33 Pages Posted: 4 Jan 2000
During the height of the Clinton-Lewinsky scandal, some lawyer pundits made some rather remarkable observations: 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. Such discussions "ought to be avoided" because of the risk of legal liability. "[I]t's best to choose carefully who you share your remarks, your jokes, with....'Attorneys warn us about [legal liability],' she said. Office humor in particular 'is always quicksand'...." "There's no right [to make certain statements about the Clinton/Lewinsky affair] just because it's a public issue." "We had quite a few clients calling us when Lewinsky jokes...were making the rounds." "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 course is not the case."
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, which had been struck down 9-0 by the Supreme Court. Rather, this remarkable speech restriction is hostile environment harassment law. Under this doctrine, speech can lead to massive liability so long as 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 so on. And these rather vague and broad terms have 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 coworkers or directed to particular coworkers. The prudent employer is wise to restrict speech like this, whether it's about Clinton, Lewinsky, 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 have been illegal.
This article explores, through the lens of four specific Clinton-era cyberspace "harassing speech" controversies, how hostile environment harassment law has rapidly become one of the broadest modern restrictions on speech generally, and on cyberspace speech in particular.
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