Copyright 1999 by Jack M. Balkin. All Rights Reserved.
First amendment attacks on sexual harassment law generally focus on
employer liability for hostile environments. Virtually no one finds
fault with regulating quid pro quo sexual harassment: Employers who
tell employees "sleep with me or you're fired," make
threats that are not protected by the first amendment.
Hostile environments, however, do not always involve threats. A hostile environment is made up of individual acts of discriminatory speech and other conduct by all the persons who inhabit a workplace, including managers, employees, and even occaisionally clients and customers. In hostile environments, "the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"(2) Some of this behavior is directed at particular employees; other elements may be directed at no one in particular but help foster an abusive enviroment. Even if these individual acts do not constitute a hostile environment separately, they can be actionable when taken together. The test is whether the conduct, taken as a whole, would lead to an environment that the employee reasonably perceives as abusive.(3)
Employers can be liable for maintaining a hostile work environment even if management did not personally engage in any of the predicate acts. In Burlington Industries v. Ellerth(4) and Faragher v. City of Boca Raton,(5) the Supreme Court held that employers were liable for harassment by supervisory personnel subject to a number of affirmative defenses where the harassment did not result in a tangible employment action like firing or demotion.(6) The degree of vicarious liability for non-supervisory personnel (such as co-workers) is still contested, but currently most courts hold the employer liable if the employer knows or should have known of the harassment and does not take prompt corrective action.(7)
Employers who want to minimize liability for hostile environment cases cannot merely prohibit individual instances of harassing conduct. They must also limit conduct that might, in combination with other conduct, contribute to a hostile environment. Hence employers are tempted to create prophylactic rules against all the potential components of a hostile environment. Some of these will be unwelcome physical advances, assaults, and forms of abuse. Others will be largely verbal: sexual jokes and innuendoes, taunts and threats, sexually oriented cartoons, pictures, and pornography. Some of this verbal abuse may even be couched in political or factual terms, for example, co-workers can oppose affirmative action programs for women or quote scientific studies arguing that women are less competent at certain jobs. Because employers have no general interest in perserving employee speech rights unrelated to efficiency, they will impose regulations as broad as they think necessary to insulate themselves from liability.(8) Most complaints about the constitutionality of sexual harassment law stem from these incentives to censor employee speech that might contribute to a hostile environment.
The argument that sexual harassment law produces unconstitutional
employee censorship is actually an instance of a more general problem
in free speech law-- collateral censorship.(9)
Collateral censorship occurs when one private party A has
the power to control speech by another private party B, and
the government threatens to hold A liable based on what B
says. The offending speech may be defamatory, obscene, fraudulent, or
a violation of copyright. In most collateral censorship situations A
has greater incentives to censor B than B has to
self-censor. That is because B has an additional interest in
promoting his or her own speech that A usually lacks. Hence A
can be expected to censor B collaterally with little regard
for the value of B's speech to B or to society at large.
Although courts have not recognized collateral censorship as a distinct doctrinal category, it is actually a fairly common phenomenon. For example, editors and publishers, driven by fear of defamation suits, refuse to run stories by their reporters. Internet service providers, fearing that they may be held liable for contributory infringement of copyrighted materials, ban messages from suspected parties.
Most cases of collateral censorship raise no significant first amendment problems. For example, the editors and the publishers of the New York Times are liable for publishing defamatory articles written by their reporters. Hence editors and publishers of large metropolitan dailies like the New York Times exercise considerable oversight over their reporters' stories. They often severely edit or even discard much of what their reporters produce, even when the reporter insists that the story is accurate. The reporter's statements may be matters of intense public concern and core political speech. Nevertheless, reporters who insist on writing what the editor or publisher forbids may be disciplined or even fired.
Federal securities laws require investment houses, brokerage firms, investment advisors and even corporate officials to avoid misleading statements about company profits, securities and related investments. Companies are strictly regulated concerning what they may say about these matters, particuarly in highly regulated procedures like proxy contests.(10) Statements made by their employees, even politically motivated statements, may subject them to liability. Thus, rational companies may severely limit the kinds of public statements their employees may make, and discipline or terminate employees who disobey.
In both of these cases, the question is whether it makes sense, given the purposes of the regulatory regime, and the kind of harm that the legislature has a right to prevent, to treat the censor and the speaker as the "same speaker" for purposes of first amendment law. We indulge in the legal fiction that the censor and speaker are "the same speaker" because the private censor and speaker are part of the same enterprise that produces speech-related harm, and they either collectively produce a single product that causes harm, or they collectively create the danger of a single harm.
