| 1595 Mass. Ave. 112 Wyeth Hall News Department The Law Record Dear April: On around 7:00 P.M. Monday you contacted me and asked for any suggestions I might have regarding possible questions for your interview with Dean Wald on the sexual harassment policy which is being developed for the law school. I have not been able to learn many details about the policy, other than the disturbing fact that whatever speech regulations it contains will apply to even the most private areas of student life, such as a regulated student's own dormitory room, and that the same provisions apply to fellow students as to the most powerful members of the faculty. Nevertheless, I have several issues relating to free speech which I would like for you to raise, and on which I would like to comment below: I. The Law School may not regulate the content of students' speech merely because it is "offensive" or "demeaning", because Massachusetts law accords students the same free speech rights against the law school that students have against state universities governed by the First Amendment. The Massachusetts Civil Rights Act is an unusually broad civil rights law in that it protects civil liberties such as free speech and privacy not only against the government but also against restrictions by private institutions. MCRA provisions ban any institution from interfering, or attempting to interfere, with the exercise of rights secured by the First and Fourteenth Amendments of the United States Constitution or the Massachusetts Declaration of Rights through "threats, intimidation, or coercion." (The provisions are in Massachusetts General Laws chapter 12, subsections 11H and 11I, abbreviated G.L. c.12, ss. 11H, 11I). Free speech is a right protected under the MCRA, and disciplining students for exercising their free speech rights constitutes "coercion" in violation of the MCRA's free speech guarantees. Abramowitz v. Trustees of Boston University, Boston Superior Court, 1986 (unpublished), page 21. In the Abramowitz case, the court overturned the disciplining of divestment protesters at privately-run Boston University, and barred Boston University from removing divestment banners hung by dormitory residents. Justice Haskell Freedman noted, "I can discern no reason why the free speech rights of students at Boston University should be any narrower than those of students at public universities." Page 24. "Nowhere in our society is the protection of the free flow of ideas more important than in the university community, the quintessential 'marketplace of ideas.'" Page 22. However, employees do not enjoy the same broad free speech rights against their employers in Massachusetts as students do against their colleges. Employers may discharge employees for speech on the job related to purely personal grievances between them and their employer, as long as they do not discipline employees for political statements made outside the workplace, such as commentary on public policy issues. Caron v. Silvia, 32 Mass. App. Ct. 271 (1992). Students' speech on public college campuses may not be banned merely because it is labelled "harassment" or because it is found to be "intimidating" or "demeaning." Doe v. University of Michigan, 721 F.Supp. 852 (1989). In the Doe v. University of Michigan case, U.S. District Judge Avern Cohn overturned a University of Michigan speech code banning racial, sexual, and sexual orientation "harassment" as a violation of free speech, noting that its ban on "stigmatizing or victimizing" "verbal conduct" was so overbroad and vague as to constitute illegal censorship by campus administrators. 721 F.Supp. at 853, 856. Cohn also overturned provisions of the speech code banning speech which "Creates an intimidating, hostile, or demeaning environment for educational pusuits, employment or participation in university-sponsored extra-curricular activities." 721 F.Supp. at 856. And as you know, recently the University of Wisconsin rescinded a speech code which banned "harassment," defined as "verbal conduct" which is "intended to create a hostile, offensive, or intimidating environment." Therefore, speech on public campuses - and in Massachusetts, private campuses - cannot be banned merely because administrators believe it fosters a hostile, offensive, or intimidating environment. When I spoke with Dean Wald, she implied that there were speech restrictions in the Law School's proposed sexual harassment policy, citing with approval court rulings that speech which creates a "hostile work environment" may be restricted by the government through sexual harassment laws. But while speech that gives rise to a hostile environment may give rise to lawsuits if it occurs in the workplace (see Meritor v. Vinson, a Supreme Court case), it cannot be so tightly restricted on a campus, which is in many respects a public forum. See Rust v. Sullivan (1989) (Chief Justice Rehnquist admitting in dictum that universities, unlike family planning clinics, are so vital a forum for free expression that the government may not restrict speech in them); R.A.V. v. St. Paul (1992) (speech may not be regulated in public fora merely because it is "racist," "sexist," or otherwise offensive); Abramowitz v. Boston University (university has "the attributes of a public forum" for free speech purposes). If the law school's sexual harassment policy punishes students for speech merely because a listener finds it "offensive" or "intimidating", it has engaged in censorship in violation of the Massachusetts Civil Rights Act's free speech guarantees, since a student's right to free speech includes the right to engage in offensive speech. Many area schools (i.e. MIT) have sexual harassment policies where a single "sexist" joke or remark can be punishable, or even a single, unrepeated request for a date that is rebuffed. Views, whether they are controversial or commonplace, may be punished if anybody in earshot becomes offended. These Orwellian policies have never been challenged in the Massachusetts courts, but if they were ever rigorously enforced, they would probably be challenged by disciplined students and overturned by the courts as a violation of the MCRA. I am currently searching for test cases at area schools, especially MIT, to overturn sexual harassment policies that violate free speech. My brother Lars, an MIT graduate student, is weighing the possibility of suing MIT on the basis of its sexual harassment policy, since expressing his opinions opposing regulation of sexually-explicit speech might technically place him in danger of administrative reprisals under the MIT policy. Questions I would ask Dean Wald: (1) Does the law school's sexual harassment policy ban speech merely because it offends a