A Practitioner's Guide To The First Amendment Defense In Hostile Environment Harassment Cases

A Practitioner's Guide to
the First Amendment Defense in
Hostile Environment Harassment Cases

(reprinted from Calif. Labor & Employment Law Quarterly, Fall 1998, at 20, and Employment Law Counselor, July 15, 1999, at 2)

Your client has come to you for advice. One of his employees has complained about several incidents that she claims are sexually harassing.

First, she overheard a male employee say to his co-workers at lunch that "the world was better off when women stayed home with their kids." Some other lunch conversations have at times expressed similarly sexist political views. Second, she's often overheard sexually themed political jokes around the copier; a few years ago, they were about Bill Clinton and Monica Lewinsky, including comments such as "they should rename it the 'oral' office" and "that's why they call him 'head' of state," but as time moves on, they change to whatever the most recent sexual or political scandal might be. The sales staff, male and female, loves these bad puns, and though she's said that she finds the puns offensive, they tell her "If you don't like them, don't listen to them."[1] Finally, she is especially offended by a print of Manet's Le Déjeuner sur l'herbe, which depicts a nude woman picnicking with two clothed men, hanging on a coworker's office door.[2]

Your client doubts that the employee would sue while she's still at work, but he's afraid that she might quit -- as she's threatened to -- and then sue. Also, the business is quite volatile, and the client might have to lay off the employee (as well as several others); he knows that such terminations often lead to lawsuits that allege, among other things, harassment. What should I do, he asks you? Given the First Amendment, may I really be punished for tolerating my employees' speech?

You may be surprised to learn that your client's instincts are correct, and that a First Amendment argument should be a big part of his defense. Courts are beginning to recognize that, under workplace harassment law, the government is seriously restricting speech in private workplaces. Consider the Fifth Circuit's opinion in DeAngelis v. El Paso Mun. Police Officers' Ass'n:[3]

Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial, or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech.

Management lawyers need to know how to raise a First Amendment defense in harassment claims that are, even in part, based on speech; and plaintiffs' lawyers need to anticipate this argument.

Courts have interpreted antidiscrimination laws, such as Title VII, the ADA, and various state laws,[4] as prohibiting two types of harassment. The first, "quid pro quo" harassment -- a supervisor threatening an employee who refuses his sexual advances -- is as constitutionally unprotected as any other form of threat or extortion.[5] Clearly, our hypothetical client's employees haven't crossed this line, and this type of harassment isn't the subject of this article.

Our concern is the second type of harassment: speech or conduct that is "severe or pervasive" enough to create a "hostile or abusive work environment" based on race, religion, sex, national origin, disability, or veteran status (and in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance), for the plaintiff and for a reasonable person.[6]

What does "severe or pervasive enough to create a hostile, abusive, or offensive environment" mean? Much depends on the particular judge or jury you draw; but it can certainly include political, religious, social, and artistic-themed speech:

* One court said that co-workers' use of job titles such as "foreman" and "draftsman" may constitute sexual harassment.[8]

* A Kentucky human rights agency has gotten a company to change its "Men Working" signs (at a cost of more than $35,000) on the theory that the signs "perpetuat[e] a discriminatory work environment. . . ."[9]

* Another court has characterized an employee's hanging "pictures of the Ayatollah Khome[i]ni and a burning American flag in Iran in her own cubicle" as "national-origin harassment" of an Iranian employee who saw the pictures.[10]

* A state court has found that it was religious harassment for an employer to put religious articles in its employee newsletter and Bible verses on its paychecks.[11]

* A state commission found a hostile environment based solely on off-color jokes and cartoons displayed in the workplace, even though none of the jokes were said specifically to the complainant, none referred to her, and the cartoons weren't even sexist or misogynist.[12]

* A painting by a local female artist of a partially nude woman was taken down from the City Hall in Murfreesboro, Tennessee, on the City Attorney's advice, because an employee complained: "I personally find 'art' in any form whether it be a painting, a Greek statue or a picture out of Playboy . . . to be pornographic and, in this instance, very offensive and degrading to me as a woman."[13]

* A county banned computer access to sexual material in its public libraries on the grounds that such material would constitute sexual harassment of library patrons and employees who happen to glance at it.[14]

And because the law is so indefinite, many employers err on the side of caution; vagueness predictably requires people "to 'steer far wider of the unlawful zone' than if the boundaries of the forbidden areas were clearly marked."[15]

Furthermore, the "severe or pervasive" threshold provides little comfort to an employer deciding what speech may be tolerated and what must be suppressed (even though it does help employers defending against a lawsuit that's actually filed[16]). No employer can tell its employees: "Each of you may tell sexual jokes or express offensive political views so long as the aggregate of what you and your coworkers say isn't so 'severe or pervasive' that it creates a 'hostile, abusive, or offensive work environment.'" The only way the employer can prevent potential liability is by forbidding even individual instances of speech that, when aggregated, would create a hostile environment.

