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Anti-Islam/Anti-Muslim/Anti-Arab Speech May Lead to Damages Liability:

Bruce Tefft is a counter-terrorism adviser hired by the NYPD, and he had a habit of sending department-wide e-mails harshly critical of Muslims, Islam, and apparently Arabs:

These email briefings stated that Muslims and Arab Americans were untrustworthy and could not reliably serve in law enforcement positions or handle sensitive data. For example, Tefft sent emails stating that "a good Muslim ... can't be a good American"; "[w]ithout Islam, there wouldn't be any Islamic Terror"; and, "[b]urning the hate-filled Koran should be viewed as a public service at the least." Tefft also attached his own comments to articles he forwarded. Attached to an article entitled "Al-Qaeda Wants to Repeat 9/11 in Israel," he commented: "Makes one wonder how many Muslim pilots the US National Guard, Reserves, and/or US Air Force have flying around US Cities." In another article entitled "Has U.S. Threatened to Vaporize Mecca?" he added, "Excellent idea, if true." ...

In addition to the emails, Tefft directly stated to Plaintiff's colleagues that they should not trust Plaintiff or any other Muslim in law enforcement because "Muslims have no place in law enforcement."

So plaintiff — a NYPD Intelligence Division police officer — sued the city and Tefft personally for tolerating and creating a hostile work environment. ("Plaintiff, an Arab-American, alleges that he was forced to read almost daily emails sent by Tefft, a counterterrorism adviser hired by the New York City Police Department ..., that contained racially and religiously discriminatory content targeted at Arabs and Muslims.") Plaintiff also alleged that other city employees made anti-Arab and anti-Muslim statements, though it's not clear whether they were to plaintiff specifically or to coworkers generally. But he didn't just sue the city for the aggregate of all this speech; he sued Tefft personally based on Tefft's own e-mails. Such personal liability generally isn't allowed under Title VII, but is allowed under 42 U.S.C. § 1981 and seems to be allowed under New York law.

Last week, the federal district judge in this case (Doe v. City of New York & Bruce Tefft) held that plaintiff's case may go forward — that, if the facts are as the plaintiff alleges them to be, Tefft can be financially liable based on the anti-Islam/anti-Muslim/anti-Arab speech. Such speech could be, under the relevant legal standard, be "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" based on religion and ethnicity for the plaintiff and for a reasonable person. And the damages in such cases could easily go into the hundreds of thousands of dollars or more.

This, I think, well illustrates what I've been arguing for 15 years: In many (though certainly not all) contexts, hostile environment harassment law violates the First Amendment. Here a court is saying that speech can lead to massive liability because of the viewpoint that it expresses, and the offensive environment that the viewpoint causes. The speech doesn't fit within any exception to First Amendment protection — for instance, it's not "fighting words" (a narrow exception that's limited to one-to-one speech likely to cause a fight, and that generally excludes political advocacy conveyed to a broad group of listeners), nor is it incitement to lawless action. The government isn't just acting as employer to restrict speech by its employees (an area in which it has a freer hand); the court is enforcing a law created by the government acting as sovereign, a law that equally applies to private employers.

What's more, the effect of the law is to pressure all employers — on fear of government-imposed liability — to suppress such viewpoints, and to pressure employees not to express such viewpoints. Employers are now on notice that tolerating viewpoints harshly critical of Islam, Muslims, and Arabs can lead to liability. True, individual statements won't lead to such liability (usually), but an employer can't just tell employees: "Say what you please, so long as your speech, aggregated with the speech of others (speech that you might not even know about), is not severe or pervasive enough to create an offensive work environment based on race, religion, and the like." The employer has to restrict each individual statement, in order to prevent liability based on the aggregate of statements.

