Does the First Amendment Protect Harassing Speech?

Does the First Amendment Protect Harassing Speech?

My answer:  many times it does not.

We all have heard a lot about first amendment speech and religious protections. If speech is protected,  should someone  who verbally harasses others, either sexually, racially or because of LGBT issues be protected?  I think not. Even though most speech is protected under the first amendment, the Supreme Court has always held there are exceptions. One cannot shout "Fire!" in a crowded theatre because that cry could cause panic and injury. Some forms of pornograpy, those with no redeeming social value (not really sure what that means) are not protected. Likewise, harassment based on unlawful discrimination is not protected because of federal and state discrimination laws.

Most of us concede that assault and battery, which is oftentimes a form of expression, is not protected speech. In fact, not only can battery be civilly actionable, there may well be criminal penalties. Why is this form of expression, usually an expression anger, frustration, revenge or contempt, exempt from first amendment protection?  Because the purpose of battery is to inflict injury on another. Expressing anger without invoking injury can be perfectly fine protected expression.

With harassment, a form of bullying, the purpose of the expression is also to inflict harm. Sexually denigrating a co-worker, especially if the actor has power over the employee, is perpetrated to harm the employee. Most sexual harassment is about power, as is racial harassment or any other form of workplace harassment. Racial and sexual discrimination in employment is unlawful because our society abhors these forms of discrimination.  Perhaps after hundreds of years of enslaving an entire race we recognize this Country's sins.  Until 1920 women could not vote and up until 1971, in some states married women had no property rights.  This Country has finally recognized the insidious harm discrimination engenders in our society.

Obviously, each case is different. Once a woman came to me and said that her boss told her she looked nice. I took that statement by the boss as a compliment, not harassment and refused to represent her.  Cases are factually distinct and we look at how reasonable people would respond. But, degrading, offensive and disrespectful bullying has no place in society nor in the workplace. I believe Americans can express racist thoughts or sexually disgusting statements outside of the workplace to non-employees under our Constitution. But if that person acts on his or her racism or prejudice, in the workplace or in other public places, he or she should be held liable. Most people can't divorce their prejudices from their actions, and therein lies a problem. In my opinion, bullies suck. But bullies learn how to bully from parents or siblings or friends long before they bully someone at work. We should not tolerate racial or sexual harassment, which is different from what one thinks in their head or says in non-workplace or non-harassing environments. It a man at a rally holds up a sign declaring he hates gays, that expression. But if that man harasses or discriminates against gays in the workplace, that's action. There is a specific victim, not just a declaration with no specific harm to an individual.

Someday, maybe we will have a society were most people naturally treat others with respect. There will be no bullying, no harassment, and your gender, or the color of your skin, etc. will not be a hindrance to anyone seeking their American Dream. That is my American dream, anyway.

Am I A Hypocrite?

Yesterday, someone I know and think favorably about, called me a hypocrite, or at least said I acted hypocritically. I am unnerved by this. I have fairly thick skin, but this one has bothered me.

I posted on Facebook in support of a Facebook friend who was disappointed that many white posters failed to mention the slaughter in South Carolina. I posted an article deriding the state of South Carolina for flying the Confederate flag. It was that post that caused this other person to call me out. You see, I am friendly with a local blogger who refuses to edit or delete comments, even if they are racist or disgustingly sexist because he believes in free expression. Some of these "trolls" appear to be disgusting human beings who lack self-esteem and courage and revel in making disgusting comments. Some of those people may be reading my blog now and penning nasty retorts that enrage my husband. There are racist commenters on that blog. But the blogger is not racist.  He is, however, controversial and has made enemies.

When politicians or other public figures make a misstep, he calls them out.  He is harder on those public officials than the regular press is. He has enemies. But, calling out the missteps of public officials and figures exemplifies speech that the First Amendment is designed to protect.  I may not agree with what he says, but I believe he performs a public service in holding public figures accountable.

A state government flying a flag which symbolizes racial oppression differs considerably, in my book, from refusing to delete comments on a blog. The commenters' comments are written by people who are responsible for what they write. It is no one else's responsibility. Those troll commenters show their true cowardice through their anonymity. If someone refuses to take credit and/or responsibility for their missives, it is their character, not the bloggers', which must be questioned.

Their are many controversial people I admire or respect. Bucking the status quo can be courageous. I like misfits and troublemakers. We need people who are willing to question authority. However, I wish there were no nasty racists in Kansas City. I wish people treated each other with respect. I wish governments and corporations would treat all employees, including women, Blacks, Hispanics, older workers, and people with disabilities, the way they want their family members to be treated. Perhaps I am hypocritical, but I can believe in a persons' freedom of expression, no matter how repugnant that expression is, and still believe that the Confederate flag should not be flown by a governmental entity on government grounds.  So, Tony is still my friend even though I dislike the cowardly comments posted by trolls on his blog. The two issues, for me, are not contradictory.

The Importance of Leisure Time

I could really use a vacation!  I need more of this:

I could use a little less of this:

I will need to get a little more balance.   July is my recharge month. I will be pumped in August!

Some Lawsuits Make Me Sick

Apparently, I am a member of a class action against Massage Envy. I was a member, but didn't claim any recovery, in a similar lawsuit against Southwest Airlines, because drink coupons expired. I believe the members of the class got drink coupons and the class counsel received millions of dollars. I guess there is a great public interest in making sure flyers' ability to drink alcohol in the air without paying for the drinks is tantamount. Perhaps we should amend the Constitution.

Here is the email I sent to the class administrator of the Massage Envy class action:

Dear Class Manager:

This case is disgusting. The attorneys get $7,800,000 and the class members get a massage.  I was a member of Massage Envy and when I left I was owed a couple of massages. I will not be asking for reinstatement. 

I am also an employment discrimination plaintiffs' lawyer. This lawsuit and others like it give all plaintiffs' lawyers a bad name. Is this the same firm that handled the class against Southwest Airlines because drink coupons expired?  Give me a break. 

Cases like this make me ashamed to be a lawyer. 

Lynne Jaben Bratcher

BRATCHER GOCKEL LAW, L.C.

P.O. Box 26156

Suite 1935 City Center Square. 1100 Main St.

Kansas City, MO 64196

phone 816-221-1614

fax 816-421-5910

website www.bgklawyers.com