The Volokh Conspiracy

I was invited to testify on this subject at today’s U.S. Commission on Civil Rights briefing on Federal Civil Rights Engagement with the Arab and Muslim American Communities Post 9/11, so I thought I’d pass along my written remarks. You can read them in PDF form here, or in plain text below (though without the footnotes). My sense from the questions was that at least some commissioners (and not only the conservative ones) found the subject matter of the remarks interesting.

October 29, 2012

U.S. Commission on Civil Rights
624 9th St., NW
Washington, DC 20425

Dear Members of the Commission:

I entirely agree that the religious freedom rights and free speech rights of Muslim Americans, as well as all other Americans, should be protected. I have publicly spoken out, for instance, in favor of applying religious accommodation law to Muslim employees as well as to others. I have condemned attempts to criticize Muslim office-holders for taking their oath of office on a Koran. I have spoken in favor of extending mosques the same property rights extended to other property owners, and against attempts to exclude mosques from particular areas. And I agree that the government should take steps to make Muslim Americans, like Americans of all religions, feel welcome in America.

At the same time, attempts to make adherents of minority religions feel welcome should not end up suppressing the free speech rights of others who seek to criticize those religions. Islam, like other belief systems — Catholicism, Scientology, libertarianism, feminism, or what have you — merits evaluation and, at times, criticism. And under the First Amendment, even intemperate and wrong-headed criticism is fully constitutionally protected. Yet unfortunately attempts at suppression of criticism of Islam have been distressingly frequent.

Universities: Thus, for instance, San Francisco State University’s College Republicans held an anti-terrorism rally at which they stepped on homemade replicas of Hamas and Hezbollah flags, which contain the word “Allah” in Arabic. The students were apparently unaware of the flags’ Arabic content, but the students’ symbolic expression of contempt for Hamas and Hezbollah would be constitutionally protected even if they knew what the flags contained — Hamas and Hezbollah are not immunized from such expressions by the religious content of their flags.

Yet offended students filed charges of “attempts to incite violence and create a hostile environment” and “actions of incivility,” prompting a university “investigation” that lasted five months. The university defended the process, noting that the complaint was not “about the desecration of the flag,” but about “the desecration of Allah.” It took a federal lawsuit and an injunction by a federal judge to strike down the unconstitutional speech code under which these complaints were filed.

Likewise, at Century College, a public school in Minnesota, administrators ordered a professor to take down copies of the Mohammed cartoons that she had posted on a bulletin board outside her office. At Purdue University, Muslim students claimed that a professor’s statements criticizing Muslims on his Facebook page were “discrimination” and “harassment,” and called for his firing; it took several months for the university investigation to absolve the professor of these charges.

Continue reading ‘U.S. Commission on Civil Rights Testimony on the First Amendment and Anti-Muslim/Anti-Islam Speech’ »

From the Washington Post:

Walk into The Pug today, and you can order a beer or a shot, but you can no longer order “Marion Berry’s Dirty Asian Summer Punch.”

The punch, a fruity vodka concoction, was whipped up by the H Street NE bar’s owner, Tony Tomelden, as an admittedly crude but satirical tribute to D.C. Council member Marion Barry’s controversial comments this year criticizing Asian shop owners and Filipino nurses. “The Ward 8 Special,” he called it.

“I put it up there for a reason,” Tomelden said. “He gets away with this stuff continuously.”

There’s more: Drawn on a chalkboard behind the bar was an advertisement for the punch featuring an Asian caricature — bald, with slanted eyes and buck teeth. “No tickee, no punchee,” the sign says.

As I said, admittedly crude. To many, just plain offensive. But illegal?

The sign was removed Friday after a city agency threatened to drag Tomelden before the D.C. Commission on Human Rights in a rare display of the city’s little-known power to regulate speech in places of public accommodation.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

This, I think, applies at least as clearly to satirical speech such as this (see here for what the satire is referring to), though I think it should apply to outright racist, sexist, and religiously bigoted material as well. Indeed, the presence of such products or decor in a business establishment could lead people of various groups not to want to shop there; but that is not a sufficient reason, I think, to suppress the business’s speech. (To answer the regularly asked question, if some place has a sign saying “we don’t serve Jews,” that might be illegal because it states to people that they will indeed not be served there. But if a bar wants to decorate using swastikas, or KKK memorabilia, or Hamas propaganda — and expresses a willingness to serve Jews, even if the speech leads Jews to be unwilling to drink there — the First Amendment protects that.)

