by Prof.
Eugene Volokh, UCLA School of Law
Originally published in
the Northwestern Law Review; abridged and updated.
Cite text as Eugene
Volokh, Freedom of Speech and Appellate
Review in Workplace Harassment Cases, 90 Nw. U. L. Rev. 1009 (1996).
|
The Facts |
The Law |
|
Your client's employee Mary is complaining about her coworker
John. John has a Sports Illustrated swimsuit calendar hanging on his office wall;
Mary sees it whenever she walks by. John also sometimes complains in the lunchroom about "feminazis" who
are ruining the nation. "The problem
with this country," he says, "is that women don't stay at home, where they
belong." Mary thinks this constitutes sexual harassment, and asks your client to make John stop. |
Workplace speech constitutes harassment if it's ·
"severe or
pervasive" enough to ·
create a "hostile
or abusive work environment" ·
based on race,
sex, religion, national origin, or several other categories, ·
for the plaintiff
and for a reasonable person.[1] |
Your
client wants your advice. What should
he do? He could play it safe by just
telling John to take down the calendar and keep quiet. But let's say your client sympathizes with
John's speech. Or say he just doesn't
like shutting his employees up. Is
John's speech really unlawful harassment, he asks you? Will he really be liable if he doesn't make
John stop?
Put
the facts and the law side by side, and you don't get much of an answer. Are one sexually suggestive calendar and
several sexist political comments "severe or pervasive"? Would a reasonable person find that they
make the environment "hostile or abusive"?
The language of the test doesn't really help.
Neither,
unfortunately, does the case law. If a
trial judge finds a hostile environment, most appellate courts will review this
only for clear error.[2] If the finding is by a jury, the appellate
court will ask only whether a reasonable jury could so conclude.[3] Likewise, a trial judge may grant summary
judgment for a harassment defendant only if no reasonable jury could say the
environment was hostile.[4]
Thus,
instead of marking out two areas - hostile environment and nonhostile
environment - courts mark out three areas:
1.
those environments
that any reasonable factfinder would conclude are hostile,
2.
those that no
reasonable factfinder would conclude are hostile, and
3.
those on which
reasonable factfinders could disagree.
If your case falls in the third area - a broad area indeed - all you can
tell your client is that the result depends on the judge or jury he draws.
The
basic thesis of this Article is simple:
When a factfinder concludes that someone's speech has created a hostile
environment, an appellate court is
constitutionally bound to exercise its independent judgment on this
point. The court must take an
independent look at the record and determine for itself whether the environment
the record discloses is "hostile." The
Supreme Court's decision in Bose Corp. v.
Consumers Union,[5]
which requires independent judgment review in free speech cases, squarely
controls.
And
this is more than just the law - it's a good idea. Workplace harassment law[6]
is a nationwide speech code. Outside
the workplace, racist, sexist, and religiously bigoted statements are generally
constitutionally protected. This is
also true for sexually suggestive pictures, from Gauguins to Playboy
centerfolds; suggestive jokes; even slurs and personal insults (so long as they
aren't likely to provoke a fight).[7] But in the workplace, speech like this may
lead to an injunction or a hefty damages award. (Click for
more details.)
Though
there's a hot debate over whether and to what extent this sort of speech
restriction is constitutional (click) for this Article I'll set that question aside. I'll assume that, like obscenity, fighting
words, and defamation, harassing speech - speech that creates a hostile
environment - may constitutionally be restricted. Given this assumption, I'll argue, it's especially important that
courts define the boundaries of this category as precisely as possible. And this sort of definition can happen only
if courts exercise independent judgment in reviewing findings of a hostile
environment.[8]
I'll
also draw two other conclusions. First,
even if harassing speech isn't constitutionally protected, this doesn't mean
the Free Speech Clause is out of the picture in harassment lawsuits. So far, no‑one has discussed the
extent to which "First Amendment Due Process"[9]
doctrine - which can require, for instance, proof by clear and convincing
evidence or a prohibition on punitive damages - applies to harassment
cases. This issue deserves
investigation.
Moreover,
the lesson of all this for the defense lawyer is always take the First. Even
if harassing speech is unprotected, raising the defense will give you a second
chance with the appellate court. Maybe
the court will independently find that the speech was harassing; but maybe it
won't. If you don't raise the free
speech defense, though, the appellate court won't even have a real opportunity
to rule in your favor.
It's clear that harassment law restricts
speech. What's not clear is which kinds
of speech the law prohibits, and which kinds can still legally be said. As I document in exhaustive detail elsewhere,
workplace harassment law is a speech restriction of remarkable breadth. It goes far beyond slurs, hardcore
pornography, repeated vulgar sexual propositions, and the like, and can
suppress, among other things,
·
political
statements,
·
religious
proselytizing,
·
legitimate art
(such as prints of Francisco de Goya paintings),
·
sexually themed
(perhaps not even misogynistic) jokes,
·
and other kinds of
speech that are generally seen as being entirely constitutionally protected.
No one knows, though, how broad the restriction
goes - to what extent employers and employees may legally speak about religion
in the workplace, make arguably bigoted (or even simply insensitive) political
or social statements, say sexually suggestive jokes - even if they aren't at
any particular employee's expense - or post "legitimate" art (whether it
involves nudity or is merely sexually suggestive ) can lead to liability. Again, if you're skeptical that harassment
law is this broad, just click
here and you'll see how broad it really is.
I'm troubled by these speech‑restrictive
results, troubled enough that I conclude harassment law is partly unconstitutional. But others disagree. Not all speech restrictions, they point out,
are necessarily impermissible. When
offensive speech is so severe or pervasive that it creates a hostile
environment for coworkers, they argue, the speech should lose its
constitutional protection.[10]
For purposes of this Article, I'll accept this
position. I'll assume that speech which
creates a hostile environment is unprotected.
But the problem remains: How can
employers tell whether speech creates a hostile environment? Should they bar all religious proselytizing,
prohibit all arguably bigoted political statements, keep their employees from
using all sex‑specific language, ban all suggestive jokes, and order that
all sexually suggestive pictures be taken down? And if not, how can they know when they can say to the
complaining employee, "We're sorry that you're offended by this speech, but it
doesn't constitute harassment"?
