendment logic. We are as captive to offensive picketing, offensive demonstrations, "Fuck the Draft" jackets worn in the public, and the like, as we are to most offensive workplace speech. So long as these kinds of speech are constitutionally protected despite our captivity, workplace speech must be protected as well.
Fighting Words: This exception applies only to face-to-face insults that are likely to arouse an immediate violent response. 71 Very little workplace harassment fits this mold.
Government Employee Speech: The rules pertaining to government employee speech -- which is protected only if it addresses issues of public concern 72 -- are completely inapplicable to private workplaces. The government employee speech doctrine is based on the theory that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." 73 Harassment law is imposed by the government acting as sovereign, not by the government acting as employer; the rules for the two contexts are radically different. 74
Public Forum Analysis: The government acting as proprietor may regulate speech on certain publicly-owned property that is not a public forum. Again, though, the doctrine is completely inapplicable to the government acting as sovereign to restrict speech in privately owned places. 75
Countervailing Constitutional Considerations: Some commentators have argued that harassment law is justified by "congressional power under the Commerce Clause to impose content based speech restrictions in the workplace to effectuate values embodied in the greater constitution," or even by Congressional power under the Thirteenth Amendment. 76 This argument, however, is entirely unsound.
Of course Congress has Commerce Clause powers and Thirteenth Amendment Enforcement Clause powers -- powers which extend far beyond the workplace. But the Bill of Rights is meant precisely to constrain Congress even when it's acting within its enumerated powers. Would a law banning press criticism of certain products (or perhaps just the application of a general law that bars all "unjustified interference with international trade") be a permissible economic regulation? Would a law banning economically themed picketing be justified by the Commerce Clause? Would a tax on income from Socialist speeches be constitutionally because of the Sixteenth Amendment "power to lay and collect taxes on incomes, from whatever source derived"? Certainly not. The positive grants of power to Congress in no way diminish the restraints imposed by the Bill of Rights. 77
Speech as Evidence: The First Amendment doesn't prohibit the government from using speech as evidence of another element of the offense -- for instance, as evidence of the speaker's conduct or intent or motive. 78 Thus, for instance, during World War II, a person's pro-Nazi statements could be used as evidence that his conduct was intended to help the Nazis, and was therefore treasonous. 79 The law punished the treason, not the speech, even though the speech was evidence of treason. Similarly, a manager's racist statements might be used as evidence that his firing of a subordinate was racially motivated. 80
But, as the Court has explicitly held, this doctrine does not allow the speech to be made part of the offense itself. 81 Harassment law doesn't use the speech as evidence of some other action or intention; under harassment law, the speech itself is an element of the claim.
In another part of this Web site, I have demonstrated just how much speech harassment law suppresses. In the preceding sections, I've shown that this suppression is not justifiable under any existing First Amendment doctrines.
I believe it would be a grave mistake to, despite this, create a broad new exception for workplace harassment law. I do think that some harassing workplace speech can indeed be constitutionally restricted: For reasons I discuss elsewhere on this site, unwanted "one-to-one" speech -- speech that is said to a particular employee because of her race, sex, religion, or national origin -- is of lower constitutional value and should be more readily restrictable. When someone is saying things to one listener that the listener clearly doesn't want to hear, the speech is likely only to annoy and offend, not convince or edify. (Click for specific details.)
But other speech -- speech between other employees that is overheard by the offended employee, or printed material that communicates to the other employees in general 82 -- must remain protected. Suppressing such speech would improperly prevent the speaker from getting his message out even to potentially willing listeners.
Under my proposal, liability could thus be imposed not for any speech that creates a hostile work environment, but only for speech (1) that the speaker knows is unwanted, 83 (2) that is said to a particular employee because of her race, sex, religion, or national origin, and (3) that creates (together with whatever other nonspeech conduct might be present) a hostile work environment. The proposal would create a safe harbor for one-to-many speech; because such speech could not be part of a harassment claim, employers will not have to fear legal liability for not suppressing it.
Personal face-to-face insults and persistent sexual propositions would thus generally be regulable, because they would be said to an individual offended employee and because it would be clear, either from the inherent offensiveness of the insult or from the listener's responses, that the speech was unwelcome. But posters or cartoons displayed in the workplace, or overheard conversations between willing listeners, would be one-to-many speech and therefore protected.
The great majority of
harassment cases, especially the most egregious ones, involve
one-to-one harassment, which my standard would not protect.
And, of course, nonspeech harassment, such as offensive touching,
or quid pro quo harassment, would in any case be unprotected.
(Click for details.) Restrictions
on nonspeech harassment, quid pro quo harassment, and one-to-one
harassment, coupled with the employers' business incentives to
provide tolerable workplaces, should provide a remedy for all but
a few hostile work environments. But in cases where they do
not -- in cases where the environment is genuinely made hostile by
one-to-many speech -- the First Amendment demands that the speech
be protected against government suppression.
The Importance of Workplace
Speech: Workplace speech is a critical part of our
national public discourse. People spend more of their waking
hours at work than anywhere else except (possibly) their
homes. Much of most Americans' political speech happens in
the workplace. The average American does not go to public
demonstrations, or burn flags outside the Republican party
convention, or write books, or go to political discussion
groups. But the average American does talk about current
affairs with his coworkers. 84
This is especially true of any
issues that have to do with workplace: affirmative action hiring,
the rights of women, union politics, and the like. If a
policeman feels that women make bad police officers, the logical
place for him to talk about it is at work; 85 likewise if someone wants to say that affirmative
action "gives to less qualified minorities jobs that should belong
to more qualified whites," which may certainly offend minority
employees. 86 People who
work for American heavy equipment manufacturers may often make
intemperate comments about Japanese competitors. 87 Racially polarized union
elections can easily produce offensive comments or leaflets.
(Click for example.)
The opportunity to speak
outside work is thus a poor, and constitutionally inadequate,
substitute for speech in the workplace. 88 The Court has consistently rejected this
argument when content-based distinctions were involved, 89 and it is particularly
untenable in this case, where the opportunities for an employee to
communicate to his coworkers outside the workplace are theoretical
at best. Telling an employee that he cannot talk politics to
his coworkers at the office generally means that he cannot talk
politics to them at all. 90
Harassment law is also a
viewpoint-based restriction, the sort of restriction the Court has
most strongly condemned. 91 One person in the lunch room may speak
eloquently and loudly about how women are equal to men, and
harassment law will not stop him. But when another tries to
respond that women belong in the home, harassment law steps
in. It seems to be both extremely dangerous in this case,
and an extremely dangerous precedent for the future, to let the
government control the parameters of public debate this way.
Every Place is a Workplace:
Moreover, every place is someone's workplace. The classroom
is a teacher's workplace; a university professor who dislikes art
that's posted in a classroom may claim that it constitutes
harassment. 92 Lots of
people work in public buildings, parks, and other public spaces --
to "protect" them, harassment law may restrict speech there, too
(click for examples).
Restaurants are full of employees who might
complain about offensive jokes that they overheard patrons make;
under harassment law, the employer would be obligated to suppress
the speech of those patrons. 93 In every library,
there are employees who might be offended by sexually suggestive
material that they see patrons display on the library's
computers. The Loudoun County Public Library has in fact
used this as the main justification for using shielding software
that blocks access to sexually explicit material, including "soft
2. Why One-to-Many Workplace Speech Should Be
1. Title VII of the
Civil Rights Act prohibits sex discrimination. Library
pornography can create a sexually-hostile environment for patrons
or staff. . . . Permitting pornographic displays may
constitute unlawful sex discrimination in violation of Title VII of
the Civil Rights Act. This policy seeks to prevent [by
installing software that blocks sexually explicit material,
inclduing "soft core pornography"] internet sexual harassment. 94
The policy's author, library trustee (and lawyer) Colonel Dick
Black, justified it as follows:
The courts have said, for example, that someone can have
materials -- racist materials dealing with the Ku Klux Klan -- in
their home. However, the courts have upheld very strict
limitations on having that in the workplace because of the racially
Other libraries throughout the country are doing the same thing. 96
Same thing applies here. People can do certain things in the privacy of their own homes that they cannot do in the workplace.
Now this is not limited strictly to libraries. But the courts have said that whether it's a public state facility or whether it's a manufacturing plant, people cannot deprive women of their equal access to those facilities and their equal rights to employment through sexual harassment. 95
The Importance of Workplace Speech: Workplace speech is a critical part of our national public discourse. People spend more of their waking hours at work than anywhere else except (possibly) their homes. Much of most Americans' political speech happens in the workplace. The average American does not go to public demonstrations, or burn flags outside the Republican party convention, or write books, or go to political discussion groups. But the average American does talk about current affairs with his coworkers. 84
This is especially true of any issues that have to do with workplace: affirmative action hiring, the rights of women, union politics, and the like. If a policeman feels that women make bad police officers, the logical place for him to talk about it is at work; 85 likewise if someone wants to say that affirmative action "gives to less qualified minorities jobs that should belong to more qualified whites," which may certainly offend minority employees. 86 People who work for American heavy equipment manufacturers may often make intemperate comments about Japanese competitors. 87 Racially polarized union elections can easily produce offensive comments or leaflets. (Click for example.)
