Sexual Harassment and the First Amendment
Sexual Harassment and the First Amendment
This chapter discusses the growing apprehension of possible tensions between the First Amendment and Title VII's prohibition of sexual harassment. The issue was the subject of a panel discussion at the 1998 annual meeting of the American Association of Law Schools. Eugene Volokh, a noted scholar in the area, argued that Title VII's ban on sexual harassment imposed repressive legal regulation upon expression that would otherwise plainly merit constitutional protection. Catharine MacKinnon, who was also on the panel, responded to Volokh that discriminatory acts, even if perpetrated through words and pictures, had not heretofore been deemed protected by the First Amendment. She argued that words and pictures which caused the harm of discrimination ought to be regulated by the law, whether the harm occurred inside or outside the workplace. In contrast, Volokh contended that indecent and pornographic speech which merited First Amendment protection outside the workplace should not lose that protection inside it.
Keywords: panel discussion, First Amendment, Title VII, Law Schools, Eugene Volokh, repressive legal regulation, Catharine MacKinnon, discriminatory acts
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