Elastic Definitions of Sexual Harassment

The high costs to free speech of vague legal terms and frivolous cases.

by Bruce S. Thornton

Private Papers

Even as the civil liberties fundamentalists continue to fret over the Patriot Act and the treatment of terrorists in our custody, a more insidious and dangerous assault on our freedom, one that has been going on for years now, continues apace. I’m speaking of the metastasizing notion of sexual harassment, which grows ever larger and more encompassing with each lawsuit and court case. In the strange pursuit of the perfect world where no one (except conservative, straight white males) ever feels bad, this judicial cancer threatens one of our fundamental liberties, freedom of speech.

The latest assault comes from a California Court of Appeal decision which ruled that the creative discussions held by scriptwriters for the television show Friends— in which sexual banter frequently occurred as the writers, both male and female, brainstormed for new ideas– constituted sexual harassment. Though the accuser was never the direct target of such banter, nonetheless the court agreed with her claim that the comments constituted the sort of “hostile environment” forbidden by sexual harassment law.

Once more we see the dire consequences of enshrining into law a notion as vague and subjective as “hostile environment,” which ends up being whatever anybody, no matter how hypersensitive, neurotic, stupid, or humorless she or he is, thinks it is– as long as he or she can find a judge or investigator as hypersensitive, neurotic, stupid, or humorless. This elastic phrase has already had a chilling effect on many workplaces, since employers will err on the side of caution rather than face an expensive lawsuit and the intrusion of EEOC inquisitors into their business. It’s simply more cost effective to suppress an individual employee’s right of free speech than to take on a government bureaucracy backed by the coercive power of the courts.

Additionally, such subjectivity ends up in grossly unfair applications of harassment law. Flirtation that is clumsy or unwelcome suddenly becomes criminal harassment depending on the undesirability or repulsiveness or status of the perpetrator. Clever banter or sophisticated sexual wit likewise changes into harassment depending on the mood of the victim and her changing feelings for the person. We all saw the hypocrisy and injustice of these standards in the feminist establishment’s indifference to Bill Clinton’s abuse of power to secure sexual favors. The same watchdogs that tore Clarence Thomas apart over undocumented charges of sexual boorishness shrugged away Clinton’s numerous textbooks instances of sexual harassment.

The current case, however, has larger, more threatening implications, particularly for universities, many of which already have developed elastic definitions of sexual harassment whose effect is to stifle free speech. Many university “harassment codes” list jokes, cartoons, gestures, expressions, kidding, and “sexual” remarks as punishable harassment. The effect is to criminalize normal teen-aged and young adult behavior, not to mention leaving the interpretation of just what constitutes a “sexually harassing gesture” up to the alleged victim and whatever university commissar investigates the incident. Once more, the state is using its coercive power to enforce a particular ideology about relations between the sexes-a neo-Victorian vision that views women as the demure, helpless victims of the bestial appetites of men.

The implications of this ruling for free speech are spelled out by Greg Lukianoff, director of legal and public advocacy for FIRE, the Foundation for Individual Rights in Education, which has joined a national coalition urging the California Supreme Court to overturn the appellate court ruling: “If Lyle is not overturned,” Lukianoff writes, “institutions in California that rely on the free flow of ideas-including the state’s colleges and universities-may no longer be afforded the full constitutional protections that they deserve.  A claim of offense would be enough to silence the most essential debates and discussions.  This could usher in a new and particularly disturbing phase in the ongoing battle for free speech on campus.”

Consider, for example, the “Policy Regarding Non-Discrimination and Harassment” promulgate by the State University of New York at Brockport, which explicitly limits the right of free speech: “We affirm that the dignity of our Brockport community is protected when free speech, academic freedom and individual rights are expressed only with responsible and careful regard for the feelings and sensitivities of others.” And just who decides what “careful regard” is, and which “feelings and sensitivities” are important enough to justify limiting the First Amendment? The subjectivity of these categories guarantees that the most sensitive, no matter how irrational or neurotic, will determine the threshold, necessarily resulting in a restriction on free expression.

The greatest irony is that the same universities supposedly committed to the free exchange of ideas no matter how offensive or upsetting have been in the forefront of crafting speech codes whose effect is precisely to stifle such debate. To those behind such codes, free speech and academic freedom are wonderful–as long as the ideas are those consistent with the “progressive” ideology of the university and its favored “victims” of historical oppression. No administrator loses sleep over the harassment of conservatives, Republicans, or Christians, or frets over the limitations of those groups’ First Amendment right to free speech, or worries over their hurt feelings. On the contrary, often those groups’ exercise of their First Amendment rights is considered harassment!

Ultimately the worst danger comes from bestowing on the state and the courts the power to regulate and shape and intrude into the personal lives of all of us. Our encounters with one another are always fraught with tension, disagreement, and conflict. The threshold of offense differs from person to person, or even from moment to moment in the same person. In the university, where the learning process necessarily involves discussions of values and ideas that people are passionate about, these encounters can become heated and sometimes offensive. Universities should teach students how to deal with that sort of conflict and its emotions, and give them the tools for examining and defending their ideas when challenged.

Instead, many universities, backed up by the courts and sexual harassment law, are imposing limits on that discussion both to advance an ideological preference and, more important, to avoid lawsuits. This judicial interference in our lives constitutes a threat to our liberty much more dangerous than the temporary measures taken to make sure we’re not murdered by terrorists. It behooves all of us to support those organizations such as FIRE that are taking the lead in battling these attempts to limit our democratic right to speak our mind.

 © 2004 Bruce Thornton

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