Do Sexual Harassment Laws Violate the First Amendment

Sexual Harassment and Freedom of Speech

The freedom of speech is considered, by many, to be the most fundamental freedoms. Without free speech it is impossible to transmit ideas, to learn, to educate. In fact, in many ways speech that is regulated impairs the functioning of a democracy by impairing the open exchange of ideas. However, the fact that speech has so much power means that speech can also be dangerous. Free speech can threaten some of the fundamentals of democracy. This is most particularly true when one examines speech in the context of how that speech impacts minority groups or groups that have traditionally been disadvantaged. After all, speech is a powerful tool for propaganda and there is no doubt that free speech has historically been used to encourage discrimination. However, the reality is that free speech has also been a powerful tool in discouraging discrimination. Without the protected right to free speech and the affiliated rights such as freedom of assembly, there could have been no civil rights movement because dissenting speech would have been quashed. This places society in a quandary; how can it protect the right to free speech while ensuring the right to be free from discrimination and harassment? Unfortunately, there is no simple answer to that question.

In order to understand why the issue is so complex, it is important to consider what type of speech has generally been given full protections under the First Amendment. First, many people misunderstand what the concept of free speech means. They believe that it means that there can be no punishments for speech that is offensive. For example, when a public figure says something offensive and the response is to call for a boycott of that person's employer or sponsor until the person is fired, many people claim that the freedom of speech is threatened. However, freedom of speech does nothing to protect someone from the private or social consequences that necessarily arise from engaging in speech that people find offensive. Instead, freedom of speech is specifically targeted at preventing the government from prohibiting or punishing certain types of speech.

Moreover, freedom of speech prohibitions are more nuanced than many believe. There are many types of speech that are prohibited and, if those prohibitions are violated, can result in punishments, including criminal punishments. The most notorious example of such speech is someone yelling "fire" in a crowded theater, because of the potential for harm to the occupants. In fact, any speech reasonably calculated to be the cause of immediate harm to the members of the audience can be prohibited. Furthermore, threatening language can be criminalized under the rubric of terroristic threats, but the threat has to meet certain standards to be criminal behavior. The threat must be specific and the person issuing the threat must be in the position of carrying out the threat. The government may also place reasonable time and manner restrictions on speech, as well as prohibitions as to how loud speech may be. As long as these prohibitions and conditions are enforced with all groups, they are permissible.

However, there are two types of speech that have traditionally been given extra protection under the First Amendment: political speech and religious speech. That is because the First Amendment directly speaks to the freedom of religion and has been interpreted as having been drafted in order to ensure political freedom. In modern American society, much political and religious debate focuses on the appropriate role of women in society. There is an inordinate amount of debate about whether women should have access to birth control, the ability to seek abortions, the right to work for the same wage as men, the right to work as primary breadwinners for their families, the right to be single parents, and the right to engage in sexual activity outside of marriage. Although many of these questions are considered well-settled by most of society, they are hotly debated in some circles. Moreover, there are religious reasons that people argue against many of these freedoms, making the debate touch on the freedom of religious speech. Even if religion is not mentioned, because these issues are ones currently being debated in state and federal legislatures, it is impossible to ignore that they touch upon political questions. As a result, one would anticipate that any efforts to hamper speech discussing the appropriate role of women in society would be seen as hampering religious and/or political speech.

However, it also seems to be a basic affront to the notion of equality to suggest that women should have to endure sexually harassing behavior in order to be in the workplace. Speech is, almost without fail, a component of sexual harassment claims. Those who engage in sexually harassing behavior use speech to convey their messages. Sometimes these messages are overt demands that establish cases of quid pro quo sexual harassment. Other times, the speech or symbolic speech is less overt, but, instead, may feature things like provocative pictures of women displayed in the work place.

This overtly sexual speech in the context of sexual harassment cases has not become a significant First Amendment issue is not a surprise. Not only have claimants been reluctant to suggest that such speech has First Amendment protections, but also the courts have dismissed those claims that the speech has been protected (Gerard, 1992-1993). There has been almost no consideration of the fact that any law regulating speech almost certainly has First Amendment implications. This is not a surprise because obscenity and sexually-oriented materials have never received the same degree of protection as other forms of speech.

However, it is possible that the modern political and religious environment might be changing the nature of sexual harassment in the workplace. It has never been necessary to prove quid-pro-quo sexual harassment in order for a claimant to prevail in a sexual harassment claim. On the contrary, all that has been necessary is for the claimant to demonstrate a hostile work environment. Surely a work environment where people are telling a woman that she should be home raising babies instead of in the workplace is as hostile as one where a woman is subjected to lewd photographs or jokes. However, if those statements reflect the religious beliefs of the speaker, should the government be allowed to prohibit and punish them through Title VII of the Civil Rights Act of 1964? The answer is a conditional yes. The government has always been permitted to restrict the rights in the Bill of Rights if it can demonstrate a compelling government interest. Sexual harassment impacts not only its victims, but also the workplace, so that the government has a compelling interest in eliminating it, which justifies the First Amendment restrictions (Kent, 1994).

What the discussion of this position makes clear is that Bowie's assertion that basic ethical principles do not vary among cultures takes an oversimplified view of ethics. It does appear that basic ethical guidelines are the same in many cultures: almost all cultures prohibit murder, theft, some forms of sexual assault, and even less criminal forms of wrongdoing such as lying and adultery. However, how these terms are defined vary wildly by culture. Moreover, these cultural impacts on ethical guidelines can have a strong impact on what is perceived as justice by that culture (Shao et al., 2013). Viewed within the context of the United States, where so many people from different cultural and religious backgrounds interact on a daily basis, one would expect to find this conflict in the ideation of what justice means. Some are going to feel that justice in the workplace means that people can work without fear of harassment. Others are going to feel that depriving them of the opportunity to engage in behavior that is considered sexual harassment denies them of justice because it infringes on their rights. It seems that the most logical conclusion is to view rights as ending when they impact the ability of others to enjoy their freedoms. People who believe in the inferiority of women are welcome to speak about that all that they want outside of the context of the workplace, which means that, though limited, their rights are not destroyed by workplace limitations on harassing behavior.

References Gerard, J. (1992-1993). The First Amendment in a hostile environment: A primer on free speech and sexual harassment. Notre Dame Law Review, 68, 1003. Kent, a. (1994). First Amendment defense to hostile environment sexual harassment: Does discriminatory conduct deserve constitutional protection? Hofstra Law Review, 23(2), 513-537. Shao, R., Rupp, D., Skarlicki, D. & Jones, K. (2013). Employee justice across cultures: A meta-analytic review. Journal of Management, 39(1), 263-301. doi:10.1177/0149206311422447