Past Supreme Court rulings like FCC v. Pacifica (1978) allow the federal government to ban “indecency” in broadcasting, and give the government a freer hand at regulating speech on the public airwaves than in society generally. But that doesn’t mean that the government’s power to restrict offensive broadcast speech is unlimited. The FCC has to provide fair notice of what speech is prohibited by its rules against indecency. Today, the Supreme Court struck down the FCC’s finding that Fox was guilty of indecency based on brief instances of vulgarity or nudity, since at the time they happened FCC policy was that only “deliberate and repetitive use” was punishable “indecency” (though the policy had later been revised). Because of this, holding the broadcasters responsible violated the Due Process Clause “void for vagueness” doctrine, which required “fair notice”: “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” “When speech is involved,” the Court emphasized, “rigorous adherence to” this fair-notice requirement “is necessary to ensure that ambiguity does not chill protected speech.” Today’s ruling came in the case of FCC v. Fox Television Stations.
This was a purely civil case, in which no criminal punishment was threatened against Fox, and no civil fine was even imposed (merely a warning), but the lack of prior notice to Fox about what speech was “indecent” invalidated the FCC’s ruling anyway, since the FCC’s finding that Fox had engaged in “indecency” in this case could lead to higher fines against Fox in future cases. This case, which was purely civil, illustrates the fallacy of the claim by trial lawyers and bureaucrats that vagueness isn’t a constitutional vice unless it leads to a criminal prosecution.
As Professor Eugene Volokh notes, courts have previously found some speech restrictions to be void for vagueness or lack of fair notice, even in non-criminal contexts. There are other cases holding purely civil regulations unconstitutionally vague. See, e.g., Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988).
The Supreme Court’s decision matters because most speech regulation in America is enforced not through criminal prohibitions on unprotected classes of speech (which have been narrowed by the courts in recent years to the point of reaching very little speech, like First Amendment rulings that (1) define obscenity narrowly to exclude most sexually titillating or gross speech, that (2) define punishable incitement narrowly to exclude most incitement, and that (3) define punishable libel narrowly to exclude false speech about public figures unless it is deliberately or recklessly false), but rather through civil liability for compensatory and punitive damages imposed on employers and other businesses. The classic example of such censorship is punitive-damages liability imposed on employers for speech by employees that creates a “hostile work environment” for listeners on the basis of their sex, race, national origin, age, sexual orientation, etc.
For every person who gets convicted of a speech-crime like obscenity, there are many, many people who get fired for saying something off-color, or sexist or racist, at work, some of them by employers who weren’t even sure that they were guilty of saying such things, but hastily fired them anyway to avoid the risk of being sued for punitive damages and attorneys fees for “sexual harassment.” Such liability is often imposed unpredictably, since judges and juries differ radically among themselves as to what speech they consider sexual harassment; one jury may be very offended by occasional off-color speech by employees, and consider that sexual harassment, while another jury may consider even frequently-occurring off-color speech to be trivial or harmless, and view the complainant as hypersensitive. As the Maryland Commission on Human Relations has noted, “the legal boundaries” of what is sexual harassment are “poorly marked.” As a federal appeals court noted, sexual harassment law is vague. See Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir. 1996).
(While I don’t like vulgar speech, I don’t think the government should force employers to ban it, based on archaic gender stereotypes that assume that women are uniquely fragile and vulnerable to sexually offensive language. Assuming that sexual speech is disproportionately offensive to female employees and thus “discriminates” against them — as some sexual harassment rulings do — raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning “obscene, profane, indecent, vulgar, or suggestive” communications to women, a court observed that laws “based on ‘old notions’ such as a belief that females should be afforded special protection from ‘rough talk’ because of their perceived ‘special sensitivities’ can no longer withstand equal protection scrutiny.” See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993). Federal employment and civil-rights laws are not supposed to be interpreted broadly when doing so would raise constitutional issues, like free speech or equal protection. (See Edward J. DeBartolo v. Fla. Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988); Miller v. Johnson, 515 U. S. 900, 923 (1995).)
If it is impermissible for the FCC to expand its definition of “indecency” to hold Fox responsible based on speech that previously didn’t qualify as “indecency”, then it certainly should be impermissible for federal bureaucrats or judges to hold employers liable for sexual or racial “harassment” based on speech that previously didn’t constitute “harassment” until “harassment” was expansively redefined to include such speech (especially when such speech was not even aimed at, and was not intended to offend, the complainant). See Cohen v. San Bernardino Valley College, 92 F.3d 968, 970 (9th Cir. 1996) (holding college sexual harassment policy was unconstitutionally vague as applied to professor who had long used provocative teaching style, since professor’s punishment reflected a deviation from past college practice).
But that sort of forbidden expansion-without-prior-notice is precisely what is occurring now at the EEOC (which is expanding the definition of racial harassment at the expense of free speech, like confederate flag t-shirts) and occurring now in at least two federal appeals courts, the Fourth and Eleventh Circuits.
