Thursday, June 26, 2003

Unintended consequences

Quick, let's free-associate. I'll throw out a concept and you say the first thing that pops in your head. Are you ready? OK, here it comes....

Strip joints.

Did you say "protected speech"? Well of course you did. If you're a liberal, or have never been to a strip joint, anyway. Of course free speech as we know it would cease to exist without women dropping their drawers and displaying the latest triumphs in depilatory science and mammoplasty, or straddling and humping about any stranger who waves a $20 at her.

Today's NRO included this from Eugene Volokh. He notes that nowadays even private clubs have to regulate private behavior lest they be held responsible for verbal sexual harassment or other crimes against political correctness.
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.
Interesting. Does this mean that if a customer enters a strip joint and decides it's offensive, he can sue them for damages?

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