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Racially Offensive Speech Complaining About Racial Profiling and Racial Hiring Disparities

May Help Lead to Legal Liability Under Hostile Work Environment Harassment Law:

Candy Bredt, a white woman, worked as a medical assistant at the Cancer Institute of New Jersey (a division of the University of Medicine and Dentistry of New Jersey); after she quit, she sued, complaining about (among other things) racial harassment.

The alleged harassment consisted of three categories of speech and conduct.

  1. "[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"

  2. Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'"

    This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"

  3. "In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast."

The court reversed a summary judgment entered in favor of the employer, concluding that a jury could find that the offending speech could lead to legal liability:

We are satisfied that when the race-based comments and conduct directed at plaintiff, and the racially insensitive remarks about white people plaintiff was forced to overhear, are considered along with the facially neutral comments and conduct Johnson directed towards plaintiff, a jury could reasonably find that Johnson's conduct and racially charged comments were directed towards plaintiff because she was white, were sufficiently severe or pervasive to make a reasonable person believe that the conditions of the workplace had been altered, and that the working environment had become hostile or abusive.

Bredt v. Johnson, 2006 WL 941754 (N.J. Super. App. Div. Apr. 13).

This, it seems to me, is a serious First Amendment violation. I've argued elsewhere that offensive one-to-one speech, such as that involved in items 1 and 3, may indeed be properly punishable under harassment law. Speech said to a particular person who is offended by it, and who wants it to stop, is likely only to insult, not to edify or educate. But under the First Amendment, discussions with willing listeners about racial profiling, or about allegedly bad racial disparities in various professions, have to be constitutionally protected against government-imposed legal liability, even if some people who overhear them may be offended.

Now in many harassment cases, including this ones, there's a complicating factor: The lawsuit is based on a combination of protected speech and unprotected conduct or unprotected speech (such as offensive touching, threats, or even one-to-one insults).

But the free speech law on this is quite clear: A judgment cannot be based even in part on constitutionally protected speech. If the plaintiff wants to sue based on the unprotected material, that's just fine; the factfinder should then be allowed to consider only that material. But a plaintiff cannot argue for a judgment based both on the unprotected matter and the constitutionally protected speech. (For cites and more argument, see here.)

This makes sense, both theoretically and practically. Theoretically, assume that someone is sued for a combination of constitutionally protected speech and unprotected conduct. The plaintiff's argument is that the speech and the conduct supposedly create a "hostile environment" or "interfere with prospective business advantage" or "intentionally inflict emotional distress" or some such.

Either the lawsuit would succeed based on the conduct alone, or it wouldn't. If it would succeed, then there's no reason why the words need to be considered: Might as well sue just based on the conduct.

But if it wouldn't succeed without the words, then it's the constitutionally protected speech that makes the difference between the defendant's actions being lawful and unlawful. If the defendant had engaged only in the unprotected conduct, he would have been acting lawfully, since by hypothesis the conduct alone wasn't sufficient to support the plaintiff's claim. But making the constitutionally protected statements in addition to the conduct is what makes the behavior illegal. The law is punishing the constitutionally protected speech, since it wouldn't have punished the conduct standing alone. That's a First Amendment violation.

What's more, in most civil cases (including harassment cases), the jury will be asked to render a general verdict as to whether there was speech or conduct that was severe or pervasive to create a hostile, abusive, or offensive work environment based on race. They could disbelieve the plaintiff's claims about the statements in the first and third categories, but find hostile environment liability based on just the statements in the second category. Or they could believe some of the plaintiff's claims, and conclude that a combination of some of the statements in all three categories created a hostile environment, but without the statements in the second category, the other speech wouldn't have risen to the level of a hostile environment. Or they could find a hostile environment based solely on the first and third categories.

We just won't know, because they won't be rendering specific findings about each claimed statement. All we know is that the jury verdict may well have rested on the racial profiling/racial disparity statements alone.

Practically, imagine how a reasonably cautious employer would react to a decision imposing liability in a mixed protected speech/unprotected speech case. Recall that in harassment cases, the employer may be liable for the aggregate of the statements made by a wide range of employees -- an insult here, an overheard racially offensive political discussion there, a poster there.

