The
First Amendment does more than just guarantee substantive protection for speech; it also guarantees certain kinds
of procedures aimed at making sure
that protected speech remains practically secure. Thus, for instance, the First Amendment:
1. Prohibits judgments that are based even in part on protected
speech
— for instance, punishment based on a combination of offensive political
statements and unprotected physical conduct.
2. Allows employers to assert the free speech rights of their employees,
even when the employees are not parties to the lawsuit.
1. Demands independent appellate review in cases
raising free speech questions (even when a substantively valid speech
restriction — such as a ban on obscenity or fighting words — is involved).
2. Prohibits laws that are unconstitutionally vague or overbroad.
3. Prohibits prior restraints, such as overbroad
injunctions.
4. Restricts the availability of punitive damages.
5. Prohibits strict liability for speech.
6. Sometimes demands that certain facts be proven by
clear and convincing evidence,
rather than under the less demanding “preponderance of the evidence” standard.
Many
harassment lawsuits are based on a combination of core protected speech and
unprotected conduct or unprotected speech (such as offensive touching, threats,
or even one-to-one insults). Consider,
for instance, Makhayesh v. Great Lakes
Steel, in which a Muslim employee of Syrian descent sued for national
origin and religious harassment. Part of
the alleged harassment was direct, personal insults, but part was coworkers
generally referring to Muslim religious leaders as “toilet seat[s]” and
suggesting, in the context of the Gulf War, that the United States “nuke Iraq
and Syria” and “go back [to Libya] and wipe them off the face of the earth.”[1]
The
black-letter free speech law on this is quite clear: A judgment cannot be based even in part on constitutionally
protected speech. If the plaintiff wants
to sue based on the unprotected material, that’s just fine; the factfinder
should then be allowed to consider only that material. But a plaintiff cannot argue for a judgment
based both on the unprotected matter
and the constitutionally protected speech.
This
is exactly the issue that the Court faced in NAACP v. Claiborne Hardware.[2] The NAACP and other defendants organized a
boycott of white-owned businesses in Claiborne County, demanding various
concessions. The businesses sued, on a
tort theory of intentional interference with prospective business advantage,
pointing to various behavior that interfered with their business — political
statements exhorting solidarity, threats of social ostracism of boycott
violators, threats of violence, and even actual violence. The state courts held for the businesses,
concluding that put together the behavior was indeed tortious.
The
Court reversed. Violence, the Court
held, was indeed constitutionally unprotected; but much of the other behavior —
including threats of social ostracism — was constitutionally protected
speech. And because “the nonviolent
elements . . . are entitled to the protection of the First Amendment,” they did
not lose this protection just because of the presence of unprotected
behavior. While the plaintiffs were
entitled to sue based only on the unprotected behavior, they couldn’t sue based
on a combination of the unprotected behavior and the protected speech.
The
Court held the same in Street v. New
York.[3] Street was prosecuted for treating the flag
disrespectfully; the prosecution’s theory rested both on Street’s flagburning
and on certain things he said that expressed contempt for the flag. In 1969, when the case was decided, the Court
had not yet held that flagburning was constitutionally protected, but the Court
concluded that it was unnecessary to pass on this here. Even if flagburning was constitutionally
unprotected conduct, the conviction couldn’t stand, because “[the] record [was]
insufficient to eliminate the possibility . . . that appellant was convicted
for both his words and his deed.”
Punishing someone based on a combination of constitutionally protected
words and deeds would violate the First Amendment regardless of whether the
deeds themselves would be protected.[4] Eaton v.
City of Tulsa[5]
and Bachellar v. Maryland[6]
take the same approach.
Likewise,
in Mt. Healthy City School District Board
of Education v. Doyle, the Court made clear that the First Amendment is
violated whenever protected speech makes a difference in deciding a speaker’s
fate. If protected speech is a
“motivating factor,” the Court held, in a government decision — even when other
factors are also present — the decision is unconstitutional unless the
government shows that it would have reached the same decision without
considering the speech.[7]
This
well-established law makes perfect sense, both theoretically and practically.
Theoretically,
assume that someone is sued for a combination of constitutionally protected
speech and unprotected conduct. The
plaintiff’s argument is that the speech and the conduct supposedly create a
“hostile environment” or “interfere with prospective business advantage” or
“intentionally inflict emotional distress” or some such.
