Anti-abortion exhibit as sexual harassment?

[Volokh, Eugene]

                As I understand the theory, it would be this:  Abortion is a
right of women, and therefore opposition to abortion is anti-women and thus
offensive to women because of their gender.  See, e.g., Andy Koppelman,
Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U.L. Rev.
480 (1990) ("Sexism is as pervasive in the anti-abortion world view as
racism was in the Southern peonage system.  Just as Southern Whites
typically assumed that blacks were lazy and irresponsible, the anti-abortion
world view typically belittles women's capacity for moral agency, often
supposing that women who abort simply do not and cannot understand what they
are doing."); Statement by Gloria Feld, President of Planned Parenthood
Federation of America, Nov. 15, 1999 ("The Clinton Administration
capitulated to anti-choice, anti-women politicians, agreeing to deny
international family planning funds in order to pay U.N. arrears."); Eleanor
Chute, "NOW Leaders Urge Feminists to Run for Public Office," Pittsburgh
Post-Gazette, Nov. 14, 1999 ("State NOW President Barbara Burgos DiTullio
said . . . 'We just don't want Santorum . . . He's anti-abortion,
anti-women.'").  And wasn't one of the arguments in the Bray case that
attacks on abortion rights are essentially gender-based?

        It's true that some women support pro-life speech of this sort, and
many men may be appalled by it -- but the same may well be true of sexually
themed pictures (plenty of men are appalled by the posting of such pictures,
and some women are just fine with it), of sexually themed jokes (likewise),
and of sexist political statements (likewise).  Nonetheless, courts have
generally held that sexually themed pictures are potentially sexually
harassing, on the theory that they send an anti-female message, are
disproportionately offensive to women (even if they are also offensive to
some men and not offensive to some women), or both.  Likewise, at least some
courts have taken the same view with regard to sexually themed jokes.  See,
e.g., Cardin v. Via Tropical Fruits, Inc., No. 88-14201, 1993 U.S. Dist.
LEXIS 16302 (S.D. Fla. July 9, 1993) (though "[m]any of the sexual cartoons
and jokes . . . depicted both men and women," the court concluded that
"widespread verbal and visual sexual humor -- particularly vulgar and
degrading jokes and cartoons . . . may tend to demean women").  And of
course courts do generally hold that sexist political statements are
potentially sexually harassing, again even though many men disagree with
them and some women might agree with them.

        Now I personally do not think that pro-life speech is necessarily or
even generally sexist; but terms such as "sexist" or "tends to demean women"
or even "offensive on account of gender" are all so vague and subjective
that plausible arguments can be made in all directions.

        What's more, even if the speech *were* clearly sexist, and clearly
disproportionately offensive to women, I believe it would have to be
protected.  Say that there were posters saying "Abortion: A Shameful Sign of
Women's Inherent Weakness" or "All Men Are Rapists" or "Stop the Equal
Rights Amendment -- Let's Return to Women's Traditional Roles" or "Ten
Reasons Why Men Are Pigs"; as a factual matter, I would accept that they may
create an offensive environment for some university students and faculty
based on their gender.  But the First Amendment protects even statements
that *are* offensive based on gender (or race or religion or whatever).

        Eugene

> -----Original Message-----
> From: Sanford Levinson [SMTP:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Wednesday, March 14, 2001 9:12 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Anti-abortion exhibit as sexual harassment?
>
> Margo Schlanger writes:
>
> So the statutory question is whether pictures of aborted fetuses create a
> >sufficiently severe hostile environment for women, on account of their
> >gender -- not whether those pictures are "sexually explicit."
> >
>
> I have a hard time understanding how those offended by the pictures could
> meet the "on account of their gender" standard, given the obvious fact
> that
> many women oppose reproductive choice and many men were appalled by the
> pictures.  I agree that "sexual explicitness" is beside the point:  Surely
> a hostile environment, "on account of their gender," would be created by
> pictures of fully-clothed women being beaten and the like.  But that's not
> this case.
>
> sandy levinson
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