Some Conservative Speech May Become Illegal After the Election

Do you like being able to criticize progressive policies about race or gender, such as affirmative action? That freedom may soon disappear in workplaces, schools, and rental housing, if legislation backed by Democrats becomes law. A bill called the BE HEARD in the Workplace Act would redefine speech that previously was considered perfectly legal as “harassment.” It would do that by eliminating the current legal requirement that speech be “severe” or “pervasive” to be classified as illegal sexual harassment or racial harassment.

Backed by Joe Biden, the BE HEARD in the Workplace Act would “subject even the smallest employers to lawsuits for unlimited punitive damages and lawyers’ fees, and impose an expansive definition of ‘harassment’ that would require them to police speech and behavior by their employees even outside the workplace.”

Why does this matter? Progressive activists have a long history of filing racial or sexual harassment complaints against people who express conservative viewpoints about race or gender, claiming that such viewpoints create or contribute to a hostile learning environment. As a lawyer notes, “under schools’ ‘hostile learning environment’ harassment codes, students and campus newspapers have been charged with racial or sexual harassment for expressing commonplace views about racial or sexual subjects, such as criticizing feminism, affirmative action, sexual harassment regulations, homosexuality, gay marriage, or transgender rights, or discussing the alleged racism of the criminal justice system.”

Like the BE HEARD in the Workplace Act, most of these harassment codes did not require that the speech be “severe or pervasive” to be punishable.

Current federal law requires that speech be “severe or pervasive” before it can constitute illegal “harassment,” in a lawsuit over racial, sexual, or religious harassment. That’s designed to keep people from suing over minor things. But as UCLA law professor Eugene Volokh points out, a few courts have still managed to award damages over political, religious, or artistic speech under the theory that it created a discriminatorily “hostile or offensive” work environment. That includes speech that was not even aimed at the person who sued over it, like conversations among their co-workers. Such rulings have effectively imposed unconstitutional, “viewpoint-discriminatory” restrictions on speech, Professor Volokh says.

Employers and schools sometimes react to such court rulings by telling their employees or students not to discuss certain things that may offend listeners, effectively restricting free-speech rights. They do that to avoid being sued for racial or sexual harassment. So some censorship is already occurring, due to fear of harassment lawsuits. (If a private employer voluntarily restricts its employees’ speech, that does not violate the First Amendment. But if it is pressured by fear of lawsuits to do so, that can violate the First Amendment).

By making lawsuits over speech easier, the BE HEARD Act would radically increase this censorship based on fear of lawsuits. The BE HEARD Act is supported by not just by Joe Biden and most Congressional Democrats, but also even “moderate” Democrats like Michael Bloomberg. So the BE HEARD Act will likely become law if Democrats take control of Congress and the White House next week.

The BE HEARD Act will pressure institutions — including colleges and media entities — to restrict speech about sexual, religious, or racial issues that is not severe or pervasive. That may trigger constitutional challenges by college faculty. Some courts have struck down campus sexual harassment policies that prohibited speech that was not severe or pervasive, finding that such policies violated the First Amendment. (See Saxe v. State College Area School District (2001); DeJohn v. Temple University (2008)). And an appeals court dismissed a racial harassment lawsuit over a professor’s racially-charged emails about immigration, citing the First Amendment.

It is conceivable that constitutional challenges might be brought by other workplace speakers as well.  Judges have questioned the constitutionality of harassment rules that penalize workplace speech about religion that does not really harm the complainant. (See Meltebeke v. Bureau of Labor & Industries, 903 P.2d 351 (Or. 1995) (Unis, J., concurring)).

But many legal scholars, such as law professor Josh Blackman, expect the Democrats to pack the Supreme Court with progressive judges after they win the election, and progressive Senators advocated packing the Supreme Court long before Justice Ginsburg died.

And many progressive judges will likely ignore any First Amendment problems with the BE HEARD Act. New York City already has a local law similar to the BE HEARD Act, that allows people to sue over things too minor to be illegal under federal law, such as a single offensive utterance (under certain circumstances). And no one seems to have raised a First Amendment defense to it.

The BE HEARD Act also creates other problems by changing the meaning of “sexual harassment” and “workplace harassment.”

For example, it says conduct can be “workplace harassment” even if “the conduct occurred outside the workplace.” It gives a long long list of things that typically are not true of workplace harassment, and then says that conduct may be harassment “regardless” of them. It states:

conduct may be workplace harassment regardless of whether, for example—

(A) the complaining party is not the individual being harassed;

(B) the complaining party acquiesced or otherwise submitted to, or participated in, the conduct;

(C) the conduct is also experienced by others outside the protected class involved.

But according to judges, all these things logically weigh against a finding of workplace harassment under current federal law. (See Alvey v. Rayovac Corp. (1996); Gleason v. Mesirow Financial (1997); Scusa v. Nestle USA (1998); Holman v. Indiana (2000)).

Changing the law this way will result in a lot of confusion, and lots of costly lawsuits.


Editor’s Note: This article was originally published by Liberty Unyielding on October 28, 2020 and is reposted here with permission.

Image: Louis Velazquez, Public Domain

Hans Bader

Hans Bader

Hans Bader is a senior attorney at the Competitive Enterprise Institute.

2 thoughts on “Some Conservative Speech May Become Illegal After the Election

  1. The BE HEARD Act, if passed, ultimately will be overturned because it violates the 1st Amendment. Speech codes on campus are already being challenged nationwide and with success. For example, just this last week the 5th Circuit Court of Appeals reinstated a 1st Amendment lawsuit against the University of Texas-Austin.

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