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Harassment Law and Free Speech Doctrine--英国论文代写范文精选

2015-09-24 | 来源:51due教员组 | 类别:Paper代写范文

51due英国论文代写paper选代写范文:“arassment Law and Free Speech Doctrine ”  该篇paper是针对法律与言论自由的原则进行批判性评论。政府限制某些类型的演讲,解答这一问题的最好的方法是通过一个简单的假设。国家行动的目的,不是政府直接限制人们的言论,政府施压,通过责任上的威胁,然后限制演讲。这肯定不符合宪法的。

Harassment law is a government-imposed speech restriction on people's speech:  The government is enjoining certain kinds of speech, or awarding substantial compensatory and punitive damages based on speech.
This is most obvious when harassment law punishes an employer's own speech, or when a court enjoins employees themselves from speaking. 1  When the government is imposing liability on a private employer because of the speech of its employees -- thus giving the employer an incentive to restrict its employees' speech -- the situation is a little less familiar.  Nonetheless, state action is clearly present there, too.

The best way of seeing this is through a simple hypothetical.  Say Congress commanded that "Any employer that tolerates criticism of American soldiers shall be liable to any coworkers who are offended by such criticism, for instance those whose relatives were injured or killed in action."  (This is actually not that far-fetched a hypothetical; such speech might well qualify as something akin to "veteran status harassment," a recognized claim under existing law.  Click for example.)

For state action purposes, this law is identical to harassment law. 2  Instead of the government restricting people's speech directly, the government is pressuring private employers -- through the threat of liability -- into restricting the speech.  But surely this cannot be constitutional.  Private employers, of course, may restrict employees' speech with no First Amendment difficulties, just as private householders and private publishers may restrict speech on their property; 3 but when the government pressures the private employers into restricting speech, the First Amendment steps in.

The Court has recognized this distinction between what a private employer can do to the employee and what the government can force the employer to do.  For instance, in Truax v. Raich a state law required that at least eighty percent of each employer's employees be citizens. 4  Raich, a noncitizen who was discharged because of this law, sued, alleging that the law was a denial of equal protection, 5 and the Court agreed.  Though Raich's employer could have fired Raich at any time, the Court said, the state's attempt to force the employer to fire him was unconstitutional; the state, by imposing the eighty percent requirement on the employer, was acting directly upon the employee.

Similarly, in Peterson v. City of Greenville, a Greenville city ordinance required restaurants to be segregated, and plaintiffs were arrested for trespass when they ignored a lunch counter manager's demand that they leave.  Though the Court agreed that the manager could have kept his lunch counter segregated, it held that the city could not have required the manager to do this:  Imposing the requirement that the manager eject blacks was tantamount to the city's ejecting them directly. 7

Just as the government can't avoid Equal Protection Clause scrutiny by forcing private parties to discriminate, so it can't avoid First Amendment scrutiny by drafting private parties to implement speech restrictions.


The First Amendment protects workplace speech from government abridgement, so long as the communications "do not contain a `threat of reprisal or force or promise of benefit.´" "[A]n employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed"; and likewise, courts of appeals have held, for employees' free speech rights. 9
The Court has been more willing to find a threat or a promise in an ambiguous statement made by an employer or a union than in other situations.  Workplace communications by the employer must be viewed in light of "the economic dependence of the employees on their employers, and the necessary tendency of the former . . . to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear."  And "[the] threat of retaliation based on misrepresentation and coercion [is] without the protection of the First Amendment." 10

But where no promise or threat is present, workplace speech, both by employers and employees, is fully protected.  Federal appeals courts have regularly upheld free speech rights in cases in which no threat or promise could be implied, such as where a manager told his subordinates that they lost benefits by voting for a union; 11 where a union put out leaflets to plant employees revealing, contrary to an administrative judge's protective order, what happened at an administrative hearing; 12 where an employer asserted that unionization, by increasing costs, might lead to the plant's closing in the future; 13 where an employer encouraged injured workers to go through a company's claims representative instead of going to court; 14 and so on. 15
Harassment law cannot fit within the threat-or-promise exception.  Except for actual threats and possibly certain kinds of sexual propositions made by a supervisor to a subordinate, no other forms of harassing speech could be viewed as threats or promises of benefit.  The cases make clear that there has to be some fairly tangible evidence of threat.  Abstract assertions that certain kinds of speech might be potentially menacing are inadequate, just like abstract claims that all employer speech on labor issues is necessarily threatening are inadequate.

Offensive as bigotry or pornography may be, courts thus cannot view it as inherently threatening at least until some evidence is shown in the particular case that the employee was actually threatened (rather than just offended) by it.  Similarly, harassment that is largely the work of a single coworker, who has little power over the victim, 16 should rarely be threatening, though it could easily be very offensive.  It may be true that some of the targets of bigoted speech might perceive such speech as inherently threatening, but one can also say that some employees might perceive any antiunion commentary by an employer as threatening.  Gissel's "threat" exception does not reach far enough to cover either situation. 17



Oral Remarks:  Being "captive" to occasional oral remarks (or occasional e-mail) also doesn't mean literally being forced to listen to an extended harangue.  The speech is thus pretty much over -- or is fairly easily avoidable, for instance by deleting the e-mail or by walking away from the speaker -- shortly after one realizes it's offensive.  The captivity, though, comes from the fact that you may at any time be surprised by offensive speech:  Every week or month or however often it happens, you'll unavoidably find yourself hearing things that you didn't want to hear.