For some caselaw on the subject, compare Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) (saying that use of Sambo’s name was protected by the First Amendment even if it was offensive to black customers) and Sambo’s v. City Council of City of Toledo, 466 F. Supp. 177 (N.D. Ohio 1979) (holding that it was unconstitutional for a city to deny sign permits to Sambo’s because of its name) with In re Urban League v. Sambo’s, No. 79 PRA 674-06/06 (R.I. Comm’n for Hum. Rts. Mar. 16, 1981), reaching the opposite conclusion. I think the Sixth Circuit majority opinion is correct.

The complaint, filed with the Illinois Department of Human Rights, alleges that Chick-fil-A discriminated against gays in public accommodations. Now none of the allegations suggest that Chick-fil-A employees refused to serve gays, or treated gay customers differently from straight ones. Rather, the argument is that “the company’s widely published corporate philosophy, culture and policies make clear to [complainant] that as an unmarried homosexual in a ‘non-traditional’ family unit, I am inferior to married heterosexuals and therefore, unwelcome, objectionable and unacceptable to Chick-fil-A.”

The Civil Rights Agenda press release puts the matter well:

The complainants are a same-gender family with a daughter. Chick-fil-A used to be one of their favorite places to eat until Mr. Cathy’s latest statements were reported so widely. Now, they feel completely unwelcome in the establishment.

Despite the Agenda’s protestations (“The Civil Rights Agenda is quick to point out that this is not a First Amendment Issue”), the complaint is all about speech: Because the corporation’s officials are expressing views that disapprove of homosexuality, the theory goes, the government is supposed to hold the company liable — again, without any evidence that any particular person was denied service because of his homosexuality.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

But the Civil Rights Agenda is going further still: They are arguing that it violates public accommodations environment law for companies to express certain viewpoints even in their officials’ public statements. That theory is even more clearly violative of the companies’ First Amendment rights. I hope the Illinois Department of Human Rights recognizes that Illinois public accommodation law doesn’t cover such situations — but, if it does cover them, the First Amendment prevents it from being enforced.

Apropos yesterday’s Confederate flag / First Amendment post, here’s a story from March: A Delaware Department of Transportation employee had, for 17 years, a decorative plate that said “REDNECK” on a Confederate flag background. A coworker complained, charging “harassment,” and the department threatened him with discipline “if he continued to drive his vehicle with the plate on state property.” But after the ACLU of Delaware intervened, the Department apparently decided not to reprimand him, even if he continued displaying the plate.

Note that the government acting as employer has much more power over on-the-job speech of its employees than it does over the speech of private citizens and private employees (more on that here). In particular, it’s possible that the Department could restrict the display of items that cause substantial tension among coworkers, though it sounds like in this instance the Department ultimately chose not to do this (whether based on a judgment that the plate wasn’t disruptive enough, a desire to avoid litigation, or something else).

From Dawson v. Donahoe (EEOC Feb. 8, 2012) (just uploaded onto Westlaw several days ago):

[A] claim of harassment is ... actionable if the harassment to which Complainant has allegedly been subjected was sufficiently severe or pervasive to alter the conditions of Complainant’s employment....

In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster “procrastinated in taking action on my complaint” and that he filed the complaint, in part, because of the Postmaster’s “lack of concern for my feelings associated with this matter.” Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly and Complainant believes he might have a weapon in his car.

Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation.... [U]nder certain circumstances, a limited number of highly offensive slurs related to a federal employee’s race may in fact state a claim or support a finding of discrimination under Title VII. Moreover, Complainant has alleged that it took the Postmaster nearly two months to finally take action to stop his coworkers from wearing the offensive t-shirts....

This case involved a government employer, but the EEOC applies precisely the same standards — speech is actionable if it is “severe or pervasive” enough to create a hostile, abusive, or offensive work environment based on race, religion, sex, and so on for a plaintiff and for a reasonable person — to government employment as courts do to private employment. So under the EEOC’s reasoning, an employer must order its employees to stop wearing Confederate flag T-shirts whenever someone complains, or risk massive liability in court.

As I’ve argued before, hostile work environment harassment law suppresses a broad range of speech, including speech related to political, religious, social, or artistic matters. And when applied to what I call “one-to-many” speech (as opposed to speech that is said to one particular person), I think the law is unconstitutional: It involves the government, acting as sovereign, imposing a content-based and viewpoint-based restriction on people’s speech.

