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28 Whittier L. Rev. 905 (2006-2007)
Actions as Words, Words as Actions: Sexual Harassment Law, the First Amendment and Verbal Acts

handle is hein.journals/whitlr28 and id is 923 raw text is: ACTIONS AS WORDS, WORDS AS ACTIONS: SEXUAL HARASSMENT LAW, THE FIRST AMENDMENT AND VERBAL ACTS JOHN F. WIRENIUS* I. INTRODUCTION For nearly two decades, a debate has smoldered over the perceived tension between the law of sexual harassment and the First Amendment's guarantee of freedom of speech. As the protection against sexual harassment in the workplace spread beyond overt discrimination in discrete employment decisions and quid pro quo sexual harassment to include the less readily quantified hostile work environment, free speech advocates became less sanguine about the compatibility between the protections against workplace discrimination and the First Amendment, especially its proscription of viewpoint discrimination. This previously almost purely academic controversy is likely to take on practical and doctrinal significance with the retirement of Justice Sandra Day O'Connor, and the recent appointment of Justice Samuel Alito to the Supreme Court. Justice Alito authored, as a federal * J.D. Columbia Univ. 1990; B.A. Fordham 1987. Deputy General Counsel, NYC Office of Collective Bargaining. The Author would like to express his thanks to the Hon. Jed S. Rakoff, for productive discussions on the topic of the First Amendment, and to acknowledge valuable feedback received from Mitchell Rubinstein and Catherine Isobe on a previous draft. Finally, the Author notes that any errors are his own, as are the views expressed in this Article, and neither should be attributable to those colleagues or to the Office of Collective Bargaining.

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