The opportunity to speak outside work is thus a poor, and constitutionally inadequate, substitute for speech in the workplace. 88 The Court has consistently rejected this argument when content-based distinctions were involved, 89 and it is particularly untenable in this case, where the opportunities for an employee to communicate to his coworkers outside the workplace are theoretical at best. Telling an employee that he cannot talk politics to his coworkers at the office generally means that he cannot talk politics to them at all. 90
Harassment law is also a viewpoint-based restriction, the sort of restriction the Court has most strongly condemned. 91 One person in the lunch room may speak eloquently and loudly about how women are equal to men, and harassment law will not stop him. But when another tries to respond that women belong in the home, harassment law steps in. It seems to be both extremely dangerous in this case, and an extremely dangerous precedent for the future, to let the government control the parameters of public debate this way.
Every Place is a Workplace: Moreover, every place is someone's workplace. The classroom is a teacher's workplace; a university professor who dislikes art that's posted in a classroom may claim that it constitutes harassment. 92 Lots of people work in public buildings, parks, and other public spaces -- to "protect" them, harassment law may restrict speech there, too (click for examples).
Restaurants are full of employees who might complain about offensive jokes that they overheard patrons make; under harassment law, the employer would be obligated to suppress the speech of those patrons. 93 In every library, there are employees who might be offended by sexually suggestive material that they see patrons display on the library's computers. The Loudoun County Public Library has in fact used this as the main justification for using shielding software that blocks access to sexually explicit material, including "soft core pornography":
Even private homes are often workplaces for housekeepers and other workers, who might complain about offensive art on the walls or offensive conversations by the residents or guests. Muzzling speech "only in the workplace" means muzzling it in very many places indeed.
Speech That's Part of the Employer's Business: An even more serious problem arises if the speech that creates the hostile work environment is an inherent part of the employer's business. A store's decision to stock (or specialize in) racist or sexist or religiously offensive literature could easily create a hostile work environment for many employees.
Thus, one employee filed a sexual harassment suit against her employer, a convenience store company, for stocking pornographic magazines in the store which she managed; the suit is now pending. 97 An employee of a print shop sued for sexual harassment, based partly on the shop having filled orders for printing of sexually suggestive materials; fortunately, the trial judge rejected this claim on First Amendment grounds. 98 Several employees of Stroh's brewery have recently sued their employer for workplace sexual harassment that was allegedly caused by the employer's ads, which feature women in bikinis. Part of the remedy that the employees seek is the discontinuation of the ads. 99
In a slightly different context, New York's highest court came within one vote of holding that it was illegal for a gift shop to displaying items bearing Polack jokes, because they sent a message to Polish customers that they are not welcome in the shop; the case was brought under public accommodations statutes, but it could equally well have been brought by an offended employee. 100 And there's nothing in harassment law that would keep it from being applied in such cases; if offensive materials on a coworker's office door can create a hostile work environment, then so can the same material offered for sale in a bookstore, or copied for a customer by a print shop.
Employer Control vs. Government Control: Of course, speech in the workplace is already restricted: Clearly, an employer may prohibit offensive speech in the workplace, either to minimize tension between employees, or because it thinks that bigoted speech is wrong, or for any other reason. The First and Fourteenth Amendments simply do not bind private actors.
But there is a vast difference between allowing an employer to restrict workplace speech and allowing the government to do so. A householder may prevent her dinner party guests from talking about religion; the owner of a restaurant doesn't violate the Constitution by refusing service to someone who is wearing a "Fuck the Draft" jacket; a private university may ban all racist speech or all blasphemous speech or all unpatriotic speech without running afoul of the First Amendment; a television producer may forbid its employees from making controversial political statements on a show. 101 But the government may not require the householder, the restaurant owner, the university, the producer -- or the employer -- to impose such restrictions.
Free Speech Rights Ought Not Be Trumped This Way: Some may argue that all this is just the price we must pay for avoiding work environments hostile to particular groups. Harassment law might keep employees from talking about women's rights or affirmative action in the workplace, but, the argument would go, the interest in equality is so strong that it justifies such a restriction. 102 And I agree that even one-to-many speech can often be extremely offensive.
But this argument stands First Amendment values on their head. When government is regulating speech, it must generally err on the side of underregulation, not overregulation: "if some constitutionally unprotected speech must go unpunished, that is a price worth paying to preserve the vitality of the First Amemdment." 103 The First Amendment protects much harmful speech, such as advocacy of violence, 104 intentional infliction of emotional distress, 105 and the revelation of some deeply private information. 106 It may in some cases also protect offensive workplace speech, even when it creates a hostile work environment.
Consider also the precedent that a new "harassing workplace speech" exception would set. People -- including both state and federal executive officials -- are already arguing that, by analogy to harassment law, the government may constitutionally bar speech that creates a "hostile educational environment" in universities. "Statutes prohibiting sexual harassment have been upheld against First Amendment challenges," a letter from the U.S. Department of Education says, so "the First Amendment is not a bar [in punishing] a sexually hostile educational environment." 107
Likewise, some courts have held that speech by patrons in places of public accommodations (restaurants, stores, health clubs) may constitutionally be restricted on a "hostile public accommodations environment" theory (click for details). Commentators are using hostile environment harassment law as a precedent for arguing for broad bans on bigoted speech, in workplaces or out: "Drawing lines between the acceptable and intolerable [bigoted speech]," one commentator argues, "would be no more difficult a task than what has already been attempted in workplace settings where individuals are protected from harassment." 108 One commentator has even suggested that hostile environment law may prohibit bigoted speech in cyberspace. 109 A scholarly study of supposed "sexual harassment" on television programs has suggested that such dangerous entertainment might properly be restricted in order to foster "socially responsible behavior." 110
The slippery slope is not just some fictional bugbear. In a legal system that's based on precedent, new exceptions become precedents for still more exceptions. 111 The Court has often recognized this; much of the speech protection we now enjoy stems from the Supreme Court's concern about this problem. The Court rejected the proposed exception for flagburning in large part because the government's theory -- that the law could protect certain venerated symbols -- had "no discernible or defensible boundaries." 112 The Court extended protection to profanity because the "principle contended for by the State" to justify suppression was "inherently boundless": "[N]o readily ascertainable general principle exist[ed]" to keep a ban on a few profanities from growing into more thorough linguistic cleansing. 113 Part of the reason the Court concluded that entertainment -- even entertainment in which they "can see nothing of any possible value to society" -- is protected was that "[t]he line between the informing and the entertaining is too elusive for the protection of [the] basic right [to freedom of the press]." 114 The Court's caution seems wise, and worth emulating.
If one wants to support a new speech restriction without putting at risk the existing scope of Free Speech Clause protection, one has to provide a limiting principle, a "discernible [and] defensible boundar[y]," a robust explanation of why this speech is different: Why this speech deserves to be unprotected, but why at the same time the Free Speech Clause should continue to protect other sorts of speech. This, it seems to me, is the challenge facing those who argue that speech which creates a hostile work environment ought to be unprotected. It's a challenge that I don't believe they've met.
Bigoted epithets may at first appear to be both more offensive and less valuable 115 -- and therefore more properly restrictable -- than nonvulgar (though bigoted) speech.
Nonetheless, there are good reasons to protect even bigoted epithets, so long as they aren't said one-to-one. The insight of Cohen v. California -- that censoring the vulgarism often means censoring the political message 116 -- is equally apt here. "Fuck the Draft" is not the same as "I Do Not Like the Draft"; "niggers are ruining this country" is not the same as "African-Americans are ruining this country." During the first years of Margaret Thatcher's premiership in England, "Ditch the Bitch" 117 was a popular anti-Thatcher slogan, 118 though it was condemned as offensive by British feminists; 119 "Ditch Thatcher" would have been less offensive, but would hardly have carried the same message.
Moreover, harassment law censors bigoted epithets precisely because of their political message, the message that members of particular groups are inferior and unwelcome (click for details). Thus, the one modern case that has approved a regulation aimed at vulgar language, FCC v. Pacifica Foundation, is inapposite here. Pacifica held that some vulgarisms can be banned from the radio because they "are offensive irrespective of any message that may accompany the exposure," but indicated that "[i]f there were any reason to believe that the [Commission's action] could be traced to [the broadcast's] political content . . . First Amendment protection might be required." 120 In harassment law, bigoted epithets are banned when and only when they are used to convey an offensive message, 121 and the ban is traceable directly to their political content. When harassment law suppresses epithets, it is because of their political content, not because of their lack of political content.
