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FREEDOM OF SPEECH VSFreedomof Speech vs.WorkplaceHarassment Law —AGrowing Conflict Prof.Eugene Volokh, UCLA Law School THIS SPEECH IS ILLEGAL! Religious articlesin newsletter and Bible verses on paychecks — ILLEGAL “religious harassment,” says a court. Anti-veteranposters at Ohio State University — ILLEGAL “veteran status harassment,” says the federal government. Goya’s “Naked Maja”painting displayed in a classroom — ILLEGALsexual harassment, claims a professor; university takes the painting down forfear of liability. “Any racial,religious, ethnic or other remarks . . . contrary to their fellow employees’religious beliefs” — ILLEGAL,says a court injunction (enforceable by criminalcontempt penalties). “Any and alloffensive . . . speech implicating considerations of race” — ILLEGAL, 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 thisproblem because, when Title VII is applied to sexual harassment claims foundedsolely on verbal insults, pictorial, or literary matter, the statute imposescontent-based, viewpoint-discriminatory restrictions on speech.” CircuitJudge Edith Jones, writing (albeit in dictum) for a unanimous panel of the FifthCircuit, DeAngelis v. El Paso Mun. PoliceOfficers’ Ass’n, 51 F.3d 591 (5th Cir. 1995). Withlittle fanfare, “workplace harassment law” has become one of the government’sbroadest — and most constitutionally troublesome — speech restrictions. It has been used to suppress, among otherthings,· politicalstatements,· religiousproselytizing,· art, such as printsof Francisco de Goya paintings,· sexually themed(perhaps not even misogynistic) jokes.Harassment law has done a lot of good, and muchof it is constitutionally valid. Butother parts are serious threats to free speech. ThisWeb site is a resource for lawyers, researchers, students, writers, andcitizens interested in the conflict between the freedom of speech and workplaceharassment 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 the 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 TopicalIndex Artrestricted by harassment lawAuthor of this siteBibliographyBose Corp. v. Consumers UnionCaptive audience doctrineCourt casesconfronting the free speech defenseCountervailingconstitutional values argumentsCyberspace —how harassment law restricts access to itEmployer rightsto restrict employee speechEpithetsEvery place isa workplaceEvidence,speech asFightingwords doctrineGissel Packing Co., NLRB v.Governmentemployee speech doctrineHarris v. Forklift Systems, Inc.Injunctionsrestricting speechJokesrestricted by harassment lawLibrariesrestricting speech because of the risk of harassment liabilityMixed speech and conductclaimsPatrons,how workplace harassment law restricts speech by themPoliticalspeech restricted by harassment lawPornographyPublic accommodations,how hostile public accommodations environment law restricts speechPublic forumdoctrineR.A.V. v. City of St. PaulSecondary effectsdoctrineSlippery slopedangersSpeech sold byemployer, how harassment law restricts itState action,why harassment law isTime, place, andmanner restrictionsUnion-relatedspeech restricted by harassment lawVaguenessof harassment lawValueof workplace speechVeteran status harassmentWorkplace speechis constitutionally protected About the Author EugeneVolokh teaches constitutional law at UCLA Law School. He’s written five law review articles about free speech andworkplace harassment law, which have been cited in 10 court decisions and 70law review articles. He has been citedor quoted on this subject in the New YorkTimes, The New Republic, U.S. News & World Report, Harper’s Magazine, the Chicago Tribune, Forbes, and many other publications. Heis also the author of many other scholarly articles on constitutional law andother legal topics, which have appeared in the Yale Law Journal, the HarvardLaw Review, the Stanford Law Review,the Supreme Court Review, the NYU Law Review, the Pennsylvania Law Review, the MichiganLaw Review, the UCLA Law Review,and other publications. He clerked forJudge Alex Kozinski on the U.S. Court of Appeals for the 9th Circuit, and forJustice Sandra Day O’Connor on the U.S. Supreme Court. For a full c.v., clickhere. About this Site Thissite is largely composed of excerpts from published law review articles, thoughmodified for readability, and updated to reflect new cases. For some materials, I’ve tried to keep thefootnote numbers the same as in the original, which explains the missing andfractional footnotes. How to Cite: Igenerally indicate the source of each document with a “Cite text as:” messageat the very top. This will let you citethe work as general support for a proposition. If you want to cite to an exact page number, you might want to pull thearticle from the library. Reproduction: If youwant to reproduce any part of this Web site, or of my articles, for anynonprofit 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 fornonprofit purposes. I’d prefer,though, if you checked with me before excerpting anything, so I might speak upif it looks like something important might be missing. If you want to reproduce the piece forprofit — for instance, in a casebook — I’ll generally be happy to givepermission, too, but I’d like you to check with me first. |
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