In Defense of Title VII: Why Workplace Harassment Law is Constitutional

I recently stumbled upon an interesting dialogue at Slate titled "Free Speech vs. Workplace Harassment," in which Professors Eugene Volokh and Deborah Epstein debate whether harassment law, specifically Title VII of the Civil Rights Act of 1964, violates the First Amendment. With relatively sparse case law in this area, Epstein and Volokh both accuse the other of misrepresenting the facts of cases to suit her or his needs. On the whole, however, I tend to agree more with Epstein's "governmentalism" than Volokh's sometimes callous liberatarianism, even though he makes a very interesting argument. While I think that Epstein successfully proves that workplace harassment survives First Amendment strict scrutiny in this Georgetown Law Journal article (84 Geo. L.J. 399), I'll focus on Volokh's arguments in this post.

Volokh (and pretty much everyone else, for that matter) agrees that "quid pro quo" harassment (e.g. mandating sexual favors for continued employment) and "one-to-one" harassment (e.g. calling someone a racial slur directly) should remain prosecutable offenses under harassment law; he calls these "directed speech" (Comment: Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791). It is with "undirected speech" that Volokh takes issue. This type of speech can contribute to a "hostile environment" if it is "severe or pervasive" enough.

If you pretend Jesus, Mo, and Ganesh are all at work, this comic would be a good example of the kind of undirected speech Volokh thinks should be protected (I know, I should cite a case, but there are plenty to be found on Volokh's site, and it turns out Professor Helle loves web comics).



Volokh wants to decriminalize what he calls "one-to-many" speech, and prevent the creation of a new exception to the First Amendment for harassing speech, for several reasons. To keep this post brief, I'll try to focus on what I consider his main points to be, but if you have the time, you should peruse his very extensive analysis of this issue.

Volokh argues that harassment law can restrict "political statements, religious proselytizing, legitimate art, sexually themed (perhaps not even misogynistic) jokes, and other kinds of speech that are generally seen as being entirely constitutionally protected."

He adds in the Slate dialogue that, because we spend a third of our lives at work, we need to be able to freely express ourselves while on the job. I would argue that because the state has an interest in keeping its residents employed, it has an interest in maintaining an environment in which workers don't feel uncomfortable or threatened. Even if we cast empathy aside, we must recognize that lower morale will eventually lead to lower productivity, as Deborah Epstein points out in her response (85 Geo. L.J. 649) to one of Volokh's law review articles.

Volokh also argues that employers will tend to err on the side of extreme caution when framing their harassment policies. He gives several examples of "zero-tolerance policies" that prevent all types of speech, regardless of whether it is severe or pervasive, for fear that an accumulation of individual expression will accrue to legally become harassment. But I'm not sure that this is acceptable evidence of a chilling effect on speech, and neither does Epstein, who asserts that zero-tolerance policies result from, among other things, poor legal advice. The burden of having to accomodate a law is not the greatest argument against that laws existence. Employers, she argues, have several options:

by educating workers about the scope of hostile work environment harassment law, training them to improve interpersonal communication, and creating grievance procedures that allow effective evaluation of and response to harassment complaints, an employer can protect itself from liability while allowing workers breathing room for expression.

Another argument against the constitutionality of workplace harassment law has to do with employer liability. Volokh gives the impression that an employer is liable for any and all hostile environment harassment that takes place on company grounds. But in the Berkeley Journal of Employment and Labor Law (17 Berkeley J. Emp. & Lab. L. 321), Oppenheimer cites Klessens v. United States Postal Service, where the employer was found not liable for a worker being subjected to continued sexual harassment due to lack of notification; even though Klessens filed complaints with her supervisor and, when met with further degradation from him, his supervisor. Still, the court found that the U.S.P.S. was not properly notified.

It seems to me that Volokh is exaggerating the dangers and free speech restrictions, especially when cases like Klessens's are so difficult to prove—which brings me to my final point. There is a societal need for harassment law, and any restrictions on free speech are the price we pay for striving toward an equitable society. In her law review article, Epstein points out that issues of power prevent women from being able to confront their harassers without access to the judicial system. In fact, even with that access, many do not come forward for fear of reprisal: "Their concern is well-founded; one study reveals that twenty-four percent of victims surveyed were fired because they complained about sexual harassment." (Epstein).

