1st Am and intent to create a offensive environment/Red herri ngs

[Chambers Jr, Henry L.]

I answer Eugene's numbered paragraphs in turn.

1)  An employer, school, etc. has the obligation to not let the environment
become hostile or to rectify the environment once it becomes hostile.
Dealing with the effects of the speech can take many forms other than
punishing the speech. Those who believe in the marketplace of ideas would
certainly suggest that punishing speech is not the only way (and arguably
not the best way) to neutralize it.

2) Calling something speech does not mean that it or its effects cannot be
regulated.  Lying under oath may still be punished as perjury.  Threatening
someone may still be punished as assault.  That an antitrust violation can
be committed through speech does not mean a First Amendment defense exists
against antitrust violations committed through speech.

3)  Hostile environment law does not force the employer, etc., to treat
speech in any particular way, let alone ban it.  While banning speech is one
of a number of options, it is not the only option.  An employer who bans
speech may choose to do so, but the law does not require it and arguably
does not encourage it.

-Hank

Henry L. Chambers, Jr.
Associate Professor of Law
University of Missouri-Columbia
chambersh at missouri.edu
(573) 882-7562



-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Thursday, March 22, 2001 1:50 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: 1st Am and intent to create a offensive environment/Red herri
ngs



        A few thoughts about Hank's posts:

        (1)  It might be worth noting that the argument below applies
equally to hostile work environment law, hostile educational environment
law, and hostile public accommodations environment law.  If Hank's approach
is right, then this suggests that universities (public or private) not only
have the right to create speech codes -- and speech codes as broad as those
that employers are enacting to prevent hostile environment liability -- but
the *legal obligation* to do so; universities must punish racist,
religiously bigoted, sexist, anti-veteran, etc. speech by their students.
Likewise for places of public accommodation, which must punish such speech
by their patrons.  That seems an important implication to consider in
evaluating the analysis.

        (2)  While the speech that hostile environment law punishes is
characterized by the law as "discriminatory provision of terms, conditions,
or privileges of employment" (the term and condition being the work
environment, which the speech makes offensive), I'm not sure how far that
gets us.  Calling speech "intentional infliction of emotional distress"
(Hustler v. Falwell), "interference with business advantage" (NAACP v.
Claiborne Hardware), "breach of the peace" (Cohen v. California), "aiding
and abetting draft evasion" (Schenck, Debs, etc.) shouldn't strip it of 1st
Am protection; likewise when one calls speech "discriminatory provision of
terms, conditions, or privileges of employment."  See N.Y.T. v. Sullivan
("In deciding the question now, we are compelled by neither precedent nor
policy to give any more weight to the epithet 'libel' than we have to other
'mere labels' of state law.  Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the various other formulae for the repression of expression
that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations.  It must be measured by standards
that satisfy the First Amendment.").

        (3)  The fact that the government is not directly prohibiting
speech, but making an employer liable for its employees' speech unless it
(the employer) prohibits the speech, can't affect the analysis, either.  The
government is imposing liability based on the content and the viewpoint of
speech -- true, it's drafting a private party to enforce this, but this is
still government-created speech suppression.

        I discuss this in much more detail at
http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#STATEACTION
<http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#STATEACTION> ,
but surely we can all think of hypos that demonstrate this very point.  If
the government says "all universities that tolerate anti-veteran speech by
their students shall be liable in damages to veterans and dead veterans'
relatives for the offensive environment created by such speech," I take it
that we'd acknowledge that the government is restricting speech.  Likewise,
if the government says "all private employers who employ over 20%
noncitizens shall be legally liable," I take it that we'd acknowledge that
the government is responsible for the anti-alien discrimination, even though
private employers acting on their own could freely implement such a policy,
and even though the actual dismissal or failure to hire that's pressured by
this policy will be undertaken by the private employer.  (This is drawn from
an actual case, Truax v. Raich, 239 U.S. 33, 35 (1915).)

        There are lots of other examples one can give to demonstrate this
point:  The government may not avoid 1st Am constraints by pressuring
private parties to do that which the government may not (even if the private
parties could have done it had they been acting on their own).

        Eugene