Free Speech and Hostile Environments

Abstract

One major concern about sexual harassment law is that employers will restrict employee speech in order to avoid hostile environment liability, thus violating free speech principles. In this Essay, Professor Balkin argues that this “collateral censorship” is constitutionally permissible when there are good grounds for vicarious liability. Because employers actively control workplace culture, and because they are better able to prevent hostile environments than individual employees, vicarious liability for employee speech is more justified than in the case of distributors or common carriers. Professor Balkin also argues that captive audience doctrine, generally thought to apply only to speech in the home, is actually better suited to workplace speech. Hostile environments are a method of sex discrimination that maintains gender segregation; a hostile environment does its work precisely through making the employee a captive audience. The Essay concludes that First Amendment challenges to sexual harassment law should not become a defense of employer prerogatives presented in the guise of worker liberties. Without the incentives created by sexual harassment law, employees will not be freed from censorship; they will simply be remitted to the economic and social control of employers.