Our legislators, representing their constituents, decided that equality was a worthwhile goal with the Civil Rights Act of 1964. If we truly value making every workplace equally accessible to all, then hostile environment workplace harassment should be regulated by the government.

Constitutional Prior Restraint in Media Coverage of Sexual Assaults

Prior restraint is one of the most egregious threats to our First Amendment right of freedom of expression. The Constitution's framers intended the doctrine against prior restraint as a reaction to the British licensing system. However, we move into more subjective territory when issues of court orders and injunctions arise. The Supreme Court has established that any effort to restrain publication carries with it a "heavy presumption against . . . constitutional validity" (New York Times Co. v. United States, otherwise known as the Pentagon Papers case). Some members of the press have argued that court injunctions and gag orders that prevent them from publishing the details of a legal case do not meet the "heavy burden" of proof established by the court, especially when dealing with a high-profile case. Supreme Court Justice Brennan has argued against the existence of injunctions: "Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would hold, and secrecy can do so much harm 'that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained' (Nebraska Press Ass'n v. Stuart)" (as quoted here). In People v. Bryant, just such a case, the court ordered that transcripts of in camera (in private) proceedings that were accidentally leaked to the press could not be published. The seven media entities involved filed a petition against the injunction, claiming it was an unconstitutional form of prior restraint. The Supreme Court of Colorado upheld the decision, finding that the scope of the order (as they had rewritten it) was narrow enough for it to be constitutional and in the interest of the public and recognizing that "protecting the privacy of rape victims is a highly significant state interest" (Justice Hobbs, Opinion of the Court). The 4-3 decision indicates, however, that this state interest may not be enough to overrule Justice Brennan's earlier opinion.

Jeffrey Matrullo built an argument that the press has a right to complete and accurate information, no matter what, in his Spring 2005 article in the Connecticut Public Interest Law Journal. Part of the function of the press, he writes, is to keep the public informed and to "impose checks on government abuses." He goes on, in what only amounts to a sycophantic attempt to appeal to justices, Matrullo contends that if the public does not receive sufficient information about a trial, they will think that the system has failed or been corrupted. But this is why Supreme Court justices have lifelong terms—they needn't worry about public opinion, only the interpretation of the law.

Matrullo makes a legitimate point when he frames the Bryant ruling in contradiction to several historical precedents. For instance, in Florida Star v. B.J.F., the details of a sexual assault case were accidentally put in the press room at a Florida police department, and the Star published the victim's name. The SCOTUS overturned the lower courts' rulings, stating that the paper had a right to assume that it had lawfully obtained the information. Throughout the case, though, the justices emphasize the importance carefully determining the facts of the case to discern whether the prior restraint could be justified. The court even explicitly states that "in a different case, the results might be different." This decidedly neoliberal attitude in favor of ad hoc judgment ensures that victims' rights will be carefully measured against the First Amendment right of the press.

To continue in the case-by-case tradition, let's consider the Bryant case on its merits. When the victim's name, personal contact information, and other very personal information was made available to the public, her security was put in great danger; in fact, the victim was so negatively affected by the leak that she dropped the charges in an effort to escape the undue public scrutiny forced upon her and her testimony. So, public access to this information made the victim stop cooperating with the prosecution and would act as a deterrent for future victims of sexual assault—a crime that is already drastically underreported.

As for the assertion that releasing this information is in the public interest, I think Paul Grobman of the Boston University Law Review said it best (keep in mind that the leaked information in Bryant contained the same material that would be present in a rape shield hearing, which decides whether a victim's sexual history should be admissible evidence):

It is not clear that access to the rape shield hearing would promote the public perception of fairness or provide an outlet for community hostility and emotion. The rape shield hearing focuses not on the actual events at issue, but only on proof of the victim's prior sexual conduct. Access to a proceeding which examines the victim's conduct rather than the defendant's might actually delegitimize the criminal system and increase rather than lessen community hostility. Exposure to the proceeding would prove especially upsetting to women, the primary victims of rape, by convincing them that the criminal justice system is slanted against them.

