It's almost funny, the things people think it's acceptable to say to their co-workers -- particularly their female co-workers. What isn't funny is when judges -- not defense attorneys, judges -- try to use the First Amendment to excuse inappropriate and threatening comments.
Earlier this year, four Michigan State Supreme Court justices asked the state's Court of Appeals to consider whether a state law prohibiting the verbal abuse of co-workers was a violation of the First Amendment right to free speech. The case in question was one of a former Detroit police officer, Lynette Burns, who sued her employer when, according to a Detroit Free Press report, male co-workers "repeatedly referred to her as a bitch and other, less-printable gender-based epithets, suggested that her disposition would be improved by more regular sexual relations with a man, and hinted that she might face a beating after she complained to superiors" ("Harassment case becomes a hot potato," June 14). Her supervisors' response to her complaints was to move her to the lower-paying day shift. A jury awarded Burns $1.1 million in damages.
During the case and its subsequent appeal, the defendant's attorneys never argued that the alleged harassment was protected speech. Turns out they didn't have to. Four judges, including the Chief Justice, a staunch Republican, took it upon themselves to offer that defense.
Fortunately, the Court of Appeals decided that Michigan's sexual harassment policy is not in violation of the First Amendment after the city attorney admitted that she couldn't find a single case to suggest that the Supreme Court had any reason to believe that it did. Now that the Court of Appeals has passed judgment, the Supreme Court of Michigan can rule on the issue it raised itself. Regardless of the court's decision -- which will uphold the sexual harassment law if the Court has any integrity or common sense -- the fact that the justices asserted the First Amendment objection in the first place raises several concerns.
If the Court of Appeals had agreed with the justices -- or if the justices themselves make a decision -- Michigan's sexual harassment laws will be rendered essentially useless. Free speech, obviously, is one of the country's mostly dearly held rights. The defense of free speech should not, however, allow one person to interfere with the comfort or safety of another. The comments made by Burns' co-workers did not serve any constructive purpose -- they were meant solely to upset and offend her.
The concept of free speech protects certain actions as "symbolic speech." Similarly, the notion of protection of personal safety should include harassing speech, including threats and repeated, uninvited sexual attention.
If the Court decides that Burns' co-workers' comments should have been protected by the First Amendment, it effectively sanctions sexual harassment, and leaves women like Burns (or men, when the tables are turned) with little recourse beyond switching to a lower paying shift -- hardly a just solution.
The justices' request that the lower court examine the law's compliance with the First Amendment also is upsetting in its own right. It is certainly unconventional -- and in this case inappropriate -- for the Court to suggest a defense in a case it may be asked to rule on. Should the defense attorneys have suggested free speech violations, a review would have been necessary and appropriate. For a majority of justices to step outside of their role as neutral arbitrator is unacceptable. It is hard to believe that a court which attempted, without provocation, to gut a fairly standard sexual harassment law will rigorously enforce that law in the future, despite the fact that the city's attorney could find no evidence that the law is unconstitutional.
The four Michigan Supreme Court Justices already have over-stepped their bounds. They would be even further out of bounds if they declared the law in violation of the First Amendment, ruling on an issue they themselves raised. The Court should heed the words of the Court of Appeals: "While we respect our Supreme Court's authority to raise the issue, invoking this constitutional issue to benefit a party who failed to raise the issue would be entirely inappropriate," ("Free speech draws line at verbal abuse," Detroit Free Press, Nov. 11) and further, they should publicly acknowledge their fallacy in raising the issue to begin with.
(Megan Moyer's column appears Wednesdays in The Cavalier Daily. She can be reached at mmoyer@cavalierdaily.com.)
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