Hostile environments and the religious employee -Reply

[Eugene Volokh]

    It seems to me that the caselaw is not so complex, or so
uncertain, as Marty suggests.  It seems to me a pretty basic
principle that the government generally can't restrict otherwise
protected speech account of its communicative impact, even when it
does so through a general law.  We see it in Hustler v. Falwell:  The
generally applicable tort of IIED can't be applied to otherwise
protected speech (about a public figure) that inflicts emotional
distress through its communicative impact.  We see it in NAACP v.
Claiborne Hardware:  The generally applicable tort of intentional
interference with prospective business advantage can't be applied to
otherwise protected speech that interfers with prospective business
advantage through its communicative impact.

    We see it in Cohen v. California:  The generally applicable law
of disturbing the peace can't be applied to disturbances created
through the communicative impact of otherwise protected speech.  We
would, I take it, see it in prosecution of an antidraft agitator on
the grounds that his speech (not amounting to incitement) violated a
general law banning "all conduct that obstructs the operation of the
draft":  The generally applicable ban can't be applied to obstruction
created through the communicative impact of otherwise protected
speech.

    This all makes perfect sense.  If it were otherwise, the
government could ban a huge range of speech simply by using laws
that apply to various kinds of behavior, including speech.  But 1st
Am jurisprudence generally assumes that, even if the government
may bar us from generally causing certain harms -- emotional
distress, interference with business, disturbance of the peace,
interference with the draft -- it may not punish us for causing those
harms using the communicative impact of otherwise protected speech.

    What about the "far greater number of cases" to which Marty
refers?  As Marty acknowledges, at least some of these cases involve
speech being punished for its noncommunicative impact.  The IIED tort
*can* be applied with little (or at least less) 1st Am difficulty to
people who inflict distress by SHOUTING VERY LOUDLY.  People who
speak while blocking a store or a draft office -- or even who speak
using extremely loud amplification outside a store or a draft office
-- might be punished for interference with business advantage or
interference with the draft or even breach of the peace.  Other cases
involve the punishment of otherwise unprotected speech; this explains
extortion statutes (which after all needn't be general statutes aimed
at conduct, but may in fact specifically punish extortionate speech)
as well as many others.  Arcara v. Cloud Books involved the closing of
a bookstore, not because of the communicative impact of otherwise
constitutionally protected speech, but because it was used for
illegal public sexual conduct, and for illegal solicitation of
prosecution (speech, but clearly unprotected speech, and punishable
even through statutes aimed specifically at such speech).

    This leaves Cohen v. Cowles Media.  I concede that the rhetoric
in that case echoes Marty's points, but it seems to me that this
rhetoric is irreconcilable with the cases I mentioned above, and lots
of others I can imagine.  It seems to me that Cohen must stand for
the proposition that speech which violates a voluntarily entered into
contractual obligation is a sort of exception to 1st Am protection,
not so much because contract law is general -- again, consider IIED
and the other cases -- but because "[the] law simply requires those
making promises to keep them.  The parties themselves, as in this
case, determine the scope of their legal obligations and any
restrictions which may be placed on the publication of truthful
information are self-imposed."

Marty wrote:

> As we've discussed before, there are a far greater number of cases (Cohen v.
> Cowles Media and Arcara v. Cloud Books being the most recently notorious)
> holding that application of a general prohibition to instances in which the
> prohibition is violated through speech acts -- bribery, extortion, aiding and
> abetting, conspiracy, price-fixing, treason, antitrust violations,
> solicitation, discriminatory job termination, the list is endless -- raises no
> First Amendment problem at all.  And in many of these cases, the harm the
> state wishes to prevent is caused by the communicative impact of the speech,
> and nothing more.  Other cases -- O'Brien being the exemplar -- apply
> intermediate scrutiny to speech-specific applications of general statutes.
> The Court has not come up with any satisfactory explanation of when strict,
> intermediate, or no scrutiny should apply.  (See, for example, the Court's
> half-hearted attempt in Cowles to distinguish Falwell.)

    To begin with, I think that the great majority of the "far
greater number of cases" to which Marty refers involved generally
applicable statutes

> Marty Lederman
> (still in my personal capacity)


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Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
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