And, as I said, the law doesn't just apply to police departments. It applies to any employer: private security companies, think tanks, universities, newspapers, law firms, and any other place where people discuss these issues, whether the issues are closely related to work or are just talked about by employees who talk politics at work. And I stress again that this is the government as sovereign imposing such a viewpoint-based restriction (both on employees directly, and on employers, hoping that it will lead employers to suppress employee speech). Private employers, like private newspapers, colleges, churches, commercial landlords, service providers, and others, are free to restrict speech on their property. But the First Amendment should stop the government from coercively pressuring these private entities into suppressing such speech.

Finally, note that employers and speakers can get no reassurance from the fact that the speech here was unusually frequent ("almost daily emails"). "Severe or pervasive" is a vague term, but it's clear that even statements that happen once every month or two can qualify. Consider, for instance, Schwapp v. Town of Avon, a Second Circuit case holding that "ten racially-hostile incidents of which [plaintiff] allegedly was aware during his 20-month tenure" — of which only four occurred in his presence — were enough to create a potential harassment case.

For more on how much speech harassment law can punish or coercively deter, see here. For more on the First Amendment doctrinal issues raised here, see here.

Related Posts (on one page):

  1. Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case:
  2. Anti-Islam/Anti-Muslim/Anti-Arab Speech May Lead to Damages Liability:
Hans Bader (mail):
Even putting aside the First Amendment issues, in a sensible world, there wouldn't be any statutory liability because he didn't select who would be receiving his messages based on their religion.

After all, the damages provision of Title VII only permits compensatory damages (as opposed to lost wages) for "intentional" discrimination.

And hostile-environment harassment is supposedly a species of intentional discrimination, not disparate impact discrimination. Cf. Lyle v. Warner Brothers (Cal. 2006) (sexual harassment claim couldn't be based on sexual jokes told in the female plaintiffs' presence, but not aimed at her, much less based on her sex); Scusa v. Nestle USA (1998) (similar); Oncale v. Sundowner (1998) (Supreme Court dictum so suggesting).

But in recent decisions, the Second Circuit has indicated it could not care less about the statute's language, the Supreme Court's Oncale decision, or its own prior Brown v. Henderson decision suggesting that harassment must be aimed at the complainant based on the complainant's race/sex, not just be offensive to the complainant.

So that entirely sensible defense probably won't work, even though it is logically mandated by the statutes under which the "harassment" is alleged.
2.13.2008 2:30pm
Hans Bader (mail):
The court's rationale for rejecting the First Amendment defense is a prescription for limitless governmental tyranny.

It argues that "restrictions on speech" are automatically OK whenever they "are merely incidental to the statute's objective of remedying racial discrimination." So you can ban any speech you like by defining it as discrimination.

Under that logic, you could ban the police from saying negative things about criminals under state "public accommodations" statutes that apply to prisons, under the theory that that creates a "hostile public accommodations" environment for criminals (note that many state laws banning discrimination in public accommodations, like Michigan's, have been applied to prisons; that in some cities, like Cambridge and Boston, ex-cons are a protected class; and that the threshold for showing a hostile "public accommodations" environment claim is often lower than for a workplace harassment claim).
2.13.2008 2:38pm
Hans Bader (mail):
The claim against individual defendant Tefft should be dismissed on statutory grounds even if there was a hostile work environment as a result of his emails.

Title VII doesn't have individual liability, as opposed to employer liability (see, e.g., Miller v. Maxwell).

Section 1981, which does permit some individual liability, doesn't ban religious harassment, only racial harassment, and most of Tefft's derogatory messages focused on religion (Muslims), not race (Arabs are covered by Section 1981, as the Supreme Court made clear in the Al-Khazraji and Shaare Tefila cases, but Muslims are not). Those that did focus on race were insufficiently pervasive to create a racially hostile environment under most federal appellate precedent. The hostile environment, if any existed, was based on religion.

The New York Human Rights Law only permits liability for the employer, and those who "aid or abet" discrimination, as the Second Appellate Division has held, not the harasser him or herself.

The First Appellate Division has held to the contrary, but it simply ignores relevant statutory language.

