by Prof.
Eugene Volokh, UCLA School of Law
Originally published in
the Northwestern Law Review; abridged and updated.
Cite text as Eugene
Volokh, Freedom of Speech and Appellate
Review in Workplace Harassment Cases, 90 Nw. U. L. Rev. 1009 (1996).
|
The Facts |
The Law |
|
Your client's employee Mary is complaining about her coworker
John. John has a Sports Illustrated swimsuit calendar hanging on his office wall;
Mary sees it whenever she walks by. John also sometimes complains in the lunchroom about "feminazis" who
are ruining the nation. "The problem
with this country," he says, "is that women don't stay at home, where they
belong." Mary thinks this constitutes sexual harassment, and asks your client to make John stop. |
Workplace speech constitutes harassment if it's ·
"severe or
pervasive" enough to ·
create a "hostile
or abusive work environment" ·
based on race,
sex, religion, national origin, or several other categories, ·
for the plaintiff
and for a reasonable person.[1] |
Your
client wants your advice. What should
he do? He could play it safe by just
telling John to take down the calendar and keep quiet. But let's say your client sympathizes with
John's speech. Or say he just doesn't
like shutting his employees up. Is
John's speech really unlawful harassment, he asks you? Will he really be liable if he doesn't make
John stop?
Put
the facts and the law side by side, and you don't get much of an answer. Are one sexually suggestive calendar and
several sexist political comments "severe or pervasive"? Would a reasonable person find that they
make the environment "hostile or abusive"?
The language of the test doesn't really help.
Neither,
unfortunately, does the case law. If a
trial judge finds a hostile environment, most appellate courts will review this
only for clear error.[2] If the finding is by a jury, the appellate
court will ask only whether a reasonable jury could so conclude.[3] Likewise, a trial judge may grant summary
judgment for a harassment defendant only if no reasonable jury could say the
environment was hostile.[4]
Thus,
instead of marking out two areas - hostile environment and nonhostile
environment - courts mark out three areas:
1.
those environments
that any reasonable factfinder would conclude are hostile,
2.
those that no
reasonable factfinder would conclude are hostile, and
3.
those on which
reasonable factfinders could disagree.
If your case falls in the third area - a broad area indeed - all you can
tell your client is that the result depends on the judge or jury he draws.
The
basic thesis of this Article is simple:
When a factfinder concludes that someone's speech has created a hostile
environment, an appellate court is
constitutionally bound to exercise its independent judgment on this
point. The court must take an
independent look at the record and determine for itself whether the environment
the record discloses is "hostile." The
Supreme Court's decision in Bose Corp. v.
Consumers Union,[5]
which requires independent judgment review in free speech cases, squarely
controls.
And
this is more than just the law - it's a good idea. Workplace harassment law[6]
is a nationwide speech code. Outside
the workplace, racist, sexist, and religiously bigoted statements are generally
constitutionally protected. This is
also true for sexually suggestive pictures, from Gauguins to Playboy
centerfolds; suggestive jokes; even slurs and personal insults (so long as they
aren't likely to provoke a fight).[7] But in the workplace, speech like this may
lead to an injunction or a hefty damages award. (Click for
more details.)
Though
there's a hot debate over whether and to what extent this sort of speech
restriction is constitutional (click) for this Article I'll set that question aside. I'll assume that, like obscenity, fighting
words, and defamation, harassing speech - speech that creates a hostile
environment - may constitutionally be restricted. Given this assumption, I'll argue, it's especially important that
courts define the boundaries of this category as precisely as possible. And this sort of definition can happen only
if courts exercise independent judgment in reviewing findings of a hostile
environment.[8]
I'll
also draw two other conclusions. First,
even if harassing speech isn't constitutionally protected, this doesn't mean
the Free Speech Clause is out of the picture in harassment lawsuits. So far, no‑one has discussed the
extent to which "First Amendment Due Process"[9]
doctrine - which can require, for instance, proof by clear and convincing
evidence or a prohibition on punitive damages - applies to harassment
cases. This issue deserves
investigation.