Finally, drawing between "valuable" reasoned speech and "low-value" unreasoned speech is a dangerous endeavor. 122 Some Justices have indeed drawn some such distinctions in the past, 123 with less than stellar results. Recall that the words condemned as "no essential part of any exposition of ideas" 124 in Chaplinsky were "fascist" and "god-damned racketeer." 125 The Texas v. Johnson dissent described flagburning -- specifically citing Chaplinsky -- as "no essential part of any exposition to ideas." 126 The vagueness of the terms "vulgar," "offensive," and "no essential part of any exposition of ideas" can easily lead to the suppression of even core political speech, simply because the majority or the elite find it offensive. 127
Suppressing pornography also at first seems easier to justify than suppressing core political speech, and the Court has indeed allowed some greater restrictions on pornography in general. 128 Still, restrictions on workplace pornography would be quite troublesome.
1. First, even if pornography can be suppressed, it cannot be suppressed because it makes men who see it think of women in some "improper" way. Harassment law is often justified using exactly this argument, on the grounds that pornography makes male employees view female employees not as equal coworkers, but as sex objects, and that this leads to a work environment hostile to women. 129 But the core of the First Amendment is that speech cannot be suppressed because it may change listeners' opinions; 130 suppressing speech for this reason is "thought control" 131 in its most literal sense. Even the strongest of state interests in equality -- like the strong state interests in avoiding crime -- cannot justify suppressing speech because it makes people think evil thoughts, or because it may eventually lead them to take evil actions.
2. Even if pornography is restricted not because it makes men think a particular way, but because it offends women more than it does men -- because its offensiveness, and not its message, creates a hostile work environment 132 -- several problems still remain. To begin with, if pornography is particularly offensive to women because it expresses the message that women are only sex objects, and should be viewed as men's playthings and not as equals, then pornography becomes political speech, suppressed precisely because of the viewpoint it expresses. 133 The Court has been tolerant of pornography regulations only because they were not viewed as attempts to suppress a particular viewpoint. 134
3. Even if pornography is nonpolitical speech, and is offensive regardless of the viewpoint it expresses, there remains the problem of drawing the line between it and "legitimate art," which is fully protected by the First Amendment. 135 It might seem intuitively obvious that, say, a Playboy centerfold and a Gauguin print are completely different, but courts and legislatures have been unable to come up with any rule that will separate them. 136 I give a long list of examples elsewhere on this site. To give just one here, a professor at Penn State recently complained that Goya's painting Naked Maja constituted sexual harassment; "[w]hether it was a Playboy centerfold or a Goya," the professor said, "what I am discussing is that it's a nude picture of a woman which encourages males to make remarks about body parts." 137 Should the picture have been viewed as unprotected pornography or protected art? How can one tell? If an employer cannot tell in advance -- if there is no guarantee to the employer that it will not be liable for art posted by its employees -- then harassment law will, by its chilling effect on employers, suppress "legitimate art" as well as pornography.
4. One other problem with restricting pornography in the workplace is that there must be at least some uses of pornography by the employer that cannot be restricted, even if they do create a hostile work environment for its employees. It seems clear that, say, a female employee of an art gallery -- or a female employee of an adult bookstore -- cannot claim that sexually explicit materials in the workplace are creating a hostile work environment. To hold otherwise would make it virtually impossible for such materials, which are protected by the First Amendment, to be distributed. 138
And even if the business is not selling the materials, but only using them as part of their decor -- either a "high-class" restaurant putting sexually explicit art on the walls, or a "low-class" bar posting pinups -- the materials must be protected. 139 Surely pictures that are protected speech when hanging in a museum are no less protected when used as interior decoration. But if the interest of the gallery, bar, or restaurant in displaying pornography can trump its customers' and employees' interest in not being exposed to pornography, then why doesn't a shipyard worker's interest in displaying pornography trump his fellow employees' interest in not being exposed to it?
It is true that, in the first case, the employer is motivated by a desire to make more money, and, in the second case, the employee is motivated by his own prurient (or aesthetic) interests. But it is unclear why the employer's motive is any more worthy of respect than the employee's motive. The situation becomes even less clear if the shipyard case is seen as the employer allowing pornography in the workplace in order to please some of its employees -- why should an employer be allowed to put up pornography to keep its customers happy but not to keep its employees happy?
These are all difficult questions, and their difficulty is part of the reason that I argue against allowing government regulation of posted pornography in the workplace. Allowing regulation of workplace pornography is certainly not as easy as just saying that pornography is "low-value speech." It must be clear that pornography is not being regulated because of its supposedly corrupting effect on willing viewers, or because of its political message. The restriction must not be so broad as to include "legitimate" art, or art intended to make a social or political statement. And, the restriction must permit businesses to use sexually explicit materials for their own purposes, and must explain how this use is different from employees' use of such materials. Perhaps some carefully drafted law can satisfy these requirements, but harassment law as it now stands does not.
The line between one-to-one and one-to-many speech is not without its difficulties. What if two employees intentionally go to a coworker's work area to carry on an offensive conversation, hoping that the coworker will overhear? What if someone puts up a derogatory cartoon on his office door, knowing that all the other employees in the department belong to the group that the cartoon would offend? Is the speech one-to-one or one-to-many?
These are hard questions, questions of the sort that arise whenever a line needs to be drawn. It is probably best to describe both of these hypotheticals as involving one-to-one speech, in keeping with the policy behind the one-to-one / one-to-many distinction: In both of the above examples, the harassers are clearly trying to offend unwilling listeners, without any real desire to communicate to willing ones. On the other hand, one may reasonably argue that the speech is nonetheless one-to-many, because of the difficulties involved in determining the speaker's intent.
But despite these difficulties, the one-to-one / one-to-many standard avoids greater difficulties. First, there are large core areas of speech on both sides that are clearly either one-to-one or one-to-many. Under this standard, an employee will generally be able to speak his mind to willing listeners, or to post written material, without fear of discipline, and without arousing in his employer a fear of liability. Similarly, an employee will know that, when he speaks directly to another employee, he should be careful not to make statements that he knows are unwelcome. 140
Second, a rule that would look to the content of one-to-many speech -- such as whether the speech is political, bigoted, vulgar, degrading, or pornographic -- would create even more dangerous uncertainties. As I argued above, one-to-many speech, even in the workplace, is a valuable part of public discourse. Allowing liability for one-to-many speech, and letting the liability turn on whether a joke is political or not, whether a discussion about racial issues is bigoted, 141 whether a borderline epithet is vulgar, or whether a picture is "pornography" or "art," would have an unacceptable chilling effect. 142 Unless one is willing to suppress any workplace speech that may create a hostile work environment, or condemn harassment law as entirely unconstitutional when applied to speech, the one-to-one / one-to-many line may be the best line to draw.
The First Amendment, I have argued, cannot tolerate laws that ban the exposure of certain "unacceptable" viewpoints on certain political issues -- such as religion, affirmative action, or the Equal Rights Amendment.
Free speech often exacts a high price. It has forced us to tolerate speech that urges revolution, that undermines the nation's war effort, or that advocates what some see as immoral and dangerous personal behavior. Much of this speech, like much bigoted speech in the workplace, is material that many think valueless, and that many wish didn't exist. Still, even such speech must be protected because the price the alternative exacts -- the power of the government to impose an orthodoxy of speech and thought, or to cleanse public discourse of ideas it finds dangerous and threatening -- is even higher.
1. See, among very many other cases, Brown Transport Corp. v. Commonwealth, 133 Pa. Commw. 545, 578 A.2d 555 (1990) (employer speech); Snell v. Suffolk County, 611 F. Supp. 521 (E.D.N.Y. 1985) (injunction directed against employee speakers).
2. Even if one concludes that criticism of soldiers is protected by the First Amendment, but racial, religious, or sexual harassment is not, the state action issue is the same.
3. Hudgens v. NLRB, 424 U.S. 507, 513 (1976).
4. Actually, native-born citizens or qualified electors. 239 U.S. 33, 35 (1915).
5. Though the Court had previously allowed some sorts of discrimination by states against aliens, see, e.g., Patsone v. Pennsylvania, 232 U.S. 138 (1914) (aliens may be prohibited from taking wild game), Truax distinguished those cases as involving state power over its residents' common property. 239 U.S. at 39-40.
6. 239 U.S. at 38 ("The fact that the employment is at the will of the parties . . . does not make it one at the will of others.").
7. 373 U.S. 244, 247, 248 (1963). The case was decided before the Civil Rights Act of 1964 prohibited discrimination in places of public accommodation.
8. Of course, it doesn't matter that harassment law involves civil liability rather than the criminal liability in Truax and Peterson. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (First Amendment scrutiny for civil libel restrictions); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (likewise for civil suits based on intentional infliction of emotional distress).
