Ch. 3 Nonsubordination
“the personal is political” [dirty little
secret: within communities organized
around common affiliation]
Anita Faye Hill
Testified Oct. 11, 1991. U.S. & around world
“click.” Gave face to what many women
experienced in
silence, gave
voice to them/us.
B. 1. Sexual Harassment (SH) in the
Workplace
pp. 246-52
• MacKinnon (‘79 & ‘87): it’s all about “sex” [0
else matters]. Rape, battery, prosti’n, poverty,
pornography ignored b/c happen “almost
exclusively to women.”
• Abrams (‘89): 1) fear of sexual coercion; 2)
marginalizing effect
• Hébert(‘94): T-7 expert; it’s not about sex but
economic domination. See especially in high
positions, nontraditional jobs. (Strauss-Kahn &
SH in IMF, widespread internal culture)
bot. p. 245, not assigned
B. 1. Sexual Harassment in the
Workplace
pp. 246-52
• Abrams (Cornell ‘98) subtler … demand
conformity to dominant feminine stereotypes
outside workplace; “mere presence is not equal
to influence or control”
– Hmmm… pending NYC (class action?) suits v.
brokerage houses, after-hours “bonding” events at
stripclubs
• Schultz (Yale ‘98) maintain most highly regarded
jobs as masculine domains. Key question:
whether purpose or effect to undermine equal
footing in workplace. N.B. Other work on
“caregiving”
B. 1. Sexual Harassment in the
Workplace
pp. 246-52
• Franke (Stan. ‘97): SH as “technology of
sexism,” system of gender norms, women &
men as (hetero)sexual objects
B. 1. Sexual Harassment in the
Workplace
pp. 252-55
Harris v. Forklift Systems, Inc. (‘93) (locker room smut,
supervisor’s sexual innuendos, constructive discharge) H:
hostile workplace environment actionable under Title VII.
Standard: conduct must be sufficiently severe/pervasive
to create “objectively hostile or abusive environment”
AND “subjectively perceive[d]” as such by π.
Q: how is objective standard applied – reasonable
woman? Or “reasonable person:?
Q: Real world significance? (go along w/ dirty jokes, etc.)
- Joan Kennedy Taylor, “Libertarian Feminists.”
Rene v. MGM Grand Hotel, Inc.
(9th ‘02)
Rene v. MGM Grand Hotel, Inc.
(9th ’02 en banc, 5-4!, cert. denied ‘03)
• Gross factual allegations; co-worker behavior
included sexual assault & batteries. Openly gay π
(“light in loafers”?), fired from hotel butler
position; wrongful discharge action. Alleged: “b/c
of my sex, male.”
• D. Ct. dismissed on summary jdgmt. (pre-Iqbal;
now much easier to dismiss on pleadings)
• I b/4 9th: whether T-7 language: “because of
sex” > courts split.
Rene v. MGM Grand Hotel, Inc.
(9th ’02 en banc, 5-4!, cert. denied ‘03)
• Oncale (‘98) : Some SCOTUS guidance, but
parameters remain uncertain. (Gulf coast oil
rig, married male π perceived as gay, violent
sexual assault) Held, T-7 c/a for male on male
SH.
• 9th Cir. maj., held: c/a for use of forbidden
criterion for disadvantageous difference in
treatment b/c of sex discrimination. Π
showed discrim’n in comparison to other men.
P. 258
Text authors & Mary Ann Case
p. 262
• 9th Cir. adopted theory of sex stereotyping, that
men harass other men to enforce traditional
heterosexual male gender role by encouraging
stereotypical masculine behavior and punishing
males who contaminate workplace with “taint
of feminine passivity.”
• N.B. Surprising dissenters (Schroeder & Nelson)
Maj. “completely eliminates essential element of
stat. “b/c of discrim’n” in 5 protected categories.
Line-drawing
• When “unwelcome”? [proof needed]
• When should employer be held vicariously
liable for subordinate conduct?
• Prevention policies: exercise in political
correctness? Incest ban vs. true love
exception?