However, collateral censorship is permissible even when the censor and speaker are not employer and employee, or part of the same business enterprise, as long as they jointly produce a product that threatens an indivisible or undifferentiated harm. Book publishers employ legal staffs to inspect author manuscripts for possible liability for defamation, fraud, or copyright infringement. Publishers often demand that authors rewrite or even omit troublesome passages as a condition of publication. No one doubts that these practices affect authors' practical ability to speak. But this private censorship does not violate their first amendment rights, even when they engage in explicitly political speech.
We should not underestimate the degree of collateral censorship in these cases. The employer and employee or the publisher and author may have significantly different incentives. Reporters, authors, investment bankers, and corporate law firm associates may all bristle at the limitations imposed on their speech. But these limitations do not violate the first amendment.
Collateral censorship is most constitutionally troublesome when censorship is performed by a distibutor, a common carrier or other conduit that is not part of the same business enterprise as the censored speaker and cannot fairly be regarded as the "same speaker." Here courts have sometimes looked through the fiction that because the censorship is done directly by a private party it involves no state action. In fact, there is state action in every case of collateral censorship, because the government has created incentives for private parties to censor each other.
The Supreme Court has come closest to recognizing the problem of collateral censorship in Smith v. California.(11) A California statute made it a crime for bookstore owners to stock books that were later judicially determined to be obscene, even if the owner did know of the book's contents. The Supreme Court struck down the statute, arguing that "if the bookseller is criminally liable without knowledge of the contents,...he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature."(12) Hence "[t]he bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered."(13) What the Court calls "self-censorship" in Smith is actually collateral censorship that arises from the different incentives of the bookseller and the book author.(14)
The law of defamation recognizes the problem of collateral censorship through what is called the distributor's privilege. Generally speaking, a person who repeats a defamatory statement is as liable for publication as the original speaker (assuming the person also acts with the requisite degree of fault).(15) However, a distributor of information-- like a newstand or a book store-- is generally not held to this standard unless the distributor knows of the publication's defamatory content.(16) The fear is that if a distributor were held to be publishers, distributors might restrict the kinds of books and magazines they sold, greatly reducing the public's access to protected expression.
To receive the common law privilege, a distributor does not have to be a common carrier, who must take on all customers without oversight. The courts recognize that although distributors make some content based judgements-- for example, in choosing what books or magazines to stock-- their editorial control is very different from and more limited than that of the magazine publisher or newspaper editor.
In the telecommunications industry, collateral censorship is a genuine constitutional problem: Cable companies and Internet service providers regularly act as conduits for the speech of unrelated parties. Attempts to treat them like editors rather than booksellers will result in the wrong kind of censorship. Thus, in the Telecommunications Act of 1996, Congress extended the distributor's privilege to Internet access providers whose customers publish indecent, obscene or "otherwise objectionable" matter in cyberspace.(17) But it is hardly clear that the problems of telecommunications law apply with equal force to employment discrimination.
Hostile environment law surely produces collateral censorship. But the collateral censorship does not involve a distributor or conduit relationship. It is hard to argue that the employer who censors employees is more like the Internet service provider and less like the newspaper editor, the book publisher, or the investment banking house.
Unlike the bookseller and the author, the employer and employee are part of the same business enterprise. Perhaps more important, the law has good reasons to hold the employer accountable for the acts of its employees. First, the employer is better able to see the larger picture about what conduct might contribute to sex discrimination. Second, the employer is also better able than individual employees to prevent hostile environments from emerging, especially when they result from collective actions that no individual employee may be able or willing to prevent.
Third, precisely because the creation of a hostile environment does not stem from any single act but from many acts taken together, it makes sense to treat the harm to equal opportunity in the workplace as a single harm. Indeed, because collective action problems may reduce the ability or the incentives of individual employees to prevent hostile environments, it may make even more sense to treat employer and employees as a "single speaker" engaged in a single harm than it does in the case of defamation or securities fraud.