Nor does it matter that harassment law doesn't prescribe any specific speech restriction, but merely requires that employers do whatever is necessary to avoid a hostile work environment. The tort of intentional infliction of emotional distress, dealt with in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), also imposed liability not on any particular kind of speech, but on anything -- speech or not -- that might cause emotional distress. Nonetheless, the Court held that the tort action was unconstitutional (at least as to certain forms of speech), because speech could lead to liability, and because the only practical way that a publisher could avoid liability was by censoring its own speech.
9. NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 618 (1969) (employer speech); NLRB v. Local Union No. 3, 828 F.2d 936 (2d Cir. 1987) (applying Gissel to union speech); Hospital & Serv. Employees Union, Local 399 v. NLRB, 743 F.2d 1417, 1428 n.8 (9th Cir. 1984) (subjecting regulation of union speech to strict First Amendment scrutiny). Though the National Labor Relations Act has a specific proviso that guarantees both employer and employee free speech, 29 U.S.C. § 158(c) (1988), the free speech rights established by Gissel are based not on this proviso, but on the First Amendment itself. "[Section] 8(c) . . . merely implements the First Amendment by requiring that the expression of `any views, argument, or opinion´ shall not be `evidence of an unfair labor practice,´ so long as such expression contains `no threat of reprisal or force or promise of benefit.´" Gissel, 395 U.S. at 617.
10. Gissel, 395 U.S. at 617. In Gissel itself, the Court held that the employer speech went too far. Id. at 618-20.
11. See Roper Corp. v. NLRB, 712 F.2d 306, 311 (7th Cir. 1983) (because statements were true and were not threats, they were protected).
12. See In re Perry, 859 F.2d 1043 (1st Cir. 1988) (protective order struck down as violation of union's First Amendment rights).
13. See NLRB v. Douglas Div., 570 F.2d 742, 747 (8th Cir. 1978) (unlike the situation in Gissel, the company's statements were not intimidating or threatening, but "expressed hard economic facts"; "[a]n employer's free speech right to communicate his views to his employees is firmly established").
14. See Sheet Metal Workers Int'l Ass'n v. Burlington N.R.R. Co., 736 F.2d 1250, 1253 (8th Cir. 1984) ("The pamphlet and articles here fell squarely within the ambit of free speech protections guaranteed by the First Amendment [citing Gissel].").
15. See, e.g., Dow Chem. Co. v. NLRB, 660 F.2d 637, 644-45 (5th Cir. Unit A Nov. 1981) ("[t]he First Amendment would permit no less" than protecting an employer's right "to state its views, argument, or opinion, and to make truthful statements of existing facts"; overturned an ALJ's finding that the "promise of benefit" exception applied, because there was no evidence of such a promise on the record); see also NLRB v. Proler Int'l Corp., 635 F.2d 351, 355-56 (5th Cir. Unit A Jan. 1981); Florida Steel Corp. v. NLRB, 587 F.2d 735, 750-53 (5th Cir. 1979); J.P. Stevens & Co. v. NLRB, 449 F.2d 595, 597 (4th Cir. 1971).
16. See, e.g., Rabidue v. Osceola Ref. Co., 805 F.2d 611, 615 (6th Cir. 1986) (harassment claim based largely on speech by one "extremely vulgar and crude individual who customarily made obscene comments about women generally, and, on occasion, directed such obscenities to the plaintiff. Management was aware of [his] vulgarity, but had been unsuccessful in curbing his offensive personality traits . . . .").
17. But cf. Amy Horton, Comment, Of Supervision, Centerfolds, and Censorship, 46 U. Miami L. Rev. 403, 431-32 (1991) ("Sexually harassing speech indeed constitutes a threat of future action: the threat of an escalation of the speech to conduct, or of simply more of the same speech. The threat -- or the promise -- is that neither women nor minorities will enjoy the same workplace conditions of employment as do white males."). Surely this is an unsound reading of the word "threat." If speech is a threat simply because it threatens more speech, then virtually all offensive speech -- bigoted or not -- is threatening. And if speech is a threat because it might lead to a change in workplace conditions of employment, then employer speech urging employees to vote against their union would also be a "threat," a reading that Gissel and its progeny clearly prohibit. See, e.g., Roper Corp. v. NLRB, 711 F.2d 306 (7th Cir. 1983) (employer antiunion speech protected by Gissel).
18. James Weinstein, A Constitutional Roadmap to the Regulation of Campus Hate Speech, 38 Wayne L. Rev. 163, 203 (1992). This may not even be true; as I discuss below, there may be as much or more public discourse -- such as Professor Weinstein's own example of "a lunchtime conversation about the role of women," or even bigoted remarks about how women are bad workers, or Jews conspire to run the country -- in some workplaces than in some other places.
19. See, among very many cases, Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1, 20 (1986) ("[f]or a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech"); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536 (1980) ("a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech").
20. But see Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991) (arguing that harassment law is a valid time, place, and manner regulation).
21. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis and internal quotation marks omitted). Some have criticized Renton for describing as content-neutral laws that are facially content-based, such as the adult theater zoning ordinance. See, e.g., Boos v. Barry, 485 U.S. 312, 334-36 (1988) (Brennan, J., concurring); L. Tribe, American Constitutional Law § 12-3 n.17 (2d ed. 1988). If indeed Renton is mistaken in this, and time, place, and manner restrictions should only be allowed if they are facially content-neutral, then harassment law would even more clearly not be a valid time, place, and manner restriction.
22. Boos, 485 U.S. at 321; see also Reno v. ACLU, 117 S. Ct. 2329, 2342 (1997) (restriction on cyberspace indecency not justifiable under "secondary effects" rationale when the harmful effects flow from the supposedly corrupting effect of the speech on the morals of the audience); R.A.V. v. City of St. Paul, 505 U.S. 377, 394 (1992) (ban on racially offensive fighting words not justifiable under "secondary effects" rationale when the harmful effects flow from the offence to the audience); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992) (restriction on controversial parades not justifiable under "secondary effects" rationale when the harmful effects flow from hostile reaction by the audience); Texas v. Johnson, 491 U.S. 397, 411-12 (1989) (state antiflagburning law not justifiable under "secondary effects" rationale when the harmful effects flow from hostile reaction by the audience).
23. Boos, 485 U.S. at 321 (emphasis added).
24. The effects of harassing speech on its victims may be more damaging than the effects of hostile signs on foreign diplomats, but they nonetheless flow from the "the emotive impact of speech on its audience." Whether or not the effects are bad enough to justify even a content-based restriction, they cannot qualify as "secondary effects" and thereby allow harassment law to be treated as a content-neutral time, place, and manner regulation.
Neither can one argue that harassment law is aimed not at the direct impact of the speech -- offense, and creation of a hostile work environment -- but at the indirect impact, perhaps the tendency of extremely offensive speech to drive workers from their jobs. All direct effects cause effects of their own. If the mere indirectness of the effect would make it a "secondary effect," then the government could have won in Boos simply by arguing that the statute was aimed not at offense to diplomats' dignity, but rather at the consequent worsening of the relationship with the foreign government. "Secondary effects" must be effects other than those that flow, directly or indirectly, from offense to the listener.
Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991), did not look at whether harassment law was aimed at the secondary effects of speech, but held that it was a valid time, place, and manner restriction simply because "the distinction based on the sexually explicit nature of the pictures and other speech does not offend constitutional principles," id. at 1535 (citing Renton); this, though, is an incorrect analysis. Renton by no means said that all "distinction[s] based on the sexually explicit nature" of speech are content-neutral; it only said that distinctions aimed at the secondary effects of the speech were content-neutral. The Robinson opinion completely fails to do any "secondary effects" analysis.
25. Renton, 475 U.S. at 48-49 (citing Police Dep't v. Mosley, 408 U.S. 92, 96 (1972)); see also Note, The Role of "Secondary Effects" in First Amendment Analysis: Renton v. Playtime Theatres, Inc., 22 U.S.F. L. Rev. 161, 181-82 (1987).
26. Accord Thomas Grey, Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment, 8 Soc. Phil. & Pol., Spring 1991, at 81, 101 (conceding that harassment law is a "content- and viewpoint-specific regime of censorship on the speech of private employees," but not questioning its constitutionality).
27. Deborah Epstein, Can a "Dumb Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech, 84 Geo. L.J. 399, 446-48 (1996) (though disagreeing with my precise analysis of this matter); Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev. 461, 508-11 (1995).
28. 505 U.S. 377, 383 (1992) (making clear that "proscribable" refers to the traditional First Amendment exceptions, such as obscenity, fighting words, and defamation).
