Monday, May 05, 2008

Freedom From Offense Overriding Freedom of Speech?

Being offended can mean big money. Oh sure, going through life as a perpetually dissatisfied sourpuss might be a crappy way to have to live your life, but it could pay off in green.

Over the past few weeks I've written a couple of nearly incoherent posts about what I feel should be a person's reasonable right to smoke, and about a private establishment (restaurant or bar) being able to allow its employees and patrons to smoke on the premises without big brother swooping in and micromanaging the business.

A private business, to a great degree, is becoming less and less private as the nannystate slowly absorbs areas of commerce that it has no moral or ethical standing to consume.

Things might get worse for businesses if a recent 11th Circuit Court (CA) decision is any indication. Not only, according to the court, can a private business be sued for harassment levied at an employee by the employer, but now the employer can be sued for sexual harassment by the employee for things that are simply overheard, whether or not the speech is intentionally directed at the employee, uttered by the employer, offensive to anyone else at work, and "didn't involve any sexual extortion, any offensive touching, any sexual propositions, or even any insults targeted to her personally."

The offensive culprit, this time, is raunchy radio.

From the Volokh Conspiracy:

As a matter of good manners, and sound business management, I gladly condemn people who expose unwilling colleagues to such speech. The employer -- a private entity that's not bound by the First Amendment -- was free to restrict the speech, just as private Internet service providers, schools, churches, malls, and householders are generally free to restrict speech on their private property (setting aside a few contrary state laws that are not relevant here).

But here the government is saying that this speech is legally actionable, because it supposedly reflects a "degrading" perspective on women. The speech does not fit within any First Amendment exception -- there is no such exception for vulgarity, including relatively nonpolitical vulgarity (understandable, given the impossibility of defining the boundaries of such an exception). The government ought not be able to limit it, including through threat of massive civil penalties, whether the penalties are imposed on the speaker or on property owners that tolerate the speech. Yet this is exactly what happens here.

What's more, the logic of the case (which expressly draws on racial harassment caselaw and not just sexual harassment caselaw) extends far beyond talk of sex. The reasoning would apply even more forcefully to sexist political statements, sexist criticisms of politicians, racist political statements, racist criticisms of politicians, radio shows that condemn Islam and Muslims, radio shows that condemn atheism, and the like. And harassment law has indeed been used in the past to impose liability based on such political, religious, and social commentary, see here and, most recently, here (anti-Islam, anti-Muslim, and on occasion anti-Arab political statements).

On top of that, while harassment claims are generally not easy for plaintiffs to win, they have a perfectly predictable deterrent effect on employers, who don't want to risk losing them (or even litigating them). If you're an employer, you hear about this case, and then someone complains about allegedly sexually themed, religiously offensive, sexist, or racist radio programs being played, or overheard lunchtime conversations, what would you do?

I'm pretty sure that if you're rationally worried about litigation, you'd order that the radio playing and the conversations stop, for fear of government-imposed liability, and not just out of good manners or a desire to promote morale. I generally don't fault employers for reacting this way. But I do fault the legal system for imposing this sort of content-based, viewpoint-based deterrent to speech.
I couldn't agree more.

I would not allow Howard Stern to be played in a business I owned just out of any possible offense that might register to my tender Mennonite ears. I should be able to restrict radio use because of my status as business owner. Millions of Americans would be offended by the antics and speech of the Howard Stern show and it would seem a common sense approach to shut Howard up (especially in a mixed-sex environment.)

But, Stern isn't the only radio personality with the ability to offend. Millions more would be offended by right wing broadcasts of Rush Limbaugh. Most Limbaugh listeners, however, choose to turn on the radio and tune him in. What about people that happen to pass by when Rush is on one of his patented tirades against NOW and Planned Parenthood? Should happenstance listeners of Rush that become offended be able to overrule the desires of those who intentionally want to listen in?

What about Pat Robertson? Randi Rhodes? Michael Savage? How about any Jew?

This isn't necessarily about winning big money in court (though that would certainly be possible depending on your jury) but over allowing sensitive ears to dictate all acceptable speech thresholds in the workplace and perhaps beyond.

h/t Overlawyered

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