Watch What You Say, or Be Ready to Pay

On Law

Jewish World Review / April 13, 2000 /9 Nissan, 5760

Watch What You Say,
or Be Ready to Pay

By Eugene Volokh -- TOM ENGLISH, a Boston bar owner, has (some say) engaged in illegal speech: He put up a supposedly racist African-themed display allegedly mocking Black History month and Martin Luther King, Jr.'s birthday. Actually, there's a hot controversy about what the display meant, but for now let's assume the worst -- assume English wants to express racist opinions.

You'd think the First Amendment protects his right to do that. In America, we're free to express all sorts of opinions, good, bad, and ugly. Some people may be offended, and quite rightly so. But the government has no business outlawing such expression.

As it happens, though, many government bodies think outlawing offensive speech is indeed their business. The Massachusetts Commission Against Discrimination, for instance, thinks it's illegal for businesses to say things that "ridicule or create a racial stereotype and make certain people feel unwelcome" and thus create a "hostile public accommodations environment." As I write this, the Commission is considering whether English in fact did this, and should therefore be punished.

As with many censorship campaigns, the attempt to outlaw speech that creates a "hostile environment" began from an appealing premise: Employees (it started with employees) should be free of sexual extortion, physical attacks, threats of violence, and face-to-face insults at work. And at first, this didn't even involve censorship, since most such behavior is either not speech or falls within one of the narrow exceptions to First Amendment protection.

But the law was unfortunately not limited to such egregious conduct. Rather, it was formulated as a rule that employers must suppress conduct or speech that's "severe or pervasive" enough to create a "hostile work environment" based on race, religion, sex, national origin, and the like for a "reasonable person."

With broad, vague language like that, it was inevitable that the law would spread to cover more and more speech -- and it has. Thus, the federal Equal Employment Opportunity Commission sued one employer for, among other things, tolerating "ebonics jokes" e-mailed around by its employees: The employer, the EEOC argued, had a legal duty to "eradicate" such forbidden speech.

Another employer was found liable for putting Bible verses on its paychecks and Christian-themed articles in its newsletter and thereby creating a "hostile environment" for a non-Christian employee. A federal court has enjoined one company's employees from making remarks "contrary to your fellow employees' religious beliefs." Another court has enjoined "all offensive speech implicating considerations of race."

Likewise, courts and administrative agencies have held employers liable for tolerating sexually suggestive jokes (even ones that refer equally to men and women). In 1998, many employment experts in fact cautioned employers that allowing Clinton/Lewinsky jokes could lead to lawsuits. One headline in a prominent business newspaper has put the current state of the law well -- "Watch What You Say, or Be Ready to Pay."

From hostile work environment law, the speech restriction campaign spread to "hostile educational environment" law. The U.S. Department of Education, for instance, has found that a college was legally required to censor sexist criticisms of student activists on its online bulletin boards. It then forced the college to adopt a speech code banning, among other things, speech that "denigrates or shows hostility or aversion" toward various groups, or involves "negative stereotyping." The First Amendment? Not a problem, the feds said, where the cause of fighting "hostile environments" is involved.

From there it was a short step to outlawing "hostile public accommodations environments." The government has gotten used to ordering speech codes in private workplaces. It thinks it's fine to order speech codes in universities. Next step: Government-imposed speech codes for bars.

Or country clubs. A few months ago, a Maryland county commissioner concluded that such a club had to create a speech code for its members, and to take down a supposedly sexually offensive print hanging in its clubhouse; that case is now on appeal. Or Internet service providers. Late last year, a Vermont agency held that a service provider's failure to stop sexually offensive speech could create an illegal "hostile public accommodation environment" for a subscriber -- the provider there (a small college) decided to settle rather than appeal.

Such is the path of censorship crusades -- the slippery slope is a real risk, in a legal system based on analogy and precedent. Fortunately, some courts and administrative agencies have begun to see the danger here, but too many have not. Which is why instead of "no law abridging the freedom of speech" we now have "Watch What You Say, or Be Ready to Pay."

JWR contributor Eugene Volokh is a professor of law at UCLA, a National Press Club First Amendment Fellow, editor of Center-Right, and the author of the Freedom of Speech vs. Workplace Harassment site. Comment by clicking here.


©2000, Eugene Volokh