Talk about sex and the unwilling listener
rosentha at chapman.edu
Tue May 6 15:45:17 PDT 2008
Well, I certainly did not mean to suggest that any generally applicable law ought to get a pass from the First Amendment. That approach would be quite unsound, and inconsistent with any number of cases, including NYT v. Sullivan, Hustler v. Falwell, and Cohen v. California. All I intended to say is that the opposite view -- the view that anytime a violation of law is evidenced through words, the First Amendment requires some form of strict scrutiny -- is no more persuasive. During my years as a prosecutor, I asked some version of the question, "What did the defendant say next?" a whole lot of times, and I never once drew a First Amendment objection.
Rather than trying to come up with some sort of exception for every type of crime that can properly be committed, in whole or in part, with words or other forms communication (itself a tricky business), I think the Court has no alternative but to make a substantive judgment about whether the objective of a challenged law is a permissible one in light of the First Amendment. I am willing to say that equalizing educational or employment opportunities is consistent with the First Amendment, but avoiding giving any sort of offense to other employees or students is not. The case law is, I believe, consistent with this distinction, and requiring a relatively high threshold for actionable harassment is a workable way of ensuring that the former objective does merge with the latter.
Chapman University School of Law
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 5/6/2008 2:18 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Talk about sex and the unwilling listener
Treason strikes me as an excellent example here. Treason
consists of (at least) conduct that aids the enemy in time of war, and
that is engaged in with the purpose of aiding the enemy. Yet would we
say that a campaign of speeches that aids the enemy (for instance, by
weakening domestic morale, or strenghtening enemy morale) by Americans
who think the enemy is in the right just avoids First Amendment
I should hope not. Perhaps there's some treason exception to
the First Amendment that justifies some such punishment (for instance,
when, as in the Axis Sally context, the people are affirmatively working
together with the enemy). Perhaps there's some conspiracy exception for
such narrow categories. Surely some speech, such as revelation of
secrets in breach of a voluntary assumed confidentiality obligation, is
punishable under some waiver-of-free-speech-rights rationale. And
perhaps there's even a categorical exception for all speech that
constitutes treason this way, but I doubt it. Yet whatever rationale
one uses, it can't be enough to say that treason law is generally
applicable, and that therefore "The fact that [treason law] is sometimes
violated by speech, accordingly, raises no First Amendment problem."
As to conspiracy and solicitation law, the answer must also be
found in recognizing some First Amendment exceptions for such laws -- or
else Schenck, Debs, and the other World War I cases would remain good
law, since they too involved a generally applicable law applied under an
intentional encouragement theory of aiding and abetting or attempt. The
Espionage Act was most definitely permissibly aimed at a nonspeech evil;
unless one accepts Schenck and Debs, that can't say much. (Same for
Cohen and Falwell, where the objectives were the avoiding breaches of
the peace and preventing emotional distress, whether by speech or by
As to campus speech codes, apparently Prof. Rosenthal thinks
that they are not only constitutionally permissible but apparently
mandatory under existing statutes. There's a rich literature -- and a
good deal of caselaw -- as to why that is an unsound approach, and I
don't want to rehearse it here. But I just want to stress again that
Prof. Rosenthal's framework would simply skip all the First Amendment
analysis in that literature, and just concludes that this too "raises no
First Amendment problem" simply because of the law's general
applicability. That strikes me as a deeply unsound way of dealing with
these sorts of laws that do indeed substantially restrict people's
speech, whether they are hostile environment harassment laws, laws
banning interference with recruitment, treason laws, antitrust laws,
breach of the peace laws, intentional infliction of emotional distress
law, interference with business advantage law, or whatever else. Again,
I tried to deal with that at length at
http://www.law.ucla.edu/volokh/conduct.pdf -- the list of
speech-protective decisions that would have to be reversed under Prof.
Rosenthal's approach is startling.
Larry Rosenthal writes:
> I have long been persuaded that the distinction between
> speech and conduct is frequently too facile. Still, I am
> willing to say that it "can't possibly be right" that a law
> should be subject to strict scrutiny merely because it is
> violated by speech. Conspiracy, treason, and solicitation
> are but a few of the many laws that are frequently violated
> by words, yet the Giboney line of cases make clear that the
> mere fact that a law not aimed at speech is not invalid when
> applied to a violation occasioned by speech. Indeed, that
> proposition, I think, was settled long before Giboney,
> probably by Goldman. I'm afraid that I see no alternative
> leaving it to the Court to make a judgment about whether a
> particular law is aimed at a permissible nonspeech evil,
> rather than subjecting all laws that are violated by speech
> to some form of strict scrutiny. When it comes to the
> antidiscrimination laws in particular, it has been long
> settled that the governmental objective of equalizing
> employment opportunities is a legitimate nonspeech objective
> (absent an infringement of protected associational rights of
> the type identified in Dale). Hence, the unanimous opinion
> in Rumsfeld.
