— and rejection of the “must prevent hostile environment harassment” justification for broad campus speech codes — from Judge George King in Lopez v. Candaele.
The analysis is generally focused on campus speech codes, and distinguishes hostile work environment harassment law generally from similar restrictions emposed on college students. But part of its reasoning can also apply to First Amendment challenges to the application of hostile work environment harassment law to otherwise protected speech:
Defendants quote the Supreme Court’s statement in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), that “since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidently within the reach of a statute directed at conduct rather than speech.” This reliance on R.A.V. misconstrues the context and meaning of the Court’s discussion and mistakes its relevance to this case. In context, the Court was attempting to distinguish between instances where content-based regulation of a subcategory of otherwise proscribable speech is unconstitutional (as in the St. Paul ordinance at issue) from those where “a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech.” The issue before us is whether the Policy, in including expression within the scope of its regulation, unduly reaches a substantial amount of otherwise protected speech. It is no response to assert that a law may regulate a content-based subclass of unprotected speech that is swept up incidentally within the reach of a law targeting conduct rather than speech. Indeed, the Court went on to observe that “[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.” Here, the Policy is undeniably aimed at the content of the expression by prohibiting speech involving certain content, i.e., sexist comments, insulting remarks or intrusive comments about one’s gender.
Defendants also cite the Court’s comment that “sexually derogatory ‘fighting words,’ among
other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11 (1991).” They argue that “[t]he [R.A.V.] Court singled out a time-tested definition of sexual harassment as an example of a valid proscription of ‘sexually derogatory fighting words.’” If this argument means that fighting words can be within the cited CFR definition of sexual harassment, it is both correct and irrelevant. Our conclusion is not that the Policy has no valid application. Rather we held that it was unconstitutionally overbroad by sweeping within its reach a substantial amount of protected speech. If, on the other hand, Defendants mean that all speech that offends this definition is necessarily proscribable as sexually derogatory fighting words, then we reject this argument as an unwarranted and unconstitutional enlargement of what constitutes fighting words.
This fits well with the argument about R.A.V. that I’ve made as to hostile work environment harassment law.
This case stems from the incident in which an L.A. City College speech class professor refused to grade a student’s presentation, apparently because of the religious nature of the student’s presentation, the student’s expression of opposition for same-sex marriage in the presentation, or both. (The professor apparently also called the student a “fascist bastard” in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to let the student finish the presentation.) The case filed over that became a general challenge to the campus speech code, which the court preliminarily enjoined in July. The decision I link to today rejects the defendants’ motion for reconsideration.