The ACLU insists that sex in public restroom stalls is protected by “privacy”, even though such activity creates a very uncomfortable environment for those who simply wish to go to the bathroom in peace.
Ironically, the ACLU has long argued that neither free speech nor privacy protect what employers and employees say in private workplaces, in private conversations, if others subsequently learn second-hand what was said and are offended by it. For example, in Aguilar v. Avis Rent-A-Car System (1999), a sharply divided California Supreme Court, egged on by the ACLU, voted 4-to-3 to uphold a trial court order banning a private-sector employee (who was himself married to a Hispanic) from using any epithet regarding Hispanics, even if there were no Hispanic people around.
The ACLU’s justification for this was that any such use might, hypothetically, contribute to a hostile work environment for Hispanics if they learned about such uses second-hand. (Even though it is black-letter law that an isolated instance of racist speech does not create, or revive, a hostile work environment, or constitute illegal racial harassment).
In its amicus brief, the ACLU argued that any speech that contributes to a “hostile work environment” automatically ceases to be speech and becomes simply an unprotected “verbal act.” (Three of the seven justices essentially accepted this argument; one justice rejected it but voted to uphold the speech-restricting order on other grounds. One of the three justices who accepted it later seems to have recanted it, since he wrote the concurring opinion in a later case, Lyle v. Warner Brothers (2006), which noted that some speech that creates a hostile work environment — speech used to produce adult-oriented TV sitcoms — is nevertheless speech protected by the First Amendment).
Ironically, the ACLU, which claims that racist speech is unprotected when it creates a hostile work environment, has itself done much to promote a racially hostile atmosphere through its own lawsuits. For example, it sued the Alpine Village Inn, a private restaurant in Torrance, California, after it refused to allow Neo-Nazis to dine while wearing swastikas, thereby tramping on the restaurant owners’ freedom of association and property rights. It also promotes sexually offensive environments. In Massachusetts, the ACLU argued in court that the First Amendment protected one man’s right to perform oral sex on another man on stage.
Yet when my brother, who wished to promote campus debate on issues such as feminism and “sexual correctness,” sought the ACLU’s help in fighting campus speech codes, the ACLU turned him away, believing that campus debate could be limited to prevent what it perceived as a “hostile or offensive learning environment.” A similar speech code at the University of Wisconsin banning campus speech that creates a “hostile or demeaning learning environment” had been struck down in 1991.
The ACLU raises money from donors based on the false pretense that it evenhandedly promotes freedom of speech. Yet it relishes using “hostile environment” harassment laws as tool of censorship to suppress workplace speech. Nancy Gertner, a prominent ACLU lawyer later appointed by Bill Clinton to the federal bench, boasted to a Commerce and Labor committee of the Massachusetts legislature that by broadening the definition of sexual harassment to cover more speech, “we will dictate the workplace mores of the 1990s,” which she proudly asserted “will be incredibly traumatic” for the employees subjected to them. (Both I and my brother viewed these remarks on TV, since the legislative hearing was carried on public broadcasting).
Sally Jacobs’s August 30, 1992 article in the Boston Globe, “Sexual Chill Hits the Office,” quoted Gertner boasting that “people feel at risk in dealing with the opposite sex, and that is not bad.” “We’re changing the rules and so men are afraid. People are walking on eggshells.” That attitude is a direct assault on individual freedom and civil liberties.
Gertner has also argued that consensual sex should be illegal absent proof of express permission, akin to the elaborate consent forms that precede a medical operation (as a like-minded feminist writer in the Harvard Crimson recounted). So much for privacy rights.
She also got the Massachusetts Supreme Court to hold that a vulgar parody directed at a female candidate in a union election constituted sexual harassment, over a dissent pointing out that it was protected political speech, in Bowman v. Heller (1995). Even pro-plaintiff federal appeals courts, such as the Second Circuit, have held that such parodies do not constitute sexual harassment, in cases such as Brown v. Henderson (2001), which dismissed a lawsuit based on a vulgar parody that insulted the female plaintiff. (Most vulgar parodies are of male, rather than female, candidates, belying arguments that such parodies constitute sex discrimination).
Ironically, the ACLU’s Massachusetts affiliate rewarded Gertner’s extremism and contempt for free speech and privacy rights by making her the keynote speaker at a purported “celebration” of the Bill of Rights (which actually focused on racism, not any right contained in the Bill of Rights).