Workplace Harassment v Free Speech

[Quantum Windbag]

Today the 9th Circuit ruled that employees cannot restrict the rights of fellow employees to express opinions simply because they find them offensive.

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. [For details, see PDF pp. 4–5 of the opinion, or the end of this post. –EV] Every district employee with an email address received a copy. Plaintiffs, a certified class of the district’s Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski’s emails created a hostile work environment in violation of Title VII and the Equal Protection Clause.... The district court ... denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims....

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448–49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito –EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)....

Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.

This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities — sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments — have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale....

We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek. See Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1849–55 (1992). Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment. See R.A.V., 505 U.S. at 389–90. For instance, racial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, Saxe, 240 F.3d at 208, as they do not “seek to disseminate a message to the general public, but to intrude upon the targeted
[listener], and to do so in an especially offensive way,” Frisby v. Schultz, 487 U.S. 474, 486 (1988). But Kehowski’s website and emails were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot. Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained.

In the context of a supervisory relationship, advocacy of discriminatory ideas can connote an implicit threat of discriminatory treatment and could therefore amount to intentional discrimination. [Footnote: Because this is not such a case, we cannot hold what standard should be applied to determine whether advocacy of discriminatory ideas by a supervisor contains an implicit threat and constitutes harassment. Suffice to say that supervisors retain First Amendment rights and their speech is entitled to significant breathing space before it will be deemed harassment. Cf. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir. 1996) (speech can only be prohibited as a threat if a reasonable person would foresee that it would be interpreted as a serious expression of intent to act in the threatened manner).] But plaintiffs have not alleged that Kehowski’s speech was made in such a context, or that he has any control over their employment....

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

What were the emails?

Kehowski’s first email had “Dia de la raza” as its subject line and asked, “Why is the district endorsing an explicitly racist event?” (Citations and emphasis omitted.) Día de la Raza translates as “Day of the Race” and is celebrated by some Hispanics instead of Columbus Day.

Kehowski’s next email, sent almost a week later, began, “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.” Kehowski then offered excerpts from a variety of articles. One article quoted Arthur Schlesinger, Jr. as saying that “democracy, human rights and cultural freedom” are “European ideas.” Another promoted a theory that “Native Americans actually committed genocide against the original white-skinned inhabitants of North America.” (Emphasis omitted.) Yet another argued that “America did not become the mightiest nation on earth without distinct values and discrimination” and asserted that “[o]ur survival depends on discrimination.”

Two days later, Kehowski sent a third email that began, “Ad hominem attacks are the easiest to launch and the most difficult to defend against.” Kehowski quoted an email calling his messages “racist” and said: “Boogie-boogie-boo to you too! Racist? Hardly. Realistic is more like it.” He quoted an email claiming that “[m]ost thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a ‘backward’ culture over one that was more civilized.” He responded: “[H]istory has answered quite convincingly which cultures were backward.” And he warned: “f we don’t pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the treasonous scum Bill Clinton].” (Bracketed words in original.)

This third email linked to a website maintained by Kehowski on the district’s web server. The school’s technology policy encouraged faculty to develop district-hosted websites for use “as a learning tool,” although faculty also maintained sites of a personal nature. Kehowski’s site declared that “[t]he only immigration reform imperative is preservation of White majority” and urged visitors to “[r]eport illegal aliens to the INS.” (Emphasis omitted.) Like his emails, Kehowski’s website quoted and linked to articles. One critiqued a “shallow and self-contradictory” ideology in which “[r]ace must be held meaningless only by whites.” Another expressed concern that “[t]he persistent inflow of Hispanic immigrants threatens to divide the United States into two peoples.”

Rodriguez v. Maricopa County Community College Dist.

 

[syrenn]

Can you sum it up please? I really don't want to read all of that.

 

[Quantum Windbag]

I can say anything I want, even at work, at the government does not have the right to shut me up is the simplistic answer.

The issue was that Kehowski worked for a quasi government agency, the local community college, and espoused some views that others found offensive. The views included his opinion that La Raza day has racist overtones, that Americans should celebrate Columbus Day as a triumph of Western Civilization, and that multiculturalism is poisoning America. These emails were sent to everyone at the college who had a school email address. The district was sued for not preventing these views under workplace harassment laws.

I would like to point out that this decision applies only to government entities, not private employers, and only in the 9th Circuit, which frequently gets overturned by SCOTUS. I do think they reached the right interpretation here, mostly because I agree with it.

The part that makes the decision likely to stand up is that Kehowski did not direct the speech at any individual. He just publicized his opinion, so he is entitled to free speech protection. If he had directed the speech to specific people there could have been a case for harassment, and a hostile workplace of the school had done nothing to rectify it.

 

[syrenn]

How very un PC of him

 

[Neubarth]

He was technically wrong on the allegation that the Amerinds killed the White People who were here before them.

Though it has been documented that skulls found all over North America prior to the Amerind arrival were Caucasoid and that these skulls predate the Amerinds by 20,000 years there is no way of knowing the color of their skin. North Africans have Caucasoid skulls but can be very brown of skin. Same with numerous other Caucasoid people all over the globe. A good argument could be made that the pre Amerind people were from France because their spears were fluted just like the spear heads of France from 30,000 years ago.

That is the only link to the possible origination of the Caucasoids. It is also believed that the Caucasoids were not wiped out by the arrival of the Amerinds 12,000 years ago. The original English colonists described and painted the Eastern Woodland Indians as looking very Caucasion in appearance. Throughout Mexico when the Spanish arrived there were pockets of Indians who had very Caucasoid skull features. The ruling class of the Inca Indians had Caucasoid features and were reported to have had fair hair and even red hair.

 

[martybegan]

Currently a workplace has to be as bland as the most easily offended person there wants it to be.

 

[JakeStarkey]

. . . or as the boss and his managers will use to intimidate the worker bees.

 

[William Joyce]

Walter Kehowski is a fucking hero.