Moreover,
the lesson of all this for the defense lawyer is always take the First. Even
if harassing speech is unprotected, raising the defense will give you a second
chance with the appellate court. Maybe
the court will independently find that the speech was harassing; but maybe it
won't. If you don't raise the free
speech defense, though, the appellate court won't even have a real opportunity
to rule in your favor.
It's clear that harassment law restricts
speech. What's not clear is which kinds
of speech the law prohibits, and which kinds can still legally be said. As I document in exhaustive detail elsewhere,
workplace harassment law is a speech restriction of remarkable breadth. It goes far beyond slurs, hardcore
pornography, repeated vulgar sexual propositions, and the like, and can
suppress, among other things,
·
political
statements,
·
religious
proselytizing,
·
legitimate art
(such as prints of Francisco de Goya paintings),
·
sexually themed
(perhaps not even misogynistic) jokes,
·
and other kinds of
speech that are generally seen as being entirely constitutionally protected.
No one knows, though, how broad the restriction
goes - to what extent employers and employees may legally speak about religion
in the workplace, make arguably bigoted (or even simply insensitive) political
or social statements, say sexually suggestive jokes - even if they aren't at
any particular employee's expense - or post "legitimate" art (whether it
involves nudity or is merely sexually suggestive ) can lead to liability. Again, if you're skeptical that harassment
law is this broad, just click
here and you'll see how broad it really is.
I'm troubled by these speech‑restrictive
results, troubled enough that I conclude harassment law is partly unconstitutional. But others disagree. Not all speech restrictions, they point out,
are necessarily impermissible. When
offensive speech is so severe or pervasive that it creates a hostile
environment for coworkers, they argue, the speech should lose its
constitutional protection.[10]
For purposes of this Article, I'll accept this
position. I'll assume that speech which
creates a hostile environment is unprotected.
But the problem remains: How can
employers tell whether speech creates a hostile environment? Should they bar all religious proselytizing,
prohibit all arguably bigoted political statements, keep their employees from
using all sex‑specific language, ban all suggestive jokes, and order that
all sexually suggestive pictures be taken down? And if not, how can they know when they can say to the
complaining employee, "We're sorry that you're offended by this speech, but it
doesn't constitute harassment"?
Fortunately, there's a well‑established
solution to this problem. Harassing
speech wouldn't be the first category of speech held to be unprotected by the
Free Speech Clause. Fighting words,
obscenity, and libel, for example, are also generally unprotected. For each of these categories, the Court has
set forth rules that define the category's boundaries: For instance, defamatory statements about
public figures are actionable only if they are made with "actual malice" -
knowledge of their falsity or at least reckless disregard of the possibility of
falsity.[11]
But the Court has recognized that these rules are
often not self‑explanatory.
"Providing triers of fact with a general description of the type of
communication whose content is unworthy of protection has not, in and of
itself, served sufficiently to narrow the category, nor served to eliminate the
danger that decisions by triers of fact may inhibit the expression of protected
ideas."[12] The content of many Free Speech Clause
rules, the Court pointed out, "is not revealed simply by [the rule's] literal
text."[13] Rather, the rules are "given meaning through
the evolutionary process of common law adjudication."[14]
Because of this, the Court has held, appellate
judges, "as expositors of the Constitution, must independently decide whether
the evidence in the record is sufficient to cross the constitutional
threshold."[15] They may not defer to the factfinder's
conclusion. Instead, they must
themselves review the record, "both to be sure that the speech in question
actually falls within the unprotected category and to confine the perimeters of
any unprotected category within acceptably narrow limits in an effort to ensure
that protected expression will not be inhibited."[16]
This was said by the Court in Bose Corp. v. Consumers Union, a libel
case, but the reasoning is equally applicable to harassment law:
·
In both cases, some
speech is protected and some isn't. In
the public figure libel context, statements made without actual malice are
protected. In the harassment context,
speech that isn't harassing is protected.