> I do indeed argue in my forthcoming article that the
> objective of equalizing educational opportunities is a
> legitimate nonspeech objective, and for that reason I think
> Title VI and IX do not run afoul of the First Amendment as
> long as they are properly limited to harassment that is
> sufficiently severe or pervasive to alter the terms and
> conditions of the educational environment. Certainly we know
> from Rumsfeld that the government can force universities to
> equalize the terms on which recruiting services are made
> available, even if it regulates universities' speech by
> forcing them to announce to students the availability of
> military recruiters on a nondiscriminatory basis.
> The constitutionality of Title VI or IX, at least when it
> comes to discriminatory terms and conditions, seems to me to
> follow a fortiori.
> As for Cohen and Hustler, it seems to me that those cases
> properly recognize that there was no nonspeech objective at
> stake in those cases.
> If Title VI or IX were construed to reach any "annoying"
> speech, then I would agree that these laws, too, violated the
> First Amendment, but I think that there is little risk the
> current Supreme Court would stand for such a stringent
> interpretation of those statutes.
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Tuesday, May 06, 2008 11:54 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Talk about sex and the unwilling listener
> That can't possibly be right, it seems to me. Lots of
> laws can be violated by speech only if the speech is seen as
> causing, or threatening to cause, a certain kind of harm --
> consider the Espionage Act (Schenck, Debs, etc.), breach of
> the peace law (Cantwell, Cohen, etc.), antitrust law (Noerr,
> Pennington, etc.), infliction of emotional distress law
> (Hustler), interference with prospective advantage law
> (Claiborne), and more. Yet when the law is violated
> precisely because of content of speech (that falls outside an
> existing First Amendment exception), it certainly does raise
> a First Amendment problem. For much more both on this, and
> for the unsoundness of relying on Giboney, please see my
> Cornell piece on the subject,
> http://www.law.ucla.edu/volokh/conduct.pdf .
> But beyond this, note that the argument below would
> equally validate applying hostile educational environment
> harassment law to
> *mandate* campus speech codes at all universities, public and
> private, applying hostile public accommodations environment
> harassment law to restrict speech by patrons and businesses
> that offends sufficiently based on race, religion, sex, and
> so on. Larry, would you also take this view? Would you say
> that Title VI, Title IX, and state educational discrimination
> laws likewise justify forcing universities to restrict
> student speech that is supposedly "severe or pervasive"
> enough to create a "hostile educational environment" based on
> race, religion, sex, and so on, and that "[t]he fact that
> [those laws are] sometimes violated by speech ... raises no
> First Amendment problem"?
> What about the laws I mention in the first paragraph?
> Recall that the Cohen v. California dissent relied on Giboney
> to explain why Cohen's "Fuck the Draft" jacket -- which was
> found to violate a generally applicable breach-of-the-peace
> law -- should be unprotected as "mainly conduct, and little speech."
> Lawrence Rosenthal writes:
> > At the risk of renewing a debate of which many list members have no
> > doubt tired, let me point out the Supreme Court has repeatedly
> > cautioned that Title VII is not a civility code, and can be
> > through verbal harassment only if it is sufficiently severe or
> > pervasive to amount to an alteration in the terms or conditions of
> > employment. Given that Title VII is directed at the terms and
> > conditions of employment, moreover, it is thought to have only an
> > incidental effect on speech.
> > The fact that Title VII is sometimes violated by speech,
> > raises no First Amendment problem. As the Court has put it: "[I]t
> > has never been deemed an abridgment of freedom or press to make a
> > course of conduct illegal merely because the conduct was in part
> > initiated, evidenced, or carried out by means of language, either
> > spoken, written, or printed. Congress, for example, can prohibit
> > employers from discriminating in hiring on the basis of race. The
> > fact that this will require an employer to take down a sign reading
> > 'White Applicants Only'
> > hardly means that the law should be analyzed as one regulating the
> > employer's speech rather than conduct."