Fortunately, there's a well‑established
solution to this problem. Harassing
speech wouldn't be the first category of speech held to be unprotected by the
Free Speech Clause. Fighting words,
obscenity, and libel, for example, are also generally unprotected. For each of these categories, the Court has
set forth rules that define the category's boundaries: For instance, defamatory statements about
public figures are actionable only if they are made with "actual malice" -
knowledge of their falsity or at least reckless disregard of the possibility of
falsity.[11]
But the Court has recognized that these rules are
often not self‑explanatory.
"Providing triers of fact with a general description of the type of
communication whose content is unworthy of protection has not, in and of
itself, served sufficiently to narrow the category, nor served to eliminate the
danger that decisions by triers of fact may inhibit the expression of protected
ideas."[12] The content of many Free Speech Clause
rules, the Court pointed out, "is not revealed simply by [the rule's] literal
text."[13] Rather, the rules are "given meaning through
the evolutionary process of common law adjudication."[14]
Because of this, the Court has held, appellate
judges, "as expositors of the Constitution, must independently decide whether
the evidence in the record is sufficient to cross the constitutional
threshold."[15] They may not defer to the factfinder's
conclusion. Instead, they must
themselves review the record, "both to be sure that the speech in question
actually falls within the unprotected category and to confine the perimeters of
any unprotected category within acceptably narrow limits in an effort to ensure
that protected expression will not be inhibited."[16]
This was said by the Court in Bose Corp. v. Consumers Union, a libel
case, but the reasoning is equally applicable to harassment law:
·
In both cases, some
speech is protected and some isn't. In
the public figure libel context, statements made without actual malice are
protected. In the harassment context,
speech that isn't harassing is protected.
·
In both cases,
there's a risk that the factfinder will misclassify the speech, either by
finding actual malice where none exists, or by finding a hostile environment
even though the speech wasn't severe or pervasive enough to create one.
·
In both cases, the
rule's literal text provides relatively little guidance in the absence of case‑by‑case
elaboration by appellate courts.[17]
And the Bose
Court made clear that it wasn't just announcing a libel rule: It specifically held that the same rule
applies generally to judgments that a certain kind of speech is unprotected.[18]
Post‑Bose
cases have faithfully applied Bose to
alleged obscenity,[19]
incitement,[20] a
newspaper's negligent publication of criminal solicitation,[21]
speech by lawyers that supposedly interferes with the administration of
justice,[22] government
employee speech,[23] speech in a
possibly nonpublic forum,[24]
and commercial speech.[25] The Court has reserved judgment on whether
the Bose standard applies in the
context of content‑neutral speech restrictions,[26]
but harassment law is clearly content‑based.[27]
If anything, independent judgment review is
especially appropriate in harassment cases.
"Hostile environment" is an amorphous term. It's at least as vague as "prurient interest" and "patently
offensive" (elements of the obscenity test), and in my view vaguer than
"reckless disregard" (part of the libel test) and "likely to provoke the
average person to retaliation" (part of the fighting words test).[28] There's no longstanding social consensus on
the definition of "hostile environment" or "harassment." The terms have no intuitively obvious
meaning. In fact, there's a vast amount
of disagreement on what's harassment and what's not. Under the theory of Bose,
this is precisely the sort of test that must be clarified through case‑by‑case
appellate adjudication.[29] In fact, such clarification might be
necessary to minimize constitutional vagueness problems.[30]
What grounds could there be for distinguishing
libel, obscenity, and similar speech categories from harassing speech? Obviously the fact that harassing speech is
(arguendo) unprotected can't be the distinction: False statements of fact made with actual malice, fighting words,
incitement, and obscenity are unprotected as well. Independent review is required in such cases precisely to
determine whether or not the speech falls within the unprotected category.
Nor should one's views about the importance of
the state interest make a difference.
Preventing incitement to imminent violence is surely an important
interest, but the Bose rule applies
to incitement cases also.[31] Moreover, Bose review doesn't prevent the interest from being served; it only
requires that appellate courts have the final say.
It also can't matter that the speech in many
harassment cases is supposedly "low‑value" pornography or slurs. The same is true in obscenity and fighting‑words
cases, but Bose made clear that the
independent judgment rule applies there, too.[32]
One could, in the words of my colleague Stephen
Yeazell, view harassment law as part of a "continuing renegotiation of the
social contract between the sexes," a process of social decisionmaking best carried
on by jurors consulting their consciences on an ad hoc basis.[33] But Bose
precludes such a conclusion. The
holding of Bose is precisely that the
definition of speech restrictions shouldn't be left - as is, for instance, the
law of negligence - to the consciences of jurors.[34]
The only reason I can see for not applying Bose would be a judgment that speech on both sides of the line is
unprotected. If even nonharassing
workplace speech - speech that isn't severe or pervasive enough to create a
hostile environment - were unprotected by the Constitution, the
harassment/nonharassment line wouldn't have constitutional significance. If all
bigoted political statements, religious proselytizing, suggestive jokes, or art
containing nudity were unprotected in the workplace, it wouldn't matter for
constitutional purposes whether a particular set of statements was "severe" or
"pervasive" enough to create a "hostile" environment. The finding of a hostile environment might still be wrong, but it
would be wrong only on statutory grounds.[35]
But surely this can't be correct. NLRB
v. Gissel Packing Co.[36]
made clear that workplace speech is generally protected by the Free Speech
Clause (at least so long as the speech doesn't contain a "threat of reprisal or
promise of benefit" by the employer or a union). (Click
here for more details.) And
this must be so: If, for instance,
Congress tried to bar private employees from criticizing the war effort, or
from saying things critical of returning soldiers, surely the law would be
unconstitutional even if it applied only to workplace speech.[37]
Nor can the fact that employees in the workplace
are arguably "captive" - unable to easily escape the offensive speech - lead to
the conclusion that workplace speech is unprotected. The Court has never held that the mere presence of a captive
audience justifies speech restrictions.
