Document Type

Article

Publication Title

Notre Dame Law Review

Abstract

There is a lively debate within First Amendment scholarship over the constitutional status of discriminatory verbal harassment, particularly in the workplace. A number of decisions finding harassment liability under Title VII have turned in whole or in part on what we would ordinarily recognize as "speech"; yet few courts have seriously considered the relevance of the First Amendment in this regard. The commentators have stepped into the judicial vacuum with gusto. Some commentators have argued that Title VII's harassment law, as applied to nearly all speech, abridges the freedom of speech protected by the First Amendment. Others have defended harassment law as both necessary to workplace equality and entirely consistent with free speech principles and doctrine. Still others situate them selves at some point in the middle and advocate some restrictions on the application of Title VII to speech. While the workplace context puts a unique spin on the issue, the problem of discriminatory harassment raises many of the classic architectural problems that Professor Schauer urges us to consider: does it make sense to think of discriminatory harassment (or the incidents that may contribute to a hostile environment) as "speech" - as conduct to which the First Amendment is relevant? What will it do to First Amendment doctrine as a whole to include within its purview, or to exclude from it, some of what might be discriminatory harassment? Does all or most of what may contribute to a harassment claim fit into one or more of the existing categories of unprotected speech? If not, should we afford "full protection" to this speech, or should we instead recognize a new category of unprotected or less protected speech? How might we define such a category so as to minimize the dangers of both errors of application and of further fragmentation and excessive complexity within the structure of free speech law? I propose to take up some of these questions briefly here as a way of testing the usefulness of, and, frankly, paying homage to, some of Professor Schauer's contributions in the free speech arena.

First Page

1361

Volume

72

Publication Date

1997

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