What Speech Does Hostile Work Environment Harassment Law Restrict
![handle is hein.journals/glj85 and id is 647 raw text is: What Speech Does Hostile Work Environment
Harassment Law Restrict?
EUGENE VOLOKH*
The first step in evaluating a speech restriction is figuring out exactly what it
restricts. The debate about the constitutionality of hostile work environment
harassment law is in large part a debate about this.
If harassment law bans only hard-core pornography, personal slurs, and
repeated indecent propositions, people might have one view about it. If, on the
other hand, it restricts political and religious statements, prints of Francisco de
Goya paintings, sexually themed (perhaps not even misogynistic) jokes, and the
like, people's views might be quite different. Some might condemn the law in
either event, and some might approve of it in either event, but for quite a few
people the decision may be influenced by the law's scope.
I'm deeply flattered that Professor Epstein chose to respond to my article on
freedom of speech and workplace harassment.' We disagree on many points, but
I very much respect her contribution to the literature. With her article and some
of the others that have recently been written on this subject, the various First
Amendment doctrinal arguments have finally been fully aired.2 Likewise, the
© 1997 by Eugene Volokh.
* Acting Professor, UCLA Law School (volokh@law.ucla.edu). Many thanks to David Binder, Evan
Caminker, Kenneth Karst, Daniel Lowenstein, Elaine Mandel, David Sklansky, Jonathan Varat, and
especially the reference staff at the UCLA Law Library for their help. This article is dedicated to the
memory of my teacher and colleague Julian Eule.
1. Deborah Epstein, Can a Dumb Ass Woman Achieve Equality in the Workplace? Running the
Gauntlet of Hostile Environment Harassing Speech,. 84 GEO. L.J. 399 (1996) (responding to Kingsley
R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52
OHIO ST. L.J. 481 (1991) [hereinafter Browne, Title VII as Censorship] and Eugene Volokh, Comment,
Freedom of Speech and Workplace Harassment, 39 UCLA L. REv. 1791 (1992).
I understand that Professor Epstein is writing a rejoinder to this reply. I have not had an opportunity
to see it, so readers should not interpret my failure to respond to her points as a casual dismissal of them
(or as acquiescence in them).
2. See, e.g., Browne, Title VII as Censorship, supra note 1; Kingsley R. Browne, Workplace
Censorship: A Response to Professor Sangree, 47 RUTGERS L. REv. 579 (1995); Cynthia Estlund,
Freedom of Speech in the Workplace and the Problem of Discriminatory Harassment, 75 TEx. L. REv.
(forthcoming 1997); Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First
Amendment Dog That Didn't Bark, 1994 Sup. CT. REv. 1; Suzanne Sangree, Title VII Prohibitions
Against Hostile Environment Sexual Harassment and the First Amendment: No Collision in Sight, 47
RUTGERS L. REv. 461 (1995); Suzanne Sangree, A Reply to Professors Volokh and Browne, 47 RUTGERS
L. REV. 595 (1995); Nadine Strossen, Regulating Workplace Sexual Harassment and Upholding the
First Amendment-Avoiding a Collision, 37 VILL. L. REv. 757 (1992); Volokh, Freedom of Speech and
Workplace Harassment, supra note 1; Eugene Volokh, How Harassment Law Restricts Free Speech, 47
RUTGERS L. REv. 563 (1995); Eugene Volokh, Thinking Ahead About Freedom of Speech and Hostile
Work Environment Harassment, 17 BERKELEY J. EMP. & LABOR L. 305 (1996); cf Eugene Volokh,
Freedom of Speech and Appellate Review in Workplace Harassment Cases, 90 Nw. U. L. Rev. 1009
(1996) (discussing procedural requirements mandated by the Free Speech Clause in appeals of
harassment cases).](ViewImageLocal?handle=hein.journals/glj85&div=25&collection=&method=preview&ext=.png&size=3)
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What Speech Does Hostile Work Environment Harassment Law Restrict
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