29. Id. at 389-90 (some citations omitted); see also Rodney Smolla, Rethinking First Amendment Assumptions About Racist and Sexist Speech, 47 Wash. & Lee L. Rev. 171, 187 (1990) ("The gravamen of the tortious activity in [certain] cases . . . is arguably the proscription of underlying nonspeech conduct such as . . . anti-social behavior in the workplace. The penalty exacted on speech in such cases appears incidental to the governmental purpose . . . .").
30. Cf. Bond v. Floyd, 385 U.S. 116 (1966) (holding that speech sympathetic to draft resisters is protected). While Bond did not involve a law that applied to conduct generally, it is hard to justify a different result even if it had involved such a law.
31. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918 (1982) ("[w]hile the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity"). Neither of these cases applied the intermediate scrutiny dictated by O'Brien for laws that incidentally burden expressive conduct.
32. 505 U.S. at 385.
33. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411 (1990); United States v. O'Brien, 391 U.S. 367 (1968). The Barnes plurality, which held that a general ban on nudity could be applied even to expressive conduct such as nude dancing, specifically pointed out that neither the general prohibition on nudity nor its application to nude dancing were related to the nude dancing's expressive message. 501 U.S. at 570-71. Likewise, the O'Brien Court, which held that a general ban on destroying draft cards could be applied to burning draft cards for expressive purposes, pointed out that O'Brien was convicted "for [the] non-communicative aspect of his conduct, and for nothing else." O'Brien, 391 U.S. at 376; accord Barnes, 501 U.S. at 570 (pointing out that O'Brien was prosecuted for the noncommunicative elements of his conduct).
While Justice Scalia's Barnes concurrence looked only at whether the prohibition as a whole was intended to supress communication, and not at whether the prohibition was violated by the communicative impact of the speech, Justice Scalia specifically distinguished laws that restrict speech from those that regulate conduct. 501 U.S. at 572. Because "virtually every law restricts conduct," Justice Scalia argued, "and virtually any prohibited conduct can be performed for an expressive purpose, . . . [i]t cannot reasonably be demanded . . . that every restriction of expression incidentally produced by a general law regulating conduct pass normal First-Amendment scrutiny." Id. at 576. But relatively few general laws regulating conduct can also be violated by pure protected speech. Furthermore, while carving out an exception to those laws for expressive conduct may swallow the rule (because so much conduct is arguably expressive), carving out an exception to them for speech would not. If speech so often constitutes the prohibited conduct that an exception for speech would defeat the rule, then it is hard to see the rule as a law of general applicability that is aimed at conduct rather than speech.
34. R.A.V., 505 U.S. at 386.
36. Note that, as Justice White's R.A.V. concurrence pointed out, 505 U.S. at 409-10, some of the regulations that cover workplace harassment do specifically target speech. See, e.g., 29 C.F.R. § 1604.11(a) (1991) (prohibiting "sexual harassment," which includes "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" which creates a hostile work environment). It is hard to view a prohibition of requests for favors and of "verbal conduct" as burdening speech only "incidentally."
37. 51 F.3d 591, 596 & n.7 (5th Cir. 1995); accord Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 n.6 (5th Cir. 1996).
Some courts have also argued that harassing speech is somehow itself "conduct" rather than speech, and is thus unprotected by the First Amendment. See 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"); Doe v. University of Mich., 721 F. Supp. 852, 862 (E.D. Mich. 1989) (dictum) (distinguishing "pure speech" from "sexually abusive and harassing conduct" such as workplace harassment). The courts did not explain how words or pictures, which are undoubtedly treated as "speech" outside the workplace, stop being speech when they contribute to a hostile work environment. The R.A.V. dictum at least concedes that harassing speech is speech.
38. See Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1535-36 (M.D. Fla. 1991) (quoting Jack Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 423); Marci Strauss, Sexist Speech in the Workplace, 25 Harv. C.R-C.L. L. Rev. 1, 36 (1990).
39. See Cohen v. California, 403 U.S. 15 (1971) ("Fuck the Draft" jacket protected); Texas v. Johnson, 491 U.S. 397 (1989) (flagburning protected); Street v. New York, 394 U.S. 576 (1969) (offensive displays of the flag protected); Kunz v. New York, 340 U.S. 290 (1951) (vehement public denunciations of religions protected); Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978) (parades with swastikas protected).
40. Cf. FCC v. Pacifica Found., 438 U.S. 726, 748-49 ("To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not . . . avoid a harm that has already taken place.").
41. Cohen v. California, 403 U.S. 15, 21 (1971).
42. Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516, 2526 (1994).
43. Id. at 2526-29.
44. See, e.g., Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1536 (M.D. Fla. 1991); Marci Strauss, Sexist Speech in the Workplace, 25 Harv. C.R-C.L. L. Rev. 1, 13 n.47 (1990).
45. 418 U.S. 298, 299-304 (1974).
46. Id. at 308-22 (Brennan, J., dissenting).
47. Id. at 305-08 (Douglas, J., concurring).
48. 422 U.S. 205, 218 (1975).
49. Lehman, 418 U.S. at 307.
50. 343 U.S. 451 (1952). In Pollak, the question was whether it violated the Fifth Amendment "right of privacy" for the government to pipe radio music onto municipal buses. Justice Douglas argued that it would, because "[i]f liberty is to flourish, government should never be allowed to force people to listen to any radio program." Id. at 469 (Douglas, J., dissenting).
51. Lehman, 418 U.S. at 308 (Douglas, J., concurring); accord Geoffrey Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 275.
52. Lehman, 418 U.S. at 301-02, 304; see Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).
53. See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540 (1980) ("[T]he Commission's attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent [(Lehman)] that rests on the special interests of a government in overseeing the use of its property."); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 n.19 (1981) (Lehman's prohibition of all political speech "turned on [a] unique fact situation involving [a] government-created forum").
54. See Lehman, 418 U.S. at 320 (Brennan, J., dissenting).
55. 422 U.S. 205, 209 (1975) (internal quotation marks omitted).
56. Bethel School District No. 403 v. Fraser, which upheld the suspension of a high school student who delivered, in front of an assembly of the students, a sexually suggestive speech nominating a candidate for a student government office, also mentioned in passing the propriety of school officials' "protect[ing] children -- especially in a captive audience -- from exposure to sexually explicit, indecent, or lewd speech. " 478 U.S. 675, 677-78, 684 (1986). The decision, however, was based on the school's right to prohibit the use of vulgar language in general, rather than on its right to prohibit it in a captive audience context. See id. at 681, 683, 684 (majority opinion), 688 (Brennan, J., concurring) (stressing schools' interests in "teaching students the boundaries of socially appropriate behavior," in conveying to students "the essential lessons of civil, mature conduct," in preventing "disruption of school educational activities," and in avoiding exposure of children to sexually explicit speech, all interests that are not applicable in the typical captive audience case). In any case, students' free speech rights in school -- whether or not a captive audience is involved -- are far more limited than adults' free speech rights, especially when vulgarity is involved. Id. at 682; see also Board of Educ. v. Pico, 457 U.S. 853, 871-72 (1982) (plurality opinion) (agreeing that school officials may remove sufficiently vulgar books from a school library, though of course there could be no "captive audience" in such a case); id. at 880-81 (Blackmun, J., concurring in part and in judgment) (same); id. at 919-20 (Rehnquist, J., dissenting) (same).
Note also that the impact on the school's interests in Fraser -- and probably the outcome of the case-would have been no different even if the audience were not captive. Even if the assembly was strictly voluntary, and the students could leave it at any time, the speech would have been as "inappropriate," as disruptive, and as harmful to children's sensibilities as it was in Fraser itself.
57. Rowan v. United States Post Office Dep't, 397 U.S. 728, 736, 738 (1970).
58. See also Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 294 (1981) ("Turning off a radio [alluding to Pacifica, discussed infra] is much easier than averting your eyes from someone who is in the same room [alluding to Cohen]. Just try it sometime.").
59. 403 U.S. 15, 21 (1971).
60. 438 U.S. at 748; see also id. at 759 (Powell, J., concurring) ("Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, a different order of values obtains in the home." (citations omitted)). The majority opinion was based partly on the captive audience rationale and partly on the state's interest in protecting children who might be listening.
61. Id. at 748-49. Justice Stevens wrote the opinion of the Court; four other Justices joined in the "captive audience" portion of the opinion. See also Frisby v. Schultz, 487 U.S. 474 (1988). Frisby sustained a prohibition on picketing outside a residence, because "there is simply no right to force speech into the home of an unwilling listener" and that the householder is "captive" to the picketing. Id. at 484, 487. Even though the picketers were outside the house, where presumably the householder would not need to encounter them except when leaving or entering, the Court held that "the unique and subtle impact of such picketing" -- presumably, the very knowledge that there is a picketer outside -- leaves the householder "with no ready means of avoiding the unwanted speech." Id. at 487. Note, however, that Frisby involved a content-neutral regulation, and thus applied a less strict test than content-based regulations would warrant. Id. at 481. Compare Frisby with Carey v. Brown, 447 U.S. 455 (1980) (prohibition on all residential picketing except for labor picketing struck down because it was content-based; Frisby specifically distinguished Carey v. Brown on this ground).
