39 UCLA L. Rev. 1791 (1991-1992)
Freedom of Speech and Workplace Harassment

handle is hein.journals/uclalr39 and id is 1805 raw text is: FREEDOM OF SPEECH AND WORKPLACE
HARASSMENT
Eugene Volokh*
Introduction  ..............................................  1793
I. Harassment Law and the Speech It Restricts .......... 1798
A. The Rules of Harassment Law ................... 1798
1. Harassment Generally ....................... 1798
2. Speech-Including Political or Religious
Speech-as Harassment ...................... 1800
B. The Reasons for Suppressing at Least Some
Harassing Speech-a Few Examples .............. 1807
C. How Harassment Law Suppresses Speech ......... 1809
1. The Incentive for Employers to Suppress
Employee Speech   ............................ 1809
2. How Harassment Law Suppresses Speech That
Is Not Sufficiently Severe and Pervasive to
Create a Hostile Work Environment .......... 1811
3. Court-Imposed Remedies That Prohibit
Speech That Does Not Create a Hostile Work
Environm ent  ................................  1814
4. Harassment Law's Restriction of Employee
Speech as State Action ....................... 1816
II. Why Harassment Law Is Not Defensible Under the
Existing First Amendment Exceptions ................ 1819
A. The Workplace Speech Exception .............. 1820
1. Existing Workplace Speech Doctrine ......... 1821
2. The Transactional Setting and Public
Discourse Arguments ....................... 1824
* J.D., UCLA, 1992; B.S., UCLA, 1983. This Comment is dedicated to Anne
and Vladimir Volokh, without whose love and support none of this would have been
possible. The author would also like to thank Craig Bloom, Professor Evan Caminker,
Professor Kenneth Karst, Judge Alex Kozinski, Barbara Lindemann, Rebel Pace,
Michael Rivard, and Alexander Volokh.

1791

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