Prof.
Eugene Volokh, UCLA Law School
Religious articles
in newsletter and Bible verses on paychecks — ILLEGAL “religious harassment,” says a court.
Anti-veteran
posters at Ohio State University — ILLEGAL “veteran status harassment,” says the federal government.
Goya’s “Naked Maja”
painting displayed in a classroom — ILLEGAL
sexual harassment, claims a professor; university takes the painting down for
fear of liability.
“Any racial,
religious, ethnic or other remarks . . . contrary to their fellow employees’
religious beliefs” — ILLEGAL,
says a court injunction (enforceable by criminal
contempt penalties).
“Any and all
offensive . . . speech implicating considerations of race” — ILLEGAL, says another injunction.
“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.” Circuit
Judge Edith Jones, writing (albeit in dictum) for a unanimous panel of the Fifth
Circuit, DeAngelis v. El Paso Mun. Police
Officers’ Ass’n, 51 F.3d 591 (5th Cir. 1995).
With
little fanfare, “workplace harassment law” has become one of the government’s
broadest — and most constitutionally troublesome — speech restrictions. It has been used to suppress, among other
things,
·
political
statements,
·
religious
proselytizing,
·
art, such as prints
of Francisco de Goya paintings,
·
sexually themed
(perhaps not even misogynistic) jokes.
Harassment law has done a lot of good, and much
of it is constitutionally valid. But
other parts are serious threats to free speech.
This
Web site is a resource for lawyers, researchers, students, writers, and
citizens interested in the conflict between the freedom of speech and workplace
harassment law. It’s heavily footnoted,
and borrowed largely from articles I’ve published in legal journals. It’s organized as follows:
|
BREADTH |
SUBSTANCE |
SOLUTION |
|
What kinds of speech harassment law suppresses |
First Amendment analysis
of harassment law |
Allowing restrictions
on conduct and one-to-one speech, but not other kinds of speech |
|
PROCEDURE |
SLIPPERY SLOPE |
CYBERSPACE |
|
Procedural First Amendment
issues in harassment cases |
Harassment
law slipping beyond
the workplace |
Harassment
law restricting
cyberspace speech |
|
Q & A |
|
|
|
Questions & answers
for lawyers |
|
|
Reference Materials
|
DEFINITION |
IN THE COURTS |
BIBLIOGRAPHY |
|
Sources of harassment law
(state and federal) |
What
the courts have said
about the First Amendment issue |
Bibliography of
leading harassment law articles (from all perspectives) |
|
INDEX |
ABOUT THE AUTHOR |
ABOUT THE SITE |
|
Keyword index of materials
on this site |
About the author
of this site |
How to use and cite
materials on this site |
Art
restricted by harassment law
Author of this site
Captive audience doctrine
Court cases
confronting the free speech defense
Countervailing
constitutional values arguments
Cyberspace —
how harassment law restricts access to it
Employer rights
to restrict employee speech
Evidence,
speech as
Fighting
words doctrine
Government
employee speech doctrine
Harris v. Forklift Systems, Inc.
Injunctions
restricting speech
Jokes
restricted by harassment law
Libraries
restricting speech because of the risk of harassment liability
Mixed speech and conduct
claims
Patrons,
how workplace harassment law restricts speech by them
Political
speech restricted by harassment law
Public accommodations,
how hostile public accommodations environment law restricts speech
Public forum
doctrine
Secondary effects
doctrine
Slippery slope
dangers
Speech sold by
employer, how harassment law restricts it
State action,
why harassment law is
Time, place, and
manner restrictions
Union-related
speech restricted by harassment law
Vagueness
of harassment law
Value
of workplace speech
Veteran status harassment
Workplace speech
is constitutionally protected
Eugene
Volokh teaches constitutional law at UCLA Law School. He’s written five law review articles about free speech and
workplace harassment law, which have been cited in 10 court decisions and 70
law review articles. He has been cited
or quoted on this subject in the New York
Times, The New Republic, U.S. News & World Report, Harper’s Magazine, the Chicago Tribune, Forbes, and many other publications.
He
is also the author of many other scholarly articles on constitutional law and
other legal topics, which have appeared in the Yale Law Journal, the Harvard
Law Review, the Stanford Law Review,
the Supreme Court Review, the NYU Law Review, the Pennsylvania Law Review, the Michigan
Law Review, the UCLA Law Review,
and other publications. He clerked for
Judge Alex Kozinski on the U.S. Court of Appeals for the 9th Circuit, and for
Justice Sandra Day O’Connor on the U.S. Supreme Court. For a full c.v., click
here.
This
site is largely composed of excerpts from published law review articles, though
modified for readability, and updated to reflect new cases. For some materials, I’ve tried to keep the
footnote numbers the same as in the original, which explains the missing and
fractional footnotes.
How to Cite: I
generally indicate the source of each document with a “Cite text as:” message
at the very top. This will let you cite
the work as general support for a proposition.
If you want to cite to an exact page number, you might want to pull the
article from the library.
Reproduction: If you
want to reproduce any part of this Web site, or of my articles, for any
nonprofit purpose, please feel free to do so.
I’ve retained the copyright in these works, and hereby give you an unlimited, nonexclusive right to copy them for
nonprofit purposes. I’d prefer,
though, if you checked with me before excerpting anything, so I might speak up
if it looks like something important might be missing. If you want to reproduce the piece for
profit — for instance, in a casebook — I’ll generally be happy to give
permission, too, but I’d like you to check with me first.