Free Speech At Issue In Sacramento Sexual Harassment Case, Part 7 of 10

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)


Based on briefing in connection with Defendants’ motion for summary judgment, Defendants believe the following to be the contested issues of law:

Whether Defendant Randy Lee’s alleged vulgar speech is protected by his right of free speech under the First Amendment and California Constitution.

Hill’s sexual harassment claim seeks to invoke state law to punish Lee (and indirectly Randy Lee Artists Collective) for exercising his right of free speech. The California Department of Fair Employment and Housing (“DFEH”) has recognized that free speech rights exist even in the context of alleged harassment. Although the DFEH’s regulations provide that certain forms of verbal and visual conduct can constitute unlawful harassment, the regulations go on to provide that the rights of free speech and association shall be accommodated consistently with the intent of this subsection. Title 2, California Code of Regulations 7287.6. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Lyle, the Supreme Court ultimately did not address the Constitutional limits of sexual harassment laws, because it construed FEHA narrowly to punish only discriminatory speech or conduct that was aimed at the plaintiff or female employees generally because of their gender. Lyle. 38 Cal. 4th at 294 (declining to address First Amendment issue).

Other courts have recognized that if harassment law is permitted to sweep more broadly, it runs afoul of free speech rights. See DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir. 1995) ( Where pure expression is involved, Title VII steers into the territory of the First Amendment.

It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech ; Saxe v. State College Area School District, 240 F.3d 200, 204, 206 (3rd Cir. 2001) (ruling that There is no categorical harassment exception to the First Amendment’s free speech clause and [T]here is also no question that the free speech protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs. ). There can be no question that Lee’s speech — which was neither directed at female employees nor gender motivated — falls within the protection of the First Amendment and Article I, section 2(a) of the California Constitution. Hill’s claim, which attacks the content of Lee’s speech as offensive, must therefore fail. (See Part 8 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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