We see this in many court orders, which, like employer policies, are aimed at preventing (rather than just punishing) hostile environments. Thus, one court ordered an employer and its employees to "refrain from any racial, religious, ethnic, or other remarks or slurs contrary to their fellow employees' religious beliefs,"[17] without mentioning a severity or pervasiveness requirement. Another injunction prohibited "derogatory bulletins, cartoons, and other written material" and "any racial, ethnic, or religious slurs whether in the form of 'jokes,' 'jests,' or otherwise."[18] A third ordered the employer and employees to "cease and desist from . . . racial harassment in the workplace including, but not limited to, any and all offensive conduct and speech implicating considerations of race."[19]

Likewise, we see this in advice given by government agencies and employment experts:

* An article called Telling Jokes in the Workplace Can Be Dangerous advises: "'Don't say or do anything that can be remotely interpreted as sexual/sexist [note the implication that the two have become indistinguishable] in nature to anyone near or at work.' If you follow these guidelines you have nothing to be afraid of."[20]

* An article called Watch What You Say, or Be Ready to Pay says: "Be aware that offensive comments may translate into megabuck liability. Any disparaging comments or joking references concerning an employee's age, sex, race, religion or national origin can put your company on a fast track to court. . . "[21]

* An official U.S. Department of Labor pamphlet likewise defines "harassment" as including cases where "[s]omeone made sexual jokes or said sexual things that you didn't like."[22]

* The Maryland Commission on Human Relations says, in a pamphlet entitled Preventing Sexual Harassment: A Fact Sheet for Employees: "Because the legal boundaries are so poorly marked, the best course of action is to avoid all sexually offensive conduct in the workplace."[23]

With harassment law, the government pressures employers to suppress even individual incidents of offensive speech.

Under black-letter First Amendment doctrine, the government is generally not allowed to punish religious proselytizing, sexual jokes, suggestive pictures, or racist or sexist statements, even when this speech is offensive.[24] Though the Supreme Court has not yet squarely confronted the conflict between the First Amendment and harassment law, some courts have begun to recognize that the law poses serious constitutional problems. Furthermore, as we explain below, there are considerable procedural advantages to raising a First Amendment defense, even if the court concludes that harassment law is substantively constitutional.

Courts have begun to pay serious attention to the tension between First Amendment and harassment law. In Weller v. Citation & Gas Corp.,[25] for example, the Fifth Circuit echoed the sentiment it had voiced earlier in DeAngelis:

In DeAngelis, we noted the yet unresolved dilemma facing courts adjudicating claims at the intersection of Title VII and the First Amendment. . . . Supreme Court precedent in this area provides little guidance concerning whether conduct targeted for its expressive content . . . may be regulated under Title VII.

We cite other such cases in the endnote.[26] Though some other decisions have rejected a free speech defense, they have usually done so without discussion.[27]

The Supreme Court has not decided this question; the Court's harassment cases haven't dealt with the First Amendment argument.[28] In R.A.V. v. City of St. Paul, the Court did say, in dictum, that:

[A] particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. [Emphases added.][29]

Whether . . . applications of title VII [to protected speech rather than to proscribable speech] are necessarily unconstitutional has not yet been fully explored. The Supreme court's offhand pronouncements are unilluminating. (Footnote: The Court's [R.A.V. decision] does not that mean that Title VII trumps First Amendment speech rights.)[30]

R.A.V.'s limitation to proscribable classes of speech leaves unresolved the question of liability for speech -- such as political statements, religious proselytizing, jokes, and art -- that is constitutionally protected.

