The New York Times, Sunday, July 7, 1996
The Long Arm of Harassment Law
By Walter Olson
Last month, a Federal court struck down a ban on Internet indecency, saying the new medium "deserves the highest protection from governmental intrusion." But if you were expecting any Golden Age of free expression on line, think again. Kick the censors out the front door, and they climb back in the window via . . . harassment law.
Under harassment law as it has developed over the past 15 years, workers can now sue for steep damages if they encounter a "hostile environment," a vague term that includes many sorts of speech deemed upsetting or humiliating. Among frequent topics of complaint are jokes and other chat, pinups and co-workers' allegedly sexist or racially insensitive remarks. But the Internet is full of potentially upsetting jokes, pictures, opinion and chat. Companies are already forbidding their employees to browse bawdy sites, fearing suits from offended co-workers.
A maker of parental-screening software says 15 to 20 percent of its sales are to businesses. Software set off by the sensing of four-letter words winds up blocking many sites in no way aimed at prurient interest.
Even if surfing takes place after hours or on a lunch break, and even if a majority of workers of either sex willingly condone it, it counts as possible harassment. Nor does it make any difference that colleagues weren't meant to observe the objectionable material. As The New York Times recently reported, women can be offended by material glimpsed by mistake while strolling by, or simply "imagined from the guffaws of others gathered around a screen."
If the Net community finds this alarming, it appears rather late in the day for objections. For years now, the "hostile environment" branch of harassment law has been suppressing everyone else's speech with scarcely a peep of protest. Federal guidelines ban "circulation" of bad materials anywhere "on the employer's premises," which includes inside closed desks and lockers.
In one important case in 1991, a Federal court ordered a Florida shipyard to bar workers from bringing in not only pinups but "reading material" deemed "sexually suggestive" -- like novels. Some harassment-law experts saw nothing unusual when a Southern California official was hauled up on charges that she had been "tolerating sexual banter" at staff meetings.
Harassment law actually goes well beyond the Communications Decency Act because it suppresses controversial opinions even when couched in chaste language. No one blinked in 1992 when a Federal court ordered a Government employer to require its staff to "refrain from any . . . remarks" that are "contrary to their fellow employees' religious beliefs," though remarks contrary to others' religious beliefs used to count as a core concern of the First Amendment.
A complaint to the Seattle human rights commission charged that tuning an office radio to right-wing talk shows had made for a hostile environment, and a city spokeswoman agreed this was a reasonable interpretation of the law.
The Communications Decency Act was rightly criticized as vague and overbroad, fatal defects in a law regulating speech. But harassment law is far worse in both departments. It can ban "almost anything the employee finds offensive," declared an approving expert in another New York Times article.
"Our basic rule of thumb is what we call a 'gut-check,'" said William Petrocelli, co-author of "Sexual Harassment on the Job." "If you feel you've been sexually harassed then you have been."
In law schools, the lame argument for all this is that since employers have an undoubted right to ban visits to www.bikinibabes.com, rec.music.white-power or alt.atheism -- and many would ban such visits anyway to curb goofing off -- all we're doing is forcing them to exercise that right. But newsstands also have an undisputed right not to carry, say, unpatriotic magazines, which doesn't mean we can pass a law forcing all of them to exercise that right.
The bizarre thing is that many ribaldries and ethnic gibes now considered grist for harassment complaints, and thus for Net censorship, are tamer than what can be heard on network TV, which means employers will be forced to block the sort of material that can nonetheless be beamed to everyone's 8-year-olds at home.
Do we really want a regime where only children -- because they don't work -- enjoy full access to free expression? Or is it time for us to rethink what we've let happen to harassment law?
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Walter Olson, a fellow at the Manhattan Institute, is author of The Litigation Explosion.
Other Olson writings on free speech / on sex discrimination / on employment law
Overlawyered.com (frequently updated links and commentary on the U.S. legal system)
The Excuse Factory (more on harassment law)
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