Public university investigating students forsteppingonHamasandHezbollah flags that contained the name of Allah

[Rosenthal, Lawrence]

I agree that the R.A.V. dicta is far from satisfactory.  I don't even know what "sexually derogatory fighting words" are.  My best guess is that Justice Scalia did not mean to suggest that a woman does not have to be on the verge of slugging a man before she can get legal protection from verbal sexual harassment under the First Amendment, but who knows?  As a onetime Stevens clerk, however, I have been trained to be suspicious of categorical rules of First Amendment jurisprudence.  The so-called rule that speech cannot be regulated because of its communicative impact is one of those rules that is honored in the breach.  There are, of course, many counterexamples (defamation, obscenity), and a particularly pertinent one is workplace speech.  Since Connick v. Meyers, it has been settled that speech that disrupts workplace morale or harmony can be proscribed.  Meyers endorses content and even viewpoint discrimination -- insubordinate speech is by its nature opposed to the views of the incumbent management -- yet the employer's prerogative to enforce rules that enhance its ability to achieve its managerial objectives is thought to be consistent with the First Amendment.  It is unclear to me why there is much of a leap from the holding of Meyers to a holding that speech that creates a hostile working environment is proscribable.  The managerial prerogative recognized in Meyers surely reaches an employer's rule requiring employees to refrain from insulting each other.  In Waters v. Churchill, Justice O'Connor said that a public employer can surely enforce a rule forbidding employees to be "rude to customers" -- isn't a rule that they may not be rude to each other each valid (coupled with some scienter requirement to avoid vagueness problems)?  And if that is right, why can't a public university define as part of its mission creating a community in which norms of civility are enforced?  Indeed, another context in which the Court has held that speech can be regulated because of its communicative aspects is the public schools.  In Hazelwood School District v.Kuhlmeier, the Court upheld a principal's refusal to permit material in a school newspaper that he deemed an invasion of privacy or inappropriate for younger children.
 
Of course, there are grounds to limit Meyers and Kuhlmeier if one is determined to do so.  One can say that Meyers is limited to contexts in which public employers are acting in a type of "proprietary" capacity, and that Kuhlmeier is really a subsidized speech case because the school funded and sponsored the newspaper.  But while it is clear to me that the First Amendment sharply circumscribes  government's ability to enforce limits on general societal speech (e.g., Hustler, Claiborne Hardware), when government creates its own institutional settings for its own purposes, it is unclear why government cannot insist on rules of civility reasonably thought to advance the mission of the relevant institution.  To use the facts of the Dambrot case, I do not see why the government must tolerate a basketball coach who insists on calling his African-American players "niggers" for obscure motivational reasons, merely because of a rule about viewpoint neutrality that was devised with very different contexts in mind.
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 2/8/2007 1:41 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Public university investigating students forsteppingonHamasandHezbollah flags that contained the name of Allah



        To begin with, I think this exchange helps illustrate the
slippery slope concerns that various scholars (including David Bernstein
and me) have been raising about hostile work environment law.  Hostile
work environment law is often defended on the grounds that it's just
narrowly applicable to workplaces, which are places for work and not for
speech; nothing much is lost, the theory goes, if the speech there is
censored by the threat of government liability (especially since it's
also censored already by the private employers).  I don't think that's
right, partly because every place is someone's workplace.  But more to
the point, I've argued that accepting hostile work environment law will
grease the path for restrictions elsewhere, such as universities,
restaurants, and the like.  That's exactly what we're seeing in some of
the arguments on this thread, it seems to me.

        As to R.A.V., I don't think it's quite right to say that the
R.A.V. majority accepted the constitutionality of the entirety of Title
VII's prohibition on sexual harassment.  The R.A.V. dictum read:

        "Even the prohibition against content discrimination that we
assert the First Amendment requires is not absolute.  It applies
differently in the context of proscribable speech than in the area of
fully protected speech. . . .  [S]ince words can in some circumstances
violate laws directed not against speech but against conduct (a law
against treason, for example, is violated by telling the enemy the
nation's defense secrets), a particular content-based subcategory of a
proscribable class of speech can be swept up incidentally within the
reach of a statute directed at conduct rather than speech [citing Barnes
v. Glen Theatre, Inc., FTC v. Superior Court Trial Lawyers Ass'n, and
United States v. O'Brien].  Thus, for example, sexually derogatory
'fighting words,' among other words, may produce a violation of Title
VII's general prohibition against sexual discrimination in employment
practices.  Where the government does not target conduct on the basis of
its expressive content, acts are not shielded from regulation merely
because they express a discriminatory idea or philosophy."