People often can't avoid offensive speech. Courthouse employees couldn't easily avoid Cohen's "Fuck the
Draft" jacket.[38] Strikebreakers are captive to picketers who
march around with signs saying "Scab!"; they see the offensive speech every
morning and every evening, and even more often if they have to come and go
during the day, or if their desks face the street.
While the scope of the captive audience doctrine
isn't particularly clear, I'm confident the Court wouldn't conclude that all workplace speech - or even all
bigoted, proselytizing, offensive, or sexually suggestive workplace speech - is
constitutionally unprotected. Certainly
the Court has
never used the captive audience doctrine as support for anything
nearly this broad. And in light of Gissel, it seems clear that workplace
speech is generally protected despite the presence of an arguably captive
audience.
What makes harassment law constitutional under
the Free Speech Clause, if anything does, is that the harassing speech is more
than just offensive or ugly. When
speech is so offensive, so pervasive that it creates a hostile environment, the
government might arguably have a justification for restricting the
speakers. But so long as the speech
doesn't rise to this level - so long as it doesn't actually constitute
harassment - there's no reason why the speech, which is clearly protected
outside the workplace, should become unprotected.[39] And if nonharassing speech is
constitutionally protected, the Bose
principle demands that the line between harassing speech and nonharassing
speech be reviewed independently by appellate courts.
Say a jury finds that the display of a few
Gauguin nudes - recall the Naked Maja
incident described above - constitutes sexual harassment, or perhaps even
religious harassment.[40] I imagine that quite a few jurors don't have
much more sympathy for sexually suggestive "serious art" than they do for
Hustler centerfolds. And say the court
of appeals, applying independent judgment, disagrees with the jury, and
concludes that the speech was not harassment.[41]
Employers throughout the jurisdiction will then
know that "artistic" nude pictures are safe, at least when there are only a
few, and when they aren't combined with other speech or conduct. If in the future an employee complains about
a similar display, the employer will know that it needn't fear liability.
Likewise, say a judge finds that religious
proselytizing - for instance, religious articles in the company newsletter plus
signs that say "There's no salvation except through Jesus" - has created a
hostile environment. The court of
appeals will then reconsider the issue.
If it agrees with the trial judge, employers will know what's forbidden. On the other hand, if the appellate court
concludes there's no harassment, that'll be binding precedent, and employers
will know they can freely say similar things.
Granted, no two fact patterns are identical, and
it's not even always possible to determine whether the speech in one situation
is more or less severe than in another one.
But the data points add up. With
each new binding decision the rule becomes more explicit. That, at least, is the theory the Court
adopted in Bose.
Independent judgment review needn't - and can't -
be a reexamination of all the factual findings involved in the lower court's
decision. The appellate court may, for
instance, defer to the factfinder's judgments about witness credibility.[42] In jury cases, the court will generally have
to assume that the jurors believed the winning side's factual claims. For instance, if what was said is in dispute
- plaintiff asserts that a coworker said something offensive, but the coworker
denies it - and plaintiff wins, the court will have to assume that plaintiff's
story is correct.
But even if this is done, the question will remain: Did all the facts, even if viewed in the
light most favorable to the winner, create an environment that a reasonable
person would find hostile? This is a
decision the appellate court can make at least as well as a jury or a trial
judge.
Some skeptics suggest that in practice any
standard of review doesn't matter much, and that judges will manipulate the
standard to reach the result they want.
I disagree. I'm sure such
manipulation sometimes happens, but in my experience courts generally do take the
standard of review seriously. Courts
certainly say that standards of review matter, and I think it's fair to assume
that standards of review can sometimes, even if not always, make a difference.[43]
Without independent judgment review, individual
cases will give little guidance about what's allowed and what's forbidden.[44] Precedents would only be set when an
appellate court concludes that no reasonable factfinder could find liability.[45] By definition, this will happen only in the
most extreme cases - cases where a court could find that a jury would have to
be, in one judge's words, "drunk or crazy" to conclude that the speech created
a hostile environment.[46] That's a tough standard to meet.
In my view, the Bose Court, quoting Professor Leon Green, got it right:
[T]he judge has [a] distinct function . . . which though not frequently called into play, is of the utmost importance. It involves the determination of the scope of the general formula, or some one of its elements. . . . It requires the judge to say what sort of conduct can be considered as condemned under the rules . . . . It is the function through which the formulas and rules themselves were evolved, through which their integrity is maintained and their availability determined.[47]
Bose did leave a significant question
unresolved: Is independent judgment
review proper if the defendant, who's making the free speech claim, wins at
trial? The lower courts are split on
this.
Some courts stress that independent judgment review
is meant to let appellate courts develop and refine the constitutional
rules. This development would happen
regardless of which party won below, so under this approach independent
judgment review should be applied symmetrically.[48]
But other courts stress a different basis for the
Bose holding: that appellate review is necessary to
decrease the chances that constitutionally protected speech would be
erroneously punished. Under this view,
when the free speech claimant wins below, there's no risk that the factfinder
has erroneously abridged a constitutional right - at worst, it has erroneously
failed to vindicate a statutory right.[49] Moreover, these courts say, courts can't
adopt independent judgment review just for prudential reasons. Under Federal Rule of Civil Procedure 52(a),
appellate courts must review factual
findings for clear error, unless the Constitution commands otherwise.[50] The same is true for jury trials, under the
Seventh Amendment.[51]
In my view, independent judgment review of the
hostile environment question is generally both valuable and permissible under
Rule 52(a) and the Seventh Amendment, whether or not the free speech claimant
lost at trial. In either situation,
appellate independent judgment should generally produce more refinement of the
hostile environment standard. And, as
I've argued above, judicial elaboration of the standard is very much needed.
Moreover, a symmetric rule is fairer to
plaintiffs. Harassment plaintiffs'
claims aren't of constitutional magnitude, but they're certainly
important. I see no policy reason to
treat these plaintiffs worse than defendants, assuming Bose's requirements are satisfied.