Either
the lawsuit would succeed based on the conduct alone, or it wouldn’t. If it would succeed, then there’s no reason
why the words need to be considered:
Might as well sue just based on the conduct. But if it wouldn’t succeed without the words,
then it’s the constitutionally protected speech that makes the difference
between the defendant’s actions being lawful and unlawful. If the defendant had engaged only in the
unprotected conduct, he would have been acting lawfully, since by hypothesis
the conduct alone wasn’t sufficient to support the plaintiff’s claim. But saying the constitutionally protected
statements on top of the conduct is what makes the behavior illegal. The law is punishing the constitutionally
protected speech, since it wouldn’t have punished the conduct standing alone. That’s a First Amendment violation.
Practically,
imagine how a cautious employer would react to a decision imposing liability in
a harassment case like the one with which I began this discussion. The employer can’t just say to its employees
“It’s fine for you to make offensive political statements about Iraq, Syria,
Libya, and Muslim religious leaders, unless
some other people are also mistreating the offended worker in other ways (about
which you, the employee, might not even know).” So long as courts say that constitutionally
protected speech can contribute to a hostile environment, the cautious employer
would be wise to restrict it: After all,
it’s this constitutionally protected speech that might make the difference
between a legally permissible, nonhostile environment, and an illegal hostile
environment. So — just as the Court has
recognized — imposing liability based on a combination of constitutionally
protected speech and unprotected conduct would unconstitutionally chill the
speech.
Some
harassment cases involve employers being punished for their own speech, or
employees being enjoined from saying things.
Here, it’s clear that the defendant can raise his own First Amendment
rights as a defense.
But
say that a court is punishing the employer for its employees’ speech; the
danger is such punishment will pressure the employer into censoring the speech
of people — the workers — who are not represented in court. Can the employer assert the workers’ rights
as a defense against liability?
Definitely. The government, by pressuring the employer
with fear of liability, is restricting the speech of the employees. (To see why government action is present, click here.) This is a classic example of where
“third-party standing” — the notion that a party can assert the constitutional
rights of someone who isn’t present before the court — is appropriate. In First Amendment cases, “litigants . . .
are permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or assumption
that the statute’s very existence may cause others not before the court to
refrain from constitutionally protected speech or expression.”[8]
Thus,
for instance, in Secretary of State of
Maryland v. Joseph H. Munson Co., the Court held that a professional
fundraiser could assert its clients’ rights in challenging a law that limited
charitable fundraising: Though the
fundraiser “[was] not a charity and [did] not claim that its own First
Amendment rights have been or will be infringed by the challenged statute,” the
Court allowed the fundraiser to (successfully) argue that the law burdened the
speech of its charity clients.[9] Similarly, even if harassment law doesn’t restrict
the employer’s own speech, the employer must be able to argue that harassment
law burdens the speech of its employees.
Likewise,
in Eisenstadt v. Baird, the Court
held that contraceptive distributors could challenge a state anti-contraceptive
law as violating the rights of contraceptive users.[10] As with harassment law, such a contraceptive
law restricts people’s rights indirectly, through an intermediary: The law doesn’t directly ban contraceptive
use or employee speech, but rather pressures distributors into not distributing
contraceptives and pressuring employers into not tolerating certain kinds of
speech. But the court saw through that
in Eisenstadt, as courts should with
harassment law — because the law in ultimate effect restricts the behavior of
employees, the intermediary that is charged with enforcing the law (the
employer) has standing to assert the employees’ rights.
Finally,
in City of Madison, Joint School District
No. 8 v. Wisconsin Employment Relations Commission, a Wisconsin state agency
ordered the Madison Board of Education to “cease and desist from permitting
[certain classes of] employees” from saying certain things at Board of
Education meetings. The agency did not
directly restrict the speech of the Board’s employees, but only tried to
pressure the Board into restricting this speech. Nonetheless, the Court concluded that even if
the board had no independent First Amendment rights of its own implicated in
the case, “the board may assert [the employees’ free speech] rights on behalf
of [the employees].”[11]
Even
if a court holds that harassment law is substantively
constitutional — that any speech that creates a hostile work environment may indeed
be punished — there’s still a great advantage to raising a First Amendment
defense: It provides an opportunity for
independent appellate review.
