Posted by Eugene Volokh:
Further Defense of College Students' First Amendment Rights
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253810999
-- and rejection of the "must prevent hostile environment harassment"
justification for broad campus speech codes -- from Judge George King
in [1]Lopez v. Candaele.
The analysis is generally focused on campus speech codes, and
distinguishes hostile work environment harassment law generally from
similar restrictions emposed on college students. But part of its
reasoning can also apply to [2]First Amendment challenges to the
application of hostile work environment harassment law to otherwise
protected speech:
Defendants quote the Supreme Court�s statement in R.A.V. v. City of
St. Paul, 505 U.S. 377 (1992), that �since words can in some
circumstances violate laws directed not against speech but against
conduct (a law against treason, for example, is violated by telling
the enemy the Nation�s defense secrets), a particular content-based
subcategory of a proscribable class of speech can be swept up
incidently within the reach of a statute directed at conduct rather
than speech.� This reliance on R.A.V. misconstrues the context and
meaning of the Court�s discussion and mistakes its relevance to
this case. In context, the Court was attempting to distinguish
between instances where content-based regulation of a subcategory
of otherwise proscribable speech is unconstitutional (as in the St.
Paul ordinance at issue) from those where �a particular
content-based subcategory of a proscribable class of speech can be
swept up incidentally within the reach of a statute directed at
conduct rather than speech.� The issue before us is whether the
Policy, in including expression within the scope of its regulation,
unduly reaches a substantial amount of otherwise protected speech.
It is no response to assert that a law may regulate a content-based
subclass of unprotected speech that is swept up incidentally within
the reach of a law targeting conduct rather than speech. Indeed,
the Court went on to observe that �[w]here the government does not
target conduct on the basis of its expressive content, acts are not
shielded from regulation merely because they express a
discriminatory idea or philosophy.� Here, the Policy is undeniably
aimed at the content of the expression by prohibiting speech
involving certain content, i.e., sexist comments, insulting remarks
or intrusive comments about one�s gender.
Defendants also cite the Court�s comment that �sexually derogatory
�fighting words,� among other words, may produce a violation of
Title VII�s general prohibition against sexual discrimination in
employment practices, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11
(1991).� They argue that �[t]he [R.A.V.] Court singled out a
time-tested definition of sexual harassment as an example of a
valid proscription of �sexually derogatory fighting words.�� If
this argument means that fighting words can be within the cited CFR
definition of sexual harassment, it is both correct and irrelevant.
Our conclusion is not that the Policy has no valid application.
Rather we held that it was unconstitutionally overbroad by sweeping
within its reach a substantial amount of protected speech. If, on
the other hand, Defendants mean that all speech that offends this
definition is necessarily proscribable as sexually derogatory
fighting words, then we reject this argument as an unwarranted and
unconstitutional enlargement of what constitutes fighting words.
This fits well with the [3]argument about R.A.V. that I've made as to
hostile work environment harassment law.
This case stems from the incident in which an L.A. City College speech
class professor refused to grade a student's presentation, apparently
because of the religious nature of the student's presentation, the
student's expression of opposition for same-sex marriage in the
presentation, or both. (The professor apparently also called the
student a "fascist bastard" in front of the class for having supported
the anti-same-sex-marriage Prop. 8, and refused to let the student
finish the presentation.) The case filed over that became a general
challenge to the campus speech code, which the court [4]preliminarily
enjoined in July. The decision I link to today rejects the defendants'
motion for reconsideration.
References
1.
http://www.archive.org/download/gov.uscourts.cacd.437120/gov.uscourts.cacd.437120.61.0.pdf
2. http://www.law.ucla.edu/volokh/harass
3. http://www.law.ucla.edu/volokh/harass/substanc.htm#RAV
4. http://www.volokh.com/posts/1247685307.shtml
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