WHEN DOES SPEECH BECOME HARASSMENT?

The Intersection Between The Law Of Harassment And Speech Rights On Campus JHU DLC DIVERSITY CONFERENCE NOVEMBER 1, 2006 Gerard D. St. Ours Associate General Counsel The Johns Hopkins University

Starting point: Speech and Equal Opportunity on a Diverse Academic Campus

    My focus will be an academic exploration of what actions a private institution can and/or must take to regulate speech in connection with its legal obligation to provide equal opportunity to all, regardless of race, ethnicity, gender, religion, disability or sexual orientation. What parameters can or must an institution place on speech that preserve the free exchange of ideas but also foster a campus that is free of discriminatory harassment? What should it do to advance its paramount interest in maintaining and enhancing a diverse campus where people of all backgrounds feel welcome and can fully participate and contribute to academic life?

We may raise more questions than we answer, but I hope we’ll all learn from our free exchange of ideas!

First Amendment Rights have Limits, and the Constitution only Limits State Action

  Private entities like JHU are free to regulate or prohibit speech, and the First Amendment does not place any limitations on such private action.

The Constitution also permits the State to regulate the “time, place and manner” of speech, and to restrain or prohibit certain speech (e.g., obscenity, non-obscene child pornography, “fighting words,” and incitement to lawless action, crimes or terrorism)

Limits on Free Speech - - What the Supreme Court Has Said

 ''[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.‘” – Chaplinsky v. New Hampshire , 315 U.S. 568 (1942)

Group Libel

  In Beauharnais v. Illinois , the Supreme Court upheld a libel law which made it unlawful to defame a race or class of people. The defendant had been convicted for distributing a leaflet, a part of which was in the form of a petition, taking a hard-line white supremacy position and calling for action to keep African Americans out of white neighborhoods. 343 U.S. 250 (1952); excerpt taken from Findlaw: http://supreme.lp.findlaw.com/constitution/amendment01/18.html#1 Subsequent cases, mainly in the area of defamation law, call into question the ongoing viability of this case. Id . However, it remains a historical example of the limits that have been placed on speech, even where the stakes involve criminal liability for the speaker on a matter of public interest.

Continuum and Context of Regulation

      Laws that make it a crime to speak in certain contexts (e.g., “fighting words;” threats, public safety (yelling “fire” in a crowded theater, conduct constituting sedition or threat of armed rebellion) Prohibitions based on the legal obligation to provide a workplace or campus that is free of discriminatory harassment Private institution policy against certain speech in connection with use of facilities or retaining affiliation or association with a private institution (such as JHU) Disciplinary action by a private entity (up to and including expulsion or termination) for engaging in speech that is offensive - - even where such speech may fall short of legal harassment Codes that prohibit hate speech or use of epithets and slurs All of the above can be permissible restraints on speech

Legal prohibition on Harassment

 Several laws and JHU policy prohibit harassment: – Title VII (prohibits workplace discrimination on the basis of race, religion, national origin and gender, including conduct that creates a “hostile work environment” on the basis of these classifications) – Title IX (gender) and Title VI (race, color and national origin) prohibit conduct that creates a “hostile learning environment” at educational institutions – ADA and the Rehabilitation Act prohibit harassment on the basis of disability in both the workplace and in educational programs – State and local laws (which include prohibitions on sexual orientation and gender identity/expression) – JHU anti-harassment policy:

http://www.jhuoie.org/Text/Anti-Harassment-Policy.pdf

What is Harassment?

  JHU policy defines harassment as: – any type of behavior which is based on gender, marital status, pregnancy, race, color, ethnicity, national origin, age, disability, religion, sexual orientation, gender identity or expression, veteran status, that – is so severe or pervasive that it interferes with an individual’s work or academic performance or creates an intimidating, hostile or offensive working or academic environment.

It further states: “Harassment . . . may include, but is not limited to: unwanted physical contact; use of epithets, inappropriate jokes, comments or innuendos; obscene or harassing telephone calls, e-mails, letters, notes or other forms of communication; and, any conduct that may create a hostile working or academic environment.”