Harassment law is a government-imposed restriction on people's speech: The government is enjoining certain kinds of speech, or awarding substantial compensatory and punitive damages based on speech.[31] This is true even though the employer may be a private entity: By imposing liability on the employer, the government pressures it to restrict its employees' speech. Instead of the government restricting people's speech directly, the government coerces private employers to do the job.[32]

In the absence of government action, of course, private employers may restrict employees' speech with no First Amendment difficulties, and even fire employees for speech that's otherwise protected against government censorship, such as profanity or political speech. Likewise, private newspaper publishers may restrict what their columnists write, private commercial landlords may restrict the signs their lessees put up or the books the lessees sell, and private householders may restrict what their guests say at the dinner table.[33] But this doesn't mean than the government can, through threat of liability, pressure publishers, landlords, householders or employers to restrict people's speech. Employers may resist such pressure by raising employees' First Amendment rights as defense to a harassment suit.[34]

There is no exception to the First Amendment for government restrictions on the speech of private workers. NLRB v. Gissel Packing Co. made clear that workplace speech is generally protected from government restriction by the Free Speech Clause, so long as the speech doesn't contain a "threat of reprisal or promise of benefit" by the employer or a union.[36] And this must be so: If, for instance, Congress tried to bar private employees from criticizing the war effort, or from saying things critical of returning soldiers, surely the law would be unconstitutional even if applied only to workplace speech. Likewise for speech that expresses offensive views on religious, racial, or sexual issues.

The government acting as employer does of course have broad power to restrict its own employees' speech, but this rule is completely inapplicable to government restrictions on speech in private workplaces. The government employee speech doctrine is based on the theory that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."[37] Harassment law is imposed by the government acting as sovereign, not by the government acting as employer; the rules for the two contexts are radically different.[38]

Harassment law can't be justified under the "time, place, and manner" doctrine. Time, place, and manner regulations are permissible only if they are content-neutral;[39] harassment law is content-based, suppressing some kinds of speech (say, bigoted political statements) and not others.[40]

Nor can harassment law fit into the "time, place, and manner" doctrine on the theory that it focuses on the "secondary effects" of speech, and is thus "justified without reference to the content of the regulated speech."[41] The Court has many times held that the "direct impact that speech has on its listeners [--] the emotive impact of speech on its audience [--] is not a 'secondary effect.'"[42] Harassment law, which is justified by the desire to prevent offensive work environments for the targets of harassment, is therefore content-based.

Harassment law can't be defended under the fighting words doctrine, which applies only to face-to-face insults that are likely to arouse an immediate violent response;[43] under the public forum doctrine,[44] which apply only when the government is the employer or the landlord; or under the "speech as evidence" doctrine, since harassment law doesn't use the speech as evidence of some other action or intention, but rather makes the speech itself punishable or enjoinable.[45]

Similarly, it can't be defended by arguing that harassment law restricts the "conduct" of harassment rather than speech,[46] any more than one can defend overbroad libel laws or sedition laws by arguing that they restrict "libel, not speech," or "sedition, not speech": The law is restricting speech, even when it calls it harassment -- the First Amendment clearly applies, and the question is whether this restriction falls within one of the First Amendment exceptions.

Employees in the workplace are in a sense "captive" -- unable to easily escape the offensive speech -- but the Court has never held that the presence of a captive audience generally justifies speech restrictions.[47] People often can't avoid offensive speech, even at work, but this doesn't strip the speech of constitutional protection. For example, strikebreakers are captive to picketers who march around with signs saying "Scab"; they see the offensive speech every morning and evening, and even more often if they have to come and go during the day, or if their desks face the street. Likewise, people who actually work in the streets -- traffic cops or pushcart vendors -- are "captive" to street demonstrations; and yet this doesn't justify nullifying the demonstrators' right to speak, or even to speak offensively.

Furthermore, the Court has rejected content-based speech restrictions, even when aimed at shielding captive audiences in the home.[48] Content-based captive audience restrictions have only been allowed in the special areas of profanity in broadcasting, government-owned non-public forum property and (possibly) mailings into the house.[49] Even in Pacifica, where a content-based ban was upheld, the court stressed the need for viewpoint neutrality:[50]

the fact that society may find speech offensive is not a sufficient reason for suppressing it . . . . For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content . . . First Amendment protection might be required.

Harassment law often punishes speech precisely because of its political content -- in our hypothetical, for example, the coworker's comments on working mothers would have been acceptable if he had instead praised the advances made by women.

The First Amendment prohibits imposing liability based even in part on protected speech -- for instance, based on a combination of offensive political statements and unprotected physical conduct, or, as we discuss below, one-to-one insults.[51] If the plaintiff wants to sue based on the unprotected material, he may, but the court should instruct the jury to consider only that material.

Plaintiffs' lawyers should, of course, argue that the courts should simply create a new exception. Workplace speech isn't that important, the argument would go, and we can easily live with a little governmental speech suppression for the sake of a less discriminatory society.

