Directed Versus Scattershot Harassment
In April of this year, I was one of a number of speakers at a daylong conference at UCLA Law School celebrating and critically examining (which is how we in the academy celebrate) the work of Professor Eugene Volokh on the occasion of his departure from UCLA for the Hoover Institution. Constitutional Commentary will be publishing the papers we speakers presented. I've completed a sufficiently polished draft to post mine on SSRN. For those readers who don't have the time to read the full paper (which is pretty short, just over 10,000 words, including footnotes), here's the abstract:
Conflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh’s wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of constitutionally required exceptions to public accommodations laws for expressive businesses; disagreement with the common assumption that boycotts themselves, as distinct from any accompanying expression, are constitutionally protected free speech; and a bold position on recent clashes between free speech and Title VI on college and university campuses. Canvassing this portion of Volokh’s oeuvre, one sees libertarian instincts but also a genuine appreciation for competing egalitarian concerns. Even when one finds Volokh’s bottom line ultimately unpersuasive, one cannot gainsay his clarity of thought, originality, or fearlessness.
Part I of my essay engages with Professor Volokh's earliest work--which identified conflicts and potential conflicts between hostile-environment workplace harassment case law under Title VII and free speech. In a 1992 article, he wrote that "directed speech—aimed at a particular employee because of her race, sex, religion, or national origin"--should be proscribable harassment, but that "undirected speech—between other employees that is overheard by the offended employee, or printed material, intended to communicate to the other employees in general, that is seen by the offended employee"--should be deemed unproscribable on First Amendment grounds.
As I explain in the article, case law has not (yet, at least) adopted Professor Volokh's view. Moreover, I agree with the commentators who offer normative defenses of a broader conception of hostile-environment harassment. In my view, workers are a kind of captive audience at the workplace, which justifies restricting noxious speech by their fellow workers.
In a Verdict column I wrote around the time of the UCLA conference, I suggested that despite what I regarded as its shortcomings as grounds for limiting Title VII, Professor Volokh's proposal might have more to recommend it in the context of college campuses when speech is alleged to contribute to a hostile environment under Title VI--at least as applied to those spaces on a college campus, such as a central quadrangle, that have the same general characteristics as public parks, streets, and sidewalks. Students (and faculty and staff) may be a kind of captive audience in some other parts of campus, but not everywhere.
In my first draft of my symposium article, I sought to expand on the suggestion of the Verdict column. In Part IV, which addresses campus conflicts between free speech and antidiscrimination law, I tried to argue that the directed/non-directed distinction could be useful. Eventually, however, I cut that argument, partly because the article was already on the long side for a symposium paper but also because, the more I thought about it, the more difficulty I had figuring out what the difference is between directed and undirected speech, and why it should matter.
Consider three hypotheticals.
Case 1: A hundred students hold a rally against, or are in an encampment protesting, the university's failure to divest from Israeli-owned companies in light of the Gaza war. Most of them are protesting peacefully and making strong but non-harassing statements. However, five of the loudest protesters yell antisemitic epithets at individual passersby who appear to be Jewish.
That is pretty clearly a case of directed harassment on forbidden grounds--directed at each individual passerby based on (perceived) Jewish identity. It doesn't matter that there is more than one victim of the directed harassment. In this scenario, each antisemitic statement is directed at a particular individual.
Case 2: Same as Case 1 except that the five loud protesters don't yell the antisemitic epithets at the individual passersby who appear to be Jewish but they do use the epithets (equally loudly as in Case 1) whenever they see a passerby who appears to be Jewish.
This too seems to be directed harassment on forbidden grounds. Even if the statements are in the third rather than the second person, the pattern of when the troublesome five make the statements amounts to directing the harassment at individuals.
Case 3: The five vocal antisemites among the protesters make no effort to limit their antisemitic statements to occasions when they perceive Jewish passersby. Instead, they make these statements continually, so that whenever anyone (Jewish or otherwise) happens by, they hear exactly what the Jewish passersby hear in Case 2.
Under Professor Volokh's proposal (as adapted from Title VII), this appears to be undirected speech. Yet from the listener perspective, the impact is exactly the same as in Case 3. Either we need some other way to distinguish directed from undirected speech or the distinction doesn't do the work it needs to do in order to usefully sort protected free speech from actionable harassment.
To be clear, I'm not saying what the outcome should be in Case 3. And I'm also aware that the one case in which the Supreme Court allowed that a state may criminalize group libel--Beahuarnais v. Illinois (1952)--was and remains controversial. What I am saying is that even though there seems intuitively to be something to the directed/undirected distinction in at least some settings, it is quite difficult to crystalize what that is in a way that helps.
Accordingly, and having more than enough other material anyway, I opted in my symposium essay not to endorse the notion that the directed/non-directed distinction that Professor Volokh advocated for Title VII should apply in the Title VI campus context. I continue to think there's something to be said for that distinction, but what exactly that something is and where it might be useful are questions to which I have not yet worked out satisfactory answers.