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
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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
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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
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''[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
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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
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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
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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
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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?
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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.
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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
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Content Matters
– Severity and Pervasiveness
– Impact of the speech on the individual or
protected group (note: this may implicate offcampus 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
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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?
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Internet/e-mail
Facebook and My Space
The Law of Harassment
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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
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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?
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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
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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
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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
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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
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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
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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
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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 coworkers in creating story lines for a show