The response is that people spend more of their waking hours at work than anywhere else except (possibly) their homes. Most Americans don't go to public demonstrations, or burn flags, or get much media time, but they do talk about current affairs with their coworkers. Some of these opinions might offend members of one of the growing number of protected groups, but the government has no business censoring this speech.

Moreover, a workplace exception would be remarkably broad, since every place is someone's workplace: Universities, public buildings, libraries, parks, and bookstores all contain employees. If a legitimate artwork can be banned in a city hall, why can't it be banned in a restaurant, where it might offend the waiter? Or for that matter, a museum, where offended janitors might be confronted with it every night? If offensive reading material can be banned from a firehouse, why not from a bookstore or a library? Why couldn't religiously or racially offensive speech be barred from a park or a street, where custodians or street vendors might be exposed to it?[52]

Consider also that harassment law requires employers to shield their workers from offensive speech and conduct by patrons as well as by co-workers. This means that -- as employment experts have already pointed out to employers -- harassment law can silence us even when we're telling religious jokes to our friends in a restaurant,[53] or looking at possibly offensive material at a library computer.[54] The First Amendment seems to prohibit such broad, content- and viewpoint-based governmental speech restrictions.

A new exception for workplace harassment actually isn't necessary in many cases. The classic "quid pro quo" harassment that originally defined the field -- that is, a supervisor threatening to retaliate against an employee who refuses his or her sexual advances -- is already unprotected, as is any other type of threat or extortion.[55] Race- and sex-based threats by co-workers, and other traditionally unprotected categories of speech, such as fighting words and slander, are similarly unprotected

Likewise, we do think it's proper to create one new, limited exception to First Amendment protection -- epithets or similar insults said to a single unwilling listener shouldn't be protected. This sort of one-to-one unwanted speech is likely only to annoy and offend, not persuade or edify; and, most importantly, the law can restrict it without suppressing speech that reaches other, potentially willing listeners.[56] Allowing such a limited new exception to the First Amendment wouldn't threaten core free speech values: It won't give the offended listener a heckler's veto over one-to-many communications -- such as lunchroom conversations, posters on office doors, department-wide e-mail, or articles in a company newsletter -- that reach other coworkers who might well want to hear.

This distinction between one-to-one and one-to-many speech is supported by existing First Amendment exceptions. Face-to-face, one-to-one insults that are likely to cause a fight can generally be banned, even though similar words communicated to the world at large on a jacket cannot be.[57] A householder has veto power over the mail he gets, but this power doesn't prevent the mailer from sending messages to others.[58] Likewise, this distinction between one-to-one speech and other speech may justify the prohibitions on unwanted telephone calls, which have been largely upheld by lower courts.[59]

We think these arguments for First Amendment protection are doctrinally strong, and some courts have taken them seriously. Though some other courts have rejected them, a defendant has much to gain and little to lose from making them to a judge, on a motion for summary judgment or a motion in limine to exclude evidence. But even if a court ultimately rejects our arguments and concludes that harassing speech is substantively unprotected, raising the First Amendment will still yield significant procedural advantages.

1. Most clearly, even if a court holds that harassment law is substantively constitutional, a defendant is entitled to de novo appellate review.[61] Instead of giving the usual deference to the lower court's finding that the speech was "severe or pervasive" enough to create a "hostile or offensive" work environment, the appellate court would have to decide the matter for itself, thus giving the defendant a second chance. This is the standard rule applied for all speech restrictions, even one that are substantively valid, such as libel laws, obscenity laws, and so on.

2. The Free Speech Clause also generally bans strict liability based on speech, because such liability would unduly chill speakers -- this is black-letter law for other speech restrictions, including libel, obscenity, and even child pornography. The defendant may argue that such a rule must apply to harassment cases in which state laws impose strict liability where the hostile environment is created by a supervisor.[62]

3. Liability in libel cases and civil obscenity cases must be proven by clear and convincing evidence rather than by a preponderance of the evidence, to decrease the likelihood that protected speech will be erroneously restricted.[63] Again, you can also make this argument for harassing speech, even if a court concludes that harassing speech (like libel and obscenity) is substantively unprotected.

4. Punitive damages aren't allowed in libel cases -- even if compensatory damages are -- unless there's a showing that defendant actually knew that the speech was false, or at least acted recklessly.[64] The same rule, which is justified by the concern that allowing punitives will cause the law to overreach and chill even protected speech, may apply in perhaps invasion of privacy and negligent publication cases.[65] The defendant can argue that it should likewise apply to harassment cases.

