Document Type
Article
Publication Title
The Review of Litigation
Publication Date
2004
Volume
23(2)
First Page
349
Abstract
(Excerpt)
Like two reluctant boxers in a ring, the First Amendment and Title VII of the Civil Rights Act of 1964 have been sparring halfheartedly for years, circling and jabbing each other in courts and law reviews. The bout pits the constitutional right to be free from government censorship against the statutory "right to work in an environment free from discriminatory intimidation, ridicule, and insult." As stated by the Supreme Court in another context, it pits "the First Amendment rights of the speaker" against "the protection the statute provides for the unwilling listener."
Both the First Amendment and Title VII are legal heavyweights. The First Amendment is one of our "fundamental personal rights and liberties." It "lies at the foundation of free government by free men." Title VII is the pillar of employment-discrimination law, tracing its philosophical roots to the equal protection clause.
Neither has landed the knockout punch. Some judges and commentators have concluded that the statutory prohibition does not offend First Amendment values, partly because harassing speech generally has little social value, and partly because it can be the basis of a hostile workplace environment claim only when it is severe or pervasive. Others, however, have concluded that a law that prohibits verbal harassment necessarily implicates the First Amendment, especially when the speech touches on a subject that may have political, religious, or social relevance. Although the Supreme Court, the ultimate arena, has addressed the issue in dicta, it has not taken the opportunity to consider the issue in a case that raises it.