The Endless Debate over Founders' Intent

Virtual Kiddie Porn: Where is the Harm?

One would think that child pornography is illegal because the production of images of children engaging in sexual acts is potentially harmful to those children. However, the legal definition of “child pornography” extends beyond depictions of actual sex to include “a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct” and depictions that have “been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct” (18 U.S.C. §2256). As of 2003, the PROTECT Act criminalized even an unrealistic image that depicts or appears to depict minors engaging in sex, “including a drawing, cartoon, sculpture, or painting” as long as it is deemed “obscene” via the Miller test. Pornography containing the images of actual children is illegal even if it does not pass the Miller test because its criminality lies in how it is produced: by sexually assaulting children (as established in New York v. Ferber, 1982). Child porn, then, does not have to involve actual children in its production in order to be illegal, as long as it is "obscene." From a libertarian viewpoint, the law might seem too restrictive; after all, if real children are not assaulted, there seems to be no harm in creating these images. Some researchers have even argued that the availability of these images acts as a "safety valve" that prevents actual children from being victimized, as cited in this presentation of an international perspective of child pornography (opens as a PDF; see footnote 24).

Indeed, in 2002, the Supreme Court took a more libertarian stance and struck down the Child Pornography Prevention Act of 1996 (CPPA), “finding it to be substantially overbroad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.” (Ashcroft v. Free Speech Coalition, also known as Reno v. Free Speech Coalition). Justice Kennedy cites then-contemporary films such as Romeo + Juliet and American Beauty in his majority opinion as examples of artistic expression that would be outlawed by the CPPA, merely because the actors are portraying minors having sex. Justice Rehnquist, in his dissenting opinion, interprets the CPPA differently, insisting that only "actual sexual activity" by "youthful looking adult actors" would be banned under the law. As sex scenes in mainstream films are almost always simulated (here's a fun page of scenes that allegedly are not simulated), Rehnquist's interpretation of the law would only apply to intentionally pornographic films that feature actors who appear to be minors, essentially criminalizing the "teen" porn genre. Of course, if the language of the law was so subjective that Supreme Court Justices could disagree about whether the word "simulated" was modifying "sexual activity" or "minor," the law was in fact too vague and was rightfully ruled unconstitutional.

Some legal scholars still believe that the Court made the wrong decision in this case due to the harmful effect that simulated child pornography can have on children. In her article "Stimulation by Simulation" in the Capital University Law Review, Kelley Bergelt is in favor of laws like the CPPA because they correspond with the federal goal of complete elimination of the child porn market. Taking a firm neoliberal stance, she asserts that "there is no value to society in permitting this form of speech" and that it will "inevitably harm society as a whole." Bergelt cites two main reasons for defending the CPPA. First, virtual pornography can still be used as a "luring device" for prowling pedophiles who present these images as "exciting or acceptable" to their intended victims. And second, because "simulated images appear indistinguishable from real children," the state will have a more difficult burden of proof if child pornographers can claim that the images are not of actual children.

Debra D. Burke responds to the first point in the Harvard Journal on Legislation. Because the sociological research in this area is so sparse and inconclusive due to obvious ethical issues, Burke has plenty of leeway to say that the correlation between child porn and child abuse lacks evidence. Furthermore, Burke claims that other forms of speech, like adult pornography, are also used as luring devices by pedophiles, but that this fact alone does not warrant their suppression. And while Burke agrees that eliminating child sexual abuse is an obviously worthy goal of the state, criminalizing virtual child porn will not single-handedly achieve this. As for placing the burden of proof on the state, no libertarian would find a problem with ensuring that the government has to prove the defendant's guilt.

I find myself agreeing with Burke over Bergelt, whose reasons for placing virtual child porn outside the realm of protected speech are simply not compelling enough to infringe upon this fundamental right. These porn images do not record actual abuse and are being used as an alternative to images that caused more harm in their creation; therefore, I see no problem in protecting this kind of speech. They are, after all, only concrete evidence of thoughts, not actions, and thoughts don't cause harm.

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