So does the dicta in the Second Circuit's decisions like Tomka, which are factually distinguishable, or failed to address the specific argument. (Tomka involved a gang rape, where the co-harassers presumably did "aid and abet" one another in addition to engaging in their own harassment).

By contrast, as the Oregon court of appeal noted in a case involving a state statute similarly worded to the NYHRL, a harasser does not "aid and abet" his own conduct, and thus is not liable under a state antidiscrimination law's provisions providing for liability for those who "aid or abet" discrimination.
2.13.2008 2:49pm
Hans Bader (mail):
The court's belief that "restrictions on speech" are automatically OK whenever they "are merely incidental to the statute's objective of remedying . . . discrimination" is contrary to the Supreme Court's Dale decision.

It cites several district court cases so claiming, and dictum arguably so stating in the 1992 R.A.V. case, but ignores the U.S. Supreme Court's decision in Boy Scouts v. Dale, 530 U.S. 640 (2000), which clearly holds to the contrary.

In Dale, the Supreme Court held that the New Jersey Law Against Discrimination's ban on sexual-orientation discrimination could not override the freedom of expressive association of the Boy Scouts to choose scoutmasters based on sexual orientation, even though any restrictions on that freedom were merely incidental to the statute's general prohibition on discrimination, which was not aimed just at expressive forms of discrimination, but rather banned all discrimination based on sexual orientation (most public accommodations banned from engaging in discrimination by the law had no expressive objection to its application and did not have their free-speech rights impacted by its prohibitions).

It also ignores then-judge Alito's decision in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), which struck down an anti-harassment policy even though it banned speech only incidentally, in that it banned conduct (including speech and non-speech conduct alike) that created a hostile environment (although it lacked a "severity or pervasiveness" test as stringent as federal law).

It also ignores cases like UWM Post v. Board of Regents (1991), which struck down bans on speech in colleges that creates a "hostile environment."

While freedom of speech may be broader on campus than in a public workplace, nothing in the court's decision in Doe v. City of New York is based on that: its argument that you can ban speech whenever doing so is "incidental" to a discrimination rule would logically allow banning the speech on campus as well, contradicting court rulings to the contrary protecting campus speech.

Even in the workplace, whether harassment rules are permissible is based on weighing competing interests, not a mechanical assertion that any speech can be banned if it is "incidentally swept up" in a ban on discrimination. Cf. Meltebeke v. Bureau of Labor and Industries, 901 P.2d 351 (Or. 1995) (Unis, J., concurring) (religious harassment rule which required only objectively-hostile environment for liability, and not subjectively-hostile environment, banned speech that was insufficiently harmful to warrant prohibition, and thus was unconstitutional; not upholding application of state harassment rule even though state argued it was OK because it merely incidentally swept up speech within a general prohibition against discrimination).

If New York City wanted to fire this counter-terrorism adviser because of his broad-brush attacks on Muslims, it would have been on strong ground in doing so. See Connick v. Myers (1983) (Supreme Court notes that while a defamation claim in court against a public employee would be tested by the same standards as one against a man "on the street," the public employer would have a much freer hand in firing him, because public employers have a freer hand in regulating the speech of their own employees than the government generally possesses in restricting speech).

But the federal courts have no warrant to butt in and make speech on political topics the basis of tort (or civil-rights) liability, especially where the speech was not aimed at the plaintiff based on any protected characteristic (see my first comment above).
2.13.2008 3:08pm
Elliot Reed (mail):
Hans—I think the plaintiff might, in principle, try to argue on the facts that the circumstances make it clear that the defendant was saying "Muslims" but really meant "Arabs". For example, the emails might (in principle) have spent a lot of space attributing stereotypically Arab traits to "Muslims". (Hypothetical: suppose the emails had been about how National Baptist Convention USA members are lazy, dirty, watermelon-loving drug addicts.)
2.13.2008 3:23pm
John (mail):
There is a distinction between using words simply to convey meaning or using them to perform acts, such as insults, threats, warnings, and so on. I would think that the more words are used in the latter ways, and the less they are used simply to convey information, the less protected they are.

