Certain illusions about speech: why the free-speech critique of hostile work environment harassment is wrong.

• Author: McGowan, Miranda Oshige

Can antidiscrimination laws punish hostile work environment harassment without infringing freedom of speech and expression? Consider the following examples of nude pictures displayed in different workplaces.

Joan is the only woman welder at a shipyard. Her coworkers have posted sexually explicit centerfolds, calendars, and cartoon depictions of nude women from Playboy, Hustler, and similar magazines throughout common areas--the break room, the cafeteria, the halls, and the equipment room. (1) Some of the posters could be construed as political statements about the proper role of women: In one of the photos, a woman wears just an apron; in another, a woman wears a skimpy nurse's outfit. The pictures unnerve Joan, and she asks her supervisors to have the pictures removed. They tell her she's nuts if she thinks men in a shipyard will take down their girlie pictures. Get used to it, they tell her. She sues, alleging that the pictures have created a sexually hostile work environment.

The Museum of Modern Art is running an exhibition on "Playboy: Transforming the Body in American Society," which features enlarged versions of Playboy centerfolds to document changes in American visions of female beauty. A woman security guard objects to being assigned to the gallery in which this exhibition is being held. MoMA refuses to reassign her, and she sues, alleging that the pictures have created a hostile work environment.

Librarians have sued the Minneapolis Public Library for failing to correct a hostile work environment. The librarians claim that male patrons have been using the library's Internet kiosks to surf pornography sites. The librarians can see the computer screens from the reference desk. At least once a day, they see raunchy pictures of various sex acts (and those are the tame ones). Often, the patrons use the library's color printers to print these pictures, but then forget to retrieve them. When the librarians clean out old print jobs, they see these images. The librarians must also enforce time limits on Internet use; sometimes patrons will react aggressively when the librarians ask them to relinquish a computer. One patron yelled at a librarian, and another threw a chair across the room after being asked to sign off. The librarians have complained to the directors of the library. The library directors have been unwilling to install Internet filters, claiming that the First Amendment prevents them from doing so. Disgusted, the librarians have filed a complaint with the EEOC.

In each of these examples, the meaning of the expression changes in each of the three workplaces--though the surface content of the depictions is the same. These examples suggest that our reaction to whether expression should properly form the basis of a harassment claim has less to do with what is said or displayed than with the context in which the words are uttered or the images are displayed. I advance that thesis here.

Part I argues that the First Amendment status of expression in the workplace is determined by context, not by bright-line rules. Workplaces have varying missions, and a workplace's mission affects how workers encounter expression. The social benefits of expression and the social costs of regulating it are also affected by a workplace's mission.

Some workplaces are organized primarily to make money by designing, making, or selling a product or providing some service. Any expressive aspects of the product or service (the Volkswagen Bug's evocation of nostalgia) are directed towards something other than thought, deliberation, or debate among consumers of the product or service. A few examples would be food, clothing, or car retailers, manufacturers, pharmaceutical companies, construction companies, and accounting firms.

Other workplaces have a communicative or expressive mission. They are organized around the purpose of communicating an idea or message, sparking conversation, argument, or thought among patrons, or providing a place for patrons to engage in conversation. A "communicative workplace," in other words, produces or supports the production of expression that is itself ordinarily protected by the First Amendment. Museums and art galleries, (2) newspapers (3) and magazines, (4) and concert halls (5) would all be communicative workplaces. In Part I, I argue that some expression in communicative workplaces may merit different treatment under the First Amendment because it contributes to public discourse.

All workplaces do some business through expression that does not implicate First Amendment values, and communicative workplaces are no exception. These non-discursive aspects of all workplaces explain why no employer--not a museum, not a newspaper (6)--could claim First Amendment protection against an employee's breach of contract suit. These aspects of all businesses also explain why a museum guard suing for harassment over pornography in the employees' lunchroom should be treated differently from a guard who sues over the same pictures displayed in the museum gallery as part of an exhibit.

Generally, harassment claims arising out of direct communications between supervisors and subordinates pose little if any First Amendment problem, whether they arise in communicative or ordinary workplaces. The same is true for harassment claims based on direct interactions among coworkers. Environmental harassment claims or claims based on harassment by a business's customers may engender greater First Amendment worries when the customers are engaging in or responding to First Amendment activities within the realm of public discourse. The First Amendment would (and should) prohibit a museum employee's hostile work environment suit based on patrons' tasteless comments about an exhibit. Within the realm of public discourse, the First Amendment requires government regulations on expression to be neutral about substantive issues, including race and sex equality. Within ordinary workplaces, however, the law should strike a different balance between expression and equality. Most employee speech within ordinary workplaces has only a marginal relationship to public discourse. The government's interest in ensuring equal opportunity in ordinary workplaces generally outweighs employees' interests in engaging in unfettered debate at work.

My contextual approach is open to the criticism that allowing First Amendment protection to hinge on something as amorphous as "contextual meaning" could discourage a good deal of speech because people fear coming too close to the line between protected and punishable speech. Part II will refute the "chill" argument. The First Amendment is just not about bright-line rules. Bright-line rules play an important role only with regard to a tiny amount of expression and their importance is overstated even there. Courts routinely deploy "reasonable person" standards and analyze the meaning of statements in context in defamation and other dignitary tort cases--even when unquestionably political, nationally published speech is at issue. Hostile environment's standards closely resemble those of other dignitary torts. Moreover, the chill argument assumes that all employers have the same incentives to avoid hostile work environment liability by stifling potentially offensive speech by employees and customers. This assumption is overly simplistic. Organizations that participate in, promote, or support public discourse have few incentives to adopt policies unfriendly to speech.

1. HOW DOES WORKPLACE CONTEXT AFFECT THE CHARACTER OF "SPEECH" UNDER THE FIRST AMENDMENT?

   "Speech" in the First Amendment context is a term of art that has both a broader and narrower meaning than when used conversationally. (7) It is broader because it encompasses more than verbal conduct. Pictures and symbols, not just words, are protected, (8) as well as some expressive conduct such as the wearing of an armband and flag burning. (9)

   "Speech" also has a narrower meaning than it doe sin ordinary usage. (10) Words used to contract fall within the category of "verbal actions" known as "performatives." Performatives are utterances or writings that do not describe, report, or assert something and are not falsifiable. The words are part of some action that itself would not be described as "saying" something. (11) Speech is a performative when to say something is to do something beyond the act of uttering the words themselves. (12) Other such examples of verbal actions include the vow to marry and a will that bequeaths an estate. The First Amendment protects none of these verbal "actions."

   The range of utterances, writings, and depictions that the government may freely regulate is not limited to performatives. We often perceive regulable utterances, writings, and depictions as action rather than as speech, much in the same way that we see performatives as doing, not merely saying, something. Incitement, graffiti on private property, and product warning and content labels, are all examples of this sort of non-performative but regulable utterance. (13) Indeed, First Amendment speech could be characterized as the exception to the more general rule that "linguistic behavior--speech in the ordinary language sense--is subject to control on the same standards as is any other behavior." (14) At the very least, "for a vast range of verbal, linguistic, or pictorial conduct" the First Amendment is just not "part of the picture." (15)

   1. WORK'S INEVITABLE ECONOMIC SPHERE

      All employment relations involve some expression that does not and should not receive First Amendment scrutiny. Employment contracts, disclosures of safety conditions, and union-management interactions are all highly regulated. But regulations of these utterances and writings at work do not strike us as regulations of "speech," because, in each case, the speech being regulated is instrumental to accomplishing some end that is not itself protected by the First Amendment.

      When we...