62. Frisby v. Schultz, 487 U.S. 474 (1988).
63. Carey v. Brown, 447 U.S. 455 (1980).
64. 397 U.S. at 737.
65. FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978) (Stevens, J.); see also Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 548 (1980) (Stevens, J., concurring) ("[t]he fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression").
66. Accord Thomas Grey, Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment, 8 Soc. Phil. & Pol., Spring 1991, at 101 (conceding that harassment law is a "content- and viewpoint-specific regime of censorship on the speech of private employees," but not questioning its constitutionality).
67. See Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 547 (1980) (Stevens, J., concurring).
68. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (restriction on fighting words that insult or provoke violence on the basis of race, religion, or gender is viewpoint-based); see also Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 135-36 (1982) (arguing that racial epithets should not be protected speech because they "communicat[e] the message that distinctions of race are distinctions of merit, dignity, status, and personhood"); Charles Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, at 467-68 (arguing that racial epithets should be suppressed because they convey "the idea of the racial inferiority of nonwhites"); Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2357-58 (1989) (proposing the banning of speech that presents racist ideas, with slurs being only a special case).
69. Recall that the "fighting words" condemned as being of no constitutional value in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), consisted of calling a policeman a "God-damned racketeer" and a "damned Fascist."
70. One could argue that "fascist" and "imperialist" are more logically meaningful and therefore more political than most racist or sexist epithets, but, if this is so, the same would be true of at least some bigoted epithets, such as "Christkiller" or "wetback."
71. Gooding v. Wilson, 405 U.S. 518 (1972).
72. Connick v. Myers, 461 U.S. 138 (1983).
73. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
74. Waters v. Churchill, 511 U.S. 661, 671 (1994); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564 (1973); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). But see Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1536 (M.D. Fla. 1991) (arguing that "the [c]ourt may . . . require that a private employer curtail the free expression in the workplace of some employees" because a government employer may similarly restrict its employees) -- the Robinson court was just plain wrong on this.
75. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983) (classifying public forums into three types, all of them public property); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540 (1980) ("[T]he Commission's attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent that rests on the special interests of a government in overseeing the use of its property."); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 n.19 (1981) (same).
76. See Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev. 461, 520, 540 (1995); David B. Oppenheimer, Workplace Harassment and the First Amendment: A Reply to Professor Volokh, 17 Berkeley J. Emp. & Lab. Law 321, 323.
77. See generally Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 Berkeley J. of Emp. & Labor L. 305, 315-16 (1996); Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 Harv. L. Rev. 1639, 1647-56 (1993); Eugene Volokh, Freedom of Speech and the Constitutional Tension Method, 3 U. Chi. Roundtable 223 (1996).
78. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993); Street v. New York, 394 U.S. 576, 594 (1969); Haupt v. United States, 330 U.S. 631, 641 (1947).
80. Mitchell, 508 U.S. at 489; Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52 (1989) (plurality).
81. Street, 394 U.S. at 594.
82. The offended employee's "captivity" to the speech or to the poster is not a part of the test, for the reasons discussed above.
83. The speaker might know this either because the listener has already told him that she does not want hear this sort of comment, or because the comment is generally known to be inherently offensive.
84. Though this argument has the most force for speech that is actually about the political issues of the day, it also applies to other speech, such as jokes, social commentary, or casual conversation. As the Court held in Winters v. New York, striking down a law which banned magazines devoted to crime stories:
We [cannot accept] that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.333 U.S. 507, 510 (1948). So too with speech in the workplace: there is no way of distinguishing "true political speech" from, say, an ethnic joke, which might convey a political opinion much more effectively than any explicit political slogan. See also Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977) ("expression about philosophical, social, artistic, economic, literary, or ethical matters" is "entitled to full First Amendment protection").
85. DeAngelis v. El Paso Mun. Police Officers' Ass'n, 51 F.3d 591 (5th Cir. 1995).
86. Some view opposition to affirmative action as racist itself. See, e.g., Jouzaitis, NIU Split on Political Correctness, Chicago Tribune, Oct. 24, 1991, at C1 (quoting Prof. Stanley Fish of Duke University, who expresses this sentiment); see also Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 Harv. L. Rev. 1327, 1338 (1986) (stating that some observers of the affirmative action debate "perceive ostensibly nonracist objections to affirmative action as rationalizations of white supremacy").
87. For instance, in one case, an American company competing with Japanese manufacturers used samurai, kabuki, and sumo figures in its ads to represent its Japanese competition; employees frequently referred to "Japs," e.g., "Jap competition," "the Japs are coming." The EEOC, acting on a complaint by a Japanese-American employee, found that the ads and the workplace comments constituted racial harassment. The case was eventually settled "for undisclosed monetary terms and other commitments." (Click for details.) Discussion of American economic competition with Japan clearly seems to be core political speech; while using the term "Jap" was of course uncalled-for, American-Japanese competition is the very sort of political topic that arouses strong passions and strong words, especially among American workers who fear losing their jobs. Cf. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982) (even language which seems to incite to violence may be protected: "extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases"); Watts v. United States, 394 U.S. 705, 708 (1969); see also Cohen v. California, 403 U.S. 15 (1971). And the EEOC's finding that even the ads, which did not use the word "Jap," were harassing implies that it might have found the employee comments to be harassing even if they did not involve slurs (but were nonetheless offensive).
88. See Marci Strauss, Sexist Speech in the Workplace, 25 Harv. C.R-C.L. L. Rev. 1, 46 (1990) (banning bigoted workplace speech "does not censor such speech everywhere and for all time").
89. See, e.g., Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 541 n.10 (1980) ("we have consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression"); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (fact that plaintiff could have put on its play in another theater irrelevant when a content-based restriction is involved).
90. An employee could try to reach his coworkers outside the workplace to talk politics, but he would likely reach only a small fraction of them.
91. Even when the Court has tolerated content-based restrictions, it has said that viewpoint-based restrictions are impermissible. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (even fighting words, which may be regulated based on their content, may not be regulated based on the viewpoint they express); FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978) (plurality opinion) ("it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas"); Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion) (discussing "the government's paramount obligation of neutrality in its regulation of protected communication," and emphasizing that the regulation at issue was "unaffected by whatever social, political, or philosophical message a film may be intended to communicate"); see also, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986) (quoting Police Dep't v. Mosley, 408 U.S. 92, 95-96 (1972)) ("government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views"; the case involved an ordinance that appeared on its face to be content-based, but that the Court described as content-neutral).
92. See Nat Hentoff, Sexual Harassment by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21 (Penn State professor complained that Goya's painting Naked Maja constituted sexual harassment; "[w]hether it was a Playboy centerfold or a Goya," the professor said, "what I am discussing is that it's a nude picture of a woman which encourages males to make remarks about body parts"); Nat Hentoff, Trivializing Sexual Harassment, Wash. Post, Jan. 11, 1992, at A19 (school management took the painting down, citing fear of liability under Robinson v. Jacksonville Shipyards as one reason for its action).
93. See, e.g., 29 C.F.R. § 1604.11(e) ("An employer may also be responsible for the acts of non-employees [such as patrons], where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action."); Crist v. Focus Homes, Inc., 1997 WL 464734 (8th Cir. Aug. 15) (applying this approach); Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754 (9th Cir. 1997) (specifically adopting this approach); David S. Warner, Note, Third-Party Sexual Harassment in the Workplace: An Examination of Client Control, 12 Hofstra Lab. L.J. 361 (1995).
See also Diana L. Deadrick, Scott W. Kezman & R. Bruce McAfee, Harassment by Nonemployees: How Should Employers Respond?, HRMagazine (published by the Society for Human Resource Management), Dec. 1, 1996. The article stresses that employers are liable for harassing behavior by patrons, and that they should take steps to prevent such speech:
For mild forms of harassment, a polite request, such as simply asking the offending nonemployee to refrain from engaging in the harassing behavior can be used. An employee using this technique might say, "Would you please not tell religious jokes in my presence? I take my religion seriously and don't appreciate the jokes." . . . . [Or] "Would you please not tell ethnic jokes in the presence of our wait staff. Some of them find these jokes offensive. We appreciate your cooperation." . . . .
[T]he nonemployee harasser [must] be stopped from committing additional harassment, be told that the harassing conduct will not be tolerated, and be warned about sanctions for any future harassing conduct in the workplace.
94. Loudoun County Public Library, Policy on Internet Sexual Harassment (1997).
95. Loudoun County Internet, NPR, Nov. 2, 1997. Cf. Nick Green, School Board President Rejects Call for Resignation, L.A. Times, Oct. 23, 1997, at B6 (describing sexual harassment claim by library employee "based in part on her discovery of the [downloaded sexually explicit] material in a library storeroom").