Now in this case do we know how the words were used? Certainly the First Amendment would not bar discharging a person for running around the office yelling insults in a way that disrupted things. Couldn't it be argued that this defendant's use of words was essentially the same thing?
2.13.2008 3:44pm
Ex-Fed (mail) (www):
John, I think the trouble is that Title VII doesn't allow you to sue when your employer fails to stop your crazy co-worker from running around shouting "blah blah blah" to disrupt things. It only allows you to sue when your employer fails to stop him from running around shouting racial or religious epithets to disrupt things. It's explicitly content-based.
2.13.2008 4:03pm
donaldk2 (mail):
John, I think you misunderstand. Certainly the employer could fire him, for being a troublemaker; but that is not the controversy, which is his liability to someone who claims to be injured.

It is akin to the complaint of the Flying Imams: an attempt to intimidate any person who wishes to comment adversely on any Islamist.
2.13.2008 4:05pm
EvilDave (mail):
They told me that if George W. Bush was re-elected people would be sued for expressing improper political beliefs, ... and they were right.
2.13.2008 4:11pm
Elliot123 (mail):
"For example, the emails might (in principle) have spent a lot of space attributing stereotypically Arab traits to "Muslims".

What are those stereotypical traits and how do they differ from stereotypical traits of other Muslims?
2.13.2008 5:01pm
Thomas_Holsinger:
I'm surprised that no one has commented on the bloody obvious - the guy " is a counter-terrorism adviser hired by the NYPD ..." and accused of "sending department-wide e-mails harshly critical of Muslims, Islam, and apparently Arabs."

I can't wait for this ruling to be applied to law enforcement officers assigned to investigating Hispanic criminal gangs.

This ruling has great potential for definitively proving the law to be an ass.
2.13.2008 6:15pm
randal (mail):
I agree that the guy shouldn't be liable.

It's much less clear that the employer shouldn't be liable. The analysis would be fact-bound. It's difficult to draw a line between creating a hostile environment through active negligence versus encouraging a hostile environment.

If the purpose of the law is to prevent employers from driving away employees based on religion, and that is a valid purpose, then it makes sense to hold employers liable for encouraging hostile environments, whether directly or indirectly.

You could argue that preventing employers from driving away employees based on religion is not a valid purpose. Are you?
2.13.2008 7:36pm
Thomas_Holsinger:
randal,

There is a difference between private employers and law enforcement organizations. Failure to recognize this difference, particularly concerning the existence of criminal organizations based on ethnicity, imperils both the anti-discriminatory law and the judicial system.
2.13.2008 9:18pm
Alec:
You almost need to, Randal. It is no surprise that a libertarian proposes this First Amendment theory, or that the swing vote in the Boy Scouts case (the dangerous case that opened up the possibility of this kind of challenge) was undoubtedly either Justice Kennedy or Justice O'Connor, whose libertarian approach to gay rights has been upsetting advocates of "judicial restraint" since the early and mid 90s, when they helped decide Casey and Romer.

It goes further than anyone would expect, though. See, the next argument, that it penalizes private employers by subjecting them to liability for tolerating these environments, means that private employers are not penalized for tolerating those environments. Which of course for libertarians means the market will take care of how they react, which means that the most bigoted private AND public employers win the argument. But of course it goes further, because why should employees in PUBLIC institutions not be allowed to express their religious values? Or penalized for doing so? Even when those values include homophobia and sexism? I can envision the ideal test case for judicial "conservatives": a Muslim employee criticizing gay rights in emails.

Ironically, the most high profile cases in this area involve gay rights. You can see it in the Boy Scouts case, the don't ask don't tell case and the Irish parade case. What is different in these cases? There was a split in the Boy Scouts case. All of the so-called "liberals" lined up with the so-called "conservatives" in the other cases.

