The Ninth Circuit Rodriguez Opinion and Speech in Private Workplaces

The Rodriguez decision arose in a public community college, and it stressed the importance of academic freedom. But I think it would also be relevant to Title VII lawsuits based on speech in non-academic workplaces, and in private workplaces (though not to individually directed insults or sexual propositions). Here let me talk about the private workplaces; I’ll talk about non-academic workplaces in a separate post.

Say that someone says something offensive in a private workplace, perhaps a private university but perhaps just a private law firm — for instance, through a workplace-wide e-mail, or in a lunchroom conversation that offended coworkers overhear, or in a cartoon posted on his office door. The private employer could of course restrict this speech without violating the Constitution, since the Constitution only applies to state action (with “state” here meaning “government,” including federal, state, and local governments). But if someone sues the employer, claiming that the employer had a legal duty to suppress speech and conduct that creates a hostile environment, then any imposition of liability on the employer for the employee’s speech would indeed be state action.

Consider an analogous case, Noah v. AOL Time Warner. Noah sued AOL, claiming that anti-Muslim speech in various AOL venues created a hostile public accommodations environment. The court held that the federal statute didn’t apply here, because the federal public accommodations statute doesn’t cover service providers (though some state statutes might), and because § 230 immunizes them. But the court also said that “construing Title II as plaintiff requests, to require that AOL censor or limit the speech of its members, may well cause the statute to run afoul of the First Amendment.” Why? Because even though AOL could restrict speech on its own private property, the First Amendment is triggered when federal or state law is read as requiring private property owners to so restrict speech (on pain of liability).

Nor is there any difference between private employers and other private property owners. Say Congress commanded that “Any employer that tolerates criticism of American soldiers shall be liable to any coworkers who are offended by such criticism, for instance those whose relatives were injured or killed in action.” (This is actually not that far-fetched a hypothetical; such speech might well qualify as something akin to “veteran status harassment,” a recognized claim under existing law.)

For state action purposes, this law is identical to harassment law. Instead of the government restricting people’s speech directly, the government is pressuring private employers — through the threat of liability — into restricting the speech. But surely this cannot be constitutional. Private employers, of course, may restrict employees’ speech with no First Amendment difficulties, just as private householders, publishers, churches, commercial landlords, and colleges may restrict speech on their property without triggering the First Amendment. But when the government pressures the private employers into restricting speech, the First Amendment steps in.

The Court has recognized this distinction between what a private employer can do to the employee and what the government can force the employer to do. For instance, in Truax v. Raich a state law required that at least eighty percent of each employer’s employees be citizens. Raich, a noncitizen who was discharged because of this law, sued, alleging that the law was a denial of equal protection, and the Court agreed. Though Raich’s employer could have fired Raich at any time, the Court said, the state’s attempt to force the employer to fire him was unconstitutional; the state, by imposing the eighty percent requirement on the employer, was acting directly upon the employee.

Similarly, in Peterson v. City of Greenville, a Greenville city ordinance required restaurants to be segregated, and plaintiffs were arrested for trespass when they ignored a lunch counter manager’s demand that they leave. Though the Court agreed that the manager could have kept his lunch counter segregated, it held that the city could not have required the manager to do this: Imposing the requirement that the manager eject blacks was tantamount to the city’s ejecting them directly. (The case was decided before the Civil Rights Act of 1964 prohibited discrimination in places of public accommodation.) Just as the government can’t avoid Equal Protection Clause scrutiny by forcing private parties to discriminate, so it can’t avoid First Amendment scrutiny by drafting private parties to implement speech restrictions.