Bruce Tefft is a counter-terrorism adviser hired by the NYPD, and he had a habit of sending department-wide e-mails harshly critical of Muslims, Islam, and apparently Arabs:

These email briefings stated that Muslims and Arab Americans were untrustworthy and could not reliably serve in law enforcement positions or handle sensitive data. For example, Tefft sent emails stating that "a good Muslim ... can't be a good American"; "[w]ithout Islam, there wouldn't be any Islamic Terror"; and, "[b]urning the hate-filled Koran should be viewed as a public service at the least." Tefft also attached his own comments to articles he forwarded. Attached to an article entitled "Al-Qaeda Wants to Repeat 9/11 in Israel," he commented: "Makes one wonder how many Muslim pilots the US National Guard, Reserves, and/or US Air Force have flying around US Cities." In another article entitled "Has U.S. Threatened to Vaporize Mecca?" he added, "Excellent idea, if true." ...

In addition to the emails, Tefft directly stated to Plaintiff's colleagues that they should not trust Plaintiff or any other Muslim in law enforcement because "Muslims have no place in law enforcement."

So plaintiff — a NYPD Intelligence Division police officer — sued the city and Tefft personally for tolerating and creating a hostile work environment. ("Plaintiff, an Arab-American, alleges that he was forced to read almost daily emails sent by Tefft, a counterterrorism adviser hired by the New York City Police Department ..., that contained racially and religiously discriminatory content targeted at Arabs and Muslims.") Plaintiff also alleged that other city employees made anti-Arab and anti-Muslim statements, though it's not clear whether they were to plaintiff specifically or to coworkers generally. But he didn't just sue the city for the aggregate of all this speech; he sued Tefft personally based on Tefft's own e-mails. Such personal liability generally isn't allowed under Title VII, but is allowed under 42 U.S.C. § 1981 and seems to be allowed under New York law.

Last week, the federal district judge in this case (Doe v. City of New York & Bruce Tefft) held that plaintiff's case may go forward — that, if the facts are as the plaintiff alleges them to be, Tefft can be financially liable based on the anti-Islam/anti-Muslim/anti-Arab speech. Such speech could be, under the relevant legal standard, be "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" based on religion and ethnicity for the plaintiff and for a reasonable person. And the damages in such cases could easily go into the hundreds of thousands of dollars or more.

This, I think, well illustrates what I've been arguing for 15 years: In many (though certainly not all) contexts, hostile environment harassment law violates the First Amendment. Here a court is saying that speech can lead to massive liability because of the viewpoint that it expresses, and the offensive environment that the viewpoint causes. The speech doesn't fit within any exception to First Amendment protection — for instance, it's not "fighting words" (a narrow exception that's limited to one-to-one speech likely to cause a fight, and that generally excludes political advocacy conveyed to a broad group of listeners), nor is it incitement to lawless action. The government isn't just acting as employer to restrict speech by its employees (an area in which it has a freer hand); the court is enforcing a law created by the government acting as sovereign, a law that equally applies to private employers.

What's more, the effect of the law is to pressure all employers — on fear of government-imposed liability — to suppress such viewpoints, and to pressure employees not to express such viewpoints. Employers are now on notice that tolerating viewpoints harshly critical of Islam, Muslims, and Arabs can lead to liability. True, individual statements won't lead to such liability (usually), but an employer can't just tell employees: "Say what you please, so long as your speech, aggregated with the speech of others (speech that you might not even know about), is not severe or pervasive enough to create an offensive work environment based on race, religion, and the like." The employer has to restrict each individual statement, in order to prevent liability based on the aggregate of statements.

And, as I said, the law doesn't just apply to police departments. It applies to any employer: private security companies, think tanks, universities, newspapers, law firms, and any other place where people discuss these issues, whether the issues are closely related to work or are just talked about by employees who talk politics at work. And I stress again that this is the government as sovereign imposing such a viewpoint-based restriction (both on employees directly, and on employers, hoping that it will lead employers to suppress employee speech). Private employers, like private newspapers, colleges, churches, commercial landlords, service providers, and others, are free to restrict speech on their property. But the First Amendment should stop the government from coercively pressuring these private entities into suppressing such speech.