·
In both cases,
there's a risk that the factfinder will misclassify the speech, either by
finding actual malice where none exists, or by finding a hostile environment
even though the speech wasn't severe or pervasive enough to create one.
·
In both cases, the
rule's literal text provides relatively little guidance in the absence of case‑by‑case
elaboration by appellate courts.[17]
And the Bose
Court made clear that it wasn't just announcing a libel rule: It specifically held that the same rule
applies generally to judgments that a certain kind of speech is unprotected.[18]
Post‑Bose
cases have faithfully applied Bose to
alleged obscenity,[19]
incitement,[20] a
newspaper's negligent publication of criminal solicitation,[21]
speech by lawyers that supposedly interferes with the administration of
justice,[22] government
employee speech,[23] speech in a
possibly nonpublic forum,[24]
and commercial speech.[25] The Court has reserved judgment on whether
the Bose standard applies in the
context of content‑neutral speech restrictions,[26]
but harassment law is clearly content‑based.[27]
If anything, independent judgment review is
especially appropriate in harassment cases.
"Hostile environment" is an amorphous term. It's at least as vague as "prurient interest" and "patently
offensive" (elements of the obscenity test), and in my view vaguer than
"reckless disregard" (part of the libel test) and "likely to provoke the
average person to retaliation" (part of the fighting words test).[28] There's no longstanding social consensus on
the definition of "hostile environment" or "harassment." The terms have no intuitively obvious
meaning. In fact, there's a vast amount
of disagreement on what's harassment and what's not. Under the theory of Bose,
this is precisely the sort of test that must be clarified through case‑by‑case
appellate adjudication.[29] In fact, such clarification might be
necessary to minimize constitutional vagueness problems.[30]
What grounds could there be for distinguishing
libel, obscenity, and similar speech categories from harassing speech? Obviously the fact that harassing speech is
(arguendo) unprotected can't be the distinction: False statements of fact made with actual malice, fighting words,
incitement, and obscenity are unprotected as well. Independent review is required in such cases precisely to
determine whether or not the speech falls within the unprotected category.
Nor should one's views about the importance of
the state interest make a difference.
Preventing incitement to imminent violence is surely an important
interest, but the Bose rule applies
to incitement cases also.[31] Moreover, Bose review doesn't prevent the interest from being served; it only
requires that appellate courts have the final say.
It also can't matter that the speech in many
harassment cases is supposedly "low‑value" pornography or slurs. The same is true in obscenity and fighting‑words
cases, but Bose made clear that the
independent judgment rule applies there, too.[32]
One could, in the words of my colleague Stephen
Yeazell, view harassment law as part of a "continuing renegotiation of the
social contract between the sexes," a process of social decisionmaking best carried
on by jurors consulting their consciences on an ad hoc basis.[33] But Bose
precludes such a conclusion. The
holding of Bose is precisely that the
definition of speech restrictions shouldn't be left - as is, for instance, the
law of negligence - to the consciences of jurors.[34]
The only reason I can see for not applying Bose would be a judgment that speech on both sides of the line is
unprotected. If even nonharassing
workplace speech - speech that isn't severe or pervasive enough to create a
hostile environment - were unprotected by the Constitution, the
harassment/nonharassment line wouldn't have constitutional significance. If all
bigoted political statements, religious proselytizing, suggestive jokes, or art
containing nudity were unprotected in the workplace, it wouldn't matter for
constitutional purposes whether a particular set of statements was "severe" or
"pervasive" enough to create a "hostile" environment. The finding of a hostile environment might still be wrong, but it
would be wrong only on statutory grounds.[35]
But surely this can't be correct. NLRB
v. Gissel Packing Co.[36]
made clear that workplace speech is generally protected by the Free Speech
Clause (at least so long as the speech doesn't contain a "threat of reprisal or
promise of benefit" by the employer or a union). (Click
here for more details.) 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 it applied only to workplace speech.[37]
Nor can the fact that employees in the workplace
are arguably "captive" - unable to easily escape the offensive speech - lead to
the conclusion that workplace speech is unprotected. The Court has never held that the mere presence of a captive
audience justifies speech restrictions.