5. Even if a court decides that harassing workplace speech is not protected by the First Amendment, the prior restraint doctrine would limit the court's ability to punish and enjoin speech that doesn't actually amount to harassment. The court could not preliminarily enjoin isolated bigoted statements, since such statements by themselves aren't severe or pervasive enough to create a hostile work environment; under prior restraint doctrine, such overly broad injunctions that sweep protected speech together with unprotected speech are unconstitutional. Even if harassing speech is unprotected, any judicial injunctions against harassment must be limited to speech that actually creates a hostile environment, not to isolated statements that may not be harassment at all.[66] In fact, some state constitutions, such as the California Constitution, are even more hostile to prior restraints than the U.S. Constitution;[67] under them, any speech-restricting injunction in harassment cases may be invalid.

Your client, like many employers over the last decade, is being pressured by the law to impose a government-dictated employee speech code. The government can't avoid First Amendment scrutiny by drafting private parties to implement speech restrictions; the employer may assert the rights of his workers as a defense against liability.

And the vagueness and breadth of most harassment law makes it ripe for constitutional attack. The law has begun to suppress speech that is protected in almost all other arenas -- political speech, religious comments, legitimate art, and just about any reference to sex. Courts are beginning to recognize this suppression as problematic under the First Amendment, and lawyers on both sides of the issue need to be aware of the constitutional arguments which may be central to many workplace harassment cases.

* Eugene Volokh teaches constitutional law at UCLA Law School, and has written five law review articles and several op-eds on the freedom of speech and workplace harassment law; his work on the subject is collected at http://www.law.ucla.edu/faculty/volokh/harass. Ann Swarzburg Wexler is a student at UCLA Law School. We thank the Labor & Employment Law Section of the State Bar of California for providing the grant that supported this work.

[1]. See, e.g., Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No. 9401006004 (Nov. 28, 1995) (imposing harassment liability based entirely on sexually themed humor that wasn't directed at the plaintiff but was just overheard by her); http://www.law.ucla.edu/faculty/volokh/harass/breadth.htm#JOKES (collecting many other incidents); Eugene Volokh, What Speech Does "Hostile Work Environment" Harassment Law Restrict?, 85 Geo. L.J. 627, 633 (1997) (likewise).

[2]. See Nat Hentoff, Sexual Harassment by Francisco Goya, Wash. Post, Dec. 27, 1991, at A21 (college administrators remove Goya's Naked Maja from a classroom after a professor complained that it constituted harassment). See also Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1542 (M.D. Fla. 1991) (enjoining all pictures in which the model "is posed for the obvious purpose of displaying . . . private portions of his or her body"); http://www.law.ucla.edu/faculty/volokh/harass/breadth.htm#ART (collecting many such incidents); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1859-61 (1992).

[3]. 51 F.3d 591, 596-97 & nn.6-7 (5th Cir. 1995).

[4]. The standards for harassment under these laws (and under other antidiscrimination statutes, such as the Civil Rights Act of 1966, 42 U.S.C. § 1981, and 42 U.S.C. § 1983 claims against state and local government employers) are generally identical. See, e.g., Kelly-Zurian v. Wohl Shoe Co., Inc., 22 Cal. App. 4th 397, 409, 27 Cal. Rptr. 2d 457, 462 (1994) (following Title VII standards in California Fair Employment and Housing Act case); Volokh, supra note 2, 39 UCLA L. Rev. at 1800-01 (describing federal standards).

[5]. See Gissel Packing v. NLRB, 395 U.S. 575 (1969).

[6]. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (holding that Title VII bars harassment based on race, religion, sex, or national origin); Eggleston v. South Bend Community Sch. Corp., 858 F. Supp. 841, 847-48 (N.D. Ind. 1994) (holding that federal law bans harassment based on age and disability); Petersen v. Department of the Interior, 71 M.S.P.R. 227, 235, 237 (1996) (holding that 38 U.S.C. § 4311 prohibits veteran status harassment); Leibert v. Transworld Sys., Inc., 32 Cal. App. 4th 1693, 39 Cal. Rptr. 2d 65, 67 (1995) (holding that state law bars harassment based on sexual orientation); Cal. Gov't Code § 12940(h)(1) (West 1992 & Supp. 1995) (barring discrimination and therefore harassment based on marital status); D.C. Code Ann. § 1-2512 (1981 & Supp. 1988) (likewise as to "marital status, personal appearance, sexual orientation, family responsibilities, matriculation, disability, or political affiliation"); N.Y. City Admin. Code & Charter § 8-107(a) (Supp. 1996) (likewise as to "alienage or citizenship status"); Seattle, Wash., Code § 14.04.040 (1986) (likewise as to "political ideology").