To be sure, a private employer has broad authority to restrict speech on its property (just as a private blog operator, service provider, commercial landlord, university, church, or homeowner has such authority). And a government employer has fairly broad such authority as well, for instance if it concludes that such speech sufficiently undermines the employer’s mission. But harassment law involves the government using legal coercion to pressure employers to restrict people’s speech; that’s where the strong First Amendment constraints on government action should come in. Much as I dislike displays of the Confederate flag, the First Amendment can’t allow the government to suppress them through the threat of legal liability.

In any event, this case, I think, helps illustrate my point. If the EEOC is right, then employers essentially have a legal duty to suppress Confederate flag displays whenever they are engaged in by an employee and a coworker is offended. Employers also have such a duty whenever they are engaged in by patrons and an employee is offended, since employers have a duty to prevent “hostile work environments” created by patrons. Bars and other places of public accommodation would also have a similar duty not to display Confederate flags and similar imagery, and to eject patrons who do the same, so long as a patron complaints that he is offended.

And of course the same could in principle apply not just to speech that is perceived as racist, but also speech that is perceived as anti-Islam, anti-Christianity, anti-Hispanic-immigrant, anti-women, anti-men, and so on. (See, e.g., the Tufts anti-Islam ad incident, Doe v. City of New York & Bruce Tefft, and Rodriguez v. Maricopa County Community College Dist..) “Hostile environment harassment law” is a serious and often unconstitutional threat to free speech, whether in workplaces — where most people spend a third of their waking hours — or universities or places of public accommodation; this incident is just the latest example.

UPDATE: Hans Bader (Open Market) has more.

From Walker v. Jackson (EEOC Oct. 6, 2011):

On December 1, 2011 [sic], Complainant filed a formal EEO complaint alleging that he was subjected to harassment and reprisal on the basis of his religious beliefs (Pentecostal). Briefly, the complaint alleged that, on November 18, 2010 [sic], Complainant was the recipient of an email from the Acting Director, sent to the NCEA [EPA's National Center for Environmental Assessment] global list-serve (which includes Complainant and all other NCEA employees), announcing an on-site celebration of a same-sex marriage of an employee which read as follows:

[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feeI free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.

Thirteen days later, on October 18, 2010, Complainant responded to the Acting Director’s email, with a copy to the NCEA global list-serve, with the following message:

I feel your message announcing the celebration of the “union” of [Employee A] and his “Partner” was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones “marriages” between men and women, not men and other men. As acting Office Director, I feel you could have been more “sensitive” and “neutral” with regards to this issue.

The next day, NCEA employees sent approximately 15-20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage. None of these emails specifically mentioned Complainant or his email. The record does show that two employees did email Complainant personally (not sent to the NCEA global list-serve) and expressed the opinion that Complainant’s email was insensitive because it was sent to everyone, including Employee A, rather than just to the Acting Director.

By final decision dated April 14, 2011, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant argues that the 15 employees who copied him on the congratulatory emails despite receiving his email protesting the Acting Director’s original email were retaliating against him and harassing him because of his religious faith and beliefs. Complainant claimed that the barrage of emails “affected his psychological well-being in the office.” ...

No religious harassment, the Commission concluded, and rightly so. I’ve argued that the current state of hostile environment harassment law is too broad, but it’s not that ridiculously broad. Hint: If you publicly complain about a colleague’s celebration, and a bunch of people respond by conspicuously congratulating the colleague, that’s disagreement — it’s not harassment.

That’s what seems to be the holding of Gilbert v. 7355 South Shore Condominium Ass’n & Shelley Norton (Chi. Com. Hum. Rel’s July 20, 2011), leading to damages of $2100, fines of $1200, and “reasonable attorney fees and associated costs,” which I suspect are likely to be in the tens of thousands of dollars. The statements were said by a condo association manager about a condo owner, but as I’ll note below the logic of this case would likewise apply to tenants speaking about another tenant.

The case is complex, and involves unsuccessful claims of sexual orientation discrimination and race discrimination. (The plaintiff claimed various forms of discriminatory treatment — including eviction — by the defendant, but the commission held against the plaintiff, because it found that the plaintiff would have been subject to the same treatment even without regard to the defendant’s bias.) But here’s what seems to be the heart of the harassment claim, which the commission did accept (emphasis added):

[Vernita] Gray has provided ample direct evidence of Respondents’ discriminatory animus and creation of a hostile housing environment for Gray based on her sexual orientation. This included: Gray’s testimony that in March 2000, Norton told her that she would not turn the building into a Halsted Street; Butler’s testimony that Norton stated in June 2000 in relation to Gray that she was tired of this “gay ass shit”; Shields’ testimony that within the first couple of months of moving in, Norton told her that the walls were thin and intimate conduct could be heard, that she was not happy with Gray moving in because Gray did not respect the building’s culture, and that she did not want lesbian conduct in the building; and McMikel’s testimony that within a few months after she moved in during February 2003, Norton spoke of Gray and Gilbert being gay and of not wanting the gay lifestyle in the building....