People often can't avoid offensive speech. Courthouse employees couldn't easily avoid Cohen's "Fuck the
Draft" jacket.[38] Strikebreakers are captive to picketers who
march around with signs saying "Scab!"; they see the offensive speech every
morning and every evening, and even more often if they have to come and go
during the day, or if their desks face the street.
While the scope of the captive audience doctrine
isn't particularly clear, I'm confident the Court wouldn't conclude that all workplace speech - or even all
bigoted, proselytizing, offensive, or sexually suggestive workplace speech - is
constitutionally unprotected. Certainly
the Court has
never used the captive audience doctrine as support for anything
nearly this broad. And in light of Gissel, it seems clear that workplace
speech is generally protected despite the presence of an arguably captive
audience.
What makes harassment law constitutional under
the Free Speech Clause, if anything does, is that the harassing speech is more
than just offensive or ugly. When
speech is so offensive, so pervasive that it creates a hostile environment, the
government might arguably have a justification for restricting the
speakers. But so long as the speech
doesn't rise to this level - so long as it doesn't actually constitute
harassment - there's no reason why the speech, which is clearly protected
outside the workplace, should become unprotected.[39] And if nonharassing speech is
constitutionally protected, the Bose
principle demands that the line between harassing speech and nonharassing
speech be reviewed independently by appellate courts.
Say a jury finds that the display of a few
Gauguin nudes - recall the Naked Maja
incident described above - constitutes sexual harassment, or perhaps even
religious harassment.[40] I imagine that quite a few jurors don't have
much more sympathy for sexually suggestive "serious art" than they do for
Hustler centerfolds. And say the court
of appeals, applying independent judgment, disagrees with the jury, and
concludes that the speech was not harassment.[41]
Employers throughout the jurisdiction will then
know that "artistic" nude pictures are safe, at least when there are only a
few, and when they aren't combined with other speech or conduct. If in the future an employee complains about
a similar display, the employer will know that it needn't fear liability.
Likewise, say a judge finds that religious
proselytizing - for instance, religious articles in the company newsletter plus
signs that say "There's no salvation except through Jesus" - has created a
hostile environment. The court of
appeals will then reconsider the issue.
If it agrees with the trial judge, employers will know what's forbidden. On the other hand, if the appellate court
concludes there's no harassment, that'll be binding precedent, and employers
will know they can freely say similar things.
Granted, no two fact patterns are identical, and
it's not even always possible to determine whether the speech in one situation
is more or less severe than in another one.
But the data points add up. With
each new binding decision the rule becomes more explicit. That, at least, is the theory the Court
adopted in Bose.
Independent judgment review needn't - and can't -
be a reexamination of all the factual findings involved in the lower court's
decision. The appellate court may, for
instance, defer to the factfinder's judgments about witness credibility.[42] In jury cases, the court will generally have
to assume that the jurors believed the winning side's factual claims. For instance, if what was said is in dispute
- plaintiff asserts that a coworker said something offensive, but the coworker
denies it - and plaintiff wins, the court will have to assume that plaintiff's
story is correct.
But even if this is done, the question will remain: Did all the facts, even if viewed in the
light most favorable to the winner, create an environment that a reasonable
person would find hostile? This is a
decision the appellate court can make at least as well as a jury or a trial
judge.
Some skeptics suggest that in practice any
standard of review doesn't matter much, and that judges will manipulate the
standard to reach the result they want.