Given this, the employer can't just say to its employees "It's fine for you to make potentially offensive political statements about racial profiling or racial disparities in various professions, unless some other people are also mistreating the offended worker in other ways (about which you, the employee, might not even know)." So long as courts say that constitutionally protected speech can contribute to a hostile environment, the cautious employer would be wise to restrict it: After all, it's this constitutionally protected speech that might make the difference between a legally permissible, nonhostile environment, and an illegal hostile environment. So -- just as the Court has recognized -- imposing liability based on a combination of constitutionally protected speech and unprotected conduct would unconstitutionally chill the speech.

logicnazi (mail) (www):
Hmm, this seems to me to be a very tough area. I'm pretty much a free speech absolutist but I'm unsure how your standard is compatible with enforcement of racial harrasment/hostile workplace laws.

I mean imagine a black person goes to work for a company that is full of white racists. Discrimination laws prevent them from not hiring this individual so instead every time the black individual enters the wrong they talk loudly about how black people are inferior and joke loudly about how things were better in slavery. These are statements that would surely be protected as a private party so the only way this could be illegal under your analysis is if they could be proved to be directed at the party in question.

Well this now seems a weird standard. The workplace is just as hostile if they joke and talk just as loudly about black people when the black employee is and is not around. Also as a practical matter it is going to be totally impossible for the employee to prove that the conversation between the other workers is directed at them.

As a broader cultural matter I find this case very interesting. It is pretty clear that this situation in reverse would support a claim of discrimination but what about black to white? I'm not totally sure how I feel about it.
5.18.2006 3:17pm
Tim (mail):
Free speech can rightfully curtailed when you are in a private establishment.

An employer, who is reponsible for the actions of his agents, must be able to control their speech when they are in his establishment. Including insuring that speech that is hateful to others in his employ is muted.

I see this as not one whit different from males making leud jokes in the presence of women whom are offended by them, for which the employer is responsible if it contributes to the creation of a hostile environment. How many RIGID calendars have you seen in the toolroom lately? ALL the companies I work with and have been inside in the past 10 years (100 or so) have banned them due to this factor. Despite the free speech rights of those employees who might have wished to display them.
5.18.2006 3:25pm
Splunge (mail):
Golly, what kind of model of human behaviour are you using? I suggest no ordinary non-law-professor person is capable of neatly separating the issues as you do in this post -- either in their private lives, e.g. on the job, or while sitting on a jury.

I further suggest this is why the plaintiff may include the tidbits which are Constitutionally protected speech along with alleged conduct which is tortious. The jury, hearing evidence of the former, will almost certainly allow that to influence their decision about the latter. That's human nature.

Now, is this crazy? Perhaps, but perhaps not. The fact of obnoxious (but Constitutionally-protected) speech is not evidence directly related to whether or not prohibited actions took place, yes, but it is evidence as to the character and typical behaviour of the defendant, and the jury is entitled to take into account evidence of the character of a witness (in this case the defendant) when deciding whose story about the alleged actions to believe. If I accuse Brandy of assault, and she denies it, it's not wholly irrelevant to the question of who's telling the truth that Brandy has a long history of making First Amendment-protected aggressive and angry statements about people matching my description.

Does that "chill" free speech? I wouldn't say so, not in any important way. It only suggests that if you engage in highly obnoxious but protected speech, guaranteed to piss off your neighbors and fellow citizens, you'd better be unusually careful to avoid even giving the appearance of illegal behaviour. Get your alibis and witnesses for your defense straight ahead of time, et cetera. It only says that "free" speech may be free of government regulation but it isn't "free" of any social cost whatsoever. Sure, you have the right to speek freely, but that doesn't mean you can do so free of cost -- e.g. without cost to your credibility in a lawsuit.

Which is OK with me.
5.18.2006 3:27pm
David M. Nieporent (www):
Free speech can rightfully curtailed when you are in a private establishment.

An employer, who is reponsible for the actions of his agents, must be able to control their speech when they are in his establishment.
Neither of those statements are particularly controversial. But the issue in this case, as in other employment harassment cases, is whether the government can curtail free speech, either directly or (in this case) by compelling a private party (the employer) to do so.
5.18.2006 3:43pm
Houston Lawyer:
As long as the courts allow these "she hurt my feelings" cases to go forward, free speech will necessarily be curtailed. I can easily see how this work environment would be perceived to be every bit as hostile as one where men routinely made disparaging comments about women in their presence. Sauce for the goose
5.18.2006 4:11pm
Davide:
I think that US Supreme Court precedent backs Eugene's argument quite nicely. We may quarrel with the wisdom of the result, but the issue is whether the speaker was making the statement "as a citizen" on a matter of "public concern," under Pickering and its progeny.