Under
the doctrine of Bose Corp. v. Consumers
Union (a 1983 Supreme Court case), if the First Amendment is implicated at
trial, then appellate courts must independently decide whether the offensive
speech is indeed harassing. Instead of
deferring to the lower court’s finding that the speech was indeed “severe or
pervasive” enough to create a “hostile or offensive” work environment — the
usual rule — the appellate court would have to decide the matter for itself,
thus giving the defendant a second chance.
For more on this point, click here.
Harassment
law can also be challenged on the grounds of vagueness and overbreadth; see
Professor Kingsley Browne’s arguments regarding this in his Title VII as Censorship: Hostile-Environment
Harassment and the First Amendment, 52 Ohio St. L.J. 481 (1991).
Let’s
assume, for argument’s sake, that a court rejects the substantive First
Amendment arguments discussed on this site, and concludes that there’s a First
Amendment exception for harassing speech:
If speech is severe or pervasive enough to create a hostile work
environment, then it’s outside the First Amendment’s protections.
Even
if this were true, this would limit the court to punishing and enjoining speech
that’s actually harassing. It wouldn’t
allow the court to enjoin isolated bigoted statements: Such statements aren’t by themselves severe
or pervasive enough to create a hostile environment, and are therefore
constitutionally protected.
Of
course, a court might find it useful to enjoin even the protected bigoted
statements, in order to better prevent future harassment. This is probably why in harassment cases,
courts often issue injunctions that bar even individual offensive
statements: For instance, injunctions
that forbid all “racial, religious, ethnic, or other remarks or slurs contrary
to their fellow employees’ religious beliefs” or all “racial, ethnic, or
religious slurs whether in the form of ‘jokes,’ ‘jests,’ or otherwise” or “any
and all offensive conduct and speech implicating considerations of race.” (Click for details.)
But
the prior restraint doctrine prevents such a solution, no matter how effective
it might be. It’s black-letter law that
such overly broad injunctions, which sweep protected speech together with
unprotected speech, are classic unconstitutional prior restraints.[12] Even if harassing speech is unprotected, any
judicial injunctions against harassment must be limited to speech that actually
creates a hostile environment, not merely to isolated statements that may not
be harassment at all.
A
recent California Court of Appeal decision, Aguilar
v. Avis Rent-A-Car System, Inc.,[13]
disagrees with this analysis, but the California Supreme Court has agreed to
rehear the case, and should render a decision some time in late 1997 or early
1998.
Punitive
damages in free speech cases are especially troublesome, because they are
especially likely to deter protected speech as well as unprotected speech. The Court has, for instance, held that in
some kinds of libel cases punitive damages are forbidden even when compensatory
damages are allowed.[14] The Court has reserved judgment on whether
the same might be true for invasion of privacy cases.[15] The Eleventh Circuit has suggested that
punitive damages would be unconstitutional in cases involving negligent
publication of criminal solicitations.[16]
Defense
lawyers ought to argue that punitive damages should likewise be unavailable in
workplace harassment cases, even if
compensatory damages are available.
Neither I nor anyone else has written in detail about this subject;
still, my sense is that many judges might find this sort of claim persuasive.
The
Free Speech Clause generally bans strict liability based on speech.[17] Strict liability, the Court has held, unduly
chills speakers and distributors, and the same may be true in harassment
cases: Imposing strict liability on
employers for speech by their employees might lead them to suppress employee
speech even more aggressively than they otherwise would.
Despite
this, many state laws and the federal harassment regulations generally impose
strict liability in cases where the hostile environment is created by a
supervisor.[18] Again, I’ve seen no detailed discussion of this
issue, but defense lawyers should at least raise it.
In
some free speech contexts, courts have required that liability be proven not by
a preponderance of the evidence, but by clear and convincing evidence. The U.S. Supreme Court has so held for libel
cases,[19] and the
California Court of Appeal has so held for obscenity cases.[20]
The
theory is simple: Even if a certain kind
of speech — such as libel or obscenity — is unprotected, a “preponderance of
the evidence” standard makes it too likely that even protected speech will erroneously be found to fall into the
unprotected category. The “clear and
convincing evidence” standard tries to minimize the chances of such an
unconstitutional result.