• Workplace realities, especially when
demanding professional jobs. What other
opportunities available???? LOL
Discussion Questions
N. 2, p. 261: liability when “equal
opportunity harasser”? (jerk to everyone?)
7th: No.
N. 3, p. 263: perception gap between men
& women; diminishing? (avoid
essentialism) N. 4: “unwelcome” N.6
Notice to -er
N. 7, p. 267 Harassment Prevention Policies
N. 8, p. 270, Race + Sex, intersectionality
2. SH in Educational Institutions
pp. 272-78
Gebser v. Lago Indep. School Dist., (‘98)(5-4)
O’Connor for maj.: no liability unless officials
had actual notice of specific misconduct,
responded w/ “deliberate indifference”
Policy: encourage T-9 compliance scheme;
prerequisite of notice to school conserves
resources.
Stevens’ dissent: encourages administrators to
“see no evil”; ostrich-like behavior.
2. SH in Ed’n: Peer Harassment
Davis v. Monroe County Bd of Ed’n (‘99)
Facts: 5 months of “severe, pervasive and objectively
offensive” misconduct by 5th grade boy against girl, w/
nonconsensual physical contact on school property (crim.
guilty plea). Mom repeatedly reported to school officials,
who did 0.
O’Connor: upheld T-9 liability where “deliberate
indifference to known harassment” where school
“exercises subst’l control over harasser” & property
where it occurs, & so bad as to deprive π of ed’l
opportunities or benefits.
2. SH in Ed’n: Peer Harassment
Fitzgerald v. Barnstable School Committee (‘09)
Alioto, unanimous: T-9 is not exclusive remedy;
public school can be held liable under §1983 for
failing to respond to serious harassment by student
against another where school officials put on clear
notice. H: Dismissal of complaint erroneous.
Bad conduct on school bus: 3d grader repeatedly
forced kindergartner to hold up skirt, pull down
pants & show privates. School did 0 to correct.
2. SH in Ed’n: Speech & Conduct
Codes to Prevent
How to formulate one that allows marketplace
of ideas, withstands 1st Amendment challenge?
Other ways to address?
2. SH in Higher Ed’n: Student-Faculty
Dating
Issues:
Power/coercion
Consenting adults, “true love” exception?
Adverse consequences to student/lover? To
other students?
Impact on academic environment?
Workable, wise solutions, policies?
D. Pornography
pp. 315-316, 317, 323-29
• Sex sells. Frank Rich (2001): combined
annual industry revenues $10-14 BILLION!
Americans spend more on pornography than
on ALL OTHER movies, performing arts,
professional football, basketball & baseball
combined.
D. Pornography
pp. 315-316, 317, 323-29
Catharine MacKinnon & Andrea Dworkin:
campaign > Indianapolis ordinance defining as
discrimination v. women.
MacKinnon, Pornography as
Defamation & Discrimination (1991)
p. 317
Claims evidence establishes that pornography
use 1) “makes it impossible for men to tell when
sex is forced, that women are human and that
rape is rape.….makes men hostile and aggressive
toward women, [2)] and it makes women silent.”
Clicker re 1: agree/disagree?
Clicker re 2: agree/disagree?
Rhode, Speaking of Sex: The Denial of
Gender Equality
pp. 323-24
• Empirical data shows that “exposure to
sexually violent material increases viewers’
expressed willingness to commit rape and
decreases their sensitivity to its damage.”
• 2/29/12 news: empirical study of increased
auto accidents 5 days after NASCAR race.
Q: what, if anything, is normative message of
this pornography data?
Brown v. Entertainment Merchants
Ass’n, 131 S.Ct. 2729 (June 27, 2011)
Trade group representing videogame producers
sought declaratory judgment challenging Cal. Law
imposing restrictions & labeling requirements on
sale or rental of “violent video games” to minors.
7-2, Scalia for maj.: games qualified for 1st Am.
Protection; refused to expand list of permissible
bans on content-based restrictions beyond
obscenity, incitement & fighting words. (“too
harmful to be tolerated”)
Brown v. Entertainment Merchants
Ass’n, 131 S.Ct. 2729 (June 27, 2011)
• Overinclusive: Grimms’ Fairy Tales, The
Odyssey of Homer, Dante’s Inferno, Lord of the
Flies.