I disagree. I'm sure such
manipulation sometimes happens, but in my experience courts generally do take the
standard of review seriously. Courts
certainly say that standards of review matter, and I think it's fair to assume
that standards of review can sometimes, even if not always, make a difference.[43]
Without independent judgment review, individual
cases will give little guidance about what's allowed and what's forbidden.[44] Precedents would only be set when an
appellate court concludes that no reasonable factfinder could find liability.[45] By definition, this will happen only in the
most extreme cases - cases where a court could find that a jury would have to
be, in one judge's words, "drunk or crazy" to conclude that the speech created
a hostile environment.[46] That's a tough standard to meet.
In my view, the Bose Court, quoting Professor Leon Green, got it right:
[T]he judge has [a] distinct function . . . which though not frequently called into play, is of the utmost importance. It involves the determination of the scope of the general formula, or some one of its elements. . . . It requires the judge to say what sort of conduct can be considered as condemned under the rules . . . . It is the function through which the formulas and rules themselves were evolved, through which their integrity is maintained and their availability determined.[47]
Bose did leave a significant question
unresolved: Is independent judgment
review proper if the defendant, who's making the free speech claim, wins at
trial? The lower courts are split on
this.
Some courts stress that independent judgment review
is meant to let appellate courts develop and refine the constitutional
rules. This development would happen
regardless of which party won below, so under this approach independent
judgment review should be applied symmetrically.[48]
But other courts stress a different basis for the
Bose holding: that appellate review is necessary to
decrease the chances that constitutionally protected speech would be
erroneously punished. Under this view,
when the free speech claimant wins below, there's no risk that the factfinder
has erroneously abridged a constitutional right - at worst, it has erroneously
failed to vindicate a statutory right.[49] Moreover, these courts say, courts can't
adopt independent judgment review just for prudential reasons. Under Federal Rule of Civil Procedure 52(a),
appellate courts must review factual
findings for clear error, unless the Constitution commands otherwise.[50] The same is true for jury trials, under the
Seventh Amendment.[51]
In my view, independent judgment review of the
hostile environment question is generally both valuable and permissible under
Rule 52(a) and the Seventh Amendment, whether or not the free speech claimant
lost at trial. In either situation,
appellate independent judgment should generally produce more refinement of the
hostile environment standard. And, as
I've argued above, judicial elaboration of the standard is very much needed.
Moreover, a symmetric rule is fairer to
plaintiffs. Harassment plaintiffs'
claims aren't of constitutional magnitude, but they're certainly
important. I see no policy reason to
treat these plaintiffs worse than defendants, assuming Bose's requirements are satisfied.
For review of bench trials, the symmetric
approach can be used whether or not one concludes that Bose requires it as a constitutional matter. The hostile environment question is a
question of application of law to fact - also known as a mixed question of law
and fact - and most circuits hold that such questions may be reviewed de novo
without running afoul of Rule 52(a).[52] The Ninth Circuit and, on one occasion, the
Fifth Circuit have in fact treated hostile environment findings this way.[53] And the rationale for reviewing mixed
questions de novo - that questions which involve "strik[ing] a balance between
two sometimes conflicting societal values" and which are therefore "of clear
precedential importance"[54]
should be decided by appellate courts - is eminently applicable to the hostile
environment context.
On the other hand, I don't think that independent
judgment can work, regardless of how one reads Bose, when the court is reviewing a jury's general verdict for a
defendant. Harassment claims involve
many subsidiary factual inquiries. The
jury must find both that the environment was objectively hostile, and that the
plaintiff perceived the environment as hostile.[55] In most cases, there's also some dispute
over what was said, over whether the employer knew or should have known about
the misconduct, over what steps the employer took to try to remedy it, and so
on.
When the defendant wins, it might be because (1)
the jury concluded the environment wasn't objectively hostile, (2) the jury
believed the defendant's factual story, or (3) the jury didn't think the
plaintiff subjectively found the environment to be hostile. The court of appeals has no way of knowing
the real reason. Even if it thinks the
environment was objectively hostile, it can't reverse, because the jury might
have held for defendant on one of the other grounds.