For review of bench trials, the symmetric
approach can be used whether or not one concludes that Bose requires it as a constitutional matter. The hostile environment question is a
question of application of law to fact - also known as a mixed question of law
and fact - and most circuits hold that such questions may be reviewed de novo
without running afoul of Rule 52(a).[52] The Ninth Circuit and, on one occasion, the
Fifth Circuit have in fact treated hostile environment findings this way.[53] And the rationale for reviewing mixed
questions de novo - that questions which involve "strik[ing] a balance between
two sometimes conflicting societal values" and which are therefore "of clear
precedential importance"[54]
should be decided by appellate courts - is eminently applicable to the hostile
environment context.
On the other hand, I don't think that independent
judgment can work, regardless of how one reads Bose, when the court is reviewing a jury's general verdict for a
defendant. Harassment claims involve
many subsidiary factual inquiries. The
jury must find both that the environment was objectively hostile, and that the
plaintiff perceived the environment as hostile.[55] In most cases, there's also some dispute
over what was said, over whether the employer knew or should have known about
the misconduct, over what steps the employer took to try to remedy it, and so
on.
When the defendant wins, it might be because (1)
the jury concluded the environment wasn't objectively hostile, (2) the jury
believed the defendant's factual story, or (3) the jury didn't think the
plaintiff subjectively found the environment to be hostile. The court of appeals has no way of knowing
the real reason. Even if it thinks the
environment was objectively hostile, it can't reverse, because the jury might
have held for defendant on one of the other grounds.
Review of special verdicts, however, is possible. In particular, the Seventh Amendment, which
bars only reexamination of "fact[s] tried by a jury,"[56]
probably doesn't prevent appellate courts from reviewing the conclusion that no
hostile environment was created, which is a question of the application of law
to fact.[57]
Defense lawyers in workplace harassment cases
almost never raise a Free Speech Clause defense.[58] This has always been a mystery to me,
because raising the defense seems like a fairly low‑cost proposition, and
because I think the defense will sometimes be a winner.[59]
Perhaps, though, I'm wrong on the latter
point. Perhaps lawyers correctly
predict that courts will be unwilling to extend constitutional protection to
speech that causes a hostile environment.
But even if the Free Speech Clause isn't substantively relevant in
harassment cases, it is procedurally relevant.
Defense lawyers in harassment cases involving speech must begin to raise a free speech
defense because such a defense will trigger independent judgment review, and
thus give the defendant a second chance on appeal.[60]
If no free speech defense is raised at trial and
the employer loses, the appellate court might find that any right to
independent judgment review was waived and might therefore review the
harassment finding with great deference.
But if the defendant had made a free speech defense - even if the
defense was just "there's no hostile environment, so imposing liability would
violate the Free Speech Clause"[61]
- the court of appeals can draw its own conclusions about whether the speech
actually created a hostile environment.
This obviously won't guarantee a victory, but it will give the defendant
another shot.
To summarize:
1.
When a factfinder
concludes that speech has created a hostile environment, appellate courts must
independently review this conclusion.
Though most circuits don't do this now (and no circuit does this for
jury trials), it's constitutionally required.[62]
2.
Such review might
also be required if a trial judge, or a jury that returned a special verdict,
concludes that a hostile environment has not been created.
3.
The only way to
avoid the conclusion in point 1 is to argue that even nonharassing workplace speech is constitutionally unprotected, a
position that's hard to defend.
4.
Lawyers must start
making free speech defenses in harassment cases, even if they think that as a
substantive matter harassing speech will probably be held to be unprotected.
This thesis is simple, and so is its proof. Still, I've found no articles or cases that
even allude to it. And though it would
be in many lawyers' interest to make this argument, they aren't making it.
This thesis also raises one other, broader point: even if harassing speech is constitutionally unprotected, the Free Speech Clause still matters in harassment cases. So far, the judicial and scholarly debate has been about the substantive rule: is harassment law constitutional? But free speech jurisprudence is also full of procedural rules.[63] For instance, sometimes the question whether speech is unprotected - for instance, whether it's libelous and possibly whether it's obscene - must be decided by clear and convincing evidence.[64] Likewise, in at least some situations punitive damages are barred even when compensatory damages are allowed.[65] Should these rules be applied to workplace harassment cases, or at least to some workplace harassment cases? To my knowledge, no one has ever addressed this question.
[1]See Harris v. Forklift Sys., Inc., 114 S. Ct. 367,
370 (1993). The other categories
include at least age and disability, Eggleston v. South Bend Community Sch.
Corp., 858 F. Supp. 841, 847-48 (N.D. Ind. 1994), and, in some states, sexual
orientation, e.g., Leibert v.
Transworld Sys., Inc., 39 Cal. Rptr. 2d 65, 67 (Cal. Ct. App. 1995).
I discuss here only hostile environment
harassment; I don't purport to deal with quid pro quo sexual harassment, in
which a supervisor demands sex in exchange for favorable treatment.
[2]See,
e.g., Craig v. Y & Y Snacks,
Inc., 721 F.2d 77, 79 (3d Cir. 1983); Spicer v. Virginia, 44 F.3d 218, 224, rev'd on other grounds, 66 F.3d 705 (4th
Cir. 1995); Cortes v. Maxus Exploration Co., 977 F.2d 195, 198 (5th Cir. 1992);
Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993);
Ways v. City of Lincoln, 871 F.2d 750, 754 (8th Cir. 1989); Sauers v. Salt Lake
County, 1 F.3d 1122, 1126 (10th Cir. 1993); EEOC v. Beverage Canners, Inc., 897
F.2d 1067, 1070 (11th Cir. 1990). But see Collins v. Baptist Memorial
Geriatric Ctr., 937 F.2d 190, 195 (5th Cir. 1991) (de novo review,
intra-circuit conflict with Cortes);
EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989) (de novo review).
[3]See,
e.g., MacArthur v. University of
Tex. Health Ctr., 45 F.3d 890, 896 (5th Cir. 1995); Baskerville v. Culligan
Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995); Ingram v. Acands, Inc., 977 F.2d
1332, 1340 (9th Cir. 1992); Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir.
