Anti-abortion exhibit as sexual harassment?

[Glenn Reynolds]

Marty's statement may be true as a matter of law -- though in fact I
regard it as a bit optimistic -- but out in the world these Title VII
concerns have had an enormous chilling effect, and have served to
embolden university administrators and others of a similar ilk, who
frequently don't value free speech at all.  Nor is this an accident.  In
practice, "harassment" tends to be defined as "anything that
inspires feminists to charge harassment," and the ensuing
consequences -- even if ultimately there is no successful lawsuit --
serve to deter many instances of protected speech.

I imagine that at any moment some right wing group will start an
organized campaign of making similar charges aimed at feminist
professors -- perhaps noting that in the years since antimale
statements have become common and tolerated on campus, the
percentage of male enrolees in higher education has plummeted.
At that point we will see an increased sensitivity to free speech
issues, I suspect.

Date sent:              Thu, 15 Mar 2001 09:40:02 EST
Send reply to:          Discussion list for con law professors              <CONLAWPROF at LISTSERV.UCLA.EDU>
From:                   LoAndEd at AOL.COM
Subject:                Re: Anti-abortion exhibit as sexual harassment?
To:                     CONLAWPROF at LISTSERV.UCLA.EDU

> I did not mean to suggest that this is an uninteresting topic, or one that is
> not listworthy -- merely that we've written the same things over and over
> again and it appears we have nothing new to say.  As Eugene knows, what I
> find most interesting is not the "merits," but the fact that the topic
> appears to generate so much sustained outrage and concern, even though --
> *unlike* sovereign immunity, abortion and affirmative action -- there is
> virtually *no* real issue in the courts that should give anyone any concern.
> This, too, I'm afraid I've debated with Eugene time and again.  For those who
> have managed to miss it, a very cursory summary of my argument is as follows:
>  The Court has been clear, most recently in Oncale, that disparate treatment
> is necessary for T7 liability and that the question is whether the employer
> conduct would have been the same if the employee's race/sex/etc. had been
> different.  Courts do not sustain title VII (or title II public
> accommodations) liability on the basis of the sort of "public" speech of
> which Eugene is concerned, nor reject any legitimate First Amendment defense.
>  Indeed, respectable attorneys simply do not bring T7 or T2 claims that are
> dependent upon the sorts of "public speech" that concerns Eugene (as opposed
> to speech directed at employees or customers *because of* their
> race/sex/etc.).  In this respect it is telling, I think, that when we on the
> List debate sovereign immunity, abortion, affirmative action, etc., we
> ordinarily discuss Supreme Court and court of appeals opinions -- i.e., we
> debate topics that generate actual disagreement in the courts themselves.
> But when it comes to the supposed tension between antidiscrimination law and
> the First Amendment, the "specific cases" that are trotted out are usually
> anecdotes culled from newspaper articles (in which there is no serious
> question of federal statutory liability), or (as in Eugene's cite of Cardin
> the other day) old trial court (or state administrative) cases that are
> reported only on WESTLAW or LEXIS, in which the "speech" in question is
> trivial compared to the extensive allegations of outrageously disparate
> treatment of employees on the basis of sex/race/etc.
>
> Are employers/schools/etc. attempting more and more these days to ensure that
> their workplaces/classrooms/etc. are more civil and less "hostile"?  Of
> course they are.  Are they attempting to eradicate the sorts of ethnic and
> racial slurs that not-so-long-ago were ubiquitous in white-male dominated
> environments?  You bet.  Are they attempting to discourage speech that is
> very disturbing to many in the workplace/classroom?  Indeed.  But -- and this
> is the important point for CONLAWPROF purposes -- this trend is principally
> motivated by simple decency and civility (as well as by a profit-motivated
> "good business" rationale).  It is not compelled by federal (or, I suspect,
> state) antidiscrimination laws.  And where the workplace or classroom is
> public, the First Amendment ensures extensive protection for employees and
> students to speak -- or at least, it used to until courts of appeals began to
> eviscerate Tinker and Pickering.  (Now *there's* a topic worthy of serious
> debate!)
>
> Marty Lederman (in my personal capacity)
>
>
>  Eugene writes:
>
> <<       I appreciate Marty's suggestion, and of course if people think this
>  issue has been done to death, I surely can't insist that we discuss it
>  further.
>
>          Nonetheless, I just want to briefly defend my raising the matter
>  again.  It seems to me that the tension between free speech law and
>  harassment law
>
>          (1) has been far from definitively resolved by the courts,
>
>                  (2) is one of those topics on which even con law scholars
>  have generally not come to rest (as opposed to, say, abortion or affirmative
>  action, which most con law scholars have thought about, and on which they've
>  probably already come to their own personal decisions), and
>
>          (3) is best considered through the lens of specific cases.
>
>  In fact, those who reject a broad free speech defense to harassment claims
>  often argue that this is a highly fact-sensitive area, and that while free
>  speech defenses should be available in some circumstances, they shouldn't be
>  available in others; and they generally don't provide a bright-line rule to
>  distinguish when the First Amendment defense should prevail and when it
>  should fail.
>
>          Given that this is so, it seems to me quite useful to consider some
>  specific cases and see what they tell us about the issue.  Debates about
>  abortion, affirmative action, state sovereign immunity, and the like --
>  which have also been discussed at great length both here and elsewhere --
>  are usually discussed (rightly or wrongly) as more abstract matters; but
>  debates about harassment law vs. free speech are most helpfully conducted in
>  a concrete context.
>
>          What's more, this is a pretty interesting fact pattern, and one
>  that's different from the ones we've discussed before.  It involves clearly
>  political speech; and it highlights the difficulties of telling what's
>  "sexist" or "disproportionately offensive to women" or "creates an
>  environment that's offensive to women based on their gender" and what isn't.
>  Again, if list members aren't interested in this, the discussion should
>  properly peter out; but my personal view is that this is indeed a matter
>  that continues to be worth discussing. >>


Prof. Glenn Harlan Reynolds
College of Law, University of Tennessee
1505 W. Cumberland Ave., Knoxville, TN  37996-1810

Attempt no more good than the people can bear.  --Thomas Jefferson