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 they concern sensitive topics like race, where the risk of conflict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). 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. See, e.g., Gitlow v. New York, 268 U.S. 652, 667 (1925); id. at 673 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment.

Moreover, one of the cases the court cites for support is DeAngelis v. El Paso Mun. Police Officers Ass’n (5th Cir. 1995), which suggested that there might be First Amendment problems in applying hostile environment harassment liability where the defendant was a police officer labor organization (labor organizations can be sued under Title VII just as employers can be). And the law review article that it cites, following its statement that “We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek,” likewise applies to employers generally, not just to colleges.

And as the cited article (my own student Note) argues, it doesn’t make sense to limit First Amendment protection — including the First Amendment principle on which the Ninth Circuit’s opinion relies — to colleges or other “communicative workplaces.” Here are some passages from that article, with a few edits:

Workplace speech is a critical part of our national public discourse. People spend more of their waking hours at work than anywhere else except (possibly) their homes. Much of most Americans’ political speech happens in the workplace. The average American does not go to public demonstrations, or burn flags outside the Republican party convention, or write books, or go to political discussion groups. But the average American does talk about current affairs with his coworkers.

This is especially true of any issues that have to do with workplace: affirmative action hiring, the rights of women, union politics, and the like. If a policeman feels that women make bad police officers, the logical place for him to talk about it is at work; likewise if someone wants to say that affirmative action “gives to less qualified minorities jobs that should belong to more qualified whites,” which may certainly offend minority employees. People who work for American heavy equipment manufacturers may often make intemperate comments about Japanese competitors. Racially polarized union elections can easily produce offensive comments or leaflets. (See here for citations, and many more examples.)

The opportunity to speak outside work is thus a poor, and constitutionally inadequate, substitute for speech in the workplace. The Court has consistently rejected such an “alternative channels for expression” argument when content-based distinctions were involved, and it is particularly untenable in this case, where the opportunities for an employee to communicate to his coworkers outside the workplace are theoretical at best. The government’s telling private employees that they can’t talk politics to their coworkers at the office generally means that the employees are barred from talking politics to their coworkers at all.

Harassment law is also a viewpoint-based restriction, the sort of restriction the Court has most strongly condemned. One person in the lunch room may speak eloquently and loudly about how women are equal to men, and harassment law will not stop him. But when another tries to respond that women belong in the home, that speech may become part of a harassment claim, and employers are therefore pressured to suppress it. It’s both extremely dangerous in this case, and an extremely dangerous precedent for the future, to let the government control the parameters of public debate this way.

And every place is someone’s workplace. The classroom is a teacher’s workplace; a university professor who dislikes art that’s posted in a classroom may claim that it constitutes harassment. Lots of people work in public buildings, parks, and other public spaces — to “protect” them, harassment law may restrict speech there, too.

Restaurants are full of employees who might complain about offensive jokes that they overheard patrons make; under harassment law, the employer would be obligated to suppress the speech of those patrons. In every library, there are employees who might be offended by sexually suggestive material that they see patrons display on the library’s computers.

Even private homes are often workplaces for housekeepers and other workers, who might complain about offensive art on the walls or offensive conversations by the residents or guests. The government’s muzzling speech “only in private workplaces” means muzzling it in very many places indeed.

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