In any event, the case that the court relied on had held that a disturbing-the-peace ordinance was not overbroad because it required that the defendant had not acted as a reasonable person. Hand-Slapping Opinion Issued in Sexual Harassment Case: Burns v. City of Detroit Update

Many avid court-watchers take pleasure in reading the frequent hand-slapping opinions of the U.S. Supreme Court and state supreme courts as they issue decisions on appeal from lower courts. Much like a parent-child disciplinary situation, it is not often, if ever, that the reverse occurs, with a lower court slapping the hand of a higher court. But that’s what appears to have happened recently in a decision of a panel of the Michigan Court of Appeals.

Last week, in Burns v. City of Detroit, a case in which the Center filed an amicus brief, the appellate court concluded that comments made by the defendants did not constitute protected speech and that the imposition of liability did not raise concerns of vagueness and overbreadth. Rejecting the Center’s argument as amicus curiae that Michigan’s sexual harassment statute constitutes an unconstitutional restriction of workplace speech, the Michigan Court of Appeals once again affirmed a jury verdict in the case.

In its opinion, the court criticized the Michigan Supreme Court for raising the constitutional issues on remand. Although it acknowledged the Supreme Court’s authority to raise an issue on remand sua sponte, the court stated that “we believe that invoking this constitutional issue to benefit a party who failed to raise the issue would be entirely inappropriate.”

In its original appeal, the City of Detroit had not raised the First Amendment issue, and the Court of Appeals held that the City was liable for sexual harassment. The City then applied to the Michigan Supreme Court for leave to appeal.

In lieu of granting the application, the Supreme Court, on its own motion, directed the Court of Appeals to receive supplemental briefs addressing the question whether the speech at issue in the case was “protected speech” under the First Amendment and whether the state harassment law was a vague and overbroad restriction of speech. The Supreme Court retained jurisdiction of the case and indicated that it would set a further briefing schedule for the parties after receipt of the opinion of the Court of Appeals.

In its opinion on remand, the Court of Appeals ruled that the speech at issue was unprotected under the “fighting words” doctrine of Chaplinksy v. New Hampshire, 315 U.S. 568 (1942) and referring to dictum in another case. The court did not actually hold that the speech constituted fighting words, however, stating only that the comments were “more akin” to fighting words than they were to being an “essential part of any exposition of ideas.” Nor did the court explain how the Michigan statute, which (unlike Title VII) prohibits “verbal or physical conduct or communication,” can be said to sweep up speech only incidentally.

The court also rejected arguments that the statue is vague and overbroad, ruling that the statute was not vague, as applied, because the statute unambiguously prohibited the speech at issue. The statute was not overbroad, it reasoned (somewhat incomprehensibly, in the Center’s view), because the statute prohibits “unwelcome sexual . . . communication . . . that created an . . . offensive work environment.” (Emphasis added by court). The court further noted that incorporation of a “reasonable person” standard “helps to avoid the danger of substantial overbreadth.”

With all due respect to the court, a “reasonable person” standard does not go far toward curing overbreadth. Surely, a statute that prohibited all speech that “a reasonable person would find offensive” would fall before an overbreadth challenge.

In any event, the case that the court relied on had held that a disturbing-the-peace ordinance was not overbroad because it required that the defendant had not acted as a reasonable person. The sexual harassment statute, in contrast, focuses not on whether the defendant’s conduct was unreasonable but whether the plaintiff’s reaction was.

Unfortunately, the court did not address the Center’s principal overbreadth argument, which is that the statute forces employers to engage in wide-ranging censorship of their employees.

Because the Michigan Supreme Court retained jurisdiction over the case, the Center is hopeful that it will soon announce a briefing schedule and that it will overturn the decision of the Court of Appeals.

To read the Center’s brief, click here.

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