College ordered to bar faculty members from making derogatory statements about men

[Volokh, Eugene]

        #2.  As I've argued in the past, I believe that it's
unconstitutional for the government acting as sovereign to punish this sort
of speech -- subject to certain caveats I've described elsewhere, e.g.,
http://www.law.ucla.edu/faculty/volokh/harass/permissi.htm -- under the
rubric of hostile work environment law.  The expression of sexist ideas,
whether they are anti-male or anti-female, is just as protected against
government suppression as the expression of antigovernment ideas,
pro-adultery ideas, etc., even if the government believes the ideas to be
evil, harmful, and offensive.

        One of my arguments in support of this point has long been the
slippery slope concern -- that if offensive ideas may be punished by the
government (as sovereign) in private workplaces, they can likewise be
punished in educational environment, in places of public accommodation, in
apartment complexes (under the rubric of hostile housing environment law),
and so on.  This case, I think, powerfully demonstrates this concern.  Here
you have the government as sovereign prohibiting university instructors from
expressing certain views -- surely, it seems to me, a core constitutional
violation.  And one of the arguments that gives aid and comfort to such
suppression is hostile work environment law -- just as the slippery slope
concerns would have predicted.


Robin Charlow writes:

> Perhaps I'm missing something, but these sound like the kind of remarks
> that would qualify as illegal hostile work environment in the private
> employment arena under Title VII, whether or not directed at some
> particular individual.  Are you suggesting/arguing that:  1) they would
> not be, 2) they would be but such a proscription is unconstitutional
> under the First Amendment, 3) they would be in the employment context
> but not in the educational context (eg, under Title IX),  4) they would
> be in the private employment context but not in the PUBLIC educational
> (and employment?) context?
>
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