Review of special verdicts, however, is possible. In particular, the Seventh Amendment, which
bars only reexamination of "fact[s] tried by a jury,"[56]
probably doesn't prevent appellate courts from reviewing the conclusion that no
hostile environment was created, which is a question of the application of law
to fact.[57]
Defense lawyers in workplace harassment cases
almost never raise a Free Speech Clause defense.[58] This has always been a mystery to me,
because raising the defense seems like a fairly low‑cost proposition, and
because I think the defense will sometimes be a winner.[59]
Perhaps, though, I'm wrong on the latter
point. Perhaps lawyers correctly
predict that courts will be unwilling to extend constitutional protection to
speech that causes a hostile environment.
But even if the Free Speech Clause isn't substantively relevant in
harassment cases, it is procedurally relevant.
Defense lawyers in harassment cases involving speech must begin to raise a free speech
defense because such a defense will trigger independent judgment review, and
thus give the defendant a second chance on appeal.[60]
If no free speech defense is raised at trial and
the employer loses, the appellate court might find that any right to
independent judgment review was waived and might therefore review the
harassment finding with great deference.
But if the defendant had made a free speech defense - even if the
defense was just "there's no hostile environment, so imposing liability would
violate the Free Speech Clause"[61]
- the court of appeals can draw its own conclusions about whether the speech
actually created a hostile environment.
This obviously won't guarantee a victory, but it will give the defendant
another shot.
To summarize:
1.
When a factfinder
concludes that speech has created a hostile environment, appellate courts must
independently review this conclusion.
Though most circuits don't do this now (and no circuit does this for
jury trials), it's constitutionally required.[62]
2.
Such review might
also be required if a trial judge, or a jury that returned a special verdict,
concludes that a hostile environment has not been created.
3.
The only way to
avoid the conclusion in point 1 is to argue that even nonharassing workplace speech is constitutionally unprotected, a
position that's hard to defend.
4.
Lawyers must start
making free speech defenses in harassment cases, even if they think that as a
substantive matter harassing speech will probably be held to be unprotected.
This thesis is simple, and so is its proof. Still, I've found no articles or cases that
even allude to it. And though it would
be in many lawyers' interest to make this argument, they aren't making it.
This thesis also raises one other, broader point: even if harassing speech is constitutionally unprotected, the Free Speech Clause still matters in harassment cases. So far, the judicial and scholarly debate has been about the substantive rule: is harassment law constitutional? But free speech jurisprudence is also full of procedural rules.[63] For instance, sometimes the question whether speech is unprotected - for instance, whether it's libelous and possibly whether it's obscene - must be decided by clear and convincing evidence.[64] Likewise, in at least some situations punitive damages are barred even when compensatory damages are allowed.[65] Should these rules be applied to workplace harassment cases, or at least to some workplace harassment cases? To my knowledge, no one has ever addressed this question.
[1]See Harris v. Forklift Sys., Inc., 114 S. Ct. 367,
370 (1993). The other categories
include at least age and disability, Eggleston v. South Bend Community Sch.
Corp., 858 F. Supp. 841, 847-48 (N.D. Ind. 1994), and, in some states, sexual
orientation, e.g., Leibert v.
Transworld Sys., Inc., 39 Cal. Rptr. 2d 65, 67 (Cal. Ct. App. 1995).
I discuss here only hostile environment
harassment; I don't purport to deal with quid pro quo sexual harassment, in
which a supervisor demands sex in exchange for favorable treatment.
[2]See,
e.g., Craig v. Y & Y Snacks,
Inc., 721 F.2d 77, 79 (3d Cir. 1983); Spicer v. Virginia, 44 F.3d 218, 224, rev'd on other grounds, 66 F.3d 705 (4th
Cir. 1995); Cortes v. Maxus Exploration Co., 977 F.2d 195, 198 (5th Cir. 1992);
Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993);
Ways v. City of Lincoln, 871 F.2d 750, 754 (8th Cir. 1989); Sauers v. Salt Lake
County, 1 F.3d 1122, 1126 (10th Cir. 1993); EEOC v. Beverage Canners, Inc., 897
F.2d 1067, 1070 (11th Cir. 1990). But see Collins v. Baptist Memorial
Geriatric Ctr., 937 F.2d 190, 195 (5th Cir. 1991) (de novo review,
intra-circuit conflict with Cortes);
EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989) (de novo review).