Fourth, the employer faces additional incentives to acquiesce in hostile environments that have no analogue in defamation or securities fraud situations. This makes the case for employer liability-- and the need for incentives to police employees-- even stronger. Employers may accept (or ignore) sex discrimination by their male employees to avoid labor disruption and preserve esprit d'corps and loyalty among a particular class of valuable workers. Although employers might theoretically save money by staffing all jobs with less well-paid women, this move might produce enormous labor disruptions, even with non-unionized workers. Under these conditions, acquiescence in labor segregation is a second-best solution to maximizing profits. Employers will accept a sex-segregated workforce with only a few token women in "male" positions (enforced by many different forms of sex discrimination, including employee harassment) as a compromise with existing male employees who want to maintain higher wages and workplace status.(18)
In short, the different incentives of employers and employees may push them towards a common strategy. Together the employer and the employees create an undifferentiated "product"-- a workplace culture that segregates by sex and enforces this result through subtle and not so subtle forms of discrimination and harassment. Together the employer and employees construct the opportunity that women have in the workplace, creating a single, undifferentiated harm to workplace opportunity.
Congress has a right to prevent this result. Title VII gives women and minorities an equal right to pursue work and an equal right to workplace opportunities. Through Title VII, Congress and the courts have imposed on all employers an obligation to guarantee their employees a workplace free from sexual discrimination and harassment, whether caused by managers or co-workers-- just as OSHA regulations require employers to guarantee a workplace free from defective health and safety conditions caused by management or by co-workers. Employers must take steps to achieve nondiscriminatory workplaces, including necessary restrictions on employee speech and behavior that contribute to a hostile working environment. In effect, Congress has required employers to produce a certain kind of business culture in the workplace. The Supreme Court's recent decisions in Ellerth and Faragher confirm this: employers are strongly encouraged to create anti-harassment policies and complaint procedures as methods of monitoring their workers.(19) The speech and behavior of individual employees is integral to the production of that culture, and the employer is in the best position to manage that culture, just as the employers have always managed business culture before the application of antidiscrimination laws.
Even though hostile environment law does not involve unconstitutional
collateral censorship, critics can still raise other first amendment
objections. These fall into three basic categories. First, sexual
harassment doctrines are overbroad because they prohibit speech that
would clearly be protected outside the workplace. Second, the courts'
standard of abusive conduct is unduly vague. Third, sexual harassment
doctrines make distinctions on the basis of content and viewpoint. On
closer inspection, however, none of these objections proves fatal.
Often speech that would be protected in the public square becomes unprotected when it occurs in special social situations involving special social roles. If a White House intern sleeps with the President and falsely denies it at a press conference, her false statement is protected. However, if she repeats the same denial in an affidavit or on the witness stand, she can be prosecuted for perjury. The same words inserted into a new social context create different responsibilities and different degrees of first amendment protection.
Sexually harassing speech that would be protected outside of the workplace becomes unprotected within it because it occurs in a particular relationship of economic and social dependence-- the employment relation-- and because it involves a form of sex discrimination that materially alters the terms and conditions of employment.
Employement discrimination law protects multiple interests. It prevents harms to material or economic interests like salary and working conditions. But it is also concerned with the social status of groups; it attempts to dismantle unjust forms of social stratification in the workplace. These two concerns are intimately connected. Social stratification outside the workplace is often reflected in workplace arrangements that give some people greater material advantages and economic opportunities than others. Conversely, stratification within in the workplace helps reproduce the social status of groups in society as a whole. The structure of the workplace helps reinforces the social meanings of superiority and inferiority that attach to being white or black, male or female.
Title VII protects against both material and status-based harm because material and status elements are inextricably intertwined in the workplace, and cannot easily be separated. This should not be surprising: Common sense tells us that people with large corner offices do not receive lower salaries and reduced authority as a trade off, and people in cubicles don't get juicier work assignments as compensation. Rather, people with high status and esteem also usually enjoy better salaries and working conditions, all things considered. Conversely, people lower in the hierarchy of the workplace usually enjoy less pleasant working conditions and less compensation.
Because material benefits and social status are so deeply interconnected in the workplace, status-based harms that change people's working conditions constitute employment discrimination under Title VII. That is why there is nothing particularly unusual or special about hostile environment liability. Hostile environment situations are just a special case of ordinary disparate treatment discrimination: they are harms to employees' group status-- imposed on account of their membership in the group-- that materially alter their working conditions.
People also reproduce group status distinctions outside the workplace; for example, they engage in racist or misogynist speech or speech that perpetuates racial or gender stereotypes. But the First Amendment generally does not permit recovery for these harms to group status.(20) The First Amendment does permit recovery for defamation, but defamation primarily concerns injury to individual reputation rather than harm to group status.