Racial discrimination is a matter of public concern.

I see no facts to show that the co-worker was speaking on the matter because the job compelled her to do so (the split issue up before the court now in Ceballos).

Personally, I find it hard to stomach how private employees' rights to speak are so much less than those of public employees. But that is the way the law is right now. This decision is flawed.
5.18.2006 4:55pm
Christopher_King (mail) (www):
These are dangerous times for Free Speech but this is not one of them. As a former practicing Civil Rights employment lawyer I believe the court's decision was correct for the following reason as quoted:

"[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"

It is a fine line to say that the speech in and of itself is not actionable but to then say it can be used as indicia of animus. But such a line must be walked in sensitive cases.

For example, American Tower Corporation VP Jody Mitchell called me a "dangerous black man" in front of other employees when she fired me 2 hours after I demanded overtime for the staff, which the DOL subsequently upheld, and she further told police she "didn't know me, except that I was a scoundrel," even though she had given me the employee of the week award and signed off on a $6K raise earlier that year. The speech in a private business might be permissible, but Judge Lindsay ruled that it might also constitute Defamation. Summary Judgment denied. Mass Dist. 03-10904 RCL.

Anyway, taken in tandem with the other overt actions, the finger in the chest and the butt-slapping a jury might find that the conduct rose to the level of constructive discharge or hostile work environment.

So ironic to read this post today because all of my professional life as a reporter and lawyer has been about the First Amendment. I wrote substantial portions of a successful Ohio Supreme Court brief in State v. Lessin, 67 Ohio State 3d 487 (1993) for Terry Gilbert and the ACLU, and was on a first-name basis with Bill Kunstler before he died because Terry worked with him back at Wounded Knee, etc.

As a practical matter I am under Indictment now in a case in which my defense attorneys and I are about to Cite NAACP v. Claiborne ourselves. And who has turned State's witness on me, the former NAACP southern NH legal redress chair? Why the NAACP itself, which did not want to ruffle the feathers of the NH power structure in a new chapter. Go figure. Read Act Two in the 18 May Post on Milberg-Weiss:

http://christopher-king.blogspot.com

Meanwhile, still on the First Amendment tip, I've got a former client of mine, black Columbus, Ohio Civil Rights Activist Jerry Doyle, doing 3 months' hard time as a sick diabetic no less, for exercising his First Amendment Rights to complaint about a Columbus, Ohio School Board executive found guilty of bilking +$200K from the system — who herself got no jail time and a $40/mo. payment plan. Honest. The Freedom Forum has mentioned a case of his that I started before getting my license suspended. Read the 17 May entry for background on that.

http://christopher-king.blogspot.com

Thanks for sharing that case, and viva the First Amendment.
5.18.2006 5:14pm
Hans Bader (mail):
The First Amendment issue is a substantial one, but the issue everyone is missing is an antecedent statutory question.

When the courts order damages paid to a private party in a suit based on speech, that is state action according to New Yotk Times v. Sullivan (1964), and a damage award can't be based even partly on protected speech, see NAACP v. Claiborne Hardware (1982).

It doesn't matter that the employer might have voluntarily have restricted the same speech, since the employer, unlike the court, is either not a state actor not subject to the First Amendment (if it is private) or is subject to the relaxed scrutiny on speech restrictions that apply to public employers under the Waters, Connick, and Pickering cases.

So allowing a lawsuit based on the racist anti-white speech not aimed at the plaintiff does implicate the First Amendment.

But before you even weight the competing interests (constitutional right to free speech vs. state's interest in banning harassment), you have to first conclude that the comments are prohibited by the state's harassment law to begin with, as a statutory matter.

Comments merely overheard by a plaintiff that offend her because of her race are not necessarily "harassment because of her race," as many courts require.

As the California Supreme Court's recent decision in Lyle v. Warner Brothers (2006) indicates, sexual comments not aimed at the plaintiff are not necessarily harassment because of sex, even when they permeate the workplace, if the workplace is not hostile BECAUSE of the plaintiff's sex.

Similarly, the Third Circuit, in an opinion by Judge Van Antwerpen, held that harassment must OCCUR BECAUSE OF the plaintiff's race to constitute racial harassment, not just be severe and offensive to the plaintiff.

In this case, the behavior directed at the plaintiff was presumably based on her race.

But it seems less likely that the anti-white comments she merely overheard were made because of her race, or in spite of it (i.e., the speaker didn't know she was listening, much less say the anti-white things to bug her).

