Freedom of Speech, Cyberspace, Harassment Law and the Clinton Administration

Article excerpt

EUGENE VOLOKH [*]

I

INTRODUCTION

During the height of the Clinton-Lewinsky scandal, many lawyer pundits talked about impeachment. Some talked about independent counsels and separation of powers. Some talked about the criminal law of perjury, or the rules of evidence, or whether indecent exposure constituted sexual harassment.

A few experts, though, focused on a more practical issue: Saying certain things about the scandal, they advised people, might be legally punishable. "Be careful what you say," one headline warned, when you discuss "the Starr report and Clinton/Lewinsky matter" in certain ways. [1] "Talking about Clinton? Tread carefully," says another, pointing out the risk of "a lawsuit from an offended co-worker." [2] Such discussions "ought to be avoided" because of the risk of legal liability. [3] "[I]t's best to choose carefully who you share your remarks, your jokes, with.... 'Attorneys warn us about [legal liability]....' Office humor in particular 'is always quicksand'...." [4] "There's no right [to make certain statements about the Clinton/Lewinsky affair] just because it's a public issue." [5] "We had quite a few clients calling us when Lewinsky jokes... were making the rounds." [6] "People think that if they hear something on TV or the radio they can say it at work [without fear of legal liability]. But that of co urse is not the case." [7]

What body of law, one might ask, would suppress jokes about the President or discussion of the Starr Report? Not the most publicized free speech restriction of the Clinton years, the Communications Decency Act of 1996. [8] which was struck down 9-0 by the Supreme Court. [9]

Rather, this remarkable speech restriction is hostile environment harassment law. Under this doctrine, speech can lead to massive liability if it is "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" for the plaintiff and for a reasonable person based on the person's race, religion, sex, national origin, disability, age, veteran status, and in some jurisdictions a variety of other attributes. [10] And this rather vague and broad test has long been interpreted to cover not just face-to-face slurs or repeated indecent propositions, but also sexually themed jokes and discussions, even ones that aren't about co-workers or directed at particular co-workers. [11] The prudent employer is wise to restrict speech like this, whether it is about President Clinton, Monica Lewinsky, Kenneth Starr, or anyone else--not just because of professionalism concerns (which some employers might care more about and others less), but because of the risk that this speech will be found to be leg ally punishable. [12]

I was asked to participate in this symposium by discussing the Clinton Administration and free speech in cyberspace, and I will do so. But inquiring into the Clinton Administration's role in cyberspace speech regulation may be asking the wrong question. I'm not sure that particular Administrations generally have much of a direct impact on free speech law (as opposed to the indirect impact, often not seen for decades, flowing from the decisions of the judges they appoint). The Clinton Administration, for instance, has mostly confronted free speech law incidentally and sporadically; the high-profile direct attempts to seriously restrict speech, such as the CDA, have largely come from Congress. [13]

Moreover, the words "in cyberspace" in the phrase "restrictions on free speech in cyberspace" are generally, in my view, not terribly significant; the medium by and large does not and should not affect the protection--or lack of protection--given to the content. The CDA and the Child Online Protection Act [14] do pose some interesting cyberspace-specific questions, but even with these laws, most of the important issues are broader free speech questions: May speech be restricted if the restriction is in fact necessary to effectively serve a compelling government interest? …