Hostile environments and the religious employee -Reply

[Eugene Volokh]

Rick Garnett writes:

> Responding to Eugene's hypo, though, what if some militant pro-choice
> folks decided they were sick of working with a particular person, who
> they knew was an orthodox Catholic (and so, they assume, pro-life), and
> so decided that the quick-and-dirty way to constructively discharge her
> was to put all kinds of pro-choice stuff in places the pro-life employee
> could not escape.  THEN, I assume, we have intentional job
> discrimination on the basis of (let's assume) religion, right?

    I agree that this hypo -- people posting messages not to
communicate their ideas but just to get someone to quit -- presents
the speakers in a worse light; but I don't think it makes sense for
1st Am law to investigate speakers' motive this way.

    The fact is that most speakers are motivated by various things.
Larry Flynt, for instance, was almost certainly motivated both by a
desire to annoy Jerry Falwell *and* by a desire to communicate to his
readers his views about Falwell.  Should the presence of the first
motivation nullify any protection that he gets?  I'd say no.  What
if he was *only* motivated by the desire to annoy Falwell?  It seems
to me that, even if such bad motive should in theory strip the
speaker of protection (and I'm not sure it should), we don't want
jurors to try to figure out the motive:  There's too high a chance
that they'll get it wrong, and punish someone even though he was in
fact motivated at least in part by a desire to communicate to the
public.

    I think this may be one reason why 1st Am doctrine almost never
focuses on speaker motives (the possible exceptions being
government employee speech doctrine, which is a notorious mess,
perhaps in part because of this, and incitement doctrine, which is
at least narrowly cabined).  It might focus on speakers' mens rea --
what did they know and when did they know it -- but that's easier to
do than to distinguish motivations that very often run together in
speakers' minds.

    Curiously, there is historical precedent for this motive inquiry:
Many old libel laws made truth a defense but *only* if it was "with
good motives and for justifiable ends."  Again, there's an intuitive
appeal to this -- why protect someone who might be telling the truth
but is doing so for bad reasons?  But the obvious problem is that,
even if bad motivation should theoretically be enough to eliminate
1st Am protection, in practice this standard would impose too much of
a chilling effect even on the well-motivated.

    Returning then to Rick's hypo:  My sense is that in most such
cases, many of the speakers won't be putting up the posters just to
get the Catholic employee to quit, but also to convey their own
views.  Because of this, I think that the government may not punish
people for putting up posters in a private workplace, whether or not
people are offended by these posters because of their religion, and
whatever we might think the speaker's motives might be.

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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095