Law Chills Free Speech
Michigan Court of Appeals recently heard arguments to determine
whether Michigan's sexual harassment law violates the First Amendment.
The law fails the constitutional test in a number of respects.
plaintiff in Burns v. City of Detroit alleged that her co-workers
subjected her to a barrage of insulting and vulgar speech. She introduced
a litany of statements that she claimed created a hostile work environment.
A jury returned a verdict against the city (read taxpayers) in excess
of $1 million.
sexual harassment statute prohibits "verbal or physical conduct
or communication of a sexual nature" when it has the "purpose or
effect" of "creating an intimidating, hostile or offensive" environment.
Whether a hostile environment exists is judged under a "totality
of the circumstances" standard, and the plaintiff's perception that
the environment was hostile must be reasonable. The employer is
liable for the hostile environment if it knew or should have known
about it but failed to take adequate remedial steps.
law, which is directed at speech, fails the rigorous standards that
the U.S. Supreme Court has established for governmental regulation
all speech is protected by the First Amendment. Threats of violence
and "fighting words" that are likely to breach the peace are both
largely unprotected. Some of the speech that Burns complained of
arguably fell within these categories, but some of it did not. And
the jury was not instructed that it could impose liability based
only on constitutionally unprotected speech.
Supreme Court precedent, however, a judgment that is based upon
a mixture of protected and unprotected speech violates the First
scrutiny is at its highest when the government restricts speech
based upon the viewpoint expressed, which is precisely what the
harassment law does. Progressive statements about women are fine;
Neanderthal statements are not. Statements praising women as a group
raise no issue; statements critical of women do.
the U.S. Court of Appeals for the 6th Circuit, which covers Michigan,
has said, harassment law requires "that an employer take prompt
action to prevent ... bigots from expressing their opinions in a
way that abuses or offends their co-workers." This is classic viewpoint
regulation, which is almost always impermissible.
First Amendment doctrine tries to eliminate "chilling effects" on
speech. One of the core requirements is that statutes regulating
speech provide reasonably clear notice of what is prohibited, so
speakers do not avoid even constitutionally protected speech for
fear of being sued. The Michigan statute gives very little notice
about what is prohibited.
vagueness can be avoided or at least reduced by including a requirement
that the speaker possess a blameworthy mental state. Thus, the Michigan
anti-stalking statute was upheld against a vagueness challenge,
in part because it required "willful" conduct by the defendant.
Although the harassment statute requires that the plaintiff's reaction
to the speech be reasonable to prevail, it does not require that
the speaker even be negligent, let alone act willfully.
vagueness of the harassment statute is made worse by the "totality
of the circumstances" standard. A hostile environment can be created
by a collection of different speech by different speakers even though
no single statement by itself would violate the law.
cannot know, therefore, whether a hostile environment exists without
knowing the entire array of speech that will be challenged. Speakers
are supposed to be given an advance warning of what can be said
and what cannot, but the hostile environment standard is always
assessed after the fact.
"totality of the circumstances" test is also too broad -- it effectively
chills or prohibits a substantial amount of constitutionally protected
speech along with unprotected speech. According to the Supreme Court,
"The possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that protected
speech of others may be muted." Harassment law has taken just the
opposite approach, chilling protected speech so some unprotected
speech might be prevented.
result is that even though no individual joke, picture or comment
is likely to be judged as harassing, all such jokes, pictures and
comments are still suppressed by the Michigan law because they can
all be added together and considered harassment. A single statement
that women should be "barefoot and pregnant" would not be harassing,
but it could be, and often has been, added into the mix of speech
that a plaintiff challenges.
lawyer representing employers will tell you that the standard advice
to employers is "when in doubt, cut it out," as anyone who has suffered
through sexual harassment training at work knows. Zero tolerance
may be a good idea under the harassment statute, but it is the kind
of good idea that the First Amendment was designed to counter.
is not to minimize the harms that sometimes may flow from some workplace
speech. But the First Amendment places limits on how government
may respond to disfavored speech. One of those restraints is that
it may not use a blunderbuss to suppress unprotected and protected
speech alike. But that is precisely what the government has done
with harassment law, which makes it unconstitutional.
Browne is a law professor at Wayne State University Law School in
Detroit. He represented the Center for Individual Freedom before
the Court of Appeals in the Burns case and is author of "Biology
at Work: Rethinking Sexual Equality."
article originally appeared in The Detroit News on July,
download a copy of the Centers amicus brief in Burns
v. City of Detroit, click
July 11, 2002]
to Current Events Index