The people advocating a conservative revolution are fighting a war of attrition and they know that; just listen to the "slippery slope" arguments you hear from them on abortion and homosexuality. People who genuinely believe that can be expected to employ that strategy. That is why Prof. Volokh is listed on the website for the Federalist Society as a legal expert for journalists to consult on employment law, but not, say, gay rights or abortion. But does anyone think Prof. Volokh is an employment law expert? If so, I would like to know why it isn't on his UCLA website as either a class he teaches or under "Areas of research interest." This is all about results, not principle. Prof Volokh is more or less a libertarian, of course, with a wide range of expertise, but the activists are just concerned with the results.
2.13.2008 9:41pm
j:
There seems to be more than just harassment of an individual here. Should there not be a difference between stating facts associated with purpose of employment and between making statements that in a closed environment can be viewed as incendiary, inciting insubordination against an officer of the law? There seems to be more at stake than just creating a hostile work environment when statements create mistrust of superiors and co-workers that can harm the investigative process. Is there some room for applying "Imminent lawless action"?
2.14.2008 12:19am
Lior:
As a policy matter (I have no idea about the law) it seems claear that intra-company speech is not public enough to merit first amendment protection. If I forbid guests in my house from discussing their favourite political party, am I really violating their civil rights? Surely government employees shouldn't have a civil right to say what they want within their work forum (say by using the internal e-mail system -- not by putting up a sign outside work) just because their employer happens to be the governmen?
2.14.2008 11:06am
Hans Bader (mail):
Lior misses the point.

This is not a case of an employer voluntarily controlling what is said in its own workplace -- New York City could clearly have fired the antiterrorism advisor for his broad-brush attacks on Muslims, given the fact that a public employer has broader power to restrict speech of its OWN employees than the government has over speech in society at large. (See Connick v. Myers (1983) and Waters v. Churchill (1994)).

Instead, it is a case of the government acting AS SOVEREIGN using tort liability to punish the speech -- something sharply limited by the First Amendment. See New York Times v. Sullivan (1964) (tort liability imposed by court in lawsuit by one person against another is state action governed by First Amendment); Hustler Magazine v. Falwell (1988) (same); Connick v. Myers (1983) (dictum noting that in a defamation lawsuit, a public employee would have the same protection as a "man on the street," even though the public employer itself has broad power over the speech of its employees).

When the federal government, through the courts, barges in and awards damages for speech, or enjoins the speech, that triggers serious First Amendment scrutiny. See Hustler Magazine v. Falwell (1988) (tort of intentional infliction of emotional distress, although not aimed at speech to the exclusion of conduct, could not be applied to speech about public figures, unless the speech was maliciously false and thus independent proscribable); Korb v. Lehman (4th Cir. 1990) (government officials can't pressure private employer to fire employee for what he says, and that violates the First Amendment, even though the private employer could voluntarily fire the employee without triggering the First Amendment, since the state-action doctrine generally insulates private institutions from being covered by the First Amendment).

New York City can fire him.

But the government can't punish him for his speech, without showing that the restriction satisfies strict scrutiny. (Especially since, as applied to speech, the hostile-environment theory is content-based, since it is triggered by listeners' reactions to speech. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992) ("listeners' reactions to speech are not a content-neutral basis for regulation"; even though it might otherwise be permissible to charge demonstrators more for their permit based on cost of police protection, when that cost was increased due to the unpopularity of their message (a message of racism), the effect was to penalize them for the content of their message and listeners' reactions, which was impermissible under the First Amendment). If a listener does not perceive a speech-based hostile environment as subjectively hostile, then there is no Title VII violation, see Harris v. Forklift Systems, 510 U.S. 17 (1993) (so observing)).