If the court found a hostile workplace based in part on the latter, overheard comments, then it may have stretched the statute beyond its limits, even putting aside the First Amendment question.
5.18.2006 5:37pm
just me:
Prof. V, I would like to agree with your splitting-components view of the First Amendment. As I understand it, you are saying that protected speech has to be entirely removed from the scale, and we should weigh whether the remaining items are enough to trigger liability. We can't have protected speech help to put it over the top, or to in any way enhance the liabiliy. Otherwise, it's not really being protected.

But haven't we already abandoned that notion for hate crimes? If I beat you up, I commit lesser crime X and get Y years in prison. But if I beat you up and yell "Jew!" while I do it, I can get the upgraded crime with upgraded time. Yes, one can argue that I'm not being punished for the speech, but for a "worse ACTION" of a hate-drive attack, and that the speech is merely evidence of the nature of my evil heart and evil act. But still, speech that is otherwise protected is going into the mix to determine whether I am criminally liable.

I suppose one distinction is that the hate crime scenario typically is ADDING to existing liability, not creating it to begin with. But it does seem to me to still be inconsistent with your methodology of putting protected speech to the side, and weighing the remainder.

I think your view is a better view of the First Amendment, but I'm not sure it's the governing one.
5.18.2006 5:48pm
Leonard Smalls (mail):
I'm a defense-side employment lawyer in New Jersey, and part of the problem is that the employment-defense bar doesn't seem too interested in making any First Amendment arguments. I don't know why this might be, but a couple years ago I discussed this sort of issue with a number of colleagues, all of whom were entirely unmoved by the argument. Sure enough, the opinion in this case doesn't mention the issue, which suggests that the defense lawyer didn't raise it -- even though the defense lawyer works for the State, and presumably would be more sensitive to such arguments.
5.18.2006 5:59pm
SLS 1L:
Speech said to a particular person who is offended by it, and who wants it to stop, is likely only to insult, not to edify or educate. But under the First Amendment, discussions with willing listeners about racial profiling, or about allegedly bad racial disparities in various professions, have to be constitutionally protected against government-imposed legal liability, even if some people who overhear them may be offended. (emphasis added)
Professor, it seems to me that you are attacking a straw man in the emphasized comments. I don't think anybody argues that such speech should be restricted because it is offensive; they argue it should be restricted because it is harassment [1]. Do you claim that such speech can never constitute harassment [1], but is only offensive? If so, I'd like to know more about why. If not, why are you implying it here?

[1] Under the ordinary-English meaning, not the technical statutory meaning.
5.18.2006 6:03pm
Hans Bader (mail):
Defense-side employment lawyers don't raise the First Amendment argument partly because their ideology is generally unsympathetic to such arguments.

The same employment lawyer who represents an employer for pay will represent an employee pro bono. Deep down, they often don't really identify with their employer clients.

Of those of my law school classmates who took employment law in law school and rooted for the employee, and now practice employment law, most of them now represent employers, not employees.

But I suspect they are ideologically more sympathetic to the employee in harassment cases. They may feel like their riding with the cops and rooting for the robbers (or vice versa).

And harassment law creates a lot of cases against their clients, and thus generates a lot of business for them. Putting First Amendment limits on harassment claims would reduce the number of such cases.

Zealous representation of the client may be commanded by the ethical rules, but it is sometimes at odds with the lawyer's own financial self-interest in creating more future work from his clients.

Moreover, in New Jersey, the state courts are very hostile to First Amendment defenses in "civil rights" cases (think of the Dale case, for example), so even an employment lawyer who is sympathetic to a First Amendment defense may not do it in New Jersey state court (although they should consider raising the First Amendment in an appropriate case in federal court, where the reception might be less hostile).
5.18.2006 6:08pm
Leonard Smalls (mail):
Hans -- Regarding your last point about why more employment-defense lawyers don't raise the First Amendment argument, you may be correct about the state court's hostility to the argument, but similar hostility doesn't stop employees' lawyers from continually arguing "intentional infliction of emotional distress" in case-after-case. Once in a great while, the argument succeeds. The only way to actually move the law in the direction you want is to make the argument -- the Court's likely reception notwithstanding.
5.18.2006 6:21pm
CJColucci:
If all anyone did was have the discussions as described, it would be hard to see how it was harassment, First Amendment aside. But these loud discussions of racial issues (not the usual way to spend one's work time), while not actionable in themselves, shed some evidentiary light on what else is going on in the office. This speech may be Constitutionally protected, but no one has a constitutional right to be protected from logical inferences to be drawn from one's speech. That someone spends a chunk of the work day ranting about racial issues, especially in the near presence of someone of the race being ranted against, might well suggest to a jury that the speaker's other actions, possibly otherwise ambiguous, are motivated by racial animus, or even that the discussions are being engaged in for the very purpose of annoying someone because of her race. Those aren't the only possible inferences, but they are sufficiently plausible to make it a jury question.
5.18.2006 6:29pm
John (mail):
As an evidentiary matter, can the "protected" speech (and I confess I don't see much in the portions quoted) be used as evidence of some mental state, e.g. animus, intent, etc., rather than being used as something actionable by itself, or actionable in combination with unprotected speech?