In the workplace, however, the First Amendment does allow people to recover for harms to group status when (and only when) they so materially alter workplace conditions that they constitute employment discrimination.(21) Just as false speech before a jury is punishable not merely because it is false but because false speech in this setting is perjury, status-based harms in the workplace are sanctionable not merely because they are affronts to one's status but because harms in this setting are forms of employment discrimination.
Several years ago I argued that workplace harassment is not protected by the first amendment because it is directed at a captive audience.(22) People are captive audiences when they are unavoidably and unfairly coerced into listening. According to the Supreme Court, the paradigmatic case of a captive audience involves assaultive speech directed at the home.(23) The Court's other major example has been people riding on public busses who cannot avoid looking at political advertisements.(24)
Civil libertarians have generally been suspicious of the captive audience doctrine, and for good reason. A broad reading of the captive audience doctrine "would effectively empower a majority to silence dissidents simply as a matter of personal predilections."(25) It is not suprising that first amendment scholars have tried to limit the doctrine to speech aimed at the home, where courts view privacy concerns at their highest.
I believe that the articulation of the capitive audience doctrine by both courts and commentators has been mistaken. It is both over and underinclusive. There is nothing talismanic about the home for first amendment purposes. The fact that unpleasant speech occurs in the home is not sufficient to justify banning it. In the Information Age we increasingly receive information in our homes; new technologies like the Internet redraw the boundaries between public and private spaces. In many cases the protection of children and parental control over children are much better justifications for regulation than captive audience doctrine.(26)
Conversely, limiting captive audience situations to the home misses the point of the metaphor of captivity-- that a person must listen to speech because he or she is practically unable to leave. Children may be subject to discipline in the home, but for most adults, the place they are most subject to the discipline of others and least free to leave is at work. Economic coercion leaves many workers unable to avoid exposure to harassing speech. Employees are a much better example of a captive audience than the so-called paradigm case of people sitting in their homes.
Captivity in this sense is a matter of practicality rather than necessity. It is about the right not to have to flee rather than the inability to flee. The Supreme Court has suggested that people riding in busses subjected to political advertisements were a captive audience; but surely these people could have chosen other forms of transportation albeit at greater expense and inconvenience. Even people in their homes are not physically prevented from leaving them. The point of captive audience doctrine, however, is that they should not have to be put to such a choice. The coercion brought upon them is unfair. In like fashion, minimum wage workers may have to move from job to job to avoid harassment. But the question is not whether there is another equally low paying job available. The question is whether they should have to leave a job to avoid being sexually harassed.(27) It would undermine the central purpose of Title VII to argue that it gave workers no right to stay in a job free from sexual harassment.
Moreover, captive audience doctrine should not focus on particular spaces like the home. Rather, it should regulate particular situations where people are particularly subject to unjust and intolerable harassment and coercion. Captive audience doctrine, like the doctrines of fourth amendment privacy, should protect people in coercive situations, not places.(28) The practical necessities of earning a living and the economic coercion inherent in the workplace create captive audience situations; but this does not mean that the workplace itself should be treated as a first amendment-free zone. In fact, the workplace should be an arena of special, not lessened free speech protection. Precisely because people spend so much of their lives in the workplace, the workplace is an important site of public discourse.(29) Much employee speech in the workplace is not, nor should it be considered, exclusively "managerial," "instrumental," or "private." We may talk more about public matters, sports, gossip, politics, and the affairs of the day at our workplace than we do at home. The problem with existing employement law is that it gives employers too much power to control the speech of employees on every subject, not simply on matters of sex and sexuality.
We should focus on situations rather than places for another reason. When distressing speech occurs in the workplace, workers can sometimes avoid it with relatively little effort and they should be required to. The law should distinguish between pornographic pictures prominently displayed in a shared work setting and open taunting of employees on the one hand, and private posession of pornographic materials and private conversations between willing listeners on the other.
A functional approach rescues captive audience doctrine from its formalistic application to the home and only to the home. It shows us that the paradigmatic case of the captive audience is not a person sitting on a couch in their home but a sexually harassed worker working for low pay in a tight job market.
Hostile environment liability occurs when "the workplace is permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"(30) When workers are subjected to an abusive working environment that they cannot easily escape, or when economic coercion requires them to remain at a workplace that is permeated with discriminatory intimidation, ridicule, and insult, it is fair to say that they are a captive audience for first amendment purposes.