1993); Therma-Tru Corp. v. Peachtree Doors Inc., 44 F.3d 988, 991 (Fed. Cir.
1995); Meyers v. Chapman Printing Co., 840 S.W.2d 814, 822-23 (Ky. 1992).
[4]See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 250-51, 252 (1986).
[5]466 U.S. 485 (1984).
[6]Most harassment cases are brought under Title
VII, 42 U.S.C. § 2000e (1988); some are also brought under 42 U.S.C. § 1981
(1988), 42 U.S.C. § 1983 (1988), the Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634 (1988), the Americans With Disabilities Act, 42 U.S.C. §§
12101-12213 (1994), and various state antidiscrimination laws. I use "harassment law" to refer to the
harassment prohibitions embodied in all these statutes; the standards for
liability under all of them are similar.
(Click here
for more details.)
[7]See Gooding v. Wilson, 405 U.S. 518 (1972).
[8]Of course, if at least some harassing speech is
substantively protected, my main thesis - that appellate courts must apply
independent judgment in reviewing findings of harassment - remains valid a
fortiori.
[9]See Henry P. Monaghan, First Amendment "Due Process," 83 Harv. L. Rev. 518 (1970).
[10]See,
e.g., Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991); click here for references to
commentators.
Some courts and commentators have suggested that
harassment law doesn't even implicate the Free Speech Clause because no state
action is involved. If speech is
restricted, they argue, it's restricted by the private employer (albeit in
response to the risk of liability), and not by the government. For a rebuttal to this, click here.
[11]Curtis Butts Publishing Co. v. Associated Press,
388 U.S. 130, 155 (1967); New York Times Co. v. Sullivan, 367 U.S. 254, 279-80
(1964).
[12]Bose Corp. v. Consumers Union, 466 U.S. 485, 505
(1984). Professor Henry Monaghan
describes this quote and the text quoted infra at note 40 as the "core of the [Bose] opinion." Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 243 (1985).
[13]Bose, 466 U.S. at 502.
[14]Id.
[15]Id. at 511.
[16]Id. at 505; see
also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-86
(1989) (following Bose).
[17]Bose, 466 U.S. at 503.
[18]Id. at 504-08 (citing Supreme Court cases that apply
this rule to fighting words, incitement, obscenity, and child pornography); see also Hurley v. Irish-American Gay,
Lesbian & Bisexual Group, 115 S. Ct. 2338, 2344 (1995) (applying Bose to the question whether conduct was
expressive); Miller v. Fenton, 474 U.S. 104, 114 (1985) (applying Bose by analogy in the Due Process
Clause context to the question whether confession was voluntary); Murphy v.
I.S.K.Con., 571 N.E.2d 340, 345 (Mass. 1991) (reading Bose as applicable to Free Exercise Clause issues).
Likewise, in Thompson v. Keohane, 116 S. Ct. 457
(1995), the Court held that independent review was appropriate when determining
on habeas corpus whether a defendant was in custody for Miranda purposes. The Court
based its decision partly on the grounds that "[t]he law declaration aspect of
independent review potentially may guide [government decisionmakers], unify
precedent, and stabilize the law." Id. at 467 (citing Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.
Rev. 229, 243, 273-76 (1985), for the proposition that "norm elaboration occurs
best when the Court has power to consider fully a series of closely related
situations").
[19]E.g., Luke Records, Inc. v. Navarro, 960 F.2d 134, 138
(11th Cir. 1992).
[20]E.g., Herceg v. Hustler Magazine, Inc., 814 F.2d 1017,
1021 (5th Cir. 1987); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067,
1071 (Mass. 1989).
[21]Braun v. Soldier of Fortune Magazine, Inc., 968
F.2d 1110, 1120-21 (11th Cir. 1992).
[22]Standing Comm. on Discipline v. Yagman, 55 F.3d
1430, 1443 (9th Cir. 1995).
[23]E.g., Swineford v. Snyder County, 15 F.3d 1258, 1265
(3d Cir. 1994); Mekss v. Wyoming Girls' Sch., 813 P.2d 185, 194 (Wyo. 1991); see also Rankin v. McPherson, 483 U.S.
378, 385-87 nn.8-9 (1987) (arguably dictum).
[24]E.g., AIDS Action Comm. v. Massachusetts Bay Transp.
Auth., 42 F.3d 1, 6-7 (1st Cir. 1994); see
also Brown v. Palmer, 915 F.2d 1435, 1441 (10th Cir. 1990) (independently
reviewing factual findings underlying the determination of whether a forum is
public), aff'd, 944 F.2d 732 (10th
Cir. 1991) (en banc).
[25]E.g., Peel v. Attorney Registration and Disciplinary
Comm'n, 496 U.S. 91, 108 (1990) (plurality); id. at 111-17 (Marshall, J., concurring) (engaging in independent
review, but not citing Bose
directly); Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm'n, 24 F.3d
754, 755-56 (5th Cir. 1994); Don's Porta Signs, Inc. v. City of Clearwater, 829
F.2d 1051, 1053-54 & n.9 (11th Cir. 1987).
Some cases reviewing federal administrative
agency findings don't appear to follow Bose. There are two such cases that involve review
of FTC findings that ads are false or misleading, and a line of cases
(including a Supreme Court case) that involve review of NLRB findings that
unionization-related speech by an employer or a union was impermissibly
coercive. Both lines are grounded on a
deference-to-expert-agencies rationale.