The Atlanta-based Eleventh Circuit used to require sexual harassment plaintiffs suing for compensatory and punitive damages to show that co-workers aimed offensive comments at them based on their sex, not just that they witnessed offensive comments by co-workers who were equally vulgar around both men and women. In its decision in Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007), that court ruled that a woman could not sue over vulgar insults that didn’t occur because of her sex, noting that the federal anti-discrimination law, Title VII, “does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. . . in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.”
But three years later, the same appeals court, under criticism from politically-correct law professors, switched course, and held that a plaintiff can sue over a “hostile work environment” even if the vulgar speech about which she complains was not aimed at her based on sex, like co-workers listening to vulgar radio programs and a co-worker who looked at a picture of a nude woman on his computer screen, even though most of this speech was not aimed at her, and not motivated by her (or anyone’s) sex. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010). (I explained why this decision broadening the reach of sexual harassment law was wrong as a matter of statutory construction at this link).
Similarly, liberal panels of the Fourth Circuit in Richmond have recently ruled that speech was severe or pervasive enough to create an actionable “hostile work environment” (and thus constituted “sexual harassment”) even though prior rulings by more conservative judges of the very same court found that worse conduct did not rise to the level of being sexual harassment. See Hoyle v. Freightliner, LLC, 650 F.3d 321 (4th Cir. 2011) (sexual harassment claim based largely on overheard comments and reading of suggestive calendars not aimed plaintiff); Mosby-Grant v. City of Hagerstown, 630 F.3d 326 (4th Cir. 2010) (offensive remarks and complaints of favoritism towards black female cadet, among other things, supported sexual harassment claim) (2-to-1 ruling by Obama appointees over dissent by the only Republican on the panel, who cited Hartsell v. Duplex Products, 123 F.3d 766 (4th Cir. 1997). Compare Hartsell v. Duplex Products, Inc., 123 F.3d 766 (4th Cir. 1997) (six offensive comments aimed at the plaintiff not enough to create “hostile work environment”); Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 755 (4th Cir. 1996) (multiple offensive encounters and remarks not enough). The sexual harassment and discrimination statutes on the books did not change during that period, only the composition of the Fourth Circuit, which went from being mostly-conservative to mostly-liberal. The rapid expansion of the definition of “sexual harassment” was something that an employer could not reasonably anticipate, since the definition of sexual harassment has expanded less in most other circuits, even those that have gotten more liberal due to recent judicial appointments.
Although private employers are free to restrict the speech of their employees, the government cannot make them restrict such speech if it is constitutionally protected, since the First Amendment limits the government’s power to restrict speech either directly or indirectly. See Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005); Korb v. Lehman, 919 F.2d 243 (4th Cir. 1991). Similarly, government officials cannot force a private employer to fire an employee for discriminatory reasons, or in violation of due process. See Truax v. Raich, 239 U.S. 33 (1915); Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir.1987). As the Supreme Court observed in the Truax case, “The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion.”
A damage award over speech violates the First Amendment unless the speech falls into an unprotected category, such as defamation, as the Supreme Court’s decisions in Snyder v. Phelps (2011) and New York Times v. Sullivan (1964) demonstrate. The First Amendment restricts damage awards for speech, and prohibits vague or overbroad standards of liability, because “the fear of damage awards” over speech “may be markedly more inhibiting than the fear of prosecution under a criminal statute.” New York Times v. Sullivan, 376 U.S. 254, 277 (1964).
An investigation of speech by a civil-rights agency like the EEOC can also violate the First Amendment, as a federal appeals court made clear in White v. Lee, 227 F.3d 1214 (9th Cir. 2000). That case held civil-rights officials individually liable for investigating citizens who spoke out against a housing complex, despite the officials’ belief that such criticism violated the federal Fair Housing Act. The court held that such speech was clearly protected by the First Amendment, even if it had the effect of making housing unavailable to members of classes protected by federal civil rights law. The investigation violated the First Amendment even though it led to no sanctions or fines, because its protracted nature chilled speech.
There is no “civil-rights” exception to the First Amendment. For example, the Supreme Court ruled that the First Amendment protected the Boy Scouts from liability under the New Jersey Law Against Discrimination when it exercised its First Amendment freedom of expressive association by excluding from its ranks a gay assistant scoutmaster who disagreed with the Boy Scouts’ teachings. See Boy Scouts of America v. Dale, 530 U.S. 640 (2000). Moreover, the argument that the Fourteenth Amendment outweighs the First Amendment in the workplace is unavailing, since the Fourteenth Amendment — unlike civil-rights statutes — does not reach private conduct or employment, and, indeed, constitutionally cannot reach them. See United States v. Morrison, 529 U.S. 598 (2000) (invalidating Subtitle II-C of the Violence Against Women Act as beyond Congress’s power to enforce the Fourteenth Amendment, because the challenged statuted regulated private conduct rather than governmental conduct).