I don't know much about this area of the law, so feel free to point out that I am ignorant.
5.18.2006 6:32pm
Peter Wimsey:
But haven't we already abandoned that notion for hate crimes? If I beat you up, I commit lesser crime X and get Y years in prison. But if I beat you up and yell "Jew!" while I do it, I can get the upgraded crime with upgraded time. Yes, one can argue that I'm not being punished for the speech, but for a "worse ACTION" of a hate-drive attack, and that the speech is merely evidence of the nature of my evil heart and evil act. But still, speech that is otherwise protected is going into the mix to determine whether I am criminally liable.

I suppose one distinction is that the hate crime scenario typically is ADDING to existing liability, not creating it to begin with. But it does seem to me to still be inconsistent with your methodology of putting protected speech to the side, and weighing the remainder.



I think hate crimes are a little different. A typical hate crime will raise the penalty for battery if the motive for the battery was racial animus. The defendant's racist statement is not an element of the crime; it is evidence of the defendant's racial animus. AFAIK, the first amendment never prohibits the admission of a relevant statement in a criminal prosecution as long as making a protected statement is not an element of the crime. The relevance of these kind of statements extends beyond hate crimes - consider the admissiblity and relevance of certain political statements in, say, a terrorism case.

In a workplace harassment suit, however, the arguably protected statement is not merely evidence of the defendant's state of mind; it is (or could be, theoretically), the gravamen of the offense: no statement, no harassment. I don't know enough about this area of law to know how this would be resolved, but I think it is sufficiently different from a criminal prosecution.
5.18.2006 6:38pm
pete (mail) (www):
"[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"

Shouldn't that count as a hate crime by itself? It sure sounds like assault and battery to this non-lawyer.
5.18.2006 6:58pm
Christopher_King (mail) (www):
I agree with CJColucci at 5:29 as implied in my 4:14 post with one caveat I neglected to mention:

In order to show a hostile work environment or constructive discharge the Plaintiff must have exhausted all reasonable means of appeal/discussion/complaint with management.

Record as provided is sketchy on that.

Peace.
5.18.2006 7:24pm
MDJD2B (mail):
Either the lawsuit would succeed based on the conduct alone, or it wouldn't. If it would succeed, then there's no reason why the words need to be considered: Might as well sue just based on the conduct.

Prof. V,

I agree with you that protected speech should not allow a lawsuit to succeed, and what little I know about this issue from my Con Law class suggests that comments about public issues in a government workplace (UNDMJ is a State school) are constitutionally protected, BUT

Although one kick in the butt may noot be actionable, and although 100 racist remarks might not be actionable, is it possible that a few physical acts or gestures convert subsequent and simultaneous speech that would otherwise be protected into intimidation? The one kick in the butt and the one finger in the chest create a context for the rest of the speech that elevate them into virtual conduct.
5.18.2006 8:10pm
Christopher_King (mail) (www):
Right. There is a toppling point where the speech at once:

i) is indicia of ill intent or discriminatory motive,
ii) becomes the pattern and practice of discriminatory conduct in and of itself, based on a protected classification, i.e. race.

If the harrassing black co-worker had railed all day about "your stupid nose," or "your stupid car," or "your stupid shoes" we just have a workplace bully. But because the speech itself is aimed at a protected class from the get go, we have an issue because the eradication of unlawful race-based discrimination was key in the formulation of Title VII, 42 U.S.C. 2000(e) et seq as well as 42 U.S.C. 1981 (protection of all rights to contract regardless of race). These two doctrines were effectively merged in the 1991 Civil Rights Act modification.

Peace.
5.18.2006 8:34pm
Nunzio (mail):
I don't think this is quite so clear cut. Language from Wisconsin v. Mitchell suggests that "protected speech" can be used to show intent, especially of racially-motivated conduct. "The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like."