The FTC cases are Kraft, Inc. v. FTC, 970 F.2d
311, 316-17 (7th Cir. 1992), and FTC v. Brown & Williamson Tobacco Corp.,
778 F.2d 35, 41 n.3 (D.C. Cir. 1985).
(Both cases also argued that Bose
was inapplicable to commercial speech, but that seems to be in considerable
tension with the Supreme Court's position in Peel, as well as the circuit decisions in Joe Conte Toyota and Don's
Porta Signs.) cf. Martin H. Redish, Product
Health Claims and the First Amendment, 43 Vand. L. Rev. 1433, 1459-60 &
n.144 (1990) (criticizing Brown &
Williamson on Bose grounds). The NLRB cases follow NLRB v. Gissel Packing
Co., 395 U.S. 575, 620 (1969), which held that "a reviewing court must
recognize the Board's competence in the first instance to judge the impact of
utterances made in the context of the employer-employee relationship." Since Gissel,
lower courts have not applied independent judgment in this area but have
instead reviewed NLRB findings for "substantial evidence." See,
e.g., DTR Indus., Inc. v. NLRB, 39 F.3d 106, 114 (6th Cir. 1994).
Gissel came long before Bose, and no court has confronted the tension between them, though
distinguished commentators have pointed to the discrepancy. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III,
101 Harv. L. Rev. 915, 976, 990 (1988); Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 244 & n.84,
258 (1985). In any event, to my
knowledge no court or commentator has suggested that substantial evidence
review be transplanted from the expert agency setting to the review of findings
made by judges and juries, where Bose
is firmly entrenched.
The only non-agency case I could find that
declined to follow Bose in
determining whether speech is unprotected, Levine v. CMP Publications, Inc.,
738 F.2d 660 (5th Cir. 1984), seems to no longer be good law. Levine
involved the finding that defamatory statements about private figures were made
negligently. The court reasoned that
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), "allow[ed] the states to
regulate [private figure defamation] within much less restrictive bounds than
those imposed [on public figure defamation]," and that therefore Bose was inapplicable. Levine,
738 F.2d at 672 n.19. But after Levine was decided, the Court made clear
that Bose does indeed apply to
negligence findings in private figure cases.
See Milkovich v. Lorain
Journal Co., 497 U.S. 1, 20 (1990); see
also LeDoux v. Northwest Publishing, Inc., 521 N.W.2d 59, 69 (Minn. Ct.
App. 1994) (applying Bose in such a
situation); Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417,
423 (N.J. 1994) (same).
[26]City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 53 n.3 (1986). But see
Association of Community Org. for Reform Now v. St. Louis County, 930 F.2d 591,
595-96 (8th Cir. 1991) (applying Bose
to a content-neutral regulation).
[27]Harassment law can't be said, like the law in Renton, to look only to the "secondary
effects" of speech and therefore be content-neutral. Click
here for more details.
[28]Bose Corp. v. Consumers Union, 466 U.S. 485,
503-06 (1984).
[29]Id. at 503.
[30]Cf. Baggett v. Bullitt, 377 U.S. 360, 372 (1964)
(striking down a law on the grounds that its vagueness required one "to 'steer
far wider of the unlawful zone' than if the boundaries of the forbidden areas
were clearly marked. Those
. . . sensitive to the perils posed by . . . indefinite language,
avoid the risk . . . only by restricting their conduct to that which is
unquestionably safe."). The Baggett quote is eminently applicable to
harassment law as it now stands.
[31]Bose, 466 U.S. at 505-06 (collecting cases).
[32]Id. at 505-08.
[33]Conversation, Mar. 28, 1995.
[34]The Bose rule applies equally
to jury trials and bench trials. 466
U.S. at 508 & n.27 (citing New York Times Co. v. Sullivan, 376 U.S. 254
(1964)). New York Times Co. v. Sullivan specifically held that the Seventh
Amendment's ban on "re-examin[ation]" of "fact[s] tried by a jury" didn't
preclude independent review by appellate courts in constitutional cases. 376 U.S. at 285 & n.26.
[35]Consider an analogous case: a libel claim based
on speech that isn't on a matter of public concern. Under Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 761 (1985), a plaintiff might be able to win such a lawsuit without
showing any fault (not even negligence) on the defendant's part. Nonetheless, many states do require a
showing of negligence in such cases as a matter of state libel law, not federal
constitutional law.
Where this is so, some appellate courts have held
that they needn't apply independent judgment to the negligence finding. See Lansdowne v. Beacon Journal Publishing
Co., 512 N.E.2d 979, 985 (Ohio 1987); Gazette, Inc. v. Harris, 325 S.E.2d 713,
728 (Va. 1985). The courts believe the
question of negligence isn't of constitutional dimension: both negligent and nonnegligent false speech on purely private
matters is constitutionally punishable.
An error in determining whether defendant was negligent might lead to
the wrong result under state law, but it wouldn't lead to an unconstitutional
result. Lansdowne, 512 N.E.2d at 985; Gazette,
Inc., 325 S.E.2d at 728.
[36]395 U.S. 575 (1969).
[37]Of course, private employers may restrict what
their employees say, just as private newspaper publishers may restrict what
their columnists write, private commercial landlords may restrict the signs
their lessees put up or the products the lessees sell, and private householders
may restrict what their guests say at the dinner table. The Free Speech Clause doesn't apply to
private employers. But it does apply
when the government restricts the speech of private employees. (Click here for more details.)
[38]See Cohen v. California, 403 U.S. 15 (1971).
[39]The dictum in R.A.V. v. City of St. Paul, 505
U.S. 377 (1992), which some have read as suggesting that workplace harassment
law is entirely constitutional, Jenson v. Evelith Taconite Co., 824 F. Supp.
847, 884 n.89 (D. Minn. 1993), doesn't intimate that nonharassing workplace
speech is unprotected. Click here
for more details.
[40]Cf. Lambert v. Condor Mfg., Inc., 768 F. Supp. 600
(E.D. Mich. 1991). In Lambert, a religious employee complained
that he had to work in an area where other employees displayed photos of nude
women, something that violated his religious beliefs. The court held that the employer had a duty to accommodate the
employee by demanding that the coworkers take the pictures down.
[41]The Bose
rule applies to jury trials as
well as bench trials.
[42]Harte-Hanks Communications, Inc. v. Connaughton,
491 U.S. 657, 688-89 (1989); Bose Corp. v. Consumers Union, 466 U.S. 485,
499-500 (1984).
