Tag Archives | Rodriguez v. Maricopa

The Ninth Circuit Rodriguez Opinion and Speech in Non-Academic Workplaces

I explain below why the Ninth Circuit’s Rodriguez decision applies to harassment lawsuits brought against private employers. Here I’d like to explain why and how it would apply to non-academic employers.

Rodriguez does say that its First Amendment analysis, and its statement that “Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment” is “particularly so on college campuses.” But it didn’t say that it is only so on college campuses; the opinion’s rationale applies equally to other workplaces as well:

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448–49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito –EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

The Constitution embraces … a heated exchange of views, even (perhaps especially) when […]

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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 […]

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“Free Speech Has Been a Powerful Force for the Spread of Equality Under the Law”;

“we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.” So writes the Ninth Circuit in today’s Rodriguez opinion, in an important holding about the interaction of the First and Fourteenth Amendments.

I’ve written before against arguments that First Amendment rights need to be weighed against Fourteenth Amendment equality values, in a way that might justify restricting allegedly bigoted speech; I likewise criticize calls (whether from the left or the right) to weigh free speech rights against constitutional democracy values, constitutional privacy values, and the like. One of my arguments is that bigoted speech doesn’t actually violate the Equal Protection Clause, and to the extent that it offends “equal protection values,” those “values” can’t be seen as trumping First Amendment rights. But today’s Rodriguez opinion from the Ninth Circuit had a special twist on this constitutional conflict argument.

The premise of hostile environment harassment law, under which speech in workplaces, educational institutions, places of public accommodation, and the like could lead to liability, is this: An employer, educational institution, or place of public accommodation that tolerates speech or conduct that creates a hostile environment based on race/religion/sex/etc. for some of its patron is discriminatorily providing a worse environment to some people than to others. Therefore, the courts have held, the institution is violating statutes that ban such discrimination, and can be held liable under such statutes (for instance, Title VII of the Civil Rights Act of 1964 or similar state laws).

Now here’s the twist: The Equal Protection Clause has been held to bar discrimination based on race/religion/sex/etc. by government entities, even in the absence of any statute. Therefore, by the same logic as in the preceding paragraph, it has been read as barring government […]

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Freedom of Speech vs. Workplace Harassment Law — A Big Free Speech Win in the Ninth Circuit

I’ve long written about how workplace harassment law sometimes violates the First Amendment, so I was especially pleased to see today’s Rodriguez v. Maricopa County Community College Dist. (9th Cir.) (written by Chief Judge Kozinski, and joined by retired Justice O’Connor, sitting by designation, and Judge Sandra Ikuta). The entire opinion is much worth reading, and it’s readable and not too long (about 11 pages). But here’s the heart, which I like very much:

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. [For details, see PDF pp. 4-5 of the opinion, or the end of this post. -EV] Every district employee with an email address received a copy. Plaintiffs, a certified class of the district’s Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski’s emails created a hostile work environment in violation of Title VII and the Equal Protection Clause…. The district court … denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims….

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) […]

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