It just seems implausible that a hiring manager's off-the-job statements that "blacks are too stupid to be nurses" couldn't be used to show racially-motivated discrimination when a black nurse is not hired by that managerr.
5.18.2006 8:54pm
Steph (mail):

I think hate crimes are a little different. A typical hate crime will raise the penalty for battery if the motive for the battery was racial animus. The defendant's racist statement is not an element of the crime; it is evidence of the defendant's racial animus. AFAIK, the first amendment never prohibits the admission of a relevant statement in a criminal prosecution as long as making a protected statement is not an element of the crime.


But to my mind the racial animus should be protected. Isn't it a freedom of consience issue?

From the liberal prospective it is the assault that is the violation of the victims rights. While mental states come into the issue it is only as a question of intent.

I would have no problem with the words f*ing n*r being used to prove intent to harm. I do have a problem with a crime which is based on punishing people for their opionions however wrong headed.
5.19.2006 10:46am
Curious:
What are the First Amendment issues if a private employer had *fired Johnson* for making these remarks pursuant to an established policy of "no discussion of politics in the workplace?" In the absence of such a policy, but because the employer finds the comments to be disruptive? Does Johnson have any recourse in the courts? Is there any liability for the employer in firing Johnson in either scenario?
5.19.2006 11:14am
Hans Bader (mail):
The First Amendment only applies to state action, not private action, under Supreme Court precedent: so it applies to employers only if (a) the employer is a public employer, or (b) a private employer is forced by a court order, or the threat of liability, to censor an employee.

So, no, Johnson would have no recourse in the courts if her employer had been private and had fired her for her remarks (except, conceivably, in the unlikely event that she could show the employer didn't fire her voluntarily, despite her offensive remarks, but rather did so in response to a fear of being sued. But how she would show that is unclear).

Incidentally, in harassment law, racist speech isn't just used as circumstantial evidence of the racist motive of the speaker in engaging in non-speech bullying conduct towards the victim, as is plainly permissible under Wisconsin v. Mitchell (1993). It's also the gravamen of the harassment claim itself, and thus the speech itself is suppressed as harassment, not merely used as evidence of bad motive. That means it raises more serious First Amendment issues than, say, hate crimes laws, which are plainly constitutional, even if they are debatable as a matter of public policy.
5.19.2006 11:38am
Hans Bader (mail):
The First Amendment only applies to state action, not private action, under Supreme Court precedent: so it applies to employers only if (a) the employer is a public employer, or (b) a private employer is forced by a court order, or the threat of liability, to censor an employee.

So, no, Johnson would have no recourse in the courts if her employer had been private and had fired her for her remarks (except, conceivably, in the unlikely event that she could show the employer didn't fire her voluntarily, despite her offensive remarks, but rather did so in response to a fear of being sued. But how she would show that is unclear).

Incidentally, in harassment law, racist speech isn't just used as circumstantial evidence of the racist motive of the speaker in engaging in non-speech bullying conduct towards the victim, as is plainly permissible under Wisconsin v. Mitchell (1993). It's also the gravamen of the harassment claim itself, and thus the speech itself is suppressed as harassment, not merely used as evidence of bad motive. That means it raises more serious First Amendment issues than, say, hate crimes laws, which are plainly constitutional, even if they are debatable as a matter of public policy.
5.19.2006 11:38am
Paul Johnson (mail):
I haven't researched the issue, but isn't there a standing problem with an employer asserting an employee's First Amendment defense?
5.19.2006 1:49pm
Hans Bader (mail):
Sometimes employers can assert the rights of their employees, and have standing to do so.

In Lutheran Church v. FCC (1998), for example, the D.C. Circuit held that a religious broadcaster could raise a successful equal protection challenge under the Fifth Amendment to a federal affirmative action policy based on the rights of its white employees.
5.19.2006 1:51pm
Jonas Cord (mail):
For everyone wondering why employers aren't making more first-amendment arguments in these cases, it's my top-of-the-head guess that doing so would be a public relations disaster - arguing in court for the right of your employees to engage in racist speech. For what's it worth.
5.19.2006 5:36pm
Ace (mail):
At what point does protected speech become unprotected because it is so vile? Holocaust denial has to get close. Although you have a constitutional right to say what you please, the mere discussion of Holocaust denial is enough to create a hostile workplace.
5.19.2006 8:53pm