Sunday, June 28, 2015

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.

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