Prof.
Eugene Volokh, UCLA Law School
Religious articles
in newsletter and Bible verses on paychecks — “religious
harassment,” says a court.
Anti-veteran
posters at Ohio State University — “veteran status harassment,” says
the federal government.
Goya’s “Naked Maja”
painting displayed in a classroom — sexual harassment, claims a professor;
university takes the painting down for fear of liability.
“Any racial,
religious, ethnic or other remarks . . . contrary to their fellow employees’
religious beliefs” — prohibited
harassment, says a court
injunction.
“Any and all
offensive . . . speech implicating considerations of race” — prohibited harassment, says another injunction.
“Where pure expression is involved,
Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem
because, when Title VII is applied to sexual harassment claims founded solely
on verbal insults, pictorial, or literary matter, the statute imposes
content-based, viewpoint-discriminatory restrictions on speech.” Circuit Judge Edith Jones, writing (albeit in dictum) for a
unanimous panel of the Fifth Circuit, DeAngelis v. El Paso
Mun. Police
Officers’ Ass’n, 51 F.3d 591 (5th Cir. 1995).
“Plaintiffs
no doubt feel demeaned by Kehowski’s speech, as his
very thesis can be understood to be that they are less than equal. But that
highlights the problem with plaintiffs’ suit. Their objection to Kehowski's speech is based entirely on his point of view,
and it is axiomatic that the government may not silence speech because the
ideas it promotes are thought to be offensive. See Brandenburg v. Ohio,
395 U.S. 444, 448-49; Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200,
204 (3d Cir.2001); DeAngelis v. El Paso
Mun. Police Officers Ass’n,
51 F.3d 591, 596-97 (5th Cir.1995). ‘There is no categorical ‘harassment
exception’ to the First Amendment's free speech clause.’ Saxe, 240 F.3d
at 204 [written by then-Circuit-Judge, now Supreme Court Justice, Samuel
Alito].” Chief Judge Alex Kozinski, writing for a unanimpus
panel of the Ninth Circuit, Rodriguez v. Maricopa County Community College
Dist., 605 F.3d 703 (9th Cir. 2010).
With
little fanfare, “workplace harassment law” has become one of the government’s
broadest — and most constitutionally troublesome — speech restrictions. It has been used to suppress, among other
things,
·
political statements,
·
religious proselytizing,
·
art, such as prints of Francisco de Goya paintings,
·
sexually themed (perhaps not even misogynistic) jokes.
Harassment law has done a lot of good, and much of
it is constitutionally valid. But other
parts are serious threats to free speech.
This
Web site is a resource for lawyers, researchers, students, writers, and
citizens interested in the conflict between the freedom of speech and workplace
harassment law. It’s heavily footnoted,
and borrowed largely from articles I’ve published in legal journals. It’s organized as follows:
|
BREADTH |
SUBSTANCE |
SOLUTION |
|
What kinds of speech harassment law suppresses |
First
Amendment analysis of harassment law |
Allowing
restrictions on conduct
and one-to-one speech, but not
other kinds of speech |
|
PROCEDURE |
SLIPPERY SLOPE |
CYBERSPACE |
|
Procedural First
Amendment issues in harassment cases |
Harassment law slipping beyond the workplace |
Harassment law restricting cyberspace speech |
|
Q & A |
||
|
Questions &
answers for lawyers |
Reference Materials
|
DEFINITION |
IN THE COURTS |
BIBLIOGRAPHY |
|
Sources of harassment law
(state and federal) |
What
some courts have said
about the First Amendment issue |
Bibliography of
leading harassment law articles (from all perspectives) |
|
INDEX |
ABOUT THE AUTHOR |
ABOUT THE SITE |
|
Keyword index of materials
on this site |
About the author
of this site |
How to use and cite
materials on this site |
Art
restricted by harassment law
Author of this site
Captive audience doctrine
Court cases
confronting the free speech defense
Countervailing
constitutional values arguments
Cyberspace —
how harassment law restricts access to it
Employer rights
to restrict employee speech
Evidence,
speech as
Fighting
words doctrine
Government
employee speech doctrine
Harris v.
Forklift Systems, Inc.
Injunctions
restricting speech
Jokes
restricted by harassment law
Libraries
restricting speech because of the risk of harassment liability
Mixed speech and conduct
claims
Patrons,
how workplace harassment law restricts speech by them
Political
speech restricted by harassment law
Public accommodations,
how hostile public accommodations environment law restricts speech
Public forum
doctrine
Secondary effects
doctrine
Slippery slope
dangers
Speech sold by
employer, how harassment law restricts it
State action,
why harassment law is
Time, place, and
manner restrictions
Union-related
speech restricted by harassment law
Vagueness
of harassment law
Value
of workplace speech
Veteran status harassment
Workplace speech
is constitutionally protected
Eugene
Volokh teaches constitutional law at UCLA Law School. He’s written five law review articles about free
speech and workplace harassment law, which have been cited in 10 court
decisions and 70 law review articles. He
has been cited or quoted on this subject in the New York Times, The New
Republic, U.S. News & World
Report, Harper’s Magazine, the Chicago Tribune, Forbes, and many other publications.
He
is also the author of many other scholarly articles on constitutional law and
other legal topics, which have appeared in the Yale Law Journal, the Harvard
Law Review, the Stanford Law Review,
the Supreme Court Review, the NYU Law Review, the Pennsylvania Law Review, the Michigan
Law Review, the UCLA Law Review,
and other publications. He clerked for
Judge Alex Kozinski on the U.S. Court of Appeals for the 9th Circuit, and for
Justice Sandra Day O’Connor on the U.S. Supreme Court. For a full c.v., click
here.
This
site is largely composed of excerpts from published law review articles, though
modified for readability, and updated to reflect new cases. For some materials, I’ve tried to keep the
footnote numbers the same as in the original, which explains the missing and
fractional footnotes.
How to Cite: I
generally indicate the source of each document with a “Cite text as:” message
at the very top. This will let you cite
the work as general support for a proposition.
If you want to cite to an exact page number, you might want to pull the
article from the library.
Reproduction: If you
want to reproduce any part of this Web site, or of my articles, for any
nonprofit purpose, please feel free to do so.
I’ve retained the copyright in these works, and hereby give you an unlimited, nonexclusive right to copy them for
nonprofit purposes. I’d prefer,
though, if you checked with me before excerpting anything, so I might speak up
if it looks like something important might be missing. If you want to reproduce the piece for profit
— for instance, in a casebook — I’ll generally be happy to give permission,
too, but I’d like you to check with me first.