"Posting rude sex jokes about women on his Facebook 'wall'"

[Volokh, Eugene]

	I share Mark's thinking on this, and just wanted to probe Bill's analysis a bit further.  Say someone comes to you, and says:

	"I can't stand fundamentalist Christianity, and I often point out its evils and follies online; and naturally I think most fundamentalist Christians are likewise tainted by that evil and foolishness.  I realize that some people think this is itself an evil viewpoint, but it's my view, and I want to express it.  If private employers don't want to do business with me based on their own disapproval, that's fine -- they're not bound by the First Amendment.  But the government can't pressure them into not hiring me based on my anti-Christian views, right?  It can't tell an employer (who might otherwise be inclined to say that my speech is my business) that hiring someone who has expressed anti-Christian views will be legally dangerous for him, right?"

	As I understand Bill's answer, it is, "Well, actually, the government can indeed impose potential liability on employers if they hire someone who is known to have engaged in anti-Christian speech.  That poses no First Amendment problems.  In life many of us self-censor because others may judge us on the basis of what we say.  And self-censorship based on the risk (imposed on our employers) of potential liability from government action is no different."

	Can that really be correct?  Isn't this a stark example of government action deterring the expression of certain disfavored views, and thus something that should pose very serious First Amendment concerns?

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Kemper, Mark
> Sent: Saturday, March 06, 2010 10:44 AM
> To: William Funk; conlawprof at lists.ucla.edu
> Subject: RE: "Posting rude sex jokes about women on his Facebook 'wall'"
> 
> I disagree with the last line of Bill's comment below. It disturbs me since the
> government is the elephant in the room of workplace regulations, and the First
> Amendment is designed to limit the power of the state, not that of private
> actors.  I believe that workplace harassment laws of the hostile environment
> variety do pose real problems to liberty if they radiate out and have significant
> chilling effects on expressive behavior outside of the workplace (whether they
> do have significant chilling effects is an empirical question to which I don't know
> the answer). It may be a necessary evil, but it is still something that should
> trouble us in a free society.
> 
> Mark
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
> On Behalf Of William Funk [funk at lclark.edu]
> Sent: Friday, March 05, 2010 4:27 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: "Posting rude sex jokes about women on his Facebook 'wall'"
> 
> Neither the article nor Eugene's hypo involving jokes about fundamentalist
> Christians bothers me.  I start with not being bothered by an employment law
> that protects a person from a hostile working environment (although I think I
> might be closer to Eugene in what I would actually consider a hostile working
> environment).  The employer in choosing whom to employ looks at past history
> of the person to make predictions about the future.  If a person has shown a
> tendency to harass other employees in the past, we would not be surprised that
> the employer might be reluctant to hire the person.  If the other person has only
> engaged in rude, off-color, and/or offensive jokes not directed at the butt of
> those jokes, the person might be less likely to create the hostile work
> environment than the serial harasser, but the employer (given other equally
> qualified applicants for the job) might well view the tendency to tell these jokes
> without sensitivity to the potential audience as an unnecessary risk.   In life many
> of us self-censor because others may judge us on the basis of what we say.  It
> does not disturb me that here the employer's concern stems from potential
> liability from government action, as opposed to stemming from the employer's
> concerns regarding other employees' or customers' reactions.
> Bill Funk
> 
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Friday, March 05, 2010 10:43 AM
> To: 'conlawprof at lists.ucla.edu'
> Subject: "Posting rude sex jokes about women on his Facebook 'wall'"
> 
> Any thoughts about this advice - given sincerely, I think, with someone who has
> no axe to grind - in a New York Post article about the dangers of posting things
> on the Web?  "As an employer, you're taking a chance when you hire someone.
> No one wants to hire a dud, but the stakes are larger than that. What if
> someone has a history of, say, posting rude sex jokes about women on his
> Facebook 'wall' and turns out to be much the same around the coffee pot at
> work? No sex-harassment lawyer is going to fail to tell the jury that the
> company would have known it was making a hostile-workplace hire if only it had
> Googled Mr. Rufus T. Pervinator before putting him on the payroll."
> 
> Is the advice an exaggerated views of the dangers posed by the law here?
> Should it give us pause that the law, by imposing liability for "sex jokes about
> women" at the office, and by allowing past off-the-job statements to be used as
> evidence in hostile environment cases, is deterring people from speaking freely
> outside the office?  (Note that the statement isn't just that private employers
> will be reluctant to hire employees who express certain viewpoints because of
> worries about productivity or good judgment; rather, the statement is that
> employers will be reluctant to hire employees who express certain viewpoints
> because of worries that a government-run legal process will impose liability
> based on future expressions of such viewpoints, coupled with the evidence of
> the past expressions of such viewpoints.)  Or is this a laudable result, or perhaps
> at worst a necessary evil?
> 
> Relatedly, I take it the same advice would apply to worries about religious
> harassment claims (though I acknowledge that those claims are rarer than
> sexual harassment claims):  "As an employer, you're taking a chance when you
> hire someone. No one wants to hire a dud, but the stakes are larger than that.
> What if someone has a history of, say, posting [nasty remarks about
> fundamentalist Christians] on his Facebook 'wall' and turns out to be much the
> same around the coffee pot at work? No [religious]-harassment lawyer is going
> to fail to tell the jury that the company would have known it was making a
> hostile-workplace hire if only it had Googled Mr. [Fundamentalist-Christians-
> Are-Idiots] before putting him on the payroll."  Should that worry us even if the
> "sex jokes about women" advice doesn't?
> 
> Eugene
> 
> 
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