        R.A.V. was a case about the proper protection offered speech
that was *within an existing First Amendment exception*; the Court was
trying to explain why fighting words could be punished by harassment law
but not by the special ordinance in R.A.V.  That's why it said that
"sexually derogatory 'fighting words,' among other words" were
punishable.

        The question is whether the Court was suggesting that *all*
other words that might fit within the "hostile/offensive environment"
rubric could be punished.  I don't think it was so suggesting.  As
then-Judge Alito pointed out in his majority opinion in Saxe (striking
down a hostile educational environment policy, at the high school level
yet), "The previously quoted passage from R.A.V., however, does not
necessarily mean that anti-discrimination laws are categorically immune
from First Amendment challenge when they are applied to prohibit speech
solely on the basis of its expressive content.  See DeAngelis, 51 F.3d
at 596 n.7.  'Harassing' or discriminatory speech, although evil and
offensive, may be
used to communicate ideas or emotions that nevertheless implicate First
Amendment protections. As the Supreme Court has emphatically declared,
'[i]f there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expr ession of an idea
simply because society finds the idea offensive or disagreeable.' Texas
v. Johnson , 491 U.S. 397, 414 (1989)." 

        R.A.V. held that proscribable categories such as fighting words
would, to a large extent, be treated as conduct rather than speech:
"[T]he exclusion of 'fighting words' [and other proscribable categories]
from the scope of the First Amendment simply means that, for purposes of
that Amendment, the unprotected features of the words are, despite their
verbal character, essentially a 'nonspeech' element of the
communication." The government may punish fighting words because of
their tendency to cause a fight, though not because of the "hostility --
or favoritism -- towards the underlying message expressed.

        The R.A.V. dictum thus reaffirms a basic principle:  When a law
is violated by the nonexpressive impact of speech, or by the
proscribable impact of proscribable speech, then applying it to the
speech will not require the strictest First Amendment scrutiny.  But as
Hustler v. Falwell, NAACP v. Claiborne Hardware, and the antidraft
speech example show, protected speech may not be punished because of its
communicative impact, even if the punishment is accomplished through a
general law.

        And harassing speech in the workplace -- or the university --
even when seen as a violation of the general ban on creation of work
environments hostile to particular groups, violates this ban precisely
because of its communicative impact.  Just as it was the communicative
impact of the offensive parody in Hustler that inflicted emotional
distress on Jerry Falwell, and the communicative impact of the boycott
advocacy that hurt Claiborne Hardware's business, so it is the
communicative impact of verbal workplace harassment that creates a
hostile work environment for its victims.  The fact that Title VII does
not specifically mention speech cannot immunize it from First Amendment
scrutiny when it operates to restrict speech because of the offensive or
disfavored message the speech conveys.

        Edith Jones, writing (also in dictum) in DeAngelis v. El Paso
Mun. Police Officers' Ass'n, had it right:  "The Supreme Court's offhand
pronouncements [about harassment law] are unilluminating. . . .  The
Court's pronouncement in R.A.V., that 'sexually derogatory 'fighting
words,' among other words, may produce a violation of Title VII's
general prohibition against sexual discrimination in employment
practices' does not mean that Title VII trumps First Amendment speech
rights.  Rather, as the next sentence in R.A.V. explains, conduct not
targeted on the basis of its expressive content may be regulated.
Citing R.A.V., the Court in Wisconsin v. Mitchell, 113 S. Ct. 2194, 2200
(1993), reiterated that conduct not targeted on the basis of its
expressive content may be regulated by Title VII.  However, application
of Title VII to the 'conduct' in the case sub judice [which involved
sexist newsletter articles] would do precisely that -- regulate speech
on the basis of its expressive content."

        R.A.V. suggests that the Supreme Court is sympathetic to the
aims of harassment law.  Quite likely it would be willing to stretch
First Amendment doctrine to allow regulation of some harassing workplace
speech, which is what I to some extent propose.  But this sympathy for
harassment law does not mean that the Court would uphold all of
harassment law's speech restrictions under all circumstances, especially
those that are far from the "fighting words" context in which the R.A.V.
dicta arose.