It is questionable whether banning a hostile-environment, absent more concrete harms, is truly a compelling interest that justifies speech restrictions on political speech under strict scrutiny. See Texas v. Johnson (1989) (the very purpose of the First Amendment is to protect political speech that is offensive or disagreeable); cf. Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351 (Or. 1995) (Unis, J., concurring) (harassment rule that did not require proof that a plaintiff subjectively perceived work environment as hostile targeted speech that did not cause harm and thus was violation of free speech).

As a result, it is likely that some applications of "harassment law" run afoul of the First Amendment. Cf. Lyle v. Warner Brothers (Cal. 2006) (Chin, J., concurring) (harassment law cannot constitutionally be applied to speech used to create adult-oriented TV sitcoms, even if it truly does create a hostile work environment for a female plaintiff, especially if the speech is not aimed at the plaintiff in particular).
2.14.2008 11:40am
Elliot123 (mail):
Is there a higher probability that a randomly selected Muslim will aid and abet a terrorist attack by Jihadis than anyone else randomly selected from the general population? Polls of native born Muslims in the UK reveal a very high degree of support for Islamists.
2.14.2008 3:44pm
Thomas_Holsinger:
Elliott,

Just saying that in an employment context subjects you to firing and civil liability, even for law enforcement officers. Ditto for law enforcement officers saying there is a correlation between being Hispanic and membership in Hispanic criminal gangs.
2.14.2008 5:04pm
Elliot123 (mail):
TH,

Interesting. To clarify, is it illegal in the US workplace to relate or discuss the results of Gallup polls done in the UK that show the extent of UK Muslim support for Islamists? Under the law, would this be considered information that should be kept from government employees and law enforcement personnel?

This reminds me a bit of the magazines that were sold in Saudi Arabia. Each and every copy of any magazine was hand censored for articles the government didn't want the people to know about. White pieces of sticky paper were glued over the offending portions of the page. Pictures of women or alcohol in ads received similar treatment.
2.14.2008 5:28pm
Thomas_Holsinger:
No criminal liability under American law, but there probably could be in Britain. Civil liability here would be iffy given the 1st Amendment - it depends on what else is going on, particularly on what else the employee had said. An employer could definitely use this one instance as grounds for termination, at which point the employee would have the burden of proving it was only a pretext.
2.14.2008 6:31pm
Asher Steinberg (mail):
Are you sure these aren't fighting words? Granted they're not spoken in a one-on-one context, but stuff like "burning the hate-filled Koran should be viewed as a public service" or "a good Muslim can't be a good American" is pretty incendiary. Surely if he went up to the plaintiff and said those things, you've got fighting words. What if he addressed the e-mail to the plaintiff alone? Does it matter that he sent it to other people as well? It's not like dropping hundreds of copies of a leaflet out a window, or broadcasting a message on radio, these e-mails are being sent to particular individuals.
2.15.2008 1:46am
Hans Bader (mail):
No, these aren't fighting words.

Even words that are far more insulting, and aimed at a specific individual, and thus create a hostile environment are not thereby "fighting words." See UWM Post, Inc. v. Board of Regents of Univ. of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (so holding).

And these emails weren't aimed at a specific individual, they merely happened to be received by the plaintiff along with many other people. That's an additional reason -- icing on the cake -- for why they weren't fighting words. See Cohen v. California (U.S. Supreme Court notes offensive message wasn't fighting word because it wasn't aimed at a specific individual); R.A.V. v. St. Paul, 505 U.S. 377 (1992) (concurring opinions noted that hate-speech ordinance wasn't limited to fighting words).
2.15.2008 10:42am
Asher Steinberg (mail):
I concede that they probably can't be fighting words because they're not aimed at a specific individual, but I think they're sufficiently offensive. Didn't the case that created the fighting words doctrine, Chaplinsky, involve a protester telling police that they were "goddamned fascists"? Granted, it was 1942 so that meant a lot more back then, but even so it's no more offensive than what this guy wrote in his e-mails.
2.15.2008 6:48pm