[43]See, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485
(1984); United States v. D'Ambrosio, No. 92-10526, 1993 WL 41054 (9th Cir. Oct.
14, 1993) (unpublished) ("the standard of review controls the outcome of this
case"); United States v. Conley, 4 F.3d 1200, 1204 (3d Cir. 1993) ("the
standard of review can be outcome determinative"); Payne v. Borg, 982 F.2d 335,
338 (9th Cir. 1993) ("[t]he relevant standards of review are critical to the
outcome of this case"); United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.
1992) (en banc) ("the standard chosen often affects the outcome of the case");
Paul R. Michel, Advocacy in the Federal
Circuit, C961 A.L.I.-A.B.A. 5, *8 (1994) ("One of my main messages to you
is that standards of review influence dispositions in the Federal Circuit far
more than many advocates realize"; Judge Michel sits on the Court of Appeals
for the Federal Circuit); William H. Kenety, Observations on Teaching Appellate Advocacy, 45 J. Legal Ed. 582,
586 (1995) ("[t]he applicable standard of review determines the outcome of many
appellate decisions"); Sally Baumler, Appellate
Review Under the Bail Reform Act, 1992 U. Ill. L. Rev. 483, 486 ("[b]ecause
the standard of review can affect the outcome of a case, one of the first
issues in any appeal is the proper standard of appellate review to be
applied"); W. Wendell Hall, Standards of
Appellate Review in Civil Cases, 21 St. Mary's L.J. 865, 867 (1990)
("[b]ecause the appropriate standard fo review will control the outcome of an
appeal, appellate practitioners must consider the standard of review with the
same thoughtful consideration that they give to the facts and the substantive
law"); see also Fed. R. App. P.
28(a)(6) (requiring appellants to brief the standard of review); United States
v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir. 1984) (en banc) (discussing
standards of review at length); cf.
Michael Asimow, The Scope of Judicial
Review of Decisions of California Administrative Agencies, 42 UCLA L. Rev.
1157, 1189 n.112 (1995) ("As an extreme example, one practitioner told me that
in many years of practice representing professional licensees . . .
he had never lost an independent judgment case and never won a substantial
evidence case.").
[44]Trial court cases will never be binding
precedent; and if the case is tried to a jury, or is tried to a judge but the
decision isn't reported, the case won't even be persuasive precedent. Even if the decision comes in a bench trial
and gets published, it can be persuasive precedent only in future bench
trials. In future jury trials, the
trial court won't be able to use the prior decision to grant summary judgment -
without independent judgment review, the question of hostile environment is for
the jury. And the jury will never know
about the past trial court decision.
[45]See,
e.g., Baskerville v. Culligan
Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) (reversing jury verdict on the
grounds that "no reasonable jury could find that [the allegedly harassing]
remarks created a hostile working environment").
[46]Layman v. Combs, 994 F.2d 1344, 1355 (9th Cir.
1992) (Kozinski, J., dissenting) (discussing nature of review under a "no
rational trier of fact" standard in a similar context).
[47]Leon Green, Judge
and Jury 304 (1930), quoted in Bose Corp. v. Consumers Union, 466 U.S. 485,
503 & n.21 (1984).
[48]See Bartimo v. Horsemen's Benevolent &
Protective Ass'n, 771 F.2d 894, 897 (5th Cir. 1985); Don's Porta Signs, Inc. v.
City of Clearwater, 892 F.2d 1051, 1053-54 n.9 (11th Cir. 1987); see
also Lindsay v. City of San Antonio, 821 F.2d 1103, 1107-08 (5th Cir. 1987)
(applying independent judgment review even though the free speech claimant won
below; no discussion of whether the standard should be symmetrical); Hardin v.
Santa Fe Reporter, Inc., 745 F.2d 1323 (10th Cir. 1984) (same).
[49]See Multimedia Publishing Co. v.
Greenville-Spartanburg Airport Dist., 991 F.2d 154, 160 (4th Cir. 1993);
Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1229 (7th
Cir. 1985); Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir. 1988); Brown
v. K.N.D. Corp., 529 A.2d 1292, 1295-96 (Conn. 1987); see also Don's Porta Signs, Inc. v. City of Clearwater, 485 U.S.
981 (1988) (White, J., dissenting from denial of certiorari) (noting split
among the lower courts).
[50]Multimedia Publishing Co., 991 F.2d at 160; Planned Parenthood Ass'n, 767 F.2d at
1229; Brown, 529 A.2d at 1295
(similar analysis under state analog of Rule 52(a)).
[51]See Atlantic & Gulf Stevedores, Inc. v. Ellerman
Lines, Ltd., 369 U.S. 355, 358-59 (1962).
[52]See American Geophysical Union v. Texaco Inc., 37
F.3d 881, 886 (2d Cir. 1994); North River Ins. Co. v. Cigna Reinsurance Co., 52
F.3d 1194, 1218 (3d Cir. 1995); Waters v. Commissioner, 48 F.3d 838, 842 (4th
Cir. 1995); Davis v. Odeco, Inc., 18 F.3d 1237, 1245 n.30 (5th Cir. 1994); United
States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993); Cooper Tire & Rubber
Co. v. St. Paul Fire & Marine Ins. Co., 48 F.3d 365, 369 (8th Cir. 1995);
Jordan v. Clark, 847 F.2d 1368, 1375 & n.7 (9th Cir. 1988) (de novo review
whenever question "requires [the appellate court] to consider legal concepts in
the mix of fact and law and to exercise judgment about the values that animate
legal principles"); Ershick v. United Missouri Bank, 948 F.2d 660, 666 (10th
Cir. 1991); International Ins. Co. v. Johns, 874 F.2d 1447, 1453 (11th Cir.
1989); Carter v. Bennett, 840 F.2d 63, 65 (D.C. Cir. 1988). But
see Williams v. Poulos, II F.3d 271, 278 & n.11 (1st Cir. 1993) (mixed
questions of law and fact reviewed with varying degrees of deference, depending
on how "fact dominated" the question is); Mars Steel Corp. v. Continental Bank
N.A., 880 F.2d 928, 933 (7th Cir. 1989) (en banc) ("fact-bound" mixed questions
of law and fact reviewed for clear error).
