Eugene Volokh has caught Clayton Cramer yet again on the subject of the ACLU. This time at least he didn't make outright false accusations against them, he just asked a leading question with a negative implication that a few minutes research could have answered for him. In discussing a rather ridiculous case where an Oxford student was taken in for questioning for calling a policeman's horse "gay" - yet another example of how out of control British law is in regard to anything that smacks of homophobia - Cramer ends with this question:
You wonder on which side the ACLU would have been if a similar law and case presented itself. On the side of the drunken student's free speech rights? Or the right of the community to not hear ideas that offend?
But as Volokh points out, the ACLU has a track record here that would have been easy to discover if Cramer had only bothered to find out. In two prominent cases criminal prosecution of offensive speech, one involving something as offensive as cross burning, the ACLU came out strongly for free speech rights and against government prosecution.
1. In the highest-profile Supreme Court case of the last 15 years that dealt with criminal punishment for bigoted speech - R.A.V. v. City of St. Paul (1992) - the ACLU (both the national group and the local chapter) filed an amicus brief defending the right to say bigoted things. "[A] ban on expressive activities that 'arouse[] anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender' cannot be reconciled with our society's commitment that 'debate on public issues should be uninhibited, robust, and wide-open...'" "It is tempting to say that the message conveyed by even the public burning of a cross during a political rally" - the case involved racist crossburning, though the logic of the ACLU's argument applied to all bigoted speech - "is so offensive, so hurtful, and so antithetical to the ideal of equality, that it ought to be subject to prohibition without the need for rigorous scrutiny of whether it crosses some First Amendment line from protected advocacy to unprotected threats or intimidation. The Constitution, however, does not tolerate such shortcuts."2. In another recent case involving bigoted speech, Virginia v. Black, the local ACLU chapter likewise argued that bigoted speech is protected unless it fits within the threat exception or the incitement exception (or, possibly, the exception for face-to-face personal insults that are likely to start a fight). There, the ACLU was among the lawyers for the defendants.
And here again is an example of where there is legitimate criticism to be made of the ACLU, but it is passed over in favor of illegitimate criticism. As was pointed out by Volokh and in the comments (one by Sandefur), the ACLU has supported workplace harrassment codes that make offensive speech a violation of law. That's a position I disagree with strongly. The company itself can make such regulations if they choose, but the government has no business deciding what speech is allowed in the workplace and what is not. The first amendment forbids it. That's a perfectly reasonable criticism of the ACLU position. Which makes one wonder all the more why people feel the need to find false justifications for their criticisms.
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I have one fucking word for Clayton: Skokie.
There are a lot of companies that would have unacceptable working conditions for various employees if it weren't illegal to "harrass" coworkers. I dissagree with the legnths those laws go to but simply letting the companies choose to have those policies voluntarily would be like sayinjg that companies should be alowed to regulate workplace safety - it means too little regulation for a lot of companies.
The mining accidents in recent months are a good example of that sort of de-regulating or putting industry to bed with regulatory agancies. They lighten up and the work force suffers. It's easy to say that one can just work someplace else but these days jobs are hard to come by, harder for women - some folks just have to work where they get a job and need to keep it. That does not mean they should be subjected to discrimonatory or sexually conotated harrassment.
Treban wrote:
There are a lot of companies that would have unacceptable working conditions for various employees if it weren't illegal to "harrass" coworkers. I dissagree with the legnths those laws go to but simply letting the companies choose to have those policies voluntarily would be like sayinjg that companies should be alowed to regulate workplace safety - it means too little regulation for a lot of companies.
I think the first part of your question depends entirely on how such laws define "harrassment". Certainly there are some behaviors that should be prohibited, like quid pro quo demands - sleep with me or I'll fire you, that sort of thing. Everyone agrees on that. But far too often, such policies are written so vaguely that even the most unintentional slight or joke can trigger it. Government has no business regulating speech that does not do direct tangible harm.
More importantly, I would note that business is way ahead of the curve on such laws as it is. One can make a case that business should not be trusted with safety regulations because the short term financial incentives are often against investing in safety. But in the context of harrassment laws, the incentives are all the other way - it costs a company virtually nothing to have a stringent anti-harrassment policy and the vast majority of companies do have such policies and they are almost always far, far more stringent than anything the government's discrimination laws require. So here I think it's harder to make the case for government regulation. Business has been way ahead of government in restricting anything that might potentially land them in a civil court.