The other major constitutional objections to hostile environment law are that its judge-made doctrines are unduly vague and content-based. The argument from vagueness proves entirely too much: it applies equally to most judge-made communications torts. For example, speech is defamatory "if it tends ... to lower [an individual] in the estimation of the community or to deter third persons from associating or dealing with him."(31) Intentional infliction of emotional distress requires words or conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.... [where] recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" (32) A judicial standard that requires severe and pervasive intimidation, ridicule, insult and abuse does not seem unduly vague in comparison with these torts.
Finally, it is no objection that Title VII is content and viewpoint based. The same charge could be leveled against defamation, fraud, and most other communications torts. Juries in defamation cases are required to make content-based judgments about what kinds of statements would hold people up to shame or ridicule in the community and to assess damages based on the degree of injury to reputation. Moreover, liability for defamation clearly depends on viewpoint. If a defendant falsely says "Smith is a crook" she may be subject to liability, but not if she falsely says "Smith is an honest man."
If status-based harms are to be protected at all, some content-based and even viewpoint-based distinctions are inevitable. As we have seen, Title VII appropriately protects workers from a limited class of status based harms because protecting workers from these harms is essential to guaranteeing equality in the workplace. Thus, it makes perfect sense that a sign saying "Sarah is Employee of the Month," should not give rise to liability while a sign reading "Sarah is an dumb-ass woman"(33) could form part of a hostile environment case. These content-based distinctions are adapted to the very reason why status-based or dignitary harms may be protected in the first place.(34)
Critics of sexual harassment law have offered many horror stories
about employer censorship. Most of these involve employer decisions
that are overzealous, reflect traditional or puritanical sexual mores
at odds with Title VII's promise of sexual equality, are products of
mindless bureacracy or are plain idiotic. They have not been required
either by the actual doctrines of Title VII or by prudent compliance
policies. Nor is this surprising. By and large federal judges have
been quite careful to limit liability for hostile environments to
situations of severe and pervasive worker abuse. Indeed, many
feminist legal scholars have criticized judges for construing the law
too narrowly.
There is some irony in libertarian complaints about employees' freedom of speech. In America the state has generally offered very little protection for employee speech. The traditional common law rule has been that employees could be fired at-will absent a contractual provision to the contrary; in other words, unless employees had sufficient barganing power to demand "just cause" or other security provisions in their contract, the employer can sanction or fire them for any virtually any reason, including displeasure with their speech, including their political speech.(35) The common law regime is still the default rule today, and it provides employers with one of their most potent weapons for shaping the culture of the workplace and the behavior of their employees. American law is in marked contrast with that of many other countries. In Europe, for example, employees often enjoy more substantial rights against arbitrary discharge.(36)
Thus, sexual harassment doctrines do not pose a simple conflict between some employees' liberty and other employees' equality. The question is not whether employees will have freedom of speech but how employers will control employee speech -- whether they will do so in response to the incentives produced by Title VII or for their own purposes.
Blaming employee censorship on Title VII diverts our attention from a larger issue: employers exercise considerable and sometimes tyrannical control over the speech and behavior of their employees. Throughout history American employers often have been deeply interested in control over their workers and in the culture of the workplace. They are no less interested than the government in inclucating social norms of appropriate speech, and behavior. Often they go even further, with elaborate dress codes and rules of social ettiquette. They seek to inculcate norms they believe will increase or sustain productivity. Employers tend to like employees who are "team players" and work for the good of the enterprise. They will even tolerate behavior that would otherwise be considered racist, sexist, unjust or anti-social by their employees as long as it promotes workplace cohesion and morale and is not bad for business.
In fact, the most important counterweights to the employer's power to shape workplace culture through hiring and firing decisions are antidiscrimination laws. Without the incentives created by sexual harassment law, employees are simply remitted to the economic and social control of employers. In other words, first amendment challenges to sexual harassment law are a defense of employer prerogatives presented in the guise of worker liberties.
In the long run, employers will not necessarily lose much control over the workplace because of sexual harassment law. To the contrary, compliance with government regulation is often not a danger but an opportunity. Employers will use sexual harassment law as a new device for controling their subordinates, by combining legal compliance with other bureaucratic and economic goals. Many tales of unjust compliance practices can be understood in precisely this way. The excuse of sexual harassment liability allows employers to impose ever new controls on employee behavior during an age when employees are spending more and more time at work and tend to rely more and more on the workplace to meet their partners.
