“Watch what you say, or be ready to pay,” a newspaper headline said about workplace harassment law some years ago. Well, now you should watch what you say in private clubs, as well as workplaces. Clubs are the new stop for the campaign to legally eradicate speech that offends based on race, religion, sex, sexual orientation, and so on.
The Franklin Lodge of Elks in New Hampshire faced a controversy about whether women should be allowed to be members. During the controversy, some of the male members made offensive statements about the women who were trying to get in.
The statements (which I don’t endorse as a matter of ethics and morals) included some sexual slurs and face-to-face insults, but also the expression of sexist viewpoints: For instance, as the New Hampshire Commission on Human Rights said in its opinion, some male members were berated for their female family members’ actions (e.g., a member “asked [an applicant’s] husband why he couldn’t control his ‘little woman’”), and “the Elks’ secretary wrote in the Elks’ newsletter that the ‘women’s actions might destroy the lodge.’”
Just two weeks ago, the New Hampshire supreme court affirmed the commission’s decision, and held that the club was legally liable. And the court didn’t just hold that the women were entitled under state law to be admitted to the club — it also upheld the decision to assess damages against the club for its members’ “sexual harassment” of the women plaintiffs. Speech that offends fellow club members based on sex, and presumably also on “age, . . . race, creed, color, martial status, physical or mental disability or national origin” or “sexual orientation,” is now legally punishable.
Of course, when clubs are held legally liable for their members’ speech, they will naturally be forced to suppress such speech, to avoid this liability. (The total damages in the Elks case were $40,000, which amounted to over 25 percent of the club’s yearly budget.) The goal of workplace harassment law is to prevent offensive speech, by pressuring employers to adopt workplace speech codes. “Public accommodations harassment law,” which is being built by analogy to workplace harassment law, extends such legally coerced speech codes to private clubs and other places (such as restaurants, bars, and the like). All those places would now have to control their members’ and patrons’ speech.
And nothing in harassment law is limited to slurs (the speech here included more than just personal epithets), or to campaigns to exclude members from a club. Workplace harassment is defined to cover a broad range of offensive speech: any speech (by the employer, coworkers, or even patrons) that is “severe or pervasive” enough to create a “hostile, abusive, or offensive environment” for a “reasonable person” and for the plaintiff based on race, religion, sex, sexual orientation, and so on. Allegedly bigoted political statements can qualify. So can allegedly offensive humor. So can offensive art.
Now the same will presumably apply to clubs, too. A club’s display of a painting containing nudity could now lead to hostile environment liability, just like display of sexually themed art in workplaces can lead to such liability. Likewise when club members say racially, sexually, or religiously themed jokes within earshot of other members who might be offended, or express allegedly bigoted political views. A South Dakota government publication already tells people that “racist or sexist statements displayed in a public accommodation which affect a person’s ability to use and enjoy those accommodations” are illegal. Likewise, three years ago, the Massachusetts Commission Against Discrimination found that an allegedly racist display in a bar was illegal, and fined the bar owner. To avoid spending tens of thousands of dollars in damages (plus attorney fees), clubs will have to err on the side of caution — just as employers now have to — and suppress any potentially offensive speech by club members.
What about the First Amendment? Neither the commission nor the New Hampshire supreme court even mentioned it. It’s as if the term “harassment” has become the universal solvent of constitutional rights. Call speech “offensive speech,” and people realize that the U.S. Supreme Court has held that it must be protected, even when it expresses ideas that we believe are evil or rude. Call the same speech “sexual harassment,” and the First Amendment is ignored.
This incident is yet another example that the slippery slope is a real phenomenon. Harassment law got started by suppressing workplace sexual extortion, physical abuse, threats, and other misconduct that isn’t protected by the First Amendment. But because of its breadth and vagueness, it got stretched to cover more speech, including political speech, social commentary, and art. And then by a process of analogy — a powerful force in a legal system that’s based on precedent — the law broadened from workplaces to universities, restaurants, bars, and now private clubs. And the slippage may go still further: Once these sorts of broad restrictions are allowed, they themselves become analogies to be used to suppress still more speech.
I’d like all organizations, including private clubs, to be welcoming places, where people are civil to each other. The statements in the Elks case have no place in polite company. Under the First Amendment, though, the proper way to deal with such offensive speech is through moral suasion and social pressure, not through legal coercion. This sort of social negotiation may often be painful and imperfect; but it is far better than the alternative.
— Eugene Volokh teaches First Amendment law at UCLA School of Law.