Back in April I noted a story about possible “hostile workplace environment” ramifications of unwanted pornographic email. I quoted a part of the story in which Hans Bader, an attorney for the Center for Individual Rights, said the following:
“It’s ironic to treat gross e-mails as sex discrimination against women, since that assumes that women are especially sensitive and mentally frailer than men are–if it offends them equally, there is no discrimination,” Bader said. “Yet that is what sexual harassment law does now in many jurisdictions–it bans sexual speech because people think women are uniquely offended by it. It is based on sexual stereotypes.”
I aimed several criticisms at Mr. Bader for these remarks. Yesterday, I received an email from him in which he disputed some of what I said. I present here his email in its entirity for your perusal. It’s a bit long, so it’s under the More link. Judge for yourself.
Dear Mr. Kuff,
In your blog, you cite me as opposing anti-spam legislation (“Too bad this
guy [Bader] opposes such legislation”).
I don’t. I haven’t taken any position on legislation aimed specifically at
spammers, and I generally don’t like receiving spam myself.
I just think that a hapless employer shouldn’t be held responsible for spam
sent into its workplace, especially not under the dubious theory that it is
“sexual harassment” by the employer of its employees simply because the
employer failed to bend over backwards to stop it from coming in. If anyone
should be responsible for spam, it ought to be the spammer, not the
employer — and that ought to be under a viewpoint-neutral anti-spam law,
not “sexual harassment” law.
You feel that I am “sexist for assuming that blocking porn spams is designed
to protect women.” Actually, I criticize the assumption that women are more
offended than men (as opposed to be offended to the same extent as men)
by spam, which is the only theory under which it could be deemed to be
sexual harassment under federal law.
Why? because under federal law, sexually offensive conduct that is equally
offensive to both men and women is not deemed to be actionable sexual
harassment. See Henson v. Dundee (11th Cir. 1982) (so holding). That
may strike you as odd, but that limitation was approved (albeit in dictum) by
the Supreme Court in the Oncale case (1998) (sexual conduct must be
“based on . . . sex,” not just have sexual overtones ), and federal courts
routinely hold that even reprehensible conduct is not actionable where it is
not more offensive to women than to men. See Holman v. Indiana (7th Cir.)
(sexual extortion directed at both men and women); Butler v. Ysleta Indep.
School District, (5th Cir. 1998) (anonymous sexual letters); Brown v.
Henderson (2d Cir. 2002) (obscene parody) . (The state courts don’t always
agree; Massachusetts and Minnesota courts have held that sexual
harassment doesn’t have to be based on sex to violate their state anti-
discrimination laws).
To get around the federal requirement that harassment be “because of sex,”
plaintiff’s lawyers make an assumption that you yourself seem to agree is
objectionable: that women are more easily offended by, or vulnerable to, all
manner of sexual speech and conduct, than men are. (I say you that
yourself seem to agree that it is objectionable because you recognize that it
is “sexist” to “assum[e] that blocking porn is designed to protect women.” I
hope I am not overstating your point). That’s not my assumption, it’s theirs.
Frankly, I suspect that most spam either offends both men and women, or
neither. What little difference exists is too slight to use as a basis for legal
distinctions lest it foster exaggerated gender stereotyping.
Even if spam can be banned by a proper anti-spam law, I don’t think it
should be restricted by sexual harassment law. For spam to be treated as
sexual harassment, one would have to ignore the fact that it is sent to both
men and women, diluting the statutory because of sex requirement, and
focus on its content as being disproportionately offensive to women to show
the discrimination required under federal law.
That turns harassment law into a law focusing on content, rather than
discriminatory selection of the victim, and creates, in my opinion, serious
First Amendment problems outside the area of spam — not for the run of the
mill pornographic spam, whose prohibition would be no great loss, but for
less explicit, non-pornographic speech in the workplace not aimed at a
particular complainant, which could be prohibited based on stereotyped
notions of what speech is purportedly offensive to women. For examples of
non-pornographic speech that it regulated under such a broad conception of
harassment law, see Eugene Volokh’s web sites and articles.
Perhaps spam can be likened to a noisy sound-truck, regulable because of
its intrusive nature. But just as the government could not regulate only
Republican sound-trucks while leaving Democratic soundtrucks unregulated
(even if it could ban all soundtrucks), I don’t like the idea of sexual
harassment law prohibiting just “sexist” spam while leaving unsexist spam
unregulated. That smacks of content and viewpoint discrimination.
Thanks for reviewing my e-mail.
Hans Bader
Center for Individual Rights
Random endorsement:
I actually went to law school with Hans Bader, and while I don’t always agree with him, he’s a very careful thinker and really deeply devoted to free speech issues. There are some people whose opposition to hate speech and sexual harassment law seems like a cover for nastiness; not true of Hans.
I went to school with Hans Bader too and my most vivid memory of him was that he was chased down the street by another student after he was caught ripping down posters for a dance sponsored by the Gay and Lesbian Student Union. Maybe he’s learned since then.