Finally, note that employers and speakers can get no reassurance from the fact that the speech here was unusually frequent ("almost daily emails"). "Severe or pervasive" is a vague term, but it's clear that even statements that happen once every month or two can qualify. Consider, for instance, Schwapp v. Town of Avon, a Second Circuit case holding that "ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure" — of which only four occurred in his presence — were enough to create a potential harassment case.

For more on how much speech harassment law can punish or coercively deter, see here. For more on the First Amendment doctrinal issues raised here, see here.

I blogged below about the details of the case — a court concludes that an employee can sue someone for repeatedly circulating in the workplace e-mail with anti-Islam/anti-Muslim/anti-Arab statements — and I've written elsewhere about why such liability is unconstitutional. But I want to focus a bit on the court's First Amendment analysis, because it's even more dangerous to free speech than some other pro-harassment-law analyses have been.

Here's how the court reasons:

Tefft contends that his emails were protected speech under the First Amendment. Specifically, he argues that the emails were a form of political speech and that he cannot be held liable for their content under Section 1981 or its state analogs. However, any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes' objective of remedying racial discrimination. As the Supreme Court has noted, "[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy." R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992).

That's wrong because hostile environment harassment law applies to speech in these cases precisely because of its expressive content: It is the content and the viewpoint of the e-mail that creates the offensive environment. (You could imagine a hostile environment created by the nonexpressive content of someone's conduct, for instance because the conduct is unwanted touching, but that's not so here.) As I argue at length in my Cornell article, a law that applies to speech precisely because of what the speech communicates — and the harms that might flow from such communication — can't just be dismissed as "incidental" regulation.

But even setting aside the doctrine, consider the implications of what the court is saying. Just as discrimination based on religion and other criteria is barred in employment, it's also banned in education and in public accommodations. That's the reason for the spate of campus speech codes written in "hostile educational environment" terms, lawsuits based on alleged "hostile educational environments" and lawsuits based on alleged "hostile public accommodations environments" — for instance, when a bar, library, club, or other business engages in (or simply allows) speech that offends some patrons based on religion, sex, race, and the like. And the court's First Amendment analysis would apply to those things precisely the same way, because all these doctrines are structurally identical, and "any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes' objective of remedying racial discrimination."

There would thus be no First Amendment problem with imposing liability on a university that tolerates anti-Islam/anti-Muslim/anti-Arab speech (or for that matter anti-Christian speech, anti-Mormon speech, and the like). There would be no First Amendment problem with imposing liability on a library that doesn't properly filter access to material that might offend Muslim patrons, or on a bar that posts supposedly blasphemous material on its walls, or on a restaurant that doesn't censor patrons' anti-Muslim statements when fellow patrons object to such statements.

Finally, the court goes on to say:

The Supreme Court has found that sufficiently severe or pervasive harassment on the basis of a prohibited category, including religion, race, or national origin, constitutes "employment discrimination" and is therefore actionable under federal law. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends [the] broad rule of workplace equality."). Accordingly, the First Amendment does not preclude Plaintiff's discrimination claims.

Well, such speech also constitutes "educational discrimination" and "public accommodation discrimination" (on the theory that tolerance of an offensive environment based on a criterion equals discrimination based on that criterion) when it happens at universities and at places of public accommodation. But that the speech violates a statutory rule is only the start of the inquiry — the question is whether the First Amendment trumps that statutory rule in some situations.

And the Court has never answered that question. Meritor and Harris didn't consider the First Amendment arguments; Meritor didn't involve speech, and though Harris did involve speech (speech that quite likely could be punished), no First Amendment arguments were raised at trial or before the court of appeals — the First Amendment was raised only in the Supreme Court brief, and therefore rightly ignored by the Court. "It is [the Supreme Court's] practice to decline to review those issues neither pressed nor passed upon below," and it's clearly settled that "cases cannot be read as foreclosing an argument that they never dealt with." As to R.A.V., see here for why it doesn't resolve the constitutionality of harassment law as applied to otherwise protected speech (i.e., speech that doesn't fit within exceptions such as fighting words or threats).