Bibliography: Freedom of Speech vs. Workplace Harassment Law




1.                  Selected Major Law Review Articles Regarding Whether Harassment Law is Constitutional


Arguing that it is unconstitutional, as applied to virtually all speech (outside the normal exceptions):


                    Kingsley R. Browne, Title VII as Censorship: Hostile‑Environment Harassment and the First Amendment, 52 Ohio St. L.J. 481 (1991).


Arguing that it is partly unconstitutional unconstitutional as applied to some speech, but constitutional as applied to other speech:


                    Cynthia Estlund, Freedom of Speech in the Workplace and the Problem of Discriminatory Harassment, 75 Tex. L. Rev. 687 (1997);

                    Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 Sup. Ct. Rev. 1;

                    Nadine Strossen, Regulating Workplace Sexual Harassment and Upholding the First Amendment Avoiding a Collision, 37 Vill. L. Rev. 757 (1992);

                    Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791 (1992);


Arguing that it is constitutional, as applied to virtually all speech, including the sort that usually cannot be suppressed by the government:


                    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 (1996);

                    Suzanne Sangree, Title VII Prohibitions Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47 Rutgers L. Rev. 461 (1995) (same issue contains Browne and Volokh replies and Sangree rejoinder).


2.                  Selected Major Law Review Articles on Ancillary Topics


                    Eugene Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 Northwestern U. L. Rev. 1009 (1996), discussing procedural requirements mandated by the Free Speech Clause in appeals of harassment cases.

                    Eugene Volokh, What Speech Does "Hostile Work Environment" Harassment Law Restrict?, 85 Georgetown L.J. 627 (1997), discussing the breadth of harassment law.

                    Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective, 1996 U Chicago Legal Forum 377, 414-21, discussing hostile public accommodations environment harassment law.


3.                  Selected Briefer Articles


                    Jonathan Rauch, Cover Story, Offices and Gentlemen, The New Republic, June 23, 1997, at 22-28, an excellent (and short) magazine article on the question.

                    Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 Berkeley J. Emp. & Labor L. 305 (1996), and David B. Oppenheimer, Workplace Harassment and the First Amendment: A Reply to Professor Volokh, 17 Berkeley J. Emp. & Labor L. 320 (1996), a brief debate on this subject that's a pretty good condensation of the key arguments.