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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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