I blogged below about the details of the case — a court concludes that an employee can sue someone for repeatedly circulating in the workplace e-mail with anti-Islam/anti-Muslim/anti-Arab statements — and I've written elsewhere about why such liability is unconstitutional. But I want to focus a bit on the court's First Amendment analysis, because it's even more dangerous to free speech than some other pro-harassment-law analyses have been.
Here's how the court reasons:
Tefft contends that his emails were protected speech under the First Amendment.
Specifically, he argues that the emails were a form of political speech and that
he cannot be held liable for their content under Section 1981 or its state
analogs. However, any restraints on speech stemming from these
anti-discrimination provisions are merely incidental to the statutes’ objective
of remedying racial discrimination. As the Supreme Court has noted, “[w]here the
government does not target conduct on the basis of its expressive content, acts
are not shielded from regulation merely because they express a discriminatory
idea or philosophy.” R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992).
That's wrong because hostile environment harassment law applies to speech in these cases precisely because of its expressive content: It is the content and the viewpoint of the e-mail that creates the offensive environment. (You could imagine a hostile environment created by the nonexpressive content of someone's conduct, for instance because the conduct is unwanted touching, but that's not so here.) As I argue at length in my Cornell article, a law that applies to speech precisely because of what the speech communicates — and the harms that might flow from such communication — can't just be dismissed as "incidental" regulation.
But even setting aside the doctrine, consider the implications of what the court is saying. Just as discrimination based on religion and other criteria is barred in employment, it's also banned in education and in public accommodations. That's the reason for the spate of campus speech codes written in "hostile educational environment" terms, lawsuits based on alleged "hostile educational environments" and lawsuits based on alleged "hostile public accommodations environments" — for instance, when a bar, library, club, or other business engages in (or simply allows) speech that offends some patrons based on religion, sex, race, and the like. And the court's First Amendment analysis would apply to those things precisely the same way, because all these doctrines are structurally identical, and "any restraints on speech stemming from these anti-discrimination provisions are merely incidental to the statutes’ objective of remedying racial discrimination."
There would thus be no First Amendment problem with imposing liability on a university that tolerates anti-Islam/anti-Muslim/anti-Arab speech (or for that matter anti-Christian speech, anti-Mormon speech, and the like). There would be no First Amendment problem with imposing liability on a library that doesn't properly filter access to material that might offend Muslim patrons, or on a bar that posts supposedly blasphemous material on its walls, or on a restaurant that doesn't censor patrons' anti-Muslim statements when fellow patrons object to such statements.
READ IT ALL ! ! !
1) Dangerous First Amendment Analysis in Anti-Islam/Anti-Muslim/Anti-Arab Speech Case