96. See, e.g., To Filter or Not to Filter: Censorship on the Internet, American Libraries, June 16, 1997, at 100 (quoting Austin Public Library Director Brenda Branch) ("As a government official, I am obligated to abide by the law. Cyber Patrol has now been refined to the point where we have found, for the interim, a balance between providing Internet access to adults, protecting minors from pornographic images, and protecting staff from sexual harassment and legal liability."); Sylvia Moreno, Library Censors Internet, Dallas Morning News, Mar. 9, 1997, at 46A ("Some library clerks [at the Austin Public Library] said they felt sexually harassed on the job by a patron who spent hours viewing hard-core pornography on the computer terminal in direct view of their counter"); Marilyn Gell Mason, Sex, Kids, and the Public Library, American Libraries, June 16, 1997, at 104 ("Some library users have asked if public viewing of pornography constitutes a new form of sexual harassment."); Michael Schuyler, When Does Filtering Turn Into Censorship? Filtering the Internet at Libraries, Computers in Libraries, May 1997, at 34 ("This `inadvertent exposure´ is causing a lot of consternation inlibraries, including the possibility of sexual harassment suits directed at the institutions because of it."); WebSense Prevents Sexual Harassment Suit; Reduces Library Patron Complaints, PR Newswire, Nov. 22, 1996 (advertising software that bars library patron access to sexually explicit sites, in part in order to prevent sexual harassment complaints by librarians; the press releases cites one such complaint by a librarian in Orlando, Florida); Carol Ebbinghouse & Robert Giblin, Taming the Wicked, Wicked Net: Acceptable Use and the Internet, Searcher (a magazine for online information brokers), July 17, 1997, at 12:
Blue movie night in the computer lab [where users accessed sexually explicit material online] was not the end of the world as we know it. Left unaddressed, however, it could have become a problem of sexual harassment, with charges that such usage created an uncomfortable situation for many library users -- not to mention library staff. Linked to other instances of insensitive, arguably sexist behavior, it could contribute to charges that a hostile environment existed -- and could become evidence in a lawsuit. . . .
Playboy pinups in work areas invite sexual harassment suits. Why should the Internet be any different?
97. Stanley v. Lawson Co., case no. 4:93 CV 00196; see L.M. Sixel, Religious concerns rise in workplace, Houston Chronicle, Aug. 11, 1996, at A1 (describing the case). Arguing that the woman somehow "assumed the risk" by going to work for this employer does not solve the problem -- the right to be free from sexual harassment isn't waivable. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) ("there can be no prospective waiver of an employee's rights under Title VII").
98. DeRochemont v. D & M Printing, No. EM 93-7247 (Minn. Dist. Ct. Nov. 1, 1993), aff'd on other grounds, No. C2-94-169, 1994 WL 510153 (Minn. Ct. App. Sept. 20, 1994) (unpublished).
99. Hayes, Stroh's Harassment Suit Pits Feminists Against Groups That Defend Free Speech, Wall. St. J., Nov. 14, 1991, at B5, col. 1. Though such ads are commercial speech, it's well-established that commercial speech is no more restrictable based on its offensive message than is noncommercial speech. See Bolger v. Youngs Drug Prods., 463 U.S. 60 (1983).
100. State Division of Human Rights v. McHarris Gift Center, 52 N.Y.2d 813, 418 N.E.2d 393, 436 N.Y.S.2d 878 (1980). This case was decided under a state law that prohibited the display in stores of signs telling certain groups that they are unwelcome, but it could easily come up under harassment law, too. The court did not discuss the First Amendment.
101. See, e.g., Mullen, Andy Rooney Suspended by CBS for Racist Remarks, UPI, Feb. 8, 1990, available in LEXIS, Nexis Library, UPI File (CBS suspended on-air commentator for allegedly making racist comments in an interview, and fired another commentator for "[telling] an interviewer that blacks were better athletes than whites because they were `bred to be that way´ during the days of slavery").
102. Cf. Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 773 F. Supp. 792, 794 (E.D. Va. 1991) (university argued that "any infringement on the First Amendment rights of [plaintiff students] is permissible because compelling educational interests are at stake" (emphasis added)).
103. Houston v. Hill, 482 U.S. 451, 462 n.11 (1987).
104. See Brandenburg v. Ohio, 395 U.S. 444 (1969).
105. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
106. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (release of the name of a rape victim derived from public court documents).
107. See, e.g., Kan. Att'y Gen. Op. 96-1, 1996 WL 46866 (arguing that campus speech codes were constitutionally permissible, so long as they were written by analogy to "hostile work environment" law); Letter from U.S. Dep't of Educ. Office for Civil Rights to Santa Rosa Junior College, June 23, 1994, at 7 (arguing that Title VI requires universities to set up speech codes, and saying that they are constitutional because workplace harassment law is constitutional); Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 Calif. L. Rev. 871, 886 (1994) (suggesting that campus speech codes are proper in part because they are justified by "recognized First Amendment exception[s], such as fighting words or workplace harassment").
108. Paula L. Ettelbrick, Not All Speech Is Equal: Some Thoughts on Lesbians, Free Speech and Harassment, 3 Temple Pol. & Civ. Rts. L. Rev. 59, 60, 63 (1993-94); 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).
109. Stuart Biegel, Hostile Connections, L.A. Daily J. 7 (Aug. 22, 1996).
110. Thomas Skill, James Robinson & Colleen Kinsella, Sexual Harassment in Network Television Situation Comedies: An Empirical Content Analysis of Fictional Programming One Year Prior to the Clarence Thomas Senate Confirmation Hearings for the U.S. Supreme Court, presented to the Mass Communication Division of the Speech Communication Association November 1994 National Meeting in New Orleans, at 18 ("This current study has established that sexual harassment [as the authors define it] is prevalent in the popular media. . . . Ultimately, the escalation of this debate will surely test the relationship between the right to free expression and the expectation of socially responsible behavior."). Cf. Eugene Volokh, If Everything Is Harassment, Then Nothing Is, Baltimore Sun, Jan. 12, 1995, p. 19A (criticizing the Skill et al. study).
111. Cf. Irving Kristol, quoted in Sex and God in American Politics; What Conservatives Really Think, Pol'y Rev., Summer 1984, at 12, 24 ("I don't think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does"); Thomas D. Elias, TV and Radio Stations Should Be Stripped of Their Licenses If They Aren't More Responsible in Covering Civil Unrest, L.A. Daily J., Jan. 26, 1993, at 6 (analogizing "irresponsible" coverage of the L.A. riot to "shouting `fire´ in a crowded theater"); John Hartsock, States News Serv., Mar. 21, 1988, available in LEXIS, Nexis Library ("Just as you can't do certain things over the television and radio airwaves, you shouldn't be able to do them over the phone.") (quoting a spokesman for Rep. Thomas Bliley who was discussing the anti-dial-a-porn ultimately struck down in Sable Communications Inc. v. FCC, 492 U.S. 115 (1989)); Murray J. Laulicht & Eileen A. Lindsay Laulicht, First Amendment Protections Don't Extend to Genocide, N.J. L.J., Dec. 9, 1991, at 15 ("There is no principled reason to permit the banning of material that appeals to a depraved interest in sex but not the banning of material that appeals to a depraved interest in violence and mass murder.").
112. Texas v. Johnson, 491 U.S. 397, 417 (1989).
113. Cohen v. California, 403 U.S. 15, 25 (1971).
114. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (release of the name of a rape victim derived from public court documents).
115. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (profanities "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality"); see also FCC v. Pacifica Found., 438 U.S. at 745 (1978) (citing Chaplinsky for this proposition). Note that posted or overheard epithets cannot be prohibited as "fighting words," precisely because they are not one-to-one. See Gooding v. Wilson, 405 U.S. 518 (1972).
116. Cohen v. California, 403 U.S. 13, 25-26 (1971).
117. Though not as offensive as some words, "bitch" has been recognized as offensive enough that it can contribute to a hostile work environment. See Arnold v. City of Seminole, 614 F. Supp. 853, 858 (E.D. Okla. 1985); Marci Strauss, Sexist Speech in the Workplace, 25 Harv. C.R-C.L. L. Rev. 1, 1 (1990).
118. See Deming, Britain's "Iron Lady," Newsweek, May 14, 1979, at 50; see also Kieckhefer, Three-Way Mayor's Race Draws to Close, UPI, Feb. 21, 1983, available in LEXIS, Nexis Library, UPI File (same slogan used by opponents of Mayor Jane Byrne; condemned as sexist and "an outrageous campaign tactic"); Williams, Can Dixy Rise Again?, Newsweek, July 14, 1980, at 28 (same slogan used in reference to former Washington governor Dixy Lee Ray); see also click here (describing vulgar criticism of Representative Pat Schroeder by navy officers angered by her accusation of sexual harassment in the navy).