listener? Can a student be punished for statements of opinion on controversial issues (i.e. pornography, sexually-explicit art, gender-specific traits, sexual harassment, obsenity, rape law, etc.) that offend other people with different ideological or philosophical leanings? (2) Does the sexual harassment policy contain a speech code similar to those at state universities struck down by the courts? Does it redefine speech as "verbal conduct" subject to punishment? (3) Do you realize that Massachusetts caselaw accords students the same free speech rights at Harvard that they enjoy a public universities, where administrators may not ban speech merely because it fosters a "hostile, offensive, or intimidating environment?" Do you plan to implement speech restrictions in the Law School's sexual harassment policy that would be unconstitutional if applied at a state university? (4) Why does the Law School plan to regulate students' speech when no university in America has ever been found guilty of violating the laws against sexual harassment merely because one student's speech offended another student? (5) Do students have the right to create a "bubble" of censorship around themselves, punishing anyone who makes an "unwanted" or "offensive" sexual comment? Do Law School administrators realize that allowing students to punish others for speech that offends them could lead to an Orwellian social climate in which all of us could lose our reputations for what we say in a single unguarded moment? (6) Isn't censorship more likely to engender a feeling of harassment and intimidation than freedom of speech exercised by one' peers? What civil right is more basic than the right to express oneself freely? When I spoke to Dean Wald at the diversity forum several weeks ago, she told me that the same sexual harassment policy would be applied to speech among students as to speech between administrators and faculty and staff. I found this alarming as a student because (i) students don't have power over each other the way a supervisor has over a subordinate, or even the lesser power abusive employees can collectively have over a singled-out co worker trapped in their workplace; (ii) students engage in political, sexual, and social activities on the campus that workers engage in only elsewhere, and consequently students need more protection for their expression; (iii) Massachusetts recognizes that the free speech implications are greater when an institution regulates students' speech than when it regulates employees' speech merely during work hours; and (iv) students engage in romantic and sexual behavior in the dormitories that are perfectly natural but which would be totally inappropriate in the workplace, so there should be different standards for students than for employees. Accordingly, I have a few final questions: (5) Why should sexual harassment policies designed principally to protect employees from abuse by their supervisors be applied to fellow students who have equal power, given that a student can speak back to the offender and disassociate herself from the offender in a way that a desk- or factory-bound employee cannot? Isn't the proper response to offensive speech more speech in response, rather than censorship? Isn't that what free speech is all about? (6) Given that college students have greater free speech rights under Massachusetts law against their institutions than do employees against their employers, why does the Law School's sexual harassment policy accord them only the same limited free speech rights enjoyed by employees? (7) Why must students live 24-hours a day under censorship employees must tolerate for only 8 hours? Employees can go home and escape the watchful eyes of administrators. Students cannot. CONCLUSION If the proposed sexual harassment policy bans comments merely because a listener finds them "offensive", I will sue the law school to vindicate my free speech rights under the Massachusetts Civil Rights Act. I have published extensively on free speech and privacy rights issues relating to sexuality. See, for example, "Portrait of the New Puritanism", February 2, Washington Post (criticizing defunding of Maryland museum which displayed anti-war painting depicting Bush nude, and condemning censorship of the arts by reactionaries and radical feminists); "Collective Guilt", December 15, 1991, New York Times (condemning radical feminist professor Catherine MacKinnon for advocating censorship of books and art and for labelling nearly all heterosexual sex as rape); untitled letter, June 3, Wall Street Journal (criticizing government-mandated regulation of workplace speech in sexual harassment law); "McCarthyism Alive at Harvard", April, Boston Herald (condemning usage of the Frug parody as a pretext for censorship at HLS); "Anti-Porn Bill Threatens Liberty and Equality", April, Boston Globe (condemning censorship of films and books perpetrated under the guise of fighting pornography); "Navy Goes Overboard on Sexual Harassment", August 23, Virginian Pilot and Ledger-Star (condemning Navy for punishing sailors and employees for engaging in merely offensive speech, even as it failed utterly to prosecute the perpetrators of the Tailhook sexual assaults); "Date Rape Report is Biased", February, Harvard Crimson (criticizing a Task Force's definition of "date rape" which would have redefined most consensual sex as rape, including any sex a couple engages in without a verbal request by the man followed by an explicit "yes" on the part of the woman). If I were merely to orally defend my published writings and political beliefs on the subject of sexual expression, I would run afoul of the speech restrictions of many needlessly draconian sexual "harassment" policies at Boston-area schools. Students could accuse me of making "sexist" or "offensive" comments for making important political points on controversial sexual issues, and for graphically illustrating my ideas through real-life examples and sexual anecdotes. If Harvard adopts a similarly censorial policy that heavily restricts speech on sexual matters, I will promptly bring an action in the local superior court to have the policy vacated. In contrast to many other potential targets of sexual speech restrictions, I might be sanctioned for merely expressing my political beliefs. Therefore, I would have an uncommonly good chance of prevailing in court, since core political speech has greater protection under the law than merely personal sexual speech engaged in between people in a non-political context. Please contact me for any information I can provide you in writing the news story on the proposed sexual harassment policy. Thank you for your attention. Sincerely, Hans Bader, 2L | |
|