        Eugene


Larry Rosenthal writes:

> I have been wondering about this myself.  In R.A.V., every
> Member of the Court seems to accept the constitutionality of
> Title VII's prohibition on sexual harassment.  What if a
> public university adopted a policy against creating a
> "hostile learning environment" on the basis of race, sex,
> national origin or religion in a manner that tracked Title
> VII, and added a scienter requirement to deal with vagueness
> and overbreadth concerns (perhaps the policy must require
> that an offender knew or should have known that the speech
> would create a hostile learning environment)?  The Supreme
> Court has granted school administrators to regulate
> expressive activities that interfere with the school's
> mission (e.g. Kuhlmeier); it may be that teaching certain
> standards of civility and respect for others are legitimately
> part of a university's mission; and at least in most of its
> applications, a policy against creating a hostile learning
> environment will create no compelled membership problem of
> the type present in Hurley or Dale. Judge Murnaghan's
> concurrence in Iota XI Chapter of Sigma Chi Fraternity v.
> George Mason University, 993 F.2d 386 (4th Cir. 1993), makes
> an argument in support of this type of policy.  Is there
> nevertheless a consensus that no Title VII analog could be
> enforced in the (public) university setting with respect to
> hostile learning environments?
>
> Larry Rosenthal
> Chapman University School of Law
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, February 08, 2007 10:34 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: Public university investigating students for
> steppingonHamasandHezbollah flags that contained the name of Allah
>
>       Well, all the courts that have considered "hostile
> educational environment" speech restrictions in public
> universities have struck them down as overbroad, vague, or
> both; and that seems right.
>
>       Can it really be that student speech can be suppressed
> because it is "severe or pervasive" enough to create a
> "hostile, abusive, or offensive" educational environment for
> the complainant and a reasonable person based on race,
> religion, sex, national origin, sexual orientation, marital
> status, veteran status, etc. (depending on the jurisdiction)?
>  What if an atheist group publishes newspapers, organizes
> demonstrations, and hands out flyers that condemn religion as
> irrational and evil, and religious people as dupes at best
> and oppressors at worst?
> Are universities really empowered to suppress such speech if
> they conclude that it is "severe or pervasive" enough to
> create an "offensive educational environment" based on
> religion?  It seems that such a rule is both
> unconstitutionally vague and facially overbroad.
>
>       See Dambrot v. Central Michigan University, 55 F.3d
> 1177 (6th Cir. 1995) (so holding); UWM Post v. Board of
> Regents, 774 F. Supp. 1163 (E.D. Wis. 1991) (holding that
> such a rule was overbroad, even if limited [as hostile
> environment rules generally are not] to "epithets, insults,
> and personally abusive comments"); Doe v. University of
> Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (likewise
> striking down a "discriminatory harassment" policy, albeit a
> slightly differently worded one); Corry v. Leland Stanford
> Junior University, case no. 740309 (Cal.
> Super. Ct. Feb. 27, 1995) (striking down a "discriminatory harassment"
> speech code that was much narrower than standard "hostile environment"
> rules under a California statute that applies First Amendment
> standards to private universities); Cohen v. San Bernardino
> Valley College, 92 F.3d 968 (9th Cir. 1996) (holding a
> "hostile or offensive environment"
> speech code unconstitutionally vague as applied, even though
> the case involved in-class speech by an instructor, which is
> necessarily more constrained than outside-class speech by students).
>
>       Am I mistaken?  May that atheist speech be punished? 
> Would students who want to express potentially offensive
> ideas about religion, race, sexual orientation, sex, the
> actions of veterans, and the like have to risk that their
> speech is found "severe or pervasive" enough (whatever that
> means) to create a "hostile, abusive, or offensive"
> educational environment for a complainant and a "reasonable person"?
> (This is especially so given that a hostile environment can
> be created by an aggregate of speech from several people, so
> that a hostile environment may flow from the separate
> statements of A, B, C, and D, even when they don't know of
> each others' statements, and A, B, C, and D would presumably
> be punishable for their individual contributions even when
> those contributions weren't themselves "severe or pervasive"
> enough; but even if all the statements come from the same
> group, it seems to me that they must be constitutionally protected.)
>
>       I should note that a professor in the classroom would
> naturally have more authority to dictate which opinions may
> be aired and in which way, even entirely setting aside
> hostile environment law.  But we're speaking here of
> non-classroom speech.
>
>       Eugene
>
> >