> > Rumsfeld v. Forum for Academic & Instit. Rights, Inc., 547
> U.S. 47, 62
> > (2006) (citations omitted) (quoting Giboney v.
> > Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).
> > In an article forthcoming in the Fordham Law Review, I endeavor to
> > place this discussion within a line of cases managerial
> > For anyone who is interested:
> > http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1087693
> > 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: Friday, May 02, 2008 4:31 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: RE: Talk about sex and the unwilling listener
> > A few thoughts:
> > 1) The Fourteenth Amendment bans discrimination by the state.
> > It doesn't follow, it seems to me, that this justifies suppressing
> > First Amendment-protected speech by *private* speakers that
> > disparately (even
> > severely) offends people of certain races, religions, or sexes.
> > 2) The trouble with the "employees as captive audience"
> > rationale is that nearly every place is someone's workplace.
> > People crossing a picket line are a captive audience.
> > Employees at universities (TA's, professors, staff,
> groundskeepers who
> > have to mow the grass around statues of
> > nudes) are a captive audience. Employees who have to work on the
> > street are a captive audience to speakers, billboards, and other
> > street speech. (In this case, the employee's captivity was
> > intense, but workplace harassment law doesn't require daily
> > to offensive speech -- a dozen instances of offensive
> speech over the
> > span of a year or two may well qualify, see, e.g., Schwapp
> v. Town of
> > Avon.) Employees who have to work in workplaces that themselves
> > produce speech (such as TV writers' offices, magazine offices,
> > bookstores, and the like) are a captive audience.
> > This rationale would, it seems to me, dramatically increase
> the zone
> > of permissible government speech restrictions.
> > 3) This is especially so because it would uphold a restriction
> > that's content- and viewpoint-based. The Court has quite rightly
> > limited the use of captive audience doctrine in most contexts to
> > content-neutral restrictions.
> > Compare, e.g., Frisby v. Schultz with Carey v. Brown. (FCC v.
> > Pacifica Foundation is the one exemption that comes to my mind, but
> > that reflects the special and odd constitutional status of
> > broadcasting, and even Pacifica makes clear that restrictions that
> > suppress offensive *views* as opposed to offensive language
> would be
> > unconstitutional.) That seems to me to be a sensible limitation to
> > keep, given the potential scope of the captive audience doctrine.
> > 4) Finally, I wonder how far supporters of harassment
> law would go
> > on this. Let's say a conservative Christian employee
> complains about
> > statements that he finds religiously offensive -- people
> using God's
> > name in vain, people saying that religion is bunk, radio
> programs that
> > mock religion. I take it that under this rationale it would be
> > constitutionally permissible to suppress that speech, too,
> right? How
> > about in a university (a place that would be equally
> implicated by the
> > Fourteenth Amendment argument)?
> > Eugene
> > > -----Original Message-----
> > > From: Bernard Bell [mailto:bbell at kinoy.rutgers.edu]
> > > Sent: Friday, May 02, 2008 3:58 PM
> > > To: Volokh, Eugene; conlawprof at lists.ucla.edu
> > > Subject: Re: Talk about sex and the unwilling listener
> > >
> > >
> > >
> > > Here's a quick, off-the-cuff reply to your query, which is
> > certainly
> > > far from a rigorous argument.
> > >
> > > First, if a compelling interest is needed, it seems to
> be that the
> > > interest in enforcing the Fourteenth Amendment would constitute a
> > > compelling interest. Ensuring that those people of both
> > genders and
> > > all races and ethnicities can gain and retain equal employment
> > > opportunities and equal opportunities for advancement is
> > compelling.
> > > Working in an environment in which one is constantly offended by
> > > derogatory statements with regard to gender, race, or ethnicity
> > > deprives one of the equal opportunity to succeed in the workplace.
> > >
> > > Second, this may be a "captive audience" problem. Speakers, and
> > > people who are merely selecting speech to be heard in a
> > workplace, do
> > > not necessarily have a right to speak to those who do not want to
> > > listen.
> > > Here, the plaintiff cannot "avert her eyes" or listen to
> > > else.
> > > Her choice is to listen to offensive derogatory language
> > she does not
> > > want to hear or give up her job. Since her job depends on
> > her putting
> > > up with offensive speech, she is essentially a captive audience.
