Hostile environments and the religious employee

[Marie A. Failinger]

Okay, how about this--what if the employer says to the speaker, hey, this
is driving everyone crazy, and the speaker says, "tough!"  Is it equally
problematical to:
     a)fire the employee for harassing the workers;
     b)fire the employee for manifesting disloyalty and insubordination to
the employer, given that this exchange is likely to spill over into other
aspects of their behavior;
     c)take the "speech" down every time the speaker puts it up;
     d)insist that the speaker go to counseling as a condition of further
employment to deal with his aggressive behavior toward his co-workers;
     e)tell the speaker that he will get some less significant
penalty--less vacation, no raise, no promotion--if he persists;
     f)move the speaker's desk into a remote area where nobody has to deal
with him.

Marie Failinger
 On Wed, 22 Apr 1998, Eugene Volokh wrote:

>     I'm actually writing an article about this very question --
> freedom of speech and captive audiences -- right now, so I very much
> appreciate this discussion.  Here's my tentative thinking.
>
>     It seems to me that we do often have no choice other than to see
> certain speech every day, or at least close to it.  If you have to go
> to work past pickets with signs calling all strikebreakers "scabs,"
> you're "bombarded" with this every day, two or more times a day.  If
> you're a lifeguard on a beach, you may constantly hear people playing
> rap music (even fairly quietly) on the beach.  If you're a bus
> driver, you have to repeatedly see various billboards that are on
> your route, even if they're sexually suggestive or religiously
> offensive.  If you're a passenger on a full airplane, you may find
> it hard to avoid, for many hours, the racist or sexist or unpatriotic
> speech of your neighbors, even if it's spoken at a normal volume.  If
> you're a clerk at a store, you might often -- perhaps daily -- see
> various people come by wearing various offensive T-shirts, or even
> saying offensive things.  We are all in a sense "captive" to
> profanity, given that we can't avoid hearing it fairly often -- very
> often if we work in particular places or jobs.  True, it's not
> usually from the same person, and it's episodic rather than
> continuous, but the "captivity" seems to me to be at bottom the same.
>
>     Despite all this, I take it that the 1st Am prohibits laws
> banning offensive words on picket signs, rap music on the beach,
> sexually suggestive or religiously offensive billboards or
> conversations of airplane passengers, or offensive T-shirts or casual
> profanity.  We may tolerate content-neutral laws restricting
> loudspeakers, which are generally justified by a desire to avoid
> distraction rather than offense; but not content-based bans on
> offensive words, images, or ideas, justified by the possibility that
> some, even "captives," might be offended.
>
>     One could, of course, argue that once a certain threshhold of
> captivity is reached, content-based restrictions on such speech
> should be allowed, but the examples I give just don't reach that
> threshhold.  But surely that threshhold would have to be set *very*
> high, given that the examples do seem to me to involve genuine
> captives.  Even then, we'd have to ask what sort of content
> discrimination are appropriate.  Is it constitutional, for instance,
> to ban music that expresses certain ideas -- be they misogynistic or
> violent or anti-religious or blasphemous -- even when a genuinely
> captive audience is present?  I doubt it.  But in any event, I'm not
> sure what sort of speech would be *more* captivating than the
> examples I give above, and would still be regulable.
>
>
> Marie Failinger writes:
>
> > I must admit that I've never been much of a fan of the captive audience
> > doctrine, given its elevation of privacy over communicative interests, but
> > what if we were to be more literal instead of treating the doctrine as the
> > Lehman Court does--if we were speaking of a situation where an
> > individual literally has no choice (other than never coming back) but to
> > be bombarded with the speech
> > day after day after day on a regular basis each day, i.e., through sound
> > or sight that cannot be averted.  To use Eugene's hypothetical with a
> > change, if I am sitting at home and day after day hear the blaring of a
> > political speech (name your topic) into my home, wouldn't I have a
> > protectible
> > interest in avoiding what is no longer speech (i.e., is not communication
> > but merely self-gratification or harassment?)  Why would this be different
> > at work?  Could not one distinguish between a one-time involuntary
> > exposure, which might be offensive but is communication precisely because
> > it invokes the response of offense, and repetitive exposure where the
> > speaker has lost any intent to communicate and/or the listener to hear?
>
>
> ---------------------------------------------------------------------
> Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
>                405 Hilgard Ave., L.A., CA 90095
>


Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu