WHEN DOES SPEECH BECOME HARASSMENT The Intersecti

1. WHEN DOES SPEECH BECOME HARASSMENT? The Intersection Between The Law Of Harassment And Speech Rights On Campus JHU DLC DIVERSITY CONFERENCE NOVEMBER 1, 2006 Gerard D. St. Ours Associate General Counsel The Johns Hopkins University Acknowledge contributions of Suzanna Brickman, and particularly her research which turned up some interesting cases that are included among the scenarious.Acknowledge contributions of Suzanna Brickman, and particularly her research which turned up some interesting cases that are included among the scenarious.

2. Of course, I recognize the fundamental importance of free speech in our society, and the particular importance of academic freedom on campus, and in our classrooms. JHU is fully committed to this principle. I note that the Supreme Court has recognized importance of academic freedom: �Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom . . . The classroom is peculiarly the �marketplace of ideas� The Nation�s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth �out of a multitude of tongues,� [rather] than through any kind of authoritative selection.� Keyishian v. Board of Regents of the Univ. of State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 683 (1967) Of course, I recognize the fundamental importance of free speech in our society, and the particular importance of academic freedom on campus, and in our classrooms. JHU is fully committed to this principle. I note that the Supreme Court has recognized importance of academic freedom: �Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom . . . The classroom is peculiarly the �marketplace of ideas� The Nation�s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth �out of a multitude of tongues,� [rather] than through any kind of authoritative selection.� Keyishian v. Board of Regents of the Univ. of State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 683 (1967)

3. First Amendment Rights have Limits, and the Constitution only Limits State Action Private entities like JHU are free to regulate or prohibit speech, and the First Amendment does not place any limitations on such private action. The Constitution also permits the State to regulate the �time, place and manner� of speech, and to restrain or prohibit certain speech (e.g., obscenity, non-obscene child pornography, �fighting words,� and incitement to lawless action, crimes or terrorism) Public vs. private institution The First Amendment directly applies to action taken by a public entity, even where such entity is acting as an employer or educator. However, First Amendment protection is not absolute, particularly where the speech is an official communication. In Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), the Supreme Court upheld the public employer�s right to take action against a district attorney who wrote a critical memo about inaccuracies in a warrant. The Court stated: �[s]upervisors must ensure that their employees� official communications are accurate, demonstrate sound judgment, and promote the employer�s mission.�Public vs. private institution The First Amendment directly applies to action taken by a public entity, even where such entity is acting as an employer or educator. However, First Amendment protection is not absolute, particularly where the speech is an official communication. In Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), the Supreme Court upheld the public employer�s right to take action against a district attorney who wrote a critical memo about inaccuracies in a warrant. The Court stated: �[s]upervisors must ensure that their employees� official communications are accurate, demonstrate sound judgment, and promote the employer�s mission.�

4. Limits on Free Speech - - What the Supreme Court Has Said ''[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.�� Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) This was a �fighting words� case: In Chaplinsky, the Court upheld a conviction under a New Hampshire statute proscribing ''any offensive, derisive, or annoying word'' addressed to any person in a public place under the state court's interpretation of the statute as being limited to ''fighting words''-- i.e., to ''words . . . [which] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.� The Court found the law ''narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.� Id. at 572.This was a �fighting words� case: In Chaplinsky, the Court upheld a conviction under a New Hampshire statute proscribing ''any offensive, derisive, or annoying word'' addressed to any person in a public place under the state court's interpretation of the statute as being limited to ''fighting words''-- i.e., to ''words . . . [which] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.� The Court found the law ''narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.� Id. at 572.

5. Group Libel In Beauharnais v. Illinois, the Supreme Court upheld a libel law which made it unlawful to defame a race or class of people. The defendant had been convicted for distributing a leaflet, a part of which was in the form of a petition, taking a hard-line white supremacy position and calling for action to keep African Americans out of white neighborhoods. 343 U.S. 250 (1952); excerpt taken from Findlaw: http://supreme.lp.findlaw.com/constitution/amendment01/18.html#1 Subsequent cases, mainly in the area of defamation law, call into question the ongoing viability of this case. Id. However, it remains a historical example of the limits that have been placed on speech, even where the stakes involve criminal liability for the speaker on a matter of public interest. Defamation law and issues of public importance: '�The general proposition, 'that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes un pleasantly sharp attacks on government and public officials. [Because the advertisement at issue was] an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection . . . [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.� Sullivan v. New York Times, 376 U.S. 254 (1964). In Sullivan, the Court held that where speech raises issues of public importance and the alleged victim of the defamation is a public figure, the First Amendment protects even erroneous statements absent a showing of �actual malice� - - that is, knowledge by the speaker that the statement was false or evidence the speaker spoke with reckless disregard for the truth. In that case, the Court struck down a defamation verdict in favor of police commissioner who claimed erroneous comments in an advertisement concerning demonstrations by Dr. Martin Luther King.Defamation law and issues of public importance: '�The general proposition, 'that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions . . . . [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes un pleasantly sharp attacks on government and public officials. [Because the advertisement at issue was] an expression of grievance and protest on one of the major public issues of our time, [it] would seem clearly to qualify for the constitutional protection . . . [unless] it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.� Sullivan v. New York Times, 376 U.S. 254 (1964). In Sullivan, the Court held that where speech raises issues of public importance and the alleged victim of the defamation is a public figure, the First Amendment protects even erroneous statements absent a showing of �actual malice� - - that is, knowledge by the speaker that the statement was false or evidence the speaker spoke with reckless disregard for the truth. In that case, the Court struck down a defamation verdict in favor of police commissioner who claimed erroneous comments in an advertisement concerning demonstrations by Dr. Martin Luther King.

6. Continuum and Context of Regulation Laws that make it a crime to speak in certain contexts (e.g., �fighting words;� threats, public safety (yelling �fire� in a crowded theater, conduct constituting sedition or threat of armed rebellion) Prohibitions based on the legal obligation to provide a workplace or campus that is free of discriminatory harassment Private institution policy against certain speech in connection with use of facilities or retaining affiliation or association with a private institution (such as JHU) Disciplinary action by a private entity (up to and including expulsion or termination) for engaging in speech that is offensive - - even where such speech may fall short of legal harassment Codes that prohibit hate speech or use of epithets and slurs All of the above can be permissible restraints on speech A note about commercial speech: This is covered by the First Amendment, but it is subject to more content-based regulation because it is of �less value� to the discussion of public issues of importance (thus, courts have upheld laws that prohibit lewd or erotic advertising, and sexually suggestive but non-obscene direct mail advertisements)A note about commercial speech: This is covered by the First Amendment, but it is subject to more content-based regulation because it is of �less value� to the discussion of public issues of importance (thus, courts have upheld laws that prohibit lewd or erotic advertising, and sexually suggestive but non-obscene direct mail advertisements)

7. Legal prohibition on Harassment Several laws and JHU policy prohibit harassment: Title VII (prohibits workplace discrimination on the basis of race, religion, national origin and gender, including conduct that creates a �hostile work environment� on the basis of these classifications) Title IX (gender) and Title VI (race, color and national origin) prohibit conduct that creates a �hostile learning environment� at educational institutions ADA and the Rehabilitation Act prohibit harassment on the basis of disability in both the workplace and in educational programs State and local laws (which include prohibitions on sexual orientation and gender identity/expression) JHU anti-harassment policy: http://www.jhuoie.org/Text/Anti-Harassment-Policy.pdf

8. What is Harassment? JHU policy defines harassment as: any type of behavior which is based on gender, marital status, pregnancy, race, color, ethnicity, national origin, age, disability, religion, sexual orientation, gender identity or expression, veteran status, that is so severe or pervasive that it interferes with an individual�s work or academic performance or creates an intimidating, hostile or offensive working or academic environment. It further states: �Harassment . . . may include, but is not limited to: unwanted physical contact; use of epithets, inappropriate jokes, comments or innuendos; obscene or harassing telephone calls, e-mails, letters, notes or other forms of communication; and, any conduct that may create a hostile working or academic environment.�

9. The Law of Harassment Content Matters Severity and Pervasiveness Impact of the speech on the individual or protected group (note: this may implicate off-campus speech that reaches a campus audience) Isolated comments vs. pattern or repeated comments Whether content is necessary or relevant in the context

10. The Law of Harassment Context Matters Workplace vs. campus bulletin board Public Space vs. residence hall Espousal of viewpoint vs. directing comments at a specific person Location (classroom or educational forum vs. offensive comments in an advertisement, etc.) On campus vs. off campus; at work vs. at home Use of institution�s resources? Internet/e-mail Facebook and My Space

11. The Law of Harassment Harassment Law is not a �civility code,� but rather focuses on the impact of the speech on the environment In the workplace, the law prohibits behavior that is so objectively offensive as to alter the conditions of the victim�s employment In an academic setting, where speech in effect denies or limits a student�s ability to participate in or benefit from academic life, it would constitute illegal harassment

12. Reasonable Person Standard Conduct/speech must be evaluated from the perspective of a �reasonable person� in the alleged victim�s position, considering all the circumstances This means that the environment in which the speech occurs is relevant Put yourself in the shoes of the listener and consider how the conduct would be perceived by that person in the particular context

13. Who is the Speaker? Person w/authority vs. a peer or a subordinate If the institution has notice of such matters, there is a legal obligation to investigate and take appropriate action to stop harassment, whether the behavior is being engaged in by individuals in positions of authority, students, peers or others Statements by fellow students or by peers or individuals who are not in a position of authority can create a hostile environment The existence of an anti-harassment policy and grievance procedure is relevant to the issue of whether the institution will be liable for the harassing conduct

14. Conduct does not Need to be at the Level of Legal Violation before it can be Regulated by an Institution Statements that may expose the institution to liability Statements that may impact the reputation or standing of the institution JHU Student code of conduct : �[JHU expects students] to refrain from behavior that that impairs the university�s purpose or its reputation in the community.� Rules that place limits on speech may enhance academic freedom by providing a meaningful opportunity for all to contribute to campus discourse Time, place and manner restrictions E.g., the JHU posters and publications policy

15. Scenarios Suspending an ice hockey team from competition because of its use of a flyer containing the institution�s name and vulgar language A college with a requirement that �all educators need to believe that schools can be sites for social transformation� Withdrawing a speaking invitation to the president of a foreign country who has called the Holocaust a �myth.� Aggressively protesting a speech by the leader of a group that espouses armed border patrols to fight illegal immigration All of these scenarios arise are examples from Columbia University, as reported in the New York Times on October 22, 2006.All of these scenarios arise are examples from Columbia University, as reported in the New York Times on October 22, 2006.

16. Scenarios Muslim female professor is barraged with critical messages after leading a public prayer to express her understanding of how Islam should be interpreted; college decides to have her teach her courses via video link Professor�s writings claims 9/11 victimes were part of the military-industrial complex that caused the attack The first case involves a VCU professor as reported in Chronicle of Higer Education: Academe Today (August 12, 2005) The second scenario is based on the case of Ward Churchill of the University of Colorado at Boulder. Both scenarios are based on summaries appearing in Jonathan Alger�s June 27, 2006 outline �Campus �Speech Codes� and Institutional Responses to �Offensive� Speech on Campus� presented at the June 2006 conference of the National Association of College and University Attorneys.The first case involves a VCU professor as reported in Chronicle of Higer Education: Academe Today (August 12, 2005) The second scenario is based on the case of Ward Churchill of the University of Colorado at Boulder. Both scenarios are based on summaries appearing in Jonathan Alger�s June 27, 2006 outline �Campus �Speech Codes� and Institutional Responses to �Offensive� Speech on Campus� presented at the June 2006 conference of the National Association of College and University Attorneys.

17. Scenarios The unwelcome posting of neo-Nazi symbols on the dormitory door of a Jewish student Posting racially derogatory comments and slurs on Facebook that are widely accessed by the campus community Making sexually explicit comments about an instructor on My Space A faculty member posts sexually explicit images on a website he has created using his home computer Espousing comments that are anti-Christian in a biology class In a speech, a college president makes reference to students with learning disabilities as a �plague� and other derogatory comments The last scenario refers to former BU President John Westling. While the court rejected plaintiffs� claim that these and other comments constituted a hostile environment for students with disabilities, it noted that: �The fact that a vociferous administrator with a concern about a perceived abuse of learning disability protections is personally involved in the day-to-day implementation of the University�s allegedly discriminatory accommodations policy may be of some consequence in this Court�s determination of the fairness of BU�s evaluation procedures.�The last scenario refers to former BU President John Westling. While the court rejected plaintiffs� claim that these and other comments constituted a hostile environment for students with disabilities, it noted that: �The fact that a vociferous administrator with a concern about a perceived abuse of learning disability protections is personally involved in the day-to-day implementation of the University�s allegedly discriminatory accommodations policy may be of some consequence in this Court�s determination of the fairness of BU�s evaluation procedures.�

18. Scenarios Refusing to recognize a student group that declined to adopt and abide by the school�s policy prohibiting discrimination based on religion and sexual orientation. Prohibiting a student from wearing a t-shirt with a derogatory message about homosexuality. Prohibiting an instructor from distributing anti-gay pamphlets entitled �Sin City� and �Doom Town� to a homosexual student. First scenario: Hastings Christian Fellowship v. Kane, 2006 U.S. Dist. LEXIS 27347 (N.D.C.A. 2006) (A university may deny official recognition to a student group that refuses to adhere to the school�s nondiscrimination policy). Second scenario: This case involved a public high school in California. See Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006) (While elementary and high schools can prohibit students from wearing shirts that condemn such identifying characteristics as homosexuality, race, or religion, such a restriction is permissible based on the type and degree of the injury and location where it occurs. Because college students are more mature, emotionally and intellectually, such a restriction at the university-level would infringe on students' First Amendment rights). Third scenario: Piggee v. Carl Sandburg College, 2006 U.S. App. LEXIS 23733 (7th Cir. 2006) (The First Amendment does not protect a public community college teacher�s right to distribute pamphlets regarding the sinfulness of homosexuality to gay students. A university may restrict such speech and discipline this behavior as sexual harassment without infringing on the teacher's First Amendment rights). First scenario: Hastings Christian Fellowship v. Kane, 2006 U.S. Dist. LEXIS 27347 (N.D.C.A. 2006) (A university may deny official recognition to a student group that refuses to adhere to the school�s nondiscrimination policy). Second scenario: This case involved a public high school in California. See Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006) (While elementary and high schools can prohibit students from wearing shirts that condemn such identifying characteristics as homosexuality, race, or religion, such a restriction is permissible based on the type and degree of the injury and location where it occurs. Because college students are more mature, emotionally and intellectually, such a restriction at the university-level would infringe on students' First Amendment rights). Third scenario: Piggee v. Carl Sandburg College, 2006 U.S. App. LEXIS 23733 (7th Cir. 2006) (The First Amendment does not protect a public community college teacher�s right to distribute pamphlets regarding the sinfulness of homosexuality to gay students. A university may restrict such speech and discipline this behavior as sexual harassment without infringing on the teacher's First Amendment rights).

19. Scenarios Removal of copies of a publication containing photos that identify students as homosexual from a college residence hall pursuant to a �anti-clutter� policy Removal of cartoon images of Mohammed with an �exploding turban� from campus bulletin boards Disciplining a faculty member who belittles an African-American student for his controversial argument in class about payment of reparations for slavery Suing an employer over being exposed to vulgar expressions and sexually explicit language of co-workers in creating story lines for a show First two are based on events at JHU. The third is a made up hypothetical. The fourth is the �Friends� case. Court held that this was not harassment since employee was warned about the sexually-explicit nature of on-the job discussions, and comments were not directed at the employee.First two are based on events at JHU. The third is a made up hypothetical. The fourth is the �Friends� case. Court held that this was not harassment since employee was warned about the sexually-explicit nature of on-the job discussions, and comments were not directed at the employee.