> > >
> > > So those are certainly two theories worth exploring with
> > regard to any
> > > First Amendment claim on the part of an employer, or a group of
> > > employees, that they have a right to play speech that is
> > offensive and
> > > derogatory to employees of another gender, race, or ethnicity.
> > >
> > > Regards,
> > >
> > > Bernie Bell
> > >
> > > Bernard W. Bell
> > > Associate Dean for Academic Affairs & Faculty Professor & Herbert
> > > Hannoch Scholar Rutgers Law School-Newark
> > > 123 Washington Street
> > > Newark, NJ 07102
> > > (973) 353-5464 (voice)
> > > (973) 353-1445 (fax)
> > > bbell at kinoy.rutgers.edu
> > >
> > >
> > > >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 5/2/2008 4:26 PM >>>
> > > Any thoughts on Reeves v. C.H. Robinson Worldwide, Inc,
> > decided Monday
> > > by the Eleventh Circuit,
> > > http://www.ca11.uscourts.gov/opinions/ops/200710270.pdf?
> > The Circuit
> > > held that Ingrid Reeves could proceed to trial with her hostile
> > > environment harassment claim, even though the case involved
> > no sexual
> > > extortion, unwanted touching, proposition, or insults
> > directed at her.
> > >
> > > Rather, her complaints, as described by the Eleventh Circuit were
> > > chiefly related to "sexually crude language that offended her." A
> > > fairly small part of the incidents involved sex-based insults
> > > ("bitch,"
> > > "whore," and once "cunt") used to refer to women customers
> > and another
> > > employee behind their backs. There was also casual use of
> the word
> > > "dick," and some sexually themed jokes (and one song) with pretty
> > > vulgar language, overheard discussions about pornography,
> > > masturbation, and sex; one incident in which Reeves saw
> > pornography on
> > > a coworker's computer; and the following:
> > >
> > > "Reeves was also offended by a radio program that was
> played every
> > > morning on the stereo in the office [a morning program on
> > Birmingham's
> > > 107.7 FM during 2002-03, according to one brief].
> > Discussions of the
> > > following material on the show offended her: (1) breast
> > size of female
> > > celebrities and Playboy Playmates; (2) sexual arousal and women's
> > > nipples as indications thereof;
> > > (3) masturbation, both in general and with animals; (4)
> > erotic dreams;
> > > (5) ejaculation; and (6) female pornography.
> > > Advertisements for or including the following material that
> > were aired
> > > during the program also offended her: (1) sexual favors;
> > > (2)
> > > a bikini contest that instructed women to wear their most
> > > bikinis; (3) a statement that a woman was found in bed with three
> > > elves and a candy cane; and (4) a drug called Proton that
> > promised to
> > > increase sexual performance, please a partner, and make
> the user a
> > > "sexual tyrannosaurus rex." When Reeves complained about
> the radio
> > > programming, she was often told that she could play her own
> > music or
> > > change the station.
> > > She testified, however, that if she did so the other
> > employees would
> > > soon change the radio back to the offensive program."
> > >
> > > The Eleventh Circuit -- echoing many other circuits, though
> > diverging
> > > from a recent California Supreme Court decision interpreting
> > > California harassment law, Lyle v. Warner Bros.
> > > -- expressly rejected the argument that, to constitute
> > discriminatory
> > > harassment "based on" sex, speech had to actually
> > specifically target
> > > the plaintiff as a woman (or, in other contexts, as a
> > black, Catholic,
> > > or whatever else). The sexually themed material, the court
> > concluded,
> > > "was discussed in a manner that was ...
> > > more degrading to women than men," which I take it reflects
> > the view
> > > in plaintiff's brief that "In these discussions, women were
> > > objectified and demeaned." And because it implicitly
> expressed such
> > > degrading views, it could be punishable as harassing based on sex.
> > >
> > > The defense didn't raise a First Amendment objection to imposing
> > > liability based on such speech, but I'd like to ask what
> > people think
> > > of the First Amendment implications of this. Is general
> talk about
> > > sex constitutionally restrictable this way? If so, is it
> > because it's
> > > somehow "low-value" (under what doctrine)? Or is it
> > because there's
> > > some compelling interest in suppressing not just talk about
> > sex, but
> > > any workplace speech that expresses views that are "more
> > degrading to
> > > women than men" (or "more degrading to Muslims than
> non-Muslims" or
> > > "more degrading to blacks than to whites")?
> > >
> > > Eugene
> > > _______________________________________________
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