When first amendment challenges are raised to sexual harassment law, civil libertarians should not be diverted from the deeper issues of employer control and employee freedom. We can protect the first amendment best by following the law as it is written-- awarding damages in cases of severe and pervasive abuse that materially change employment conditions. But we should also not forget to protect employees-- all employees-- by working for greater speech rights against their employers than American law has seen fit to give them. For many employees, those are the speech rights that really count.
1. Knight Professor of Constitutional Law and the First Amendment, Yale Law School. My thanks to Vicki Schultz and Reva Siegel for their comments on previous drafts.
2. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)(quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)).
3. Harris, 510 U.S. at 21, 21-23.
6. The Supreme Court's current doctrine is that
[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence,.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.
Burlington Industries, Inc. v. Ellerth, 108 S.Ct. at 2270.
7. See Sexual Harassment, 29 C.F.R. § 1604.11(d)(1996). See also Faragher, 108 S.Ct. at 2289 (collecting cases).
8. Employers are not completely free to censor employee speech of course: they are also constrained by wrongful discharge law, union rules and civil service regulations.
9. I borrow this term from Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the "Speaker"
Within the New Media, 71 Notre Dame L. Rev. 79, 116, 118 (1995).
10. For a general discussion, see Burt Neuborne, The First Amendment and Government Regulation of Capital Markets, 55 Brooklyn L. Rev. 5 (1989).
14. See Myerson, at 118 n. 259.
15. See Restatement (Second) of Torts §578 (1977) ("Except as to those who only deliver or transmit defamation published by a third person, one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.").
16. See Restatement (Second) of Torts §581 (1977)("One who ... delivers or transmits defamatory matter published by a third
person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.").
17. Cite to Zeran v. America Online, Blumenthal
v. America Online [cites]
18. I am indebted to Vicki Schultz for this argument.
19. Ellerth, 108 S.Ct. at 2270; Faragher, 108 S.Ct. at 2292-93.
20. The First Amendment may permit recovery for "fighting words," or for intentional infliction of emotional distress, but these categories are very limited and do not include all or even most racist or misognyist speech.
21. It is important to emphasize that the law of sexual harassment requires a relatively high threshold of emotional, dignitary, or other status-based harm before the plaintiff states a valid employment discrimination claim. A high threshold is probably constitutionally necessary. However, as the Court pointed out in Harris, it need not consitute intentional infliction of emotional distress. Harris, at 21-23.
22. See J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L. J. 375, 424 (1990).
23. See, e.g., Frisby v. Schultz, 487 U.S. 474, 487 (1988)(upholding ban on residential picketing directed at a single house); Cf. Kovacs v. Cooper, 336 U.S. 77, 87 (1949)(upholding ban on sound trucks to protect residents).
24. See Lehman v. City of Shaker Heights 418 U.S. 298, 301-04 (1974)(plurality opinion)(upholding ban of political advertising on public buses on grounds that passengers are a "captive audience").
25. Cohen v. California, 403 U.S. 15, 21 (1971).
26. See J.M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation, 45 Duke L. J. 1131, 1137-39 (1996).
27. Vicki Schultz has described the "revolving door" phenomenon of women in low paying jobs who are continually forced to change jobs because of sex discrimination or harassment. See Vicki Schultz, Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 Harv. L. Rev. 1749, 1826, 1839 (1990). These women find themselves on a perpetual exodus from jobs that are "a dime a dozen." But the phenomenon of these forced exits is not an argument against the application of captive audience doctrine to harassment law; it is an argument for it.
28. Cf. Katz v. United States, 389 U.S. 347, 351 (1967)(holding that the fourth amendment "protects people, not places.")
29. See Cynthia Estlund, Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment, 75 Texas L. Rev. 687, 717 (1997).
30. Harris, at 21 (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 67 (1986)).
31. Restatement (Second) of Torts § 559 (1977).
32. Restatement (Second) of Torts § 46 (1965), comment d, at 72-73.
33. See Harris, 510 U.S. at 19.
34. Cf. R.A.V. v. St. Paul 505 U.S. 377, 389(1992)(Content based discrimination within a category of unprotected speech is justified when it furthers the purpose for which the speech is unprotected.)
35. See Cynthia L. Estlund, Free Speech and Due Process in the Workplace, 71 Indiana L. Rev. 101, 116-17 (1995).
36. See, e.g., Frances Raday, Individual and Collective Dismissal-- A Job Security Dichotomy, 10 Comp. Lab. L. 121 (1989).