Tag Archives: Ohio

I’ve long written about how workplace harassment law sometimes violates the First Amendment, so I was especially pleased to see today’s Rodriguez v. Maricopa County Community College Dist. (9th Cir.) (written by Chief Judge Kozinski, and joined by retired Justice O’Connor, sitting by designation, and Judge Sandra Ikuta). The entire opinion is much worth reading, and it’s readable and not too long (about 11 pages). But here’s the heart, which I like very much:

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. [For details, see PDF pp. 4-5 of the opinion, or the end of this post. -EV] Every district employee with an email address received a copy. Plaintiffs, a certified class of the district’s Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski’s emails created a hostile work environment in violation of Title VII and the Equal Protection Clause…. The district court … denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims….

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito -EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

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