Do harassment laws violate free speech? 10-03-2007

I don't have a problem with the harassment laws if they prohibit inappropriate touching, or making someone's job dependent on "sexual favors." But when I could get fired or sued for making a joke, doesn't that violate my right to free speech?

Rita Risser replies:

I once gave an anti-harassment program to a group of scientists, including a Nobel Prize winner who had escaped from Russia. He said, "When this law prohibits us from saying something, it is censorship. This is exactly how we lived under the communists." Who was I to argue with him? A new book, Speechless: the Erosion of Free Expression in the American Workplace, by Bruce Barry, a professor of management at Vanderbilt University, makes the same argument. This book is valuable for management, HR and legal people who enforce the law and company policies, as it gives specific advice on what to do, and more importantly, what not do. It makes you think (something often not done in harassment situations) and also is fun to read, with lots of funny-tragic anecdotes. I highly recommend it for anyone who wants to consider just what are, or should be, the limits of the law.

Anyway, to answer your question, there are very few cases -- especially at the appellate level -- that deal with free speech and workplace harassment. In most of those cases the judge has been unwilling to consider a First Amendment defense, though a few judges have done so. The US Supreme Court has generally approved of harassment policies, but has never dealt directly with the free speech issue.

So right now it is a developing area of law, in which you probably do not want to be the landmark case! Best to follow company policy and good sense.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.