[3]See,
e.g., MacArthur v. University of
Tex. Health Ctr., 45 F.3d 890, 896 (5th Cir. 1995); Baskerville v. Culligan
Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995); Ingram v. Acands, Inc., 977 F.2d
1332, 1340 (9th Cir. 1992); Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir.
1993); Therma-Tru Corp. v. Peachtree Doors Inc., 44 F.3d 988, 991 (Fed. Cir.
1995); Meyers v. Chapman Printing Co., 840 S.W.2d 814, 822-23 (Ky. 1992).
[4]See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 250-51, 252 (1986).
[5]466 U.S. 485 (1984).
[6]Most harassment cases are brought under Title
VII, 42 U.S.C. § 2000e (1988); some are also brought under 42 U.S.C. § 1981
(1988), 42 U.S.C. § 1983 (1988), the Age Discrimination in Employment Act, 29
U.S.C. §§ 621-634 (1988), the Americans With Disabilities Act, 42 U.S.C. §§
12101-12213 (1994), and various state antidiscrimination laws. I use "harassment law" to refer to the
harassment prohibitions embodied in all these statutes; the standards for
liability under all of them are similar.
(Click here
for more details.)
[7]See Gooding v. Wilson, 405 U.S. 518 (1972).
[8]Of course, if at least some harassing speech is
substantively protected, my main thesis - that appellate courts must apply
independent judgment in reviewing findings of harassment - remains valid a
fortiori.
[9]See Henry P. Monaghan, First Amendment "Due Process," 83 Harv. L. Rev. 518 (1970).
[10]See,
e.g., Robinson v. Jacksonville
Shipyards, Inc., 760 F. Supp. 1486, 1535 (M.D. Fla. 1991); click here for references to
commentators.
Some courts and commentators have suggested that
harassment law doesn't even implicate the Free Speech Clause because no state
action is involved. If speech is
restricted, they argue, it's restricted by the private employer (albeit in
response to the risk of liability), and not by the government. For a rebuttal to this, click here.
[11]Curtis Butts Publishing Co. v. Associated Press,
388 U.S. 130, 155 (1967); New York Times Co. v. Sullivan, 367 U.S. 254, 279-80
(1964).
[12]Bose Corp. v. Consumers Union, 466 U.S. 485, 505
(1984). Professor Henry Monaghan
describes this quote and the text quoted infra at note 40 as the "core of the [Bose] opinion." Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 243 (1985).
[13]Bose, 466 U.S. at 502.
[14]Id.
[15]Id. at 511.
[16]Id. at 505; see
also Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685-86
(1989) (following Bose).
[17]Bose, 466 U.S. at 503.
[18]Id. at 504-08 (citing Supreme Court cases that apply
this rule to fighting words, incitement, obscenity, and child pornography); see also Hurley v. Irish-American Gay,
Lesbian & Bisexual Group, 115 S. Ct. 2338, 2344 (1995) (applying Bose to the question whether conduct was
expressive); Miller v. Fenton, 474 U.S. 104, 114 (1985) (applying Bose by analogy in the Due Process
Clause context to the question whether confession was voluntary); Murphy v.
I.S.K.Con., 571 N.E.2d 340, 345 (Mass. 1991) (reading Bose as applicable to Free Exercise Clause issues).
Likewise, in Thompson v. Keohane, 116 S. Ct. 457
(1995), the Court held that independent review was appropriate when determining
on habeas corpus whether a defendant was in custody for Miranda purposes. The Court
based its decision partly on the grounds that "[t]he law declaration aspect of
independent review potentially may guide [government decisionmakers], unify
precedent, and stabilize the law." Id. at 467 (citing Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.