The Supreme Court has not resolved this question. Pullman-Standard Co. v. Swint, 456 U.S. 273,
289 n.19 (1982).
Given this, it's odd that most circuits have
chosen to review hostile environment findings for clear error. I'm not sure why this happened, but part of
the reason may be a confusion between findings of hostile environment, which
are mixed questions of law and fact, and intentional discrimination findings,
which are pure questions of fact (because there the ultimate question is the
decisionmaker's mental state, see
Pullman-Standard Co., 456 U.S. 273).
See, e.g., Craig v. Y & Y
Snacks, Inc., 721 F.2d 77, 79 (3d Cir. 1983); Spicer v. Virginia, 44 F.3d 218,
224, rev'd on other grounds, 66 F.3d
705 (4th Cir. 1995); Ways v. City of Lincoln, 871 F.2d 750, 754 (8th Cir.
1989).
[53]See Collins v. Baptist Memorial Geriatric Ctr., 937
F.2d 190, 195 (5th Cir. 1991); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th
Cir. 1989). But see Cortes v. Maxus Exploration Co., 977 F.2d 195, 198 (5th
Cir. 1992) (reviewing for clear error).
[54]United States v. McConney, 728 F.2d 1195, 1205 (9th
Cir. 1984) (en banc).
[55]Harris v. Forklift Sys., Inc., 114 S. Ct. 367,
371 (1993).
[56]U.S. Const. amend. VII.
[57]See Mark S. Brodin, Accuracy, Efficiency, and Accountability in the Litigation Process -
The Case for the Fact Verdict, 59 U. Cin. L. Rev. 15, 32, 56-57 (1990);
Colleen P. Murphy, Integrating the
Constitutional Authority of Civil and Criminal Juries, 61 Geo. Wash. L.
Rev. 723, 749 (1993). But see Comment, Special Verdicts: Rule 49 of the Federal Rules of Civil Procedure,
74 Yale L.J. 483, 502-03 (1965).
[58]I've found only a few federal harassment cases in
which the free speech defense was even mentioned. (Click here
for more details.) It's possible that
in some other cases the free speech defense was raised but the court didn't
have to reach it because it held for the defendant on other grounds. But if a plaintiff wins and the appellate
court doesn't mention the free speech issue, it seems almost certain that the
defendant didn't raise it. Courts of
appeals generally don't silently ignore constitutional defenses.
[59]Click here for cites to court cases dealing with the First
Amendment defense, some of which seem quite hospitable to it.
[60]This is true even when the case involves both
speech and other conduct, such as unwanted touching, mistreatment by fellow
employees (for instance, refusal to help a coworker because of her sex or
race), and so on. Independent judgment
review is required where liability is based even in part on possibly protected speech. See
NAACP v. Claiborne Hardware, 458 U.S. 886, 915 n.50 (1982) (applying
independent judgment review where lower courts imposed civil liability based on
a combination of speech and acts of violence); Street v. New York, 394 U.S.
576, 588-89 (1969) (same for criminal liability based on a combination of
speech and flagburning, which at the time hadn't been held to be protected
speech); see also Bose Corp. v.
Consumers Union, 466 U.S. 485, 499, 505 (1984) (citing both cases as examples
of the Court's applying independent judgment review).
[61]This is similar to what a defendant might argue
in a public figure libel trial: "First,
the statement was said without actual malice, and therefore can't be punished
under state law; second, the statement was said without actual malice, and is
therefore protected by the Free Speech Clause."
Some jurisdictions, of course, might
automatically provide independent judgment review in libel cases, even when no
free speech defense was explicitly raised at trial, on the theory that the
constitutional issue is always latent in such cases. Likewise, a jurisdiction might provide similar review in
harassment cases, even if the Free Speech Clause wasn't mentioned below. But the safest course is to avoid the risk
of waiver by explicitly raising the constitutional defense at trial.
[62]Stare decisis doesn't prevent courts from
adopting this approach, even if they have in the past reviewed harassment
findings only for clear error. None of
the cases adopting a clear error standard considered Bose or the free speech
defense generally. When a new argument
is raised that wasn't considered in a prior case, a court isn't bound by the
prior decision. See, e.g., Waters v. Churchill, 114 S. Ct. 1878, 1889 (1994)
(plurality); see also, e.g., Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211 (1995) (striking down a statute on
constitutional grounds even though a similar statute had been upheld in the
past, in a case where the constitutional attack had not been made: "Of course the unexplained silences of our
decisions lack precedential weight."); Brecht v. Abrahamson, 507 U.S. 619, 631
(1993) ("Petitioner contends that we are bound by [past cases], by way of stare
decisis . . . . But since we have never
squarely addressed the issue, and have at most assumed [the question at issue
in this case], we are free to address the issue on the merits."); Miller v.
California Pac. Medical Ctr., 991 F.2d 536, 541 (9th Cir. 1993).
[63]Waters, 114 S. Ct. at 1884-85 (plurality).
[64]See Rosenbloom v. Metromedia Inc., 403 U.S. 29,
51-52 (1971) (libel); People v. Mitchell Bros.' Santa Ana Theater, 180 Cal.
Rptr. 728 (Cal. Ct. App. 1982) (obscenity, under both the federal and
California constitutions).
[65]See Gertz v. Robert Welch, Inc., 418 U.S. 323,
349-50 (1974) (holding that punitive damages and presumed damages are
impermissible in private-figure libel cases unless actual malice is shown);
Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1119 n.7, 1121 n.13
(11th Cir. 1992) (suggesting that punitive damages are impermissible in
negligent publication of criminal solicitation cases unless actual malice is
shown); cf. Florida Star v. B.J.F.,
491 U.S. 524, 541 n.9 (1989) (reserving judgment on whether punitive damages
would be impermissible in invasion of privacy cases). But see Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985)
(generally allowing punitive damages and presumed damages in libel cases
involving speech on a matter of purely private concern).