What speech businesses / colleges / restaurants may engage in

[Barksdale, Yvette]

Re: whether first amendment prevents harassment law from prohibiting
businesses from hanging swastikas.   (i.e.,  another "harassment law
violates the first amendment" discussion. )

As someone else, I think,  has noted in one of our many previous discussions
on this general issue, the main problem with the analysis that Eugene
advocates here is  that the  absolutist premise assumes the answer, locking
out further inquiry. Once you conclude the first amendment is absolute
(except for carefully delineated exceptions, e.g. obscenity libel - question
- should they be there? If so why?) , the answer to every first amendment
question regardless of context is - Can the activity be characterized as
speech? If so, first amendment violated (unless narrow previously
articulated  doctrinal exception )

        a. Example: Q. Can harassment law prohibit a business owner from
posting swastikas or anti-semitic posters in his place of business, thus
limiting  the jewish employees right to equal employment opportunity, and
making it more difficult for them to fully participate in the benefits of
the society which almost entirely depend upon access to economic resources?

        b. Analysis and answer: Can the posting of antisemitic posters be
characterized as speech? Yes! Therefore, government cannot regulate such
posting, regardless of the impact on the employment opportunities of
jewish-americans.

The rationale for this absolutist position is apparently the slippery slope
argument: if we don't protect all activity which can be characterized as
speech, we can't protect any activity which can be characterized as speech
because we can never draw a principled line (this  i think means rules)
distinguishing between protected and unprotected speech.  Today, swastikas,
tomorrow- playboy pinups - y2k - newspaper editorials.

The problem with this slippery slope argument is that it ignores the
possibility of judgment, aka "common sense" as having any mediating role in
the law.  For example - how to distinguish  hanging swastiskas   and
antisemitic posters in accounting firm from hanging swastikas and
antisemitic posters in a nazi bookstore (or placing mein kampf on a shelf
for sale at Borders.).  Common sense answer: An employer for whom the use of
offensive materials is  essential to the operation of the business has a
defense to the charge that those materials create a "hostile work
environment."(analogue - bfoq)   As a matter of common sense (Aka good
judgment) a jewish employee who voluntarily goes to work in a nazi bookstore
cannot be heard to complain that the nazi materials for sale are "creating a
hostile work environment." Contrast, someone who signs up to be an
accountant at Ernst and Young.  Obviously there will be close cases,
(workers at Imus in the Morning?)  but this is why judges are called judges,
because they are supposed to exercise "judgment." Would antiharassment law
potentially be unconstitutional if applied in an extreme manner? Let's
assume so (Ex. mein kampf displayed at borders books). But is the argument
that some interpretations might be unconstitutional a reason to throw out
the entire statute?

Moreover, your absolutist premise, i.e., "government cannot regulate any
activity which can be characterized as speech, "  is simply not true, as a
matter of law - indeed could not be true without reducing first amendment
law to theater of the absurd.

As I and others have often posted here - government regulates speech all the
time. What you say, or print or publish can be used against you in a court
of law, and can land you in jail. Ex. criminal conspiracy law, copyright
law, securities regulation, fraud law, consumer protection law, etc.

Thus,  if  the government  records a telephone conversation between the two
of us in which we plot a crime, (obviously using only words to do so) , our
words can be used to convict us for conspiracy and send us to the
penitentiary.  And, the first amendment will not keep either of us out of
jail. Why? Because we used those words to commit a crime.  The fact that the
words can be characterized as speech is irrelevant.  - Here, the "speech" is
not simply "speech" but is  a means of  violating ordinary laws (criminal
conspiracy, or hostile work environment law.) (See for example, Smith, first
amendment free exercise rights do not include the right to practice your
religion in disregard of generally applicable laws.)

Thus the first amendment is not that absolute - so you need additional
reasons why an accounting firm should have a first amendment right to
require jewish employees to work with swastikas.

yb