Rev. 229, 243, 273-76 (1985), for the proposition that "norm elaboration occurs
best when the Court has power to consider fully a series of closely related
situations").
[19]E.g., Luke Records, Inc. v. Navarro, 960 F.2d 134, 138
(11th Cir. 1992).
[20]E.g., Herceg v. Hustler Magazine, Inc., 814 F.2d 1017,
1021 (5th Cir. 1987); Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067,
1071 (Mass. 1989).
[21]Braun v. Soldier of Fortune Magazine, Inc., 968
F.2d 1110, 1120-21 (11th Cir. 1992).
[22]Standing Comm. on Discipline v. Yagman, 55 F.3d
1430, 1443 (9th Cir. 1995).
[23]E.g., Swineford v. Snyder County, 15 F.3d 1258, 1265
(3d Cir. 1994); Mekss v. Wyoming Girls' Sch., 813 P.2d 185, 194 (Wyo. 1991); see also Rankin v. McPherson, 483 U.S.
378, 385-87 nn.8-9 (1987) (arguably dictum).
[24]E.g., AIDS Action Comm. v. Massachusetts Bay Transp.
Auth., 42 F.3d 1, 6-7 (1st Cir. 1994); see
also Brown v. Palmer, 915 F.2d 1435, 1441 (10th Cir. 1990) (independently
reviewing factual findings underlying the determination of whether a forum is
public), aff'd, 944 F.2d 732 (10th
Cir. 1991) (en banc).
[25]E.g., Peel v. Attorney Registration and Disciplinary
Comm'n, 496 U.S. 91, 108 (1990) (plurality); id. at 111-17 (Marshall, J., concurring) (engaging in independent
review, but not citing Bose
directly); Joe Conte Toyota, Inc. v. Louisiana Motor Vehicle Comm'n, 24 F.3d
754, 755-56 (5th Cir. 1994); Don's Porta Signs, Inc. v. City of Clearwater, 829
F.2d 1051, 1053-54 & n.9 (11th Cir. 1987).
Some cases reviewing federal administrative
agency findings don't appear to follow Bose. There are two such cases that involve review
of FTC findings that ads are false or misleading, and a line of cases
(including a Supreme Court case) that involve review of NLRB findings that
unionization-related speech by an employer or a union was impermissibly
coercive. Both lines are grounded on a
deference-to-expert-agencies rationale.
The FTC cases are Kraft, Inc. v. FTC, 970 F.2d
311, 316-17 (7th Cir. 1992), and FTC v. Brown & Williamson Tobacco Corp.,
778 F.2d 35, 41 n.3 (D.C. Cir. 1985).
(Both cases also argued that Bose
was inapplicable to commercial speech, but that seems to be in considerable
tension with the Supreme Court's position in Peel, as well as the circuit decisions in Joe Conte Toyota and Don's
Porta Signs.) cf. Martin H. Redish, Product
Health Claims and the First Amendment, 43 Vand. L. Rev. 1433, 1459-60 &
n.144 (1990) (criticizing Brown &
Williamson on Bose grounds). The NLRB cases follow NLRB v. Gissel Packing
Co., 395 U.S. 575, 620 (1969), which held that "a reviewing court must
recognize the Board's competence in the first instance to judge the impact of
utterances made in the context of the employer-employee relationship." Since Gissel,
lower courts have not applied independent judgment in this area but have
instead reviewed NLRB findings for "substantial evidence." See,
e.g., DTR Indus., Inc. v. NLRB, 39 F.3d 106, 114 (6th Cir. 1994).
Gissel came long before Bose, and no court has confronted the tension between them, though
distinguished commentators have pointed to the discrepancy. Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III,
101 Harv. L. Rev. 915, 976, 990 (1988); Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 244 & n.84,
258 (1985). In any event, to my
knowledge no court or commentator has suggested that substantial evidence
review be transplanted from the expert agency setting to the review of findings
made by judges and juries, where Bose
is firmly entrenched.
The only non-agency case I could find that declined to follow