119. See Thatcher Lookalike to Strip on Stage, Reuters, Feb. 24, 1984, available in LEXIS, Nexis Library, OMNI File.
120. 438 U.S. 726, 746 & n.23 (1978) (plurality opinion).
121. For instance, if someone said "so-and-so called me a nigger," or used some such word affectionately, there would probably be no liability, because the word used in such a context could not lead to a hostile work environment.
122. See, e.g., Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 292-94 (1981) (the "offensive speech" category is "far more troublesome" than categories like commercial speech or defamatory speech, in part because it is "notoriously vague. Vagueness probably cannot be completely eliminated in any area of law, but that is no excuse for failing to recognize degrees of vagueness . . . ."). This is not to say that First Amendment analysis should never put different values on different kinds of speech, see, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) ("there is no constitutional value in false statements of fact"); in fact, I argue that offensive speech said to one unwilling listener is less valuable than speech said to willing listeners or to the workplace at large (click for details). The difficulty with drawing a distinction between "reasoned" speech and "vulgar" speech is that such a distinction is just too subjective and indefinite.
123. See, e.g., FCC v. Pacifica Found., 438 U.S. 726 (1978) (Stevens, J., writing for a three-member plurality) (profanity on the radio); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (Stevens, J., writing for a four-member plurality) (pornography); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words). But see R.A.V. v. City of St. Paul, 505 U.S. 377, 390 n.6 (1992) (stressing that Pacifica and Young "did not command a majority of the Court").
All three of these doctrines have attracted a good deal of criticism. See, e.g., Gard, Fighting Words as Free Speech, 58 Wash. U. L.Q. 531 (1980) (criticizing the fighting words doctrine); Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 288-94 (1981) (criticizing Pacifica's and Young's low-value speech doctrine).
124. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
125. Id. at 569.
126. Texas v. Johnson, 491 U.S. 397, 432 (1989) (Rehnquist, C.J., dissenting).
127. See Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 295 (1981) ("[w]hen, as with `offensiveness,´ the category is so inherently and extremely indeterminate and so linguistically ill-defined, a serious risk exists that the category will in practice be misapplied"); see also Gard, Fighting Words as Free Speech, 58 Wash. U. L.Q. 531, 548, 566, 580 (1980) (fighting words statutes are almost exclusively enforced against people who insult police officers).
128. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).
129. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1502-07 (M.D. Fla. 1991); Barbetta v. Chemlawn Servs. Corp., 669 F. Supp. 569 (W.D.N.Y. 1987) ("The proliferation of [pictures of nude or partially naked women] may be found to create an atmosphere in which women are viewed as men's sexual playthings rather than as their equal co-workers."); see also Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1212 n.118 (1989):
Pornography on an employer's wall or desk communicates a message about the way he views women, a view strikingly at odds with the way women wish to be viewed in the workplace. Depending on the material in question, it may communicate that women should be objects of sexual aggression, that they are submissive slaves to male desires, or that their most salient and desirable attributes are sexual. Any of these images may communicate to male coworkers that it is acceptable to view women in a predominantly sexual way.See also Amy Horton, Comment, Of Supervision, Centerfolds, and Censorship, 46 U. Miami L. Rev. 403, 438 (1991) (arguing that workplace pornography can be banned because "pinups of nude or scantily clad women, shot in sexually submissive poses, reinforce impermissible sexual stereotypes of women").
130. See American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 329-30 (7th Cir. 1985), summarily aff'd, 475 U.S. 1001 (1986); see also Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting) ("[i]f in the long run the beliefs . . . are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance"). The one exception to this rule allows the punishment of incitement to imminent lawless action, Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969), but the very narrowness of this exception -- its toleration of advocacy of violence that does not reach the level of incitement -- shows the strength of the rule. See L. Tribe, American Constitutional Law § 12-9 nn.56-58 (2d ed. 1988).
131. See Hudnut, 771 F.2d at 329 (striking down antipornography ordinance that was justified by the alleged tendency of pornography to make men who see it view women in a certain way).
132. Cf. FCC v. Pacifica Found., 438 U.S. 726, 746 (1978) (emphasizing that the "seven dirty words" could be restricted because they are inherently offensive, and not because they convey an offensive political message).
133. See Hudnut, 771 F.2d at 331-32; cf. United States v. Eichman, 496 U.S. 310 (1990) (striking down flag desecration statute, because, though facially content-neutral, it was clearly aimed at the suppression of particular points of view).
134. Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (emphasizing that restrictive zoning of adult theaters is permissible because it is unaffected "by whatever social, political, or philosophical message a film may be intended to communicate"). Of course, one can argue that even obscenity is actually suppressed precisely of the message that it conveys, the message that sexual gratification is a good thing; there might really be no distinction between speech that offends because of its form and speech that offends because of its content. Nonetheless, the Court has accepted this distinction in both Young and Pacifica, so the distinction, right or wrong, is part of the doctrine.
135. See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977) (art is entitled to full First Amendment protection); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (nude scenes in movies are constitutionally protected even if shown on a drive-in theater screen that is visible from a public street).
136. See, e.g., Memoirs v. Massachusetts, 383 U.S. 413 (1966) (overturning determination that the 18th-century novel Memoirs of a Woman of Pleasure was obscene); Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684 (1959) (overturning determination that a movie based on the book Lady Chatterley's Lover was obscene); Thomas Emerson, Pornography and the First Amendment: A Reply to Professor MacKinnon, 3 Yale L. & Pol'y Rev. 130, 131-32 (1985) (Indianapolis antipornography ordinance would have outlawed "the Arabian Nights, John Cleland's Fanny Hill, Henry Miller's Tropic of Cancer, William Faulkner's Sanctuary, and Norman Mailer's Ancient Evenings, to name but a few. The ban . . . would embrace much of the world's art, from ancient carvings to Picasso . . . ."); Kinney, Art Gallery, Director Acquitted in Mapplethorpe Photo Exhibit, L.A. Times, Oct. 7, 1990, at A1 (art gallery sued for exhibiting homoerotic photographs); Wood, Caution: This Art May Offend, N.Y. Times, Aug. 11, 1989, at A27 (proposed NEA restrictions on "pornography" would restrict museums from displaying paintings by Gauguin, Rubens, Rembrandt, and Picasso); see also Prosecutor to Appeal Dismissal of Obscenity Charges Against Radio Station, UPI, Aug. 26, 1981, available in LEXIS, Nexis Library UPI File (radio station prosecuted for airing show entitled Gaydreams). See generally Darnton, On Brian De Palma-Crossing the Line Between Art and Pornography?, N.Y. Times, Nov. 18, 1984, § 2, at 1, col. 6 (generally discussing the shading of art into pornography).
Some might object to the very concept of trying to distinguish "fine art" from "pornography," arguing that the distinction is entirely a matter of each viewer's subjective and culturally biased perceptions, and that neither category may properly be suppressed. There is much to be said for this position, though the Court has at least partly rejected it, by looking in the Miller test at whether the material has serious artistic value. Miller v. California, 413 U.S. 15 (1973). I make the more modest argument that, even if "art" and "pornography" are different, the courts have not been able to come up with a principled distinction between them.
137. Nat Hentoff, Sexual Harassment by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21.
138. For a recognition of this concern, see Annapolis, Md., Ordinance 0-44-91 (Apr. 13, 1992) (to be codified at Annapolis, Md., Code §§ 3.40.010-.040) (imposing criminal penalties for an employer who allows, among other things "deliberate, repeated display of sexually graphic materials," but only when such display "is not necessary for business purposes"). But see Stanley v. Dairy Mart, discussed above.
139. Arguing that the woman somehow "assumed the risk" by going to work for this employer does not solve the problem. The right to be free from sexual harassment isn't waivable. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) ("there can be no prospective waiver of an employee's rights under Title VII"). And even if it was waivable, why shouldn't the woman's going to work for a shipyard be as much of a waiver as her going to work for a bar? Also, the example in the text would work equally well if the business started out as a "legitimate" bookstore, bar, or restaurant, and began to display sexually explicit materials after the woman began working there.
140. See Frederick Schauer, Easy Cases, 58 S. Cal. L. Rev. 399 (1985).
141. See Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2361-70 (1989) (discussing whether Zionist advocacy, scientific claims of racial inferiority, allegations that the Holocaust was a myth, display of Nazi memorabilia, and use of racist slurs in the interests of literary realism should be criminalizable "hate speech"). Some argue that even hostility to affirmative action is racist (click).
See, e.g., Doe v. University of Mich., 721 F. Supp.
852, 866-67 (E.D. Mich. 1989) (campus policy that barred language
which "stigmatized" or "victimized" individuals was