[Commission] Reg. 420.175(b) ... provides: “Slurs and other verbal or physical conduct relating to an individual’s membership in a Protected Class... constitutes harassment when the conduct: (i) has the purpose or effect of creating an intimidating, hostile or offensive housing environment; (ii) has the purpose or effect of unreasonably interfering with an individual’s housing; or (iii) otherwise adversely affects an individual’s housing opportunity.”

As recommended by the hearing officer, the Commission finds that Norton’s negative and derogatory comments about Gray’s sexual orientation had the purpose and effect of creating a hostile and offensive housing environment for Gray which interfered with her protected housing rights and violated the Chicago Fair Housing Ordinance.

Respondents object to this finding, arguing that in only one instance were the derogatory comments directed at Gray. Respondents’ objection is based on a narrow view of what constitutes hostile environment harassment that is not supported by the law. Certainly derogatory comments about Gray’s sexual orientation made to other persons (especially when they are other residents of the building) created a hostile housing environment just as derogatory comments made directly to Gray did.

Norton was the president of the condo association board, and may have been a paid employee. But since hostile housing environment harassment law has developed by analogy to hostile work environment harassment law, which holds employers liable for the speech of their employees, a condo association or landlord would likewise be liable for the speech of their members or tenants. It’s possible that a condo association might be absolved of liability on the theory that they can’t control their members’ speech, since presumably offensive speech about neighbors isn’t a ground for kicking someone out of a condo that he owns. But a landlord is indeed potentially liable for the speech of its tenants, since it could evict them, see Neudecker v. Boisclair Corp. (8th Cir. 2003).

And this decision illustrates that the possible liability isn’t just limited to insulting statements to a particular person, but also statements about that person. To repeat a hypothetical I posed earlier, say that some tenants are very hostile to fundamentalist Christianity. They often condemn fundamentalist Christians (referring to them as “Jesus freaks”) in conversations in common areas, such as around the swimming pool, in the laundry room, or in hallways. (Such conversations are overheard by fundamentalist Christian tenants every couple of weeks, or overheard by third parties who then tell the Christian tenants about them.)

They sometimes wear T-shirts that contain anti-fundamentalist-Christian messages, and put bumper stickers with anti-fundamentalist-Christian messages on the cars that they park in the building’s garage. The landlord also allows all tenants to put up posters on their own doors (so long as they don’t physically damage the door); the anti-fundamentalist tenants have put up some posters that ridicule fundamentalist Christianity. They do not make such statements directly to other fundamentalist Christian tenants, but they’re well aware that fundamentalist Christian tenants might see the posters and hear the statements. But the anti-fundamentalist tenants don’t care: They want to express their views, and don’t care that others might be offended.

The fundamentalist Christian tenants go to the landlord, and say: The other tenants’ speech has created an environment that’s hostile to us based on our religion (and that a reasonable person would find hostile based on religion). Tell the other tenants that they must stop this, and that you’ll evict them if they don’t stop. The landlord would then have a legal obligation — enforceable by the threat of a substantial damages verdict — to stop the anti-fundamentalist tenants from expressing their offensive viewpoints. And, as the Gilbert decision shows, the tenant-speakers would also be personally liable for damages and fines as well.

The same hypothetical could be given with regard to anti-extremist-Muslim views and anti-gay views, among others. And since the Chicago fair housing ordinance covers discrimination and therefore harassment based on “source of income,” “military discharge status,” “marital status,” and “parental status” (all defined quite broadly), there could be liability for statements that express hostility to welfare recipients, to lawyers or bankers, to veterans, to dishonorably discharged soldiers, to unwed parents, and more. And, as I noted, that’s true even if the statements aren’t personal face-to-face insults, but simply said about a neighbor to other neighbors — or (borrowing from hostile work environment harassment law) the group to which the neighbor belongs.

For more on hostile environment harassment law, including hostile work environment harassment law, see here. For hostile public accommodations law, which — like hostile housing environment law — applies similar speech restrictions outside the plaintiff’s workplace, and to places such as restaurants, parks, and the like, see here and here.