The Law of Harassment

 Content Matters – Severity and Pervasiveness – Impact of the speech on the individual or protected group (note: this may implicate off campus speech that reaches a campus audience) – Isolated comments vs. pattern or repeated comments – Whether content is necessary or relevant in the context

The Law of Harassment

 Context Matters – Workplace vs. campus bulletin board – Public Space vs. residence hall – Espousal of viewpoint vs. directing comments at a specific person – Location (classroom or educational forum vs. offensive comments in an advertisement, etc.) – On campus vs. off campus; at work vs. at home – Use of institution’s resources?

  Internet/e-mail Facebook and My Space

The Law of Harassment

 Harassment Law is not a “civility code,” but rather focuses on the impact of the speech on the environment – In the workplace, the law prohibits behavior that is so objectively offensive as to alter the conditions of the victim’s employment – In an academic setting, where speech in effect denies or limits a student’s ability to participate in or benefit from academic life, it would constitute illegal harassment

Reasonable Person Standard

 Conduct/speech must be evaluated from the perspective of a “reasonable person”

in the alleged victim’s position

, considering all the circumstances – This means that the environment in which the speech occurs is relevant – Put yourself in the shoes of the listener and consider how the conduct would be perceived by that person in the particular context

Who is the Speaker?

 Person w/authority vs. a peer or a subordinate – If the institution has notice of such matters, there is a legal obligation to investigate and take appropriate action to stop harassment, whether the behavior is being engaged in by individuals in positions of authority, students, peers or others – Statements by fellow students or by peers or individuals who are not in a position of authority can create a hostile environment – The existence of an anti-harassment policy and grievance procedure is relevant to the issue of whether the institution will be liable for the harassing conduct

Conduct does not Need to be at the Level of Legal Violation before it can be Regulated by an Institution

    Statements that may expose the institution to liability Statements that may impact the reputation or standing of the institution – JHU Student code of conduct : “[JHU expects students] to refrain from behavior that that impairs the university’s purpose or its reputation in the community.” Rules that place limits on speech may enhance academic freedom by providing a meaningful opportunity for all to contribute to campus discourse Time, place and manner restrictions – E.g., the JHU posters and publications policy

Scenarios

    Suspending an ice hockey team from competition because of its use of a flyer containing the institution’s name and vulgar language A college with a requirement that “all educators need to believe that schools can be sites for social transformation” Withdrawing a speaking invitation to the president of a foreign country who has called the Holocaust a “myth.” Aggressively protesting a speech by the leader of a group that espouses armed border patrols to fight illegal immigration

Scenarios

  Muslim female professor is barraged with critical messages after leading a public prayer to express her understanding of how Islam should be interpreted; college decides to have her teach her courses via video link Professor’s writings claims 9/11 victimes were part of the military-industrial complex that caused the attack

Scenarios

      The unwelcome posting of neo-Nazi symbols on the dormitory door of a Jewish student Posting racially derogatory comments and slurs on Facebook that are widely accessed by the campus community Making sexually explicit comments about an instructor on My Space A faculty member posts sexually explicit images on a website he has created using his home computer Espousing comments that are anti-Christian in a biology class In a speech, a college president makes reference to students with learning disabilities as a “plague” and other derogatory comments

Scenarios

   Refusing to recognize a student group that declined to adopt and abide by the school’s policy prohibiting discrimination based on religion and sexual orientation.

Prohibiting a student from wearing a t-shirt with a derogatory message about homosexuality.

Prohibiting an instructor from distributing anti-gay pamphlets entitled “Sin City” and “Doom Town” to a homosexual student.

Scenarios

    Removal of copies of a publication containing photos that identify students as homosexual from a college residence hall pursuant to a “anti-clutter” policy Removal of cartoon images of Mohammed with an “exploding turban” from campus bulletin boards Disciplining a faculty member who belittles an African-American student for his controversial argument in class about payment of reparations for slavery Suing an employer over being exposed to vulgar expressions and sexually explicit language of co workers in creating story lines for a show