Organizing to Oppose Military Recruiters on Campus

[Volokh, Eugene]

	I agree that employees should generally spend their working day
working, though in many workplaces employers do tolerate a considerable
amount of non-job-related humor.  Perhaps employers should restrict such
humor when it gets to be offensive, or even restrict political
commentary when it gets to be offensive.  Perhaps not, or at least not
always.

	But I do tend to think that there isn't much con law here.  That
private employers may -- and even, as a matter of sound business or
professional standards, ought to -- restrict certain speech by employees
doesn't mean that the government is entitled to threaten them with
liability for not restricting such speech.  One can certainly argue, for
instance, that "op-ed writers should spend their columns making
substantive arguments, not insulting people, using profanity, or
engaging in partisan rants"; and one can even berate a newspaper that
publishes op-eds which contain insults, profanity, or rants.  But it
doesn't follow that the government may impose liability on the newspaper
for tolerating such speech, no matter how unprofessional the speech may
be.  Likewise, it seems to me, with hostile environment harassment law.

Scott Gerber writes:

> I have a lingering reaction to both the posts about the SA 
> and whether 
> employees have some sort of constitutional right to tell jokes about 
> people that offend people.  With regard to the SA, I'm opposed to 
> discrimination, but I've never been comfortable with law schools, 
> colleges, the AALS, etc. endeavoring to promote political agendas (of 
> the Left or Right).  With respect to telling offensive jokes, 
> it seems 
> to me that employees should spend their working day working, rather 
> than goofing off by telling jokes that offend people.
> 
> Granted, there isn't much con law in my reaction, but 
> sometimes common 
> sense is in order (or so my grandfather always said).