by Prof.
Eugene Volokh, UCLA School of Law
Many
people don’t much mind workplace harassment law because they see it as confined
to traditional workplaces — shipyards, clerical offices, and the like. As I argue elsewhere, speech in those workplaces
still deserves protection from government censorship, but many people just can’t
get excited about it.
But
in any case, harassment law is not so
neatly limited: It potentially
restricts speech in universities, public buildings, parks, restaurants, and
even online service providers such as America Online. The slippery slope is not just a hypothetical danger here —
harassment law is already leading to speech restrictions in places where speech
has always been assumed to be free.
To
begin with, every place is someone’s workplace: universities, public buildings,
libraries, parks, and bookstores all have employees working there. Harassment law restricts speech in these
workplaces, too. Click here
for a more detailed discussion.
It’s
well-established that harassment law requires employers to shield their workers
from offensive speech by patrons as
well as by coworkers. This means that
harassment law can silence us even when we’re saying religious jokes to our
friends in a restaurant, or looking at possibly offensive material at a
computer in a library. Various public
libraries have already begun to restrict Internet access by patrons based
partly on concerns about harassment liability.
Click
here for a more detailed discussion.
If
employees can be harassed by their employers’ offensive speech, or their coworkers’
offensive speech, they can also be harassed by the speech that their employers
— bookstores, convenience stores, print shops — publish and distribute. Click here
for a more detailed discussion.
Workplace
harassment law is already being extended by analogy to restrict speech by
university students. The new batch of
university speech codes is being copied from harassment law, and their
defenders are explicitly using workplace harassment law as an analogy. The U.S. Department of Education Office for
Civil Rights has explicitly taken the view that the First Amendment may be
trumped by civil rights laws, consciously citing workplace harassment law as a
precedent. Click here
for a more detailed discussion.
Finally,
the logic of workplace harassment law is being extended to all places of public accommodation — restaurants, stores, and even
online services such as America Online.
If bigoted speech by coworkers in the workplace can equal employment
discrimination and thus be illegal, then bigoted speech by fellow patrons in
places of public accommodation can also equal discrimination and thus be
illegal. Courts are already using this
logic. Click here for a more detailed
discussion.
The
concept of a “slippery slope” may seem hackneyed, but it reflects a basic truth
about our legal system. New exceptions
to constitutional protection become precedent for still more exceptions. Thanks to many people’s unreflective
acceptance of harassment law, we’ve already slipped a good distance down the
slippery slope, and we’re risking slipping further. (Click here for a more detailed discussion.)
It’s
time we recognized how broad a restriction harassment law is, and confronted
the very serious free speech problems that it poses.