Interesting harassment / speech case?

[Volokh, Eugene]

            I’m not sure why they would be.  Here the speech itself is part of what makes up the hostile environment – it’s not just evidence of the speaker’s intentions or character.  In this respect, hostile environment harassment law is much more like other torts that can make a course of speech and conduct tortious, such as the intentional infliction of emotional distress, interference with business relations, and so on, than it is like bans on hate crimes in which the speech is used just as evidence of the speaker’s motivation.

            Eugene

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of David Cruz
Sent: Monday, October 26, 2009 4:53 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Interesting harassment / speech case?

Are Dawson v. Delaware and Wisconsin v. Mitchell also relevant here along the lines of the cases discussed by Eugene below?
David B. Cruz
Visiting Scholar, The Williams Institute, UCLA School of Law
Professor of Law, University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On Oct 26, 2009, at 4:25 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>> wrote:
               Indeed – I’m arguing that the First Amendment precludes harassment liability from being based even in part on constitutionally protected speech.  If the plaintiff wants to sue based on the unprotected material, that’s just fine; the factfinder should then be allowed to consider only that material.  But a plaintiff cannot argue for a judgment based both on the unprotected matter and the constitutionally protected speech.
               This is exactly the issue that the Court faced in NAACP v. Claiborne Hardware, where plaintiffs sued for interference with business relations as a result of what the Court held was protected speech coupled with unprotected violence.  Because “the nonviolent elements [of the boycott] . . . are entitled to the protection of the First Amendment,” they did not lose this protection just because of the presence of unprotected behavior.  While the plaintiffs were entitled to sue based only on the unprotected behavior, they couldn’t sue based on a combination of the unprotected behavior and the protected speech.  The Court held the same in Street v. New York.  Even if flagburning was constitutionally unprotected conduct, the conviction couldn’t stand, because “[the] record [was] insufficient to eliminate the possibility . . . that appellant was convicted for both his words and his deed.”  Punishing someone based on a combination of constitutionally protected words and deeds would violate the First Amendment regardless of whether the deeds themselves would be protected.  Eaton v. City of Tulsa and Bachellar v. Maryland take the same approach.
Likewise, in Mt. Healthy City School District Board of Education v. Doyle, the Court made clear that the First Amendment is violated whenever protected speech makes a difference in deciding a speaker’s fate.  If protected speech is a “motivating factor,” the Court held, in a government decision — even when other factors are also present — the decision is unconstitutional unless the government shows that it would have reached the same decision without considering the speech.
And this makes sense.  Theoretically, assume that someone is sued for a combination of constitutionally protected speech and unprotected conduct.  The plaintiff’s argument is that the speech and the conduct supposedly create a “hostile environment” or “interfere with prospective business advantage” or “intentionally inflict emotional distress” or some such. Either the lawsuit would succeed based on the conduct alone, or it wouldn’t.  If it would succeed, then there’s no reason why the words need to be considered:  Might as well sue just based on the conduct.  But if it wouldn’t succeed without the words, then it’s the constitutionally protected speech that makes the difference between the defendant’s actions being lawful and unlawful.  If the defendant had engaged only in the unprotected conduct, he would have been acting lawfully, since by hypothesis the conduct alone wasn’t sufficient to support the plaintiff’s claim.  But saying the constitutionally protected statements on top of the conduct is what makes the behavior illegal.  The law is punishing the constitutionally protected speech, since it wouldn’t have punished the conduct standing alone.  That’s a First Amendment violation.
               Practically, imagine how a cautious employer would react to a decision imposing liability in a harassment case like the one with which I began this discussion.  The employer can’t just say to its employees “It’s fine for you to make offensive political statements about Iraq, Syria, Libya, and Muslim religious leaders, unless some other people are also mistreating the offended worker in other ways (about which you, the employee, might not even know).”   So long as courts say that constitutionally protected speech can contribute to a hostile environment, the cautious employer would be wise to restrict it:  After all, it’s this constitutionally protected speech that might make the difference between a legally permissible, nonhostile environment, and an illegal hostile environment.  So — just as the Court has recognized — imposing liability based on a combination of constitutionally protected speech and unprotected conduct would unconstitutionally chill the speech.
               Eugene
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