• Alito’s concurring op. discusses his
independent research on astounding violence.
Scalia: disgust is not valid basis to restrict
expression; highlights precise danger, that the
ideas and not the objective effects of the
speech are real basis for statutory restriction.
Brown v. Entertainment Merchants
Ass’n, 131 S.Ct. 2729 (June 27, 2011)
• Thomas dissent: Founders’ original intent
extended to parental authority restricting
communication to malleable children.
• Breyer dissent: facial challenge should fail
because narrowly drawn, reasonable game maker
would know of applicable games for which sale or
rental to unaccompanied minors (<18) are
prohibited & require labels: where player kills,
maims, dismembers or sexually assaults image of
human being, appeals to deviant or morbid
interests of minors & lacking in redeeming value.
Does Breyer’s dissent fit w/ empirical
data?
• yes/no
• Is there any formulation possible that could
withstand 1st Amendment challenge?
N. 4 Porn, Internet & Children
pp. 327-28
• Difficulties of policing, especially with
encryption. In re Subpoena Duces Tecum v.
John Doe (11th Cir. Feb. 23, 2012)(individual’s
act of decrypting and producing the hard
drives’ contents was sufficiently testimonial to
trigger Fifth Amendment protection;
subpoena quashed)
• Congress keeps trying…
Communications Decency Act
• criminalized transmission of obscene or
indecent & patently offensive messages TO a
minor
• Reno v. ACLU (S.Ct. ‘97) (overbroad restrictions
on speech) fn. 204, p. 327
Child Online Protection Act (COPA)
• Criminalized knowingly making available to
minors through Internet commercial materials
“harmful to minors”; required websites to use
age verification mechanisms.
• Ashcroft v. ACLU (S.Ct. ‘04)(overbroad,
transmitting Shakespeare’s Romeo and Juliet
could be considered criminal; less restrictive
alternatives available) fn. 204, p. 327
18 U.S.C. § 2252A COPA (??)
CERTAIN ACTIVITIES RELATING TO MATERIAL
CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY
• Applies to child pornography in or affecting
interstate or foreign commerce by any means,
including by computer.
• Criminalizes knowing receipt, distribution, sale,
possession, or access with intent to view.
• U.S. v. Williams (S.Ct. 2008)(upheld as applied
because criminalized advertising for illegal
pornography
18 U.S.C. § 2252A
DEFINITIONS
• “Distribution” includes making passively available
online through file sharing
• “Possession” mens rea knowingly
requires awareness/knowledge of physical
control (passive pop ups, auto-saved thumbnails)
• “Child Pornography” real children, or morphed
images indistinguishable from real children (does
not include drawings, cartoons, sculptures, or
paintings)
18 U.S.C. § 2252A
AFFIRMATIVE DEFENSES
• Necessity: trying to destroy images
Statutory Defenses:
• Possession or access with intent to view:
– Less than 3 images
– Immediately destroyed them or gave them to
police
• Actor not a child, actually an adult Ashcroft v.
Free Speech Coalition (S.Ct. 2002)
Children’s Internet Protection Act
(CIPA)
• Requires publicly funded schools & libraries
providing public Internet access to block or filter
child porn.
• U.S. v. American Library Ass’n, Inc. (S.Ct.
‘03)challenged as prior restraint; Ct conditionally
upheld p. 327-28, n. 206. Left open possibility for
later challenge if, as applied, software
erroneously blocked constitutionally protected
material & librarians did not unblock.
Does U.S. population care enough to
restrict?
•
•
•
•
Yes/no?
Why/why not?
Marketplace of ideas
Is there agreement within this class as to
whether or not to further regulate
pornography?
• Clicker: 1) yes, regulate 2) no, don’t bother
Child Sex Abuse
• Norman’s Mary Abbott House
http://maryabbottchildrenshouse.wordpress.co
m/2011/12/15/2011-abbott-house-educationalvideo/
Cleveland County District Attorneys