Wayne State University Law School professor Kingsley Browne wrote an op-ed in the Detroit News earlier this month arguing that Michigan’s sexual harassment statute violates the First Amendment. He was specifically referring to Burns v. City of Detroit in which a woman won a $1 million judgment against the City of Detroit for the insulting and vulgar speech directed at her by co-workers. But, according to Browne, both the verdict and the statute are in violation of Constitutional protections of free speech.

A major problem with the Burns v. City of Detroit case, according to Browne, is that the jury heard testimony about both constitutionally protected speech and speech that was not constitutionally protected. But the jury was not informed that it could only decide on liability for speech that was not constitutionally protected.

Moreover, so far rulings on sexual harassment have engaged in obvious viewpoint discrimination. Browne writes,

Judicial scrutiny is at its highest when the government restricts speech based upon the viewpoint expressed, which is precisely what the harassment law does. Progressive statements about women are fine; Neanderthal statements are not. Statements praising women as a group raise no issue; statements critical of women do.

As the U.S. Court of Appeals for the 6th Circuit, which covers Michigan, has said, harassment law requires “that an employer take prompt action to prevent . . . bigots from expressing their opinions in a way that abuses or offends their co-workers.” This is classic viewpoint regulating, which is almost always impermissible.

But the truly bizarre nature of sexual harassment statutes comes in with the whole idea of a “hostile environment.” As Browne notes, the hostile environment theory makes it all but impossible for individuals to tell whether or not their speech will break the law. Browne writes,

The vagueness of the harassment statute is made worse by the “totality of the circumstances” standard. A hostile environment can be created by a collection of different speech by different speakers even though no single statement by itself would violate the law.

One cannot know, therefore, whether a hostile environment exists without knowing the entire array of speech that will be challenged. Speakers are supposed to be given an advance warning of what can be said and what cannot, but the hostile environment standard is always assessed after the fact.

So how to fix sexual harassment statutes? Simple, says Browne — require that plaintiffs prove intent. Browne notes that a Michigan anti-stalking law was upheld because rather than simply describing behaviors that qualified as stalking, it also required that plaintiffs show the defendant engaged in “willful” conduct to harass the alleged victim. Such a similar standard should also be incorporated into sexual harassment statutes.

Source:

Harassment law chills free speech. Kingsley Browne, The Detroit News, July 9, 2002.