[7]. See generally http://www.law.ucla.edu/faculty/volokh/harass/breadth.htm; Volokh, supra note 1, 85 Geo. L.J. at 627.

[8]. Tunis v. Corning Glass Works, 747 F. Supp. 951, 959 (S.D.N.Y. 1990), aff'd without opinion, 930 F.2d 910 (2d Cir. 1991). Though the court ultimately held for the employer, it did so only because the employer took prompt action to remedy the situation. The case also involved some pinups, and some catcalls and whistles directed at the plaintiff, but the judge specifically mentioned that co-workers' use of gender-based job titles was itself a "discriminatory . . . practice," and strongly implied that an employer that continued to let its employees use gender-based language could be liable.

[9]. Kentucky Comm'n on Human Rights, Human Rights Report, Spring 1994, at 2.

[10]. Pakizegi v. First Nat'l Bank, 831 F. Supp. 901, 908 (D. Mass. 1993) (dictum) (also describing this as "discriminatory, anti-Iranian conduct"), aff'd without opinion, 56 F.3d 59 (1st Cir. 1995).

[11]. Brown Transp. Corp. v. Commonwealth, 578 A.2d 555, 562 (Pa. Commw. Ct. 1990).

[12]. Dernovich v. City of Great Falls, Mont. Hum. Rts. Comm'n No. 9401006004 (Nov. 28, 1995).

[13]. Jennifer Goode, It's Art vs. Sexual Harassment, The Tennessean (Nashville), Mar. 1, 1996, at 1A.

[14]. Loudoun County Public Library, Policy on Internet Sexual Harassment (1997).

[15]. Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted).

[16]. Courts sometimes assert that a few mild incidents won't rise to the level of harassment, though much depends on the particular incident and the particular court. See, e.g., Taylor v. Metzger, 1998 N.J. Lexis 92, at *35 (Sup. Ct. Feb. 18, 1998) (finding that a single racist epithet can constitute conduct severe or pervasive enough to be actionable as racial harassment: "one slur . . . does not, as a matter of law, preclude the conduct from being extreme or outrageous"); Editorial, Sex Harassment Law -- What Are the Rules?, S.F. Chron., Apr. 12, 1998, editorial sec., at 6 ("Employers who have followed sexual harassment law know that one incident can very well meet the threshold for a hostile work environment.").

[17]. Turner v. Barr, 806 F. Supp. 1025, 1029 (D.D.C. 1992).

[18]. Snell v. Suffolk County, 611 F. Supp. 521, 531-32 (E.D.N.Y. 1985).

[19]. Harris v. International Paper Co., 765 F. Supp. 1509, 1527 (D. Me. 1991).

[20]. Sue Morem, Telling Jokes in the Workplace Can Be Dangerous, Star Trib. (Minneapolis), Feb. 4, 1997, at 2D.

[21]. Geanne P. Rosenberg, Watch What You Say, or Be Ready to Pay, Investor's Bus. Daily, Nov. 6, 1996, at A1.

[22]. U.S. Dep't of Labor, Sexual Harassment: Know Your Rights (1994).

[23]. Maryland Commission on Human Relations, Preventing Sexual Harassment: A Fact Sheet for Employees (1994).

[24]. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (bigoted speech constitutionally protected); Brandenburg v. Ohio, 395 U.S. 444 (1969) (same); Cohen v. California, 403 U.S. 15 (1971) (profanity protected); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (public displays of sexually suggestive material protected); Cantwell v. Connecticut, 310 U.S. 296 (1940) (offensive religious proselytizing protected).

[25]. 84 F.3d 191, 194 n.6 (5th Cir. 1996).

[26]. See DeAngelis, supra, 51 F.3d at 596-97 & nn.6-7; see also Baliko v. Stecker, 275 N.J. Super. 182, 645 A.2d 1218 (1994); Henderson v. City of Murfreesboro, 960 F. Supp. 1292 (M.D. Tenn. 1997); Johnson v. County of Los Angeles Fire Dep't., 865 F. Supp. 1430 (C.D. Cal. 1994).

