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

Volokh, Eugene VOLOKH at
Tue Feb 13 11:30:46 PST 2007

	Surely Connick v. Myers doesn't support workplace harassment law
as applied to private workplaces.  Connick is expressly based on the
theory that "the State has interests as an employer in regulating the
speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the citizenry
in general."  See also Waters v. Churchill, 511 U.S. 661, 671 (1994)
(plurality) (stressing the government's far greater powers when acting
as employer); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564
(1973) (same); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)

	And if you really take seriously the notion that Connick allows
the government *as sovereign* to proscribe "speech that disrupts
workplace morale or harmony can be proscribed" -- or for that matter any
speech that's on a matter of "private concern" (the very category that
Connick held was unprotected against the government *as employer* --
you'd get some remarkable results.  The government would be free, for
instance, to use the threat of legal liability to force employers to
fire employees who swear on the job; after all, it can fire government
employees who do the same.  It could use the threat of legal liability
to force employers to fire employees who create porn videos; after all,
it can fire government employees who do the same (see City of San Diego
v. Roe).  That can't possibly be right -- and Connick specifically says
that this isn't right.

	Of course, the case we were speaking about involved a public
entity -- but a public university acting as educator, not the government
acting as employer.  Nothing at all in the Court's public employee
jurisprudence suggests that the same rules apply to the government
controlling the speech of *college students*.  No lower court cases
suggest this.  None suggest that Kuhlmeier, a case that expressly relied
on the speech being in a K-12 school organ (the newspaper), applies to
speech by university student groups in their own programs.

	Am I missing something here?  It seems to me that these
precedents are far removed, both factually and doctrinally, from either
hostile workplace harassment law generally (as applied to private
institutions) or from restrictions on student speech even at public


> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at] 
> Sent: Tuesday, February 13, 2007 8:37 AM
> To: Volokh, Eugene; CONLAWPROF at
> Subject: RE: Public university investigating students 
> forsteppingonHamasandHezbollah flags that contained the name of Allah
> 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 on behalf of Volokh, Eugene
> Sent: Thu 2/8/2007 1:41 PM
> 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 
> > [mailto:conlawprof-bounces at] On Behalf Of 
> Volokh, Eugene
> > Sent: Thursday, February 08, 2007 10:34 AM
> > 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
> >
> > >

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