But of course this is also true outside the workplace.  We may at any time run into someone on the street wearing a "Fuck the Draft" jacket, or a shirt that says something even more offensive.  We may at any time overhear someone using profanity, or even hear someone using it directly at us.  We may at any time run into someone making an offensive political statement, whether it be burning a flag or criticizing a religion or wearing a swastika. 39  Averting our eyes won't erase the offensiveness of the speech, 40 or prevent us being offended in the future.  Employees or not, we're all equally "captive" to occasional offensive remarks whenever we're surrounded by people whose behavior we can't control.  Again, though, this can't justify restrictions on such speech.

The Doctrine:  This is why the Court has acknowledged that "we are often `captives' outside the sanctuary of the home and subject to objectionable speech," 41 and concluded that despite this such speech can't be restricted.  This was first made clear in Cohen v. California, where the government sought to bar public profanity.  But even though constitutionally protecting such profanity made us all captive to it -- wherever we go on the street, we might run into profane or otherwise offensive speech -- the Court held that banning such profanity, even in the presence of a "captive audience," is unconstitutional.

Likewise, people who must cross a picket line, whether they be employees or patrons of important services, are captive to the picketers:  For instance, as the Court seemed to acknowledge in Madsen v. Women's Health Center, abortion patients are "held `captive´ [to antiabortion picketing] by medical circumstance." 42  But despite this, the Court refused to uphold even content-neutral restrictions on displaying images observable by the incoming and outgoing patients, and on approaching patients within 300 feet of the clinic.  The Court did uphold content-neutral restrictions on picketing within 36 feet of the clinic door, and on loud noises audible from inside the clinic, but both of these were justified by concerns other than the patients' "captivity." 43  Abortion clinic patients may be captive to antiabortion picketing, but the Court has not seen this as reason enough to suppress it.

The one case most often cited for the proposition that captive audiences can be protected through content-based restrictions, 44 Lehman v. City of Shaker Heights, actually holds no such thing.  Lehman upheld the policy of a city government, acting as proprietor, allowing only nonpolitical ads on government-run municipal buses.  The four-Justice plurality argued that the advertising space on the buses was not a public forum, and that therefore the city policy needed to meet only a deferential reasonableness test. 45  The four-Justice dissent argued that the advertising space was a public forum, and that the content-based restriction violated the First Amendment. 46

The one opinion that stressed the bus passengers' captivity was Justice Douglas's concurrence (the plurality considered captivity only as one factor in deciding that the advertising space was not a public forum).  But even Justice Douglas believed that captive audience considerations would only justify content-neutral restrictions.  In his view, "the content of the message [was not] relevant either to petitioner's right to express it or to the commuters' right to be free from it.  Commercial advertisements may be as offensive and intrusive to captive audiences as any political message." 47  As Justice Douglas said a year later in Erznoznik v. City of Jacksonville -- where he agreed that a ban on drive-ins showing movies containing nudity was unconstitutional --

the interests of captive audiences [citing Lehman] . . . . cannot . . . justify attempts to discriminate among movies on the basis of their content -- a "pure" movie is apt . . . to be just as intrusive [as an "impure" movie] upon the privacy of an unwilling but captive audience.  Any ordinance which regulates movies on the basis of content . . . impermissibly intrudes upon the free speech rights guaranteed by the First and Fourteenth Amendments. 48
Justice Douglas voted to allow the ban on political ads not because he thought the city could constitutionally discriminate among ads, but because he thought the city was constitutionally forbidden from putting any ads on its buses:  The "captivity" of the bus passengers "preclude[d] the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience." 49  This view (first articulated by Douglas in his dissent in Public Utilities Commission v. Pollak, which his Lehman concurrence frequently cited) prevented Justice Douglas from agreeing with the Lehman dissent and forcing the city to take political ads, because such a course would have only been a violation of the passenger's right to be free from government-imposed propaganda (political or commercial).  The correct remedy, to Justice Douglas, would have been to bar commercial as well as political ads, but it was a remedy that he was procedurally unable to grant, since no challenge to the commercial ads was before the Court. 51

Thus, five of the Lehman Justices -- the four dissenters and Douglas -- did not agree that content-based restrictions may be justified by the presence of a captive audience, even on government property.  As importantly, none of the Justices suggested that the government may impose such content-based restrictions on private property.  (The four-member plurality upheld the city policy because the advertising space was a nonpublic forum; content-based restrictions are generally allowed in nonpublic fora. 52)  The Court has twice specifically held that Lehman can only apply to government property, and surely this must be right -- surely, for instance, Lehman doesn't allow the government to ban political ads on private buses.

The only other serious mention of captive audiences outside the home is a dictum in Erznoznik v. City of Jacksonville, where the Court said that certain content-based restrictions may be permissible if "the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure" and when at the same time "substantial privacy interests are being invaded in an essentially intolerable manner." 55  But as the examples I mention above suggest, this must be a narrow exception indeed:  Even where it is in fact impractical for people to avoid exposure to picketing, demonstrations, and the like, the government may not restrict them.  And in fact, the Court has never acted on this dictum.

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