[27]. See, e.g., Berman v. Washington Times Corp., 1994 WL 750274 (D.D.C.); Baty v. Willamette Industries, Inc., 172 F.3d 1232 (10th Cir. 1999). See also Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997) (acknowledging "that there may be some tension between the rights that [an employee] enjoys under . . . Title VII and [an offensive supervisor's] First Amendment rights," but holding that there was no First Amendment violation in the particular case, which involved one-to-one speech directed at the offended employee); compare Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121 (1999) (upholding, with 4 votes, on narrow grounds an injunction against harassing speech) with id. (three Justices dissenting, and concluding that the injunction violated the First Amendment) and Avis Rent A Car Sys., Inc. v. Aguilar, 120 S. Ct. 2029 (2000) (Thomas, J., dissenting from denial of certiorari) (suggesting that the injunction violated the First Amendment). The one case besides Aguilar that has rejected a free speech analysis with some detailed discussion is Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991).

[28]. Cases are not, of course, precedents for issues they haven't considered. Waters v. Churchill, 511 U.S. 661, 678 (1994) (plurality); see also, e.g., Howard Jarvis Taxpayers' Ass'n v. Fresno Metro. Projects Auth., 40 Cal. App. 4th 1359, 1393, 48 Cal. Rptr. 2d 269, 291 (1996).

[29]. 505 U.S. 377, 389-90 (1992).

[30]. DeAngelis, 51 F.3d at 596-97 & nn.6-7.

[31]. It's black-letter First Amendment law that even civil lawsuits based on speech implicate the First Amendment. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (libel); NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (intentional interference with business advantage); Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (intentional infliction of emotional distress).

[32]. The Court has recognized the distinction between what a private employer can do to the employee and what the government can force the employer to do. See, e.g., Peterson v. City of Greenville, 373 U.S. 244, 247, 248 (1963) (finding unconstitutional a city ordinance which required restaurants to be segregated, because imposing the requirement on restaurant owners violated the equal protection rights of patrons); Truax v. Raich, 239 U.S. 33 (1915) (finding unconstitutional a state law requiring that at least 80% of each employer's employees be native-born citizens or qualified electors, because imposing the requirement on employers violated the equal protection rights of employees).

[33]. Hudgens v. NLRB, 424 U.S. 507, 513 (1976).

[34]. See http://www.law.ucla.edu/faculty/volokh/harass/proc.htm#THIRDPARTY.

[35]. See generally http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm; Volokh, supra note 2, 39 UCLA L. Rev. at 1819-62.

[36]. 395 U.S. 575, 618 (1969).

[37]. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

[38]. See Waters v. Churchill, 511 U.S. 661, 671 (1994); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 564 (1973); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

[39]. See, among very many cases, Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1,20 (1986) ("[f]or a time, place, or manner regulation to be valid, it must be neutral as to the content of the speech"); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536 (1980) ("a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech").

[40]. But see Robinson v. Jacksonville Shipyard, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991) (arguing that harassment law is a valid time, place, and manner regulation).

[41]. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis and internal quotation marks omitted).

[42]. Boos v. Barry, 485 U.S. 312, 321 (1988); see also Reno v. ACLU, 117 S. Ct. 2329, 2342 (1997); R.A.V. v. City of St. Paul, 505 U.S. 377, 394 (1992); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992); Texas v. Johnson, 491 U.S. 397, 411-12 (1989).

[43]. See Gooding v. Wilson, 405 U.S. 518 (1972).

[44]. See, e.g., Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983) (classifying public fora into three types, all of them public property); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540 (1980) ("[T]he Commission's attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent that rests on the special interests of a government in overseeing the use of its property."); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 n.19 (1981) (same).

[45]. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993); Street v. New York, 394 U.S. 576, 594 (1969); Haupt v. United States, 330 U.S. 631, 641 (1947) (pro-Nazi statements during World War II used as evidence that conduct was intended to help the Nazis, and thus treasonous.) Similarly, a manager's racist statements could be used as evidence that the firing of a subordinate was racially motivated -- the illegal conduct being discriminatory firing, not the manager's speech.

[46]. But see Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991).

[47]. See also Volokh, supra note 2, at 1832-43; http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#CAPTIVE.

[48]. Carey v. Brown, 447 U.S. 455, 470-71 (1980).

[49]. See FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (discussing radio broadcasting); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (discussing nonpublic fora); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540 (1980) (stressing that Lehman is limited to nonpublic fora -- "[T]he Commission's attempt to restrict the free expression of a private party cannot be upheld by reliance upon precedent [(Lehman)] that rests on the special interests of a government in overseeing the use of its property."); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 514 n.19 (1981) (stressing that Lehman's prohibition of all political speech "turned on [a] unique fact situation[] involving [a] government-created forum[]"); Rowan v. United States Post Office Dep't, 397 U.S. 728, 736, 738 (1970) (discussing mailings into the home; stressing that in practice this restriction ended up being content-neutral).