The
same argument can be applied to harassment.
Even if harassment is substantively unprotected, the argument would go,
it’s impermissible for speech to be punished because it’s found to have been
harassing under a “preponderance of the evidence” standard. The speech can be restricted only if the
plaintiff clearly and convincingly proves that the speech was indeed severe or
pervasive enough to create a hostile environment.
As
with the previous two points, I know of no article or case that fully explores
this argument. Still, there is enough
precedent for this argument in other free speech contexts that defense lawyers
ought to raise it.
[1]No. 91-108394-CZ (Mich. Ct. App. Apr. 10, 1995)
(per curiam) (unpublished opinion).
[2]458 U.S. 886, 915 (1982).
[3]394 U.S. 576, 590 (1969).
[4]Of course, in all lawsuits about conduct, words
can be introduced as evidence of some
element of the offense — for instance, of the defendant’s intention. Wisconsin v. Mitchell, 508 U.S. 476
(1993). Even clearly protected speech,
such as praise of Nazism, could be introduced as evidence when the question is,
for instance, whether a defendant in a treason case acted with the intention to
help the Nazis. Haupt v. United States,
330 U.S. 631 (1947). Likewise, in a Claiborne Hardware-like case, a person’s
speech could be used as evidence in deciding whether he was indeed the
perpetrator of a specific violent assault, or whether his acts were intentional
or not. But this does not mean that the
words can themselves be made part of the offense, rather than introduced as
evidence of some other conduct. Perhaps
this is a thin line in some cases, but a line that the Court has always
respected, and that the Court must respect.
[5]415
[6]397
[7]429
[8]Secretary of State of Maryland v. Joseph H.
Munson Co., 467 U.S. 947, 957 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973); see also, e.g., Thornhill v.
Alabama, 310 U.S. 88, 97-98 (1940).
[9]467 U.S. 947, 955-57 (1984).
[10]405 U.S. 438, 445 (1972). See
also Barrows v. Jackson, 346 U.S. 249 (1953) (a seller of land may
challenge a racially restrictive covenant on the grounds that enforcing the
covenant violated the buyer’s equal protection rights).
[11]429 U.S. 167, 175 (1976).
[12]See,
e.g., Vance v. Universal
Amusement Co., 445 U.S. 308, 312 (1980).
[13]53 Cal. Rptr. 2d 599 (App. May 21), review granted, 921 P.2d 602 (Cal.
1996).
[14]See Gertz v. Robert Welch, Inc., 418 U.S. 323,
349-50 (1974) (punitive and presumed damages are impermissible in
private-figure libel cases unless actual malice is shown). 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).
[15]Florida Star v. B.J.F., 491 U.S. 524, 541 n.9
(1989).
[16]Braun v. Soldier of Fortune Magazine, Inc., 968
F.2d 1110, 1119 n.7, 1121 n.13 (11th Cir. 1992).
[17]See,
e.g., Smith v. California, 361
U.S. 147 (1959) (strict criminal liability for sales of obsnce literature
impermissible); Manal Enterprises, Inc. v. Day, 370 U.S. 478 (1962) (suggesting
same for civil penalties); New York Times, Inc. v. Sullivan, 376 U.S. 254
(1964) (rejecting strict liability for libel cases); New York v. Ferber, 458
U.S. 747 (1982) (suggesting strict liability is impermissible in child
pornography cases). But see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749 (1985) (seemingly leaving open possibility of strict liability in
private-concern libel cases).
[18]E.g., 29 C.F.R. §§ 1604.11(c), 1606.8(c); Cal.
Gov’t Code § 12940(h)(1); College-Town v. Massachusetts Comm’n Against
Discrimination, 400 Mass. 156, 166, 508 N.E.2d 587, 593 (1987); Lehmann v. Toys
‘R’ Us, 132 N.J. 587, 617, 626 A.2d 445, 460 (1993); Hanlon v. Chambers, 195 W.
Va. 99, 108, 464 S.E.2d 741, 750 (1995).
[19]Rosenbloom v. Metromedia Inc., 403 U.S. 29, 51-52
(1971).
[20]People v. Mitchell Bros.’ Santa Ana Theaer, 180
Cal. Rptr. 728 (Cal. Ct. App. 1982).