Watch Your Tongue:
Harassment Law vs. the First Amendment

By Barbara Tomovick

Chances are, you have an opinion about Paula Jones’ sexual harassment lawsuit against President Bill Clinton. But talk about the case in the wrong place, says one legal expert, and somebody could get sued.

Harassment law has become so broad that it is treading on the toes of the First Amendment – and that’s unconstitutional, says Eugene Volokh, a law professor and expert in constitutional and harassment law at the University of California, Los Angeles.

"It has really become a nationwide speech code, not just a conduct code, … restricting speech that otherwise quite clearly the government may not punish," Volokh said in an interview with The Frankenfeld Report.

For example, he said, "Some employment experts are saying that you as an employer should stop your employees from talking about the Clinton-Jones-Lewinsky thing because by talking about such sexually charged matters around the workplace you could be creating a hostile environment. That, I think, is a very troubling thing and I think a very interesting area."

So interesting, in fact, that Volokh has devoted an entire website to the matter. See http://www.law.ucla.edu/faculty/volokh/harass.

Indeed, anticipation of workplace harassment complaints has practically given rise to a new industry. A simple Internet search turns up any number of firms offering harassment-prevention training for employers, who have reason to be concerned about lawsuits.

In Dernovich v. City of Great Falls, for example, a woman was awarded damages when the Montana Human Rights Commission found that off-color jokes and cartoons circulated around the office by both men and women created a hostile work environment. In addition, the city was ordered to prevent sexual harassment of employees and evaluate department heads’ performance each year based on "the quality and success of their efforts to implement and enforce the antidiscrimination policies."

Yet as Volokh points out, liability might not stop at what employees say, do or e-mail to each other. Stretched to its limits, the argument that every place is a workplace means restaurant patrons, for instance, could be barred from joking with each other if restaurant employees found the jokes offensive.

Fear of having to pay for what you say has extended well beyond the workplace, however. A 1995 study by the First Amendment Center, War of Words, found that even at public colleges and universities – traditionally bastions of free speech – anti-harassment codes can have a chilling effect on free expression. (See http://www.fac.org/publicat/warwords/toc.htm)

Under harassment law, it’s no longer enough to refrain from threats and coercion. At stake, according to Volokh, are political statements, religious proselytizing, art and humor – areas he says are "at the core of the First Amendment’s protections."

"The growth of harassment law means that this is getting (to be) a more and more litigious matter and a matter in which people get more and more scared about what they say," said Volokh.

Fortunately, he said, courts are beginning to notice, and he hopes that will make it harder to punish people for protected speech.

Volokh credits harassment law for helping to protect people against quid pro quo harassment (what he calls "sexual extortion"), physical abuse such as groping, and insults. But, he said, it shouldn’t interfere with people’s ability to talk to willing listeners because one person objects. His solution is to allow restrictions on conduct and unwanted one-to-one speech but nothing more.

"I’m all in favor of being polite," said Volokh. "But in America, it seems to me, it shouldn’t be the government that forces us to be polite."

Contact Eugene Volokh at Volokh@mail.law.ucla.edu.

Figuring damages

When it comes to emotional distress it’s up to a jury to put a monetary value on the plaintiff’s suffering. "It’s whatever the jury feels is needed to compensate the plaintiff," Volokh said.