What speech businesses / colleges / restaurants may engage in
volokh at MAIL.LAW.UCLA.EDU
Mon Nov 22 18:30:49 PST 1999
Leslie asks, as I understand it, about a concerted campaign that uses speech to get people to quit because of their race, sex, etc. A few thoughts:
1) I agree that allowing such concerted campaigns would pose enforcement problems for antidiscrimination law, in the sense that they may indeed lead some people to quit their jobs; I would just say that not all such enforcement problems necessarily justify speech restrictions.
2) I think concerted campaigns that involve solely what I call one-to-many speech (newsletter articles, posters) that is otherwise protected (i.e., excluding, say, death threats) pose a far smaller enforcement problem. Again, I think they may sometimes lead some people to quit their jobs, and they will often lead people to feel less happy in their jobs. But again I don't think this necessarily justifies speech restriction.
3) Why am I being so stingy here? Surely the desire to get people to quit their jobs isn't entitled to that much solicitude -- why not just say that this particular kind of speech is unprotected, even if it is otherwise constitutionally protected one-to-many speech?
Well, note again the logic of the slippery slope. The argument starts the premise that it must be OK to restrict orchestrated campaigns to get people to quit their jobs. It then goes on to workplace harassment law as it is today, which does not at all require any such orchestrated campaign, does not require any intention to get anyone to quit, and applies to a wide range of workplace speech that seems quite unlikely to get most people to quit their jobs (as well as speech that does seem likely to have this effect). It then, through the logic of the statute, applies to speech in places of public accommodation that might cause patrons to feel unwelcome in those places (again, with or without any such intention) and to speech in educational institutions that might cause students to feel unwelcome in those places.
These slippage concerns are, I think, eminently reasonable, in part because we *have* already slipped down the slope. Now perhaps we should ban speech that's intended to get someone to quit because of race, religion, sex, etc., and perhaps there is a defensible limiting principle that would stop the slippage I describe. If such a principle is found, and harassment law is suitably narrowed, I will at the very least be less concerned than I now am. But unfortunately so far I've seen no such principle or such narrowing.
> From: Leslie Goldstein[SMTP:LESL at UDEL.EDU]
> Sent: Monday, November 22, 1999 8:04:34 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: What speech businesses / colleges / restaurants may engage in
> Auto forwarded by a Rule
reply from Leslie Goldstein to Eugene's reply below:
Yes, in principle I agree with you. The problem is that some message
are ambiguous and may be deliberately so. In particular workplace
harassment case law developed out of OBVIOUS efforts thru the use of
symbolic and literal speech to intimidate, threaten, and embarass women
and blacks into quitting jobs where their co-workers did not want any
members of that group around (e.g. firemen who did not want women
infiltrating their domain). Thus, there was no need for the employer
FORMALLY to break the law by firing them, if in fact the co-workers
could succeed in their deliberate efforts to pressure them into
quitting. Do you not see such clear-cut harassment behavior (albeit
behavior that does not contain an announcement by the boss: I intend to
break the law) as presenting an enforcement problem for
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