[50]. Pacifica, 438 U.S. 726, 745-46 (1978) (Stevens, J.); see also Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 548 (1980) (Stevens, J., concurring) ("[t]he fact that the offensive form of some communication may subject it to appropriate regulation surely does not support the conclusion that the offensive character of an idea can justify an attempt to censor its expression").

[51]. This issue was decided in NAACP v. Claiborne Hardware, 458 U.S. 886, 916 (1982). The NAACP and other defendants organized a boycott of white-owned businesses, demanding various concessions. The businesses sued, on a tort theory of intentional interference with prospective business advantage, pointing to various behavior that interfered with their business -- political statements exhorting solidarity, threats of social ostracism of boycott violators, threats of violence, and even actual violence. The state courts held for the businesses, concluding that, in total, the behavior was tortious.

But the Court reversed. Violence, it held, was indeed constitutionally unprotected; but much of the other behavior -- including threats of social ostracism -- was constitutionally protected speech. And because the "nonviolent elements . . . are entitled to the protection of the First Amendment," they did not lose this protection just because of the presence of unprotected behavior. While the plaintiffs were entitled to sue based only on the unprotected behavior, they couldn't sue based on a combination of the unprotected behavior and the protected speech. See also Street v. New York, 394 U.S. 576, 590 (1969); http://www.law.ucla.edu/faculty/volokh/harass/proc.htm#PART (discussing this in detail).

[52]. See supra text accompanying notes 13 and 14; http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#EVERYPLACE.

[53]. See http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#PATRON.

[54]. See supra text accompanying note 14.

[55]. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), made clear that workplace speech is generally protected by the Free Speech clause so long as the speech doesn't contain a "threat of reprisal or promise of benefit" by the employer or a union.

[56]. Rowan v. Post Office Dept, 397 U.S. 728, 738 (1970) ("no one has a right to press even 'good' ideas on an unwilling recipient").

[57]. See Cohen v. California, 403 U.S. 15 (1971).

[58]. Rowan v. Post Office Dep't, 397 U.S. 728 (1970).

[59]. See, e.g., Gormley v. Director, 632 F.2d 938 (2d Cir. 1980).

[60]. See generally http://www.law.ucla.edu/faculty/volokh/harass/proc.htm.

[61]. Under Bose Corp. v. Consumers Union, 466 U.S. 485 (1984), if the First Amendment is implicated at trial, then appellate courts must independently decide whether the offensive speech is indeed harassing. See Eugene Volokh, Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 Nw. U. L. Rev. 1009 (1996), available at http://www.law.ucla.edu/faculty/volokh/harass/apprevie.htm.

[62]. See, e.g., Smith v. California, 361 U.S. 147 (1959) (strict criminal liability for sales of obscene literature impermissible); Manuel Enterprises, Inc. v. Day, 370 U.S. 478 (1962) (suggesting same for civil penalties); New York Times, Inc. v. Sullivan, 376 U.S. 254 (1964) (rejecting strict liability for libel cases); New York v. Ferber, 458 U.S. 747 (1982) (suggesting strict liability is impermissible in child pornography cases). But see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (seemingly leaving open possibility of strict liability in private-concern libel cases).

[63]. Rosenbloom v. Metromedia Inc., 403 U.S. 29, 51-52 (1971); People v. Mitchell Bros.' Santa Ana Theater, 180 Cal. Rptr. 728 (Cal. Ct. App. 1982).

[64]. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). But see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985) (generally allowing punitive damages and presumed damages in libel cases involving speech on a matter of purely private concern).

[65]. Braun v. Soldier of Fortune Magazine, Inc., 814 F.2d 1017, 1021 (5th Cir. 1987); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1071 (Mass. 1989); cf. Florida Star v. B.J.F., 491 U.S. 524, 541 n.9 (1989) (reserving judgment on whether punitive damages would be impermissible in invasion of privacy cases).

[66]. Compare Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121 (1999) (upholding, with 4 votes, on narrow grounds an injunction against harassing speech) with id. (three Justices dissenting, and concluding that the injunction violated the First Amendment) and Avis Rent A Car Sys., Inc. v. Aguilar, 120 S. Ct. 2029 (2000) (Thomas, J., dissenting from denial of certiorari) (suggesting that the injunction violated the First Amendment).

[67]. See Wilson v. Superior Court, 13 Cal. 3d 652, 657‑58, 119 Cal. Rptr. 468, 532 P.2d 116 (1975).