Religious harassment and free speech

[Volokh, Eugene]

        I rise again on my hobby-horse.  Jim Maule suggests that the
government may properly suppress offensive employer speech -- such as,
for instance, "only evil people would deny blood tranfusions to their
children" -- on paychecks and in company newsletters, because this
speech can be deeply offensive to certain people.  But it seems to me
that this runs directly opposite 1st Am doctrine, which does not allow
suppression of speech because its ideas are offensive.

        What about the captive audience argument?  To my knowledge, the
Court has *never* upheld a content-based speech restriction imposed by
the government acting as sovereign on the grounds that the restriction
protected people against offensive ideas.  The closest the Court came
was FCC v. Pacifica, but even there the plurality stressed that if the
offensiveness of the words came from the idea, not the form, they would
be protected.

        And consider what speech restrictions would have to be allowed
under this theory.  Recall that the situation to which Jim refers
involves as an employee having to see offensive speech once every two
weeks.  A fortiori, I take it the government would be able to ban
offensive speech (e.g., signs calling people "scabs") on picket lines,
which are seen by employees two or more times a day; more captivity
there than in Jim's examples.

        The government would be able to ban offensive ideas on
billboards, which people who work across the street -- plus commuters
who have to drive by on the only quick route to work, plus pedestrians
who have to walk by when they go from the subway station to their
building -- have to see much more often than once every two weeks.  The
government couldn't ban a Nazi parade (Collin v. Smith), but a court
could issue an injunction against members of the local Nazi party
wearing swastikas to their weekly meeting at a local restaurant, since
this is necessary to protect waiters from exposure to offensive signs.
(This may in effect already be close to the rule under workplace
harassment law, since a restaurant owner who doesn't tell the Nazis to
get out risks a harassment lawsuit by an offended waiter; I believe I
have a cite at http://www.law.ucla.edu/faculty/volokh/pubaccom.htm for a
newspaper article urging restaurant owners to stop offensive
conversation by patrons because of the risk of harassment lawsuits.)

        What about salesclerks on Venice Beach, who often (much more
often than every two weeks) have to see and serve people wearing
T-shirts with sexually offensive messages?  I take it we could ban such
offensive T-shirts, too, in order to shield this captive audience.  The
list could go on.

        It seems to me that standard 1st Am rules can't be suspended
simply by talking about captive audiences.  Most speech holds someone
captive (especially if one exposure every two weeks is considered enough
for captivity), if only because workers are captive and every place is
someone's workplace.  If the presence of captives was enough to justify
suppression of offensive ideas, 1st Am jurisprudence would have to be
seriously rethought, and seriously narrowed.



> -----Original Message-----
> From: Jim Maule [SMTP:MAULE.Prof.Law at LAW.VILL.EDU]
> Sent: Tuesday, August 11, 1998 6:07 PM
> To:   volokh at mail.law.ucla.edu
> Subject:      Re: Go Suns!
>
> "Thomas C. Berg" <tcberg at SAMFORD.EDU> provides several well-
> reasoned, thoughtful ideas, but one of his suggestions troubles me:
>
> > 1.  Speech vs. action.  Employers should be free to speak
> > religiously if the speech does not involve or lead to
> > "tangible employment actions" against an employee (to
> > borrow a phrase from the recent sex harassment cases).
> > Except in unusual cases, employers should be free to put
> > Bible verses on paychecks, put religious articles in
> > company newsletters, or conduct voluntary prayer meetings
> > (assuming the meetings are truly voluntary -- if an
> > employee is sanctioned for not attending, that's a quite
> > different case).
>
> What of the following statements on paychecks or in newsletters?
>
> "Jews burn in hell because they do not accept our Savior"
> "Practicing homosexuals are children of the devil because they
> violate God's Law" [followed by a Bible verse]
> "Only evil people would deny blood transfusions to their children"
> "Wiccans preach the devil's message."
>
> I suggest these go over the line. They have a chilling effect. Most
> people who are within the scope of the statement would not want to
> work for the employer. They would feel compelled to look elsewhere.
> And there might not be an elsewhere.
>
> I very much support the notion of a person's right to express their
> religious beliefs; I wrote a book describing a segment of the history
> of its development. But I think that like any speech or expression,
> it has its proper place. The balancing is a matter of respecting THE
> OTHER PERSON'S right to the same rights, including the right of
> religious expression.
>
> There is a difference between speaking or writing to a general,
> voluntary audience and a captive audience.
>
> There is a difference between expressing beliefs while in one's own
> house of worship and going into another denomination's building
> during a service and doing the same.
>
> An employer's expression of religious belief, when not relevant
> to the employment and that cannot be avoided, should not get the same
> protection as an expression that can be avoided. Hence, if the
> newsletter contains unimportant things, perhaps it can be tossed
> without being read. But a paycheck, well, that can't be tossed
> without a lot of financial pain. Suppose the potentially offended
> employee asks for direct deposit of pay and the employer refuses
> because the paycheck provides a medium for the message? Seems to me
> that demonstrates that the employer has moved from expression of
> belief to an attempt at proselytization. Perhaps that difference
> should be a factor in drawing the line.
>
>
> Jim Maule
> Professor of Law
> Villanova University School of Law
> Villanova, PA 19085
> maule at law.vill.edu
> http://www.cilp.org/~maule
> (610) 519 - 7135
>
> "government big enough to give you everything you want is also big
> enough to take away from you everything you have"
>     -- George Herbert Walker Bush